Case 2:10-cv-00688-MEF-TFM Document 14 Filed 09/29/10 Page 1 of 15

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

JONATHAN PAUL BOYD,

)

)

Plaintifl;

)

)

v.

)

)

CAROL H. STECKEL, in her

)

official capacity as Commissioner of the )

Alabama Medicaid Agency,

)

)

____~D~e~fu~l~ld~a~n~t.___________________)

Case No. 2:IOcv688-TFM

AMENDED COMPLAINT

INTRODUCTION

I. Jonathan Paul Boyd is a 34 year old man who has tetraplegia.

2. In October 1995, Mr. Boyd fell off a balcony in his home and became paralyzed from

below the collar bone. As a result of his accident, he is paralyzed and cannot use either

his legs or arms.

3. For eleven years after his accident Mr. Boyd lived with his mother and stepfather. I-lis

mother was his primary caregiver. Dming that time, Mr. Boyd was eligible for and

received community-based Medicaid waiver services to complement the care being

provided by his mother. But when his mother could no longer provide the care he

required, Mr. Boyd had to enter a nursing facility where he has resided since December

2006.

4. Mr. Boyd wishes to receive necessary and appropriate community-based Medicaid

services to allow him to move out of the nursing home and reside in the community near

Case 2:10-cv-00688-MEF-TFM Document 14 Filed 09/29/10 Page 2 of 15
the campus of the University of Montevallo. I-Ie has located and intends to rent accessible housing for this purpose. 5. Mr. Boyd is eligible for and receives Medicaid which pays for his nursing home services. 6. Defendant has or could readily develop Medicaid-funded services, through its waivers, a combination of waivers, or reasonable modifications of waivers, that would permit Mr. Boyd to live in the community. Mr. Boyd has requested Defendant do so. Mr. Boyd has been on the waiting list for Defendant's waiver services since October 2008 . Mr. Boyd, through his attorneys, recently renewed his request for necessary and appropriate community based services, identifying to Defendant the specific services he will need Defendant to provide in order to allow him to live in the community. Defendant has not granted Mr. Boyd's request and has used its funds to pay only for Mr. Boyd' s services in a nursing facility. 7. Defendant's refusal to provide necessary and appropriate services for Mr. Boyd in the community violates: I.) the Americans with Disabilities Act (ADA), Title II, 42 U.S.C. § 12132, and its implementing regulations, and 2.) Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulations. 8. In enacting the ADA in 1990, Congress stated that
Discrimination against individuals with disabilities persists in such critical areas as ... inslilulionalizalion... [and] Individuals with disabilities continuaIIy encounter various forms of discrimination, including ... segregation .... 42 U.S.C. §§J2\OJ(a)(3) and (5) (emphases added). Defendant's failure to administer her agency 's services and programs, including Medicaid, "in the most integrated setting
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appropriate" to the needs of the individual with disabilities perpetuates Mr. Boyd's unnecessary institutionalization and his segregation in a nursing facility in violation of the ADA and Section 504. 9. Plaintiff seeks declaratory and injunctive relief to end Defendant's discrimination against him in violation of the ADA and Section 504 so he will receive Medicaid services that allow him to reside in the community, and not require him to live segregated in a nursing facility. JURISDICTION AND VENUE 10. The Court has jurisdiction over Plaintiffs claims under 28 U.S.C. §§ 1331 and I343(a)(3) and (4). Declaratory and injunctive reliefis authorized by 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65. Plaintiffs causes of action for disability discrimination are authorized by 42 U.S.C. § 12133 and 29 U.S.C. §794(a). 11. Venue is proper because the Defendant, in her official capacity, resides in this District. 28 U.S.c. § I39\(b). DEFENDANT \2. Carol H. Steckel is the Commissioner of the Alabama Medicaid Agency, and she is sued in her official capacity. The Alabama Medicaid Agency is the chief health policy and planning entity for the state and is responsible for administering Alabama ' s Medicaid program. The Alabama Medicaid Agency is the "single state agency" that operates Alabama's Medicaid program, see 42 U.S.C. § \396(a)(5), and is the state agency responsible for administering Alabama's nursing home and community-based long term care system for people with disabilities. Commissioner Steckel is responsible for the oversight, supervision, and control of the Alabama Medicaid Agency and its divisions,
3

Case 2:10-cv-00688-MEF-TFM Document 14 Filed 09/29/10 Page 4 of 15
and she is ultimately responsible for ensuring that the Alabama Medicaid Agency's services for people with disabiliti es are provided in conformance with federal law. PLAINTIFF 13 . Jonathan Paul Boyd was born on January 20, 1976, and is thirty-four years old. 14. In 1995, while a sophomore at Troy State University and when Mr. Boyd was nineteen years old, he was in an accident when he fell off a balcony in his home. IS. Mr. Boyd broke his spine as a result of the accident and is paralyzed below his collar bone. He cannot use his anTIS or legs. 16. After months of hospitalization in the Lakeshore Rehabilitation Center in Birmingham, Mr. Boyd returned home and lived with his mother, stepfather and sister. 17. For eleven years after his accident Mr. Boyd lived at home with his mother and stepfather. His mother was his primary caregiver. 18. When he lived at home, Mr. Boyd was eligible for and received some community-based Medicaid waiver services to complement the care his mother provided. 19. In December 2006 Mr. Boyd had to enter a nursing home because his mother no longer could provide the care he required to supplement the waiver services that were insufficient without the family's informal supports. These community-based Medicaid waiver services were discontinued when he entered the nursing facility. 20. Mr. Boyd is eligible for and receives Medicaid which pays for his nursing home services. 21. Mr. Boyd uses a motorized wheelchair for ambulation, which he controls and directs with a "sip and puff' device. 22. In the nursing home, Mr. Boyd receives assistance with his activities of daily living, including assistance with taking medications, bathing, dressing, toileting, feeding , and
4

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transfelTing from and to his bed and into and out of his wheelchair. He receives assistance with basic household chores. He receives assistance twice weekly for his bowel progranl. He receives assistance twice monthly for changing his catheter. 23. In order to live in the conummity, Mr. Boyd needs Defendant to provide him with community-based services including ten hours per day of assistance with activities of daily living, assistance with his bowel program twice per week, assistance with changing his catheter twice per month and necessary equipment and care supplies. 24. These services could be provided to Mr. Boyd in the community by the Defendant's Medicaid program through a waiver, a combination of waivers, or reasonable modification of waivers. 25. Eventually after his accident, Mr. Boyd returned to college and graduated in 2007 with a bachelor offine arts degree from the University of Montevallo. While in college he organized several programs, including one to feed low-income persons at Clu'istmas, one to raise funds to help make businesses more accessible and, as a member of Pi Kappa Alpha, he organized other conm1llnity services. 26. Earlier this year, Mr. Boyd was admitted to a graduate program at the University of Montevallo to seek his Master's degree in community counseling. He recently began that program in September 2010. 27. Mr. Boyd's nursing home is 13 miles away from the University of Montevallo. While traveling to Montevallo from the nursing home for his undergraduate degree Mr. Boyd was able to take public transportation (ClasTran) to and from the campus. His undergraduate classes were taught in the day and public transportation, though
5

Case 2:10-cv-00688-MEF-TFM Document 14 Filed 09/29/10 Page 6 of 15
inconsistent, was available. However, public transportation ceases at 3:30 p.m. and his graduate classes are only offered at night. 28. The two classes Mr. Boyd is currently taking are from 5 p.m to 8 p.m. on Mondays and Tuesdays. As such, in attending his graduate classes, Mr. Boyd is forced to rely upon and pay a nursing home maintenance worker all of his scholarship funds ($500 for the semester) to lI'ansport him to and from campus for his classes. 29. Additionally, Mr. Boyd is required to make six additional trips to and from campus during the semester in order to complete required assignments. Mr. Boyd is forced to rely upon and pay others $20 per trip to provide him with transportation to and from campus to complete those assignments. His brother is currently lending him the money to pay for these trips to campus for required assignments. 30. Because Mr. Boyd lives in the nursing home, rather than living in the community near campus as he prefers, he cannot travel to campus readily and independently. For this reason, he is taking only two classes this semester rather than four classes and he is not attending other University functions that he would like to attend, such as athletic events, author readings, theatrical performances and musical performances. 31. As a result of his living situation, Mr. Boyd is experiencing an increase in the time, effort and expense required for him to complete his graduate degree and is being prevented from participating in aspects of college life enjoyed by other graduate students. 32. Mr. Boyd has located rental housing near campus which meets his accessibility needs. This housing will be available for occupancy in January 2011 , in time for the begilming of his next semester. However, until he knows that he will have necessary services to allow him to live in the community, he cannot secure rental of that housing. Accessible
6

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rental housing is difficult to locate and secure, so he needs to act as soon as possible in order to secure rental housing. 33. Once he completes his Master' s degree Mr. Boyd wants to work and establish a foundation for people with disabilities to obtain technology to assist them in school or at work. He wishes to leave the nursing facility as soon as possible, live in the community near the University, and receive services near the University, so he may travel readily and independently to his classes, assignments, and other University activities. 34. Throughout the eleven years Mr. Boyd resided at home, between the time of his accident and when he moved to a lUu'sing facility, he had only one decubitus ulcer ("pressure sore"). Since December 2006 when he moved into a nursing facility, he has had five. 35. Mr. Boyd visits his family and friends as often as he can. He tries to leave the nursing facility as often as possible so he can eat out with fi'iends and join them at the movies. As a resident of the nursing facility, however, he must return to the facility by a specific time in the evening, which limits his socializing with friends and having overnight stays with friends . As a Medicaid resident in the nursing home, only $30 of his monthly Social Security Disability check 01'$897 is available to Mr. Boyd for his personal expenses. With such limited financial resources, Mr. Boyd's ability to go to the movies, eat out, or have snacks is very limited. 36. [n the nursing facility, Mr. Boyd must eat when and what the facility provides and must transfer to and from his bed, shower, toilet, and dress on the staffs schedule. I-lis morning nursing facility routine is frequentl y pushed back until II a.m. or later to accommodate other people who reside on his unit with their morning routines. As a
7

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result, he is unable at times to get out of bed until 11 a.m. unless he schedules his activities a few days in advance. The same limitations apply to his evening routine. 37. In the nursing facility, virtually all residents are disabled and most are much older than Mr. Boyd. Living in a nursing facility deprives Mr. Boyd of the simple pleasure of being around people his own age who have similar interest and activities. He does not take part in most schedilled nursing facility activities because they are geared toward octogenarians. Since he has been a resident in the nursing facility, he has taken part in a half dozen activities that centered around meals or ice cream. 38. There is little or no privacy in Mr. Boyd' s nursing facility. There is constant noise, screaming and crying. Residents in the nursing facility often are not dressed and are exposed. There is a pervasive unpleasant disinfectant odor. 39. Mr. Boyd does not want to live in a nursing facility. Instead he wants to reside in the community where he can enjoy an active life. 40. Without community-based Medicaid waiver services, Mr. Boyd will continue to be unnecessarily institutionalized, even though he desperately does not want to reside in a nursing facility. 41. Despite Defendant's knowing that Mr. Boyd has been unnecessarily institutionalized for more than three years, she has not offered him the Medicaid services necessary to allow him to reside in the community. Mr. Boyd applied for Defendant' s Medicaid waiver program in October 2008 and has been on a waiting list for services since that time. Mr. Boyd, through his attorneys, recently renewed his request for services by asking the Defendant to make reasonable modifications to her waiver programs and provide him with waiver services including ten hours per day of assistance with activities of daily
8

Case 2:10-cv-00688-MEF-TFM Document 14 Filed 09/29/10 Page 9 of 15
living, assistance with his bowel program twice per week, assistance with changing his catheter twice per month and necessary equipment and care supplies. Defendant has not granted Mr. Boyd' s request. 42. Defendant has community-based Medicaid waivers but its capacity is limited, providing 9,205 slots, which has not been increased since 2008 despite a waiting list far in excess of the number of slots. According to the Kaiser Commission, there were 7,094 people on the waiting list for these community-based services. 43. Defendant has certified to the federal Medicaid agency, the Centers for Medicare and Medicaid Services, that for each person Alabama diverts from a mU'sing facility and provides waiver services in the community, the State and Federal government save approximately $22,000 a year by providing community-based services instead of the same services in a nursing facility. 44. Despite these savings Defendant has refllsed to provide Mr. Boyd with services in the community. To obtain necessary services, Defendant requires that Mr. Boyd continue to reside in a Medicaid -funded nursing facility instead of the community. Defendant' s Medicaid program will provide the services he requires only by paying for his institutionalization in a nursing facility. 45 . Mr. Boyd has no option other than to remain in a nursing facility in order to receive the services he needs. THE AMERICANS WITH DISABILITIES ACT 46. Title II of the Americans with Disabilities Act (ADA) provides that "no qualified individual with a disability shall, by reason of disability, be excluded from participation
9

Case 2:10-cv-00688-MEF-TFM Document 14 Filed 09/29/10 Page 10 of 15
in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by such entity." 42 U.S.C. § 12132. 47. Such discrimination includes unnecessary institutionalization and segregation. Regulations implementing Title II of the ADA require that a public entity administer its services, programs, and activities in "the most integrated setting appropriate" to the needs of qualified individuals with disabilities. 28 C.F.R. § 3S.130(d). 48. Regulations implementing Title II also provide that
a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity's program with respect to individuals with disabilities.... 28 C.F.R. § 3S.130(b)(3). 49. Defendant's agency is a public entity under Title II of the ADA and its implementing regulations. SECTION 504 OF THE REHABILITATION ACT SO. Section S04 of the Rehabilitation Act of 1973 provides, No otherwise qualified individual with a disability in the United States ... , shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of; or be subjected to discrimination under any program or activity receiving Federal financial assistance ... 29 U.S.C. § 794(a). SI. Regulations implementing Section S04 require a recipient of federal financial assistance to administer its services, programs and activities in "the most integrated setting appropriate" to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.S1 (d).
10

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Case 2:10-cv-00688-MEF-TFM Document 14 Filed 09/29/10 Page 11 of 15
52. Regulations implementing Section 504 prohibit recipients of Federal financial assistance from [u]tiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the ... effect of substantially impairing accomplishment of the recipients' program with respect to handicapped persons. 45 C.F.R. § 8404(b)(4).
53. Defendant's agency receives federal financial assistance under Section 504 and its implementing regulations. Federal Medicaid fll11ds pay for approximately 68.54% of the cost of Alabama' s Medicaid program, increasing as an enhanced federal match of approximately 77.91 % effective October 1,2010.
FIRST CLAIM FOR RELIEF Title II of the Americans with Disabilities Act 54. Mr. Boyd is an individual with disabilities in that he has physical and other impainl1ents
that substantially limit one or more of his major life activities, including but not limited to eating, breathing, walking (mobility in wheelchair), bathing, speaking and standing. 55. Mr. Boyd is a qualified person with disabilities in that he is capable of safely living in the community with necessary services and he meets the essential eligibility requirements for receipt of services from and participation in the State Medicaid program with reasonable modification to the rules, policies, and practices of that program. See 42 U.S.C. § 12131(2). 56. As a result of Defendant's refusal to make reasonable modification(s) of the rules, policies, and procedures governing Alabama' s Medicaid program, Mr. Boyd is forced to be isolated and segregated in an institutional setting against his will.
11

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57. Defendant' s denial of Medicaid funding for the in-home attendant care and health services that Mr. Boyd requires to avoid segregation in an institution, and return to an integrated home setting, constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §12132, and its implementing regulation, 28 C.F .R. § 130.51 (d).
58. Defendant has utilized criteria and methods of administration that subject Mr. Boyd to discrimination on the basis of disability, including unnecessary institutionalization, by (I) failing to assess properly the services and supports that would enable Mr. Boyd to live in the community, and (2) failing to ensure that Plaintiff has access to Medicaid-covered services that will meet his needs in the community, in violation of Title II of the ADA and its implementing regulations.
SECOND CLAIM FOR RELIEF Section 504 of the Rehabilitation Act 59. Mr. Boyd is a "qualified person with disabilities" within the meaning of Section 504,
because he has physical and/or mental impairments that substantially limit one or more major life activities, and he meets the essential eligibility requirements for long-term care under Alabama' s Medicaid program. 60. Defendant's denial of Medicaid funding for the in-home health services that are appropriate to Mr. Boyd' s needs, and tllat Mr. Boyd requires to avoid segregation in an institution and to return to an integrated home setting, constitutes unlawful discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulation, 28 C.F.R. §41.51 (d) .
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61. Defendant has also utilized criteria and methods of administration that subject Mr. Boyd to discrimination on the basis of disability, including risk of urll1ecessary institutionalization by: (l) failing to assess properly the services and supports that would enable Mr. Boyd to live in the community, and (2) failing to ensure that Mr. Boyd has access to Medicaid-covered services that will meet his needs in the community, in violation of Section 504 and its implementing regulations.
RELIEF REQUESTED WHEREFORE, Plaintiff Jonathan Paul Boyd respectfully requests that the Court grant the following relief: A. Declare that the Defendant's denial of funding for Mr. Boyd's necessary and appropriate
Medicaid community-based services constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. B. Grant preliminary and pe1111anent injlmctions enjoining the Defendant, her officers, agents, employees, attorneys, and all persons who are in active concert or participation with them from denying Mr. Boyd necessary and appropriate Medicaid community-based services, including the extent to which Mr. Boyd's service needs can and will be met by enrolling him in Defendant's existing community-based waiver programs, a combination of waivers, or waivers with modifications thereto. C. Waive the requirement for the posting of a bond as security for the entry of preliminary relief. D. Award the Plaintiff the costs of this action and reasonable attorney's fees pursuant to 29 U.S.C. §794a and 42 U.S.C. § 12133 and any other applicable provision oflaw. E. All such other and further relief as the Court deems to be just and equitable.
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Respectflllly Submitted, s/Lonnie J. Williams Lonnie J. Williams (ASB-2866-I35W) E-mail: lwilliams@adap.ua.edu Alabama Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487-0395 Telephone: (205)348-4928 Facsimile: (205)348-3909 James A. Tucker (ASB-6986-T39J) E-mail: jtucker@adap.ua.edu Alabama Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487-0395 Telephone: (205)348-4928 Facsimile: (205)348-3909 Stephen F. Gold (PA Bar No. 09880) Email: stevegoldada@cs.com 1709 Benjamin Franklin Parkway Second Floor, Philadelphia, PA 19103 Telephone: (215)627-7100, ext. 227 Facsimile: (215)627-3183 ATTORNEYS FOR PLAINTIFF
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Case 2:10-cv-00688-MEF-TFM Document 14 Filed 09/29/10 Page 15 of 15 CERTIFICATE OF SERVICE
This is to certify that on the 29th day of September, 2010, a copy of the foregoing has
been electronically filed with the Clerk of the Court using the CM/ECF system, which will
electronically send a copy of the same to the following : Stephanie McGee Azar (stephanie.azar@medicaid.alabama.gov), Margaret L. Fleming (mfleming@ago.state.al.us), James W. Davis Uimdavis@ago.state.al.us), and Misty S. Fairbanks (mfai rbanks @ago .state.al.us).
slLonnie J. Williams Lonnie J. Williams
15

 
 Case 2:10-cv-00688-MEF-TFM Document 15 Filed 09/29/10 Page 1 of 10

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

JONATHAN PAUL BOYD,

)

)

Plaintiff,

)

)

v.

)

)

CAROL H. STECKEL, in her

)

official capacity as Commissioner of the )

Alabama Medicaid Agency,

)

)

____~D~e~fu~l~ld~a~n~t.___________________)

Case No.: 2: I Ocv688-TFM

PLAINTIFF'S AMENDED MOTION FOR PRELIMINARY INJUNCTION AND EXPEDITED HEARING
Pursuant to Fed. R. Civ. P. 65, Plaintiff Jonathan Paul Boyd, tlu'ough his counsel, moves for a preliminary injunction to enjoin Defendant, her officers, agents, employees, attorneys, and all other persons who are in active concert or participation with them liOln denying Plaintiff Boyd necessary and appropriate Medicaid community-based services, including the extent to which Plaintiff Boyd' s service needs can and will be met by emolling him in Defendant's existing community-based waiver programs, a combination of waivers, or waivers with modifications thereto. Due to the nature of his situation, PlaintitI Boyd further moves for an expedited hearing. As grounds therefore, Plaintiff Boyd states:
I. This action is brought on behalf of Jonathan Paul Boyd, an Alabama resident who has tetraplegia as a result of an accident. Mr. Boyd is eligible for and receives Medicaid. For eleven years after his accident, Mr. Boyd lived in the community with his family until they could no longer provide adequate informal support. He desires to reside in the community instead of in a nursing facility where he has resided for more than tlu'ee years.

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I-Ie could reside in the community with appropriate servIces provided with Medicaid funds, but he is unnecessarily institutionalized because of Defendant's failure to administer her agency's Medicaid services, programs and activities in an appropriate, integrated community setting. 2. Mr. Boyd was born on January 20, 1976 and is thirty-four years old. 3. In 1995, while a sophomore at Troy State University and when Mr. Boyd was nineteen years old, he was in an accident, falling otT a balcony in his home. He broke his spine as a result of the accident and is paralyzed below his collar bone. He cannot use his aJ111S or legs. 4. After months of hospitalization in the Lakeshore Rehabilitation Center in Binninghan1, Mr. Boyd returned home and lived with his mother, stepfather, and sister. For eleven years after his accident he lived at home with his mother and stepfather. His mother was his primary care giver. 5. When Mr. Boyd lived at home, he was eligible for and received some community-based Medicaid waiver services to complement the care his mother provided. In December 2006, Mr. Boyd had to enter a nursing home because his mother could no longer provide the care he required to supplement the Medicaid waiver services, which were insufficient without informal support from his family. These Medicaid waiver services were discontinued when he had to enter the nursing facility. Mr. Boyd is eligible for and receives Medicaid coverage, which pays for his nursing home services. 6. Mr. Boyd uses a motorized wheelchair for ambulation, which he controls and directs with a "sip and puff' device.
2

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7. In the nursing home, Mr. Boyd receIves assistance with his activities of daily living, including assistance with taking medication, bathing, dressing, toileting, feeding, transferring from and to his bed and into and out of his wheelchair. Mr. Boyd also receives assistance with some basic household chores. He receives assistance twice weekly for his bowel program and twice monthly for changing his catheter.
8. In order to live in the community, Mr. Boyd needs community-based Medicaid services including ten hours per day of assistance with activities of daily living, assistance with his bowel program twice per week, assistance with changing his catheter twice per month and necessary equipment and care supplies.
9. These services could be provided to Mr. Boyd in the conullunity by Defendant's Medicaid program through a waIver, a combination of waIvers, or reasonable modification of waivers.
10. Eventually after his accident, Mr. Boyd returned to college and graduated in 2007 with a bachelor of fine arts degree from the University of Montevallo. In college, he organized several programs, including one to feed low-income persons at Christmas, an accessibility progranl to raise funds to help make businesses accessible, and, as a member of Pi Kappa Alpha, he organized other community services.
II. Earlier this year, Mr. Boyd was accepted to a graduate program at the University of Montevallo to seek his master's degree in community counseling. He began that program in September 20 I O.
12. The University is 13 miles from his nursing facility. While Mr. Boyd was attending classes from the nursing home for his undergraduate degree, he was able to use public 3

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transportation (ClasTran) to and from campus. His undergraduate classes were day classes and public transportation, though terribly inconsistent, was applicable. However, public transportation shuts down at 3:30 p.m. and his graduate studies classes are only offered at night. 13. The two graduate classes Mr. Boyd is currently taking are on Mondays and Tuesdays from 5 p.m. to 8 p.m. He is being forced to rely upon and pay a nursing home maintenance worker all of his scholarship funds ($500 for the semester) to transport him to and from the University for those classes for the semester. 14. Mr. Boyd is also required to travel to and from campus on six occasions this semester to complete required assignments. He is being forced to rely upon and pay others $20 per trip to transport him to and from the University to complete those required assiglUl1ents. His brother is currently lending him the money to pay for these trips to canlpus for required assignments. 15. Because Mr. Boyd lives in the nursing home, rather than living in the community near campus as he prefers, he cannot travel to campus readily and independently. For this reason, he is taking only two classes this semester rather than four classes and he is not attending other University functions that he would like to attend, such as athletic events, author readings, theatrical performances and musical performances. 16. As a result of his living situation, Mr. Boyd is experiencing an increase in the time, effort and expense required for him to complete his graduate degree and is being prevented from participating in aspects of college life enjoyed by other graduate students.
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17. Mr. Boyd has located rental housing near campus which meets his accessibility needs. This housing will be available for occupancy in January 20 II , in time for the beginning of his next semester. However, until he knows that he will have necessary services to allow him to live in the community, he crumot secure rental of that housing. Accessible rental housing is difficult to locate and secure, so he needs to act as soon as possible in order to secure housing.
18. With his Master' s Degree, Mr. Boyd wants to work and to establish a foundation for people with disabilities to obtain technology to assist them in school or at work. He wishes to leave the nursing facility to live in the community ruld to receive services neru· the University so he can make it to his classes readily and independently.
19. Throughout the eleven years Mr. Boyd resided in the community, between the time of his accident and when he moved into a nursing facility, he had only one decubitus ulcer (pressure sore). Since December of 2006, when he moved into a nursing facility, he has had five .
20. Mr. Boyd visits his family and friends as often as he can. He also tries to eat out of the nursing home with friends and join them at the movies. As a resident of the nursing home he must, however, retUl11 to the facility by a specific time in the evening, which limits his socializing with friends and having overnight stays with friends. As a Medicaid resident in the nursing home, he receives only $30 of his monthly Social Security Disability check of $897. With such limited financial resources, he is extremely limited in going to the movies, eating out, or having snacks.
5

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21. In the nursing home, all the residents are disabled and most are much older than Mr. Boyd. Living in a nursing home, he is deprived of the simple pleasure of being around people his own age and with similar interests and activities. He does not take part in the activities that the nursing home's activities department holds multiple times daily because they are geared towards octogenarians. Since he has been a resident in the nursing home, he has taken part in a half dozen activities and they centered around meals or ice cream.
22. There is no privacy in Mr. Boyd's nursing facility. People come and go as they like, and there is constant noise and people screaming.
23. Mr. Boyd does not want to live in a nursing home; instead, he wants to reside in the community, where he can have an active life. Without community-based services fi'om Medicaid, Mr. Boyd will continue to be unnecessarily institutionalized, even though he desperately does not want to reside in a nursing facility.
24. Despite Defendant knowing that Mr. Boyd has been unnecessarily institutionalized for more than three years, she has not offered him the Medicaid services necessary to allow him to reside in the community. He applied for community-based waiver services in 2008 and has been on a waiting list for services since that time. Recently, Mr. Boyd's attorneys renewed his request for services by asking the Defendant to make reasonable modifications to its waiver programs and provide him with waiver services including ten hours per day of assistance with activities of daily living, assistance with bowel program twice per week, assistance with changing catheter twice per month, necessary equipment and care supplies. Defendant has not granted Mr. Boyd's request.
6

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25. Alabama's Medicaid nursing home reimbursement is approximately $33,700 a year. Medicaid's reimbursement for home and community-based services is approximately $10,365. Defendant has certified to the federal Medicaid agency, the Centers for Medicare and Medicaid Services, that for each person Alabama diverts from a nursing facility and provides waiver services in the conu11lll1ity, the State and Federal government save approximately $22,000 a year by providing community-based services instead of services in a nursing facility.
26. Defendant has community-based Medicaid waivers but its capacity is limited, providing approximately 9,205 slots, which has not been increased since 2008 despite a waiting list far in excess of the number of slots. The Kaiser Commission estimates there is a waiting list of approximately 7,094 people.
27. Despite these savings Defendant has refused to provide Mr. Boyd with services he needs in the community. To obtain the necessary services, Defendant requires that Plaintiff Boyd continue to reside in a Medicaid-funded l1lu·sing facility setting. Defendant's Medicaid program will only provide the services he requires by paying for his institutionalization in a nursing facility.
28. Plaintiff Boyd has no option other than to remain in a nursing home where Defendant's Medicaid program will pay for the services he requires.
29. Defendant refuses to offer Mr. Boyd the services he needs in the commmtity and instead is requiring him to remain in a nursing facility to receive those services, in violation of both the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the Rehabilitation Act of 1973 , 29 U.S.C. § 794(a) ("Section 504"), and their implementing
7

Case 2:10-cv-00688-MEF-TFM Document 15 Filed 09/29/10 Page 8 of 10
regulations, in particular the "integration mandate," which requires that "a public entity
shall administer services, programs, and activities in the most integrated setting
appropriate to the needs of qualitied individuals with disabilities." 28 C.F.R. § 35.130(d).
WHEREFORE Plaintiff Jonathan Paul Boyd seeks a preliminary injunction to enjoin
Defendant, her officers, agents, employees, attorneys, ruld all other persons who are in active
concert or participation with them from denying Mr. Boyd necessru'y and appropriate
Medicaid community-based services, including the extent to which Mr. Boyd ' s service needs
can ruld will be met by enrolling him in Defendant's existing community-based waiver
programs, a combination of waivers, or waivers with modifications thereto. Due to the nature
of his situation, Plaintiff Boyd further moves for an expedited heming.
Respectfully Submitted,
slLonnie J. Williams Lonnie.T. Williams (ASB-2866-I35W) E-mail: lwilliams@adap.ua.edu Alabruna Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487-0395 Telephone: (205)348-4928 Facsimile: (205)348-3909
Jrunes A. Tucker (ASB-6986-T39J) E-mail: jtucker@adap.ua.edu Alabruna Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487-0395 Telephone: (205)348-4928 Facsimile: (205)348-3909
Stephen F. Gold (PA Bm No. 09880) Email: stevegoldada@cs.com
8

Case 2:10-cv-00688-MEF-TFM Document 15 Filed 09/29/10 Page 9 of 10 1709 Benjamin Franklin Parkway Second Floor, Philadelphia, PA 19103 Telephone: (215)627-7100, ext. 227 Facsimile: (215)627-3183 ATTORNEYS FOR PLAINTIFF
9

Case 2:10-cv-00688-MEF-TFM Document 15 Filed 09/29/10 Page 10 of 10 CERTIFICATE OF SERVICE
This is to certify that on the 29th day of September, 20 I 0, a copy of the foregoing has been electronically filed with the Clerk of the Court using the CM/ECF system, which will electronically send a copy of the same to the following: Stephanie McGee Azar (stephanie.azar@medicaid.alabama.gov), Margaret L. Fleming (mfleming@ago.state.al.us), James W. Davis Uimdavis@ago.state.al.us), and Misty S. Fairbanks (mfairbanks@ago.state.al.us).
s/Lonnie J. Williams Lonnie J. Williams
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kaiser

I

commission on

S

S medicaid

U E

and the uninsured

December 2008

P

Medicaid Home and Community-Based Service Programs:

A

Data Update

P

E

By Terence Ng and Charlene Harrington, University of California San Francisco (UCSF)

R

and Molly O’Malley, Kaiser Family Foundation

EXECUTIVE SUMMARY

Developing home and community-based service (HCBS) alternatives to institutional care has been a priority for many state Medicaid programs over the last two decades. While the majority of Medicaid long-term care dollars still go toward institutional care, the national percentage of Medicaid spending on HCBS has more than doubled from 19 percent in 1995 to 41 percent in 2007. Recent fiscal problems at both the state and federal levels, however, will bring new uncertainties for the provision of Medicaid HCBS in the coming years. The deepening financial crisis is expected to impact the ability of many states to provide both acute and long-term care Medicaid services to the growing number of individuals eligible for Medicaid. This report presents a summary of the main trends to emerge from the latest (2005) expenditures and participant data for the three main Medicaid HCBS programs: (1) optional 1915(c) HCBS waivers, (2) the mandatory home health benefit, and (3) the optional state plan personal care services benefit. It also presents findings from the survey of policies used on the three main Medicaid HCBS programs and provider reimbursement rate data for the home health benefit and the personal care services benefit in 2007.

Key Findings:

• In 2005, overall spending on Medicaid HCBS increased 10 percent. The overall growth in spending (including 1915(c) waivers, home health, and personal care services) was slightly lower than the 13.3 percent growth rate in 2004. Spending growth on total HCBS programs in 2005 was led by the waiver program with 11 percent annual growth, followed by the home health benefit and the personal care program at 8 percent and 7 percent increases respectively.

• Total enrollment in Medicaid HCBS programs increased 4 percent with almost 2.8 million individuals being served through these programs in 2005. The percentage increase in enrollment was similar to the growth rate over the last year and down from an 8 percent increase in 2003. More than 1 million individuals were served through HCBS waivers, 924,259 individuals received care through the home health benefit and 794,642 individuals received the personal care services benefit. As the number of participants and expenditures continue to grow, variations continue to exist among the different types of programs and across states.

1330 G STREET NW, WASHINGTON, DC 20005 PHONE: 202-347-5270, FAX: 202-347-5274 W E B SI T E : W W W . K F F . O R G

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 2 of 35
• In 2007, all states reported using cost controls on HCBS waivers such as restrictive financial and function eligibility standards, enrollment limits, and waiting lists. Almost a quarter (24%) of reporting waiver programs used more restrictive financial eligibility standards for HCBS waiver programs than for nursing facilities. However, only 7 waivers used more restrictive functional eligibility criteria for waivers than for institutional care. This year’s survey also found an 18 percent increase in the number of persons on waiting lists for waiver services. In 2007, 331,689 individuals were on waiting lists, up from 280,176 in 2006. The average length of time an individual spent on a waiting list ranged from 9 months for aged waivers to 26 months for children’s waivers.
INTRODUCTION
Developing home and community-based service (HCBS) alternatives to institutional care has been a priority for many state Medicaid programs over the last two decades. While the majority of Medicaid long-term care dollars still go toward institutional care, the national percentage of Medicaid spending on HCBS has more than doubled from 19 percent in 1995 to 41 percent in 2007.1 States have responded to consumer preferences and the Supreme Court ruling in the Olmstead case, which confirms the discriminatory nature of policies that lead to the unnecessary institutionalization of participants on public programs such as Medicaid, in their efforts to direct state long-term care delivery systems toward more community-based care. 2 In 2008, Medicaid enrollment grew by 2.1 percent and expenditures grew by 5.3 percent, but the deepening financial crisis is expected to impact the ability of many states to provide Medicaid services to the growing number of individuals eligible for Medicaid. For fiscal year 2009, 30 states reported a budget deficit and this number is expected to expand as the country faces an economic downturn. 3 These fiscal problems will bring new uncertainties for the provision of Medicaid HCBS in the coming years. Over the last seven years, we have tracked the development of the three main Medicaid HCBS programs: (1) optional 1915(c) HCBS waivers, (2) the mandatory home health benefit, and (3) the optional state plan personal care services benefit. Beginning in 2002, we also surveyed the policies, such as eligibility criteria and waiting lists that states use to control spending growth in waiver programs. Starting from 2007, we expanded the policy survey to include the home health benefit and the state plan personal care services benefit and collected provider reimbursement rate data for both of these benefits. This report presents a summary of the main trends to emerge from the latest (2005) expenditures and participant data for the three Medicaid HCBS programs, and findings from the survey of policies used on 1915(c) waivers, the home health benefit and the optional state plan personal care services benefit in 2007.
MEDICAID HCBS PARTICIPANTS AND EXPENDITURES
Medicaid Home Health, Personal Care Services, and 1915(c) Waiver Participants. As noted above, there are three main ways a state can provide Medicaid HCBS: (1) optional 1915(c) HCBS waivers, (2) the mandatory home health benefit, and (3) the optional state plan personal care services benefit. In 2005, all states operated the Medicaid home health benefit and multiple HCBS waivers (Arizona is a technical exception because it operates its Medicaid long-term care program under a Section 1115 demonstration waiver). The number of states actively offering the

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optional state plan personal care benefit remained constant at 30. (Two states had approval for personal care but did not have clients in their programs: Delaware and Rhode Island). In 2005, almost 2.8 million individuals received Medicaid home and community-based services (Figure 1, Table 1A). Participation in HCBS programs increased 4 percent between 2004 and 2005, which was more than the 3.2 percent increase in total Medicaid enrollment in the same period.3 Of those enrollees, 1,060,356 individuals were served through HCBS 1915(c) waivers, 924,259 individuals received care through the home health benefit, and 794,642 individuals received personal care services through the optional state plan benefit (Table 1B, 1C, and 1D).
Figure 1
Medicaid Home and Community-Based Services Participants, by Program, 2005
Total Participants = 2.78 million
Sources: Kaiser Commission on Medicaid and the Uninsured and UCSF analysis of CMS Form 372 data and program surveys.
Between 1999 and 2005, the national number of individuals receiving Medicaid home and community-based services grew steadily each year by an average of 7 percent (Table 1A and Figure 2), which was more than the 5.6 percent average annual increase in total Medicaid enrollment in the same period.3 The higher growth in HCBS participants compared to total Medicaid participants indicate a growing demand for Medicaid HCBS services. Over the 1999 to 2005 period there was, however, inter-state variation in average Medicaid HCBS participant annual growth rates ranged from large increases in North Carolina (23 percent), Hawaii and Mississippi (22 percent respectively), to reductions in New Hampshire (-6 percent) and Rhode Island (-4 percent). Declines in these states may be due to fiscal deficits or policy changes over the study period that curtailed Medicaid HCBS participation through discretionary cost control methods or legislative orders.
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Figure 2
Growth in Medicaid Home and Community

Based Services Participants, by Program,

1999-2005

Home Health

Personal Care

Waivers

In thousands

983

1,009

1,060

924

688

769

841

528

578

582

683

720

759

795

689

713

714

775

863

872

924

1999

2000

Total: 1.9 million 2.1 million 8% increase

2001

2002

2.1 million 2.4 million 4% increase 11% increase

2003

2004

2.6 million 2.7 million 8% increase 4% increase

2005
2.8 million 4% increase

Note: Figures updated annually and may not correspond with previous reports. Sources: Kaiser Commission on Medicaid and the Uninsured and UCSF analysis of CMS Form 372 data and program surveys.

Between 2004 and 2005, there were also large inter-state variations in annual Medicaid HCBS participant growth rates ranging from highs of 21 percent in Maryland and 22 percent in Hawaii, to reductions of 19 percent in Mississippi and 5 percent in Ohio. In 2005, Maryland and Hawaii’s home health program grew by 253 percent and 122 percent respectively. Of the states with the largest reported decline in Medicaid HCBS participants between 2004 and 2005, Mississippi home health participants declined by 39 percent and Ohio’s home health participants declined by 12 percent. Medicaid Home Health, Personal Care Services, and 1915(c) Waiver Expenditures. In 2005, total Medicaid spending on home and community-based services was $35.1 billion (Table 2A). The large majority of Medicaid spending on non-institutional long-term care continued to occur through HCBS waivers. In 2005, Medicaid spending on HCBS waivers was $23 billion, compared to $7.7 billion on state plan personal care services, and $4.4 billion on home health services (Tables 2B, 2C, 2D and Figure 3). Between 1999 and 2005, total Medicaid spending on HCBS increased by almost $18 billion (104 percent) or an average annual increase of 13 percent (Table 2A and Figure 4). This compares to an average annual increase of 10.5 percent for total Medicaid expenditures in the same period. Although there was a general trend of annual percentage increases in Medicaid HCBS expenditures and a 10 percent annual increase between 1999 and 2005, 4 states (Colorado, New Mexico, South Dakota and Vermont) recorded an annual decline in expenditures between 2004 and 2005 (Table 2A). The Medicaid HCBS annual growth rate between 2004 and 2005 was more than the 6.4 percent expenditure growth recorded for total Medicaid expenditures. This indicates that Medicaid HCBS expenditures as a proportion of Medicaid expenditures increased between 2004 and 2005 as it has done every year since 1999.

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Figure 3
Medicaid Home and Community-Based Services Expenditures, by Program, 2005
Home Health $4.4 billion
13%

HCBS Waiver $23 billion 66%

Personal Care $7.7 billion 22%

Total Expenditures = $35.1 billion
Sources: Kaiser Commission on Medicaid and the Uninsured and UCSF analysis of CMS Form 372 data and program surveys.

Figure 4
Growth in Medicaid Home and Community Based Services Expenditures, by Program, 1999-2005

In billions

Home Health Personal Care Waivers

$23

$20.5

$18.9

$16.9

$14.3

$11

$12.6

$4.1

$4.6

$5.3

$5.5

$6.5

$7.1

$7.7

$2.1

$2.3

$2.5

$2.7

$2.8

$3.6

$4.4

1999 Total: $17 billion

2000

2001

2002

2003

2004

2005

$19 billion $22 billion $25 billion $28 billion $32 billion $35 billion 13% increase 14% increase 14% increase 13% increase 13% increase 10% increase

Note: Figures updated annually and may not correspond with previous reports. Sources: Kaiser Commission on Medicaid and the Uninsured and UCSF analysis of CMS Form 372 data and program surveys.

National total Medicaid home and community-based expenditure data masked three forms of variation. First, while national per person spending on Medicaid home and communitybased services averaged $12,627 in 2005, there was great variation among the states,

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ranging from $5,822 in Arkansas to $37,052 in Rhode Island (Table 3A). Second, differences existed in spending across the programs. Per-person expenditures ranged from $4,795 for home health participants to $21,681 for waiver participants in 2005 (Table 3B, 3C, 3D and Figure 5). This difference was largely due to the types of services provided through the different home and community-based service options. Third, there was also significant per-person expenditure variation within the waiver programs among the different target groups.

Figure 5

Medicaid Home and Community Based Services Average Expenditures Per Person Served, 1999-2005

In thousands $16

Home Health

$16.4

$17.1

Personal Care

W aiv ers

$18.3

$19.3

$20.6

$21.7

$7.7

$7.9

$3.1

$3.2

$9 $3.5

$8 $3.5

$9.1

$9.4

$9.7

$3.2

$4.6

$4.8

1999

2000

2001

2002

2003

2004

2005

Note: Figures updated annually and may not correspond with previous reports. Sources: Kaiser Commission on Medicaid and the Uninsured and UCSF analysis of CMS Form 372 data and program surveys.

Medicaid 1915(c) Home and Community-Based Service Waivers. Between 2004
and 2005, the reported number of 1915(c) home and community-based service waivers rose to 272 from 262. Every state, except Arizona which operates its Medicaid long-term care program through a Section 1115 waiver, had multiple HCBS waivers targeted at a range of populations that are ‘at risk of institutional care.’ These groups included: the aged, aged or disabled, individuals with physical disabilities, individuals with mental retardation and developmental disabilities, medically fragile or technology dependent children, individuals with HIV/AIDS, and individuals with traumatic brain and spinal cord injury (TBI/SCI). Table 4 details HCBS waivers by participants, expenditures and expenditures per person for the most recent years. In 2005, 1,060,356 participants were served through Medicaid HCBS waivers (Tables 4 and 5). This represented an increase of 51,250 individuals from 2004 (5 percent). As in previous years, the majority of participants (524,628) received services through waivers targeting the aged and aged or disabled, making up 49 percent of total waiver participants. The next largest group of participants (433,955) was enrolled in waivers for persons with mental retardation/ developmental disabilities (MR/DD) with 41 percent of waiver participants. Those with physical disabilities accounted for only 5 percent (57,714) of total waiver participants. The smallest waivers were for children with

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special needs (17,354), individuals with HIV/AIDS (14,258), individuals with traumatic brain and spinal cord injuries (TBI/SCI) (10,580), and individuals with mental health needs (1,867). The HCBS waivers with the largest annual increase in participation were TBI/SCI (11%), followed by MR/DD (7%) and the aged (6%). A decline in participation was recorded in the mental health waivers (11%) (Table 4). In 2005, overall expenditures for HCBS waivers increased 11 percent to $23 billion. The vast majority of spending on HCBS waivers was on those targeting individuals with MR/DD. Although individuals in MR/DD waivers accounted for just 41 percent of total waiver participants, expenditures on these waivers accounted for 74 percent of all spending (Table 6 and Figure 6). Between 2004 and 2005, the annual rate of expenditure growth was highest for aged waivers (22%) and TBI/SCI waivers (17%), while expenditures on mental health waivers fell by 46 percent (Table 4). The large decline in expenditures on mental health waivers was due to a large drop in expenditures for both the Colorado and Vermont mental health waivers.

Figure 6
Medicaid 1915(c) Home and Community Based Service Waiver Enrollees and Expenditures by
Enrollment Group, 2005

Others 10%
Aged and Disabled 49%

Others 6%
Aged and Disabled 20%

MR/DD 41%

MR/DD 74%

Enrollees Total: 1,060,356

Expenditures Total: $23 billion

Note: Others includes waivers that serve children, persons with HIV/AIDS, mental health needs, and with traumatic brain and spinal cord injuries. Sources: Kaiser Commission on Medicaid and the Uninsured and UCSF analysis of CMS Form 372 data.

Average waiver expenditures per participant increased by 5 percent from 2004-2005 (Table 4). As a result of individuals with MR/DD having extensive health care needs, the average spending per person was highest for this group ($39,314) (Table 7). This amount was nearly 5 times higher than average waiver spending on the aged and the aged/disabled. Expenditures per participant grew by 15 percent for those in aged waivers, while declining by 40 percent for mental health waivers and by 4 percent for children’s waivers (Table 4).

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ELIGIBILITY AND COST CONTAINMENT POLICIES USED ON HOME AND COMMUNITY-BASED SERVICES Medicaid 1915(c) Home and Community-Based Service Waivers
The Medicaid 1915(c) waiver program allows states to use a broad range of costcontainment strategies to meet federal waiver cost neutrality requirements and to limit waiver spending so that costs do not exceed state budgetary restrictions. To understand how states controlled spending on home and community-based service waivers in 2007, we surveyed all HCBS waiver program administrators asking about their financial and functional eligibility standards, whether they used enrollment and/or expenditure caps, if they used waiting lists, and if so, how many individuals were on the lists and the average length of time an individual spent on the list.4 The survey findings showed that every state used some type of cost-containment tool in their waivers (over and above the requirement that all per-person waiver spending is kept lower than equivalent institutional care). Cost controls included restrictive financial and functional eligibility standards, enrollment limits, and waiting lists. The following summarizes the survey findings to illustrate how states use cost control policies to control access to home and community-based waiver services. Financial Eligibility. Most states set nursing facility financial eligibility at 300 percent of SSI ($1,869/month in 2007). States may set financial eligibility standards for Medicaid 1915(c) HCBS waivers at the same level as that for nursing facilities. There is, however, wide variation across states and HCBS waiver programs as shown in Table 8. The survey found that 24 percent of reporting waiver programs used more restrictive financial eligibility standards than for nursing facilities (Table 8 and Figure 7).
Figure 7
Medicaid Home and Community Based Services Waiver Financial Eligibility Limits, 2007
100% of SSI 22%
101% - 299% of SSI 2%
300% of SSI 76%
Total = 277 reporting waivers
Note: In 2007, 300% of SSI was $1,869 a month. Source: Kaiser Commission on Medicaid and the Uninsured and UCSF analysis of waiver policy survey.

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Functional Eligibility. Another way states can limit eligibility for home and communitybased service waivers is by setting functional eligibility criteria that are stricter than those used for care in a nursing facility. For example, a state could require an individual to exhibit difficulty in performing 4 Activities of Daily Living (ADLs), such as bathing, dressing, transferring, eating, toileting, instead of only 3 ADLS required for nursing facility admission. The survey found that only 7 waivers used more restrictive functional eligibility criteria for waivers than for institutional care (no Table shown). These waivers were reported in Alabama, California, Washington DC, Florida, New York, Texas and Utah. Cost Controls. More than two-thirds of all waiver states (69%) utilized some form of cost controls above and beyond the federally mandated cost neutrality formula in 2007. Many states used a mixture of fixed expenditure cap, service provision and hourly cap, and geographic limits within the states (Table 9). Almost half of the states with waiver cost controls (15 of 34 states) utilized more than one form of cost controls such as a combination of expenditure caps and service limitations. Consumer Direction. In response to the President’s New Freedom Initiative and the impending Deficit Reduction Act, many states also incorporated some form of mandatory or optional consumer direction within their waivers. Consumer direction can include initiatives such as consumer choice in the allocation of their service budgets or the hiring and firing of service providers. In 2007, 96 waivers in 33 states (37 percent of waiver states) allowed or required some consumer direction (Table 9). This marks an increase of 9 waivers and 3 states that allowed consumer direction in their waivers between 2006 and 2007. Waiting Lists. States often have more individuals in need of waiver services than the number of available spaces, called ‘slots’, in a program (Table 10). Many states used waiting lists when their program slots are filled. In 2007, 37 states reported waiting lists and 10 states said they did not have waiting lists (Table 11). In 2007, there were 106 waivers with waiting lists with 331,689 individuals on waiver waiting lists. Waivers for the MR/DD population had the greatest number of individuals on waiting lists (224,147) followed by waivers serving the aged and aged/disabled (87,338) (Table 11, Figure 8). Most states estimate that a large percentage of the persons on a waiver waiting list reside in the community, rather than in an institution. Compared to the previous year, the number of individuals on waiver waiting lists increased by more than 18 percent, with growth concentrated on the MR/DD, aged/disabled and children’s waivers. This increase in waiting lists illustrates the growing demand for waiver services, especially among the MR/DD community, even as the number of waivers and waiver participants and expenditures increased. Due to the varying number of waiver slots available for each enrollment group, the average length of time an individual spends on a waiting list also varied by type of population, from 9 months for aged waivers to 26 months for children’s waivers and 25 months for MR/DD waivers. The long average wait times for the MR/DD and children’s waivers were the result of large and long waiting lists in 2 Louisiana waivers.
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Figure 8

Medicaid 1915(c) HCBS Waiver Waiting Lists, by Enrollment Group, 2002-2007

In thousands

260,916 6%

280,176 5%

331,689 6%
26%

206,427

192,447 3%

180,347 1%

1%

43%

51%

53%

41%

42%

68%

Others Aged/Disabled MR/DD

53%

53%

53%

47%

45%

2002

2003

2004

2005

2006

2007

Note: Others includes waivers that serve children, persons with HIV/AIDS, mental health needs, and with traumatic brain and spinal cord injuries. Sources: Kaiser Commission on Medicaid and the Uninsured and UCSF analysis of CMS Form 372 data and program surveys.

In 2007, 72 percent of all waivers with waiting lists had a policy of screening individuals for Medicaid waiver eligibility before being placed or while on a waiting list (Table 10). In addition, almost two-thirds of all waivers with waiting lists (63%) had a policy of prioritizing individuals for waiver services (e.g. persons transitioning from an institution get priority for waiver services when slots become available). More than 80 percent of all states with waiver waiting lists provided non-waiver services such as state plan services to Medicaid eligible individuals while they waited for waiver services.

Medicaid Home Health and State Plan Personal Care Programs

Unlike the waiver program, the Medicaid home health and the optional state plan personal care programs do not allow states the ability to maintain waiting lists or geographically limit the provision of service.5 However, federal Medicaid rules allow states to use certain cost-containment strategies. To understand how states control spending in home health and the optional state plan personal care programs in 2007, we surveyed all Medicaid home health and state plan personal care programs asking about financial eligibility standards, whether they used any form of expenditure or service caps, and whether or not they allowed consumers to hire and fire their service providers (which we used as a proxy for consumer direction). The following summarizes the survey findings to show how states use cost control policies to control access to home health and optional state plan personal care services.6

Financial Eligibility. Most states utilized the minimum Medicaid standard of categorically needy to admit participants into the programs. However, states may elect to expand the financial eligibility criteria by allowing the medically needy (those who spend down) and those on the Early Periodic Screening, Diagnostic and Treatment (EPSDT) program to receive services under these programs. In 2007, in addition to the categorically needy, 82 percent of state home health program and 56 percent of states with optional state plan

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personal care programs allowed either the medically needy or those on the EPSDT program or both to participate in the programs (Table 9). Cost Controls. More than one-third of all states (35%) utilized either expenditure or service limits or both in their home health programs in 2007 while 47 percent of all states with optional state plan personal care programs used cost control limits. However, only 1 state (Connecticut) used a combination of expenditure and service limits on its home health program while Maryland was the only state to impose such a combination of limits on its optional state plan personal care program. Service limitations were the most popular form of cost control among states with optional state plan personal care service programs with 44 percent of all states using such limits as their sole form of cost controls. Consumer Direction. Between 2006 and 2007, there was no change in the percentage of home health programs allowing consumer direction within their program with less than a quarter (24%) of programs allowing consumer direction. In contrast, there was an increase in the number of optional state plan personal care programs that allowed consumer direction (from 31 percent of states in 2006 to 47 percent of states in 2007). For the HCBS waiver programs, 80 percent of programs allowed consumer direction in at least some of their waivers in 2007. Provider Reimbursement. The average reimbursement that states provided to home health agencies was $71.98 per home health visit in 2007. In states that paid registered nurses (RNs) or home health aides (HHA) directly or mandated their reimbursement rates, the average rate for RNs was $79.95 per visit and $38.95 per visit for HHAs. In the optional state plan personal care program, the average rate paid to agencies providing personal care was $15.89 per hour in 2007. In states where personal care providers were paid directly by the state or where reimbursement rates were determined by the state, the average reimbursement rate was $12.09 per hour in 2007 (Table 12).7 Reimbursement rates for services provided under 1915(c) HCBS waivers were not part of the policy survey and are not reported here. Medicaid services reimbursement rates are set by individual state legislatures as part of the state’s budgetary process. CONCLUSION Over the past two decades, policy makers have responded to consumer preferences for alternatives to institutional care, by expanding Medicaid home and community-based programs. In 2005, the number of Medicaid enrollees receiving HCBS services grew to 2.8 million, a 4 percent increase over the previous year. Although the number of Medicaid enrollees in HCBS waivers also increased in 2005, the rapid increase in the number of individuals on waiting lists highlights the demand for services, especially those serving the MR/DD and aged/disabled population. In addition, inter-state variations in Medicaid HCBS programs and spending are still a concern. States that are using more restrictive financial or functional eligibility standards in their HCBS programs are at odds with the desire to serve more Medicaid beneficiaries in community-based setting. As the deepening fiscal crisis continues, states will be faced with new uncertainties for the provision of Medicaid HCBS services in the coming years. Therefore, targeted research is needed to investigate the impact of cost controls on access, quality and overall Medicaid costs as well as the differences in services and spending across states. The use of some form of consumer direction in two-thirds of waiver states highlights the need to better understand the impact of the increasing number of Medicaid HCBS
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Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 12 of 35
enrollees who are able to self direct their care and employ their preferred caretakers. The emergence and adoption of Independence Plus waivers and other demonstrations such as Money Follows the Persons grants within the framework of existing waivers highlights a trend towards the use of consumer directed home care and more research is required to understand the impact such waivers are having on access, quality, and costs.
Endnotes 1 Burwell, B., Sredl, K., and Eiken, S., 2007. Medicaid Long Term Care Expenditures in FY 2007. Thomson reuters, September 2008. http://www.hcbs.org/files/145/7239/2007LTCExpenditures.pdf 2 Kitchener M., and C. Harrington. 2005. “U.S. Long-term Care: A Dialectic Analysis of Institutional Dynamics.” Journal of Health and Social Behavior 45: 87-101. 3 Smith, V. et. al. Headed for a Crunch: An Update on Medicaid Spending, Coverage and Policy Heading into an Economic Downturn. Kaiser Commission on Medicaid and the Uninsured. Issue Paper, September 2008. http://kff.org/medicaid/7815.cfm 4 Out of 277 active waivers in 2007, 262 HCBS waiver surveys were completed. The response rate was 94 percent. 5 Kitchener M., T. Ng. and C. Harrington. 2007. “State Medicaid Home Care Policies: Inside the Black Box.” Home Health Care Services Quarterly. Volume 26, No. 3; 23-38 6 Completed policy surveys were collected for all 51 Medicaid Home Health programs and all 32 Medicaid State Plan Personal Care programs. 7 Average reimbursement rates for home health and personal care services programs were calculated by standardizing the payment period (per visit for the home health program and per hour for the personal care services program).

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Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 13 of 35

Table 1A: Total Medicaid HCBS Participants, by State, 1999-2005

Total AK AL AR AZ CA CO CT DC DE FL GA HI IA ID IL IN KS KY LA MA MD ME MI MN MO MS MT NC ND NE NH NJ NM NV NY OH OK OR PA RI SC SD TN TX UT VA VT WA WI WV WY

1999

2000

2001

2002

2003

1,905,175 3,407
17,719 38,418 26,351 318,608 27,047 39,568
4,452 2,709 59,768 25,956 2,546 26,771 6,265 69,194 14,030 18,185 34,783 14,508 45,926 15,717 11,755 65,841 34,603 71,263 8,243 6,241 36,189 3,169 8,374 13,779 47,616 7,574 2,894 257,850 60,386 21,041 33,644 28,525 8,422 30,280 8,973 10,416 181,003 4,856 22,617 5,912 45,087 41,582 12,596 2,516

2,061,116 3,973
18,042 37,073 28,463 346,640 28,931 41,191
4,571 2,755 68,611 24,420 2,816 27,790 8,765 72,874 13,728 21,296 36,025 18,928 48,244 17,283 10,624 69,987 39,726 77,133 10,279 6,504 40,211 3,412 11,247 13,875 47,827 9,120 3,297 254,556 80,754 29,697 37,852 31,615 7,404 29,825 8,733 10,643 215,279 5,822 21,708 6,338 48,247 41,688 12,687 2,607

2,137,012 4,583
19,455 36,498 31,170 335,250 32,476 42,398
4,299 3,128 75,528 28,111 6,391 30,267 10,579 83,905 13,360 22,356 40,322 15,662 47,772 18,772 8,462 74,466 47,434 80,314 18,662 6,532 42,680 2,713 12,372 6,829 36,109 7,784 4,992 248,277 63,377 30,072 41,879 55,193 8,864 29,488 8,775 10,606 248,318 6,260 20,495 6,801 50,757 39,443 13,837 2,939

2,382,049 5,328
19,235 34,414 33,897 421,556 34,293 38,782
4,238 3,258 84,974 33,513 6,547 32,968 10,754 94,244 16,221 24,343 41,654 16,271 47,002 17,170 8,890 74,784 50,609 83,734 21,844 6,705 76,100 3,171 12,255 7,586 43,290 11,503 6,039 249,680 74,481 31,906 45,557 72,088 6,039 31,595 8,963 11,198 269,324 6,029 20,610 8,718 53,601 47,268 14,531 3,289

2,565,186 6,365
19,766 33,506 36,338 446,510 33,615 38,053
5,081 3,459 85,604 35,599 6,277 37,089 13,021 111,227 19,601 25,338 42,514 18,258 48,196 20,215 13,963 78,988 51,577 83,771 23,613 6,525 84,254 4,126 14,547 8,023 47,443 15,121 6,914 250,697 133,828 28,685 44,441 48,152 6,105 31,017 8,971 12,573 309,152 6,896 20,428 8,510 63,689 49,148 14,878 3,519

2004

2005

2,660,001 6,306
19,723 33,970 38,077 454,476 34,270 39,467
5,258 3,550 87,836 37,788 4,643 42,110 15,827 118,960 22,413 27,767 39,063 19,889 46,212 19,478 14,920 79,841 56,005 88,565 28,956 7,303 95,880 5,159 15,065 8,117 46,089 15,932 7,194 271,675 143,989 30,214 43,722 53,842 6,331 31,213 9,230 17,735 291,625 8,942 20,536 9,061 64,336 52,837 14,973 3,631

2,779,257 6,611
20,329 34,371 39,717 481,400 34,262 40,025
5,430 3,631 94,323 38,700 5,663 42,618 16,541 143,189 22,363 29,213 37,337 21,601 50,668 23,502 14,797 79,180 59,325 89,244 23,374 7,558 110,889 5,511 16,024 7,765 48,462 16,061 7,429 271,631 136,484 32,750 44,622 55,606 6,568 31,441 9,155 19,024 317,970 8,903 22,735 8,954 63,359 54,111 14,875 3,956

04-05 % change
4% 5% 3% 1% 4% 6% 0% 1% 3% 2% 7% 2% 22% 1% 5% 20% 0% 5% -4% 9% 10% 21% -1% -1% 6% 1% -19% 3% 16% 7% 6% -4% 5% 1% 3% 0% -5% 8% 2% 3% 4% 1% -1% 7% 9% 0% 11% -1% -2% 2% -1% 9%

99-05 ave. % change
7% 12%
2% -2% 7% 7% 4% 0% 4% 5% 8% 7% 22% 8% 18% 13% 9% 8% 1% 8% 2% 7% 6% 3% 10% 4% 22% 3% 23% 11% 12% -6% 1% 15% 18% 1% 19% 9% 5% 16% -3% 1% 0% 11% 10% 11% 0% 8% 6% 5% 3% 8%

Notes: Total Medicaid HCBS comprises Medicaid Home Health, Medicaid Personal Care Services, and Medicaid 1915(c) HCBS waivers.

13

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 14 of 35

Table 1B: Medicaid Home Health Participants, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

Total

688,781 713,186

713,505

775,299

862,607 891,737 924,259

AK

519

288

261

232

286

273

304

AL

7,564

7,801

7,924

7,008

6,576

6,345

6,757

AR

10,039

8,950

8,228

7,189

6,772

6,642

6,788

AZ

26,351

28,463

31,170

33,897

36,338

38,077

39,717

CA

99,938

90,478

81,250

77,834

89,436

87,027

87,027

CO

7,120

6,741

8,551

8,789

7,326

8,275

8,687

CT

25,753

26,372

26,619

22,143

20,933

21,446

21,753

DC

2,799

2,802

2,349

2,030

2,124

2,124

2,124

DE

1,120

985

1,072

989

989

989

989

FL

14,793

14,192

14,324

15,305

17,476

19,962

21,192

GA

9,330

7,705

7,309

8,827

10,913

13,102

14,014

HI

609

555

3,478

3,239

2,726

585

1,300

IA

17,616

17,132

17,939

18,670

20,548

23,346

24,558

ID

2,518

2,992

3,164

1,999

1,794

3,295

3,326

IL

30,092

30,373

37,718

41,546

51,060

53,932

74,236

IN

9,694

8,790

8,154

9,232

8,235

8,939

8,879

KS

1,443

2,830

2,597

2,716

6,688

7,152

5,865

KY

20,326

20,280

22,916

23,168

24,636

23,702

22,415

LA

10,751

14,371

10,560

10,836

11,051

11,662

12,187

MA

26,000

25,000

22,865

20,177

19,521

16,498

17,875

MD

6,696

7,469

7,639

3,291

3,598

1,245

4,393

ME

6,947

5,515

3,234

3,050

3,140

2,875

2,875

MI

7,286

4,145

4,772

5,720

8,301

7,080

6,573

MN

8,433

9,488

8,894

7,878

5,174

5,349

5,229

MO

5,997

6,242

6,043

6,806

7,237

7,246

7,739

MS

5,228

5,639

7,812

9,283

10,351

14,543

8,834

MT

982

820

571

540

456

473

437

NC

10,665

11,590

12,468

32,487

33,206

35,871

38,668

ND

963

1,092

257

205

803

899

521

NE

2,738

4,350

4,812

5,193

5,602

5,532

6,292

NH

9,684

9,408

1,953

2,177

2,300

2,389

2,841

NJ

14,433

12,910

4,541

10,219

10,219

10,219

10,219

NM

4,206

4,518

530

487

609

391

431

NV

350

400

1,453

1,455

1,551

1,551

1,551

NY

111,014 103,402

93,517

92,715

89,844 110,910 109,244

OH

26,523

45,953

32,810

34,868

89,857

96,408

84,374

OK

3,187

3,423

3,630

3,735

3,006

3,841

5,129

OR

756

889

1,719

2,245

2,245

2,245

2,245

PA

11,579

8,601

24,160

36,381

8,071

9,171

9,359

RI

3,227

1,805

2,847

1,000

1,000

1,000

1,000

SC

10,256

9,267

8,825

11,100

11,100

11,100

11,100

SD

5,480

5,212

4,729

4,729

4,729

4,729

4,729

TN

5,560

5,733

5,616

6,300

7,648

12,655

12,539

TX

78,061 104,292

129,559

157,095

186,870 170,881 187,099

UT

1,135

1,370

1,476

759

1,488

2,214

2,121

VA

6,374

6,031

4,970

4,468

3,831

2,890

3,299

VT

3,120

3,271

3,376

3,434

3,501

3,611

3,611

WA

3,950

3,501

3,818

3,410

3,231

2,858

3,597

WI

7,526

7,664

6,765

6,180

5,903

5,903

5,903

WV

1,626

1,656

1,785

1,749

1,749

1,749

1,749

WY

424

430

476

514

559

536

565

Source: Kaiser Commission and UCSF analysis of Medicaid Home Health Policy Survey.

04-05 % change
4% 11%
6% 2% 4% 0% 5% 1% 0% 0% 6% 7% 122% 5% 1% 38% -1% -18% -5% 5% 8% 253% 0% -7% -2% 7% -39% -8% 8% -42% 14% 19% 0% 10% 0% -2% -12% 34% 0% 2% 0% 0% 0% -1% 9% -4% 14% 0% 26% 0% 0% 5%

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Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 15 of 35

Table 1C: Medicaid Personal Care Services Participants, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

04-05

% change

Total 528,412

578,207

582,298

683,067

719,852

759,158

794,642

5%

AK

1,242

1,456

1,584

1,955

2,742

2,742

2,742

0%

AL

AR

18,358

17,716

16,823

15,870

15,499

15,503

15,452

0%

AZ

CA 176,822

211,619

203,345

283,750

288,000

295,049

313,893

6%

CO

CT

DC

1,624

1,625

1,649

1,710

2,352

2,352

2,352

0%

DE

0

0

0

0

0

0

0

0%

FL

8,517

9,463

10,515

14,791

14,659

14,718

13,980

-5%

GA

HI

IA

ID

2,196

1,921

1,823

2,253

3,377

3,614

3,601

0%

IL

IN

KS

KY

LA

MA

3,718

5,666

6,938

9,000

10,570

11,716

13,767

18%

MD

4,627

4,677

4,704

4,832

4,743

4,603

4,643

1%

ME

1,092

1,289

1,388

1,894

6,627

7,861

7,861

0%

MI

43,394

46,309

47,920

51,425

53,351

54,986

55,158

0%

MN

7,111

7,317

7,773

7,506

6,302

8,329

9,940

19%

MO

36,575

39,203

41,111

43,964

44,835

49,295

49,481

0%

MS

MT

2,765

2,794

2,925

2,996

2,864

2,990

3,124

4%

NC

9,085

11,236

12,667

27,064

34,058

41,911

50,818

21%

ND

450

450

777

1,362

75%

NE

862

1,109

1,168

1,208

1,301

1,356

1,549

14%

NH

122

124

38

35

26

25

25

0%

NJ

19,704

20,592

15,639

16,430

17,707

18,987

20,884

10%

NM

883

3,170

6,357

8,960

9,525

9,614

1%

NV

491

449

795

1,501

2,038

2,038

2,038

0%

NY

89,577

88,788

88,370

84,879

83,846

85,613

84,270

-2%

OH

OK

6,159

7,473

7,011

10,000

7,000

7,000

7,000

0%

OR

1,265

2,070

2,678

1,920

2,376

4,495

5,086

13%

PA

RI

0

0

0

0

0

0

0

0%

SC

SD

886

994

1,015

1,057

948

923

901

-2%

TN

TX

67,661

70,284

77,824

62,366

66,967

71,381

77,725

9%

UT

181

279

318

348

450

1,787

1,755

-2%

VA

VT

1,563

1,359

1,534

1,534

0%

WA

7,625

6,514

7,208

11,000

21,436

22,390

18,429

-18%

WI

11,067

10,508

10,587

10,408

10,474

11,123

11,123

0%

WV

5,686

5,849

5,312

4,535

4,535

4,535

4,535

0%

WY

Notes:

Personal care services are an optional benefit. In 2005, 30 states reported personal care services participants.

Blank cells mean no program offered. Two states (DE and RI) were approved by CMS to offer personal care

services but did not report participants during the period.

Source: Kaiser Commission and UCSF analysis of Medicaid Personal Care Services Policy Survey

15

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 16 of 35

Table 1D: Medicaid 1915(c) HCBS Waivers Participants, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

04-05

% change

Total

687,982 769,723 841,209

923,683 982,727 1,009,106 1,060,356

5%

AK

1,646

2,229

2,738

3,141

3,337

3,291

3,565

8%

AL

10,155 10,241 11,531

12,227

13,190

13,378

13,572

1%

AR

10,021 10,407 11,447

11,355

11,235

11,825

12,131

3%

AZ

CA

41,848 44,543 50,655

59,972

69,074

72,400

80,480

11%

CO

19,927 22,190 23,925

25,504

26,289

25,995

25,575

-2%

CT

13,815 14,819 15,779

16,639

17,120

18,021

18,272

1%

DC

29

144

301

498

605

782

954

22%

DE

1,589

1,770

2,056

2,269

2,470

2,561

2,642

3%

FL

36,458 44,956 50,689

54,878

53,469

53,156

59,151

11%

GA

16,626 16,715 20,802

24,686

24,686

24,686

24,686

0%

HI

1,937

2,261

2,913

3,308

3,551

4,058

4,363

8%

IA

9,155 10,658 12,328

14,298

16,541

18,764

18,060

-4%

ID

1,551

3,852

5,592

6,502

7,850

8,918

9,614

8%

IL

39,102 42,501 46,187

52,698

60,167

65,028

68,953

6%

IN

4,336

4,938

5,206

6,989

11,366

13,474

13,484

0%

KS

16,742 18,466 19,759

21,627

18,650

20,615

23,348

13%

KY

14,457 15,745 17,406

18,486

17,878

15,361

14,922

-3%

LA

3,757

4,557

5,102

5,435

7,207

8,227

9,414

14%

MA

16,208 17,578 17,969

17,825

18,105

17,998

19,026

6%

MD

4,394

5,137

6,429

9,047

11,874

13,630

14,466

6%

ME

3,716

3,820

3,840

3,946

4,196

4,184

4,061

-3%

MI

15,161 19,533 21,774

17,639

17,336

17,775

17,449

-2%

MN

19,059 22,921 30,767

35,225

40,101

42,327

44,156

4%

MO

28,691 31,688 33,160

32,964

31,699

32,024

32,024

0%

MS

3,015

4,640 10,850

12,561

13,262

14,413

14,540

1%

MT

2,494

2,890

3,036

3,169

3,205

3,840

3,997

4%

NC

16,439 17,385 17,545

16,549

16,990

18,098

21,403

18%

ND

2,206

2,320

2,456

2,516

2,873

3,483

3,628

4%

NE

4,774

5,788

6,392

5,854

7,644

8,177

8,183

0%

NH

3,973

4,343

4,838

5,374

5,697

5,703

4,899

-14%

NJ

13,479 14,325 15,929

16,641

19,517

16,883

17,359

3%

NM

3,368

3,719

4,084

4,659

5,552

6,016

6,016

0%

NV

2,053

2,448

2,744

3,083

3,325

3,605

3,840

7%

NY

57,259 62,366 66,390

72,086

77,007

75,152

78,117

4%

OH

33,863 34,801 30,567

39,613

43,971

47,581

52,110

10%

OK

11,695 18,801 19,431

18,171

18,679

19,373

20,621

6%

OR

31,623 34,893 37,482

41,392

39,820

36,982

37,291

1%

PA

16,946 23,014 31,033

35,707

40,081

44,671

46,247

4%

RI

5,195

5,599

6,017

5,039

5,105

5,331

5,568

4%

SC

20,024 20,558 20,663

20,495

19,917

20,113

20,341

1%

SD

2,607

2,527

3,031

3,177

3,294

3,578

3,525

-1%

TN

4,856

4,910

4,990

4,898

4,925

5,080

6,485

28%

TX

35,281 40,703 40,935

49,863

55,315

49,363

53,146

8%

UT

3,540

4,173

4,466

4,922

4,958

4,941

5,027

2%

VA

16,243 15,677 15,525

16,142

16,597

17,646

19,436

10%

VT

2,792

3,067

3,425

3,721

3,650

3,916

3,809

-3%

WA

33,512 38,232 39,731

39,191

39,022

39,088

41,333

6%

WI

22,989 23,516 22,091

30,680

32,771

35,811

37,085

4%

WV

5,284

5,182

6,740

8,247

8,594

8,689

8,591

-1%

WY

2,092

2,177

2,463

2,775

2,960

3,095

3,391

10%

Notes: AZ did not operate an 1915(c) waiver over the study period because all HCBS were provided through a 1115

demonstration waiver.

