UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Civil Action No. 00-CV-30156MAP

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ERNAST HERMANSON, ROBERT )

O’DONNELL, HELEN KOPEC, DELLA )

WIMES, and FLORENCE ASHLEY, on )

behalf of themselves and all persons

)

similarly situated, and STAVROS CENTER )

FOR INDEPENDENT LIVING and

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MASSACHUSETTS SENIOR ACTION )

COUNCIL, INC.,

)

)

Plaintiffs

)

)

v.

)

COMPLAINT

)

CLASS ACTION

THE COMMONWEALTH OF

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MASSACHUSETTS, ARGEO PAUL

)

CELLUCCI in his capacity as Governor of )

Massachusetts, the DIVISION OF

)

MEDICAL ASSISTANCE, WENDY E. )

WARRING in her capacity as Commissioner)

of the Division of Medical Assistance, the )

EXECUTIVE OFFICE OF HEALTH AND )

HUMAN SERVICES, and WILLIAM D. )

O’LEARY in his capacity as Secretary of the)

Executive Office of Health and Human )

Services,

)

Defendants

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____________________________________)

INTRODUCTION 1. Plaintiffs Ernast Hermanson, Robert O’Donnell, Helen Kopec, Della Wimes and
Florence Ashley all have physical disabilities. As a result, each requires some assistance in performing activities of daily living such as dressing, bathing and toileting. Despite these disability-related limitations, all of the plaintiffs, consistent with their individual preferences, could live with some

degree of independence in the community if they received home-based personal care services. However, because Massachusetts applies more restrictive Medicaid eligibility rules to a person when (s)he turns sixty-five, the plaintiffs are unable to obtain or retain Medicaid eligibility. Without Medicaid coverage, they do not have the means to pay for a personal care attendant (PCA) which, in turn, means that they cannot safely and with dignity continue to live in the community. Some of the plaintiffs have been forced to move into nursing homes in order to get appropriate services and others are at risk of being forced into such a move, where , ironically, they receive the very personal care services they have been denied in the community, but at a greater cost both to them and the defendants. 2. In segregating plaintiff class members in nursing facilities and in failing to afford them equal access to community services and supports, the defendants contravene the integration and non-discrimination mandates of the Americans with Disabilities Act (hereafter “ADA”), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.; and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. This case is brought to remedy these violations of the law and to prevent the unnecessary institutionalization of the plaintiffs and the class they represent.
JURISDICTION 3. This Court has jurisdiction of this action pursuant to 28 U.S.C. §1331, 29 U.S.C. §794a, and 42 U.S.C. §12133. 42 U.S.C. §1983 provides a federal cause of action for plaintiffs’ constitutional claims.
PARTIES 4. Plaintiff Ernast Hermanson is seventy-five years old and currently resides at the Soldiers Home in Holyoke, Massachusetts. With the provision of personal care services in the

community, he would be able to return home to his family and friends. 5. Plaintiff Robert O’Donnell is sixty-four years old and resides at home with his wife Arline with the help of a personal care attendant paid for by the medical assistance program. They live at 11 Shingle Brook Road, Orange, Massachusetts. Upon turning sixty-five, he will be in jeopardy of losing his personal care assistance in the community and being institutionalized due to the more onerous financial eligibility rules applied by the defendants to disabled individuals once they turn 65. 6. Plaintiff Helen Kopec is an eighty-two year old widow who resides alone in her house at 27 Knipfer Avenue, Easthampton, Massachusetts with the help of a personal care attendant paid for by the medical assistance program. Due to the more onerous financial eligibility rules applied to disabled seniors in the medical assistance program, Ms. Kopec is at risk of losing her personal care assistance in the community and having to move to a nursing home. 7. Plaintiff Della Wimes is a sixty-six year old widow who lives alone in her home at 123 Lebanon Street, Springfield, Massachusetts with the help of a personal care attendant paid for by the medical assistance program. Due to the more onerous financial eligibility rules applied to disabled seniors in the medical assistance program, Ms. Wimes is at risk of losing her personal care assistance in the community and having to move to a nursing home. 8. Plaintiff Florence Ashley is a seventy-one year old widow who lives with her son and a frail, elderly aunt in her home at 28 Mosher Street, West Springfield, Massachusetts with the help of a personal care attendant paid for by the medical assistance program. Due to the more onerous financial eligibility rules applied to disabled seniors in the medical assistance program, Ms. Ashley is at risk of losing her personal care assistance in the community and having to move to a nursing home.

9. Plaintiff Stavros Center for Independent Living (hereafter “Stavros”) is a private, nonprofit corporation and is one of the oldest independent living programs in the country. It serves Franklin, Hampshire, and Hampden counties of western Massachusetts. State and federal funds support Stavros’ independent living programs. Stavros administers the Medicaid personal care services program for the defendant Division of Medical Assistance in the counties that it serves. In addition, it provides individual advocacy, peer counseling, skills training, information and referral to nearly two thousand people a year who have significant disabilities. Stavros also offers lift-equipped van transportation, independent living services to individuals who are deaf or hard of hearing, an equipment loan program, and assistive technology services. Directed, managed, and staffed by people with disabilities, Stavros is mandated to provide a full range of disability services to members of the plaintiff class, subject to available resources. The defendants’ actions impede Stavros’ ability to effectively provide community-based personal care services to individuals with disabilities over the age of sixty-four. Stavros is required to file annual reports concerning the number of persons whom they assist to move from institutions to the community with the Rehabilitation Services Administration (RSA), the federal agency responsible for enforcing and setting the standards for independent living centers. RSA uses this information to determine the level of funding which Stavros will receive. The defendants’ actions compromise Stavros’ ability to carry out its federal responsibilities and jeopardize its funding. Stavros’ principal office is located at 691 Southeast Street, Amherst, MA. 10. Plaintiff Massachusetts Senior Action Council, Inc. (“MSAC”) is a non-profit
corporation in existence since 1981. It is a statewide membership organization of senior citizens and persons with disabilities, many of whom are adversely affected by the defendants’ more stringent

Medicaid rules for disabled elders. MSAC has about 3000 members and has chapters in various parts of the Commonwealth, including two in Western Massachusetts. MSAC engages in a program of community organizing, legislative advocacy and public education. It is active in the areas of health care, housing and other fields important to maintaining the life-long dignity of elders. During its existence, MSAC has played major roles in successful advocacy for a ban on Medicare balance-billing and for the creation of the Senior Pharmacy Program and the Pharmacy Plus Program, among other efforts related to health care for seniors and disabled persons. MSAC’s principal office is located at 186 Lincoln Street, Suite 901, Boston, MA 02111. 11. Defendant Commonwealth of Massachusetts is a public entity and exercises dominion and control over and is responsible for all facets of state government including the operation and administration of the state’s health care programs and policies. The Governor of Massachusetts, who maintains offices for the conduct of business at the State House, Boston, Massachusetts 02108, is the chief executive officer of the Commonwealth. 12. Defendant Argeo Paul Cellucci, Governor of Massachusetts, is the chief executive officer of the Commonwealth. He is responsible for seeking funds from the legislature as well as for directing, supervising, and controlling the executive departments of state government. Defendant Cellucci appoints the Secretary of the Executive Office of Health and Human Services (“EOHSS”) and approves the appointment of the Commissioner of the Division of Medical Assistance. He is required to review the States’ Medicaid Plan prior to its submission to the United States Department of Health and Human Services for approval. His office is at the State House, Boston, Massachusetts 02108. He is sued in his official capacity. 13. Defendant Division of Medical Assistance (DMA) is an agency of the Commonwealth

within EOHHS. It is established under M.G.L. c. 6A, §16B and is the single state agency which administers the Medicaid program in Massachusetts. 14. Wendy E. Warring is the Commissioner of DMA. Under M.G.L. c.6A, §16B, she is responsible for the administration of the Medicaid program. Her office is located at 600 Washington Street, 5th Floor, Boston, Massachusetts 02111. She is sued in her official capacity. 15. Defendant Executive Office of Health and Human Services (EOHHS), established by M.G.L.c.6A, §2, is the Commonwealth’s cabinet level agency in charge of all health and human service programs in the Commonwealth. EOHHS manages policy development and service delivery in 15 state agencies, including the Division of Medical Assistance. 16. Defendant William D. O’Leary is the Secretary of EOHHS. Under M.G.L.c.6A, §3, he was appointed by the Governor and serves directly under him and at his pleasure. He serves as the executive officer of the Governor for accomplishing all of the purposes of EOHHS. He appoints the Commissioner of DMA. His office is located at One Ashburton Place, Room 1109, Boston, Massachusetts 02108. He is sued in his official capacity.
CLASS ACTION ALLEGATIONS 17. Pursuant to Rules 23(a)(1)-(4) and (b)(2) of the Federal Rules of Civil Procedure, plaintiffs bring this action as a class action on behalf of all Massachusetts adults with disabilities sixty-five years of age and over in Massachusetts who are in need of personal care services to remain in the community and who have been institutionalized or who are at risk of being instituonalized due to their inability to obtain such services from the defendants because of the more restrictive Medicaid eligibility criteria applied to disabled elders. 18. The size of the class is so numerous that joinder of all members is impracticable.
Joinder

is also impracticable because the class is dynamic and because the plaintiffs lack the knowledge, sophistication, and financial means to maintain individual actions. 19. There are questions of law and fact common to the class and the plaintiffs’ claims are typical of the claims of the class. 20. The representative parties will fairly and adequately protect the interests of the class. Plaintiffs will vigorously represent the interests of the unnamed class members, and all members of the proposed class will benefit by the efforts of the named plaintiffs. The interests of the proposed class and those of the named plaintiffs are identical. 21. Defendants, their agents, employees, and predecessors and successors in office have
acted or will act on grounds generally applicable to the class, thereby making appropriate injunctive or declaratory relief with respect to the class as a whole.
STATEMENT OF FACTS A. Statutory and Regulatory Framework: Medicaid Eligibility 22. Medicaid is a jointly funded state and federal program that provides medical services to low-income persons pursuant to Title XIX of the Social Security Act. 42 U.S.C. §1396 et seq. 23. State participation in the Medicaid program is optional. A state choosing to participate and receive federal matching funds for its Medicaid program must comply with the requirements of the federal Medicaid Act and with the federal regulations governing state Medicaid programs promulgated by the U.S. Department of Health and Human Services (HHS). 24. As a condition of participating in the federal Medicaid program, states must submit to HHS a state Medicaid plan that fulfills the requirements of the Medicaid Act. 42 U.S.C.

