Case 2:15-cv-09655 Document 1 Filed 07/09/15 Page 1 of 49 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT HUNTINGTON

MICHAEL T., a person with diminished capacity;

ERIC D., by his guardian CONNIE D.;

SARA F., by her guardians REBECCA F. and DAVID F.;

JEREMY C., by his guardian, JO C.; and

TARA R., by her guardian HARV CHRISTIAN R.;

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ON THEIR OWN BEHALF AND ON BEHALF

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OF ALL OTHERS SIMILARLY SITUATED,

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Plaintiffs,
v.
KAREN BOWLING, in her official capacity as Secretary of the WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Defendant.

CLASS ACTION

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2:15cv-09655

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DEMAND FOR PRELIMINARY RELIEF

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PRELIMINARY STATEMENT
1. This is an action on behalf of West Virginia residents with intellectual and developmental disabilities dependent on West Virginia’s Intellectual/Developmental Disabilities Home and Community Based Services Waiver program (I/DD Waiver Program) to continue to live in the community-integrated settings they have enjoyed for many years.
2. Since the 1980s, the State of West Virginia has operated a Medicaid home and community-based care program under a special Medicaid waiver plan allowing a limited number of persons with intellectual and developmental disabilities to receive ICF/IID-level services

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while living at home or in home-like settings. 3. Individuals with intellectual and developmental disabilities who qualify to receive
home and community-based services receive an annual amount of waiver benefits represented by a budget for waiver services. The allotment of waiver benefits by law must (i) be based on that person’s individual need for care according to the local care provider team most familiar with the individual's needs, and (ii) be sufficient to maintain the recipient in a safe, healthy, and humane condition within an integrated community and home-like setting.
4. In contrast, each year APS generates these benefit amounts arbitrarily through a secret and proprietary computer algorithm that does not give appropriate weight to recipient need and the amount of waiver benefits actually authorized in prior years.
5. Plaintiffs seek class-wide relief for themselves and similarly-situated West Virginia I/DD waiver program recipients who have had the waiver services they need to live in an integrated setting unjustifiably reduced or terminated, or who are imminently threatened with such reductions or terminations. The cause of these reductions and terminations is an unpublished and unlawful policy implemented without due process by Defendant Secretary Bowling in her capacity as the executive head of the West Virginia Department of Health and Human Resources (DHHR).
6. That policy, which has not been approved by either the West Virginia Legislature or federal Medicaid officials, has been instituted because of alleged budgetary shortfalls.
7. A recent press report questions whether DHHR is inflating the alleged budget problems by including non-waiver Medicaid expenditures in the waiver program expenses. Moreover, any shortfalls have been caused or exacerbated by DHHR’s politically-motivated
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refusal to ask the West Virginia Legislature for additional funding for the waiver program at any time over the last several state budget cycles.
8. Through general application of the challenged policy, over the past few months DHHR has greatly reduced the waiver benefits of uncounted waiver recipients from levels it previously authorized through its waiver administrator, Innovative Resource Group d/b/a APS Healthcare, Inc. (APS), as being the amount of benefits that individual needed to maintain safe, healthy, and humane care in an integrated community and home-like setting.
9. DHHR has implemented these massive reductions and terminations of the waiver benefits needed by plaintiffs and the class unjustifiably, arbitrarily, and unlawfully, despite the lack of any meaningful change in an individual’s actual need for services; without DHHR first proving a change in the recipient’s needs for services; and without providing adequate prior notice and a meaningful, impartial hearing at which a decision is reached based on the controlling law and regulations, as required by the Constitution and the fair hearing provisions of the federal Medicaid regulations.
10. Pursuant to this policy, on information and belief, DHHR has directed APS to deny every request for necessary services over and above an arbitrarily-calculated APS budget “regardless of the situation or setting.”
11. Similarly, DHHR has instructed the local care provider teams which coordinate and manage an individual recipient’s waiver services not to request necessary services previously provided if doing so would exceed the budget arbitrarily assigned that individual by APS.
12. Hearing Officers of the West Virginia Board of Review are routinely denying fair hearing appeals contesting these reductions or terminations, despite proof of continuing need for
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previously authorized services and the requirements of controlling law, on the basis that DHHR “has been directed to operate within budgetary guidelines while providing services . . . [so] individual program budgets cannot be exceeded.”
13. As a result, plaintiffs and the absent members of the plaintiff class are suffering loss of the waiver benefits needed for long-term maintenance of their integrated living arrangements, and/or face imminent peril of such loss as soon as 2015 budgets are implemented for them.
14. In consequence, save for plaintiff Tara R., the named plaintiffs and all others similarly situated face a heightened and serious risk of being forced from long-term home and community living arrangements into segregated, institutionalized settings.
15. Plaintiff Tara R. in fact has already been forced from the home at which she has lived all her life, and faces imminent risk that she will not even be able to avoid institutionalization by remaining at her current placement.
16. Plaintiffs and the absent members of the plaintiff class therefore are suffering or imminently face irreparable harm for which they have no adequate remedy at law
17. Plaintiffs therefore seek class-wide preliminary and permanent declaratory and injunctive relief to remedy DHHR’s continuing violation of due process, Medicaid regulations, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and implementing regulations of these anti-discrimination laws.
JURISDICTION 18. This action arises under the Civil Rights Act, 42 U.S.C. §1983; Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12131, et seq.; and Section 504 of
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the Rehabilitation Act of 1973, 29 U.S.C. §794. 19. This Court has jurisdiction over plaintiffs’ claims pursuant to 28 U.S.C. §1343(a)
(3) - (4) and 28 U.S.C. § 1331. 20. Declaratory and injunctive relief are authorized pursuant to 28 U.S.C. § 2201 and
§2202, and Federal Rules of Civil Procedure 57 and 65. 21. Venue is proper because a substantial part of the acts and omissions of which
Plaintiffs complain occurred in this District. See 28 U.S.C. § 1391(b). PARTIES
A. Defendant 22. Karen Bowling is the Secretary of the West Virginia Department of Health and
Human Resources (DHHR). In that capacity, Ms. Bowling has full executive authority and responsibility for the operation, control, and administration of the DHHR in West Virginia, including the West Virginia Bureau of Medical Services (BMS), a subdivision of DHHR. BMS oversees the general administration and operation of the state’s I/DD waiver program.
23. Ms. Bowling is sued only in her official capacity as the governmental official with overall executive authority over DHHR and its various bureaus and contracting agencies, such as BMS and Innovative Resources Group LLC, d/b/a APS Healthcare, Inc. (APS). No claims are asserted personally against Secretary Bowling. For that reason, this complaint will refer to the defendant generically as “DHHR.”
24. West Virginia has designated DHHR as the “single state agency” with direct responsibility for administration of all aspects of the state’s Medicaid plan, including all Medicaid Waiver programs. See 42 U.S.C. § 1396a (a)(5); W. Va. Code § 29-15-6.
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25. DHHR is a recipient of federal funding used to operate and administer all aspects of West Virginia’s Medicaid program, including the I/DD Waiver program. The I/DD Waiver program DHHR in West Virginia is therefore a “program or activity” subject to the requirements and prohibitions of Section 504 of the Rehabilitation Act of 1973. See 29 U.S.C. §794(b).
26. In exchange for that federal funding, DHHR and contracting agencies such as APS must operate all programs in compliance with the statutes and regulations governing the Medicaid program, and with federal laws prohibiting discrimination in the operation of federallyfunded programs.
27. Since DHHR is a governmental department of the state of West Virginia, it is a “public entity” as defined by 42 U.S.C. §12131 (1) of Title II of the ADA. B. Plaintiff Michael T.
28. Plaintiff Michael T. is a 55 year old man living in Poca, Putnam County, West Virginia, in an Intensively Supported Setting (ISS) residential group home. Michael T. shares this group home with another adult who also needs intensive care services.
29. Michael T. has cerebral palsy, a moderate intellectual disability, a seizure disorder, and a vision impairment. In addition, Michael has been diagnosed with a mood disorder and many medical conditions. He is non-ambulatory, incontinent, and requires assistance with virtually all tasks of daily living.
30. Michael’s most recent adaptive behavior assessment places his overall functioning at an age equivalent of one year, two months.
31. That same assessment, dated March 13, 2015, shows that not only has Michael’s functioning not improved, it has somewhat decreased from the prior year, indicating marginally
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greater service needs than in previous years. 32. Michael T. does not have a legal guardian, nor does he have living relatives
involved in his care. 33. DHHR has assigned a Health Care Surrogate solely to make decisions for Michael
T. about his medical care. The Health Care Surrogate is now a representative from the Kanawha County Office of Adult Protective Services. Adult Protective Services is a division of the DHHR, run by waiver program administrator APS. The Health Surrogate is defendant’s employee.
34. Although Michael T.’s waiver benefits have been substantially reduced through application of DHHR’s challenged policy, his Health Surrogate has taken no action to contest that reduction nor sought restoration of the services he needs, even though restoring the benefit level previously received is crucial to protecting and maintaining Michael T.’s ability to avoid institutionalization.
35. No court has yet determined Michael T. to be incompetent. However, counsel advises the Court that Michael T. is of greatly diminished capacity and requires the immediate appointment of a guardian ad litem.
36. Michael has received services through the I/DD waiver program for approximately twenty years.
37. As is typical of many adult I/DD waiver recipients, Michael’s levels of functioning and ability have not improved to any meaningful degree since he was a teenager.
38. The continuing receipt of necessary waiver services throughout the last twenty years has allowed Michael to live in the community at home-like residences like his current ISS residential group home, rather than in an institution.
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39. Continuing to live in the more-integrated setting is medically appropriate for Michael, so long as the DHHR does not reduce or terminate the community-based waiver benefits he needs to reside there in health and safety.
40. Michael T. has no understanding of the waiver program, DHHR’s reduction of his waiver benefits, or the nature of a lawsuit. Michael T. understands that he will have to leave his home, and he wants to stay where he is.
41. Michael T. is a qualified individual with a disability as defined by 42 U.S.C. §12131(2) of Title II of the ADA.
42. Michael T. is entitled to continue to receive waiver benefits at levels previously authorized as necessary to meet his needs unless his circumstances change, as those benefits provide the services needed for him to live in the most integrated setting appropriate to his needs.
43. Beginning at least in 2013, APS’s proprietary computer algorithm generated a yearly waiver budget for Michael allocating approximately $170,000 to $174,000 in waiver benefits, regardless of the amount of waiver benefits authorized and expended to meet Michael’s actual care needs in the previous year.
44. Upon receipt of that computer-allocated budget, Michael’s service coordinator would each year communicate to APS about Michael’s individual needs, including his past history of authorized services and his individual requirements, explaining why the algorithmgenerated budget was not sufficient to provide all the services he needed to maintain his health, his safety, and prevent an increased risk of institutionalization.
45. Prior to 2015, in each year that communication resulted in APS authorizing an additional $39,000 to $70,000 of benefits, so as to provide Michael the services necessary to
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meet his actual needs in the community setting in which he lives. 46. In past years, Michael was authorized to and received waiver benefits totaling in
the range of $209,000 - $243,000. 47. For the 2015 budget year, APS’s algorithm assigned Michael a benefit level of
about $174,000, well below the amount of waiver benefits previously received. 48. Michael’s Health Surrogate was told of that allocation through a standardized
form letter DHHR and APS routinely use to announce the results of the algorithm calculation to every West Virginia waiver recipient. True, redacted exemplars of the letter form customarily employed are compiled in Exhibit 1 to this complaint and incorporated here by reference.
49. When no action was taken, REM stepped in as in years past to help Michael continue to receive the amount of waiver benefits he needed and had previously received.
50. Michael’s service coordinator submitted to APS a request to return benefits to the previous year’s authorized level to maintain the services necessary to meet Michael’s actual needs.
51. As in years past, that request was supported by documentation of Michael’s circumstances, his service needs, and a review of the type, amount, and cost of services APS had authorized previously as necessary to meet Michael’s needs and avoid increasing his risk of institutionalization.
52. However, pursuant to DHHR’s new, unpublished policy, this time APS rejected the submission because paying waiver benefits at the levels previously received would exceed the algorithm-generated budget.
53. Michael’s service coordinator has filed a second level negotiation request, asking
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BMS to review APS’s denial of additional services for Michael. To date, there has been no response to this request.
54. As a result of DHHR’s new policy, Michael T.’s services have been greatly reduced despite the appeal lodged on his behalf.
55. Michael T. is no longer authorized to receive 24 hours of daily care services as provided under his previously-authorized benefit level. The algorithm-assigned budget means his available hours of care are reduced by 25%, to 18 hours each day.
56. Michael T.’s need for 24 hour care has not changed. He cannot care for himself. Without 24 hour care, he cannot remain where he now lives.
57. Consequently, Michael T. is at a serious risk of being institutionalized as a direct result of the Medicaid waiver benefit reduction imposed on him by the challenged policy. C. Plaintiff Eric D.
58. Plaintiff Eric D. is a 28 year old man living in Mason, Mason County, West Virginia, with his parents. Eric D. is represented in this suit by his mother and legal guardian, Connie D.
59. Eric D. has a moderate to severe intellectual disability, a seizure disorder, agenesis of the corpus callosum, Crohn’s disease, and Hirschsprung’s disease. He is non-verbal, incontinent, and requires assistance with all tasks of daily living.
60. Eric’s most recent adaptive behavior assessment places his overall functioning at an age equivalent of one year, four months. This same report, dated January 30, 2015, shows no meaningful change in his care needs from the prior year.
61. Eric’s levels of functioning and ability have not improved to any meaningful
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degree since he was a teenager. 62. Eric has received services through the I/DD waiver program for approximately
twelve years. 63. The continuing receipt of necessary waiver services throughout this period has
allowed Eric D. to live his entire life with his parents, who both work fulltime. 64. Continuing to live in that integrated setting is medically appropriate for Eric, so
long as the DHHR does not reduce or terminate the community-based waiver benefits he needs to reside there in health and safety.
65. Eric wants to remain in his family home, and his parents want him to continue to live there.
66. Eric D. is a qualified individual with a disability as defined by 42 U.S.C. §12131(2) of Title II of the ADA.
67. Eric D. is entitled to continue to receive waiver benefits at levels previously authorized as necessary to meet his needs unless his circumstances change, as those benefits provide the services needed for him to live in the most integrated setting appropriate to his needs.
68. Beginning at least in 2013, APS’s computer algorithm has generated a yearly waiver budget for Eric of approximately $64,000 to $65,500, regardless of the amount of waiver benefits authorized and expended to meet Eric’s actual care needs in the previous year.
69. Upon receipt of that computer-allocated budget, Eric’s service coordinator would each year communicate to APS about Eric’s individual needs, including his past history of authorized benefits and his individual requirements, explaining why the algorithm-generated budget was not sufficient to meet his needs and prevent an increased risk of institutionalization.
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70. Prior to 2015, in each year that communication resulted in APS authorizing an additional $17,000 to $19,000 of benefits each year, so as to provide Eric the waiver benefits necessary to meet his actual needs.
71. In past years, Eric was authorized to and received waiver benefits totaling in the range of $82,000 - $84,000.
72. For the 2015 budget year, APS’s algorithm assigned Eric a benefit level of about $65,900, well below the amount of waiver benefits he previously received. See Eric D. notice in Exhibit 1.
73. As in the past, Eric’s service coordinator provided APS with a request to return benefits to the previous year’s level as necessary to meet Eric’s actual needs. As in years past, that request was supported by documentation of Eric’s circumstances, his service needs, and a review of the type, amount, and cost of services APS had authorized in 2014 as necessary to meet Eric’s needs and avoid increasing his risk of institutionalization.
74. However, pursuant to the challenged policy, APS denied the submission on the basis that Eric could not receive waiver benefits exceeding the amount of his algorithmgenerated budget.
75. In common with other class members seeking relief from benefit reductions or terminations pursuant to the policy at issue, Eric’s legal guardian, Connie D. asked BMS to review APS’s reduction of Eric’s previously received waiver benefits and the resulting termination of needed care services.
76. BMS denied Eric D.’s request to restore his previously authorized benefits, despite Eric’s continued need for those benefits and the absence of any change in Eric’s
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circumstances, because restoring the lost benefits would cause Eric to exceed his algorithmassigned budget. See true, redacted exemplars of BMS second level decisions as to named plaintiffs or absent class members, attached as Exhibit 2 and incorporated here by reference.
77. Eric’s mother further appealed the reduction in previously authorized benefits and termination of needed waiver services on Eric’s behalf, knowing that without the same level of waiver benefits and services Eric had received in previous years, she and her husband would be unable to maintain Eric in the only living situation he has ever known.
78. Eric’s Medicaid fair hearing has not yet been held, but the family has not been allowed to continue to receive waiver benefits at the previously authorized level pending that hearing.
79. As a result, Eric D.’s services have been greatly reduced. Consequently, Eric D. is at a serious risk of being institutionalized.
80. Eric’s negative behaviors, including hitting, pulling hair, and pinching (many of which are directed towards himself), have gotten worse as his services have been cut.
81. The reduction in plaintiff Eric D.’s total waiver benefit level has required a reduction of available personal-care services by approximately ten hours per week.
82. DHHR denied a request even to restore benefits just enough to allow five additional hours of care per week, so a caregiver could remain with Eric until his parents arrived home from work each evening.
83. The reduction in personal care services now threatens his parents’ ability to continue working full-time.
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84. In addition, Eric’s respite care services have been drastically reduced. 85. “Respite” care is “specifically designed to provide temporary substitute care normally provided by a family member” . . . “to be used for relief of the primary care-giver(s) to help prevent the breakdown of the primary care-giver(s) due to the physical burden and emotional stress of providing continuous support and care to the dependent member.” West Virginia Title XIX I/DD Waiver Home and Community-Based Services Program Operations Manual (I/DD Op. Man.) at Chapter 513.9.1.10.1. 86. Loss of respite services means Eric’s parents are the sole source of care for Eric – day in, day out, without weekend, holiday, vacation, or days off - whenever his personal care hours have been exhausted for the day. 87. As a result of these benefit cuts and the strain it is placing on Eric’s parents, Eric risks being moved to an institutional setting. D. Plaintiff Sara F. 88. Plaintiff Sara F. is a 32 year old woman who lives in Lewisburg, Greenbrier County, West Virginia, with her parents. Sara F. is represented in this suit by her parents and legal guardians, Rebecca F. and David F. 89. Sara F. has intellectual and physical disabilities as the result of traumatic brain injury, a moderate intellectual disability, scoliosis, a seizure disorder, partial left-side paralysis, dementia, anxiety, and a severe vision impairment. Sara is non-ambulatory, incontinent, and requires assistance with all tasks of daily living. 90. Sara’s most recent adaptive behavior assessment places her overall functioning at an age equivalent of eleven months. This same report, dated October 14, 2014, shows no
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meaningful change in her overall service needs from the prior year. 91. Sara’s levels of functioning and ability have not improved to any meaningful
degree since she was a teenager. 92. Sara has received services through the I/DD waiver program for approximately 30
years. The continuing receipt of necessary waiver services throughout this period has allowed her to live her entire life with her parents.
93. Continuing to live in that integrated setting is medically appropriate for Sara, so long as the DHHR does not reduce or terminate the community-based waiver benefits she needs to reside there in health and safety.
94. Sara F. wants to remain in her family home, and her parents want her to continue to live there.
95. Sara is a qualified individual with a disability as defined by 42 U.S.C. §12131(2) of Title II of the ADA.
96. Sara F. is entitled to continue to receive waiver benefits at levels previously authorized as necessary to meet her needs unless her circumstances change, as those benefits provide the services needed for her to live in the most integrated setting appropriate to her needs.
97. Beginning at least in 2013, APS’s computer algorithm has generated a yearly waiver budget for Sara of approximately $71,000 to $73,000, regardless of the amount of waiver benefits authorized and expended to meet Sara’s actual care needs in the previous year.
98. Upon receipt of that computer-allocated budget, Sara’s service coordinator would each year communicate to APS about Sara’s individual needs, including her past history of authorized services and her individual requirements, explaining why the algorithm-generated
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budget was not sufficient to meet her needs and prevent an increased risk of institutionalization. 99. Prior to 2015, in each year that communication resulted in APS authorizing an
additional $35,000 or so of benefits, so as to provide Sara a level of waiver benefits actually necessary to meet her needs.
100. In these past years, Sara received authorized waiver benefits in amounts totaling $100,000 - $107,000.
101. For the 2015 budget year, APS’ algorithm assigned Sara a benefit level of $72,000, well below the amount of waiver benefits previously received. See Sara F. notice in Exhibit 1.
102. As in the past, Sara’s service coordinator provided APS with a request to return benefits to the previous year’s level as necessary to meet Sara’s actual needs. As in years past, that request was supported by documentation of Sara’s circumstances, her service needs, and a review of the type, amount, and cost of services APS had authorized in 2014 as necessary to meet Sara’s needs and avoid increasing her risk of institutionalization.
103. However, pursuant to the challenged policy, this time APS denied the submission because Sara could not receive waiver benefits exceeding the amount of the algorithm-generated budget.
104. Sara’s mother and legal guardian, Rebecca F., requested a second level review, asking BMS to restore the previously authorized level of benefits for Sara.
105. BMS refused to do so, despite Sara’s continued need for those benefits and the absence of any change in her circumstances, stating only “[r]equest denied as approval would exceed or has exceeded the member’s Individualized Waiver Budget.” See Sara F. BMS decision
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in Exhibit 2. 106. Sara’s mother then sought on Sara’s behalf a Medicaid fair hearing to contest the
benefit reduction, knowing that without the same level of waiver benefits Sara had received in prior years, she and Sara’s father would be unable to continue to maintain Sara in the only living situation she has ever known.
107. In her request for a hearing, Sara’s mother stated “Sara requires this [previously authorized] level of service need and has so for many years. Precedence was set by the States approval in prior years.”
108. At Sara’s Medicaid fair hearing before a Hearing Officer of the West Virginia State Board of Review, DHHR argued that “due to budgetary restraints, all participants of the I/DD waiver program must stay within their respective budget amounts, unless there was a change in the individual’s assessed needs.”
109. The focus of the case presented by Sara’s parents in the fair hearing was that Sara’s needs were exactly the same as in previous years when APS had authorized waiver benefits up to approximately $107,000.
110. DHHR did not dispute the testimony of Sara’s continuing needs, nor did it present any evidence that Sara’s circumstances had changed to any significant degree since 2014.
111. Nonetheless, the Hearing Officer affirmed DHHR’s refusal to restore Sara’s benefits, finding that because Sara’s needs had not significantly changed, the Hearing Officer could not approve benefits beyond the algorithm-calculated figure. See April 1, 2015 Hearing Decision, Action No. 15-BOR-1114, a true but redacted copy of which is attached as Exhibit 3, incorporated by reference.
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112. Sara F.’s care services have been greatly reduced, placing a significant strain on her aging parents to provide 16 hours of personal care each week day, and 24 hours per day of care on weekends.
113. As a result of the approximately $35,000 reduction in Sara’s waiver benefits, her parents have been able to hire only one assistant to care for Sara. That assistant provides care for eight hours each day, five days each week. Previously, Sara had two to three care staff working various schedules to cover her needs most of her waking day and weekends.
114. Sara’s parents are now the sole source of care to make up the lost benefits for sixteen hours each workday, and every hour of the weekends.
115. But Sara’s parents, who are each in their sixties, lack the physical ability to care for Sara at this level continuously for a long term.
116. For example, Sara’s caregivers must transfer Sara, who weighs approximately 160 pounds, in and out of her bed and wheelchair a minimum of twelve times each day.
117. Manual transfers have taken a physical toll on both of her parents in the past. Sara’s father has required surgery for a hernia and requires regular injections in both knees as a result of strain from transferring Sara.
118. Sara’s mother requires regular chiropractic care to help with back pain. They simply lack the physical ability to transfer and move Sara safely.
119. Because Sara’s aging parents will be physically unable to sustain this intense and demanding care schedule for much longer, Sara is at risk of institutionalization. E. Plaintiff Jeremy C.
120. Plaintiff Jeremy C. is a 32 year-old man who lives in Charleston, Kanawha
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County, West Virginia, with his parents. Jeremy C. is represented in this suit by his mother and legal guardian, Jo C.
121. Jeremy C. has intellectual and physical disabilities since birth. These include severe cerebral palsy, chronic joint arthrosis, chronic muscle spasms in upper and lower extremities, severe muscle spasticity, moderate autism, severe anxiety disorder with cycles of depression, oppositional defiant behavioral disorder, rage reaction seizure disorder, complex partial seizure disorder, ataxia, poor gross motor ability, and non-functional fine motor skills.
122. Jeremy is non-verbal, non-ambulatory, and requires that all daily living tasks be performed for him.
123. Jeremy’s most recent adaptive behavior assessment places his overall functioning at an age equivalent of seven months. This same report, dated January 2, 2015, shows a worsening of his medical condition and an increase in his overall service needs, inasmuch as his ICAP Service Score was determined to be 1 (the lowest possible score), while in 2014 it was 11.
124. Jeremy’s levels of functioning and ability otherwise have not changed to any meaningful degree since he was a teenager.
125. Jeremy has received services through the I/DD waiver program since April 29, 1996.
126. The continuing receipt of necessary waiver services throughout this period has allowed Jeremy to live with his parents, Jo Anne C. and Todd C., despite their increasing age and their own health problems.
127. Continuing to live in that integrated setting is medically appropriate for Jeremy, so long as the DHHR does not reduce or terminate the community-based waiver benefits he
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needs to reside there in health and safety. 128. Jeremy wants to remain in his family home, and his parents want him to continue
to live there with them. 129. Jeremy C. is a qualified individual with a disability as defined by 42 U.S.C.
§12131(2) of Title II of the ADA. 130. Jeremy C. is entitled to continue to receive waiver benefits at levels previously
authorized as necessary to meet his needs unless his circumstances change, as those benefits provide the services needed for him to live in the most integrated setting appropriate to his needs.
131. Beginning at least in 2012, APS’s computer algorithm has generated a yearly waiver budget for Jeremy ranging from approximately $69,000 to $92,000, regardless of the amount of waiver benefits authorized and expended to meet Jeremy’s actual care needs in the previous year.
132. Upon receipt of that computer-allocated benefit allocation, Jeremy’s service coordinator would each year communicate to APS about Jeremy’s individual needs, including his past history of authorized services and his individual requirements, explaining why the algorithm-generated budget was not sufficient to meet his needs and prevent an increased risk of institutionalization.
133. In budget years 2012, 2013 and 2014, that communication resulted in APS authorizing additional benefits of approximately $28,000 each year, so as to provide Jeremy the services necessary actually to meet his needs.
134. In these three years, Jeremy received authorized waiver benefits in amounts totaling $98,000 - $111,000.
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135. DHHR’s Patricia S. Nisbet, one of the main executors of the challenged policy, personally authorized providing waiver benefits to Jeremy at these levels in 2012 and 2013.
136. For the 2015 budget year, the algorithm assigned Jeremy a benefit level well below the amount of waiver benefits previously received, setting his budget at approximately $92,000. See Jeremy C. notice in Exhibit 1.
137. As in the past, Jeremy’s service coordinator requested benefits at the level of prior years, as necessary to meet Jeremy’s actual, on-going, service needs. As in years past, that request was supported by documentation of Jeremy’s circumstances, his service needs, and a review of the type, amount, and cost of services APS had authorized in 2014 as necessary to meet Jeremy’s needs and avoid increasing his risk of institutionalization.
138. However, pursuant to the challenged policy, this time APS denied the submission because Jeremy could not receive waiver benefits exceeding the amount of the algorithmgenerated budget.
139. Jeremy’s mother and legal guardian, Jo C., asked BMS to restore Jeremy’s reduced waiver benefits so as to prevent termination of necessary services.
140. BMS refused to do so, despite Jeremy’s continued need for those benefits and the absence of any improvement in his circumstances, stating that “[y]our assessed annual budget would have been exceeded or has been exceeded and therefore this request is denied.” See Jeremy C. decision in Exhibit 2.
141. Jeremy’s mother then appealed the benefit reduction on Jeremy’s behalf, knowing that without the same level of waiver benefits Jeremy had received previously, she and her husband would eventually be unable to continue to maintain Jeremy in the only living situation
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he has ever known. 142. The family was not allowed to continue to receive waiver benefits at the
previously authorized level pending that hearing 143. On June 17, 2015, before a State Hearing Officer of the West Virginia State
Board of Review, DHHR's lead witness, Patricia S. Nisbet, conceded that the sole reason for reducing Jeremy's waiver benefits below the amount authorized in prior years was DHHR’s budgetary concerns. Ms. Nisbet admitted there had been no substantial improvement in Jeremy's circumstances or reduction in his service needs.
144. Pursuant to the challenged policy, DHHR and Ms. Nisbet maintained during the fair hearing that although Jeremy’s needs had not changed from prior years, due to budget issues DHHR could reduce Jeremy’s waiver benefits from the authorized levels he had received in prior years to the level set by APS’ algorithm-generated budget.
145. As a result, Jeremy C.’s benefits have been greatly reduced, requiring substantial cuts in Personal Care services and the respite care hours necessary to give Jeremy’s parents a break from Jeremy’s 24 hour-per-day needs.
146. His parents, who are aging and have their own serious health issues, lack the longterm physical ability to provide care at the intense level Jeremy needs, in the absence of the care services Jeremy’s waiver benefits have provided him continuously throughout the last few years.
147. For example, Jeremy has a very irregular sleep pattern and is awake often throughout the night. His parents therefore have used generally utilized respite services during the night so that they can get much-needed and necessary sleep to ready themselves for the care and other demands of regular daily life.
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148. DHHR’s wrongful reduction of Jeremy’s waiver benefits means Jeremy’s parents now have to care for him during the nighttime as well, denying them the sleep needed to maintain their own health and energy.
149. Jeremy’s parents simply cannot sustain this type of schedule for much longer, putting Jeremy at an increased risk of institutionalization. F. Plaintiff Tara R.
150. Plaintiff Tara R. is a 27 year old woman living in Parkersburg, Wood County, West Virginia. Tara R. is represented in this suit by her father and legal guardian, Harv Christian R.
151. Tara R. has cerebral palsy, a severe intellectual disability, and limited hand functioning. She is non-verbal, non-ambulatory, and incontinent. Tara R. requires assistance with all tasks of daily living.
152. Tara’s most recent adaptive behavior assessment places her overall functioning at an age equivalent of nine months. This same report, dated September 29, 2014, shows no meaningful change in her overall service needs from prior years.
153. In fact, Tara’s levels of functioning and ability have not changed to any meaningful degree since she reached adulthood.
154. For approximately fifteen years, the I/DD waiver program provided Tara with the waiver benefits she needed to live with her father.
155. Because those benefits were provided at a level that met her actual needs, Tara R. was able throughout this period to live in a family home with her father, who works fulltime, and her step-mother, who has significant physical disabilities.
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156. Continuing to live in that integrated setting is medically appropriate for Tara, so long as the DHHR does not reduce or terminate the community-based waiver benefits she needs to reside there in health and safety.
157. Tara wanted to remain in her family home, and her father wanted her to continue to live there.
158. Tara R. is a qualified individual with a disability as defined by 42 U.S.C. §12131(2) of Title II of the ADA.
159. Tara R. is entitled to continue to receive waiver benefits at levels previously authorized as necessary to meet her needs unless her circumstances change, as those benefits provide the services needed for her to live in the most integrated setting appropriate to her needs.
160. Beginning at least in 2013, APS’s computer algorithm has generated a yearly waiver budget for Tara of approximately $58,000 to $62,000, regardless of the amount of waiver benefits authorized and expended to meet Tara’s actual care needs in the previous year.
161. Upon receipt of that computer-allocated budget, Tara’s service coordinator would each year communicate to APS about Tara’s individual needs, including her past history of authorized services and her individual requirements, explaining why the algorithm-generated budget was not sufficient to meet her needs and prevent an increased risk of institutionalization.
162. Prior to 2015, in each year that communication resulted in APS authorizing $70,000 to $71,000 in additional benefits, so as to provide Tara the waiver services necessary to meet her actual needs.
163. In these past years, Tara received authorized waiver benefits in amounts totaling $130,000 - $133,000.
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164. For the 2015 budget year, APS’s algorithm assigned Tara a benefit amount of about $72,000, well below the benefit levels previously authorized and those necessary to meet her needs.
165. As in the past, Tara’s service coordinator submitted to APS a request to restore benefits to the level of prior years, as necessary to meet Tara’s actual needs.
166. As in years past, that request was supported by documentation of Tara’s circumstances, her service needs, and a review of the type, amount, and cost of services APS had authorized in 2014 as necessary to meet Tara’s needs and avoid increasing her risk of institutionalization.
167. However, pursuant to the challenged policy, this time APS denied that submission because Tara could not be provided benefits above the amount of the algorithm-generated budget.
168. Tara’s legal guardian appealed the benefit reduction on Tara’s behalf, knowing that without the same level of benefits and care services Tara had received in prior years, he would be unable to continue to maintain Tara in the only living situation she had ever known.
169. Tara’s Medicaid fair hearing was conducted on March 4, 2014. At that hearing, Tara’s representative gave evidence that her needs had not changed since the prior year and that she needed the same amount of waiver benefits she had received previously if she was to remain in her home.
170. Nonetheless, the Hearing Officer denied Tara’s appeal for restoration of DHHR’s reduction in her waiver benefits, finding that DHHR
“. . . acknowledged that the Claimant received the requested amount of combined units of PCS-Agency and Respite in the previous year, but noted that the Claimant exceeded
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her individualized budget . . . by $71,430.89. Moreover, the IDD Waiver program as a whole exceeded its budget by more than fifty ($50) million in the previous year, and because Respondent has been directed to operate within budgetary guidelines while providing services to 4,364 recipients, individualized program budgets cannot be exceeded.” See March 9, 2014 Hearing Decision, Action No. 15-BOR-1083, a true but redacted copy of which is attached as Exhibit 4, incorporated here by reference.
171. DHHR’s reduction of Tara’s waiver benefits by approximately $60,000 was upheld although DHHR offered no evidence that Tara’s circumstances had changed such that she no longer needed the same level of waiver benefits she had previously received.
172. DHHR’s wrongful reduction in plaintiff Tara R.’s waiver benefits has caused major disruptions to her life.
173. The reduction of Tara R.’s benefits through application of the challenged policy meant her father no longer had the care services needed to keep her safe, healthy, and cared for in the family home.
174. After the hearing, Tara was moved for approximately one month to an emergency care facility while her service provider searched out a more permanent home.
175. Tara R. now shares an ISS group home with an elderly married couple, both of whom are wheelchair bound and require intensive services. DHHR has currently assigned Tara approximately $126,000 in waiver benefits to provide services in the ISS facility.
176. The that level of benefits is significantly more than the amount of benefits assigned by APS’ secret algorithm in 2015 to meet her needs at her father’s house.
177. Had DHHR not reduced Tara’s benefits below the $126,000 amount now authorized for her group home care, it might have been some time before Tara would have had to
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leave her family home for the less-integrated ISS facility. 178. Tara’s service coordinator reports that the move has had a negative impact on
Tara; where she was previously a very happy individual, she is now lethargic and unwilling to engage with others. He further reports that Tara’s roommates are not quiet during the night, and Tara is not getting enough sleep on a regular basis.
179. Moreover, the amount of one to one direct care services authorized for Tara under the ISS waiver benefit allotment is insufficient to fully meet all Tara’s care needs this year.
180. Tara no longer receives the same level of one to one staff care and support that she previously received in her home. As a result, she spends significantly less time in the community than she did previously.
181. Moreover, the termination of one to one staff service places Tara and her ISS housemates at a heightened risk of danger.
182. The authorized waiver benefit level is sufficient only to provide one staff person in the ISS home to care for two individuals, though the facility actually houses three severely disabled waiver recipients.
183. The available staff is not sufficient to properly care for all three, especially since that staff level could not provide all three the individual assistance they would need to escape in the event of a fire or other emergency.
184. As a result, Tara’s ISS placement does not provide the waiver benefits necessary to meet her needs and she is at risk of institutionalization.
CLASS ALLEGATIONS 185. Plaintiffs bring this action on their own behalf and on behalf of all others similarly
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situated, pursuant to Fed. R. Civ. P. 23(a) and (b)(2). 186. The class includes all persons who are now or will be qualified individuals with
disabilities resident in West Virginia who (a) are eligible recipients of I/DD Home and Community-Based Waiver program services; (b) in risk of institutionalization; (c) due to actual or imminent reduction, termination, or denial of previously authorized waiver benefits; (d) though DHHR has not first proven a significant change in the recipient’s circumstances such that the benefits previously received are no longer needed.
187. The class is so numerous that joinder of all members is impracticable. More than fifty class members have already lost needed services as the result of DHHR’s challenged policy, and hundreds or thousands more face imminent risk of such loss as 2015 budgets are implemented.
188. Moreover, class members are geographically dispersed throughout the length and breadth of the state, and membership is fluid as individual recipients come on to and leave the waiver program.
189. There are questions of law or fact common to the class. 190. Common questions of fact include the precise nature and operation of the challenged policy, and DHHR’s justifications for the manner in which it has been adopted and implemented. 191. Common questions of law include whether DHHR has thereby violated (i) the due process clause of the United States Constitution, (ii) Medicaid fair hearing regulations, (iii) Title II of the Americans with Disabilities Act, (iv) Section 504 of the Rehabilitation Act, and/or (v) otherwise illegally discriminated against plaintiffs and the absent class members under the rules
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upheld in Olmstead v. L.C., 527 U.S. 581 (1999), and subsequent federal cases applying Olmstead.
192. The claims of the named plaintiffs are typical of the claims of the class as a whole. They have been subjected to and suffered injury as the result of the same policy challenged for absent class members.
193. The named plaintiffs will fairly and adequately represent and advance the interests of the class. By filing this action, the named plaintiffs, through their guardians or next friend, displayed a strong interest in vindicating the rights of all who have been similarly harmed by DHHR’s arbitrary and illegal actions. Plaintiffs must prevail if they are to maintain an integrated, community-based quality of life and avoid segregated institutionalization. By doing so, the named plaintiffs will also be advancing and proving the claims and rights of absent class members.
194. There are no antagonistic interests between plaintiffs and the absent members of the class, and the equitable relief sought by the named plaintiffs will benefit the class generally.
195. Furthermore, the named plaintiffs are represented by Mountain State Justice, Inc., a non-profit, public interest legal services firm with long and substantial expertise in class litigation on behalf of low-income West Virginians. Counsel for the putative class are knowledgeable about the Medicaid program, and are skilled in conducting civil rights litigation in the federal courts, including the prosecution and management of class action litigation.
196. DHHR has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final equitable relief with respect to the class as a whole.
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STATEMENT OF FACTS A. General Program Framework
197. The Medicaid program, established by Title XIX of the Social Security Act, 42 U.S.C. §1396 et seq., is a cooperative federal-state program to enable the states to furnish medical assistance to individuals who are unable to meet the cost of necessary medical services. Costs of the program are shared by the federal and state governments, with the federal government contributing approximately 75% of the cost of services in West Virginia.
198. States are not obligated to participate in the Medicaid program. If a state chooses to participate, however, it must operate its program in compliance with federal statutory and regulatory requirements.
199. West Virginia has chosen to participate in the Medicaid Program. 200. Medicaid requires certain core services that are mandatory for any participating state. In addition, states may choose to cover federally recognized/optional services, including intermediate care level services for individuals with intellectual/developmental disabilities (ICF/IID). Once a state chooses to provide an optional Medicaid service, it must comply with all federal requirements for that service. 201. West Virginia has chosen to include ICF/IID services in its Medicaid state plan. B. The ICF/IID Medicaid Option 202. The ICF/IID Program is an optional Medicaid service authorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396d (a)(15). ICF/IID provides residential, health, and rehabilitative services for individuals with intellectual and developmental disabilities. See 42 U.S.C. § 1396d (d).
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203. Since August 1989, there has been a moratorium on the development of any additional ICF/IID institutional beds in West Virginia. See W. Va. Code §16-2D-5(h). There are approximately 509 total ICF/IID beds in West Virginia and no large-scale institutions for those with intellectual disabilities.
204. Under West Virginia’s current Medicaid State Plan, the named plaintiffs and the absent members of the plaintiff class are entitled to services at the same level of care provided at an ICF/IID, but have the right to receive those services in a community-based, integrated setting instead, through West Virginia’s Home and Community-Based Waiver Program.
205. Both the ICF/IID program and the Home and Community-Based Waiver program are “public services” subject to Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12161-12165. C. The Home and Community-Based Waiver Program
206. The Home and Community-Based Waiver program (waiver program) was established by Congress so that individuals who would otherwise require care in the segregated environment of a nursing home or ICF/IID facility could receive needed services in their own homes and/or in home-like settings. 42 U.S.C. § 1396n. See Senate Report No. 97-139 and House Conference Report No. 97-208, 1981 U.S. Code Cong. & Admin. News 396.
207. Waiver program regulations provide that “the Act permits states to offer, under a waiver of statutory requirements, an array of home and community based services that an individual needs to avoid institutionalization.” 42 C.F.R. § 441.300.
208. West Virginia’s waiver program is now known as the Intellectual Disabilities and Developmental Disabilities Waiver Program (I/DD Waiver Program).
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209. The I/DD Waiver Program “reimburses for services to instruct, train, support, supervise, and assist individuals who have intellectual and/or developmental disabilities in achieving the highest level of independence and self-sufficiency possible. . .The I/DD Waiver Program provides services in natural settings, homes and communities where the member resides, works and shops.” West Virginia Title XIX I/DD Waiver Home and Community-Based Services Program Operations Manual (I/DD Op. Man.) at Chapter 513.2 (Jan. 1, 2013).
210. I/DD Waiver Program funds may not be used for services to individuals who reside in hospitals, nursing homes, or ICF/IIDs. See 42 C.F.R. § 441.301(b)(1)(ii), 42 U.S.C. §1396n. These are all considered to be institutional settings.
211. Federal law caps the state-wide average per person cost for community-based waiver services at the average per person cost for the same level of services provided in facilities or institutions. 42 U.S.C. § 1396n (c)(2)(D).
212. According to DHHR, the 2014 state-wide average cost of providing needed health and care services to an individual in a segregated ICF/IID institution in West Virginia was $173,000 per year. The 2014 average state-wide cost of providing all needed health and care services to a waiver recipient in an integrated community-setting was no more than $85,000 per year.
213. More than 4,400 West Virginians are currently eligible for and receiving community-based services through West Virginia’s I/DD Waiver Program. D. Waiver Program Renewal Process
214. West Virginia must submit an I/DD Waiver Program renewal proposal for federal approval every five years.
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215. The most recent waiver renewal application was submitted to the federal Center for Medicare and Medicaid Services (CMS) for approval in or about May 2015. It has not been approved at the time of this filing.
216. Publically, DHHR has sought to justify proposed waiver benefit cuts on the basis that current levels of waiver program services exceed DHHR’s budget for those services.
217. A May 5, 2015 DHHR press release on this subject stated: “modifications were made to the Waiver with the main objectives to help the program operate within its budget and offer services to some of the more than 1,000 West Virginians on the waiting list, many of whom have been waiting for three years.”
218. For political reasons, DHHR has chosen not to request the West Virginia Legislature to appropriate additional funds for the I/DD Waiver Program over many state budget cycles, even though each extra dollar appropriated would bring in about $3.00 of federal matching funds to boost West Virginia’s economy.
219. The political decision to cut needed services to the most vulnerable West Virginians rather than ask the Legislature for increased funding has prompted a backlash, including a letter from members of the West Virginia Legislature outraged at DHHR’s failure to request the funding necessary to sustain the program in its current form. See Exhibit 5, attached and incorporated here by reference. E. Administration of the I/DD Waiver Program in West Virginia
220. DHHR, through its Bureau for Medical Services (BMS), is responsible for the administration of the I/DD Waiver program in West Virginia. I/DD Op. Man. at Chapter 513.2.
221. However, for several years DHHR has contracted with Innovative Resources
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Group LLC, d/b/a APS Healthcare, Inc. (APS), a New York-based company, for the day-to-day operation of the I/DD Waiver Program under DHHR supervision and responsibility. Id. at 513.14.
222. Matters delegated to and performed for DHHR by APS include “processing initial applications, investigating complaints, assessing waiver members’ needs, functionality and supports and determining an individualized budget.” Id. at 513.1.
223. APS is also responsible for providing “authorization for services that are based on the member’s assessed needs.” Id. at 513.2.1 & 513.4.1.
224. Waiver services are actually provided to individual recipients through contracts with local service provider agencies. I/DD Op. Man. at 513.2.1.
225. Each year, I/DD Waiver program recipients undergo a functional assessment by APS. That assessment supposedly reviews standardized measures of adaptive behavior in six major life areas to ensure continued medical eligibility for the I/DD Waiver Program. I/DD Op. Man. at Chapter 513.4.1.
226. If the recipient has continued medical and financial eligibility for Medicaid Waiver services, an interdisciplinary team put together by the local service provider agency develops an Individualized Program Plan (IPP) for that recipient. Id. at 513.8.
227. The IPP sets forth specific details of the individual member’s actual care needs and proposed care plan for the upcoming year; in other words “what needs to be done, by whom, when and how.” Id.
228. “The content of the IPP must be guided by the member’s needs, wishes, desires and goals but based on the member’s assessed needs.” I/DD Op. Man. at 513.1 (emphasis
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added). 229. In creating an IPP, the interdisciplinary team considers the array of services
available through the I/DD Waiver Program, and creates a plan detailing the amount of each type of service needed to meet that recipient’s individually-assessed safety, health, and care needs. I/DD Op. Man. at 513.8. F. Determination of Individual Annual Budgets
230. The amount of waiver benefits received by an individual recipient is equal to the recipient’s total authorized budget in a budget year.
231. The I/DD Waiver Operations Manual does not explain how APS assigns an initial amount of waiver benefits for each recipient. C.f., I/DD Op. Man. Chapter 513.1 through 513.14.
232. Upon information and belief, APS uses a proprietary computer algorithm to set waiver benefit levels for West Virginia waiver program recipients.
233. APS keeps that algorithm secret. It is not known what facts or legal elements the algorithm factors; the comparative weights given any element; the manner in which the algorithm determines need; how or whether the algorithm takes into account the level of benefits authorized in previous years, changes or the absence of changes in recipient circumstances, or an increased risk of recipient institutionalization.
234. After APS began using this secret algorithm to set waiver benefit levels in or around the fall of 2011, service providers working with I/DD waiver program recipients began to notice changes in the benefit amounts as previously set by DHHR.
235. For example, on information and belief, providers began seeing a substantial number of recipients assigned annual budgets far in excess of amounts needed or historically
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expended to meet their care needs. 236. Many were under eighteen years, so that their care needs were met or subsidized
through separate educational programs not funded through Medicaid. 237. But others were adults living at home, suddenly assigned annual budgets in
amounts never previously expended or required to fully meet actual needs. 238. Arbitrary benefit levels established without meaningful reference to or
reconciliation with the actual benefit amounts previously spent to meet a recipient’s unchanged needs obscure the determination of actual program costs, and result in longer waiting list delays for those seeking waiver benefits.
239. Arbitrariness also effected many adult recipients to whom the algorithm assigned budgets substantially smaller than the total benefits received and authorized in prior years as needed to meet the recipient’s care needs, in the absence of any DHHR showing that those needs had significantly decreased.
240. However, upon information and belief, between 2011 and late 2014, when the APS algorithm assigned an initial waiver benefit allotment insufficient to meet individualized needs, that recipient’s service coordinator could routinely contact APS, submit documentation of unmet need and the total of expenditures authorized to meet those needs in the immediately prior year, and request authorization of additional waiver benefits, over and above the algorithmassigned budget, so as to meet the recipient’s actual needs.
241. Prior to the fall of 2014, APS would routinely authorize benefits at the approximate level of the prior year’s benefit level when these submissions showed unchanged circumstances and a continuing need for the same level of services.
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242. At one time or another, all the named plaintiffs received authorization for and waiver benefits in amounts significantly in excess of their algorithm-calculated initial waiver benefit allotment through this process.
243. In each case, this happened because APS agreed the algorithm-assigned benefit level did not adequately cover the plaintiffs’ actual need for services.
244. However, APS’s explicit authorization of continued benefits at levels of prior years, as required to serve that individual’s actual needs, had no discernible impact on the initial benefit amount its algorithm spit out for that recipient the following year.
245. For some plaintiffs therefore, this “authorization” process was a yearly event. G. DHHR’s New Policy
246. Upon information and belief, in or about the fall of 2014, DHHR officials instructed APS not to authorize any waiver benefits over and above the algorithm-set benefit level, regardless of need, amount of waiver benefits previously authorized, or the absence of proof of any meaningful change in that recipient’s circumstances.
247. As a result, the named plaintiffs and the members of the plaintiff class have unjustifiably and wrongly suffered, or are in imminent threat of unjustifiably and wrongly suffering, substantial reductions in previously-authorized waiver benefits and termination of needed services (i) without an individualized determination of need or proof of a change in circumstances as required by under the laws and rules actually governing benefit eligibility; (ii) without first being afforded the rights guaranteed them by due process and regulations governing notice and hearing rights in Medicaid programs; and (iii) in violation of their rights under the ADA and Section 504 of the Rehabilitation Act.
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248. Since then, at DHHR’s direction, APS has rejected all requests to increase the algorithm-assigned benefit level, for the stated reason that “individual program budgets cannot be exceeded.”
249. Upon information and belief, pursuant to DHHR’s challenged policy, on or about June 10, 2015, BMS issued a memorandum to I/DD waiver service providers who manage individual recipient IPPs and provide care to meet that individual’s actual needs. The memorandum stated that DHHR would not approve any requests for new or additional services needed by I/DD waiver program recipients “UNTIL the cost of all services requested are at or below the individualized Waiver budget.” See June 10, 2015 Memo from DHHR’s Tanuia Hardy, attached as Exhibit 6, incorporated here by reference. H. The Effect of DHHR’s New Policy - The Plaintiffs
250. Each of the named plaintiffs began their 2015 waiver budget year around or shortly after the beginning of calendar year 2015.
251. In budget year 2014, each of the named plaintiffs were authorized by APS to receive waiver benefits in amounts substantially in excess of the 2014 algorithm-assigned benefit level, after APS agreed that level was not sufficient to meet their individual needs.
252. APS’s 2015 determinations of the amount of waiver benefits to be provided the named plaintiffs documented no significant change in the named plaintiffs’ abilities, functioning level, or health or care service needs since the 2014 budget year.
253. In truth, no meaningful improvement occurred in any of the circumstances of the named plaintiffs relevant to their physical or medical needs or the type and amount of services needed to meet those needs in the period between APS’s authorization of a total benefit level for
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2014 and the beginning of the 2015 budget period. 254. Nonetheless, each of the named plaintiffs received an algorithm-assigned benefit
level substantially less than the benefit level authorized by APS and received in 2014 and prior years.
255. No explanation was provided as to how that budget was calculated or why APS reduced the amount of waiver benefits the named plaintiffs had been previously receiving. See notices attached as Exhibit 1.
256. As in years past, the named plaintiffs’ service coordinators independently submitted requests to restore waiver benefits in line with the benefit amounts authorized in prior years, providing documentation showing why that continuing level of benefits was necessary to meet the individual needs of the named plaintiffs.
257. This year, APS (pursuant to DHHR’s new policy) wrongly refused to restore the same level of waiver benefits previously received by the named plaintiffs, though DHHR had no proof that the named plaintiffs’ actual needs or overall circumstances had changed in any significant way such that the same level of benefits were no longer needed.
258. In fact, APS’ assessment of Jeremy C. established his circumstances had significantly worsened, mitigating toward a need for additional benefits, not reduced benefits.
259. Moreover, in implementing the new policy, DHHR and APS have failed to provide adequate prior notice and meaningful opportunity for a timely due process hearing and a decision based on the controlling law, as required by the Constitution and the fair hearing regulations of the Medicaid Act.
260. For instance, DHHR’s standard form notices to plaintiffs and the members of the
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plaintiff class, exemplars of which attached here as Exhibit 1, constitute the written notice class members received that DHHR was reducing their waiver benefits below those previously authorized for and received by that person.
261. These form notices do not explain that DHHR is actually proposing to cut the recipient’s benefits; do not specify the amount of the proposed cut; do not explain the reasons for the reduction of waiver benefits or the specific laws justifying the reduction; do not explain how a person might object to the proposed reduction, or why objection might be necessary to protect the recipient’s right to continue to receive needed services; do not explain the recipient’s right to have benefits continue at the previously-authorized level pending any appeal, etc. Cf, e.g., 42 C.F.R. §431.210; §438.404.
262. Additionally, anecdotal reports are consistent that many family members representing waiver recipients have been dissuaded to appeal, or persuaded to drop appeals previously filed, by DHHR and/or APS representations that an unsuccessful appeal will result in loss even of the recipient’s approved level of benefits.
263. Many adult waiver recipients – especially older persons without family support – have legal guardians or Health Surrogates employed in DHHR’s Office of Adult Protective Services, as overseen by APS.
264. These appointees owe fiduciary responsibilities to the waiver recipients they represent, and are required to act and make decisions to assert and protect the best interests of their wards.
265. However, on information and belief, the employees of DHHR’s Office of Adult Protective Services acting as legal guardian or Health Surrogates for waiver recipients have been
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instructed by DHHR not to object to the benefit reductions suffered by those to whom they owe fiduciary duties because of the challenged policy.
266. Consequently, DHHR has guaranteed that waiver recipients similarly situated to plaintiff Michael T. have no meaningful ability to contest these benefit reductions.
267. Moreover, even for those who seek administrative review, the DHHR fair hearing process for contesting these reductions is an illegal, arbitrary, and unconstitutional sham.
268. APS, BMS, and every state actor in the appeal process, including the Board of Review, has undertaken to work in concert with DHHR to support and implement this new policy by rejecting arbitrarily any challenge to benefit reductions or terminations, based on application of the very policy being challenged, and not the laws and rules that actually govern eligibility.
269. For instance, APS for months has been rejecting service coordinator requests to restore waiver benefits to previously received levels as required for needed services not because of a change in the recipient’s circumstances or evidence of reduced need, but simply because “assigned budgets cannot be exceeded.”
270. Second level appeals to BMS disputing the benefit reductions and terminations in individually-needed services imposed by the challenged policy are likewise summarily rejected not because of a change in the recipient’s circumstances or evidence of reduced need. The sole announced justification is that DHHR’s policy does not allow assigned budgets to be exceeded. See exemplars of BMS second level decisions gathered in Exhibit 2.
271. Waiver recipients who seek a Medicaid fair hearing within 13 days are entitled to continue to receive benefits at the previous year’s level until the appeal is finished.
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272. Waiver recipients timely requesting Medicaid fair hearing on waiver benefit reduction appeals are commonly being denied those continuing benefits, so that the contested benefit cuts are imposed even when timely appeals have been filed.
273. The West Virginia Board of Review has denied opportunity for any fair hearing at all to at least one waiver recipient contesting his benefit reduction. That recipient’s appeal was summarily dismissed, the Board of Review stating it lacked power to hear it because restoring benefits would exceed the algorithm-assigned budget, and state policy was that the budget could not be exceeded. See April 21, 2015 Order of Dismissal, Action No. 15-BOR-1518, a true but redacted copy of which is attached as Exhibit 7, incorporated by reference.
274. Other recipients have been granted fair hearings, and given opportunity to present evidence showing receipt of authorized waiver benefits in greater amounts in prior years, and a continuing need for that level of waiver benefits.
275. Even though DHHR presented no proof of any meaningful change in these recipients’ circumstances, or any reduction in the need for benefits at the level previously received, the Board of Review nonetheless routinely and arbitrarily rejects these appeals, without consideration of governing rules, regulations and laws, because DHHR has instructed it that “individual budgets cannot be exceeded.” See Exhibits 3 and 4, incorporated here by reference.
276. Each of the named plaintiffs is suffering irreparable harm and now faces a heightened risk of institutionalization as the result of DHHR’s illegal, discriminatory, and unconstitutional policy that has reduced their waiver benefit levels below the amounts for which they are lawfully eligible.
277. As a result, DHHR has failed and refused, without justification, to operate and
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administer the I/DD waiver program so as to allow “the most integrated setting appropriate” to the needs of qualified individuals with disabilities.
CLAIMS FOR RELIEF COUNT I
(42 U.S.C. §1983 and Due Process) 278. DHHR may not reduce or terminate the amount of waiver benefits provided plaintiffs and the absent members of the plaintiff without first providing adequate prior notice and opportunity for a meaningful hearing at which a decision will be rendered in conformity with the laws and regulations actually governing eligibility. 279. DHHR may not reduce or terminate the amount of waiver benefits provided plaintiffs and the absent members of the plaintiff class unless and until DHHR first establishes that a change has occurred in the recipient’s medical or financial circumstances which justifies the reduction or termination. See, e.g., Hardy v. B.H., 228 W. Va. 334, 719 S.E.2d 804 (2011). 280. DHHR must use reasonable, ascertainable, non-arbitrary standards and procedures
for determining the amount of waiver benefits provided to plaintiffs and the absent members of the class, and must do so in accordance with the laws and regulations governing the waiver program. 281. The APS benefit calculation algorithm utilizes secret, unpublished, nonlegislatively adopted, arbitrary standards, factors, or other bases that fail to give required weight to an individual’s actual need for waiver services, the level of benefits previously approved, the lack of any change in the recipient’s circumstances, or the laws and regulations governing eligibility. 282. Consistent with due process, DHHR may not establish, reduce or terminate the
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amount of waiver benefits provided plaintiffs and the absent members of the plaintiff class based on secret, non-legislatively enacted, or arbitrary criteria. 283. Through the actions complained of above, and by official custom and policy, DHHR has employed a secret algorithm and unpublished policy to arbitrarily, unreasonably, and unfairly deprive plaintiffs and the members of the plaintiff class of the Medicaid waiver services they need, and which they have been receiving, in the absence of proof of any relevant change in the recipient’s circumstances, and without adequate prior notice or timely, meaningful hearing and a reasoned decision based on the governing law. 284. As a result, defendant Secretary Bowling, under color of state law, custom, or usage, has subjected or caused plaintiffs and the absent members of the plaintiff class to be subjected to deprivation of rights, privileges, or immunities secured to them by the due process clause of the United States Constitution, to their continuing and irreparable injury without adequate remedy at law.
COUNT II (42 U.S.C. § 1983 and Medicaid Act Notice and Fair Hearing Requirements) 285. Under the federal Medicaid Act, West Virginia must afford proper, prior notice and opportunity for hearing to individuals whose claim for medical assistance is denied, reduced, terminated, or not acted upon with reasonable promptness. 42 U.S.C. § 1396a(a)(3). 286. As set forth above, as a matter of policy and custom, DHHR has implemented and enforced the challenged policy in violation of the Medicaid Act by failing to provide proper notice, or to grant the opportunity for fair hearing as required by law, to
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plaintiffs and the members of the plaintiff class whose claims for medical assistance have been denied, reduced, terminated, or not acted upon with reasonable promptness. 287. As a result, defendant Secretary Bowling, under color of state law, custom, or usage, has subjected, or caused plaintiffs and the absent members of the plaintiff class to be subjected, to deprivation of rights, privileges, or immunities secured to them by law, to their continuing and irreparable injury without adequate remedy at law.
COUNT III (Americans with Disabilities Act) 288. Title II of the ADA, 42 U.S.C. §12132, provides: “no qualified individual with a disability shall, by reason of disability, be excluded from any participation in or be denied the benefits of the servicers, programs, or activities of a public entity, or be subject to discrimination by such entity.” 289. Regulations implementing the ADA, including 28 C.F.R. §35.130(d), require that public entities like DHHR administer services, programs, and activities to allow “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 290. Under §35.130(b), the following constitute unlawful acts of discrimination: (b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability— (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided
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to others; . . . .
(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:
(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities. . . . (5) A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability. . . . . (7) 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. (8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.
291. In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the United States Supreme Court held that a public entity violates the “integrated setting” mandate of Title II when it administers programs in a way that unjustifiably results in a heightened risk that individuals with disabilities will be forced into segregated institutionalization.
292. The named plaintiffs and the absent members of the plaintiff class are qualified
persons with disabilities protected against discrimination because of their disabilities by the Americans with Disability Act. 293. DHHR is a public entity whose operation and administration of West Virginia’s
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I/DD Waiver program is subject to and governed by the “integration mandate” and other requirements and prohibitions of Title II of the ADA. 294. Through the policy and actions complained of above, DHHR has discriminated and continues to discriminate against plaintiffs and the absent members of the plaintiff class in violation of 42 U.S.C. §12132, the “most integrated setting appropriate” mandate, and other substantive requirements and prohibitions of the ADA and its implementing regulations at 28 C.F.R. §35.10, so as to unjustifiably heighten their risk of institutionalization, to their continuing and irreparable injury.
COUNT IV (Section 504 of the Rehabilitation Act of 1973) 295. The I/DD Waiver program DHHR operated in West Virginia is a “program or activity” subject to the requirements and prohibitions of Section 504 of the Rehabilitation Act of 1973. See 29 U.S.C. §794(b). 296.29 U.S.C. §794(a) provides in pertinent part: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, 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 . . . 297. Plaintiffs and the members of the plaintiff class are qualified individuals with disabilities entitled to the protections of Section 504, including but not limited to its similar “most integrated setting appropriate” requirement. 298. Through the policy and actions complained of above, DHHR has discriminated and continues to discriminate against plaintiffs and the absent members of the plaintiff class in violation of 29 U.S.C. §794, the “most integrated setting appropriate” mandate, and other substantive requirements and prohibitions of Section 504 and its
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implementing regulations, so as to unjustifiably heighten their risk of institutionalization, to their continuing and irreparable injury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: (a) Appoint a guardian ad litem to represent and protect the interest of plaintiff Michael T. during the pendency of this action; (b) Certify the class pursuant to Federal Rule of Civil Procedure 23(b)(2); (c) Declare Defendant in violation of the Constitution and federal laws as explained above; (d) Issue without bond a preliminary and permanent injunction enjoining Defendant:
(i) to restore lost benefits and to enjoin Defendant from continuing the policy of reducing I/DD waiver program benefits to any recipient from previously authorized amounts without due process or without DDHR’s proof of a change in the individual recipient’s circumstances reducing her or his actual needs;
(ii) from failing or refusing to provide waiver benefits at a level consistent with the recipient’s needs, as computed by a fair, public, legislatively-established, and nonarbitrary formula complying with the law which gives appropriate weight to the recipient’s actual circumstances, needs, and previous benefit levels;
(iii) to end and prevent current and future discrimination in the administration of DHHR’s waiver program by enjoining DHHR from implementing any future reductions, terminations, or other adverse changes in waiver program benefit levels save in conformity with a comprehensive, publicly developed, properly implemented, and effective Olmstead plan
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approved by this Court; (e) Award plaintiffs their costs and reasonable attorney’s fees in accordance with 42
U.S.C. §1988; and (f) Grant such other and further relief to which plaintiffs or the class members may
be entitled in law or equity. MICHAEL T., by his next friend, CHERYL HERDMAN, ERIC D., by his guardian, CONNIE D., SARA F., by her guardians REBECCA F. and DAVID F., JEREMY C., by his guardian, JO C., and TARA R., by her guardian HARV CHRISTIAN R., on their own behalf and on behalf of and all other similarly situated, By Counsel.
/s/ Gary M. Smith Gary M. Smith (WV Bar # 12602)
gary@msjlaw.org Lydia C. Milnes (WV Bar # 10598)
lydia@msjlaw.org Bren J. Pomponio (WV Bar ID # 7774)
bren@msjlaw.org MOUNTAIN STATE JUSTICE, INC. 1031 Quarrier St, Suite 200 Charleston, WV 25301 T: (304) 344-3144 F: (304) 344-3145 Counsel for Plaintiffs
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 Case 2:15-cv-09655 Document 11 Filed 09/14/15 Page 1 of 26 PageID #: 120