Source: Kaiser Commission and UCSF analysis of CMS Form 372

16

00

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 17 of 35

Total
AK AL AR AZ CA CO CT DC DE FL GA HI IA ID IL IN KS KY LA MA MD ME MI MN MO MS MT NC ND NE NH NJ NM NV NY OH OK OR PA RI

1999
$17,209,159,864 45,354,603
151,379,502 131,108,700 297,373,001 1,872,821,444 269,941,242 489,485,893
13,583,477 41,452,591 317,211,333 179,626,943 35,781,922 131,940,852 41,236,756 346,485,656 132,015,293 241,349,904 159,830,708 96,557,594 583,137,929 227,115,049 139,401,524 499,086,768 598,479,361 345,147,476 21,044,052 60,696,538 463,609,045 43,787,296 100,011,740 124,053,331 537,005,449 121,122,907 19,999,536 3,826,403,539 409,361,603 205,068,002 346,481,134 626,666,677 115,326,442

Table 2A: Total Medicaid HCBS Expenditures, by State, 1999-2005

2000

2001

2002

2003

2004

2005

$19,441,712,416 60,668,035
157,186,412 134,880,377 291,851,598 2,200,718,334 344,787,435 521,869,339
14,352,419 45,623,139 417,181,845 201,434,029 43,466,894 152,718,538 57,217,545 389,705,482 152,777,006 278,416,722 197,041,417 104,425,978 653,597,435 251,869,746 150,670,026 685,508,213 741,371,315 399,206,258 32,530,467 70,340,045 558,075,236 49,531,352 121,727,696 126,288,174 558,205,043 139,520,928 26,912,584 3,962,425,751 474,154,911 231,706,553 425,896,091 735,018,352 171,123,778

$22,080,281,206 82,342,961
167,443,330 156,687,033 337,986,311 2,717,657,118 386,343,329 574,720,005
15,456,361 52,706,270 600,582,595 220,292,847 58,298,561 182,056,614 76,002,328 486,669,111 107,738,424 302,162,352 232,773,860 151,158,394 714,635,538 282,708,591 163,050,532 650,573,808 869,179,708 449,481,127 58,524,672 78,382,219 592,558,621 52,597,980 145,614,364 139,927,822 604,818,677 209,851,453 39,621,561 4,283,831,284 393,421,441 286,103,374 481,431,288 927,575,342 188,876,938

$25,093,663,716 108,675,096 208,950,350 161,753,874 429,912,053
2,923,983,809 422,691,842 619,224,038 20,131,053 56,240,464 725,879,503 314,867,191 72,492,240 214,269,060 90,381,223 574,527,277 245,868,088 321,911,865 252,313,712 169,477,083 772,989,266 286,278,982 192,328,168 667,412,435
1,112,926,385 511,812,468 87,631,259 85,252,663 708,833,976 57,422,566 150,870,672 146,442,215 630,458,367 315,871,472 55,810,256
4,649,300,029 631,433,786 333,223,397 545,858,372
1,151,315,230 190,088,897

$28,238,928,934 145,679,182 212,282,000 163,560,431 502,729,562
3,598,497,867 459,336,759 669,221,314 26,774,769 72,062,289 813,748,583 320,869,839 78,699,481 251,652,690 112,676,988 680,919,272 372,148,363 346,806,799 249,305,892 201,611,716 816,117,057 375,900,068 234,802,021 583,723,255
1,145,026,341 570,760,614 95,938,167 88,122,144 738,980,537 60,710,662 181,539,948 153,023,854 708,277,785 386,869,438 61,185,626
5,221,679,045 890,302,433 336,358,287 573,651,105
1,183,722,614 234,349,883

$31,996,470,808 154,531,603 237,214,211 177,833,534 571,602,786
4,024,635,957 464,007,995 677,714,199 31,255,169 67,340,868 919,013,161 323,004,902 108,280,113 285,540,027 134,245,371 763,480,105 471,503,989 364,019,070 245,137,580 434,731,870 884,524,974 460,525,684 274,236,809 627,636,623
1,222,684,033 580,070,961 132,325,334 97,642,250 803,020,762 71,566,122 195,652,635 157,268,040 717,331,965 443,840,549 68,883,810
6,383,265,802 979,106,140 317,825,224 561,005,749
1,312,957,767 242,920,957

$35,093,334,480 156,193,181 273,376,248 200,102,642 642,134,311
4,387,670,377 461,164,769 701,998,029 33,165,381 74,056,017
1,001,616,503 332,942,801 120,841,624 352,321,149 146,702,041 861,360,464 486,249,836 368,930,830 277,331,722 571,720,660 942,338,162 516,094,476 278,492,687 631,301,204
1,374,385,641 621,729,378 141,184,370 103,983,813 943,129,577 75,530,923 205,391,629 160,925,054 760,659,698 422,446,991 73,281,681
6,994,885,180 1,079,937,061
355,883,819 586,982,775 1,402,817,082 243,358,671

04-05 % change
10% 1%
15% 13% 12%
9% -1% 4% 6% 10% 9% 3% 12% 23% 9% 13% 3% 1% 13% 32% 7% 12% 2% 1% 12% 7% 7% 6% 17% 6% 5% 2% 6% -5% 6% 10% 10% 12% 5% 7% 0%

99-05 ave. % change
13% 24% 11%
7% 14% 15% 10%
6% 17% 11% 22% 12% 23% 18% 24% 16% 33%
7% 10% 39%
8% 15% 12%
5% 15% 10% 40%
9% 13% 10% 13%
4% 6% 25% 25% 11% 20% 10% 9% 15% 14%

17

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 18 of 35

1999

2000

2001

2002

2003

2004

2005

04-05

% change

SC

166,177,132

196,655,802

219,147,679

258,992,320

251,018,445

276,384,268

289,973,671

5%

SD

53,700,190

57,883,684

62,643,276

68,208,356

72,210,508

84,588,075

78,213,732

-8%

TN

142,291,471

191,566,970

221,847,369

232,033,196

244,002,478

344,405,767

511,051,410

48%

TX

996,324,778

1,052,417,524

1,250,884,507

1,219,590,440

1,285,929,840

1,725,338,259

1,948,858,899

13%

UT

70,067,069

85,494,638

94,302,629

105,362,250

114,232,476

125,792,990

130,506,350

4%

VA

218,233,875

247,890,100

283,226,518

331,032,037

363,474,313

361,373,278

428,205,981

18%

VT

72,120,953

85,212,422

97,544,402

112,839,854

120,479,143

138,898,560

135,720,980

-2%

WA

412,495,194

481,003,669

552,663,949

607,335,239

754,188,684

725,306,765

870,772,906

20%

WI

482,343,383

511,203,312

553,114,838

688,550,636

805,316,425

902,982,327

986,359,055

9%

WV

141,359,599

150,528,685

169,878,918

190,140,071

231,515,967

239,216,629

264,715,212

11%

WY

46,503,408

49,853,111

53,182,977

62,468,635

76,935,975

82,799,192

84,337,828

2%

Notes: Total Medicaid HCBS comprises Medicaid Home Health, Medicaid Personal Care Services and Medicaid 1915(c) HCBS waivers.

99-05 ave. % change
10% 7%
25% 12% 11% 12% 11% 14% 13% 11% 11%

18

00

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 19 of 35

Table 2B: Medicaid Home Health Expenditures, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

Total AK AL AR AZ CA CO CT DC DE FL GA HI IA ID IL IN KS KY LA MA MD ME MI MN MO MS MT NC ND NE NH NJ NM NV NY OH OK OR PA RI SC SD TN TX UT VA VT WA WI WV WY

$2,112,094,893 $2,280,401,216 $2,472,456,345 $2,679,309,142 $2,764,719,769 $4,102,673,737

736,927

708,268

718,783

582,373

847,971

745,169

22,267,560

21,603,923

22,111,550

21,798,128

9,200,000

11,500,000

14,030,833

12,355,265

11,527,798

10,096,036

9,850,412

12,639,824

297,373,001

291,851,598

337,986,311

429,912,053

502,729,562

571,602,786

124,483,543

132,216,475

147,404,458

149,171,445

157,959,317

162,471,246

60,380,594

67,351,024

81,976,321

85,568,256

96,765,246

99,363,747

120,335,835

130,897,232

147,822,566

159,091,638

179,555,091

173,256,410

4,109,948

4,061,100

2,793,585

10,469,694

12,151,247

12,477,553

7,045,021

5,422,921

5,429,135

3,407,683

12,425,477

3,578,162

19,822,613

23,067,203

27,649,025

36,225,117

44,679,843

53,740,571

14,797,553

11,584,279

10,622,527

14,315,705

13,535,479

7,417,488

1,600,000

2,070,000

6,941,385

7,878,713

2,705,755

821,594

44,408,628

47,273,183

54,248,385

58,817,119

70,559,498

67,449,320

5,693,600

7,100,000

7,000,000

3,696,123

3,447,052

6,361,557

50,721,427

57,759,512

66,217,407

73,576,878

91,332,670

91,226,131

47,424,210

48,731,392

49,217,638

50,979,899

52,176,197

66,990,188

1,083,308

4,920,334

5,993,886

8,469,246

40,788,180

40,332,525

62,506,928

75,034,667

80,392,026

73,973,550

58,123,840

54,133,985

18,587,304

20,777,201

21,537,213

23,876,862

26,816,397

293,604,900

81,400,000

67,955,390

65,000,000

65,259,754

66,544,443

64,057,397

49,100,000

52,100,000

58,100,000

3,039,841

2,633,317

2,522,558

15,704,936

10,731,156

6,883,316

6,957,632

5,567,061

5,894,201

11,061,281

7,852,083

7,945,699

6,591,733

4,775,925

4,824,999

62,055,992

123,466,899

116,706,864

122,258,669

8,225,149

7,594,057

8,096,906

8,228,555

7,810,903

4,990,941

6,133,801

5,339,312

6,188,836

7,116,857

10,915,766

13,005,819

14,697,688

28,883,417

1,340,000

760,000

782,078

778,164

538,554

494,040

70,287,895

83,449,895

82,077,249

96,000,000

94,912,547

97,658,834

2,693,488

3,224,290

2,719,445

2,232,992

3,026,389

4,944,273

8,794,136

16,727,583

18,118,152

18,418,349

20,658,046

19,720,813

5,200,000

4,300,000

2,903,300

2,828,131

3,027,804

3,205,486

75,455,240

55,742,434

49,068,815

35,800,000

3,096,136

37,590,995

1,943,102

1,849,000

1,638,000

1,082,000

537,793

314,941

2,500,000

3,000,000

6,174,866

5,619,075

6,135,552

6,300,314

575,984,205

607,673,981

634,792,137

660,137,875

704,235,427 1,342,916,050

24,011,401

48,600,238

38,695,248

38,713,335

114,662,541

132,313,455

1,265,559

923,562

1,008,937

1,253,470

4,157,614

5,411,159

459,711

674,325

693,000

983,876

4,251,443

1,033,097

34,274,108

32,602,401

72,998,756

131,801,491

37,158,631

45,277,198

5,650,676

3,956,975

3,337,686

3,033,322

3,114,110

3,631,995

14,346,335

13,006,344

12,124,148

18,000,000

3,184,390

18,900,500

4,078,450

4,091,645

3,893,210

3,954,763

3,256,255

4,152,611

13,534,588

16,728,506

18,846,241

21,999,779

33,818,209

69,345,932

69,766,962

90,961,338

113,319,229

152,357,543

176,893,893

414,932,713

3,741,527

4,024,093

4,875,634

1,469,759

2,908,401

8,801,033

7,063,036

6,698,293

5,306,165

5,002,239

4,434,208

3,052,856

4,351,705

6,932,113

7,508,491

5,081,326

4,534,280

8,008,774

5,642,994

4,807,752

4,586,418

4,448,191

3,843,462

3,235,696

25,225,578

24,146,040

22,155,252

20,600,315

18,232,274

18,721,877

2,365,565

2,149,068

2,902,982

2,536,393

18,643,742

2,663,283

1,101,847

1,134,822

978,359

1,165,848

1,231,450

1,216,714

Source: Kaiser Commission and UCSF analysis of Medicaid Home Health Policy Survey

$4,422,756,428 842,140
16,000,000 13,140,257 642,134,311 161,558,390 102,730,227 178,419,015 12,900,296
3,699,391 67,040,745
6,663,172 2,052,407 76,136,288 6,773,303 102,727,920 74,483,614 16,672,381 52,478,633 292,748,291 62,885,534 2,690,828 6,093,899 4,514,608 7,419,414 7,112,690 19,289,258
582,519 111,301,999
4,924,828 21,799,720
3,883,831 38,864,591
385,628 6,513,771 1,424,463,030 136,313,372 7,741,957 1,068,099 52,370,294 3,755,048 19,540,856 4,293,303 136,076,374 459,641,627 9,216,678 4,555,784 8,280,115 4,488,692 19,356,181 2,753,516 1,377,602

04-05 % change
8% 13% 39%
4% 12% -1%
3% 3% 3% 3% 25% -10% 150% 13% 6% 13% 11% -59% -3% 0% -2% 7% 3% -6% -2% 33% -33% 18% 14% 0% 11% 21% 3% 22% 3% 6% 3% 43% 3% 16% 3% 3% 3% 96% 11% 5% 49% 3% 39% 3% 3% 13%

19

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 20 of 35

Table 2C: Medicaid Personal Care Services Expenditures, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

04-05

% change

Total $4,080,593,555 $4,556,604,883 $5,261,409,993 $5,491,439,873 $6,531,788,473 $7,149,824,276 $7,680,955,152

7%

AK

6,333,583

7,665,915

8,333,607

13,753,180

39,328,012

40,384,113

41,752,342

3%

AL

AR

60,787,103

57,862,615

57,417,047

53,367,081

52,311,420

53,920,302

61,133,807

13%

AZ

CA 1,198,264,831 1,486,198,331 1,792,437,265 1,800,000,000 2,300,000,000 2,605,215,000 2,857,270,000

10%

CO

CT

DC

9,422,005

9,918,300

10,976,890

6,320,357

10,283,304

10,559,448

10,917,206

3%

DE

0

0

0

0

0

0

0

0%

FL

10,326,059

11,473,399

12,748,241

34,647,505

35,127,374

35,264,090

33,411,364

-5%

GA

HI

IA

ID

17,700,000

17,200,000

12,500,000

14,900,000

26,886,149

24,452,684

27,297,539

12%

IL

IN

KS

KY

LA

MA

74,000,000

115,994,100

142,697,517

160,000,000

193,167,928

221,844,520

235,230,776

6%

MD

19,221,621

20,405,350

21,277,129

21,754,209

20,739,402

20,489,511

20,594,541

1%

ME

4,216,295

4,913,640

5,042,374

10,703,251

27,291,222

44,915,946

46,437,714

3%

MI

166,445,124

179,393,239

219,564,610

220,628,101

249,444,958

254,154,819

237,291,585

-7%

MN

106,332,005

117,182,849

129,754,550

131,834,917

116,529,285

121,767,212

180,595,587

48%

MO

105,092,223

125,674,924

147,261,072

182,245,807

209,162,473

211,888,818

239,480,611

13%

MS

MT

17,627,260

19,201,331

20,348,283

23,929,583

21,300,000

21,900,000

23,400,000

7%

NC

73,963,864

92,949,966

113,353,293

153,829,363

190,808,485

221,038,726

286,650,908

30%

ND

1,960,000

2,004,233

4,555,927

5,314,206

17%

NE

2,902,471

5,950,259

6,091,183

6,812,003

8,115,824

8,463,093

9,784,319

16%

NH

2,554,884

2,900,000

685,648

797,312

653,552

498,912

510,956

2%

NJ

179,817,007

190,780,706

199,241,618

232,115,600

280,035,241

263,183,683

269,283,351

2%

NM

5,055,523

52,373,383

126,436,727

159,391,546

180,888,366

150,525,877

-17%

NV

2,429,592

2,920,105

4,827,331

16,519,023

19,808,910

20,340,852

21,030,007

3%

NY 1,464,026,040 1,520,556,019 1,571,618,449 1,709,273,337 1,796,653,275 1,930,721,116 2,045,068,149

6%

OH

OK

28,447,513

35,202,700

40,016,361

29,000,000

31,000,000

31,832,464

32,910,959

3%

OR

862,382

1,556,635

2,157,480

2,408,250

3,099,567

4,496,546

5,644,782

26%

PA

RI

0

0

0

0

0

0

0

0%

SC

SD

855,128

845,252

1,195,058

1,174,155

1,321,017

1,336,531

1,336,705

0%

TN

TX

377,362,681

382,120,135

509,872,132

315,237,716

374,444,269

417,972,927

459,179,146

10%

UT

292,587

476,609

580,856

661,353

846,589

1,271,532

1,082,312

-15%

VA

VT

6,075,612

6,212,727

6,379,561

6,595,703

3%

WA

53,300,000

39,500,000

51,600,000

83,200,000

215,675,176

238,676,921

214,684,196

-10%

WI

69,296,679

74,353,907

100,696,997

105,597,753

113,296,271

123,839,364

128,035,086

3%

WV

28,714,618

28,353,074

26,741,619

26,257,678

26,850,264

27,571,292

28,505,417

3%

WY

Notes: Personal care services are an optional benefit. In 2005, 30 states reported personal care services expenditures. Blank cells mean no

program offered. Two states (DE and RI) were approved by CMS to offer personal care services but did not report expenditures during the

period.

Source: Kaiser Commission and UCSF analysis of Medicaid Personal Care Services Policy Survey

20

00

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 21 of 35

Table 2D: Medicaid 1915(c) HCBS Waivers Expenditures, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

Total AK AL AR AZ CA CO CT DC DE FL GA HI IA ID IL IN KS KY LA MA MD ME MI MN MO MS MT NC ND NE NH NJ NM NV NY OH OK OR PA RI SC SD TN TX UT VA VT WA WI WV WY

$11,016,471,417 38,284,093
129,111,942 56,290,764

$12,604,706,317 52,293,852
135,582,489 64,662,497

$14,346,414,868 73,290,571
145,331,780 87,742,188

$16,922,914,701 94,339,543
187,152,222 98,290,757

$18,942,420,692 105,503,199 203,082,000 101,398,599

$20,743,972,795 113,402,321 225,714,211 111,273,408

$22,989,622,900 113,598,699 257,376,248 125,828,578

550,073,070

582,303,528

777,815,395

974,812,364

1,140,538,550

1,256,949,711

1,368,841,987

209,560,648

277,436,411

304,367,008

337,123,586

362,571,513

364,644,248

358,434,542

369,150,058

390,972,107

426,897,439

460,132,400

489,666,223

504,457,789

523,579,014

51,524

373,019

1,685,886

3,341,002

4,340,218

8,218,168

9,347,878

34,407,570

40,200,218

47,277,135

52,832,781

59,636,812

63,762,706

70,356,626

287,062,661

382,641,243

560,185,329

655,006,881

733,941,366

830,008,500

901,164,394

164,829,390

189,849,750

209,670,320

300,551,486

307,334,360

315,587,414

326,279,629

34,181,922

41,396,894

51,357,176

64,613,527

75,993,726

107,458,519

118,789,217

87,532,224

105,445,355

127,808,229

155,451,941

181,093,192

218,090,707

276,184,861

17,843,156

32,917,545

56,502,328

71,785,100

82,343,787

103,431,130

112,631,199

295,764,229

331,945,970

420,451,704

500,950,399

589,586,602

672,253,974

758,632,544

84,591,083

104,045,614

58,520,786

194,888,189

319,972,166

404,513,801

411,766,222

240,266,596

273,496,388

296,168,466

313,442,619

306,018,619

323,686,545

352,258,449

97,323,780

122,006,750

152,381,834

178,340,162

191,182,052

191,003,595

224,853,089

77,970,290

83,648,777

129,621,181

145,600,221

174,795,319

141,126,970

278,972,369

427,737,929

469,647,945

506,938,021

547,729,512

556,404,686

598,623,057

644,221,852

158,793,428

179,364,396

203,331,462

261,484,932

352,527,349

437,513,615

492,809,107

119,480,293

135,025,230

151,124,842

174,667,285

201,943,738

223,426,662

225,961,074

321,580,363

498,262,891

423,063,499

440,192,601

329,502,372

368,656,805

389,495,011

430,091,364

500,721,567

622,718,294

858,832,799

1,020,271,907

1,093,322,764

1,186,370,640

231,958,347

265,302,779

294,409,152

324,575,720

355,464,340

362,842,831

375,136,077

14,855,216

25,413,610

47,608,906

74,625,440

81,240,479

103,441,917

121,895,112

41,729,278

50,378,714

57,251,858

60,544,916

66,283,590

75,248,210

80,001,294

319,357,286

381,675,375

397,128,079

459,004,613

453,259,505

484,323,202

545,176,670

41,093,808

46,307,062

49,878,535

53,229,574

55,680,040

62,065,922

65,291,889

88,315,133

99,049,854

121,405,029

125,640,321

152,766,077

167,468,729

173,807,590

116,298,447

119,088,174

136,338,874

142,816,772

149,342,498

153,563,642

156,530,267

281,733,202

311,681,903

356,508,244

362,542,767

425,146,408

416,557,287

452,511,756

119,179,805

132,616,405

155,840,070

188,352,745

226,940,099

262,637,242

271,535,486

15,069,944

20,992,479

28,619,364

33,672,158

35,241,164

42,242,644

45,737,903

1,786,393,294

1,834,195,751

2,077,420,698

2,279,888,817

2,720,790,343

3,109,628,636

3,525,354,001

385,350,202

425,554,673

354,726,193

592,720,451

775,639,892

846,792,685

943,623,689

175,354,930

195,580,291

245,078,076

302,969,927

301,200,673

280,581,601

315,230,903

345,159,041

423,665,131

478,580,808

542,466,246

566,300,095

555,476,106

580,269,894

592,392,569

702,415,951

854,576,586

1,019,513,739

1,146,563,983

1,267,680,569

1,350,446,788

109,675,766

167,166,803

185,539,252

187,055,575

231,235,773

239,288,962

239,603,623

151,830,797

183,649,458

207,023,531

240,992,320

247,834,055

257,483,768

270,432,815

48,766,612

52,946,787

57,555,008

63,079,438

67,633,236

79,098,933

72,583,724

128,756,883

174,838,464

203,001,128

210,033,417

210,184,269

275,059,835

374,975,036

549,195,135

579,336,051

627,693,146

751,995,181

734,591,678

892,432,619

1,030,038,126

66,032,955

80,993,936

88,846,139

103,231,138

110,477,486

115,720,425

120,207,360

211,170,839

241,191,807

277,920,353

326,029,798

359,040,105

358,320,422

423,650,197

67,769,248

78,280,309

90,035,911

101,682,916

109,732,136

124,510,224

120,845,162

353,552,200

436,695,917

496,477,531

519,687,048

534,670,046

483,394,148

651,600,018

387,821,126

412,703,365

430,262,589

562,352,568

673,787,880

760,421,086

838,967,787

110,279,416

120,026,543

140,234,317

161,346,000

186,021,962

208,982,054

233,456,279

45,401,561

48,718,289

52,204,618

61,302,787

75,704,525

81,582,478

82,960,226

Notes: AZ does not operate a 1915(c) waiver because all HCBS are provided through a 1115 waiver.

Source: Kaiser Commission and UCSF analysis of CMS Form 372

04-05 % change
11% 0%
14% 13%
9% -2% 4% 14% 10% 9% 3% 11% 27% 9% 13% 2% 9% 18% 98% 8% 13% 1% 6% 9% 3% 18% 6% 13% 5% 4% 2% 9% 3% 8% 13% 11% 12% 4% 7% 0% 5% -8% 36% 15% 4% 18% -3% 35% 10% 12% 2%

21

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 22 of 35

Table 3A: Total Medicaid HCBS Average Expenditures Per Person Served, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

04-05 99-05 ave.

% change % change

Total

$9,033

$9,433 $10,332

$10,534

$11,009

$12,029

$12,627

5%

6%

AK

13,312

15,270

17,967

20,397

22,888

24,505

23,626

-4%

10%

AL

8,543

8,712

8,607

10,863

10,740

12,027

13,448

12%

8%

AR

3,413

3,638

4,293

4,700

4,882

5,235

5,822

11%

9%

AZ

11,285

10,254

10,843

12,683

13,835

15,012

16,168

8%

6%

CA

5,878

6,349

8,106

6,936

8,059

8,856

9,114

3%

8%

CO

9,980

11,918

11,896

12,326

13,665

13,540

13,460

-1%

5%

CT

12,371

12,669

13,555

15,967

17,587

17,172

17,539

2%

6%

DC

3,051

3,140

3,595

4,750

5,270

5,944

6,108

3%

13%

DE

15,302

16,560

16,850

17,262

20,833

18,969

20,395

8%

5%

FL

5,307

6,080

7,952

8,542

9,506

10,463

10,619

1%

13%

GA

6,920

8,249

7,837

9,395

9,013

8,548

8,603

1%

4%

HI

14,054

15,436

9,122

11,073

12,538

23,321

21,339

-9%

14%

IA

4,928

5,495

6,015

6,499

6,785

6,781

8,267

22%

9%

ID

6,582

6,528

7,184

8,404

8,653

8,482

8,869

5%

5%

IL

5,007

5,348

5,800

6,096

6,122

6,418

6,016

-6%

3%

IN

9,410

11,129

8,064

15,157

18,986

21,037

21,743

3%

20%

KS

13,272

13,074

13,516

13,224

13,687

13,110

12,629

-4%

-1%

KY

4,595

5,470

5,773

6,057

5,864

6,275

7,428

18%

9%

LA

6,655

5,517

9,651

10,416

11,042

21,858

26,467

21%

32%

MA

12,697

13,548

14,959

16,446

16,933

19,141

18,598

-3%

7%

MD

14,450

14,573

15,060

16,673

18,595

23,643

21,960

-7%

8%

ME

11,859

14,182

19,269

21,634

16,816

18,380

18,821

2%

10%

MI

7,580

9,795

8,737

8,925

7,390

7,861

7,973

1%

2%

MN

17,296

18,662

18,324

21,991

22,200

21,832

23,167

6%

5%

MO

4,843

5,176

5,597

6,112

6,813

6,550

6,967

6%

6%

MS

2,553

3,165

3,136

4,012

4,063

4,570

6,040

32%

16%

MT

9,725

10,815

12,000

12,715

13,505

13,370

13,758

3%

6%

NC

12,811

13,879

13,884

9,315

8,771

8,375

8,505

2%

-6%

ND

13,817

14,517

19,387

18,109

14,714

13,872

13,705

-1%

1%

NE

11,943

10,823

11,770

12,311

12,480

12,987

12,818

-1%

1%

NH

9,003

9,102

20,490

19,304

19,073

19,375

20,724

7%

21%

NJ

11,278

11,671

16,750

14,564

14,929

15,564

15,696

1%

7%

NM

15,992

15,298

26,959

27,460

25,585

27,858

26,303

-6%

12%

NV

6,911

8,163

7,937

9,242

8,850

9,575

9,864

3%

6%

NY

14,840

15,566

17,254

18,621

20,829

23,496

25,751

10%

10%

OH

6,779

5,872

6,208

8,478

6,653

6,800

7,913

16%

4%

OK

9,746

7,802

9,514

10,444

11,726

10,519

10,867

3%

3%

OR

10,298

11,252

11,496

11,982

12,908

12,831

13,155

3%

4%

PA

21,969

23,249

16,806

15,971

24,583

24,385

25,228

3%

5%

RI

13,693

23,112

21,308

31,477

38,387

38,370

37,052

-3%

21%

SC

5,488

6,594

7,432

8,197

8,093

8,855

9,223

4%

9%

SD

5,985

6,628

7,139

7,610

8,049

9,164

8,543

-7%

6%

TN

13,661

17,999

20,917

20,721

19,407

19,420

26,864

38%

13%

TX

5,504

4,889

5,037

4,528

4,160

5,916

6,129

4%

3%

UT

14,429

14,685

15,064

17,476

16,565

14,068

14,659

4%

1%

VA

9,649

11,419

13,819

16,062

17,793

17,597

18,835

7%

12%

VT

12,199

13,445

14,343

12,943

14,157

15,329

15,158

-1%

4%

WA

9,149

9,970

10,888

11,331

11,842

11,274

13,743

22%

7%

WI

11,600

12,263

14,023

14,567

16,386

17,090

18,228

7%

8%

WV

11,223

11,865

12,277

13,085

15,561

15,977

17,796

11%

8%

WY

18,483

19,123

18,096

18,993

21,863

22,803

21,319

-7%

3%

Notes: Total Medicaid HCBS comprises Medicaid Home Health, Medicaid Personal Care Services and Medicaid

1915(c) HCBS waivers.

22

00

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 23 of 35

Table 3B: Medicaid Home Health Average Expenditures Per Person Served, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

Total

$3,066

$3,197

$3,465

$3,456

$3,205

$4,601

$4,785

AK

1,420

2,459

2,754

2,510

2,965

2,730

2,770

AL

2,944

2,769

2,790

3,110

1,399

1,812

2,368

AR

1,398

1,380

1,401

1,404

1,455

1,903

1,936

AZ

11,285

10,254

10,843

12,683

13,835

15,012

16,168

CA

1,246

1,461

1,814

1,917

1,766

1,867

1,856

CO

8,480

9,991

9,587

9,736

13,208

12,008

11,826

CT

4,673

4,963

5,553

7,185

8,578

8,079

8,202

DC

1,468

1,449

1,189

5,157

5,721

5,875

6,074

DE

6,290

5,506

5,064

3,446

12,564

3,618

3,741

FL

1,340

1,625

1,930

2,367

2,557

2,692

3,163

GA

1,586

1,503

1,453

1,622

1,240

566

475

HI

2,627

3,730

1,996

2,432

993

1,404

1,579

IA

2,521

2,759

3,024

3,150

3,434

2,889

3,100

ID

2,261

2,373

2,212

1,849

1,921

1,931

2,036

IL

1,686

1,902

1,756

1,771

1,789

1,692

1,384

IN

4,892

5,544

6,036

5,522

6,336

7,494

8,389

KS

751

1,739

2,308

3,118

6,099

5,639

2,843

KY

3,075

3,700

3,508

3,193

2,359

2,284

2,341

LA

1,729

1,446

2,040

2,203

2,427

25,176

24,021

MA

3,131

2,718

2,843

3,234

3,409

3,883

3,518

MD

7,333

6,975

7,606

924

732

2,026

613

ME

2,261

1,946

2,128

2,281

1,773

2,050

2,120

MI

1,894

1,665

1,152

575

681

687

MN

7,359

13,013

13,122

15,519

1,590

1,420

1,419

MO

1,350

1,318

1,293

733

848

737

919

MS

1,184

1,262

1,397

1,401

1,420

1,986

2,184

MT

1,365

927

1,370

1,441

1,181

1,044

1,333

NC

6,591

7,200

6,583

2,955

2,858

2,723

2,878

ND

2,797

2,953

10,581

10,893

3,769

5,500

9,453

NE

3,212

3,845

3,765

3,547

3,688

3,565

3,465

NH

537

457

1,487

1,299

1,316

1,342

1,367

NJ

5,228

4,318

10,806

3,503

303

3,679

3,803

NM

462

409

3,091

2,222

883

805

895

NV

7,143

7,500

4,250

3,862

3,956

4,062

4,200

NY

5,188

5,877

6,788

7,120

7,838

12,108

13,039

OH

905

1,058

1,179

1,110

1,276

1,372

1,616

OK

397

270

278

336

1,383

1,409

1,509

OR

608

759

403

438

1,894

460

476

PA

2,960

3,791

3,021

3,623

4,604

4,937

5,596

RI

1,751

2,192

1,172

3,033

3,114

3,632

3,755

SC

1,399

1,404

1,374

1,622

287

1,703

1,760

SD

744

785

823

836

689

878

908

TN

2,434

2,918

3,356

3,492

4,422

5,480

10,852

TX

894

872

875

970

947

2,428

2,457

UT

3,296

2,937

3,303

1,936

1,955

3,975

4,345

VA

1,108

1,111

1,068

1,120

1,157

1,056

1,381

VT

1,395

2,119

2,224

1,480

1,295

2,218

2,293

WA

1,429

1,373

1,201

1,304

1,190

1,132

1,248

WI

3,352

3,151

3,275

3,333

3,089

3,172

3,279

WV

1,455

1,298

1,626

1,450

10,660

1,523

1,574

WY

2,599

2,639

2,055

2,268

2,203

2,270

2,438

Source: Kaiser Commission and UCSF analysis of Medicaid Home Health Policy Survey

04-05 % change
4% 1% 31% 2% 8% -1% -2% 2% 3% 3% 18% -16% 12% 7% 5% -18% 12% -50% 3% -5% -9% -70% 3% 1% 0% 25% 10% 28% 6% 72% -3% 2% 3% 11% 3% 8% 18% 7% 3% 13% 3% 3% 3% 98% 1% 9% 31% 3% 10% 3% 3% 7%

23

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 24 of 35

Table 3C: Medicaid Personal Care Services Average Expenditures Per Person Served, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

04-05

% change

Total

$7,722

$7,881

$9,036

$8,039

$9,074

$9,418

$9,666

3%

AK

5,100

5,265

5,261

7,035

14,343

14,728

15,227

3%

AL

AR

3,311

3,266

3,413

3,363

3,375

3,478

3,956

14%

AZ

CA

6,777

7,023

8,815

6,344

7,986

8,830

9,103

3%

CO

CT

DC

5,802

6,104

6,657

3,696

4,372

4,490

4,642

3%

DE

0

0

0

0

0

0

0

0%

FL

1,212

1,212

1,212

2,342

2,396

2,396

2,390

0%

GA

HI

IA

ID

8,060

8,954

6,857

6,613

7,962

6,766

7,581

12%

IL

IN

KS

KY

LA

MA

19,903

20,472

20,568

17,778

18,275

18,935

17,087

-10%

MD

4,154

4,363

4,523

4,502

4,373

4,451

4,436

0%

ME

3,861

3,812

3,633

5,651

4,118

5,714

5,907

3%

MI

3,836

3,874

4,582

4,290

4,676

4,622

4,302

-7%

MN

14,953

16,015

16,693

17,564

18,491

14,620

18,169

24%

MO

2,873

3,206

3,582

4,145

4,665

4,298

4,840

13%

MS

MT

6,375

6,872

6,957

7,987

7,437

7,324

7,490

2%

NC

8,141

8,273

8,949

5,684

5,602

5,274

5,641

7%

ND

4,356

4,454

5,863

3,902

-33%

NE

3,367

5,365

5,215

5,639

6,238

6,241

6,317

1%

NH

20,942

23,387

18,043

22,780

25,137

19,956

20,438

2%

NJ

9,126

9,265

12,740

14,128

15,815

13,861

12,894

-7%

NM

5,725

16,522

19,889

17,789

18,991

15,657

-18%

NV

4,948

6,504

6,072

11,005

9,720

9,981

10,319

3%

NY

16,344

17,126

17,785

20,138

21,428

22,552

24,268

8%

OH

OK

4,619

4,711

5,708

2,900

4,429

4,547

4,702

3%

OR

682

752

806

1,254

1,305

1,000

1,110

11%

PA

RI

0

0

0

0

0

0

0

0%

SC

SD

965

850

1,177

1,111

1,393

1,448

1,484

2%

TN

TX

5,577

5,437

6,552

5,055

5,591

5,856

5,908

1%

UT

1,617

1,708

1,827

1,900

1,881

712

617

-13%

VA

VT

3,887

4,572

4,159

4,300

3%

WA

6,990

6,064

7,159

7,564

10,061

10,660

11,649

9%

WI

6,262

7,076

9,511

10,146

10,817

11,134

11,511

3%

WV

5,050

4,848

5,034

5,790

5,921

6,080

6,286

3%

WY

Notes: Personal care services are an optional benefit. In 2005, 30 states reported personal care services expenditures. Blank cells mean no

program offered. Two states (DE and RI) were approved by CMS to offer personal care services but did not report expenditures during the

period.

Source: Kaiser Commission and UCSF analysis of Medicaid Personal Care Services Policy Survey

24

00

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 25 of 35

Table 3D: Medicaid 1915(c) HCBS Waivers Average Expenditures Per Person Served, by State, 1999-2005

1999

2000

2001

2002

2003

2004

2005

Total

$16,013

$16,376

$17,055

$18,321

$19,275

$20,557

$21,681

AK

23,259

23,461

26,768

30,035

31,616

34,458

31,865

AL

12,714

13,239

12,604

15,306

15,397

16,872

18,964

AR

5,617

6,213

7,665

8,656

9,025

9,410

10,372

AZ

CA

13,145

13,073

15,355

16,254

16,512

17,361

17,008

CO

10,516

12,503

12,722

13,218

13,792

14,027

14,015

CT

26,721

26,383

27,055

27,654

28,602

27,993

28,655

DC

1,777

2,590

5,601

6,709

7,174

10,509

9,799

DE

21,654

22,712

22,995

23,285

24,144

24,898

26,630

FL

7,874

8,511

11,051

11,936

13,726

15,615

15,235

GA

9,914

11,358

10,079

12,175

12,450

12,784

13,217

HI

17,647

18,309

17,630

19,533

21,401

26,481

27,226

IA

9,561

9,894

10,367

10,872

10,948

11,623

15,293

ID

11,504

8,546

10,104

11,040

10,490

11,598

11,715

IL

7,564

7,810

9,103

9,506

9,799

10,338

11,002

IN

19,509

21,070

11,241

27,885

28,152

30,022

30,537

KS

14,351

14,811

14,989

14,493

16,409

15,702

15,087

KY

6,732

7,749

8,755

9,647

10,694

12,434

15,069

LA

20,753

18,356

25,406

26,789

24,254

17,154

29,634

MA

26,391

26,718

28,212

30,728

30,732

33,261

33,860

MD

36,139

34,916

31,627

28,903

29,689

32,099

34,067

ME

32,153

35,347

39,355

44,264

48,128

53,400

55,642

MI

21,211

25,509

19,430

24,956

19,007

20,740

22,322

MN

22,566

21,846

20,240

24,381

25,443

25,830

26,868

MO

8,085

8,372

8,878

9,846

11,214

11,330

11,714

MS

4,927

5,477

4,388

5,941

6,126

7,177

8,383

MT

16,732

17,432

18,858

19,105

20,681

19,596

20,015

NC

19,427

21,954

22,635

27,736

26,678

26,761

25,472

ND

18,628

19,960

20,309

21,156

19,380

17,820

17,997

NE

18,499

17,113

18,993

21,462

19,985

20,480

21,240

NH

29,272

27,421

28,181

26,576

26,214

26,927

31,951

NJ

20,902

21,758

22,381

21,786

21,783

24,673

26,068

NM

35,386

35,659

38,159

40,428

40,875

43,656

45,136

NV

7,340

8,575

10,430

10,922

10,599

11,718

11,911

NY

31,198

29,410

31,291

31,627

35,332

41,378

45,129

OH

11,380

12,228

11,605

14,963

17,640

17,797

18,108

OK

14,994

10,403

12,613

16,673

16,125

14,483

15,287

OR

10,915

12,142

12,768

13,106

14,221

15,020

15,561

PA

34,958

30,521

27,538

28,552

28,606

28,378

29,201

RI

21,112

29,857

30,836

37,122

45,296

44,886

43,032

SC

7,582

8,933

10,019

11,759

12,443

12,802

13,295

SD

18,706

20,952

18,989

19,855

20,532

22,107

20,591

TN

26,515

35,609

40,682

42,881

42,677

54,146

57,822

TX

15,566

14,233

15,334

15,081

13,280

18,079

19,381

UT

18,653

19,409

19,894

20,973

22,283

23,420

23,912

VA

13,001

15,385

17,901

20,198

21,633

20,306

21,797

VT

24,273

25,523

26,288

27,327

30,064

31,795

31,726

WA

10,550

11,422

12,496

13,260

13,702

12,367

15,765

WI

16,870

17,550

19,477

18,330

20,560

21,234

22,623

WV

20,870

23,162

20,806

19,564

21,646

24,051

27,175

WY

21,702

22,379

21,196

22,091

25,576

26,359

24,465

Notes: AZ does not operate a 1915(c) waiver because all HCBS are provided through a 1115 waiver.

Source: Kaiser Commission and UCSF analysis of CMS Form 372

04-05 % change
5% -8% 12% 10%
-2% 0% 2% -7% 7% -2% 3% 3% 32% 1% 6% 2% -4% 21% 73% 2% 6% 4% 8% 4% 3% 17% 2% -5% 1% 4% 19% 6% 3% 2% 9% 2% 6% 4% 3% -4% 4% -7% 7% 7% 2% 7% 0% 27% 7% 13% -7%

25

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 26 of 35

Table 4: National HCBS Waivers Participants, Expenditures, and Expenditures per Participant by Waiver Type, 2004 and 2005

Waiver Type

Participants

Expenditures ($) (in thousands)

Expenditures per Participant ($)

Total MR/DD Aged Aged/Disabled Physically Disabled Children HIV/AIDS Mental Health TBI/SCI

2004
1,009,106 404,719 103,363 403,663
55,032
16,487 14,242 2,089 9,511

2005
1,060,356 433,955 109,313 415,315
57,714
17,354 14,258 1,867 10,580

% Change
5% 7% 6% 3%
5%
5% 0.1% -11% 11%

2004
20,743,972 15,442,186
719,260 3,259,976
780,220
187,920 57,601 16,383 280,428

2005
22,989,623 17,060,670
874,573 3,611,379
857,504
189,330 58,192 8,784 329,190

% Change
11% 10% 22% 11%
10%
1% 1% -46% 17%

2004
20,557 38,155 6,959 8,076
14,178
11,398 4,044 7,842 29,485

2005
21,681 39,314 8,001 8,696
14,858
10,910 4,081 4,705 31,114

% Change
5% 3% 15% 8%
5%
-4% 1% -40% 6%

Source: Kaiser Commission and UCSF analysis of CMS Form 372

26

00

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 27 of 35

Table 5: Medicaid 1915(c) Waiver Participants, by Type of Waiver, 2005

Number

of MR/DD Aged Aged/ Physically Children HIV/AIDS Mental TBI/SCI

Total

Waivers

Disabled Disabled

Health

Participants

Total

272 433,955 109,313 415,315

57,714

17,354

14,258 1,867 10,580

1,060,356

AK

4 1,003 1,409

938

215

3,565

AL

5 5,199

7,816

557

13,572

AR

6 3,382 7,420

56

1,273

12,131

CA

6 62,613

13,911

1,074

2,882

80,480

CO

9 7,547

15,219

616

61 1,807

325

25,575

CT

5 6,350

11,079

596

247

18,272

DC

3

429

521

4

954

DE

4

729

211

1,101

601

2,642

FL

10 26,597 7,330

18,443

5

6,511

265

59,151

GA

5 8,479

15,418

166

623

24,686

HI

5 2,062

2,195

46

60

4,363

IA

6 11,171 5,764

504

42

579

18,060

ID

4 1,861

7,733

20

9,614

IL

7 11,953 29,089

3,021

19,721

530

1,637

3,002

68,953

IN

8 9,395

3,836

114

139

13,484

KS

6 6,746 7,706

6,487

2,169

240

23,348

KY

4 2,659

12,101

64

98

14,922

LA

5 4,620

3,729

280

785

9,414

MA

3 11,870 7,068

88

19,026

MD

6 9,663 3,284

430

1,077

12

14,466

ME

3 2,572

1,229

260

4,061

MI

3 7,911

9,144

394

17,449

MN

5 14,953 17,046

10,847

1,310

44,156

MO

7 8,119

23,233

584

88

32,024

MS

5 2,099

10,961

923

557

14,540

MT

3 2,144

1,853

3,997

NC

5 6,941

13,729

631

102

21,403

ND

3 3,102

497

29

3,628

NE

7 3,084

4,792

282

25

8,183

NH

4 2,191 2,590

118

4,899

NJ

6 9,598

6,691

224

559

287

17,359

NM

4 3,363

2,442

173

38

6,016

NV

4 1,306 2,016

518

3,840

NY

8 52,401

21,809

2,461

1,446

78,117

OH

7 14,097

30,560

7,453

52,110

OK

5 4,177

16,048

396

20,621

OR

5 8,984

28,222

85

37,291

PA

11 22,025 16,001

4,130

3,710

229

152

46,247

RI

6 2,780

690

1,992

106

5,568

SC

6 4,951

13,626

46

1,229

489

20,341

SD

4 2,533

915

77

3,525

TN

5 5,521

964

6,485

TX

9 12,991

38,801

142

1,212

53,146

UT

5 3,899

774

112

141

101

5,027

VA

5 6,797

12,056

368

215

19,436

VT

4 2,004

1,745

60

3,809

WA

7 10,194

31,139

41,333

WI

8 13,432

21,173

2,146

334

37,085

WV

2 3,649

4,942

8,591

WY

5 1,809

1,488

94

3,391

Notes: MR/DD is Mental Retardation/Developmentally Disabled, HIV/AIDS is Human Immunodeficiency Virus/

Acquired Immunodeficiency Syndrome and TBI/SCI is Traumatic Brain and Spinal Cord Injury.

Blank cell means state offers no waiver for that target group

Source: Kaiser Commission and UCSF analysis of CMS Form 372

27

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 28 of 35

Table 6: Medicaid 1915(c) Waiver Expenditures by Type of Waiver, 2005

Total AK AL AR CA CO CT DC DE FL GA HI IA ID IL IN KS KY LA MA MD ME MI MN MO MS MT NC ND NE NH NJ NM NV NY OH OK OR PA RI SC SD TN TX UT VA VT WA WI WV WY

Number

of

MR/DD

Aged

Aged/

Phys. Children

Waivers

Disabled Disabled

(in thousands)

272 $17,060,670 $874,573 $3,611,379 $857,504 $189,330

4

63,010

27,613

14,861

8,114

5

191,484

59,243

6,649

6

75,645

34,955

422

14,807

6

1,253,974

41,374

61,576

9

244,072

96,423

440

5

401,021

89,176

11,433

3

5,490

3,858

4

54,251

1,354

12,329

10

632,731 129,335

122,810

36

5

200,734

94,867

6,796

5

77,905

38,637

1,931

6

228,039

36,977

1,977

4

51,425

60,095

7

359,084 124,475

32,721 186,173

1,895

8

374,792

32,236

1,315

6

213,011

55,285

77,172

1,363

4

159,994

52,668

5,665

5

229,872

40,691

1,145

7,265

3

611,852

27,327

6

400,326

61,893

13,253

16,303

3

202,463

16,638

6,860

3

334,215

45,339

9,940

5

843,115 140,785

141,780

7

284,696

84,081

5,069

5

37,147

68,353

10,270

3

57,958

22,043

5

275,338

242,949

25,102

3

59,883

4,615

7

111,619

50,224

11,124

4

128,147

21,782

6

362,495

57,818

9,777

4

216,393

49,992

4,776

4

35,597

7,264

2,877

8

3,411,391

28,929

21,838

7

512,873

257,839 172,912

5

208,491

104,062

2,677

5

333,571

246,559

140

11

1,058,667

192,389

78,731

12,734

6

218,282

5,480

12,543

3,299

6

173,692

78,522

957

4

66,571

4,263

1,750

5

369,578

5,397

9

414,193

593,112

5,927

16,806

5

111,875

3,396

1,747

1,208

5

271,671

130,380

20,839

4

92,221

27,916

7

339,697

311,903

8

454,426

326,982

37,527

2

174,384

59,072

5

71,307

8,564

Note: Blank cell means state offers no waiver for that target group.

Source: Kaiser Commission and UCSF analysis of CMS Form 372

HIV/ AIDS $58,192 11,919
447 0
2,424 10,970
316 307 17,678
1,290 1,788 3,778
375
1,028 5,112
761

Mental Health $8,784
8,076
708

TBI/ Total Exp. SCI

$329,190
8,976 21,950
5,283 23,882
8,885 1,111 36,607 3,424 5,428 6,526 5,042 1,034 60,691 6,125
793 841 6,601 18,643 63,196
6,898 12,150
1,980
20,033 3,090

$22,989,623 113,599 257,376 125,829
1,368,842 358,435 523,579 9,348 70,357 901,164 326,280 118,789 276,185 112,631 758,633 411,766 352,258 224,853 278,972 644,222 492,809 225,961 389,495
1,186,371 375,136 121,895 80,001 545,177 65,292 173,808 156,530 452,512 271,535 45,738
3,525,354 943,624 315,231 580,270
1,350,447 239,604 270,433 72,584 374,975
1,030,038 120,207 423,650 120,845 651,600 838,968 233,456 82,960

28

00

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 29 of 35

Table 7: Medicaid 1915(c) Waiver Expenditures Per Person Served, by Type of Waiver, 2005

Total AK AL AR CA CO CT DC DE FL GA HI IA ID IL IN KS KY LA MA MD ME MI MN MO MS MT NC ND NE NH NJ NM NV NY OH OK OR PA RI SC SD TN TX UT VA VT WA WI WV WY

Number MR/DD Aged Aged/ Physically Children

of

Disabled Disabled

Waivers

272 $39,314 $8,001

$8,696

$14,858 $10,910

4 62,822 19,598

15,844

37,740

5 36,831

7,580

11,938

6 22,367

4,711

7,534

11,632

6 20,027

2,974

57,333

9 32,340

6,336

715

5 63,153

8,049

19,182

3 12,797

7,404

4 74,418

6,415

11,198

10 23,790 17,645

6,659

7,275

5 23,674

6,153

40,942

5 37,781

17,602

41,968

6 20,413

6,415

3,922

4 27,633

7,771

7 30,041

4,279

10,831

9,440

3,575

8 39,893

8,403

11,534

6 31,576

7,174

11,896

628

4 60,171

4,352

88,513

5 49,756

10,912

4,088

9,255

3 51,546

3,866

6 41,429 18,847

30,821

15,137

3 78,718

13,538

26,384

3 42,247

4,958

25,230

5 56,384

8,259

13,071

7 35,065

3,619

8,679

5 17,698

6,236

11,126

3 27,033

11,896

5 39,668

17,696

39,781

3 19,305

9,287

7 36,193

10,481

39,447

4 58,488

8,410

6 37,768

8,641

43,648

4 64,345

20,472

27,604

4 27,257

3,603

5,553

8 65,102

1,326

8,874

7 36,382

8,437

23,200

5 49,914

6,484

6,761

5 37,129

8,736

1,642

11 48,067 12,024

19,063

3,432

6 78,519

7,941

6,297

31,126

6 35,082

5,763

20,798

4 26,282

4,659

22,722

5 66,940

5,599

9 31,883

15,286

41,738

13,867

5 28,693

4,388

15,601

8,569

5 39,969

10,815

56,627

4 46,018

15,998

7 33,323

10,016

8 33,832

15,443

17,487

2 47,790

11,953

5 39,418

5,755

Note: Blank cells mean state offers no waiver for that target group

Source: Kaiser Commission and UCSF analysis of CMS Form 372

HIV/AIDS $4,081 4,136 7,320 42 4,033 1,685 5,275 7,312 10,799
14,661 17,531
6,759 9,870
4,488 4,159
3,539

Mental Health $4,705
4,470
11,798

TBI/SCI $31,114
27,619 88,865 19,935 38,334 15,345 55,562 12,194 24,633 22,616 66,588 57,300 86,157 46,329 10,997 27,355 33,639 55,943 64,959 43,704
45,380 24,847
19,607
59,978 32,869

Total Expenditures
Per Person $21,681 31,865 18,964 10,372 17,008 14,015 28,655 9,799 26,630 15,235 13,217 27,226 15,293 11,715 11,002 30,537 15,087 15,069 29,634 33,860 34,067 55,642 22,322 26,868 11,714 8,383 20,015 25,472 17,997 21,240 31,951 26,068 45,136 11,911 45,129 18,108 15,287 15,561 29,201 43,032 13,295 20,591 57,822 19,381 23,912 21,797 31,726 15,765 22,623 27,175 24,465

29

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 30 of 35

Table 8: Financial Eligibility Criteria for Medicaid 1915(c) HCBS Waivers, by Type of Waiver, 2007

MR/DD Aged Aged/ Physically Children HIV/AIDS Mental TBI/SCI

Disabled Disabled

Health

(As a percent of SSI)

AK

300% 300%

300%

300%

AL

300%

100%

300%

AR

300% 300%

300%

CA

100%

100%

100%

100%

CO

300%

300%

300%

300%

300%

300%

CT

300%

300%

300%

300%

DC

300%

300%

300%

DE

250% 250%

250%

250%

FL

300% 300%

300%

300%

300%

300%

300%

GA

300%

300%

300%

300%

HI

100%

100%

100%

100%

IA

300% 300%

300%

300%

300%

ID

300%

300%

300%

IL

100% 100%

100%

100%

100%

100%

100%

IN

300%

100%

100%

100%

KS

300% 300%

300%

300%

300%

KY

300%

300%

300%

300%

LA

300%

300%

300%

MA

100% 100%

100%

MD

300% 300%

300%

300%

300%

ME

300%

300%

300%

MI

300%

300%

300%

MN

300% 300%

300%

300%

MO

100%

100%

100%

100%

100%

MS

300%

300%

300%

300%

MT

100%

100%

NC

100%

100%

100%

100%

ND

100%

100%

100%

NE

100%

100%

100%

100%

NH

100% 100%

100%

NJ

300%

300%

300%

300%

300%

NM

n/r

n/r

n/r

n/r

NV

300% 300%

300%

300%

NY

100%

300%

a

100%

OH

300%

300%

OK

300%

300%

OR

300%

300%

a

PA

300% 300%

300%

300%

300%

300%

RI

300% 300%

300%

300%

SC

300%

300%

300%

300%

300%

300%

SD

300% 300%

TN

300%

300%

TX

300%

300%

300%

300%

UT

300% 300%

300%

300%

300%

VA

300% 300%

300%

300%

300%

WA

300%

300%

WI

300%

300%

300%

WV

300%

300%

WY

300%

300%

300%

Notes: 300% of SSI = $1,869 in 2007. a means waivers use limits > Medicaid eligibility. AZ and VT do not operate

1915(c) waivers because all HCBS are provided through a 1115 waiver

n/r - no response to survey. Blank cell means state operates no waiver for that target group.

Source: Kaiser Commission and UCSF analysis of Medicaid 1915(c) Waiver Policy Survey

30

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Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 31 of 35

Table 9: Medicaid HCBS Programs Cost Controls and Consumer Direction, 2007

Home Health

Personal Care Services

Waivers4

Financial Eligibility1 Limits2

AK CN, MN, E

S

AL CN, MN, E

AR

CN, MN

AZ

CN, E

C

CA

CN

CO

CN

C

CT

CN, MN

C, S

DC

CN, MN

S

DE

CN

S

FL

CN, MN

GA CN, MN, E

S

HI CN, MN, E

IA

CN, MN

C

ID

CN, E

IL CN, MN, E

IN

MN

S

KS CN, MN, E

KY CN, MN, E

S

LA CN, MN, E

MA

CN

MD

CN

ME CN, MN, E

MI CN, MN, E

MN CN, MN, E

MO

CN

MS

CN, E

MT CN, MN, E

S

NC CN, MN, E

S

ND

CN, MN

C

NE CN, MN, E

C

NH CN, MN, E

NJ CN, MN, E

NM

CN, MN

NV

CN, E

NY

CN, MN

OH

MN, E

S

OK

CN

OR

CN

PA CN, MN, E

RI

CN

SC

CN

SD

CN

S

TN CN, MN, E

TX

MN, E

S

UT

CN, MN

VA CN, MN, E

VT

CN, MN

WA CN, MN, E

WI

CN, MN

WV CN, MN, E

WY

CN, E

Consumer Direction3
Y Y Y Y
Y Y Y

Financial Eligibility1
CN CN CN, MN
CN CN, MN
E
CN

Limits2 S S S
S

CN, MN, E

CN

C, S

CN, MN, E

MN

CN, MN, E

C

CN

S

Y

CN, MN, E

CN, MN, E

CN, MN

Y

CN, MN

S

CN, MN, E

CN, MN

S

CN

CN

MN

CN

CN

S

CN, MN

Y

MN

S

Y

CN

S

CN, MN

S

CN

CN

Y

CN

CN, MN

S

Consumer Direction3

Limits2 S
C, S S
C
C S
C, S, G

C, S

Y

C

C, S, G

C, S, G

S

C

Y

C, S

Y

C, S

Y

C

C

Y

C, S

Y

C

C, G

Y

C

Y

C

Y

C

C, G

C

Y

C

C, S, G

C, S C, S

C, G C

C C, G
C

Consumer Direction3
Y Y Y
Y Y Y Y
Y Y
Y Y Y Y
Y Y
Y Y Y Y Y Y Y Y Y Y Y Y Y Y

Notes: 1: CN – Categorically Needy, MN – Medically Needy, E – EPSDT; 2: C – Cost Limits, S – Service/Hourly Limits, G – Geographical limit; 3: Y – Yes, consumer direction is required or allowed; 4: Financial eligibility of waivers are presented in Table 8. Source: Kaiser Commission and UCSF analysis of Medicaid 1915(c) Waiver, Home Health and Personal Care Services Policy Survey

31

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 32 of 35

Table 10: Waiting Lists for Medicaid 1915(c) Home and Community-Based Service Waivers, By Enrollment Group, 2007

MR/DD

Aged

Aged/

Disabled

Total No. of

100

21

62

Waivers

Enrollment Slots 508,031 155,642 463,726

No. of Wait

Lists

52

3

22

Wait Lists that Screen for Eligibility
(% of wait lists)

34 (65%)

2 (67%)

19 (86%)

Wait Lists that Prioritize
Certain Clients (% of
wait lists)

35 (67%)

1 (33%)

14 (64%)

Wait Lists Providing Non-Waiver Services (% of wait lists)

47 (90%)

1 (33%)

18 (82%)

Physically Disabled 28 60,736 11 8 (73%)
5 (45%)
8 (73%)

Children 27
16,735 9 6
(67%)
2 (22%)
7 (78%)

HIV/ AIDS
15 20,419
0 0 (n/a)
0 (n/a)
0 (n/a)

Mental TBI/

Health

SCI

1

23

Total 277

1,900 12,750 1,239,939

0

9

106

0

7

(n/a) (78%)

76 (72%)

0

7

(n/a) (78%)

64 (63%)

0

8

(n/a) (89%)

89 (84%)

Notes: Enrollment group and enrollment slots data reported or estimated for 277 of the total waivers in 2007. Waiting list data reported for 277 waivers in 2007. n/a - not applicable. Source: Kaiser Commission and UCSF analysis of Medicaid 1915(c) Waiver Policy Survey

32

00

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 33 of 35

Table 11: Waiting Lists for Medicaid 1915(c) HCBS Waivers, by State and by Enrollment Group, 2007

MR/DD Aged

Aged/ Physically Children

HIV/ Mental

TBI/

Total

Disabled Disabled

AIDS Health

SCI

No.

52

3

22

11

9

0

0

9

106

AK

1,500

0

0

0

1,500

AL unknown

1,785

200

1,985

AR

876

0

0

876

CA

0

1,200

742

0

1,942

CO

0

n/r

n/r

0

0

n/r

0

CT

1,730

0

71

0

1,801

DC

0

0

0

0

DE

0

0

0

0

0

FL

20,200

0

7,410

0

3

0

434

28,047

GA

10,364

763

n/r

115

11,242

HI

0

100

0

0

100

IA

1,215

0

n/r

n/r

n/r

1,215

ID

0

0

0

0

IL

0

0

0

0

0

0

0

0

IN

32,927

1,299

704

169

35,099

KS

1,435

0

0

0

n/r

1,435

KY

2,753

0

0

135

2,888

LA

7,487

9,209

4,913

21,609

MA

0

0

0

0

MD

0

6,000

1,200

1,200

0

8,400

ME

122

0

107

229

MI

n/r

3,404

600

4,004

MN unknown

0

unknown

unknown

unknown

MO

0

0

39

0

0

39

MS

n/r

n/r

n/r

n/r

n/r

MT

1,372

600

1,972

NC

0

unknown

75

0

75

ND

0

0

0

0

NE

0

0

n/r

n/r

0

NH

0

0

0

0

NJ

0

0

n/r

0

50

50

NM

n/r

n/r

n/r

n/r

n/r

NV

540

343

0

145

1,028

NY

0

0

0

0

0

OH

44,666

2,107

46,773

OK

3,315

0

3,315

OR

3,528

0

0

3,528

PA

20,460

0

0

0

0

0

20,460

RI

0

0

99

12

111

SC

1,086

4,642

0

387

0

250

6,365

SD

23

0

23

TN

2,316

0

2,316

TX

50,515

36,390

22

8,166

95,093

UT

1,654

0

62

51

82

1,849

VA

9,334

0

0

0

0

9,334

WA

365

0

365

WI

3,948

11,777

270

15,995

WV

303

0

303

WY

113

210

0

323

Total 224,147

6,343

80,995

2,600

16,099

0

0

1,505

331,689

Ave.

wait

25

9

12

14

26

0

0

13

19

mth.

Notes: n/r - no response to survey wait list question. Unknown – state responds that there was a wait list but the number of

persons on list is unknown. Blank cell means state operates no waiver for that target group. Source: Kaiser Commission and

UCSF analysis of Medicaid Home Health and Personal Care Services Policy Survey

33

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 34 of 35

Table 12: Medicaid Home Health and Personal Care Services Provider Reimbursement Rates, 2007

Home Health($)1

Personal Care Services($)2

Agency Registed Nurse Home Health Aide

Agency

Provider

AK

167.14

AL

27/hour

AR

112.60

13.84

AZ

9.15/hour

CA

9.44

10.84

CO

94.63

32.99

CT

91.52/hour

23.72/hour

DC

75.00

60.00

17.80/hour

17.80

14.50

DE

137.84/hour

28.72/hour

19.00

FL

24.25

9.70

GA

60.21

60.21

60.21

HI

IA

82.70

32.60

ID

209.80

127.00

15.38

IL

61.34

IN

21.76

31.80/hour

15.88/hour

KS

45.00

23.50

KY

87.15

34.10

LA

34.00/hour

24.38

MA

86.99

24.40/hour

12.28

MD

113

53.00

33.31/day

33.31/day

ME

84.95

25.00/hour

9.50/hour

14.27

8.26

MI

80.98

80.98

51.70

9.19

7.30

MN

68.26

15.24

MO

63.27

63.27

63.20

16.00

MS

129.74

42.17

MT

65.41

15.20

NC

108.31

49.55

14.80

ND

78.54

78.54

78.54

18.72

13.00

NE

78.73

35.30/hour

19.90/hour

8.39

NH

82.92/hour

22.96/hour

17.52

NJ

116.56/hour

24.88/hour

16.00

NM 328.71/mth

13.16

9.50

NV

39.79/hour

32.85/hour

17.76

NY

113.12/hour

28.76/hour

18.83

OH

74

89.20

42.00

OK

53.21

73.25

33.17

OR

62.85

29.49

18.48

9.32

PA

60.50

35.00/hour

40.00

RI

64.00

64.00

19.46

SC

71.37

37.13

SD

47.84/hour

30.92/hour

14.20

TN

TX 10.06/hour

7.30/visit

6.40/visit

UT 14.00/hour

14.00

VA

125.41

114.15

72.67

VT

WA

87.43

45.32

16.62

10.25

WI

32.21/hour

39.70

WV

WY

50.00

Ave. pay rate

$71.983

$79.95

$38.95

$15.89

$12.09

Notes: 1: Pay rate is per visit unless otherwise noted; 2: Pay rate is per hour unless otherwise noted; 3: Average does not

include NM as state does not report standardized average pay rate.

Source: Kaiser Commission and UCSF analysis of Medicaid Home Health and Personal Care Services Policy Survey

34

00

Case 2:10-cv-00688-MEF-TFM Document 16-5 Filed 09/29/10 Page 35 of 35
1330 G STREET NW, WASHINGTON, DC 20005 PHONE: (202) 347-5270, FAX: (202) 347-5274 WEBSITE: WWW.KFF.ORG/KCMU
ATdhdisi trieopnoarlt c(o#p7i7e2s0o-0f 2t)h iiss arveapiolarbt le( #o0n0 0th0e) Ka raeisaevraFi laambilley Foundation’s website at www.kff.org.
on the Kaiser Family Foundation’s website at www.kff.org.
The Kaiser Commission on Medicaid and the Uninsured provides information and analysis on health care coverage and access for the lowincome population, with a special focus on Medicaid’s role and coverage of the uninsured. Begun in 1991 and based in the Kaiser Family Foundation's Washington, DC office, the Commission is the largest operating program of the Foundation. The Commission's work is conducted by Foundation staff under the guidance of a bi-partisan group of national leaders and experts in health care and public policy.

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 1 of 132
Application for a §1915 (c) HCBS Waiver
HCBS Waiver Application Version 3.4
Submitted by:
Alabama Medicaid Agency 501 Dexter Avenue P. O. Box 5624
Montgomery, Alabama 36103-5624
Submission Date: September 21, 2007 CMS Receipt Date (CMS Use)
Provide a brief one-two sentence description of the request (e.g., renewal of waiver, request for new waiver, amendment):
Brief Description: The Alabama Medicaid Agency is requesting a five year renewal of the Home and Community Based Waiver for the Elderly and Disabled Waiver #0068.91.R4.

State:

Alabama

1

Effective Date

October 1, 2008

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 2 of 132
Application for a §1915(c) HCBS Waiver
HCBS Waiver Application Version 3.3 – Post October 2005
Application for a §1915(c) Home and Community-Based Services Waiver
PURPOSE OF THE HCBS WAIVER PROGRAM
The Medicaid Home and Community-Based Services (HCBS) waiver program is authorized in §1915(c) of the Social Security Act. The program permits a State to furnish an array of home and community-based services that assist Medicaid beneficiaries to live in the community and avoid institutionalization. The State has broad discretion to design its waiver program to address the needs of the waiver’s target population. Waiver services complement and/or supplement the services that are available to participants through the Medicaid State plan and other federal, state and local public programs as well as the supports that families and communities provide.
The Centers for Medicare & Medicaid Services (CMS) recognizes that the design and operational features of a waiver program will vary depending on the specific needs of the target population, the resources available to the State, service delivery system structure, State goals and objectives, and other factors. A State has the latitude to design a waiver program that is cost-effective and employs a variety of service delivery approaches, including participant direction of services.

State: Effective Date

Alabama October 1, 2008

Application: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 3 of 132
Application for a §1915(c) HCBS Waiver
HCBS Waiver Application Version 3.3 – Post October 2005
1. Request Information

A. The State of Alabama

requests approval for a Medicaid home and community-

based services (HCBS) waiver under the authority of §1915(c) of the Social Security Act (the Act).

B. Waiver Title (optional):

Elderly and Disabled Waiver

C. Type of Request (select only one):  New Waiver (3 Years) CMS-Assigned Waiver Number (CMS Use):  New Waiver (3 Years) to Replace Waiver # CMS-Assigned Waiver Number (CMS Use): Attachment #1 contains the transition plan to the new waiver. X Renewal (5 Years) of Waiver # 0068.R05.01  Amendment to Waiver #

D. Type of Waiver (select only one):  Model Waiver. In accordance with 42 CFR §441.305(b), the State assures that no more than 200 individuals will be served in this waiver at any one time.
X Regular Waiver, as provided in 42 CFR §441.305(a)

E.1 Proposed Effective Date:
E.2 Approved Effective Date (CMS Use): October 1, 2008
F. Level(s) of Care. This waiver is requested in order to provide home and community-based waiver services to individuals who, but for the provision of such services, would require the following level(s) of care, the costs of which would be reimbursed under the approved Medicaid State plan (check each that applies):
 Hospital (select applicable level of care)  Hospital as defined in 42 CFR §440.10. If applicable, specify whether the State additionally limits the waiver to subcategories of the hospital level of care:

 Inpatient psychiatric facility for individuals under age 21 as provided in 42 CFR § 440.160 X Nursing Facility (select applicable level of care)
 As defined in 42 CFR §440.40 and 42 CFR §440.155. If applicable, specify whether the State additionally limits the waiver to subcategories of the nursing facility level of care:
 Institution for Mental Disease for persons with mental illnesses aged 65 and older as provided in 42 CFR §440.140
 Intermediate Care Facility for the Mentally Retarded (ICF/MR) (as defined in 42 CFR §440.150). If applicable, specify whether the State additionally limits the waiver to subcategories of the ICF/MR facility level of care:

State: Effective Date

Alabama October 1, 2008

Application: 2

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 4 of 132
Application for a §1915(c) HCBS Waiver
HCBS Waiver Application Version 3.3 – Post October 2005
G. Concurrent Operation with Other Programs. This waiver operates concurrently with another program (or programs) approved under the following authorities (check the applicable authority or authorities):  Services furnished under the provisions of §1915(a) of the Act and described in Appendix I  Waiver(s) authorized under §1915(b) of the Act. Specify the §1915(b) waiver program and indicate whether a §1915(b) waiver application has been submitted or previously approved:

Specify the §1915(b) authorities under which this program operates (check each that applies):

 §1915(b)(1) (mandated enrollment to managed care)

 §1915(b)(3) (employ cost savings to furnish additional services)

 §1915(b)(2) (central broker)

 §1915(b)(4) (selective contracting/limit number of providers)

 A program authorized under §1115 of the Act. Specify the program:

X Not applicable

State: Effective Date

Alabama October 1, 2008

Application: 3

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 5 of 132
Application for a §1915(c) HCBS Waiver
HCBS Waiver Application Version 3.3 – Post October 2005
2. Brief Waiver Description
Brief Waiver Description. In one page or less, briefly describe the purpose of the waiver, including its goals, objectives, organizational structure (e.g., the roles of state, local and other entities), and service delivery methods.
The purpose of the Elderly and Disabled Waiver Program is to provide home and community-based services to elderly and disabled individuals in the community who would otherwise require nursing facility care. The waiver is aimed at providing quality and cost-effective services to individuals at risk of institutional care. The AMA serves as the administering agency for this program and the two operating agencies are the Alabama Department of Public Health and the Alabama Department of Senior Services. The operating agencies are responsible for the day-to-day operations of the program. This includes managing the program by focusing on improving care for the client, protecting the health and welfare of the client, giving the client free choice of providers and waiver services workers, and making sure all direct service providers meet the qualifications. Anyone interested in waiver services should contact one of the operating agencies. The services provided under this waiver are case management, personal care, homemaker services, respite care (skilled and unskilled), companion services, adult day health and home delivered meals. The goal of the waiver is to help recipients receive services not ordinarily covered by Medicaid under the State Plan.