§1396a(a). 25. The mandatory requirements of a state Medicaid plan are set forth in 42 U.S.C. §1396a(a). However, states can apply for a waiver of compliance with any of the requirements of 42 U.S.C. §1396a in order to conduct an experimental, pilot or demonstration project which in the judgment of the Secretary of HHS will promote the objectives of Title XIX. 42 U.S.C. §1315. 26. Massachusetts has chosen to participate in the Medicaid program. Massachusetts operates a traditional Medicaid program for all persons aged 65 and older pursuant to a state plan as required by 42 U.S.C. §1396a(a). For all persons under 65 years of age who are not institutionalized, Massachusetts operates a Medicaid program pursuant to a waiver granted by the Secretary of HHS. 27. All individuals or families who are recipients of Supplemental Security Income (SSI) or Transitional Aid to Families With Dependent Children (TAFDC) benefits automatically qualify for Medicaid, regardless of their age. 42 U.S.C. §1396a(a)(10)(A)(i); 130 CMR § 501.004(B)(1). 28. All disabled individuals under age 65 and families with children whose income is less than 133% of the federal poverty level (currently $926 per month for an individual) qualify for Medicaid under the waiver Massachusetts has received (referred to hereafter as the “MassHealth waiver”). 29. All individuals or families aged 65 or older financially qualify for Medicaid only if their income is less than 100% of the poverty level (currently $696 per month for an individual). 30. All disabled individuals, regardless of age, whose income exceeds their financial eligibility standard can still qualify for Medicaid if they have incurred medical bills over a 6

month period (including any unpaid medical bills from an earlier time) which, when deducted from their income, reduce their income to the monthly deductible income standard. The monthly deductible income standard for an individual is $542 The amount of medical bills that an individual must incur over a six month period before qualifying for Medicaid is known as the deductible amount. Individuals who qualify for Medicaid by meeting a deductible are known as medically needy. 31. Medically needy disabled individuals under age 65 only need to meet their deductible once. After satisfying the deductible once, their continuing eligibility for Medicaid is determined based upon a sliding income scale. As long as the income of the disabled individual under age 65 remains less than $13,631 per year (195% of poverty), that individual continues to be eligible for full Medicaid. As his (her) income increases beyond $13,631 per year, that individual must pay a modest premium which increases as his (her) income increases. 130 C.M.R. §§506.009-506.011. 32. Medically needy individuals aged 65 or over must satisfy recurring deductibles every six months in order to establish eligibility. 130 C.M.R. §520.028-520.035. This means that their Medicaid eligibility lasts for no longer than six months, after which they must again accumulate medical bills that meet their deductible in order to requalify for coverage, only to lose that coverage again at the end of that six month deductible period, ad infinitum. 33. For disabled elders with significant, fixed medical expenses for a personal care attendant, the recurring six month deductibles and lower financial eligibility level (100% of poverty rather than 133% of poverty for those under 65) create significant barriers to their ability to obtain and retain their personal care attendants and thereby avoid institutionalization.
Personal Care Services

34. The Massachusetts Medicaid program provides personal care services in the community as one of its covered services. 130 C.M.R. §422.401 et seq. 35. Personal care attendants (PCA’s) are authorized by DMA for disabled individuals whose disability is permanent or chronic and who require at least ten hours per week of assistance with activities of daily living (ADL’s) such as bathing, dressing, eating, toileting, or moving (e.g. walking or transferring from a wheelchair to a bed), or at least 14 hours per week of assistance with a combination of ADLs and instrumental activities of daily living (IADL’s) such as housekeeping, laundry, shopping, transportation or other special needs. 130 C.M.R. §§422.403, 422.410. 36. Under the personal care services program, recipients are responsible for hiring, firing, scheduling and training PCA’s. Payment to the PCA can, at recipient option, be made by a fiscal intermediary or directly by the recipient. 130 C.M.R. §422.419, 422.420. 37. DMA authorizes payment for PCA’s at the hourly wage rate of $9.50 and, for night attendant services, at the rate of $19.00 for the entire night. 114.3 C.M.R. §9.03. 38. DMA has delegated to Independent Living Centers responsibility for the day-to-day administration of the PCA program, including evaluating an applicant’s need for personal care services, training recipients regarding the skills necessary to supervise and train PCAs, as well as the record-keeping responsibilities inherent in the program. 130 C.M.R. §422.419, 422.421. 39. Personal care services are provided in order to assist the recipient to achieve independent living. 130 C.M.R. §422.402 (definition of personal care services). 40. Individuals in need of personal care services who are unable to obtain or retain their personal care attendants are left without the means to perform basic activities of daily living such as dressing, bathing, eating, moving and/or toileting. They may remain bedridden for extended

periods of time without access to food or toilet facilities, waiting for a friend or relative to stop by to assist them. Those without a network of friends or relatives become immediately in need of institutional care. Those with such a network are at serious risk of institutionalization as the strain on family and friends takes it toll.
Long Term Care 41. The Massachusetts Medicaid program covers long term care in a nursing facility for eligible recipients. 42. To be eligible for nursing home care, an individual must require either skilled nursing services on a daily basis, or a combination of three services designed to provide assistance with activities of daily living and/or nursing services, at least one of which must be a nursing service. 130 C.M.R. §456.409. 43. After certain deductions from income for things such as the support and maintenance of a spouse or children living in the community, an individual in a nursing facility, regardless of age, qualifies for Medicaid if his/her monthly countable income is less than or equal to the public pay rate (the rate paid by Medicaid) at the long term care facility. (Public pay rates vary from institution to institution but average in excess of $3000 per month). However, the individual must pay all of his/her countable income except for a small personal needs allowance towards the cost of his/her care. 130 C.M.R. §§515.001 (definition of patient-paid amount), 520.025, 520.026. 44. The monthly cost of care in any nursing home is substantial, and far more than the general financial eligibility standard for either the under-65 or over-65 population residing in the community.

45. Nursing homes provide the same personal care services in an institutional setting (assistance with ADL’s and IADL’s) that PCA’s provide in a community setting, but at a substantially greater cost to the state.
The Anti-Discrimination Provisions of the Americans With Disability Act and §504 of the Rehabilitation Act of 1973: 46. The Americans With Disability Act (ADA), 42 U.S.C. §12101 et seq., provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 47. A major purpose of the ADA is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent and enforceable standards addressing discrimination against individuals with disabilities. 42 U.S.C. §12101(b)(1)&(2). 48. The regulations implementing the ADA require that: “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. §35.130(d). 49. The ADA regulations prohibit the differential treatment of individuals with disabilities or any class of individuals with disabilities with respect to their opportunity to participate in or access the full range of aids, benefits or services in any program operated by a public entity. 28 C.F.R. §§35.130 (b)(i)(ii) and (b)(i)(iv). The regulations further provide that “[a] public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of

administration (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; (ii) that have the purpose or effect of substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities....” 28 C.F.R. §35.101(b)(3). 50. The ADA regulations also provide that “[a] public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R. §35.130(b)(8). 51. The ADA regulations further specify that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. §35.130(b)(7). 52. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, provides that “[n]o 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.” 53. Like the ADA, regulations implementing the anti-discrimination mandate of §504 provide 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). 54. The §504 regulations also provide that “[a] recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) [t]hat have the

effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) [t]hat have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons .....” 28 C.F.R. §41.51(b)(3).
B. The Plaintiffs’ Factual Situation: 55. Plaintiff Ernast Hermanson is seventy five years old and currently resides at the Soldiers Home in Holyoke, Massachusetts. Mr. Hermanson receives $711.50 per month in Social Security Benefits and an additional $310.24 per month in state pension benefits. His wife, Edith, who continues to reside in the community, receives $359.00 per month in Social Security benefits. 56. Up until January 1998, Mr. Hermanson lived independently with his wife of over fifty years. In January 1998 Mr. Hermanson had a stroke and in February 1998, due to a blood clot, he had his right leg amputated above the knee. 57. Following the stroke and amputation and a period of inpatient rehabilitation therapy, Mr. Hermanson was transferred to the Life Care Nursing Home on March 5, 1998 where he stayed until April 8, 1998 at a cost of $290 per day. These costs were covered by Medicare subject to a co-payment of $95.50 per day after the 16th day (resulting in a total co-payment of $1528). 58. Mr. Hermanson’s seventy four year old wife, Edith, was unable to adequately care for him upon his return home in November 1998. The family looked into personal care services from the Medicaid program at this time. However because of the income of Mr. Hermanson, he faced a six month deductible in excess of $2878.44 before he would qualify for Medicaid.