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

MICHAEL T., a person with diminished ca- )

pacity, et al.,

)

)

Plaintiffs, )

)

)

)

)

KAREN BOWLING, in her official capacity as )

Secretary of the WEST VIRGINIA DE-

)

PARTMENT OF HEALTH AND HUMAN )

RESOURCES,

)

)

Defendant. )

CASE NO. 2:15-cv-09655

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

Kimberly Stitzinger Jones Office of the West Virginia Attorney General Room 250 350 Capitol Street Charleston, WV 25301

Caroline M. Brown Philip J. Peisch Shruti C. Barker Covington & Burling LLP One City Center 850 Tenth Street NW Washington, DC 20001

September 14, 2015

Case 2:15-cv-09655 Document 11 Filed 09/14/15 Page 2 of 26 PageID #: 121
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 1
A. West Virginia’s Medicaid Program and Services to Individuals with Intellectual Disabilities ........................................................................................... 1
B. The Service Authorization Process for the I/DD Waiver ....................................... 6 ARGUMENT .................................................................................................................................. 8 I. The Claims of Michael T., Eric. D, and Jeremy C. Should Be Dismissed As Not
Ripe for Judicial Review..................................................................................................... 9 II. Counts I and II Should Be Dismissed Because Plaintiffs Received Notice and
Appeal Rights.................................................................................................................... 11 A. West Virginia Complies with the Medicaid Act................................................... 11 B. West Virginia Complies with the Due Process Clause. ........................................ 12 III. Counts III and IV Should be Dismissed Because Plaintiffs’ Allegations Do Not Constitute Discrimination in Violation of the ADA or the Rehabilitation Act. ............... 13 A. Olmstead Does Not Establish A Minimum Level of Home- and
Community-Based Services.................................................................................. 14 B. Plaintiffs Do Not Allege Facts Sufficient to Show that I/DD Waiver
Policies Create a Serious Risk of Institutionalization........................................... 17 C. Plaintiffs Do Not Allege They Can be Reasonably Accommodated. ................... 18 CONCLUSION............................................................................................................................. 20 CERTIFICATE OF SERVICE ..................................................................................................... 21
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TABLE OF AUTHORITIES
Page(s)
Cases
Abbott Labs v. Gardner, 387 U.S. 136 (1967)...................................................................................................................9
Alexander v. Choate, 469 U.S. 287 (1985).................................................................................................................14
Atkins v. Parker, 472 U.S. 115 (1985).................................................................................................................12
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...........................................................................................................17, 18
Benjamin H. v. Walker, No. 99-cv-0338 (S.D. W. Va. April 8, 2009).............................................................................3
Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006) ....................................................................................................14
Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of Penn., 364 F.3d 487 (3d Cir. 2004).....................................................................................................18
G. v. Hawaii, 676 F. Supp. 2d 1046 (D. Haw. 2009) .....................................................................................17
Goldberg v. Kelly, 397 U.S. 254 (1970).................................................................................................................12
Hardy v. B.H., 719 S.E.2d 804 (W. Va. 2011).................................................................................................12
M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2011) .......................................................................................14, 15, 19
McCartney v. Cansler, 608 F. Supp. 2d 694 (E.D.N.C. 2009)......................................................................................11
Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) .....................................................................................................9
Olmstead v. L.C, 527 U.S. 581 (1999)......................................................................................................... passim ii

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Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) ........................................................................................... passim
Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999).....................................................................................................15
Tammy W. v. Hardy, 681 F. Supp. 2d 732 (S.D. W. Va. 2010) .......................................................................9, 10, 12
V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009) ...................................................................................17
Statutes
42 U.S.C. § 12132..........................................................................................................................13
Rehabilitation Act § 504 ................................................................................................................13
Social Security Act (SSA) § 1901, 42 U.S.C. § 1396 et seq. ..........................................................1
SSA § 1915(c), 42 U.S.C. § 1396n ..............................................................................................2, 3
Regulations
28 C.F.R. § 35.130 ...................................................................................................................13, 18
42 C.F.R Part 431, Subpart E.........................................................................................................11
42 C.F.R. § 431.220 .......................................................................................................................11
Other Authorities
Bureau for Medical Services (“BMS”), HCBS Information About New Rule, http://www.dhhr.wv.gov/bms3/hcbs/HCBSSTP/Pages/default.aspx (last visited Sept. 6, 2015) .................................................................................................................3
Bureau for Behavioral Health and Health Facilities (“BHHF”), Specialized Funds Policy, I/DD Wait List Support Grant (eff. July 1, 2013), http://www.dhhr.wv.gov/bhhf/Sections/programs/ProgramsPartnerships/IDD/ Documents/Wait%20list%20support%20grant%20policy%20FY%202014.pdf ......................5
BHHF, Specialized Funds Policy, Unmet Needs Fund (eff. July 1, 2013), http://www.dhhr.wv.gov/bhhf/Sections/programs/ProgramsPartnerships/IDD/ Documents/Unmet%20Needs%20Policy%20FY%202015.pdf ................................................5
DHHR, Changes Made to the I/DD Waiver Application (May 5, 2015), http://www.dhhr.wv.gov/News/2015/Pages/Changes-Made-to-the-IntellectualDevelopmental-Disabilities-Waiver-Application.aspx ..............................................................4
iii

Case 2:15-cv-09655 Document 11 Filed 09/14/15 Page 5 of 26 PageID #: 124 Kaiser Family Foundation (“KFF”), Medicaid Spending, http://kff.org/state-
category/medicaid-chip/medicaid-spending/ (last visited Sept. 8, 2015) ..................................1 Mental Retardation/Developmental Disability Waiver, Application for a 1915(c)
HCBS Waiver (eff. July 1, 2011) (available at http://www.medicaid.gov/medicaid-chip-program-information/bytopics/waivers/waivers_faceted.html).............................................................................. passim DOJ, Statement of the DOJ on the Integration Mandate of Title II of the ADA and Olmstead v. L.C. (June 22, 2011).............................................................................................17 W. Va. Medicaid Provider Manual § 513.2.2 ................................................................................12 W. Va. Medicaid Provider Manual § 513.4 ...............................................................................6, 10 W. Va. Medicaid Provider Manual § 513.5.3 ..............................................................................6, 7 W. Va. Medicaid Provider Manual § 513.8.2.4 ...............................................................................8 W. Va. Medicaid Provider Manual § 513.9.1.1 .............................................................................12
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INTRODUCTION The State of West Virginia is committed to providing individuals with intellectual disabilities a broad array of services to avoid unnecessary institutionalization. The State’s Medicaid program spends hundreds of millions of dollars annually to accomplish this goal and, as a result, individuals with intellectual disabilities in West Virginia overwhelmingly receive services in their homes and communities and not in institutions. Indeed, none of the Plaintiffs in this case are institutionalized, and all are receiving extensive services so that they can safely remain in their homes and communities. The West Virginia Department of Health and Human Resources (“DHHR”) allocates funding for services for individuals with intellectual and/or developmental disabilities living in the community through a system that considers each member’s unique functionality, circumstances, and needs. This system fairly and objectively allocates funds to support services to thousands of individuals, and it is fully consistent with federal Medicaid law, the Due Process Clause, the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Supreme Court’s Olmstead decision. The Complaint should therefore be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
BACKGROUND A. West Virginia’s Medicaid Program and Services to Individuals with Intellec-
tual Disabilities Medicaid is a cooperative federal-state program that provides health care to low-income families and individuals. The program is administered by the States and overseen by the federal Centers for Medicare & Medicaid Services (CMS). Social Security Act (“SSA”) § 1901, 42 U.S.C. § 1396 et seq. DHHR’s Bureau for Medical Services’ (“BMS”) is the state agency responsible for administering the Medicaid program in West Virginia. West Virginia’s Medicaid program is approximately $3.35 billion in size, with the federal government contributing around

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73% of the funding and the remaining 27% coming from the State. This represents one of the single largest items in the state budget. Most of West Virginia’s Medicaid spending is directed to services to the aged and individuals with disabilities. See Kaiser Family Foundation (“KFF”), Medicaid Spending, http://kff.org/state-category/medicaid-chip/medicaid-spending/ (last visited Sept. 8, 2015). With respect to individuals with intellectual and developmental disabilities, West Virginia provides the following array of services:
1. ICF/IID Services. Institutions for individuals with intellectual disabilities are known as intermediate care facility services for individuals with intellectual disabilities, or ICFs/IID. West Virginia, like all other States, has chosen to cover ICF/IID services in its Medicaid state plan; unlike most other States, however, West Virginia has capped the number of individuals who can receive services in an ICF/IID. The cap has been set at 509 for a number of years. See Compl. ¶ 203. There have been no large state-run developmental centers in West Virginia for almost twenty years. Today, the ICF/IIDs in the State are all small (eight or fewer residents) and privately-run. While necessary for some individuals who cannot be safely cared for at home, an ICF/IID is the least common service setting. Approximately 5.5% of the State’s long-term care expenditures go to ICF/IIDs, below the national average (9.9%). See KFF, Medicaid Spending.
2. Section 1915(c) Services. Section 1915(c) of the Social Security Act permits the Secretary of HHS to waive certain Medicaid rules to permit States to provide “home- and community-based services” (“HCBS”) to individuals who, but for the provision of HCBS, would require the level of care provided in a hospital, a nursing facility, or an ICF/IID. SSA § 1915(c), 42 U.S.C. § 1396n(c). Under a 1915(c) waiver, the State must specify the number of individuals it serves, the characteristics of the population it is serving, and the specific services it will provide. To secure approval for a waiver from CMS, a State must establish that the program will be “cost
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effective,” i.e., on average, it will be no more expensive to serve an individual in the waiver than it would be to provide care in an institution. § 1915(c)(2)(D). In order to ensure compliance with this and other requirements, a Section 1915(c) waiver must be renewed every five years.
West Virginia has three Section 1915(c) waiver programs: the Traumatic Brain Injury Waiver; the Aged & Disabled Waiver; and the Intellectual/Developmental Disabilities (“I/DD”) Waiver. These waivers are developed, implemented, and managed through BMS’s Office of Home and Community-Based Services (“OHCBS”). BMS, HCBS Information About New Rule, http://www.dhhr.wv.gov/bms3/hcbs/HCBSSTP/Pages/default.aspx (last visited Sept. 6, 2015).
The I/DD Waiver provides HCBS for individuals with intellectual and developmental disabilities who would be eligible to receive care in an ICF/IID. Waiver services include: day habilitation, participant-centered support, respite, service coordination, supported employment, crisis services, dietary therapy, electronic monitoring, environmental accessibility adaptations, occupational therapy, physical therapy, positive behavioral support, skilled nursing services, speech therapy, therapeutic consultant, and transportation. See Mental Retardation/Developmental Disability Waiver, Application for a 1915(c) HCBS Waiver (eff. July 1, 2011) (“I/DD Waiver Application”).1 BMS contracts with an administrative services organization, APS Healthcare Inc. (APS), to help administer the I/DD Waiver, and the waiver services are provided to members through provider agencies. Compl. ¶¶ 221-24.
In 2009, DHHR agreed, in a settlement in another case, to “make annual budget requests [to the legislature] to at least maintain current appropriations” and to add 300 new slots over sev-
1 The I/DD Waiver Application is available at http://www.medicaid.gov/medicaid-chip-programinformation/by-topics/waivers/waivers_faceted.html. The I/DD Waiver was scheduled to expire on June 30, 2015, but CMS has temporarily extended it through September 2015 while the State’s renewal application is pending.
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eral years. In addition, DHHR agreed to evaluate whether additional slots are needed and “can

be supported based on the cost efficiencies from the [I/DD] Waiver.” Benjamin H. v. Walker,

No. 99-cv-0338 (S.D. W. Va. April 8, 2009). Since 2010, the number of waiver slots has grown

from 4,334 to 4,634. See I/DD Waiver Application. If BMS is able to achieve cost efficiencies

in the I/DD Waiver by adhering more closely to member budgets, it may be able to add even

more slots to the waiver, to the benefit of the hundreds of individuals on the waiting list.

Since state fiscal year (SFY) 2006, annual expenditures for I/DD Waiver members have

increased by almost $200 million. DHHR, Changes Made to the I/DD Waiver Application (May

5, 2015), http://www.dhhr.wv.gov/News/2015/Pages/Changes-Made-to-the-Intellectual-

Developmental-Disabilities-Waiver-Application.aspx. Currently, West Virginia spends between

approximately $10,000 and $232,000 annually per member for waiver services (not including

acute care). The average per member cost is $85,000. Compl. ¶ 212. The West Virginia legisla-

ture appropriates a specific amount of funding for the I/DD Waiver. For the last three years, ex-

penditures for the waiver have exceeded the amount appropriated:

Waiver expenditures (state share) State appropriation for waiver Waiver budget deficit Members

SFY 2010 $274M ($80M)

Table 1 SFY 2011
$281M ($88M)

SFY 2012 $337M ($92M)

SFY 2013 $366M ($102M)

SFY 2014 $385M ($110M)

$80M

$88M

$85M

$89M

$89M

$0 4,334

$0 4,484

$7M 4,534

$13M 4,534

$21M 4,534

See Compl., Ex. 5; I/DD Waiver Application.

3. State Plan Services. Because enrollment in the I/DD Waiver is capped, there are over

1,000 West Virginians currently on the waiting list to receive waiver services. DHHR, Changes

Made to the I/DD Waiver Application. Because of the size of the list, the wait for services is ap-

proximately three years long. While individuals on the waiting list do not have access to the

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broad array of services available under the waiver, West Virginia provides Medicaid state plan services for which there is no wait. When an individual is determined eligible for the I/DD Waiver and placed on the waiting list, the State sends him or her a letter outlining these other services. Template Letter from T. Hardy, BMS, re: Approval for the WV I/DD Waiver Program (undated) (attached as Ex. 1). For example, all children enrolled in Medicaid – including children eligible through the Children with Disabilities Community Service Program – are entitled to “early and periodic screening, diagnostic and treatment” (“EPSDT”) services, which includes all medically necessary physical/occupational/speech therapy, physician services, and durable medical equipment. In addition, for all Medicaid enrollees, West Virginia has opted to cover case management, personal care services in the home, and private duty nursing. See id. For individuals with co-occurring mental health condition(s) and mild mental retardation, West Virginia offers Assertive Community Treatment, through which eligible individuals receive a coordinated package of services to live successfully in the community. Id.
4. State Grant Programs. West Virginia also offers benefits through 100%-state-funded, non-Medicaid programs. The I/DD Wait List Support Grant provides certain individuals on the wait list with supported employment, day habilitation, respite, behavioral support, and environmental adaptations. The Unmet Needs Grant provides eligible individuals with adaptive equipment, occupational/physical therapy, as well as dental, vision, and hearing services.2
2 See Bureau for Behavioral Health and Health Facilities (“BHHF”), Specialized Funds Policy, I/DD Wait List Support Grant (eff. July 1, 2013), http://www.dhhr.wv.gov/bhhf/Sections/programs/ProgramsPartnerships/IDD/Documents/Wait% 20list%20support%20grant%20policy%20FY%202014.pdf; BHHF, Specialized Funds Policy, Unmet Needs Fund (eff. July 1, 2013), http://www.dhhr.wv.gov/bhhf/Sections/programs/ProgramsPartnerships/IDD/Documents/Unmet %20Needs%20Policy%20FY%202015.pdf.
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B. The Service Authorization Process for the I/DD Waiver This case turns on the service authorization process for I/DD Waiver members. Service authorization begins with APS’s annual calculation of the member’s budget, which is a baseline dollar amount for the purchase of waiver services. APS’s budget process has been in place since 2008 and is described in the CMS-approved I/DD Waiver document, I/DD Waiver Application, App’x A. The first step in the budget process is an in-depth functional assessment in which APS collects data specific to the individual and his or her relationships and environments. See Compl. ¶ 225; W. Va. Medicaid Provider Manual § 513.4.3 APS uses standard assessment tools (the Inventory for Client and Agency Planning and the Adaptive Behavior Assessment System) commonly used in other States to analyze the functionality of individuals receiving long-term supports and services. APS has conducted a multi-variable statistical analysis, based on data specific to West Virginia’s I/DD Waiver, that is applied to APS’s functional assessment to produce a presumptive budget designed to cover the cost of services comparable to those used in the past by I/DD Waiver members with similar assessment results. See I/DD Waiver Application, App’x A; Compl. ¶ 232-34. This is an objective, equitable means of allocating funds to individuals with different diagnoses, situations, and needs. Members’ budgets range from approximately $10,000 to $232,000, depending on their functionality. If a member disagrees with APS’s assessment, he or she can request a modification. W. Va. Medicaid Provider Manual § 513.5.3. Based on this request, APS may adjust the assessment findings or budget amount. Id. The most recent annual budgets calculated for the Plaintiffs range from $174,000 (Michael T.) to $65,900 (Eric D.). Compl. ¶¶ 47, 72, 101, 136, 164.
3 The manual can be found at http://www.dhhr.wv.gov/bms3/Pages/ProviderManuals.aspx.
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Once the budget is developed, it is sent to the member, his or her guardian, and the provider agency. See Compl., Ex. 1. The provider agency uses an interdisciplinary team, which includes the member and/or his or her legal representative, to develop an Individualized Program Plan (“IPP”) that details: the member’s care needs, how much of each waiver service the member will purchase, and the schedule for receiving those services. See id. ¶¶ 226-28. In developing the IPP, the interdisciplinary team “make[s] every effort to” remain within the budget. § 513.5.3.
Once the IPP is complete, the provider agency requests approval of the service levels in the IPP. APS reviews the IPP to ensure it complies with BMS policies and addresses the member’s health and safety. See I/DD Waiver Application, App’x A. If the IPP is within the budget (as is generally the case) and otherwise complies with BMS policies, APS approves it. If the interdisciplinary team, the provider agency, and/or the member believes services in excess of the budget are necessary for the member, they submit IPP service levels that exceed the budget and seek “second level negotiation” of the service request from BMS. Id.; see also Compl., Ex. 6. If BMS determines that additional services are necessary to keep the member safely in the community, it approves the requested service levels in excess of the budget. See § 513.5.3; I/DD Waiver Application, App’x A. If BMS determines that additional services are not necessary, it denies the request and the member is sent a denial letter with appeal rights. See Compl., Exh. 2. The denial notice explains, among other things, that the member has 90 days to appeal, but “for services to continue at the previously-approved level through the hearing/appeals process” the request for a hearing must be received within 13 days. See id. If a member appeals the denial of services in excess of the budget, a State Hearing Officer determines whether additional services should be authorized. See id. Some State Hearing Officers have concluded that they cannot overturn BMS decisions not to authorize services in excess of the member’s budget, because that
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is a policy decision. Once services begin pursuant to the IPP, APS continues to monitor the member’s health and safety, including by monitoring and reviewing incident reports.
Prior to 2014, APS routinely approved requests for services in excess of the member’s budget, even though it was only supposed to make changes based on a change to the underlying assessment. See Compl. ¶ 240. As Table 1 shows, by SFY 2014, the I/DD Waiver budget deficit had grown to approximately $21 million, which represented a 20% increase over what the state had budgeted for the program. This caused BMS staff to closely scrutinize I/DD Waiver expenditures, and APS’s practice of approving services in excess of the budget was discovered. When BMS learned of this practice at the end of 2014, it instructed APS that all requests for services in excess of the member’s budget must go through the second level negotiation. See Compl. ¶ 246; Compl., Ex. 6. Of the over 2,500 members who have had budgets calculated and IPPs completed in 2015, BMS has approved 359 members’ requests for services in excess of their budget through the second level negotiation, because it has determined that those services are necessary to keep the member safely in the community.
Budgets and service levels are reviewed and redetermined annually. If there is a change in the member’s needs in the interim, the member’s interdisciplinary team holds a “Critical Juncture” meeting to consider updating the IPP, including the service levels therein. W. Va. Medicaid Provider Manual § 513.8.2.4. “A Critical Juncture may be the result of a change in the member’s medical/physical status, behavioral status or availability of natural supports.” Id.
ARGUMENT The Plaintiffs’ Complaint attacks West Virginia’s system for allocating funds for I/DD Waiver members. To begin with, this action is premature – three of the Plaintiffs have not completed the process through which their service levels are finalized and therefore their claims are not ripe for review. As for the merits, West Virginia uses a fair, equitable, and objective system
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for allocating funds to support thousands of I/DD Waiver members with different disabilities, circumstances, and needs. This system is fully consistent with the Medicaid Act, the Due Process Clause, the ADA, and the Rehabilitation Act, and the Complaint should be dismissed. I. The Claims of Michael T., Eric. D, and Jeremy C. Should Be Dismissed As Not Ripe
for Judicial Review. Plaintiffs seek injunctive and declaratory relief, which are discretionary remedies that “courts traditionally have been reluctant to apply . . . to administrative determinations unless these arise in the context of a controversy ‘ripe’ for judicial resolution.” Abbott Labs v. Gardner, 387 U.S. 136, 148 (1967). “A case is fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties.” Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006). To evaluate whether a case is ripe, courts must assess both “the fitness of the issues for judicial decision” as well as “the hardship to the parties of withholding court consideration.” Abbott Labs, 387 U.S. at 149. This dispute is not ripe with respect to Michael T., Eric. D, and Jeremy C., and therefore this Court lacks jurisdiction to review their claims. First, these claims are not ripe because a final agency decision regarding I/DD Waiver benefits has not yet been issued in these Plaintiffs’ cases. Tammy W. v. Hardy, 681 F. Supp. 2d 732, 736 (S.D. W. Va. 2010) (dismissing action where a child had received notice that benefits would be terminated, but had not yet completed the administrative review process). I/DD Waiver members dissatisfied with their service levels may pursue second level negotiation from BMS and, ultimately, a Medicaid Fair Hearing appeal. Compl. ¶¶ 267-70; see also Compl., Ex. 2. Plaintiff Michael T. has not yet completed even a second level negotiation, let alone filed an appeal. See Compl. ¶ 53. Plaintiffs Eric D. and Jeremy C. were denied additional services through second level negotiation, but the Complaint does
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not allege that they have received a final decision from the Medicaid Hearing Officer on appeal. See Compl. ¶¶ 78, 141-144.
Moreover, delaying judicial review until there is final agency action would not result in hardship to these Plaintiffs. All three Plaintiffs had the option to continue to receive I/DD Waiver benefits pending administrative determination of their benefit levels. While he seeks additional services, Michael T. “continue[s] to receive the amount of waiver benefits he needed and had previously received.” Compl. ¶¶ 49, 55. The Complaint states that Eric D. and Jeremy C. are not receiving their previously-authorized services while their appeals are pending. Compl. ¶¶ 78, 142. However, both Eric D. and Jeremy C. had the opportunity to receive services “at the previously-approved level throughout the hearing/appeals process” by requesting a hearing within 13 days of receipt of BMS’s second level negotiation decision. See Compl. Ex. 2, p. 2, 3. Presumably, Eric D. and Jeremy C.’s representatives chose not to pursue the appeal within 13 days. Further, if their appeals result in a determination that Eric D. and Jeremy C. are eligible for the requested services, services will begin again on the date of that determination. § 513.4.1.
As this Court has previously explained, “judicial intervention at this stage would interfere with [the State’s] authority to determine [Plaintiffs’] eligibility for benefits.” Tammy, 681 F. Supp. 2d at 737. While Medicaid is funded with both federal and state dollars, States are responsible for administering the Medicaid program. “Basic notions of federalism and comity counsel that the state system should first make a final determination” regarding Plaintiff’s I/DD Waiver benefits “before this federal court intervenes.” Id. Dismissing the claims of Michael T., Eric D., and Jeremy C. will allow the State to make final I/DD Waiver benefit decisions and “help preserve the states’ important role in administering the program.” Id.
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II. Counts I and II Should Be Dismissed Because Plaintiffs Received Notice and Appeal Rights. A. West Virginia Complies with the Medicaid Act. Plaintiffs assert that the State reduced or terminated waiver benefits “in violation of the
Medicaid Act by failing to provide proper notice, or to grant the opportunity for fair hearing as required by” Section 1902(a)(3) of the SSA. Compl. ¶ 286.
The State fully complies with the notice and appeal requirements under the Medicaid Act and federal Medicaid regulations, and the Complaint does not allege any facts to the contrary. The State provides written notice of Medicaid Fair Hearing rights and conducts such hearings for any “applicant who requests it because his claim for services was denied.” 42 C.F.R. § 431.220(a)(1); see generally 42 C.F.R Part 431, Subpart E. Waiver members may request a second level negotiation of their service levels if they are unsatisfied with their individualized budget. Compl. ¶ 270. If this request is denied, BMS sends a written notice stating the reason for the denial and informs the recipient of his or her “right to appeal the decision through a Medicaid Fair Hearing” within 90 days. Compl. Ex. 2. Four Plaintiffs have requested fair hearings to challenge their services levels. See Compl. ¶¶ 78, 106, 141-144, 168-70. The fifth Plaintiff has requested a second level negotiation from BMS and may request a fair hearing later if unsatisfied with BMS’s decision. See Compl. ¶ 53. The Plaintiffs also acknowledge that “[o]ther recipients have been granted fair hearings, and given opportunity to present evidence showing receipt of authorized waiver benefits in greater amounts in prior years, and a continuing need for that level of waiver benefits.” Compl. ¶ 274. Thus, Plaintiffs have not been denied notice or opportunity for a Medicaid Fair Hearing and Count II should be dismissed.
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B. West Virginia Complies with the Due Process Clause. The Plaintiffs assert that DHHR violated the Due Process Clause of the U.S. Constitution by reducing Plaintiffs’ waiver services “without adequate prior notice or timely, meaningful hearing and a reasoned decision based on the governing law.” Compl. ¶ 283. The Complaint does not allege facts supporting this claim. To the contrary, as explained in the previous section, see supra Section II.A, the Complaint details how DHHR provided the Plaintiffs, and other I/DD Waiver members, with “timely and adequate notice” of the reasons for the reduction and an opportunity to challenge the State’s action, see McCartney v. Cansler, 608 F. Supp. 2d 694, 699 (E.D.N.C. 2009) (quoting Goldberg v. Kelly, 397 U.S. 254, 262 (1970)). There is no question that DHHR “inform[ed] recipients that they can request a hearing and that the government will reinstate their benefits during the pendency of that hearing.” See Pashby v. Delia, 709 F.3d 307, 328 (4th Cir. 2013). The Plaintiffs complain about DHHR’s use of “a secret algorithm” and an “unpublished policy” to determine a budget. First, although some technical aspects of APS’s analysis are proprietary, the key features of the system for calculating budgets are not secret. See I/DD Waiver Application, App’x A; supra Background Section. Second, DHHR did not act under an “unpublished policy.” BMS’s written policy authorizes it to deny I/DD Waiver services that exceed a member’s budget. See, e.g., §§ 513.2.2. 513.9.1.1. For some time, some members benefited from APS’s authorization of services in excess of their budgets, but APS’s practice was not pursuant to a state policy and it was unknown to BMS. The Complaint also advances the theory that the reduction of waiver services is a Due Process violation “unless and until DHHR first establishes that a change has occurred in the recipient’s medical or financial circumstances which justifies the reduction or termination.” Compl. ¶ 279. This is not the law. Otherwise, States could never change Medicaid service levels or phase out optional Medicaid services. Cf. Atkins v. Parker, 472 U.S. 115, 129 (1985)
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(“The procedural component of the Due Process Clause does not impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.” (internal quotation marks omitted)). In support of this theory, Plaintiffs cite Hardy v. B.H., 719 S.E.2d 804 (W. Va. 2011). But Hardy involves the burden of proof when DHHR is claiming that a beneficiary’s circumstances have changed, and is not relevant here. III. Counts III and IV Should be Dismissed Because Plaintiffs’ Allegations Do Not Con-
stitute Discrimination in Violation of the ADA or the Rehabilitation Act. Counts III and IV allege that the I/DD Waiver service levels discriminated against Plaintiffs on the basis of their disability, in violation of Title II of the ADA and the Rehabilitation Act. The Complaint fails to state a claim of discrimination under either statute. 4 The ADA and the Rehabilitation Act prohibit certain discrimination on the basis of disability. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Department of Justice (DOJ) regulations promulgated to enforce the ADA state that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). This regulation is often referred to as the “integration mandate.” In Olmstead v. L.C., the Supreme Court considered “whether the [ADA’s] proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions.” 527 U.S. 581, 587 (1999). The two plaintiffs in Olmstead, who had
4 Because Title II of the ADA and Section 504 of the Rehabilitation Act “impose the same integration requirements,” Pashby, 709 F.3d at 321, this brief focuses on the Plaintiffs’ ADA claim, but every argument raised with respect to the ADA claim should be read as applying with equal force to the Rehabilitation Act claim.
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co-occurring developmental disabilities and mental health disorders, had continued to live in an institution for years after their treatment teams had determined community placement was appropriate because the State had not accepted them into its Medicaid HCBS waiver, even though the waiver was only one-third filled to capacity. Id. at 593-594, 601. The Court held that “unjustified” institutionalization of persons with disabilities can be discrimination, explaining:
[P]ersons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice. Id. at 601. The Olmstead Court concluded that keeping these plaintiffs in an institutional setting constituted “unjustified isolation,” and therefore discrimination under the ADA, if “[1] the State’s treatment professionals determine that [home- or community-based] placement is appropriate, [2] the affected persons do not oppose such treatment, and [3] the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 598, 607. The Court then remanded for further proceedings relating to the third element of the plaintiffs’ claims. The Court explained that the lower courts had not provided the State enough “leeway” to show that it could not reasonably accommodate the plaintiffs’ request for non-institutional care, given the State’s obligations “[t]o maintain a range of facilities and to administer services with an even hand.” Id. at 605. A. Olmstead Does Not Establish A Minimum Level of Home- and CommunityBased Services. The Plaintiffs allege that DHHR’s adherence to members’ APS budgets has resulted or will result in cuts to services that increase the Plaintiffs’ risk of institutionalization, and that this violates the ADA as interpreted by Olmstead. Compl. ¶¶ 288-98.
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The Plaintiffs’ reading of Olmstead is wrong. The ADA is a discrimination statute and not a health care statute. Neither Olmstead nor the ADA require States “to provide a certain level of benefits to individuals with disabilities.” Olmstead, 527 U.S. at 603 n.14; see also M.R. v. Dreyfus, 697 F.3d 706, 714 (9th Cir. 2011) (Bea. J., dissent from denial of rehearing en banc); Buchanan v. Maine, 469 F.3d 158, 174 (1st Cir. 2006); cf. Alexander v. Choate, 469 U.S. 287, 303 (1985). Instead, Olmstead means “only that States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” 527 U.S. at 603 n.14. Accordingly, to properly allege an Olmstead violation, Plaintiffs must allege sufficient facts to show that the State is “discriminating against community-based recipients by favoring institutionalized recipients with more or better services, programs or activities.” M.R., 697 F.3d at 71314 (dissent from denial of rehearing en banc). For example, a State policy that provides personal care services to institutional residents but not to community-based residents may be discriminatory under the ADA. See id. But, as the Second Circuit has observed, “Olmstead does not . . . stand for the proposition that states must provide disabled individuals with the opportunity to remain out of institutions” in all circumstances. Rodriguez v. City of New York, 197 F.3d 611, 619 (2d Cir. 1999). “What Olmstead did not hold—indeed what it specifically stated it was not holding—was that any sort of a level of services must be provided to prevent institutionalization, else the recipient would suffer discrimination.” M.R., 697 F.3d at 709 (Bea, J., dissenting).
Plaintiffs have not alleged facts that suggest West Virginia discriminates against community residents in favor of institutionalized individuals. The Complaint does not allege that the State provides services to institutional residents that it does not provide to community-based residents, or that eligibility standards for services are more lenient for individuals in institutions than for individuals in the community. Indeed, the State’s HCBS expenditures far exceed its in-
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stitutional expenditures. In 2014, West Virginia’s Medicaid program spent over four times as much money on the I/DD Waiver than it did on ICF/IID services – approximately $385 million on the waiver versus $70 million on ICF/IID services . See Compl. ¶212, Exh. 5. And ICF/IID enrollment has not increased in recent years, but has remained steady at approximately 509 beds, due in part to the moratorium on ICF/IID beds imposed in West Virginia in 1989. See Compl. ¶203. Nor do Plaintiffs allege, as was the case in Olmstead, that they have been denied access to specific services in the community that they could access in an institution.
In Pashby v. Delia, the Fourth Circuit held that “individuals who must enter institutions to obtain Medicaid services for which they qualify may be able to raise successful Title II and Rehabilitation Act claims because they face a risk of institutionalization.” 709 F.3d at 322. This does not mean that an Olmstead claim arises whenever an individual’s services do not suffice to allow her to reside in the community. If that was Pashby’s holding, States would be required to provide optional Medicaid HCBS at levels that guarantee community placement without “risk” of institutionalization, regardless of how disabled an individual may be or how costly those services may be, as long a treatment professional believes that home- or community-based placement is desirable. This is not and cannot be the law. Rather, Pashby must be read in light of the state policy that was challenged in that case, which treated individuals in the community less favorably than those in institutions: to access personal care in the community, an individual had to require assistance with at least two of five activities of daily living (“ADL”), whereas an institutionalized individual qualified for personal care by requiring assistance or limited supervision with one of seven ADLs. Id. at 314. Accordingly, Pashby stands for the proposition that serious risk of institutionalization gives rise to an ADA claim when that risk is caused by policies that discriminate between access to services in an institution and access to services in the community.
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In contrast to the state policy in Pashby, in this case, the Plaintiffs do not allege discriminatory treatment between themselves (as members in the I/DD Waiver) and institutionalized Medicaid enrollees. The Complaint does not claim that it is easier to access any Medicaid service in an institution than it is in the community. As a result, Plaintiffs have not alleged facts sufficient to support a claim of discrimination under the ADA or the Rehabilitation Act, and counts III and IV should be dismissed.
B. Plaintiffs Do Not Allege Facts Sufficient to Show that I/DD Waiver Policies Create a Serious Risk of Institutionalization.
Even if simply showing a “serious risk of institutionalization” caused by a benefit reduction could sustain a claim of discrimination under the ADA, Plaintiffs do not allege facts sufficient to make that showing See Pashby, 709 F.3d at 322 (quoting DOJ, Statement of the DOJ on the Integration Mandate of Title II of the ADA and Olmstead v. L.C. (June 22, 2011)). A “serious risk of institutionalization” means that Plaintiffs must show that the risk is actual and severe. See V.L. v. Wagner, 669 F. Supp. 2d 1106, 1119 (N.D. Cal. 2009); G. v. Hawaii, 676 F. Supp. 2d 1046, 1057 (D. Haw. 2009).
Plaintiffs allege that their budgets have or may be decreased, but they have not alleged facts to show that those decreases (or potential decreases) create a serious risk of institutionalization. The Complaint describes each named Plaintiffs’ recent service budget, and any decreases that have occurred or might occur in the future, followed by the assertion that the Plaintiff “is at a serious risk of being institutionalized” as a result of the State’s actions. Compl. ¶¶ 57, 79, 87, 119, 149. This type of “wholly conclusory statement” is insufficient to support a claim of discrimination; a complaint “requires more than labels and conclusions.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 561 (2007). It is quite possible that services can be maintained (or even increased) within a decreased budget. For example, a member can substitute less expensive
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services for more expensive services, share services with another member (for those individuals living in congregate settings), or make greater use of natural supports such as family members.
Rather than focus on potential risks to the individual member, the Complaint largely relies on increased strain and pressure on family caregivers. DHHR recognizes the difficulties any family caring for a loved one faces, but the goal of the I/DD waiver, as with DHHR’s other waivers, is to supplement and not supplant family support, and the budgets are calculated accordingly. Even if the allegations of increased strain on family caregivers are accepted as true, that does not mean that Plaintiffs are at increased risk of institutionalization. In some cases the paid caregiver is a family member, which means that there is no change in the care, other than the amount that the State is able to pay. The Complaint explains that Tara R. moved out of her family home when her budget was decreased, but she is not in an institution. She continues to reside in the community in an Individualized Support Setting (“ISS”) apartment. Tara R. is an example of how West Virginia’s comprehensive system of care provides individuals with multiple pathways to remain in the community.
In sum, the Complaint does not allege facts sufficient to conclude that Plaintiffs face a serious risk of institutionalization “above the speculative level,” and therefore the ADA and Rehabilitation Act claims should be dismissed. See Twombly, 550 U.S. at 555.
C. Plaintiffs Do Not Allege They Can be Reasonably Accommodated. The Plaintiffs’ Complaint incorrectly assumes that Olmstead provides each Plaintiff an individual right to avoid institutionalization. Under the ADA, a public entity is only required to modify a program to avoid discrimination if such a modification is “reasonable.” See 28 C.F.R. § 35.130(b)(7). A public entity is not required to make any change that would “fundamentally alter” a program. See id. A “fundamental alteration” of a program occurs when, “in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the re-
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sponsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.” Olmstead, 527 U.S. at 605. At the outset, plaintiffs “bear[] the burden of articulating a reasonable accommodation” to address the alleged discrimination. Frederick L. Dep’t of Pub. Welfare of the Commonwealth of Penn., 364 F.3d 487, 492 n.4 (3d Cir. 2004).
In this case, the Plaintiffs’ have not alleged a reasonable modification to the I/DD Waiver. The Plaintiffs’ Complaint does not expressly identify a reasonable modification, nor do the Plaintiffs’ request relief that constitutes a reasonably modification. To the contrary, the breadth of the relief requested by the Plaintiffs is striking. Plaintiffs ask this Court to order the State to abandon its CMS-approved system for allocating funding in the I/DD Waiver, shift control of the funding process from the executive branch to the legislative branch, and await a “legislativelyestablished” “formula” that does not yield lower service levels for any member without “proof of a change in the individual recipient’s circumstances reducing her or his actual needs.” This would result in effectively a new and different program; it is not the type of limited program modification that is “reasonable” under the ADA. Cf., e.g., Pashby, 307 F.3d at 323-24 (preventing the State from implementing stricter eligibility requirements for personal care services is a reasonable modification); M.R., 697 F.3d at 736-37 (preserving pre-existing service levels by preventing implementation of an average 10% across-the-board cut in personal care is a reasonable modification).
In Olmstead, a plurality of the Court concluded that a plaintiff cannot compel a program change if the State already has “a comprehensive, effectively working plan for placing qualified persons . . . in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State endeavors to keep its institutions fully populated.” 527 U.S. at 605-06.
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“In such circumstances, a court would have no 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.” Id. at 606.
West Virginia has a “comprehensive, effectively working plan” for helping individuals with physical and developmental disabilities remain in the community. The West Virginia Medicaid program spends hundreds of millions of dollar annually to help disabled residents remain in the community. Other than the system for allocating funding in the I/DD Waiver, the Complaint does not take issue with any feature of the State’s comprehensive HCBS program. Nor does the Complaint allege that the waiting list for the I/DD Waiver fails to move a “reasonable pace” or is “controlled by the State endeavors to keep its institutions fully populated.” The fact that the I/DD Waiver does not offer enrollees unlimited services does not mean the State does not have a “comprehensive, effectively working” plan to avoid institutionalization. Plaintiffs’ request for increased services would result in increased costs, which would presumably be paid for by serving fewer individuals in the I/DD Waiver. This is the type of “displacement” of another group of disabled individuals that the Olmstead Court warned against.
Because the Plaintiffs have not articulated a reasonable modification that can be made to the I/DD waiver, their ADA and Rehabilitation Act claims should be dismissed.
CONCLUSION For the foregoing reasons, the Plaintiffs’ Complaint should be dismissed.
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CERTIFICATE OF SERVICE I, Caroline M. Brown, hereby certify that I caused a true and correct copy of Defendant’s
Memorandum of Law in Support of the Motion to Dismiss to the following via ECF notification:
Bren J. Pomponio Gary M. Smith Lydia C. Milnes Mountain State Justice, Inc. Suite 200 1031 Quarrier Street Charleston, WV 25301

Dated: September 14, 2015

/s/ Caroline M. Brown
Caroline M. Brown Philip J. Peisch Shruti C. Barker Covington & Burling LLP 850 Tenth Street NW Washington, DC 20001
Kimberly Stitzinger Jones Office of the West Virginia Attorney General Room 251 350 Capitol Street Charleston, WV 25301

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 Case 2:15-cv-09655 Document 13 Filed 09/28/15 Page 1 of 61 PageID #: 148

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

MICHAEL T., a person with diminished capacity; ERIC D., by his guardian CONNIE D.; SARA F., by her guardians REBECCA F. and DAVID F.; JEREMY C., by his guardian, JO C.; and TARA R., by her guardian HARV CHRISTIAN R.;
ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
KAREN BOWLING, in her official capacity as Secretary of the WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Defendant.