State: Effective Date

Alabama October 1, 2008

Application: 4

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 6 of 132
Application for a §1915(c) HCBS Waiver
HCBS Waiver Application Version 3.3 – Post October 2005
3. Components of the Waiver Request
The waiver application consists of the following components. Note: Item 3-E must be completed. A. Waiver Administration and Operation. Appendix A specifies the administrative and operational structure of this waiver. B. Participant Access and Eligibility. Appendix B specifies the target group(s) of individuals who are served in this waiver, the number of participants that the State expects to serve during each year that the waiver is in effect, applicable Medicaid eligibility and post-eligibility (if applicable) requirements, and procedures for the evaluation and reevaluation of level of care. C. Participant Services. Appendix C specifies the home and community-based waiver services that are furnished through the waiver, including applicable limitations on such services. D. Participant-Centered Service Planning and Delivery. Appendix D specifies the procedures and methods that the State uses to develop, implement and monitor the participant-centered service plan (of care). E. Participant-Direction of Services. When the State provides for participant direction of services, Appendix E specifies the participant direction opportunities that are offered in the waiver and the supports that are available to participants who direct their services. (Select one):  The waiver provides for participant direction of services. Appendix E is required.
X Not applicable. The waiver does not provide for participant direction of services. Appendix E is not completed.
F. Participant Rights. Appendix F specifies how the State informs participants of their Medicaid Fair Hearing rights and other procedures to address participant grievances and complaints.
G. Participant Safeguards. Appendix G describes the safeguards that the State has established to assure the health and welfare of waiver participants in specified areas.
H. Quality Management Strategy. Appendix H contains the Quality Management Strategy for this waiver.
I. Financial Accountability. Appendix I describes the methods by which the State makes payments for waiver services, ensures the integrity of these payments, and complies with applicable federal requirements concerning payments and federal financial participation.
J. Cost-Neutrality Demonstration. Appendix J contains the State’s demonstration that the waiver is cost-neutral.
4. Waiver(s) Requested
A. Comparability. The State requests a waiver of the requirements contained in §1902(a)(10)(B) of the Act in order to provide the services specified in Appendix C that are not otherwise available under the approved Medicaid State plan to individuals who: (a) require the level(s) of care specified in Item 1.F and (b) meet the target group criteria specified in Appendix B.
B. Income and Resources for the Medically Needy. Indicate whether the State requests a waiver of §1902(a)(10)(C)(i)(III) of the Act in order to use institutional income and resource rules for the medically needy (select one):
 Yes
X No  Not applicable

State: Effective Date

Alabama October 1, 2008

Application: 5

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 7 of 132
Application for a §1915(c) HCBS Waiver
HCBS Waiver Application Version 3.3 – Post October 2005
C. Statewideness. Indicate whether the State requests a waiver of the statewideness requirements in §1902(a)(1) of the Act (select one):  Yes (complete remainder of item) X No If yes, specify the waiver of statewideness that is requested (check each that applies):  Geographic Limitation. A waiver of statewideness is requested in order to furnish services under this waiver only to individuals who reside in the following geographic areas or political subdivisions of the State. Specify the areas to which this waiver applies and, as applicable, the phase-in schedule of the waiver by geographic area:
 Limited Implementation of Participant-Direction. A waiver of statewideness is requested in order to make participant direction of services as specified in Appendix E available only to individuals who reside in the following geographic areas or political subdivisions of the State. Participants who reside in these areas may elect to direct their services as provided by the State or receive comparable services through the service delivery methods that are in effect elsewhere in the State. Specify the areas of the State affected by this waiver and, as applicable, the phasein schedule of the waiver by geographic area:

5. Assurances

In accordance with 42 CFR §441.302, the State provides the following assurances to CMS:
A. Health & Welfare: The State assures that necessary safeguards have been taken to protect the health and welfare of persons receiving services under this waiver. These safeguards include:
1. As specified in Appendix C, adequate standards for all types of providers that provide services under this waiver;
2. Assurance that the standards of any State licensure or certification requirements specified in Appendix C are met for services or for individuals furnishing services that are provided under the waiver. The State assures that these requirements are met on the date that the services are furnished; and,
3. Assurance that all facilities subject to §1616(e) of the Act where home and community-based waiver services are provided comply with the applicable State standards for board and care facilities as specified in Appendix C.
B. Financial Accountability. The State assures financial accountability for funds expended for home and community-based services and maintains and makes available to the Department of Health and Human Services (including the Office of the Inspector General), the Comptroller General, or other designees, appropriate financial records documenting the cost of services provided under the waiver. Methods of financial accountability are specified in Appendix I.
C. Evaluation of Need: The State assures that it provides for an initial evaluation (and periodic reevaluations, at least annually) of the need for a level of care specified for this waiver, when there is a reasonable indication that an individual might need such services in the near future (one month or less) but for the receipt of home and community-based services under this waiver. The procedures for evaluation and reevaluation of level of care are specified in Appendix B.

State: Effective Date

Alabama October 1, 2008

Application: 6

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HCBS Waiver Application Version 3.3 – Post October 2005
D. Choice of Alternatives: The State assures that when an individual is determined to be likely to require the level of care specified for this waiver and is in a target group specified in Appendix B, the individual (or, legal representative, if applicable) is:
1. Informed of any feasible alternatives under the waiver; and, 2. Given the choice of either institutional or home and community-based waiver services.
Appendix B specifies the procedures that the State employs to ensure that individuals are informed of feasible alternatives under the waiver and given the choice of institutional or home and communitybased waiver services.
E. Average Per Capita Expenditures: The State assures that, for any year that the waiver is in effect, the average per capita expenditures under the waiver will not exceed 100 percent of the average per capita expenditures that would have been made under the Medicaid State plan for the level(s) of care specified for this waiver had the waiver not been granted. Cost-neutrality is demonstrated in Appendix J.
F. Actual Total Expenditures: The State assures that the actual total expenditures for home and community-based waiver and other Medicaid services and its claim for FFP in expenditures for the services provided to individuals under the waiver will not, in any year of the waiver period, exceed 100 percent of the amount that would be incurred in the absence of the waiver by the State's Medicaid program for these individuals in the institutional setting(s) specified for this waiver.
G. Institutionalization Absent Waiver: The State assures that, absent the waiver, individuals served in the waiver would receive the appropriate type of Medicaid-funded institutional care for the level of care specified for this waiver.
H. Reporting: The State assures that annually it will provide CMS with information concerning the impact of the waiver on the type, amount and cost of services provided under the Medicaid State plan and on the health and welfare of waiver participants. This information will be consistent with a data collection plan designed by CMS.
I. Habilitation Services. The State assures that prevocational, educational, or supported employment services, or a combination of these services, if provided as habilitation services under the waiver are: (1) not otherwise available to the individual through a local educational agency under the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) or the Rehabilitation Act of 1973; and, (2) furnished as part of expanded habilitation services.
J. Services for Individuals with Chronic Mental Illness. The State assures that federal financial participation (FFP) will not be claimed in expenditures for waiver services including, but not limited to, day treatment or partial hospitalization, psychosocial rehabilitation services, and clinic services provided as home and community-based services to individuals with chronic mental illnesses if these individuals, in the absence of a waiver, would be placed in an IMD and are: (1) age 22 to 64; (2) age 65 and older and the State has not included the optional Medicaid benefit cited in 42 CFR §440.140; or (3) under age 21 when the State has not included the optional Medicaid benefit cited in 42 CFR §440.160.
6. Additional Requirements
Note: Item 6-I must be completed.
A. Service Plan. In accordance with 42 CFR §441.301(b)(1)(i), a participant-centered service plan (of care) is developed for each participant employing the procedures specified in Appendix D. All waiver services are furnished pursuant to the service plan. The service plan describes: (a) the waiver services that are furnished to the participant, their projected amount, frequency and duration and the type of provider that furnishes each service and (b) the other services (regardless of funding source, including State plan services) and informal supports that complement waiver services in meeting the needs of the participant. The service plan is subject to the approval of the Medicaid agency. Federal financial

State: Effective Date

Alabama October 1, 2008

Application: 7

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 9 of 132
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HCBS Waiver Application Version 3.3 – Post October 2005
participation (FFP) is not claimed for waiver services furnished prior to the development of the service plan or for services that are not included in the service plan.
B. Inpatients. In accordance with 42 CFR §441.301(b)(1)(ii), waiver services are not furnished to individuals who are in-patients of a hospital, nursing facility or ICF/MR.
C. Room and Board. In accordance with 42 CFR §441.310(a)(2), FFP is not claimed for the cost of room and board except when: (a) provided as part of respite services in a facility approved by the State that is not a private residence or (b) claimed as a portion of the rent and food that may be reasonably attributed to an unrelated caregiver who resides in the same household as the participant, as provided in Appendix I.
D. Access to Services. The State does not limit or restrict participant access to waiver services except as provided in Appendix C.
E. Free Choice of Provider. In accordance with 42 CFR §431.51, a participant may select any willing and qualified provider to furnish waiver services included in the service plan unless the State has received approval to limit the number of providers under the provisions of §1915(b) or another provision of the Act.
F. FFP Limitation. In accordance with 42 CFR §433 Subpart D, FFP is not claimed for services when another third-party (e.g., another third party health insurer or other federal or state program) is legally liable and responsible for the provision and payment of the service. FFP also may not be claimed for services that are available without charge, or as free care to the community. Services will not be considered to be without charge, or free care, when (1) the provider establishes a fee schedule for each service available and (2) collects insurance information from all those served (Medicaid, and nonMedicaid), and bills other legally liable third party insurers. Alternatively, if a provider certifies that a particular legally liable third party insurer does not pay for the service(s), the provider may not generate further bills for that insurer for that annual period.
G. Fair Hearing: The State provides the opportunity to request a Fair Hearing under 42 CFR §431 Subpart E, to individuals: (a) who are not given the choice of home and community-based waiver services as an alternative to institutional level of care specified for this waiver; (b) who are denied the service(s) of their choice or the provider(s) of their choice; or (c) whose services are denied, suspended, reduced or terminated. Appendix F specifies the State’s procedures to provide individuals the opportunity to request a Fair Hearing, including providing notice of action as required in 42 CFR §431.210.
H. Quality Management. The State operates a formal, comprehensive system to ensure that the waiver meets the assurances and other requirements contained in this application. Through an ongoing process of discovery, remediation and improvement, the State assures the health and welfare of participants by monitoring: (a) level of care determinations; (b) individual plans and services delivery; (c) provider qualifications; (d) participant health and welfare; (e) financial oversight and (f) administrative oversight of the waiver. The State further assures that all problems identified through its discovery processes are addressed in an appropriate and timely manner, consistent with the severity and nature of the problem. During the period that the waiver is in effect, the State will implement the Quality Management Strategy specified in Appendix H.
I. Public Input. Describe how the State secures public input into the development of the waiver:
During the course of this waiver period no further requests for changes have been received from the public. Recipient comments are gathered by the AMA Quality Improvement Standards Division and are given serious consideration in developing waiver improvements.
J. Notice to Tribal Governments. The State assures that it has notified in writing all federallyrecognized Tribal Governments that maintain a primary office and/or majority population within the State of the State’s intent to submit a Medicaid waiver request or renewal request to CMS at least 60

State: Effective Date

Alabama October 1, 2008

Application: 8

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 10 of 132
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HCBS Waiver Application Version 3.3 – Post October 2005
days before the anticipated submission date as provided by Presidential Executive Order 13175 of November 6, 2000. Evidence of the applicable notice is available through the Medicaid Agency.
K. Limited English Proficient Persons. The State assures that it provides meaningful access to waiver services by Limited English Proficient persons in accordance with: (a) Presidential Executive Order 13166 of August 11, 2000 (65 FR 50121) and (b) Department of Health and Human Services “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons” (68 FR 47311 - August 8, 2003). Appendix B describes how the State assures meaningful access to waiver services by Limited English Proficient persons.

7. Contact Person(s)

A. The Medicaid agency representative with whom CMS should communicate regarding the waiver is:

First Name: Ginger

Last Name Wettingfeld

Title:

Administrator

Agency:

Alabama Medicaid Agency

Address 1: 501 Dexter Avenue

Address 2:

City

Montgomery

State

Alabama

Zip Code

36103

Telephone: 334-242-5018

E-mail

Ginger.Wettingfeld@medicaid.alabama.gov

Fax Number 334-353-4182

B. If applicable, the State operating agency representative with whom CMS should communicate regarding the waiver is:

First Name: Last Name Title: Agency: Address 1: Address 2 City State Zip Code Telephone: E-mail Fax Number

State: Effective Date

Alabama October 1, 2008

Application: 9

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 11 of 132
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HCBS Waiver Application Version 3.3 – Post October 2005

8. Authorizing Signature

This document, together with Appendices A through J, constitutes the State's request for a waiver under §1915(c) of the Social Security Act. The State assures that all materials referenced in this waiver application (including standards, licensure and certification requirements) are readily available in print or electronic form upon request to CMS through the Medicaid agency or, if applicable, from the operating agency specified in Appendix A. Any proposed changes to the waiver will be submitted by the Medicaid agency to CMS in the form of waiver amendments.
Upon approval by CMS, the waiver application serves as the State's authority to provide home and community-based waiver services to the specified target groups. The State attests that it will abide by all provisions of the approved waiver and will continuously operate the waiver in accordance with the assurances specified in Section 5 and the additional requirements specified in Section 6 of the request.

Signature: _________________________________ Date: State Medicaid Director or Designee

First Name: Last Name Title: Agency: Address 1: Address 2: City State Zip Code Telephone: E-mail Fax Number

Carol H. Steckel Commissioner Alabama Medicaid Agency 501 Dexter Avenue
Montgomery Alabama 36103 334-242-5600 Carol.Steckel@medicaid.alabama.gov 334-242-5097

State: Effective Date

Alabama October 1, 2008

Application: 10

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 12 of 132
Application for a §1915(c) HCBS Waiver
HCBS Waiver Application Version 3.3 – Post October 2005
Attachment #1: Transition Plan Specify the transition plan for the waiver:

State: Effective Date

Alabama October 1, 2008

Attachment #1 to Application: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 13 of 132
Appendix A: Waiver Administration and Operation
HCBS Waiver Application Version 3.3 – Post October 2005

Appendix A: Waiver Administration and Operation

1. State Line of Authority for Waiver Operation. Specify the state line of authority for the operation of the waiver (select one):
 The waiver is operated by the State Medicaid agency. Specify the Medicaid agency division/unit that has line authority for the operation of the waiver program (select one; do not complete Item A-2):
 The Medical Assistance Unit (name of unit):
 Another division/unit within the State Medicaid agency that is separate from the Medical
Assistance Unit (name of division/unit)
X The waiver is operated by Alabama Department of Public Health (ADPH) and Alabama Department of Senior Services (ADSS)
a separate agency of the State that is not a division/unit of the Medicaid agency. In accordance with 42 CFR §431.10, the Medicaid agency exercises administrative discretion in the administration and supervision of the waiver and issues policies, rules and regulations related to the waiver. The interagency agreement or memorandum of understanding that sets forth the authority and arrangements for this policy is available through the Medicaid agency to CMS upon request. Complete item A-2.
2. Medicaid Agency Oversight of Operating Agency Performance. When the waiver is not operated by the Medicaid agency, specify the methods that the Medicaid agency uses to ensure that the operating agency performs its assigned waiver operational and administrative functions in accordance with waiver requirements. Also specify the frequency of Medicaid agency assessment of operating agency performance:
The Elderly and Disabled Waiver (E&D) is administered by the Long Term Care Division of the Alabama Medicaid Agency (AMA) and operated by ADPH and ADSS. The AMA exercises administrative discretion in the management and supervision of the waiver and issues policies, rules and regulations related to the waiver. The AMA assumes the responsibility of: (1) Conducting joint trainings with direct service providers enrolled to provide services through the Elderly and Disabled waiver program; (2) Providing periodic training to discuss policies and procedures in an effort to consistently interpret and apply policies related to the E&D Waiver program, which are outlined in the E&D Waiver manual, (3) Conducts annual training to disseminate policies, rules and regulations regarding the home and community-based waiver programs and, (4) signs all qualified direct service providers contracts enrolled with ADPH and ADSS to provide waiver services.

The AMA Long Term Care (LTC) Waiver Quality Assurance Unit has developed a Quality Management Strategy for the E&D Waiver Program. The following activities are components of the Quality Assurance Strategy: (1) Collect ongoing monthly data to monitor appropriateness of level of care determinations; (2) Collect quarterly data from registered nurses by any of the following sources; reviewing a sample of waiver case management records, direct service provider records, conducting on-site visits to participant’s homes, conduct consumer satisfactions surveys and tracking complaints and grievances; (3) Identify remediation for non-compliance issues and complaints identified during data collection are handled by requesting the entity involved to submit a plan of correction with 15 days of notification. If non-compliance is not resolved, the entity will be monitored every three months until compliance is achieved; and (4) Collect data and submit quarterly and annual reports to the Department of Public Health, Department of Senior Services and AMA staff for evaluation and recommendations for program improvements.

State: Effective Date

Alabama October 1, 2008

Appendix A: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 14 of 132 Appendix A: Waiver Administration and Operation
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The AMA LTC Waiver Quality Assurance Unit mails satisfaction surveys to clients on a quarterly basis, and tracks any complaints and/or grievances that are received.
3. Use of Contracted Entities. Specify whether contracted entities perform waiver operational and administrative functions on behalf of the Medicaid agency and/or the waiver operating agency (if applicable) (select one):  Yes. Contracted entities perform waiver operational and administrative functions on behalf of the Medicaid agency and/or the operating agency (if applicable). Specify the types of contracted entities and briefly describe the functions that they perform. Complete Items A-5 and A-6.
X No. Contracted entities do not perform waiver operational and administrative functions on behalf of the Medicaid agency and/or the operating agency (if applicable).

State: Effective Date

Alabama October 1, 2008

Appendix A: 2

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 15 of 132
Appendix A: Waiver Administration and Operation
HCBS Waiver Application Version 3.3 – Post October 2005
4. Role of Local/Regional Non-State Entities. Indicate whether local or regional non-state entities perform waiver operational and administrative functions and, if so, specify the type of entity (check each that applies):
 Local/Regional non-state public agencies conduct waiver operational and administrative functions at the local or regional level. There is an interagency agreement or memorandum of understanding between the Medicaid agency and/or the operating agency (when authorized by the Medicaid agency) and each local/regional non-state agency that sets forth the responsibilities and performance requirements of the local/regional agency. The interagency agreement or memorandum of understanding is available through the Medicaid agency or the operating agency (if applicable). Specify the nature of these agencies and complete items A-5 and A-6:
 Local/Regional non-governmental non-state entities conduct waiver operational and administrative functions at the local or regional level. There is a contract between the Medicaid agency and/or the operating agency (when authorized by the Medicaid agency) and each local/regional non-state entity that sets forth the responsibilities and performance requirements of the local/regional entity. The contract(s) under which private entities conduct waiver operational functions are available to CMS upon request through the Medicaid agency or the operating agency (if applicable). Specify the nature of these entities and complete items A-5 and A-6:
X Not applicable – Local/regional non-state agencies do not perform waiver operational and administrative functions.
5. Responsibility for Assessment of Performance of Contracted and/or Local/Regional Non-State Entities. Specify the state agency or agencies responsible for assessing the performance of contracted and/or local/regional non-state entities in conducting waiver operational and administrative functions:
6. Assessment Methods and Frequency. Describe the methods that are used to assess the performance of contracted and/or local/regional non-state entities to ensure that they perform assigned waiver operational and administrative functions in accordance with waiver requirements. Also specify how frequently the performance of contracted and/or local/regional non-state entities is assessed:

State: Effective Date

Alabama October 1, 2008

Appendix A: 3

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 16 of 132

Appendix A: Waiver Administration and Operation
HCBS Waiver Application Version 3.3 – Post October 2005
7. Distribution of Waiver Operational and Administrative Functions. In the following table, specify the entity or entities that have responsibility for conducting each of the waiver operational and administrative functions listed (check each that applies):

In accordance with 42 CFR §431.10, when the Medicaid agency does not directly conduct a function, it supervises the performance of the function and establishes and/or approves policies that affect the function.

Function

Medicaid Agency

Other State Operating
Agency

Contracted Entity

Local Non-State
Entity

Disseminate information concerning the waiver to potential enrollees

X

X





Assist individuals in waiver enrollment



X





Manage waiver enrollment against approved limits

X

X





Monitor waiver expenditures against approved levels

X

X





Conduct level of care evaluation activities



X





Review participant service plans to ensure that waiver requirements are met

X

X





Perform prior authorization of waiver services









Conduct utilization management functions

X

X





Recruit providers

X

X





Execute the Medicaid provider agreement

X

X





Determine waiver payment amounts or rates

X

X





Conduct training and technical assistance concerning waiver requirements

X

X





State: Effective Date

Alabama October 1, 2008

Appendix A: 4

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 17 of 132 Appendix B: Participant Access and Eligibility
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Appendix B: Participant Access and Eligibility

Appendix B-1: Specification of the Waiver Target Group(s)

a. Target Group(s). Under the waiver of Section 1902(a)(10)(B) of the Act, the State limits waiver services to a group or subgroups of individuals. In accordance with 42 CFR §441.301(b)(6), select one waiver target group, check each subgroup in the selected target group that may receive services under the waiver, and specify the minimum and maximum (if any) age of individuals served in each subgroup:

SELECT
ONE
WAIVER TARGET GROUP
X



MAXIMUM AGE

TARGET GROUP/SUBGROUP

MINIMUM AGE

MAXIMUM AGE LIMIT: THROUGH
AGE –

NO MAXIMUM AGE LIMIT

Aged or Disabled, or Both (select one)

X Aged or Disabled or Both – General (check each that applies)

X Aged (age 65 and older)

0

X

X Disabled (Physical) (under age 65)

0

X Disabled (Other) (under age 65)

0

 Specific Recognized Subgroups (check each that applies)

 Brain Injury



 HIV/AIDS



 Medically Fragile



 Technology Dependent



Mental Retardation or Developmental Disability, or Both (check each that applies)

 Autism



 Developmental Disability



 Mental Retardation



Mental Illness (check each that applies)

 Mental Illness (age 18 and older)



 Serious Emotional Disturbance (under age

18)

b. Additional Criteria. The State further specifies its target group(s) as follows:

The E&D Waiver requires all clients to meet the nursing facility level of care.

c. Transition of Individuals Affected by Maximum Age Limitation. When there is a maximum age limit that applies to individuals who may be served in the waiver, describe the transition planning procedures that are undertaken on behalf of participants affected by the age limit (select one):
X Not applicable – There is no maximum age limit
 The following transition planning procedures are employed for participants who will reach the waiver’s maximum age limit (specify):

State: Effective Date

Alabama October 1, 2008

Appendix B-1: 1

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

State: Effective Date

Alabama October 1, 2008

Appendix B-1: 2

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

Appendix B-2: Individual Cost Limit

a. Individual Cost Limit. The following individual cost limit applies when determining whether to deny home and community-based services or entrance to the waiver to an otherwise eligible individual (select one):

X No Cost Limit. The State does not apply an individual cost limit. Do not complete Item B-2-b or Item B-2-c.

 Cost Limit in Excess of Institutional Costs. The State refuses entrance to the waiver to any otherwise eligible individual when the State reasonably expects that the cost of the home and community-based services furnished to that individual would exceed the cost of a level of care specified for the waiver up to an amount specified by the State. Complete Items B-2-b and B-2-c. The limit specified by the State is (select one):



%, a level higher than 100% of the institutional average

 Other (specify):

 Institutional Cost Limit. Pursuant to 42 CFR 441.301(a)(3), the State refuses entrance to the waiver to any otherwise eligible individual when the State reasonably expects that the cost of the home and community-based services furnished to that individual would exceed 100% of the cost of the level of care specified for the waiver. Complete Items B-2-b and B-2-c.
 Cost Limit Lower Than Institutional Costs. The State refuses entrance to the waiver to any otherwise qualified individual when the State reasonably expects that the cost of home and community-based services furnished to that individual would exceed the following amount specified by the State that is less than the cost of a level of care specified for the waiver. Specify the basis of the limit, including evidence that the limit is sufficient to assure the health and welfare of waiver participants. Complete Items B-2-b and B-2-c.

The cost limit specified by the State is (select one):  The following dollar amount: $
The dollar amount (select one):  Is adjusted each year that the waiver is in effect by applying the following formula:

 May be adjusted during the period the waiver is in effect. The State will submit a waiver amendment to CMS to adjust the dollar amount.

 The following percentage that is less than 100% of the institutional average:

%

 Other – Specify:

State: Effective Date

Alabama October 1, 2008

Appendix B-2: 1

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HCBS Waiver Application Version 3.3 – Post October 2005
b. Method of Implementation of the Individual Cost Limit. When an individual cost limit is specified in Item B-2-a, specify the procedures that are followed to determine in advance of waiver entrance that the individual’s health and welfare can be assured within the cost limit:
c. Participant Safeguards. When the State specifies an individual cost limit in Item B-2-a and there is a change in the participant’s condition or circumstances post-entrance to the waiver that requires the provision of services in an amount that exceeds the cost limit in order to assure the participant’s health and welfare, the State has established the following safeguards to avoid an adverse impact on the participant (check each that applies):  The participant is referred to another waiver that can accommodate the individual’s needs.  Additional services in excess of the individual cost limit may be authorized. Specify the procedures for authorizing additional services, including the amount that may be authorized:
 Other safeguard(s) (specify):

State: Effective Date

Alabama October 1, 2008

Appendix B-2: 2

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix B-3: Number of Individuals Served

a. Unduplicated Number of Participants. The following table specifies the maximum number of unduplicated participants who are served in each year that the waiver is in effect. The State will submit a waiver amendment to CMS to modify the number of participants specified for any year(s), including when a modification is necessary due to legislative appropriation or another reason. The number of unduplicated participants specified in this table is basis for the cost-neutrality calculations in Appendix J:

Table: B-3-a

Waiver Year

Unduplicated Number of Participants

Year 1

9205

Year 2

9205

Year 3

9205

Year 4 (renewal only)

9205

Year 5 (renewal only)

9205

b. Limitation on the Number of Participants Served at Any Point in Time. Consistent with the unduplicated number of participants specified in Item B-3-a, the State may limit to a lesser number the number of participants who will be served at any point in time during a waiver year. Indicate whether the State limits the number of participants in this way: (select one):

X The State does not limit the number of participants that it serves at any point in time during a waiver year.
 The State limits the number of participants that it serves at any point in time during a waiver year. The limit that applies to each year of the waiver period is specified in the following table:

Table B-3-b

Waiver Year

Maximum Number of Participants Served At Any
Point During the Year

Year 1

Year 2

Year 3

Year 4 (renewal only)

Year 5 (renewal only)

State: Effective Date

Alabama October 1, 2008

Appendix B-3: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 22 of 132
Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
c. Reserved Waiver Capacity. The State may reserve a portion of the participant capacity of the waiver for specified purposes (e.g., provide for the community transition of institutionalized persons or furnish waiver services to individuals experiencing a crisis) subject to CMS review and approval. The State (select one):
X Not applicable. The state does not reserve capacity.
 The State reserves capacity for the following purpose(s). For each purpose, describe how the amount of reserved capacity was determined:

The capacity that the State reserves in each waiver year is specified in the following table:

Table B-3-c Purpose:

Purpose:

Waiver Year Year 1 Year 2 Year 3 Year 4 (renewal only) Year 5 (renewal only)

Capacity Reserved

Capacity Reserved

d. Scheduled Phase-In or Phase-Out. Within a waiver year, the State may make the number of participants who are served subject to a phase-in or phase-out schedule (select one):

X The waiver is not subject to a phase-in or a phase-out schedule.
 The waiver is subject to a phase-in or phase-out schedule that is included in Attachment #1 to Appendix B-3. This schedule constitutes an intra-year limitation on the number of participants who are served in the waiver.

e. Allocation of Waiver Capacity. Select one:

X Waiver capacity is allocated/managed on a statewide basis.
 Waiver capacity is allocated to local/regional non-state entities. Specify: (a) the entities to which waiver capacity is allocated; (b) the methodology that is used to allocate capacity and how often the methodology is reevaluated; and, (c) policies for the reallocation of unused capacity among local/regional non-state entities:

State: Effective Date

Alabama October 1, 2008

Appendix B-3: 2

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
f. Selection of Entrants to the Waiver. Specify the policies that apply to the selection of individuals for entrance to the waiver: Entry to the waiver is prioritized based on the imminent need for services that is determined through an assessment process or on the date of application or referral.

State: Effective Date

Alabama October 1, 2008

Appendix B-3: 3

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 24 of 132

Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
Attachment #1 to Appendix B-3 Waiver Phase-In/Phase Out Schedule a. The waiver is being (select one):
 Phased-in  Phased-out

b. Waiver Years Subject to Phase-In/Phase-Out Schedule (check each that applies):

Year One 

Year Two 

Year Three 

Year Four 

Your Five 

c. Phase-In/Phase-Out Time Period. Complete the following table:

Waiver Year: First Calendar Month Phase-in/Phase out begins Phase-in/Phase out ends

Month

Waiver Year

d. Phase-In or Phase-Out Schedule. Complete the following table:

Month

Phase-In or Phase-Out Schedule

Waiver Year:

Base Number of Participants

Change in Number of Participants

Participant Limit

State: Effective Date

Alabama October 1, 2008

Appendix B-3: 4

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 25 of 132
Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

Appendix B-4: Medicaid Eligibility Groups Served in the Waiver

a. State Classification. The State is a (select one):

X §1634 State  SSI Criteria State  209(b) State
b. Medicaid Eligibility Groups Served in the Waiver. Individuals who receive services under this waiver are eligible under the following eligibility groups contained in the State plan. The State applies all applicable federal financial participation limits under the plan. Check all that apply:

Eligibility Groups Served in the Waiver (excluding the special home and community-based waiver group under 42 CFR §435.217)

 Low income families with children as provided in §1931 of the Act

X SSI recipients

 Aged, blind or disabled in 209(b) states who are eligible under 42 CFR §435.121

X Optional State supplement recipients

 Optional categorically needy aged and/or disabled individuals who have income at: (select one)

 100% of the Federal poverty level (FPL)



% of FPL, which is lower than 100% of FPL

 Working individuals with disabilities who buy into Medicaid (BBA working disabled group as provided in §1902(a)(10)(A)(ii)(XIII)) of the Act)

 Working individuals with disabilities who buy into Medicaid (TWWIIA Basic Coverage Group as provided in §1902(a)(10)(A)(ii)(XV) of the Act)

 Working individuals with disabilities who buy into Medicaid (TWWIIA Medical Improvement Coverage Group as provided in §1902(a)(10)(A)(ii)(XVI) of the Act)

 Disabled individuals age 18 or younger who would require an institutional level of care (TEFRA 134 eligibility group as provided in §1902(e)(3) of the Act)

 Medically needy

X Other specified groups (include only the statutory/regulatory reference to reflect the additional groups in the State plan that may receive services under this waiver) specify:

Individuals deemed eligible for SSI under 42 CFR 435.122, 435.134, 435.135, 435.137, 435.138, Section 6 of Public Law 99-643, and individuals eligible under 42 CFR 435.145 and 435.227.

Special home and community-based waiver group under 42 CFR §435.217) Note: When the special home and community-based waiver group under 42 CFR §435.217 is included, Appendix B-5 must be completed
 No. The State does not furnish waiver services to individuals in the special home and community-based waiver group under 42 CFR §435.217. Appendix B-5 is not submitted.
X Yes. The State furnishes waiver services to individuals in the special home and communitybased waiver group under 42 CFR §435.217. Select one and complete Appendix B-5.

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

All individuals in the special home and community-based waiver group under 42 CFR §435.217

X Only the following groups of individuals in the special home and community-based waiver group under 42 CFR §435.217 (check each that applies):

X A special income level equal to (select one):

X 300% of the SSI Federal Benefit Rate (FBR)

 100 % of FBR, which is lower than 300% (42 CFR §435.236)

 $

which is lower than 300%

 Aged, blind and disabled individuals who meet requirements that are more restrictive than the SSI program (42 CFR §435.121)

 Medically needy without spenddown in States which also provide Medicaid to recipients of SSI (42 CFR §435.320, §435.322 and §435.324)

 Medically needy without spend down in 209(b) States (42 CFR §435.330)

 Aged and disabled individuals who have income at: (select one)

 100% of FPL



% of FPL, which is lower than 100%

Other specified groups (include only the statutory/regulatory reference to reflect the additional groups in the State plan that may receive services under this waiver) specify:

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix B-5: Post-Eligibility Treatment of Income
In accordance with 42 CFR §441.303(e), Appendix B-5 must be completed when the State furnishes waiver services to individuals in the special home and community-based waiver group under 42 CFR §435.217, as indicated in Appendix B-4. Post-eligibility applies only to the 42 CFR §435.217 group. A State that uses spousal impoverishment rules under §1924 of the Act to determine the eligibility of individuals with a community spouse may elect to use spousal post-eligibility rules under §1924 of the Act to protect a personal needs allowance for a participant with a community spouse. a. Use of Spousal Impoverishment Rules. Indicate whether spousal impoverishment rules are used to
determine eligibility for the special home and community-based waiver group under 42 CFR §435.217 (select one):
 Spousal impoverishment rules under §1924 of the Act are used to determine the eligibility of individuals with a community spouse for the special home and community-based waiver group. In the case of a participant with a community spouse, the State elects to (select one):
 Use spousal post-eligibility rules under §1924 of the Act. Complete ItemsB-5-b-2 (SSI State and §1634) or B-5-c-2 (209b State) and Item B-5-d.
 Use regular post-eligibility rules under 42 CFR §435.726 (SSI State and §1634) (Complete Item B-5-b-1) or under §435.735 (209b State) (Complete Item B-5-c-1). Do not complete Item B-5-d.
X Spousal impoverishment rules under §1924 of the Act are not used to determine eligibility of individuals with a community spouse for the special home and community-based waiver group. The State uses regular post-eligibility rules for individuals with a community spouse. Complete Item B-5-c-1 (SSI State and §1634) or Item B-5-d-1 (209b State). Do not complete Item B-5-d.

NOTE: Items B-5-b-1 and B-5-c-1 are for use by states that do not use spousal eligibility rules or use spousal impoverishment eligibility rules but elect to use regular post-eligibility rules.

b-1. Regular Post-Eligibility Treatment of Income: SSI State and §1634 State. The State uses the posteligibility rules at 42 CFR §435.726. Payment for home and community-based waiver services is reduced by the amount remaining after deducting the following allowances and expenses from the waiver participant’s income:

i. Allowance for the needs of the waiver participant (select one):

X The following standard included under the State plan (select one)

 SSI standard

 Optional State supplement standard

 Medically needy income standard

 The special income level for institutionalized persons (select one):

 300% of the SSI Federal Benefit Rate (FBR)



% of the FBR, which is less than 300%

 $

which is less than 300%.



% of the Federal poverty level

X Other (specify):
The maintenance needs allowance is equal to the individual’s total income as determined under the post eligibility process which includes income that is placed in a Miller Trust.

State: Effective Date

Alabama October 1, 2008

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HCBS Waiver Application Version 3.3 – Post October 2005

 The following dollar amount: $

If this amount changes, this item will be revised.

 The following formula is used to determine the needs allowance:

ii. Allowance for the spouse only (select one):

 SSI standard

 Optional State supplement standard

 Medically needy income standard

 The following dollar amount: $

If this amount changes, this item will be revised.

 The amount is determined using the following formula:

X Not applicable (see instructions)

iii. Allowance for the family (select one):  AFDC need standard  Medically needy income standard

 The following dollar amount: $

The amount specified cannot exceed the higher

of the need standard for a family of the same size used to determine eligibility under the State’s approved AFDC plan or the medically needy income standard established under 42 CFR §435.811 for a family of the same size. If this amount changes, this item will be revised.

 The amount is determined using the following formula:

 Other (specify):

X Not applicable (see instructions)
iv. Amounts for incurred medical or remedial care expenses not subject to payment by a third party, specified in 42 §CFR 435.726:
a. Health insurance premiums, deductibles and co-insurance charges b. Necessary medical or remedial care expenses recognized under State law but not covered under the
State’s Medicaid plan, subject to reasonable limits that the State may establish on the amounts of these expenses. Select one:
Not applicable (see instructions) X The State does not establish reasonable limits.
 The State establishes the following reasonable limits (specify):

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
c-1. Regular Post-Eligibility: 209(b) State. The State uses more restrictive eligibility requirements than SSI and uses the post-eligibility rules at 42 CFR §435.735. Payment for home and community-based waiver services is reduced by the amount remaining after deducting the following amounts and expenses from the waiver participant’s income:
i. Allowance for the needs of the waiver participant (select one): The following standard included under the State plan (select one)  The following standard under 42 CFR §435.121:

 Optional State supplement standard

 Medically needy income standard

 The special income level for institutionalized persons (select one)

 300% of the SSI Federal Benefit Rate (FBR)



% of the FBR, which is less than 300%

 $

which is less than 300% of the FBR



% of the Federal poverty level

Other (specify):

 The following dollar amount: $

If this amount changes, this item will be revised.

 The following formula is used to determine the needs allowance:

ii. Allowance for the spouse only (select one):  The following standard under 42 CFR §435.121

 Optional State supplement standard

 Medically needy income standard

 The following dollar amount: $

If this amount changes, this item will be revised.

 The amount is determined using the following formula:

Not applicable (see instructions) iii. Allowance for the family (select one)  AFDC need standard  Medically needy income standard

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

 The following dollar amount: $

The amount specified cannot exceed the higher

of the need standard for a family of the same size used to determine eligibility under the State’s

approved AFDC plan or the medically needy income standard established under

42 CFR §435.811 for a family of the same size. If this amount changes, this item will be revised.

 The amount is determined using the following formula:

 Other (specify):

Not applicable (see instructions)
iv. Amounts for incurred medical or remedial care expenses not subject to payment by a third party, specified in 42 CFR §435.735:
a. Health insurance premiums, deductibles and co-insurance charges b. Necessary medical or remedial care expenses recognized under State law but not covered under the
State’s Medicaid plan, subject to reasonable limits that the State may establish on the amounts of these expenses. Select one:  Not applicable (see instructions)  The State does not establish reasonable limits.
 The State establishes the following reasonable limits (specify):

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

NOTE: Items B-5-c-2 and B-5-d-2 are for use by states that use spousal impoverishment eligibility rules and elect to apply the spousal post eligibility rules.

b-2. Regular Post-Eligibility Treatment of Income: SSI State and §1634 state. The State uses the posteligibility rules at 42 CFR §435.726 for individuals who do not have a spouse or have a spouse who is not a community spouse as specified in §1924 of the Act. Payment for home and community-based waiver services is reduced by the amount remaining after deducting the following allowances and expenses from the waiver participant’s income:

i. Allowance for the needs of the waiver participant (select one):

The following standard included under the State plan (select one)

SSI standard

 Optional State supplement standard

 Medically needy income standard

 The special income level for institutionalized persons (select one):

 300% of the SSI Federal Benefit Rate (FBR)



% of the FBR, which is less than 300%

 $

which is less than 300%.



% of the Federal poverty level

Other (specify):

 The following dollar amount: $

If this amount changes, this item will be revised.

 The following formula is used to determine the needs allowance:

ii. Allowance for the spouse only (select one):
 The state provides an allowance for a spouse who does not meet the definition of a community spouse in §1924 of the Act. Describe the circumstances under which this allowance is provided:

Specify the amount of the allowance:

 SSI standard

 Optional State supplement standard

 Medically needy income standard

 The following dollar $ amount:

If this amount changes, this item will be revised.

 The amount is determined using the following formula:

Not applicable (see instructions) iii. Allowance for the family (select one):

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

 AFDC need standard  Medically needy income standard

 The following dollar amount: $

The amount specified cannot exceed the higher of the

need standard for a family of the same size used to determine eligibility under the State’s approved AFDC plan or the medically needy income standard established under 42 CFR §435.811 for a family of the same size. If this amount changes, this item will be revised.

 The amount is determined using the following formula:

 Other (specify):

Not applicable (see instructions)
iv. Amounts for incurred medical or remedial care expenses not subject to payment by a third party, specified in 42 CFR §435.726:
a. Health insurance premiums, deductibles and co-insurance charges b. Necessary medical or remedial care expenses recognized under State law but not covered under the
State’s Medicaid plan, subject to reasonable limits that the State may establish on the amounts of these expenses. Select one:  Not applicable (see instructions)
The State does not establish reasonable limits.
 The State establishes the following reasonable limits (specify):

c-2. Regular Post-Eligibility: 209(b) State. The State uses more restrictive eligibility requirements than SSI and uses the post-eligibility rules at 42 CFR §435.735 for individuals who do not have a spouse or have a spouse who is not a community spouse as specified in §1924 of the Act. Payment for home and community-based waiver services is reduced by the amount remaining after deducting the following amounts and expenses from the waiver participant’s income:
i. Allowance for the needs of the waiver participant (select one):
The following standard included under the State plan (select one)  The following standard under 42 CFR §435.121:

 Optional State supplement standard

 Medically needy income standard

 The special income level for institutionalized persons (select one)

 300% of the SSI Federal Benefit Rate (FBR)



% of the FBR, which is less than 300%

 $

which is less than 300% of the FBR



% of the Federal poverty level

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
Other (specify):

 The following dollar amount: $

If this amount changes, this item will be revised.

 The following formula is used to determine the needs allowance:

ii. Allowance for the spouse only (select one):
 The state provides an allowance for a spouse who does not meet the definition of a community spouse in §1924 of the Act. Describe the circumstances under which this allowance is provided:

Specify the amount of the allowance:  The following standard under 42 CFR §435.121:

 Optional State supplement standard

 Medically needy income standard

 The following dollar $ amount:

If this amount changes, this item will be revised.

 The amount is determined using the following formula:

 Not applicable (see instructions)

iii. Allowance for the family (select one)

 AFDC need standard

 Medically needy income standard

 The following dollar amount: $

The amount specified cannot exceed the higher

of the need standard for a family of the same size used to determine eligibility under the State’s approved AFDC plan or the medically needy income standard established under 42 CFR §435.811 for a family of the same size. If this amount changes, this item will be revised.

 The amount is determined using the following formula:

 Other (specify):

 Not applicable (see instructions)

State: Effective Date

Alabama October 1, 2008

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HCBS Waiver Application Version 3.3 – Post October 2005
iv. Amounts for incurred medical or remedial care expenses not subject to payment by a third party, specified in 42 CFR 435.735:
a. Health insurance premiums, deductibles and co-insurance charges b. Necessary medical or remedial care expenses recognized under State law but not covered under the
State’s Medicaid plan, subject to reasonable limits that the State may establish on the amounts of these expenses. Select one:  Not applicable (see instructions)  The State does not establish reasonable limits.
 The State establishes the following reasonable limits (specify):

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

d. Post-Eligibility Treatment of Income Using Spousal Impoverishment Rules
The State uses the post-eligibility rules of §1924(d) of the Act (spousal impoverishment protection) to determine the contribution of a participant with a community spouse toward the cost of home and community-based care if it determines the individual's eligibility under §1924 of the Act. There is deducted from the participant’s monthly income a personal needs allowance (as specified below), a community spouse's allowance, a family allowance, and an amount for incurred expenses for medical or remedial care.

i. Allowance for the personal needs of the waiver participant (select one):

 SSI Standard

 Optional State Supplement standard

 Medically Needy Income Standard

 The special income level for institutionalized persons



% of the Federal Poverty Level

 The following dollar amount: $

If this amount changes, this item will be revised

 The following formula is used to determine the needs allowance:

 Other (specify):

ii. If the allowance for the personal needs of a waiver participant with a community spouse is different from the amount used for the individual’s maintenance allowance under 42 CFR §435.726 or 42 CFR §435.735, explain why this amount is reasonable to meet the individual’s maintenance needs in the community. Select one:
 Allowance is the same  Allowance is different. Explanation of difference:

iii. Amounts for incurred medical or remedial care expenses not subject to payment by a third party, specified section 1902(r)(1) of the Act:
a. Health insurance premiums, deductibles and co-insurance charges. b. Necessary medical or remedial care expenses recognized under State law but not covered under
the State’s Medicaid plan, subject to reasonable limits that the State may establish on the amounts of these expenses. Select one:  Not applicable (see instructions)  The State does not establish reasonable limits.
 The State uses the same reasonable limits as are used for regular (non-spousal) post-eligibility.

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix B-6: Evaluation/Reevaluation of Level of Care
As specified in 42 CFR §441.302(c), the State provides for an evaluation (and periodic reevaluations) of the need for the level(s) of care specified for this waiver, when there is a reasonable indication that an individual may need such services in the near future (one month or less), but for the availability of home and community-based waiver services. a. Reasonable Indication of Need for Services. In order for an individual to be determined to need
waiver services, an individual must require: (a) the provision of at least one waiver service, as documented in the service plan, and (b) the provision of waiver services at least monthly or, if the need for services is less than monthly, the participant requires regular monthly monitoring which must be documented in the service plan. Specify the State’s policies concerning the reasonable indication of the need for waiver services:
i. Minimum number of services. The minimum number of waiver services (one or more) that an individual must require in order to be determined to need waiver services is (insert number): One
ii. Frequency of services. The State requires (select one):  The provision of waiver services at least monthly
X Monthly monitoring of the individual when services are furnished on a less than monthly basis. If the State also requires a minimum frequency for the provision of waiver services other than monthly (e.g., quarterly), specify the frequency: All clients are monitored through at least one monthly face-to-face visit by the case manager only. The monthly face-to-face visit is the minimum monthly contact. Monitoring of participants is conducted more frequently if there is a change in the participant’s medical condition or if there is a change in the participant’s environmental circumstances. The frequency of other waiver services is determined by the physician based upon the needs of the waiver participant and is specified on the participant’s individual plan of care.
b. Responsibility for Performing Evaluations and Reevaluations. Level of care evaluations and reevaluations are performed (select one):  Directly by the Medicaid agency X By the operating agency specified in Appendix A  By an entity under contract with the Medicaid agency. Specify the entity:
 Other (specify):
c. Qualifications of Individuals Performing Initial Evaluation: Per 42 CFR §441.303(c)(1), specify the educational/professional qualifications of individuals who perform the initial evaluation of level of care for waiver applicants: The OA have Nurse Consultants on staff that perform the initial evaluations. They are Registered Nurses with a State of Alabama license.

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

State: Effective Date

Alabama October 1, 2008

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HCBS Waiver Application Version 3.3 – Post October 2005
d. Level of Care Criteria. Fully specify the level of care criteria that are used to evaluate and reevaluate whether an individual needs services through the waiver and that serve as the basis of the State’s level of care instrument/tool. Specify the level of care instrument/tool that is employed. State laws, regulations, and policies concerning level of care criteria and the level of care instrument/tool are available to CMS upon request through the Medicaid agency or the operating agency (if applicable), including the instrument/tool utilized. The E&D Waiver recipients must meet the nursing facility level of care. The tool used to determine the NF LOC is the Alabama Home and Community Based Services Program Assessment (HCBS-1) form. New admissions must meet two of the criteria listed in A-J while a re-admission must meet only one of the criteria listed in A-J. Supporting documentation must be submitted with the application.
The admission criteria is as follows:
A. Administration of a potent and dangerous injectable medication and intravenous medication and solutions on a daily basis or administration of routine oral medications, eye drops or ointment.
B. Restorative nursing procedures (such as gait training and bowel and bladder training) in the case of clients who are determined to have restorative potential and can benefit from the training on a daily basis per physician’s orders.
C. Nasopharyngeal aspiration required for the maintenance of a clear airway.
D. Maintenance of tracheostomy, gastrostomy, colostomy, ileostomy and other tubes indwelling in body cavities as an adjunct to active treatment for rehabilitation of disease for which the stoma was created.
E. Administration of tube feedings by naso-gastric tube.
F. Care of extensive decubitus ulcers or other widespread skin disorders.
G. Observation of unstable medical conditions required on a regular and continuing basis that can only be provided by or under the direction of a registered nurse.
H. Use of oxygen on a regular or continuing basis.
I. Application of dressing involving prescription medications and aseptic techniques and/or changing of dressing in noninfected, postoperative, or chronic conditions per physician’s orders.
J. Comatose client receiving routine medical treatment.

e. Level of Care Instrument(s). Per 42 CFR §441.303(c)(2), indicate whether the instrument/tool used to evaluate level of care for the waiver differs from the instrument/tool used to evaluate institutional level of care (select one):
X The same instrument is used in determining the level of care for the waiver and for institutional care under the State Plan.
 A different instrument is used to determine the level of care for the waiver than for institutional care under the State plan. Describe how and why this instrument differs from the form used to evaluate institutional level of care and explain how the outcome of the determination is reliable, valid, and fully comparable.

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005

f. Process for Level of Care Evaluation/Reevaluation. Per 42 CFR §441.303(c)(1), describe the process for evaluating waiver applicants for their need for the level of care under the waiver. If the reevaluation process differs from the evaluation process, describe the differences:
Waiver applicants for whom there is a reasonable indication that services may be needed in the future are provided an individual Level of Care (LOC) evaluation. The case managers submit a Home and Community Based Waiver (HCBS-1) application to the nurse reviewer on staff at the Operating Agencies to evaluate and make the level of care determination. The nurse reviewers evaluate the application to make sure it is complete, supports the need for waivers services, establishes the risk of nursing home placement and the medical criteria is met and level of care is approved. The approval of the appropriateness of admission or continued eligibility is assessed from the documentation as per the HCBS-1 assessment tool and other documents which may include physician progress notes, and/or hospital records. A review not only includes meeting the level of care criteria as developed by the Alabama Medicaid Agency but also the assessment of the support systems within the home, the functional limitations of the recipient, the diagnosis and any factors that would place the recipient at risk of institutionalization. Medicaid may also assist with difficult LOC evaluations.
Once the application is approved it’s entered electronically into the EDS/Medicaid system. If no problems are identified, EDS enters the approval in the AMA Long Term Care file and writes a waiver eligibility segment indicating the beginning and ending eligibility dates. Verification and acceptance will be returned overnight to ADPH and ADSS.
g. Reevaluation Schedule. Per 42 CFR §441.303(c)(4), reevaluations of the level of care required by a participant are conducted no less frequently than annually according to the following schedule (select one):
 Every three months  Every six months
X Every twelve months
Other schedule (specify):

h. Qualifications of Individuals Who Perform Reevaluations. Specify the qualifications of individuals who perform reevaluations (select one):
X The qualifications of individuals who perform reevaluations are the same as individuals who perform initial evaluations.
 The qualifications are different. The qualifications of individuals who perform reevaluations are (specify):

i. Procedures to Ensure Timely Reevaluations. Per 42 CFR §441.303(c)(4), specify the procedures that the State employs to ensure timely reevaluations of level of care (specify):
Reevaluations of eligibility for the E&D Waiver must be completed every twelve months. This process is the same as the initial application packet which includes a new level of care, and plan of care. Reevaluations must be done on a timely basis so that services and payment will not be interrupted. Billing for Waiver services is bounced against the Waiver Service Long Term Care

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
Benefit Plan, and if eligibility for Waiver Services is current, the claim is paid. If the reevaluation has not been accomplished in a timely manner and the eligibility is not current, the claim will deny. The Alabama Medicaid Agency will not back date reevaluations not received in a timely manner.
The case managers review the client’s records monthly to determine the need for waiver services. Case Managers also keep a copy of the client’s reevaluation dates in a tickler file to ensure timely reevaluations are accomplished.
j. Maintenance of Evaluation/Reevaluation Records. Per 42 CFR §441.303(c)(3), the State assures that written and/or electronically retrievable documentation of all evaluations and reevaluations are maintained for a minimum period of 3 years as required in 45 CFR §74.53. Specify the location(s) where records of evaluations and reevaluations of level of care are maintained: All evaluations and reevaluations are maintained for a minimum period of 3 years. The clients records are located at:
1. Direct Service Providers 2. Operating Agency Case Record

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix B-7: Freedom of Choice
Freedom of Choice. As provided in 42 CFR §441.302(d), when an individual is determined to be likely to require a level of care for this waiver, the individual or his or her legal representative is:
i. informed of any feasible alternatives under the waiver; and ii. given the choice of either institutional or home and community-based services. a. Procedures. Specify the State’s procedures for informing eligible individuals (or their legal representatives) of the feasible alternatives available under the waiver and allowing these individuals to choose either institutional or waiver services. Identify the form(s) that are employed to document freedom of choice. The form or forms are available to CMS upon request through the Medicaid agency or the operating agency (if applicable).
Freedom of Choice: being informed of feasible alternatives under the waiver.
As part of the assessment and service coordination visit, clients and/or responsible parties are provided with adequate information to make an informed decision as to where the client’s care will be received. Service coordination addresses problems and feasible solutions. It also includes an exploration of all the resources utilized by the client, both formal and informal, as well as those waiver services which may be available to meet the client’s needs and those needs which cannot be met.
Freedom of Choice: being given the choice of either institutional or home and community based services.
Each waiver client must make a written choice for either institution or community care, which will remain in effect until such time as the client changes his/her choice. The only exception to making a written choice is when the client is not capable of signing the form. In such cases, services are not denied if a written choice cannot be obtained. The reason(s) for absence of a signed choice must be carefully documented by the case manager. A responsible party should be encouraged to assume responsibility for working with the case manager in arranging for an appropriate plan of care. This may include the responsible party signing the forms.
b. Maintenance of Forms. Per 45 CFR §74.53, written copies or electronically retrievable facsimiles of Freedom of Choice forms are maintained for a minimum of three years. Specify the locations where copies of these forms are maintained. The forms are maintained in the Operating Agency Case Record.

State: Effective Date

Alabama October 1, 2008

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Appendix B: Participant Access and Eligibility
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix B-8: Access to Services by Limited English Proficient Persons
Access to Services by Limited English Proficient Persons. Specify the methods that the State uses to provide meaningful access to the waiver by Limited English Proficient persons in accordance with the Department of Health and Human Services “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons” (68 FR 47311 - August 8, 2003):
Accommodations made for Limited English Proficiency (LEP) persons include a language line as well as several publications in Spanish on the Medicaid Website such as the Covered Services Handbook, and basic eligibility documents. The language translation line offers numerous languages and meaningful access through the Medicaid toll free telephone number. Through the translators the LEP person can request and receive any available Medicaid assistance and apply for available Medicaid services. Hispanic is the only significant Limited English proficiency population in the State of Alabama at 1.7%.

State: Effective Date

Alabama October 1, 2008

Appendix B-8: 1

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HCBS Waiver Application Version 3.3 – Post October 2005
Appendix C: Participant Services

Appendix C-1: Summary of Services Covered

a. Waiver Services Summary. Appendix C-3 sets forth the specifications for each service that is offered under this waiver. List the services that are furnished under the waiver in the following table. If case management is not a service under the waiver, complete items C-1-b and C-1-c:

Statutory Services (check each that applies)

Service

Included

Alternate Service Title (if any)

Case Management

X

Homemaker

X

Home Health Aide



Personal Care

X

Adult Day Health

X

Habilitation



Residential Habilitation



Day Habilitation



Expanded Habilitation Services as provided in 42 CFR §440.180(c):

Prevocational Services



Supported Employment



Education



Respite

X

Skilled and Unskilled

Day Treatment



Partial Hospitalization



Psychosocial Rehabilitation



Clinic Services



Live-in Caregiver



(42 CFR §441.303(f)(8))

Companion Services

X

Home Delivered Meals

X

Breakfast; Shelf Stable and Frozen Meals

Other Services (select one)

X Not applicable
 As provided in 42 CFR §440.180(b)(9), the State requests the authority to provide the following additional services not specified in statute (list each service by title):

State: Effective Date

Alabama October 1, 2008

Appendix C-1: 1

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

a. b. c. d. e. f. g.

h.
i.
Extended State Plan Services (select one)
X Not applicable  The following extended State plan services are provided (list each extended State plan service by
service title): a. b. c. Supports for Participant Direction (select one)  The waiver provides for participant direction of services as specified in Appendix E. Indicate
whether the waiver includes the following supports or other supports for participant direction. X Not applicable

Support

Included

Alternate Service Title (if any)

Information and Assistance in



Support of Participant Direction

Financial Management Services



Other Supports for Participant Direction (list each support by service title):

a.

b.

c.

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
b. Alternate Provision of Case Management Services to Waiver Participants. When case management is not a covered waiver service, indicate how case management is furnished to waiver participants (check each that applies):
 As a Medicaid State plan service under §1915(g)(1) of the Act (Targeted Case Management). Complete item C-1-c.
 As an administrative activity. Complete item C-1-c.  Not applicable – Case management is not furnished as a distinct activity to waiver participants.
Do not complete Item C-1-c.
c. Delivery of Case Management Services. Specify the entity or entities that conduct case management functions on behalf of waiver participants:

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix C-2: General Service Specifications
a. Criminal History and/or Background Investigations. Specify the State’s policies concerning the conduct of criminal history and/or background investigations of individuals who provide waiver services (select one):
X Yes. Criminal history and/or background investigations are required. Specify: (a) the types of positions (e.g., personal assistants, attendants) for which such investigations must be conducted; (b) the scope of such investigations (e.g., state, national); and, (c) the process for ensuring that mandatory investigations have been conducted. State laws, regulations and policies referenced in this description are available to CMS upon request through the Medicaid or the operating agency (if applicable): Background checks will be required for direct service provider employees who operate within the State of Alabama and who either provide direct services to the participant and/or who have access to client records. The state background checks will be conducted by the provider agency and will also include a reference check with previous employers and the Nurse/Aid Registry. Verification of investigations will be conducted during periodic audit reviews of the service providers by the OA.
 No. Criminal history and/or background investigations are not required.
b. Abuse Registry Screening. Specify whether the State requires the screening of individuals who provide waiver services through a State-maintained abuse registry (select one):
 Yes. The State maintains an abuse registry and requires the screening of individuals through this registry. Specify: (a) the entity (entities) responsible for maintaining the abuse registry; (b) the types of positions for which abuse registry screenings must be conducted; and, (c) the process for ensuring that mandatory screenings have been conducted. State laws, regulations and policies referenced in this description are available to CMS upon request through the Medicaid agency or the operating agency (if applicable):

X No. The State does not conduct abuse registry screening. c. Services in Facilities Subject to §1616(e) of the Social Security Act. Select one:

X No. Home and community-based services under this waiver are not provided in facilities subject to §1616(e) of the Act. Do not complete Items C-2-c.i – c.iii.
 Yes. Home and community-based services are provided in facilities subject to §1616(e) of the Act. The standards that apply to each type of facility where waiver services are provided are available to CMS upon request through the Medicaid agency or the operating agency (if applicable). Complete Items C-2-c.i –c.iii.

i. Types of Facilities Subject to §1616(e). Complete the following table for each type of facility subject to §1616(e) of the Act:

Type of Facility

Waiver Service(s) Provided in Facility

Facility Capacity Limit

State: Effective Date

Alabama October 1, 2008

Appendix C-2: 1

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
ii. Larger Facilities: In the case of residential facilities subject to §1616(e) that serve four or more individuals unrelated to the proprietor, describe how a home and community character is maintained in these settings.

iii. Scope of Facility Standards. By type of facility listed in Item C-2-c-i, specify whether the State’s standards address the following (check each that applies):
Facility Type Facility Type Facility Type Facility Type

Standard

Admission policies









Physical environment









Sanitation









Safety









Staff : resident ratios









Staff training and qualifications









Staff supervision









Resident rights









Medication administration









Use of restrictive interventions









Incident reporting









Provision of or arrangement for









necessary health services

When facility standards do not address one or more of the topics listed, explain why the standard is not included or is not relevant to the facility type or population. Explain how the health and welfare of participants is assured in the standard area(s) not addressed:

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
d. Provision of Personal Care or Similar Services by Legally Responsible Individuals. A legally responsible individual is any person who has a duty under State law to care for another person and typically includes: (a) the parent (biological or adoptive) of a minor child or the guardian of a minor child who must provide care to the child or (b) a spouse of a waiver participant. Except at the option of the State and under extraordinary circumstances specified by the State, payment may not be made to a legally responsible individual for the provision of personal care or similar services that the legally responsible individual would ordinarily perform or be responsible to perform on behalf of a waiver participant. Select one:
X No. The State does not make payment to legally responsible individuals for furnishing personal care or similar services.
 Yes. The State makes payment to legally responsible individuals for furnishing personal care or similar services when they are qualified to provide the services. Specify: (a) the legally responsible individuals who may be paid to furnish such services and the services they may provide; (b) State policies that specify the circumstances when payment may be authorized for the provision of extraordinary care by a legally responsible individual and how the State ensures that the provision of services by a legally responsible individual is in the best interest of the participant; and, (c) the controls that are employed to ensure that payments are made only for services rendered. Also, specify in Appendix C-3 the personal care or similar services for which payment may be made to legally responsible individuals under the State policies specified here.

e. Other State Policies Concerning Payment for Waiver Services Furnished by Relatives/Legal Guardians. Specify State policies concerning making payment to relatives/legal guardians for the provision of waiver services over and above the policies addressed in Item C-2-d. Select one:
The State does not make payment to relatives/legal guardians for furnishing waiver services.
 The State makes payment to relatives/legal guardians under specific circumstances and only when the relative/guardian is qualified to furnish services. Specify the specific circumstances under which payment is made, the types of relatives/legal guardians to whom payment may be made, and the services for which payment may be made. Specify the controls that are employed to ensure that payments are made only for services rendered. Also, specify in Appendix C-3 each waiver service for which payment may be made to relatives/legal guardians.

X Relatives/legal guardians may be paid for providing waiver services whenever the relative/legal guardian is qualified to provide services as specified in Appendix C-3. Specify any limitations on the types of relatives/legal guardians who may furnish services. Specify the controls that are employed to ensure that payments are made only for services rendered. Also, specify in Appendix C-3 each waiver service for which payment may be made to relatives/legal guardians.
(A) Services provided by relatives or friends may be covered only if relatives or friends meet the same qualifications as other direct care providers and are employed by an approved provider of service. Relatives who are providers of services cannot be a parent/guardian of a minor or spouse of the individual receiving services, when the services are those that these persons are legally obligated to provide. There must be justification as to why the relative of friend is the provider of care and documentation in the case manager’s file showing the lack of other qualified providers. (B) The strict controls to assure that payment is made to relatives or friends as providers in return for authorized services include the following:

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
1) The relative or friend must be employed by a Direct Service Provider (DSP) Agency. 2) Meet the qualifications outlined in the scope of service as any other personal care,
respite, homemaker, or companion worker employed by a DSP agency. 3) Complete a service log reflecting the type of service provided including the number of
hours of service, the date and time of service. 4) Have the client/or representative sign the service log at each visit. If the
relative or friend normally acts as a representative another individual must sign the service log. 5) The service log is reviewed by a DSP supervisor at least once biweekly. 6) Supervisory visits to the participant’s residence at 60 day intervals. 7) Direct on-site supervision of the DSP worker providing the authorized service at least once every 6 months and more frequently if warranted. 8) Monthly visits by the case managers to address client satisfaction with the provision of services and to question the client confidentially about the adequacy of the services received and their needs are met as well as to observe the client or friend as services are provided.
(C) While each service may be offered by a relative the state will ensure that no conflict of interest will occur because the relative providing the direct service will not be involved in the development of the care plan or allowed to sign service logs which serve as documentation that the authorized services have been provided when the participant is unable to do so. When the primary care giver or authorized representative for the participant must also act as the direct service provider worker another individual must be assigned the aforementioned responsibilities as well as assume responsibility for any other functions which could potentially result in a conflict of interest. The case manager must be available during the monthly visits to observe the provision of the direct service by the guardian and question the participant confidentially about their satisfaction with those services.
 Other policy. Specify:

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
f. Open Enrollment of Providers. Specify the processes that are employed to assure that all willing and qualified providers have the opportunity to enroll as waiver service providers as provided in 42 CFR §431.51:
When a prospective provider calls and expresses interest in providing waiver services, a contracting package is prepared; and mailed. After the package is returned it is reviewed for completeness of information. The OA will conduct an initial on-site visit to verify that the provider is in compliance with Medicaid Waiver standards and regulations before approval as a direct service provider is made. Every new provider is also required to attend a waiver training conducted by the OA.
When all information from the potential provider has been reviewed and verified, a financial amount is established and a contract is signed by the appropriate authorities. If the provider is not a certified home health agency, a letter is prepared requesting the Commissioner of the Alabama Medicaid Agency to exempt the provider from the certification requirement of the Elderly and Disabled Waiver based on the OA’s review of the provider. Once the exemption is granted, the contract may be signed.
After the contract is finalized, the provider is mailed a confirmation letter

State: Effective Date

Alabama October 1, 2008

Appendix C-2: 6

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix C-3: Waiver Services Specifications

For each service listed in Appendix C-1, provide the information specified below. State laws, regulations and policies referenced in the specification are readily available to CMS upon request through the Medicaid agency or the operating agency (if applicable).

Service Specification

Service Title:

Case Management

Complete this part for a renewal application or a new waiver that replaces an existing waiver. Select one:

X Service is included in approved waiver. There is no change in service specifications.

 Service is included in approved waiver. The service specifications have been modified.

 Service is not included in the approved waiver.

Service Definition (Scope):
Case Management is an activity which assists individuals in gaining access to appropriate, needed, and desired waiver and other State Plan services, as well as needed medical, social, educational, and other appropriate services, regardless of the funding source for the services to which access is gained. Case Management Services may be used to locate, coordinate, and monitor necessary and appropriate services.

Case Managers are responsible for ongoing monitoring of the provision of waiver and non-waiver services included in the individual’s Plan of Care. Case Management is a waiver service available to all Elderly and Disabled (E/D) Waiver clients

Specify applicable (if any) limits on the amount, frequency, or duration of this service:
The unit of service will be fifteen minutes (15) beginning on the date that the client is determined eligible for E/D Waiver Services. Case Management Service provided prior to waiver approval should be considered administrative. At least one face to face visit is required monthly in addition to any other Case Management activities.

Provider Category(s) (check one or both):

Provider Specifications

 Individual. List types:

X Agency. List the types of agencies:

Employed by ADPH or ADSS contract with the Area Agency on Aging to provide Case Management.

Specify whether the service may be provided by (check each that applies):

 Legally Responsible Person

Relative/Legal Guardian

Provider Qualifications (provide the following information for each type of provider):

Provider Type:

License (specify) Certificate (specify)

Other Standard (specify)

Social Worker Social Work Registered Nurse State of Alabama

Earned the degree from an accredited School of Social Work
License must be current

State: Effective Date

Alabama October 1, 2008

Appendix C-3: 1

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HCBS Waiver Application Version 3.3 – Post October 2005

Bachelor of Arts or Bachelor of Science Degree

None

Verification of Provider Qualifications

None

Preferably in a human services related field from an accredited college or university

Provider Type:

Entity Responsible for Verification:

Frequency of Verification

Social Worker

ADPH, and ADSS

Verified initially,

and bi-annually thereafter

Registered Nurse

State Board of Nursing

Verified Annually

ADPH and ADSS

Verified Bi-annually

Bachelor of Arts or Bachelor of Science Degree

ADPH and ADSS

Verified initially

Service Delivery Method

Service Delivery Method N/A Participant-directed as specified in Appendix E (check each that applies):

 Provider managed

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

Service Specification

Service Title:

Personal Care

Complete this part for a renewal application or a new waiver that replaces an existing waiver. Select one:

X Service is included in approved waiver. There is no change in service specifications.

 Service is included in approved waiver. The service specifications have been modified.

 Service is not included in the approved waiver.

Service Definition (Scope):
Personal Care services provides assistance with eating, bathing, dressing, caring for personal hygiene, toileting, transferring from bed to chair, ambulation, maintaining continence and other activities of daily living (ADLs). It may include assistance with independent activities of daily living (IADLs) such as meal preparation, using the telephone, and household chores such as, laundry, bed-making, dusting and vacuuming, which are incidental to the assistance provided with ADLs or essential to the health and welfare of the client rather than the client’s family. Personal Care Services is not an entitlement. It is based on the needs of individual client as reflected in the Plan of Care.

Specify applicable (if any) limits on the amount, frequency, or duration of this service:
The unit of service will be fifteen (15) minutes of direct PC Service provided in the client’s residence. The number of units and services provided to each client is dependent upon the individual client’s needs as set forth in the client’s plan of care. The amount of time authorized does not include the Personal Care Worker’s transportation time to or from the client’s residence, or the worker break or mealtime.

Provider Category(s) (check one or both):

Provider Specifications

 Individual. List types:

X Agency. List the types of agencies:

Medicare/Medicaid certified Home Health Agencies or other home health care agencies approved by the Commissioner of the Medicaid Agency.

Specify whether the service may be NO Legally Responsible

provided by (check each that

Person

applies):

X Relative/Legal Guardian

Provider Qualifications (provide the following information for each type of provider):

Provider Type:

License (specify) Certificate (specify)

Other Standard (specify)

Personal Care Worker

None

None

Employed by a Medicare/Medicaid Certified Home Health Agency or other health care agencies approved by the Commissioner of the Medicaid Agency. The Personal Care Worker is required to receive initial training/orientation before providing services. A minimum of twelve (12) hours of relevant in-service training

State: Effective Date

Alabama October 1, 2008

Appendix C-3: 3

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
per calendar year is also required.

Registered Nurse or Licensed Practical Nurse (in supervisory capacity)

Current license from the State of Alabama.

None

Employed by a Medicare/Medicaid Certified Home Health Agency or other health care agencies approved by the Commissioner of the Medicaid Agency.

Verification of Provider Qualifications

Provider Type:

Entity Responsible for Verification:

Frequency of Verification

Home Health Agency ADPH ADSS

Verified initially and bi-annually thereafter.

Nursing Services

ADPH, ADSS

Verified initially and bi-annually thereafter.

Service Delivery Method

Service Delivery Method N/A Participant-directed as specified in Appendix E (check each that applies):

 Provider managed

State: Effective Date

Alabama October 1, 2008

Appendix C-3: 4

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

Service Specification

Service Title:

Homemaker

Complete this part for a renewal application or a new waiver that replaces an existing waiver. Select one:

X Service is included in approved waiver. There is no change in service specifications.

 Service is included in approved waiver. The service specifications have been modified.

 Service is not included in the approved waiver.

Service Definition (Scope):
Homemaker Service provides assistance with general household activities such as meal preparation and routine house cleaning and tasks, such as changing bed linens, doing laundry, dusting vacuuming, mopping, sweeping, cleaning kitchen appliances and counters, removing trash, cleaning bathrooms, and washing dishes. The service may also include assistance with such activities as obtaining groceries and prescription medications, paying bills, and writing and mailing.

Homemaker Services is not an entitlement. It is based on the needs of individual client as reflected in the Plan of Care.

Specify applicable (if any) limits on the amount, frequency, or duration of this service:
The unit of service will be fifteen (15) minutes of direct Homemaker Service provided in the client’s residence (except when shopping, laundry services, etc. must be done off-site). The number of units and services provided to each client is dependent upon the individual client’s needs as set forth in the Plan of Care. The amount of time authorized does not include the Homemaker’s transportation time to or from the client’s residence, or the Homemaker’s break or mealtime.

Provider Category(s) (check one or both):

Provider Specifications

 Individual. List types:

X Agency. List the types of agencies:

Contracted DSP Agencies or other home health care agencies approved by the Commissioner of the Medicaid Agency.

Specify whether the service may be provided by (check each that applies):

 Legally Responsible Person

X Relative/Legal Guardian

Provider Qualifications (provide the following information for each type of provider):

Provider Type:

License (specify) Certificate (specify)

Other Standard (specify)

Homemaker

None

None

Be able to read and write; a valid picture ID; complete a probationary period determined by the employer with continued employment contingent on completion of a Homemaker initial training/orientation program. This training must be completed prior to providing services and at least six (6) hours completed per calendar year. The

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
workers must get a tuberculin skin test annually.
Verification of Provider Qualifications

Provider Type: Homemaker
Homemaker Supervisor

Entity Responsible for Verification: ADPH, ADSS
ADPH, ADSS

Frequency of Verification
Verified initially and bi-annually thereafter
Verified initially and bi-annually thereafter

Service Delivery Method (check each that applies):

Service Delivery Method N/A Participant-directed as specified in Appendix E

 Provider managed

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

Service Specification

Service Title:

Respite Care

Complete this part for a renewal application or a new waiver that replaces an existing waiver. Select one:

X Service is included in approved waiver. There is no change in service specifications.