59. Because Mr. Hermanson could not meet the six month deductible to qualify for Medicaid and did not want to return to a nursing home, his daughter took him into her home and she and other family members provided him with the personal care he required in shifts. 60. In April of 1999, Mr. Hermanson was admitted to Bay State Medical Center and his left leg was amputated. On May 5, 1999, he was discharged to Heritage Hall Nursing Home where he stayed until June 1, 1999. At the end of the stay, he returned home and his family resumed providing care in shifts. 61. In November 1999, Mr. Hermanson was again admitted to Bay State Medical Center due to complications from certain prescription medications he was taking. At the point of his discharge from the hospital, the family made the difficult decision that they could no longer manage to continue to provide the personal care assistance Mr. Hermanson needs to stay at home. As a result, on December 8, 1999 Mr. Hermanson was discharged to Wingate Nursing Home, and on March 15, 2000 he was transferred to the Soldiers Home in Holyoke where he now resides. All except $39.00 per month of the cost of his care at the Soldiers Home is borne by the Commonwealth of Massachusetts. 62. Mr. Hermanson wants to return home to be reunited with his wife and family. He needs assistance with many activities of daily living, but he is alert and oriented and handles all of his own medical and financial decisions. With the provision of personal care services in the community, Mr. Hermanson could return home and the Commonwealth would save money on his care. 63. Because of the disparate Medicaid eligibility rules for disabled elders, Mr. Hermanson would have to incur approximately $3000.00 in medicaid expenses every six months before he would qualify for Medicaid if he was living at home. Because he cannot repeatedly cover the

cost of the deductible on his limited income, he is unable to obtain personal care services in the community and is now institutionalized at greater financial cost to the state and great emotional cost to Mr. Hermanson, his wife and family. 64. Plaintiff Robert O’Donnell is a sixty-four year old man who lives at home with his wife Arline in Orange, Massachusetts. 65. Mr. O’Donnell receives $1080 per month in Social Security benefits. 66. In 1997, Mr. O’Donnell suffered a brain-stem cardiovascular accident which left him in a coma for six days. Following his hospital stay, he spent several months in a rehabilitation facility and then returned home to the care of his wife. 67. Mr. O’Donnell receives nutrition through a gastric tube and is dysphagic due to damage from the stroke. He also has sleep apnea, diabetes and a history of myocardial infarction. He can ambulate short distances with a walker, but needs assistance with bathing, dressing, transferring, toileting and taking medications. 68. Initially upon his return home following the stroke, Mr. O’Donnell’s care at home was provided by the local home health care agency and covered by Medicare. However, the Medicare-covered home health services have been reduced over time and in April 1999, Mr. O’Donnell was approved for 23 hours per week of personal care attendant services paid for through MassHealth. Because he is under 65 years of age, Mr. O’Donnell received these services without having to meet recurring deductibles and his income is low enough that he does not have to pay a premium under the MassHealth sliding fee scale. 69. Without the personal care services provided by MassHealth, Mr. O’Donnell’s wife would not be able to care for him and he would have to be placed in a nursing home. 70. Mr. O’Donnell will turn 65 on December 7, 2000. At that time, he will be subjected to

recurring six month deductibles in excess of $3000 in order to qualify for personal care services at home. Because the O’Donnells do not have $3000 in excess income with which to meet these recurring deductibles, he is at imminent risk of institutionalization when he turns 65 on December 7, 2000. 71. The cost to the defendants of providing care to Mr. O’Donnell in a nursing home will far exceed the cost of providing him with the personal care services he needs to remain at home with his wife. 72. Plaintiff Helen Kopec is an eighty-two year old widow who lives alone in her house in Easthampton, Massachusetts. 73. Ms. Kopec has had both her legs amputated below the knee and also suffers from arthritis, multiple sclerosis, degenerative joint disease and asthma. 74. In 1993, Ms. Kopec was placed in a nursing home where she stayed for three years. Her care in the nursing home was covered by Medicaid. 75. While in the nursing home, she learned of the Medicaid-funded personal care services program and immediately took steps to qualify for that program so that she could get out of the nursing home and back to her home in Easthampton. 76. In 1996, Ms. Kopec was discharged from the nursing home and began participating in the Medicaid-funded personal care services program. 77. Ms. Kopec is authorized to receive sixty-seven hours per week of personal care attendant services and a night attendant seven days per week. 78. Ms. Kopec receives $827.00 in Social Security benefits each month. Because she is over sixty-five years of age, she must meet recurring six-month deductibles of $1,710.00 to qualify for Medicaid.

79. She has met her six-month deductible in the past through a combination of her Medex health insurance premiums of $111.47 per month and the use of unpaid nursing home bills. However, she has now exhausted the back nursing home bills and does not know how she will be able to meet her deductible in October 2000. 80. When her Medicaid coverage terminates on October 1, 2000, she will have no means to pay her personal care attendant. Without a personal care attendant, Ms. Kopec will be forced to go back into a nursing home and leave her home in Easthampton in which she was born and where she has lived her entire life. 81. Della Wimes is a sixty-six year old widow who lives alone in her house in Springfield, Massachusetts. 82. Ms. Wimes is blind, her left leg is amputated below the knee, and she suffers from diabetes and serious circulatory problems in her right leg. 83. Ms. Wimes is able to remain in her home of thirty-three years because she receives personal care services authorized and paid for by Medicaid. She requires assistance with all activities of daily living except eating. She also requires assistance putting on her prosthesis and with range of motion exercises to maintain flexibility and circulation in her legs, right arm and shoulder. 84. Ms. Wimes is currently authorized to receive forty-five hours per week of personal care services plus a night attendant. 85. Ms. Wimes was admitted to a nursing home for several months in 1997 following femoral bypass surgery. She is adamant that she does not want to return to a nursing home. 86. Ms. Wimes sole source of income is $990 per month in Social Security benefits. In order to qualify for Medicaid, she must satisfy recurring six month deductibles of $2668.

She met the deductible for the six month period from April 1 through September 30, 2000 by

using her Medicare premiums of $45.50 per month and submitting bills she incurred but could

not pay for her personal care attendant for work performed during the uncovered portion of a

previous deductible period.

87. Ms. Wimes personal care attendant has continued to provide services to her, despite

going without payment for periods of time due to Ms. Wimes’ need to satisfy her deductible

every six months before Medicaid coverage resumes. However, Ms. Wimes personal care

attendant cannot continue to provide free care to Ms. Wimes every six months so she can meet

her deductible. Unless Ms. Wimes can provide some assurance of full and timely payment, she

will lose her personal care attendant. Without a personal care attendant, Ms. Wimes will have to

enter a nursing home.

88.

The emotional harm that Ms. Wimes will suffer if forced out of her home and into an

institution is severe and irreparable.

89. Florence Ashley is a seventy-one year old widow who lives with her son and a frail,

elderly aunt in West Springfield, Massachusetts.

90. Ms. Ashley suffers from obesity and arthritis which is most severe in her knees,

shoulders and elbows. She needs assistance with transfers, dressing, bathing, grooming and

meal preparation. She also has limited mobility. She is currently approved by Medicaid for

thirty-two hours per week of PCA services.

91. Ms. Ashley has twice been admitted to nursing homes in the recent past. In 1998,

during her second nursing home stay, she applied and was approved for personal care services in

the community by Medicaid. With these services, she was able to leave the nursing home and

return to her own home.

92. Ms. Ashley’s only income comes from a Social Security benefit of $158 per month and a pension form the City of West Springfield in the amount of $560.00 per month. 93. In order to qualify for Medicaid, Ms. Ashley must meet recurring six month deductibles of $1059. She met her most recent deductible for the period from June 12, 2000 through December 11, 2000 by using her monthly Medicare premium; prescription drug co-payments and unpaid bills for her PCA for work that had previously been provided. 94. Ms. Ashley does not know how she will be able to meet her deductible in December 2000. She already owes her personal care attendant for services provided which were used to meet her prior deductibles. Her personal care attendant is not willing to continue to provide a period of free care to Ms. Ashley every six months so that she can use that unpaid bill to meet her deductible. 95. Unless she is able to ensure that her personal care attendant is paid in full and in a timely manner for the services provided, Ms. Ashley is at serious risk of losing her personal care attendant. Without a personal care attendant to care for her while her son is working, Ms. Ashley will be forced to return to a nursing home which will be more costly for the Commonwealth and will cause her serious emotional harm to her irreparable detriment. 96. Plaintiffs and the class they represent are, as a result of the structure, operation and administration of Massachusetts’ Medicaid program, denied and deprived access to the personal care services they require unless they go into a nursing home, despite the fact that, with such services, they could continue to reside in the community.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF THE INTEGRATION MANDATE OF THE ADA

97. Defendants the Commonwealth of Massachusetts, Executive Office of Health and Human Services, and Division of Medical Assistance are public entities subject to the requirements of Title II of the ADA, 42 U.S.C. §§12131 et seq. 98. The plaintiffs and the class they represent are otherwise qualified to receive personal care services in the community. 99. The defendants, through the structure and operation of their health care delivery system, force plaintiffs and the class they represent to leave the community and enter nursing homes in order to be able to obtain personal care services, despite the fact that such services are available in the community and their provision in the community would be more cost effective for the state and more beneficial to the health and well-being of the individuals in need of such services. 100. The defendants’ failure to provide the plaintiffs and the class they represent with personal care services in the most integrated setting appropriate to their needs violates 42 U.S.C. §12132 and 28 C.F.R. §35.130(d).
SECOND CLAIM FOR RELIEF THE INTEGRATION MANDATE OF §504 101. The defendants receive federal financial assistance to operate their Medicaid Program and are thus subject to the non-discrimination requirements of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. 102. The defendants, through the structure and operation of their health care delivery system, force plaintiffs and the class they represent to leave the community and enter nursing homes in order to be able to obtain personal care services, despite the fact that such services are available in the community and their provision in the community would be more cost effective for the