Case No. 2:15-cv-09655
CLASS ACTION DEMAND FOR PRELIMINARY RELIEF

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PRELIMINARY STATEMENT
1. Plaintiffs hereby amend their initial complaint by right within twenty-one days of the defendant’s filing of her F.R.C.P. 12(b)(6) motion, pursuant to F.R.C.P. 15(a)(1)(B).
2. The amended complaint relates back to the filing of the original complaint and supplants it for all purposes. As a result, the defendant’s motion to dismiss the original complaint is moot.
3. This is an action on behalf of West Virginia residents with intellectual and developmental disabilities dependent on West Virginia’s Intellectual/Developmental Disabilities Home and Community Based Services Waiver program (I/DD Waiver Program). On behalf of themselves and all others similarly situated, plaintiffs seek to preserve pre-existing benefits and

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benefit allocation processes so they may continue to receive the same needed services the state provides to others like them who are institutionalized, and so they may remain in the current, more integrated settings they have enjoyed for many years.
4. Since the 1980s, the State of West Virginia has operated a Medicaid home and community-based care program under a special Medicaid waiver plan allowing a limited number of persons with intellectual and developmental disabilities to receive ICF/IID-level services while living at home or in home-like settings.
5. Individuals with intellectual and developmental disabilities who qualify to receive home and community-based services receive an annual amount of waiver benefits represented by a budget for waiver services. The allotment of waiver benefits by law must (i) be based on that person’s individual need for care according to the local care provider team most familiar with the individual’s needs, and (ii) be sufficient to maintain the recipient in a safe, healthy, and humane condition within an integrated community and home-like setting.
6. In contrast, each year defendant’s waiver administrator, Innovative Resource Group d/b/a APS Healthcare, Inc. (APS), allocates benefit amounts arbitrarily through a secret and proprietary computer algorithm that does not apply reasonable standards, give appropriate weight to individual recipient needs, to the amount of waiver benefits and needed services for which the individual recipient was eligible and authorized for in prior years, or to the services the state would provide if that recipient were institutionalized.
7. In past years, the illegal and discriminatory effects of that allocation process were avoidable because APS would routinely reinstate needed benefits and services at previously authorized levels upon submission of individualized evidence showing that a recipient’s
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circumstances had not significantly improved from prior years, and that the level of benefits and services authorized in the past budget year were still needed to maintain his or her safe, healthy, and humane care in an integrated community and home-like setting.
8. However, defendant has now eliminated that process and provides no reasonable mechanism through which recipients can seek reasonable accommodation between the particular needs of their disabilities and APS’s computer-assessed budget.
9. Plaintiffs seek class-wide relief for themselves and similarly-situated West Virginia I/DD waiver program recipients who have had the waiver benefits and services they need to live in an integrated setting unjustifiably reduced or terminated, or who are imminently threatened with such reductions or terminations, even though those same levels and types of services would be available to them were they to choose institutionalization.
10. Those terminations and reductions result from an unpublished, unfiled, and unlawful policy eliminating any method of obtaining reasonable accommodation, as implemented beginning in late 2014 by defendant Secretary Bowling in her capacity as the executive head of the West Virginia Department of Health and Human Resources (DHHR).
11. Pursuant to the challenged policy, DHHR eliminated this avenue for obtaining reasonable accommodation of individual needs by directing APS to deny every request for necessary services over and above the arbitrarily-calculated APS budget “regardless of the situation or setting.”
12. That directive meant individual recipients had to apply for reinstatement of prior levels of benefits and services to defendant’s Bureau of Medical Services (BMS). However, pursuant to defendant’s new policy, BMS customarily denied all such applications because the
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request exceeded that recipient’s APS initially-assigned budget, without consideration of the recipient’s actual need for services, the level and amount of services the state would provide that recipient if institutionalized, and other relevant factors.
13. To further enforce its new policy, DHHR instructed the local care provider teams which coordinate and manage an individual recipient’s waiver services not to request the amounts and types services previously authorized, even if the recipient has been receiving and continues to need those services, if doing so would exceed the budget arbitrarily assigned that individual by APS.
14. Moreover, Hearing Officers of the West Virginia Board of Review are routinely denying fair hearing appeals contesting these reductions or terminations, despite proof of continuing need for previously authorized services and the requirements of controlling law.
15. In some cases, the Hearing Officer has simply dismissed appeals of benefit level reductions as being outside the jurisdiction of the Board of Review.
16. Other cases have upheld the benefit and service reductions or terminations, despite recipient’s proof of need and the lack of any change in recipient circumstances, on various theories. These range from DHHR “has been directed to operate within budgetary guidelines while providing services . . . [so] individual program budgets cannot be exceeded” to DHHR’s official position that I/DD waiver is an “optional” Medicaid program, and the level of benefits and services provided recipients is therefore an unreviewable policy decision solely within DHHR’s discretion.
17. The challenged policy, which has not been approved by either the West Virginia Legislature or federal Medicaid officials, and which defendant lacked legal authority to
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implement, was instituted solely because of alleged budgetary shortfalls in the I/DD waiver portion of the state’s overall Medicaid budget.
18. A recent press report questions whether DHHR is inflating alleged budget problems by including non-waiver Medicaid expenditures in the waiver program expenses.
19. Moreover, any shortfalls have been caused or exacerbated by DHHR’s politicallymotivated refusal to ask the West Virginia Legislature for additional funding for the waiver program at any time over the last several state budget cycles, even though the state’s Olmstead plan requires them to push for new funding.
20. Through general application of this challenged policy, over the past few months DHHR has greatly reduced the waiver benefits and services of hundreds of waiver recipients from levels they need to maintain safe, healthy, and humane care in an integrated community setting.
21. DHHR has implemented these massive reductions and terminations of the waiver benefits and services needed by plaintiffs and the class unjustifiably, arbitrarily, and unlawfully, including in that:
- in most or all cases, the level of benefits and amounts and types of services cut would be provided to that same recipient if he or she were institutionalized, and/or would be provided, but at greater expense, if the recipient was moved to a less-integrated setting;
- benefits and services were reduced or terminated despite the lack of any meaningful change in an individual’s actual need for services and without DHHR first proving a change in the recipient’s circumstances or need for services;
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- benefits and services were reduced or terminated without providing adequate prior notice and a meaningful, impartial hearing at which a decision is reached based on the controlling law and regulations, as required by the Constitution and the fair hearing provisions of the federal Medicaid regulations.
22. As a result of DDHR’s actions and elimination of the process by which they could to seek and obtain reasonable accommodation of the program to their individual needs, plaintiffs and the absent members of the plaintiff class are suffering loss of the waiver benefits and services needed for safe, healthy, and humane residence in current integrated living arrangements, and/or face imminent peril of such losses as soon as 2015 budgets are implemented for them.
23. In consequence, the named plaintiffs and all others similarly situated are suffering from loss of the type and amount of waiver benefits and services actually needed to maintain them humanely, in safety and health, in the settings which provide them the most integrated community and home-like living arrangements available.
24. As a result of the loss of the benefits and services required to live in safety and health in their current settings, the named plaintiffs and all others similarly situated face a heightened and serious risk of being forced from their long-term home and community living arrangements into segregated, institutionalized settings, denying their right to freedom of choice and violating federal anti-discrimination laws.
25. Because of the loss of the benefits and services resulting from the challenged policy, plaintiff Tara R. has already been forced from the family home in which she has lived all her life. Moreover, because defendant does not provide her the same level and amount of
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benefits and services it provides to those who are institutionalized, Tara R. faces imminent risk that she will not even be able to remain at her current placement.
26. Plaintiffs and the absent members of the plaintiff class therefore are suffering or imminently face irreparable harm for which they have no adequate remedy at law
27. Plaintiffs seek class-wide preliminary and permanent declaratory and injunctive relief to remedy DHHR’s continuing violation of due process, Medicaid requirements, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
JURISDICTION 28. This action arises under the Civil Rights Act, 42 U.S.C. §1983; Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12131, et seq.; and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. 29. This Court has jurisdiction over plaintiffs’ claims pursuant to 28 U.S.C. §1343(a) (3) - (4) and 28 U.S.C. § 1331. 30. Declaratory and injunctive relief are authorized pursuant to 28 U.S.C. § 2201 and §2202, and Federal Rules of Civil Procedure 57 and 65. 31. Venue is proper because a substantial part of the acts and omissions of which Plaintiffs complain occurred in this District. See 28 U.S.C. § 1391(b).
PARTIES A. Defendant
32. Karen Bowling is the Secretary of the West Virginia Department of Health and Human Resources (DHHR). In that capacity, Ms. Bowling has full executive authority and responsibility for the operation, control, and administration of the DHHR in West Virginia,
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including the West Virginia Bureau of Medical Services (BMS), a subdivision of DHHR. BMS oversees the general administration and operation of the state’s I/DD waiver program.
33. Ms. Bowling is sued only in her official capacity as the governmental official with overall executive authority and responsibility over DHHR and its various bureaus and contracting agencies, such as BMS and Innovative Resources Group LLC, d/b/a APS Healthcare, Inc. (APS). No claims are asserted personally against Secretary Bowling. For that reason, this complaint will refer to the defendant generically as “DHHR.”
34. West Virginia has designated DHHR as the “single state agency” with direct responsibility for administration of all aspects of the state’s Medicaid plan, including all Medicaid Waiver programs. See 42 U.S.C. § 1396a (a)(5); W. Va. Code § 29-15-6.
35. DHHR is a recipient of federal funding used to operate and administer all aspects of West Virginia’s Medicaid program, including the I/DD Waiver program. The I/DD Waiver program in West Virginia is therefore a “program or activity” subject to the requirements and prohibitions of Section 504 of the Rehabilitation Act of 1973. See 29 U.S.C. §794(b).
36. In exchange for that federal funding, DHHR and contracting agencies such as APS must operate all programs in compliance with the statutes and regulations governing the Medicaid program, and with federal laws prohibiting discrimination in the operation of federallyfunded programs.
37. Since DHHR is a governmental department of the state of West Virginia, it is a “public entity” as defined by 42 U.S.C. §12131 (1) of Title II of the ADA. B. Plaintiff Michael T.
38. Plaintiff Michael T. is a 55 year old man living in Poca, Putnam County, West
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Virginia, in an Intensively Supported Setting (ISS) residential group home. Michael T. shares this home with another adult who also needs intensive care services.
39. Michael T. has cerebral palsy, a moderate intellectual disability, a seizure disorder, and a vision impairment. In addition, Michael has been diagnosed with a mood disorder and many medical conditions. He is non-ambulatory, incontinent, and requires assistance with virtually all tasks of daily living.
40. Michael’s most recent adaptive behavior assessment places his overall functioning at an age equivalent of one year, two months.
41. That same assessment, dated March 13, 2015, shows that not only has Michael’s functioning not improved, it has somewhat decreased from the prior year, indicating marginally greater service needs than in previous years.
42. Michael T. does not have a legal guardian, nor does he have living relatives involved in his care.
43. DHHR has assigned a Health Care Surrogate solely to make decisions for Michael T. about his medical care. The Health Care Surrogate is now a representative from the Kanawha County Office of Adult Protective Services. Adult Protective Services is a division of the DHHR, run by waiver program administrator APS. Michael T.’s Health Surrogate is therefore defendant’s employee.
44. Michael T.’s waiver benefits and services have been substantially reduced through application of DHHR’s challenged policy.
45. However, his Health Surrogate has taken no action to contest that reduction nor sought restoration of the services he needs, even though restoring the benefit level previously
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received is crucial to protecting and maintaining Michael T.’s ability to avoid institutionalization. 46. No court has yet determined Michael T. to be incompetent. However, Michael T.
is of greatly diminished capacity and requires the immediate appointment of a guardian ad litem. 47. Michael T. has no understanding of the waiver program, DHHR’s reduction of his
waiver benefits, or the nature of a lawsuit. Michael T. understands only that he will have to leave his home, although he wants to stay where he is.
48. Michael has received services through the I/DD waiver program for approximately twenty years.
49. As is typical of many adult I/DD waiver recipients, Michael’s levels of functioning and ability have not improved to any meaningful degree since he was a teenager.
50. The continuing receipt of necessary waiver services throughout the last twenty years has allowed Michael to live in the community in home-like residences such as his current ISS residential group home, rather than in an institution.
51. Continuing to live in this more-integrated setting is medically appropriate for Michael, so long as DHHR does not reduce or terminate the level of community-based waiver benefits and services he needs to reside there in health and safety.
52. Michael T. is a qualified individual with a disability as defined by 42 U.S.C. §12131(2) of Title II of the ADA.
53. Michael T. is entitled to continue to receive waiver benefits at levels previously authorized as necessary to meet his needs unless his circumstances change, as those benefits provide the services needed for him to live safely and in health in the most integrated setting appropriate to his needs.
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54. Beginning at least in 2013, APS’s proprietary computer algorithm generated a yearly waiver budget for Michael allocating him approximately $170,000 to $174,000 in waiver benefits, regardless of the amount of waiver benefits that had been authorized or needed to meet Michael’s actual care needs in the previous year.
55. Upon receipt of that computer-allocated budget, pursuant to the reasonable accommodation process then available, Michael’s service coordinator would each year communicate to APS about Michael’s individual circumstances, his past history of authorized benefits and services, and his individual health and maintenance needs, explaining why the algorithm-generated budget was not sufficient to provide all the services he needed to maintain his health, his safety, and prevent an increased risk of institutionalization.
56. Prior to 2015, in each year that process resulted in APS authorizing an additional $39,000 to $70,000 in benefits, so as to continue the services necessary to meet his actual needs in the community setting in which he lives.
57. In past years, Michael therefore was authorized to and received waiver benefits totaling in the range of $209,000 - $243,000, and the types and amounts of care and support services he actually needed.
58. Those additional authorizations gave reasonable accommodation to Michael’s individual needs within DHHR’s general program practices, and resulted in DHHR providing Michael the same level and types of benefits and services it would provide Michael T. if he were institutionalized, but at less cost.
59. For the 2015 budget year, APS’s algorithm assigned Michael a benefit level of about $174,000, well below the amount of waiver benefits he previously received.
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60. Michael’s Health Surrogate was told of that allocation through a standardized form letter DHHR and APS routinely uses to announce the results of the algorithm calculation to every West Virginia waiver recipient. True, redacted exemplars of the letter form customarily employed are compiled in Exhibit 1 to this complaint and incorporated here by reference.
61. When no action DHHR’s Adult Protective Services Office took no action for Michael, his provider agency stepped in, as in years past, to help Michael continue to receive the amount of waiver benefits and services he needed and had previously received.
62. Michael’s service coordinator therefore submitted to APS a request to reinstate his benefits to the previous year’s authorized level so as to maintain the services necessary to meet Michael’s actual needs.
63. As in years past, that request was supported by documentation of Michael’s circumstances, his service needs, and a review of the type, amount, and cost of services APS had authorized previously as necessary to meet Michael’s needs and avoid increasing his risk of institutionalization.
64. However, pursuant to the challenged policy and DHHR’s elimination of the mechanism for seeking reasonable accommodation, APS rejected Michael’s submission because reinstating the benefits and service levels authorized and received in the prior year would mean exceeding Michael’s 2015 algorithm-generated budget.
65. As a result, Michael T. was no longer authorized to receive 24 hours of daily care services as provided under his previously-authorized benefit level. The algorithm-assigned budget required reduction of his available hours of care by 25%, to 18 hours each day.
66. Michael T.’s need for 24 hour care has not changed. He cannot care for himself.
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67. Michael lives in an ISS home. He has no family or friends to provide “informal” support to “supplement” the care the waiver program provides. Without 24 hour care, he cannot remain in safety and health where he now lives.
68. DHHR will provide Michael with the 24 hour care services he received last year if he is institutionalized at a higher cost to the state.
69. To continue to get the services Michael T. needs, and which the I/DD waiver program has historically provided him, plaintiff Michael T. will have to move to a less integrated, institutional setting, in which DHHR will provide those services, but at higher cost to the state.
70. Michael is therefore at serious risk of being institutionalized as a direct result of the Medicaid waiver benefit and service reductions imposed on him by the challenged policy. C. Plaintiff Eric D.
71. Plaintiff Eric D. is a 28 year old man living in Mason, Mason County, West Virginia, with his parents. Eric D. is represented in this suit by his mother and legal guardian, Connie D.
72. Eric D. has a moderate to severe intellectual disability, a seizure disorder, agenesis of the corpus callosum, Crohn’s disease, and Hirschsprung’s disease. He is non-verbal, incontinent, and requires assistance with all tasks of daily living.
73. Eric’s most recent adaptive behavior assessment places his overall functioning at an age equivalent of one year, four months. This same report, dated January 30, 2015, shows no meaningful change in his care needs from the prior year.
74. Eric’s levels of functioning and ability have not improved to any meaningful
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degree since he was a teenager. 75. Eric has received services through the I/DD waiver program for approximately
twelve years. 76. The continuing receipt of necessary waiver services throughout this period has
allowed Eric D. to live his entire life with his parents, who both work fulltime. 77. Continuing to live in that integrated setting is medically appropriate for Eric, so
long as the DHHR does not reduce or terminate the community-based waiver benefits he needs to reside there in health and safety.
78. Eric wants to remain in his family home, and his parents want him to continue to live there.
79. Eric D. is a qualified individual with a disability as defined by 42 U.S.C. §12131(2) of Title II of the ADA.
80. Eric D. is entitled to continue to receive waiver benefits at levels previously authorized as necessary to meet his needs unless his circumstances change, as those benefits provide the services needed for him to live in the most integrated setting appropriate to his needs.
81. Beginning at least in 2013, APS’s computer algorithm has generated a yearly waiver budget for Eric of approximately $64,000 to $65,500, regardless of the amount of waiver benefits authorized and expended to meet Eric’s actual care needs in the previous year.
82. Upon receipt of that computer-allocated budget, pursuant to the accommodation process previously available, Eric’s service coordinator would each year communicate to APS about his individual circumstances, past history of authorized benefits and services, and his individual health and maintenance needs, explaining why the algorithm-generated budget was
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not sufficient to provide all the services Eric needed to maintain his health, his safety, and prevent an increased risk of institutionalization.
83. Prior to 2015, in each year that communication resulted in APS authorizing an additional $17,000 to $19,000 of benefits each year, so as to provide Eric the waiver benefits and services necessary to meet his actual needs.
84. In past years, Eric therefore was authorized to and received waiver benefits and services totaling in the range of $82,000 - $84,000.
85. Those additional authorizations gave reasonable accommodation to Eric’s individual needs within DHHR’s general program practices, and resulted in DHHR providing him the same level and types of benefits and services it would provide if he were institutionalized, but at less cost.
86. For the 2015 budget year, APS’s algorithm assigned Eric a benefit level of about $65,900, well below the amount of waiver benefits and services he previously received. See Eric D. notice in Exhibit 1.
87. As in the past, Eric’s service coordinator provided APS with a request to reinstate his benefits and services to the previous year’s level, as necessary to meet Eric’s actual needs. As in years past, that request was supported by documentation of Eric’s circumstances, his service needs, and a review of the type, amount, and cost of services APS had authorized in 2014 as necessary to meet Eric’s needs and avoid increasing his risk of institutionalization.
88. However, pursuant to the challenged policy and DHHR’s elimination of the mechanism for seeking reasonable accommodation, APS rejected Eric’s submission because reinstating the benefits and service levels authorized and received in the prior year would mean
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exceeding his 2015 algorithm-generated budget. 89. In common with other class members seeking relief from benefit and service
reductions or terminations resulting from the policy at issue, Eric’s legal guardian, Connie D. asked BMS to review APS’s reduction of Eric’s previously received waiver benefits and the resulting termination of needed care services.
90. BMS denied Eric D.’s request to restore his previously authorized benefits, despite Eric’s continued need for those benefits and the absence of any change in Eric’s circumstances, simply because restoring the lost benefits would cause Eric to exceed his algorithm-assigned budget, without consideration of Eric’s actual need for services, the level and amount of services the state would provide him if institutionalized, or any other relevant factors. See true, redacted exemplars of BMS second level decisions as to named plaintiffs or absent class members, attached as Exhibit 2 and incorporated here by reference.
91. Eric’s mother further appealed the reduction in previously authorized benefits and termination of needed waiver services on Eric’s behalf, knowing that without the same level of waiver benefits and services Eric had received in previous years, she and her husband could not provide the “informal” support needed to maintain Eric in the only living situation he has ever known.
92. Initially, the family was not provided continuing benefits at the previously authorized level pending appeal, even though the appeal was filed within the necessary time frame.
93. As a result, Eric D.’s services were greatly reduced. 94. Eric’s negative behaviors, including hitting, pulling hair, and pinching (many of
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which are directed towards himself), became worse when his services were cut. 95. The reduction in plaintiff Eric D.’s waiver benefits level required a reduction of
personal-care services by approximately ten hours per week. 96. DHHR denied a request to restore those benefits just enough to allow a caregiver
to remain with Eric until his parents arrived home from work each evening. 97. The reduction in personal care services now threatens his parents’ ability to
continue working full-time. 98. In addition, Eric’s respite care services have been drastically reduced. 99. “Respite” care is “specifically designed to provide temporary substitute care
normally provided by a family member” . . . “to be used for relief of the primary care-giver(s) to help prevent the breakdown of the primary care-giver(s) due to the physical burden and emotional stress of providing continuous support and care to the dependent member.” West Virginia Title XIX I/DD Waiver Home and Community-Based Services Program Operations Manual (I/DD Op. Man.) at Chapter 513.9.1.10.1.
100. Loss of respite services means Eric’s parents are the sole source of care for Eric – day in, day out, every weekend, holiday, and days of personal illness - whenever the waiver-paid personal care hours have been exhausted.
101. Because of their ages and employment demands, Eric’s parents are unable to replace the level and amount of benefits and services Eric has lost with their own efforts for any period beyond a limited one.
102. Eric’s care needs have not changed. He cannot care for himself for even a short time. Without the level of benefits and the services the I/DD waiver has historically provided
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him, Eric faces care gaps which will adversely affect his safety, health, comfort, and emotional well-being in ways that will not allow him to continue living at home.
103. To get the same level and type of needed benefits and services the I/DD program has previously provided him, plaintiff Eric D. would have to move to a less integrated, more institutionalized setting, at which DHHR will provide all needed services, but at higher cost to the state.
104. Eric therefore is at serious risk of being institutionalized as a direct result of the Medicaid waiver benefit and service reductions imposed on him by the challenged policy. D. Plaintiff Sara F.
105. Plaintiff Sara F. is a 32 year old woman who lives in Lewisburg, Greenbrier County, West Virginia, with her parents. Sara F. is represented in this suit by her parents and legal guardians, Rebecca F. and David F.
106. Sara F. has intellectual and physical disabilities as the result of a traumatic brain injury; these include a moderate intellectual disability, scoliosis, a seizure disorder, partial leftside paralysis, dementia, anxiety, and a severe vision impairment. Sara is non-ambulatory, incontinent, and requires assistance with all tasks of daily living.
107. Sara’s most recent adaptive behavior assessment places her overall functioning at an age equivalent of eleven months. This same report, dated October 14, 2014, shows no meaningful change in her overall service needs from the prior year.
108. Sara’s levels of functioning and ability have not improved to any meaningful degree since she was a teenager.
109. Sara has received services through the I/DD waiver program for approximately 30
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years. The continuing receipt of necessary waiver services throughout this period has allowed her to live her entire life with her parents.
110. Continuing to live in that integrated setting is medically appropriate for Sara, so long as the DHHR does not reduce or terminate the community-based waiver benefits she needs to reside there in health and safety.
111. Sara F. wants to remain in her family home, and her parents want her to continue to live there.
112. Sara is a qualified individual with a disability as defined by 42 U.S.C. §12131(2) of Title II of the ADA.
113. Sara F. is entitled to continue to receive waiver benefits at levels previously authorized as necessary to meet her needs unless her circumstances change, as those benefits provide the services needed for her to live in the most integrated setting appropriate to her needs.
114. Beginning at least in 2013, APS’s computer algorithm has generated a yearly waiver budget for Sara of approximately $71,000 to $73,000, regardless of the amount of waiver benefits authorized and expended to meet Sara’s actual care needs in the previous year.
115. Upon receipt of that computer-allocated budget, pursuant to the accommodation process previously available, Sara’s service coordinator would each year communicate to APS about her individual circumstances, her past history of authorized benefits and services, and her individual health and maintenance needs, explaining why the algorithm-generated budget was not sufficient to provide all the services she needed to maintain her health, her safety, and prevent an increased risk of institutionalization..
116. Prior to 2015, in each year that communication resulted in APS authorizing an
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additional $35,000 or so of benefits, so as to continue the services necessary to meet Sara’s actual needs in the community setting in which she resides.
117. In these past years, Sara received authorized waiver benefits in amounts totaling $100,000 - $107,000, which provided the amounts and types of services necessary to meet her health and safety needs.
118. Those additional authorizations gave reasonable accommodation to Sara’s individual needs within DHHR’s general program practices, and resulted in DHHR providing her the same level and types of benefits and services it would provide if she were institutionalized, but at less cost.
119. For the 2015 budget year, APS’s algorithm assigned Sara a benefit level of $72,000, well below the amount of waiver benefits previously received. See Sara F. notice in Exhibit 1.
120. As in the past, Sara’s service coordinator provided APS with a request to reinstate benefits and services to the previous year’s level as necessary to meet Sara’s actual needs. As in years past, that request was supported by documentation of Sara’s circumstances, her service needs, and a review of the type, amount, and cost of services APS had authorized in 2014 as necessary to meet Sara’s needs and avoid increasing her risk of institutionalization.
121. However, pursuant to the challenged policy and DHHR’s elimination of the mechanism for seeking reasonable accommodation, APS rejected Sara’s submission because reinstating the benefits and service levels authorized and received in the prior year would mean exceeding her 2015 algorithm-generated budget.
122. In common with other class members seeking relief from benefit and service
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reductions or terminations resulting from the policy at issue, Sara’s mother and legal guardian, Rebecca F., requested a second level review, asking BMS to restore the previously authorized level of benefits and services for Sara.
123. BMS refused to do so, despite Sara’s continued need for those benefits and the absence of any change in her circumstances, simply because restoring her lost benefits and services would cause her to exceed the algorithm-assigned budget, without consideration of Sara’s actual need for services, the level and amount of services the state would provide her if institutionalized, or other relevant factors. See Sara F. BMS decision in Exhibit 2 stating only “[r]equest denied as approval would exceed or has exceeded the member’s Individualized Waiver Budget.”
124. Sara’s mother then sought on Sara’s behalf a Medicaid fair hearing to contest the benefit and service reduction, knowing that without the same level of waiver benefits and services Sara had received in prior years, she and Sara’s father would be unable to continue to maintain Sara in the only living situation she has ever known.
125. In her request for a hearing, Sara’s mother stated “Sara requires this [previously authorized] level of service need and has so for many years. Precedence was set by the States approval in prior years.”
126. At Sara’s Medicaid fair hearing before a Hearing Officer of the West Virginia State Board of Review, DHHR argued pursuant to the policy at issue that “due to budgetary restraints, all participants of the I/DD waiver program must stay within their respective budget amounts, unless there was a change in the individual’s assessed needs.”
127. The focus of the case presented by Sara’s parents in the fair hearing was that
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Sara’s needs were exactly the same as in previous years when APS had authorized waiver benefits up to approximately $107,000.
128. DHHR did not dispute the testimony that Sara continues to need the same level of benefits and services, nor did it present any evidence that Sara’s circumstances had changed to any significant degree since 2014.
129. Nonetheless, the Hearing Officer affirmed DHHR’s refusal to restore Sara’s benefits, finding that because Sara’s needs had not significantly changed, the Hearing Officer could not approve benefits beyond the algorithm-calculated figure. See April 1, 2015 Hearing Decision, Action No. 15-BOR-1114, a true but redacted copy of which is attached as Exhibit 3, incorporated by reference.
130. Sara F.’s care services have been greatly reduced, even though her care needs have not changed. She is unable to care for herself for even a short time. Without 24 hour care, she cannot remain in safety and health in the home in which she has always lived.
131. As a result of the approximately $35,000 reduction in Sara’s waiver benefits, her parents have been able to hire only one care provider for Sara. That person provides care for eight hours each day, five days each week. Previously, Sara had two to three care staff working various schedules to cover her needs most of her waking day and weekends.
132. Sara’s parents are now the sole source of care to make up the lost benefits and services for sixteen hours each workday, and every hour of the weekends.
133. But Sara’s parents, who are each in their sixties, lack the physical ability to care for Sara at this level continuously for a long term.
134. For example, Sara’s caregivers must transfer Sara, who weighs approximately 160
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pounds, in and out of her bed and wheelchair a minimum of twelve times each day. 135. Manual transfers have taken a physical toll on both of her parents in the past.
Sara’s father has required surgery for a hernia and requires regular injections in both knees as a result of strain from transferring Sara.
136. Sara’s mother requires regular chiropractic care to help with back pain. They simply lack the physical ability to transfer and move Sara safely.
137. Sara therefore lacks the level of “informal” support needed to allow her to remain in safety, health, and comfort over the longer term without the services she has lost.
138. To continue to receive the services Sara needs and which the I/DD waiver program has provided her, Sara F. will have to move to a less integrated, institutional setting, where DHHR will provide the services she has lost, but at a higher cost to the state.
139. Sara F. therefore is at serious risk of being institutionalized as a direct result of the Medicaid waiver benefit and service reductions imposed on her by the challenged policy. E. Plaintiff Jeremy C.
140. Plaintiff Jeremy C. is a 32 year-old man who lives in Charleston, Kanawha County, West Virginia, with his parents. Jeremy C. is represented in this suit by his mother and legal guardian, Jo C.
141. Jeremy C. has had intellectual and physical disabilities since birth. These include severe cerebral palsy, chronic joint arthrosis, chronic muscle spasms in upper and lower extremities, severe muscle spasticity, moderate autism, severe anxiety disorder with cycles of depression, oppositional defiant behavioral disorder, rage reaction seizure disorder, complex partial seizure disorder, ataxia, poor gross motor ability, and non-functional fine motor skills.
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142. Jeremy is non-verbal, non-ambulatory, and requires that all daily living tasks be performed for him.
143. Jeremy’s most recent adaptive behavior assessment places his overall functioning at an age equivalent of seven months. This same report, dated January 2, 2015, shows a worsening of his medical condition and an increase in his overall service needs, inasmuch as his ICAP Service Score was determined to be 1 (the lowest possible score), while in 2014 it was 11.
144. Jeremy’s levels of functioning and ability otherwise have not changed to any meaningful degree since he was a teenager.
145. Jeremy has received services through the I/DD waiver program since April 29, 1996.
146. The continuing receipt of necessary waiver services throughout this period has allowed Jeremy to live with his parents, Jo C. and Todd C., despite their increasing age and their own health problems.
147. Continuing to live in that integrated setting is medically appropriate for Jeremy, so long as the DHHR does not reduce or terminate the community-based waiver benefits he needs to reside there in health and safety.
148. Jeremy wants to remain in his family home, and his parents want him to continue to live there with them.
149. Jeremy C. is a qualified individual with a disability as defined by 42 U.S.C. §12131(2) of Title II of the ADA.
150. Jeremy C. is entitled to continue to receive waiver benefits at levels previously authorized as necessary to meet his needs unless his circumstances change, as those benefits
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provide the services needed for him to live in the most integrated setting appropriate to his needs. 151. Beginning at least in 2012, APS’s computer algorithm has generated a yearly
waiver budget for Jeremy ranging from approximately $69,000 to $92,000, regardless of the amount of waiver benefits authorized and expended to meet Jeremy’s actual care needs in the previous year.
152. Upon receipt of that computer-allocated benefit allocation, pursuant to the accommodation process previously available, Jeremy’s service coordinator would each year communicate to APS about his individual circumstances, past history of authorized benefits and services, and his individual health and maintenance needs, explaining why the algorithmgenerated budget was not sufficient to provide all the services Jeremy needed to maintain his health, his safety, and prevent an increased risk of institutionalization.
153. In budget years 2012, 2013 and 2014, that communication resulted in APS authorizing additional benefits of approximately $28,000 each year, so as to provide Jeremy the services necessary actually to meet his needs.
154. In these three years, Jeremy received authorized waiver benefits in amounts totaling $98,000 - $111,000.
155. DHHR’s Patricia S. Nesbit, currently the Director of DHHR’s Home and Community Based Services Unit, and one of the main executors of the challenged policy, personally authorized providing waiver benefits to Jeremy at these levels in 2012 and 2013 when she was DHHR’s Program Manager for the I/DD Waiver Program.
156. Those additional authorizations gave reasonable accommodation to Jeremy’s individual needs within DHHR’s general program practices, and resulted in DHHR providing her
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the same level and types of benefits and services it would provide if she were institutionalized, but at less cost.
157. For the 2015 budget year, APS’s algorithm assigned Jeremy a benefit level well below the amount of waiver benefits previously received, setting his budget at approximately $92,000. See Jeremy C. notice in Exhibit 1.
158. As in the past, Jeremy’s service coordinator asked APS to reinstate benefits and services at the level of prior years, as necessary to meet Jeremy’s actual, on-going, health, safety, and care needs. As in years past, that request was supported by documentation of Jeremy’s circumstances, his service needs, and a review of the type, amount, and cost of services APS had authorized in 2014 as necessary to meet Jeremy’s needs and avoid increasing his risk of institutionalization.
159. However, pursuant to the challenged policy and DHHR’s elimination of the mechanism for seeking reasonable accommodation, APS rejected Jeremy’s submission because reinstating the benefits and service levels authorized and received in the prior year would mean exceeding his 2015 algorithm-generated budget.
160. Jeremy’s mother and legal guardian, Jo C., asked BMS to restore Jeremy’s reduced waiver benefits so as to prevent termination of necessary services.
161. BMS refused to do so, despite his continued need for those benefits and the absence of any change in his circumstances, simply because restoring Jeremy’s lost benefits and services would cause him to exceed the algorithm-assigned budget, without consideration of his actual need for services, the level and amount of services the state would provide him if institutionalized, and other relevant factors. See Jeremy C. decision in Exhibit 2 stating that
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“[y]our assessed annual budget would have been exceeded or has been exceeded and therefore this request is denied.”
162. Jeremy’s mother then appealed the benefit reduction on Jeremy’s behalf, knowing that without the same level of waiver benefits Jeremy had received previously, he could not remain at home safely and in health over more than a short period, and that she and her husband would eventually be unable to continue to maintain Jeremy in the only living situation he has ever known.
163. The family was not allowed to continue to receive waiver benefits at the previously authorized level pending hearing even though the appeal was timely filed.
164. On June 17, 2015, before a State Hearing Officer of the West Virginia State Board of Review, DHHR’s lead witness, Patricia S. Nesbit, conceded that the sole reason for reducing Jeremy’s waiver benefits below the amount authorized in prior years was DHHR’s budgetary concerns. Ms. Nesbit admitted there had been no substantial improvement in Jeremy’s circumstances or reduction in his service needs.
165. Pursuant to the challenged policy, DHHR and Ms. Nesbit maintained during the fair hearing that although Jeremy’s needs had not changed from prior years, DHHR could nonetheless reduce Jeremy’s waiver benefits from the authorized levels he had received in prior years to the level set by APS’s algorithm-generated budget solely due to DHHR’s budget concerns.
166. The Board of Review Hearing Office adopted that contention and overruled Jeremy’s appeal.
167. As a result, Jeremy C.’s benefits have been greatly reduced, even though his need
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for 24 hour care has not changed. 168. Jeremy cannot care for himself for even a short time. His parents, who are aging
and have their own serious health issues, lack the physical ability to provide care at the intense level Jeremy needs now that his benefits and services have been reduced.
169. For example, Jeremy has a very irregular sleep pattern and is awake often throughout the night. His parents have previously utilized respite services during the night so that they can get much-needed and necessary sleep to ready themselves for the care and other demands of regular daily life.
170. DHHR’s wrongful reduction of Jeremy’s waiver benefits means Jeremy’s parents now have to care for him during the nighttime as well, denying them the sleep needed to maintain their own health and energy.
171. Without restoration of the services DHHR has reduced or terminated, Jeremy cannot long remain living with his family in safety and health.
172. To continue to receive the services Jeremy needs and which the I/DD program has been providing, Jeremy will have to move to a less integrated, institutionalized setting, in which DHHR will provide the services he has lost, but at a higher cost to the state.
173. Jeremy is therefore at serious risk of being institutionalized as a direct result of the Medicaid waiver benefit and service reductions resulting from the challenged policy. F. Plaintiff Tara R.
174. Plaintiff Tara R. is a 27 year old woman living in Parkersburg, Wood County, West Virginia. Tara R. is represented in this suit by her father and legal guardian, Harv Christian R.
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175. Tara R. has cerebral palsy, a severe intellectual disability, and limited hand functioning. She is non-verbal, non-ambulatory, and incontinent. Tara R. requires assistance with all tasks of daily living.
176. Tara’s most recent adaptive behavior assessment places her overall functioning at an age equivalent of nine months. This same report, dated September 29, 2014, shows no meaningful change in her overall service needs from prior years.
177. In fact, Tara’s levels of functioning and ability have not changed to any meaningful degree since she reached adulthood.
178. For approximately fifteen years, the I/DD waiver program provided Tara with the waiver benefits she needed to live with her father.
179. Because those benefits were provided at a level that met her actual needs, Tara R. was able throughout this period to live in a family home with her father, who works fulltime, and her step-mother, who has significant physical disabilities.
180. Continuing to live in that integrated setting remains medically appropriate for Tara, so long as the DHHR provides the community-based waiver benefits and services she needs to reside there in health and safety.
181. Tara wanted to remain in her family home, and her father wanted her to continue to live there.
182. Tara R. is a qualified individual with a disability as defined by 42 U.S.C. §12131(2) of Title II of the ADA.
183. Tara R. is entitled to continue to receive waiver benefits at levels previously authorized as necessary to meet her needs unless her circumstances change, as those benefits
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provide the services needed for her to live in the most integrated setting appropriate to her needs. 184. Beginning at least in 2013, APS’s computer algorithm has generated a yearly
waiver budget for Tara of approximately $58,000 to $62,000, regardless of the amount of waiver benefits authorized and expended to meet Tara’s actual care needs in the previous year.
185. Upon receipt of that computer-allocated budget, pursuant to the accommodation process previously available, Tara’s service coordinator would each year communicate to APS about her individual circumstances, past history of authorized benefits and services, and her individual health and maintenance needs, explaining why the algorithm-generated budget was not sufficient to provide all the services Tara needed to maintain her health, safety, and prevent an increased risk of institutionalization.
186. Prior to 2015, in each year that communication resulted in APS authorizing $70,000 to $71,000 in additional benefits, so as to provide Tara the waiver benefits and services necessary to meet her actual needs.
187. In these past years, Tara received authorized waiver benefits and services in amounts totaling $130,000 - $133,000.
188. For the 2015 budget year, APS’s algorithm assigned Tara a benefit amount of about $72,000, well below the benefit and service levels previously authorized as necessary to meet her needs.
189. As in the past, Tara’s service coordinator asked APS to reinstate benefits and services at the level of prior years, as necessary to meet her actual, on-going, health, safety, and care needs.
190. As in years past, that request was supported by documentation of Tara’s
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circumstances, service needs, and a review of the type, amount, and cost of services APS had authorized in 2014 as necessary to meet those needs and avoid increasing her risk of institutionalization.
191. However, pursuant to the challenged policy and DHHR’s elimination of the mechanism for seeking reasonable accommodation, APS rejected Tara’s submission because reinstating the benefits and service levels authorized and received in the prior year would mean exceeding his 2015 algorithm-generated budget.
192. Tara’s legal guardian appealed the reduction on Tara’s behalf, knowing that without the same level of benefits and care services Tara had received in prior years, he would be unable to maintain Tara in the only living situation she had ever known.
193. Tara’s Medicaid fair hearing was conducted on March 4, 2014. At that hearing, Tara’s representative gave evidence that her needs had not changed since the prior year and that she needed the same waiver benefits and services she had received previously if she was to remain in her home.
194. Nonetheless, the Hearing Officer denied Tara’s appeal for restoration of DHHR’s reduction in her waiver benefits, finding that DHHR
“. . . acknowledged that the Claimant received the requested amount of combined units of PCS-Agency and Respite in the previous year, but noted that the Claimant exceeded her individualized budget . . . by $71,430.89. Moreover, the IDD Waiver program as a whole exceeded its budget by more than fifty ($50) million in the previous year, and because Respondent has been directed to operate within budgetary guidelines while providing services to 4,364 recipients, individualized program budgets cannot be exceeded.” See March 9, 2014 Hearing Decision, Action No. 15-BOR-1083, a true but redacted copy of which is attached as Exhibit 4, incorporated here by reference.
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195. DHHR’s reduction of Tara’s waiver benefits by approximately $60,000 was upheld although DHHR offered no evidence that Tara’s circumstances had changed such that she no longer needed the same level of waiver benefits she had previously received, without consideration of her actual needs, the level and amount of services the state would provide her if institutionalized, or other relevant factors.
196. DHHR’s wrongful reduction in plaintiff Tara R.’s waiver benefits through application of the challenged policy meant she no longer had available the care services needed to keep her safe, healthy, and well-cared for in the family home.
197. After the hearing, Tara was moved to an emergency care facility while her service provider sought a more permanent home.
198. Tara R. now shares an ISS group home with an elderly married couple, both of whom require the use of wheelchairs and require intensive services. DHHR has currently assigned Tara approximately $126,000 in waiver benefits to provide services in the ISS facility.
199. That level of benefits is significantly more than the amount of benefits and services assigned Tara by APS’s secret algorithm in 2015 for her service needs at her father’s house.
200. Had DHHR at least reinstated Tara’s benefits to the $126,000 amount now authorized for her group home care, it might have been some time before Tara would have had to leave her family home for the less-integrated ISS facility.
201. Tara’s service coordinator reports that the move has had a negative impact on Tara; where she was previously a very happy individual, she is now lethargic and unwilling to engage with others. In addition, Tara’s roommates are not quiet during the night, and Tara is not
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getting enough sleep on a regular basis. 202. Moreover, Tara’s care needs have not changed. She cannot care for herself for
even a short period. Without an appropriate level of 24 hour care, Tara cannot live in health and safety even in her current ISS setting.
203. Tara’s service coordinator reports Tara no longer receives the same level of care and support she previously received and the amount of direct care services authorized for Tara under the ISS waiver benefit allotment is insufficient to fully meet all of Tara’s care needs this year.
204. As a result, Tara spends significantly less time in the community than she did previously. Moreover, the termination of one to one staff services places Tara and her ISS housemates at a heightened risk of danger.
205. The authorized waiver benefit level is sufficient only to provide one staff person in the ISS home during some hours, even though the facility actually houses three severely disabled waiver recipients.
206. The available staff is not sufficient to properly care for all three, and is not sufficient to provide all three the individual assistance they would need to escape in the event of a fire or other emergency.
207. As a result, Tara’s ISS placement does not provide the waiver benefits necessary to meet her needs. She has no family or friends at the ISS home to provide any “informal” support to supplement the care which I/DD provides.
208. Consequently, Tara will have to move to a less integrated, institutional setting, in which DHHR would provide those services to her, but at a higher cost to the state.
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209. Tara is therefore at serious risk of being institutionalized as a direct result of the Medicaid waiver benefit and service reductions resulting from the challenged policy.
CLASS ALLEGATIONS 210. Plaintiffs bring this action on their own behalf and on behalf of all others similarly situated, pursuant to Fed. R. Civ. P. 23(a) and (b)(2). 211. The class includes all persons who were at any time on or after October 1, 2014, or who will be, qualified individuals with disabilities resident in West Virginia who are eligible recipients of I/DD Home and Community-Based Waiver program services and are subject to a benefit and service eligibility process utilizing APS’ proprietary budget-calculation algorithm. 212. The class is so numerous that joinder of all members is impracticable. DHHR’s recently filed motion to dismiss represents that West Virginia’s program currently serves 4,534 individuals, with another 1100 eligible persons waiting for service. As the program is currently operated, APS’s algorithm will be used to determine the level of benefits and services for each of those individuals. 213. Moreover, class members are geographically dispersed throughout the length and breadth of the state, and membership is fluid as individual recipients are admitted to and leave the waiver program. 214. There are questions of law or fact common to the class. 215. Common questions of fact include the precise nature and operation of the algorithm and the challenged policy built around it, and the circumstances of the illegal and discriminatory manner in which these practices and customs have been adopted and implemented.
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216. Common questions of law include whether DHHR has thereby violated (i) the due process clause of the United States Constitution, (ii) Medicaid requirements, (iii) Title II of the Americans with Disabilities Act, (iv) Section 504 of the Rehabilitation Act, and/or otherwise illegally discriminated against plaintiffs and the absent class members under Olmstead v. L.C., 527 U.S. 581 (1999), subsequent federal cases applying Olmstead, and the federal regulations implementing the federal Medicaid and ADA/Rehabilitation Act statutes.
217. The claims of the named plaintiffs are typical of the claims of the class as a whole. They have been subjected to and suffered injury as the result of the same policy, practices, and algorithm challenged for absent class members.
218. The named plaintiffs will fairly and adequately represent and advance the interests of the class. By filing this action, the named plaintiffs, through their guardians or next friend, displayed a strong interest in vindicating the rights of all who have been similarly harmed by DHHR’s arbitrary and illegal actions. Plaintiffs must prevail if they are to maintain an integrated, community-based quality of life and avoid segregated institutionalization. By doing so, the named plaintiffs will also be advancing and proving the claims and rights of absent class members.
219. There are no antagonistic interests between plaintiffs and the absent members of the class, and the equitable relief sought by the named plaintiffs will benefit the class generally.
220. Furthermore, the named plaintiffs are represented by Mountain State Justice, Inc., a non-profit, public interest legal services firm with long and substantial expertise in class litigation on behalf of low-income West Virginians. Counsel for the putative class are knowledgeable about the Medicaid program, and are skilled in conducting civil rights litigation
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in the federal courts, including the prosecution and management of class action litigation. 221. DHHR has acted or refused to act on grounds generally applicable to the class,
thereby making appropriate final equitable relief with respect to the class as a whole. STATEMENT OF FACTS
A. General Program Framework 222. The Medicaid program, established by Title XIX of the Social Security Act, 42
U.S.C. §1396 et seq., is a cooperative federal-state program to enable the states to furnish medical assistance to individuals who are unable to meet the cost of necessary medical services. Costs of the program are shared by the federal and state governments, with the federal government contributing approximately 75% of the cost of services in West Virginia.
223. States are not obligated to participate in the Medicaid program. If a state chooses to participate, however, it must operate its program in compliance with federal statutory and regulatory requirements.
224. West Virginia has chosen to participate in the Medicaid Program. 225. Medicaid identifies certain core services that are mandatory for any participating state. In addition, states may choose to cover federally recognized/optional services, including intermediate care level services for individuals with intellectual/developmental disabilities (ICF/IID). Once a state chooses to provide an “optional” Medicaid service, compliance with all federal requirements for that service is not “optional.” B. The ICF/IID Medicaid Option 226. The ICF/IID Program is an optional Medicaid service authorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396d (a)(15). ICF/IID provides residential, health, and
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rehabilitative services for individuals with intellectual and developmental disabilities. See 42 U.S.C. § 1396d (d).
227. West Virginia has chosen to include ICF/IID services in its Medicaid state plan. 228. Since August 1989, there has been a moratorium on the development of any additional ICF/IID institutional beds in West Virginia. See W. Va. Code §16-2D-5(h). There are approximately 509 total ICF/IID beds in West Virginia and no large-scale institutions for those with intellectual disabilities. 229. Both the ICF/IID program and the Home and Community-Based Waiver program are “public services” subject to Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12161-12165. C. The Home and Community-Based Waiver Program 230. The Home and Community-Based Waiver program (waiver program) was established by Congress so that individuals who would otherwise require care in the segregated environment of a nursing home or ICF/IID facility could exercise “freedom of choice” to receive the same level of care and services in their own homes and/or in home-like settings. See 42 U.S.C. § 1396n; Senate Report No. 97-139 and House Conference Report No. 97-208, 1981 U.S. Code Cong. & Admin. News 396. 231. Waiver program regulations provide that “the Act permits states to offer, under a waiver of statutory requirements, an array of home and community based services that an individual needs to avoid institutionalization.” 42 C.F.R. § 441.300. 232. West Virginia’s waiver program is now known as the Intellectual Disabilities and Developmental Disabilities Waiver Program (I/DD Waiver Program).
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233. The I/DD Waiver Program “reimburses for services to instruct, train, support, supervise, and assist individuals who have intellectual and/or developmental disabilities in achieving the highest level of independence and self-sufficiency possible. . .The I/DD Waiver Program provides services in natural settings, homes and communities where the member resides, works and shops.” West Virginia Title XIX I/DD Waiver Home and Community-Based Services Program Operations Manual (I/DD Op. Man.) at Chapter 513.2 (Jan. 1, 2013).
234. DHHR is not covered by West Virginia’s Administrative Procedures Act. Legislative and procedural “rulemaking” by DHHR occurs through issuance and filing of new rules in the state register which are promulgated within its policy manual. At all relevant times, DHHR’s actions herein have been governed by and subject to the 2013 version of that manual.
235. I/DD Waiver Program funds may not be used for services to individuals who reside in hospitals, nursing homes, or ICF/IIDs. See 42 C.F.R. § 441.301(b)(1)(ii), 42 U.S.C. §1396n. These are all considered to be institutional settings.
236. Federal law caps the state-wide average per person cost for community-based waiver services at the average per person cost for the same level of services provided in facilities or institutions. 42 U.S.C. § 1396n(c)(2)(D).
237. According to DHHR, the 2014 state-wide average cost of providing needed health and care services to an individual in a segregated ICF/IID institution in West Virginia was $173,000 per year. The 2014 average state-wide cost of providing all needed health and care services to a waiver recipient in an integrated community-setting was no more than $85,000 per year.
238. Currently, West Virginia’s I/DD Waiver Program provides 4,534 I/DD program
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“slots” for West Virginians who are eligible for and receiving community-based services. 239. That figure has remained stagnant since 2011. During that period, the waiting list
of medically-eligible West Virginians awaiting a “slot” so they may actually begin receiving waiver benefits and services has grown to more than 1100. D. Waiver Program Renewal Process
240. West Virginia must submit an I/DD Waiver Program renewal proposal to the federal Center for Medicare and Medicaid Services (CMS) every five years.
241. West Virginia’s current waiver State Plan was approved in 2011 as an amendment to a prior plan. At all times relevant, DHHR’s lawful operation of the I/DD program remains subject to and governed by the terms, conditions, and provisions of the 2011 plan, with which DHHR must comply as a matter of law.
242. Under the 2011 plan, the named plaintiffs and the absent members of the plaintiff class are entitled to the same level of care and services the state would provide them in an ICF/IID, but have the right to receive that care and those services in a community-based, integrated setting instead, through West Virginia’s Home and Community-Based Waiver Program.
243. While DHHR has applied for a new waiver that would enact caps on certain services provided under the I/DD program, that waiver remains unapproved.
244. Publically, DHHR has sought to justify program cuts on the basis that the current cost of HCBS waiver services exceeds that portion of the overall Medicaid budget which DHHR wants to allocate for such services.
245. Despite complaints of budget shortfalls, for political reasons, DHHR has chosen
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not to request that the West Virginia Legislature appropriate additional funds for the I/DD Waiver Program in current and past state budget cycles, even though:
- (1) each extra dollar appropriated would bring in about $3.00 of federal matching funds to boost West Virginia’s economy, and
- (2) the state’s November 1, 2005 Olmstead Plan required it to seek increased funding for many aspects of the program, including increasing the number of filled “slots” (Goal/Mission 5.2); further improving reimbursement rates as needed to assure community options (Goal/Mission 6.3); and increasing services for the unserved and the underserved. (Goal/Mission 10.3)
246. The political decision to cut needed services to the most vulnerable West Virginians rather than seek increased funding has prompted a backlash, including a letter from members of the West Virginia Legislature outraged at DHHR’s failure to request the funding necessary to sustain the program in its current form. See Exhibit 5, attached and incorporated here by reference. E. Administration of the I/DD Waiver Program in West Virginia
247. DHHR, through its Bureau for Medical Services (BMS), is responsible for the administration of the I/DD Waiver program in West Virginia.
248. However, for several years DHHR has contracted with Innovative Resources Group LLC, d/b/a APS Healthcare, Inc. (APS), a New York-based company, for the day-to-day operation of the I/DD Waiver Program under DHHR supervision and responsibility.
249. Matters delegated to and performed for DHHR by APS include “processing initial applications, investigating complaints, assessing waiver members’ needs, functionality and
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supports and determining an individualized budget.” 250. APS is also responsible for providing “authorization for services that are based on
the member’s assessed needs.” 251. As the single state agency for the Medicaid program, DHHR has the duty to
monitor and supervise the operations and activities of APS in its administration and operation of the waiver program, and is responsible for APS’ operations and activities.
252. Waiver services are actually provided to individual recipients through contracts with local service provider agencies. I/DD Op. Man. at 513.2.1.
253. Each year, I/DD Waiver program recipients undergo a functional assessment by APS. That assessment supposedly reviews standardized measures of adaptive behavior in six major life areas to ensure continued medical eligibility for the I/DD Waiver Program. I/DD Op. Man. at Chapter 513.4.1.
254. If the recipient has continued medical and income/resource eligibility for Medicaid waiver services, an interdisciplinary team of care professionals put together by the local service provider agency is to develop an Individualized Program Plan (IPP) for that recipient. Id. at 513.8.
255. The IPP sets forth specific details of the individual member’s actual care needs and makes a proposed care plan for the upcoming year; in other words “what needs to be done, by whom, when and how.” Id.
256. “The content of the IPP must be guided by the member’s needs, wishes, desires and goals but based on the member’s assessed needs.” I/DD Op. Man. at 513.1 (emphasis added).
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257. In creating an IPP, the interdisciplinary team considers the array of services available through the I/DD Waiver Program, and creates a plan detailing the amount of each type of service needed to meet that recipient’s individually-assessed safety, health, and care needs. I/DD Op. Man. at 513.8. F. Determination of Individual Annual Budgets
258. The amount of waiver benefits received by an individual recipient is equal to the amount that is authorized during that budget year to provide needed services.
259. The I/DD Waiver Operations Manual does not set forth or establish eligibility criteria or standards computing the amount of waiver benefits for which an individual recipient is eligible. It provides only that APS assigns an initial amount of waiver benefits for each recipient. C.f., I/DD Op. Man. Chapter 513.1 through 513.14.
260. APS uses a proprietary computer algorithm to set waiver benefit levels for West Virginia waiver program recipients.
261. APS keeps that algorithm secret. Little is known as to what facts or legal elements the algorithm factors; the comparative weights given any element considered; the manner in which the algorithm scores or determines need; how or whether the algorithm takes into account (i) the type and amount of services an individual would receive if institutionalized, or their cost; (ii) changes or the absence of changes in the recipient’s circumstances; (iii) the existence, or lack of, or reduction in the availability of formal or informal support resources; (iv) an increased risk of institutionalization; etc.
262. It is known that the algorithm ignores the amount of benefits and services authorized and provided in the immediately preceding budget year as being necessary for that
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particular recipient to remain safe and healthy in their current living arrangement. 263. Patricia Nesbit, the Director of DDHR’s Home and Community Based Services
(HCBS) Unit and a previous Program Manager of the I/DD Waiver Program that now operates as part of her HCBS unit, recently testified under oath: “We did not say that last year’s budget was figured into the calculation . . . it was not part of the, our mat – our statistical model that we used to calculate” the algorithm budget.
264. Second, it is known that the end result of the APS algorithm calculation is not the straightforward application of statutory eligibility, payment standards, and resource criteria to an individual recipient’s financial circumstances as used to calculate TANF, SNAP, SSI, or similar benefits. Ms. Nesbit testified that the algorithm result instead is APS’s prediction of the cost of the services that person requires: “When APS assessed him they determined his needs could be met with $91,946.37.”
265. APS began using its secret algorithm to predict service costs and set waiver benefit levels in or around the fall of 2011. Service providers working with I/DD waiver program recipients soon began to notice changes from the benefit levels previously set by DHHR.
266. For example, on information and belief, providers began seeing a substantial number of recipients assigned annual budgets far in excess of amounts needed or historically expended to meet their care needs.
267. Many were under eighteen years of age, so that their care needs were met or subsidized through separate educational programs not funded through Medicaid.
268. But others were adults living at home, suddenly assigned annual budgets in amounts never previously expended or required to fully meet actual needs.
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269. Arbitrary benefit levels established without meaningful reference to or reconciliation with the actual benefit amounts previously spent to meet a recipient’s unchanged needs obscure the determination of actual program costs, and may result in longer waiting list delays.
270. Arbitrariness also effected many recipients to whom the algorithm assigned budgets substantially smaller than the total benefits received and authorized in prior years as needed to meet the recipient’s care needs, in the absence of any DHHR showing that those needs had significantly decreased.
271. However, between 2011 and late 2014, when the APS algorithm assigned an initial waiver benefit allotment insufficient to meet individualized needs, that recipient’s service coordinator could seek a reasonable accommodation between application of that general policy and an individual’s particular needs. By submitting documentation of unmet need and the total of expenditures authorized to meet those needs in the immediately prior year, and requesting that APS authorize additional waiver benefits and services over and above the algorithm-assigned budget, individual recipients had the ability to seek accommodation so as to meet the recipient’s actual needs.
272. Prior to the fall of 2014, APS routinely authorized additional benefits to reinstate the approximate level of the prior year’s benefit level when submissions showed unchanged circumstances and a recipient’s continuing need for the same level of services.
273. At one time or another, all the named plaintiffs received authorization for and waiver benefits in amounts significantly in excess of their algorithm-calculated initial waiver benefit allotment through this accommodation process.
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274. In each case, the adjustments happened because APS agreed the algorithmassigned benefit level did not adequately cover the plaintiffs’ actual need for services.
275. But for unexplained reasons, APS’s explicit authorization of continued benefits at levels of prior years, as required to serve that individual’s actual needs, had no discernible impact on the initial budget its algorithm spit out for that recipient the following year.
276. For some plaintiffs therefore, the accommodation process was a yearly event. 277. DHHR’s Memorandum of Law in Support of Motion to Dismiss Plaintiffs’ Complaint (DHHR Memo.), Dkt. #11, filed 09/14/15, represents at page 13 that it was only in 2014 that DHHR “discovered” APS had “a practice of approving services in excess of the budget.” 278. However, the 2011 State Plan allocates exactly that authority and role to APS: Through the annual assessment of each program participant, the ASO[1] compiles comprehensive data pertaining to participants’ abilities, strengths, and support needs. Statistical analysis of this data results in customized algorithms for adults and children. Through the application of these algorithms against each participant’s unique assessment data, an individualized budget is determined. The participant and his/her chosen Service Coordinator is notified of the budget amount and assessment results a minimum of 45 days prior to the participant’s annual team meeting. . . Through the ASO’s web-based application, each participant’s Service Coordinator purchases services as determined necessary by the participant’s team. Upon submission of requested services, the ASO reviews the request to ensure services/supports are within policy and program parameters and that the participant’s identified health & safety issues are addressed. Requests for services that exceed the participant’s budget allocation are negotiated and the budget adjusted as necessary so that the most clinically appropriate services/amounts of services are authorized. Quoted from 2011 Amended Waiver Plan, Appendix A, #3, p. 19 (emphasis added).
1 “Administrative Service Organization” which in West Virginia is the contracting administrator, APS.
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G. DHHR’s New Policy 279. In the fall of 2014, DHHR instructed APS not to authorize any waiver benefits or
services over and above the algorithm-set benefit level, even though the 2011 waiver state plan requires APS to perform exactly that role.
280. That order eliminated the process by which individual recipients could seek and obtain a reasonable accommodation between the algorithm-calculated budget and the most clinically appropriate services and amounts of services required by the particular circumstances of their disabilities and living circumstances.
281. Since then, APS has obediently rejected all requests to make a reasonable accommodation to the algorithm-assigned benefit level, for the stated reason that “individual program budgets cannot be exceeded.”
282. Pursuant to DHHR’s challenged policy, on or about June 10, 2015, BMS issued a memorandum to I/DD waiver service providers who manage individual recipient IPPs and provide care to meet that individual’s actual needs. The memorandum stated that DHHR would not approve any requests for new or additional services needed by I/DD waiver program recipients “UNTIL the cost of all services requested are at or below the individualized Waiver budget.” See June 10, 2015 Memo from DHHR’s Tanuia Hardy, attached as Exhibit 6, incorporated here by reference. H. The Effect of DHHR’s New Policy - The Plaintiffs
283. Each of the named plaintiffs began their 2015 waiver budget year around or shortly after the beginning of calendar year 2015.
284. In budget year 2014, each of the named plaintiffs were authorized by APS to
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receive waiver benefits and services in amounts substantially in excess of the 2014 algorithmassigned benefit level, after APS agreed that level was not sufficient to meet their individual clinical-appropriate service needs.
285. APS’s 2015 determinations of the amount of waiver benefits to be provided the named plaintiffs documented no significant change in the named plaintiffs’ abilities, functioning level, or health or care service needs since the 2014 budget year.
286. In truth, no meaningful improvement occurred in any of the circumstances of the named plaintiffs relevant to their physical or medical needs or the type and amount of services needed to meet those needs in the period between APS’s authorization of a total benefit level for 2014 and the beginning of the 2015 budget period.
287. Nonetheless, each of the named plaintiffs received an algorithm-assigned benefit level substantially less than the benefit and services level authorized by APS and received in 2014 and prior years.
288. No explanation was provided as to how that budget was calculated or why APS reduced the amount of waiver benefits and services the named plaintiffs had been previously receiving. See notices attached as Exhibit 1.
289. As in years past, the named plaintiffs’ service coordinators independently submitted requests to reinstate waiver benefits and services as authorized and received in prior years, providing documentation showing why that continuing those levels of benefits and services was necessary to meet the individual clinical service needs of the named plaintiffs.
290. However, in 2015, APS (pursuant to DHHR’s new policy) wrongly refused to reinstate the same level of waiver benefits and services previously authorized and received by the
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named plaintiffs, though DHHR had no proof that the named plaintiffs’ clinical needs or overall circumstances had changed such that the same level of benefits were no longer needed.
291. In fact, APS’s assessment of Jeremy C. and Michael T. established circumstances had significantly worsened, mitigating toward a need for additional benefits, not reduced benefits.
292. Moreover, in implementing the new policy, DHHR and APS failed to provide adequate prior notice and meaningful opportunity for a timely due process hearing and a decision based on the controlling law, as required by the Constitution and the fair hearing regulations of the Medicaid Act.
293. For instance, the standard form notices to plaintiffs and the members of the plaintiff class, exemplars of which attached here as Exhibit 1, constitute the written notice class members received that DHHR and APS were reducing their waiver benefits and services below the levels and amounts then being received by that person.
294. These form notices do not explain that DHHR is actually cutting the recipient’s benefits; do not specify the amount of the proposed cut; do not state the facts allegedly justifying the cuts, or the legal policies or reasons supporting the reduction; do not explain how a person might object to the proposed reduction, or why objection might be necessary to protect the recipient’s right to continue to receive needed services; do not explain the recipient’s right to have benefits continue at the previously-authorized level pending any appeal, etc. Cf, e.g., 42 C.F.R. §431.210; §438.404.
295. Additionally, anecdotal reports are consistent that many family members representing waiver recipients have been dissuaded from appealing, or persuaded to drop
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previously filed appeals, by DHHR and/or APS representations that appeal could result in loss or delay of all benefits and services.
296. Many adult waiver recipients – especially older persons without family support – have legal guardians or Health Care Surrogates employed in DHHR’s Office of Adult Protective Services, as overseen by APS.
297. These appointees owe fiduciary responsibilities to the waiver recipients they represent and are required to act and make decisions to assert and protect the best interests of their wards.
298. However, on information and belief, the employees of DHHR’s Office of Adult Protective Services acting as legal guardian or Health Care Surrogates for waiver recipients have been instructed by DHHR not to object to the benefit reductions suffered because of the challenged policy by those to whom they owe fiduciary duties.
299. Consequently, DHHR has guaranteed that waiver recipients similarly situated to plaintiff Michael T. have no meaningful ability to contest these benefit reductions.
300. Moreover, even for those who seek administrative review, the DHHR fair hearing process for contesting these reductions is an illegal, arbitrary, and unconstitutional sham.
301. APS, BMS, and every state actor in the appeal process, including the Board of Review, has undertaken to work in concert with DHHR to support and implement this new policy by rejecting arbitrarily any challenge to benefit reductions or terminations, based on application of the very policy being challenged, and not the laws and rules that actually govern eligibility.
302. For instance, APS for months rejected service coordinator requests to restore
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waiver benefits and services to previously received levels to continue clinically-required services for the sole reason that “assigned budgets cannot be exceeded.”
303. These rejections were contrary to the State Plan, and contrary to law, in that they result in a reduction or termination of benefits and services (i) without proof of a change in the recipient’s circumstances or evidence of reduced need; and without consideration of (ii) whether the recipient would receive those services if institutionalized, or the comparative cost thereof, and (iii) the risk of institutionalization if the services are lost.
304. Second level appeals to BMS disputing the benefit reductions and terminations in individually-needed services imposed by the challenged policy are likewise summarily rejected, on the sole justification that DHHR policy does not allow assigned budgets to be exceeded. See exemplars of BMS second level decisions gathered in Exhibit 2. These rejections are contrary to the 2011 waiver state plan, and are contrary to law, in that they result in a reduction or termination of benefits and services (i) without proof of a change in the recipient’s circumstances or evidence of reduced need; and without consideration of (ii) whether the recipient would receive those services if institutionalized, or the comparative cost thereof, and (iii) the risk of institutionalization if the services are lost.
305. Waiver recipients who seek a Medicaid fair hearing within 13 days are entitled to continue to receive benefits at the previous year’s level until the appeal is finished.
306. At the time the original complaint was filed, waiver recipients timely requesting Medicaid fair hearing on waiver benefit and service reduction appeals were being denied those continuing benefits, so that the contested benefit cuts are imposed even when timely appeals have been filed. After the filing of this action, DHHR resumed providing continuing benefits
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for those who timely appeal. 307. The West Virginia Board of Review has denied opportunity for any fair hearing at
all to at least one waiver recipient contesting his benefit reduction. That recipient’s appeal was summarily dismissed, with the Board of Review stating it lacked power to hear it because restoring benefits would exceed the algorithm-assigned budget, and state policy was that the budget could not be exceeded. See April 21, 2015 Order of Dismissal, Action No. 15-BOR-1518, a true but redacted copy of which is attached as Exhibit 7, incorporated by reference.
308. Other recipients have been granted fair hearings, and given opportunity to present evidence showing receipt of authorized waiver benefits and services in greater amounts in the prior year, the lack of any change in circumstances, and a continuing need for that level of waiver benefits and services.
309. Even when DHHR presents no proof of any meaningful change in these recipients’ circumstances, or any reduction in the need for benefits at the level previously received, the Board of Review nonetheless routinely and arbitrarily rejects these appeals, without consideration of governing rules, regulations and laws, because DHHR has instructed it that “individual budgets cannot be exceeded.” See Exhibits 3 and 4, incorporated here by reference.
310. In recent months, DHHR has begun moving to dismiss state hearing appeals, to deny appellant requests for evidence as to the algorithm and how it works, and/or to limit the issues an appellant may present on the basis that I/DD waiver is an “optional” program in which the amount and type of benefits and services for which a recipient is eligible is discretionary with DHHR, and therefore a matter of unreviewable “policy.”
311. Ms. Mary McQuain, Esq. of the Attorney General’s Office, while representing
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DHHR in a recent fair hearing, explained DHHR’s policy this way:
“Another thing about waiver, and this is really important, that a lot of people forget, is that it’s a voluntary program. It’s an optional program. And the individuals who participate in it have the freedom to choose institutional services or the IDD waiver program. And when they chose the IDD waiver program, it’s subject to all the limitations in the program. And as I mentioned, one of those limitations is the amount of the budget. . . So, even though everybody in the program needs twenty-four hour of uh supervision, the chances are that due to budget limitations that uhm few, if anyone, will actually get twenty-four hours of supervision. And, and that’s true about all the services”. . .
“So, it’s very, very clear that the budget, the overall Medicaid budget as well as the individualized budget, is uhm a policy limitation . . . then what you might have is discretion by the Bureau . . . that’s outside the limited jurisdiction of the Board of Review because only the single state agency has authority to exercise discretion in the administration of the program on program matters”. . . .
“The purpose of the [waiver] program is to supplement informal support, not to supplant them. If you want all the services that you think you’re entitled to, then maybe you should opt for an institution”. . .
“[I]n the IDD waiver program, uhm the the [inaudible 1:15:15] doesn’t really decide what to spend the budget on, it’s really up to the individual. . . So if they can’t work within their budget, that’s kind of their fault.”
312. As a result of all the foregoing, the named plaintiffs and the members of the
plaintiff class have unjustifiably and wrongly suffered, or are in imminent threat of unjustifiably
and wrongly suffering, substantial reductions in previously-authorized waiver benefits, and
termination of needed services:
- (i) without an individualized determination of need or proof of a change in
circumstances as required by under the laws and rules actually governing benefit
eligibility;
- (ii) without first being afforded the rights guaranteed them by due process and
regulations governing notice and hearing rights in Medicaid programs; and
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- (iii) in violation of their rights under the Medicaid Act, the ADA, and Section 504 of the Rehabilitation Act. 313. Each of the named plaintiffs is suffering irreparable harm and now faces a heightened risk of institutionalization as the result of DHHR’s illegal, discriminatory, and unconstitutional actions and policy that have reduced their waiver benefit levels below the amounts for which they are lawfully eligible. 314. As a result, DHHR has failed and refused, without justification, to operate and administer the I/DD waiver program so as to allow “the most integrated setting appropriate” to the meet the needs of qualified individuals with disabilities.
CLAIMS FOR RELIEF COUNT I
(42 .S.C. §1983 and Due Process) 315. DHHR may not reduce or terminate the amount of waiver benefits provided plaintiffs and the absent members of the plaintiff class without first providing adequate prior notice and opportunity for a meaningful hearing at which a decision will be rendered in conformity with the laws and regulations actually governing eligibility. 316. DHHR may not reduce or terminate the amount of waiver benefits provided plaintiffs and the absent members of the plaintiff class unless and until DHHR first establishes that a change has occurred in the recipient’s medical or financial circumstances which justifies the reduction or termination. See, e.g., Hardy v. B.H., 228 W. Va. 334, 719 S.E.2d 804 (2011). 317. Moreover, due process requires that DHHR use reasonable, ascertainable, nonarbitrary standards and procedures for calculating waiver benefit eligibility for plaintiffs and the absent members of the class:
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“[L]aw is the opposite of arbitrariness . . . It is not ipse dixit—not merely that someone in power has said so . . . if government imposes a rule without following the procedures whereby a rule obtains its official character, the final product cannot be called law; likewise, when government imposes something . . . which is nevertheless arbitrary, selfserving, ipse dixit, that, too, cannot be called law.”
318. Determining whether a recipient will continue to receive benefits and services long agreed as necessary to their health, safety, well-being, and continued freedom to live in a family or community setting, or must give up that liberty for institutionalization, is a state action that may not constitutionally depend on unreviewable administrative discretion or broad policy decisions made in the exercise of undelegated, and/or unconstitutionally delegated, executive power.
319. The APS benefit calculation algorithm utilizes secret, unpublished, nonlegislatively adopted, arbitrary standards, factors, or other bases that fail to give required weight to an individual’s actual need for waiver services, the level of benefits previously approved, the lack of any change in the recipient’s circumstances, or the laws and regulations governing eligibility.
320. Consistent with due process, DHHR may not establish, reduce, or terminate the amount of waiver benefits provided plaintiffs and the absent members of the plaintiff class based on secret, non-legislatively enacted, or arbitrary criteria.
321. Through the actions complained of above, and by official custom and policy, DHHR has employed a secret algorithm and unpublished policy to arbitrarily, unreasonably, and unfairly deprive plaintiffs and the members of the plaintiff class of the Medicaid waiver services they need, and which they have been receiving, in the absence of proof of any relevant change in the recipient’s circumstances, and without adequate prior notice or timely, meaningful hearing
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and a reasoned decision based on the governing law. 322. As a result, defendant Secretary Bowling, under color of state law, custom, or
usage, has subjected or caused plaintiffs and the absent members of the plaintiff class to be subjected to deprivation of rights, privileges, or immunities secured to them by the due process clause of the United States Constitution, to their continuing and irreparable injury without adequate remedy at law.
COUNT II (42 U.S.C. § 1983 and Medicaid Act Notice and Fair Hearing Requirements) 323. Under the federal Medicaid Act, West Virginia must afford proper, prior notice and opportunity for hearing to individuals whose claim for medical assistance is denied, reduced, terminated, or not acted upon with reasonable promptness. 42 U.S.C. § 1396a(a)(3). 324. As set forth above, as a matter of policy and custom, DHHR has implemented and enforced the challenged policy in violation of the Medicaid Act by failing to provide proper notice, or to grant the opportunity for fair hearing as required by law, to plaintiffs and the members of the plaintiff class whose claims for medical assistance have been denied, reduced, terminated, or not acted upon with reasonable promptness. 325. As a result, defendant Secretary Bowling, under color of state law, custom, or usage, has subjected, or caused plaintiffs and the absent members of the plaintiff class to be subjected, to deprivation of rights, privileges, or immunities secured to them by law, to their continuing and irreparable injury without adequate remedy at law.
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COUNT III (Americans with Disabilities Act)
326. Title II of the ADA, 42 U.S.C. §12132, provides:
“no qualified individual with a disability shall, by reason of disability, be excluded from any participation in or be denied the benefits of the servicers, programs, or activities of a public entity, or be subject to discrimination by such entity.”
327. Regulations implementing the ADA, including 28 C.F.R. §35.130(d), require that
public entities like DHHR administer services, programs, and activities to allow “the most
integrated setting appropriate” to the needs of qualified individuals with disabilities.
328. Under §35.130(b), the following constitute unlawful acts of discrimination:
(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—
(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; . . . .
(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:
(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;
(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities. . . .
(5) A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability. . . . .
(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of
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disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. (8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.
329. In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the United States Supreme Court held that a public entity violates the “integrated setting” mandate of Title II when it administers programs in a way that unjustifiably results in a heightened risk that individuals with disabilities will be forced into segregated institutionalization.
330. The named plaintiffs and the absent members of the plaintiff class are qualified persons with disabilities protected against discrimination because of their disabilities by the Americans with Disability Act.
331. DHHR is a public entity whose operation and administration of West Virginia’s I/DD Waiver program is subject to and governed by the “integration mandate” and other requirements and prohibitions of Title II of the ADA.
280. DHHR violates that mandate in several ways, including by: - denying plaintiffs and the members of the plaintiff class services the state would provide if they were institutionalized; - making it more difficult for community integrated recipients such as plaintiffs and the plaintiff class to obtain and maintain clinically needed services than it is for the institutionalized to obtain and maintain needed services; - failing and refusing to comply with the increased funding requirements of the state’s 2005 Olmstead plan;
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- utilizing an arbitrary, secret budget algorithm and unconstitutional, unconstitutionally-delegated administrative “discretion” to limit and reduce pre-existing benefit and service levels;
- and eliminating the ability or opportunity of plaintiffs and the absent members to seek and obtain a reasonable accommodation between DHHR policy and a recipient’s actual clinical needs.
332. Through the policy and actions complained of above, DHHR has discriminated and continues to discriminate against plaintiffs and the absent members of the plaintiff class in violation of 42 U.S.C. §12132, the “most integrated setting appropriate” mandate, and other substantive requirements and prohibitions of the ADA and its implementing regulations at 28 C.F.R. §35.10, so as to unjustifiably heighten their risk of institutionalization, to their continuing and irreparable injury.
COUNT IV (Section 504 of the Rehabilitation Act of 1973) 333. The I/DD Waiver program that DHHR operates in West Virginia is a “program or activity” subject to the requirements and prohibitions of Section 504 of the Rehabilitation Act of 1973. See 29 U.S.C. §794(b). 334. 29 U.S.C. §794(a) provides in pertinent part: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, 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 . . . 335. Plaintiffs and the members of the plaintiff class are qualified individuals with disabilities entitled to the protections of Section 504, including but not limited to its “most integrated setting appropriate” requirement.
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336. Through the policy and actions complained of, including those detailed in Count V, above, DHHR has discriminated and continues to discriminate against plaintiffs and the absent members of the plaintiff class in violation of 29 U.S.C. § 794, the “most integrated setting appropriate” mandate, and other substantive requirements and prohibitions of Section 504 and its implementing regulations, so as to unjustifiably heighten their risk of institutionalization, to their continuing and irreparable injury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: (a) Appoint a guardian ad litem to represent and protect the interest of plaintiff Michael T. during the pendency of this action; (b) Certify the class pursuant to Federal Rule of Civil Procedure 23(b)(2); (c) Declare Defendant in violation of the Constitution and federal laws as explained above; (d) Issue without bond a preliminary and permanent injunction:
(i) restoring plaintiffs and the members of the plaintiff class, and the operation and requirements of DHHR’s I/DD waiver program, to the status quo ante, the last uncontested status between these parties (i.e., prior to DHHR’s elimination of the reasonable accommodation process and implementation of the new policy denying needed services exceeding the algorithmcalculated budget);
(ii) enjoining Defendant from reducing I/DD waiver program benefits or services from previously authorized amounts without (1) adequate prior notice and meaningful hearing according to due process and Medicaid fair hearing requirements; or (2) in the absence of proof
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of a change in the individual recipient’s circumstances reducing her or his actual clinical needs;