 Service is included in approved waiver. The service specifications have been modified.

 Service is not included in the approved waiver.

Service Definition (Scope):
Respite Care is provided to individuals unable to care for themselves and is furnished on a short-term basis because of the absence of, or need for relief of those persons normally providing the care.

Skilled or Unskilled Respite is provided for the benefit of the client and to meet client needs in the absence of the primary caregiver(s) rather than to meet the needs of others in the client’s household.

Respite Care is not an entitlement. It is based on the needs of the individual client as reflected in the Plan of Care.

Specify applicable (if any) limits on the amount, frequency, or duration of this service: The unit of service is fifteen (15) minutes of direct Respite Care provided in the client’s residence. The amount of time does not include the Respite Care Worker’s (RCW) transportation time to or from the client’s residence or the Respite Care Worker's break or mealtime.
The number of units and services provided to each client is dependent upon the individual client’s need as set forth in the client’s POC established by the Case Manager. In-home Respite Service may be provided for a period not to exceed 2880 units per waiver year (October 1-September 30) in accordance with the provider contracting period. This limitation applies to skilled and unskilled respite or a combination.

Provider Category(s) (check one or both):

Provider Specifications

 Individual. List types:

X Agency. List the types of agencies:

Contracted certified Home Health Agencies or other home health care agencies approved by the Commissioner of the Medicaid Agency.

Specify whether the service may be provided by (check each that applies):

 Legally Responsible Person

X Relative/Legal Guardian

Provider Qualifications (provide the following information for each type of provider):

Provider Type:

License (specify) Certificate (specify)

Other Standard (specify)

Registered

State of Alabama None

A RN currently licensed by the Alabama

State: Effective Date

Alabama October 1, 2008

Appendix C-3: 7

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Nurse(RN) (Skilled Respite)
Licensed Practical Nurse((LPN) (Skilled Respite)
Respite Care Worker (Unskilled Respite)

Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

State of Alabama

None

None

This service will be performed by a Registered Nurse (RN) with an active license from the Alabama State Board of Nursing and have at least two (2) years experience as a RN in public health, hospital, home health, or long term care nursing and submit to a program for the testing, prevention, and control of tuberculosis annually.
.
This service will be performed by a Licensed Practical Nurse with an active license from the Alabama State Board of Nursing and have at least two (2) years experience as a LPN in public health, hospital, home health, or long term care nursing and submit to a program for the testing, prevention, and control of tuberculosis annually. The LPN must work under the supervision of an RN.
This service will be performed by non licensed personnel who possess the ability to read and write, as well as the ability to work independently on an established schedule and can follow the plan of care with minimal supervision. Unskilled Respite Workers must meet the same orientation and in-service requirements as a Personal Care Worker and submit to a program for testing, prevention and control of tuberculosis.

Verification of Provider Qualifications

Provider Type:

Entity Responsible for Verification:

Frequency of Verification

Registered Nurse

ADPH, ADSS

Verified initially and bi-annually thereafter

Licensed Practical Nurse

ADPH, ADSS

Verified initially and bi-annually thereafter

Respite Care Worker ADPH, ADSS

Verified initially and bi-annually thereafter

Service Delivery Method

Service Delivery Method N/A Participant-directed as specified in Appendix E (check each that applies):

 Provider managed

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

Service Specification

Service Title:

Adult Day Health

Complete this part for a renewal application or a new waiver that replaces an existing waiver. Select one:

 Service is included in approved waiver. There is no change in service specifications.

X Service is included in approved waiver. The service specifications have been modified.

 Service is not included in the approved waiver.

Service Definition (Scope):
Adult Day Health (ADH) is a service that provides Elderly and Disabled Waiver (EDW) clients with a variety of health, social, recreational, and support activities in a supervised group setting for four or more hours per day on a regular basis.

Transportation between the individual’s place of residence and the adult day health center will be provided as a component part of Adult Day Health Service. The cost of this transportation is included in the rate paid to providers of Adult Day Health Service.

Adult Day Health is not an entitlement. It is based on the needs of the individual client.

Specify applicable (if any) limits on the amount, frequency, or duration of this service:
The unit of service will be a client day of Adult Day Health Service consisting of four (4) or more hours at the center. The four (4) hour minimum for a client day does not include transportation time, lunch breaks or free time. The number of units authorized per visit must be stipulated on the Plan of Care and the Service Authorization Form.

Provider Category(s) (check one or both):

Provider Specifications

 Individual. List types:

X Agency. List the types of agencies:

Adult Day Health Center

Specify whether the service may be provided by (check each that applies):

 Legally Responsible Person

 Relative/Legal Guardian

Provider Qualifications (provide the following information for each type of provider):

Provider Type:

License (specify) Certificate (specify)

Other Standard (specify)

Director of Center
Registered Nurse or Licensed Practical Nurse

None
Licensed by the Alabama Board of Nursing

None None

Have a high school diploma or equivalent; test for tuberculosis annually; and
At least two (2) years experience as a Registered Nurse or Licensed Practical Nurse in public health, hospital or longterm care nursing. Must submit to a program for the testing, prevention, and

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005
control of tuberculosis annually.

Adult Day Care Alabama Driver’s

Worker

License

None

Have a valid Alabama driver's license if transporting Adult Day Health clients; possess a valid, picture identification; all Adult Day Health Workers must have at least six (6) hours in-service training per calendar year; and submit to a program for the testing, prevention, and control of tuberculosis annually.

Verification of Provider Qualifications

Provider Type:

Entity Responsible for Verification:

Frequency of Verification

Director of Center

ADPH, ADSS

Verified as Necessary

Registered Nurse or Licensed Practical Nurse

ADPH, ADSS

Verified as Necessary

Adult Day Care Worker

ADPH, ADSS

Verified as Necessary

Service Delivery Method

Service Delivery Method N/A Participant-directed as specified in Appendix E (check each that applies):

 Provider managed

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

Service Specification

Service Title:

Companion Service

Complete this part for a renewal application or a new waiver that replaces an existing waiver. Select one:

X Service is included in approved waiver. There is no change in service specifications.

 Service is included in approved waiver. The service specifications have been modified.

 Service is not included in the approved waiver.

Service Definition (Scope):
Companion Service is non-medical assistance, observation, supervision and socialization, provided to a functionally impaired adult. Companions may provide limited assistance or supervise the individual with such tasks as activities of daily living, meal preparation, laundry and shopping, but do not perform these activities as discrete services. The Companion may also perform housekeeping tasks which are incidental to the care and supervision of the individual. Companion Service is provided in accordance with a therapeutic goal as stated in the Plan of Care, and is not purely diversional in nature. The therapeutic goal may be related to client safety and/or toward promoting client independence or toward promoting the mental or emotional health of the client.

Companion Service is not an entitlement. It is provided based on the needs of the individual client as reflected in the Plan of Care.

Specify applicable (if any) limits on the amount, frequency, or duration of this service:
The unit of service will be fifteen (15) minutes of direct Companion Service provided to the client. The number of units per visit must be indicated on the Plan of Care and the Service Authorization Form. The maximum number of units that can be authorized may not exceed four (4) hours daily. The amount of time authorized does not include the Companion Worker’s transportation time to or from the client’s home, or the Companion Worker's break or mealtime. A unit of service will be 15 minutes of direct Companion Service provided to the client.

Provider Category(s) (check one or both):

Provider Specifications

 Individual. List types:

X Agency. List the types of agencies:

Contracted DSP, certified Home Health Agencies or other home health care agencies approved by the Commissioner of the Medicaid Agency.

Specify whether the service may be provided by (check each that applies):

 Legally Responsible Person

X Relative/Legal Guardian

Provider Qualifications (provide the following information for each type of provider):

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

Provider Type:

License (specify) Certificate (specify)

Other Standard (specify)

Companion Worker

None

None

Complete a probationary period determined by the employer with continued employment contingent on completion of the initial training/orientation training program. All Companion Workers must have at least six (6) hours in-service training per calendar year; and submit to a program for the testing, prevention, and control of tuberculosis annually.

Verification of Provider Qualifications

Provider Type:
Companion Worker Supervisor
Companion Worker

Entity Responsible for Verification: ADPH, ADSS
ADPH, ADSS

Frequency of Verification
Verified initially and bi-annually thereafter
Verified initially and bi-annually thereafter

Service Delivery Method (check each that applies):

Service Delivery Method N/A Participant-directed as specified in Appendix E

 Provider managed

State: Effective Date

Alabama October 1, 2008

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

Service Specification

Service Title:

Home Delivered Meals

Complete this part for a renewal application or a new waiver that replaces an existing waiver. Select one:

X Service is included in approved waiver. There is no change in service specifications.

 Service is included in approved waiver. The service specifications have been modified.

 Service is not included in the approved waiver.

Service Definition (Scope):
Home Delivered Meals are provided to an eligible individual age 21 or older who is unable to meet his or her nutritional needs. It must be determined that the nutritional needs of the individual can be addressed by the provision of home-delivered meals.

When specified in the Plan of Care, this service may include seven (7) or fourteen (14) frozen meals per week. A client may be authorized to receive seven (7) frozen meals plus seven (7) breakfast meals in lieu of fourteen (14) frozen meals. In addition, the service may include the provision of two (2) or more shelf-stable meals (not to exceed 6 meals per 6-month period) to meet emergency nutritional needs when authorized on the client's Plan of Care.

During times of the year when the state is at an increased risk of disaster from either hurricanes, tornados or ice/snow conditions, the meals vendor will be required to maintain at a minimum, a sufficient inventory to operate all frozen meals delivery routes for two days. In the event of an expected storm or disaster, the Meals Coordinator will authorize implementation of a Medicaid – approved Disaster Meal Services Plan. This plan will provide frozen meal alternates in anticipation of possible power outages.

Specify applicable (if any) limits on the amount, frequency, or duration of this service:

Home Delivered Meals are not an entitlement. Provision is based on the needs of the individual client and the unit(s) of service needed will be specified in the Plan of Care. The unit of service is one (1) package of seven meals. Each package of meals consist of (7) frozen meals or seven (7) breakfast meals. At least one unit of frozen meals may be delivered once a week to a client’s residence. Additionally, a second package of seven (7) frozen meals or seven (7) breakfast meals can be provided as indicated on the Plan of Care. For shelf-stable meals, the unit of service is two (2) meals, packaged as individual meals and delivered to the client’s residence.

Provider Specifications

Provider

 Individual. List types:

Category(s)

(check one or both):

X Agency. List the types of agencies: Contracted Vendor

Specify whether the service may be  Legally Responsible Person  Relative/Legal Guardian provided by (check each that applies):
Provider Qualifications (provide the following information for each type of provider):

State: Effective Date

Alabama October 1, 2008

Appendix C-3: 13

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Appendix C: Participant Services
HCBS Waiver Application Version 3.3 – Post October 2005

Provider Type:

License (specify) Certificate (specify)

Other Standard (specify)

Registered Dietician
Driver of delivery truck

State of Alabama valid state license
Valid driver’s license

None

Current dietician registration
Should receive initial and on-going training in the proper service, handling, and delivery of food.

Verification of Provider Qualifications

Provider Type:

Entity Responsible for Verification:

Home Delivered Meals State of Alabama Providers

Frequency of Verification
Verified initially and monitored on an on-going basis.

Service Delivery Method
Service Delivery Method  Participant-directed as specified in Appendix E (check each that applies):

 Provider managed

State: Effective Date

Alabama October 1, 2008

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HCBS Waiver Application Version 3.3 – Post October 2005
Appendix C-4: Additional Limits on Amount of Waiver Services
Additional Limits on Amount of Waiver Services. Indicate whether the waiver employs any of the following additional limits on the amount of waiver services (check each that applies). When a limit is employed, specify: (a) the waiver services to which the limit applies; (b) the basis of the limit, including its basis in historical expenditure/utilization patterns and, as applicable, the processes and methodologies that are used to determine the amount of the limit to which a participant’s services are subject; (c) how the limit will be adjusted over the course of the waiver period; (d) provisions for adjusting or making exceptions to the limit based on participant health and welfare needs or other factors specified by the state; (e) the safeguards that are in effect when the amount of the limit is insufficient to meet a participant’s needs; and, (f) how participants are notified of the amount of the limit.
 Limit(s) on Set(s) of Services. There is a limit on the maximum dollar amount of waiver services that is authorized for one or more sets of services offered under the waiver. Furnish the information specified above.
 Prospective Individual Budget Amount. There is a limit on the maximum dollar amount of waiver services authorized for each specific participant. Furnish the information specified above.
 Budget Limits by Level of Support. Based on an assessment process and/or other factors, participants are assigned to funding levels that are limits on the maximum dollar amount of waiver services. Furnish the information specified above.
 Other Type of Limit. The State employs another type of limit. Describe the limit and furnish the information specified above.
X Not applicable. The State does not impose a limit on the amount of waiver services except as provided in Appendix C-3.

State: Effective Date

Alabama October 1, 2008

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Appendix D: Participant-Centered Planning and Service Delivery
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix D: Participant-Centered Planning and Service Delivery
Appendix D-1: Service Plan Development
State Participant-Centered Service Plan Title: Plan of Care
a. Responsibility for Service Plan Development. Per 42 CFR §441.301(b)(2), specify who is responsible for the development of the service plan and the qualifications of these individuals (check each that applies):
Registered nurse, licensed to practice in the State  Licensed practical or vocational nurse, acting within the scope of practice under State law
Licensed physician (M.D. or D.O) X Case Manager (qualifications specified in Appendix C-3)  Case Manager (qualifications not specified in Appendix C-3). Specify qualifications:
Social Worker. Specify qualifications: Bachelor of Arts degree or a Bachelor of Science degree from an accredited School of Social Work
Other (specify the individuals and their qualifications): Case Managers with a Bachelor of Arts or a Bachelor of Science degree preferably in a human related field.
b. Service Plan Development Safeguards. Select one:  Entities and/or individuals that have responsibility for service plan development may not provide other direct waiver services to the participant. X Entities and/or individuals that have responsibility for service plan development may provide other direct waiver services to the participant. The State has established the following safeguards to ensure that service plan development is conducted in the best interests of the participant. Specify: Services and supports to clients are monitored directly by case managers on a monthly basis or as needed and peer reviews are done on an annual basis by ADSS. In addition, the Operating Agencies perform a review of the case managers’ records at least every two months. The Operating Agencies also conduct random home visits to monitor service plan implementation and assess the health and welfare of clients. Annual desk reviews performed by the AMA LTC Waiver Quality Assurance Unit may include case management personnel files, client files, and visits to participants in their homes. The AMA LTC Waiver QA Unit will also conduct retrospective reviews.

State: Effective Date

Alabama October 1, 2008

Appendix D-1: 1

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Appendix D: Participant-Centered Planning and Service Delivery
HCBS Waiver Application Version 3.3 – Post October 2005
c. Supporting the Participant in Service Plan Development. Specify: (a) the supports and information that are made available to the participant (and/or family or legal representative, as appropriate) to direct and be actively engaged in the service plan development process and (b) the participant’s authority to determine who is included in the process.
The case manager, the client, family member or legal representative/other person designated by the client, meet to develop the plan of care. During the meeting, all parties may discuss the needs of the client; informal supports provided by the family and/or other community services to identify the gaps in support and are informed by the case manager of waiver services which may fill the gaps. Replacement services for these gaps will be addressed by the case manager of waiver services at this time. The participant decides which personal representative(s) will be involved in development of the plan of care.

State: Effective Date

Alabama October 1, 2008

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Appendix D: Participant-Centered Planning and Service Delivery
HCBS Waiver Application Version 3.3 – Post October 2005
d. Service Plan Development Process In four pages or less, describe the process that is used to develop the participant-centered service plan, including: (a) who develops the plan, who participates in the process, and the timing of the plan; (b) the types of assessments that are conducted to support the service plan development process, including securing information about participant needs, preferences and goals, and health status; (c) how the participant is informed of the services that are available under the waiver; (d) how the plan development process ensures that the service plan addresses participant goals, needs (including health care needs), and preferences; (e) how waiver and other services are coordinated; (f) how the plan development process provides for the assignment of responsibilities to implement and monitor the plan; and, (g) how and when the plan is updated, including when the participant’s needs change. State laws, regulations, and policies cited that affect the service plan development process are available to CMS upon request through the Medicaid agency or the operating agency (if applicable):
The plan of care is developed as a part of the initial assessment for all applicants for available waiver services and revised periodically as the needs of the recipient change.
The plan of care is monitored monthly during the case manager’s face-to-face visit, at redetermination annually and more frequently if the client’s condition warrants a modification of the plan of care. When a plan of care is revised the client/and or their family member or legal representative must be issued a written notice at least 10 days in advance of any adverse actions that may result from the change.
When a participant is approved for EDW services and the POC is implemented or when changes are made to the plan of care, the case manager is responsible for contacting the Direct Services Provider (DSP) to discuss and coordinate the provision of services included in the plan of care. The case manager will seek a verbal approval or refusal to provide waiver services from the DSP. If the DSP agrees to provide services the case manager completes a service authorization form and sends this to the DSP along with a copy of the waiver application. The case manager must ensure that services requested on the service authorization form include only those services authorized in the POC. The DSP is also forwarded information about the specific needs and desires of the client as well as the specific task to be performed. When the DSP identifies additional duties that may be beneficial to the client’s care, but are not specified on the POC, the DSP will contact the case manager to discuss authorization of additional services. Case managers are responsible for review and modification to the POC.
e. Risk Assessment and Mitigation. Specify how potential risks to the participant are assessed during the service plan development process and how strategies to mitigate risk are incorporated into the service plan, subject to participant needs and preferences. In addition, describe how the service plan development process addresses backup plans and the arrangements that are used for backup.
Potential risks to the participant’s safety are addressed in the development of the plan of care. Plans are individualized and should take into consideration the participant’s rights, values and preferences as related to any potential risks to health and safety. During the monthly face-to-face case management visit, the participant’s health and welfare is reviewed, the plan of care adjusted accordingly and evaluated for appropriateness.

State: Effective Date

Alabama October 1, 2008

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Appendix D: Participant-Centered Planning and Service Delivery
HCBS Waiver Application Version 3.3 – Post October 2005
During the monthly visit the case manager assesses the home to ensure the participant is safe, questions the participant regarding satisfaction with services and providers, as well as makes observations to ensure the health needs are met, and notes any changes that may require modifications to the POC. The case manager also documents, addresses and monitors any health and safety concerns.
When the participant is considered “highly” at risk the case manager may visit more often to monitor the situation to ensure the participant’s health and safety is not jeopardized. When a risk has been reported or identified, a home visit to monitor the health and safety of the client is required as soon as it can be arranged.
Additionally, DSP staff must visit the participant’s home as ordered in the POC. DSPs are trained and expected to observe and report any concerns about a participant’s health and welfare to the case manager and in writing to supervision of the DSP agency.
Direct Service Providers have policy/procedures established for serving clients in the event the assigned worker is unable to provide the service. As part of this back-up protocol the DSP’s are notified of high risk clients so that any participant designated by the case manager as at risk should be given first priority when service visits must be temporarily prioritized and/or reduced by the DSP.

f. Informed Choice of Providers. Describe how participants are assisted in obtaining information about and selecting from among qualified providers of the waiver services in the service plan.
As the plan of care is developed the case manager discusses and documents the client’s freedom to choose a direct service provider from the list of approved contract providers that are qualified, available and willing to provide the services. The case manager present a list of all qualified providers listed in alphabetical order for all waiver services available in the area. At the initial visit, a written choice should be made for each waiver service that the client desires to access.
g. Process for Making Service Plan Subject to the Approval of the Medicaid Agency. Describe the process by which the service plan is made subject to the approval of the Medicaid agency in accordance with 42 CFR §441.301(b)(1)(i):
The AMA will conduct a random sample of all plans of care for persons receiving waiver services. The LTC Waiver Quality Assurance Unit reviews a sample of plans of care and related documents annually for providers. This assures that the clients that are receiving services under the waiver have a plan of care in effect for the period of time that the services were provided. This review ensures that the need for services that were provided was documented in the plan, and that all service needs were addressed in the plan of care prior to delivery.
A copy of the plan of care is maintained by the case managers, service provider and in the client’s home.

State: Effective Date

Alabama October 1, 2008

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Appendix D: Participant-Centered Planning and Service Delivery
HCBS Waiver Application Version 3.3 – Post October 2005
h. Service Plan Review and Update. The service plan is subject to at least annual periodic review and update to assess the appropriateness and adequacy of the services as participant needs change. Specify the minimum schedule for the review and update of the service plan:
 Every three months or more frequently when necessary  Every six months or more frequently when necessary X Every twelve months or more frequently when necessary  Other schedule (specify):

State: Effective Date

Alabama October 1, 2008

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Appendix D: Participant-Centered Planning and Service Delivery
HCBS Waiver Application Version 3.3 – Post October 2005
i. Maintenance of Service Plan Forms. Written copies or electronic facsimiles of service plans are maintained for a minimum period of 3 years as required by 45 CFR §74.53. Service plans are maintained by the following (check each that applies):
 Medicaid agency Operating agency
X Case manager Other (specify): Direct Service Provider and the client’s home

State: Effective Date

Alabama October 1, 2008

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Appendix D: Participant-Centered Planning and Service Delivery
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix D-2: Service Plan Implementation and Monitoring
a. Service Plan Implementation and Monitoring. Specify: (a) the entity (entities) responsible for monitoring the implementation of the service plan and participant health and welfare; (b) the monitoring and follow-up method(s) that are used; and, (c) the frequency with which monitoring is performed.
The plan of care is monitored and reassessed by the OA case manager at least once a month during the face to face visit. In addition, the Operating Agencies perform a review of the case managers’ records at least every two months. The Operating Agencies also conduct random home visits to monitor service plan implementation and assess the health and welfare of clients.
The client and or responsible person is encouraged to notify the case manager if services are not being provided as planned and if the client’s needs or situation changes. The case manager identifies and promptly carries out needed changes in coordination with the client and or responsible person and other care providers. The plan of care is revised as needed to adapt to a client’s changing needs.
Ongoing reviews, completed by the AMA LTC Waiver Quality Assurance Unit staff, monitor case managers’ and clients’ records for service implementation and adherence to the plan of care. These reviews also ensure that the plans of care are reviewed at least monthly during a face to face visit. During the review, incidents and complaints are reviewed to assure that they are addressed and resolved appropriately. LTC Waiver Quality Assurance staff may also visit clients in their homes to assure that health and safety standards are being met.
b. Monitoring Safeguards. Select one:
 Entities and/or individuals that have responsibility to monitor service plan implementation and participant health and welfare may not provide other direct waiver services to the participant.
X Entities and/or individuals that have responsibility to monitor service plan implementation and participant health and welfare may provide other direct waiver services to the participant. The State has established the following safeguards to ensure that monitoring is conducted in the best interests of the participant. Specify: Services and supports to clients are monitored directly by case managers on a monthly basis or as needed. In addition, the Operating Agencies perform a review of the case managers’ records at least every two months. The Operating Agencies also conduct random home visits to monitor service plan implementation and assess the health and welfare of clients.
Ongoing reviews performed by the AMA LTC Waiver Quality Assurance Unit may include case management personnel files, client files, and visits to participants in their homes. A retrospective review will also be conducted by the AMA LTC Waiver Quality Assurance Unit.

State: Effective Date

Alabama October 1, 2008

Appendix D-2: 1

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix E: Participant Direction of Services
[NOTE: Complete Appendix E only when the waiver provides for one or both of the participant direction opportunities specified below.] Applicability (select one):
 Yes. This waiver provides participant direction opportunities. Complete the remainder of the Appendix.
X No. This waiver does not provide participant direction opportunities. Do not complete the remainder of the Appendix.
CMS urges states to afford all waiver participants the opportunity to direct their services. Participant direction of services includes the participant exercising decision-making authority over workers who provide services, a participant-managed budget or both. CMS will confer the Independence Plus designation when the waiver evidences a strong commitment to participant direction. Indicate whether Independence Plus designation is requested (select one):
 Yes. The State requests that this waiver be considered for Independence Plus designation. X No. Independence Plus designation is not requested.
Appendix E-1: Overview
a. Description of Participant Direction. In no more than two pages, provide an overview of the opportunities for participant direction in the waiver, including: (a) the nature of the opportunities afforded to participants; (b) how participants may take advantage of these opportunities; (c) the entities that support individuals who direct their services and the supports that they provide; and, (d) other relevant information about the waiver’s approach to participant direction.
b. Participant Direction Opportunities. Specify the participant direction opportunities that are available in the waiver. Select one:
 Participant – Employer Authority. As specified in Appendix E-2, Item a, the participant (or the participant’s representative) has decision-making authority over workers who provide waiver services. The participant may function as the common law employer or the coemployer of workers. Supports and protections are available for participants who exercise this authority.
 Participant – Budget Authority. As specified in Appendix E-2, Item b, the participant (or the participant’s representative) has decision-making authority over a budget for waiver services. Supports and protections are available for participants who have authority over a budget.
 Both Authorities. The waiver provides for both participant direction opportunities as specified in Appendix E-2. Supports and protections are available for participants who exercise these authorities.

State: Effective Date

Alabama October 1, 2008

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
c. Availability of Participant Direction by Type of Living Arrangement. Check each that applies:  Participant direction opportunities are available to participants who live in their own private residence or the home of a family member.  Participant direction opportunities are available to individuals who reside in other living arrangements where services (regardless of funding source) are furnished to fewer than four persons unrelated to the proprietor.  The participant direction opportunities are available to persons in the following other living arrangements (specify):
d. Election of Participant Direction. Election of participant direction is subject to the following policy (select one):  Waiver is designed to support only individuals who want to direct their services.  The waiver is designed to afford every participant (or the participant’s representative) the opportunity to elect to direct waiver services. Alternate service delivery methods are available for participants who decide not to direct their services.  The waiver is designed to offer participants (or their representatives) the opportunity to direct some or all of their services, subject to the following criteria specified by the State. Alternate service delivery methods are available for participants who decide not to direct their services or do not meet the criteria. Specify the criteria:
e. Information Furnished to Participant. Specify: (a) the information about participant direction opportunities (e.g., the benefits of participant direction, participant responsibilities, and potential liabilities) that is provided to the participant (or the participant’s representative) to inform decisionmaking concerning the election of participant direction; (b) the entity or entities responsible for furnishing this information; and, (c) how and when this information is provided on a timely basis.
f. Participant Direction by a Representative. Specify the State’s policy concerning the direction of waiver services by a representative (select one):
 The State does not provide for the direction of waiver services by a representative.  The State provides for the direction of waiver services by a representative. Specify the
representatives who may direct waiver services: (check each that applies):  Waiver services may be directed by a legal representative of the participant.  Waiver services may be directed by a non-legal representative freely chosen by an adult
participant. Specify the policies that apply regarding the direction of waiver services by participant-appointed representatives, including safeguards to ensure that the representative functions in the best interest of the participant:

State: Effective Date

Alabama October 1, 2008

Appendix E-1: 2

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
g. Participant-Directed Services. Specify the participant direction opportunity (or opportunities) available for each waiver service that is specified as participant-directed in Appendix C-3. (Check the opportunity or opportunities available for each service):

Participant-Directed Waiver Service

Employer Authority
     

Budget Authority
     

h. Financial Management Services. Except in certain circumstances, financial management services are mandatory and integral to participant direction. A governmental entity and/or another third-party entity must perform necessary financial transactions on behalf of the waiver participant. Select one:

 Yes. Financial Management Services are furnished through a third party entity. (Complete item E-1-i). Specify whether governmental and/or private entities furnish these services. Check each that applies:
 Governmental entities
 Private entities
 No. Financial Management Services are not furnished. Standard Medicaid payment mechanisms are used. Do not complete Item E-1-i.

i. Provision of Financial Management Services. Financial management services (FMS) may be furnished as a waiver service or as an administrative activity. Select one:
 FMS are covered as the waiver service entitled
as specified in Appendix C-3.  FMS are provided as an administrative activity. Provide the following information:
i. Types of Entities: Specify the types of entities that furnish FMS and the method of procuring these services:

ii. Payment for FMS. Specify how FMS entities are compensated for the administrative activities that they perform:

iii. Scope of FMS. Specify the scope of the supports that FMS entities provide (check each that applies):
Supports furnished when the participant is the employer of direct support workers:  Assist participant in verifying support worker citizenship status  Collect and process timesheets of support workers  Process payroll, withholding, filing and payment of applicable federal, state and
local employment-related taxes and insurance

State: Effective Date

Alabama October 1, 2008

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
 Other (specify):
Supports furnished when the participant exercises budget authority:  Maintain a separate account for each participant’s participant-directed budget  Track and report participant funds, disbursements and the balance of participant
funds  Process and pay invoices for goods and services approved in the service plan  Provide participant with periodic reports of expenditures and the status of the
participant-directed budget  Other services and supports (specify):
Additional functions/activities:  Execute and hold Medicaid provider agreements as authorized under a written
agreement with the Medicaid agency  Receive and disburse funds for the payment of participant-directed services under
an agreement with the Medicaid agency or operating agency  Provide other entities specified by the State with periodic reports of expenditures
and the status of the participant-directed budget  Other (specify):
iv. Oversight of FMS Entities. Specify the methods that are employed to: (a) monitor and assess the performance of FMS entities, including ensuring the integrity of the financial transactions that they perform; (b) the entity (or entities) responsible for this monitoring; and, (c) how frequently performance is assessed.

State: Effective Date

Alabama October 1, 2008

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
j. Information and Assistance in Support of Participant Direction. In addition to financial management services, participant direction is facilitated when information and assistance are available to support participants in managing their services. These supports may be furnished by one or more entities, provided that there is no duplication. Specify the payment authority (or authorities) under which these supports are furnished and, where required, provide the additional information requested (check each that applies):
 Case Management Activity. Information and assistance in support of participant direction are furnished as an element of Medicaid case management services. Specify in detail the information and assistance that are furnished through case management for each participant direction opportunity under the waiver:
 Waiver Service Coverage. Information and assistance in support of participant direction are provided through the waiver service coverage (s) specified in Appendix C-3 entitled:
 Administrative Activity. Information and assistance in support of participant direction are furnished as an administrative activity. Specify: (a) the types of entities that furnish these supports; (b) how the supports are procured and compensated; (c) describe in detail the supports that are furnished for each participant direction opportunity under the waiver; (d) the methods and frequency of assessing the performance of the entities that furnish these supports; and, (e) the entity or entities responsible for assessing performance:
k. Independent Advocacy (select one).  Yes. Independent advocacy is available to participants who direct their services. Describe the nature of this independent advocacy and how participants may access this advocacy:
 No. Arrangements have not been made for independent advocacy. l. Voluntary Termination of Participant Direction. Describe how the State accommodates a participant
who voluntarily terminates participant direction in order to receive services through an alternate service delivery method, including how the State assures continuity of services and participant health and welfare during the transition from participant direction:
m. Involuntary Termination of Participant Direction. Specify the circumstances when the State will involuntarily terminate the use of participant direction and require the participant to receive providermanaged services instead, including how continuity of services and participant health and welfare is assured during the transition.

State: Effective Date

Alabama October 1, 2008

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
n. Goals for Participant Direction. In the following table, provide the State’s goals for each year that the waiver is in effect for the unduplicated number of waiver participants who are expected to elect each applicable participant direction opportunity. Annually, the State will report to CMS the number of participants who elect to direct their waiver services.

Waiver Year Year 1

Table E-1-n
Employer Authority Only Number of Participants

Budget Authority Only or Budget Authority in
Combination with Employer Authority
Number of Participants

Year 2

Year 3

Year 4 (renewal only)

Year 5 (renewal only)

State: Effective Date

Alabama October 1, 2008

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix E-2: Opportunities for Participant-Direction
a. Participant – Employer Authority (Complete when the waiver offers the employer authority opportunity as indicated in Item E-1-b) i. Participant Employer Status. Specify the participant’s employer status under the waiver. Check each that applies:
 Participant/Co-Employer. The participant (or the participant’s representative) functions as the co-employer (managing employer) of workers who provide waiver services. An agency is the common law employer of participant-selected/recruited staff and performs necessary payroll and human resources functions. Supports are available to assist the participant in conducting employer-related functions. Specify the types of agencies (a.k.a., “agencies with choice”) that serve as co-employers of participant-selected staff; the standards and qualifications the State requires of such entities and the safeguards in place to ensure that individuals maintain control and oversight of the employee.:

 Participant/Common Law Employer. The participant (or the participant’s representative) is the common law employer of workers who provide waiver services. An IRS-approved Fiscal/Employer Agent functions as the participant’s agent in performing payroll and other employer responsibilities that are required by federal and state law. Supports are available to assist the participant in conducting employer-related functions.
ii. Participant Decision Making Authority. The participant (or the participant’s representative) has decision making authority over workers who provide waiver services. Check the decision making authorities that participants exercise:
 Recruit staff
Refer staff to agency for hiring (co-employer) 
 Select staff from worker registry  Hire staff (common law employer)  Verify staff qualifications  Obtain criminal history and/or background investigation of staff. Specify how the costs
of such investigations are compensated:

 Specify additional staff qualifications based on participant needs and preferences so long as such qualifications are consistent with the qualifications specified in Appendix C-3.
 Determine staff duties consistent with the service specifications in Appendix C-3.  Determine staff wages and benefits subject to applicable State limits  Schedule staff  Orient and instruct staff in duties  Supervise staff  Evaluate staff performance  Verify time worked by staff and approve time sheets  Discharge staff (common law employer)  Discharge staff from providing services (co-employer)

State: Effective Date

Alabama October 1, 2008

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
 Other (specify):

State: Effective Date

Alabama October 1, 2008

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
b. Participant – Budget Authority (Complete when the waiver offers the budget authority opportunity as indicated in Item E-1-b) i. Participant Decision Making Authority. When the participant has budget authority, indicate the decision-making authority that the participant may exercise over the budget. Check all that apply:  Reallocate funds among services included in the budget  Determine the amount paid for services within the State’s established limits  Substitute service providers  Schedule the provision of services  Specify additional service provider qualifications consistent with the qualifications specified in Appendix C-3  Specify how services are provided, consistent with the service specifications contained in Appendix C-3  Identify service providers and refer for provider enrollment  Authorize payment for waiver goods and services  Review and approve provider invoices for services rendered  Other (specify):
ii. Participant-Directed Budget. Describe in detail the method(s) that are used to establish the amount of the participant-directed budget for waiver goods and services over which the participant has authority, including how the method makes use of reliable cost estimating information and is applied consistently to each participant. Information about these method(s) must be made publicly available.
iii. Informing Participant of Budget Amount. Describe how the State informs each participant of the amount of the participant-directed budget and the procedures by which the participant may request an adjustment in the budget amount.

State: Effective Date

Alabama October 1, 2008

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Appendix E: Participant Direction of Services
HCBS Waiver Application Version 3.3 – Post October 2005
iv. Participant Exercise of Budget Flexibility. Select one:  The participant has the authority to modify the services included in the participantdirected budget without prior approval. Specify how changes in the participant-directed budget are documented, including updating the service plan. When prior review of changes is required in certain circumstances, describe the circumstances and specify the entity that reviews the proposed change:
 Modifications to the participant-directed budget must be preceded by a change in the service plan.
v. Expenditure Safeguards. Describe the safeguards that have been established for the timely prevention of the premature depletion of the participant-directed budget or to address potential service delivery problems that may be associated with budget underutilization and the entity (or entities) responsible for implementing these safeguards:

State: Effective Date

Alabama October 1, 2008

Appendix E-2: 2

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HCBS Waiver Application Version 3.3 – Post October 2005
Appendix F: Participant Rights

Appendix F-1: Opportunity to Request a Fair Hearing
The State provides an opportunity to request a Fair Hearing under42 CFR Part 431, Subpart E to individuals: (a) who are not given the choice of home and community-based services as an alternative to the institutional care specified in Item 1-F of the request; (b) are denied the service(s) of their choice or the provider(s) of their choice; or, (c) whose services are denied, suspended, reduced or terminated. The State provides notice of action as required in 42 CFR §431.210.
Procedures for Offering Opportunity to Request a Fair Hearing. Describe how the individual (or his/her legal representative) is informed of the opportunity to request a fair hearing under 42 CFR Part 431, Subpart E. Specify the notice(s) that are used to offer individuals the opportunity to request a Fair Hearing. State laws, regulations, policies and notices referenced in the description are available to CMS upon request through the operating or Medicaid agency.
a. Description of the procedures by which eligible individuals or their representatives are informed of the feasible alternatives available under the waiver.
As part of assessment and service coordination visit, clients and/or responsible parties are provided with adequate information to make an informed decision regarding institutional and community based care. Service coordination addresses problems and presents feasible solutions.
Service coordination also includes an exploration of all resources currently utilized by the client, both formal and informal, as well as those waiver services that may be provided to meet the client’s needs. If any needs cannot be met, these also are discussed with the individual and his family to fully inform them of the alternatives.
b. Following is a description of the State’s procedures for allowing individuals to choose either institutional or home and community-based services
Each person served through the waiver makes a written choice of institutional or community-based care, which will remain in effect until such time as the client changes his/her choice. The only exception to making a written choice would occur when the person is not capable of signing the form and has no legal or responsible party who can sign. In such a situation, services will not be denied just because a written choice statement cannot be obtained. The case manager must carefully document the reason(s) for absence of a signed choice and the efforts to locate and encourage a responsible party who could have signed for the person.
c. Following is a description of how the individual (or legal representative) is offered the opportunity to request a fair hearing under 42 CFR Part 431, subpart E.
Any waiver applicant or recipient has the right to request a fair hearing if denied home and community-based services or if a decision by the administering agency adversely affects his/her eligibility status or receipt of service. The formal process is in accordance with 42

State: Effective Date

Alabama October 1, 2008

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Appendix F: Participant Rights
HCBS Waiver Application Version 3.3 – Post October 2005
C.F.R. Section 431, Subpart E and Chapter 3 (560-X-3) of the Alabama Medicaid Administrative Code. A Hearing Officer appointed by the Commissioner of the Medicaid Agency conducts fair hearings.
When a change in the individual’s needs suggests a change in the waiver services and plan of care, the case manager discusses proposed change(s) with the person and his family/representative prior to implementation. This discussion will include an explanation of the reason for the change, further assessment of the impact of the change, and an effort to elicit agreement on the part of the person and/or his family/ representative.
Whenever there is a decision by the administering agency to reduce, suspend, or terminate waiver services to coincide with the person’s current need or the person’s loss of eligibility for the service, the Operating Agencies will issue a written 10 day advance notice to the client and or family/caregiver indicating the client's right to a fair hearing and instructions for initiating an appeal and it will contain all the due process information required by 42 C.F.R. Section 431, Subpart E. A copy of the notice will be forwarded to the Medicaid Agency,

State: Effective Date

Alabama October 1, 2008

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Appendix F: Participant Rights
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix F-2: Additional Dispute Resolution Process
a. Availability of Additional Dispute Resolution Process. Indicate whether the State operates another dispute resolution process that offers participants the opportunity to appeal decisions that adversely affect their services while preserving their right to a Fair Hearing. Select one:
X Yes. The State operates an additional dispute resolution process (complete Item b)  No. This Appendix does not apply (do not complete Item b) b. Description of Additional Dispute Resolution Process. Describe the additional dispute resolution process, including: (a) the State agency that operates the process; (b) the nature of the process (i.e., procedures and timeframes), including the types of disputes addressed through the process; and, (c) how the right to a Medicaid Fair Hearing is preserved when a participant elects to make use of the process: State laws, regulations, and policies referenced in the description are available to CMS upon request through the operating or Medicaid agency.

The Alabama Medicaid Agency does operate another dispute resolution process, the informal conference process, which offers participants the opportunity to appeal decisions that adversely affect their services, while preserving their right to a fair hearing. An individual choosing to use the informal conference to resolve a dispute is informed in writing by the case manager that if the informal conference decision is not favorable, they maintain their right to have a fair hearing.
At the conference, the person may present the information or may be represented by a friend, relative, attorney, or other spokesperson of their choice. If the dispute is not resolved through the informal conference, the participant, applicant, or his/her legal representative can submit a written request for a fair hearing within sixty days of the date of the informal conference decision. The document referring to the participant’s appeal rights is maintained in the waiver participant’s home for future reference.
The Alabama Medicaid Agency will provide an opportunity for a fair hearing under 42 C.F.R. Part 431 Subpart E for individuals who are still dissatisfied after the above procedure has been completed. A written request for a hearing must be filed within sixty (60) days following the action with which he/she is dissatisfied. He/she, his/her legally appointed representative or other authorized person must request the hearing and give a correct mailing address. If the request for the hearing is made by someone other than the person who wishes to appeal, the person requesting the hearing must make a definite statement that he/she has been authorized to do so by the person for whom the hearing is being requested. Information about the hearings will be forwarded and plans will be made for the hearing and a date and place convenient to the person will be arranged. If the person is satisfied before the hearing and wants to withdraw his/her request, he/she or his/her legally appointed representative or other authorized person should write the Alabama Medicaid Agency that he/she wishes to do so and give the reason for withdrawing.
When benefits are terminated, they can be continued if a hearing request is received within ten (10) days following the effective date of termination. If benefits are continued pending the outcome of the hearing and the Hearing Officer decides that termination was proper,

State: Effective Date

Alabama October 1, 2008

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Appendix F: Participant Rights
HCBS Waiver Application Version 3.3 – Post October 2005
Alabama Medicaid Agency may recover from the terminated recipient or sponsor, the costs of all benefits paid after the initial termination date.
Regulations found at 42 CFR 431.222 allow the State to consolidate individual requests for a hearing into a single group hearing for cases where the sole issue involved is one of Federal or State law or policy. However, the state does offer a hearing in these cases. The Alabama Medicaid Agency need not grant a request for a hearing if the sole issue is a federal or state law or policy which requires an automatic change adversely affecting some or all recipients.

State: Effective Date

Alabama October 1, 2008

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Appendix F: Participant Rights
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix F-3: State Grievance/Complaint System
a. Operation of Grievance/Complaint System. Select one:
X Yes. The State operates a grievance/complaint system that affords participants the opportunity to register grievances or complaints concerning the provision of services under this waiver (complete the remaining items).
 No. This Appendix does not apply (do not complete the remaining items) b. Operational Responsibility. Specify the State agency that is responsible for the operation of the
grievance/complaint system:
The following State Agencies are responsible for the operation of the grievance/complaint system: 1. Alabama Department of Public Health(ADPH) 2. Alabama Department of Senior Services(ADSS) 3. Alabama Medicaid Agency(AMA)

c. Description of System. Describe the grievance/complaint system, including: (a) the types of grievances/complaints that participants may register; (b) the process and timelines for addressing grievances/complaints; and, (c) the mechanisms that are used to resolve grievances/complaints. State laws, regulations, and policies referenced in the description are available to CMS upon request through the Medicaid agency or the operating agency (if applicable).
ADPH and ADSS are responsible for explaining the procedures to clients of filing complaints and grievances. ADPH and ADSS must also have procedures in place that will assure AMA that DSP have explained to clients the process on how to register a complaint. The DSP supervisor will investigate any complaints registered by a client against any DSP workers. Any action taken will be documented in the client's record. If the client is dissatisfied with the action taken by the provider they should forward their complaint to appropriate agency and/or AMA.

a. Complaints are submitted to ADPH, ADSS, or the AMA and are investigated through resolution. A tracking log will be used to document the incidents and resolutions in the AMA LTC Waiver Quality Assurance Unit. The OA will also maintain a log of complaints and grievances received.

b. If complaints are received by the AMA, a copy will be forwarded to ADPH or ADSS within two (2) working days. If they are received by ADPH or ADSS a copy will be forwarded to AMA LTC Program Management Unit within two (2) working days if the client’s health and safety are at risk. Otherwise, the complaint/grievance should be entered on the quarterly log that is submitted to AMA.

c. ADPH or ADSS must investigate all complaints upon receipt of notification. Appropriate parties must initiate action within 24 hours if it appears that a client's health and safety is at risk. If necessary the complainant will be interviewed.

d. A summary and plan of correction will be sent from the OA to the AMA LTC

State: Effective Date

Alabama October 1, 2008

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Appendix F: Participant Rights
HCBS Waiver Application Version 3.3 – Post October 2005
Waiver Quality Assurance Unit for all complaints reported within 30 days of the request for the summary or plan of correction from the AMA. The providers must forward their plan of corrections to the OA who will in turn forward to AMA. The OA will evaluate the plan of correction within seven (7) days of receipt. If the plan of correction is not responsive to the complaint, it will be returned to the provider within two (2) days. The revised plan of correction will be resubmitted to the OA within two (2) working days. If the summary or plan of correction carried out is found not to be responsive, the provider will have up to seven (7) days to revise the plan and carry out the appropriate action.
e. ADPH or ADSS will review all complaints and grievances to determine a pattern of problems in order to assure that no health and safety risk exist.
f. Final determinations including any adverse findings will be reported to the AMA, LTC Program Management Unit.
g. The AMA will contact the client via telephone or targeted survey to ensure full resolution to the incident has been completed in a satisfactory manner.
h. On a quarterly basis, ADPH and ADSS will forward all grievance logs to AMA LTC Waiver Quality Assurance Unit for review, tracking, and assurance that resolutions have been completed.

State: Effective Date

Alabama October 1, 2008

Appendix F-3: 2

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HCBS Waiver Application Version 3.3 – Post October 2005
Appendix G: Participant Safeguards

Appendix G-1: Response to Critical Events or Incidents

a. State Critical Event or Incident Reporting Requirements. Specify the types of critical events or incidents (including alleged abuse, neglect and exploitation) that the State requires to be reported for review and follow-up action by an appropriate authority, the individuals and/or entities that are required to report such events and incidents, and the timelines for reporting. State laws, regulations, and policies that are referenced are available to CMS upon request through the Medicaid agency or the operating agency (if applicable).
State Critical Event or Incident Requirements

Incident Types

Timeframes

Physical Abuse Sexual Abuse Verbal Abuse Neglect Mistreatment
Death Exploitation
Moderate Injury
Major Injury
Natural Disaster
Fire
Fall

Immediate Immediate Immediate Immediate Immediate
Immediate 24-hours
24-hours
24-hours
24-hours
24-hours
24-hours

Definitions
Physical Abuse-the infliction of physical pain, injury or the willful deprivation by a care giver or other person of necessary services to maintain physical and mental health.

Sexual Abuse–any conduct that is a crime as defined in Sections 13A-6-60 to 13A-6-70, inclusive of the Code of Alabama. Forms of sexual abuse include rape, incest, sodomy, and indecent exposure.

Verbal Abuse-the infliction of disparaging and angry outbursts such as name calling, blaming, or accusatory comments.
Neglect- the failure of a caregiver to provide food, shelter, clothing, medical services, or healthcare for the person unable to care for himself or herself; or the failure of the person to provide these basic needs for himself or herself when the failure is the result of the person’s mental or physical inability.

State: Effective Date

Alabama October 1, 2008

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Appendix G: Participant Safeguards
HCBS Waiver Application Version 3.3 – Post October 2005
Mistreatment-Actions that cause harm or create serious risk of harm whether intended or not, to a vulnerable person, by the caregiver or another person, or failure of a caregiver to satisfy the basic need or to protect the child or adult from harm.

Death-the permanent suspension of consciousness and the end of life.

Exploitation-the expenditure, diminution or use of the property, assets or resources of a person subject to protection under the provision of Sections 38-9-1 through 11, Code of Alabama, without the express voluntary consent of that person or legally authorized representative.

Moderate Injury-any observable and substantial impairment of a person’s physical health such as temporary loss or impairment.

Major Injury-any observable and substantial impairment that results in permanent or temporary impairment, such as fractures, injury to internal organs, burns, or physical disfigurement of the body. These injuries may result in hospitalization.

Natural Disaster-the consequence of the combination of a natural hazard such as tornadoes, hurricanes, floods, power outages and winter weather.

Fire– a situation in which something such as a building or an area of land is destroyed or damaged by burning.

Fall- an incident that causes a person to drop suddenly from an up-right position which may result in harm.

All Medicaid approved providers who provide home and community-based services in Medicaid recipient’s homes shall report incidents of abuse, neglect, and exploitation immediately to the Department of Human Resources, or law enforcement as required by the Alabama Adult Protective Services Act of 1976.

The Alabama Adult Protective Services Act of 1976 outlines the specific responsibilities of the Department of Human resources, law enforcement authorities, physicians, caregiver’s individuals and agencies in reporting and investigating such cases, and in providing the necessary services.

Alabama Code §§ 38-9-1-11 Adult Protective Services Act of 1976
All physicians, osteopaths, chiropractors and caregivers are required by law to report instances of suspected abuse, neglect or exploitation, sexual abuse, or emotional abuse. An oral report, either by telephone or in person must be made immediately if there is reasonable cause to believe that an adult has been subjected to abuse, neglect, or exploitation, followed by a written report to the chief of police or sheriff, the County Department of Human Resources or the Adult Protective Services Hotline (1800-458-7214).

Other incidents such as falls must be reported within 24 hours to the Provider Agency, the Alabama Medicaid Agency, the Alabama Department of Public Health and the Alabama Department of

State: Effective Date

Alabama October 1, 2008

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Appendix G: Participant Safeguards
HCBS Waiver Application Version 3.3 – Post October 2005
Senior Services in a timely manner based upon the circumstances surrounding the incident.
Child Abuse Prevention and Treatment Act 1974 Alabama law is clear on reporting abuse and neglect of children under the age of 18. For example, physicians, teachers, social workers, nurses, day care workers or anyone who comes in contact with suspected child abuse or neglect should make a report to those who can take action. An oral report, either by telephone or in person must be made immediately if there is reasonable cause to believe that a child has been subjected to abuse, neglect, or exploitation, followed by a written report to the chief of police or sheriff, the County Department of Human Resources or the State Child Abuse Reporting Hotline (334- 242-9500).
b. Participant Training and Education. Describe how training and/or information is provided to participants (and/or families or legal representatives, as appropriate) concerning protections from abuse, neglect, and exploitation, including how participants (and/or families or legal representatives, as appropriate) can notify appropriate authorities or entities when the participant may have experienced abuse, neglect or exploitation.
The case manager and the direct service provider are responsible for ensuring that the participants, and/families or legal representatives are informed about their rights concerning abuse, neglect and exploitation at least annually. Case managers maintain relationships with consumers to encourage them to talk about what is important to them as well as what they do not like. Each recipient is informed of his/her rights and responsibilities during the initial assessment. The legal guardian and/or advocate is informed of the recipient’s rights, responsibilities, protections or means to enforce the protections, if the recipient is not able to understand. The case manager and the DSP is responsible for informing the client/or responsible party of their right to lodge a complaint and how to register a complaint alleging abuse, neglect/ or exploitation.
c. Responsibility for Review of and Response to Critical Events or Incidents. Specify the entity (or entities) that receives reports of critical events or incidents specified in item G-1-a, the methods that are employed to evaluate such reports, and the processes and time-frames for responding to critical events or incidents, including conducting investigations.
The Alabama Department of Public health and the Alabama Department of Senior Services are the entities that receive reports of critical events or incidents. Each operating agency (OA) will investigate the critical events reported and make a decision within seven (7) working days. If a decision cannot be reached, additional information is requested. Resolution is reached within seven (7) working days from receipt of the additional information with a response disseminated to all parties involved. All allegations of abuse require an investigation. If the OA determines that an incident requires follow-up, the Case Manager will monitor the situation and make referrals to the appropriate reporting agency or follow-up on referrals previously made to ensure that the issue has been satisfactorily resolved. If other services or supports are needed to resolve the situation, the Case Manager will seek available resources and arrange when appropriate. Responses to the critical events or incidents are appropriately coordinated and assigned with a completion date not to exceed 30 days based on the nature of the incident.
d. Responsibility for Oversight of Critical Incidents and Events. Identify the State agency (or agencies) responsible for overseeing the reporting of and response to critical incidents or events that affect waiver participants, how this oversight is conducted, and how frequently.
The Alabama Department of Public Health and the Alabama Department of Senior Services are responsible for overseeing the reporting of and response to critical incidents or events that affect

State: Effective Date

Alabama October 1, 2008

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Appendix G: Participant Safeguards
HCBS Waiver Application Version 3.3 – Post October 2005
waiver participants through individual/family interviews. The operating agency will notify Medicaid’s E & D Waiver Coordinator of critical incidents and events as they occur and any follow-up action taken. In addition, Medicaid’s LTC Waiver Quality Assurance Unit is responsible for overseeing the reporting of and response to critical incidents through a review of quarterly participation satisfaction surveys, a review of complaint logs, medical record reviews, DSP personnel record reviews, and onsite home and provider visits, when deemed necessary.

State: Effective Date

Alabama October 1, 2008

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Appendix G: Participant Safeguards
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix G-2: Safeguards Concerning Restraints and Restrictive Interventions
a. Use of Restraints or Seclusion (select one): X The State does not permit or prohibits the use of restraints or seclusion. Specify the State agency (or agencies) responsible for detecting the unauthorized use of restraints or seclusion and how this oversight is conducted and its frequency: The Alabama Department of Public Health (ADPH): Monthly monitoring of participants health and welfare and provider quality reviews.
The Alabama Department of Senior Services (ADSS): Monthly monitoring of participants health and welfare and provider quality reviews.
The Department of Human Resources (ADHR): certain incidents of abuse, neglect and exploitation must be reported to ADHR by law.
The Alabama Medicaid Agency: Annual review of ADPH and ADSS investigations.
 The use of restraints or seclusion is permitted during the course of the delivery of waiver services. Complete Items G-2-a-i and G-2-a-ii:
i. Safeguards Concerning the Use of Restraints or Seclusion. Specify the safeguards that the State has established concerning the use of each type of restraint (i.e., personal restraints, drugs used as restraints, mechanical restraints or seclusion). State laws, regulations, and policies that are referenced are available to CMS upon request through the Medicaid agency or the operating agency (if applicable).

ii. State Oversight Responsibility. Specify the State agency (or agencies) responsible for overseeing the use of restraints or seclusion and ensuring that State safeguards concerning their use are followed and how such oversight is conducted and its frequency:

b. Use of Restrictive Interventions
X The State does not permit or prohibits the use of restrictive interventions. Specify the State agency (or agencies) responsible for detecting the unauthorized use of restrictive interventions and how this oversight is conducted and its frequency:
The Alabama Department of Public Health an the Alabama Department of Senior Services are responsible for detecting the unauthorized use of restrictive interventions through monthly face to face visits as well as supervisory visits every 60 days.

State: Effective Date

Alabama October 1, 2008

Appendix G-2: 1

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Appendix G: Participant Safeguards
HCBS Waiver Application Version 3.3 – Post October 2005
 The use of restrictive interventions is permitted during the course of the delivery of waiver services. Complete Items G-2-b-i and G-2-a-ii:

State: Effective Date

Alabama October 1, 2008

Appendix G-2: 2

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 96 of 132
Appendix G: Participant Safeguards
HCBS Waiver Application Version 3.3 – Post October 2005
i. Safeguards Concerning the Use of Restrictive Interventions. Specify the safeguards that the State has in effect concerning the use of interventions that restrict participant movement, participant access to other individuals, locations or activities, restrict participant rights or employ aversive methods (not including restraints or seclusion) to modify behavior. State laws, regulations, and policies referenced in the specification are available to CMS upon request through the Medicaid agency or the operating agency.
ii. State Oversight Responsibility. Specify the State agency (or agencies) responsible for monitoring and overseeing the use of restrictive interventions and how this oversight is conducted and its frequency:

State: Effective Date

Alabama October 1, 2008

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Appendix G: Participant Safeguards
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix G-3: Medication Management and Administration
This Appendix must be completed when waiver services are furnished to participants who are served in licensed or unlicensed living arrangements where a provider has round-the-clock responsibility for the health and welfare of residents. The Appendix does not need to be completed when waiver participants are served exclusively in their own personal residences or in the home of a family member. a. Applicability. Select one:
 Yes. This Appendix applies (complete the remaining items). X No. This Appendix is not applicable (do not complete the remaining items). b. Medication Management and Follow-Up i. Responsibility. Specify the entity (or entities) that have ongoing responsibility for monitoring
participant medication regimens, the methods for conducting monitoring, and the frequency of monitoring.
ii. Methods of State Oversight and Follow-Up. Describe: (a) the method(s) that the State uses to ensure that participant medications are managed appropriately, including: (a) the identification of potentially harmful practices (e.g., the concurrent use of contraindicated medications); (b) the method(s) for following up on potentially harmful practices; and, (c) the State agency (or agencies) that is responsible for follow-up and oversight.
c. Medication Administration by Waiver Providers i. Provider Administration of Medications. Select one:  Waiver providers are responsible for the administration of medications to waiver participants who cannot self-administer and/or have responsibility to oversee participant self-administration of medications. (complete the remaining items) X Not applicable (do not complete the remaining items)
ii. State Policy. Summarize the State policies that apply to the administration of medications by waiver providers or waiver provider responsibilities when participants self-administer medications, including (if applicable) policies concerning medication administration by non-medical waiver provider personnel. State laws, regulations, and policies referenced in the specification are available to CMS upon request through the Medicaid agency or the operating agency (if applicable).

State: Effective Date

Alabama October 1, 2008

Appendix G-3: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 98 of 132 Appendix G: Participant Safeguards
HCBS Waiver Application Version 3.3 – Post October 2005
iii. Medication Error Reporting. Select one of the following:  Providers that are responsible for medication administration are required to both record and report medication errors to a State agency (or agencies). Complete the following three items: (a) Specify State agency (or agencies) to which errors are reported:
(b) Specify the types of medication errors that providers are required to record:
(c) Specify the types of medication errors that providers must report to the State:
 Providers responsible for medication administration are required to record medication errors but make information about medication errors available only when requested by the State. Specify the types of medication errors that providers are required to record:
iv. State Oversight Responsibility. Specify the State agency (or agencies) responsible for monitoring the performance of waiver providers in the administration of medications to waiver participants and how monitoring is performed and its frequency.

State: Effective Date

Alabama October 1, 2008

Appendix G-3: 2

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 99 of 132
Appendix H: Quality Management Strategy
HCBS Waiver Application Version 3.3 – October 2005
Appendix H: Quality Management Strategy
Under §1915(c) of the Social Security Act and 42 CFR §441.302, the approval of an HCBS waiver requires that CMS determine that the State has made satisfactory assurances concerning the protection of participant health and welfare, financial accountability and other elements of waiver operations. Renewal of an existing waiver is contingent upon review by CMS and a finding by CMS that the assurances have been met. By completing the HCBS waiver application, the State specifies how it has designed the waiver’s critical processes, structures and operational features in order to meet these assurances.
Quality Management is a critical operational feature that an organization employs to continually determine whether it operates in accordance with the approved design of its program, meets statutory and regulatory assurances and requirements, achieves desired outcomes, and identifies opportunities for improvement.
CMS recognizes that a state’s waiver Quality Management Strategy may vary depending on the nature of the waiver target population, the services offered, and the waiver’s relationship to other public programs, and will extend beyond regulatory requirements. However, for the purpose of this application, the State is expected to have, at the minimum, systems in place to measure and improve its own performance in meeting six specific waiver assurances and requirements.
It may be more efficient and effective for a Quality Management Strategy to span multiple waivers and other long-term care services. CMS recognizes the value of this approach and will ask the state to identify other waiver programs and long-term care services that are addressed in the Quality Management Strategy.
Quality management is dynamic and the Quality Management Strategy may, and probably will, change over time. Modifications or updates to the Quality Management Strategy shall be submitted to CMS in conjunction with the annual report required under the provisions of 42 CFR §441.302(h) and at the time of waiver renewal.

State: Effective Date

Alabama October 1, 2008

Appendix H: 1

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Appendix H: Quality Management Strategy
HCBS Waiver Application Version 3.3 – October 2005
Quality Management Strategy: Minimum Components
The Quality Management Strategy that will be in effect during the period of the waiver is included as Attachment #1 to Appendix H. The Quality Management Strategy should be no more than ten-pages in length. It may reference other documents that provide additional supporting information about specific elements of the Quality Management Strategy. Other documents that are cited must be available to CMS upon request through the Medicaid agency or the operating agency (if appropriate).
In the QMS, a state spells out:
The evidence based discovery activities that will be conducted for each of the six major waiver assurances; The remediation processes followed when problems are identified in the implementation of each of the assurances; The system improvement processes followed in response to aggregated, analyzed information collected on each of the assurances; The correspondent roles/responsibilities of those conducting discovery activities, assessing, remediating and improving system functions around the assurances; and The process that the state will follow to continuously assess the effectiveness of the QMS and revise it as necessary and appropriate.
If the State's Quality Management Strategy is not fully developed at the time the waiver application is submitted, the state may provide a work plan to fully develop its Quality Management Strategy, including the specific tasks that the State plans to undertake during the period that the waiver is in effect, the major milestones associated with these tasks, and the entity (or entities) responsible for the completion of these tasks.
When the Quality Management Strategy spans more than one waiver and/or other types of long-term care services under the Medicaid State plan, specify the control numbers for the other waiver programs and identify the other long-term services that are addressed in the Quality Management Strategy.

State: Effective Date

Alabama October 1, 2008

Appendix H: 2

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 101 of 132
Appendix H: Quality Management Strategy
HCBS Waiver Application Version 3.3 – October 2005
Attachment #1 to Appendix H The Quality Management Strategy for the waiver is:
Description of the Quality Management Program for the Elderly and Disabled Waiver
The Quality Management Strategy for the Elderly and Disabled (E & D) Waiver is:
AMA LTC Waiver Quality Assurance Unit is responsible for collecting data quarterly and annually regarding the quality of services provided from various sources for the E & D Waiver program. The Quality Framework is used as a guide to assess seven (7) Program Design Focus areas from samples of waiver participants, case management and direct service providers’ records, on-site home visits when deemed necessary, and onsite visits to adult day health facilities. In addition, consumer satisfaction surveys and complaints and grievances logs are reviewed quarterly. Adverse responses to surveys and/or complaints received are tracked to resolution. Adverse responses are also re-tracked with targeted surveys to determine clients’ satisfaction with resolutions.
Data is collected through an annual review of each operating agency which may include policies and procedures, contracts with subcontractors, on-going training of subcontractors, quality assurance system, and billing and service provision. More specifically, a sample of all applicants approved by the AMA is conducted to ensure that the processes and instruments described in the approved waiver are applied in determining the Level of Care. Additionally, a sample of the waiver population is chosen for record review to ensure coordination of care, quality of care, outcomes and billing accuracy. A sample of personnel records of case managers and other employees’ personnel records are reviewed to ensure basic and continuing education requirements are met. Home visits may be made to ensure quality of care, health and safety, ongoing needs of the client are being met, and to gain input about the quality of the services received.
Remediation for non-compliance issues identified during data collection is handled by requesting the entity involved to submit a plan of correction within 15 days of notification. If the problem is not corrected, the entity is monitored every three months until they are found to be in compliance.
The collected data is reported quarterly and annually to each Operating Agency. AMA LTC Waiver Quality Assurance Unit in collaboration with the LTC Division, will evaluate reports and make recommendations for improvements to the program. The AMA LTC Division will determine if changes are made to the program.
In order to measure and improve performance, data is collected, reviewed and reported using the seven focus areas of the Quality Framework.
Participant Access: Sources of data Case Management Records Home Visits DSS Queries Consumer Surveys

State: Effective Date

Alabama October 1, 2008

Attachment #1 to Appendix H: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 102 of 132
Appendix H: Quality Management Strategy
HCBS Waiver Application Version 3.3 – October 2005
Participant –Centered Service Planning and Delivery: Sources of data Consumer Surveys Case Management Records Site Visits Home Visits
Provider Capacity and Capabilities: Sources of data Consumer Surveys Case Management Records Personnel and Training Records of Operating Agency and Subcontractors Home Visits
Participants Safeguards: Sources of data Case Management Records Consumer Surveys Home Visits Site Visits
Participants Rights and Responsibilities: Sources of data Consumer Surveys Case Management Records Complaint and Grievances Logs Targeted Surveys
Patient Satisfaction: Sources of data Consumer Surveys Case Management Records Home Visits Site Visits
System Performance: Sources of data Review of Operating Agency Quality Assurance System Review of Operating Agency Billing and Service Provision Collaborated Meeting with Operating Agency to enhance the administration of the Program Subcontractor Client Records

State: Effective Date

Alabama October 1, 2008

Attachment #1 to Appendix H: 2

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 103 of 132
Appendix H: Quality Management Strategy
HCBS Waiver Application Version 3.3 – October 2005
The following indicators are reported to the operating agencies and Medicaid’s Long Term Care Division:
Percentage of client/family reporting satisfaction with waiver services and needs met. Percentages of client/family reporting they feel safe and secure in the home and community. Percentage of client/family reporting they have ready access to services and were informed of sources of support available in the community. Percentage of client/family reporting knowledge of rights and responsibilities. Percentage of records indicating services are planned and implemented according to the client’s needs and preferences. Evidence that each operating agency has a Quality Assurance System in place that monitors subcontractors. Evidence that each operating agency has a system in place to ensure only qualified providers are enrolled, credentials are verified and training of personnel is ongoing.

State: Effective Date

Alabama October 1, 2008

Attachment #1 to Appendix H: 3

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 104 of 132
Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
Appendix I: Financial Accountability
APPENDIX I-1: Financial Integrity and Accountability
Financial Integrity. Describe the methods that are employed to ensure the integrity of payments that have been made for waiver services, including: (a) requirements concerning the independent audit of provider agencies; (b) the financial audit program that the state conducts to ensure the integrity of provider billings for Medicaid payment of waiver services, including the methods, scope and frequency of audits; and, (c) the agency (or agencies) responsible for conducting the financial audit program. State laws, regulations, and policies referenced in the description are available to CMS upon request through the Medicaid agency or the operating agency (if applicable).
Medicaid’s post-payment financial audit program for the E & D Waiver is designed to ascertain that only reasonable and allowable expenses are included in the cost reports received from the operating agencies. Cost reports are due to Medicaid no later than 90 days after the fiscal year end. An audit of the cost reports is conducted annually. These audits are limited in scope. The basis for the audit is a comparison of Medicaid’s adjudicated claims file to the provider’s cost report. The auditor will conduct a sampling process of the provider’s expenditures. The sample includes, but is not limited to; provider contracts, cost allocation, previous audits, cash disbursements, general ledger accounts, cash receipts, verification of deposits, payroll records including employee time sheets and cancelled checks, vendor invoices, and all vouchers or revenues received from Medicaid. All records must be capable of audit verification. Any expenses the auditor is unable to verify will be disallowed. If an independent audit of the OA has been performed, Medicaid will rely on the independent auditor’s findings and opinion regarding compliance and internal control. After the sample is completed, the auditor will make adjustments to the cost report if necessary. The provider’s adjusted cost report is compared to Medicaid’s paid claims file for final settlement.

State: Effective Date

Alabama October 1, 2008

Appendix I-1: 1

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Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005

APPENDIX I-2: Rates, Billing and Claims
a. Rate Determination Methods. In two pages or less, describe the methods that are employed to establish provider payment rates for waiver services and the entity or entities that are responsible for rate determination. Indicate any opportunity for public comment in the process. If different methods are employed for various types of services, the description may group services for which the same method is employed. State laws, regulations, and policies referenced in the description are available upon request to CMS through the Medicaid agency or the operating agency (if applicable).
Rates for E & D Waiver services are established by Medicaid. They are prospective rates that are based on audited historical costs with consideration given to the health care index and renegotiated contracts. Medicaid pays private and public contractors the same rate. An OA may request an interim increase or decrease at any time. If approved by Medicaid, the adjusted rate allows claims to be paid at a rate that is closer to the provider’s actual cost. If a rate adjustment is retroactive, previously paid claims are recouped and repaid at the adjusted rate. At fiscal year end, the total amount paid by the OA is divided by the total number of units served, and an average rate per service is determined. Medicaid uses the average rate to determine the final settlement.
For each waiver service, a HCPC code is determined with a rate assigned to each code. The Medicaid Management Information system (MMIS) pays the claim based upon the State’s determined pricing methodology applied to each service by provider type, claim type, recipient benefits and policy limitations. All claims submitted for adjudication must pass certain edits in the MMIS. Once a claim passes through edits, the system reviews each claim to make sure it complies with AMA policies. The MMIS then performs audits by validating claims history information against information on the current claim. Audits check for duplicate services, limited services, and related services and compare them to Alabama Medicaid policy to ensure that recipient benefits are paid according to current policies.
As each waiver year is audited, this cost like the benefit cost, will be determined and lump sum settlement will be made to adjust that year’s payments to actual cost. Cost Reports from the OAs are due to Medicaid by December 31. Cost settlements are made no later than September 30 of the following year.
b. Flow of Billings. Describe the flow of billings for waiver services, specifying whether provider billings flow directly from providers to the State’s claims payment system or whether billings are routed through other intermediary entities. If billings flow through other intermediary entities, specify the entities:
Each waiver participant, once approved, is added to the Alabama Medicaid’s Long Term Care File. This file holds approved dates of eligibility for waiver services.
Providers billings flow directly from the providers to the Medicaid MMIS through Electronic Data System (EDS), the Fiscal Intermediary as follows:
Payments made by Medicaid to providers are on a cost reimbursement basis. Each covered service is identified on a claim by a HCPC code. For each recipient, the claim allows span billing for a period up to one month. There may be multiple claims in a month; however no single claim can cover services performed in different months. Each service type is identified by Procedure Code and will include all units of that service provided during that month. Specific dates for each unit can be identified on the Service Authorization Form. If the submitted claims covers dates of service where part, or all of which were covered in

State: Effective Date

Alabama October 1, 2008

Appendix I-2: 1

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Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
a previously paid claim is rejected. The provider is required to make the corrections on the claim and resubmit for processing. Payment is based on the number of units of service reported on the claim for each procedure code. Accounting for actual costs and units of services provided during the waiver year, are captured on the CMS 372 Report. All claims must be filed within twelve months from the date of service. Medicaid recovers payments that exceed actual allowable cost. Payment is based on the number of units of service reported on a claim for each procedure code. There is a clear differentiation between waiver services and non-waiver services and a clear audit trail exists from point of service through billing and reimbursement.
c. Certifying Public Expenditures (select one):
 Yes. Public agencies directly expend funds for part or all of the cost of waiver services and certify their public expenditures (CPE) in lieu of billing that amount to Medicaid (check each that applies):  Certified Public Expenditures (CPE) of State Public Agencies. Specify: (a) the public agency or agencies that certify public expenditures for waiver services; (b) how it is assured that the CPE is based on the total computable costs for waiver services; and, (c) how the State verifies that the certified public expenditures are eligible for Federal financial participation in accordance with 42 CFR §433.51(b). (Indicate source of revenue for CPEs in Item I-4-a.)
 Certified Public Expenditures (CPE) of Non-State Public Agencies. Specify: (a) the non-State public agencies that incur certified public expenditures for waiver services; (b) how it is assured that the CPE is based on total computable costs for waiver services; and, (c) how the State verifies that the certified public expenditures are eligible for Federal financial participation in accordance with 42 CFR §433.51(b). (Indicate source of revenue for CPEs in Item I-4-b.)
X No. Public agencies do not certify expenditures for waiver services.