state and more beneficial to the health and well-being of the individuals in need of such services. 103. The defendants’ failure to provide the plaintiffs and the class they represent with personal care services in the most integrated setting appropriate to their needs violates 29 U.S.C. §794 and 28 C.F.R. §41.51(d).
THIRD CLAIM FOR RELIEF DISCRIMINATORY IMPACT ON THE DISABLED UNDER THE ADA 104. The defendants, as a result of the MassHealth waiver and their criteria and methods of administration of the Medicaid program, have created a dual system of medical assistance in which medically needy disabled individuals under age 65 are able to obtain personal care services while continuing to reside in the community, while medically needy disabled individuals age 65 and over are unable to access personal care services without entering a nursing home. 105. The defendants have utilized criteria and methods of administration in their health care delivery system that have the tendency and the effect of subjecting plaintiffs and the class they represent to discrimination on the basis of disability with respect to their ability to access personal care services in the community, while at the same time substantially undermining accomplishment of the objectives of the personal care services program in particular and the Medicaid program in general. These actions violate 42 U.S.C. §12132 and 28 C.F.R. §§35.130(b)(i)(ii), (b)(i)(iv) and (b)(3).
FOURTH CLAIM FOR RELIEF DISCRIMINATORY IMPACT ON THE DISABLED UNDER §504 106. The defendants, as a result of the MassHealth waiver and their criteria and methods of

administration of the Medicaid program, have created a dual system of medical assistance in which medically needy disabled individuals under age 65 are able to obtain personal care services while continuing to reside in the community, while medically needy disabled individuals age 65 and over are unable to access personal care services without entering a nursing home. 107. The defendants have utilized criteria and methods of administration in their health care delivery system that have the effect of subjecting plaintiffs and the class they represent to discrimination on the basis of handicap with respect to their ability to access personal care services in the community, while at the same time substantially undermining accomplishment of the objectives of the personal care services program in particular and the Medicaid program in general. These actions violate 29 U.S.C. §794 and 28 C.F.R. §41.51(b)(3).
FIFTH CLAIM FOR RELIEF DISCRIMINATORY ELIGIBILITY CRITERIA 108. The defendants have imposed and applied eligibility criteria including a lower financial eligibility standard and the need to satisfy recurring six month deductibles that screen out and tend to screen out disabled individuals age 65 or over in need of personal care services in the community from fully and equally enjoying such services. 109. The defendants imposition of such disparate eligibility standards on plaintiffs and the class they represent violates 42 U.S.C. §12132 and 28 C.F.R. §35.130(b)(8).
SIXTH CLAIM FOR RELIEF FAILURE TO REASONABLY ACCOMMODATE UNDER THE ADA 110. The defendants have failed and refused to reasonably accommodate plaintiffs and the class they represent by modifying or waiving those aspects of their health care delivery system, including the deductible rules and lower financial eligibility standards, which impair and deny to

plaintiffs and the class access to personal care services in the community. This failure to reasonably accommodate plaintiffs and the class they represent violates 42 U.S.C. §12132 and 28 CFR §35.130(b)(7).
SEVENTH CLAIM FOR RELIEF FAILURE TO REASONABLY ACCOMMODATE UNDER §504 111. The defendants have failed and refused to reasonably accommodate plaintiffs and the class they represent by modifying or waiving those aspects of their health care delivery system, including the deductible rules and lower financial eligibility standards, which impair and deny to plaintiffs and the class access to personal care services in the community. This failure to reasonably accommodate plaintiffs and the class they represent violates 29 U.S.C. §794.
EIGHTH CLAIM FOR RELIEF DENIAL OF EQUAL PROTECTION 112. The defendants, by depriving plaintiffs and the class they represent of access to personal care services in the community on a basis equal to that provided to similarly situated disabled individuals under 65 years of age, have denied plaintiffs and the class they represent equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States.
REQUESTED RELIEF Wherefore, the plaintiffs request that the Court grant the following relief: 1. Enter an order certifying this action as a class action. 2. Issue a preliminary injunction restraining the defendants, their successors in office, agents, employees and assigns, and all persons acting in concert with them from failing to provide personal care services to the individual plaintiffs and the class they represent on the same basis as those services are provided to disabled individuals under 65 years of age pending

the hearing and disposition of this action; 3. Issue permanent injunctions restraining the defendants, their successors in office,
agents, employees and assigns, and all persons acting in concert with them from: a) discriminating against plaintiffs and the class they represent by failing to
provide medically necessary personal care services to them in the most integrated setting appropriate to their needs;
b) discriminating against the plaintiffs and the class they represent by imposing upon them more stringent financial eligibility requirements which preclude them from being able to access personal care services in the community on a comparable basis with similarly situated individuals under 65 years of age.
c) utilizing methods of administration in the Medicaid program which have the effect of depriving plaintiffs and the class they represent of access to personal care services in the community and requiring them to enter nursing homes in order to be able to access such medically necessary services.
4. Issue a declaratory judgment declaring that: a) the defendants have violated the Americans with Disabilities Act and §504 of
the Rehabilitation Act of 1973 by failing to make reasonable modifications in their programs which provide personal care services in the community to ensure that plaintiffs and the class they represent can obtain such services without having to enter an institution;
b) the defendants have violated the ADA and §504 by establishing and maintaining methods of administration of their Medicaid program which have the effect of denying elder disabled individuals access to personal care services in the community on a comparable basis with similarly situated disabled individuals under 65 years of age.

c) the defendants have violated the ADA and §504 by imposing upon plaintiffs and the class they represent more stringent financial eligibility requirements which preclude or tend to preclude them from being able to access and enjoy personal care services in the community on a comparable basis with similarly situated disabled individuals under 65 years of age.
d) the defendants have violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States by, without a rational basis, denying and depriving plaintiffs and the class they represent of access to personal care services in the community on a comparable basis to that of similarly situated disabled individuals under 65 years of age.
5. Award plaintiffs their costs and reasonable attorneys fees pursuant to 42 U.S.C. §1988, 42 U.S.C. §12205, and 29 U.S.C. §794a.
6. Grant plaintiffs such other and further relief as to this court may seem just and proper.

Dated: September 12, 2000 Verne Vance

__________________________ J. Paterson Rae BBO#: 410520 Peter Benjamin BBO#: 037240 Marion Rosenau BBO#: 557048 Attorneys for Plaintiffs Western Mass. Legal Services 127 State Street, 4th fl. Springfield, MA 01103-1944 (413) 781-7814 (413) 746-3221 fax
Stephanie Krantz

BBO#: 507540 Foley, Hoag and Eliot, LLP One Post Office Square Boston, MA 02109-2170 (617) 832-1000 Fax: (617) 832-7000
Steven A. Hitov National Health Law Program 1101 14th Street, N.W., Suite 405 Washington, DC 20005 (202) 289-7661 Fax: (202) 289-7724

BBO#: 564559 Matthew Engel BBO#: 547465 Disability Law Center 22 Green Street Northampton, MA 01060 (413) 584-6337 Fax: (413) 586-5711
Jan Steifel BBO#: 544134 Western Mass. Legal Services 20 Hampton Avenue, Suite 100 Northampton, MA 01060 (413) 584-4034 Fax: (413) 585-0418

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

____________________________________ )

ERNAST HERMANSON, et al.,

)

)

Plaintiffs

)

)

FOR

v.

)

)

COMMONWEALTH OF

)

MASSACHUSETTS, et al.,

)

Defendants

)

___________________________________ )

Civil Action No. 00-CV-30156MAP
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TEMPORARY RESTRAINING
ORDER AND/OR PRELIMINARY INJUNCTION )

INTRODUCTION The three plaintiffs who seek relief at this juncture are all low-income, disabled, elderly individuals who, with the provision of personal care services, are able to live at home. However, due to the disparate Medicaid eligibility rules that apply to disabled elders, they are unable to obtain or are at imminent risk of losing Medicaid coverage for such services in the community. Plaintiff Ernast Hermanson is currently institutionalized at the Holyoke Soldiers Home where the entire cost of care is borne by the Commonwealth. He desperately wants to be reunited with his wife to whom he has been married for fifty-two years. He and his wife have recently been approved for a new, handicap accessible apartment in Wales, Massachusetts effective October 1, 2000. Unless Mr. Hermanson is able to obtain Medicaid coverage for