(ii) from failing or refusing to provide waiver benefits at a level equal to that

provided the institutionalized, as consistent with the recipient’s actual needs and computed by

means of reasonable, public, lawfully established, and non-arbitrary standards and methods, not

through secrecy, unbridled administrative discretion, or solely on budget considerations;

(iii) to end and prevent current and future discrimination in the administration

of DHHR’s waiver program by enjoining DHHR from implementing any future reductions,

terminations, or other adverse changes in the waiver program or benefit or service levels save in

conformity with the federal statutory and regulatory requirements of the ADA and the

Rehabilitation Act;

(e) Award plaintiffs their costs and reasonable attorney’s fees in accordance with 42

U.S.C. §1988; and

(f) Grant such other and further relief to which plaintiffs or the class members may

be entitled in law or equity.

MICHAEL T., a person with diminished capacity; ERIC D., by his guardian, CONNIE D.; SARA F., by her guardians REBECCA F. and DAVID F.; JEREMY C., by his guardian, JO C.; and TARA R., by her guardian HARV CHRISTIAN R., on their own behalf and on behalf of and all other similarly situated, By Counsel,

/s/ Gary M. Smith Gary M. Smith (WV Bar # 12602)

(gary@msjlaw.org)

Lydia C. Milnes (WV Bar # 10598) (lydia@msjlaw.org) Bren J. Pomponio (WV Bar ID # 7774) (bren@msjlaw.org) MOUNTAIN STATE JUSTICE, INC. 1031 Quarrier St, Suite 200 Charleston, WV 25301

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T: (304) 344-3144 F: (304) 344-3145 Counsel for Plaintiffs

CERTIFICATE OF SERVICE I, Gary M. Smith, counsel for plaintiffs, do hereby certify that on September 28, 2015, I electronically filed this First Amended Complaint with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following CM/ECF participants who constitute counsel for defendant Bowling:

Kimberly Stitzinger Jones Office of the West Virginia Attorney General Room 250 350 Capitol Street Charleston, WV 25301

Caroline M. Brown Philip J. Peisch Shruti C. Barker Covington & Burling LLP One City Center 850 Tenth Street NW Washington, DC 20001

/s/ Gary M. Smith Gary M. Smith (State Bar ID No. 12602)

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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

MICHAEL T., et al.,
Plaintiffs,
v.
KAREN BOWLING, in her official capacity as Secretary of the WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Defendant.

CIVIL ACTION NO. 2:15-cv-09655

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiffs’ Motion for Preliminary Injunction. (ECF No. 28.) For the reasons provided herein, the Court GRANTS IN PART Plaintiffs’ Motion for Preliminary Injunction to the extent that Plaintiffs request preliminary injunctive relief pertaining to the named Plaintiffs.
I. Background This case involves an action by recipients of West Virginia’s Intellectual/Developmental Disability Home and Community Based Services waiver program (the “I/DD Waiver Program”) who are challenging reductions in their benefits that began in 2015. A. Medicaid and the I/DD Waiver Program “Medicaid is a cooperative federal-state program that provides health care to low-income families and individuals.” (ECF No. 54 at 7.) “The program is administered by the States and
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overseen by the federal Centers for Medicare & Medicaid Services . . . .” (Id. at 7‒8.) “Costs of the [Medicaid] program are shared by the federal and state governments . . . .” (ECF No. 14 ¶ 222.) “States are not obligated to participate in the Medicaid program.” (Id. ¶ 223.) “If a state chooses to participate, however, it must operate its program in compliance with federal statutory and regulatory requirements.” (Id.)
“West Virginia has chosen to participate in the Medicaid [p]rogram.” (Id. ¶ 224.) The Bureau for Medical Services (“BMS”), a part of the West Virginia Department of Health and Human Resources, “is the state agency responsible for administering the Medicaid program in West Virginia.” (ECF No. 54 at 8.)
“Medicaid identifies certain core services that are mandatory for any participating state.” (ECF No. 14 ¶ 225); see, e.g., 42 U.S.C. § 1396a(a)(10)(A); 42 C.F.R. § 440.210. “In addition, states may choose to cover federally recognized . . . optional services . . . .” (ECF No. 14 ¶ 225.) Once a state elects to provide an optional service, it must adhere to the pertinent federal statutes and regulations. (See id.)
One optional Medicaid program is “intermediate care level services for individuals with intellectual/developmental disabilities” (the “ICF/IDD Program”). (Id.) The ICF/IDD Program “provides residential, health, and rehabilitative services.” (Id. ¶ 226.) In other words, the ICF/IDD Program provides “[i]nstitutions for individuals with intellectual disabilities.” (ECF No. 54 at 9); see also 42 U.S.C. § 1396d(d) (providing that the term “intermediate care facility for the mentally retarded” means, in part, “an institution . . . for the mentally retarded or persons with related conditions if . . . the primary purpose of such institution . . . is to provide health or rehabilitative services for mentally retarded individuals”).
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“West Virginia has chosen to include” an ICF/IDD Program “in its Medicaid state plan.” (ECF No. 14 ¶ 227.) However, “West Virginia has capped the number of individuals who can receive services” through the ICF/IDD Program “at 509 since 1989.” (ECF No. 54 at 9.)
Another optional Medicaid service―which is the subject of the instant litigation―is the I/DD Waiver Program. This program is an alternative to the ICF/IDD Program and provides home and community based services “for individuals with intellectual and developmental disabilities who would be eligible to receive care” through the ICF/IDD Program. (ECF No. 54 at 10.) The I/DD Waiver Program provides “an array of . . . services that an individual needs to avoid institutionalization.” 42 C.F.R. § 441.300; (see also ECF No. 54 at 10 (providing a list of services included in the I/DD Waiver Program).) “Many I/DD Waiver [Program] members live in the homes of family members,” and “[s]ome . . . members live in an ‘[i]ntensively [s]upported [s]etting’ . . . , which is a residential home shared by one to four . . . members.” (ECF No. 54 at 11; see also ECF No. 115 at 76 (providing the testimony of Patricia Nisbet, the Director of the Office of Home and Community Based Services in BMS, in which she states that “[a]pproximately 75 percent” of “waiver members live in family homes” and the remaining “[a]pproximately 25 percent” of “members live in [intensively supported settings] or group homes”).)
West Virginia has included the I/DD Waiver Program in its state Medicaid plan. (See, e.g., ECF No. 14 ¶ 232; ECF No. 54 at 10.) The I/DD Waiver Program currently “provides 4,534 . . . program . . . slots . . . for West Virginians who are eligible for and receiving community-based services.” (ECF No. 14 ¶ 238.) There is also a waiting list of over 1,100 eligible individuals awaiting a slot in the I/DD Waiver Program. (Id. ¶ 239.)
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“BMS contracts with an administrative services organization, APS Healthcare Inc.,” (“APS”), “to help administer the I/DD Waiver [Program].” (ECF No. 54 at 10‒11.) Under their agreement, BMS delegates numerous tasks to APS, such as “monitoring the member’s health and safety,” (id. at 11), “[e]nsuring each [I/DD Waiver Program] participant’s medical eligibility is initially established and reestablished on an annual basis,” and conducting an “annual assessment of each program participant’s abilities and needs,” (ECF No. 28, Ex. 3 at 7). “Waiver services are [ultimately] provided to individual recipients through contracts with local service provider agencies.” (ECF No. 14 ¶ 252.) B. The Annual Authorization and Appeals Processes
Each I/DD Waiver Program member’s “annual service authorization begins with APS’s calculation of the member’s ‘budget.’” (ECF No. 54 at 14.) To determine each member’s budget, APS conducts an “annual assessment” for each I/DD Waiver Program participant, which includes, in part, (1) conducting an interview with members, their legal representatives, their case managers, and other interested parties, (see ECF No. 28, Ex. 3 at 73); and (2) “compil[ing] comprehensive data pertaining to participants’ abilities, strengths, and support needs,” (id. at 7; see also ECF No. 54 at 14‒15 (providing Defendant’s assertion that, as part of its assessment, “APS uses standard assessment tools (the Inventory for Client and Agency Planning and the Adaptive Behavior Assessment System) commonly used in other States to analyze the functionality of individuals receiving long-term supports and services”)).
“APS then applies a multi-variable statistical analysis” (the “APS Algorithm”), “which it . . . conduct[s] based on data specific to West Virginia, to the results of each member’s functional assessment to produce a . . . budget . . . .” (ECF No. 54 at 15; see also ECF No. 14 ¶ 265 (providing
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Plaintiffs’ assertion that APS began using the APS Algorithm to determine individualized budgets “in or around the fall of 2011”).) The APS Algorithm is proprietary to APS and, as such, the exact factors it considers, the weight it accords to each factor, and its overall methodology in determining each member’s budget are not publicly available information. (See, e.g., ECF No. 115 at 145‒50; see also id. at 145 (providing the testimony of Patricia Nisbet, in which she states that “different variables that have been determined statistically significant” are included in the APS Algorithm, as well as the member’s “age, . . . where they live, and if they’re in school or not,” but that she did not “know specifically” what factors are input into the APS Algorithm).) Once APS determines each I/DD Waiver Program member’s budget, it sends a letter to the member notifying them of their budget amount. (ECF No. 54 at 15.) Those communications do not provide any information regarding how APS reached the individualized budget determination. (See, e.g., ECF No. 108, Exs. 3‒4, 9, 13‒14, 20.)
After the member is notified of their individualized budget, “the member’s interdisciplinary team . . . meets to develop an [i]ndividualized [p]rogram [p]lan.” (ECF No. 54 at 15. See generally ECF No. 51, Ex. 1 ¶ 19 (stating that the interdisciplinary team “includes the member and a representative from the provider agency, and it may also include the member’s guardian(s) and health care professionals”).) “In creating [the plan], the interdisciplinary team considers the array of services available through the I/DD Waiver Program, and creates a plan detailing the amount of each type of service needed to meet that recipient’s individually-assessed safety, health, and care needs.” (ECF No. 14 ¶ 257; see also ECF No. 54 at 15 (stating that the individual member’s plan “details” the “member’s care needs, how much of each waiver service the member will purchase, and the schedule for receiving those services”).) The interdisciplinary
5

team “has wide discretion in how it chooses to allocate funding” to various available services. (ECF No. 54 at 15.)
Once the individualized program plan “is complete, APS reviews the [plan] to ensure it complies with BMS policies and addresses the member’s health and safety and the provider agency requests APS approval of the service levels in the [plan].” (Id. at 16.) “If the service costs in the [plan] are within the APS-calculated budget and otherwise comply with [the pertinent] policies, APS will approve service authorization requests consistent with the [plan].” (Id.)
The impetus for the present action is what occurs if the individualized program plan submitted by the member’s interdisciplinary team exceeds the member’s APS-determined budget. If the interdisciplinary team “determines funding in excess of the APS-calculated budget is necessary, the service coordinator submits requests for authorization of services to APS that exceed[] the budget.” (ECF No. 51, Ex. 1 ¶ 21.) Prior to September 2014, APS made independent determinations to grant or deny these requests for funds in excess of the budget and “routinely approved” such “service authorization requests.” (Id. ¶ 22; see, e.g., ECF No. 14 ¶ 272 (“Prior to the fall of 2014, APS routinely authorized additional benefits to reinstate the approximate level of the prior year’s benefit level when submissions showed unchanged circumstances and a recipient’s continuing need for the same level of services.”). See generally ECF No. 115 at 195 (providing the testimony of Patricia Nisbet, in which she states that “APS was still approving some people in 24-hour settings over the budget” until March 2015).)
In September 2014, employees of BMS discovered that the I/DD Waiver Program was exceeding its budget, (ECF No. 115 at 94‒96), and that APS was “approving” individualized plans “with service costs in excess of the budgets,” (ECF No. 51, Ex. 1 ¶ 22). BMS then “instructed
6