State: Effective Date

Alabama October 1, 2008

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Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
d. Billing Validation Process. Describe the process for validating provider billings to produce the claim for federal financial participation, including the mechanism(s) to assure that all claims for payment are made only: (a) when the individual was eligible for Medicaid waiver payment on the date of service; (b) when the service was included in the participant’s approved service plan; and, (c) the services were provided:
The system performs validation edits to ensure the claim is filled out correctly and contains appropriate information for processing. Edits ensure the recipient’s name matches the recipient identification number (RID); the HCPC code is valid for the diagnosis; the recipient is eligible and the provider is active for the dates of service; and other similar criteria are met. For electronically submitted claims, the edit process is performed several times per day. For paper claims, it is performed five (5) times per week. If a claim fails any of these edits, it is returned to the provider.
Once claims pass through edits, the system reviews the claim history information against information on the current claim. Audits check for duplicate services, service limitation, and related services and compare them to Alabama Medicaid policy. The system then prices the claim using the State –determined pricing methodology applied to each service by provider type, claim type, recipient benefits, or policy limitations.
Once the system completes claim processing, it assigns each claim a status: approved to pay, denied, or suspended. Approved to pay and denied claims are processed through the financial cycle twice a month, at which time an Explanation of Payment (EOP) report is produced and checks are written, if applicable. Suspended claims must be worked by EDS personnel or reviewed by Alabama Medicaid Agency personnel, as required.
Claims approved for payment are paid with a single check or electronic funds transfer (EFT) transaction according to the check writing schedule published by the Alabama Medicaid Agency. The check is sent to the provider’s payee address with an EOP, which also identifies all denied claims, pending claims, and adjustments. If the provider is enrolled in the electronic funds (EFT) transfer process, the payment is deposited directly into the provider’s bank account and the EOP is mailed separately to the provider.
e. Billing and Claims Record Maintenance Requirement. Records documenting the audit trail of adjudicated claims (including supporting documentation) are maintained by the Medicaid agency, the operating agency (if applicable), and providers of waiver services for a minimum period of 3 years as required in 45 CFR §74.53.

State: Effective Date

Alabama October 1, 2008

Appendix I-2: 3

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Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
APPENDIX I-3: Payment
a. Method of payments — MMIS (select one):
X Payments for all waiver services are made through an approved Medicaid Management Information System (MMIS).
 Payments for some, but not all, waiver services are made through an approved MMIS. Specify: (a) the waiver services that are not paid through an approved MMIS; (b) the process for making such payments and the entity that processes payments; (c) how an audit trail is maintained for all state and federal funds expended outside the MMIS; and, (d) the basis for the draw of federal funds and claiming of these expenditures on the CMS-64.
 Payments for waiver services are not made through an approved MMIS. Specify: (a) the process by which payments are made and the entity that processes payments; (b) how and through which system(s) the payments are processed; (c) how an audit trail is maintained for all state and federal funds expended outside the MMIS; and, (d) the basis for the draw of federal funds and claiming of these expenditures on the CMS-64:
 Payments for waiver services are made by a managed care entity or entities. The managed care entity is paid a monthly capitated payment per eligible enrollee through an approved MMIS. Describe how payments are made to the managed care entity or entities:
b. Direct payment. In addition to providing that the Medicaid agency makes payments directly to providers of waiver services, payments for waiver services are made utilizing one or more of the following arrangements (select at least one):
X The Medicaid agency pays providers through the same fiscal agent used for the rest of the Medicaid program.
 The Medicaid agency pays providers of some or all waiver services through the use of a limited fiscal agent. Specify the limited fiscal agent, the waiver services for which the limited fiscal agent makes payment, the functions that the limited fiscal agent performs in paying waiver claims, and the methods by which the Medicaid agency oversees the operations of the limited fiscal agent:
 Providers are paid by a managed care entity or entities for services that are included in the State’s contract with the entity. Specify how providers are paid for the services (if any) not included in the State’s contract with managed care entities.

c. Supplemental or Enhanced Payments. Section 1902(a)(30) requires that payments for services be consistent with efficiency, economy, and quality of care. Section 1903(a)(1) provides for Federal

State: Effective Date

Alabama October 1, 2008

Appendix I-3: 1

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Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
financial participation to States for expenditures for services under an approved State plan/waiver. Specify whether supplemental or enhanced payments are made. Select one:
X No. The State does not make supplemental or enhanced payments for waiver services.  Yes. The State makes supplemental or enhanced payments for waiver services. Describe:
(a) the nature of the supplemental or enhanced payments that are made and the waiver services for which these payments are made and (b) the types of providers to which such payments are made. Upon request, the State will furnish CMS with detailed information about the total amount of supplemental or enhanced payments to each provider type in the waiver.

d. Payments to Public Providers. Specify whether public providers receive payment for the provision of waiver services.
X Yes. Public providers receive payment for waiver services. Specify the types of public providers that receive payment for waiver services and the services that the public providers furnish. Complete item I-3-e. The Alabama Department of Public Health and Alabama Department of Senior Services are the operating agencies for the E/D Waiver. These state agencies provide EDW services such as: case management, personal care, homemaker, etc.
 No. Public providers do not receive payment for waiver services. Do not complete Item I-3-e.
e. Amount of Payment to Public Providers. Specify whether any public provider receives payments (including regular and any supplemental payments) that in the aggregate exceed its reasonable costs of providing waiver services and, if so, how the State recoups the excess and returns the Federal share of the excess to CMS on the quarterly expenditure report. Select one:
X The amount paid to public providers is the same as the amount paid to private providers of the same service.
 The amount paid to public providers differs from the amount paid to private providers of the same service. No public provider receives payments that in the aggregate exceed its reasonable costs of providing waiver services.
 The amount paid to public providers differs from the amount paid to private providers of the same service. When a public provider receives payments (including regular and any supplemental payments) that in the aggregate exceed the cost of waiver services, the State recoups the excess and returns the federal share of the excess to CMS on the quarterly expenditure report. Describe the recoupment process:

State: Effective Date

Alabama October 1, 2008

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Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
f. Provider Retention of Payments. Section 1903(a)(1) provides that Federal matching funds are only available for expenditures made by states for services under the approved waiver. Select one:
 Providers receive and retain 100 percent of the amount claimed to CMS for waiver services.
X Providers do not receive and retain 100 percent of the amount claimed to CMS for waiver services. Provide a full description of the billing, claims, or payment processes that result in less than 100% reimbursement of providers. Include: (a) the methodology for reduced or returned payments; (b) a complete listing of types of providers, the amount or percentage of payments that are reduced or returned; and, (c) the disposition and use of the funds retained or returned to the State (i.e., general fund, medical services account, etc.): Medicaid bills ADPH and ADSS the non-federal share plus a 1% administrative fee. The Alabama Medicaid Agency does not return any portion of the 1% administrative fee to CMS.
 Providers are paid by a managed care entity (or entities) that is paid a monthly capitated payment. Specify whether the monthly capitated payment to managed care entities is reduced or returned in part to the State.

g. Additional Payment Arrangements
i. Voluntary Reassignment of Payments to a Governmental Agency. Select one:
X Yes. Providers may voluntarily reassign their right to direct payments to a governmental agency as provided in 42 CFR §447.10(e). Specify the governmental agency (or agencies) to which reassignment may be made. ADPH and ADSS
 No. The State does not provide that providers may voluntarily reassign their right to direct payments to a governmental agency.
ii. Organized Health Care Delivery System. Select one:
X Yes. The waiver provides for the use of Organized Health Care Delivery System arrangements under the provisions of 42 CFR §447.10. Specify the following: (a) the entities that are designated as an OHCDS and how these entities qualify for designation as an OHCDS; (b) the procedures for direct provider enrollment when a provider does not voluntarily agree to contract with a designated OHCDS; (c) the method(s) for assuring that participants have free choice of qualified providers when an OHCDS arrangement is employed, including the selection of providers not affiliated with the OHCDS; (d) the method(s) for assuring that providers that furnish services under contract with an OHCDS meet applicable provider qualifications under the waiver; (e) how it is assured that OHCDS contracts with providers meet applicable requirements; and, (f) how financial accountability is assured when an OHCDS arrangement is used: The ADPH, ADSS, and the thirteen Area Agencies and other providers of waiver services all provide one or more Medicaid service and are eligible to be OHCDS. Providers may enroll directly with the Medicaid Agency if they wish. Free choice of providers is assured by the policies and procedures in effect and practices carried out are case managers. All providers are certified and monitored by Quality Assurance reviews performed by ADPH, ADSS or Medicaid. All subcontractors are submitted to the state

State: Effective Date

Alabama October 1, 2008

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HCBS Waiver Application Version 3.3 – Post October 2005
for review of applicable provisions.
 No. The State does not employ Organized Health Care Delivery System (OHCDS) arrangements under the provisions of 42 CFR §447.10.

State: Effective Date

Alabama October 1, 2008

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Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
iii. Contracts with MCOs, PIHPs or PAHPs. Select one:
 The State contracts with a Managed Care Organization(s) (MCOs) and/or prepaid inpatient health plan(s) (PIHP) or prepaid ambulatory health plan(s) (PAHP) under the provisions of §1915(a)(1) of the Act for the delivery of waiver and other services. Participants may voluntarily elect to receive waiver and other services through such MCOs or prepaid health plans. Contracts with these health plans are on file at the State Medicaid agency. Describe: (a) the MCOs and/or health plans that furnish services under the provisions of §1915(a)(1); (b) the geographic areas served by these plans; (c) the waiver and other services furnished by these plans; and, (d) how payments are made to the health plans.
 This waiver is a part of a concurrent §1915(b)/§1915(c) waiver. Participants are required to obtain waiver and other services through a MCO and/or prepaid inpatient health plan (PIHP) or a prepaid ambulatory health plan (PAHP). The §1915(b) waiver specifies the types of health plans that are used and how payments to these plans are made.
X The State does not contract with MCOs, PIHPs or PAHPs for the provision of waiver services.

State: Effective Date

Alabama October 1, 2008

Appendix I-3: 5

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 113 of 132
Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
APPENDIX I-4: Non-Federal Matching Funds
a. State Level Source(s) of the Non-Federal Share of Computable Waiver Costs. Specify the State source or sources of the non-federal share of computable waiver costs. Check each that applies:
 Appropriation of State Tax Revenues to the State Medicaid agency X Appropriation of State Tax Revenues to a State Agency other than the Medicaid Agency.
If the source of the non-federal share is appropriations to another state agency (or agencies), specify: (a) the entity or agency receiving appropriated funds and (b) the mechanism that is used to transfer the funds to the Medicaid Agency or Fiscal Agent, such as an Intergovernmental Transfer (IGT), including any matching arrangement, and/or, indicate if the funds are directly expended by public agencies as CPEs, as indicated in Item I-2-c: The source of non-federal funds for the HCBS Waiver for the Elderly and Disabled Waiver is the general fund appropriations to ADPH and ADSS. These funds are 106, general fund; 349, other funds such as federal, intergovernmental transfers, drug rebates, and other small amounts; 564, Health Care Trust Funds for provider taxes; and 1047, tobacco revenue. These funds are for the sole use of Medicaid once the appropriation is made by the Legislature. The Alabama Legislature does not line item budget any revenue or expenditure for Medicaid. In other words, no revenue comes to Medicaid earmarked for certain expenditures. It is up to Medicaid how a voucher is coded and thus charged. If Medicaid has any balance in fund 106 at the end of the year, it does not revert back to the State general fund.
 Other State Level Source(s) of Funds. Specify: (a) the source and nature of funds; (b) the entity or agency that receives the funds; and, (c) the mechanism that is used to transfer the funds to the Medicaid Agency or Fiscal Agent, such as an Intergovernmental Transfer (IGT), including any matching arrangement, and/or, indicate if funds are directly expended by public agencies as CPEs, as indicated in Item I-2- c:
b. Local or Other Source(s) of the Non-Federal Share of Computable Waiver Costs. Specify the source or sources of the non-federal share of computable waiver costs that are not from state sources. Check each that applies:
 Appropriation of Local Revenues. Specify: (a) the local entity or entities that have the authority to levy taxes or other revenues; (b) the source(s) of revenue; and, (c) the mechanism that is used to transfer the funds to the Medicaid Agency or Fiscal Agent, such as an Intergovernmental Transfer (IGT), including any matching arrangement (indicate any intervening entities in the transfer process), and/or, indicate if funds are directly expended by public agencies as CPEs, as specified in Item I-2- c:
 Other non-State Level Source(s) of Funds. Specify: (a) the source of funds; (b) the entity or agency receiving funds; and, (c) the mechanism that is used to transfer the funds to the State Medicaid Agency or Fiscal Agent, such as an Intergovernmental Transfer (IGT), including any matching arrangement, and /or, indicate if funds are directly expended by public agencies as CPEs, as specified in Item I-2- c:

State: Effective Date

Alabama October 1, 2008

Appendix I-4: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 114 of 132 Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
X Not Applicable. There are no non-State level sources of funds for the non-federal share.

State: Effective Date

Alabama October 1, 2008

Appendix I-4: 2

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 115 of 132
Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
c. Information Concerning Certain Sources of Funds. Indicate whether any of the funds listed in Items I-4-a or I-4-b that make up the non-federal share of computable waiver costs come from the following sources: (a) provider taxes or fees; (b) provider donations; and/or, (c) federal funds (other than FFP). Select one:
X None of the specified sources of funds contribute to the non-federal share of computable waiver costs.
 The following source (s) are used. Check each that applies.  Provider taxes or fees  Provider donations  Federal funds (other than FFP)
For each source of funds indicated above, describe the source of the funds in detail: None of the foregoing sources of funds contribute to the non-federal share of computable waiver costs.

State: Effective Date

Alabama October 1, 2008

Appendix I-4: 3

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 116 of 132
Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
APPENDIX I-5: Exclusion of Medicaid Payment for Room and Board
a. Services Furnished in Residential Settings. Select one:
X No services under this waiver are furnished in residential settings other than the private residence of the individual. (Do not complete Item I-5-b).
 As specified in Appendix C, the State furnishes waiver services in residential settings other than the personal home of the individual. (Complete Item I-5-b)
b. Method for Excluding the Cost of Room and Board Furnished in Residential Settings. The following describes the methodology that the State uses to exclude Medicaid payment for room and board in residential settings:

State: Effective Date

Alabama October 1, 2008

Appendix I-5: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 117 of 132
Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
APPENDIX I-6: Payment for Rent and Food Expenses of an Unrelated Live-In Caregiver
Reimbursement for the Rent and Food Expenses of an Unrelated Live-In Personal Caregiver. Select one:
 Yes. Per 42 CFR §441.310(a)(2)(ii), the State will claim FFP for the additional costs of rent and food that can be reasonably attributed to an unrelated live-in personal caregiver who resides in the same household as the waiver participant. The State describes its coverage of live-in caregiver in Appendix C-3 and the costs attributable to rent and food for the live-in caregiver are reflected separately in the computation of factor D (cost of waiver services) in Appendix J. FFP for rent and food for a live-in caregiver will not be claimed when the participant lives in the caregiver’s home or in a residence that is owned or leased by the provider of Medicaid services. The following is an explanation of: (a) the method used to apportion the additional costs of rent and food attributable to the unrelated live-in personal caregiver that are incurred by the individual served on the waiver and (b) the method used to reimburse these costs:
X No. The State does not reimburse for the rent and food expenses of an unrelated live-in personal caregiver who resides in the same household as the participant.

State: Effective Date

Alabama October 1, 2008

Appendix I-6: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 118 of 132
Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
APPENDIX I-7: Participant Co-Payments for Waiver Services and Other Cost Sharing
a. Co-Payment Requirements. Specify whether the State imposes a co-payment or similar charge upon waiver participants for waiver services. These charges are calculated per service and have the effect of reducing the total computable claim for federal financial participation. Select one:
X No. The State does not impose a co-payment or similar charge upon participants for waiver services. (Do not complete the remaining items; proceed to Item I-7-b).
 Yes. The State imposes a co-payment or similar charge upon participants for one or more waiver services. (Complete the remaining items)
i. Co-Pay Arrangement Specify the types of co-pay arrangements that are imposed on waiver participants (check each that applies):
Charges Associated with the Provision of Waiver Services (if any are checked, complete Items I-7-a-ii through I-7-a-iv):  Nominal deductible  Coinsurance  Co-Payment  Other charge (specify):
ii Participants Subject to Co-pay Charges for Waiver Services. Specify the groups of waiver participants who are subject to charges for the waiver services specified in Item I-7-a-iii and the groups for whom such charges are excluded

iii. Amount of Co-Pay Charges for Waiver Services. In the following table, list the waiver services for which a charge is made, the amount of the charge, and the basis for determining the charge.

Waiver Service Amount of Charge

Basis of the Charge

State: Effective Date

Alabama October 1, 2008

Appendix I-7: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 119 of 132
Appendix I: Financial Accountability
HCBS Waiver Application Version 3.3 – Post October 2005
iv. Cumulative Maximum Charges. Indicate whether there is a cumulative maximum amount for all co-payment charges to a waiver participant (select one):
 There is no cumulative maximum for all deductible, coinsurance or co-payment charges to a waiver participant.
 There is a cumulative maximum for all deductible, coinsurance or co-payment charges to a waiver participant. Specify the cumulative maximum and the time period to which the maximum applies:
v. Assurance. The State assures that no provider may deny waiver services to an individual who is eligible for the services on account of the individual's inability to pay a cost-sharing charge for a waiver service.
b. Other State Requirement for Cost Sharing. Specify whether the State imposes a premium, enrollment fee or similar cost sharing on waiver participants as provided in 42 CFR §447.50. Select one:
X No. The State does not impose a premium, enrollment fee, or similar cost-sharing arrangement on waiver participants.
 Yes. The State imposes a premium, enrollment fee or similar cost-sharing arrangement. Describe in detail the cost sharing arrangement, including: (a) the type of cost sharing (e.g., premium, enrollment fee); (b) the amount of charge and how the amount of the charge is related to total gross family income (c) the groups of participants subject to cost-sharing and the groups who are excluded; and, (d) the mechanisms for the collection of cost-sharing and reporting the amount collected on the CMS 64:

State: Effective Date

Alabama October 1, 2008

Appendix I-7: 2

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 120 of 132

Appendix J: Cost Neutrality Demonstration

Appendix J-1: Composite Overview and Demonstration of Cost-Neutrality Formula

Composite Overview. Complete the following table for each year of the waiver.

Col. 1
Year 1 2 3 4 5

Level(s) of Care (specify): NH

Col. 2

Col. 3

Col. 4

Factor D 9,659
10,009 10,368 10,742 11,130

Factor D′
11,627 12,046 12,480 12,929 13,394

Total:
D+D′
21,286
22,055 22,848
23,671
24,524

Col. 5

Col. 6

Factor G 31,413 32,544 33,716 34,930 36,186

Factor G′
2,510 2,601 2,694 2,791 2,892

Col. 7
Total:
G+G′
33,923 35,145 36,410 37,721 39,078

Col. 8 Difference (Column 7 less Column 4)
12,637
13,090
13,562
14,050
14,554

State: Effective Date

Alabama October 1, 2008

Appendix J-1: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 121 of 132

Appendix J-2 - Derivation of Estimates
a. Number Of Unduplicated Participants Served. Enter the total number of unduplicated participants from Item B-3-a who will be served each year that the waiver is in operation. When the waiver serves individuals under more than one level of care, specify the number of unduplicated participants for each level of care:

Table J-2-a: Unduplicated Participants

Waiver Year
Year 1 Year 2 Year 3 Year 4 (renewal only) Year 5 (renewal only)

Total Unduplicated Number of Participants
(From Item B-3-a)
9205 9205 9205 9205 9205

Distribution of Unduplicated Participants by Level of Care (if applicable)

Level of Care:

Level of Care:

Nursing Facility

9205

9205 9205

9205

9205

b. Average Length of Stay. Describe the basis of the estimate of the average length of stay on the waiver by participants in Item J-2-d.
Average length of stay is derived by dividing the total number of days in a waiver year by the total number of clients served. This information is based on data in the CMS-372 Report for year 10/01/2005-09/30/2006.

c. Derivation of Estimates for Each Factor. Provide a narrative description for the derivation of the estimates of the following factors.
i. Factor D Derivation. The estimates of Factor D for each waiver year are located in Item J-2-d. The basis for these estimates is as follows:
Factor D is derived from data shown by the CMS-372 Report, Waiver #0068.91.R2, for Waiver Year 2006, with a 3.6 percent inflation factor applied to each year of the renewal period.

ii. Factor D′ Derivation. The estimates of Factor D’ for each waiver year are included in Item J-1. The basis of these estimates is as follows:
Factor D’ is derived from data shown by the CMS-372 Report, Waiver #0068.91.R2, for Waiver Year 2006, with a 3.6 percent inflation factor applied to each year of the renewal period.

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 1

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 122 of 132
iii. Factor G Derivation. The estimates of Factor G for each waiver year are included in Item J-1. The basis of these estimates is as follows: Factor G is derived from data shown by the CMS-372 Report, Waiver #0068.91.R2, for Waiver Year 2006, with a 3.6 percent inflation factor applied to each year of the renewal period.
iv. Factor G′ Derivation. The estimates of Factor G’ for each waiver year are included in Item J-1. The basis of these estimates is as follows: Factor G’ is derived from data shown by the CMS-372 Report, Waiver #0068.91.R2, for Waiver Year 2006, with a 3.6 percent inflation factor applied to each year of the renewal period.

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 2

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 123 of 132

X The waiver does not operate concurrently with a §1915(b) waiver. Complete Item J-2-d-i  The waiver operates concurrently with a §1915(b) waiver. Complete Item J-2-d-ii

i. Estimate of Factor D – Non-Concurrent Waiver. Complete the following table for each waiver year

Waiver Year: Year 1(10/01/2007-09/30/2008)

Waiver Service

Col. 1
Unit

Col. 2
# Users

Col. 3
Avg. Units Per User

Col. 4
Avg. Cost/ Unit

Case Management Personal Care Homemaker Respite Care (Skilled) Respite Care (Unskilled) Adult Day Health Companion Home Delivered Meals
Frozen Meals*
Frozen Meals**
Breakfast Meals
Shelf Stable Meals

15 min 15 min 15 min 15 min 15 min
Day 15 min
7 meals per week
14 meals per week 7 meals per
week 2 annually

9205 5339 6996 368 1933 368 4603
921
921
644
2485

144 664 896 1152 1052 127 480
52
104
52
2

$15.28 $4.41 $4.49 $5.67 $4.24 $18.25 $3.97
$26.58
$26.58
$12.03
$7.29

Col. 5
Total Cost
$20,253,945.60 $15,642,736.10 $28,113,845.76
$2,402,657.28 $8,622,107.84
$852,932.00 $8,765,953.20
$1,272,969.36
$2,545,938.72
$402,860.64
$36,231.30

GRAND TOTAL: TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a) FACTOR D (Divide grand total by number of participants) AVERAGE LENGTH OF STAY ON THE WAIVER

$88,912,177.80 9205
$9,659.12 277

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 3

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 124 of 132

Waiver Year: Year 2(10/01/2008-09/30/2009)

Waiver Service
Case Management Personal Care Homemaker Respite Care (Skilled) Respite Care (Unskilled) Adult Day Health Companion Home Delivered Meals
Frozen Meals*
Frozen Meals**
Breakfast Meals
Shelf Stable Meals

Col. 1
Unit
15 min 15 min 15 min 15 min 15 min
Day 15 min
7 meals per week
14 meals per week 7 meals per
week 2 annually

Col. 2
# Users
9205 5339 6996 368 1933 368 4603

Col. 3
Avg. Units Per User
144 664 896 1152 1052 127 480

Col. 4
Avg. Cost/ Unit
$15.83 $4.57 $4.65 $5.87 $4.40 $18.91 $4.11

921 921 644 2385

52

$27.54

104

$27.54

52

$12.46

2

$7.56

Col. 5
Total Cost
$20,982,981.60 $16,201,088.72 $29,132,463.36
$2,489,564.16 $8,947,470.40
$883,777.76 $9,080,798.40
$1,318,945.68
$2,637,891.36
$417,260.48
$37,573.20

GRAND TOTAL: TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a) FACTOR D (Divide grand total by number of participants) AVERAGE LENGTH OF STAY ON THE WAIVER

$92,129,815.12 9205
$10,008.67 277

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 4

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 125 of 132

Waiver Year: Year 3(10/01/2009-09/30/2010)

Waiver Service
Case Management Personal Care Homemaker Respite Care (Skilled) Respite Care (Unskilled) Adult Day Health Companion Home Delivered Meals
Frozen Meals*
Frozen Meals**
Breakfast Meals
Shelf Stable Meals

Col. 1
Unit
15 min 15 min 15 min 15 min 15 min
Day 15 min
7 meals per week
14 meals per week 7 meals per
week 2 annually

Col. 2
# Users
9205 5339 6996 368 1933 368 4603

Col. 3
Avg. Units Per User
144 664 896 1152 1052 127 480

Col. 4
Avg. Cost/ Unit
$16.40 $4.74 $4.82 $6.09 $4.55 $19.59 $4.26

921 921 644 2485

52

$28.53

104

$28.53

52

$12.91

2

$7.83

Col. 5
Total Cost
$21,738,528.00 $16,794,892.30 $30,182,423.04
$2,579,650.56 $9,252,497.80
$915,558.24 $9,406,690.80
$1,366,358.76
$2,732,717.52
$432,330.08
$38,915.10

GRAND TOTAL: TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a) FACTOR D (Divide grand total by number of participants) AVERAGE LENGTH OF STAY ON THE WAIVER

$95,440,562.20 9205
$10,368.34 277

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 5

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 126 of 132

Waiver Year: Year 4 (renewal only) (10/01/2010-09/30/2011)

Waiver Service
Case Management Personal Care Homemaker Respite Care (Skilled) Respite Care (Unskilled) Adult Day Health Companion Home Delivered Meals
Frozen Meals*
Frozen Meals**
Breakfast Meals
Shelf Stable Meals

Col. 1
Unit
15 min 15 min 15 min 15 min 15 min
Day 15 min
7 meals per week
14 meals per week 7 meals per
week 2 annually

Col. 2
# Users
9205 5339 6996 368 1933 368 4603

Col. 3
Avg. Units Per User
144 664 896 1152 1052 127 480

Col. 4
Avg. Cost/ Unit
$16.99 $4.91 $4.99 $6.31 $4.72 $20.30 $4.41

921 921 644 2485

52

$29.56

104

$29.56

52

$13.37

2

$8.11

Col. 5
Total Cost
$22,520,584.80 $17,397,558.62 $31,263,724.80
$2,672,916.48 $9,598,195.52
$948,740.80 $9,743,630.40
$1,415,687.52
$2,831,375.04
$447,734.56
$40,306.70

GRAND TOTAL: TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a) FACTOR D (Divide grand total by number of participants) AVERAGE LENGTH OF STAY ON THE WAIVER

$98,880,455.24 9205
$10,742.04 277

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 6

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 127 of 132

Waiver Year: Year 5 (renewal only) (10/01/2011-09/30/2012)

Waiver Service
Case Management Personal Care Homemaker Respite Care (Skilled) Respite Care (Unskilled) Adult Day Health Companion Home Delivered Meals
Frozen Meals*
Frozen Meals **
Breakfast Meals
Shelf Stable Meals

Col. 1
Unit
15 min 15 min 15 min 15 min 15 min
Day 15 min

Col. 2
# Users
9205 5339 6612 368 1933 368 4603

Col. 3
Avg. Units Per User
144 664 896 1152 1052 127 480

Col. 4
Avg. Cost/ Unit
$17.60 $5.09 $5.17 $6.53 $4.89 $21.03 $4.57

7 meals per week
14 meals per week
7 meals per week
2 annually

921 921 644 2485

52

$30.62

104

$30.62

52

$13.86

2

$8.40

Col. 5
Total Cost
$23,332,465.80 $18,026,813.16 $32,392,039.68
$2,769,361.92 $9,943,893.24
$982,895.47 $10,097,140.80
$1,466,453.04
$2,932,906.08
$464,143.68
$41,748.00

GRAND TOTAL: TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a) FACTOR D (Divide grand total by number of participants) AVERAGE LENGTH OF STAY ON THE WAIVER

$102,449,860.87 9205
$11,129.81 277

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 7

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 128 of 132

ii. Estimate of Factor D – Concurrent §1915(b)/§1915(c) Waivers. Complete the following table for each waiver year.

Waiver Year: Year 1

Col. 1

Col. 2

Col. 3

Col. 4

Waiver Service

Check if

included in

Unit

capitation



































# Users

Avg. Units Per User

GRAND TOTAL:

Total: Services included in capitation

Total: Services not included in capitation

TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a)

FACTOR D (Divide grand total by number of participants)

Services included in capitation

Services not included in capitation

AVERAGE LENGTH OF STAY ON THE WAIVER

Col. 5
Avg. Cost/ Unit

Col. 6 Total Cost

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 8

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 129 of 132

Waiver Year: Year 2

Col. 1

Col. 2

Col. 3

Col. 4

Waiver Service

Check if

included in

Unit

capitation



































# Users

Avg. Units Per User

GRAND TOTAL:

Total: Services included in capitation

Total: Services not included in capitation

TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a)

FACTOR D (Divide grand total by number of participants)

Services included in capitation

Services not included in capitation

AVERAGE LENGTH OF STAY ON THE WAIVER

Col. 5
Avg. Cost/ Unit

Col. 6 Total Cost

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 9

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 130 of 132

Waiver Year: Year 3

Col. 1

Col. 2

Col. 3

Col. 4

Waiver Service

Check if

included in

Unit

capitation



































# Users

Avg. Units Per User

GRAND TOTAL:

Total: Services included in capitation

Total: Services not included in capitation

TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a)

FACTOR D (Divide grand total by number of participants)

Services included in capitation

Services not included in capitation

AVERAGE LENGTH OF STAY ON THE WAIVER

Col. 5
Avg. Cost/ Unit

Col. 6 Total Cost

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 10

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 131 of 132

Waiver Year: Year 4 (Renewal Only)

Col. 1

Col. 2

Col. 3

Col. 4

Waiver Service

Check if

included in

Unit

capitation



































# Users

Avg. Units Per User

GRAND TOTAL:

Total: Services included in capitation

Total: Services not included in capitation

TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a)

FACTOR D (Divide grand total by number of participants)

Services included in capitation

Services not included in capitation

AVERAGE LENGTH OF STAY ON THE WAIVER

Col. 5
Avg. Cost/ Unit

Col. 6 Total Cost

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 11

Case 2:10-cv-00688-MEF-TFM Document 16-6 Filed 09/29/10 Page 132 of 132

Waiver Year: Year 5 (Renewal Only)

Col. 1

Col. 2

Col. 3

Col. 4

Waiver Service

Check if

included in

Unit

capitation



































# Users

Avg. Units Per User

GRAND TOTAL:

Total: Services included in capitation

Total: Services not included in capitation

TOTAL ESTIMATED UNDUPLICATED PARTICIPANTS (from Table J-2-a)

FACTOR D (Divide grand total by number of participants)

Services included in capitation

Services not included in capitation

AVERAGE LENGTH OF STAY ON THE WAIVER

Col. 5
Avg. Cost/ Unit

Col. 6 Total Cost

State: Effective Date

Alabama October 1, 2008

Appendix J-2: 12

 
 Case 2:10-cv-00688-MEF-TFM Document 20 Filed 10/07/10 Page 1 of 76

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JONATHAN PAUL BOYD,

)

)

Plaintiff,

)

)

v.

)

)

CAROL H. STECKEL,

)

in her official capacity as Commissioner

)

of the Alabama Medicaid Agency,

)

)

Defendant.

)

Civil Action Number: 2:10-cv-00688-MEF-TFM

COMMISSIONER STECKEL’S OPPOSITION TO PLAINTIFF’S AMENDED MOTION FOR PRELIMINARY INJUNCTION (DOC. 15)

Stephanie McGee Azar General Counsel ALABAMA MEDICAID AGENCY 501 Dexter Avenue Post Office Box 5624 Montgomery, Alabama 36103-5624 Telephone: 334.242.5126 Facsimile: 334.353.3907
stephanie.azar@medicaid.alabama.gov

TROY KING ATTORNEY GENERAL
Margaret L. Fleming (FLE001) James W. Davis (DAV103) Misty S. Fairbanks (FAI005) Assistant Attorneys General OFFICE OF THE ATTORNEY GENERAL 500 Dexter Avenue Montgomery, Alabama 36130 Switchboard: 334.242.7300 Facsimile: 334.353.8440 mfleming@ago.state.al.us jimdavis@ago.state.al.us mfairbanks@ago.state.al.us
Attorneys for Commissioner Steckel

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Case 2:10-cv-00688-MEF-TFM Document 20 Filed 10/07/10 Page 2 of 76
Table of Contents I. INTRODUCTION ........................................................................................................................ 4 II. BACKGROUND ........................................................................................................................ 7
A. This Litigation........................................................................................................... 7 1. Procedural History ......................................................................................... 7 2. The Claims ..................................................................................................... 7
B. Plaintiff Jonathan Paul Boyd..................................................................................... 8 1. Mr. Boyd’s Injury and Move to a Nursing Home.......................................... 8 2. Transportation to and from the University of Montevallo............................. 9 3. Mr. Boyd’s Preference for Community Living.............................................. 11 4. Mr. Boyd’s Substantial Needs ....................................................................... 13
C. Alabama’s Medicaid Home and Community Based Waiver Programs .................... 18 1. Medicaid and the State Plan........................................................................... 18 2. The Creation of Home and Community Based Waiver Programs................. 19 3. Waiver Programs Are Flexible, Yet Constrained .......................................... 21 4. Cost Neutrality ............................................................................................... 22 5. The Cap .......................................................................................................... 23 6. Federal Approval ........................................................................................... 24 7. Alabama’s Home and Community Based Waiver Programs......................... 24
III. PRELIMINARY INJUNCTION STANDARD ................................................................................. 26 IV. SUMMARY OF THE ARGUMENT ............................................................................................. 27
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V. Mr. BOYD IS NOT LIKELY TO PREVAIL ON THE MERITS ......................................................... 29 A. The ADA & Rehab Act: Statutes and Regulations ................................................... 29 1. The Statutes.................................................................................................... 30 2. The Regulations ............................................................................................. 31 3. The Statutes and Regulations Collected ........................................................ 33 B. The Olmstead Decision ............................................................................................. 34 C. Constitutional Limitations......................................................................................... 37 1. The ADA........................................................................................................ 39 2. The Rehab Act ............................................................................................... 41 D. Statutory Interpretation ............................................................................................. 42 E. 28 C.F.R. § 35.135, Personal Devices and Services.................................................. 48 F. Mr. Boyd’s Claim Fails Under His Own Analysis .................................................... 51 1. Qualified Individual ....................................................................................... 52 2. Consent .......................................................................................................... 60 3. Fundamental Alteration ................................................................................. 61
VI. Mr. BOYD IS NOT SUFFERING ANY IRREPARABLE INJURY ................................................... 65 VII. THE BALANCE OF HARDSHIPS DOES NOT FAVOR MR. BOYD .............................................. 67 VIII. A PRELIMINARY INJUNCTION WOULD NOT BE IN THE PUBLIC INTEREST........................... 72 IX. CONCLUSION ........................................................................................................................ 75
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I. INTRODUCTION Mr. Boyd is understandably anxious to liv e on his own, at any cost. Indeed, he argues that cost is no t a legitimate barrier to his goal, and that the State m ust reimburse him for all m edical services and equipment necessary to enable him to reside independently. The legal ground asserted is the general nondiscrimination language that appears in Title II of the Americans with Dis abilities Act of 1990, 42 U.S.C. § 12132, and its implementing regulations, and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and its implementing regulations. There are several reasons w hy Mr. Boyd’s legal argum ent fails. First, it m ay be assumed that Mr. Boyd’s desire to move out of the nursing hom e is shared by almost everyone who lives there. As a practical m atter, it is not econom ically advisable to provide constant nursing care for everyone in their private homes, simply because that is what they prefer. Federal law does not requi re it, and it w ould bankrupt the Medicaid system to do away with nursing homes and replace them with a hom e-based system of medical care. Instead, federal Medicaid law perm its the State s to cre ate and implem ent Medicaid Waiver programs that provide reimbursement for limited home-based care, but only when the States can ensure that such programs are a cost-neu tral alternative to institutional care. The requirement of co st-neutrality firmly imbedded in f ederal Medicaid law represents an express Congressional compromise that limits the availability of Medicaid funds to those situations wher e it m akes sense, econom ically, to provide medical care at home. Mr. Boyd’s expansive reading of the anti-discrimination language of the ADA and Rehab Act would repeal this express Congressional m andate of cost-
4

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neutrality, however. Such a reading is contra ry to the well-established rules of statutory construction designed to effect true legislative intent.
Second, there are very detailed rules that govern adm ission to the State’s Medicaid Waiver programs, and Mr. Boyd ha s not followed them. Mr. Boyd has filed a copy of the application of the State’s Medi caid Elderly & Disabled (E & D) W aiver, suggesting that he seeks adm ission to that waiv er program. It does not appear that Mr. Boyd has followed the established procedures for adm ission to that Waiver program , however: His nam e does not appear on the re ferral lists maintained by the respo nsible State agencies.
Moreover, those procedures are not pe rfunctory: One of the established procedures requires that a car e plan be developed by a case worker to ensure Mr. Boyd’s safety. The care-plan requirement is mandated by federal Medicaid law. Again, contrary to sound principles of statutory construc tion, Mr. Boyd reads the non-specific antidiscrimination language of the ADA and Reha b Act in a m anner that would repeal the detailed mandates of federal Medicaid law.
Mr. Boyd’s reliance on Olmstead v. L.C. by Zimring , 527 U.S. 581 (1999), is misplaced. Olmstead addressed the needs of persons w ith mental disabilities who were required to reside in State -operated mental institutions in order to rece ive medical services that they n eeded, while persons without mental illness were not requir ed to be thus confined. In Olmstead, the State’s ow n treatment professionals certified that community placement was approp riate. Here, Mr. Boyd has produ ced no m edical opinion suggesting that he does not need the le vel of care that a nursing home ensures, and his requested modifications to the existing waiver programs are not reasonable.
5

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Alabama operates waiver program s designed to s erve disabled persons in the community, but those program s have limits in the number of people they serve and the types and amounts of services offered. N one of Alaba ma’s waiver program s provide everything that Mr. Boyd requests. Moreove r, when no m edical professional has com e forth to say that those servic es would be sufficient, the C ourt cannot be sure that Mr. Boyd can safely live in the community under the terms he demands.
What Mr. Boyd requests, in essence, is that the State create a waiver program just for him, and a private nursing hom e of one, pr oviding whatever he needs to live in the community, ignoring costs (although Federal re gulations require the State to consider costs), and ignoring procedures designed to ensure the health and safety of participants (although Federal regulations requ ire the State to follow the pr ocedures). Federal law does not require the State to m ake such fundamental alterations to its existing programs, and if it were to do so, the State will lo se federal m atching funds, thereby lim iting the services it can provide to others.
These arguments are set out in detail in the following sections. In the end, we submit that the Court should not order injunctiv e relief when there is a com plete absence of medical testimony setting out what serv ices Mr. Boyd needs, when Mr. Boyd has not gone through the application pr ocess that would enable State case workers to consider a plan of care and cost-effectiveness, and when Mr. Boyd’s requests would require a fundamental alteration to a complex, detailed Medicaid program.
6

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II. BACKGROUND

A. THIS LITIGATION

1. Procedural History

Paul Boyd filed his original Com plaint in this case on August 12, 2010. Doc. 1.

On August 17, 2010, Mr. Boyd filed a m otion for preliminary injunction and expedited

hearing, doc. 3, as well as a m emorandum of law in support of the m otion, doc. 4, which

was supported by a personal declaration, doc. 4-1. The sole nam ed defendant, the

Honorable Carol Steckel, Comm issioner of the Alabama Medicaid Agency, tim ely

answered on September 14, 2010. Doc. 1 at ¶ 13; doc. 11.

At that time, the case had been ran domly assigned to a United Sta tes Magistrate

Judge. The case was re-assigned on September 23, 2010. Doc. 13.

Shortly thereafter, on Septem ber 29, 2010, Mr. Boyd filed an Am

ended

Complaint. Doc. 14. That sam e day, he filed an am ended motion, doc. 15, and

memorandum in support, doc. 16. Mr. Boyd on ce again sought an expedited hearing.

Doc. 15. Mr. Boyd also attached an amended personal declaration. Doc. 16-1.

The next day, the Court granted Mr. Boyd’ s request for an expedited hearing,

setting the hearing for October 13, 2010, and requiring Commissioner Steckel’s response

be filed by October 7, 2010. Doc. 17.

2. The Claims

The Amended Complaint asserts two claim s for relief. First, Mr. Boyd alleges a

violation of the anti-d iscrimination provision in Title I I of the Am ericans with

7

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Disabilities Act of 1990, 42 U.S.C. § 12132, and its im plementing regulations.1 Doc. 14 at ¶¶ 54-58. Second, Mr. Boyd alleges a viola tion of the anti-discrimination provision in § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and its im plementing regulations. Id. at ¶¶ 59-61. The am ended motion fo r preliminary injunction relies on both of these claims. Doc. 15 at ¶ 29; doc. 16, generally.
B. PLAINTIFF JONATHAN PAUL BOYD 1. Mr. Boyd’s Injury and Move to a Nursing Home Paul Boyd avers th at he has quadriplegia as a result of a 19 95 accident that left
him paralyzed, depriving him of the use of both his arms and legs. Amended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶¶ 1, 3. After an initia l period of hospitalization and until 2006, Mr. Boyd was able to remain in his fam ily home, with his m other as his primary caregiver. Id. at ¶¶ 1, 4. During this tim e, Mr. Boyd participated in the Medicaid Home and Community Based Waiver program known as the State of Alabam a Independent Living (SAIL) W aiver, which is o perated by the Alabam a Department of Rehabilitation Services. Id. at ¶ 5; Affidavit of Marilyn Chappelle, doc. 19-3 at ¶ 12.
In December 2006, Mr. Boyd m oved from his mother’s home to Chandler Health and Rehab Center in Alabaster, Alabam a. Amended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶ 5; Affidavit of Andria Gaither , doc. 19-2 at 2, lines 9-10. W hile living at Chandler, Mr. Boyd is not elig ible to receive a ny Medicaid waiver services. Each Medicaid Waiver program is designed to be a cost-effective alternative for persons who

1

Except where otherwise noted, references to the ADA are to Title II, Part A of the

ADA, codified at 42 U.S.C. §§ 12131 – 12134. See also Olmstead, 527 U.S. at 589 &

n.3. It is Title II th at applies to public en tities. Part B of Title II concerns p ublic

transportation services. 42 U.S.C. §§ 12141 – 12165.

8

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otherwise would requ ire more costly institu tional care. See 42 C.F.R. § 430.25(b); Affidavit of Marilyn C happelle, doc. 19-3 at ¶ 17. Thus, Medicaid reim bursement for nursing home care precludes participation in a Medicaid Waiver program. Accordingly, Mr. Boyd relinquished his partic ipation in the SAIL waiver program when he chose to move away from the family home and into a nursing home.
2. Transportation to and from the University of Montevallo While living at Chandler, Mr. Boyd com pleted a bachelor’s degree from the University of Montevallo. Am ended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶¶ 5, 10. He traveled from Chandler to Montevallo using ClasTran. Id. at ¶ 12. T he Alabama Department of Rehabilitation Servi ces (Rehab Se rvices) paid for Mr. Boy d’s use of ClasTran and also paid $17,469 toward his tuition. Affidavit of Andria Gaither, doc. 19-1, page 2, lines 13-19. Mr. Boyd has now returned to classes at Montevallo in order to earn a m aster’s degree in counseling. Am ended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶ 11. Mr. Boyd is enrolled as a gra duate student, and Rehab Services is paying his tuition and other expenses. Affidavit of Andria Gaither, doc. 19-1, page 3, line 19, to page 4, line 14. Mr. Boyd asserts that ClasTr an is unavailable to tran sport him to the evening classes required for the master’s program. Amended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶ 12. Accordingly, he has m ade alternative transportation plans. Affi davit of Andria Gaither, doc. 19-1, page 3, line 19, to page 4, line 14. Specifically, Mr. Boyd has arranged to pay a Chandler employee $500 to transport him to and from his classes for the se mester. Am ended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶ 13.
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Mr. Boyd got the $500 from a scholarship. Id. He need not direct that scholarship toward his tuition expenses because the Rehab Services is paying his tuition. Affidavit of Andria Gaither, doc. 19-1, page 3, line 19-22. Rehab Services has a policy of being the provider of last resort, in order to encourage personal in dependence; since Mr. Boyd has other means to pay his driver, he should use those before rely ing on the State. Id., page 4, lines 15-20. Rehab Services has agreed to reimburse Mr. Boyd at a rate of 25¢ per mile for gasoline expenses to and from his master’s classes. Id., page 4, lines 6-10.
Mr. Boyd asserts that he has to “travel to cam pus on six other occasions this semester in order to complete required assignm ents” and that he is borrowing money from his brother in order to pay persons to transport him at those tim es. Ame nded Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶ 14. Mr. Boyd’s a ssertion that he has been “forced” into this position is disingenuous, however, as he failed to request assistance from Rehab Services—w hich has a history and current pr actice of ass isting him with transportation. Affidavit of Andria Gaither, doc. 19-1, page 3, line 19, to page 4, line 4.
Similarly, although he suggests that his livi ng situation is responsible for his only taking 2 courses, Mr. Boyd is enrolled for 9 credit hours, which is com parable to the course load that he took as an undergraduate, while residing with his mother. Id., page 3, lines 1-20. Mr. Boyd has not show n that a lack of transportation caused him to enroll in too few courses. Insofar as Rehab Services is concerned, transportation is not an obstacle that will be a barrier to his full partic ipation in his rehabilitation program. Id., page 4, lines 15-20.
10

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3. Mr. Boyd’s Preference for Community Living It is understandable, of course, that Mr. Boyd would prefer to live on cam pus rather than at Chandler. Am ended Declaration of Jonathan P aul Boyd, doc. 16-1 at ¶ 15. Like nearly every o ther college s tudent, he would enjoy spending m ore time with his friends, id. at ¶ 20, he would prefer to be in control of his own schedule, id., and would like to “be[] around people [his] own age and with similar interests and activities,” id. at ¶ 21.2 Boyd further asserts that privacy is lacking at Chandl er, while noise, scream ing, crying, states of undress, and an “unpleasan t disinfectant odor” are all too present. Id. at ¶ 22. He ad ditionally complains that “[a]s a Medicaid resident in the nursing home, [he] receive[s] only $30 of [his] monthly Social Security Disability check of $897. With such

2

The extent to which the fact of living in a nursing home, as opposed to the status

of being dependent on others, im pacts these preferences remains subject to p roof. A

news story in the Shelby County R eporter, which m ay not be accurate but which d oes

appear to be based in part on an interview with Mr. Boyd, reports:

Despite the distance, Boyd still tries to m ake it to Montevallo several times a week to visit with hi s friends and fa mily. He can often be found in Eclipse Coffee & Books laughing and hanging out with friends.

“If I don’t get out of here to get down there at least once a week, I feel like th e walls are c aving in on me,” he said. “That is a trea t. It’s something that I don’t take for granted.”

Katie Hurst, Quadriplegic man fights for dream , Shelby County Reporter, August 20, 2010, available at http://www.shelbycountyreporter.com/ 2010/08/20/quadriplegic-manfights-for-college-dream/ last visited August 20, 2010.

11

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limited financial resources, [he is] extremely limited in going to the movies, eating out, or having snacks.” Id. at ¶ 20.3
In short, Mr. Boyd asserts that his qualit y of life would improve if he had m ore spending money and if he were able to live independently and closer to campus so that he could attend various University functions. Amended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶ 15. Mr. Boyd asse rts that he “ha[s] located rental housing near the University of Montevallo which would su it [his] access ibility needs and would allow [him] to travel to and from campus readily and independently.” Id. at ¶ 17. He emphasizes that the housing will be availa ble in January 2011 and that he needs to “secure this housing as soon as possible.” Id. Mr. Boyd’s desire to secure this particular housing is the new basis for his seeking a preliminary injunction.
While Mr. Boyd’s stated desire is unquestioned, he has not provided any evidence whatsoever that he can safely reside in this housing alone. By his own admission, since the accident, Mr. Boyd has reside d either in a f acility or in his fam ily home with his mother serving as his primary caregiver. Id. at ¶¶ 1, 4. Mr. Boyd s eeks to live alone, but offers only his own personal assessm ent of his care needs, unsupported by any skilled medical assessment or opinion.
Before Mr. Boyd could be discharged fr om the nursing home, his physician must be satisfied that the planned arrangements will be sufficient to protect Boyd’s health and safety. Affi davit of Robert Moon, M.D., doc. 19-2 at ¶ 4. Mr. Boyd has provided no

3

A monthly Social Security Disabi lity check of $897 yields $10,764 annually.

Mr. Boyd’s motion estimates that “Alabama’s Medicaid nursing hom e reimbursement is

approximately $33,700 a year.” Doc. 15 at ¶ 25.

12

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medical assessment, however, and has iden tified no Medicaid approved provider who is willing to assist him with such care.
Conversely, a Medical Director at the Alabama Medicaid Agency, after reviewing the medical records from Chandler, has identified several m edical issues relevant to the analysis that a physician authorizing di scharge would conduct—including a num ber of medical needs that would require skilled medical care and careful, regular observation by a medical professional. Affidavit of Robert Moon, M.D., doc. 19-2 at ¶¶ 4-9.
4. Mr. Boyd’s Substantial Needs Mr. Boyd describes his needs as follows:
In order to live in th e community, I need community-based Medicaid services including ten hours per day of assistance with activities of daily living, assistance with my bowel program twice per week, assistance with changing m y catheter twice per m onth and necessary equipment and supplies.
Amended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶ 8. Mr. Boyd m ade a request for services through his attorneys, id. at ¶ 25, and his
attorneys included these settlem ent discussions in their preliminary injunction materials, doc. 16-3. W hile Mr. Boyd’s counsel’s list does not purport to be based on the professional advice of a Stat e treatment professional, see Olmstead, 527 U.S. at 602—or any treatment professional—it is useful in that it includes specifics on the desired medical equipment and supplies.4 Mr. Boyd’s list is as follows:

4

Mr. Boyd’s counsel recognized in his em ail communication that the list could not

be definitive: “With the caveat that we understand that [the Alabama] Medicaid [Agency]

should do a ‘needs assessm ent’ and work jointl y with the discharge planner at Chandler

Health and Rehabilitation to develop and i mplement a ‘discharge plan’ and ‘care plan’

for Mr. Boyd, we are providing inform ation concerning what we know about Mr. Boyd’s

transition needs at this time.” Email from Lonnie J. Williams, Alabama Disabilities

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• “Ten hours of assistance per day (for ac tivities of daily living, operating a lift for transfers, changing bed pads, giving medication, etc.” Doc. 16-3 at 4 (em phasis added). Ten hours per day translates into seventy (70) hours per week.
• “Nursing assistance once every two weeks for changin g his catheter.” Id. (emphasis added).
• “Nursing assistance twice per w eek for his bowel program .” Id. (emphasis added).
• “A bed/mattress that turns him.” Id. • “An environmental control unit to allow him to operate his telephone, television,
bed, and other electronics in his hom e, along with the attachm ent for the unit to make it mobile so Mr. Boyd can operate the unit from his wheelchair.” Id. • “An automatic door opener that Mr. Boyd can operate from his wheelchair.” Id. • “A Hoyer Heavy Duty Power Patient lift with cloth sling for transfers between the bed and wheelchair.” Id. • “Supplies including lotion, soap, ointm ent, two disposable pads per night, one 60cc syringe per day, and three catheters per month.” Id. • A nebulizer. Id. at 3. Mr. Boyd acknowledges that he requires nursing assistance for his bowel program and catheter replacements. Doc. 16 -3 at 4. What is not c lear is the e xtent to which Mr. Boyd would also need skil led nursing care to m eet some of his other healthcare
Advocacy Program (“ADAP”), to Stephanie McGee Azar, General Counsel, Alabama Medicaid Agency, and Margaret L. Flem ing, Assistant Attorney Ge neral, Office of the Alabama Attorney General (August 3, 2010, 4:45 p.m.), Doc. 16-3 at 4.
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needs, e.g., administration of medications and treatment of pressure sores. 5 Moreover, a Medical Director at the Alabama Medicaid Agency has identified a number of m edical concerns that would have to be addressed. Affidavit of Robert Moon, M.D., doc. 19-2 at ¶¶ 4-9.
Mr. Boyd has not yet produced medical evidence to show that his physician would recommend his living independently in the community. The resolution of that issue is complex and fact-driven. It might, for example, depend on whether Mr. Boyd is able to take advantage of a regulatory exception 6 that would perm it a nurse to delegate

5

Mr, Boyd asserts he has suffered from five pressure sores during his tim e at

Chandler, as com pared to only one pressure sore during the elev en years following the

accident when he was living in his f amily home. Amended Declaration of Jonathan Paul

Boyd, doc. 16-1 at ¶ 19. While unfortunate, if true, Chandler is not a nam ed defendant

and the Complaint s tates no claims for m edical malpractice, see doc. 1, generally—nor

could it since Commissioner Steckel does no t provide m edical care; she oversees an

agency that provides financial reimbursem ent for m edical care. The thrust of Boyd’s

Complaint is on the “institutional” structure of the nursing home, as opposed to the actual

care provided within its walls. Moreover, there is no evidence to support an inference

that the care given by an unsupe rvised personal attendant in Mr. Boyd’s private hom e

would be of superior quality than the care administered by the staff at Chandler.

6

Cf. Ala. Code § 34-21-20 (“In order to sa feguard life and health, any person

practicing or offering to practice professional nursing or practic al nursing in this [S]tate,

for compensation, shall hereaf ter be required to subm it evidence that he or she is

qualified so to practice and shall b e licensed as hereinafter provided. . . .”); Ala. C ode

§ 34-21-26 (declaring the practice of profe ssional nursing or pr actical nursing by

unlicensed persons to be a public nuisance and authorizing the Board of Nursing to seek

injunctive relief to restrain it); Ala. Code § 34-21-80 (“declar[ing] that the . . . regulation

of all areas of advanced practice nursing . . . [i s] essential to protect and maintain public

health and safety”); Ala. Code § 34-21-81(3) (defining an advanced practice nurse as “[a]

registered nurse [who] has gained additiona l knowledge and skills . . . and has been

certified by the Board of Nursing to enga ge in the practice of advanced practice

nursing.”); Ala. Code § 34-21-91 (authorizing the Board of Medical Exam iners and the

Board of Nursing to seek injunctions to re strain the unauthorized practice of advanced

practice nursing); Ala. Adm in. Code § 610-X-6-.04(1) (providing a non-com prehensive

15

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some aspects of his care to unlicensed pe rsonnel. That will, in turn, depend on Mr. Boyd’s specific needs (including w hether these needs m ake him suitable for services through the SAIL Waiver program), and on the professional judgment of licensed nurse.7 It is much too soon to know how this issue will be resolved , but it is impor tant to know that the is sue exists, an d to recogn ize that this possibility is a narrow exception to the otherwise controlling requirem ent for nursing care. Interestingly, the Shelby County

list of activities involved in the p ractice of professional nursing) ; Ala. Adm in. Code § 610-X-6-.05(1) (providing a non-com prehensive list of activities involved in the practice of practical nursing); Ala. A dmin. Code § 610-X-6-.07 (concerning “Medication Administration and Safety”; requiring, am ong other things, “applied knowledge of medication administration and safety,” the “exercise [of] decision-making skills,” which includes an “[a]ssessment of pa tient’s health status and complaint prior to and af ter administering medication included as needed (PRN) m edications,” and the ex ercise of skills concerning m atters such as “[m] easuring medication dosages” and “[m]ath calculations”); Ala. Adm in. Code § 610-X-6-.09 (concerning “Assessment Standards”); Ala. Admin. Code § 610-X-6-.13 (concerning “Standards for Wound Assessment and Care”).

7

The Alabama Board of Nursing has promulgated a regulation specific to the SAIL

Program. Ala. Admin. Code § 610-X-7-.03. SAIL is the waiver program through which

Boyd previously received som e services whil e living in the fa mily home. Affidavit of

Marilyn Chappelle, doc. 19-3 at ¶ 12. It is not the waiver program which Boyd has

attached to his memorandum. See doc. 16-6 (Elderly & Disabled Waiver).

The regulation allows “[r]egistered nur ses employed by the State of Alabam a Independent Living (SAIL) Pr ogram administered by the De partment of Rehabilitation Services” to “delegate tasks to a p atient’s designated caregiver if each [of the listed] conditions is met.” Ala. Admin. Code § 610-X-7-.03(1). The conditions include training and demonstrated competency. Id. Moreover, “[t]he specifi c delegated tasks shall not require the exercise of inde pendent nursing judgm ent or intervention.” Ala. Adm in. Code § 610-X-7-.03(2). The nurse rem ains involved, Ala. Adm in. Code § 610-X-7.03(3), and is ultimately “accountable and responsible for the nursing care,” Ala. Ad min. Code § 610-X-7-.03(5); see also Ala. Admin. Code § 610-X-6-.11 (concerning “Assignment, Delegation and Supervision”). Such a delegation m ay be withdraw n or suspended. Ala. Admin. Code § 610-X-7-.03(4).

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Reporter story, which, again, m ay not be accu rate and certainly does not am ount to a medical professional’s opinion but which does appear to be based on interviews with Mr. Boyd and his counsel, reports that Mr. Boyd requires “ at least 10 hours a day of nursing care.” Katie Hurst, Quadriplegic man fights for dream, Shelby County Reporter, August 20, 2010, available at http://www.shelbycountyreporter.com/ 2010/08/20/quadriplegicman-fights-for-college-dream/ last visited August 20, 2010 (emphasis added).
The level of care that Mr. Boyd requires as well as the quantity of care that a physician believes he needs are keys to assessing whether Mr. Boyd is a suitable candidate for any of Alabam a’s existing wa iver programs, as well as for assessing whether he can be served in the community in a fiscally responsible matter.
Lacking that inform ation, we do know that Mr. Boyd adm its he needs at least seventy hours of care per week, plus som e regular hours o f skilled nu rsing care each week, plus substantial adap tive equipment. The needs identified by Mr. Boyd alone, without considering additional needs dictated by a physician, exceed the care that would be reimbursable under any of Alabama’s existing waiver programs. Affidavit of Marilyn Chappelle, doc. 19-3 at ¶¶ 8-14.
Moreover, Medicaid Waiver programs are mutually exclusive, in accordance with federal law. Id. at ¶ 16. Such exclusivity is co nsistent with the requ irement that each Waiver program be, in fact, cost neutral. Thus, Boyd’s request th at his needs be m et through a “combination of waivers,” doc. 15 at 1, would be contrary to federal law.
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C. ALABAMA’S MEDICAID HOME AND COMMUNITY BASED WAIVER PROGRAMS8

1. Medicaid and the State Plan

“Medicaid was establis hed by Title XIX of the Social Security Act of 1965, 79

Stat. 343, as am ended, 42 U.S.C. § 1396 et seq. Medicaid is a join t [S]tate-[F]ederal

funding program for medical assistance in which the Federal Governm ent approves a

[S]tate plan for the funding of m edical services for the needy and then subsidizes a

significant portion of the financial obligations the State ha s agreed to assume. Once a

State voluntarily chooses to participate in Medicaid, the State m ust comply with the

requirements of Title X IX and applicable regu lations.” Alexander v. Choate , 469 U.S.

287, 289 n.1 (1985) (citing Harris v. McRae, 448 U.S. 297, 301 (1980)). See also Susan

J. v. Riley, 254 F.R.D. 439, 445 (M.D. Ala. 2008) (“Medicaid is a joint federal and [S]tate

program under Title XIX of the Social Security Act. 42 U.S.C. § 1396 et seq. The

federal government reimburses a portion of the expenditures incurred by [S]tates . . . .”).

It is undisputed that the Federal Govern ment funds a substan tial portion of what

Alabama spends on Medicaid. See doc. 14 at ¶ 53 (alleging that “Federal Medicaid funds

pay for approximately 68.54% of the cost of Alabama’s Medicaid program, increasing as

an enhanced [F]ederal m atch of approxim ately 77.91% e ffective October 1, 2010”);

Affidavit of Marilyn C happelle, doc. 19-3 at ¶ 19 (“Currently, the federal governm ent

pays approximately 70% of Alaba ma’s costs for reimbursement of s ervices provided

through its State Plan and Waiver programs.”).

8

Much of this inform ation is ta ken from briefing in the long-running Susan J. v.

Riley litigation, which just concluded last year. Susan J. v. Riley, Case No. 2:00-cv-918-

MEF (M.D. Ala., closed). Susan J. involved challenges to two Medicaid waiver

programs operated by the Departm ent of Ment al Health, specifically the Intellectual

Disabilities Waiver (formerly—and then—known as the Mental R etardation (MR)

Waiver), and the Living at Home (LAH) Waiver.

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2. The Creation of Home and Community Based Waiver Programs Alabama’s home and comm unity based waiver programs operate pursuant to
Section 1915(c) of the Social Secu rity Act, see Omnibus Reconciliation Act of 1981, Pub. L. No. 97-35, § 2176, 95 Stat. 812-13, codified as amended at 42 U.S.C. § 1396n(c), which Congress enacted in 1981. S ection 1915(c) gives the Secretary of the Department of Health and Human Services the power to waive certain require ments of the Medicaid Act. It provides in pertinent part:
The Secretary m ay by waiver p rovide that a S tate plan approved under this subchapter may include as “medical assistance” under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determ ination that but for the provision of such services the individuals would require the leve l of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan. . . . 42 U.S.C. § 1396n(c)(1) (emphasis added).9 Section 1915(c) gives States the flexib ility to offer the hom e and community based services that an indi vidual needs in order to a void institutionalization. See 42 C.F.R. § 441.300 (“Section 1915(c) of the Act perm its States to offer, under a waiver of statutory requirements, an array of hom e and community-based services that an individual needs to avoid institutionalization. Those services are defined in § 440.180 of this subchapter. This subpa rt describes what th e Medicaid agency m ust do to obtain a waiver.”).

9

As 42 U.S.C. § 1396n(c)(1) m akes clear, the Alabama Medicaid Agency does not

provide medical services; it pays for medical services.

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As 42 C.F.R. § 430.25(b) provides, Waivers are intended to provide th e flexibility needed to enable
States to try new or different approaches to the efficient and cost-effective delivery of health care services, or to adapt their programs to the special needs of particular areas or groups of recipients . W aivers allow exceptions to State plan requirements and perm it a State to implement innovative programs or activities on a time-limited basis, and subject to specific safeguards for the protec tion of recipients and the program . Detailed rules for waivers are set fort h in subpart B of part 431, subpart A of part 440, and subpart G of part 441 of this chapter.
42 C.F.R. § 430.25(b) (em phasis added). See Bryson v. Shumway , 308 F.3d 79, 82 (1st Cir. 2002) (“The waiver program is design ed to allow [S]tates to experim ent with methods of care, or to provide care on a targ eted basis, w ithout adhering to the strict mandates of the Medicaid system.”).
Thus, beginning in 1981, States were enco uraged to “try new or different approaches,” taking into account the array of se rvices that are actually available in each community. 42 C.F.R. § 430.25(b). Waiver “progr ams [are to be adapted] to the special needs of particular areas or groups of recipients,” id., as opposed to customized to meet individual needs. See also Alexander v. Choate , 469 U.S. at 303 (rejecting a Rehab Act claim; “ . . . Medicaid program s do not gu arantee that each recipient will re ceive that level of health care pre cisely tailored to his or her particular needs. Instead, the benefit provided through Medicaid is a particular package of health care services . . . .”).
Alabama soon took advantage of the wa iver option, creati ng the Intellectual Disabilities Waiver in 1981 and the Elderly & Disabled Waiver in 1982; the other waiver programs have followed in the years since. Doc. 16-4 (chart summarizing Alabama’s six waiver programs and indicating their start da tes; this chart is available on the Alab ama Medicaid Agency’s website at http:// www.medicaid.alabama.gov/documents/Program-
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LTC/3D-3c-2-HCBS_Waivers_Matrix_Chart_revised_4-10.pdf (last visited October 1, 2010)).
3. Waiver Programs Are Flexible, Yet Constrained Under their waiver prog rams, the States are expressly permitted to deviate f rom
certain other Medicaid requirements. See 42 U.S.C. § 1396n(c)(3).10 For example, under the waiver, unlike a State plan, “ho me and community-based services do not have to be provided throughout the State.” See Medicaid Program ; Home and Community-Based Services, 50 Fed. Reg. 10,013, 10,013 (Mar. 13, 1985). Moreover, “a State can choose to provide home and community-based services to a limited group of eligibles, such as the developmentally disabled.” Id. Also, “[t]he State is not required to provide the services to all eligible individuals who require an ICF [intermediate care facility] or SNF [skilled nursing facility] level of care.” Id. Importantly, “[u]nder the waiver, the State may exclude those individuals for whom there is a reasonable expecta tion that home a nd community-based services would be more expensive tha n the Med icaid services the individual would otherwise receive.” Id. (emphasis added).
States are encouraged to im plement “innovative” waiver program s, subject to “specific safeguards for the protection of recipients and the program .” 42 C.F.R. § 430.25(b). The State’s flexibility to design and administer Medicaid waiver programs is not unbounded; the State m ust takes steps to ensure that its de livery of health care services is “efficient and cost-effective.” Id.
10 In pertinent part, 42 U.S.C. § 1396n( c)(3) provides: “A waiver granted under this subsection may include a waiver of the requirements of section 1396a (a)(1) of this title (relating to statewideness), section 1396a(a )(10)(B) of this title (relating to comparability), and section 1396a(a )(10)(C)(i)(III) of th is title (relating to in come and resource rules applicable in the community).”
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4. Cost Neutrality
The State must dem onstrate that its waiver program is “cost ne utral”; that is, the
State must demonstrate that the ave rage cost per person served in a waiver program will
not be greater than the average cos t that would have been spent if the person had been
instead served in, for in stance, a nursing hom e. This require ment is made clear in the
statutes:
A waiver shall not be grante d under this subs ection unless the State provides assurances satisfactory to the Secretary that— . . . (D ) under such waiver the average per capita expenditure estim ated by the State in any fiscal year for m edical assistance provided with respect to such individuals does n ot exceed 1 00 percent of the average per cap ita expenditure that the State reasonably estimates would have been m ade in that fiscal year for expenditures under the State plan for such individuals if the waiver had not been granted . . . .
42 U.S.C. § 1396n(c)(2)(D).
The requirement for cost neutrality is also made clear in the regulations:
Unless the Medicaid agency provi des the following satisfactory assurances to CMS [Centers for M edicaid and Medicare Services], CMS will not grant a waiver under this subpart and may terminate a waiv er already granted:
. . . e) Average per capita expenditures. Assurance that the average per capita fiscal year expenditures unde r the waiver will no t exceed 10 0 percent of the average pe r capita expenditures that would have been made in the fiscal year for the level of care provided in a hospital, NF [nursing facility], or ICF/MR [interm ediate care facility for the mentally retarded] under the State plan had the waiver not been granted. (1) These expenditu res must be reason ably estimated and documented by the agency. (2) The estimate must be on an ann ual basis and must cover each year of the waiver period.
(f) Actual total expend itures. Assurance that th e agency’s actual total expenditures for hom e and comm unity-based and other Medicaid
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services under the waiv er and its claim for FFP [Federal financial participation] in expenditures for the services provided to recipients under the waiver will not, in any year of the waiver period, exceed 100 percent of the amount that would be incurred by the State’s Medicaid program for these individuals, absent the waiver, in--
(1) A hospital; (2) A NF [nursing facility]; or (3) An IC F/MR [intermediate care facility for the m entally retarded]. . . .
42 C.F.R. § 441.302(e)-(f). It is for this reason that Alabam a’s Medicaid waiver
programs contain various lim its on services a nd expenses, and thus on total costs for the programs.11
5. The Cap
Both Medicaid statutes and regulations c ontemplate that State waiver p lans will
limit the number of eligible participants in any year, i.e., there is a cap on the number of
persons served in a waiver program in any year. See 42 U.S.C. § 1396n(c)(9) (“ In the
case of any waiver under th is subsection which contains a li mit on t he number of
individuals who shall receive ho me or community-based services , the State m ay
substitute additional individuals to receive such services to replace any individuals who
die or become ineligible for services under the State plan.”) (emphasis added); 42. C.F.R.
§ 441.303(f)(6) (“The S tate must indicate the num ber of undup licated beneficiaries to
11 The email communications between couns el engaged in settlem ent discussions, which Mr. Boyd attached to his briefing, reflect the im pact of these lim its. See Email from Margaret L. Flem ing, Assistant Attorney General, Office of the Alabam a Attorney General, to Lonnie J. William s, ADAP, James Tucker, ADAP, and Steve Gold, Attorney at Law (August 4, 2010, 4:20 p.m .), Doc. 4- 3 at 2 (“T here are lim itations on the equipment and services that are reimbursabl e under the SAIL Progr am which appear to exceed, substantially, the needs you have identified.”).
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which it intends to provide waiver se rvices in each year of its program . This number will constitute a limit on th e size of th e waiver program unless the State requests and the Secretary approves a greater num ber of waiver participants in a waiv er amendment.”) (emphasis added).
This Court has held that “[t]he cap itself is clearly proper,” Susan J. v. Riley, 616 F.Supp.2d 1219, 1239 n. 17 (M.D . Ala. 2009), and that it serves as a constraint on eligibility for a waiver program, id. at 1239.12
6. Federal Approval The State’s waiver program s, as well as any am endments thereto, must be
approved by the Centers for Medicaid and Medicar e Services (CMS), which is within the United States Department of Health and Human Services; CMS was formerly the Health Care Financing Administration (HCFA). 42 C.F.R. § 430.25(e)-( f). A State’s application for a waiver m ay be approved or denied. See 42 C.F.R. § 430.25(f)(2) (“CMS regional and central office staff revi ew waiver requests and subm it a recomm endation to the Administrator, who—(i) Has th e authority to approve or de ny waiver requests; and (ii) Does not deny a request without f irst consulting the Secretary. ”) (formatting altered). This makes complete sense because Fede ral money—indeed, a good deal of Federal money—is being spent. See Section II.C.1, supra.
7. Alabama’s Six Home and Community Based Waiver Programs As set out in the chart atta ched to Mr. Boyd’s briefing, see doc. 16-4, Alabama
operates six waiver program s: the Elderly & Disabled (E &D) Waiver; the Intellectua l
12 The Susan J. plaintiffs had unsuccessfully sought to bust the cap on the Intellectual Disabilities Wa iver and the Living at Ho me Waiver. Mr. Boyd m akes statements suggesting that he m ight also be thinking about trying to bust the cap on one of Alabama’s existing waiver programs. See doc. 14 at ¶ 42.
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Disabilities Waiver, which was formerly known as the Mental Retardation (MR) Waiver;

the Living at Hom e (LAH) W aiver; the Sta te of Alabam a Independent Living (S AIL)

Waiver; the HIV/AIDS W aiver, which is also known as the 530 Waiver; and the

Technology Assisted (TA) Waiver for Adults. Id.

One need only glance at the chart to see that the different waivers have different

purposes, serve different populations, provide di fferent services, and have different age

requirements. Doc. 16-4. In addition, each one targets individuals who would otherwise

need either the level of care provided in a nursing facility or the level of care provided in

an intermediate care facility for the mentally retarded (ICF/MR). Id. Fi nally, and

returning to the idea th at these are limited programs with enrollment caps, each waiver

has a different num ber of slots available. The E&D Waiver is th e largest of the

programs, serving up to 9,205 persons. Id. By contrast, SAIL Waiver has 660 slots. Id.