community-based personal care services, he will be unable to occupy the apartment and it will be given to someone else. If that happens, he will have lost this unique opportunity to be reunited with his wife and retain some semblance of dignity and independence.
Plaintiffs Helen Kopec and Della Wimes both live in their respective homes with the help of personal care attendants paid for by Medicaid. However, their current Medicaid eligibility expires on September 30, 2000 and they will be unable to meet the more restrictive Medicaid rules applied to disabled elders. If they lose their Medicaid coverage for personal care services in the community, both will be forced to enter nursing homes to get the personal care services they need. Both will immediately qualify for Medicaid in the nursing homes. Both have been in nursing homes before and are desperate to remain in their homes where they retain control over their lives and their care.
These three plaintiffs seek a preliminary injunction ordering the defendants to make Medicaid coverage for community-based care available to them on the same basis as it is made available to other disabled individuals. Plaintiffs are likely to prevail on their claims that this disparate treatment violates numerous anti-discrimination provisions of the Americans with Disabilities Act and that without such relief they will suffer severe and irreparable injury.
FACTS A. How the Massachusetts Medicaid Program Operates:
Medicaid is a joint federal-state program designed to provide medicaid assistance to low income families and individuals “to help such families and individuals attain or retain capability for independence or self care.” 42 U.S.C. §1396 (emphasis added). Once a state elects to
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participate in the Medicaid program, it must provide coverage to all those people who receive federally subsidized cash assistance grants under the Temporary Assistance to Needy Families (TANF, formerly known as Aid to Families With Dependent Children (AFDC) and currently known in Massachusetts as Transitional Assistance to Families With Dependent Children (TAFDC)) program or the Supplemental Security Income (SSI) program. 42 U.S.C. §1396a(a)(10)(A). Such recipients of Medicaid are known as the “categorically needy.” In addition, a state may choose to provide Medicaid to those persons who would receive TAFDC or SSI except for the fact that their income or assets are above the allowable limits for those programs. People in these categories have traditionally been referred to as the TAFDC-related and SSI-related “medically needy.” Massachusetts has historically chosen to provide coverage to these groups, and, prior to 1997 as federal law requires, financial eligibility for both groups was determined in the same way. See 42 U.S.C. §1396 a(a)(10)(B) and (17). However, in 1997 Massachusetts sought a waiver pursuant to 42 U.S.C. §1315 from the United States Department of Health and Human Services to permit it to deviate from a host of federal requirements including the requirements of §1396a(a)(10)(B) that the amount, duration and scope of medical assistance must be the same for the categorically and medically-needy and of 1396a(a)(17) that the standards for income eligibility must be comparable for all groups. With the waiver, Massachusetts created its own Medical Assistance Program with vastly different financial eligibility rules for those under 65 years of age and those age 65 and older. Compare 130 C.M.R. §§505.001 et seq. (under age 65 coverage) with 130 C.M.R. §519.001 et seq. (age 65 and over).
Specifically, as a result of the waiver, non-institutionalized disabled individuals under 65
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years of age automatically qualify for Medical Assistance if their income is less than 133% of the poverty level ($926 /mo. for an individual), 130 C.M.R. §505.002(F), while those age 65 and over qualify only if their income is less than 100% of poverty. ($676/mo. for an individual). 130 C.M.R. §519.005(A)(1). Disabled individuals whether over or under 65 whose income exceeds the basic financial eligibility cut-off (133% of poverty for those under 65; 100% of poverty for those 65 and older) can still qualify for Medical Assistance if they have incurred medical bills over a six month period (including any unpaid bills from an earlier time) which, when deducted from their income during that period, reduce that income (pro-rated to a monthly amount) below the deductible income standard. 130 C.M.R. §§505.004(C)(4) and 506.009 (disabled adults under 65); 519.005(B) and 520.028 et seq. (disabled individuals age 65 and older). The deductible income standard for an individual is $542 per month.1 130 C.M.R.§§506.009(D) (chart). However, and significantly, those under age 65 only have to satisfy the six month deductible once. After once meeting the deductible, disabled individuals under age 65 have their eligibility determined based upon a generous sliding income scale. As their income increases, they may have to pay a modest premium for continued coverage. 130 C.M.R. §506.009 However, the income limits are so much higher than those for regular Medicaid and the premiums so modest that, for all practical purposes, disabled individuals under 65 who meet their one time deductible have guaranteed affordable health insurance.
1 While the deductible income standard for elders is $522 (see 130 C.M.R. §520.030), because elders receive a $20 per month deduction from unearned income that those under age 65 do not (see 130 C.M.R. §520.013), in actual operation the amount of the deductible income standard is the same for both the under and over 65 disabled population. For purposes of simplicity, the $542 figure will be used throughout this brief and any computations using this figure will not include the $20 unearned income deduction for those 65 and older.
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Not so for elders. Elders must continue to meet the deductible every six months in order to continue to qualify for Medicaid. 130 C.M.R. §520.031(B). The repeated need to incur substantial medical bills before qualifying for Medicaid coverage creates enormous cash flow problems for disabled elders who frequently cannot afford to purchase the medical care needed to meet the deductible and still pay their rent, utilities, food and clothing costs.
A few examples will hopefully clarify the workings of this complex system: Example 1: Bill is 58 years old and wheelchair-bound. He receives $900 per month in Social Security benefits and has fixed monthly medical expenses of $600 for a personal care attendant (PCA) (approximately 3 hours/day) to assist him with dressing, bathing, toileting, cooking and cleaning. Because Bill’s monthly income is less than 133% of poverty (926/mo), he qualifies for Medicaid without a deductible and Medicaid pays the full cost of his PCA plus any other medical expenses he may have. Example 2: Assume everything in Example 1 is the same except Bill has just turned 65. Now that he is 65, Bill is income eligible for Medicaid only if his monthly income is less than $696. Bill is $204 over income. As a result he must meet the six-month deductible to qualify. Bill’s deductible amount is $2148 (($900 (his income) - $542 (the deductible standard) x 6). Therefore within a 6 month period, Bill must incur $2148 of medical expenses before he qualifies for Medicaid. If his PCA costs are his only medical expenses, Bill will have to pay his PCA $600 out of his own pocket for 3 ½ months before Medicaid eligibility is established. Medicaid will pay the last 2 ½ months, but then the process will begin anew and Bill will again have to pay the PCA for 3 ½ months before Medicaid kicks in, ad infinitum. If Bill has to pay $350 per month in rent and $100 per month in utilities and $100 per month for food, he will be
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unable to pay his PCA and his other fixed expenses. He is at great risk of losing his PCA, which will throw him into instant crisis, probably resulting in institutionalization.
Example 3: Assume that Bill’s income is $1100 per month and his PCA costs are $1200 per month. Also assume Bill is 59 years old. Bill is over income for automatic Medicaid eligibility because his income exceeds $926. Bill must meet a deductible of $3348 (($1100-$542) x 6) over a 6 month period to qualify for Medicaid. After a little less than 3 months, Bill will qualify for Medicaid. At that point Medicaid will kick in and cover his PCA costs plus any other medical expenses he has. Because his monthly income is less than $1135 (the cut-off for no premiums on the sliding-scale), Medicaid will continue to cover all of his medical bills at no cost to him until he reaches age 65.
Example 4: Same as Example 3 except that Bill is over 65. Bill is, of course, well over income to automatically qualify for Medicaid. Therefore he will have to meet a 6 month deductible of $3348 ((1100-542) x 6) before Medicaid coverage begins. This means Bill will have to repeatedly pay for this PCA out of his own pocket for almost 3 months before qualifying for Medicaid. While Bill might be able to cover the PCA costs out of savings or contributions from family members during the initial spenddown period, he will face the same cash-flow dilemma again and again, every 6 months. Because his PCA costs exceed his monthly income, it will prove to be impossible for him to continue to pay his PCA until his deductible is met. Unless the PCA is able and wiling repeatedly to defer payment for several months, Bill will lose his PCA before he ever meets his deductible.
As the facts of the moving parties demonstrate, these examples and the consequences that flow therefrom are far from hypothetical. Fortunately, the disparate treatment accorded to elder
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disabled individuals is just as illegal as it is unconscionable.
2. The Plaintiffs’ Situation: The three plaintiffs who are presently seeking preliminary relief, Ernst Hermanson, Helen
Kopec, and Della Wimes, are all facing a crisis in October, 2000. Mr. Hermanson is currently confined at the Holyoke Soldiers Home, a long term care
facility funded by state appropriation. Mr. Hermanson is seventy-five years old and is married to Edith Hermanson, his wife of 52 years. Up until January 1998 he and his wife led an active life living on their farm in Monson, Massachusetts where Edith grew up. In January 1998, Mr. Hermanson had a stroke, and in February 1998 he had his right leg amputated due to a blood clot. Following the amputation, he was discharged to a rehabilitation facility and then to a nursing home where he stayed for about a month at a cost of $290 per day. Mr. Hermanson desperately wanted to leave the nursing home and return home. Because his wife, who is seventy-four, could not care for him on her own, his daughter Sheila agreed to have them move in with her in her home in Wales, Massachusetts. In April 1998 Mr. Hermanson left the nursing home and soon thereafter contacted the Stavros Center for Independent Living to apply for personal care services in the community through Medicaid. In response to this application for services, he received a letter from the defendant Division of Medical Assistance advising him that he had a six month deductible of $2878.44 that he needed to meet every six months in order to qualify for Medicaid coverage. On his fixed income of $933 per month, Mr. Hermanson cannot afford to meet this deductible. Because he could not get help from Medicaid, his daughter and other
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family members pitched in and provided the care he needed in shifts. Affidavits of Ernast Hermanson, Edith Hermanson, and Sheila Chabot.
In April 1999, Mr. Hermanson was again admitted to the hospital and had his other leg amputated. Again he was transferred from the hospital to a nursing home where he stayed for about a month before returning to his daughter’s home where his personal care needs were met by family members operating in shifts. In November 1999, he was admitted to the hospital yet again due to an adverse reaction to a medicine he was taking. At this time, his family made the difficult decision that they could no longer afford to continue to provide him with the personal care he needed to reside at home. As a result, Mr. Hermanson was discharged to the Wingate Nursing Home and in March 2000 he was transferred to the Holyoke Soldiers Home where he now resides. Affidavits of Ernast Hermanson and Sheila Chabot.
In the nursing home, Mr. Hermanson spends 22 out of 24 hours per day in bed. He participates in no activities. The staff does not even help him up to go to the bathroom, requiring him instead to use a bed pan. Mr. Hermanson has an electric wheelchair and could eat his meals in the dining hall, but again the staff does not help him to get into his wheelchair, preferring instead to provide him with his meals in bed where he eats alone. Mr. Hermanson feels helpless and useless in the nursing home. Affidavits of Ernast Hermanson and Sheila Chabot.
Fortunately for Mr. Hermanson, his family members visit regularly and take him home almost every weekend. During these home visits, Mr. Hermanson is able to go for drives with his wife to visit friends. With his wheelchair he can go for walks with his wife and other family members. He can go fishing. He can even go out by himself to get some fresh air or visit a
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neighbor. He eats his meals with the rest of the family. Affidavits of Ernast Hermanson, Edith Hermanson and Sheila Chabot.
A new apartment complex has just opened in Wales around the corner from where one of Mr. Hermanson’s daughter lives and just a few miles from his daughter Sheila’s house where he had been staying. The complex has two handicap accessible units and Mr. Hermanson and his wife have been approved for one of them starting on October 1, 2000. The stove and sinks in this accessible unit are set up so that Mr. Hermanson will be able to use them in his wheelchair. He will be able to help cook and wash the dishes, and will be able to perform basic personal hygiene tasks like shaving and brushing his teeth. Because the apartment is completely wheelchair accessible, he will be able to come and go without assistance. He will, of course, still need assistance with transfers, toileting, bathing and some other tasks. He has been evaluated and determined in need of 56 hours of personal care services per week. With such help, he will be able to reunite with his wife and lead a productive and meaningful life. Affidavits of Ernast Hermanson, Edith Hermanson and Sheila Chabot.
The accessible housing unit which is available on October 1, 2000 provides Mr. Hermanson with a unique opportunity to return to the community and regain some of the dignity, independence and self worth that he has lost while confined in a nursing home. However, he has to occupy the unit soon or it will be given to someone else. Affidavit of Ernast Hermanson at ¶9.
Plaintiff Helen Kopec, is an eighty-two year old widow who lives alone in her own home in Easthampton, Massachusetts. She has had both legs amputated below the knee and suffers from arthritis, multiple sclerosis, degenerative joint disease and asthma. Ms. Kopec’s source of
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income is $827 per month in Social Security benefits. In order to qualify for Medicaid, she must meet recurring six month deductibles of $1710. She has met these deductibles in the past through a combination of her monthly Medex premium of $114.47 and the use of unpaid nursing home bills. Ms. Kopec has exhausted the back nursing home bills and does not have other bills to use to meet her deductible. Her current six month period of Medicaid eligibility terminates on October 1, 2000. Affidavit of Helen Kopec.
Currently, Ms. Kopec is approved for sixty-seven hours a week of personal care services plus a night attendant seven days a week. With assistance from her personal care attendant, Ms. Kopec attends town events, participates in gatherings at the Easthampton Council on Aging such as bingo and picnics, and goes to church each week. Without continuous Medicaid coverage which is currently set to expire on October 1, 2000, she will be unable to pay her personal care attendant. Without home-based personal care services, Ms. Kopec will be forced into a nursing home. She has been in nursing homes in the past and has found the experience degrading and the care inadequate. She desperately wants to remain at home where she can exercise control over her affairs and maintain some semblance of independence. Affidavits of Helen Kopec and Glayfra Ennis-Yentach.
Plaintiff Della Wimes is a sixty-six year old widow who lives alone in her house in Springfield. She is blind, her left leg is amputated below the knee, and she has diabetes and circulatory problems in her right leg. Ms. Wimes sole source of income is $990 per month in Social Security benefits. In order to qualify for Medicaid, she must meet recurring six-month deductibles of $2668. She met the deductible for the six-month period from April 1, 2000 through September 30, 2000 by using her monthly Medicare premiums and submitting bills she
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had incurred but not yet paid for work performed by her personal care attendant during the uncovered portion of a previous deductible period. Affidavit of Plaintiff Della Wimes.
On October 1, 2000, Ms. Wimes current eligibility for Medicaid will terminate. Because she does not have sufficient unpaid back bills for medical care to meet her deductible, she will be unable to reinstate her Medicaid eligibility in October 2000. Without Medicaid, she will be unable to pay her personal care attendant. Without her personal care attendant, Ms. Wimes will be forced to abandon her home of 33 years and enter a nursing home. Affidavits of Plaintiff Della Wimes and her daughter, Della Wimes.
Ms. Wimes has spent time in two different nursing homes in the past. On each occasion, the amount of assistance and attention to her needs was far inferior to that which she receives at home. She felt isolated, uncomfortable and depressed in the nursing home. She desperately wants to avoid returning to the isolation of a nursing home. Affidavits of Plaintiff Della Wimes and her daughter, Della Wimes.
THE STANDARD FOR ISSUANCE OF A PRELIMINARY INJUNCTION. The standard for issuance of preliminary relief in the First Circuit requires that the plaintiff demonstrate (1) a probability of success on the merits of the claim; (2) the danger of irreparable harm; (3) that the balance of hardships tips in plaintiffs' favor; and (4) that the public interest will be furthered by the issuance of preliminary relief. Levesque v. State of Maine, 587 F.2d 78, 80 (1st Cir. 1978); Automatic Radio Manufacturing Co. v. Ford Motor Co., 390 F.2d 113 (1st Cir.) cert. den. 391 U.S. 914 (1968). This standard is a flexible one. A-Copy, Inc. v. Michaelson, 599 F.3d 450, 451 (1st Cir. 1978). If plaintiffs' probability of success is high, the severity of the irreparable injury need not be great. Associated Builders v. Mass. Water
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Resources Auth., 935 F.2d 345, 350 (1st Cir. 1991), reversed on other grounds, 507 U.S. 218, 113 S.Ct. 1190 (1993). Conversely, if the injury to the plaintiff is great, plaintiff need only demonstrate that her legal claims are sufficiently "serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation." Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2nd Cir. 1953); accord, Cuneo Press of N.E., Inc. v. Watson, 283 F.Supp. 122 (D. Mass. 1968); Mytinger & Casselberry, Inc. v. Humanna Labs, 215 F.2d 382 (7th Cir. 1954); Alameda County v. Einberger, 520 F.2d 344 (9th Cir. 1975); Continental Oil Co. v. Frontier Ref. Co., 338 F.2d 780 (10th Cir. 1964); Wright & Miller, Federal Practice and Procedure: Civil § 2948 at pp. 453-455. As will be demonstrated, plaintiffs easily meet each of the above requirements.
ARGUMENT 1. The Plaintiffs Are Likely To Succeed On the Merits of their Claims:
The Americans With Disabilities Act, 42 U.S.C. §12101 et seq. is a far reaching statute designed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §12101(b)(1). Congress recognized that isolation, segregation and unnecessary institutionalization of individuals with disabilities are forms of discrimination that must be eliminated. 42 U.S.C. §§12101(a)(2)(3) and (5). Congress noted that discrimination persists in the provision of “health services,” 42 U.S.C. §12101(a)(3), and established as a national goal “to assure... independent living... for such individuals.” 42 U.S.C. §12101(a)(8).
In order to accomplish the goals and objective of the ADA, Congress provided that “no qualified individual with a disability shall, by reason of such disability, be excluded from
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participation in or be denied the benefits of the services, programs, or activities of a public
entity,2 or be subjected to discrimination by any such entity.” 42 U.S.C. §12132. In order to
flesh out the meaning of this broad anti-discrimination mandate, Congress directed the Attorney
General to promulgate regulations implementing the public services title of the ADA. 42 U.S.C.
§12134. The Attorney General’s ADA public services regulations are codified at 28 C.F.R.
§35.101 et seq. 28 C.F.R. §35.130 specifically provides that a public entity in providing any
aid benefit or service, may not directly or indirectly;
(b)(1)(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that afforded others;
*** (b)(1)(iv) Provide different or separate aids, benefits or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others...........
*** (b)(1)(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service,
*** (b)(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entities program with respect to individuals with disabilities;
*** (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;
(b)(8) A public entity shall not impose eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully
2 It is clear that defendants the Commonwealth of Massachusetts, the Executive Office of Health and Human Service sand the Division of Medical Assistance are public entities. 42 U.S.C. §12131 (1) (definition of public entity).
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and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program or activity being offered;
*** (d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
When the defendants’ medical assistance program as it applies to disabled individuals
aged 65 and over in need of personal care services is evaluated against these regulatory criteria,
it falls short with respect to each and every listed requirement.
The applicable anti-discrimination standards in 28 C.F.R. §35.130 can be separated into
three distinct categories: 1) Prohibitions of disparate treatment of individuals with disabilities or
any class of such individuals (§§35.130(b)(1)(ii), (b)(1)(iv), (b)(i)(vii), (b)(3), and (b)(8)); 2)
the obligation to make reasonable modifications in policies, practices or procedures to avoid
discrimination on the basis of disability (§35.130(b) (2)); and 3) the obligation to administer
services, programs and activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities (§35.130(d)).
1. The Integration Mandate:
In the Olmstead decision, the Supreme Court specifically considered the Title II
integration mandate regulation, 28 C.F.R. §35.130(d) and concluded, not only that it was within
the scope of the Attorney General’s rulemaking discretion, but that it was virtually required by
the underlying purpose of the ADA and its text. Olmstead v. L. C, 527 U.S. 581, 591-592, 119
S.Ct. 2176, 2182-83 (1999). As the Court explained:
Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life... [citations omitted]. Second, confinement in an institution severely diminishes life activities of individuals,
14