APS to cease unilaterally approving” plans “with service costs that exceeded the APS-calculated budget.” (Id.) “From that point forward, all requests for service funding in excess of the APScalculated budget were required to be approved” by BMS, (id.), through a “second level negotiation,” (id. ¶ 21. See generally id. (providing Patricia Nisbet’s statement that, “[i]f BMS determines that funding in excess of the budget is necessary to protect the member’s health and safety in the community, it will authorize service costs in excess of the member’s APS-calculated budget”)). At this second-level negotiation, employees of BMS review the member’s file, any materials attached to the request for additional funds, a recommendation from APS, and, if requested, meets with the member or other interested parties and then makes the determination whether to grant or deny the request for funding. (See ECF No. 115 at 88‒89.)
“[I]n calendar year 2014, 1,962 I/DD Waiver [Program] members were approved for funding for services in excess of their APS-calculated budgets.” (ECF No. 51, Ex. 1 ¶ 23.) However, “[i]n calendar year 2015,” a significantly smaller number of individuals―466 members―“were approved for funding for services in excess of their APS-assigned” budgets. (Id.)
If BMS denies the request for funding in excess of the budget at the second-level stage, it sends the member “a denial notice with appeal rights.” (ECF No. 54 at 16.) The waiver member may then request a “fair hearing” before the state Board of Review to appeal the second-level denial of additional funds. (See ECF No. 115 at 91‒92; see also ECF No. 54 at 16 (“A [s]tate [h]earing [o]fficer hears all appeals).) At the fair hearing, BMS and the I/DD Waiver Program member present arguments and, potentially, documentation supporting their respective positions. (See ECF No. 115 at 92‒94.) Following the fair hearing, the state hearing officer will issue their
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decision either affirming or reversing BMS’s second-level determination. (See id. at 94.) If the member is dissatisfied with the state hearing officer’s decision, their final direct appeal option is to a state circuit court. (Id.) C. The Named Plaintiffs
Prior to 2015, APS granted Plaintiffs’ requests for funding in excess of their individualized budgets. (See, e.g., ECF No. 51, Ex. 1 ¶¶ 27, 35, 43, 52, 63.) However, following BMS’s decision to make these second-level determinations in the fall of 2014, BMS denied Plaintiffs’ requests for funding that exceeded their budgets. (See, e.g., id. ¶¶ 31‒32, 38‒39, 45‒46, 54‒55, 65‒66.) These denials resulted in substantial decreases from 2014 to 2015 in the total benefits Plaintiffs received through the I/DD Waiver Program, even though Plaintiffs’ need for services did not diminish during this time period. (See, e.g., id. ¶¶ 27‒32, 35‒39, 43‒46, 52‒55, 63‒66.) This lower funding correspondingly results in a reduction of the services Plaintiffs can purchase. (See, e.g., ECF No. 30, Ex. 1 ¶ 36; id., Ex. 2 ¶¶ 53‒57; id., Ex. 3 ¶¶ 47, 57‒60; id., Ex. 4 ¶¶ 39, 43‒44.)
All of the named Plaintiffs appealed BMS’s adverse second-level decisions to the fairhearing stage. (See, e.g., ECF No. 51, Ex. 1 ¶¶ 33, 40, 47, 56, 68.) As of the preliminary injunction hearing in this case, most of the named Plaintiffs were still receiving their pre-reduction benefit levels because they were awaiting a final determination at the fair-hearing stage. (See, e.g., ECF No. 30, Ex. 1 ¶¶ 44‒45; id., Ex. 3 ¶ 62; ECF No. 51, Ex. 1 ¶¶ 68‒69.)
Plaintiffs Sara F. and Tara R. are the only named Plaintiffs who were able to complete the fair-hearing stage. (See ECF No. 30, Ex. 2 ¶ 52; id., Ex. 4 ¶ 42.) Both of these Plaintiffs received an adverse decision from the state hearing officer. (See, e.g., id., Ex. 2 ¶ 52; id., Ex. 4 ¶ 42.)
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Plaintiff Sara F. now receives her current, lower benefits level. (See, e.g., id., Ex. 2 ¶¶ 53‒57; ECF No. 51, Ex. 1 ¶¶ 47‒48.) Plaintiff Tara R. would have similarly received her lower benefits level. However, subsequent to her fair-hearing decision, Plaintiff Tara R. moved from her homebased setting into an intensively supportive setting, which requires more funding. (See, e.g., ECF No. 30, Ex. 4 ¶¶ 43‒50. See generally ECF No. 51, Ex. 1 ¶ 58 (noting that the “natural support[] from her father and stepmother are” no longer available to Tara R. with her “move to an” intensively supportive setting).) As such, Plaintiff Tara R.’s APS-calculated budget for fiscal year 2016 is greater than the amount she received prior to 2015, but she no longer lives with her family. (See, e.g., ECF No. 51, Ex. 1 ¶¶ 52, 58‒59.) D. Procedural Posture
On September 28, 2015, Plaintiffs filed the operative First Amended Complaint for Injunctive and Declaratory Relief (the “Complaint”). (ECF No. 14.) The Complaint includes allegations on behalf of a purported class of similarly-situated plaintiffs. (See, e.g., id. ¶¶ 210‒ 21.) The Complaint includes the following claims: (1) Count I―a Section 1983 due process claim under the Fourteenth Amendment, (see id. ¶¶ 315‒22); (2) Count II―a Section 1983 claim alleging that Defendant violated the Medicaid Act notice and fair hearing requirements, (see id. ¶¶ 323‒ 25); (3) Count III―a claim that Defendant violated the Americans with Disabilities Act, (see id. ¶¶ 326‒32); and (4) Count IV―a claim that Defendant violated Section 504 of the Rehabilitation Act of 1973, (see id. ¶¶ 333‒36). Plaintiffs request in the Complaint that the Court certify a plaintiff class, grant preliminary and permanent injunctive relief, and award Plaintiffs attorney’s fees and costs. (See id. at 59‒60.)
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On November 12, 2015, Plaintiffs filed their Motion for Preliminary Injunction. (ECF
No. 28.) Defendant filed her opposition to this motion on January 8, 2016, (ECF No. 54), and
Plaintiffs filed their reply in support of this motion on January 25, 2016, (ECF No. 66). 1
Subsequently, on March 11, 2016, the Court held a hearing on Plaintiffs’ Motion for Preliminary
Injunction during which both parties had the opportunity to present testimony and enter exhibits
into the record.2 (See ECF No. 98; see also ECF No. 115 (constituting the transcript of the March
11, 2016 hearing).) As such, Plaintiffs’ Motion for Preliminary Injunction has been fully briefed
and argued by the parties and is ready for disposition.
II. Legal Standard
“Rule 65 of the Federal Rules of Civil Procedure provides for the issuance of preliminary
injunctions as a means of preventing harm to one or more of the parties before the court can fully
1 By its order entered on December 14, 2015, the Court extended the deadline for Defendant to file her opposition to Plaintiffs’ Motion for Preliminary injunction to January 8, 2016. (ECF No. 46.) Similarly, by its order entered on January 14, 2016, the Court extended the deadline for Plaintiffs to file their reply in support of this motion to January 25, 2016. (ECF No. 57.) As such, both Defendant’s opposition brief and Plaintiffs’ reply brief were timely filed. 2 The Court DENIES AS MOOT Plaintiffs’ Motion to Strike, (ECF No. 94), and Defendant’s Motion to Quash Subpoena, (ECF No. 96), as the parties withdrew both of these motions during the March 11, 2016 preliminary injunction hearing. The Court further DENIES AS MOOT Defendant’s Motion to Dismiss Plaintiffs’ Complaint, which Defendant filed prior to Plaintiffs filing the currently operative Complaint. (ECF No. 10.)
Additionally, for good cause shown, the Court GRANTS Plaintiffs’ November 12, 2015 Motions for Leave to File under Seal, (ECF Nos. 24 & 30), and GRANTS IN PART Defendant’s January 8, 2016 Motion for Leave to File under Seal, (ECF No. 51) to the extent that the Declaration and Addendum contain protected health and other confidential information of the Plaintiffs. Within Exhibit 2, Ms. Nisbet’s Declaration, pages one through nine shall be made public, (ECF No. 51-1 at 1–9, ¶¶ 1–24). These paragraphs include information regarding public services and information available through the West Virginia Department of Health and Human Resources. Additionally, they address certain processes and data that do not involve Plaintiffs’ information. The rest of Exhibit 2, which deals with specific Plaintiffs and their confidential information, shall remain filed under seal, (ECF No. 51-1 at 9–20, ¶¶ 25–70). Furthermore, pages 142–4 of the Addendum to the Declaration shall be made public, (ECF No. 51-2 at 154–6). These pages include a blank hearing request form and general instructions, and none of Plaintiffs’ information is compromised by releasing these pages. The rest of the Addendum contains records, letters, and notes, relating to specific Plaintiffs and shall remain under seal, (ECF No. 51-2 at 1–153). For these reasons, the Court ORDERS the Clerk to UNSEAL and DOCKET pages 1–9, ¶¶ 1–24, of Exhibit 2 (Nisbet Declaration), and pages 142–4 of its Addendum, attached to Defendant’s January 8, 2016 Motion for Leave to File under Seal, (ECF No. 51-1 at 1–9, ¶¶ 1–24; ECF No. 51-2 at 154–6).
Finally, the Court notes that Plaintiffs’ Motion for Class Certification, (ECF No. 26), and Defendant’s Motion to Dismiss Counts III and IV and to Dismiss the Claims of Plaintiffs Michael T. and Eric D., (ECF No. 16), are both fully briefed. However, the Court shall not rule on these two motions in the instant opinion.
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adjudicate the claims in dispute.” Fred Hutchinson Cancer Research Ctr. v. BioPet Vet Lab, Inc.,
768 F. Supp. 2d 872, 874 (E.D. Va. 2011). “A preliminary injunction is an extraordinary remedy
afforded prior to trial at the discretion of the district court that grants relief pendente lite of the
type available after the trial.” Real Truth About Obama, Inc. v. FEC (Real Truth I), 575 F.3d 342,
345 (4th Cir. 2009), vacated on other grounds, 130 S. Ct. 2371 (2010), reissued as to Parts I & II,
Real Truth About Obama, Inc. v. FEC, 607 F.3d 355 (4th Cir. 2010). “The traditional office of a
preliminary injunction is to protect the status quo and to prevent irreparable harm during the
pendency of a lawsuit ultimately to preserve the court’s ability to render a meaningful judgment
on the merits.”3 United States v. South Carolina, 720 F.3d 518, 524 (4th Cir. 2013) (quoting In
re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003)); see also Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to
3 The parties disagree as to whether Plaintiffs request a prohibitory or mandatory preliminary injunction. (See ECF No. 54 at 18; ECF No. 66 at 3.) “A preliminary injunction may be characterized as being either prohibitory or mandatory.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 235 (4th Cir. 2014). “[A] preliminary injunction’s tendency to preserve the status quo determines whether it is prohibitory or mandatory.” Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013).
“Mandatory injunctive relief . . . alters the status quo by commanding or requiring a party to perform a positive act.” Perry v. Judd, 840 F. Supp. 2d 945, 950 (E.D. Va. 2012). “Mandatory preliminary injunctive relief in any circumstance is disfavored, and warranted only in the most extraordinary circumstances.” Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir. 1994) (citation omitted).
On the other hand, “[p]rohibitory preliminary injunctions aim to maintain the status quo and prevent irreparable harm while a lawsuit remains pending.” Pashby, 709 F.3d at 319. “The status quo to be preserved by a preliminary injunction . . . is not the circumstances existing at the moment the lawsuit or injunction request was actually filed, but the ‘last uncontested status between the parties which preceded the controversy.’” Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 378 (4th Cir. 2012) (quoting Stemple v. Bd. of Educ. of Prince George’s Cty., 623, F.2d 893, 898 (4th Cir. 1980)). “‘To be sure, it is sometimes necessary to require a party who has recently disturbed the status quo to reverse its actions,’ but . . . ‘[s]uch an injunction restores, rather than disturbs, the status quo ante.’” Id. (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1013 (10th Cir. 2004)). “Thus, courts of equity have long issued preliminary injunctions requiring parties to restore the status quo ante.” O Centro, 389 F.3d at 1013 (citations omitted).
In this case, Plaintiffs do not seek to alter the status quo, but, rather, to restore the status quo present prior to Defendant’s alteration to the second-level approval procedures in the fall of 2014. (See, e.g., ECF No. 14 at 59‒60.) As Plaintiffs seek only to restore the status quo to the last uncontested status between the parties which preceded the instant controversy, the Court finds that Plaintiffs seek a prohibitory injunction. See, e.g., Aggarao, 675 F.3d at 378. The Court shall therefore employ the standard applicable to prohibitory injunctions when addressing Plaintiffs’ Motion for Preliminary Injunction.
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preserve the relative positions of the parties until a trial on the merits can be held.”). “Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, 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.” Camenisch, 451 U.S. at 395. “A party thus is not required to prove his case in full at a preliminary-injunction hearing[,] and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” Id. (citations omitted).
“The Supreme Court established the standard for imposing a preliminary injunction in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 . . . (2008).” Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013). “That case requires parties seeking preliminary injunctions to demonstrate that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm, (3) the balance of hardships tips in their favor, and (4) the injunction is in the public interest.” Id. (citing Winter, 555 U.S. at 20). “[C]ourts considering whether to impose preliminary injunctions must separately consider each Winter factor,” Id. at 320, and “[a]ll four elements must be established by a ‘clear showing’ before the injunction will issue,” Imagine Medispa, LLC v. Transformations, Inc., 999 F. Supp. 2d 862, 868 (S.D. W. Va. 2014) (quoting Real Truth I, 575 F.3d at 346). “The party seeking the injunction bears the burden of providing a sufficient factual basis” for issuance of an injunction “by offering some proof beyond the unverified allegations in the pleadings.” Id. at 868‒69 (citations omitted). See generally G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 725 (4th Cir. 2016) (“[A]dmissible evidence may be more persuasive than inadmissible evidence in the preliminary injunction context . . . .”); Imagine Medispa, 999 F. Supp. 2d at 869 (“[T]he weight to be accorded affidavit testimony is within the
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discretion of the court, and statements based on belief rather than personal knowledge may be
discounted.” (citation omitted)). Preliminary injunctions involve “the exercise of very far-
reaching power” and are “to be granted only sparingly and in limited circumstances.”
MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quoting Direx Israel, Ltd.
v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir. 1991)).
III. Discussion
Plaintiffs argue that each of the Winter factors are satisfied in this case and request that the
Court enter preliminary injunctive relief. (See ECF No. 29 at 17‒44; ECF No. 66.) Defendant,
for her part, contests each of the Winter factors. (See ECF No. 54 at 18‒41.) For the reasons that
follow, the Court finds that each of the Winter factors weighs in favor of granting a preliminary
injunction in this matter.4
4 The Court notes that, while not addressed by the parties, this case potentially raises a ripeness issue insofar as Plaintiffs have not completed the full four-step administrative process to challenge their benefits determinations. In particular, while all Plaintiffs challenged BMS’s second-level determination, (see, e.g., ECF No. 51, Ex. 1 ¶¶ 33, 40, 47, 56, 68), only Plaintiffs Sara F. and Tara R. have received a decision following a fair hearing, (see ECF No. 30, Ex. 2 ¶ 52; id., Ex. 4 ¶ 42). The remaining Plaintiffs are still awaiting their fair hearing and currently receive their previous, higher benefits levels. (See, e.g., id., Ex. 1 ¶¶ 44‒45; id., Ex. 3 ¶ 62; ECF No. 51, Ex. 1 ¶¶ 68‒69.) Additionally, the record does not reflect that any Plaintiffs have appealed an adverse fair-hearing decision to the final appeals step before a state circuit court.
Of course, “[a] plaintiff . . . lacks standing if his claim is not ripe.” Pashby v. Delia, 709 F.3d 307, 317 (4th Cir. 2013); cf. Prestera Ctr. for Mental Health Servs., Inc. v. Lawton, 111 F. Supp. 2d 768, 782 (S.D. W. Va. 2000) (stating that the Fourth Circuit “has held that there is no requirement for exhaustion of state administrative remedies in Medicaid suits brought under § 1983” (citing Talbot v. Lucy Corr Nursing Home, 118 F.3d 215, 220 (4th Cir. 1997))). “The ripeness doctrine aims to ‘prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies.’” Pashby, 709 F.3d at 317 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)). “A claim should be dismissed as unripe if the plaintiff has not yet suffered injury and any future impact ‘remains wholly speculative.’” Doe v. Va. Dep’t of State Police, 713 F.3d 745, 758 (4th Cir. 2013) (quoting Gasner v. Bd. of Supervisors, 103 F.3d 351, 361 (4th Cir. 1996)).
“In determining ripeness, we balance the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration.” Id. (citation omitted); cf. Pashby, 709 F.3d at 317 (“For a claim to be ripe, ‘it must involve an administrative decision [that] has been formalized and its effects felt in a concrete way by the challenging parties.’” (alteration in original) (quoting Arch Mineral Corp. v. Babbitt, 104 F.3d 660, 665 (4th Cir. 1997))). “The fitness prong prevents a court from considering a controversy until it is presented in ‘clean and concrete form.’” King v. Sebelius, 997 F. Supp. 2d 415, 424‒25 (E.D. Va. 2014) (quoting Doe, 713 F.3d at 758). “The hardship prong is measured by the immediacy of the threat and the burden imposed on the plaintiff.” Id. (citing Doe, 713 F.3d at 758). “In considering the hardship to be balanced against the fitness of the issues for review, [courts] may consider the cost to the plaintiff of delaying review.” Doe, 713 F.3d at 759 (citation omitted).
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A. Likelihood of Success on the Merits
Under the first Winter factor, “plaintiffs seeking preliminary injunctions must demonstrate
that they are likely to succeed on the merits.” Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013)
(citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Although this inquiry
requires plaintiffs seeking injunctions to make a clear showing that they are likely to succeed at
trial, plaintiffs need not show a certainty of success.” Id. (citations omitted). Nonetheless,
“[m]erely showing that ‘grave or serious questions are presented for litigation’ will not suffice.”
Imagine Medispa, LLC v. Transformations, Inc., 999 F. Supp. 2d 862, 871 (S.D. W. Va. 2014)
(quoting Real Truth I, 575 F.3d 342, 346‒47 (4th Cir. 2009)).
Plaintiffs argue that they are likely to succeed on the merits on each of their four counts in
the Complaint. (See ECF No. 29 at 17‒42.) For purposes of the instant opinion, the Court shall
focus on Plaintiffs’ claim under 42 U.S.C. § 1983 that Defendant violated Plaintiffs’ procedural
due process rights by employing the APS Algorithm when determining Plaintiffs’ benefits. (See,
e.g., id. at 25; see also ECF No. 14 ¶¶ 315‒322.)
In the present case, Plaintiffs are challenging Defendant’s current benefits-determination process, including Defendant’s decision in the fall of 2014 to place the second-level negotiation authority in BMS and the subsequent denial of Plaintiffs’ requests for additional benefits at this stage. (See ECF No. 14 ¶¶ 315‒36 (providing Plaintiffs’ due process, Medicaid Act, Americans with Disabilities Act, and Rehabilitation Act of 1973 claims in the Amended Complaint).) While none of the named Plaintiffs have completed the full four-stage administrative appeal process and most Plaintiffs still receive their pre-reduction budgets, Defendant has nonetheless made its determinations that Plaintiffs’ benefits will be reduced and Plaintiffs face the imminent threat of reduced budgets. Cf. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (stating that “[a]n allegation of future injury may suffice” to satisfy the “injury in fact” requirement of standing “if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur” (citation omitted)). Furthermore, if Plaintiffs waited until after the reductions in benefits went into effect, they would face reduced services and potentially institutionalization while the litigation proceeded. (See, e.g., ECF No. 30, Ex. 1 ¶¶ 40‒51; id., Ex. 2 ¶¶ 53‒65; id., Ex. 3 ¶¶ 47, 56‒66; id., Ex. 4 ¶¶ 39‒49; ECF No. 51, Ex. 1 ¶¶ 63‒66.) As Defendant has made the relevant determinations at the second-level stage and Plaintiffs face the real risk of imminent potential hardship, the Court finds that this matter satisfies the ripeness requirement. See, e.g., Pashby, 709 F.3d at 317 (finding that the plaintiffs’ claims were ripe and the plaintiffs had standing where the plaintiffs contested a particular policy of the North Carolina Department of Health and Human Services, “which [was] certainly a formalized administrative decision with concrete effects”).
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“Section 1983 is a codification of § 1 of the Civil Rights Act of 1871,” Kalina v. Fletcher, 522 U.S. 118, 123 (1997), and provides the following, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983. “To remedy ongoing violations of federal law, § 1983 permits an individual to obtain injunctive relief under Ex parte Young, 209 U.S. 123 . . . (1908).” Pressley Ridge Sch., Inc. v. Stottlemyer, 947 F. Supp. 929, 938 (S.D. W. Va. 1996) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72 n.16 (1996)). “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “To maintain a § 1983 action, [a plaintiff] must show that: (1) he has been deprived of a right secured by the Constitution and the laws of the United States, and (2) that the defendants deprived him of this right while acting under ‘color of any [law].’” Tincher v. Fink, No. Civ. A. 2:03-0030, 2005 WL 1845319, at *3 (S.D. W. Va. Aug. 2, 2005) (second alteration in original) (citation omitted); see also Jenkins v. Medford, 119 F.3d 1156, 1159‒60 (4th Cir. 1997) (“Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.”). It is uncontested in this action that Defendant acted under color of law when determining Plaintiffs’ funding level for their I/DD Waiver Program benefits. As such, the focus of the instant query is whether Defendant deprived Plaintiffs of their procedural due process rights when employing the APS Algorithm in determining Plaintiffs’ budgets.
15

The Fourteenth Amendment to the United States Constitution provides, in pertinent part, that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “In order to state a claim for a violation of due process, ‘a plaintiff must allege sufficient facts to support a finding that the [plaintiff was] deprived of life, liberty, or property, by government action.’” Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 79 (4th Cir. 2016) (alteration in original) (quoting Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 109 (4th Cir. 2011)); see also Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.”). “The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citation omitted). “Only after finding the deprivation of a protected interest do [courts] look to see if the State’s procedures comport with due process.” Id. (citation omitted).
“Property interests, of course, are not created by the Constitution.” Roth, 408 U.S. at 577. “Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law―rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. “For a property interest in a certain government benefit, ‘a person must have more than an abstract need or desire for it.’” Kerr, 824 F.3d at 79 (quoting Mallette v. Arlington Cty. Emps.’ Supplemental Ret. Sys. II, 91 F.3d 630, 634 (4th Cir. 1996)). “He must have more than a unilateral expectation of it.” Roth, 408 U.S. at 577. “He must, instead, have a legitimate claim of entitlement to it.” Id. “It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily
16

lives, reliance that must not be arbitrarily undermined.” Id. The Supreme Court has found that public assistance “benefits are a matter of statutory
entitlement for persons qualified to receive them” and “[t]heir termination involves state action that adjudicates important rights.” Goldberg v. Kelly, 397 U.S. 254, 262 (1970); see also K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 972 (9th Cir. 2015) (“It is well settled that a person can have a property interest in continuing to receive government benefits.” (citations omitted)). “Such entitlements are appropriately treated as a form of ‘property’ protected by the Due Process Clause . . . .” Atkins v. Parker, 472 U.S. 115, 128 (1985).
In this case, it is uncontested that Plaintiffs qualify for benefits through the I/DD Waiver Program. The Court therefore finds that Plaintiffs have a protected property interest in continuing to receive those benefits. See, e.g., Roth, 408 U.S. at 576 (“[A] person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process.” (citing Goldberg, 397 U.S. 254)). “Thus, Plaintiffs can prevail on this claim if they can demonstrate that they have been denied due process.” Mayer v. Wing, 922 F. Supp. 902, 910 (S.D.N.Y. 1996).
“For procedural due process claims, ‘the deprivation by state action of a constitutionally protected interest in life, liberty, or property is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.’” Kerr, 824 F.3d at 80 (alteration in original) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). “Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” Snider Int’l Corp. v. Town of Forest Heights, Md., 739 F.3d 140, 149 (4th Cir. 2014) (citing Zinermon, 494 U.S. at
17

125). “Procedural due process is simply a guarantee of fair procedures―typically notice and an opportunity to be heard.” Mora v. City of Gaithersburg, Md., 519 F.3d 216, 230 (4th Cir. 2008) (citations omitted); see, e.g., Snider Int’l Corp., 739 F.3d at 146 (“At bottom, procedural due process requires fair notice of impending state action and an opportunity to be heard.” (citations omitted)). “Above that threshold, due process has no fixed content; it is ‘flexible and calls for such procedural protections as the particular situation demands.’” Mallette, 91 F.3d at 640 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). “What process is warranted in a given case depends on the balancing of,” id., the following three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Matthews v. Eldridge, 424 U.S. 319, 335 (1976) (citing Goldberg, 397 U.S. at 263‒71). In the instant matter, it is undisputed that Plaintiffs are intellectually or developmentally disabled individuals and some of the most vulnerable members of society. If Plaintiffs do not receive sufficient funding through the I/DD Waiver Program, they may receive inadequate medical and other services and potentially face the risk of institutionalization. The Court therefore finds that the private interest of Plaintiffs in receiving appropriate benefits is both substantial and selfevident. Cf. Mallette, 91 F.3d at 640 (noting that “the strength of an incapacitated employee’s interest in retirement disability benefits is self-evident”). As to the second Matthews factor, the procedures currently employed by Defendant present a serious risk of erroneous deprivations of Plaintiffs’ interest in their benefits. The APS Algorithm that ultimately determines waiver recipient’s individualized budgets is proprietary to
18

APS, so the factors incorporated into the APS Algorithm, the weight accorded to each factor, and the methodology of calculating each recipient’s benefits is unclear. (See, e.g., ECF No. 115 at 150.) The record reflects only that the APS Algorithm determines individualized budgets for waiver recipients based on “assessment tools,” “answers to questions” by waiver recipients and their guardians, and “a statistical analysis of services used by waiver members with similar characteristics in 2010.” (ECF No. 101 ¶ 6; see also id. ¶ 7 (providing that the “contract between the State and APS contemplates that APS will develop the ‘process for independently assessing . . . needs and determining a budget’ using the assessment tools,” as well as “‘[a] process to determine a waiver service allowance allocated to the member’ (i.e., the budget) for purchasing waiver services that ‘takes into account the service and the supports that will be needed by the member’” (alteration in original)); ECF No. 54, Ex. 2 ¶ 16 (providing the declaration of Patricia Nisbet, in which she states that the individualized budget is “based on the member’s functionality and family supports” and “standard assessment tools,” to which APS then “applies an algorithm . . . based on data specific to West Virginia”).) The record does not indicate what specifically is included in either the “assessment tools” or the “statistical analysis.” Patricia Nisbet―the Director of the Office of Home and Community Based Services in BMS―testified that “different variables that have been determined statistically significant” are included in this “computer mathematical equation,” as well as the recipient’s “age, . . . where they live, and if they’re in school or not.” (ECF No. 115 at 145.) Again, however, the record does not provide what these “statistically significant” variables include, and Ms. Nisbet testified that she does not “know specifically” what factors are incorporated into the APS Algorithm. (Id.; see also id. at 83 (providing Ms. Nisbet’s testimony that she is aware of “a very broad overview” of the APS
19

Algorithm, “but [she] do[es] not know the individual variables and how they are weighted”).) The Court concludes that the APS Algorithm used by Defendant when determining
Plaintiffs’ individualized budgets does not employ ascertainable standards. The record provides no information as to what factors are incorporated into the APS Algorithm, how each factor is weighted, or the overarching methodology APS utilizes in the APS Algorithm to create each I/DD Waiver Program member’s individualized budget. In short, there is simply no way to determine how the APS Algorithm generates each waiver recipient’s individualized budget. Further, absent some indication of the basis for each Plaintiffs’ benefits determination, Plaintiffs cannot meaningfully challenge this determination. Indeed, in the letters APS sends to recipients notifying them of their individualized budget, APS provides only the budget amounts and does not include any individualized rationale for the recipient’s budget allocation. (See, e.g., ECF No. 108, Exs. 3‒4, 9, 13‒14, 20.) Thus, Plaintiffs have a high likelihood of success in demonstrating that these budget determinations by APS present a serious risk of resulting in erroneous determinations and deprivations of Plaintiffs’ property interest in their benefits. See, e.g., Prestera Ctr. for Mental Health Servs., Inc. v. Lawton, 111 F. Supp. 2d 768, 779 (S.D. W. Va. 2000) (“Due process further requires that decisions regarding entitlements to government benefits must be made according to ‘ascertainable standards’ that are applied in a rational and consistent manner.” (quoting Pressley Ridge Sch., Inc. v. Stottlemyer, 947 F. Supp. 929, 940 (S.D. W. Va. 1996))); M.A. v. Norwood, 133 F. Supp. 3d 1093, 1098 (N.D. Ill. 2015) (“To ensure fairness and to prevent arbitrary decision making, due process requires eligibility for government assistance programs to be determined according to articulated standards.” (citations omitted)).
Defendant nonetheless argues that the procedures utilized subsequent to the individualized
20

budget determination provide adequate procedures under the Due Process Clause. In particular, Defendant asserts that, if a benefits recipient challenges their budget determination, Defendant “will make exceptions” and increase a recipient’s budget “where additional services are necessary to keep individuals safe and healthy in the community, and out of institutions.”5 (ECF No. 101, Ex. 1 ¶ 8; see also ECF No. 54, Ex. 2 ¶ 21 (providing the declaration of Patricia Nisbet, in which she states that “[i]f BMS determines that funding in excess of the budget is necessary to protect the member’s health and safety in the community, it will authorize service costs in excess of the member’s APS-calculated budget”).)
However, the record does not support Defendant’s assertion that, in practice, BMS follows this approach at the second-level stage. For example, the policy manual for the I/DD Waiver Program provides that recipients must purchase services within the budget. (See, e.g., ECF No. 115 at 138 (providing the testimony of Patricia Nisbet that it is “in every single definition of every single service in our manual . . . that services have to be purchased within the assessed budget”); ECF No. 14, Ex. 1 at 23 (constituting the March 9, 2015 Decision of State Hearing Officer for Tara R. at the fair hearing stage, in which the officer states that “pursuant to policy, the amount of services . . . cannot exceed the member’s individualized budget”).) The record also includes evidence that BMS rejects any requests for funding beyond an individual recipient’s budget unless there is a change in the recipient’s need for benefits that occurs after APS makes the budget determination. (ECF No. 14, Ex. 1 at 20‒24 (constituting the March 9, 2015 decision of the state
5 Following the evidentiary hearing, Defendant filed a Motion for Leave to File the Declaration of Cynthia Bean. (ECF No. 101.) The Court notes that this motion was untimely for the reasons more fully stated on the record during the March 11, 2016 hearing. Nonetheless, as discussed herein, the evidence presented in this declaration does not alter the Court’s determination regarding Plaintiffs’ likelihood of success on their procedural due process claim, as it relates to the APS Algorithm. The Court therefore GRANTS Defendant’s Motion for Leave to File the Declaration of Cynthia Bean. (Id.)
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hearing officer following Tara R.’s fair hearing in which the hearing officer upheld BMS’s decision to deny Tara R.’s request for additional funds and states that “[p]olicy provides that an individual’s annual budget can be adjusted (increased or decreased), however, budget modifications can only occur if there is a change in the individual’s assessed needs”); ECF No. 108, Ex. 8 at 3 (providing the April 1, 2015 decision of the state hearing officer following Sara F.’s fair hearing in which the hearing officer (1) states that “without a documented change in [Sara F.’s] assessed needs, her individualized budget cannot be exceeded;” and (2) upheld BMS’s determination on the basis that “the information submitted failed to support a change in [Sara F.’s] assessed needs”).)
Furthermore, in letters sent to some Plaintiffs notifying them of the denial of their request for additional benefits at the second-level stage, BMS provides only one reason for the denial of Plaintiffs’ request for additional funds―that the request would exceed Plaintiffs’ individualized budget. (See ECF No. 14, Ex. 1 at 7 (providing the April 15, 2015 letter from BMS denying Eric D.’s second-level request for additional funds); id. at 11 (constituting the January 9, 2015 letter from BMS denying Sara F.’s second-level request for additional funding); ECF No. 108, Ex. 16 (providing the March 16, 2015 letter from BMS denying Jeremy C.’s second-level request for additional funds); see also ECF No. 14, Ex. 1 at 39 (constituting an April 21, 2015 order of dismissal from a state hearing officer of the West Virginia Department of Health and Human Resources Board of Review regarding an individual who is not a named Plaintiff, in which the hearing officer states that, under “West Virginia Medicaid Policy §§ 513.9.10.1 and 513.9.8.1,” the “amount of service is limited by the member’s individualized budget,” “the issue being appealed is the member’s desire for more services than [the individual’s] annual budgetary services
22

units,” and this issue “is one of policy, which the Board of Review has no authority to change”);
cf. ECF No. 108, Ex. 19 (providing a February 17, 2016 letter from BMS to an unnamed recipient
in which BMS states that the reason for its denial of additional funding is that the recipient’s
“assessed annual budget would have been exceeded or has been exceeded, and you have not shown
that funds in excess of the budget are necessary to ensure your health and safety in the
community”); ECF No. 107, Ex. 7 ¶¶ 32, 39, 46, 55, 66 (providing the declaration of Patricia
Nisbet, in which she states that BMS denied the requests for additional funding from Plaintiffs
“because the request[s] required funding for services in excess of the APS-calculated budget” and
“the additional funding was not necessary to purchase clinically appropriate services required to
ensure [Plaintiffs’] health and safety in the community”).) This evidence indicates
that―regardless of whether Defendant has a stated policy to increase benefits at the second-level
review stage to keep individuals safe and healthy in the community―Defendant nonetheless
eschews this policy in favor of affirming the recipient’s budget, as determined by the APS
Algorithm.6
To be clear, the Court is not stating that the substance of the benefits determinations for
Plaintiffs is impermissible under the Due Process Clause. However, in the present case, the lack
of transparency surrounding the proprietary APS Algorithm renders Defendant’s individualized
6 During the preliminary injunction hearing on March 11, 2016, Patricia Nisbet testified that BMS has been affirmed at “everyone one” of the fair-hearing appeals during the 2015-2016 fiscal year. (See ECF No. 115 at 187‒88.) Based on the record available in this case, this outcome is not surprising. In particular, the available decisions by the Board of Review following fair hearings indicate that if BMS denies a recipient’s request for additional funds at the secondlevel review, the Board of Review will affirm this decision so long as the recipient’s needs did not change following the budget determination. (See, e.g., ECF No. 14, Ex. 1 at 16 & 23.) Additionally, during a fair hearing on November 4, 2015, counsel for Defendant asserted that the Board of Review did not have the authority, as a matter of “policy,” to “look behind . . . the actual establishment or approval of the individual budget allocation because that is something that’s solely the responsibility of . . . BMS.” (ECF No. 23, Ex. 3 at 70.) In short, if BMS denies a recipient’s request for additional funding in excess of the budget and the recipient does not have a subsequent change in need for services, the recipient has little to no likelihood of success at the fair hearing stage.
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budget determinations potentially―if not effectively―standardless. Such a potentially
rudderless determination creates a high risk of arbitrary and erroneous benefits determinations and,
as such, is impermissible under the Due Process Clause. See, e.g., Town of Castle Rock, Colo. v.
Gonzales, 545 U.S. 748, 792 (2005) (Stevens, J., dissenting) (“At the very least, due process
requires that the relevant state decisionmaker listen to the claimant and then apply the relevant
criteria in reaching his decision. The failure to observe these minimal procedural safeguards
creates an unacceptable risk of arbitrary and ‘erroneous deprivation[s].’” (alteration in original)
(quoting Matthews v. Eldridge, 424 U.S. 319, 335 (1976))).
Turning to the third Matthews factor―“the government’s interest and the additional
burdens that [an alternative] process would entail,” Richardson v. Town of Eastover, 922 F.2d
1152, 1161 (4th Cir. 1991)―there is little evidence in the record that Defendant would face any
form of undue burden by employing ascertainable standards when determining each waiver
recipient’s budget. Undoubtedly, the State of West Virginia currently faces challenging financial
times. (See, e.g., ECF No. 112, Ex. 1 at 39.) However, the record does not reflect that remedying
the procedural deficiencies embodied in the APS Algorithm by providing ascertainable standards
in making the individualized budget determinations would impose any form of increased fiscal or administrative burden on Defendant or the State of West Virginia.7 The Court therefore finds that
Defendant does not have a legitimate interest in continuing to use the APS Algorithm, rather than
7 The Court recognizes that the immediate effect of remedying Defendant’s deficient procedures will have an impact on the budget allocations for Plaintiffs. Nonetheless, that impact will be short-lived and only survive until the procedures comply with the requirements of the Due Process Clause.
In an unrelated section of her briefing, Defendant also asserts that Plaintiffs’ requested injunctive relief “would fundamentally alter the I/DD Waiver [P]rogram” by “transform[ing] the program into one in which the waiver members are entitled to whatever service funding is requested by the member and the IDT.” (ECF No. 54 at 35‒36.) However, the Court’s instant opinion addresses only the procedures utilized by Defendant when creating individualized budgets and, in particular, the APS Algorithm. This opinion has no bearing on the substance of Defendant’s ultimate budget determinations, nor does it divest Defendant of the authority to make this determination.
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an alternative process that employs ascertainable standards and, as such, complies with the Due Process Clause.
For these reasons, the Court finds that each of the Matthews factors weighs in favor of a finding that Defendant’s procedures in utilizing the APS Algorithm do not satisfy the requirements of procedural due process. The Court therefore finds that Plaintiffs have made a sufficient showing that they have a high likelihood of success in their claim that Defendant infringed on their procedural due process rights by employing the APS Algorithm to determine Plaintiffs’ individualized budgets. The Court now turns to the remaining preliminary injunction factors. B. Likelihood of Irreparable Harm
To receive a preliminary injunction, Plaintiffs must next demonstrate that they are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). See generally Imagine Medispa, LLC v. Transformations, Inc., 999 F. Supp. 2d 862, 872 (S.D. W. Va. 2014) (“As a general matter, temporary, episodic injuries that can be compensated by the award of money damages are not considered irreparable harms.” (citing A Helping Hand, LLC v. Balt. Cty., 355 F. App’x 773, 776 (4th Cir. 2009))). In the context of public assistance benefits, “beneficiaries . . . may demonstrate a risk of irreparable injury by showing that enforcement of a . . . rule may deny them needed medical care.” Pashby v. Delia, 709 F.3d 307, 329 (4th Cir. 2013) (citation omitted). Additionally, “numerous federal courts have recognized that the reduction or elimination of public medical benefits irreparably harms the participants in the programs being cut.” Peter B. v. Sanford, Civil Action No. 6:10‒767‒JMC‒ BHH, 2010 WL 5912259, at *9 (D.S.C. Nov. 24, 2010) (collecting cases). “In other words, institutionalization, as a result of a denial of benefits, constitutes, legally speaking, the kind of
25

harm which equitable relief is suited to enjoin.” Id.; see also M.R. v. Dreyfus, 697 F.3d 706, 729 (9th Cir. 2011) (finding that a regulation that “reduc[ed] the number of compensated hours of assistance” for an individual with “numerous mental and physical disabilities” would “exacerbate” the “risk of institutionalization” and “therefore inflicts cognizable irreparable injury for purposes of a preliminary injunction”).
In the present matter, the parties submitted contradictory evidence on the issue of whether Plaintiffs are likely to suffer irreparable harm if they do not receive preliminary injunctive relief. Plaintiffs submitted detailed factual declarations from Plaintiffs’ parents describing the limitations faced by each Plaintiff and the reasons why Plaintiffs’ current budgets based on the APS Algorithm will deprive Plaintiffs of needed services and create a risk of institutionalization.8 (See ECF No. 30, Exs. 1‒4.) Additionally, during the preliminary injunction hearing, parents of two Plaintiffs provided testimony supporting these assertions. (See ECF No. 115 at 9‒17, 27‒34, 37‒44, 55‒ 57.)
Defendant, for her part, submitted the declaration of Patricia Nisbet―the Director of the Office of Home and Community Based Services in BMS. (See ECF No. 51.) In this declaration, Ms. Nisbet describes in fairly general terms why each Plaintiff did not require additional funds beyond their APS-determined budget to remain safe and healthy in the community. (See ECF No. 51, Ex. 1 ¶¶ 31‒32, 38‒39, 45‒46, 54‒55, 65‒66.) Ms. Nisbet also provided testimony during the preliminary injunction hearing, in which she asserted in broad terms the bases for Defendant’s decision to deny Plaintiffs’ requests for additional funds. (See ECF No. 115 at 99‒104, 113‒16.)
8 The Court notes that Plaintiffs did not submit a declaration from a parent or caregiver for Plaintiff Michael T. However, it is uncontested that Michael T. will receive substantially less funding under Defendant’s current policy, which will correlate into an alteration to the services he may purchase. (See, e.g., ECF No. 51, Ex. 1 ¶¶ 63‒66.)
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At this preliminary stage, the Court finds that Plaintiffs’ claims regarding the likelihood of irreparable harm are more credible for three reasons. First, Plaintiffs’ allegations that they require services above their individualized-budget amounts to stay healthy and safe in the community are supported by APS’s repeated decisions―prior to the fall of 2014 when Defendant withdrew APS’s second-level decision-making authority―to grant Plaintiffs’ requests for funding above their budgets. (See, e.g., ECF No. 115 at 94‒97 (providing the hearing testimony of Patricia Nisbet, in which she notes that, prior to the fall of 2014, APS “approved services, the cost of which exceeded a member’s budget”).) The Court finds that these prior determinations by APS―which Defendant hired to assist in making individualized-need determinations―provide substantial support in favor of Plaintiffs’ arguments regarding the likelihood of irreparable harm. (See, e.g., ECF No. 115 at 182‒85 (providing the hearing testimony of Patricia Nisbet, in which she states that, prior to 2015, Defendant “delegate[d]” the authority to APS to approve funds above the individualized budgets); cf. ECF No. 101, Ex. 1 ¶ 12 (providing the declaration of Cynthia Beane, the Acting Commissioner of BMS, in which she states that she does “not believe that APS’s approval of requests for services in excess of the budget reflected a determination by APS that those services were, in fact, necessary to keep the waiver member safe and healthy in the community”). See generally id. ¶¶ 6‒8 (providing Ms. Beane’s description of the contract between West Virginia and APS).)
Second, Plaintiffs’ declarations and oral testimony are based on the daily, first-hand knowledge of caregivers for Plaintiffs. By comparison, Defendant’s contrary evidence is based on an administrative review of Plaintiffs’ files and, potentially, discussions with interested parties, and not the reviewer’s personal, daily interaction with Plaintiffs. (See, e.g., ECF No. 115 at 89
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(providing the hearing testimony of Patricia Nisbet, in which she describes the materials BMS reviews when making the second-level determination).) At the present preliminary injunction stage, the Court shall accord greater weight to Plaintiffs’ evidence based on first-hand knowledge and experience. Cf. Imagine Medispa, 999 F. Supp. 2d at 869 (“[T]he weight to be accorded affidavit testimony is within the discretion of the court, and statements based on belief rather than personal knowledge may be discounted.” (citation omitted)); Palmer v. Braun, 155 F. Supp. 2d 1327, 1331 (M.D. Fla. 2001) (“[A]ffidavits based on personal knowledge are accorded more weight than affidavits based upon mere belief or hearsay.” (citation omitted)).
Finally, the Court heard testimony from two parents of named Plaintiffs during the preliminary injunction hearing, as well as testimony from Patricia Nisbet on behalf of Defendant. For purposes of the instant motion, the Court finds that Plaintiffs’ testimonial evidence on the issue of likelihood of irreparable harm is more credible than Ms. Nisbet’s testimony based on the firsthand and intensely personal experiences of the parents. See generally Sunoco, Inc. (R & M) v. LSAA, Inc., No. 3:05CV239-MU, 2005 WL 2076442, at *4 n.5 (W.D.N.C. Aug. 26, 2005) (“When ruling upon a motion for preliminary injunction, the court may make credibility determinations with regard to the witnesses.” (citation omitted)); 11A Charles Alan Wright et al., Federal Practice and Procedure § 2949 (3d ed.) (“If there is a factual controversy, . . . oral testimony is preferable to affidavits because of the opportunity it provides to observe the demeanor of the witnesses.”). As such, the Court finds that the testimonial evidence during the hearing favors Plaintiffs’ assertions regarding the likelihood of irreparable harm.
For these reasons, the Court finds that Plaintiffs have demonstrated that Defendant’s second-level denial of funds above each Plaintiff’s individualized budget may deprive Plaintiffs
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of needed services and, potentially, result in institutionalization. The Court therefore finds that Plaintiffs have adequately demonstrated that they are likely to suffer irreparable harm in the absence of preliminary relief. C. The Balance of Hardships
Plaintiffs must also demonstrate “that the balance of equities tips in [their] favor” to obtain a preliminary injunction. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “In each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.’” Id. at 24 (quoting Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 542 (1987)).
Defendant argues that “[r]everting back to . . . 2014 service authorization levels would” impose a burden on taxpayers and harm the I/DD Waiver Program by threatening West Virginia’s “ability to continue to offer” enrollment to eligible individuals. (ECF No. 54 at 40.) Plaintiffs, in turn, argue that they are “the neediest, most vulnerable of West Virginia’s citizens” who are currently denied the support they require and “[v]ague fiscal complaints” do not outweigh the hardships faced by Plaintiffs. (ECF No. 29 at 43.) The Court agrees with Plaintiffs’ position.
As discussed at length above, Plaintiffs have adequately demonstrated that their current individualized budgets deprive them of needed services and create the potential for institutionalization. While Defendant notes that increasing Plaintiffs’ budgets to their pre-2015 levels may impose a financial burden on taxpayers and the I/DD Waiver Program, West Virginia’s “financial problems [do] not outweigh [Plaintiffs’] health concerns even when the state’s financial situation threaten[s] to cause the end of other Medicaid services.” Pashby v. Delia, 709 F.3d 307, 329 (4th Cir. 2013) (citation omitted); see also M.R. v. Dreyfus, 697 F.3d 706, 737 (9th Cir. 2011)
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(“[T]he balance of hardships favors beneficiaries of public assistance who may be forced to do without needed medical services over a state concerned with conserving scarce resources.” (citation omitted)). West Virginia “is free to exercise its considered judgment and reduce” I/DD Waiver Program benefits, but “it may not do so for purely budgetary reasons.” Pashby, 709 F.3d at 329 (citation omitted).
The Court is certainly sympathetic to the State’s current budgetary woes. Nonetheless, Plaintiffs are some of the most vulnerable members of society and the reduction in their services corresponding to their reduced individualized budgets must outweigh the State’s financial considerations.9 See id. The Court therefore finds that the harm to Plaintiffs’ health and safety outweighs West Virginia’s financial concerns. Accordingly, the Court finds that Plaintiffs have demonstrated that the balance of the hardships weighs in favor of preliminary injunctive relief. D. The Public Interest
Finally, Plaintiffs must demonstrate that the “injunction is in the public interest” to obtain preliminary injunctive relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “[C]ourts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. at 24 (quoting Weinberger v. Romero-Barcelo, 465 U.S. 305, 312 (1982)).
This case presents conflicting public-interest considerations. On the one hand, “there is a robust public interest in safeguarding access to health care for those eligible for Medicaid.”
9 Defendants also argue that “[r]everting to 2014 service authorization levels would . . . hurt the hundreds of waiver members who are currently authorized for funding that exceeds the funding for which they were authorized in 2014.” (ECF No. 54 at 40.) However, the instant preliminary injunction analysis pertains solely to the named Plaintiffs and any forthcoming injunctive relief would apply only to these individuals. As such, those waiver recipients whose funding was increased between 2014 and 2015 would not be impacted by such a preliminary injunction.
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Pashby, 709 F.3d at 330 (citation omitted). On the other hand, “[f]ederalism concerns are heightened when . . . a federal court decree has the effect of dictating state or local budget priorities.” Horne v. Flores, 557 U.S. 433, 448 (2009). “State and local governments have limited funds” and “[w]hen a federal court orders that money be appropriated for one program, the effect is often to take funds away from other important programs.” Id. (citation omitted).
Nonetheless, “[s]tate budgetary concerns cannot . . . be the conclusive factor in decisions regarding Medicaid.” Pashby, 709 F.3d at 331 (alterations in original) (quoting Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2009), vacated and remanded on other grounds, 132 S. Ct. 1204 (2012)). When faced with these competing public interest considerations in a similar Medicaid case, the Fourth Circuit found that the public interest weighed in favor of safeguarding the public health over a state’s fiscal considerations. See id. (“Although we understand that the North Carolina legislature must make difficult decisions in an imperfect fiscal climate, the public interest in this case lies with safeguarding public health rather than with assuaging North Carolina’s budgetary woes.”). The Court similarly finds that the public interest in safeguarding Plaintiff’s access to healthcare and needed services outweighs West Virginia’s fiscal considerations, as well as the corresponding federalism interests. Accordingly, the Court finds that Plaintiffs have demonstrated that the public interest factor weighs in favor of preliminary injunctive relief.
In summary, the Court finds that Plaintiffs have demonstrated that they are likely to succeed on the merits of their procedural due process claim relating to the APS Algorithm, they are likely to suffer irreparable harm, the balance of hardships tips in their favor, and a preliminary injunction is in the public interest. The Court therefore finds that Plaintiffs have satisfied each of
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the requirements for a preliminary injunction, see Winter, 555 U.S. at 20 (citations omitted), and
this extraordinary equitable relief is warranted in this case.10
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART Plaintiff’s Motion for
Preliminary Injunction, (ECF No. 28), to the extent Plaintiffs request a preliminary injunction
restoring the named Plaintiffs’ 2014 individualized waiver benefits.11 Accordingly, the Court
PRELIMINARILY ENJOINS AND ORDERS Defendant to reinstate the named Plaintiffs’
individualized I/DD Waiver Program budgets to the amounts Plaintiffs received in 2014, but only
for those Plaintiffs that received a reduction in their individualized budgets after 2014. The Court
ORDERS that this preliminary injunction shall remain in force and effect pending the outcome of
this action.
Further, for the reasons stated in footnote 1, the Court ORDERS the Clerk to UNSEAL
and DOCKET the following pages within Exhibit 2 (Nisbet Declaration) and its Addendum
10 As the Court finds that a preliminary injunction is warranted in this case, the final outstanding issue is the determination of the appropriate bond. Federal Rule of Civil Procedure 65(c) provides, in pertinent part, that “[t]he court may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” “[T]he district court retains the discretion to set the bond amount as it sees fit or waive the security requirement.” Pashby v. Delia, 709 F.3d 307, 332 (4th Cir. 2013) (citations omitted).
In the present matter, Plaintiffs request that the Court waive the Rule 65(c) bond requirement. (ECF No. 29 at 44‒45.) It is uncontested that Plaintiffs are some of the most vulnerable members of society who qualify for and receive benefits under the I/DD Waiver Program. Additionally, Defendant does not challenge Plaintiffs’ request for the Court to waive this requirement.
Given these circumstances and the public interest in favor of a preliminary injunction, the Court finds that it is appropriate to waive the Rule 65(c) bond requirement for the present equitable relief. Accordingly, the Court ORDERS that the Rule 65(c) bond requirement is WAIVED as to the preliminary injunction provided herein. 11 Plaintiffs also request that the Court grant “class-wide preliminary injunctive relief.” (ECF No. 29.) In conjunction with this request, Plaintiffs filed a Motion for Class Certification. (ECF No. 26.) However, in the instant opinion, the Court only addresses the merits of preliminary injunctive relief as to the named Plaintiffs and does not reach Plaintiffs’ Motion for Class Certification, nor Plaintiffs’ request for class-wide injunctive relief.
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attached to Defendant’s January 8, 2016 Motion for Leave to File under Seal: ECF No. 51-1 at 1– 9, ¶¶ 1–24; ECF No. 51-2 at 154–6.
IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to counsel of record and any unrepresented party.
ENTER: September 13, 2016
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 Case 2:15-cv-09655 Document 170 Filed 03/26/18 Page 1 of 28 PageID #: 2429

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

MICHAEL T., et al.,
Plaintiffs,
v.
BILL J. CROUCH, in his official capacity as Secretary of the WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Defendant.