As previously noted, Mr. Boyd has receive d services through the SAIL Waiver in

the past, Affidavit of Marilyn Chappelle, doc. 19-3 at ¶ 12; by his references and

attachments, he seems to be focused on the E&D W aiver now, see doc. 14 at ¶ 42, doc.

16-6. The Alabam a Medicaid Agency website ha s links to more information on each of

these six waiver p rograms, including copies of waiver app lications submitted to CMS.

Mr. Boyd has already filed a 132-page docum ent that purports to be the application for

the E&D Waiver. Doc. 16-6. The 102-page application for the SAIL Waiver is available

at

http://www.medicaid.alabama.gov/documents/Program-LTC/3-D-1-e-2-CMS-

SAIL_Waiver_rev_1-05-09.pdf last visited October 7, 2010; due to the length of the

document, it is not be ing filed at th is time. Still, as the le ngth of these and the other

applications make clear, adm inistering a Medicaid home and community-b ased waiver

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program is not without its com plexity. Indeed, federal financial participation essential to each Medicaid Waiver program is earned – an d retained – through the State’s strict and faithful compliance with a host of federal Medicaid regulations.
III. PRELIMINARY INJUNCTION STANDARD “The purpose of . . . a prelim inary injunction is ‘ merely to preserve the relative positions of the parties until a trial on the merits can be held.’” U.S. v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983) ( quoting University of Texas v. C amenisch, 451 U.S. 390, 395 (1981)). See also Canal Authority of State of Fla. v. C allaway, 489 F.2d 567, 573 (5th Cir. 1974) (“[T]he court m ust remember that a p reliminary injunction is an extraordinary and drastic rem edy which should not be granted unless the m ovant clearly carries the burden of persuasion. The prim ary justification for applying this rem edy is to preserve the court’s ability to render a meaningful decision on the merits.”).13 Sometimes, as in this ca se, a plaintiff seeks to use a preliminary injunction not to preserve the status quo but to change it—essentially jumping to his preferred end-game. In such a situation, th e Court should be partic ularly hesitant to act, not only because this is contrary to the purpo se of a prelim inary injunction but also because “[a] prelim inary injunction is a ‘material alteration of the legal relationship of the part ies’ . . . ,” and one which, under the right circumstances, may be sufficient to support an award of attorney’s fees. Common Cause/Georgia v. Billups , 554 F.3d 1340, 1356 (11 th Cir. 2009). Mr. Boyd seeks “costs of this action and reasonable attorney’s fees.” Doc. 14 at 13. 13 See Bonner v. City of Pritchard , 661 F.2d 1206, 1207 (11 th Cir. 1981) ( en banc) (“We hold that the decisions of the Unite d States Court of Appeal s for the Fifth Circuit . . . , as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.”).
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“To secure an injunction, a party must prove four elem ents: (1) a substantial likelihood of success o n the m erits; (2) irreparable injury absent an in junction; (3) the injury outweighs whatever dam age an in junction may cause the opposing party; and (4) an injunction is not adverse to the public interest.” Citizens for Police Accountability Political Committee v. Browning , 572 F.3d 1213, 1217 (11 th Cir. 2009) (reversing the grant of a prelim inary injunction barring enfo rcement of a Florida statute challenged on First Amendment grounds).
“The preliminary in junction is an e xtraordinary and drastic rem edy not to be granted unless the m ovant ‘clearly carries the burden of persuasion’ as to the four prerequisites. ‘The burden of persuasion in all of the four requirements is at all tim es upon the plaintiff.’” U.S. v. Jefferson County , 720 F.2d 1511, 1519 (11 th Cir. 1983) (internal citations to Canal Authority omitted). And, “[b]ecause a preliminary injunction is ‘an extraordinary and drastic rem edy,’ its grant is the exception rather than the rule . . . .” Lambert, 695 F.2d at 539 (citing Texas v. Seatrain International, S.A., 518 F.2d 175, 179 (5th Cir.1975)).
IV. SUMMARY OF THE ARGUMENT Mr. Boyd has not m et—and cannot m eet—his burden to de monstrate a strong likelihood of success on the m erits. Mr . Boyd seeks to use the general antidiscrimination provisions of Title II of th e Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), as well as their res pective implementing regulations, to circum vent Medicaid’s more specific statutory and regulatory sche me. Comm issioner Steckel contends that Mr. Boyd’s reading of the ADA, the Rehab Act, and thei r regulations would ra ise grave concerns
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about the constitutionality of thos e provisions, and, in any event, is inconsis tent with basic principles of statutory construction. Mr. Boyd’s reading is also inconsistent with a specific ADA regulation that provides that a public entity is no t required to pro vide “services of a personal nature including assi stance in eating, toileting, or dressing.” 28 C.F.R. § 35.135.
Additionally, Mr. Boyd is not entitled to a prelim inary injunction because he cannot demonstrate that he is likely to su ffer irreparable injury. Indeed, the urgency behind this litigation and the original preliminary injunction request, doc. 3, was tied to Mr. Boyd’s desire to start classes at the Un iversity of Montevallo; however, his current living arrangements did not prevent him from starting classes, doc. 14 (Am ended Complaint) at ¶ 26. Now, Mr. Boyd asserts th at he needs imm ediate relief in order to secure housing arrangem ents for next sem ester. Doc. 15 at ¶ 17. While housing in Montevallo may be m ore convenient, that is n o reason to jump to th e end-game by altering the status quo (of “more than three years,” Am ended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶ 1) at the prelim inary injunction stage—especially where it is unclear that Mr. Boyd’s health and safety can be assured in a community setting.
Furthermore, neither the balance of hardsh ips nor the public interest favors, at the preliminary injunction stage: (1) allowing Mr. Boyd to line-jum p within an existing Medicaid waiver program (should any be appr opriate for his needs), (2) an overhaul of the expensive and complex Federal-State Medicaid waiver program, or (3) the creation of a new, sui generis State-funded program.
For these reasons, and as m ore fully set out below, Mr. Boyd’s m otion for a preliminary injunction should be denied.
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V. MR. BOYD IS NOT LIKELY TO PREVAIL ON THE MERITS Mr. Boyd relies on both his ADA and Reha b Act claim s as the basis for his motion for preliminary injunction. See doc. 16, generally. For purposes of this response, Commissioner Steckel is prepared to generally assume, as Mr. Boyd asserts, doc. 16 at 6 n.2, that there is no differen ce in the analysis between an ADA claim and a Rehab Act claim, especially where, as here, a plaintiff is seeking “Olmstead” relief. See Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581 (1999). There ar e differences between the two provisions, however, and the Commissioner re serves the right to argue that those differences matter as the litigation advances.14 A. The ADA & Rehab Act: Statutes and Regulations In sharp co ntrast to th e detailed Medicaid statutory and regulatory scheme discussed above, Title II of the ADA and the Rehab Act are sparse.

14 One difference was identified by the Olmstead Court, wh ich said: “ Unlike the

ADA, § 504 of the Rehabilitation Act contains no express recognition that isolation or

segregation is a form of discrim ination. Section 504’s discrim ination proscription, a

single sentence attached to vocational rehabi litation legislation, ha s yielded divergent

court interpretations.” Olmstead, 527 U.S. at 600 n. 11 (citation om itted); see also id. at

589 n.1 (“In the ADA, Congress for the first time referred expressly to ‘segregation’ of

persons with disabilities as a ‘for[m] of discrimination,’ and to discrim ination that

persists in the area of ‘institutionalization.’”) (emphasis added; alteration by the Court) ;

doc. 16 at 6 (“In enacting the ADA,

Congress for the first time stated that

‘institutionalization’ was a ‘c ritical area’ where discrim ination persisted.”) (citation

omitted). Given the early stage of the proceed ings, and that claims are raised under both

Acts, this response does not explore the im plications of this difference. On the other

hand, the fact that § 504 of the Rehab Act is Spending Clause legislation is discussed

briefly below, insofar as it relates to arguments made there.

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1. The Statutes The anti-discrimination provision of Title II of the ADA provides : “Subject to
the provisions of this subchapter, no qualifie d 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 s uch entity.” 42 U.S.C. § 12132 (emphasis added). There are definitions for a “public entity ” and a “qualified individual with a disab ility,” 42 U.S.C. § 12131, but that single sentence is the heart of Title II.15
“Qualified individual with a disability ” is def ined as “an individual w ith a disability who, w ith or w ithout reasonable modifications to rules, policies, or practices, the removal of architectural, comm unication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or th e participation in programs o r activities provided by a public entity.” 42 U.S.C.A. § 12131(2) (emphasis added).16
The anti-discrimination provision of the Rehab Act, § 504, provides in pertinent part: “No otherwise qualified individual w ith a di sability in the United States . . . shall, solely by reason of h er or his disability, be exclude d from the participation in, be denied the benefits of, o r be subjected to discrimination under any program or activity receiving Federal financial a ssistance or under any program or activity conducted by any Executive agency . . . .” 29 U.S.C. § 794(a) (e mphasis added). 15 “Public entity” includes any State and any Department or Agency of a State. 42 U.S.C. § 12131(1). 16 Contrary to Mr. Boyd’s assertions, doc. 16 a t 7, whether he is a qualified individual insofar as the ADA and Rehab Act define that term, is contested. See Section V.F.1., infra.
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“Program or activity” is broadly defined, 29 U.S.C. § 794(b), and we assum e for present purposes that it applies to Alabama’s Medicaid waiver programs.
2. The Regulations “Congress instructed the Attorney Gene ral to issue regula tions implementing
provisions of Title II” of the ADA a nd provided that the regulations “‘shall be consistent with this chapter and w ith the coo rdination regulations . . . applicable to recipients of Federal financial assistance under [§ 504 of th e Rehab Act].’ § 204, as set forth in 42 U.S.C. § 12134(b). One of the § 504 regulations requires recipients of federal funds to ‘administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.’ 28 CFR § 41.51(d) (1998).” Olmstead, 527 U.S. at 591-92 (all alterations by the Court, except emphasis).
The Attorney General responded with, am ong other regulations, the ADA’ s “integration regulation,” which provides: “A public entity shall ad minister services, programs, and activities in the most integr ated setting appropriate to the need s of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). See also Olmstead, 527 U.S. at 592.
The Olmstead Court instructs that “[t]he preamble to the Attorney General’s Title II regulations defines ‘the m ost integrated se tting appropriate to th e needs of qualified individuals with disa bilities’ to mean ‘a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.’ 28 CFR pt. 35, App. A, p. 450 (1998).” Olmstead, 527 U.S. at 592 (emphasis added).
Finally, the Olmstead Court noted the existence of a fundam ental alteration defense, under the ADA, in the form of the “reasonable-modifications regulation.” Id.
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That regulation provides: “A public en tity shall make reasonable modifications in policies, practices, or procedures w hen the modifications are necessary to a void discrimination on the basis of disabilit y, unless the public entity can demonstrate that making the modifications w ould fundamentally alter the nature of the serv ice, program, or activity.” 28 C.F.R. § 35.130(b)(7) (emphasis added).
The ADA’s reasonable-m odifications regulation was based on the following regulation promulgated pursuant to § 504 of the Rehab Act: “A recipient shall m ake reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on th e operation of its program.” 28 C.F.R. § 41.53. See also Olmstead, 527 U.S. at 606 n. 16 (plurality).
According to the Olmstead Plurality, “While the part 41 [Rehab Act] regulations do not define ‘undue hardship,’ other § 504 regulations make clear that the ‘undue hardship’ inquiry requires not simply an assessment of the cost of the accommodation in relation to the recipient’s overall budget, but a ‘case-by-case analysis weighing factors that include: (1)[t]he overall size of the r ecipient’s program with respect to num ber of employees, number and type of facilities, and size of budget; (2)[ t]he type of the recipient’s operation, including the composition and structure of the recipient’s workforce; and (3)[t]he nature an d cost of the accommodation needed.’ 28 CFR § 42.511(c) (1998); see 45 CFR § 8 4.12(c) (1998) (same).” Olmstead, 527 U.S. at 606 n.16 (Plurality Opinion) (alterations by the Court).
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3. The Statutes and Regulations Collected

THE ADA

THE REHAB ACT

Antidiscrimination Statute

“No otherwise qualified individual with a

“Subject to the provisions of this

disability in the United States . . . shall,

subchapter, no qualified individual with a solely by reason of her or his disability, be

disability shall, by reason of such excluded from the participation in, be

disability, be excluded from participation denied the benefits of , or be subjected to

in or be denied the benefits of the services, discrimination under any program or

programs, or activities of a public entity, or activity receiving Federal financial

be subjected to discrim ination by any such assistance or under any program or activity

entity.” 42 U.S.C. § 12132.

conducted by any Executive agency . . . .”

29 U.S.C. § 794(a).

Integration Regulation

“A public e ntity shall administer services,

programs, and activities in the

most

integrated setting appropriate to the needs

of qualified individuals with d isabilities.”

28 C.F.R. § 35.130(d).

“Recipients shall adm inister programs and

activities in the m ost integrated setting

appropriate to the needs of

qualified

handicapped persons.” 28 CFR § 41.51(d).

Fundamental Alteration Defense

“A public entity shall m ake reasonable modifications in policies, practices, or procedures when the m odifications are necessary to avoid discrim ination on the basis of disability, un less the pub lic entity can demonstrate that m aking the modifications would fundam entally alter the nature of the se rvice, program, or activity.” 28 C.F.R. § 35.130(b)(7).

“A recipient shall m ake reasonable accommodation to the known physical o r mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that th e accommodation would im pose an undue hardship on the operation of its program .” 28 C.F.R. § 41.53.

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B. The Olmstead Decision Mr. Boyd’s case is built on Olmstead, which concerned two women who “ha[d] a
history of treatment in institutional settings”; both were pers ons with mental retardation, and one had a diagnoses of schizophrenia wh ile the other had a di agnosis of personality disorder. Olmstead, 527 U.S. at 593. The Opinion includes references to voluntary admission to f acilities, as well as repe ated references to confinem ent and institutionalization. See e.g., id. Eventually , each wom an’s treatment professional concluded that she had reached a point where she could be treated in the community, but each woman remained “institutionalized” for some time after her treatment professional reached that conclusion. Id. The women did not oppose being treated in the comm unity, and in fact desired it. Moreover, Georgia apparently had a waiver program that was suitable to them, and that contained 2,109 sl ots, of which only 700 were in use. Id. at 601.
The fractured17 Olmstead Court held that “undu e institutionalization qualifies as discrimination ‘by reason of . . . disability’” under the ADA. Olmstead, 527 U.S. at 597, id. at 597-601. In reaching this conclusion, the Court reasoned:
Recognition that unjustified institutional isolation of persons with disabilities is a for m of discrim ination reflects two evident judgm ents. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarra nted assumptions that persons so isolated are incapable or unworthy of participating in c ommunity life. Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancem ent, and 17 Most of the m ain opinion does comma nd a m ajority of the Court, but the discussion of the fundam ental alteration defe nse is a plurality opinion only. There are three additional opinions.
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cultural enrichment. Dissimilar treatment correspondingly exists in this

key respect: In order to receive needed m edical services, persons with

mental disabilities must, because of

those disabilities, relinquish

participation in community lif e they could enjoy given reasonable

accommodations, while persons without mental disabilities can receive the

medical services they need without similar sacrifice.

Olmstead, 527 U.S. at 600-01 (internal citations omitted; emphasis added).18

Not every person with a disabili ty is entitled to relief under Olmstead. “Title II

provides only that ‘qualified individual[s] with a disabil ity’ may not ‘ be subjected to

discrimination.’ 42 U.S.C. § 12132.” Olmstead, 527 U.S. at 602. “[T]he State generally

may rely on the reasonable assessments of its own professionals in determ ining whether

an individual ‘meets the es sential eligibility requirements’ for habilitation in a

community-based program” such that he or she is a “qualified individual.” Olmstead,

527 U.S. at 602. And, im portantly, “The S tate’s responsibility, once it provides

community-based treatment to qua lified persons with disabilities, is not boundless. The

reasonable-modifications regulation speaks of ‘reasonable m odifications’ to avoid

discrimination, and allows Stat es to resist m odifications that entail a ‘fundam enta[l]

alter[ation]’ of the States ’ services and program s.” Id. at 603 (Plurality Opinion)

(alterations by the Court).

The Olmstead Court did not hold that plaintiffs had prevailed; instead, the Court

remanded for re-consideration of the State’s f undamental alteration defense, to which the

lower courts had p reviously been insufficiently deferential. Id. at 607; id. at 605 (“To

maintain a range of facilities and to administer services with an even hand, the State must

18 When Mr. Boyd quotes this language, he omits the referen ce to persons with mental disabilities. Doc. 16 at 10.
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have more leeway than the courts below understood the fundamental-alteration defense to
allow.”) (Plurality Opinion).19
And, importantly, the Court did not addr ess the constitutionality o r general
validity of the quoted regulations. Id. at 592 (“ We recite these regulations with the
caveat that we do not here determine their validity. While the parties differ on the proper
construction and enforcem ent of the regu lations, we do n ot understand petition ers to
challenge the regulatory form ulations themselves as outside the congressional
authorization.”). Nor was the constitutionality of the ADA generally at issue.20
19 Though Justice Kennedy concurred in the judgm ent, he would have “rem and[ed] the case for a determ ination of the questions the Court poses and for a determination whether [plaintiffs] can show a violati on of 42 U.S.C. § 12132’s ban on discrimination based on the summ ary judgment materials on file or any further pleadings and m aterials properly allowed.” Olmstead, 527 U.S. at 611 (Kennedy, J., concurring in judgm ent) (emphasis added); see also id. at 612 (“If they can show th at persons needing psychiatric or other m edical services to treat a m ental disability are subject to a m ore onerous condition than are persons elig ible for other existing [S]tate m edical services, and if removal of the condition would not be a funda mental alteration of a program or require the creation of a new one, then the beginnings of a discrimination case would be established.”) (emphasis added).
20 Cf. Olmstead, 527 U.S. at 612-13 (Kennedy, J., c oncurring in judgment) (“Of course, it is a quite dif ferent matter to say that a State without a pro gram in place is required to create one. No State h as unlimited resources, and each must m ake hard decisions on how m uch to a llocate to tre atment of diseases and disabilities. If, for example, funds for care and treatm ent of the mentally ill, including the severely mentally ill, are reduced in order to support program s directed to the treatment and care of other disabilities, the decisi on may be unfortunate. The judgm ent, however, is a political one and not within the reach of the statute. Grave constitutional concerns are raised when a federal court is given the authority to review the State’s choices in basic matters such as establishing or declining to establish new programs. It is not reasonable to read the ADA to permit court intervention in these d ecisions. In addition, as the Court notes, ante, at [592], by regulation a public entity is required only to m ake ‘reasonable modifications in policies, practices, or procedures’ when necessary to avoid discrimination and is not even required to make those if ‘the m odifications would fundamentally alter the nature of the
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Consequently, while Olmstead may have been significant in m any ways when it was decided, it stands on uncertain ground, a nd its scope is routinely over-read by plaintiffs’ counsel around the country and so metimes by the lower courts. And, in fact, the fundamental alteration defense has seem ingly been read out of existence by som e lower courts that f ailed to heed the warnings about federalism in the separate opinions filed in Olmstead. For instance, Ju stice Kennedy, who concurred in the judgm ent, noted that “Grave constitutional concerns are raised when a federal court is given the authority to review the State’s choices in basic matters such as establishing or declining to establish new programs.” Olmstead, 527 U.S. at 612-613. Justice T homas wrote in dissent for himself, Chief Justice Rehnquist, and Justice Sc alia, when he said: “W e previously have recognized that constitutional principles of federalism erect lim its on the Federal Government’s ability to direct [S]tate officers or to interfere with the functions of [S]tate government.” Id. at 624.
C. Constitutional Limitations Commissioner Steckel d oes not concede that the ADA, the Rehab Act, or their
implementing regulations are valid, if they can be read to require the expansive relief that Mr. Boyd seeks. Instead, she encourages the Court to read the provisions in a constitutional manner and reserves the right to argue their unconstitu tionality at a late r point in these proceedings.
service, program, or activity.’ 28 CFR § 35.130 (b)(7) (1998). It follows that a State m ay not be forced to create a comm unity-treatment program where none exists. See Brief for United States as Am icus Curiae 19-20, and n. 3. Whether a different statutory scheme would exceed constitutional limits need not be addressed.”) (emphasis added).
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As the Supreme Court has explained: [W]here an otherwis e acceptable cons truction of a statute would raise serious constitutional problems, the Court will constru e the statu te to avoid such problem s unless such constr uction is plainly contrary to the intent of Congress. This cardinal pr inciple has its roots in Chief Justice Marshall’s opinion for the Court in Murray v. The Charming Betsy , 2 Cranch 64, 118 (1804), and has for so l ong been applied by this Court that it is beyond debate. As was stated in Hooper v. California, 155 U.S. 648, 657 (1895), “[t]he elementary rule is that every reasonable construction must be res orted to, in order to sa ve a statute f rom unconstitutionality.” This approach not only re flects the prudential concer n that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not li ghtly assume that Congress intended to infringe constitutionally protected libertie s or usurp power constitutionally forbidden it.
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Const. Trades Council , 485 U.S. 568, 575 (1988)) (citations an d parallel ci tations omitted; second alteration b y the Court); see also Miller v. Johnson , 515 U.S. 900, 926 (1995) (“There is no indication Congress intended such a far-reach ing application of § 5 [of the Voting Rights Act of 1965], so we reject the Justic e Department’s interpretation of the statute and avoid the constitutional problems that interpr etation raises.”) (citation omitted); id. at 923 (“[W]e think it inappropriate for a court engaged in constitutional scrutiny to accord deference to the Justice Departm ent’s interpretation of the Act. Althou gh we have deferred to the Department’s interpretation in certain statuto ry cases, . . . we have rejected ag ency interpretations to which we would otherwise defer where they raise serious constitutional questions.”) (citations omitted).
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1. The ADA

Taking the ADA first, Congress said

it was “invok[ing] the sweep of

congressional authority, includ ing the power to enforce th e [F]ourteenth [A]mendm ent

and to regulate comm erce, in order to address the m ajor areas of discrim ination faced

day-to-day by people with disabilities.” 42 U.S.C. § 12101(b)(4).

As to the Comm erce Clause, it is s imply inconceivable that the autho rity “[t]o

regulate Commerce with foreign Nations, and among the several States, and with the

Indian Tribes,” U.S. Const. Art. I, § 8, is a grant of general health, safety, and welfare

power of the sort that C ongress would need to mandate the changes Mr. Boyd envisions.

Such a read ing is in consistent with our f ederal form of governm ent, with the lim ited

enumerated powers of the national governm ent, and with the retained and expansive

powers of the States. See e.g., U.S. Const. Amend. 10 (“The powers not delegated to the

United States, nor prohibited by it to the States, are reserved to the States respectively, or

to the p eople.”); City of Boerne v. Flores , 521 U.S. 507, 516 (1997) (“Under our

Constitution, the Federal Governm ent is one of enumerated powers.”) (citing M’Culloch

v. Maryland, 4 Wheat. 316 (1819); The Federalist No. 45, p. 292 (C. Rossiter ed. 1961)

(J. Madison)); see also Alexander v. Choate, 469 U.S. 287, 307 (1985) (in a Rehab Ac t

case, recognizing “the States’ longstandi ng discretion to choose the proper m ix of

amount, scope, and duration limitations on services covered by [S]tate Medicaid.”).

As to the Fourteenth Amendment, Congress could only have been referring to the

Equal Protection Clause. Since the disabl ed are not a recognized class entitled to

heightened scrutiny, the State need only articulate a rational basis for its actions to be in

compliance with the Constitution. Cf., City of Cleburne, Tex. v. Cleburne Living Center,

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473 U.S. 432, 442-43 (1985); Klingler v. Director, Missouri Dep’t of Revenue, 455 F.3d 888, 894 (8th Cir. 2006) (“Disparate treatm ent based on disability is subject to rational

basis review.”). The ADA, through Olmstead and the regulations, has been interpreted

to require defending States not to assert a rati onal basis, but to instead m ount a

fundamental alteration defense. Olmstead, 527 U.S. at 603; 28 C.F.R. § 35.130(b)(7)

(ADA’s reasonable-modifications regulation, quoted in Section V.A.2., supra); see also

28 C.F.R. § 41.53 (Rehab Act’s comparable regulation, quoted in Section V.A.2., supra).

The burden has, in some courts, been unbearably and impermissibly high.

Reading the ADA’s anti-discrim ination provision to require an overhaul of the

State’s Medicaid system, when a rational ba sis would authorize th e State’s cu rrent

system, lacks a congruence and proportionality to the constitutional provision the A DA

purports to enforce. See City of Boerne v. Flores, 521 U.S. 507, 520 (1997) (“There must

be a congruence and proportionality between the injury to be prevented or rem edied and

the means adopted to that end. Lacking substantive in operation and effect.”).21

such a connection, legislation m ay become

21 See also Tennessee v. L ane, 541 U.S. 509, 558 (2004) (Scali a, J., dissenting) (“I would replace ‘congruence and proportionality’ w ith another test – one that provides a clear, enforceable limitation supported by the te xt of § 5. Section 5 grants Congress the power ‘to enforce, by appropriate legislation,’ the ot her provisions of the Fourteenth Amendment. U.S. Cons t., Amdt. 14 (em phasis added). [ Katzenbach v.] Morgan[, 384 U.S. 641 (1966),] notwithstanding, one does not, within any normal meaning of the term, ‘enforce’ a prohibition by issui ng a still broader prohibition directed to the sam e end. One does not, for exa mple, ‘enforce’ a 55-mile-per-hour speed limit by i mposing a 45mile-per-hour speed lim it-even though that is indeed directed to the sam e end of automotive safety and will undoubtedly result in many fewer violations of the 55 -mileper-hour limit.”).
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2. The Rehab Act Insofar as § 504 of the R ehab Act is applicable to federal financial recipients, see
28 C.F.R. § 41.51, and, as such, is Spending Clause legislation like Medicaid, a whole different set of issues arise. “[L]egisla tion enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Pennhurst State School and Hospital v. Halderman , 451 U.S. 1, 17 (1981). See also B arnes v. Gorman , 536 U.S. 181, 186 (“Just as a valid contract requires offer and acceptance of its term s, ‘[t]he legitim acy of Congress’ power to legislate under the spending power . . . rests on whether the [reci pient] voluntarily and knowingly accepts th e terms of the ‘contract.’ . . . Accordingly, if Congress intend s to impose a c ondition on the grant of federal moneys, it must do so unam biguously.’”) (citations omitted; alterations in original).
Here, Mr. Boyd has sued Comm issioner Steckel seeking Medicaid waiver services. As outlined in Section II.C., supra, there are extensive statutory and regulatory standards in place for running a Medicaid wa iver program. In addition, each waiver program is to be oper ated in accordance with an application submitted to, and approved by, CMS. 42 C.F.R. § 430.25(e)-(f). The applications are detailed, describing different purposes, different target populations, different services, and different enrollm ent limits. The Rehab Act’s anti-discrimination provision does not unambiguously require the State of Alabama to ignore both the extensive stat utory and regulations provisions in place under Medicaid and its own CMS-approved (a nd partially federally-funded) waiver
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programs. Nor, under the term s of Medicaid, is the State perm itted to do so. 22
Accordingly, to the extent that Mr. Boyd seeks to expand the scope of Alabama’s existing
Medicaid waiver programs, the Rehab Act, like the ADA, is constitutionally inadequate
to deliver the relief that he seeks.
Because Mr. Boyd’s interpretation of the ADA, the Rehab Act, and their
implementing regulations call the constitutionality of those provisions into question, he is
not likely to prevail on the merits.
D. Statutory Interpretation
The conflict between Medicaid, on the one hand, and the ADA and the Rehab
Act, on the other, suggests the need to resolve this case using basic principles of statutory
construction (and, thereby, avoid the larger con stitutional concerns). It is also another
reason why Mr. Boyd is not likely to prevail on the merits.
In Olmstead there was no conflict apparent between the anti-disc rimination
provision of the ADA and the Me dicaid Act. Indeed, the only reference to Medicaid in
the Majority Opinion points out that, under the facts of th at case, the two statutory
22 Because Medicaid is also Spending Clau se legislation, and because the federal government is the other party to that “contract,” it is not at al l clear that this Court could order the State to unilaterally al ter that contract, in asmuch as it is clear that the State lacks the power to comply with such an order. Cf. United States v. Rylander , 460 U.S. 752, 757 (1983) (“In a civil contempt proceeding such as this, of course, a defendant may assert a present inability to comply with the order in question. W hile the court is bound by the enforcem ent order, it will not be blind to evid ence that compliance is now factually impossible. Where com pliance is impossible, neither the m oving party nor the court has any reason to proceed with the civil con tempt action.”) (internal citations omitted); Newman v. Graddick, 740 F.2d 1513, 1525 (11 th Cir. 1984) (“Thus, inability to comply is a complete defense to a contempt citation.”) (citations omitted). Accordingly, it is not all reasonab le to expect Commissi oner Steckel to “readily develop Medicaidfunded services” for Mr. Boyd, Am ended Complaint at ¶ 6; any services would have to be paid for out of purely State funds, which is obviously not the Medicaid program.
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schemes were harmonious: “Since 1981, Medi caid has provided funding for [S]tate-run
home and community-based care through a waiver program,” of which the federal
government “encourage[d] States to take ad vantage.” Olmstead, 527 U.S. at 601
(emphasis added). That was consistent with the Olmstead plaintiffs’ request for services
in the community pursuant to the ADA wh ere Georgia had an appropriate waiver program and had used only 700 of the 2109 approved slots. Id.23 Under those
circumstances, the Court probably thought that the Federal Governm ent was speaking
with a clear voice. The cacophony that actually results from the collision of Mr. Boyd’s
interpretation of the ADA and the Rehab Act agains t a State’s f ederally-approved
Medicaid waiver program was not obvious in Olmstead, but it is now.
Here, Mr. Boyd seeks to force the alterati on or expansion of one or m ore existing waiver programs or the design of an entirely new waiver program ,24 and he asserts that
23 The ARC of Washington State, Inc. v. Braddock, 427 F.3d 615, 619 (9th Cir. 2005) (“The Supreme Court in Olmstead did not consider whether a forced change in the waiver program’s cap would co nstitute a fundamental alteration, because th e [S]tate’s program in that case was far from full.”) (citation omitted); Townsend v. Quasim, 328 F.3d 511, 527 n. 44 (9 th Cir. 2003) (Beezer, J., dissenting) (“It should be noted that Olm stead involved a situation where the [S]tate alrea dy had a community care program for which the plaintiffs were qualified. See 527 U.S. at 593, 601. In Olmstead the [S]tate was simply not moving the plaintiffs into the program. 527 U.S. at 601 (recognizing that Georgia had over 1400 unused waiver slots by 1996). This is a far cry from the situation here.”) (internal parallel citations omitted).
24 This litigation was filed before it w as definitively determined whether there is a currently existing Waiver program capable of serving Mr. Boyd, and, if so, whether there is a slot in that program available to him, or, whether, it would require the developm ent of a new program to serve Boyd. Cf. doc. 14 at ¶ 6 (“Defendant has or could readily develop Medicaid-funded services , through [her] waivers, a com bination of waivers, or reasonable modifications of waivers, th at would perm it Mr. Boyd to live in the community.”); doc. 16-3 at 1 (“For what it is worth, m y email below was not a ‘final offer’, but rather the f ruits of our initial effort to determine whether an existing waiver
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the ADA and the Rehab Act require this. As against that, Federal Medicaid law provides that the waiver programs are optional, allows (and, in fact, require s) the States to cap the programs, see 42 U.S.C. § 1396n(c)(9), 42 C.F.R. § 441.303(f)(6), and allows the S tates to determine which services will be provided to which target populations , see 42 U.S.C. § 1396n(c)(3), 42 C.F.R. § 430.25, Medicaid Program; Home and Comm unity-Based Services, 50 Fed. Reg. 10,013, 10,013 (Mar. 13, 1985). Medicaid also requires that the State’s waiver program s be appr oved by CM S, 42 C.F.R. § 430.25(e)-(f), which is consistent with the fact that the Federal Government picks up a large portion of the costs, cf. Alexander v. Choate , 469 U.S. 287, 289 n.1 (1985); Harris v. McRae, 448 U.S. 297, 301 (1980); Susan J. v. Riley , 254 F.R.D. 439, 445 (M.D. Al a. 2008); doc. 14 at ¶ 53. Accordingly, Alabama’s Medicaid waiver pr ograms are operated pursuant to a detailed statutory and regulatory Medi caid scheme and are explic itly approved by the Federal Government.
“Whenever two federal statutes m ay be in tension or con flict, [the courts] are required to reconcile the two statutes.” Townsend v. Quasim, 328 F.3d 511, 523 (9 th Cir. 2003) (Beezer, J., dissenting). “It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum, unless the later statute expressly contradict[s] the original act or un less such a construction is absolutely n ecessary . . . in order that [the] words [of t he later statute] shall have any m eaning at all.” Traynor v.
program might possibly work for Mr. Boyd.” ). Adm ittedly, if—in th e judgment of a treatment professional—Mr. Boyd requires 70 hours of pers onal and nursing care per week, there is no existing Alabam a Waiver program that can serve him , Affidavit of Marilyn Chappell, doc. 19-3 at ¶ 8; however, the possi bility that services currently exist that would meet his needs has not been fully exhausted.
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Turnage, 485 U.S. 535, 547-48 (19 88) (internal quotation marks and citations om itted;

alterations by the Court); see also Radzanower v. Touche Ross & Co. , 426 U.S. 148, 153

(1976) (“Where there is no clear inten tion otherwise, a specific statute will not be

controlled or nullified by a general one, reg ardless of the priority of enactment.”) (internal quotation marks, footnote and citation omitted; emphasis added). 25

Applying these principles he re, it is clear that, to th e extent there is tension

between Medicaid, on the one hand, and the ADA and Rehab Act, on the other, Medicaid trumps26:
 “Thus, to the extent that the statutes point in opposite directions, one of them must

prevail. In this case, the Med icaid statute should receive the laurel wreath

because, ‘[w]here there is no clear intention otherwise, a specific statute will not

be controlled or nullified by a general

one, regardless of the priority of

enactment.” The ARC of Washington State, Inc. v. Braddock , 403 F.3d 641, 644 (9th Cir. 2005), withdrawn but adopted by Fernandez, J. as concurring opinion in

25 Medicaid was established in 1965, and the first Waiver programs came into being in 1981. The Rehabilitation Act was enacted in 1973, and the ADA was enacted in 1990.
Specific Waiver programs are approved for only three or five years at a tim e, depending on whether it is an initial Waiver or a renewal. See, e.g., doc. 16-6 at 1 (“The Alabama Medicaid Agency is requesting a five year renewal of the Home and Community Based Wavier . . . .”). Accordingly, each of Alabama’s Waiver programs has been specifically approved by CM S since the passage of both the Rehab Act and the ADA. Additionally, som e of those W aiver programs, and the stat utory and regulatory framework allowing them, pre-date the ADA.
26 In fact, the ADA and the Rehab Ac t have a field of operation that is consistent with Medicaid, but it must be read more modestly than Mr. Boyd proposes. If Mr. Boyd forces the statutes into conflict, it is Medicaid that must prevail.
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The ARC of Washington State, Inc. v. Braddock, 427 F.3d 615, 622 (9th Cir. 2005) (alterations by Fernandez, J., citations omitted) 27;  “If [the p laintiffs] were correct, the general ADA injunction against discrimination would repeal the specific Medicaid provisions for limited waiver programs. That cannot be.” Id.  “The Medicaid Act establishes a com prehensive framework regulating the Medicaid program.” Townsend v. Quasim , 328 F.3d 511, 524 (9 th Cir. 2003) (Beezer, J., dissenting). “Applying Traynor, the Americans with Disabilities Act should not transform [the State of] W ashington’s exercise of congressionallyconferred discretion into discrimination.” Id. at 525. See also Traynor, 485 U.S. at 551 (“In sum , we hold that a construction of [38 U.S.C.] § 1662(a)(1) that reflects the or iginal congressional intent th at primary alcoholics not be excused from the 10-year delim iting period for utilizing ‘GI Bill ’ benefits is not inconsistent with the prohibition on discrimination against the handicapped contained in § 504 of the Rehabilitation Act. Accordingly, si nce we ‘are not at liberty to pick and choose among congressional enactm ents . . . when two statutes are capable of coexistence,’ Morton v. Mancari, 417 U.S. [535,] 551 [(1974)], we must conclude that the earlier, more specific provisions of § 1662(a) (1) were neither expressly nor im plicitly repealed by the later, m ore general provisions of § 504.”) (footnote a nd parallel citation omitted; ellipsis by the Court); Spector v. Norwegian Cruise Line Ltd. , 545 U.S. 119 (2005) (“Title III [of the ADA] requires barrier rem oval if it is ‘read ily achievable.’ . . .
27 Lest the fact that the o pinion was w ithdrawn be m isinterpreted, the substituted opinion ruled for the State on different grounds. It is for that reason that Judge Fernandez was able to adopt the earlier opinion as a concurrence, as opposed to a dissent.
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Surely a barrier-removal requirement under Title III that would bring a vessel [a cruise ship] into noncompliance with the International Convention for the Safety of Life at Sea (SOLAS), or any other international legal ob ligation, would create serious difficulties for the vessel and would have a substantial im pact on its operation, and thus would not be ‘readily achievable.’ This unde rstanding of the statute, ur ged by the United States, is eminently reasonable.”) (citations and paragraph break omitted)28; Vaughn v. Sullivan, 83 F.3d 907, 913 (7 th Cir. 1996) (Easterbrook, J.) (“Neith er the Rehabilitation Act nor the ADA repeals § 209(b) [of the Social Security Act] or forbids all distinctions in public welfare benefits based on phys ical condition. T he Medicaid pr ogram is rife with these distinctions, which, the Court held in [ Alexander v. Choate , 469 U.S. 287 (1985)], are compatible with the Rehabilita tion Act. Traynor added: ‘There is nothing in the Rehabilitation Act th at requires that a ny benefits extended to one category of handicapped persons also be ex tended to all o ther categories of handicapped persons.’ 485 U.S. at 549. It follows that distinc tions permitted by § 209(b) were not m ade unlawful by the Rehabilitation Act or the ADA.”) (parallel citation om itted); Save Our Summers v. Washington State Department of Ecology , 132 F.Supp.2d 896, 911-12 (E.D. Wash. 1999) (“In order to enti rely disregard the CAA [Clean Air Act] in favor of the ADA as Plaintiffs urge, the Court would ha ve to conclu de that th e ADA im plicitly repealed the CAA with regard to a ir pollution affecting disabled persons. Repeals by implication are ‘heavily disfa vored,’ and m ay be found in only two circum stances: (1) where one statute en tirely displaces another; or (2) where two statutes are in irreconcilable conflict. ‘[I]n either case, the intention of the legislatur e to repeal m ust be
28 Spector is a fractured opinion, but the quoted language did garner the support of a majority of the Court.
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clear and m anifest.’”) (internal citations omitted); Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343, 1353 (10th Cir. 1987) (following the lead of a New York

District Court in declining to allow the Reha b Act to ef fect a rep eal of § 202 of the

National Housing Act of 1959).

Because Mr. Boyd’s interpretation of the ADA, the Rehab Act, and their

implementing regulations place th ose provisions in tens ion with th e more-specific

provisions of Medicaid law, he is not likely to prevail on the merits.

E. 28 C.F.R. § 35.135, Personal Devices and Services

There is another ADA regulation at issue in this case, and it al so suggests that

Boyd will n ot prevail o n the m erits. Specifically, 28 C.F. R. § 35.135 provides: “This

part does not require a public entity to provide to individuals with disabilities

personal devices, such as wheelchairs; individually prescribed d evices, such as

prescription eyeglasses or hearing aids; readers for personal use or study;

or

services of a personal nature including a ssistance in eating, toiletin g, or dressing. ”

(emphasis added). These are exactly the sorts of things that Mr. Boyd is asking for.

Mr. Boyd’s declaration states that h e will need “services in cluding ten hours per

day of assistance with activi ties of daily living, assistance with my bowel program twice

per week, assis tance with changing my catheter twice per m onth and necessary

equipment and supplies.” Amended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶ 8.

See also id. at ¶ 18 (Mr. Boyd’s m ost recent request, through his attorneys, included the

same). Mr. Boyd’s counsel listed his known “t ransition needs at this tim e” to include

various equipment and supplies, namely a bed/mattress, an environmental control unit, an

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automatic door opener, a lift for transferring Mr. Boyd between his bed and wheelchair, a
nebulizer, and various disposable supplies. Doc. 16-3 at 3-4.
To be clear, 28 C.F.R. § 35.135 is an ADA regulation that applies here. Indeed,
28 C.F.R. § 35.102(a) provides: “Except as pr ovided in paragraph (b) of this section
[relating to public transportation services], this part applies to all services, programs, and
activities provided or made available by public entities.” (emphasis added). See also 28
C.F.R. § 35.101 (“The purpose of this part is to effectuate subtitle A of title II of the
Americans with Disabilities Act of 1990 (4 2 U.S.C. 12131) [sic], which prohibits
discrimination on the basis of disability by public entities.”) (emphasis added).
Section 13.135 is within the part referred to in § 35.102(a) and § 35.101, specifically
“Part 35, N ondiscrimination on the Basis of D isability in State a nd Local Government
Services.”
And 28 C.F.R. § 35.135 was intended to have broad application. As Appendix A
to Part 35, the Preamble, says:
Section 35.135 Personal Devices and Services
The final rule includes a new § 35.135, entitle[d] “Personal devices and services,” which states that th e provision of personal devices and services is not required by title II. This new section, which serves as a limitation on all of the requi rements of the regulation , replaces § 35.160(b)(2) of the proposed rule, whic h addressed the issue of personal devices and services explicitly only in the context of communications. The personal devices and services limitation was intended to have general application in the proposed rule in all contexts where it was relevant. The final rule, therefore, clarifies th is point by including a general provision that will explicitly apply not only to auxiliary aids and services but acrossthe-board to include other relev ant areas such as, for example, modifications in policies, practices, and procedures (§ 35.130(b)(7)). The language of § 35.135 parallels an anal ogous provision in the Department’s title III regulations (28 CFR 36.306) but preserves the explicit reference to
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“readers for personal use or study” in § 35.160(b)(2) of the proposed rule. This section does not preclude the shor t-term loan of perso nal receivers that are part of an assistive listening system. 28 C.F.R. Part 35, App. A. The reference to 28 C.F.R. § 35.130(b)(7) is to the regulation requiring reasonable modifications but not fundamental alterations. In short, there is an ADA regulation that specifically says that the ADA does not require the Alabam a Medicaid Agency to provide the personal care services and equipment that Boyd seeks to force under the ADA’s integration regulation. Mr. Boyd will no doubt argue that § 35.135 is not relevant to his particular claim; however, the fact of the matter is that the regulation is clear and it is clearly appli cable, while Mr. Boyd is arguing for an interpretative expans ion of both 42 U.S.C. § 12132’s general prohibition against “discrimination” and Olmstead itself. Relatedly, as § 35.135 is present, it is useful to note what is not. Nowhere in the entire ADA29, in the ADA regulations, or in the a ppendix to those regulations does the word “Medicaid” appear. In light of the fact that there are regulations on the illegal use of drugs, 28 C.F.R. § 35.131, and smoking, 28 C.F.R. § 35.132, and that the ADA itself takes time to specif y that, inter alia, voyeurism and kleptom ania are not disabilities within the m eaning of the statute, 42 U.S.C. § 12211(b)(1), it is truly rem arkable to argue, as Mr. Boyd does, that the ADA’s integration mandate has such a dramatic impact on Medicaid law.
29 In this paragraph, the reference to the ADA is not limited to Title II, Part A. The reference is to the entire ADA, which is readily available and searchable, courtesy of the United States Departm ent of Justice, at http://www.ada.gov/pubs/adastatute08.htm last visited August 23, 2010.
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Because the structure of the ADA and its implementing regulations, m ost particularly 28 C.F.R. § 35.135, demonstrate that Congress did not m ean for the ADA to upend Medicaid and because § 35.135 specifically prohibits the provision of the services and equipment that Mr. Boyd seeks, he is not likely to prevail on the merits.
F. Mr. Boyd’s Claim Fails Under His Own Analysis Even assuming arguendo that Olmstead applies to the present case, without any
constitutional or statutory construction concerns, and putti ng aside 28 C.F.R. § 35.135, Mr. Boyd cannot prevail on the merits.
The ADA and the Rehab Act prohibit discrimination on the basis of disability. 42 U.S.C. § 12131 (ADA: “no qualified individual with a disability shall, by reason of suc h disability, . . . be subjected to discrim ination . . . .”); 29 U.S.C. § 794(a) (Rehab Act: “No otherwise qualified individual with a disability . . . shall, so lely by reason of her or his disability . . . be subjected to discrimination . . . .”). Olmstead held that, under the ADA, “undue institutionalization qualifies as disc rimination ‘by reason of . . . disability.’” Olmstead. 527 U.S. at 597.30 But that is the beginning, not the end, of the analysis. What follows is generally regarded as a 3-step regime.
30 As previously noted, the sam e may not be true for the Rehab Act, and the Commissioner reserves the right to make that argument later in these proceed ings. See Olmstead, 527 U.S. at 589 n.1 (“In the ADA, Congress for the first time referred expressly to ‘segregation’ of persons with di sabilities as a ‘for[m] of discrimination,’ and to discrimination that p ersists in th e area of ‘institutionalization.’”) (emphasis added; alteration by the Court); id. at 600 n.11 (“Unlike the ADA, § 504 of the Rehabilitation Act contains no express recognition that isolation or segregation is a form of discrimination. Section 504’s discrim ination proscription, a single sentence attached to vocational rehabilitation legislation, has yi elded divergent court interpretations. See Brief for United States as Amicus Curiae 23-25.”).
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1. Qualified Individual First, it is necessary to assess whether Mr. Boyd is a qualified individual; he is not.31 To b e a “qualified indiv idual” means much m ore than s imply possessing a disability. That di stinction is key because “nothi ng in the ADA or its im plementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.” Olmstead, 527 U.S. at 601-602. Instead, “T itle II provides only that ‘qualified individual[s] with a disabil ity’ may not ‘ be subjected to discrimination.’ 42 U.S. C. § 12132. ‘Qualifie d individuals,’ the ADA further explains, are persons with disabilities who, ‘with or without reasonab le modifications to rules, policies, or practices, . . . mee[t] the essentia l eligibility req uirements for the rec eipt of services or the par ticipation in pr ograms or activ ities provided by a public en tity.’ § 12131(2).” Olmstead, 527 U.S. at 602 (alter ations by the Court); see also Section V A.1., supra, setting out the ADA’s defi nition. “Consistent with these provisions,” the Supreme Court instructed, “the State generally may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’ for habilitation in a community-based program. Absent such qualification, it would be inappropriate to rem ove a pati ent from the m ore restrictive setting.”
31 Mr. Boyd asserts that Commissioner Steckel “does not dispute that Plaintiff Boyd is a qualified person with a disability who meets the elig ibility requirements for Alabama’s Medicaid nursing home ‘level of care’ as well as for its waiver and Medicaid programs.” Doc. 16 at 7. This statem ent is rather confusing, and is at least partially inaccurate. Mr. Boyd certainly is q ualified for nursing ho me level of care, and th at is why the State of Alaba ma is helping to pay th e expenses related to his living at a private nursing home. On the other hand, the issu e of whether Mr. Boyd is qualified for Medicaid Waiver services, insofar as the ADA and Re hab Act define that term , is contested.
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Olmstead, 527 U.S. at 602 (em phasis added; citations omitted). Recall, in Olmstead

itself, the S tates’ treatment professionals had concluded that the plaintiffs could be

treated in the comm unity, but they nonetheless rem ained institutionalized in a State

facility, id. at 593, possibly involuntarily.

In this case, Mr. Boyd has offered no evidence that he “ meets the essential

eligibility requirements’ for habilitation in a community-based program.” Olmstead, 527

U.S. at 602. In particular, he has not put forward any evidence from a State treatment

professional—or, indeed, any m edical professional—indicating that he is eligible for

participation in any of Alabam a’s Medicaid waiver program s. Relatedly, Mr. Boyd has

not offered the opinion of a medical professional as to what servic es he will need in the

community. See Section II.B., supra.

Instead, Mr. Boyd has approached this case with the presumption that any limits

on these programs should be lifted as a “reasonable m odification” to meet his needs, as

he has defined them (and subject to future refinement). His counsel m ade this

presumption clear in the email communications concerning settlement negotiations. Doc.

16-3 at 2. The presumption is also appare nt in the Am ended Complaint and briefing,

which focus entirely on Mr. Boyd’s asse

rted needs without so m uch as an

acknowledgement of—much less a com parison to—the legitimate limits imposed on the

various waiver programs.

It is Commissioner Steckel’s general view that the various lim its imposed on the

E&D Waiver, the SAIL Waiver, and any other w aiver that this litigation might evolve to

consider, are legitim ate and that Mr. Boyd’s fa ilure to m eet the term s of those waiver

programs—as demonstrated through the m edical judgment of a State tre atment

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professional—means that he is not a qua lified individual. Mo re specifically, Commissioner Steckel addresses Bo yd’s alternative claims in the order they are m ade: “Defendant has or could readily develop Medicaid-funded services, through [her] waivers, a com bination of waivers, or reas onable medications of wa ivers, that would” allow him to be served in the community. Doc. 14 at ¶ 6.
Initially, Mr. Boyd has not proven that Al abama currently has a Medicaid waiver program which, as designed, meets his needs. Boyd focuses on the E&D Waiver, doc. 14 at ¶ 42, doc. 16-6, but he does not discuss what services are provided by the E&D Waiver or whether those serv ices meet his needs. Similarly, while settlem ent discussions centered around the SAIL W aiver—at least from the defense position—Boyd does not discuss the servic es provided by th at waiver or whether th ose services meet his needs . See doc. 16-3 at 2-3. Boyd states th at he “has been on the waiting list . . . since October 2008” but does not reveal for which waiver. Doc. 14 at ¶ 6. In fact, it appears that he has not applied for the E&D W aiver, Affidavit of Marilyn Chappelle , doc. 19-3 at ¶ 15, despite his current focus on that program.
If we assum e, for the sake of argum ent, that the E&D W aiver, as curren tly designed, is appropriate for serving Mr. Boyd’s needs and that he has properly applied, it seems that his com plaint goes to an allegedly insufficient num ber of slots. 32 Both Medicaid statutes and regula tions contemplate that State waiver pla ns will cap the
32 E.g., Doc. 14 at ¶ 42 (“Defendant has [a] community-based Medicaid waiver[] but its cap is limited, providing 9,205 slots, which has not been increased since 2008, despite a waiting list far in excess of the number of slots. According to the Kaiser Comm ission, there were 7,094 people on the waiting lis t for these community-based services.”); doc. 16 at 14 (“Defendant has capped [her] waiver and has not increased it for a num ber of years to meet the needs of people on the wa it list generally, in cluding Mr. Boyd’s needs in the community.”).
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number of people served th rough a waiver program . See 42 U.S.C. § 1396n(c)(9); 42 C.F.R. § 441.303(f)(6) (“The State must indicate the num ber of unduplicated beneficiaries to which it intends to provide wa iver services in each year of its prog ram. This number will constitute a limit on the size of the waiv er program unless the S tate requests and the Secretary approves a greater nu mber of waiver participants in a waiver amendment.”) (emphasis added). And, this Cour t has held that “[t]he cap itself is clearly proper.” See Susan J. v. Riley , 616 F.Supp.2d 1219, 1239 n. 17 (M.D. Ala. 2009). Because, Medicaid law requires th e State to set a cap, th e general prohibition ag ainst discrimination in the ADA and Rehab Ac t cannot be read to m ake that cap discriminatory; for these reasons, Mr. Boyd is not likely to prevail on the merits.
Mr. Boyd’s alternative argum ent is that the C ommissioner should combine or modify waivers in order to allow Boyd to be se rved in the community. Doc. 14 at ¶ 6. He insists that a ltering an exis ting program to meet his as serted needs is a reason able modification. Docs. 14 & 16, generally. As Boyd has delineated his needs, the E &D Waiver is inadequate because it does not reim burse for the equipment Mr. Boyd requests and “skilled” care (provided by a nurse or other health-care professional), is not available on a regular basis under the E&D Waiver. Affidavit of Marilyn Chappelle, doc. 19-3 at ¶ 14. Similarly, as Mr. Boyd delineated his needs, the SAIL Waiver is inadequate because reimbursement for in-home personal care and assistance is limited to 25 hours per w eek, while Mr. Boyd is requesting seventy (70) hours per week. Affi davit of Marilyn Chappelle, doc. 19-3 at ¶ 13. Moreover, skilled nursing care is not av ailable at all under the SAIL Waiver, and it appears that Boyd also needs skilled nursing care. Id.; Affidavit of Robert Moon, M.D., doc. 19-2 at ¶¶ 7-9.
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All of those limits on the E&D Waiver and the SAIL Waiver are legitimate limits imposed consistent with Medica id law. See 42 C.F.R. § 430.25(b) (“W aivers are intended to provide the flexibility needed to enable States to try new or different approaches to the efficient and cost-effective delivery of health care services, or to adapt their programs to the special needs of particular areas or groups of recipients . . . .”) (emphasis added); see also Bryson v. Shumway , 308 F.3d 79, 82 (1 st Cir. 2002) (“The waiver program is designed to allow [S]tates to experiment with methods of care, or to provide care on a targeted basis, without adhe ring to the strict m andates of the Medicaid system.”). The lim its are necess ary both to target the pop ulation being served an d to ensure the “efficient and cost-effective delivery of health care services.” 42 C.F.R. § 430.25(b); see also 42 U.S.C. § 1396n(c)(2)(D); 42 C.F.R. § 441.302(e)-(f).
As the Supreme Court stated in rejecting a Rehab Act claim: . . . Medica id programs do not guar antee that each recipient will receive that level of health ca re precisely tailored to his or her particular needs. Instead, the benefit provid ed through Medicaid is a particular package of health care services, such as 14 days of inpatient coverage. That package of services has the general aim of assuring that ind ividuals receive necessary medical care, but the b enefit provided remains the individual services offered—not “adequate health care.”
Alexander v. Choate, 469 U.S. 287, 303 (1985). Moreover, the State is permitted to “exclude those individuals for whom there is a
reasonable expectation that hom e and comm unity-based services would be more expensive than the Medicaid services the individual would otherwise receive.” Medicaid Program; Home and Community-Based Se rvices, 50 Fed. Reg. 10,013, 10,013 (Mar. 13, 1985). Mr. Boyd asserts that it would be ch eaper to serve him in the community, doc. 16 at 14-15, but he offers no evidence on that point.
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Stepping back from the Medicaid-specific view of the “reasonable m odification” analysis, and looking at analysis more generally, it is clear that Mr. Boyd misunderstands any requirements that the ADA and the Re hab Act and their im plementing provisions might put on the State. For one thing, he cites to Southeastern Community College v. Davis, 442 U.S. 397 (1979), and Alexander v. Choate, 469 U.S. 287 (1985), without ever acknowledging that the plaintiffs lost their Rehab Act33 claims in those cases.
Davis concerned a woman who wanted to at tend nursing school but “suffer[ed] from a serious hearing disability” which m ade her incapable of safely engaging in the practice of nursing. Davis, 442 U.S. at 400, id. at 400-02, 407. The Suprem e Court took a very modest view of the Rehab Act:
Section 504 by its term s does not co mpel educational institutions to disregard the d isabilities of handicapped individuals or to m ake substantial modifications in the ir programs to allow disabled persons to participate. Instead, it requires only that an “oth erwise qualified handicapped individual” not be excluded from participation in a f ederally funded program “solely by reason of his handicap,” indicating only that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context. Davis, 442 U.S. at 405. The Davis Court further explained that “An otherwise qualified person is one w ho is able to meet all of a program’s requirements in spite of his handicap.” Id. at 406 (emphasis added); see also id. at 406-07. Not surprisingly then, the Court recognized that “an interpretation of the regulati ons that required extensive modifications necessary to includ e [Davis] in the nursing program would raise grave doubts about their validity,” id. at 410, and, indeed, went on to “hold that even if HE W
33 These cases pre-date the ADA.
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[the Department of Hea lth, Education, and Welfare 34] has attem pted to crea te such an obligation itself, it la cks the authority to do so,” id. at 411-12. Instead, § 504 requires only “evenhanded treatment.” Id. at 410. Mr. Boyd’s reliance on Davis is misplaced.
Alexander v. Choate concerned the State of Tenn essee’s “propos[al to] reduc[e] the number of annual days of inpatient hos pital care covered by its [S]tate Medicaid program.” 469 U.S. at 289. The disabled plain tiffs contended that any cuts in services would hit them the hardest, i.e., “have a discriminatory effect on the handicapped,” id., and they proposed alternative policy choices for the State to adopt. Id. at 289-91. Again, the Supreme Court took a modest view of § 504 of the Rehab Act, specifically noting that “[a]ny interpretation of § 504 must . . . be responsive to two powerful but countervailing considerations—the need to give effect to the statutory objectives and the desire to keep § 504 within manageable bounds.” Alexander, 469 U.S. at 299 (emphasis added).
Alexander is also the case, quoted earlier, wh ich makes clear that Medicaid does not provide individually-tailored services, id. at 303, and it notes that there is nothing in the legislative history to “suggest[] that Congr ess desired to m ake major inroads on the States’ longstanding discretion to choose th e proper mix of amount, scope, and duration limitations on services covered by [ S]tate Medicaid . . . ,” id. at 307 (emphasis added). The Court further explained:
34 HEW is now the Departm ent of Hea lth and H uman Services. P resident Ford tasked HEW with coordinating the federal go vernment’s implementation of § 504 of the Rehab Act in Exec. Order No. 11,914 (April 28, 1976). President Carter transferred that responsibility to the Atto rney General in Exec. Or der No. 12,250 (Nov. 2, 1980). In doing so, P resident Carter revoked the earlie r Executive Order and provided that the existing regulations “shall be deem ed to ha ve been issued by the Attorney General pursuant [to] this Order and shall continue in effect until revoked or modified by the Attorney General.” Exec. Order No. 12,250 (Nov. 2, 1980).
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Section 504 seeks to assure evenhanded treatment and the opportunity for handicapped individuals to particip ate in and benefit from programs receiving federal ass istance. Southeastern Community College v. Davis , 442 U.S. 397 (1979). The Act does not, however, guarantee the handicapped equal results from the pr ovision of [S]tate Medicaid, even assuming some measure of equality of health could be constructed. Ibid.
Alexander, 469 U.S. at 304 (parallel citations omitted). Applied here, the Rehab Act
never meant that the State has to do anything and everything necessary to serve Mr. Boyd
in his home.
For the proposition that “preferences will sometimes prove necessary to achieve
the [ADA’s] basic equal opportunity goal,” Mr. Boyd relies on a third Suprem e Court
case that actually does not support him. Doc. 16 at 15 citing US Airways, Inc. v. Barnett,
535 U.S. 391, 397 (2002). Barnett arises under Title I of the ADA, 42 U.S.C. §§ 12111 –
12117, which concerns em ployment but speaks in terms of reasonable accommodations and undue hardship.35 The issue in Barnett was whether the ADA “requires an em ployer
to assign a disabled employee to a particul ar position even though another em ployee is
entitled to that position under the employer’s ‘established seniority system.’” Id. at 406.
The Barnett Court determined that the ADA wo uld generally allow em ployers to
invoke their seniority systems as reason for not granting an accommodation, and that this
would be sufficient in the majority of cases to end the m atter. Barnett, 535 U.S. at. 403-
05, 406. The Court did leave open the possibili ty that the e mployee might be able to
prove in a particular case that the accommodation should be made in spite of the seniority 35 42 U.S.C. § 12112(b)(5)(A) (“As used in subsection (a) of this section, the ter m ‘discriminate against a qualif ied individual on the basis of disability’ includes-- . . . (5)(A) not making reasonable accommodations to the known physical or m ental limitations of an otherwise qualified individual with a d isability who is an app licant or employee, unless such covered en tity can demonstrate that the accom modation would impose an undue hardship on the operation of the business of such covered entity . . . .”) (emphasis added).
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system. Id. at 405-06. Justice O’Connor filed a concurring opinion wherein she took the position that it should matter whether the seniority system was legally enforceable. Id. at 408-11. Under either the Ma jority Opinion or Justic e O’Connor’s concurrence, Alabama’s Medicaid waiver pro grams—which are clearly d efined in th e waiver documents themselves and which are appr oved by the Federal Governm ent, 42 C.F.R. § 430.25(e)-(f)—are sufficient to m ake Mr. Boyd’s requested m odifications unreasonable.
Admittedly, Mr. Boyd cites a num ber of lower court cases which he says support his views. Assum ing that th ey stand for the propositions for which he cites them , the decisions cannot be correct in light of the Supreme Court’s decisions in Olmstead, Davis, Alexander, and Barnett. Given the length of this res ponse, Commissioner Steckel will reserve for later any particularized rebuttals of those lower court decisions.
Mr. Boyd has not put f orth any evidence that he is a qualif ied individual. And, insofar as the legal analysis goes, he has an uphill ba ttle ahead of him in arguing eithe r that the cap on an existing waiver program should be busted or that a new waiver should be individually tailored to meet his needs. He is not likely to prevail on the merits.
2. Consent The second step in the Olmstead analysis is to look at whether Mr. Boyd desires treatment in the community, sin ce “there is [not] any federal requirem ent that community-based treatment be imposed on patients who do not desire it.” Olmstead, 527 U.S. at 602. Comm issioner Steckel is prepared to concede, for prelim inary injunction purposes only, that Mr. Boyd wants to be serv ed in the community as he avers in his personal declaration, doc. 16-4 at ¶¶ 15, 23.
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3. Fundamental Alteration36 The third s tep in the Olmstead analysis is to consider the State’s affirmative defense that any desired change amounts not to a “reasonable m odification[],” which is required, but to a “fundam ental[] alter[ation],” which is not. 28 C.F.R. § 35.130(b)(7), reproduced at Section V.A., supra. See also 28 C.F.R. § 41.53 (also reproduced at Section V.A., supra); Olmstead, 527 U.S. at 603 (“The Stat e’s responsibility, once it provides community-based treatm ent to qualif ied persons with d isabilities, is not boundless. The reasonable-modifications regulation speaks of ‘reasonable m odifications’ to avoid d iscrimination, and allows States to res ist modifications that en tail a ‘fundamenta[l] alter[ation]’ of the States’ services and programs. 28 CFR § 35.130(b)(7) (1998).”) (Plurality Opinion) (alterations by the Court). In the v iew of the Olmstead Plurality, “Sensibly construed, the fundam entalalteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resou rces, immediate relief for the plain tiffs would be inequitable, given the responsibil ity the State has undert aken for the care and treatment of a large and diverse population of persons with m ental disabilities.” Olmstead, 527 U.S. at 604. Accordingly, it disappr oved of the Eleventh Circuit’s more limited reading of the defense. Id. at 603 (“T he Court of A ppeals’ construction of the reasonable-modifications regulation is unacceptable for it would leave th e State virtually defenseless once it is shown th at the plaintiff is qualified for the service or program she 36 Whether Mr. Boyd is a qualified indivi dual turns on whether he can be served with reasonable modifications. See 42 U.S.C. § 12131(2). S imilarly, the S tate’s fundamental alteration defense turns on whethe r the requested m odifications/alterations are fundamental or reasonable. See 28 C.F.R. § 35.130(b)(7). Accordingly, to the extent applicable, we incorporate here our earlier discussion of why Mr. B oyd is not a qualified individual (and vice-versa).
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seeks. If th e expense entailed in placi ng one or two people in a comm unity-based treatment program is properly m easured for reasonableness against the State’s entire mental health budget, it is unlikely that a State, relying on the funda mental-alteration defense, could ever prevail.”).
In his opinion concurring in the judgment, Justice Kennedy notes that “[i]t is of central importance, then, that courts apply t oday’s decision with gr eat deference to the medical decisions of the responsible, treating physicians and, as the Court m akes clear, with appropriate deference to the program funding decisions of state policym akers.” Id. at 610 (separate opinion of Kennedy, J.). 37 He further em phasized “that a State may not be forced to create a community-treatment program where none exists.” Id. at 613. (This proposition is an additio nal answer to Mr. B oyd’s insistence that a new program should be tailored to him .) “Grave constitutional c oncerns are raised when a federal court is given the authority to review the State’s choices in bas ic matters such as estab lishing or declining to establish new programs. It is not reasonable to read the ADA to permit court intervention in these decisions.” Id. at 612-13.
Justice Thomas’ dissent in Olmstead stressed principles of federalism, stating that “the appropriate course would be to respect the States’ his torical role as the dom inant authority responsible for pr oviding services to individua ls with disabilities.” Olmstead, 527 U.S. at 625 (dissent of Thomas, J., joined by Rehnquist, C.J., and Scalia, J.).38
37 Justice Breyer joined in this part of Justice Kennedy’s opinion, but not in the remaining portions cited in this paragraph. 38 The Dissent raised other valid points as well. For one, it makes no sense to speak of discrimination when a plaintiff asse rts he is being discrim inated against vis-à-vis member of the same class, i.e., persons with disabilities. See Olmstead, 527 U.S. at 61624 (dissent). After all, we are not talking he re about building a ramp so that persons with
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Hence, the Olmstead Court agreed that there were real lim its to what States could be ordered to do pursuant to th e anti-discrimination provision of the ADA. That les son has been lost on some lower courts, but it should not be here.
To the extent that Mr. Boyd seeks to fo rce the alteration or expansion of an existing waiver program or the design of an entirely new waiver program , he seeks a fundamental alteration. See Section II.C., supra, esp. 42 C.F.R. § 430.25(e)-(f) (waivers are submitted to CMS for approval); 42 C.F.R. § 430.25 (States m ay “adapt their programs to the special needs” of targeted groups); 42 U.S.C. § 1396n(c)(9) (reference to cap on program); 42. C.F.R. § 441.303(f)(6) (requirement of cap on program); Olmstead, 527 U.S. at 612-613 (Kennedy, J., concurring in the judgm ent); id. at 613 (“a State m ay not be forced to create a comm unity-treatment program where none exists”); Easley v. Snider, 36 F.3d 297, 305 (3 rd Cir. 1994) (“T he proposed alteration would create a program that the State never envisioned when it enacted the Care Act. The modification would create an undue and perhaps impossible burden on the State, possibly jeopardizing the whole program , by forcing it to provide a ttendant care services to all physically disabled individuals, whether or not mentally alert.”).
mobility issues can access a governm ent building as easily as the no n-disabled; we are talking about whether the ADA anti-discrim ination provision allows a Federal Court to micro-manage a program created exclusively for the disabled.
The Dissent is also persuaded that Georgi a “did not ‘discrim inate’ against [the plaintiffs] ‘by reasons of [the ir] disabili[ties],’ as § 12132 requires,” because proxim ate causation is lacking. Id. at 626 (alterations by the Court, except the first). “Continued institutional treatment of persons who, th rough now dee med treatable in a community placement, must wait their tu rn for placem ent does not establish that the denial of community placement occurred ‘by reason of’ th eir disability. Rather, it establishes no more than the fact that [Georgia has] limited resources.” Id.
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To the extent that Mr. Boyd seeks to be served in the community when it is less expensive to serve him in the nursing ho me, he seeks a funda mental alteration. See Section II.C., supra, esp. Medicaid Program; Home and Community-Based Services, 50 Fed. Reg. 10,013, 10,013 (Mar. 13, 1985) (“the Stat e may exclude those individuals for whom there is a reason able expectation that home and community-based services w ould be more expensive than the Medicaid services the individual would otherwise receive”).
In the alternative, assuming that the ADA, the Rehab Act, and their implementing regulations can force modifications in the design of Medicaid waiver services in terms of either the services provided or the n umber of persons served, the alterations Mr. Boyd seeks in this particular case are so excessive as to amount to a fundamental alteration. As he has delin eated his needs, the E&D W aiver is inadequate because the E&D Waiver does not reimburse for the long list of equipm ent Mr. Boyd requests and “skilled” care is not available, other than as a respite for a nother primary caregiver. Affidavit of Marilyn Chappelle, doc. 19-3, ¶ 14. Si milarly, as Mr . Boyd delineated his needs, the SAIL Waiver is inadequate because reimbursement for in-home personal care and assistance is limited to 25 hours per week under the SAIL Waiver, and Mr. Boyd is requesting seventy (70) hours per week. Id. at ¶ 13. Moreover, skilled nur sing care is n ot available at all under the SAIL Waiver, and it appears that Mr. Boyd also needs skilled nursing care. Id.; Affidavit of Robert Moon, M.D., doc. 19-2 at ¶¶ 7-9.
In addition, assum ing that some or all of the changes that Mr. Boyd seeks are required by the ADA, the Rehab Act, and their implementing regulations, it would still be a fundamental alteration to order Commissione r Steckel to undertake the changes. The Alabama Medicaid Agency oversees Alabam a’s Medicaid program pursuant to the State
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plan and the six waivers. Affidavit of Marilyn Chappelle, doc. 19-3 at ¶ 5. As previously set out, the Medicaid program is in coopera tion with the Federal Governm ent, which must approve any waiver program and whic h provides the bulk of the funds for the program. See Section II.C., supra; doc. 14 at ¶ 53. Comm issioner Steckel lacks the authority to unilaterally amend any Medicaid waiver program. Section II.C., supra; 42 C.F.R. § 430.25(e)-(f). That m eans that the only way to m ove Mr. Boyd into the community in the short term is to do it outside the Medicaid program, with State money. Affidavit of Marilyn Chappelle, doc. 19-3 at ¶ 20. Doing so would lim it the State funds available to assist other Medicaid recipients, and would also impede Alabama Medicaid’s ability to draw down federal matching funds. Id. And, if it is not Medicaid money that is being spent, the Alabama Medicaid Commissioner is not the appropriate defendant.
For all of these reasons, Mr. Boyd has not demonstrated that he is likely to prevail on the merits.
VI. MR. BOYD IS NOT SUFFERING ANY IRREPARABLE INJURY Mr. Boyd asserts that his quality of life would improve if he lived in Montevallo, and that he needs to move quickly to s ecure certain accessible housin g which he has located. Am ended Declaration of Jonathan Paul Boyd, doc. 16-1 at ¶¶ 15-17, 20-22. Mr. Boyd does not personally allege any physical or emotional danger that would justify jumping to the end-game in this litigati on. Instead, he simply wants to uproot the status quo as soon as possible. But see U .S. v. Lambert , 695 F.2d 536, 540 (11 th Cir. 1983) (“The purpose of . . . a preliminary injunction is ‘merely to preserve the relative positions of the par ties until a trial on th e merits can b e held.’”) (quoting University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)); Canal Authority of State of Fla. v. Callaway , 489
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F.2d 567, 573 (5 th Cir. 1974) (“[T]he court m ust remember that a prelim inary injunction is an extraordinary and drastic rem edy which should not be grante d unless the m ovant clearly carries the burden of persuasion. Th e primary justification for applying this remedy is to preserve the court’s ability to render a meaningful decision on the merits.”).
Moreover, unless his statem ents were misrepresented in the Shelby County Reporter, “. . . Boyd still tries to make it to Montevallo several times a week to visit with his friends and fa mily. He can often be found in Eclipse C offee & Books laughing and hanging out with friends.” Katie Hurst, Quadriplegic man fights for dream , Shelby County Reporter, August 20, 2010, available at http://www.shelbycountyreporter.com/ 2010/08/20/quadriplegic-man-fights-for-college-dream/ last visited August 20, 2010. In that interview, Mr. Boyd apparently went on to talk about how im portant that time is to him, but the point is that he seem s to have it. Mr. Boyd has also reached into the world through technology while he ha s been at Chandler. See http://www.myspace.com/ paulboyd/blog last visited August 20, 2010. And, we also know he attends graduate level classes at the University of Montevallo through a vocational reha bilitation program offered by the Alabam a Department of Rehabi litation Services. Do c. 14 at ¶¶ 26, 28; Affidavit of Andria Gaither, doc. 19-1, page 3, line 19, to page 4, line 14. His current living arrangement is not a ba rrier to his full participation in that program. Id., page 4, lines 15-20.
For all the reasons set out in Section V., Mr. B oyd is not suffering discrim ination at the hands of Commissioner Steckel. That Mr. Boyd prefe rs community living should not entitle him to it while the litig ation progresses. See U.S. v. Lambert , 695 F.2d 536, 540 (11th Cir. 1983); Canal Authority of State of Fla. v. Callaway, 489 F.2d 567, 573 (5th
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Cir. 1974). That is especially true here, given (a) there is no m edical evidence that community living can be a saf e alternative to nursing home care, (b) there is no m edical evidence of what services Mr. Boyd actua lly requires, and (c) there has been no opportunity to develop the Medicaid-mandated plan of care.
VII. THE BALANCE OF HARDSHIPS DOES NOT FAVOR MR. BOYD Mr. Boyd asserts that the balance of hard ships is in his favor because he “is threatened with contin ued institutionalization” while Co mmissioner Steckel’s “only possible damages are money.” Doc. 16 at 22. Mr. Boyd’s argument ignores the fact that the State appropriations to Comm issioner Steckel’s agency are lim ited, and any expenditure for Mr. Boyd’s care would be lost to another potential Medicaid recipient. Affidavit of Marilyn Chappelle, doc. 19-3 at ¶ 20. Moreover, if Mr. Boyd could not be served in an existing Waiver program, his care would have to be funding with 100% State dollars, causing the S tate – and thus other potent ial Medicaid recipients – to lose federal matching funds. Id. Also, Mr. Boyd’s assertion ignores the fact that the State has not confined Mr. Boyd to an institution, which fact dis tinguishes this case fro m those situations involving involuntary confinement by the State. This is not a case where the governm ent has taken custody of Mr. Boyd or is affirmatively infringing on Mr. Boyd’s rights; it is a case about how much help the Government has undertaken to provide to its citizens. Cf. Olmstead, 527 U.S. at 593. (references to voluntary adm ission to facilities, as well as references to confinement and ins titutionalization). W hile Commissioner Steckel will focus her argument on her side of the balance and on di stinguishing the inapplicable case law, it is important to note that the an ti-discrimination provisions of the ADA an d the Rehab Act prohibit discrimination, not residence in a rehabilitation facili ty. While Mr. Boyd
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understandably does not want to reside in a nursing home all of his life, there is no freestanding constitutional, statutory, or regulatory provis ion that would requir e the government to provide alternative housing. It may well turn out that no agency of the Federal, State, or local governm ent is prep ared to pay the costs associated with Mr. Boyd’s living in the comm unity, and that the only way for hi m to avoid living at the nursing home is for him to bear the costs of independent living. In that respect, Mr. Boyd’s situation is indeed unfortunate, but not more so than that of other nursing home residents who must enter the nursing home when their private resources are depleted.
To the extent that Mr. Boyd is suggesting that the costs associated with his care are minimal compared to the overall S tate Medicaid budget, the Olmstead Plurality specifically rejected that an alysis: “The Court of A ppeals’ construction of the reasonable-modifications regulation is unacceptable for it would leave the State virtually defenseless once it is shown th at the plaintiff is qualified for the service or program she seeks. If th e expense entailed in placi ng one or two people in a comm unity-based treatment program is properly m easured for reasonableness against the State’s entire mental health budget, it is unlikely that a State, relying on the funda mental-alteration defense, could ever prevail.” Olmstead, 527 U.S. at 603 (emphasis added).
Thus, in b alancing the hardships in this ca se, it is important to consider the cumulative monetary effect of m andating home-based care for every sim ilarly-situated Medicaid recipient. The cum ulative effect of expending State Medicaid funds without drawing down the corresponding federal m atching funds could be devastating to Alabama’s Medicaid population. If Mr. Boyd must be served outside the lim its of a Medicaid Waiver program, other individuals would no doubt request th e same treatment.
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Affidavit of Marilyn Chappelle, doc. 19-3 at ¶ 21. The loss of federal m atching funds would apply to each person who receives a 100% State-funded reim bursement for noncovered Medicaid services. Id. As more and more person s received 100% State-funded care, the State’s ability to draw down fede ral matching funds would dim inish, and the overall budget of the Medicaid program would shrink dramatically.
When a physician certifies Mr. Boyd’s actual medical needs, including both skilled and unskilled care, it might very well be that it will cost a great deal more to serve him in a private residence than it does to serve him at Chandler. And, despite Mr. Boyd’s insistence that the Commissioner can and should provide him with Medicaid-funded services, doc. 14 at ¶ 6, Medicaid is a join t program between the S tate and Federal Governments, see Section II.C., supra. Alabama’s Medicaid waiver program s are very structured in terms of designating the services and equipment available through them, and they were consciously designe d to be cos t-effective. Id. Commissioner Steckel has no authority to unilaterally change any of the waiver programs in order to individually tailor one to Boyd. Id., see esp. 42 C.F.R. § 430.25(e)-(f) (CMS must approve any State waiver). An i mproper expenditure of Medi caid funds coul d have severe consequences for the Alabama Medicaid program. Violations of federal law could subject the State “to sanction by the federal regulat ory authority, including charge -backs, or suspension or termination of a program.” Affidavit of Marilyn Chappelle, doc. 19-3 at ¶ 18.
Mr. Boyd’s cases provide him no support. First, he cites Edmonds v. Levine, 417 F.Supp.2d 1323 (S.D. Fla. 2006), for the prop osition that “harm to plaintiffs of being deprived of essential medical services outweighs any harm to [S]tate.” Doc. 16 at 22. In that case, however, plaintiffs were being denied essential medications, placing them at a
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risk of “imminent and irreparable” harm. Edmonds, 417 F. Supp. 2d at 1341. Here, there is no allegation that Mr. Boyd is not getting all the medical services he needs. Instead, he complains that he should be getting those m edical services in his own private hous ing, instead of at Chandler.
Furthermore, in Edmonds, the Court held a prelim inary injunction hearing while summary judgment briefing was on-going. Id. at 1325. The Court concluded that the question was one of statutory interpreta tion which could be decided on summ ary judgment, id., and the cited opinion does just that —granting judgment for the plaintiffs and granting a permanent injunction. Id. C onsequently, when the Edmonds Court assessed irreparable harm, it did so in the context of “ha[ving] already concluded that [the State’s] Neurontin policy violat es the Medicaid Act . . . .” Id. at 1342. Indeed, that contextual piece was front-and-center in the Court’s irreparable harm analysis. Id.
Next, Mr. Boyd cites Illinois Hospital Association v. Illinois Department. of Public Aid, 576 F.Supp. 360, 371 (D.C. Ill. 1983), wh ich says: “Once a [S]tate has voluntarily elected to participa te in the Medi caid program, . . . it m ust comply with all federal Medicaid standards. Accordingly no [S]tate may characterize its duty to comply with the requirements of an elective program such as Medicaid as constituting a hardship to its citize ns.” (c itation omitted). See doc. 16 at 22. Mr. Boyd does not ask Commissioner Steckel to com ply with the State’s Medicaid Plan, however. On the contrary, Mr. Boyd seeks to com pel the Co mmissioner to ignore the entire Medicaid superstructure by spending Medicaid m oney to serve him – whatever his needs might turn out to be and whatever th eir costs – either by expanding the scope of existing Medicaid Waiver programs, or by creating a new Waiver program for him.
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Finally, Mr. Boyd cites Kansas Hospital Assoc iation v. Wh iteman, 835 F.Supp. 1548 (D. Kan. 1993), for the proposition that “threatened injuries to plaintiffs outweighed any harm to defendant that would result fr om issuing the tem porary restraining order because changing Medicaid cov erage ‘significantly alters the status qu o to the detrim ent of the individual plaintiffs, while its posit ive budgetary impact on [S]tate coffers is negligible in a relative sense.’” Doc. 16 at 22. Whiteman is inapposite for two reasons.
First, in Whiteman, the State was about to imple ment a new rule that would increase the co-pay req uired for hospital stays. Whiteman, 835 F. Supp. at 1551. The Court’s injunction maintained the status quo. Here, Comm issioner Steckel was not on the verge of taking any action to Mr. Boyd’s detriment. Instead, Mr. Boyd seeks to alter the status quo, jumping straight to his desired end-gam e at the start. See Section III, supra, especially U.S. v. Lambert , 695 F.2d 536, 539, 540 (11 th Cir. 1983), and Canal Authority of State of Fla. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974).
Second, the balancing in Whiteman is, of course, specific to the facts of that case, and those f acts are nothing lik e these. The Whiteman Court looked at the fact that hospitals would be required to continue treating Medicaid recipients irrespective of whether those patients could pay their co-pays, and so the hospita ls would incur los es if the rule went into ef fect. Whiteman, 835 F. Supp. at 1552. That balancing tells this Court nothing about how to proceed here.
When all relevant factors are considere d, Mr. Boyd has not demonstrated that the balance of hardships tilts in his favor.
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VIII. A PRELIMINARY INJUNCTION WOULD NOT BE IN THE PUBLIC INTEREST Mr. Boyd contends that th e public interest favors th e grant of a prelim inary
injunction because the ADA and t he Rehab Ac t reflect a strong public policy against discrimination on the basis of di sability. Doc. 16 at 23. Accepting that the ADA and the Rehab Act reflect a strong national policy against discrimination on the basis of disability does not end the inquiry, however.
Here, Commissioner Steckel strenuously deni es that she is discrim inating against Mr. Boyd in any way. That Mr. Boyd receiv es medical services in a n ursing home does not, without more, mean that he is institutionalized in the Olmstead sense39 or that he has been the victim of discrimination. Moreover, given the outstanding questions—what are Mr. Boyd’s true medical needs, as determined by a medical treatment professional? does either the E&D Waiver or th e SAIL Waiver provide reimbursement for the medical services Mr. Boyd needs? if not, what changes would be required and at what cost?—it is not at all clear what im pact the desired injunction would have on Alabam a’s waiver programs or on others seeking or receiving services pursuant to it.
An expenditure of State funds only, without the benefit of any federal m atching funds, would more than double the State’s co st for Boyd’s m edical care. Affidavit of Marilyn Chappelle, doc. 19-3 at ¶ 20. Such an expenditure of St ate funds would also significantly reduce the State and federal funds available for other Medicaid recipients. Id. Mr. Boyd does not concern him self with th e costs to the State, dism issing it as
39 Olmstead includes references to volunt ary admission to facilities, as well as repeated references to confinement and institutionalization. 527 U.S. at 593. Chandler is a private facility. The Alabam a Medicaid Agency simply pays the bill, and it does that mostly with Federal money.
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unimportant. But we are talking about taxpaye r dollars in a tight economy, and they are
dollars that should not be spent for all the reasons detailed in Section V., supra.
If there is a currently ex isting waiver program which can serve Mr. Boyd’s actual
medical needs—that is, provide whatever services are required for him to live
independently in a manner which assures his health and safety—that program needs to be
identified, as does the reason he is not currently being served by that program. If there is
a slot available and if Mr. Boyd is the pers on who shoul d be in the slot, pursuant to
whatever rules exist to dole out th is limited resource, that is one m atter—and a simple
one at that.
If there is a slot and Mr. B oyd is not the one entitled to it, then he is seeking to
line-jump, and it is no t in the public inte rest to allow that. The provision of Medicaid-
funded services should not be based on a wi llingness to file litigation. As the Olmstead
Plurality explained:
To maintain a range of facilities and to administer services with an even hand, the State must have more l eeway than the courts below understood the fundamental-alteration de fense to allow. If, for exa mple, the State were to d emonstrate that it h ad a com prehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting lis t that moved at a reaso nable pace not controlled by the State’s endeavors to keep its in stitutions fully populated, the reasonable-modifications standard would be met. See Tr. of Oral Arg. 5 (State’s attorney urges that, “by asking [a ] person to wait a short tim e until a com munity bed is availab le, Georgia does not ex clude [that] person by reason of disability, neit her does Georgia discriminate against her by reason of disability”); see also id., at 25 (“[I]t is reasonable for the State to ask someone to wait until a co mmunity placement is available.”). In such circumstances, a court would have no warrant effectively to order displacement of p ersons at th e top of th e community-based treatment waiting list by individuals lower down who commenced civil actions.
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527 U.S. at 605-06 (Plurality Opinion) (footnote omitted; emphasis added); see also id. at 626 (Thomas, J., dissenting) (“C ontinued institutional treatment of persons who, though now deemed treatable in a community placement, must wait their turn for placement does not establish that th e denial of comm unity placement occurred ‘b y reason of’ their disability. Rather, it e stablishes no more than the f act that pe titioners have limited resources.”).
If there is no slot and so Mr. Boyd is seeking to bust the cap, it is not in the public interest to allow that. Busting the c ap is abandoning the requirem ents of Medicaid law, as set out in Section II.C., supra, especially 42 C.F.R. § 441.303(f)(6); Susan J. v. Riley, 616 F.Supp.2d 1219, 1239 n. 17 (M.D. Ala. 2009) (“The cap itself is clearly proper.”), and in any event, cannot be unilaterally undert aken by sole defendant in this litigation, Section II.C., supra, esp. 42 C.F.R. § 430.25(e)-(f).
Alternatively, the Comm issioner would be forced to reimburse providers for Mr. Boyd’s medical care using 100% State do llars, and sacrific ing federal m atching funds. Id. at ¶ 20. Doing so would be contra ry to the m ission and purpose of the Alabama Medicaid Agency, which exists in order to take advantage of the fe deral matching funds made available to the States th at comply with the rigors of the f ederal Medicaid program. Doing so would also be c ontrary to the public interest, as well as the private interests of tho se who are actually s erved by Alabam a’s limited Medicaid appropriations. Id. at ¶ 21.
If there is no program in place, designing one for Mr. Boyd’s benefit is not in the public interest. Again, it would be an abandonment of the Medicaid program, which does not allow for Commissioner Steckel to unilate rally design new Medicaid-funded services
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and does not encourage designing progr ams around a specific individual. See Section II.C., supra. And, again, serving Mr. Boyd outside the Medicaid program is not what this defendant does, and any attem pt to do so c ould be harmful to the State’s Medicaid program, resulting in a significan t loss of fede ral matching funds. Affidavit of Marily n Chappelle, doc. 19-3 at ¶ 18.
IX. CONCLUSION Mr. Boyd’s motion for a preliminary injunction should be denied.