including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment... Dissimilar treatment correspondingly exists in this key respect: In order to receive needed medical services, persons with... disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations....
Olmstead, 527 U.S. at 600-01, 119 S.Ct. at 2187. Mr. Hermanson’s life following placement in a nursing home underscores the discriminatory
harm attendant upon unwarranted institutionalization. While in the nursing home, he is
separated from his wife, children and other family members. His ability to interact with them is
severely curtailed. Affidavits of Ernast Hermanson, Edith Hermanson, and Sheila Chabot.
While family contact is severely diminished, social interaction with friends is virtually
non-existent. Compounding the social isolation flowing from institutionalization is the almost
total inactivity experienced by Mr. Hermanson in the institution. Aff. of Ernast Hermanson at
¶7 . When Mr. Hermanson’s daily life in the nursing home is contrasted with his daily life
during his weekend visits home, the evils of unjustified confinement become palable. Affidavit
of Ernast Hermanson at ¶8. Mr. Hermanson’s plight is precisely what Congress intended to remedy through enactment of Title II of the ADA.3
Of course, it is not all institutionalization that is outlawed by the ADA; only that which is
“unjustified”. In the context of the integration mandate, institutional placement is unjustified if,
based “on the reasonable assessment of [the State’s] professionals... an individual ‘meets the
essential eligibility requirements’ for habilitation in a community-based program.” Olmstead,
587 U.S. at 602, 119 S.Ct. at 2188. Here all three of the plaintiffs seeking preliminary relief
3 The experiences of plaintiffs Wimes and Ashley during their confinement in nursing homes further confirm the harm attendant flowing from institutionalization. See affidavits of Kopec and Wimes.
15