CIVIL ACTION NO. 2:15-cv-09655

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Motion to Vacate or Modify Preliminary Injunction Order. (ECF No. 155.) For the reasons stated herein, the Court GRANTS IN PART the motion to the extent Defendant requests that the Court modify its previous memorandum opinion and order entered on September 13, 2016, to lift the injunction and allow DHHR to begin implementing the proposed service authorization system as to the named Plaintiffs.
I. BACKGROUND1 Plaintiffs in this case are recipients of West Virginia’s Intellectual/Developmental Disability Home and Community Based Services waiver program (“I/DD Waiver Program”) and are challenging reductions in their benefits beginning in 2015. Within West Virginia’s Medicaid

1 The factual and procedural backgrounds of this case were thoroughly explained in this Court’s memorandum opinion and order entered on September 13, 2016. (See ECF No. 122 at 1–10.) This section summarizes the background of the parties’ dispute from the Court’s previous iteration.
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plan, administered by the West Virginia Department of Health and Human Resources’ (“DHHR”) Bureau for Medical Services (“BMS”), the “intermediate care level services for individuals with intellectual/developmental disabilities” program (“ICF/IDD Program”) is an included program from the federally recognized optional services. (ECF No. 14 at 36 ¶ 225.) The ICF/IDD Program provides for individuals with intellectual disabilities institutions that offer residential, health, and rehabilitative services. (Id. at 36–37 ¶ 226; ECF No. 54 at 9.) See also 42 U.S.C. § 1396d(d). In part because West Virginia has capped participation in the ICF/IDD Program at 509 individuals since 1989, (ECF No. 54 at 9), the state implements an alternative option for individuals otherwise eligible for the ICF/IDD Program to receive home and community based services instead. This alternative program—the I/DD Waiver Program—is the subject of the current litigation.
The I/DD Waiver Program provides “an array of . . . services that an individual needs to avoid institutionalization.” 42 C.F.R. § 441.300. (See also ECF No. 54 at 10.) Many of the individuals enrolled in the program live with family members in their homes while others live in an “[i]ntensively [s]upported [s]etting,” which involves one to four program members living together in a residential or group home. (See id. at 11; ECF No. 115 at 76.) The I/DD Waiver Program currently provides open slots for 4,534 eligible West Virginians and has a waiting list of over 1,100 eligible individuals. (ECF No. 14 at 38–39 ¶¶ 238–239; see also ECF No. 155-2 at 2 ¶ 2.) BMS, as the program’s administrator, contracts with APS Healthcare Inc. (“APS”)2 to help administer the I/DD Waiver Program. (ECF No. 54 at 10–11.) BMS delegates various tasks to APS, including “monitoring the member’s health and safety,” (id. at 11), “[e]nsuring each [I/DD Waiver Program] participant’s medical eligibility is initially established and reestablished on an
2 According to the briefing, APS now operates under the corporate name Kepro. (See ECF No. 155-2 at 4 ¶ 7.) APS will still be named throughout this memorandum opinion and order’s background section in reference to the old authorization system while Kepro will be named when referring to DHHR’s newly proposed authorization system.
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annual basis,” and conducting an “annual assessment of each program participant’s abilities and needs,” (ECF No. 28-3 at 7). Contracted local service provider agencies ultimately provide individual recipients with their waiver services. (ECF No. 14 at 41 ¶ 252.)
At the time the Court issued the current injunction in this case, an I/DD Waiver Program recipient’s annual service authorization began with a calculation of their individual “budget” by APS. (ECF No. 54 at 14.) APS would conduct an “annual assessment” for participants, which included, in part, an interview with program members, their legal representatives, their case managers, and other interested parties, (see ECF No. 38-3 at 73), and a compilation of data regarding each participant’s “abilities, strengths, and support needs,” (id. at 7; see also ECF No. 54 at 14–15). APS applied a proprietary algorithm to the assessment’s results, producing an individual budget from a multi-variable statistical analysis. (ECF No. 54 at 15; see also ECF No. 14 at 43 ¶ 265.) Due to the proprietary nature of the algorithm, “the exact factors it consider[ed], the weight it accord[ed] to each factor, and its overall methodology in determining each member’s budget [were] not publicly available information.” (ECF No. 122 at 5 (citing ECF No. 115 at 145– 50).) After a recipient’s individual budget was determined, APS would send a letter to that member notifying him or her of the budget amount without explanation as to how that number was determined. (ECF No. 54 at 15; see, e.g., ECF No. 108, Exs. 3, 4, 9, 13, 14, 20.)
Once notification of an individual’s budget was received, the member’s “interdisciplinary team” (“IDT”), consisting of the member, a representative from the provider agency, and possibly “the member’s guardian(s) and health care professionals,” met to create an “Individualized Program Plan” (“IPP”). (ECF No. 51-1 at 8 ¶ 19; ECF No. 54 at 15.) The IPP detailed “each type of service needed to meet that recipient’s individually-assessed safety, health, and care needs.” (ECF No. 14 at 42 ¶ 257; see also ECF No. 54 at 15.) APS reviewed the completed IPP to ensure
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compliance with BMS policies, and if the costs of the requested services fell within the APScalculated budget and complied with BMS policies, then “APS [would] approve service authorization requests consistent with the [IPP].” (ECF No. 54 at 16.)
If an IPP determined that necessary services cost in excess of the APS-determined budget, however, then “the service coordinator submit[ted] requests for authorization of services to APS . . . .” (ECF No. 51-1 at 9 ¶ 21.) Before September 2014, “APS made independent determinations to grant or deny these requests for funds in excess of the budget and ‘routinely approved’ such ‘service authorization requests.’” (ECF No. 122 at 6 (citing ECF No. 51-1 at 9– 10 ¶ 22; ECF No. 14 at 44 ¶ 272).) Once BMS discovered in September 2014 that the I/DD Waiver Program was exceeding its budget and that APS was “approving” IPPs “with service costs in excess of the budgets,” (ECF No. 115 at 94–96; ECF No. 51-1 at 9 ¶ 22), BMS instructed APS to “cease unilaterally approving” IPPs that included service costs in excess of the APS-calculated budget. (See ECF No. 51-1 at 9 ¶ 22.) Thereafter, requests for funding in excess of the APScalculated budget required approval by BMS through a “second[-]level negotiation.” (Id. ¶ 21.) This second-level negotiation involved BMS employees reviewing the recipient’s file, attached materials, and an APS recommendation, as well as, if requested, meeting with the recipient and interested parties before deciding whether to grant or deny the funding request.3 (ECF No. 115 at 88–89.)
Upon denial of a request for funding in excess of the APS-calculated budget via the secondlevel negotiation, BMS sent the member a notice containing appeal rights. (ECF No. 54 at 16.) To exercise his or her right to appeal the second-level denial, the member could request a fair
3 To highlight the effect that the second-level negotiation had on the number of approved IPPs when requested services cost more than the APS-calculated budget, Patricia Nisbet, BMS Director of the Office of Home and Community Based Services, provided in a declaration that 1,962 I/DD Waiver Program members were approved under these circumstances in 2014 while only 466 similarly were approved in 2015. (ECF No. 51-1 at 10 ¶ 23.)
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hearing before West Virginia’s Board of Review. (ECF No. 115 at 91–92; see also ECF No. 54 at 16.) The BMS and I/DD Waiver Program member could present arguments at the fair hearing as well as any supporting documentation. (See ECF No. 115 at 92–94.) The Board of Review then issued its decision affirming or reversing the second-level determination by BMS. (Id. at 94.) If dissatisfied with that decision, the member retained the option of filing a final direct appeal to a state circuit court. (Id.)
II. CURRENT INJUNCTION Before addressing the legal standard under which Defendant’s motion must be analyzed, the Court first will reflect on the current injunction’s purpose and the injustice that it was intended to prevent. This Court’s memorandum opinion and order entered on September 13, 2016, granted Plaintiffs’ request for a preliminary injunction and ordered Defendant “to reinstate the named Plaintiffs’ individualized I/DD Waiver Program budgets to the amounts Plaintiffs received in 2014, but only for those Plaintiffs that received a reduction in their individualized budgets after 2014.” (ECF No. 122 at 32.) In that memorandum opinion’s discussion, the Court found that each of the Winter factors weighed in favor of granting the preliminary injunction.4 (See id. at 14–32.) For the purposes of the first Winter factor related to whether Plaintiffs were likely to succeed on the merits, the Court focused on “Plaintiffs’ claim under 42 U.S.C. § 1983 that Defendant violated Plaintiffs’ procedural due process rights by employing the APS Algorithm when determining Plaintiffs’ benefits.” (Id. at 14.) The Court found that Plaintiffs have a protected property interest in continuing to receive benefits from the I/DD Waiver Program and that “the procedures currently
4 As explained in the memorandum opinion, the current standard for imposing a preliminary injunction was established by the Supreme Court in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and requires a party seeking this extraordinary relief to demonstrate that “(1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm, (3) the balance of hardships tips in their favor, and (4) the injunction is in the public interest.” (ECF No. 122 at 12 (quoting Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013) (citing Winter, 555 U.S. at 20)).)
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employed by Defendant present a serious risk of erroneous deprivations of Plaintiffs’ interest in
their benefits.” (See id. at 17–20.)
Specifically, the Court emphasized the most significant due process concerns related to the
APS Algorithm in the following passage:
The Court concludes that the APS Algorithm used by Defendant when determining Plaintiffs’ individualized budgets does not employ ascertainable standards. The record provides no information as to what factors are incorporated into the APS Algorithm, how each factor is weighted, or the overarching methodology APS utilizes in the APS Algorithm to create each I/DD Waiver Program member’s individualized budget. In short, there is simply no way to determine how the APS Algorithm generates each waiver recipient’s individualized budget. Further, absent some indication of the basis for each Plaintiff[’s] benefits determination, Plaintiffs cannot meaningfully challenge this determination. Indeed, in the letters APS sends to recipients notifying them of their individualized budget, APS provides only the budget amounts and does not include any individualized rationale for the recipient’s budget allocation. Thus, Plaintiffs have a high likelihood of success in demonstrating that these budget determinations by APS present a serious risk of resulting in erroneous determinations and deprivations of Plaintiffs’ property interest in their benefits.
(Id. at 20.) Beyond the secrecy surrounding the APS Algorithm and its inputs, the Court also
addressed concerns with the way BMS handled a recipient’s challenge to his or her budget
determination. (See id. at 20–24 (“This evidence indicates that—regardless of whether Defendant
has a stated policy to increase benefits at the second-level review stage to keep individuals safe
and healthy in the community—Defendant nonetheless eschews this policy in favor of affirming
the recipient’s budget, as determined by the APS algorithm.”).) Ultimately, the Court found that
“the lack of transparency surrounding the proprietary APS Algorithm renders Defendant’s
individualized budget determinations potentially—if not effectively—standardless.” (Id. at 23–
24.)
After finding that the procedure used by Defendant presented substantial due process
concerns, the Court went on to find little evidence “that Defendant would face any form of undue
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burden by employing ascertainable standards when determining each waiver recipient’s budget” and that Defendant did not have a legitimate interest in further use of the APS Algorithm. (Id. at 24.) As to the remaining Winter factors, the Court found that (1) Plaintiffs were likely to suffer irreparable harm in the absence of an injunction, (2) “the harm to Plaintiffs’ health and safety outweigh[ed] West Virginia’s financial concerns,” and (3) “the public interest in safeguarding Plaintiff[s’] access to healthcare and needed services outweigh[ed] West Virginia’s fiscal considerations” and federalism interests. (See id. 25–32.) Thus, Plaintiffs adequately demonstrated a need for the preliminary injunction, and the Court ordered the extraordinary equitable relief. (Id. at 31–32.)
Defendant filed the current motion on May 12, 2017, based on a change in circumstances after developing a new service authorization system. (ECF No. 155.) Plaintiffs responded on May 31, 2017, pursuant to a Court order extending the deadline to file a response, (ECF No. 163), and Defendant filed his reply brief on June 7, 2017, (ECF No. 167). As such, the motion is fully briefed and ripe for adjudication.
III. LEGAL STANDARD The prospective features of an injunction entered by a district court may be modified under Federal Rule of Civil Procedure 60(b).5 See, e.g., Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 380–93 (1992); see also Dombrowski v. Pfister, 380 U.S. 479, 492 (1965) (citations omitted) (“[T]he settled rule of our cases is that district courts retain power to modify injunctions in light of changed circumstances.”); Thompson v. U.S. Dep't of Hous. & Urban Dev., 404 F.3d 821, 825–
5 Rule 60(b) allows for relief from a judgment where “the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable . . . .” Fed. R. Civ. P. 60(b)(5). As the Supreme Court noted in Horne v. Flores, the “[u]se of the disjunctive ‘or’ makes it clear that each of the provision’s three grounds for relief is independently sufficient and therefore that relief may be warranted even if petitioners have not ‘satisfied’ the original order.” 557 U.S. 433, 454 (2009). The rule also allows for relief based on “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).
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26, 830 (4th Cir. 2005). Pursuant to Rule 60(b)(5), which encompasses courts’ “inherent authority to modify a consent decree or other injunction,”6 see Thompson, 404 F.3d at 826, 830, a court may find that the injunction’s purpose and prospective application may no longer be equitable given a “significant change in circumstances,” whether those be factual or legal changes. Rufo, 502 U.S. at 380, 383 (noting that this standard is “less stringent” and “more flexible” than the Court’s previous iterations of the rule for modifying injunctions). The Fourth Circuit has long held that “an injunctive order may be modified or dissolved in the discretion of the court when conditions have so changed that it is no longer needed or as to render it inequitable.” Tobin v. Alma Mills, 192 F.2d 133, 136 (4th Cir. 1951) (citations omitted); see also Alexander v. Britt, 89 F.3d 194, 197 (4th Cir. 1996) (“[A] district court’s task is to determine whether it remains equitable for the judgment at issue to apply prospectively and, if not, to relieve the parties of some or all of the burdens of that judgment on ‘such terms as are just.’”). “A court errs when it refuses to modify an injunction or consent decree in light of such changes.” Agostini v. Felton, 521 U.S. 203, 215 (1997) (citation omitted); see also Nelson v. Collins, 700 F.2d 145, 146–47 (4th Cir. 1983) (citations omitted) (“Because the district court substantially modified the original injunction without finding that any change had occurred, we must vacate its order . . . . If the state fails to prove such changes, the original injunction may not be disturbed.”).
Determining a change in circumstances necessitating relief from an existing injunction involves a flexible test, and the party seeking relief bears the burden of showing such a change.
6 The Fourth Circuit noted in the following passage from Thompson that “[t]he hallmark of equity, of course, is its flexibility:”
The essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action. Equitable remedies must be flexible if these underlying principles are to be enforced with fairness and precision. 404 F.3d at 830 (quoting Freeman v. Pitts, 503 U.S. 467, 487 (1992)) (citation omitted).
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See Horne v. Flores, 557 U.S. 433, 450 (2009). District courts consider several factors when deciding whether to modify or dissolve an injunction, including the following:
(1) the circumstances leading to entry of the injunction and the nature of the conduct sought to be prevented; (2) the length of time since entry of the injunction; (3) whether the party subject to its terms has complied or attempted to comply in good faith with the injunction; (4) the likelihood that the conduct or conditions sought to be prevented will recur absent the injunction; (5) whether the moving party can demonstrate a significant, unforeseen change in the facts or law and whether such changed circumstances have made compliance substantially more onerous or have made the decree unworkable; and (6) whether the objective of the decree has been achieved and whether continued enforcement would be detrimental to the public interest. Crutchfield v. U.S. Army Corps. of Eng’rs, 175 F. Supp. 2d 835, 844 (E.D. Va. 2001) (citing Alexander, 89 F.3d at 197; Bldg. & Constr. Trades Council of Phila. & Vicinity v. NLRB, 64 F.3d 880, 888 (3d Cir. 1995); 42 Am. Jur. 2d § 312 (Injunctions); 12 James Wm. Moore et al., Moore’s Federal Practice § 60.47[2][c] (3d ed. 1999)). The consideration of public interest may be heightened in cases of public institutional reform. See Rufo, 502 U.S. at 392; see also Horne, 557 U.S. at 448 (“Such litigation commonly involves areas of core state responsibility . . . . Federalism concerns are heightened when, as in these cases, a federal court decree has the effect of dictating state or local budget priorities.”). While some courts have emphasized the importance of judgment finality, most agree that this is more important in private litigation than institutional reform cases. See 12 James Wm. Moore et al., Moore’s Federal Practice § 60.47[2][c] (3d ed. 2017) (collecting cases); see also Rufo, 502 U.S. at 381 (noting that “the public interest is a particularly significant reason for applying a flexible modification standard in institutional reform litigation because such decrees reach beyond the parties involved directly in the suit and impact on the public’s right to the sound and efficient operation of its institutions”). The factors considered by a district court may vary depending on whether the relief sought is a complete dissolution of the injunction or only a modification of the injunction. See 12 James
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Wm. Moore et al., Moore’s Federal Practice § 60.47[2][c] (3d ed. 2017). For example, if a party is seeking modification of an injunction, relief may be justified on a wide variety of circumstances and should be “tailored to resolve the problems created by the change in circumstances.” Rufo, 502 U.S. at 391. Otherwise, if a party is seeking to set aside an injunction, then it must show that the decree has served its purpose and that there is no longer any need for the injunction. See Bd. of Educ. v. Dowell, 498 U.S. 237, 247 (1991) (noting that a finding that the school district “was being operated in compliance with the commands of the Equal Protection Clause . . . and that it was unlikely that the school board would return to its former ways” meant that the litigation’s purposes “had been fully achieved”). Notably, simple compliance with an injunction’s terms, even for an extended period, is not alone sufficient to justify the injunction’s termination. See SEC v. Coldicutt, 258 F.3d 939, 941–45 (9th Cir. 2001) (finding that nine years of full compliance with the injunction coupled with evidence that the defendant’s trading licenses expired and that she had left the securities field did not amount to a change in circumstances requiring relief from the district court’s injunction).
In addition to the standard set forth in subsection (5) of Rule 60(b), subsection (6) provides that the Court may grant relief for “any other reason that justifies relief.” This catchall provision “may be invoked in only ‘extraordinary circumstances’ when the reason for relief from judgment does not fall within the list of enumerated reasons given in Rule 60(b)(1)–(5).” Aikens v. Ingram, 652 F.3d 496, 500 (4th Cir. 2011) (citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n.11 (1988)). “[I]t provides the court with a grand reservoir of equitable power to do justice in a particular case and vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice where relief might not be available under any other clause in 60(b).” Compton v. Alton S.S. Co., Inc., 608 F.2d 96, 106–07 (4th Cir. 1979).
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Pursuant to this standard, the question before the Court becomes whether the injunction entered on September 13, 2016, has outlasted its efficacy and purpose. In other words, the Court must determine whether DHHR’s proposed authorization system, which the agency is prepared to begin implementing, removes the necessity for the previously ordered immediate and equitable relief.
IV. DISCUSSION A. Defendant’s New Proposal Defendant has notified the Court and carefully explained in Exhibit One attached to the current motion that DHHR developed a “new service authorization system” set for implementation that it believes satisfies the Court’s concerns expressed in the previous memorandum opinion and order granting the preliminary injunction. (See ECF No. 155-1; ECF No. 156 at 6–12.) The changes to the service authorization system include replacement of the proprietary algorithm with matrices employing a number of clearly identified variables based on a combination of a member’s living situation and answers to specific questions during the member’s annual assessment. (See ECF No. 156 at 7.) In addition to the development of this matrix model, Defendant avers that individual members will be able to review and check the accuracy of answers used in calculating where they fall within the “budget matrix.” (See id. at 8.) Further, DHHR has updated its Budget Letter that informs members of an “individualized rationale for the recipient’s budget allocation.” (Id.) If the member believes there is a mistake in how the budget matrix was applied, then he or she may challenge the calculation first “by bringing the error to DHHR’s attention,” and further “by requesting a Medicaid Fair Hearing.” (Id. at 9.) Moreover, Defendant provides that DHHR has created “a new Exceptions Process designed to evaluate and accommodate requests from individuals who believe they require services beyond what can be purchased within the budget.” (Id.) Lastly, Defendant states that “DHHR has revised and will further clarify its policies to make
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clear that services in excess of the budget can be authorized when necessary to avoid a heightened risk of institutionalization.” (Id. at 11 (citing ECF No. 155-1 at 10–11).)
Defendant states that the newly developed service authorization process, which he insists is transparent, clear, and accurate, is based on an annual assessment conducted for each I/DD Waiver Program member. (See ECF No. 155-1 at 2–3.) Kepro, formerly known as APS, will meet with a member’s IDT to complete an Inventory for Client and Agency Planning (“ICAP”) assessment related to the member’s “health, functionality, and behavior.” (Id. at 3.) That meeting will also involve the completion of an Adaptive Behavior Assessment System II (“ABAS II”) form and a “[s]tructured [i]nterview” that is “more robust and detailed” than before. (Id. at 3–4.) In terms of how each individual’s budget will be calculated, Defendant provides the following:
1. Each year, each member receives a base budget range, determined by the member’s setting;
2. Each member will receive additional funding if they exhibit one or more of the traits identified as statistically significant through a regression analysis completed by the Lewin Group.7 This will be determined by the annual ICAP assessment responses, which is completed by Kepro at the annual assessment, with assistance from the individual’s IDT Team and family. The IDT Team and the Family will have the opportunity to review the form before it is used to develop the budget.
(Id. at 4.) Based on the annual assessment and taking into consideration the individual’s living
situation, he or she is given a base budget range.8 (See id. Table 1.) Defendant states that the
7 Defendant notes that the Lewin Group is a national health care consulting firm that DHHR hired “to analyze the data provided by these annual assessments and actual expenditures for each waiver member in 2016, in order to identify characteristics that are statistically significant drivers of spending.” (ECF No. 156 at 6–7 (explaining that “[t]he Lewin Group determined that the statistically significant variables driving spending are: an individual’s living situation; Asocial Problem Behaviors; Externalized Problem Behaviors; Adaptive Behaviors for Motor Skills; and Adaptive Behaviors for Personal Living Skills”); see also ECF No. 155-1 at 7–8; ECF No. 155-2 at 4 ¶ 7.) 8 Defendant presents the following table with the currently proposed base budget ranges:
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budget ranges will be “based on a matrix that will be publicly available and is easily understandable . . . .” (ECF No. 156 at 5.) The information gained during Kepro’s annual assessment allows for various “add-ons” at or below designated maximum amounts within four categories: Externalized Problem Behavior; Asocial Problem Behavior; Adaptive Behavior: Motor Skills; and Adaptive Behavior: Personal Living Skills.9 (See ECF No. 155-1 at 5.) “In order to
(ECF No. 155-1 at 4.) Defendant notes that these budget ranges, in addition to the add-on values, see infra note 9, will be “re-base[d] . . . after the first year of implementation, and then annually or bi-annually thereafter.” (Id. at 8.) This re-basing serves to “make the model even more accurate over time.” (Id.) 9 Defendant explains in Exhibit One attached to the motion how, “of the hundreds of factors [the Lewin Group] analyzed,” these four variables were chosen in addition to considering a waiver member’s living situation as follows:
To develop this model, Lewin analyzed spending data collected by DHHR for the 2016 IPP year, and compared each individual’s spending with that individual’s setting, functionality, and behavioral information, reported through the State’s yearly assessment tests. Using this data, Lewin ran several regression models to identify the variables that were statistically significant in explaining members’ spending patterns across the program. (ECF No. 155-1 at 7.) The various add-on amounts available to waiver members are denoted in the following table:
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provide full and clear transparency as to how each individual’s budget is calculated, DHHR plans to release the base budgets and add-on amounts on its website, along with an explanation for how the budgets are calculated . . . .” (Id. at 8.)
The budget calculated by Kepro may not result in an individual’s final budget if the figure is more than 20% above or below the individual’s “2016 IPP year’s spend.”10 (See id. at 5–6.)
(Id. at 5.) Employing this chart in addition to the base budget range chart provided above, see supra note 8, Defendant provides the following example:
[A]n individual who lives in a natural family setting, and exhibits “extremely serious externalized problem behavior[],” and has a “motor skills” functioning level of 4, would have a budget equal to: the base budget for living in a family home and the add-on amounts associated with “extremely serious externalized problem behavior[]” and “motor skills Level 4.” This would yield a budget range between $47,087 and $53,035. A waiver member receiving this budget will be able to spend up to $53,035 in the waiver program, unless the member is authorized to receive additional services through the Exceptions Process . . . . (ECF No. 156 at 7.) The Court notes that the calculation in the above example, based on the charts provided, appears incorrect. A budget determined by “the base budget for living in a family home and the add-on amounts associated with ‘extremely serious externalized problem behaviors’ and ‘motor skills Level 4,’” (id.), actually yields a budget range between $48,406 ($38,283 + $4,287 + $5,836) and $54,354 ($44,231 + $4,287 + $5,836). The calculation in Defendant’s memorandum of law mistakenly incorporates the add-on amount associated with “moderately serious or slightly serious externalized problem behavior” as opposed to “extremely serious externalized problem behavior.” Nonetheless, the example illustrates how an individual’s situation is used to calculate his or her base budget under the new system. 10 Defendant provides data showing that 35.2% of the waiver population will receive budgets under the new model that are greater than 20% above their 2016 IPP spend amount. (See ECF No. 155-1 at 7.) This percentage of the population would be assigned a budget capped at 120% of their 2016 IPP spend pursuant to the stop-gain policy.
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This “stop-loss/stop-gain policy” assigns to a member a budget that is 80% of the 2016 IPP year spend amount if the calculated budget would otherwise be less than that amount. (See id. at 5.) Similarly, a member’s budget will be capped at 120% of the 2016 IPP year spend if the new budget calculation yields an amount higher than that. (See id.) The stop-loss/stop-gain policy applies year to year “so long as the member does not change his or her living setting or otherwise ha[s] a significant change in circumstances.” (Id. at 6.) This policy takes into account the previous year’s budget unlike the proprietary algorithm subject to the injunction, which Plaintiffs criticized in their First Amended Complaint (“Complaint”) for “ignor[ing] the amount of benefits and services authorized and provided in the immediately preceding budget year . . . .” (See ECF No. 14 at 42– 43 ¶¶ 262–263, 43–44 ¶¶ 268–269, 45 ¶ 275.)
Once an individual’s budget is finalized either by the matrix calculation or by the stoploss/stop-gain policy, the member will be sent a budget letter that sets out the budget amount and “a short, clear explanation for how the budget was calculated.” (ECF No. 155-1 at 6; see also ECF No. 155-1 at 13–16; ECF No. 156 at 5 (arguing that “notices will be revised to clearly identify the factors that resulted in the individual’s budget”).) This budget letter will explain why a budget has changed from the prior year, if it has, and what information from the ICAP assessment led to that change. (ECF No. 155-1 at 6.) The budget letter will also explain the stop-loss/stop-gain policy if it has been applied to a particular member’s budget, or it may explain why an individual has become ineligible for the policy based on a changed setting or significant change in health circumstances. (See id.) The budget letter will inform the individual that their ICAP assessment is with their service coordinator and that they and their guardian have the right to review that assessment and contact DHHR if they believe the budget determination is inconsistent with their
Conversely, the data shows that “6.8% of the population will receive budgets that are 20% or more below their 2016 spend. Any decreases in these members’ budgets will be capped at 20% under the stop-loss policy.” (Id.)
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ICAP answers. (See id.; ECF No. 156 at 5 (noting that “waiver members, their families or guardians, and service coordinators will have an opportunity to review and confirm the information that was used in determining the budget”).) DHHR will retain the ability to “immediately review . . . and correct any errors” brought to its attention by the individual if it agrees the inputs were in error. (ECF No. 155-1 at 6.) This new budget letter appears to alleviate the concerns raised in Plaintiffs’ Complaint that the form “do[es] not explain that DHHR is actually cutting the recipient’s benefits; do[es] not specify the amount of the proposed cut; do[es] not state the facts allegedly justifying the cuts . . . ; [and] do[es] not explain how a person might object to the proposed reduction . . . .” (ECF No. 14 at 48 ¶ 294.)
After receipt of the budget letter, the process to develop each member’s IPP begins. (See ECF No. 155-1 at 9.) If the IPP’s services are “within budget and otherwise compliant with DHHR policies,” then DHHR will authorize the services developed by the IDT and/or member. (Id.) The IDT and member must create two IPPs if the team believes that the member needs services in excess of the calculated budget. (See id.) The first IPP must be within budget and compliant with DHHR policies while the second should reflect “all the services that the IDT team believes the member needs.” (Id.) Both IPPs are submitted to Kepro, and DHHR will evaluate requests for specific services that the member may require but are unavailable within their budget. (See id.)
Members also may request additional services that they believe are necessary through the “exceptions process.” (See id.; see also id. at 18–25; ECF No. 156 at 5 (“DHHR’s waiver policy manual will be revised to clarify and explain that members may receive service[s] in excess of their budget when necessary to avoid institutionalization . . . .”).) These requests “will be considered and decided by a panel of at least three individuals employed by DHHR or its contractor” with at least one individual who “will have medical training.” (See ECF No. 155-1 at
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10.) Taking into consideration whether “the services are necessary to keep the member safe and healthy in order to avoid a heightened risk of institutionalization during the IPP year,” the panel will consider relevant documentation and rule on the request within fifteen days of submission. (Id.)
A denial in whole or in part of services requested through the “exceptions process” will result in a newly developed denial notice. (See id. at 27–30.) The notice includes “a specific and individualized explanation for the reason or reasons” for the denial. (Id. at 10.) It will detail the documentation reviewed by the panel as well as specific facts relied upon in reaching the decision. (Id.) If the denied services were granted during the previous IPP year, then the notice will explain why the current year’s decision departs from the previous year’s determination. (See id.) Lastly, the notice will explain to the member that he or she has a right to appeal the decision through a Medicaid Fair Hearing “and to continue to receive services at the previously-approved levels throughout the appeal process if the request for a hearing is received within 13 days of receipt” of the notice. (Id.; see also id. at 29–30.) The Medicaid Fair Hearing involves an appellate-type review by the Board of Review, which may review challenges to “an error on the ICAP answers, as input into the Kepro database,” or challenges to “the [exceptions process] Panel’s denial of an individual’s request for additional services in excess of the budget.” (Id. at 10.) The Board of Review only makes factual determinations; it “does not have the authority to second-guess or overturn policy judgments made by DHHR and BMS . . . .” (Id. at 11.)
On September 15, 2017, Defendant’s counsel submitted a letter-form status report to the Court informing that DHHR is “mov[ing] ahead with implementation of this new system . . . .” (ECF No. 168.) DHHR provided the following timeline by which it plans to abide:
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Date

Action

November 15, 2017

DHHR issues notice to the public for changes to the I/DD Waiver Policy Manual to implement the proposed new service authorization system

December 15, 2017 - January 31, 2018

DHHR reviews and considers public comments

February 1, 2018

DHHR finalizes and publishes changes to the I/DD Waiver Program Manual

February 1 - March 31, 2018

DHHR works with KEPRO to put in place practices and procedures to implement the new service authorization system

April 1, 2018

DHHR begins evaluating waiver members and calculating their service authorization levels pursuant to the new system, based on anchor dates

90 days after evaluation

Waiver members begin receiving services pursuant to service authorization levels developed under the new system

July 1, 2018

DHHR adds 50 new slots to the I/DD Waiver Program

(Id. at 1–2.) DHHR recognized its responsibility to continue providing the named Plaintiffs in this

case their 2014 service authorization levels, if necessary, pursuant to the current injunction. (Id.

at 2.)

B. Analysis

A review of the new authorization system reveals that the proposal does not appear to suffer

from similar due process infirmities and, therefore, does not promote the injustices that this Court’s

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injunction was designed to remedy.11 The Court found in its prior memorandum opinion that
Plaintiffs in this case have both a substantial and self-evident private interest in receiving
appropriate benefits through the I/DD Waiver Program. (See ECF No. 122 at 18 (citation
omitted).) The Court further found that “the procedures currently employed by Defendant present
a serious risk of erroneous deprivations of Plaintiffs’ interest in their benefits” because the factors
incorporated into the APS algorithm, including the weight assigned to each factor, and the
methodology used in calculating benefits were unclear. (See id. at 18–19 (noting that the record
was absent a description of “what specifically is included in either the ‘assessment tools’ or the
‘statistical analysis’” as well as what variables in the algorithm were “statistically significant”).)
The authorization system that DHHR now proposes first assigns members a base budget
range from a publicly available matrix with defined setting categories and dollar ranges based on
answers provided during each member’s annual assessment, where the ICAP, the ABAS II, and
the structured interview are completed. (See ECF No. 155-1 at 3–4.) Then, a single dollar amount,
up to $18,895, may be added to the base budget range figures according to the add-ons for which
the individual qualifies. (See id. at 4–5.) The categories of available add-ons are derived from the
ICAP survey and applied as needed directly based on answers provided by the member, their guardians, and the IDT.12 (See id.) The Lewin Group chose these categories as inputs for the add-
11 “[T]he Due Process Clause provides that certain substantive rights—life, liberty, and property—cannot be deprived except pursuant to constitutionally adequate procedures.” Cleveland Bd. of Educ. v. Loundermill, 470 U.S. 532, 541 (1985). “The essential requirements of due process . . . are notice and an opportunity to respond.” Id. at 546. 12 ICAP’s website confirmed that the variables included in the add-on chart, see supra note 9, are part of the ICAP questionnaire and used to calculate each participant’s ICAP Service Score. See ICAP Service Score, Inventory for Client and Agency Planning, http://icaptool.com/icap-information/icap-service-score/ (last visited July 27, 2017). The website provides the following as to problem behaviors, which discusses the two problem behavior categories within DHHR’s “add-ons” chart:
These four dimensions (the description of specific problem behaviors, frequency of occurrence, severity, and the usual management response by others) represent the primary bases for evaluating the effects of problem behavior on the individual, his/her peers, and his environment. This information is necessary for developing individual plans, as well as for planning service intensity. The ICAP yields normed numeric scores that vary by age for problem behaviors in three areas
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ons chart based on a statistical regression analysis; these categories were determined to be the four “statistical drivers of spending” in addition to an individual’s setting, which is the basis for the initial base budget range before add-ons. (See id. at 8; ECF No. 156 at 6–7; ECF No. 167 at 7 n.1.) Unlike before, members will know exactly which statistically significant variables affect their budget level and the dollar amount associated with each variable. (Compare ECF No. 155-1 at 7– 8 (detailing why the five variables considered in the budget determination were selected), with ECF No. 115 at 83 (providing Patricia Nisbet’s testimony that she was unaware of the individual variables considered within the proprietary algorithm or how they were weighted).)
The funding levels denoted in the base budget matrix and the add-ons chart are ascertainable standards that provide Plaintiffs a definitive basis on which to challenge any miscalculation. See Prestera Ctr. for Mental Health Servs., Inc. v. Lawton, 111 F. Supp. 2d 768, 779 (S.D. W. Va. 2000) (citations omitted) (“Due process further requires that decisions regarding entitlements to government benefits must be made according to ‘ascertainable standards’ that are applied in a rational and consistent manner.”). First, Plaintiffs can establish for themselves based on their setting which base budget range they are eligible to receive. In turn, they also know how their base budget range will be affected by future setting changes. While Plaintiffs contest the two inputs considered when determining the base budget level, (see ECF No. 163 at 12 (“[I]n actuality, the only individual information DHHR’s base budget calculation use[s] to determine the amount of medical assistance benefits a class member will receive is the person’s age and the “Setting”
(internalized, externalized, and asocial) as well as a total score. Scores range from +10 (good) to -74 (extremely serious) with an average of 0 and a standard deviation of 10. Id. (emphasis added). However, the Court notes that while information is available as to how the adaptive behaviors are assigned, such as the motor skills and personal living skills categories in DHHR’s “add-ons” chart, the website did not provide any information related to DHHR’s four adaptive behavior sub-category breakdowns. Presumably, DHHR itself has created the four levels within each of the two adaptive behavior categories by dividing the range of possible scores into the four separate levels, but it is unclear from the record exactly how the assigned level of each individual’s adaptive behavior add-ons are determined. Nevertheless, Plaintiffs do not raise this specific issue in the response.
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category in which that person lives.”)), they do not argue that they are unable to calculate their
own base budget level. In other words, Plaintiffs do not appear to contest that the base budget
matrix represents “ascertainable standards.”
Moreover, Plaintiffs can determine via their ICAP answers how much additional funding
they should be awarded based on three factors: what categories of add-ons they qualify for, the
specific dollar amounts associated with each, and the maximum additional funds allowed. Put
simply, each Plaintiff, along with his or her guardians and IDT, will have the ability to establish what budget range DHHR should assign before the agency puts a budget letter in the mail.13 This
is remarkably different than Plaintiffs’ previous inability to predict what dollar figure would result
from a seemingly arbitrary and secret proprietary algorithm for which inputs and methodologies
were unknown. For these reasons, the Court does not find support for Plaintiffs’ argument that the
proposed system “would eschew the legislated and publicly adopted ‘person-centered planning
process’ required by both federal and DHHR regulations, in favor of a bureaucratic construct to
prevent class members from receiving Medicaid benefits in the amount, duration, and scope
needed to meet their needs and achieve the purpose of the waiver program.” (Id. at 21.) The
setting is selected by the individual from various options, add-ons are determined based on the
13 The Court noted in the previous footnote that the record is not clear how the adaptive behavior ICAP scores within the motor skills and personal living skills categories translate into four different levels, but the Court assumes that DHHR divides the range of possible scores into a distinct range for each of the four levels. Nevertheless, while Plaintiffs challenge the definitions of “extremely or very serious” and “moderately serious or slightly serious” within the problem behavior categories, (see ECF No. 163 at 21–22; see also ECF No. 163-6 at 2 ¶ 7 (“[T]he factors used to determine eligibility for the ‘add-ons’ are vague, and thus we cannot be certain that our calculations are accurate at this time. For example, we do not know how DHHR will differentiate between ‘extremely or very serious’ and ‘moderately or slightly serious’ with regard to a member’s ‘externalized problem behavior.’”)), they do not challenge how the adaptive behavior scores from the ICAP fit into the four levels associated with motor skills adaptive behavior and personal living skill adaptive behavior. Rather, they generally challenge how the add-ons are determined. (See ECF No. 163 at 22 (“The ‘add on’ proposal does not provide ‘ascertainable standards’ since one must guess at the meaning and application of it to individual circumstances, and it provides no factual basis by which a recipient may judge whether their exclusion was erroneous.”).) Again, Defendant states that the application of the various add-on categories is determined by the individuals’ ICAP answers, (see ECF No. 155-1 at 4–5), and the Court is not persuaded that the add-on categories are wholly standardless like the previously used algorithm as Plaintiffs argue.
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individual’s specific ICAP answers, and protocols are in place for participants to register grievances or complaints regarding the way the individual budget is determined.
In addition to the procedure for initially calculating each individual’s budget level, the proposed method for challenging that budget level appears to comport with the requirements of due process and affords Plaintiffs the opportunity to meaningfully challenge that determination. With regard to the authorization system subject to the Court’s injunction, Defendant argued that DHHR would “‘make exceptions’ and increase a recipient’s budget ‘where additional services are necessary to keep individuals safe and health in the community, and out of institutions.’” (ECF No. 122 at 21 (citing ECF No. 101-1 at 3–4 ¶ 8; ECF No. 51-1 at 9 ¶ 21).) The Court previously found that the record and, in particular, BMS’s second-level review practice did not support that assertion. (See id. at 21–22 (noting that the policy manual provided that recipients must purchase services within the budget and that BMS rejected any funding request beyond an assigned budget unless there was a change in circumstances occurring after the budget determination).)
Defendant now represents, and the Court finds, that the proposal remedies this defect in both form and effect. (See ECF No. 156 at 9–12; ECF No. 155-1 at 9–11.) Plaintiffs and their IDTs initially can challenge an assigned budget calculation based on factual discrepancies between the member’s living situation, ICAP answers, and the actual variables and amounts applied in the calculation. After review of the budget letter, Plaintiffs and their representatives may contact DHHR directly with any disputes. Even beyond this initial procedure, a member requiring services outside the assigned budget may create two IPPs for submission to Kepro and evaluation by DHHR, one of which will reflect all services the individual believes is necessary regardless of the assigned budget.
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Further, DHHR plans to implement a new “exceptions process” for individuals “who believe they require services beyond what can be purchased within the budget.” (ECF No. 156 at 9.) A member will no longer be required to show “‘a change in the recipient’s need for benefits that occurs after’ the individualized budget determination.” (Id. at 10 (quoting ECF No. 122 at 21).) The standard used by the three-person exceptions panel will be whether “the services are necessary to keep the member safe and healthy in order to avoid a heightened risk of institutionalization.” (Id.) This allows exceptions to be made on a case-by-case basis as opposed to the previous practice of not allowing exceptions if the request involved spending more than the individual’s allocated budget. Plaintiffs contend that the new “exceptions process” does not allow members to obtain clinically-appropriate services that are medically necessary, (see ECF No. 163 at 22, 23), but this argument does not comport with a reading of DHHR’s new proposal.14 (See ECF No. 155-1 at 9–10 (“In determining whether to grant additional services as requested, the [exceptions] panel will apply the following standard: are the services [] necessary to keep the member safe and healthy in order to avoid a heightened risk of institutionalization during the IPP year?”).) Moreover, if the panel either denies in whole or in part an individual’s exceptions request, DHHR will send a revised denial letter with information regarding what documents were considered and a specific and individualized rationale for the decision. (Compare id. at 10–11, with ECF No. 108-16 (providing a 2015 notice of denial with a blanket explanation: “Your assessed annual budget would have been exceeded or has been exceeded and therefore this request is denied.”).) Plaintiffs retain the ability to appeal an unfavorable decision through a Medicaid
14 Plaintiffs also challenge the exceptions process on the ground that it “would not allow class member[s] to obtain clinically-appropriate services if doing so would exceed [] across-the-board caps imposed on class members residing in a family home.” (ECF No. 163 at 23 (emphasis in original).) As Defendant notes in his memorandum of law in support of the current motion, however, these service caps are specified in DHHR’s federally approved 1915(c) waiver application and “are not part of this litigation” as Plaintiffs’ Complaint does not challenge them. (See ECF No. 156 at 12 & n.1; ECF No. 167 at 21–22 & n.6.)
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Fair Hearing. Finally, “DHHR has revised and will further clarify” policies that allow services in excess of the budget to be authorized “when necessary to avoid a heightened risk of institutionalization.” (ECF No. 156 at 11 (stating that “the Board of Review may grant specific services that require funding in excess of the budget if such services are necessary to avoid institutionalization” regardless of the panel’s decision at the “exceptions process” stage (emphasis in original)).)
In sum, the Court is convinced that the due process injustices inherent in the old system addressed by the injunction are not repeated in DHHR’s proposed authorization system. Initial budget determinations are individualized and based on transparent and discernible standards in stark contrast to the old system. Plaintiffs may alert DHHR directly if they notice an error in the budget calculation such as the misapplication of a particular input. After receiving a detailed budget letter, Plaintiffs may take advantage of the exceptions process if they believe that their required services are not adequately covered by their budget. Plaintiffs’ ability to navigate the exceptions process is open and obvious on many fronts, and there is no evidence that service requests in excess of a base budget will be denied in a blanket manner as in the old system. Moreover, if Plaintiffs receive an unfavorable outcome from the panel that reviewed their case during the exceptions process, Plaintiffs may choose to appeal that decision and request a Medicaid Fair Hearing in front of the Board of Review as detailed in the updated denial notices. The Board of Review has the authority to overturn factual determinations previously made and to grant services requiring funding beyond an individual’s initial budget. All these procedures are outlined in the letters and notices that DHHR transmits to members as well as DHHR’s updated policy manual. As such, the proposed system does not appear susceptible to the “high risk of arbitrary
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and erroneous benefits determinations” that due process forbids. (See ECF No. 122 at 23–24 (citing Town of Castle Rock v. Gonzales, 545 U.S. 748, 792 (2005) (Stevens, J., dissenting)).)
While Plaintiffs challenge the proposed authorization system through a due process lens at times, the majority of their response and its attached exhibits seem to dispute the impact of the dollar figures involved in the proposal. The Court understands Plaintiffs’ concerns that an overhaul to the I/DD Waiver Program’s budget authorization system may lead to decreased budgets for certain individuals within the program. However, the Court’s decision to enjoin Defendant from using the proprietary algorithm and accompanying process did not focus on or consider the budget amounts assigned to the named Plaintiffs in 2015 versus the previous year. (See ECF No. 122 at 23 (“To be clear, the Court is not stating that the substance of the benefits determinations for Plaintiffs is impermissible under the Due Process Clause.”).) Nor could the Court’s decision take into account the dollar figures themselves because the injunction was based on Plaintiffs’ likelihood of success on the merits of their procedural due process claim, which “is simply a guarantee of fair procedures—typically notice and an opportunity to be heard.” See Mora v. City of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008) (citations omitted); see also Matthews v. Eldridge, 424 U.S. 319, 335 (1976) (citation omitted). Further, the Court is convinced by Defendant’s argument that the evidence proffered by Plaintiffs supporting the proposition that the new system will affect significantly and negatively the class members in this case is based partly on statistical flaws that empirical methodologies typically seek to avoid. (See ECF No. 167 at 20– 21 n.5.)
Nevertheless, the Court emphasizes that its role in analyzing the constitutional adequacy of an institutional process is different from an evaluation of the state agency’s reasons for making certain decisions. Due process in this context is concerned with the procedures and not the
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substance of the state’s decisions. “The quality of an agency’s reasoning is decidedly not a process issue.” Lightfoot v. District of Columbia, 448 F.3d 392, 401 (D.D.C. 2006) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50–51 (1983)). Thus, Plaintiffs’ argument that the new authorization system will decrease their I/DD Waiver Program budgets across the board, (see ECF No. 163 at 14–15), cannot be the focus—regardless of its truth—in deciding whether to modify or vacate the current injunction, which was based in part on a finding that Plaintiffs were likely to succeed on their claim under procedural due process. As the Supreme Court emphasized in Horne, “structural and managerial improvements” may constitute a relevant change in circumstances for purposes of modifying or vacating an injunction because the “adopted policies . . . ameliorated or eliminated many of the most glaring inadequacies discussed by the district court.” 557 U.S. at 465–66, 468 (citation omitted). Based on the new authorization system, which DHHR presumably has begun implementing with regard to the unnamed members of the class, (see ECF No. 168), the Court finds that the deficiencies discussed within its previous memorandum opinion and order enjoining Defendant do not exist within the new and improved authorization system.
Because the procedural due process concerns addressed by the preliminary injunction have been alleviated, it is no longer equitable based on the reasons stated in the Court’s previous memorandum opinion and order to require Defendant to continue providing to the named Plaintiffs the budget amounts they received in 2014 if those Plaintiffs received a budget reduction after that year. Defendant has complied with the injunction to this point, which was put in place over oneand-a-half years ago. There is no indication that the faulty conditions of the old system will recur as the new system is in the process of being implemented for all I/DD Waiver Program members. Thus, continued enforcement of the extraordinary and prospective relief previously ordered is
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against the public interest, particularly in light of the fact that continued enforcement will delay or preclude DHHR from adding new slots to the I/DD Waiver Program. (See ECF No. 156 at 15.) For those reasons and pursuant to Federal Rule of Civil Procedure 60(b)(5), the Court finds that Defendant has met his burden of showing a change in circumstances necessitating relief from the existing injunction, see Horne, 557 U.S. at 450, and grants in part Defendant’s motion to modify the previous memorandum opinion and order entered on September 13, 2016, (ECF No. 122), to allow the preliminary injunction to expire for the named Plaintiffs as set forth below. See Rufo, 502 U.S. at 380–93; Dombrowski, 380 U.S. at 492; Thompson, 404 F.3d at 825–26, 830; see also infra Section V.
The Court notes that while the discussion has focused on the procedural due process infirmities in the old system—as that was the basis for the injunction—Plaintiffs also argue in the response that the preliminary injunction should remain in place because they are likely to succeed on their claims pursuant to the Americans with Disabilities Act (“ADA”) and Rehabilitation Act, even under the new system. The briefing in the record regarding Plaintiffs’ claims under the ADA, Rehabilitation Act, and other federal statutes and regulations only analyzes the likelihood of success on those claims under the old system that DHHR has abandoned. Consequently, the record is undeveloped as to whether it would remain equitable for the injunction to apply prospectively based on Plaintiffs’ likelihood of success on the merits of their other claims. Because the Court has modified its previous memorandum opinion and order in a way that leaves the injunction in place for each named Plaintiff until an adequate annual assessment can be conducted before his or her next anchor date, see infra Section V, time remains for Plaintiffs to file a renewed motion for preliminary injunction, if necessary, based on the new system.
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V. CONCLUSION For these reasons, the Court GRANTS IN PART Defendant’s Motion to Vacate or Modify Preliminary Injunction Order, (ECF No. 155), to the extent Defendant requests that the Court lift the injunction to allow DHHR to begin implementing the proposed service authorization system as to the named Plaintiffs. The motion is otherwise DENIED. The Court further MODIFIES its memorandum opinion and order entered on September 13, 2016, (ECF No. 122), as follows: the preliminary injunction will expire individually as to each named Plaintiff on the individual’s first anchor date15 following this memorandum opinion and order’s entry unless the anchor date falls within ninety days of entry in which case the preliminary injunction will expire on the individual’s second anchor date subsequent to this order’s entry.16 Defendant is further ORDERED to provide the Court with an updated status report as to the new system’s implementation within thirty days of this memorandum opinion and order’s entry. IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.
ENTER: March 26, 2018
15 A recipient’s “anchor date” is “the anniversary of that recipient’s admission to the program.” (ECF No. 29 at 11.) 16 According to Defendant’s description of the new system, Kepro will conduct an annual assessment of each individual approximately ninety days before his or her anchor date. (See ECF No. 155-1 at 3.) Therefore, the nature of the expiration ensures that a named Plaintiff will continue receiving the benefits of the preliminary injunction until Kepro, the member, and his or her IDT have had adequate time to conduct the annual assessment prior to the anchor date.
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 Case 2:15-cv-09655 Document 196 Filed 09/25/18 Page 1 of 21 PageID #: 3383

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

MICHAEL T., et al.,
Plaintiffs,
v.
BILL J. CROUCH, in his official capacity as Secretary of the WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Defendant.