Stephanie McGee Azar General Counsel ALABAMA MEDICAID AGENCY 501 Dexter Avenue Post Office Box 5624 Montgomery, Alabama 36103-5624 Telephone: 334.242.5126 Facsimile: 334.353.3907
stephanie.azar@medicaid.alabama.gov

Respectfully submitted, TROY KING ATTORNEY GENERAL BY:
s/Margaret L. Fleming________ Margaret L. Fleming (FLE001) James W. Davis (DAV103) Misty S. Fairbanks (FAI005) Assistant Attorneys General OFFICE OF THE ATTORNEY GENERAL 500 Dexter Avenue Montgomery, Alabama 36130 Switchboard: 334.242.7300 Facsimile: 334.353.8440 mfleming@ago.state.al.us jimdavis@ago.state.al.us mfairbanks@ago.state.al.us
Attorneys for Commissioner Steckel

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CERTIFICATE OF SERVICE
This is to certify that on the 7th day of October, 2010, a copy of the foregoing has been electronically filed with the Clerk of the Court using the CM/ECF system , which will electronically send a copy of the sa me to the f ollowing: Jam es Tucker (jtucker@adap.ua.edu); Lonnie J. W illiams (lwilliams@adap.ua.edu); and Steve Gold (stevegoldada@cs.com).

Margaret

s/Margaret L. Fleming________ L. Fleming (FLE001)

76

 
 Boyd v. Mullins, Docket No. 2:10-cv-00688 (M.D. Ala. Aug 12, 2010), Court Docket
Printed By: Joseph Chatham on Saturday, October 6, 2012 - 11:06 AM

Part Description 1 24 pages 2 Exhibit A 3 Exhibit B 4 Exhibit C 5 Exhibit D

Multiple Documents

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Case 2:10-cv-00688-MEF -TFM Document 25 Filed 10/12/10 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JONATHAN PAUL BOYD,

)

)

Plaintiff,

)

)

vs.

)

)

CAROL A. HERRMANN-STECKEL, )

in her official capacity as Commissioner, )

Alabama Medicaid Agency,

)

)

Defendant.

)

Civil Action Number: 2:10-cv-00688-MEF-TFM

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C. § 517,1 because this litigation implicates the proper interpretation and application of the integration
mandate of title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101,
et. seq. See Olmstead v. L.C., 527 U.S. 581 (1999). The Attorney General has authority to
enforce title II of the ADA, and pursuant to Congressional mandate, to issue regulations setting
forth the forms of discrimination prohibited by Title II. 42 U.S.C § 12134. Accordingly, the
United States has a strong interest in the resolution of this matter and urges the Court to grant the
plaintiff’s motion for preliminary injunction.
INTRODUCTION
Plaintiff Jonathan Paul Boyd, a young man with quadriplegia who receives services in the
State of Alabama’s Medicaid program, is enrolled with a scholarship as a graduate student at the 1 28 U.S.C. § 517 states that “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”
. 1

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University of Montevallo, where he is pursuing a Master’s degree in community counseling. Because of the defendant’s discriminatory administration of Alabama’s Medicaid program, however, Mr. Boyd has been relegated to a nursing home unnecessarily and indefinitely – significantly interfering with his ability to participate in his graduate program, school activities and community life generally. The defendant refuses to make reasonable modifications to the State’s Medicaid program to enable Mr. Boyd to live in the community, despite the substantial evidence that Mr. Boyd wants to live in the community, is capable of doing so, and that providing him services in the community instead of a nursing home would actually save the State money. As a result, Mr. Boyd remains needlessly institutionalized in violation of Title II of the ADA, 42 U.S.C. § 12131, et. seq. (“ADA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) and the Supreme Court decision Olmstead v. L.C., 527 U.S. 581 (1999). Moreover, Mr. Boyd is suffering irreparable harm each day he remains segregated in a nursing home, where he loses valuable time and educational and other opportunities that no court order in the future can adequately remedy. For these reasons and the reasons set forth below, the Court should grant the plaintiff’s motion for preliminary injunction.
STATUTORY AND REGULATORY BACKGROUND Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). It found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities:
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[N]o qualified individual with a disability shall, by reason of such di sability, 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. § 12132.2
One form of discrimination prohibited by the ADA is a violation of the “integration
mandate.” The integration mandate arises out of Congress’s explicit findings in the ADA, the regulations of the Attorney General implementing title II,3 and the Supreme Court’s decision in
Olmstead, 527 U.S. at 586. In Olmstead, the Supreme Court held that public entities are required
to provide community-based services to persons with disabilities when (a) such services are
appropriate; (b) the affected persons do not oppose community-based treatment; and (c)
community-based services can be reasonably accommodated, taking into account the resources
available to the entity and the needs of others who are receiving disability services from the
entity. Id. at 607.
FACTUAL BACKGROUND
In 1995, while a sophomore at Troy State University, Jonathan Paul Boyd was injured in
an accident that resulted in paralysis below the collar bone. (Am. Compl. at ¶ 2.) For the
following eleven years, he lived at home with his family in Montevallo, Alabama, where his
mother served as his primary caregiver, and he received some services under the State of
2 Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based discrimination. 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”). 3 The regulations provide that “a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. §§ 35.130(d), 41.51(d). The preamble discussion of the ADA “integration regulation” explains that “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), App. A, p. 571 (2009).
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Alabama Independent Living (“SAIL”) Medicaid waiver program. (Id. at ¶¶ 17-19). He eventually returned to college in Montevallo and graduated in 2007 with a Bachelor of Arts degree.
When his mother could no longer serve as his primary caregiver, Mr. Boyd entered a nursing home in December 2006, and the waiver services he received prior to that time were terminated. (Id. at ¶ 20.) He remains in the nursing home today, and the services he receives there are provided through the State’s Medicaid program.
Early this year, Mr. Boyd was accepted to a graduate program at the University of Montevallo, where he seeks to earn a Master’s degree so that he can pursue a career in community counseling. (Am. Decl. of Jonathan Paul Boyd 11-12.) Unlike most students at the University of Montevallo, however, Mr. Boyd cannot participate fully in activities, events and opportunities offered by the school because he is confined to a nursing home, thirteen miles away. (Id.) In the nursing home, Mr. Boyd is subject to curfews, restrictions and regimented activities. (Id. ¶¶ 20-22.) He has no privacy, and is surrounded by constant noise. All of the other nursing home residents are individuals with disabilities and most are much older than Mr. Boyd. (Id.) As a result, he is deprived of the simple pleasure of being around people his own age and choosing what to do with his day. He is also deprived of the opportunity to take full advantage of all the University has to offer, such as athletic events, lectures, author readings, theatrical and musical performances and other school functions. (Id. ¶ 15.)
The State of Alabama has opted to take advantage of Medicaid’s waiver programs in order to provide home and community-based services to persons with disabilities who would otherwise be cared for in hospitals and other institutions. 4 The “waiver” authority permits the
4 States can submit requests for approval to the Centers for Medicare and Medicaid Services 4

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Secretary of Health and Human Services to waive certain Medicaid requirements in order for states to offer these services. See 42 U.S.C. § 1396m(b)-(h); 42 C.F.R. §430.25(d). Pursuant to this authority, Alabama administers six waiver programs, including the Elderly and Disabled Waiver and the State of Alabama Independent Living (“SAIL”) waiver. The purpose of the Elderly and Disabled waiver is to “provide home and community-based services to elderly and disabled individuals in the community who would otherwise require nursing facility care.” See Application for a § 1915(c) Home and Community-Based Services Waiver, at 4 (attached as Exhibit 6 to Pl.’s Mem. of Law in Support of Mot. for Prelim. Inj., dated Aug. 17, 2010, ECF No. 4-6) (hereinafter (E/D Waiver Application”) The SAIL waiver “provides services to individuals with physical disabilities not associated with the process of aging and with onset prior to age 60 …., [including] quadriplegia….” Section 1915(c) Waiver Request, November 2008 (hereinafter “SAIL Waiver Application”), attached hereto as Exhibit A.
By providing services to individuals in the Elderly and Disabled waiver instead of a nursing facility, the State saved annually, on average, more than $10,000 per person during the last three years. See E/D Waiver Application at Appendix J-1:1.5 Similarly, in a cost neutrality demonstration set forth in the SAIL Waiver Application, the State represented that it saved on average more than $15,000 per person to serve individuals through the SAIL waiver instead of a nursing facility. See SAIL Waiver Application at 92. Even though it would be less costly to provide services to Mr. Boyd in the community, where he is able to and very much wants to live, defendant has refused to make reasonable modifications to its service program to enable him to do so.
(“CMS”) to alter the terms of a waiver application at any time. See 42 C.F.R. § 441.355. 5 See also 42 C.F.R. § 441.303(f)(1) (providing instructions on terminology used in 1915(c) Waiver Applications).
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ARGUMENT
The plaintiff satisfies the requirements for a preliminary injunction. To obtain a
preliminary injunction, the moving party must show (1) a substantial likelihood of success on the
merits, (2) that he will be irreparably harmed in the absence of an injunction, (3) that the balance
of the equities favors granting the injunction, and (4) that the public interest would not be
harmed by the injunction. Mesa Air Group, Inc. v. Delta Air Lines, Inc., 573 F.3d 1124, 1128
(11th Cir. 2009). The decision whether or not to issue a preliminary injunction lies within the
sound discretion of the trial court. Charles H. Wesley Educ. Foundation, Inc. v. Cox, 408 F.3d
1349, 1354 (11th Cir. 2005). The “primary justification” for the issuance of a preliminary
injunction is to preserve the court’s ability to render a meaningful decision on the merits. Canal Authority of the State of Florida v. Callaway, 489 F.2d 567, 573, 576 (5th Cir. 1974).6 Here,
preliminary injunctive relief is necessary to prevent the irreparable harm of unnecessary
institutionalization. See Long v. Benson, No. 08cv26, 2008 WL 4571903, at *2 (N.D. Fla. Oct.
14, 2008) (granting preliminary injunction requiring Florida to provide Medicaid-funded
community-based services because irreparable injury would result if plaintiff were forced to
enter a nursing home), aff’d, No. 08-16261, 2010 WL 2500349 (11th Cir. June 22, 2010).
6 See also Charles H. Wesley Educ. Foundation, Inc. v. Cox, 408 F.3d 1349, 1351 (11th Cir. 2005) (affirming preliminary injunction in a voting rights acts case requiring defendants to process voter registration applications); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1425 (11th Cir. 1984) (issuing preliminary injunction requiring defendants to display notices and instruct employees and agents of nondiscrimination policies and finding that “when housing discrimination is shown it is reasonable to presume that irreparable injury flows from the discrimination”); Haddad v. Arnold, No. 3:10-cv-00414-MMH-TEM (M.D. Fla. July 9, 2010) (hereinafter “Haddad Op.”) at 39 (attached as Exhibit B) (issuing preliminary injunction requiring defendants to provide community-based services to plaintiff); Rogers v. Windmill Point Vill. Club Assoc., Inc., 967 F.2d 525, 528 (11th Cir. 1992); Community Services, Inc. v. Heidelberg, 439 F. Supp. 2d 380, 400-401 (M.D. Pa. 2006) (entering preliminary injunction ordering defendants to issue permits for plaintiff to utilize property as long term structured residence for individuals with mental illness).
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I. Plaintiff is Likely to Prevail on the Merits of His Claims To establish a violation of Title II of the ADA, a plaintiff must prove that (1) he has a
disability; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability. Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir. 1996).7 Defendants do not dispute that Mr. Boyd is an individual with a disability within the meaning of the ADA and the Rehabilitation Act. Nor do they dispute that he is eligible to receive Medicaidfunded services from the State; indeed, the State pays for the services Mr. Boyd currently receives in the nursing home. Instead, defendant contends that the plaintiff’s ADA and Rehabilitation Act claims are “trump[ed]” by the Medicaid Act; that an ADA regulation exempts the State from providing personal services; that Mr. Boyd is not able to live in the community; and that the relief he seeks works an “overhaul” of the State’s Medicaid program and requires the creation of an “entirely new State-funded program.” These arguments have no merit.
A. Defendant’s Interpretation of Federal Law is Unfounded Defendant argues that Mr. Boyd’s ADA and Rehabilitation Act claims “force[] the statutes into conflict” with the Medicaid Act and that the Medicaid Act “trumps” these antidiscrimination statutes. Def.’s Resp. at 45. Specifically, defendant argues that a finding under the ADA and Rehabilitation Act that services must be provided to Mr. Boyd in a communitybased setting would conflict with the Medicaid Act because waiver programs are optional, can be limited to target populations, and are approved by the U.S. Department of Health and Human Services Center for Medicaid and Medicare Services (“CMS”). Id. at 44. Contrary to
7 Claims under the ADA and the Rehabilitation Act are treated identically unless, unlike here, one of the differences in the two statutes is pertinent to a claim. Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316 n.3 (11th Cir. 2009); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
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defendant’s assertion, Mr. Boyd’s claim does not raise any question requiring the Court to reconcile the ADA or Rehabilitation Act with the Medicaid Act.
1. ADA Compliance Does Not Conflict With the Medicaid Act
A determination that Mr. Boyd should be provided services in the most integrated setting appropriate to his needs does not require a finding that the State must provide waiver services as a mandatory (as opposed to optional) Medicaid service, or that such services cannot be limited to a particular target population.8 Rather, once a state has elected to provide services (whether mandatory or optional under the Medicaid Act), the state must administer those services in accordance with the ADA and Rehabilitation Act. A state that chooses to provide optional services cannot defend against the discriminatory administration of those services simply because the state was not initially required to provide them. Haddad Op. at 28-29 (“Defendants have provided no authority for the proposition that a state that chooses to provide Medicaid services, even if otherwise optional, would not be required to comply with the ADA in the provision of those services, just as it would have to comply with the ADA for any other ‘services, programs, or activities’ provided by a public entity.”); see also Doe v. Chiles, 136 F.3d 709, 714 (11th Cir. 1998) (When a state chooses to provide an optional Medicaid service, it must do so in accordance with the requirements of federal law); Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1182 (10th Cir. 2003) (even though a waiver program is optional, a state may not, under Title II of the ADA, amend optional programs in such a way as to violate the integration mandate).
8 Indeed, given that he is a person with a physical disability, Mr. Boyd is within the target populations served by the Elderly and Disabled Persons waiver and the SAIL waiver.
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Equally unavailing is the defendant’s suggestion that approval of the State’s Medicaid program by CMS exempts it from making modifications to comply with the ADA or Rehabilitation Act. Def.’s Resp. at 44. The Medicaid Act sets conditions for the availability of federal funds, but the obligation of states to ensure that individuals with disabilities are not needlessly institutionalized is independent of the Medicaid statutes. See Townsend v. Quasim, 328 F.3d 511, 518 n.1 (9th Cir. 2003). Thus, although a particular aspect of a state’s Medicaid program has been approved, the state may have to request a modification from CMS in order to comply with other laws. CMS has explicitly recognized that the ADA may require states to modify their Medicaid programs under certain circumstances. For example, CMS has issued guidance that the mere fact that a state is permitted to “cap” the number of individuals it serves in a particular waiver program under the Medicaid Act does not exempt the state from seeking a modification of its program to comply with the ADA or other laws. See CMS, Olmstead Update No. 4, at 4 (Jan. 10, 2001), available at http://www.cms.hhs.gov/smdl /downloads/smd011001a.pdf (“If other laws (e.g., ADA) require the State to serve more people, the State may…request an increase in the number of people permitted under the HCBS Waiver.”) (Attached hereto as Exhibit C).
2. ADA Regulation on Personal Services Does Not Exempt Defendant from Providing the Relief Sought
Defendant also asserts that the ADA’s Personal Devices and Services Regulation, 28 C.F.R. § 35.135, exempts the State from having to provide “services of a personal nature.” Def.’s Resp. at 48-51. Defendant’s interpretation of this regulation is incorrect. The Personal Devices and Services Regulation simply makes clear that Title II does not require a State to provide
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personal services where such services are not “customarily provided.”9 See U.S. Dept. of
Justice, ADA Title II Technical Assistance Manual § II-3.6200 (emphasis added).10
Indeed, courts that have held that § 35.135 imposes any limits on a state’s duty to provide
reasonable accommodations have only done so, as the Department of Justice interpretation
contemplates, where such devices or services are not “customarily provided.” See, e.g.,
McCauley v. Winegarden, 60 F.3d 766, 767 (11th Cir. 1995) (“environmental filtering” device in
a courtroom); Kerry M. v. Manhattan School Dist. #114, 2006 WL 2862118, at *10 (N.D. Ill.
2006) (collapsible wheelchair in school district’s bus service); Blatch ex rel. Clay v. Hernandez,
360 F. Supp. 2d 595, 630 (S.D.N.Y. 2005) (expert representatives in tenancy termination
proceedings); Rivera v. Delta Air Lines, Inc., 1997 WL 634500, at *1-2 (E.D. Pa. 1997)
(wheelchair to board airplane); Adelman v. Dunmire, 1996 WL 107853, at *3 (E.D. Pa. 1996)
(wheelchair in courtroom).11 Thus, where, as here, the services sought by the plaintiff are
9 For example, a State’s Department of Motor Vehicles need not provide wheelchairs to those who wait in line for a driver’s license. 10 The Technical Assistance Manual provides the Department’s interpretation of its ADA regulations, and has been relied upon by the Supreme Court. See Bragdon v. Abbott, 524 U.S. 624, 646-647 (1998). The appendix to the Title II regulations also explains that the regulation “parallels an analogous provision” in the regulations implementing Title III. 28 C.F.R. Pt. 35, App. A, p. 574 (2009) (referring to 28 C.F.R. § 36.306). The appendix accompanying the Title III regulations, in turn, explains: “Of course, if personal services are customarily provided to the customers or clients of a public accommodation, e.g., in a hospital or senior citizen center, then these personal services should also be provided to persons with disabilities using the public accommodation.” 28 C.F.R. Pt. 36; App. B, p. 732 (2009). Because the Department of Justice’s interpretation of its own regulation merits substantial deference, see Auer v. Robbins, 519 U.S. 452, 461 (1997), this Court should reject contrary interpretations of the personal services regulation. See also Coeur Alaska Inc. v. Se. Alaska Conservation Council, __ U.S. __, 129 S.Ct. 2458, 2469 (2009). 11 Other courts have interpreted the limits imposed by § 35.135 narrowly. For example, in A.P. ex rel. Peterson v. Anoka-Hennepin Indep. School Dist. No. 11, 538 F. Supp. 2d 1125, 1152-53 (D. Minn. 2008), the court held that § 35.135 does not bar a diabetic child’s parents from requesting that school district staff be trained and authorized to provide glucagon injections to the child. Similarly, in Purcell v. Pennsylvania Department of Corrections, 1998 WL 10236, at *9 (E.D. Pa. 1998), the court rejected the state’s argument that it was not required under the
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customarily provided in the program in which he is receiving services, the limitation expressed by 28 C.F.R. § 35.135 has no bearing.
3. Defendant’s Legal Arguments Were Recently Rejected by Courts in the Eleventh Circuit
The same legal arguments asserted by defendant were recently rejected in two separate Olmstead cases pending in federal courts in Florida. In Haddad , supra n. 6, a woman with quadriplegia, who was on a wait list for services in Florida’s home and community-based services waiver, filed a motion for preliminary injunction seeking to enjoin the defendants from refusing to offer her services in the waiver. Id. at 2. The defendants opposed the motion, arguing inter alia that (1) a finding under the ADA that plaintiff must be served in a waiver program would abrogate or amend the Medicaid Act provisions that allow states to cap their programs and to have the option to provide waiver services, and (2) 28 C.F.R. § 35.135 exempted them from providing personal care services to the plaintiff. Id. at 26-29. The district court rejected these arguments and granted the plaintiff’s motion for preliminary injunction. It found that defendants’ attempt to characterize the plaintiff’s ADA claim “as an invalidation of the Medicaid Act is without merit,” explaining that it “simply addresse[d] the question of whether [the] Defendants, having opted to provide particular services via the mechanism of a Medicaid Waiver Program, may be required, under the ADA, to provide those same services to her if necessary to avoid imminent, unnecessary institutionalization.” Id. at 29. With respect to the defendants Section 35.135 argument, the district court found it also “misses the mark,” reasoning that when a state chooses to provide certain services, it must do so in a nondiscriminatory fashion. Id.
ADA to provide a plastic chair for support in shower to accommodate plaintiff’s joint disease. 11

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Similarly, in Long v. Benson, a man who was relegated to a nursing home after experiencing a stroke that resulted in paralysis on the left side of his body sought a preliminary injunction requiring the State to provide Medicaid coverage for certified nursing assistance in his home. Long 2008 WL 4571903. The district court found that the plaintiff satisfied the requirements for entry of a preliminary injunction, including that he was likely to prevail on the merits of his Olmstead claim. Id. at 2. On appeal to the Eleventh Circuit Court of Appeals, the state defendants argued, as defendant does here, that 28 C.F.R. § 35.135 does not require them to provide personal care services and that the relief ordered under the ADA impermissibly invalidated the provisions of the Medicaid Act that make waiver programs optional and allow them to be limited. See Benson v. Long, Amended Initial Brief of the Secretaries of the Florida Agency for Health Care Administration and the Department of Elder Affairs, 2010 WL 2493235, at *10-16 (Jan. 14, 2009). Finding that the district court did not abuse its discretion, the Eleventh Circuit affirmed the preliminary injunction on June 22, 2010. Long v. Benson, No. 0816261, 2010 WL 2500349, at *1 (11th Cir. 2010).
B. Mr. Boyd is a Qualified Individual with a Disability Under the ADA, a “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices … meets the essential eligibility requirements for receipt of services or the participation in programs or activities provided by the public entity.” 42 U.S.C. § 12131(2). The defendant argues that Mr. Boyd is not a “qualified individual” because Alabama does not “currently [have] a Medicaid waiver program which, as designed, meets his needs.” Def.’s Resp. at 54. Defendant’s argument conflates the question of eligibility with the question of whether the relief sought is a reasonable modification of the program provided by defendant. There is no dispute that Mr. Boyd is qualified to receive long-term medical care and living assistance through Alabama’s
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Medicaid program. Moreover, given that he lived in the community for eleven years with adequate support services, it is clear that community-based services are appropriate for his needs. See Townsend, 328 F.3d at 516 (individual satisfied eligibility requirement where he was qualified to receive long-term care through state’s Medicaid program and showed he benefitted from receiving those services in a community-based setting); Long, 2008 WL 4571903, at *2 (“[C]ommon sense and experience suggest there is nothing that can be done for [the plaintiff] in the nursing home that cannot also be done in his apartment complex. Indeed, this is true of most if not all services provided in nursing homes for most if not all patients.”). Thus, Mr. Boyd has established that he is a qualified individual with a disability.
Defendant appears to argue that Mr. Boyd is not eligible for community-based services because he has not been assessed by a state treatment professional. As many courts have held, however, a plaintiff need not show that a state’s treatment professional has concluded that he can be served in the community. See Joseph S. v. Hogan, 561 F. Supp. 2d 280, 310 (E.D.N.Y. 2008) (no eligibility determination from the state’s professional is required); Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 258 (E.D.N.Y. 2009) (same); Long, 2008 WL 4571904, *2 (state “cannot deny the right [to an integrated setting] simply by refusing to acknowledge that the individual could receive appropriate care in the community. Otherwise, the right would, or at least could, become wholly illusory.”); Frederick L. v. Dep’t of Public Welfare, 157 F. Supp. 2d 509 (E.D. Pa. 2001) (“Frederick L. I”) (“Olmstead does not allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the services needs of institutionalized individuals with mental disabilities.”).12
12 To the extent defendant suggests that Mr. Boyd is ineligible for services in the Elderly and Disabled waiver because he is not “on the referral list of persons who wish to be enrolled in the E&D waiver,” Def.’s Resp. at 54, that argument is also without merit. As Mr. Boyd attested, he
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C. With Reasonable Modifications to its Program, the State Can Provide the Services Mr. Boyd Needs to Live in the Community
Defendant mischaracterizes the relief Mr. Boyd seeks as a “new waiver program” and one that would require an “overhaul of the system.” Def.’s Resp. at 63. The relief Mr. Boyd seeks is nothing of the sort. Defendant’s characterizations are flawed for two reasons. First, they fail to account for the fact that the State is already providing Mr. Boyd with the services he is seeking in this litigation. He simply requests that the State provide those services in a community-based setting rather than an institution. See Townsend, 328 F.3d at 517 (“If services were determined to constitute distinct programs based solely on the location in which they were provided, Olmstead and the integration regulation would be effectively gutted. States could avoid compliance with the ADA simply by characterizing services offered in one isolated location as a program distinct from the provision of the same services in an integrated location.”); Helen L. v. Didario, 46 F.3d 325, 337-39 (3d Cir. 1995) (state violated ADA by not providing state-funded attendant care services for which plaintiff was eligible in her own home, rather than a nursing home); Fisher, 335 F.3d at 1183 (questioning whether defendants had a valid fundamental alteration defense where plaintiffs were simply requesting that a service for which they are eligible be provided in a community-based setting rather than a nursing home).
Second, Mr. Boyd can be served successfully in the community with services that the State already provides to other individuals with disabilities in the State’s community-based
applied for Alabama’s community-based waiver program in October 2008. (Boyd Am. Decl. ¶ 24.) In her answer to the complaint, the defendant admits that Mr. Boyd applied for waiver services, but states that he applied for services in December 2008, not October 2008. (Answer ¶ 26.) Moreover, even if Mr. Boyd failed to follow application procedures or filed an application for one particular waiver and not another, failure to follow administrative formalities does not bear on whether an individual with a disability is qualified to receive services in an integrated setting. See Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d at 333 n.44 (expressing doubt that failure to file a formal application “bears on whether individuals are qualified to receive services in a ‘more integrated setting.’”).
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programs.13 Defendant has produced evidence that the Elderly and Disabled waiver provides personal care services without any hourly limit. (Affidavit of Marilyn Chappelle ¶ 14.) Thus, that program can readily meet Mr. Boyd’s needs for personal care services. Additionally, with respect to skilled nursing services, Alabama law contains a regulatory exception that permits a nurse or doctor to delegate such services to unlicensed personnel. Def.’s Resp. at 15-16 (citing regulation of Alabama Board of Nursing allowing a registered nurse to delegate tasks to a designated caregiver under certain circumstances); see also Ala. Code 1975 § 34-21-6 (providing that Chapter regarding practice of professional nursing “does not prohibit ... persons, including nursing aides, orderlies, and attendants, carrying out duties necessary for the support of nursing services, … or under the supervision of professional nurses licensed hereunder, nor gratuitous nursing of the sick by friends or members of the family….”) Thus, Mr. Boyd’s need for limited skilled nursing services in connection with his catheter and bowel program could be delegated to another person, such as a home health attendant, a service provided in the State’s Medicaid plan. See 42 U.S.C. § 1396a(a)(10)(D) (“A state plan for medical assistance must … provide … for the inclusion of home health services for any individual who, under the State plan, is entitled to nursing facility services”); see also Alabama Medicaid Covered Services and Co-payments (attached as Exhibit D) (describing home health services offered in the State plan for recipients who have “an illness, disability or injury that keeps him or her from leaving home without special equipment or the help of another person.”). Moreover, under 42 C.F.R. § 440.70, a state’s home care program must include “medical supplies, equipment and appliances.” Townsend, 328 F.3d at 522 (citing 42 C.F.R. § 440.70). Defendant fails to explain why the
13 Defendant cites no authority that expressly precludes serving an individual in more than one waiver so long as there is no duplication of payment and the services are coordinated.
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medical supplies, equipment and appliances provided for in the State’s home care program would not be sufficient to meet Mr. Boyd’s needs.
Defendant’s argument that the requested relief is not a reasonable modification rests primarily on the fact that she cannot “unilaterally amend any Medicaid waiver program.” Def.’s Resp. at 65. But states routinely apply to CMS to amend their waiver programs in order to comply with the integration mandate. See Knowles v. Horn, 2010 WL 517591 (N.D. Tex., Feb. 10, 2010) (citing to Grooms v. Maram, 563 F. Supp. 2d 840, 857 (N.D. Ill., 2008) (“[T]he federal government has not denied a single waiver application in the last ten years. Defendant here presents no basis to believe the federal government would deny the State’s application for an amendment in this case and the court will not concoct one.”).14 Several courts have recognized that modifying a Medicaid waiver program to comply with the integration mandate is reasonable. In a similar case challenging the State of Illinois’ limits on the amount of services under a waiver program, the Seventh Circuit determined that requiring the state to modify the services provided via its waiver program would not by itself be a fundamental alteration. See Radaszewski ex rel. Radazewski v. Maram, 383 F.3d 599, 611 (7th Cir. 2004). In another similar case, a district court held that requiring the state to amend its waiver application in order to continue to provide the level of services plaintiff required to remain living in the community would not be a fundamental alteration. Grooms v. Maram, 563 F. Supp. 2d 840, 857 (N.D. Ill. 2008). Moreover, as
14 The only recent exception to this trend was a rejection by CMS of a request by the State of Missouri that would have resulted in the state serving more people in segregated settings. Missouri had submitted a request to increase the population served in its mental retardation/developmental disabilities waiver program by funding placements into residential units clustered on the grounds of a large State-operated institution. See Ohio Legal Rights Service, CMS Rejects Application to Use Waiver to Fund Group Homes In Missouri, Aug. 11, 2010, available: http://www.olrs.ohio.gov/news/missouri-cms-waiver-denial. CMS rejected the request because “[u]nder the proposed amendment, Missouri would not provide services that permit individuals to avoid institutionalization, but would [instead] serve individuals in an institutional setting.” Id.
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discussed, supra pp. 8-9, CMS itself has recognized that a state may need to amend its waiver programs to comply with the ADA.
It is the defendant’s burden to establish that the requested relief would fundamentally alter its service program. See Olmstead, 527 U.S. at 604; Frederick L. v. Dept. of Public Welfare, 364 F.3d 487, 492 n. 4 (3d Cir. 2004) (“Frederick L. II”); Disability Advocates, Inc., 653 F. Supp. 2d at 267; Haddad Op. at 33-36. Defendant fails to meet this burden. The defendant has put forward no evidence that providing services to Mr. Boyd in the community would compel cutbacks in services to others with disabilities or otherwise alter the nature of the State’s program. In fact, the only evidence of estimated costs in the record – defendant’s application to the federal Centers for Medicare and Medicaid Services for approval of its Elderly and Disabled Waiver Program – indicates that the cost of care in the community is much less than the cost of care in a nursing facility. In that application, the State represented that the average yearly cost of care for a Medicaid recipient in a nursing facility over a five-year period is approximately $36,455.00, whereas the average yearly cost of care in the community for that same time period amounted to approximately $22,876.00. See E/D Waiver Application, referenced supra p.5., Appendix J-1:1
Even if, assuming arguendo, providing services to Mr. Boyd in the community increases the state’s administrative burden or cost, that alone does not constitute a fundamental alteration of the State’s Medicaid program. See Pa. Prot. & Advocacy, Inc. v. Dep’t of Pub. Welfare, 402 F.3d 374, 380-81 (3d Cir. 2005) (explaining that “it would have been legal error for the District Court to find a fundamental alteration solely on the basis of budgetary constraints”); Frederick L. II, 364 F.3d at 501 (vacating district court ruling in favor of state defendants where fundamental alteration defense was premised on the state’s limited economic resources and did not
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demonstrate a commitment to action with regard to community placement in a manner for which the state can be held accountable by the courts). Townsend 328 F.3d at 520 (Remanding for further factual development but explaining that budgetary considerations are insufficient to establish a fundamental alteration defense and focusing instead on “whether [the asserted] extra costs would, in fact, compel cutbacks in services to other Medicaid recipients”); Fisher , 335 F.3d at 1182-83 (“the fact that [a state] has a fiscal problem, by itself, does not lead to an automatic conclusion that [the provision of community-based services] will result in a fundamental alteration …. If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.”)
Moreover, to invoke the fundamental alteration defense, a public entity must demonstrate that it has a “comprehensive, effectively working plan to address unnecessary institutionalization.” Olmstead, 527 U.S. at 605-06; Pa. Prot. & Advocacy, Inc., 402 F.3d at 38182 (the Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA and [the Rehabilitation Act]”); Disability Advocates, Inc., 598 F. Supp. 2d at 339 (“If a state does not make a genuine attempt to comply with the integration mandate in the first instance, it cannot establish that compliance would be a fundamental alteration of its programs and services….”); see also Haddad Op. at 35-36 (granting preliminary injunction to plaintiff seeking waiver services and finding that defendants’ fundamental alteration defense was not sufficiently supported where they failed to show they have a comprehensive, effectively working plan in place to address unnecessary institutionalization).
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Here, defendant has provided no facts suggesting there is an effective plan in place to address unnecessary institutionalization. To the contrary, she references the existence of many other people who, like Mr. Boyd, desire to move out of the nursing home and receive services in the community. See Def.’s Resp. at 4 (“[I]t may be assumed that Mr. Boyd’s desire to move out of the nursing home is shared by almost everyone else who lives there.”). Defendant asserts, without any support, that Mr. Boyd would be “jumping line” if he were to gain entry to the Elderly and Disabled Waiver, but she provides no facts concerning the length of any waiting list, the rate that individuals on the list are placed in community-based programs, or Mr. Boyd’s placement on any wait list. Nor does the defendant provide any information with respect to the decline in the number of persons, like Mr. Boyd, who are unnecessarily confined in nursing homes. Courts have found such factors necessary to establish a finding that a defendant has an effectively working plan in place. See Arc of Washington v. Braddock, 427 F.3d 615, 621 (9th Cir. 2005) (citing waiting list with turnover, increased slots, increases in community-based services expenditures and declining institutionalized populations); Frederick L. v. Dept. of Pub. Welfare of Pa., 422 F.3d 151, 157-160 (3d Cir. 2005) (deinstitutionalization plan must be specific and measurable and include time-frames and rates of community transition); Haddad Op. at 34 (granting preliminary injunction where defendants failed to provide “the most basic factual information in regard to the waiver program and its waiting list.”). Given the lack of any facts suggesting that defendant has any plan in place to address unnecessary institutionalization, she cannot establish that granting preliminary injunctive relief to Mr. Boyd would be a fundamental alteration. Accordingly, Mr. Boyd is likely to prevail on the merits of his claims.
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II. Plaintiff Will Suffer Irreparable Harm Without A Preliminary Injunction Defendant discounts the harm that Mr. Boyd’s institutionalization has caused and will
continue to cause him. Def.’s Resp. at 11, 65-67. As a 34-year-old man confined indefinitely to a nursing home, Mr. Boyd is isolated from his peers and cut off from his community. All of the activities of the nursing home are targeted to people much older than him, and he is “deprived of the simple pleasure of being around people [his] own age with similar interests and activities.” (Boyd Am. Decl. ¶ 21.) Given the regimented nature of the nursing home, Mr. Boyd’s opportunities for social contact are extremely limited. He must be present at the institution at specific hours, and he is limited by the schedule of activities in the home. (Id. ¶ 20.) Furthermore, he has virtually no privacy, and he is surrounded by constant noise and commotion. (Id. ¶ 22.) As a result of these and other institutional characteristics of the nursing home, Mr. Boyd has suffered and continues to suffer irreparable harm.
Many courts have recognized that the harms associated with institutionalization are irreparable. For instance, in Haddad, the court granted the plaintiffs’s motion for preliminary injunction, finding that she had “clearly established that she is at risk of irreparable injury if required to enter a nursing home.” Haddad Op. at 37. See also Washington v. DeBeaugrine, 658 F. Supp. 2d 1332, 1339 (N.D. Fla. 2009) (“Withholding benefits essential to a disabled person's ability to remain in the community rather than in an institution rather obviously would constitute irreparable harm.”); Long, 2008 WL 4571903, at *2 (forcing individual to leave his community placement and enter a nursing home “will inflict an enormous psychological blow”); Marlo M. v. Cansler, 679 F. Supp. 2d 635, 638 (E.D.N.C. 2010) (if plaintiffs lost community services they would “suffer regressive consequences if moved [to a nursing home], even temporarily”); Crabtree v. Goetz, No. 08-0939, 2008 WL 5330506, at *25 (M.D. Tenn. Dec. 19, 2008)
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(institutionalization would be detrimental to [plaintiffs’] care, causing, inter alia, mental depression, and for some plaintiffs, a shorter life expectancy or death”).
Furthermore, Mr. Boyd’s unnecessary institutionalization has caused him to suffer the very harms recognized by the Supreme Court in Olmstead. As a result of his confinement in a nursing home, Mr. Boyd’s opportunities for “social contact, work options, economic independence, educational advancement, and cultural enrichment” are severely limited. See Olmstead, 527 U.S. at 600-01. Mr. Boyd’s progress in his graduate degree program has been and will be inordinately delayed because his current placement in a nursing facility requires him to limit enrollment to two classes per semester. (Id. ¶¶ 13-16.) Further, he is unable to enjoy University activities that are the bedrock of participation in an enriching academic environment – athletic events, author readings, or theatrical and musical performance. (Id. ¶ 15).
The harms that Mr. Boyd has suffered and will continue to suffer cannot be adequately remedied by a future order of this Court.
III. The Balance of Hardships Weighs in Plaintiff’s Favor The balance of harms clearly lies in plaintiff’s favor. The hardships that plaintiff
currently endures as a result of his institutionalization far outweigh any potential hardship to the State. The defendant has not identified any in costs that would be incurred by serving Mr. Boyd in a community-based setting rather than a nursing home. In fact, the evidence in the record demonstrates that the State would experience cost savings. Even if there were some costs associated with the relief, any financial burden that defendant might incur will likely be offset by the cost savings that accrue from avoiding long-term institutional care and enabling Mr. Boyd to pursue his career and gain economic independence. See V.L. v. Wagner, 669 F. Supp. 2d 1106, 1122 (N.D. Cal. 2009) (granting preliminary injunction where the risk of unnecessary
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institutionalization outweighed the financial burden of the state during a fiscal crisis); Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1177 (N.D. Cal. 2010) (state’s fiscal crisis did not outweigh harm to persons with disabilities facing a reduction in services); Haddad Op. at 37 (granting mandatory, preliminary injunction and finding that balance of harms weighed in favor of plaintiff). Thus, the balance of hardships clearly tips in plaintiff’s favor.
IV. Granting This Preliminary Injunction is in The Public Interest The public interest in community integration weighs heavily in favor of granting a
preliminary injunction. Haddad Op. at 38 (“[T]he public interest favors preventing the discrimination that faces Plaintiff so that she may avoid unnecessary institutionalization … [and] upholding the law and having the mandates of the ADA and Rehabilitation Act enforced ….”). There is a strong public interest in eliminating the discriminatory effects that arise from segregating persons with disabilities into institutions when they can be appropriately placed in community settings. As Olmstead explained, the unjustified segregation of persons with disabilities can stigmatize them as “incapable or unworthy of participating in community life.”15 527 U.S. at 600. In Long, the court relied on this reasoning to hold that the public interest favored allowing the plaintiff to “remain in the community rather than be isolated in the nursing home”:
If, as it ultimately turns out, treating individuals like [plaintiff] in the community would require a fundamental alteration of the Medicaid program, so that the Secretary prevails in this litigation, little harm will have been done. To the contrary, [plaintiff’s] life will have been better, at least for a time… Long, 2008 WL 4571903, at *3.
15 See also U.S. Amicus Brief in Olmstead at 16-17, citing to 136 Cong. Rec. H2603 (daily ed. May 22, 1990) (statement of Rep. Collins) (“To be segregated is to be misunderstood, even feared,” and “only by breaking down barriers between people can we dispel the negative attitudes and myths that are the main currency of oppression.”).
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CONCLUSION For the reasons stated above, the C ourt should grant P laintiff’s Motion for Prelim inary Injunction. W ith the C ourt’s permission, counsel for the U nited States will be present at the preliminary injunction hearing on October 13, 2010. DATED: October 12, 2010
Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief ALISON N. BARKOFF, Special Trial Counsel /s/ Anne S. Raish ANNE S. RAISH New York Bar Reg. No. 4070975 Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. – NYA Washington, DC 20530 Tel: (202) 305-1321 Fax: (202) 307-1197 Anne.Raish@usdoj.gov
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CERTIFICATE OF SERVICE This is to certify that on October 12, 2010, a copy of foregoing was filed electronically with the Clerk of the Court using the CM/ECF system, which will electronically send a copy of the same to the following: James Tucker (jtucker@adap.us.edu), Lonnie J. Williams (lwilliams@adap.us.edu), Steve Gold (stevegoldada@cs.com), Margaret L. Fleming (mfleming@ago.state.al.us), James W. Davis (jimdavis@ago.state.al.us) and Misty S. Fairbanks (mfairbanks@ago.state.al.us).
/s/ Anne S. Raish ANNE S. RAISH New York Bar Reg. No. 4070975 Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. – NYA Washington, DC 20530 Tel: (202) 305-1321 Fax: (202) 307-1197 Anne.Raish@usdoj.gov
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Boyd v. Mullins, Docket No. 2:10-cv-00688 (M.D. Ala. Aug 12, 2010), Court Docket
General Information

Case Name Docket Number Status Court Nature of Suit Related Opinion(s)

Boyd v. Mullins 2:10-cv-00688 Closed United States District Court for the Middle District of Alabama Civil Rights: Americans with Disabilities - Other 753 F. Supp. 2d 1163

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LCTR9882?documentName=32.xml

 
 Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 1 of 10

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

JONATHAN PAUL BOYD,

)

)

Plaintiff,

)

)

v.

)

)

CAROL H. STECKEL,

)

in her official capacity as Commissioner

)

of the Alabama Medicaid Agency,

)

)

Defendant.

)

Civil Action Number: 2:10-cv-00688-MEF-TFM

ANSWER TO PLAINTIFF’S AMENDED COMPLAINT (DOC. 14)

The Honorable Carol H. Steckel, in her official capacity as Commissioner of the Alabama Medicaid Agency, submits the following answer to the Plaintiff’s Amended Complaint (doc. 14):
Response to Numbered Paragraphs 1. Admitted. 2. Admitted. 3. Defendant admits that the Plaintiff lived at home with his mother and stepfather for a time after his accident, that he received certain waiver services at some point when he lived at home, and that he is now in a nursing home facility. Defendant does not have sufficient information to admit or deny any allegation concerning the reasons for which Plaintiff and/or his family chose that he would be admitted to the nursing home, and Defendant therefore denies the remaining allegations in paragraph 3. 4. Defendant admits that the Plaintiff wishes to receive services that would permit him to live outside the nursing home. Defendant denies that he is entitled to relief.

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Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 2 of 10
Defendant lacks sufficient information to admit or deny the remaining allegations in paragraph 4, and therefore denies those allegations.
5. Admitted. 6. Defendant admits that Medicaid pays for Plaintiff’s care in a nursing home, that Plaintiff has requested waiver services, and that he is on the referral list for a specific waiver program (the “SAIL Waiver”). Defendant denies that there is a single “waiting list” for all the separate waiver programs operated in Alabama, denies that he is on the referral list for other waiver programs, and denies the remaining allegations in paragraph 6. 7. Denied. 8. Defendant admits that Plaintiff accurately quotes selected sections of the ADA. Defendant denies the remaining allegations in paragraph 8. 9. Defendant admits that Plaintiff seeks declaratory and injunctive relief. Defendant denies that Plaintiff is entitled to any relief and denies the balance of the allegations of paragraph 9. 10. Defendant contests subject-matter jurisdiction to the extent that Plaintiff lacks standing, his claims are moot, his claims are not yet ripe, or that he makes a claim pursuant to State law. 11. Admitted. 12. Defendant admits that she is the Commissioner of the Alabama Medicaid Agency; that she is sued in her official capacity; that the Alabama Medicaid Agency is responsible for administering Alabama’s Medicaid program; that she is responsible for the oversight, supervision, and control of the Alabama Medicaid Agency and its
2

Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 3 of 10
divisions; and, that she is ultimately responsible for ensuring that Alabama’s Medicaid services are provided in conformity with federal law. Defendant denies the balance of the allegations of paragraph 12.
13. Admitted. 14. Admitted. 15. Admitted. 16. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 16; therefore, Defendant denies those allegations. 17. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 17; therefore, Defendant denies those allegations. 18. Admitted. 19. Defendant admits that waiver services and nursing home services are mutually exclusive, and so Plaintiff could not receive home-and-community based waiver services once he entered the nursing home. Defendant is without sufficient information to admit or deny the truth of the remaining allegations of paragraph 19; therefore, Defendant denies those allegations. 20. Admitted. 21. Admitted. 22. Defendant admits that Plaintiff receives the enumerated services in the nursing home but denies any suggestion that these are the only services he receives. 23. Defendant does not have sufficient information to admit or deny that the requested services are sufficient to meet all of Plaintiff’s medical needs, and therefore denies the allegations in paragraph 23.
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Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 4 of 10
24. Denied. 25. Defendant admits that Plaintiff graduated from college in or around 2007 with a Bachelor’s degree, but is without sufficient information to admit or deny the truth of the remaining allegations of paragraph 25; therefore, Defendant denies those allegations. 26. Admitted. 27. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 27; therefore, Defendant denies those allegations. 28. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 28; therefore, Defendant denies those allegations. 29. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 29; therefore, Defendant denies those allegations. 30. Defendant denies that a lack of transportation and Plaintiff’s residence in a nursing home are barriers to Plaintiff’s education goals. Defendant is without sufficient information to admit or deny the truth of the remaining allegations of paragraph 30; therefore, Defendant denies those allegations. 31. Denied. 32. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 32; therefore, Defendant denies those allegations. 33. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 33; therefore, Defendant denies those allegations. 34. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 34; therefore, Defendant denies those allegations.
4

Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 5 of 10
35. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 35; therefore, Defendant denies those allegations.
36. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 36; therefore, Defendant denies those allegations.
37. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 37; therefore, Defendant denies those allegations.
38. Defendant is without sufficient information to admit or deny the truth of the allegations of paragraph 38; therefore, Defendant denies those allegations.
39. Defendant admits that Plaintiff has stated a desire to live in the community. Defendant denies the remaining allegations of paragraph 39.
40. Defendant admits that Plaintiff does not wish to live in a nursing home, and denies the remaining allegations in paragraph 40.
41. Defendant admits that Plaintiff applied for the SAIL Waiver in December, 2008, but denies that he applied for any other waiver program. Defendant denies the remaining allegations in paragraph 41.
42. Defendant admits that capacity is limited in the waiver programs. Defendant further admits that the Elderly & Disabled Waiver, one of Alabama’s six waiver programs, has 9,205 slots, and that the number of slots has not been adjusted since Alabama last sought a renewal of this waiver in 2008. Defendant denies that Plaintiff has applied for the E&D Waiver, denies that he is on the referral list for the E&D Waiver, and denies the remaining allegations of paragraph 42.
43. Denied.
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Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 6 of 10
44. Defendant admits that Plaintiff is not receiving waiver services. Defendant denies the remaining allegations of paragraph 44.
45. Defendant admits that Plaintiff is not receiving waiver services. Defendant denies the remaining allegations of paragraph 45.
46. The laws and regulations cited in the Amended Complaint speak for themselves.
47. The laws and regulations cited in the Amended Complaint speak for themselves.
48. The laws and regulations cited in the Amended Complaint speak for themselves.
49. Defendant admits that the Alabama Medicaid Agency is a public entity as defined by Title II of the ADA. Defendant denies that the Alabama Medicaid Agency is a defendant in this litigation. Defendant denies any remaining allegations in paragraph 49.
50. The laws and regulations cited in the Amended Complaint speak for themselves.
51. The laws and regulations cited in the Amended Complaint speak for themselves.
52. The laws and regulations cited in the Amended Complaint speak for themselves.
53. Defendant admits that the federal government pays a portion of the costs of Alabama’s Medicaid program.
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Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 7 of 10
54. Defendant admits that Plaintiff has physical disabilities. Defendant is without sufficient information to admit or deny the truth of the remaining allegations of paragraph 54; therefore, Defendant denies those allegations.
55. Denied. 56. Denied. 57. Denied. 58. Denied. 59. Defendant admits that Plaintiff is disabled and that he is eligible for Medicaid. Defendant denies the remaining allegations of paragraph 59. 60. Denied. 61. Denied. Relief Requested
Defendant denies that Plaintiff is entitled to the relief he seeks. ADDITIONAL DEFENSES
1. Defendant denies any allegation in Plaintiff’s Amended Complaint that is not expressly admitted above.
2. Plaintiff lacks standing. 3. Defendant has not violated the private rights of the Plaintiff. 4. There is no justiciable controversy between the Plaintiff and the Defendant. 5. Plaintiff has failed to join one or more indispensable parties under Federal Rule of Civil Procedure 19. 6. Plaintiff’s claims are not ripe.
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Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 8 of 10
7. Plaintiff’s claims are moot. 8. Plaintiff has no private right of action to enforce federal regulations. 9. Plaintiff has no private right of action to enforce the State Medicaid Plan. 10. Defendant denies that Plaintiff is entitled to the relief requested in the Complaint. 11. Defendant reserves the right to contest the amount of any award of costs, expenses and/or attorney’s fees. 12. The relief sought by the Plaintiff is barred by the Tenth Amendment to the United States Constitution. 13. Plaintiff’s claims and/or the relief he seeks are barred by the Eleventh Amendment to the Constitution of the United States and the constitutional principles of federalism it embodies. 14. The Court lacks jurisdiction over the subject matter of the Plaintiff’s complaint. 15. The Plaintiff’s injuries are not fairly-traceable to the Defendant. 16. The Plaintiff’s claims are barred by estoppel. 17. Plaintiff is not segregated. 18. Plaintiff is not unduly institutionalized. 19. This Court lacks jurisdiction to order the Defendant to comply with State law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117 (1984). 20. Plaintiff seeks a fundamental alteration of the Alabama Medicaid program. 21. Plaintiff’s requested modifications are not reasonable.
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Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 9 of 10
22. To grant the relief requested by the Plaintiff would impose an undue hardship on the Defendant.
23. Plaintiff is not a qualified individual with a disability, 24. Federal Medicaid law prohibits the relief Plaintiff seeks. 25. The balance of the equities does not favor the grant of injunctive relief. 26. The injunctive relief requested by the Plaintiff is not in the public interest. 27. Defendant did not violate the terms of any clearly-established statutory or constitutional right of the Plaintiff. 28. Deference must be given to the views of State treatment professionals. 29. The U.S. Department of Justice’s interpretation of its regulations is not entitled to deference when that interpretation is unreasonable or when it raises constitutional concerns. 30. The ADA, the Rehab Act, and their implementing regulations should be interpreted in a constitutional manner. 31. The Complaint fails to state a claim upon which relief can be granted. 32. The harm to the Defendant of granting the injunctive relief requested by the Plaintiff outweighs the benefit to the Plaintiff of granting such relief. 33. The Court lacks jurisdiction to grant relief as to any past violations of federal law by the Defendant. 34. The ADA “does not require a public entity to provide individuals with disabilities . . . services of a personal nature including assistance in eating, toileting, or dressing.” 28 C.F.R. § 35.135.
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Case 2:10-cv-00688-MEF-TFM Document 27 Filed 10/13/10 Page 10 of 10

Stephanie McGee Azar General Counsel ALABAMA MEDICAID AGENCY 501 Dexter Avenue Post Office Box 5624 Montgomery, Alabama 36103-5624 Telephone: 334.242.5126 Facsimile: 334.353.3907 stephanie.azar@medicaid.alabama.gov

Respectfully submitted,
TROY KING ATTORNEY GENERAL BY:
s/ James W. Davis Margaret L. Fleming (FLE001) James W. Davis (DAV103) Misty S. Fairbanks (FAI005) Assistant Attorneys General OFFICE OF THE ATTORNEY GENERAL 500 Dexter Avenue Montgomery, Alabama 36130 Telephone: 334.242.7300 Facsimile: 334.353.8440 mfleming@ago.state.al.us jimdavis@ago.state.al.us mfairbanks@ago.state.al.us
Attorneys for Commissioner Steckel

CERTIFICATE OF SERVICE
This is to certify that on the 13th day of October, 2010, a copy of the foregoing has been electronically filed with the Clerk of the Court using the CM/ECF system, which will electronically send a copy of the same to the following: James A. Tucker (jtucker@adap.ua.edu), Lonnie J. Williams (lwilliams@adap.ua.edu), Steve Gold (stevegoldada@cs.com), and Anne S. Raish (Anne.Raish@usdoj.gov).

s/ James W. Davis Assistant Attorney General

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JONATHAN PAUL BOYD

)

)

Plaintiff,

)

)

v.

)

)

CAROL H. STECKEL, in her official

)

capacity as Commissioner of the Alabama )

Medicaid Agency,

)

)

Defendant.

)

Case No.: 2:10-cv-688-MEF (WO – PUBLISH)

MEMORANDUM OPINION AND ORDER

This cause is before the Court on the Amended Motion for Preliminary Injunction

and Expedited Hearing, (Doc. # 15), filed on September 29, 2010 by Plaintiff Jonathan

Paul Boyd (“Boyd”). The Court has carefully considered all submissions and argument in

support of and in opposition to the motion and has convened a hearing on the matter. For

the reasons set forth below, the motion for a preliminary injunction is due to be DENIED.

JURISDICTION AND VENUE

This Court has jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and

1334(a). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202

as well as Federal Rule of Civil Procedure 65. Venue is proper in this district pursuant to

28 U.S.C. § 1391(b) because Defendant Carol H. Steckler, in her official capacity as

Commissioner of the Alabama Medicaid Agency (“Commissioner Steckel”), resides in

this district.