have been screened and evaluated by the State for personal care services in the community and been determined to be in need of and qualified to receive such services in the community. Affidavits of Ernast Hermanson, Helen Kopec and Della Wimes. As the Olmstead court noted, there can be “no genuine dispute concerning the status of [the plaintiffs] as individuals “qualified” for non-institutional care: The State’s own professionals determined that community-based treatment would be appropriate for [them].” Olmstead, 587 U.S. at 602-03, 119 S.Ct. at 2188; see also Kathleen S. v. Dept. of Public Welfare, 10 F.Supp. 2d 460, 470-474 (E.D. Pa. 1998).
Lower courts which have considered whether states must provide personal care services to institutionalized individuals able to reside in the community with such services have determined that the integration mandate of 28 C.F.R. §35.130(d) requires the provisions of such services. Helen L. v. DiDario, 46 F.3d 325, 336-339 (3d Cir. 1995); see also, Sanon v. Wing, 2000 N.Y. Misc. LEXIS 139 at 12-24 (Sup. Ct., N.Y. Cty. 2000)(vacating denials of community-based personal care services and remanding for further consideration). In Helen L., the Third Circuit determined that where Pennsylvania had a program to provide personal care services in the community, it could not deny or delay providing those services to an institutionalized individual who qualified for them due to a lack of funding by the state legislature. Noting that the legislative objectives of the state’s attendant care program (to enable disabled persons to reach maximum independence and to live in their home or in a less restrictive living arrangement) paralleled the policy and purpose of the integration mandate of the ADA, the Court easily rejected the suggestion that provision of such services to the plaintiff would fundamentally alter the program. Helen L., 46 F.3d at 337-38. In response to the
16

States undue burden/cost defense, the Helen L. court first explained: The fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services under Section 504... or under [title II of the ADA].
Helen L., 46 F.3d at 338 (quoting H.R. Rep. 485 (III), 101st Cong. 2d Sess. 50, reprinted in 1990 U.S.C.C.A.N. at 473 (emphasis in original)). Noting that providing the community-based services would be less costly for the state, the Helen L. court easily dismissed the states administrative hardship defense. Id.
The Olmstead court did note that an analysis of a states’ administrative hardship defense should “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 diverse population of persons with mental disabilities.” Olmstead, 527 U.S. at 604, 119 S.Ct. at 2189. In Olmstead, the analysis was complicated by the fact that placing increasing numbers of mentally ill individuals in community placements might require the state to operate state hospitals at less than full capacity or to incur costs associated with the closure of institutions. The court was also concerned that relief accorded to the individual plaintiffs who commenced suit did not result in their gaining preferential treatment over other similarly situated individuals in need of a community placement. Olmstead , 527 U.S. at 606, 119 S.Ct. at 2190. Neither of these factors is present here. This case involves institutional placements in nursing homes, not state institutions. Whatever incremental impact this case might have on nursing homes will not constitute a cost to the state. Furthermore, unlike Olmstead, this case does not involve a capped benefit with a waiting list, but rather an entitlement for all who are eligible. In addition, this case is brought as a class action. The
17

concerns raised by the Olmstead court about inequitable treatment are simply not present here. Nevertheless, the cost to the defendants of providing the requested relief, if sufficiently
substantial in relation to their total health care budget, might provide a defense to some of the relief requested. However, there are numerous factors suggesting that such a defense is unlikely to succeed4. First, the fact that the defendants accorded the relief sought by plaintiffs to non-elderly disabled individuals is compelling evidence that it is not prohibitively expensive. Second, this case is limited to disabled individuals aged 65 and over who are in need of personal care services in the community to avoid institutionalization. While the exact size of the class is not yet known by the plaintiffs, this is a small subset of the Medicaid population and not likely to substantially affect the overall health care budget. Finally as the Olmstead court recognized, Olmstead, 527 U.S. at 595, 119 S.Ct. at 2184, and numerous studies have shown, community-based care is almost always less expensive than institutional care. L. M. Alecxih, S. Lutzky, J. Corea, and B. Coleman, Estimated Cost Savings from the Use of Home and Community-Based Alternatives to Nursing Facility Care in Three States 23 (AARP 1996)(“Even in the study’s most stringent analyses--which adjusted for national trends, greater impairment in nursing facility residents, and other government costs--home and community-based care resulted in savings”)(copy included in Addendum of Authorities); GAO, Medicaid Long-Term Care: Successful State Efforts to Expand Home Services While Limiting Costs, GAO/HEHS-94-167 at 12-13 (1994)(“One result of the shift to home and community-based care in these three states is that the states have been able to serve more beneficiaries with the Medicaid and state dollars
4 Defendants, of course, bear the burden of proof on this affirmative defense. Kathleen S, 10 F.3d at 471.
18

they have available. This is because on a per-beneficiary basis, home and community-based care is considerably less expensive than nursing facility care.”)(copy included in Addendum of Authorities).
Even if community-based care were shown to be more costly than institutional care, that would not justify discriminatory treatment of the class of disabled elders unless the increased cost were shown to be significant when measured against the health care resources of the Commonwealth. H.Re.p. No. 101-485(III), 101st Cong. & Admin News 445, 464. As Congress explained, even substantial costs may not be significant for ADA purposes when measured against the resources of a large program. See, Messier v. Southbury Training School, 1999 U.S. Dist. LEXIS 1479 at 36 (D. Conn. 1999)(“Inadequate funding ordinarily will not excuse noncompliance with the ADA.”). The state Medicaid budget exceeds $2,000,000,000 per year. 2000 Mass. Acts, c.159, line items 4000-0430,-0450,-0500,-0600,-0700,-0860,-0866,-0870, and -0880. The entire state health care budget is substantially more. In light of these substantial resources, any defense based upon cost is not likely to succeed.
The defendants may argue that provision of equal treatment to disabled seniors in need of personal care services would constitute a fundamental alteration of their medical assistance program. However, because the modification that plaintiffs seek has already been made by the defendants for the majority of program participants, it can hardly be found to be fundamental for purposes of the ADA. This is not a case in which plaintiffs are seeking a service that is not already being provided. Personal care services in the community are already included as part of the Massachusetts medical assistance program. 130 C.M.R. §§422.401 et seq. Extending that
19

service on an equal basis to disabled elders would hardly fundamentally alter the medical assistance program. Indeed, the Medicaid program as conceived by Congress itself prohibited the type of disparate treatment under scrutiny here. 42 U.S.C. §1396a(a)(10)(B) requires that medical services “shall not be less in amount, duration, or scope” between or among the categorically eligible or medically needy. Rolland v. Cellucci, 52 F.Supp. 2d 231, 238-240 (D. Mass. 1999); Sobky v. Smoley, 855 F. Supp. 1123, 1140-41 (E.D. Cal. 1994). In addition, “to determine eligibility of medically needy individuals, a Medicaid agency must use a single income standard ....” 42 C.F.R. §435.811(a). For medically needy individuals who are categorically related to the SSI program (i.e. the aged, blind or disabled), determination of whether such individuals satisfy the single income standard must be the same and no more restrictive than the SSI methodology. 42 C.F.R. §435.601(b). Putting these pieces together, the Medicaid Act mandates that all medically needy individuals who are categorically related to the SSI program regardless of whether they are over or under 65 years of age be treated the same. It is only because Massachusetts has obtained a waiver of these federal requirements pursuant to 42 U.S.C. §1315 that it has been able to engage in disparate treatment of disabled elders. However, requiring the defendants to restore their medical assistance plan to a position more in line with Congressional design can hardly be considered a fundamental alteration of the program.
2. Differential Treatment
The differential eligibility criteria, particularly the need to satisfy recurring deductibles, which make it substantially more difficult for disabled individuals aged 65 and over to obtain
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and retain coverage for personal care services in the community (see detailed description of the differential operation of the system, above at 2-6) certainly do not “afford” elder disabled individuals in need of personal care services “an opportunity to participate in or benefit from [the medical assistance program] that is... equal to that afforded to others.” 28 C.F.R. §35.130(b)(1)(ii). By forcing disabled elders into nursing homes in order to obtain personal care services, the defendants provide different or separate benefits or services to the class of elder individuals with disabilities in violation of §35.130(b)(1)(iv) and otherwise limit elder disabled individuals in their enjoyment of the advantages and opportunities enjoyed other disabled situated individuals in contravention of §35.130(b)(1)(vii). The defendants have adopted and utilize criteria, methods of administration and eligibility criteria that screen out or tend to screen out the class of elder disabled individuals from fully and equally enjoying the program in violation of §35.130(b)(3) and (8). In light of the relatively straightforward way in which the defendants differential eligibility rules contravene all of these regulatory provisions, it is hardly surprising that the one case which evaluated the legality of almost identical differential eligibility rules in a medical assistance program easily concluded that they violated both the ADA and §504. Burns-Vidlak by Burns v. Chandler, 939 F. Supp. 765, 769-773 (D. Haw. 1996). Like Massachusetts, Hawaii obtained a Medicaid waiver which dramatically expanded financial eligibility for all Medicaid recipients except the aged, blind and disabled. Burns Vidlak, 939 F. Supp. at 765. The Court had no difficulty in concluding that such disparate eligibility criteria violated the ADA and §504 by discriminating against the disabled and blind. Burns - Vidlak, 939 F. Supp at 771-773. That Hawaii imposed its more stringent eligibility rules on all disabled individuals while Massachusetts only imposes its more restrictive rules on
21