CIVIL ACTION NO. 2:15-cv-09655

MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiffs’ Motion for Partial Summary Judgment, (ECF No. 182), and Defendant’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, (ECF No. 179). For the reasons stated herein, the Court DENIES Plaintiffs’ motion, (ECF No. 182), and GRANTS IN PART and DENIES IN PART Defendant’s motion, (ECF No. 179).
I. BACKGROUND This case has an intricate history revolving around West Virginia’s Intellectual/Developmental Disability Home and Community Based Services waiver program (“I/DD Waiver Program”) and benefit reductions suffered by program recipients beginning in 2015. The West Virginia Department of Health and Human Resources’ (“DHHR”) Bureau for Medical Services (“BMS”) administers the State’s Medicaid plan, which includes the
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“intermediate care level services for individuals with intellectual/developmental disabilities” program from the federally recognized optional services. (ECF No. 14 at 36 ¶ 225.) This program provides for individuals with intellectual disabilities institutions that offer residential, health, and rehabilitative services, (id. at 36–37 ¶ 226; ECF No. 54 at 9), known as Intermediate Care Facilities for Individuals with Intellectual Disabilities (“ICF/IIDs”). (ECF No. 179-2 (Nisbet Third Dec.) at 2.) See also 42 U.S.C. § 1396d(d). West Virginia implements an alternative option for individuals otherwise eligible for an ICF/IID to receive home- and community-based services instead because, in part, the State has capped the number of ICF/IID beds. The cap is currently set at 533, “and there are no large or state-run ICF/IIDs in West Virginia.” (ECF No. 180 at 7; ECF No. 179-2 (Nisbet Third Dec.) at 3 (noting that “[a]n ICF/IID is the least common service setting for individuals with intellectual disabilities”).) This alternative program—the I/DD Waiver Program—is the subject of the current litigation.
As detailed in this Court’s previous memorandum opinion and orders, the I/DD Waiver Program provides “an array of . . . services that an individual needs to avoid institutionalization.” 42 C.F.R. § 441.300. (See also ECF No. 122 at 1–10; ECF No. 170 at 1–5.) Many individuals enrolled in the program live with family members in their homes while others live in an “[i]ntensively [s]upported [s]etting,” where one to four program members live together in a residential or group home. (See ECF No. 54 at 11; ECF No. 115 at 76.) West Virginia’s I/DD Waiver Program currently provides services to 4,684 individuals while over 1,300 individuals remain on the program’s waiting list. (ECF No. 179-2 (Nisbet Third Dec.) at 1 (noting that “DHHR added 50 additional slots to the program in July 2018”).) BMS contracts with Kepro f/k/a APS Healthcare Inc. (“APS”) to assist in the I/DD Waiver Program’s administration, such
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as “monitoring the member’s health and safety,” (ECF No. 54 at 10–11), “[e]nsuring each [I/DD Waiver Program] participant’s medical eligibility is initially established and reestablished on an annual basis,” and conducting an “annual assessment of each program participant’s abilities and needs,” (ECF No. 28-3 at 7). Local service provider agencies ultimately receive contracts to provide individual recipients with their waiver services. (ECF No. 14 at 41 ¶ 252.)
At the time Plaintiffs filed this lawsuit, an I/DD Waiver Program recipient’s annual service authorization began with a calculation of their individual “budget” by APS. (ECF No. 54 at 14.) This involved the completion of an “annual assessment,” which included, in part, an interview with program members, their legal representatives, their case managers, and other interested parties, (see ECF No. 38-3 at 73), and a compilation of data regarding each participant’s “abilities, strengths, and support needs,” (id. at 7; see also ECF No. 54 at 14–15). Importantly, APS applied a proprietary algorithm to the assessment’s results, producing an individual budget from a multi-variable statistical analysis. (ECF No. 54 at 15; see also ECF No. 14 at 43 ¶ 265.) The algorithm was secret in that “the exact factors it consider[ed], the weight it accord[ed] to each factor, and its overall methodology in determining each member’s budget [were] not publicly available information.” (ECF No. 122 at 5 (citing ECF No. 115 at 145–50).)
After APS notified individuals—without explanation—of their budget amount, the member’s “interdisciplinary team” (“IDT”), consisting of the member, a representative from the provider agency, and possibly “the member’s guardian(s) and health care professionals,” met to create an “Individualized Program Plan” (“IPP”). (ECF No. 51-1 at 8 ¶ 19; ECF No. 54 at 15.) The IPP detailed “each type of service needed to meet that recipient’s individually-assessed
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safety, health, and care needs.” (ECF No. 14 at 42 ¶ 257; see also ECF No. 54 at 15.) If the costs of the requested services fell within the APS-calculated budget and complied with BMS policies, then “APS [would] approve service authorization requests consistent with the [IPP].” (ECF No. 54 at 16.)
Nevertheless, if a recipient’s IPP resulted in the need for services costing more than the APS-determined budget, then “the service coordinator submit[ted] requests for authorization of services to APS . . . .” (ECF No. 51-1 at 9 ¶ 21.) Prior to September 2014, “APS made independent determinations to grant or deny these requests for funds in excess of the budget and ‘routinely approved’ such ‘service authorization requests.’” (ECF No. 122 at 6 (citing ECF No. 51-1 at 9–10 ¶ 22; ECF No. 14 at 44 ¶ 272).) After BMS discovered that the I/DD Waiver Program was exceeding its budget and that APS was “approving” IPPs “with services costs in excess of the budgets,” (ECF No. 115 at 94–96; ECF No. 51-1 at 9 ¶ 22), BMS instructed APS in September 2014 to “cease unilaterally approving” IPPs that included service costs in excess of the APS-calculated budget. (See ECF No. 51-1 at 9 ¶ 22.) Thereafter, requests for funding in excess of the APS-calculated budget required BMS approval through a “second[-]level negotiation,” (id. ¶ 21), which involved BMS review of the recipient’s file, attached materials, and an APS recommendation, as well as, if requested, a meeting with the recipient and interested parties prior to deciding whether to grant the funding request. (ECF No. 115 at 88–89.)
After denying a second-level negotiation request for funding in excess of the APS-calculated budget, BMS sent the member a notice containing appeal rights. (ECF No. 54 at 16.) To exercise the right to appeal the second-level denial, the member could request a fair hearing before the State’s Board of Review. (ECF No. 115 at 91–92; see also ECF No. 54 at
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16.) The BMS and I/DD Waiver Program member could present arguments as well as any supporting documentation at the hearing. (See ECF No. 115 at 92–94.) The Board of Review then issued its decision affirming or reversing the second-level determination by BMS. (Id. at 94.) If dissatisfied with the decision, the member retained the option of filing a final direct appeal to a state circuit court. (Id.)
The operative pleading in this action is Plaintiffs’ First Amended Complaint for Injunctive and Declaratory Relief (“Complaint”), filed on September 28, 2015, which addresses the alleged infirmities within DHHR’s old authorization system. 1 (ECF No. 14.) The Complaint includes the following four causes of action against the old system: (I) violation of procedural due process; (II) violation of the federal Medicaid Act; (III) violation of the Americans with Disabilities Act (“ADA”); and (IV) violation of the Rehabilitation Act of 1974 (“Rehab Act”). (Id. at 53–59 ¶¶ 315–336.) Plaintiffs request injunctive and declaratory relief against Defendant regarding the allegedly discriminatory former system. (Id. at 59–60.)
On September 13, 2016, this Court granted Plaintiffs’ request for a preliminary injunction and ordered Defendant “to reinstate the named Plaintiffs’ individualized I/DD Waiver Program budgets to the amounts Plaintiffs received in 2014, but only for those Plaintiffs that received a reduction in their individualized budgets after 2014.” (ECF No. 122 at 32.) The decision was based in part on the Court’s finding that Plaintiffs were likely to succeed on the merits of their “claim under 42 U.S.C. § 1983 that Defendant violated Plaintiffs’ procedural due process rights by employing the APS Algorithm when determining Plaintiffs’ benefits.” (Id. at 14; see also ECF No. 170 at 5–7.)
1 Despite the subsequent modifications to the system challenged within the Complaint, Plaintiffs have never moved to amend the Complaint in the three years since it was filed.
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Subsequent to the preliminary injunction’s entry, DHHR developed a new service
authorization system to ameliorate the Court’s concerns regarding the previous system’s
constitutionality.2 Specifically, the new authorization system replaced the proprietary algorithm
with a budget matrix employing a number of clearly identified variables based on a combination
of a member’s living situation and answers to specific questions during the member’s annual
assessment. (See ECF No. 156 at 7.) Further, DHHR updated its budget letter, created an
exceptions process “designed to evaluate and accommodate requests from individuals who
believe they require services beyond what can be purchased within the budget,” (id. at 9), and
refined policies “to make clear that services in excess of the budget can be authorized when
necessary to avoid a heightened risk of institutionalization,” (id. at 11 (citing ECF No. 155-1 at
10–11)).3
2 A detailed description of the new authorization system was attached to Defendant’s previously filed Motion to Vacate or Modify the Preliminary Injunction Order. (ECF No. 155-1.) The Court heavily relied on that description when granting Defendant’s motion and modifying the preliminary injunction in this case. (See generally ECF No. 170.) In conjunction with Defendant’s pending Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, Defendant filed a Statement of Undisputed Facts that relies in part on the previously filed Description of New Service Authorization Process. (See ECF No. 179-1 at 13–23 ¶¶ 49–84, 24–25 ¶¶ 88–90.)
Plaintiffs now move pursuant to Federal Rule of Civil Procedure 56(c)(2) to strike the description of the new service authorization process included in Defendant’s statement of facts as it allegedly constitutes inadmissible evidence. (See ECF No. 184.) They argue that the description is inadmissible hearsay as it relies on information obtained from DHHR’s consultant, Lewin Group, and the record contains “no affidavit or testimony from an individual with personal knowledge affirming the information provided by Defendant’s consultant, nor has Defendant presented any expert witness testimony regarding this information.” (Id. at 2 (citing Fed. R. Evid. 802).) The Court agrees with Defendant that this information “could be introduced at trial through the direct testimony of an individual from the Lewin Group.” (ECF No. 191 at 3.) See Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015) (noting that on summary judgment a “court may consider materials that would themselves be admissible at trial, and the content or substance of otherwise inadmissible materials where the ‘the party submitting the evidence show[s] that it will be possible to put the information . . . into an admissible form’” (alteration in original) (citation omitted)). For this reason, the Court DENIES the motion to strike, (ECF No. 184), and will consider, to the extent necessary, the information contained in Defendant’s description of the new service authorization system. 3 A more extensive discussion of DHHR’s new authorization system is included in the Court’s previous memorandum opinion and order entered on March 26, 2018. (See ECF No. 170 at 11–18.)
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The Court found on March 26, 2018 that “the due process injustices inherent in the old
system addressed by the injunction are not repeated in DHHR’s proposed authorization system.”
(ECF No. 170 at 24.) The Court summarized the rationale for its conclusion in the following
passage:
Initial budget determinations are individualized and based on transparent and discernible standards in stark contrast to the old system. Plaintiffs may alert DHHR directly if they notice an error in the budget calculation such as the misapplication of a particular input. After receiving a detailed budget letter, Plaintiffs may take advantage of the exceptions process if they believe that their required services are not adequately covered by their budget. Plaintiffs’ ability to navigate the exceptions process is open and obvious on many fronts, and there is no evidence that service requests in excess of a base budget will be denied in a blanket manner as in the old system. Moreover, if Plaintiffs receive an unfavorable outcome from the panel that reviewed their case during the exceptions process, Plaintiffs may choose to appeal that decision and request a Medicaid Fair Hearing in front of the Board of Review as detailed in the updated denial notices. The Board of Review has the authority to overturn factual determinations previously made and to grant services requiring funding beyond an individual’s initial budget. All these procedures are outlined in the letters and notices that DHHR transmits to members as well as DHHR’s updated policy manual. As such, the proposed system does not appear susceptible to the “high risk of arbitrary and erroneous benefits determinations” that due process forbids. (See ECF No. 122 at 23–24 (citing Town of Castle Rock v. Gonzales, 545 U.S. 748, 792 (2005) (Stevens, J., dissenting)).)
(Id. at 24–25.)
Accordingly, the Court found that Defendant met his burden of showing a change in
circumstances under Federal Rule of Civil Procedure 60(b)(5) necessitating relief from the
preliminary injunction. (Id. at 26–27.) The Court modified its previous memorandum opinion
and order to allow the injunction to expire individually as to each named Plaintiff on that
individual’s first anchor date following the order’s entry unless the anchor date fell within ninety
days of entry in which case the injunction would expire on the individual’s second anchor date
after the order’s entry. (Id. at 28.) The Court held a telephonic status conference on May 7,
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2018, during which it set dispositive motions deadlines for this matter. (See ECF Nos. 173,
174.)
On July 2, 2018, in accordance with the Amended Scheduling Order entered on May 10,
2018, (ECF No. 174), Defendant filed his Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment, (ECF No. 179), and Plaintiffs filed their Motion for Partial Summary Judgment, (ECF No. 182).4 The parties filed responses to the cross-motions on July 31, 2018, (ECF Nos. 186, 188),5 and replies were filed on August 15, 2018, (ECF Nos. 192, 194). As
such, the motions are fully briefed and ripe for adjudication.
II. LEGAL STANDARD
It is well settled that “[f]ederal courts have no power to hear moot cases, and . . . a case
can become moot at any time . . . .” Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006) (citing
Mellen v. Bunting, 327 F.3d 355, 363–64 (4th Cir. 2003)); see also City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 288–89 (1982). One way in which a case can become moot is by a
change in factual circumstances if the change renders the issues in the case no longer “live.”
See Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011) (citations
omitted); see also Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (“Federal courts
lack jurisdiction to decide moot cases because their constitutional authority extends only to
actual cases or controversies.”). However, “[a] case is not moot . . . if a party can demonstrate
4 In conjunction with Plaintiffs’ motion, they filed a Motion for Leave to File Response Memorandum in Support of Partial Motion for Summary Judgment of No More than Twenty-Five Pages in Length. (ECF No. 181.) For good cause shown, and in accordance with Local Rule of Civil Procedure 7.1(a)(2), the Court GRANTS the motion and will consider Plaintiffs’ supporting memorandum in full. 5 While Plaintiffs’ response to Defendant’s motion is well over the page limit set forth in Local Rule of Civil Procedure 7.1(a)(2), the response was not accompanied by a motion for leave to exceed that limit. Nevertheless, on August 8, 2018, Plaintiffs filed a Motion for Leave Nunc Pro Tunc to File Memeorandum [sic] Forty-Five Pages in Length in Response to Defendant’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. (ECF No. 190.) Despite the belated filing of the motion, the GRANTS the motion after finding good cause and will consider Plaintiffs’ response memorandum in full.
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that the apparent absence of a live dispute is merely temporary abeyance of a harm that is ‘capable of repetition, yet evading review.’” Brooks, 462 F.3d at 348 (quoting Mellon, 327 F.3d at 364).
If a defendant voluntarily ceases challenged conduct, the Court may nonetheless “exercise its power to enjoin the defendant from renewing the practice . . . .” City of Mesquite, 455 U.S. at 289. The Supreme Court has announced a “stringent” test for determining whether a defendant’s voluntary conduct is sufficient to moot a case:
A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (alteration omitted) (internal quotation marks omitted) (citations omitted); see also Grutzmacher v. Howard Cty., 851 F.3d 332, 349 (4th Cir.), cert. denied, 138 S. Ct. 171 (2017); Wall v. Wade, 741 F.3d 492, 497 (4th Cir. 2014); Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800 (4th Cir. 2001) (noting that “defendants face a heavy burden to establish mootness in such cases because otherwise they would simply be free to return to [their] own ways after the threat of a lawsuit has passed” (internal quotation marks omitted) (citation omitted)). The Fourth Circuit has held that this burden is met and “a governmental entity’s change of policy renders a challenge moot when the governmental entity ‘has not asserted its right to enforce [the challenged policy] at any future time.’” Porter v. Clarke, 852 F.3d 358, 360, 364 (4th Cir. 2017) (alteration in original) (quoting Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1231 (4th Cir. 1989)).
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The exception to the mootness doctrine, as suggested above, involves the following type of cases:
[Those that] fall[] within a special category of disputes that are “capable of repetition” while “evading review.” A dispute falls into that category, and a case based on that dispute remains live, if “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Turner v. Rogers, 564 U.S. 431, 439–40 (2011) (first and second alterations added) (citations omitted); Marietta Mem’l Hosp. v. W. Va. Health Care Auth., No. 2:16-cv-08603, 2017 WL 5559926, at *2 (S.D. W. Va. Nov. 17, 2017). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (alteration omitted) (internal quotation marks omitted) (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)).
III. DISCUSSION The Complaint challenges an allegedly “unpublished, unfiled, and unlawful policy eliminating any method of obtaining reasonable accommodation, as implemented beginning in late 2014 by defendant Secretary Bowling in her capacity as the executive head of the [DHHR].”6 (ECF No. 14 at 3 ¶ 10.) That policy, detailed above and in this Court’s previous memorandum opinion and orders, (see ECF No. 122 at 4–8; ECF No. 170 at 1–5), was the subject of the earlier preliminary injunction that has since been effectively dissolved by the Court, (see ECF No. 170 at 5–7, 18–28 (modifying the Court’s previous ruling enjoining Defendant)). The Plaintiffs’ individual harms, as alleged in the Complaint, were directly caused by the application of the policy that went into effect in September 2014 and resulted in
6 The Court entered an order on April 26, 2017 substituting the current Defendant, Bill J. Crouch, as the named Defendant in his official capacity as Secretary of DHHR after his appointment in January 2017. (ECF No. 151.)
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“massive reductions and terminations of the waiver benefits and services needed by plaintiffs and the class . . . .” (ECF No. 14 at 5 ¶ 21.)
Defendant first argues in his motion that the old authorization system affected by the previous injunction no longer exists as of the new system’s implementation and that “[t]here is no reasonable likelihood that DHHR will return to the prior system that the Plaintiffs challenge in the Amended Complaint.” (ECF No. 180 at 12.) Defendant states that there is no plausible rationale for returning to the old system given that DHHR undertook the following steps to transition away from the old system: “significant policy work by DHHR staff; hiring an outside consultant (Lewin Group) to conduct an actuarial analysis of prior I/DD waiver funding levels; changing the I/DD Waiver Manual (subject to notice and public comment); drafting new notice documents; and extensive training for stakeholders.” (Id. (citing ECF No. 179-1 at 12 ¶ 47).) Thus, Defendant avers that his agency “could not undo [the new policy] as a practical matter without deploying significant resources.” (Id.) This position is supported by the third declaration of Patricia Nisbet (“Ms. Nisbet”), Director of BMS, whose testimony provides that “BMS has no intention to return to its previous service authorization system and to do so would be an incredible financial and administrative burden.” (Id. (citing ECF No. 179-1 at 12 ¶ 47 (citing ECF No. 179-2 at 7 ¶ 17)).)
Alternatively, but related to mootness, Defendant argues that Plaintiffs’ challenges to the new authorization system in the briefing are not properly before the Court as the operative Complaint “does not contain a single factual allegation relating to the new service authorization system.” (Id. at 13.) According to Defendant, DHHR has begun implementing a “substantially different” system, which requires any challenge to it to take place “in a subsequent
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lawsuit.” (Id. at 14 (citing Valdivia v. Brown, 956 F. Supp. 2d 1125, 1137 (E.D. Cal. 2013)).)
Ultimately, Defendant notes that while Plaintiffs had the opportunity to amend the Complaint to
give Defendant fair notice of claims related to the new authorization system, they did not do so
and cannot rely on the Complaint any longer as the system it addresses is no longer in effect.
(Id. at 13–14.)
Plaintiffs’ response to this argument suggests that they are still suffering under the new
authorization system and that the Court is capable of granting their originally requested relief “to
require [D]efendant to return to the more ADA-compliant, less discriminatory, more
individual-need focused Medicaid waiver benefit granting processes and levels the state
provided” in 2014. (ECF No. 188 at 5.) Because Plaintiffs claim a continued interest in
returning the I/DD Waiver Program to its pre-September 2014 version, they argue that this case
is not moot. (Id. at 6.) Further, Plaintiffs argue that the new system “incorporated many of the
same unconstitutional practices DHHR employed at the time this action was filed” and that the matter, therefore, is still live.7 (Id. at 7.) They further note that this Court’s most recent
memorandum opinion and order only evaluated the new authorization system through a
procedural due process lens as that was the basis for the preliminary injunction. (Id.) Thus,
7 For example, Plaintiffs point to the fact that in the new system DHHR is “restrict[ing] the total Medicaid benefits available to I[/]DD waiver recipients as a class to no more than the amount of waiver expenditures the state approved in 2016 . . . .” (ECF No. 188 at 8 (emphasis in original).) The Court’s memorandum opinion and order enjoining Defendant from calculating the named Plaintiffs’ budgets using the APS algorithm if it resulted in a smaller budget than Plaintiffs enjoyed in 2014 focused on DHHR’s policy as it existed in 2016. Thus, Plaintiffs argue that the old policy, as it is challenged in the Complaint, has been used, in part, to create the new authorization system that Defendant argues cannot properly be challenged in this action. (See id. at 8–9 (“Consequently, the new system ‘bakes in’ injuries inflicted by the contested processes, and assures the class will continue to suffer adversely from the consequences of those illegal practices for several years yet to come. The continuing ‘brooding presence’ of the arbitrary KEPRO algorithm, the absence of any meaningful process by which class members could seek and obtain reasonable accommodation of DHHR budget policy to their individual needs, and the absence of adequate notice and a meaningful opportunity to contest denial of benefits, means a new system that continues and extends that injury does not moot the harm to the plaintiff class.”).)
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they argue that the class’ other claims in Counts II, III, and IV of the Complaint related to Medicaid fair hearing regulations, the ADA, and the Rehab Act are not moot. (Id.)
In response to Ms. Nisbet’s testimony that DHHR does not plan on reverting back to the old authorization system, Plaintiffs argue that her declaration “is immaterial and also entitled to no weight.” (Id. at 9.) They aver that it “is irrelevant since the prior system continues to harm the plaintiff class, and the new system does not afford plaintiffs the relief they sought, including relief under Counts II, III, and IV of the Amended Complaint.” (Id. at 10.) As stated by Plaintiffs, Ms. Nisbet’s assertion is an attempt at avoiding judicial review and should not be considered as DHHR could easily resume the prior practice at any point in the future. (See id. at 10–11 (“Ms. Nisbet’s position grants her neither personal knowledge of the State’s future intentions nor authority to bind the future acts of BMS, DHHR, or the State of West Virginia, on any matter or in any fashion.”).) As for Defendant’s related but alternative argument that Plaintiffs’ current claims challenging the new authorization system are not properly before the Court, Plaintiffs dispute this view on the basis that “the class members continue to suffer present, future, and collateral harm” as about ninety-two percent of the I/DD Waiver Program members continued to receive benefits under the old system at the time their response to Defendant’s motion was filed. (See id. at 7–8.)
Defendant’s reply provides that “[t]here is no dispute that Defendant is transitioning away from the service authorization system challenged in Plaintiffs’ Complaint.” (ECF No. 192 at 10 (citing ECF No. 189 at 27–29 ¶¶ 47–48).) He highlights testimony on the record from Cynthia Beane, BMS Commissioner, and Ms. Nisbet providing that “BMS is terminating the old system and implementing a new one.” (Id. (citing ECF No. 155-2 at 4 ¶ 8; ECF No.
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179-2 at 7 ¶ 17).) Therefore, Defendant avers that this testimony “is sufficient to overcome the ‘voluntary cessation’ exception to mootness.” (Id. (citing Grutzmacher, 851 F.3d at 349).)
As a preliminary matter, the Court agrees with Defendant that Lamar Advertising of Penn, LLC v. Town of Orchard Park, a case from the Second Circuit, is instructive under these circumstances. See 356 F.3d 365 (2d Cir. 2004). In that case, the plaintiff advertising company filed suit challenging as unconstitutional a local ordinance that governed the erection and maintenance of signs in the town. Id. at 367. The plaintiff moved for summary judgment, but before the motion’s filing, the town amended the ordinance to address some, but not all, of the plaintiff’s claims. Id. The district court denied the plaintiff’s motion for summary judgment and dismissed as moot those claims brought against the amended portions of the sign ordinance. Id. at 367–68. Of importance to the court, the plaintiff did not amend its complaint to lodge claims against the amended ordinance but instead relied on its previously filed complaint. See id. at 368. The Second Circuit’s opinion, authored by now-Justice Sotomayor, agreed with the district court that the claims asserted against the amended ordinance were moot. Id. It noted that any claims on appeal challenging the amended ordinance were “not properly before [the court] as [plaintiff] never amended its complaint below to include claims against the amended ordinance.” Id.; cf. Ctr. for Individual Freedom, Inc. v. Ireland, No. 1:08-00190, 2008 WL 4452659, at *2 (S.D. W. Va. Sept. 29, 2008) (“[T]he doctrine of mootness, to which a great deal of the parties’ case law authority is directed, is not at issue here because plaintiff filed an amended complaint challenging the statutes as amended.” (citation omitted)).
Similarly, in Valdivia v. Brown, also cited by Defendant, the State of California began enacting legislation that significantly altered its criminal justice system, including its parole
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revocation system. See 956 F. Supp. 2d at 1126. The plaintiffs originally challenged the parole revocation system as it existed before the legislation’s enactment. The district court placed emphasis on the fact that the legislation “established a fundamentally different parole system than the one that the [] plaintiffs challenged” and did not simply “tweak[] features of the then-existing system . . . .” Id. at 1135. The court found that “[t]he magnitude of the change [was] significant enough” that it could not “simply identify those components of the old system that recur in the new system” and that whether the new system met due process requirements “must be demonstrated in practice, without untoward judicial interference until the need for intervention is clear.” Id. at 1136–37. For those reasons, the court held that challenges to the new system had to be addressed in a subsequent lawsuit. See id. at 1137.
Further, the Fourth Circuit addressed this concept of mootness just last year in Grutzmacher. There, the plaintiff, a former paramedic in the Howard County, Maryland Department of Fire and Rescue Services, was terminated for violating the department’s code of conduct and social media guidelines via certain posts, “likes,” and replies to comments made on his Facebook page. See 851 F.3d at 336–40. The plaintiff sued under 42 U.S.C. § 1983, arguing in part that the code of conduct and social media guidelines “violated the First Amendment by impermissibly restricting Department employees’ ability to speak on matters of public concern.” Id. at 340. Subsequent to the filing of the plaintiff’s action, the department replaced the policies with revised versions, “eliminat[ing] many of the earlier version’s prohibitions on Department personnel’s private use of social media” and amending the code of conduct so it “did not include any of the provisions in the previous version that Plaintiff had challenged.” Id. at 340–41.
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The Grutzmacher Court affirmed the district court’s decision granting the department’s
motion to dismiss, noting that the department’s fire chief had submitted into evidence a sworn
affidavit that he “fully intend[ed] to operate under the newly issued [policies] and d[id] not
intend to re-issue the original versions.” Id. at 349 (second alteration in original). The court
“discern[ed] ‘no hint’ that the Department ha[d] any intention of reinstituting the prior policies”
and, thus, found that the department met its “heavy burden of persuad[ing]” the court that it
would not revert to the challenged policies.” Id. (third alteration in original) (internal
quotation marks omitted) (quoting Wall, 741 F.3d at 497 (quoting Friends of the Earth, Inc., 528
U.S. at 189)); see also Winsness v. Yocom, 433 F.3d 727, 736 (10th Cir. 2006) (finding that the
alteration of a challenged policy, coupled with sworn testimony that the public officials would
not revert to the challenged policy, rendered the plaintiff’s challenge moot).
Like those cases, Plaintiffs here amended their Complaint in 2015 to lodge four counts
against a policy that no longer exists. (See ECF No. 14.) Virtually every aspect of the system has been amended,8 from the method used to calculate an I/DD Waiver Program member’s
initial budget, the budget letter notifying members of their budget with an explanation of it, and a
new exceptions process. (See ECF No. 155-1.) As all parties are aware, DHHR has begun implementing the new system, and some waiver recipients already seem to be benefiting from it.9
8 Plaintiffs argue that because DHHR used a figure derived from the old challenged system to initially base the budget matrix within the new system, the new system is inextricably linked with the challenged system. See supra, note 7. While this may bind the two systems to a small degree for the moment, DHHR “intends to rebase the budgets every few years, which will further untether the new budget matrix from services authorized under the prior system.” (ECF No. 192 at 11.) Therefore, any concern associated with this link is mitigated by the DHHR’s method for rebasing the budget matrix in the future. 9 For example, according to Ms. Nisbet, as of June 29, 2018, after members began assessment under the new system, BMS “received a few requests for services in excess of the budget, and ha[d] already granted three requests for additional services” and “approved in part a fourth request for services in excess of the budget.” (ECF No. 179-2 (Nisbet Third Dec.) at 6; see also ECF No. 192-1 (Nisbet Fourth Dec.) at 2 (reaffirming the previous declaration regarding the granting of these four exception requests).)
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Since Plaintiffs received noticed of the I/DD Waiver Program’s complete overhaul, however,
they have not moved to amend the Complaint further.
Accordingly, Plaintiffs’ Complaint cannot be construed as bringing claims against the
new system as the policies involved did not exist at the time the original complaint was
previously amended. As Defendant notes, the Complaint never mentions the new system or its
components in the factual allegations. Similarly, Plaintiffs cannot allege violations of
substantive due process or West Virginia law as they argue in response to Defendant’s motion,
(see ECF No. 188 at 34–38), as those claims are not in the Complaint either. See Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 617 (4th Cir. 2009) (“[A] plaintiff may not raise
new claims after discovery has begun without amending his complaint.”); Fed. R. Civ. P. 8(a)(2)
(providing that a pleading must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief”). To sidestep this procedural problem, Plaintiffs instead attempt
to simply advance the claims in the Complaint against a different set of facts than those alleged.
The Court further notes that on July 31, 2018, Plaintiffs filed a Motion to Strike Paragraph[s] Fifteen[ ]and Sixteen of the Third Declaration of Patricia S. Nisbet, (ECF No. 185), which contains the information quoted in the preceding paragraph. In accordance with Federal Rule of Civil Procedure 56(c)(2), Plaintiffs argue that the information is inadmissible evidence based on Ms. Nisbet’s “fail[ure] to establish that she has personal knowledge about the matters to which she avers” because she “does not identify any personal involvement with the individual cases that she references.” (Id. at 2–3 (citing Fed. R. Evid. 602).) Further, Plaintiffs aver that the information likely comes from documents and notices related to those individual cases and that those materials, which had not been produced, are the best evidence of the individual cases. (Id. at 3 (citing United States v. Alexander, 326 F.2d 736, 739 (4th Cir. 1964); Fed. R. Evid. 1002).) Because those two paragraphs in Ms. Nisbet’s third declaration are referenced in Defendant’s Statement of Undisputed Facts, (see ECF No. 179-1 at 23–24 ¶¶ 85–86), Plaintiffs also argue that those references should be stricken, (see ECF No. 185 at 3).
As noted by Defendant in his response to this motion, (see ECF No. 191 at 4), the record now contains a declaration from Ms. Nisbet testifying to her “personal[] involvement in the evaluation of those [four] requests . . . .” (ECF No. 192-1 at 2 ¶ 2.) Additionally, records of the individual exceptions requests as well as the approval of the requested services are attached to the declaration, (see id. at 8–15), and represent the “best evidence” that Plaintiffs argue had not been produced. Because Defendant has cured the deficiencies about which Plaintiffs argued in their motion, the Court DENIES the motion to strike, (ECF No. 185), and will consider the information in paragraphs fifteen and sixteen of Ms. Nisbet’s third declaration as necessary.
17

Case 2:15-cv-09655 Document 196 Filed 09/25/18 Page 18 of 21 PageID #: 3400
In this endeavor, Plaintiffs now argue that the new authorization system violates Counts II, III,
and IV of the Complaint.
Despite Plaintiffs’ arguments in the dispositive motions’ briefing, the notion that
Plaintiffs or other I/DD Waiver Program members will be worse off under the new system is
purely speculative at this point. The only evidence Plaintiffs attach to their motion or their
response to Defendant’s motion of the effect the new authorization system has had on certain
class members is declarations from five guardians related to their dependent class members.10
(See ECF Nos. 182-3, 182-4, 182-5, 182-6, 182-11, 189-2, 193-1.) Those declarations purport
to show that under the new authorization system, the members are worse off than they were
when the policy was changed back in 2014.11 However, as Ms. Nisbet notes in her fourth
declaration,12 four of those five individuals (Alexa G., Cole J., Bo M., and Christopher B.) have
not been assigned budgets under the new system authorization system, and the one individual
10 Plaintiffs also include a declaration from the executive director of a service provider for the I/DD Waiver Program. (ECF No. 182-8 (Walsh Dec.).) That declaration speaks toward the budget of another class member, Mark D. (See ECF No. 187-2 (Nisbet Fourth Dec.) at 18 ¶ 69.) However, the information provided only relates to his 2017–2018 budget and does not provide any information regarding his 2018–2019 budget, which presumably is the budget that will be calculated under DHHR’s new system. (See id. ¶ 70.) Nevertheless, in light of his complaints about last year’s provided services, Ms. Nisbet provides that Mark D. never pursued a Medicaid fair hearing, which means he did not exhaust the available resources that may have allowed him to receive additional services. (Id.) 11 One of the declarations by Victoria B. was attached to a motion to seal filed by Plaintiffs on August 15, 2018. (ECF No. 193.) Plaintiffs state that the declaration “includes exhibits that contain protected health information, as defined under the Health Insurance Portability and Accountability Act of 1996 . . . and the Health Information Technology for Economic and Clinical Health Act of 2009,” such as “extensive sensitive and personal health information . . . .” (Id. at 1–2.) Thus, Plaintiffs aver that redaction is impractical and request that the declaration be sealed “[t]o protect the Plaintiff’s privacy and the confidentiality of his protected health information . . . .” (Id.) Defendant did not oppose the motion. For the reasons stated by Plaintiffs, the Court GRANTS the motion and DIRECTS the Clerk to place Exhibit 1 to the motion, (ECF No. 193-1), UNDER SEAL. 12 Defendant moved on July 31, 2018, to seal Ms. Nisbet’s fourth declaration and its accompanying attachments. (ECF No. 187.) Defendant states that the declaration “includes exhibits that contain protected health information, as defined under the Health Insurance Portability and Accountability Act of 1996 . . . and the Health Information Technology for Economic and Clinical Health Act of 2009,” such as “extensive sensitive and personal health information” of Plaintiffs. (Id. at 1–2.) Thus, Defendant avers that redaction is impractical and requests that the declaration be sealed “[t]o protect the Plaintiffs’ privacy and the confidentiality of their protected health information . . . .” (Id. at 1.) Plaintiffs did not oppose the motion. For the reasons stated by Defendant, the Court GRANTS the motion and DIRECTS the Clerk to place Exhibit 1 to the motion, (ECF No. 187-2), UNDER SEAL.
18

Case 2:15-cv-09655 Document 196 Filed 09/25/18 Page 19 of 21 PageID #: 3401
who has been assessed under the new system (James N.)13 has not made an exceptions request for services in excess of his budget. Thus, even if Plaintiffs’ claims were not moot and they were allowed to go forward on the merits as applied to the new system, those claims would not necessarily be ripe for review. Plaintiffs have not demonstrated that any class member has been assigned a budget under the new system and exhausted the available remedies for seeking services outside the assigned budget.
This case boils down to the fact that the system Plaintiffs originally sought to challenge no longer exists. The Court acknowledges that the parties here have expended immense resources on this case, and nothing in this opinion should be construed to hold that the legality of DHHR’s new authorization system is immune from challenge. However, the challenged system has been replaced, and the Court finds that Defendant has met his burden of showing that there is no probability that DHHR will return to the old system and that he has overcome the voluntary cessation exception to mootness. See Grutzmacher, 851 F.3d at 349. (See also ECF No. 179-2 (Nisbet Third Dec.) at 7 (“BMS has no intention to return to its previous service authorization system and to do so would be an incredible financial and administrative burden.”).) Because the system against which the Complaint was lodged has been substantially revised, Plaintiffs’ claims against it are moot. See Phillips v. McLaughlin, 854 F.2d 673, 677 (4th Cir. 1988) (“A request for prospective relief alone, founded on a challenge to a regulation which no longer applies to plaintiffs, does not present an actual case or controversy.”). As such, any challenges to the new system are better addressed in a subsequent lawsuit. Cf. Valdivia, 956 F. Supp. 2d at 1137.
13 The Court notes that in Teresa L.’s first declaration, she refers to her son as James M., (ECF No. 182-4 at 1 ¶ 1), but in the second she calls him James N., (ECF No. 189-2 at 1 ¶¶ 1–3). Ms. Nisbet also refers to him as James N., (ECF No. 187-2 at 8 ¶¶ 28–29), so the Court will use that last initial in this opinion.
19

Case 2:15-cv-09655 Document 196 Filed 09/25/18 Page 20 of 21 PageID #: 3402
Even if the case were not constitutionally moot, the Court would elect to use its “discretionary power to withhold injunctive and declaratory relief for prudential reasons . . . .” See S-1 v. Spangler, 832 F.2d 294, 297–99 (4th Cir. 1987) (citations omitted). It has become clear that the specific relief sought by Plaintiffs may no longer be necessary once the named Plaintiffs and class members receive services under the new authorization system. No Plaintiff or class member has been assigned a budget under the new system and utilized the avenues to obtain services in excess of that budget such as the new exceptions process and a Medicaid fair hearing. Once the named Plaintiffs receive their services over the next year, they may be in an equal or better position than they were in 2014, so there could be a question as to their standing to seek injunctive and declaratory relief and their ability to represent the defined class. Further, the claims in Counts II, III, and IV were lodged against the old system, which is being phased out relatively quickly, and the Court believes that based on the evidence provided by Defendant, the allegedly violative procedures and substantive policies in it may have been cured. Nonetheless, the legality of the new system must be demonstrated in practice. Should unlawful components exist within the new system once it is fully implemented, there are many potential plaintiffs, including those named in the current suit, to challenge it.
IV. CONCLUSION For the reasons above, the Court DENIES Plaintiffs’ Motion for Partial Summary Judgment, (ECF No. 182), and GRANTS IN PART Defendant’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment insofar as it requests that this Court dismiss Plaintiffs’ claims as moot and DENIES IN PART the motion insofar as it requests summary
20

Case 2:15-cv-09655 Document 196 Filed 09/25/18 Page 21 of 21 PageID #: 3403 judgment, (ECF No. 179). The Court further DISMISSES this case and DIRECTS the Clerk to remove this matter from the Court’s docket.
IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.
ENTER: September 25, 2018
21

 
 United States District Court Southern District of West Virginia (Charleston)
CIVIL DOCKET FOR CASE #: 2:15−cv−09655

CLOSED,LC−2

T. et al v. Bowling et al Assigned to: Judge Thomas E. Johnston Cause: 42:1983 Civil Rights Act Plaintiff Michael T. a person with diminished capacity
Plaintiff Eric D. by his guardian
Plaintiff

Date Filed: 07/09/2015 Date Terminated: 09/25/2018 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question
represented by Bren J. Pomponio MOUNTAIN STATE JUSTICE, INC. 1217 Quarrier Street Charleston, WV 25301 304/344−3144 Fax: 304/344−3145 Email: bren@msjlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith MOUNTAIN STATE JUSTICE, INC. Suite 200 1031 Quarrier Street Charleston, WV 25301 304/344−3144 Fax: 304/344−3145 Email: gary@msjlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes MOUNTAIN STATE JUSTICE, INC. Suite 901 215 South Third Street Clarksburg, WV 26301 304/326−0188 Fax: 304/326−0189 Email: lydia@msjlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Connie D.
Plaintiff Sara F. by her guardians
Plaintiff Rebecca F. and
Plaintiff David F.

represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jeremy C. by his guardian
Plaintiff Jo C. and
Plaintiff Tara R. by her guardian
Plaintiff Harv Christian R. on their own behalf and on behalf of all others similarly situated

represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY

V. Defendant Karen Bowling in her official capacity as Secretary of the TERMINATED: 04/26/2017
Defendant West Virginia Department of Health and Human Resources

ATTORNEY TO BE NOTICED
represented by Caroline M. Brown BROWN & PEISCH Suite 505 1233 20th Street, NW Washington, DC 20036 202−499−4258 Email: cbrown@brownandpeisch.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly L. Stitzinger OFFICE OF THE ATTORNEY GENERAL Room 251 350 Capitol Street Charleston, WV 25301 304/356−4846 Fax: 304/558−1509 Email: kimberly.L.Stitzinger@wv.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Peisch BROWN & PEISCH Suite 505 1233 20th Street, NW Washington, DC 20036 202−499−4258 Email: ppeisch@brownandpeisch.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shruti C. Barker COVINGTON & BURLING 850 Tenth Street, NW Washington, DC 20001 202−662−5031 Fax: 202−778−5031 Email: sbarker@cov.com TERMINATED: 10/02/2018 PRO HAC VICE
represented by Caroline M. Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly L. Stitzinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Peisch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Bill J. Crouch in his official capacity as Secretary of DHHR
Guardian ad Litem Julia B. Shalhoup

Shruti C. Barker (See above for address) TERMINATED: 10/02/2018 PRO HAC VICE
represented by Caroline M. Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly L. Stitzinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Peisch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shruti C. Barker (See above for address) TERMINATED: 10/02/2018 PRO HAC VICE
represented by Bren J. Pomponio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia B. Shalhoup Suite 300 231 Capitol Street Charleston, WV 25301 304/345−4455 Fax: 304/343−6881 Email: julia@jshalhoup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/09/2015
07/09/2015

# Docket Text
1 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF. Filing Fee $400.00. Receipt # 0425−4003786. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Civil Cover Sheet) (jsa)
2 ELECTRONIC SUMMONS ISSUED as to Karen Bowling, re: 1 Complaint,. Summons returnable 21 days. Instructions to Counsel: This is your electronic summons. Please print as many copies of the Summons and Complaint as are necessary to effectuate service under Fed. R. Civ. P. 4. See Proof of Service page of

07/09/2015
07/09/2015 07/27/2015 08/14/2015
09/08/2015 09/08/2015 09/08/2015
09/08/2015 09/14/2015 09/14/2015 09/15/2015 09/28/2015 09/28/2015
09/29/2015
10/13/2015 10/13/2015

this Summons form for filing a return of service if required by Fed. R. Civ. P. 4(l). (jsa)
3 STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED MAY 7, 2014. Discovery referred to Magistrate Judge Tinsley. (cc:attys; any unrepresented party) (jsa)
CASE assigned to Judge Thomas E. Johnston. (ras) (Entered: 07/10/2015)
4 SUMMONS ACCEPTED FOR SERVICE BY SECRETARY OF STATE re: 1 Complaint. Accepted by Secretary of State on 7/24/2015 as to Karen Bowling; answer due 8/14/2015. (tmh) (Image rescanned and replaced on 7/29/2015)
5 STIPULATION by Karen Bowling in her official capacity as Secretary of the West Virginia Department of Health and Human Resources, Michael T., Eric D., Connie D., Sara F., Rebecca F., David F., Jeremy C., Harv Christian R. (Jones, Kimberly) (Modified on 8/17/2015 to add party filers) (rea).
6 STATEMENT OF VISITING ATTORNEY from Caroline M. Brown on behalf of Karen Bowling. Local counsel: Kimberly Stitzinger Jones. (Jones, Kimberly) (Modified on 9/9/2015 to add names of visiting attorney and local counsel) (skh).
7 STATEMENT OF VISITING ATTORNEY from Philip J. Peish on behalf of Karen Bowling. Local counsel: Kimberly Stitzinger Jones. (Jones, Kimberly) (Modified on 9/9/2015 to add name of visiting attorney) (skh).
8 LETTER to Clerk, USDC/SDWV, from Philip J. Peisch, Esquire, dated 9/4/2015, enclosing a $150.00 check in payment of Pro Hac Vice fees for Caroline Brown, Philip Peisch and Shruti Barker (Receipt No. 1BLUE000882 attached) (arb) (Modified on 9/10/2015 to replace image of receipt with corrected image) (skh). (Entered: 09/09/2015)
9 PRO HAC VICE FEE in the sum of $150.00 received from Caroline M. Brown, Philip J. Peisch, Shruti C. Barker. Receipt Number 1BLUE000882. (cc: Administrative Services) (skh) (Entered: 09/10/2015)
10 MOTION by Karen Bowling to Dismiss 1 Complaint (Attachment: # 1 Exhibit 1 − Template Letter − Taniua Hardy)(Peisch, Philip)
11 MEMORANDUM OF LAW by Karen Bowling in support of 10 MOTION by Karen Bowling to Dismiss 1 Complaint (Peisch, Philip)
12 STATEMENT OF VISITING ATTORNEY from Shruti C. Barker on behalf of Karen Bowling. Local counsel: Kimberly Stitzinger Jones. (Jones, Kimberly) (Modified on 9/15/2015 to add names of visiting attorney and local counsel) (skh).
13 INCORRECT ENTRY; SEE ENTRY #14. (Modified on 9/29/2015 to remove image and re−file it as entry #14) (skh).
14 FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF by Michael T., Eric D., Connie D., Sara F., Rebecca F., David F., Jeremy C., Jo C., Tara R., Harv Christian R. against Karen Bowling, West Virginia Department of Health and Human Resources. (Attachment: # 1 Exhibits 1−7) (skh) (Entered: 09/29/2015)
NOTICE OF DOCKET CORRECTION re: #13 Response by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. ERROR: Incorrect event selected. CORRECTION: Image removed and filed as an Amended Complaint, entry 14 . (skh)
15 ANSWER TO 14 First Amended Complaint for Injunctive and Declaratory Relief by Karen Bowling.(Peisch, Philip)
16 MOTION by Karen Bowling to Dismiss Counts III and IV and to Dismiss the Claims of Plaintiffs Michael T. and Eric D. re: 14 First Amended Complaint for Injunctive and Declaratory Relief (Attachment: # 1 Exhibits 1−3)(Peisch, Philip)

10/13/2015 10/21/2015 10/26/2015 10/28/2015
10/28/2015 11/06/2015 11/06/2015 11/12/2015 11/12/2015 11/12/2015
11/12/2015 11/12/2015 11/12/2015

17 MEMORANDUM OF LAW by Karen Bowling in support of 16 MOTION by Karen Bowling to Dismiss Counts III and IV and to Dismiss the Claims of Plaintiffs Michael T. and Eric D. re: 14 First Amended Complaint for Injunctive and Declaratory Relief (Peisch, Philip)
18 ORDER AND NOTICE: Rule 12(b) Motions 11/20/2015. Rule 26(f) Meeting 12/28/2015. Last day to file report of Rule 26(f) Meeting 1/4/2015. Telephonic Scheduling Conference at 03:30 PM on 1/15/2016 in Charleston. Entry of Scheduling Order 1/25/2016. Last Day to make Rule 26(a)(1) disclosures 1/29/2016. Signed by Judge Thomas E. Johnston on 10/21/2015. (cc:attys; any unrepresented party) (mmw)
19 UNOPPOSED MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. to Extend Deadline for Response to Defendant's Motion to Dismiss the Amended Complaint to 11/6/2015 (Attachment: # 1 Proposed Order)(Smith, Gary)
20 ORDER granting plaintiffs' 19 UNOPPOSED MOTION to Extend Deadline for Response to defendant's Motion to Dismiss the Amended Complaint; plaintiffs may file their opposition briefing to defendant's 16 Motion to Dismiss Counts III and IV and to Dismiss the Claims of Plaintiffs Michael T. and Eric D., by 11/6/2015. Signed by Judge Thomas E. Johnston on 10/28/2015. (cc: counsel of record; any unrepresented party) (taq)
RESPONSE DEADLINE re: 16 MOTION to Dismiss Counts III and IV and to Dismiss the Claims of Plaintiffs Michael T. and Eric D.; Response due by 11/6/2015 pursuant to 20 order. (taq)
21 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in opposition to 16 MOTION by Karen Bowling to Dismiss Counts III and IV and to Dismiss the Claims of Plaintiffs Michael T. and Eric D. re: 14 First Amended Complaint for Injunctive and Declaratory Relief (Attachment: # 1 Exhibit 1)(Smith, Gary)
22 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. to Exceed the Page Limit for Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction (Attachment: # 1 Proposed Order)(Smith, Gary)
23 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Appointment of Guardian ad Litem for Plaintiff Michael T. (Attachment: # 2 Exhibit 1)(Smith, Gary) (Modified on 11/12/2015 to remove memorandum in support (attachment #1) and file it as entry #32) (skh).
24 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Leave to File Under Seal Exhibits 2−4 in Support of Motion for Appointment of Guardian Ad Litem for Plaintiff Michael T. (Attachment: # 1 Exhibits 2−4)(Smith, Gary)
25 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in support of 24 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Leave to File Under Seal Exhibits 2−4 in Support of Motion for Appointment of Guardian Ad Litem for Plaintiff Michael T. (Smith, Gary) (Modified on 11/12/2015 to remove link to #23 motion)(skh).
26 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Class Certification (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Smith, Gary)
27 MEMORANDUM OF LAW by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in support of 26 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Class Certification (Smith, Gary)
28 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Preliminary Injunction (Attachments: # 1 Appendix − Table of Contents, # 2 Appendix Part 1, # 3 Appendix Part 2)(Smith, Gary)

11/12/2015 11/12/2015
11/12/2015
11/12/2015
11/12/2015 11/13/2015 11/25/2015
11/25/2015 11/25/2015 11/25/2015 11/30/2015 12/02/2015
12/03/2015 12/03/2015

29 MEMORANDUM OF LAW by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in support of 28 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Preliminary Injunction (Smith, Gary)
30 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Leave to File Under Seal Declarations in Support of Motion for Preliminary Injunction. (Attachments: # 1 Decl. of Connie D., # 2 Decl. of Rebecca F., # 3 Decl. of Jo C., # 4 Decl. of Harv Christian R., # 5 Decl. of Kenneth F., Sr.)(Smith, Gary)
31 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in support of 30 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Leave to File Under Seal Declarations in Support of Motion for Preliminary Injunction. (Smith, Gary)
32 MEMORANDUM OF LAW by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in support of 23 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Appointment of Guardian ad Litem for Plaintiff Michael T. (skh)
NOTICE OF DOCKET CORRECTION re: 23 Motion by Plaintiffs for Appointment of Guardian ad Litem for Plaintiff Michael T. ERROR: Memorandum in support attached. CORRECTION: Memorandum removed and filed using the event Memorandum In Support, entry 32 . (skh)
33 REPLY by Karen Bowling to 21 Response In Opposition. (Peisch, Philip)
34 MOTION by Karen Bowling for Expedited Discovery and Briefing Schedule on 28 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Preliminary Injunction and 26 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Class Certification (Peisch, Philip). (Modified on 11/26/2015 to add links to #26 and #28 motions) (skh).
35 JOINT MOTION by Karen Bowling, Plaintiffs for a Telephonic Conference to Schedule Briefing and Expedited Discovery for Plaintiffs' Motion for Preliminary Injunction and Motion for Class Certification (Peisch, Philip) (Modified on 11/26/2015 to add all plaintiffs as filers) (skh).
36 MOTION by Karen Bowling to Stay Briefing on Plaintiffs' Motions for Preliminary Injunction and Class Certification (Peisch, Philip)
37 RESPONSE by Karen Bowling to 23 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Appointment of Guardian ad Litem for Plaintiff Michael T. (Peisch, Philip)
38 ORDER the Court will hold a telephonic status conference on 12/4/2015 at 09:00 AM before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 11/30/2015. (cc: counsel of record; any unrepresented party) (tmh)
39 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in opposition to 36 MOTION by Karen Bowling to Stay Briefing on Plaintiffs' Motions for Preliminary Injunction and Class Certification and 34 MOTION by Karen Bowling for Expedited Discovery and Briefing Schedule on 28 MOTION by Plaintiffs for Peliminary Injunction and 26 MOTION by Plaintiffs for Class Certification (Smith, Gary)
40 MOTION by Karen Bowling to Cancel the December 4, 2015 Telephonic Status Conference re: 38 Order (Peisch, Philip)
41 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in reply to 40 MOTION by Karen Bowling to Cancel the December 4, 2015 Telephonic Status Conference re: 38 Order (Smith, Gary)

12/04/2015 12/07/2015
12/09/2015 12/11/2015 12/14/2015
12/14/2015 01/04/2016 01/05/2016 01/06/2016
01/07/2016 01/08/2016 01/08/2016 01/08/2016 01/08/2016

42 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 12/4/2015. (slw) (Entered: 12/07/2015)
43 ORDER granting the parties 35 JOINT MOTION for a Telephonic Conference to Schedule Briefing and Expedited Discovery for Plaintiffs' Motion for Preliminary Injunction and Motion for Class Certification, denying defendant's 40 MOTION to Cancel the December 4, 2015 Telephonic Status Conference re: 38 Order; Telephonic Status Conference set for 12/11/2015 09:00 AM in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 12/7/2015. (cc: counsel of record; any unrepresented party) (tmh)
44 REPLY by Karen Bowling to 39 Memorandum In Opposition. (Peisch, Philip)
45 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 12/11/2015. (slw)
46 ORDER upon telephonic hearing held 12/11/2015; granting plaintiffs' 23 MOTION for appointment of guardian, subject to the parties agreement on a guardian; denying defendants' 34 MOTION for expedited discovery and briefing schedule; denying defendants' 36 MOTION to stay briefing; Responses to the 28 preliminary injunction motion due by 1/8/2016; and replies due by 1/22/2016; the Court will hold a preliminary injunction hearing on 2/5/2016 at 9:00 a.m. Signed by Judge Thomas E. Johnston on 12/14/2015. (cc: counsel of record; any unrepresented party) (taq) (Modified on 12/14/2015 to add link to #23 motion)
SET DEADLINES as to 28 MOTION for Preliminary Injunction. Responses due by 1/8/2016 and Replies due by 1/22/2016. Hearing set for 2/5/2016 at 9:00 AM in Charleston before Judge Thomas E. Johnston; pursuant to the court's 46 order. (taq)
47 RULE 26(f) REPORT OF PLANNING MEETING by Karen Bowling, Plaintiffs. (Peisch, Philip) (Modified on 1/4/2016 to add all plaintiffs as filers)(skh).
48 UNOPPOSED MOTION by Karen Bowling to Extend Page Limit for Defendant's Response to Plaintiffs' Motion for Preliminary Injunction (Peisch, Philip)
49 ORDER granting Plaintiffs' 22 MOTION to Exceed the Page Limit for Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction; granting Defendants' 48 UNOPPOSED MOTION to Extend Page Limit for Defendant's Response to Plaintiffs' Motion for Preliminary Injunction; the Court will consider Plaintiffs' 29 MEMORANDUM OF LAW for Preliminary Injunction, despite its page length; Defendants may file a responsive briefing to Plaintiffs 28 MOTION for Preliminary Injunction in excess of 20 pages, but no longer than 50 pages. Signed by Judge Thomas E. Johnston on 1/6/2016. (cc: counsel of record; any unrepresented party) (tmh)
50 MOTION by West Virginia Department of Health and Human Resources, Karen Bowling to Enter a Qualified Protective Order to Facilitate the Disclosure of Protected Health Information (Peisch, Philip) (Modified on 1/7/2016 to add party filer) (skh).
51 MOTION by Karen Bowling for Leave to File Under Seal Exhibit 2, Declaration of Patricia Nisbet (and exhibits thereto). (Attachments: # 1 Exhibit 2 − Nisbet Declaration, # 2 Addendum to Nisbet Declaration)(Peisch, Philip)
52 MEMORANDUM by Karen Bowling in support of 51 MOTION by Karen Bowling for Leave to File Under Seal Exhibit 2, Declaration of Patricia Nisbet (and exhibits thereto). (Peisch, Philip)
53 RESPONSE by Karen Bowling in opposition to 26 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Class Certification (Peisch, Philip)
54 RESPONSE by Karen Bowling in opposition to 28 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Preliminary Injunction (Attachments: # 1 Exhibit 1 − Atkins Declaration, # 2 Exhibit 2 − Nisbet Declaration, # 3 Exhibit 3 − Samples Declaration)(Peisch, Philip) (Additional attachment(s) added on 9/4/2019: # 4 Cover Letter and Fed Ex Envelope) (lca).