FACTS1 AND PROCEDURAL HISTORY On September 29, 2010, Boyd sued Commissioner Steckel for alleged violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, as well as its implementing regulations, and violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and its implementing regulations. (Doc. # 14, at 11–12, ¶¶ 57, 60). Specifically, Boyd alleges that Commissioner Steckel has failed to properly assess and provide the Medicaid services needed to permit Boyd to live in the community, as opposed to the nursing home in which he resides. Id. at 12–13, ¶¶ 58, 61. On September 29, 2010, Boyd also filed an Amended Motion for Preliminary Injunction and Expedited Hearing. (Doc. # 15). This motion was granted to the extent that it sought an expedited hearing. (Doc. # 17). On October 12, 2010, the United State of America filed a statement of interest and brief in support of Boyd’s motion for a preliminary injunction. (Doc. # 25). The hearing for the preliminary injunction motion was held on October 13, 2010. A. Medicaid Title XIX of the Social Security Act of 1965 established Medicaid. 79 Stat. 343, as amended, 42 U.S.C. §§ 1396 et seq. “Medicaid is a joint [S]tate-[F]ederal funding program for medical assistance in which the Federal Government approves a [S]tate plan for the funding of medical services for the needy and then subsidizes a significant portion
1 This recitation of facts is based on the allegations in the Amended Complaint, (Doc. # 14), and the evidence and testimony submitted by the parties in support of and in opposition to the motion for a preliminary injunction.
2

of the financial obligations the State has agreed to assume.” Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985). Medicaid is a voluntary program whereby the States need not participate. Id. However, should a State choose to participate, then it “must comply with the requirements of Title XIX and applicable regulations.” Id.
Under the Medicaid Act, states may choose to operate home and community-based waiver programs for individuals to avoid institutionalization. 42 U.S.C. § 1396n(c). Pursuant to this section:
The Secretary may by waiver provide that a State plan approved under this title may include as ‘medical assistance’ under such a plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility . . . the cost of which could be reimbursed under the State plan. Id. § 1396n(c)(1). Such waiver programs “are intended to provide the flexibility needed to enable States to try new or different approaches to the efficient and cost-effective delivery of health care services, or to adapt their programs to the special needs of
particular areas or groups of recipients.” 42 C.F.R. § 430.25(b). However, these waiver
programs must be cost-neutral in the aggregate—i.e. the cost of operating the waiver system must not exceed what the cost would be to provide Medicaid services without the waiver program. 42 U.S.C. § 1396n(c)(2)(D) (“[U]nder such [a] waiver the average per capita expenditure estimated by the State in any fiscal year for medical assistance provided with respect to such individuals does not exceed 100 percent of the average per
3

capita expenditure that the State reasonably estimates would have been made in that fiscal year for expenditures under the State plan for such individuals if the waiver had not been granted . . . .”); see also 42 C.F.R. § 441.302(e)–(f).
The Medicaid Act also provides that States may deviate from certain other Medicaid requirements. 42 U.S.C. § 1396n(c)(3). For example, an approved waiver program may also include a waiver of the Medicaid requirements of “statewideness,” “comparability,” and “income and resource rules applicable in the community.” Id. More specifically, under the applicable federal regulations, “the State may exclude those individuals [from waiver programs] for whom there is a reasonable expectation that home and community-based services would be more expensive than the Medicaid services the individual would otherwise receive.” 50 Fed. Reg. 10,013 (Mar. 13, 1985). Similarly, the State “can choose to provide home and community-based services to a limited group of eligibles, such as the developmentally disabled” and need not “provide the services to all eligible individuals who require an ICF [intermediate care facility] or SNF [skilled nursing facility] level of care.” Id.
The Medicaid statutes and regulations also provide for caps on the number of persons served under a waiver program for a given year—that is, they “contemplate that State waiver plans will limit the number of eligible participants in any year.” (Doc. # 20, at 23) (citing 42 U.S.C. § 1396n(c)(9) (“In the case of any waiver under this subsection which contains a limit on the number of individuals who shall receive home or
4

community-based services, the State may substitute additional individuals to receive such services to replace any individuals who die or become ineligible for services under the State plan.”); 42 C.F.R. § 441.303(f)(6) (“The State must indicate the number of unduplicated beneficiaries which it intends to provide waiver services in each year of its program. This number will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment.”) (emphasis added)). B. Alabama’s Waiver Programs
The State of Alabama (“Alabama”) has chosen to participate in Medicaid and to provide certain waiver programs. (Doc. # 20, at 20). Currently, Alabama operates six waiver programs with varying purposes, qualifying criteria, services provided, and enrollment limits: (1) the Elderly & Disabled (“E&D”) Waiver; (2) the Intellectual Disabilities (“ID”) Waiver;2 (3) the Living at Home (“LAH”) Waiver;3 (4) the State of Alabama Independent Living (“SAIL”) Waiver; (5) the HIV/AIDs Waiver;4 and (6) the
2 The ID Waiver (formerly known as the Mental Retardation (“MR”) Waiver) is available only for persons with intellectual disabilities. (Doc. # 19 Ex. C, Chappelle Aff. ¶ 9). As such, it is inapplicable in the instant case.
3 The LAH Waiver is available only for persons with intellectual disabilities. (Doc. # 19 Ex. C, Chappelle Aff. ¶ 9). As such, it is inapplicable in the instant case.
4 The HIV/AIDS Waiver is available only for persons diagnosed with HIV, AIDS, and related illnesses. (Doc. # 19 Ex. C, Chappelle Aff. ¶ 10). As such, it is inapplicable in the instant case.
5

Technology Assisted (“TA”) Waiver for Adults.5 Doc. # 20, at 24–25; see also Doc. # 16 Ex. D.
The SAIL Waiver program provides numerous services for persons with specific medical diagnoses, which includes quadriplegia. Doc. # 16 Ex. D. Such services include personal care, personal assistance service, environmental accessibility adaptations, medical supplies, and assistive technology. Id. However, there are limitations on the extent of such services. For example, “reimbursement for in-home personal care and assistance is limited to 25 hours per week.” (Doc. # 19 Ex. C, Chappelle Aff. ¶ 13). Moreover, while personal care is covered to some extent under the SAIL waiver, “skilled nursing care is not available at all under the SAIL Waiver . . . .” Id. The SAIL Waiver program is capped at 660 persons, although the record is unclear as to whether the program is full.
The E&D Waiver program also provides numerous services “to individuals that would otherwise require the level of care available in an intermediate care facility.” (Doc. # 16 Ex. D). Such services include case management, homemaker services, personal care, adult day health, and respite care (skilled and unskilled). Id. As with the SAIL waiver, there are limitations on the extent of these services. For example, “‘skilled’
5 The TA Waiver for Adults is “available only for persons who received private duty nursing services through the EPSDT Program under the Medicaid State Plan prior to turning 21 years of age.” Doc. # 19 Ex. C, Chappelle Aff. ¶ 11. Because there is no evidence on the record establishing whether Boyd received such services, the TA Waiver for Adults is inapplicable at this juncture. Id.
6

care (provided by a nurse or other health-care professional), is not available on a regular basis under the E&D Waiver, but may only be provided as respite care (relief for a regular caregiver).” (Doc. # 19 Ex. C, Chappelle Aff. ¶ 14). Additionally, this respite care is limited to 720 hours per year. Although there is no hourly limit on homemaker services, personal care and adult companion services, these “would not include administration of medicine . . . .” Id. The E&D Waiver is capped at 9,205 people and has remained at the cap since 2008. (Doc. # 16, at 5). Additionally, according to the Kaiser Commission, there are over 7,000 persons on the E&D Waiver waiting list. Id. C. Boyd’s Facts
According to the Amended Complaint, Boyd is a 34 year-old man who became paralyzed after an accident in October of 1995, which broke his spine and rendered him tetraplegic—i.e. leaving him without the use of his arms and legs. (Doc. # 14, at 1, ¶ 1–2; Doc. # 20, at 8). Following his accident, Boyd lived with his mother and stepfather for eleven years, with his mother acting as his primary care giver. (Doc. # 14, at 1, ¶ 3; Doc. # 20, at 8). During this time, Boyd “was eligible for and received community-based Medicaid waiver services to complement the care being provided by his mother.” (Doc. # 14, at 1, ¶ 3; Doc. # 20, at 8). However, after his mother was no longer able to provide the required care, Boyd entered the nursing facility—Chandler Health and Rehab Center in Alabaster, Alabama—where he has lived since December of 2006. (Doc. # 14, at 1, ¶ 3; Doc. # 20, at 8). Because community-based services and reimbursement for nursing
7

home care are mutually exclusive alternatives, the community-based Medicaid waiver services were discontinued when Boyd entered the nursing facility. (Doc. # 14, at 4, ¶ 19; Doc. # 20, at 8–9).
Currently, Boyd is eligible for and receives Medicaid, which pays for his nursing home services. (Doc. # 14, at 4, ¶ 20; Doc. # 20, at 9). For ambulation, Boyd uses a motorized wheelchair which he controls with a “sip and puff” device. (Doc. # 14, at 4, ¶ 21). At the nursing home, Boyd “receives assistance with his activities of daily living, including assistance with taking medications, bathing, dressing, toileting, feeding, and transferring from and to his bed and into and out of his wheelchair.” Id. at 4–5, ¶ 22. He also receives assistance with basic household chores, for his bowel program (twice weekly), and for changing his catheter (twice monthly). Id.
After his accident, Boyd returned to college and graduated in 2007 with a bachelor of fine arts from the University of Montevallo. (Doc. # 14 at 5, ¶ 25; Doc. # 20, at 9). His nursing home is 13 miles from the university. (Doc. # 14, at 5, ¶ 27). While earning his bachelor’s degree, Boyd took public transportation (ClasTran) to and from classes. (Doc. # 14, at 5, ¶ 27; Doc. # 20, at 9). The Alabama Department of Rehabilitation Services (“Rehab Services”) paid for this use of ClasTran. (Doc. # 20, at 9). Boyd alleges that this public transportation was, and still is, available only until 3:30p.m. (Doc. # 14, at 5–6, ¶ 27).
In 2010, Boyd was admitted to a University of Montevallo graduate program
8

seeking a Master’s degree in community counseling. (Doc. # 14, at 5, ¶ 26; Doc. # 20, at
9). He began this program in September of 2010. (Doc. # 14, at 5 ¶ 26). Because the
graduate program offers classes only at night, Boyd alleges that he is unable to take the
ClasTran and must “rely upon and pay a nursing home maintenance worker all of his
scholarship funds ($500 for the semester) to transport him to and from campus for his
classes.” Id. at 6, ¶ 28; see also Doc. # 20, at 9.6 Additionally, Boyd claims that he
borrows money from his brother to pay others $20 per trip for six additional trips per
semester, which are needed in order to complete required assignments. (Doc. # 14, at 6, ¶
29). Essentially, Boyd wishes to receive community-based services necessary for him to
live in the community, to be able to take more than two classes per semester towards his
graduate degree, and to enjoy other University functions.7 Id. ¶¶ 30–31. He has located
rental housing near campus which meets his accessibility needs but is unable to secure the
rental unless he knows that the necessary community-based services will be provided. Id.
6 Commissioner Steckel argues that Boyd’s “assertion that he has been ‘forced’ into this position is disingenuous, however, as he failed to request assistance from Rehab Services—which has a history and current practice of assisting him with transportation.” (Doc. # 20, at 10). At the October 13, 2010 hearing, Boyd admitted that he was satisfied with his current transportation arrangements. However, he also claimed that these arrangements could not continue past the spring semester, after which he alleges that he will lose the $500 per semester scholarship he currently uses to pay the nursing home employee.
7 Specifically, Boyd contends that he “is experiencing an increase in time, effort and expense for him to complete his graduate degree and is being prevented from participating in aspects of college life enjoyed by other graduate students.” Id. at 6, ¶ 31. He is currently taking two nighttime classes for his graduate program, but he would like to take four. Id. ¶ 30. Boyd also points out that he is unable to attend other University functions such as athletic events, author readings, theatrical performances, and musical performances. Id.
9

at 6–7, ¶ 32.8 Boyd also complains of the conditions and atmosphere of the nursing
home. Id. at 7–8, ¶¶ 34–38.9
Boyd applied for a Medicaid waiver program in October of 2008 and has been on a
waiting list for services since that time. Id. at 8, ¶ 41. He also “recently renewed his
request for services by asking [Commissioner Steckel] to make reasonable modifications
to her waiver programs and provide him with waiver services including 10 hours per day
of assistance with activities of daily living, assistance with his bowel program twice per
week, assistance with changing his catheter twice per month and necessary equipment and
8 Because “accessible rental housing is difficult to locate and secure,” Boyd alleges that he “needs to act as soon as possible in order to secure rental housing.” Id. at 7–8, ¶ 32.
9 Specifically, Boyd alleges that, since he moved into the nursing home in December of 2006, he has had five decubitus ulcers (“pressure sore[s]”). Id. at 7, ¶ 34. In the eleven years when his mother was his primary care giver, he only had one. Id. Furthermore, Boyd contends that he “must return to the facility by a specific time in the evening, which limits his socializing with friends and having overnight stays with friends.” Id. ¶ 35. Because he is a Medicaid resident in a nursing home, only $30 of his $897 monthly Social Security Disability check is available for his personal expenses, again limiting his ability to socialize or have snacks. Id.
He claims that “virtually all of the [other] residents are disabled and most are much older than [him]” taking away the “simple pleasure of being around people his own age who have similar interests and activities.” Id. at 8, ¶ 37. As such, he does not take part in many of the nursing home’s activities because they are “geared toward octogenarians.” Id.
He also points out that he “must eat when and what the facility provides and must transfer to and from his bed, shower, toilet, and dress on the staff’s schedule.” Id. at 7, ¶ 36. To accommodate others with their morning routines, the nursing home staff often pushes Boyd’s back until 11a.m. or later. Id. Thus, he contends that he “is unable to get out of bed until 11a.m. unless he schedules his activities a few days in advance.” Id. at 7–8, ¶ 36. This also applies to his evening routine. Id. at 8, ¶ 36.
Finally, Boyd complains that “[t]here is little or no privacy” in the nursing home, where “[t]here is constant noise, screaming and crying.” Id. ¶ 38. He claims that the nursing home residents “are often not dressed and are exposed” and “[t]here is a pervasive unpleasant disinfectant odor.”
10

care supplies.” Id. at 8–9, ¶ 41. Because Commissioner Steckel has failed to provide such community-based services, Boyd alleges that he is forced to “continue to reside in a Medicaid-funded nursing facility instead of the community.”10
DISCUSSION A. Preliminary Injunction Standard
The purpose of a typical preliminary injunction is prohibitive in nature in that it is “‘merely to preserve the relative positions of the parties until a trial on the merits can be held.’” United States v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983) (quoting Univ. of. Tex. v. Camenisch, 451 U.S. 390, 395 (1981)); see also Mercedes-Benz U.S. Int’l, Inc. V. Cobasys, LLC, 605 F. Supp. 2d 1189, 1196 (N.D. Ala. 2009) (“Typically, a preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits.”) (citations omitted). The burden on the party seeking a typical, prohibitive preliminary injunction is particularly high. All Care Nursing Serv., Inc. v. Bethesda Mem. Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989) (“Preliminary injunctions are issued when drastic relief is necessary to preserve the status quo.”) (citing Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983); Bannum, Inc. v. City of Fort Lauderdale, Fla., 657 F. Supp. 735 (S.D. Fla. 1986)), cert. denied, Quality Prof’l Nursing, Inc. v. Bethesda Mem’l Hosp., Inc., 526 U.S. 1016 (1999); see also Lambert, 695 F.2d at 539 (“[A preliminary injunction’s] grant is the exception rather than the rule,
10 He describes this as being “unnecessarily institutionalized.” Id. at 8, ¶¶ 40–41. 11

and plaintiff must clearly carry the burden of persuasion.”) (emphasis added). However, where, as here, “a preliminary injunction goes beyond the status quo and seeks to force one party to act, it becomes a mandatory or affirmative injunction and the burden placed on the moving party is increased.” Mercedes-Benz, 605 F. Supp. 2d at 1196 (citing Exhibitors Poster Exchange, Inc. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir. 1971), reh’g denied, 520 F.2d 943 (5th Cir. 1975), cert. denied, 423 U.S. 1054 (1976)).11 For such mandatory injunctions, relief should be granted “[o]nly in rare instances.” Harris v. Wilters, 596 F.2d 678, 680 (5th Cir. 1979) (emphasis added); see also Mercedes-Benz, 605 F. Supp. 2d at 1196.
A preliminary injunction is “an extraordinary and drastic remedy” that cannot be granted unless the moving party clearly establishes the following four prerequisites:
(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc), reh’g denied, 234 F.3d 1218 (11th Cir. 2000) . If the moving party cannot clearly establish any one of the four required elements, then a preliminary injunction should not be granted. Bethel v. City of Montgomery, No. 2:04cv743-MEF, 2010 U.S. Dist. LEXIS 24949 at *11–12 (M.D. Ala.
11 Unless subsequently overruled, decisions of the old Fifth Circuit before October 1, 1981 are binding on the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
12

Mar. 2, 2010) (“A preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion as to all prerequisites.”) (emphasis in original) (Coody, J.) (citations omitted); see also Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994) (holding that the moving party’s failure to demonstrate a substantial likelihood of success on the merits defeated the party’s motion for a preliminary injunction, regardless of the party’s ability to establish any of the other elements). Because this Court finds that Boyd has failed to establish a substantial likelihood of success on the merits sufficient justify the use of such an extraordinary remedy as a mandatory preliminary injunction, this motion is due to be DENIED. B. Substantial Likelihood of Success on the Merits
i. The Statutes and Regulations Section 504 of the Rehabilitation Act and Title II of the ADA contain similar provisions and are enforced by similar implementing regulations. Section 504 provides, in part, that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, . . . be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .”12 29 U.S.C. § 794(a). Its
12 Neither party disputes “that the Federal Government funds a substantial portion of what Alabama spends on Medicaid.” (Doc. # 20, at 18); see also Alexander, 469 U.S. at 301 (“Medicaid is a joint state-federal funding program for medical assistance in which the Federal Government approves a state plan for the funding of medical services for the needy and then subsidizes a significant portion of the financial obligations the State has agreed to assume.”).
13

implementing regulation states that “[r]ecipients shall administer programs and activities
in the most integrated setting appropriate to the needs of qualified handicapped persons.”
28 C.F.R. § 41.51(d). Finally, Section 504 contains a fundamental-alteration defense for
the recipient of federal funds. Id. § 41.53 (“A recipient shall make reasonable
accommodation to the known physical or mental limitations of an otherwise qualified
handicapped applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its program.”).
Similarly, Title II of the ADA also prohibits discrimination in the provision of
public services. It provides, in part, that “no qualified individual with a disability shall,
by reason of such disability, . . . be subjected to discrimination by any [public] entity.” 42
U.S.C. § 12132. Under Title II, “Congress instructed the Attorney General to issue
regulations implementing provisions of Title II, including §12131’s discrimination
proscription.” Olmstead v. L.S. by Zimring, 527 U.S. 581, 591 (1999) (citing 42 U.S.C. §
12134(a)). The Olmstead Court further explained:
One of the §504 regulations requires recipients of federal funds to ‘administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.’ 28 CFR § 41.51(d) (1998). As Congress instructed, the Attorney General issued Title II regulations . . ., including one modeled on the § 504 regulation just quoted; called the ‘integration regulation,’ it reads:
‘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) (1998)
Id. at 591–92. Like § 504, Title II of the ADA provides for a fundamental-alteration
14

defense. 28 C.F.R. § 35.130(b)(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.”).
Indeed, Congress stated in the ADA that “[t]he remedies, procedures, and rights set forth in section 505 of the Rehabilitation Act of 1973 shall be the remedies, procedures, and rights this title provides to any person alleging discrimination on the basis of disability . . . .” 42 U.S.C. § 12133. “Because the same standards govern discrimination claims under the Rehabilitation Act and the ADA, [this Court will] discuss those claims together and rely on cases construing those statutes interchangeably.” Allmond v. Akal Sec. Inc., 558 F.3d 1312, 1316 n.3 (11th Cir. 2009), reh’g en banc denied, 347 Fed. Appx. 555 (11th Cir. 2009), cert. denied, 130 S. Ct. 1139 (2010).
ii. Analysis The Supreme Court’s fragmented decision13 in Olmstead remains the seminal case on the ADA’s—and therefore the Rehabilitation Act’s—anti-discrimination provision. In
13 The Olmstead decision consisted of a majority of five justices—Justices Ginsburg, O’Connor, Souter, and Breyer—joining in Parts I, II, and III.A. However, only a plurality of four—Justices Ginsburg, O’Connor, Souter, and Breyer—joined in part III.B, which is the main focus of the instant case. Furthermore, Justice Stevens filed an opinion concurring in part and concurring in the judgment. Justice Kennedy filed an opinion concurring only in the judgment, in which Justice Breyer joined as to Part I. Finally, Justice Thomas dissented, joined by Justices Rehnquist and Scalia.
15

Olmstead, the disabled persons were two women with mental illnesses—schizophrenia
and a personality disorder, respectively. 527 U.S. at 593. Both women were voluntarily
confined for treatment in a Georgia hospital’s psychiatric unit. Id. Eventually, their
treating psychiatrists concluded that one of the community-based programs would be
appropriate to meet their treatment needs. Id. However, after they remained
institutionalized, they sued the State under Title II of the ADA, alleging “that the State’s
failure to place [them] in a community-based program, once [their] treating professionals
determined that such placement was appropriate, violated, inter alia, Title II of the
ADA.” Id. at 593–94. The women requested, amongst other forms of relief, that “the
State place [them] in a community care residential program, and that [they] receive
treatment with the ultimate goal of integrating [them] into the mainstream of society.” Id.
at 594.14
14 Procedurally, the District Court granted partial summary judgment in favor of the women, holding that the failure to provide community-based services violated Title II of the ADA. Olmstead, 527 U.S. at 954. The District Court also rejected the State’s argument that the failure to provide community-based services was “by reason of” lack of funds, not the women’s disabilities. Id. The court concluded that “unnecessary institutional segregation of the disabled constitutes discrimination per se, which cannot be justified by lack of funding.” Id. Finally, the District Court rejected the State’s fundamental-alteration defense—namely that it was already using all of its funds to provide services to other disabled persons—noting that the State already provided services of the kind which the women sought and that the provision of such services to the women would cost considerably less than institutionalization. Id. at 595.
The Eleventh Circuit affirmed the judgment, but remanded for reconsideration of the State’s lack-of-funds defense. Id. The appeals court held that, when the treating physician finds community-based services appropriate to meet the needs of a disabled person, then the State must provide such services under the ADA. Id. Absent such a finding, the Eleventh Circuit held that the ADA does not require deinstitutionalization. Id. However, the duty to deinsitutionalize was “not absolute” because “fundamental alterations [to the State’s Medicaid program] were not demanded.” Id. As such, the Eleventh Circuit remanded so that the State could attempt to prove
16

a. Determining Qualification for Community-Based Services: the Olmstead Majority
The majority opinion in Olmstead addressed only two issues: (1) whether the women were discriminated against “by reason of” their disability and (2) whether discrimination under the ADA required a showing that the State treated similarly situated individuals outside of the protected class differently. Id. at 598. With regards to the second issue, the Court merely stated that it was “satisfied that Congress had a more comprehensive view of the concept of discrimination advanced in the ADA.” Id.
As to whether there was discrimination “by reason of” disability, the Court emphasized that the ADA specifically identifies “‘segregation’ of persons with disabilities ‘as a form of discrimination.’” Id. at 600 (citing 42 U.S.C. § 12101(a) (“[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continues to be a pervasive social problem.”); Id. § 1201(a)(5) (“[I]ndividuals with disabilities continually encounter various forms of discrimination, including . . . segregation.”)). Thus, the Court held that “unjustified institutional isolation of persons with disabilities is a form of discrimination.” Id. This holding reflected “two evident judgments:” (1) that unnecessary institutional isolation “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in
that “the additional expenditures necessary to treat [the women] would be unreasonable given the demands of the State’s mental health budget.” Id.
17

community life” and (2) that such confinement “severely diminishes everyday life
activities of individuals, including family relations, social contacts, work options,
economic independence, educational advancement, and cultural enrichment.” Id. at
600–01. The Court further noted that discrimination also existed because disabled
persons “must, because of their disabilities, relinquish participation in community life
they could enjoy given reasonable accommodations” in order to “receive needed medical
services” whereas non-disabled persons need not make the same sacrifice. Id. at 601.
However, the Court also stressed that the ADA does not require
deinstitutionalization when the person would be incapable of managing or benefitting
from it. Id. at 601–02 (“[N]othing in the ADA or its implementing regulations condones
termination of institutional settings for persons unable to handle or benefit from
community settings.”). Thus, as the Court stated:
The State generally may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’ for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting. See 28 C.F.R. § 35.130(d) (public entity shall administer services and programs in “the most integrated setting appropriate to the needs of the qualified individuals with disabilities”) (emphasis added)); cf. School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 288, 94 L.Ed. 2d 307, 107 S. Ct. 1123 (1987) (“Courts normally should defer to the reasonable medical judgments of public health officials.”).
Id. at 602 (emphasis added). Because there was no genuine dispute regarding the
qualifications of the women for community-based services—indeed, the State’s own
professionals determined that such services would be appropriate—the Court found
18

discrimination in the failure to deinstitutionalize. Id.
Here, this Court finds that Boyd cannot establish a substantial likelihood of
success at this early juncture as to whether he is qualified for community-based services.
In his brief in support of the summary judgment motion, Boyd addresses Olmstead’s
holding that “‘unjustified isolation . . . is properly regarded as discrimination based on
disability.’” (Doc. # 16, at 10) (quoting Olmstead, 527 U.S. at 597). He then goes on to
argue that being in a nursing home severely limits his everyday life activities. Id. at
10–13. However, the key in Olmstead is that the institutionalization must be unjustified
and unnecessary. 527 U.S. at 596–597. Hence, the Olmstead majority required a
showing that the women qualified for community-based services—i.e. that community-
based services were appropriate for them.15 Id. at 602–03. This burden was met in that
15 The Olmstead Court’s language on this issue is somewhat confusing, since the Medicaid statute refers a “qualified individual with a disability,” which is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for receipt of services or the participation in programs or activities provided by the public entity.” 42 U.S.C. § 12131(2). In its brief in support of Boyd’s preliminary injunction motion, the United States Department of Justice (“DOJ”) contends that Commissioner Steckel’s argument on Boyd’s qualifications “conflates the question of eligibility with the question of whether the relief sought is a reasonable modification.” (Doc. # 25 at 12).
However, a closer reading of Olmstead reveals that the Court’s requirement of being qualified for community-based services means that the services are appropriate to meet the individual’s needs. 527 U.S. at 602 (“The State generally may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’ for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting.”) (emphasis added) (citing 28 C.F.R. § 35.130(d) (public entity shall administer services and programs in “the most integrated setting appropriate to the needs of the qualified individuals with disabilities”) (emphasis added by the Supreme Court)).
Otherwise, the citation to the integration provision and the emphasis on the appropriateness language would be unnecessary and irrelevant. Additionally, a contrary
19

case because neither party disputed it. Id. In the instant case, Boyd has declared what his needs would be should he be
provided with community-based services. Specifically, he states that he will require “ten hours per day of assistance with activities of daily living, assistance with his bowel program twice weekly, assistance with replacement of his catheter twice monthly and necessary equipment and care supplies.” (Doc. # 16, at 14). He also asserts that Commissioner Steckel “does not dispute that Plaintiff Boyd is a qualified person with a disability who meets the eligibility requirements for Alabama’s Medicaid nursing home ‘level of care’ as well as for its waiver and Medicaid programs.” Id. at 7.
In response, Commissioner Steckel admits that Boyd is eligible for nursing home level of care but argues that “the issue of whether [Boyd] is qualified for Medicaid Waiver services, insofar as the ADA and Rehab[ilitation] Act define that term, is contested.” (Doc. # 20, at 52 n.31). Commissioner Steckel has put evidence before this Court in the form of an affidavit by Dr. Robert Moon, (“Dr. Moon”), Medical Director and Deputy Commissioner of Health Systems for the Alabama Medicaid Agency. (Doc. # 22 Ex. B). After reviewing Boyd’s medical records, Dr. Moon contends that numerous
interpretation would mean that a person who qualifies for Medicaid generally would then automatically qualify for community-based services as a “qualified individual with a disability” even if it were not the most appropriate setting for his needs. Such a result would be contrary to the integration provision’s express language. See 28 C.F.R § 35.130(d); 28 C.F.R. § 41.51(d); see also Olmstead, 527 U.S. at 607 (holding that one element necessary for a State to be required to provide community-based services is that “the State’s treatment professionals determine that such placement is appropriate”) (emphasis added).
20

additional services would be needed to ensure that Boyd’s needs are met. Id. ¶ 7. He also
points to several of Boyd’s past health issues, one of which required hospitalization. Id. ¶
8. Essentially, Dr. Moon states that more care and more expertise than that requested by
Boyd would be needed in order to monitor for and remedy these health issues should they
occur again.
Commissioner Steckel is entitled to rely on Dr. Moon’s assessment and conclude
that the community-based services requested by Boyd are inappropriate for his needs.
Olmstead, 527 U.S. at 602 (“The State generally may rely on the reasonable assessments
of its own professionals in determining whether an individual ‘meets the essential
eligibility requirements’ for habilitation in a community-based program.”).16 Thus, “[i]t
would be inappropriate to remove [Boyd] from the more restrictive setting”—at least until
Boyd can demonstrate, at summary judgment or trial, that Dr. Moon’s assessment is
unreasonable or that he is still qualified for community-based services even under Dr.
Moon’s assessment.17 Id. Without more at this stage, this Court cannot find that Boyd
16 Boyd himself has presented no evidence from a medical professional that supports his views of what his needed medical services would be the community setting. Instead, he merely states what he believes his needs would be and asserts that his treating physician at the nursing home supports his decision to move out. Even without the conflicting evidence presented by Dr. Moon, this Court could not find these bare assertions sufficient to prove that the requested community-based services would be appropriate to meet Boyd’s needs.
17 The DOJ contends that the fact that Boyd lived in the community for eleven years demonstrates that community-based services are appropriate for his needs. (Doc. # 25 at 12). However, the record before this Court does not contain sufficient information to determine (1) what services Boyd actually received while his mother was his primary caregiver; (2) whether those services alone would be enough without his mother acting as primary caregiver; (3) what additional services, if any, would be needed for Boyd to live in the community; and (4) whether
21

has established a substantial likelihood of proving his qualification for the community-
based services requested—i.e. that they are appropriate to meet his needs.18
Furthermore, according to the federal regulations, Alabama is entitled to exclude
individuals from waiver programs where “there is a reasonable expectation that home and
community-based services would be more expensive than Medicaid services the
individual would otherwise receive.” 50 Fed. Reg. 10,013. Attempting to prove that
community-based services are cheaper than nursing home care, Boyd points to data
showing that “Alabama’s Medicaid nursing home reimbursement is approximately
$33,700 a year” whereas the “Medicaid waiver for home and community-based services
Boyd’s medical needs have changed since he lived in the community. On such a barren record, this Court cannot find that the fact that Boyd lived in the community for eleven years with a relative acting as primary caregiver, in and of itself, establishes that community-based services are appropriate for his needs now.
18 In support of Boyd’s motion for a preliminary injunction, the DOJ places much emphasis on a recent case from the Middle District of Florida. (Doc. # 25, at 6 n.6) (citing Haddad v. Arnold, No. 3:10-cv-00414-MMH-TEM (M.D. Fla. July 9, 2010)); see also id. at 11. In Haddad, the court issued a preliminary injunction requiring the State to provide communitybased services for a woman with quadriplegia. However, the facts of Haddad are easily—and pertinently—distinguishable from the instant case. In Haddad, the plaintiff pointed to a specific waiver, already in existence, which appeared to have open slots and provided the services requested by her. Haddad, at 27. The State did not dispute that she was qualified for that program. Id. Similarly, in Olmstead, the women qualified for a specific waiver program, in which slots were still available. 527 U.S. at 601.
Here, Boyd has failed to establish which specific waiver, if any, already provides the services he requests. Even looking to the E&D Waiver that Boyd discussed briefly, he has failed to establish how it provides all of the services he requested and/or would need to live in the community. Indeed, Commissioner Steckel contends that none of the existing waivers covers the community-based services requested by Boyd. See Doc. # 20, at 64; see also Doc. # 19 Ex. C, Chappelle Aff. ¶¶ 5–15. She also specifically contends that the E&D Waiver does not cover the equipment requested by Boyd or the skilled care that Dr. Moon determined he would need. (Doc. # 19 Ex. C, Chappelle Aff. ¶ 14). Boyd has done nothing to rebut this evidence at this stage.
22

[under the E&D Waiver] is approximately $10,365.” (Doc. # 16, at 5). Thus, Boyd claims that the use of community-based services saves Alabama and the federal government approximately $22,000 a year. However, the data relied upon by Boyd refers to cost-neutrality in the “average per capita expenditures,” not cost-neutrality as it relates to him in particular. (Doc. # 16 Ex. E, at 8). Commissioner Steckel contends that Boyd would need significantly more hours of care, more expertise in care, and more services and equipment then requested by Boyd or provided under the E&D Waiver in order to live in the community. Given this dispute, the evidence provided by Dr. Moon, and the lack of any evidence from a medical professional supporting Boyd’s contentions as to his needs, Boyd cannot establish a substantial likelihood of success on the issue of whether it would be more cost-efficient to treat him in the community.
b. The Fundamental-Alteration Defense: the Olmstead Plurality Additionally, Boyd has failed to establish a substantial likelihood of success on the allegedly reasonable modifications requested by him. The plurality in Olmstead discussed the fundamental-alteration defense advanced by the State—namely, that all of its available funds were already being used to provide services to other disabled persons—and rejected the Court of Appeal’s holding that the State must show that the cost of providing community care to the women was unreasonable in comparison to its entire mental health budget. 527 U.S. at 604. The plurality further clarified: [Such an interpretation] would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks. If the
23

expense entailed in placing one or two people in a community-based treatment program is properly measured for reasonableness against the State’s entire mental health budget, it is unlikely that a State, relying on the fundamentalalteration defense, could ever prevail. . . . Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with . . . disabilities. Id. at 603–04 (emphasis added). Noting that deinstitutionalization might never be appropriate for some persons, the plurality made clear that the ADA was not designed to eradicate institutions or to force deinstitutionalization on persons when it would be inappropriate. Id. at 604 (“[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk. Nor is it the ADA’s mission to drive States to move institutionalized patients into an inappropriate setting . . . .”). In emphasizing the “leeway” that must be given to States to “maintain a range of facilities and to administer services with an even hand,” the plurality highlighted the unfairness associated with ordering a State to deinstitutionalize one person under certain circumstances. Id. at 605. For example, if a State demonstrates a “comprehensive, effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.” Id. at 605–06. The plurality stated that courts could not allow one to essentially line-jump such a program for providing community based services. Id.
24

at 606 (“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.”).
Thus, the plurality concluded that a State is required to provide community-based services for disabled persons when several factors are met: (1) “the State’s treatment professionals determine that such 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 . . . disabilities.” Id. at 607. In addition to disputing the first element, Commissioner Steckel argues that Boyd’s placement into the community would not be a reasonable accommodation, but rather would result in a fundamental alteration of Alabama’s Medicaid system. See Doc. # 20, at 61–65.
Assuming that Boyd does qualify for an existing waiver program or for a modified waiver program, this Court must be mindful of the limitations on the Olmstead plurality’s discussion of the fundamental-alteration defense. Boyd has averred that the E&D Waiver—which Commissioner Steckel disputes whether Boyd is qualified to be under—is capped at 9,205 people and has been at that cap since 2008. The DOJ contends that Alabama need only request an increase in the cap for a particular waiver program in order to comply with the ADA. (Doc. # 25, at 9). However, the Medicaid waiver program at issue in Olmstead had unused slots open. 527 U.S. at 601. Thus, the
25

Olmstead Court “did not consider whether a forced change in the waiver program’s cap would constitute a fundamental alteration, because the [S]tate’s program in that case was far from full.” Arc. of Wash. State Inc. v. Braddock, 427 F.3d 615, 619 (9th Cir. 2005).
Although there is no applicable precedent from the Eleventh Circuit, other circuits have addressed the issue of what would constitute a fundamental alteration, with seemingly conflicting results. For example, the First Circuit has stated that “in no event is the [State] required to undertake measures that would pose an undue financial or administrative burden . . . or effect a fundamental alteration in the nature of the service.” Toledo v. Sanchez, 454 F.3d 24, 39 (1st Cir. 2006) (emphasis added), cert. denied, Univ. of P.R. v. Toledo, 549 U.S. 1301 (2007). On the other hand, the Third Circuit has held that budgetary constraints, “[t]hough clearly relevant,” are alone “insufficient to establish a fundamental alteration defense.” Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3rd Cir. 2005) (citations omitted). Going further, the Ninth Circuit has held that “[o]ne basis for finding a ‘fundamental alteration’ would have been for the [S]tate to demonstrate that the remedy would force it ‘to apply for additional Medicaid waivers in order to provide community-based services” to the plaintiffs. Id. (quoting Townsend v. Qausim, 328 F.3d 511, 519 (9th Cir. 2003)); see also Bruggeman v. Blagojevich, No. 00 C 5392, 2004 U.S. Dist. LEXIS 276 at *15 (N.D. Ill. Jan. 8, 2004) (rejecting the argument that a court can consider the fact that the State can “request additional waiver slots to expand community-based services” as part of the State’s
26

available resources because it is “beyond the scope of inquiry permissible under
Olmstead”).
Requiring Alabama to seek more waiver slots could very well be a fundamental
alteration as the Ninth Circuit has held. Were this Court to grant a preliminary injunction
here, nothing would prevent these other thousands of persons on the waiting lists from
filing lawsuits and being granted preliminary injunctions that essentially increase the
waiver cap. Cf. Long v. Benson, No. 4:08cv26-RH/WCS, 2008 WL 4571903 at *2 (N.D.
Fla. Oct. 14, 2008) (“[C]ommon sense and experience suggest there is nothing that can be
done for [the plaintiff] in a nursing home that cannot also be done in his apartment
complex. Indeed, this is true of most if not all services provided in nursing homes for
most if not all patients.”), affirmed, No.08-16261, 2010 WL 2500349 (11th Cir. June 22,
2010). Such a result would hardly render preliminary injunctions a drastic and extreme
remedy. Furthermore, it could potentially disrupt the entire balance of the Alabama
Medicaid program, rendering the permissible caps illusory and requiring Alabama to
provide community-based services to anyone and everyone who qualifies for a particular Medicaid waiver program or a modified version of that program.19 See Olmstead, 527
19 In Haddad, the Middle District of Florida considered similar arguments about the apparent conflict between the ADA and the Rehabilitation Act’s anti-discrimination provisions—as applied by the Olmstead Court to prevent unnecessary institutionalization—and the Medicaid Act—which has a extensive regulatory and statutory scheme that permits capped waiver programs. Rejecting the State’s contentions that there was a conflict, the court concluded that the plaintiff’s claim “simply addresses the question of whether these Defendants, having opted to provide particular services via the mechanism of a Medicaid Waiver Program, may be required, under the ADA, to provide those same services to [the plaintiff] if necessary to avoid
27

U.S. at 604 (“[T]he ADA is not reasonably read to impel States to phase out institutions,
placing patients in need of close care at risk).20
Additionally, nothing in the record establishes whether the waiting list “move[s] at
a reasonable pace not controlled by [Alabama’s] endeavors to keep its institutions fully
populated.” Olmstead, 527 U.S. at 605–06. Simply stating that the waiver program is
capped, which is permitted under the Medicaid Act, does not mean that this is anything
but “a comprehensive, effectively working plan.” Id. Although Alabama bears the
burden of establishing the existence of such a program, this Court cannot find—on the
record before it—that there is a substantial likelihood that Alabama will not be meet this
imminent, unnecessary institutionalization.” Haddad at 29. Because Haddad is factually distinguishable from this case—neither party disputed the
plaintiff’s qualifications for a particular waiver program which may have had open slots—this Court is not convinced that the issue is so narrow in the instant case, particularly given the Olmstead Court’s holding that the courts must look at the big picture. 527 U.S. at 606 (requiring courts to consider whether “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with . . . disabilities”) (emphasis added). Thus, the potential impact of a grant of preliminary injunctive relief on the State’s Medicaid program, and its waiver programs in particular, is an appropriate consideration.
To be clear, this Court is not holding that the ADA and the Rehabilitation Act do not apply to a State who chooses to have Medicaid. However, this Court is not convinced that the intended interaction between the statutes is such that States who choose to have Medicaid and who choose to use optional waiver programs must therefore provide such community-based services to all persons who could benefit from them even when the waiver programs are full.
20 For these same reasons, this Court finds that the balance of hardships does not favor granting a preliminary injunction and that it would not be in the public interest to grant such injunctive relief at this stage. Without a more developed record and an opportunity to more fully brief the issues, the grant of preliminary injunctive relief poses a grave risk of setting precedent which could undermine Alabama’s Medicaid scheme, negatively impacting those other disabled persons receiving Medicaid funds. For these additional reasons, the motion is due to be DENIED.
28

burden. Cf. Townsend, 328 F.3d at 519 (reversing summary judgment for the State because the “current record [did] not provide [the court] with sufficient information to evaluate the . . . fundamental alteration defense”).
Finally, Boyd has not pointed to anything—nor can this Court find anything—that would distinguish him from the other thousands of persons on waiting lists for community-based services under Alabama’s Medicaid program. Permitting Boyd to jump ahead of others on the waiting list merely because he filed a lawsuit goes against the express language of the Olmstead plurality, which this Court will not do. See Olmstead, 527 U.S. at 606 (“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.”) (emphasis added). Given the fragmented nature of the Olmstead opinion, the lack of guidance as to what constitutes a fundamental alteration, and the potential conflict between the Medicaid Act and the ADA and Rehabilitation Act, this Court cannot find that Boyd has established a substantial likelihood of success on the merits as to whether the relief he seeks would constitute a reasonable modification or a fundamental alteration. The uncertainty is heightened by the fact that Boyd seeks a mandatory preliminary injunction requiring him to satisfy a heightened burden.21
21 Even if his pleadings could be construed as seeking a typical prohibitory injunction, Boyd still cannot establish the substantial likelihood of success on the merits sufficient to upset the status quo in this case.
29

CONCLUSION For the foregoing reasons, it is hereby ORDERED that the motion for a preliminary injunction, (Doc. # 15), is DENIED. DONE this day of November, 2010.
/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE
30

 
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 Case 2:10-cv-00688-MEF -TFM Document 55 Filed 04/22/11 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JONATHAN PAUL BOYD, Plaintiff,
v. R. BOB MULLINS, JR.,
Defendant.

) ) ) ) CASE NO. 2:10-cv-688-MEF ) ) ) )

ORDER

Upon consideration of the parties’ Joint Motion to Stay Litigation, (Doc. # 50),

filed on April 1, 2011, it is hereby ORDERED that the motion is DENIED to the extent

that the parties seek to stay litigation indefinitely and GRANTED to the extent that the

action shall be stayed for one year.

It is further ORDERED that the parties are required to file a jointly prepared report

on the status of this case on or before the first Tuesday of every month beginning in May

of 2011.

It is further ORDERED that the pretrial conference set for August 18, 2011 is

continued to September 20, 2012, the trial scheduled for September 19, 2011 is continued

to October 22, 2012, and all other unexpired deadlines are continued generally.

It is further ORDERED that this case is set for a scheduling hearing pursuant to

Rule 16 of the Federal Rules of Civil Procedure on May 1, 2012 at 9:00 A.M. in the

United States Courthouse, One Church Street, Courtroom 2A, Montgomery, Alabama. DONE this the 22nd day of April, 2011.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

 
 Case 2:10-cv-00688-MEF -TFM Document 69 Filed 04/30/12 Page 1 of 3

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

JONATHAN PAUL BOYD,

)

)

Plaintiff,

)

)

v.

)

)

DON WILLIAMSON, M.D. ,

)

in his official capacity as Acting Commissioner )

of the Alabama Medicaid Agency,

)

)

Defendant.

)

Civil Action Number: 2: 1O-cv-00688-MEF-TFM

PLAINTIFF'S MOTION TO DISMISS THIS ACTION VOLUNTARILY AND WITHOUT PREJUDICE

COMES NOW the Plaintiff, Jonathan Paul Boyd, by and through his undersigned

counsel, and voluntarily moves this Honorable Court to dismiss this action without prejudice.

Plaintiffs counsel has confelTed with counsel for the Defendant, and is authorized to represent

that the Defendant does not object to a dismissal without prejudice. As grounds for this motion,

the Plaintiff states:

I. When this action was filed, Plaintiff was eligible to obtain certain Medicaid

benefits through the Defendant Agency, resided in a nursing home, and sought to be able to live

a more fulfilling life in a setting that is less restrictive than a nursing home.

2. During the course of discovery in this action, the Defendant uncovered certain

information that ultimately led to an administrative determination by the Defendant that the

Plaintiff is not eligible to receive Medicaid benefits through the Defendant Agency. The Plaintiff

is appealing that determination but, as of this date, that determination has not been overturned.

3. The Plaintiff recognizes that the interests of justice and judicial economy would

be served by his voluntarily dismissing this action without prejudice.

Case 2:10-cv-00688-MEF -TFM Document 69 Filed 04/30/12 Page 2 of 3
WHEREFORE. the Plaintiff voluntarily moves this Honorable Court to dismiss this action without prejudice.
Respectfully submitted, BY: sl James A. Tucker James A. Tucker (ASB-6986-T39J) J. Patrick Hackney (ASB- 6971-HSIJ) Lorll1ie J. Williams (ASB-2866-135W) Alabama Disabilities Advocacy Project University of Alabama 500 Martha Parham West Box 870395 Tuscaloosa, AL 35487-0395 Telephone: 205-348-4928 Facsimile: 205-348-3909 Iwi II iams({Uadap.lIa.ed1I jphacknev0ladap.1Ia. eelu jtucker@adap.ua.edu Stephen F. Gold (PA Bar No. 09880) 1709 Beqjamin Franklin Pkwy, 2nd Floor Philadelphia, PA 19103 Telephone: (215) 627-7100, ext. 227 Facsimile: (215) 627-3183 stev e go1e1aela ({U cs.colll Attorneys for the Plaintiff
2

Case 2:10-cv-00688-MEF -TFM Document 69 Filed 04/30/12 Page 3 of 3 CERTIFICATE OF SERVICE
This is to certify that on the 30th day of April, 2012" a copy of the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, which will electronically send a copy of the same to the following: Margaret L. Fleming James W. Davis Misty S. Fairbanks William G. Parker, Jr. Stephanie McGee Azar Anne S. Raish
s/James A. Tucker
Attorney for Plaintiff
3

 
 Boyd v. Mullins, Docket No. 2:10-cv-00688 (M.D. Ala. Aug 12, 2010), Court Docket
Printed By: Joseph Chatham on Saturday, October 6, 2012 - 11:08 AM

Part Description 1 1 page 2 Civil Appeals Checklist

Multiple Documents

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LCTR9882?documentName=79.xml

Case 2:10-cv-00688-MEF -TFM Document 70 Filed 04/30/12 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

JONATHAN PAUL BOYD, Plaintiff,
v. R. BOB MULLINS, JR.,
Defendant.

)

)

)

)

CASE NO. 2:10-cv-0688-MEF

)

)

)

)

O R D E R

Upon consideration of plaintiff's Motion to Dismiss this action Voluntarily and

Without Prejudice (Doc. #69) filed on April 30, 2011, it is hereby

ORDERED that the motion is GRANTED and this case is dismissed without

prejudice. It is further ORDERED that the hearing set for May 1, 2012 is cancelled.

Furthermore, the parties are no longer required to file status reports as required by this

Court's order dated April 22, 2011 (Doc. #55). DONE this the 30th day of April, 2012.

/s/ Mark E. Fuller UNITED STATES DISTRICT JUDGE

Case 2:10-cv-00688-MEF -TFM Document 70-1 Filed 04/30/12 Page 1 of 2
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:10-cv-00688-MEF -TFM Document 70-1 Filed 04/30/12 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

Boyd v. Mullins, Docket No. 2:10-cv-00688 (M.D. Ala. Aug 12, 2010), Court Docket
General Information

Case Name Docket Number Status Court Nature of Suit Related Opinion(s)

Boyd v. Mullins 2:10-cv-00688 Closed United States District Court for the Middle District of Alabama Civil Rights: Americans with Disabilities - Other 753 F. Supp. 2d 1163

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LCTR9882?documentName=79.xml

 
 Case: 2:10-cv-688 As of: 10/04/2012 11:15 PM CDT 1 of 8
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:10−cv−00688−MEF−TFM

CLOSED

Boyd v. Mullins Assigned to: Honorable Judge Mark E. Fuller Referred to: Honorable Judge Terry F. Moorer Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 08/12/2010 Date Terminated: 04/30/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Jonathan Paul Boyd

represented by James Patrick Hackney Alabama Disabilities Advocacy Program P. O. Box 870395 Tuscaloosa, AL 35487−0395 205−348−4928 Fax: 205−348−3909 Email: jphackney@adap.ua.edu ATTORNEY TO BE NOTICED

James Arnold Tucker Alabama Disabilities Advocacy Program P. O. Box 870395 Tuscaloosa, AL 35487−0395 205−348−4928 Fax: 205−348−3909 Email: jtucker@adap.ua.edu ATTORNEY TO BE NOTICED

Lonnie Jason Williams Alabama Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487−0395 205−348−4928 Fax: 205−348−3909 Email: lwilliams@adap.ua.edu ATTORNEY TO BE NOTICED

Stephen F. Gold Attorney at Law 1709 Benjamin Franklin Parkway, Second Floor Philadelphia, PA 19103 215−627−7100 Fax: 215−627−3183 Email: stevegoldada@cs.com PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Carol H. Steckel in her official capacity as Commissioner of the Alabama Medicaid Agency TERMINATED: 11/23/2010

represented by James William Davis State of Alabama Office of the Attorney General 501 Washington Ave. Montgomery, AL 36130 334−353−1356 Fax: 334−353−8440 Email: jimdavis@ago.state.al.us

Case: 2:10-cv-688 As of: 10/04/2012 11:15 PM CDT 2 of 8

TERMINATED: 11/23/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Lindsey Fleming State of Alabama Office of the Attorney General 501 Washington Ave. Montgomery, AL 36130 334−353−3738 Fax: 334−353−8440 Email: mfleming@ago.state.al.us TERMINATED: 11/23/2010 ATTORNEY TO BE NOTICED

Misty Shawn Fairbanks Messick Office of the Attorney General 501 Washington Avenue Montgomery, AL 36130−0152 334−353−8674 Fax: 334−353−8440 Email: mmessick@ago.state.al.us TERMINATED: 11/23/2010 ATTORNEY TO BE NOTICED

Stephanie McGee Azar The Alabama Medicaid Agency P O Box 5624 Montgomery, AL 36103−5624 334−242−5126 Fax: 334−353−3907 Email: Stephanie.Azar@medicaid.alabama.gov TERMINATED: 11/23/2010 ATTORNEY TO BE NOTICED

William G. Parker , Jr. Office of the Attorney General P O Box 300152 Montgomery, AL 36130−0152 334−242−7997 Fax: 334−353−8440 Email: Wparker@ago.state.al.us TERMINATED: 11/23/2010 ATTORNEY TO BE NOTICED

Defendant
Robert D. Church, Jr. in his official capacity as Commissioner of the Alabama Medicaid Agency TERMINATED: 01/20/2011

represented by James William Davis (See above for address) TERMINATED: 01/20/2011 ATTORNEY TO BE NOTICED

Margaret Lindsey Fleming (See above for address) TERMINATED: 01/20/2011 ATTORNEY TO BE NOTICED

Misty Shawn Fairbanks Messick (See above for address) TERMINATED: 01/20/2011 ATTORNEY TO BE NOTICED

Stephanie McGee Azar (See above for address) TERMINATED: 01/20/2011

Case: 2:10-cv-688 As of: 10/04/2012 11:15 PM CDT 3 of 8

ATTORNEY TO BE NOTICED

William G. Parker , Jr. (See above for address) TERMINATED: 01/20/2011 ATTORNEY TO BE NOTICED

Defendant
R. Bob Mullins, Jr. M.D., in his official capacity as Commissioner of the Alabama Medicaid Agency

represented by James William Davis (See above for address) ATTORNEY TO BE NOTICED
Margaret Lindsey Fleming (See above for address) ATTORNEY TO BE NOTICED

Misty Shawn Fairbanks Messick (See above for address) ATTORNEY TO BE NOTICED

Stephanie McGee Azar (See above for address) ATTORNEY TO BE NOTICED

William G. Parker , Jr. (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/12/2010 08/16/2010 08/16/2010 08/17/2010 08/17/2010
08/17/2010 08/17/2010
08/18/2010

# Docket Text
1 COMPLAINT against Carol H. Steckel ( Filing fee $ 350.00 receipt number 4602015119.), filed by Jonathan Paul Boyd. (Attachments: # 1 Civil Filing Fee)(cb, ) (Entered: 08/16/2010)
2 Summons and Complaint Issued as to Carol H. Steckel mailed by CMRRR. (cb, ) (Entered: 08/16/2010)
NOTICE of Assignment to Magistrate Judge mailed to counsel for Jonathan Paul Boyd (cb, ) (Entered: 08/16/2010)
3 MOTION for Preliminary Injunction and Expedited Hearing by Jonathan Paul Boyd. (Williams, Lonnie) (Entered: 08/17/2010)
4 BRIEF/MEMORANDUM in Support re 3 MOTION for Preliminary Injunction and Expedited Hearing filed by Jonathan Paul Boyd. (Attachments: # 1 Exhibit A−Declaration of Mr. Boyd, # 2 Exhibit B−Demand letter to Medicaid counsel, # 3 Exhibit C−Emails with Medicaid counsel, # 4 Exhibit D−Alabama Medicaid chart on waiver programs, # 5 Exhibit E−Kaiser Commission's Medicaid Home and Community−Based Service Programs Data Update, # 6 Exhibit F−Alabama Medicaid CMS waiver application)(Williams, Lonnie) (Entered: 08/17/2010)
MOTION for Expedited Hearing re 3 MOTION for Preliminary Injunction by Jonathan Paul Boyd. No pdf attached this entry. See 3 Motion for pdf. (cb, ) (Entered: 08/18/2010)
6 (STRICKEN FROM THE RECORD AS A DOCKETING ERROR) Application to Proceed Without Prepayment of Fees and Affidavit by Jonathan Paul Boyd. (cb, ) (Main Document 6 replaced on 8/19/2010) (cb, ). Modified on 8/20/2010 to strike pleading from the record(cb, ). (Entered: 08/19/2010)
5 Motion to Appear Pro Hac Vice (Stephen Gold) ( Filing fee $ 50.00 receipt number 4602015168.) by Jonathan Paul Boyd. (Attachments: # 1 Certificate of Good Standing, # 2 Pro Hac Filing Fee Receipt)(cb, ) (Entered: 08/19/2010)

Case: 2:10-cv-688 As of: 10/04/2012 11:15 PM CDT 4 of 8

08/18/2010 08/19/2010
08/24/2010 08/26/2010 09/14/2010 09/14/2010 09/14/2010 09/15/2010 09/16/2010
09/23/2010 09/29/2010 09/29/2010 09/29/2010
09/29/2010 09/30/2010

***Attorney Stephen F. Gold for Jonathan Paul Boyd added per 5 Motion. (cb, ) (Entered: 08/19/2010)
7 NOTICE OF DOCKETING ERROR by Jonathan Paul Boyd re 6 Application to Proceed Without Prepayment of Fees and Affidavit. Pleading is hereby STRICKEN from the docket as a docketing error. The pleading should have been filed in another case. (cb, ) (Entered: 08/19/2010)
8 ORDER granting 5 Motion of James A. Tucker for Steve Gold to Appear Pro Hac Vice as Counsel for Plaintiffs. Signed by Honorable Terry F. Moorer on 8/24/2010. (cb, ) (Entered: 08/24/2010)
9 Return Receipt Card showing service of Summons and Complaint signed by Micah Grisham for Carol H. Steckel served on 8/24/2010, answer due 9/14/2010. (cb, ) (Entered: 08/27/2010)
10 Corporate/Conflict Disclosure Statement by Carol H. Steckel. (Davis, James) (Entered: 09/14/2010)
11 ANSWER to 1 Complaint by Carol H. Steckel.(Davis, James) (Entered: 09/14/2010)
***Attorney Margaret Lindsey Fleming,Misty S. Fairbanks,Stephanie McGee Azar for Carol H. Steckel added per 10 Corporate Disclosure Statements. (cb, ) (Entered: 09/15/2010)
NOTICE of Assignment to Magistrate Judge mailed to counsel for Carol H. Steckel (cb, ) (Entered: 09/15/2010)
12 ORDERED that Counsel for the parties are DIRECTED to execute and send to the Clerk, for receipt not later than September 24, 2010, either the attached form for consent to the Magistrate Judge's exercise of jurisdiction or the attached form for reassignment of this case to the District Judge. Signed by Honorable Terry F. Moorer on 9/16/2010. (cb, ) (Entered: 09/16/2010)
13 Case Reassigned to Hon. Chief Judge Mark E. Fuller and Honorable Terry F. Moorer. Honorable Terry F. Moorer no longer assigned to the case as the presiding judge. (cb, ) (Entered: 09/23/2010)
14 AMENDED COMPLAINT against Carol H. Steckel, filed by Jonathan Paul Boyd.(Williams, Lonnie) (Entered: 09/29/2010)
15 Amended MOTION for Preliminary Injunction and Expedited Hearing by Jonathan Paul Boyd. (Williams, Lonnie) (Entered: 09/29/2010)
16 BRIEF/MEMORANDUM in Support re 15 Amended MOTION for Preliminary Injunction and Expedited Hearing filed by Jonathan Paul Boyd. (Attachments: # 1 Exhibit A−Amended Declaration of Mr. Boyd, # 2 Exhibit B−Demand Letter to Medicaid Counsel, # 3 Exhibit C−Emails with Medicaid Counsel, # 4 Exhibit D−Alabama Medicaid chart on waiver programs, # 5 Exhibit E−Kaiser Commission's Medicaid Home and Community−Based Service Programs Data Update, # 6 Exhibit F−Alabama Medicaid CMS waiver application)(Williams, Lonnie) (Entered: 09/29/2010)
MOTION for Expedited Hearing by Jonathan Paul Boyd. No pdf attached to this entry. See 15 Motion for Preliminary Injunction for pdf. (cb, ) (Entered: 09/30/2010)
17 ORDERED as follows: (1) To the extent that 15 Motion seeks an expedited hearing it is GRANTED; (2) The Amended Motion for Preliminary Injunction and Expedited Hearing is set for a hearing on October 13, 2010 at 9:00 a.m. in Courtroom 2A, United States Courthouse, One Church Street, Montgomery, Alabama. The hearing is expected to last no more than one day; and (4) On or before October 7, 2010, Defendant shall file a response to Plaintiff's brief and submissions in support of this motion and provide the Court with a courtesy copy of the response and any materials submitted in support thereof.. Signed by Hon. Chief Judge Mark E. Fuller on 9/29/2010. (cb, ) (Entered: 09/30/2010)

Case: 2:10-cv-688 As of: 10/04/2012 11:15 PM CDT 5 of 8

10/06/2010 10/06/2010
10/07/2010 10/07/2010 10/07/2010 10/12/2010
10/12/2010 10/12/2010 10/12/2010
10/12/2010 10/13/2010 10/13/2010
10/21/2010
10/21/2010 10/26/2010 11/09/2010

18 MOTION to Seal (Motion to File Affidavit Under Seal) by Carol H. Steckel. (Fairbanks, Misty) (Entered: 10/06/2010)
19 Evidentiary Submission re 15 Amended MOTION for Preliminary Injunction and Expedited Hearing filed by Carol H. Steckel. (Attachments: # 1 Exhibit A (Affidavit of Andria Gaither), # 2 Exhibit B (Affidavit of Robert Moon, M.D. (redacted)), # 3 Exhibit C (Affidavit of Marilyn Chappelle))(Fairbanks, Misty) (Entered: 10/06/2010)
20 RESPONSE in Opposition Commissioner Steckel's Opposition to Plaintiff's Amended Motion for Preliminary Injunction (Doc. 15) by Carol H. Steckel. (Fleming, Margaret) (Entered: 10/07/2010)
21 ORDERED that 18 Motion to Seal is GRANTED.. Signed by Hon. Chief Judge Mark E. Fuller on 10/7/2010. (cb, ) (Entered: 10/07/2010)
22 Affidavit of Robert Moon re 19 Evidentiary Submission. (Filed Under Seal per 21 Order. (cb, ) (Entered: 10/08/2010)
23 Evidentiary Submission re 15 Amended MOTION for Preliminary Injunction and Expedited Hearing filed by Jonathan Paul Boyd. (Attachments: # 1 Exhibit A−Declaration of Dr. Jackson, # 2 Exhibit B−C.V. of Dr. Jackson)(Williams, Lonnie) (Entered: 10/12/2010)
24 NOTICE of Appearance by Stephen Michael Doyle on behalf of United States Department of Justice as interested party (Doyle, Stephen) Modified on 11/17/2010 to reflect that the USDOJ is an interested party (br, ). (Entered: 10/12/2010)
***Attorney Anne S. Raish for United States Department of Justice added pursuant to 24 notice of appearance (NO PDF Document attached to this notice). (djy, ) (Entered: 10/12/2010)
25 BRIEF/MEMORANDUM in Support re 15 Amended MOTION for Preliminary Injunction and Expedited Hearing Statement of Interest filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Raish, Anne) (Entered: 10/12/2010)
26 NOTICE of Appearance by William G. Parker, Jr on behalf of Carol H. Steckel (Parker, William) (Entered: 10/12/2010)
27 ANSWER to 14 Amended Complaint by Carol H. Steckel.(Davis, James) (Entered: 10/13/2010)
28 Minute Entry for proceedings held before Chief Judge Mark E. Fuller: Motion Hearing held on 10/13/2010 re 15 Amended MOTION for Preliminary Injunction and Expedited Hearing filed by Jonathan Paul Boyd (PDF available for court use only). (Court Reporter Patricia Starkie.) (Attachments: # 1 Defendant Exhibit List, # 2 Witness List) [exhibit maintained w/file in separate binder](kcg, ) (Entered: 10/15/2010)
29 ORDERED that Rule 26(f) report containing the discovery plan shall be filed as soon as practicable but not later than November 15, 2010. Signed by Honorable Mark E. Fuller on 10/21/2010. (cb, ) Modified on 10/21/2010 to correct the name of the judge associated with the case. (cb, ). (Entered: 10/21/2010)
NOTICE of Docket Text Correction re 29 Order entered to correct the judge association. The order was entered and signed by Chief Judge Mark E. Fuller, rather than Magistrate Judge Charles S. Coody. (cb, ) (Entered: 10/21/2010)
30 NOTICE of Appearance by James Patrick Hackney on behalf of Jonathan Paul Boyd (Hackney, James) (Entered: 10/26/2010)
31 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings re Motion Hearing on Preliminary Injunction (PDF ACCESS RESTRICTED FOR 90 DAYS) held on October 13, 2010, before Judge Mark E. Fuller. Court Reporter/Transcriber Patricia Starkie, Telephone number (334) 262−1221. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION

Case: 2:10-cv-688 As of: 10/04/2012 11:15 PM CDT 6 of 8

11/12/2010 11/12/2010 11/15/2010 11/16/2010 11/17/2010 11/23/2010 11/23/2010 11/24/2010 11/29/2010 12/17/2010 12/21/2010 12/21/2010 12/21/2010 12/21/2010
12/22/2010

DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 11/30/2010. Redacted Transcript Deadline set for 12/10/2010. Release of Transcript Restriction set for 2/7/2011. (cb, ) (Entered: 11/09/2010)
32 REPORT of Rule 26(f) Planning Meeting. (Hackney, James) (Main Document 32 replaced on 11/15/2010) (br, ). (Entered: 11/12/2010)
33 MEMORANDUM OPINION AND ORDER: It is ORDERED that the 15 Motion for a Preliminary Injunction is DENIED as further set out in the memorandum opinion and order. Signed by Hon. Chief Judge Mark E. Fuller on 11/12/2010. (dmn) (Entered: 11/12/2010)
34 NOTICE of Correction: 32 Report of Rule 26(f) Planning Meeting has been replaced with a new PDF document. (Attachments: # 1 Corrected Document)(br, ) (Entered: 11/15/2010)
35 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Jonathan Paul Boyd. Corporate Disclosures due by 11/26/2010. (Attachments: # 1 Corporate Conflict Standing Order)(br, ) (Entered: 11/16/2010)
36 Corporate/Conflict Disclosure Statement by Jonathan Paul Boyd re 35 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Williams, Lonnie) (Entered: 11/17/2010)
37 MOTION for Hearing re 32 Report of Rule 26(f) Planning Meeting (Defendant's Unopposed Request for a Conference with the Court Before Entry of a Scheduling Order) by Carol H. Steckel. (Davis, James) (Entered: 11/23/2010)
38 MOTION for Protective Order Defendant's Unopposed Motion for Protective Order Pursuant to the Health Insurance Portability and Accountability Act ("HIPAA") by Carol H. Steckel. (Attachments: # 1 Text of Proposed Order)(Davis, James) (Entered: 11/23/2010)
39 ORDER ON MOTION AND HIPAA PROTECTIVE ORDER granting 38 Motion. Signed by Honorable Terry F. Moorer on 11/24/2010. (br, ) (Entered: 11/24/2010)
40 ORDER setting Scheduling Conference for 12/17/2010 at 02:00 PM in chambers before Hon. Chief Judge Mark E. Fuller. Signed by Hon. Chief Judge Mark E. Fuller on 11/29/2010. (br, ) (Entered: 11/29/2010)
Minute Entry for proceedings held before Hon. Chief Judge Mark E. Fuller: Scheduling Conference held on 12/17/2010 (No PDF attached). (kcg, ) (Entered: 12/28/2010)
41 ORDERED that the caption of this case is changed to reflect that this action is proceeding only against Robert D. Church in his official capacity as Commissioner of the Alabama Medicaid Agency, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 12/21/2010. (wcl, ) (Entered: 12/21/2010)
42 ORDER denying as moot 37 Unopposed Request for a Conference with the Court Before Entry of a Scheduling Order. Signed by Hon. Chief Judge Mark E. Fuller on 12/21/2010. (wcl, ) (Entered: 12/21/2010)
43 Supplemental REPORT of Rule 26(f) Planning Meeting. (Tucker, James) Modified on 12/21/2010 to correct the docket text to reflect as a Supplemental Report (wcl, ). (Entered: 12/21/2010)
44 UNIFORM SCHEDULING ORDER setting Final Pretrial Conference for 8/18/2011, in Chambers A−300 before Hon. Chief Judge Mark E. Fuller; Non−Jury Trial set for 9/19/2011, in Montgomery, AL before Hon. Chief Judge Mark E. Fuller; setting Dispositive Motions due by 5/2/2011; setting Mediation Notice due by 5/27/2011; setting Amended Pleadings due by 1/14/2011; setting Discovery due by 8/30/2011, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 12/21/2010. (furn: Calendar, kg) (wcl, ) (Entered: 12/21/2010)
45 Objection to 44 Uniform Scheduling Order filed by Robert D. Church, Jr. (Parker, William) Modified on 12/22/2010 to add link to 44 Uniform Scheduling Order (wcl, ). (Entered: 12/22/2010)

Case: 2:10-cv-688 As of: 10/04/2012 11:15 PM CDT 7 of 8

01/14/2011 01/20/2011 01/20/2011 03/31/2011
04/01/2011 04/01/2011 04/01/2011 04/04/2011 04/18/2011 04/21/2011 04/22/2011
05/02/2011 06/07/2011 07/05/2011 08/01/2011

46 MOTION for Leave to File Amended Answer to the 14 Amended Complaint by Robert D. Church, Jr. (Attachments: # 1 Exhibit A)(Fairbanks, Misty) Modified on 1/18/2011 to clarify text (br, ). (Entered: 01/14/2011)
47 ORDER granting 46 Motion for Leave to File Amended Answer; Defendant shall file his Amended Answer to the Amended Complaint on or before January 21, 2011. Signed by Hon. Chief Judge Mark E. Fuller on 1/20/2011. (br, ) (Entered: 01/20/2011)
48 Amended ANSWER to 14 Amended Complaint by R. Bob Mullins, Jr.(Fairbanks, Misty) Modified on 3/31/2011 to reflect the correct filer as R. Bob Mullins, Jr. and not Robert D. Church, Jr. (wcl, ). (Entered: 01/20/2011)
49 MOTION to Amend/Correct 48 Answer to Amended Complaint by R. Bob Mullins, Jr. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Fleming, Margaret) Modified on 3/31/2011 to reflect the correct filer as R. Bob Mullins, Jr. and not Robert D. Church, Jr. (wcl, ). (Entered: 03/31/2011)
50 Joint MOTION to Stay Litigation by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Fleming, Margaret) (Entered: 04/01/2011)
51 ORDER granting 49 Motion for Leave to Amend His Answer to Plf's Amended Complaint. Signed by Hon. Chief Judge Mark E. Fuller on 4/1/2011. (wcl, ) (Entered: 04/01/2011)
52 Second Amended ANSWER to 14 Amended Complaint by R. Bob Mullins, Jr.(Fleming, Margaret) (Entered: 04/01/2011)
53 ORDER Setting Hearing on Motion re 50 Joint MOTION to Stay Litigation: Motion Hearing set for 4/19/2011 at 09:00 AM in Courtroom 2A before Hon. Chief Judge Mark E. Fuller. Signed by Hon. Chief Judge Mark E. Fuller on 4/4/2011. (br, ) (Entered: 04/04/2011)
54 ORDER continuing Hearing on 50 Joint MOTION to Stay Litigation from 4/19/2011 at 9:00 AM to 4/21/2011 at 09:00 AM in Courtroom 2A before Hon. Chief Judge Mark E. Fuller. Signed by Hon. Chief Judge Mark E. Fuller on 4/18/2011. term: Motion hearing set for 4/19/2011 (br, ) (Entered: 04/18/2011)
56 Minute Entry for proceedings held before Hon. Chief Judge Mark E. Fuller: Motion Hearing held on 4/21/2011 re 50 Joint MOTION to Stay Litigation filed by R. Bob Mullins, Jr., Jonathan Paul Boyd (PDF available for court use only). (Court Reporter Patricia Starkie.) (kcg, ) (Entered: 04/25/2011)
55 ORDERED that the 50 Joint MOTION to Stay Litigation is DENIED to the extent that the parties seek to stay litigation indefinitely and GRANTED to the extent that the action shall be stayed for one year; that the parties are required to file a jointly prepared report on the status of this case on or before the first Tuesday of every month beginning in May of 2011; that the pretrial conference set for 8/18/2011 is continued to 9/20/2012, the trial scheduled for 9/19/2011 is continued to 10/22/2012, and all other unexpired deadlines are continued generally; that this case is set for a scheduling hearing pursuant to Rule 16 FRCP on 5/1/2012 at 9:00 A.M. in Courtroom 2A before Hon. Chief Judge Mark E. Fuller. Signed by Hon. Chief Judge Mark E. Fuller on 4/22/2011. (furn: Calendar, kg)(PTC continued to 9/20/2012; Non−Jury Trial continued to 10/22/2012) (wcl, ) (Entered: 04/22/2011)
57 STATUS REPORT (Joint Status Report of the Parties for May 2011) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Fairbanks, Misty) (Entered: 05/02/2011)
58 STATUS REPORT (Joint Status Report of the Parties for June 2011) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Fairbanks, Misty) (Entered: 06/07/2011)
59 STATUS REPORT (Joint Status Report of the Parties for July 2011) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Fairbanks, Misty) (Entered: 07/05/2011)
60 STATUS REPORT (Joint Status Report of the Parties for August 2011) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Fairbanks, Misty) (Entered: 08/01/2011)

Case: 2:10-cv-688 As of: 10/04/2012 11:15 PM CDT 8 of 8

09/06/2011 10/04/2011 10/31/2011 12/06/2011 01/03/2012 02/06/2012
03/06/2012 04/03/2012 04/30/2012 04/30/2012
04/30/2012

61 STATUS REPORT (Joint Status Report of the Parties for September 2011) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Attachments: # 1 Exhibit 1 (Notice of Termination))(Fairbanks, Misty) (Entered: 09/06/2011)
62 STATUS REPORT (Joint Status Report of the Parties for October 2011) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Attachments: # 1 Exhibit 1 (Letter concerning recoupment))(Fairbanks, Misty) (Entered: 10/04/2011)
63 STATUS REPORT (Joint Status Report of the Parties for November 2011) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Fairbanks, Misty) (Entered: 10/31/2011)
64 STATUS REPORT (Joint Status Report of the Parties for December 2011) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Fairbanks, Misty) (Entered: 12/06/2011)
65 STATUS REPORT (Joint Status Report of the Parties for January 2012) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Fairbanks, Misty) (Entered: 01/03/2012)
66 STATUS REPORT (Joint Status Report of the Parties for February 2012) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Attachments: # 1 Exhibit A (Boyd's brief in administrative proceedings), # 2 Exhibit B (Agency's brief in administrative proceedings), # 3 Exhibit C (ALJ's recommendation), # 4 Exhibit D (Commissioner's determination), # 5 Exhibit E (fact sheet for the ACT Waiver))(Fairbanks, Misty) (Additional attachment(s) added on 2/7/2012 to redact personal information contained in original filing pursuant to E−government rules: # 6 (Redacted) Exhibit A, # 7 (Redacted) Exhibit C, # 8 (Redacted) Exhibit D) (wcl, ). Modified on 2/7/2012 (wcl, ). (Entered: 02/06/2012)
67 STATUS REPORT (Joint Status Report of the Parties for March 2012) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Attachments: # 1 Exhibit A (notice of appeal), # 2 Exhibit B (notice of termination))(Fairbanks, Misty) (Entered: 03/06/2012)
68 STATUS REPORT (Joint Status Report of the Parties for April 2012) by Jonathan Paul Boyd, R. Bob Mullins, Jr. (Fairbanks, Misty) (Entered: 04/03/2012)
69 MOTION to Dismiss by Jonathan Paul Boyd. (Tucker, James) (Entered: 04/30/2012)
70 ORDER granting 69 Motion to Dismiss this Action Voluntarily and Without Prejudice and this case is dismissed without prejudice; further ORDERED that the hearing set for 5/1/2012 is cancelled, as further set out in order. Signed by Honorable Judge Mark E. Fuller on 4/30/2012. (furn: Calendar, wr)(term: Scheduling Conference for 05/01/2012; PTC for 09/20/2012; Non−Jury Trial for 10/22/2012) (Attachments: # 1 Civil Appeals Checklist) (wcl, ) (Entered: 04/30/2012)
71 FINAL JUDGMENT that pursuant to 69 Motion to Dismiss, this case is DISMISSED in its entirety without prejudice, each party to bear their own costs and expenses; that the clerk is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. Signed by Honorable Judge Mark E. Fuller on 4/30/2012. (Attachments: # 1 Civil Appeals Checklist)(cc, ) (Entered: 04/30/2012)