01/08/2016
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55 VACATED PURSUANT TO 147 ORDER ENTERED 1/18/2017: SCHEDULING ORDER: The Scheduling Conference previously scheduled for 1/15/2016, is canceled. Joinder of Parties, amended pleadings due by 1/18/2016. Discovery requests to be completed by 8/15/2016 and all depositions by 9/30/2016. Expert Witness List by parties bearing the burden of proof due by 8/1/2016, by party not bearing burden of proof due by 9/1/2016, and to solely contradict or rebut evidence due by 9/20/2016. Discovery to close 09/30/2016. Summary Judgment and Other Dispositive Motions except those filed under Rule 12(b) due by 10/20/2016, with responses due by 11/3/2016 and replies due by 11/10/2016. Settlement Meeting to be held by 12/21/2016. Motions in Limine to be filed by 12/28/2016, with responses due by 1/4/2017. Plaintiffs' portion of proposed Pretrial Order to defendants due by 12/26/2016, Proposed Integrated Pretrial Order due by 1/2/2017. Pretrial Conference set for 1/26/2017 at 09:00 AM in Charleston before Judge Thomas E. Johnston. Proposed Charges to the Jury due by 1/31/2017. Final Settlement Conference at 09:00 AM on 1/26/2017 in Charleston. Jury Trial set for 2/7/2017 at 09:00 AM in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 1/8/2016. (cc: attys; any unrepresented party) (tmr) (Modified on 1/18/2017 to noted order is vacated)(taq).
56 JOINT MOTION by Karen Bowling, Plaintiffs to Amend 46 Scheduling Order (Attachment: # 1 Proposed Order)(Peisch, Philip) (Modified on 1/13/2016 to add all plaintiffs as filers)(skh).
57 ORDER granting the 56 JOINT MOTION by Karen Bowling, Plaintiffs to Amend 46 Scheduling Order; the deadline for Plaintiffs' replies in support of their motions for preliminary injunction and class certification are extended to 1/25/2016. Signed by Judge Thomas E. Johnston on 1/14/2016. (cc: counsel of record; any unrepresented party) (tmh)
58 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in support of 51 MOTION by Karen Bowling for Leave to File Under Seal Exhibit 2, Declaration of Patricia Nisbet (and exhibits thereto) (Smith, Gary)
59 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Leave to File Reply Memorandum of No More than Twenty−Five Pages in Length (Smith, Gary)
60 PROPOSED ORDER Granting leave to exceed page limits by five pages by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. (Smith, Gary)
61 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in opposition to 50 MOTION by West Virginia Department of Health and Human Resources, Karen Bowling to Enter a Qualified Protective Order to Facilitate the Disclosure of Protected Health Information (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Smith, Gary)
62 REPLY by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. to 53 Response In Opposition. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Smith, Gary) (Modified on 1/21/2016 to remove links to #36 motion and #37 memorandum) (skh).
63 NOTICE of the Parties' Agreement Upon Candidate for Appointment as Guardian ad Litem for Plaintiff Michael T. by Michael T. re: 46 Order. (Smith, Gary)
64 PROPOSED ORDER Agreed Order Appointing Guardian ad Litem by Michael T., West Virginia Department of Health and Human Resources, Karen Bowling (Smith, Gary) (Modified on 1/22/2016 to add party filers) (skh).
65 ORDER granting Plaintiffs' 59 MOTION for Leave to File Reply Memorandum of No More than Twenty−Five Pages in Length; directing that Plaintiffs may file a reply brief in support of their 28 Motion for Preliminary Injunction, in excess of 20 pages, but no longer than 25 pages. Signed by Judge Thomas E. Johnston on 1/25/2016. (cc: counsel of record; any unrepresented party) (taq)
66 REPLY MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. to 54 Response In

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Opposition. (Attachments: # 1 Exhibit 1 − Declaration of Kenneth F., Sr, # 2 Exhibit 2 − 2015 HBCS State Plan Waiver Description, # 3 Exhibit 3 − 2015 HBSC State Plan App. A, p. 21, # 4 Exhibit 4 − Excerpt Trans. 15−BOR− 2035, # 5 Exhibit 5 − Excerpt Trans. 15−BOR−1612, # 6 Exhibit 6 − IDDW Manual 12.1.15 revision, # 7 Exhibit 7 − Excerpts from West Virginia Olmstead Plan (2005), # 8 Exhibit 8 − Declaration of Joy Arbuckle)(Smith, Gary) (Modified on 1/26/2016 to remove link to #29 memorandum) (skh).
67 MOTION by Karen Bowling for an Expedited Status Conference to Resolve Medical Privacy Issues for the Preliminary Injunction Hearing (Attachment: # 1 Exhibit 1)(Peisch, Philip)
68 REPLY by Karen Bowling to 61 Memorandum In Opposition. (Peisch, Philip) (Modified on 1/27/2016 to remove link to #61 memorandum) (skh).
69 ORDER directing that a telephone conference regarding Defendant's 50 MOTION to Enter a Qualified Protective Order to Facilitate the Disclosure of Protected Health Information is set for 2/3/2016 at 10:00 AM; counsel will be advised of call in information via email. Signed by Magistrate Judge Dwane L. Tinsley on 1/28/2016. (cc: counsel of record; any unrepresented party) (tmh)
70 ORDER directing that the Preliminary Injunction Hearing is rescheduled for 2/19/2016 at 09:00 AM in Charleston before Judge Thomas E. Johnston; denying without prejudice the 67 MOTION by Karen Bowling for an Expedited Status Conference to Resolve Medical Privacy Issues for the Preliminary Injunction Hearing. Signed by Judge Thomas E. Johnston on 1/28/2016. (cc: counsel of record; any unrepresented party) (tmh)
71 JOINT MOTION by Karen Bowling, Plaintiffs for Reconsideration of the 70 Order Rescheduling the Preliminary Injunction Hearing (Attachments: # 1 Proposed Order, # 2 Joint Stipulation)(Peisch, Philip) (Modified on 1/30/2016 to add party filers) (skh).
72 ORDER denying the parties' 71 JOINT MOTION for Reconsideration of the Order Rescheduling the Preliminary Injunction Hearing; as noted by its 1/28/2016 70 order, the Court will conduct the hearing regarding Plaintiffs' 28 Motion for Preliminary Injunction on 2/19/2016 at 9:00 a.m. Signed by Judge Thomas E. Johnston on 2/1/2016. (cc: counsel of record; any unrepresented party) (mmw)
73 MOTION by Karen Bowling to Continue Preliminary Injunction Hearing (Attachment: # 1 Proposed Order)(Peisch, Philip)
74 ORDER directing that the continuation of the telephone conference regarding Defendant's 50 MOTION to Enter a Qualified Protective Order to Facilitate the Disclosure of Protected Health Information is scheduled for 2/8/2016 at 1:00 PM in Charleston before Magistrate Judge Dwane L. Tinsley; the call in information will be the same. Signed by Magistrate Judge Dwane L. Tinsley on 2/3/2016. (cc: counsel of record; any unrepresented party) (taq)
76 TELEPHONIC STATUS CONFERENCE held by Magistrate Judge Dwane L. Tinsley on 2/3/2016; Court Reporter: Ayme Cochran. (taq) (Entered: 02/08/2016)
75 ORDER granting 73 MOTION to Continue Preliminary Injunction Hearing; the preliminary injunction hearing scheduled for 2/19/2016 is continued to 3/11/2016 at 9:00 a.m. Signed by Judge Thomas E. Johnston on 2/4/2016. (cc: counsel of record; any unrepresented party) (tmh)
77 TELEPHONIC STATUS CONFERENCE held by Magistrate Judge Dwane L. Tinsley on 2/8/2016; Court Reporter: Lisa Cook. (taq)
78 ORDER directing that the continuation of the telephone conference regarding Defendant's 50 MOTION to Enter a Qualified Protective Order to Facilitate the Disclosure of Protected Health Information is scheduled for 2/16/2016 at 10:00 a.m. in Charleston before Magistrate Judge Dwane L. Tinsley; the call in information will be the same as from the previous telephone conferences. Signed by Magistrate Judge Dwane L. Tinsley on 2/8/2016. (cc: counsel of record; any unrepresented party) (taq)
79 ORDER directing that the continuation of the telephone conference regarding Defendant's 50 MOTION to Enter a Qualified Protective Order to Facilitate the

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Disclosure of Protected Health Information has been rescheduled for 2/19/2016 at 10:00 a.m.; the call information will be the same as from the previous telephone conferences. Signed by Magistrate Judge Dwane L. Tinsley on 2/11/2016. (cc: counsel of record; any unrepresented party) (tmh)
80 TELEPHONIC STATUS CONFERENCE held by Magistrate Judge Dwane L. Tinsley on 2/19/2016. (tmr)
81 CERTIFICATE OF SERVICE by Karen Bowling for Rule 26(a)(1) Initial Disclosures. (Peisch, Philip)
82 CERTIFICATE OF SERVICE by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Rule 26(a)(1) Initial Disclosures. (Smith, Gary)
83 AGREED ORDER APPOINTING JULIA B. SHALHOUP AS GUARDIAN AD LITEM FOR PLAINTIFF MICHAEL T. SOLELY FOR THE PURPOSES OF THIS LITIGATION directing that Julia B. Shalhoup is appointed guardian ad litem for plaintiff Michael T. to act as his personal surrogate, fiduciary, and representative in connection with the prosecution of this litigation on his behalf, until further order of the Court. Signed by Judge Thomas E. Johnston on 2/24/2016. (cc: attys; any unrepresented party; Julia B. Shalhoup) (tmh)
84 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S POSITION REGARDING PARAGRAPH 4(d) OF THE DRAFT AGREED PROTECTIVE ORDER by Karen Bowling re: 50 MOTION by West Virginia Department of Health and Human Resources, Karen Bowling to Enter a Qualified Protective Order to Facilitate the Disclosure of Protected Health Information (Attachment: # 1 Attachment A)(Peisch, Philip)
85 NOTICE OF CHANGE OF ADDRESS by Lydia C. Milnes (Milnes, Lydia)
86 MEMORANDUM ON CONTESTED PROTECTIVE ORDER PARAGRAPH 4(d) by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. (Attachment: # 1 WVEB−P102)(Smith, Gary)
87 MOTION by Rebecca F. for Protective Order (Smith, Gary)
MOTION REFERRED to Magistrate Judge Dwane L. Tinsley: 87 MOTION by Rebecca F. for Protective Order (skh)
88 NOTICE OF CERTIFICATION FOR USE OF COURTROOM TECHNOLOGY on March 11, 2016 at Judge Johnston's Courtroom (Peisch, Philip)
89 OPPOSITION by Karen Bowling to 87 MOTION by Rebecca F. for Protective Order (Peisch, Philip)
90 ORDER granting defendant's 50 MOTION to Enter a Qualified Protective Order to Facilitate the Disclosure of Protected Health Information; directing the parties to FILE the attached Agreed Protective Order with the Court. Signed by Magistrate Judge Dwane L. Tinsley on 3/7/2016. (Attachment: # 1 Agreed Protective Order) (cc: counsel of record; any unrepresented party) (taq)
91 ORDER denying the 87 MOTION for Protective Order; directing the parties to confer and reach an agreed upon date and time for the oral deposition of Rebecca F. in Lewisburg, West Virginia; the parties to conclude the deposition prior to the preliminary injunction hearing as currently scheduled. Signed by Magistrate Judge Dwane L. Tinsley on 3/7/2016. (cc: counsel of record) (taq)
92 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. Seeking Judicial Notice of Certain Documents (Milnes, Lydia)
93 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in support of 92 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. Seeking Judicial Notice of Certain Documents (Milnes, Lydia)

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94 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Strike the Declarations attached to the 54 Response In Opposition (Attachment: # 1 Exhibit 1)(Smith, Gary)
95 RESPONSE by Karen Bowling in opposition to 94 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Strike the Declarations attached to the 54 Response In Opposition (Peisch, Philip)
96 MOTION by Karen Bowling to Quash Subpoena (Peisch, Philip)
MOTION REFERRED to Magistrate Judge Dwane L. Tinsley: 96 MOTION by Karen Bowling to Quash Subpoena (skh) (Entered: 03/11/2016)
97 RETURN OF SERVICE ON SUBPOENA for Tony Atkins. (Smith, Gary)
98 MOTION HEARING held by Judge Thomas E. Johnston on 3/11/2016 re: 28 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Preliminary Injunction Court Reporter: Ayme Cochran. (slw) (Entered: 03/17/2016)
99 PROPOSED ORDER Agreed Protective Order by Karen Bowling, All Plaintiffs (Peisch, Philip) (Modified on 3/17/2016 to add all plaintiffs as filers) (skh).
100 AGREED PROTECTIVE ORDER Setting forth the terms for the handling of confidential documents. Signed by Magistrate Judge Dwane L. Tinsley on 3/18/2016. (cc: attys; any unrepresented party) (jk)
101 MOTION by Karen Bowling for Leave to File the Declaration of Cynthia Beane (Attachments: # 1 Declaration, # 2 Proposed Order)(Peisch, Philip)
102 ORDER pursuant to the 3/11/2016 preliminary injunction hearing; directing the Clerk to place the following exhibits from that hearing UNDER SEAL: Plaintiffs' Exhibit Numbers 1, 10, 13, 21, and 25; Defendant's Exhibit Number 3, and pages 10−19 of Defendant's Exhibit Number 1. Signed by Judge Thomas E. Johnston on 3/21/2016. (cc: counsel of record; any unrepresented party) (taq)
103 DECLARATION of Michael Wolfe, filed on behalf of Karen Bowling (Attachment: # 1 Declaration)(Peisch, Philip)
104 ADMINISTRATIVE RECORD, SEALED, submitted by Karen Bowling re: 103 Declaration (Peisch, Philip)
105 WITNESS LIST for hearing held 3/11/2016. (taq)
106 EXHIBIT LIST FROM MOTION HEARING held 3/11/2016. (taq)
107 SEALED EXHIBITS for Hearing held 3/11/2016 pursuant to the Court's Order entered 3/21/2016. (Attachments: # 1 Plaintiff's Exhibit No. 1, # 2 Plaintiff's Exhibit No. 10, # 3 Plaintiff's Exhibit No. 13, # 4 Plaintiff's Exhibit No. 21, # 5 Plaintiff's Exhibit No. 25, # 6 Defendant's Exhibit No. 3, # 7 Defendant's Exhibit No. 1 (pages 10−19) (taq) (Entered: 03/22/2016)
108 EXHIBITS FROM MOTION HEARING Plaintiffs' Exhibit Numbers: 2−9; 11−12; 14−20; 22−24. (Attachments: # 1 Plaintiff's Exhibit No. 2, # 2 Plaintiff's Exhibit No. 3, # 3 Plaintiff's Exhibit No. 4, # 4 Plaintiff's Exhibit No. 5, # 5 Plaintiff's Exhibit No. 6, # 6 Plaintiff's Exhibit No. 7, # 7 Plaintiff's Exhibit No. 8, # 8 Plaintiff's Exhibit No. 9, # 9 Plaintiff's Exhibit No. 11, # 10 Plaintiff's Exhibit No. 12, # 11 Plaintiff's Exhibit No. 14, # 12 Plaintiff's Exhibit No. 15, # 13 Plaintiff's Exhibit No. 16, # 14 Plaintiff's Exhibit No. 17, # 15 Plaintiff's Exhibit No. 18, # 16 Plaintiff's Exhibit No. 19, # 17 Plaintiff's Exhibit No. 20, # 18 Plaintiff's Exhibit No. 22, # 19 Plaintiff's Exhibit No. 23, # 20 Plaintiff's Exhibit No. 24) (taq) (Entered: 03/22/2016)
109 EXHIBITS FROM MOTION HEARING Defendant's Exhibit Number: 2 (Attachment: # 1 Defendant's Exhibit No. 2) (taq) (Entered: 03/22/2016)
110 RESPONSE by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. in opposition to 101 MOTION by Karen Bowling for Leave to File the Declaration of Cynthia Beane (Milnes, Lydia)

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111 DECLARATION of Michael Wolfe, dated April 1, 2015, filed on behalf of Eric D., Julia B. Shalhoup, Jeremy C., Sara F., David F., Harv Christian R., Michael T., Tara R., Rebecca F., Jo C., Connie D. re: 28 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Preliminary Injunction (Attachments: # 1 Declaration, # 2 Certificate of Service)(Milnes, Lydia) (Modified on 4/5/2016 to add link to #28 motion) (skh).
112 NOTICE OF COMPLETION OF EVIDENTIARY RECORD for the March 11, 2016 Hearing on Plaintiffs' Motions for Class Certification and Preliminary Injunction by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. (Attachments: # 1 Deposition of Tony Atkins, # 2 Exhibit 1 to Atkins Deposition, # 3 Exhibit 2 to Atkins Deposition, # 4 Authenticated portions of Exhibit 3 to Atkins deposition)(Smith, Gary)
113 REPLY by Karen Bowling to 110 Response In Opposition. (Peisch, Philip)
114 LETTER−FORM NOTICE OF RELEVANT PORTIONS OF ATKINS DEPOSITION TRANSCRIPT by Karen Bowling re: 112 Notice of Completion of Evidentiary Record (Peisch, Philip)
115 TRANSCRIPT OF PROCEEDINGS of Motions Hearing held on 03/11/2016, before Judge Thomas E. Johnston. Court Reporter Ayme Cochran, Telephone number 304−347−3128. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due 4/25/2016. Redaction Request due 5/5/2016. Redacted Transcript Deadline set for 5/16/2016. Release of Transcript Restriction set for 7/13/2016. (aac)
116 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Modify 55 Scheduling Order (Milnes, Lydia)
117 OPPOSITION by Karen Bowling to 116 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Modify 55 Scheduling Order (Attachment: # 1 Attachment A)(Peisch, Philip)
118 NOTICE re: Status of Innovative Resource Group, LLC v. Bowling, 16−cv−06475 by Karen Bowling (Attachment: # 1 Exhibit 1)(Peisch, Philip)
119 RETURN OF SERVICE ON SUBPOENA for Innovative Resource Group, Inc. (Pomponio, Bren)
120 RETURN OF SERVICE ON SUBPOENA for Innovative Resource Group, Inc. (Pomponio, Bren)
121 ORDER telephonic status conference set for 9/20/2016 at 2:00 p.m. in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 9/13/2016. (cc: counsel of record; any unrepresented party) (taq)
122 MEMORANDUM OPINION AND ORDER granting in part the 28 MOTION for Preliminary Injunction, to the extent Plaintiffs request a preliminary injunction restoring the named Plaintiffs' 2014 individualized waiver benefits; the Court PRELIMINARILY ENJOINS AND ORDERS Defendant to reinstate the named Plaintiffs' individualized I/DD Waiver Program budgets to the amounts Plaintiffs received in 2014, but only for those Plaintiffs that received a reduction in their individualized budgets after 2014; this preliminary injunction to remain in force and effect pending the outcome of this action; the Clerk to UNSEAL and DOCKET the following pages within Exhibit 2 (Nisbet Declaration) and its Addendum attached to Defendant's 1/8/2016 51 Motion for Leave to File under Seal: ECF No. 51−1 at 19, 124; ECF No. 51−2 at 1546; denying as moot 94 MOTION to Strike; denying as moot 96 MOTION to Quash Subpoena; denying as moot 10 MOTION to Dismiss Plaintiffs' Complaint; granting 24 MOTION for Leave to File under Seal; granting 30 MOTION for Leave to File under Seal; granting in part 51 MOTION for Leave to File under Seal, to the extent that the Declaration and Addendum contain protected health and other confidential information of the Plaintiffs; within Exhibit 2, Ms. Nisbet's Declaration, pages 1 through 9 shall be made public; granting 101 MOTION for Leave to File the Declaration of Cynthia Bean; directing that the Rule 65(c) bond requirement

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is WAIVED as to the preliminary injunction provided herein. Signed by Judge Thomas E. Johnston on 9/13/2016. (cc: counsel of record; any unrepresented party) (taq)
123 EXHIBIT 2 (Nisbet Declaration 1−9) filed pursuant to to the Court's 122 Order, re: 51 Motion for Leave to File Under Seal. (taq)
124 ADDENDUM (hearing request form) filed pursuant to the Court's 122 Order, re: 51 Motion for Leave to File Under Seal. (taq)
125 DECLARATION of Cynthia Beane filed pursuant to the Court's 122 Order, re: 28 Motion for Preliminary Injunction. (taq)
126 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 9/20/2016. (slw) (Entered: 09/21/2016)
127 RETURN OF SERVICE ON SUBPOENA for Hannah Kinsey. (Peisch, Philip)
128 RETURN OF SERVICE ON SUBPOENA for Jessica Limley. (Peisch, Philip)
129 RETURN OF SERVICE ON SUBPOENA for Michael Wolfe. (Peisch, Philip)
130 RETURN OF SERVICE ON SUBPOENA for Joy Arbuckle. (Peisch, Philip)
131 RETURN OF SERVICE ON SUBPOENA for Open Doors, Inc. (Peisch, Philip)
132 RETURN OF SERVICE ON SUBPOENA for Jackson County Developmental Center, Inc. (Peisch, Philip)
133 RETURN OF SERVICE ON SUBPOENA for REM−West Virginia. (Peisch, Philip)
134 ORDER telephonic status conference set for 9/30/2016 at 10:00 a.m. in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 9/23/2016. (cc: counsel of record; any unrepresented party) (taq)
135 JOINT MEMORANDUM by Karen Bowling, All Plaintiffs on Status of Plaintiffs Michael T. and Eric D. (Peisch, Philip) (Modified on 9/29/2016 to add party filers)(skh).
136 ORDER denying the defendant's 16 MOTION to Dismiss Counts III and IV and the Claims of Plaintiffs Michael T. and Eric D.; and granting plaintiffs' 26 MOTION for Class Certification; Gary Smith, Bren Pomponio, and Lydia Milnes, to serve as class counsel in accordance with Federal Rule of Civil Procedure 23(g), and defines the class as set forth more fully herein; settlement conference set for 10/28/2016 at 9:00 a.m.; all persons with full authority to settle the matter are directed to be in attendance. Signed by Judge Thomas E. Johnston on 9/30/2016. (cc: counsel of record; any unrepresented party) (taq)
137 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 9/30/2016. (slw)
138 TRANSCRIPT OF PROCEEDINGS of Telephonic Pretrial Conference held on 09/30/2016, before Judge Thomas E. Johnston. Court Reporter Ayme Cochran, Telephone number 304−347−3128. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due 10/24/2016. Redaction Request due 11/2/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/10/2017. (aac)
139 CERTIFICATE OF SERVICE filed by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Responses to First Set of Interrogatories, Requests for Production of Documents and Requests for Admissions (Smith, Gary)
140 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Extend Preliminary Injunctive Relief to Class Members (Attachments: # 1 Exhibit 1 − Affidavit of Thomas Basile, # 2 Exhibit 2 − Declaration of Jessica H., # 3 Exhibit 3 − Declaration of Kenneth F., Sr., # 4 Exhibit 4 − Declaration of Tracey G.)(Milnes, Lydia)

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141 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. in support of 140 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Extend Preliminary Injunctive Relief to Class Members (Milnes, Lydia)
142 SETTLEMENT CONFERENCE held by Judge Thomas E. Johnston on 10/28/2016. (slw) (Entered: 11/02/2016)
143 ORDER telephonic status conference set for 11/30/2016 at 10:00 a.m. in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 11/2/2016. (cc: counsel of record; any unrepresented party) (taq)
144 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 11/30/2016. (slw) (Entered: 12/01/2016)
145 ORDER pursuant to the telephonic status conference conducted on 11/30/2016; granting the 92 MOTION Seeking Judicial Notice of Certain Documents; and denying as moot the 116 MOTION to Modify Scheduling Order; the Court will hold another telephonic status conference in this case on 1/20/2017 at 10:00 a.m. Signed by Judge Thomas E. Johnston on 12/1/2016. (cc: counsel of record; any unrepresented party) (taq)
146 MOTION by Karen Bowling, West Virginia Department of Health and Human Resources, Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Continue the January 20, 2017 Status Conference (Attachment: # 1 Joint Status Update)(Peisch, Philip) (Modified on 1/13/2017 to add party filers) (skh).
147 ORDER granting the 146 JOINT MOTION to continue the status conference; vacating the current scheduling order; the telephonic status conference is CONTINUED to 3/10/2017 at 10:00 a.m. Signed by Judge Thomas E. Johnston on 1/18/2017. (cc: counsel of record; any unrepresented party) (taq)
148 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 3/10/2017. (slw) (Entered: 03/14/2017)
149 ORDER telephonic status conference set for 4/28/2017 at 2:00 p.m. in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 3/14/2017. (cc: counsel of record; any unrepresented party) (taq)
150 CONSENT MOTION by Karen Bowling, West Virginia Department of Health and Human Resources to Substitute Party (Peisch, Philip) (Modified on 4/25/2017 to add party filer) (kp).
151 ORDER granting the 150 CONSENT MOTION to Substitute a Party; directing the Clerk to substitute Bill J. Crouch, in his official capacity as Secretary of DHHR, as the named Defendant in this matter Signed by Judge Thomas E. Johnston on 4/26/2017. (cc: counsel of record; any unrepresented party) (taq)
152 JOINT STATUS REPORT by Bill J. Crouch and all Plaintiffs (Peisch, Philip) (Modified on 4/28/2017 to add party filers) (dvb).
153 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 4/28/2017. (slw)
154 ORDER pursuant to a telephonic status conference held 4/28/2017; and for reasons more fully stated on the record at that hearing, directing the case to proceed as follows: Defendant to file any opposition to Plaintiffs' motion to extend the preliminary injunction by 5/12/2017; Defendant to file any motion to lift the preliminary injunction by 5/12/2017; Plaintiffs to file any reply in support of their motion to extend the preliminary injunction by 5/19/2017; Plaintiffs to file any opposition to Defendant's motion to lift the preliminary injunction by 5/26/2017; and Defendant to file any reply in support of its motion to lift the preliminary injunction by 6/2/2017. Signed by Judge Thomas E. Johnston on 4/28/2017. (cc: counsel of record; any unrepresented party) (taq)
155 MOTION by Bill J. Crouch to Vacate or Modify the Preliminary Injunction Order Re: 122 Memorandum Opinion and Order (Attachments: # 1 Exhibit 1 Description of New Service Authorization Process, # 2 Exhibit 2 Declaration of Cynthia Beane)(Peisch,

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Philip)
156 MEMORANDUM by Bill J. Crouch in support of 155 MOTION by Bill J. Crouch to Vacate or Modify the Preliminary Injunction Order Re: 122 Memorandum Opinion and Order (Peisch, Philip)
157 OPPOSITION by Bill J. Crouch to 140 MOTION by All Plaintiffs to Extend Preliminary Injunctive Relief to Class Members (Attachment: # 1 Exhibit 1 May 4, 2017 Email)(Peisch, Philip)
158 REPLY MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to 157 Response In Opposition. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Smith, Gary) (Modified on 5/22/2017 to remove link to # 140 motion)(ts).
159 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Extension of Time to File Response to 155 MOTION by Bill J. Crouch to Vacate 122 Memorandum Opinion and Order to May 31, 2017 and for Defendant's to Reply to June 7, 2017. (Pomponio, Bren) (Modified on 5/30/2017 to remove link to # 156 memorandum and add party filers) (ts).
160 NOTICE of Errata as to Docket 158 Reply Memorandum by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. (Smith, Gary) (Modified on 5/31/2017 to add link to # 158 reply memorandum) (kp).
161 ORDER granting the 159 MOTION for Extension of Time; plaintiffs must file their response to defendant's 155 MOTION to Vacate or Modify the 122 Preliminary Injunction Order by 5/31/2017; and defendant must file his reply by 6/7/2017. Signed by Judge Thomas E. Johnston on 5/31/2017. (cc: counsel of record; any unrepresented party) (taq)
162 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. for Leave to File Response Memorandum of Thirty Four Pages in Length (Attachment: # 1 Proposed Order)(Smith, Gary) (Modified on 6/1/2017 to remove party filer)(ts).
163 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in opposition to 155 MOTION by Bill J. Crouch to Vacate or Modify the Preliminary Injunction Order Re: 122 Memorandum Opinion and Order (Attachments: # 1 Affidavit − Plaintiff Rebecca F., # 2 Affidavit − Plaintiff H. Christian R., # 3 Affidavit − Plaintiff Connie D., # 4 Affidavit − David Kuckuck, # 5 REM − Kuckuck, # 6 Affidavit − M. A. Games, # 7 Games − Northwood, # 8 Internet Materials CMS Olmstead Ltr 4)(Smith, Gary) (Modified on 6/7/2017 to remove link to # 162 and remove party filer) (ts). (Modified on 6/7/2017 to substitute and replace Exhibit #7 pursuant to #166 order)) (taq).
164 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Michael T., Julia B. Shalhoup, Sara F., Tara R. to Replace Image filed as Exhibit 7 attached to 163 Response In Opposition. (Attachment: # 1 Corrected Exhibit 7) (Smith, Gary) (Modified on 6/5/2017 to add party filers) (kp).
165 ORDER granting plaintiffs' 162 MOTION for Leave to File Response Memorandum of Thirty Four Pages in Length. Signed by Judge Thomas E. Johnston on 6/2/2017. (cc: counsel of record; any unrepresented party) (taq)
166 ORDER granting plaintiffs' 164 MOTION to Replace Image; and directing the Clerk to substitute ECF No. 164 −1 for ECF No. 163 −7. Signed by Judge Thomas E. Johnston on 6/7/2017. (cc: counsel of record; any unrepresented party) (taq)
167 REPLY by Bill J. Crouch to 163 Memorandum In Opposition. (Attachments: # 1 Exhibit 1 2015 I/DD Waiver (Excerpted), # 2 Exhibit 2 2015 I/DD Waiver − Chart of Service Caps)(Peisch, Philip) (Modified on 6/8/2017 to remove link to #155 motion) (dvb).
168 NOTICE of Timetable for New Service Authorization Process by Bill J. Crouch (Peisch, Philip)

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169 MEMORANDUM OPINION AND ORDER denying without prejudice plaintiffs' 140 MOTION to Extend Preliminary Injunctive Relief to Class Members. Signed by Judge Thomas E. Johnston on 9/20/2017. (cc: counsel of record; any unrepresented party) (taq)
170 MEMORANDUM OPINION AND ORDER granting in part and denying in part 155 MOTION to Vacate or Modify Preliminary Injunction Order; granting in part the Motion to Vacate or Modify Preliminary Injunction Order to the extent Defendant requests that the Court lift the injunction to allow DHHR to begin implementing the proposed service authorization system as to the named Plaintiffs; otherwise denying said motion; the Court MODIFIES its 122 memorandum opinion and order entered on 9/13/2016 as follows: the preliminary injunction will expire individually as to each named Plaintiff on the individual's first anchor date following this memorandum opinion and order's entry unless the anchor date falls within 90 days of entry in which case the preliminary injunction will expire on the individual's second anchor date subsequent to this order's entry; Defendant to provide the Court with an updated status report as to the new system's implementation within 30 days of this memorandum opinion and order's entry. Signed by Judge Thomas E. Johnston on 3/26/2018. (cc: counsel of record; any unrepresented party) (taq)
IMPORTANT NOTICE: The United States District Court for the Southern District of West Virginia (WVSD) will be upgrading its current CM/ECF system to the Next Generation of CM/ECF (NextGen CM/ECF) on Monday, June 11, 2018. Complete information regarding the WVSD NextGen CM/ECF implementation can be found at h ttp://www.wvsd.uscourts.gov/nextgen−information. Currently, many attorneys within a firm may share a single PACER account. This will no longer be allowed with the new WVSD NextGen CM/ECF system because each attorney must have an individual upgraded PACER account that will be linked to their e−filing account. Shared PACER accounts cannot be used by WVSD e−filing attorneys once the WVSD NextGen CM/ECF system is implemented. Preparing for NextGen CM/ECF is a two−step process. Step one is to upgrade your PACER account, and step two is to link your upgraded PACER account to the WVSD e−filing account in the upgraded NextGen CM/ECF system. This notice only addresses the first step because the second step can't be completed until on or after June 11, 2018. The first step is to check and see if your PACER account is an "Upgraded" PACER account. Many PACER accounts have already been upgraded. If any of the following is true, you have an upgraded PACER account and no action is required until after the WVSD NextGen CM/ECF upgrade on June 11, 2018: 1) You have an upgraded PACER account for another NextGen court; or, 2) Your PACER account was created after August 10, 2014. If none of these are true, you must upgrade your legacy PACER account before you will be able to link your PACER account to your current WVSD CM/ECF account for your new NextGen CM/ECF account. Additional notices will be sent at a later date on how to handle the second step in this process. If you still have questions please contact the PACER Service Center at 800−676−6856 or the WVSD Clerk's Office CM/ECF Help Desk at (304)−347−3111. (mwk) (ADI)
171 STATUS REPORT by Bill J. Crouch (Attachment: # 1 Exhibit A)(Peisch, Philip)
172 ORDER telephonic status conference set for 5/7/2018 at 2:00 p.m. before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 4/30/2018. (cc: counsel of record; any unrepresented party) (taq)
173 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 5/7/2018. (slw) (Modified on 5/30/2018 to correct proceeding date) (rea). (Entered: 05/09/2018)
174 AMENDED SCHEDULING ORDER: Pursuant to a telephonic status conference held 5/7/2018; directing the case to proceed as follows: Dispositive Motions except those filed under Rule 12(b) due by 7/2/2018, with responses due by 7/31/2018 and replies due by 8/15/2018. Signed by Judge Thomas E. Johnston on 5/9/2018. (cc: counsel of record; any unrepresented party) (taq)
IMPORTANT NOTICE: The United States District Court for the Southern District of West Virginia (WVSD) will be upgrading its current CM/ECF system to the Next Generation of CM/ECF (NextGen CM/ECF) on Monday, June 11, 2018. Complete information regarding the WVSD NextGen CM/ECF implementation can be found at h ttp://www.wvsd.uscourts.gov/nextgen−information. Preparing for NextGen CM/ECF is a two−step process. Step one was to upgrade your PACER account. Each attorney

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should have their own individual upgraded PACER account at this time. Step two will be to link your upgraded PACER account to your WVSD e−filing account in the new NextGen CM/ECF system on or after June 11, 2018. Please log in to the WVSD CM/ECF system at http://ecf.wv sd.uscourts.gov before June 7, 2018 to make sure you know your current WVSD e−filing login and password. Do not rely on your username and password being saved in your web browser, because that method will not work with the NextGen upgrade. If you do not know your login or password or have any additional questions please call the WVSD Clerk's Office CM/ECF Help Desk at (304)−347−3111. (mwk) (ADI)
IMPORTANT NOTICE: The United States District Court for the Southern District of West Virginia (WVSD) will be upgrading its current CM/ECF system to the Next Generation of CM/ECF (NextGen CM/ECF) on Monday, June 11, 2018. The WVSD CM/ECF system will be unavailable from 12:00pm (noon) on Friday, June 8, 2018 until 6:00am on Monday, June 11, 2018. Preparing for NextGen CM/ECF is a two−step process. Step one was to upgrade your PACER account. Each attorney should have their own individual upgraded PACER account at this time. Step two will be to link your upgraded PACER account to your WVSD e−filing account in the new NextGen CM/ECF system on or after June 11, 2018. Instructions for linking your account can be found at http://www.wvsd. uscourts.gov/pdfs/NextGen/WVSD_Link_PACER_to_CM−ECF.pdf. If you have any additional questions please call the WVSD Clerk's Office CM/ECF Help Desk at (304)−347−3111. (mwk) (ADI)
175 MOTION by Bill J. Crouch, West Virginia Department of Health and Human Resources to Amend 174 Amended Scheduling Order. (Attachment: # 1 Proposed Order) (Barker, Shruti) (Modified on 6/16/2018 to add party filer) (kp).
176 RESPONSE by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. in opposition to 175 MOTION by Bill J. Crouch, West Virginia Department of Health and Human Resources to Amend 174 Amended Scheduling Order (Pomponio, Bren) (Modified on 6/21/2018 to add party filer) (kp).
177 NOTICE OF CHANGE OF ATTORNEY INFORMATION by Bren J. Pomponio updating name and/or firm information on behalf of Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. (Pomponio, Bren) (Modified on 6/21/2018 to add party filer) (kp).
178 ORDER the Court elects to maintain the dates set forth in the 174 Amended Scheduling Order; denying 175 MOTION by Bill J. Crouch, West Virginia Department of Health and Human Resources to Amend Scheduling Order. Signed by Judge Thomas E. Johnston on 6/25/2018. (cc: counsel of record; any unrepresented party) (taq)
179 MOTION by Bill J. Crouch, West Virginia Department of Health and Human Resources to Dismiss 14 Amended Complaint or, in the Alternative, Motion for Summary Judgment (Attachments: # 1 Statement of Undisputed Facts, # 2 Declaration, # 3 Proposed Order) (Barker, Shruti)
180 MEMORANDUM by Bill J. Crouch, West Virginia Department of Health and Human Resources in support of 179 MOTION by Bill J. Crouch, West Virginia Department of Health and Human Resources to Dismiss 14 Amended Complaint or, in the Alternative, Motion for Summary Judgment (Barker, Shruti)
181 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Leave to File Response Memorandum in Support of Partial Motion for Summary Judgment of no More Than Twenty−Five Pages in Length (Attachment: # 1 Proposed Order)(Milnes, Lydia)
182 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Partial Summary Judgment (Attachments: # 1 DHHR Chapter 513 (thru 1/31/18), # 2 DHHR Chapter 513 (current), # 3 Affidavit of Tracey G, # 4 Affidavit of Teresa I, # 5 Affidavit of Robert J, # 6 Affidavit of Charles M, # 7 DHHR Chapter 511, # 8 Affidavit of Connie Walsh, # 9 Exhibit to Walsh Declaration 8A, # 10 DHHR New Methodology Power Point, # 11 Affidavit of Victoria B, # 12 Internet Materials DHHR website)(Smith, Gary)

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183 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. in support of 182 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Partial Summary Judgment (Smith, Gary)
184 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. to Strike Description of New Service Authorization Process (Pomponio, Bren) (Modified on 7/31/2018 to add party filer) (kp).
185 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. to Strike Paragraph Fifteen and Sixteen of the Third Declaration of Patricia S. Nisbet (Pomponio, Bren) (Modified on 7/31/2018 to add party filer) (kp).
186 MEMORANDUM by Bill J. Crouch in opposition to 182 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Partial Summary Judgment (Attachment: # 1 Exhibit 1)(Barker, Shruti)
187 MOTION by Bill J. Crouch to Seal Fourth Nisbet Declaration of Patricia S. Nisbet and Accompanying Attachments. (Attachment: # 1 Proposed Order, # 2 Exhibit 1)(Barker, Shruti)
188 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. in opposition to 179 MOTION by Bill J. Crouch, West Virginia Department of Health and Human Resources to Dismiss 14 Amended Complaint or, in the Alternative, Motion for Summary Judgment (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Smith, Gary)
189 RESPONSE by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. in opposition to 179 MOTION by Bill J. Crouch, West Virginia Department of Health and Human Resources to Dismiss 14 Amended Complaint or, in the Alternative, Motion for Summary Judgment (Attachments: # 1 Declaration of Michael Wolfe, # 2 Declaration of Teresa I., # 3 Letter)(Smith, Gary)
190 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Leave NuncPro Tunc to File Memorandum Forty−Five Pages in Length in Response to Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment (Attachment: # 1 Proposed Order)(Smith, Gary)
191 CONSOLIDATED RESPONSE by Bill J. Crouch in opposition to 184 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. to Strike Description of New Service Authorization Process and 185 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Michael T. to Strike Paragraph Fifteen and Sixteen of the Third Declaration of Patricia S. Nisbet. (Barker, Shruti)
192 REPLY by Bill J. Crouch to 188 Memorandum In Opposition. (Attachment: # 1 Exhibit 1)(Barker, Shruti)
193 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Seal Second Declaration of Victoria B. and Accompanying Attachments. (Attachment: # 1 Exhibit 1)(Smith, Gary)
194 REPLY MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. in support of 186 Memorandum In Opposition. (Attachments: # 1 Declaration of Rebecca Curtis, # 2 Declaration of Charles M with exhibit, # 3 Declaration of Robert J, # 4 Declaration of Tracey G, # 5 Declaration of Theresa I)(Smith, Gary) (Modified on 8/16/2018 to remove link to #183 memorandum) (kp).
195 PROPOSED ORDER by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. (Smith, Gary)

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196 MEMORANDUM OPINION AND ORDER The 179 Motion to Dismiss or, in the Alternative, Motion for Summary Judgment insofar as it requests that this Court dismiss Plaintiffs' claims as moot is GRANTED IN PART and the motion insofar as it requests summary judgment is DENIED; the 182 Motion for Partial Summary Judgment is DENIED; this case is DISMISSED and the Clerk is directed to remove this matter from the Court's docket. Signed by Judge Thomas E. Johnston on 9/25/2018. (cc: counsel of record; any unrepresented party) (kp)
197 NOTICE OF A CHANGE IN ADDRESS AND CONTACT INFORMATION FOR COUNSEL by Caroline M. Brown and Philip J. Peisch (Barker, Shruti)
198 NOTICE OF WITHDRAWAL by Shruti C. Barker for Bill J. Crouch, West Virginia Department of Health and Human Resources (Barker, Shruti) (Modified on 10/2/2018 to add party filer) (kp).
199 JUDGMENT ORDER in accordance with this Court's 196 Memorandum Opinion and Order entered 9/25/2018, this Court GRANTS IN PART Defendant's 179 Motion to Dismiss or, in the Alternative, Motion for Summary Judgment insofar as it requests that this Court dismiss Plaintiffs' claims as moot and DENIES IN PART the motion insofar as it requests summary judgment; the Court further DENIES Plaintiffs' 182 Motion for Partial Summary Judgment; and DIRECTS the Clerk to remove this case from the Court's docket Signed by Judge Thomas E. Johnston on 12/3/2018. (cc: counsel of record; any unrepresented party) (taq)
200 TRANSMITTED CERTIFIED COPY of 199 Judgment Order to counsel of record and any unrepresented party. (taq)
201 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Extend Time in Which to File for Award of Fees and Costs to 01/18/2019 (Attachment: # 1 Proposed Order)(Smith, Gary)
202 ORDER granting 201 MOTION for Extension of Time to File for Award of Fees and Costs; directing that plaintiffs shall have until 1/18/2019 to move for an award of attorney fees and costs, pursuant to Federal Rule of Civil Procedure 54(d). Signed by Judge Thomas E. Johnston on 12/20/2018. (cc: counsel of record; any unrepresented party) (taq)
203 NOTICE OF CHANGE OF ADDRESS by Philip J. Peisch, Caroline M. Brown (Peisch, Philip)
204 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Award of Fees and Costs (Attachments: # 1 Declaration of Bren Pomponio, # 2 Declaration of Gary M. Smith, # 3 Declaration of Lydia Milnes, # 4 Declaration of Jennifer Wagner, # 5 Supporting Declaration of Forman, # 6 Supporting Declaration of Stroebel, # 7 Exhibit 2015−2016 National Survey Attorney Rates, # 8 Internet Materials WV Auditor official website: vendor payment records)(Smith, Gary)
205 MEMORANDUM by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. in support of 204 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Award of Fees and Costs (Smith, Gary)
206 UNOPPOSED MOTION by Bill J. Crouch, West Virginia Department of Health and Human Resources to Extend Time to Respond to 204 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Award of Fees and Costs to 3/4/2019 (Attachment: # 1 Proposed Order)(Peisch, Philip) (Modified on 1/23/2019 to add party filer) (kp).
207 ORDER granting the 206 UNOPPOSED MOTION to extend time to respond to the plaintiffs' motion for attorney's fees and costs; extending defendants' response to the 204 MOTION for Award of Fees and Costs to 3/4/2019. Signed by Judge Thomas E. Johnston on 1/28/2019. (cc: counsel of record; any unrepresented party) (taq)
208 JOINT MOTION by Bill J. Crouch, Michael T., Eric D., Connie D., Sara F., Rebecca F., David F., Jeremy C., Jo C., Tara R., Harv Christian R., West Virginia Department

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of Health and Human Resources to Extend Time to Respond to 204 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Award of Fees and Costs to 04/03/2019 (Attachment: # 1 Proposed Order)(Peisch, Philip) (Modified on 2/27/2019 to add party filers) (kp).
209 ORDER granting the 208 JOINT MOTION for extension of the deadline to respond to the plaintiffs' 204 motion for attorney's fees and costs; defendant must file his response by 4/3/2019. Signed by Judge Thomas E. Johnston on 3/4/2019. (cc: counsel of record; any unrepresented party) (taq)
210 JOINT MOTION by Bill J. Crouch, Michael T., Eric D., Connie D., Sara F., Rebecca F., David F., Jeremy C., Jo C., Tara R., Harv Christian R., West Virginia Department of Health and Human Resources to Extend Time to Respond to 204 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. for Award of Fees and Costs to 4/18/2019 (Attachment: # 1 Proposed Order)(Peisch, Philip) (Modified on 3/26/2019 to add party filers) (kew).
211 ORDER granting 210 Joint Motion to Extend Time to Respond to 204 Motion for Award of Fees and Costs; Defendant's Response is due by 4/18/2019. Signed by Judge Thomas E. Johnston on 4/2/2019. (cc: counsel of record; any unrepresented party) (kew)
212 JOINT MOTION by Bill J. Crouch, Michael T., Eric D., Connie D., Sara F., Rebecca F., David F., Jeremy C., Jo C., Tara R., Harv Christian R., West Virginia Department of Health and Human Resources, Julia B. Shalhoup to Stay Deadlines for Responding to 204 Motion for Award of Fees and Costs (Peisch, Philip) (Modified on 4/17/2019 to add party filers) (kew).
213 ORDER re: 212 JOINT MOTION to Stay Defendant's Deadlines for Responding to 204 Motion for Award of Fees and Costs; the briefing deadline set forth in the Court's 4/2/2019 211 Order is CONTINUED GENERALLY; the parties to file a status report by 5/17/2019, indicating whether the briefing deadline should remain suspended or whether the Court should enter a new briefing schedule. Signed by Judge Thomas E. Johnston on 4/17/2019. (cc: counsel of record; any unrepresented party) (taq)
214 STATUS REPORT by Bill J. Crouch, Michael T., Eric D., Connie D., Sara F., Rebecca F., David F., Jeremy C., Jo C., Tara R., Harv Christian R., West Virginia Department of Health and Human Resources. (Peisch, Philip) (Modified on 5/17/2019 to add party filers) (kew).
215 MOTION by Jeremy C., Jo C., Connie D., Eric D., David F., Rebecca F., Sara F., Harv Christian R., Tara R., Julia B. Shalhoup, Michael T. to Withdraw 204 Motion by All Plaintiffs for Award of Fees and Costs. (Milnes, Lydia) (Modified on 8/14/2019 to add link to #204 motion and to add party filers) (kew).
216 ORDER The 215 MOTION to Withdraw 204 Motion for Award of Fees and Costs is GRANTED; and the 204 MOTION for Attorney Fees is DENIED AS MOOT. Signed by Judge Thomas E. Johnston on 8/14/2019. (cc: counsel of record; any unrepresented party) (ts)
217 STIPULATION OF DISMISSAL With Prejudice by Plaintiffs and Defendants (Milnes, Lydia) (Modified on 8/21/2019 to add party filers) (ts).
218 ORDER Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), this civil action is DISMISSED WITH PREJUDICE and retired from the docket of the Court. Signed by Judge Thomas E. Johnston on 8/21/2019. (cc: counsel of record; any unrepresented party) (kew)