those aged 65 and over is a distinction without a difference. As the regulations both implicitly and explicitly make clear, it is just as illegal to discriminate against “any class of individuals with disabilities” as it is to discriminate against any one individual or all individuals with disabilities. 28 C.F.R. §35.130(b)(1)(iv) and (b)(8). Any doubt about this point was removed by the recent Supreme Court decision in Olmstead v. L.C., 527 U.S. at 598 n.10,119 S. Ct. at 2186 n.10. The Court characterized the argument that a plaintiff cannot prove discrimination by demonstrating that one member of a protected group has been favored over another member of that group is “incorrect as a matter of precedent and logic.” Id; see also Boots v Northwestern Mut. Life Ins. Co., 77 F. Supp. 2d 211, 218-219 (D.N.H. 1999). (“The point of [anti-discrimination] statutes is to eliminate classifications based upon irrelevant criteria. Certainly no one would suggest that because an employer is not required to provide a certain benefit, Title VII would allow it to provide that benefit to Asian employees and not to black or white employees”). So, too, that Massachusetts included disabled individuals under age 65 within the scope of its more liberal eligibility rules hardly justifies or makes any less discriminatory the exclusion of disabled individuals aged 65 and over.
3. The Obligation To Make Reasonable Modifications: The obligation to make reasonable modifications in rules, policies or procedures that operate to deny or impede that ability of qualified individuals with the disabilities to gain equal access to and enjoyment of benefits, services and opportunities has been the cornerstone of disability discrimination law. See School Bd. Of Nassau County v. Arline, 480 U.S. 273, 287-88 and n. 17 (1987) (describing the reasonable accommodation construct as “well established”). The reasonable accommodation analysis is applied not only with respect to rules
22

or policies that directly operate to disadvantage individuals with disabilities, but more importantly, with respect to rules or practices that, while facially neutral, have a discriminatory impact on individuals with disabilities. Alexander v. Choate, 469 U.S. 287, 295-97 (1995), Helen L. v. DiDario, 46 F. 3d 325, 334-35 (3d Cir. 1995); United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities 17 (1983). 28 C.F.R. §35.130(b)(7) simply reiterates that this well-established approach to disability discrimination analysis applies in the public services context.
Because the disparate Medicaid eligibility rules applied to disabled individuals aged 65 and over clearly and directly impede the ability of this group to obtain equal access to the benefits and services of the medical assistance program, §35.130(b)(7) obligates the defendants to make reasonable modifications in their polices, practices and procedures. Because this case involves disparate treatment, the required reasonable modification is direct and straightforward— affording disabled seniors in need of personal care services access to medical assistance based upon the same financial eligibility rules (including the one-time deductible rule) as disabled individuals under 65 years of age. Helen L, 46 F. 3d at 338; Makin v. State of Hawaii, Civ. No. 98-00997DAE, slip op. at 38-40 (D.Haw. 1999) (“Another argument is that forcing the State to provide services to all qualified individuals would force it to reconsider the program, its eligibility criteria, services provided, and whether to terminate it. This argument lacks substance because it fails to show that the modification itself would alter the program”) (copy included in Addendum of Authorities). As discussed above, such a modification of program rules would neither fundamentally alter the program nor impose an undue burden on the defendants. See above at pp 17-20.
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Whether analyzed under the integration mandate, disparate treatment, or reasonable accommodation provisions of 28 C.F.R. §35.130, the defendants differential eligibility rules which discriminate against elderly disabled individuals in need of such services to remain in the community violate Title II of the ADA. Certainly plaintiffs have made a sufficient showing of likelihood of success to justify the narrowly tailored preliminary injunctive relief sought by this motion. II The Balance of Harms Tips Decidedly In Favor of Granting The Requested Relief
The harm to the plaintiffs if an injunction is not granted is palpable. Without the requested relief, Mr. Hermanson will not be able to leave the nursing home and be reunited with his wife and family. The handicapped accessible unit for which he and his wife have been approved effective October 1, 2000 will be lost and given to someone else. As his affidavit and those of his family members document, the harm attendant upon the unnecessary institutionalization to which he has been subjected is truly irreparable. Mr. Hermanson has been separated from his wife of 52 years and his family. He and his wife have had to abandon their life-long home. His wife has moved in with one of their children. Perhaps most significantly, in the nursing home, Mr. Hermanson is condemned to a life of isolation, boredom and inactivity. He literally spends twenty-two hours per day in bed. During his visits at home, he is up and about most of the day, going for “walks” in his wheelchair with his wife and other family members, going for car rides and visits to neighbors and friends, and otherwise engaging in activity and interaction with others. And, in the handicap accessible unit he will even be able to help with daily tasks like cooking or washing the dishes. As mundane as these activities may sound, for Mr. Hermanson, who in the nursing home is not able to do anything at all, the ability
24

to help out around the house will provide him with a measure of self-worth that has been absent for too long.
Both Helen Kopec and Della Wimes have been in nursing homes and their experiences parallel those of Mr. Hermanson. Both are at home now with assistance from personal care attendants paid for by Medicaid. However, on October 1, 2000 their current six month period of eligibility for Medicaid will end and they will have to satisfy large deductible before qualifying again. Because they do not have back bills with which to satisfy the deductible, their Medicaid will lapse. Without Medicaid, they like Mr. Hermanson before them, will be unable to pay their personal care attendants and, without their personal care attendants, neither Ms. Kopec nor Ms. Wimes can even get out of bed. They will be forced to leave their homes and return to a nursing home where they will no longer be able to exercise control and direction over their lives, but will instead be subject to the direction, control and schedule of the nursing home staff.
Not surprisingly, courts which have considered the question have easily concluded that “[t]he possibility that the plaintiffs would be forced to enter nursing homes constitutes irreparable harm.” McMillan v. McCrimon, 807 F.Supp. 475 (C.D. Ill. 1992); see also, Kathleen S. v. Department of Pub. Welfare, 10 F.Supp. 2d 476, 481 (E.D. Pa. 1998)(“these class members are irreparably injured every day they remain unnecessarily segregated in violation of the ADA”); Duggan v. Bowen, 691 F. Supp. 1487, 1498 (D.D.C. 1988); Lynch v. Maher, 507 F. Supp. 1268, 1271 (D.Conn. 1981); Daniel B. v. White, 1991 U.S. Dist. LEXIS 4925 at 7 (E.D. Pa. 1991)(“Continued institutionalization of the class members, even for a short period of time, will cause irreparable harm”). Plaintiffs easily satisfy the irreparable injury requirement for
25

issuance of a preliminary injunction.
Measured against the severe and irreparable harm that will befall the plaintiffs in the
absence of court intervention, the hardship to the defendants is virtually non-existent.
If Ms. Kopec and Ms. Wimes lose their coverage for personal care services in the
community, they will be forced to enter a nursing home to obtain such services. They will
immediately qualify for Medicaid upon entering a nursing home. Based upon their respective
incomes and conservatively assuming the cost of their nursing home care at the public pay rate to be $105 per day,5 the cost to the defendants if Ms. Wimes is forced to go into a nursing home
would be at least $2265 per month. For Ms. Kopec the cost to the state would be at least $2494.6 Were the injunction granted, the cost to the defendants of providing personal care
services to Ms. Wimes and Ms. Kopec in the community is $2422.50 and $3277.50 per month,
respectively.
Mr. Hermanson is not currently on Medicaid. However, his care at the Holyoke
Soldiers Home is paid for by the Commonwealth of Massachusetts which operates the Soldiers
Home through the defendant Executive Office of Health and Human Services. M.G.L. ch. 6A,
5 The average public pay rate (rate Medicaid pays) for nursing home care in Massachusetts in 1995 was $94.25 per day. J.M. Weiner and D.G. Stevenson, Long-Term Care for the Elderly and State Health Policy at 11 (Table 3)(Urban Institute 1997) (copy included in Addendum of Authorities). Adjusted for inflation, the cost today would be $105. Because health care inflation has generally exceeded that of the Consumer Price Index, this $105 per day is probably understated.
6 The difference in cost is due to the difference in income between Ms. Wimes and Ms. Kopec. Under current Medicaid regulations, individuals in long term care must contribute all but $60 of their countable income towards the cost of their care each month. 130 C.M.R. §§520.025-520.26. These calculations do not include the possibility that either or both of these individuals would be entitled to a deduction for maintenance of their homes. 130 C.M.R. §520.026(D). If so, the state would pay the entire $3000 cost for Ms. Kopec and $2811 for Ms. Wimes.
26

§16; 2000 Mass. Acts, c. 159, line items 4190-0100 et seq. Mr. Hermanson pays $39.00 per month towards his room and board, with the balance of the cost (presumably in excess of $3000 per month) borne by the Commonwealth. Mr. Hermanson has been evaluated to be in need of 56 hours per week of personal care services by Stavros Independent Living Center, the agency designated by the defendant Division of Medical Assistance to conduct such reviews in this part of the state. The defendants would save approximately $850 per month were they to provide medical assistance to Mr. Hermanson so that he could obtain home-based personal care services.
Granting the requested relief will be essentially a break even situation for the defendants. However, even if it were, on balance to cost the defendants a few hundred dollars a month more to provide the plaintiffs with community-based care, that would hardly be a hardship. The combined budget for the operation of the various Medicaid programs run by the defendant Division of Medical Assistance (MassHealth, CommonHealth and related programs) exceeds $2,000,000,000 per year. 2000 Mass. Acts, c.159, line items 4000-0430, - 0450, -0500, -0600, -0700, -0860, -0866, -0870, and -0880. The small amount of money of issue in this motion does not even amount to a drop in the bucket. The balance of hardships tips decidedly in favor of the plaintiffs. Banks v. Trainor, 525 F.2d 837, 842 (7th Cir. 1975); Becker v. Toia, 439 F. Supp. 324, 336 (S.D.N.Y. 1977); Healy v. Commissioner of Public Welfare, 414 Mass. 18, 28, 605 N.E. 2d 279, 285 (1992).
CONCLUSION For the foregoing reasons, plaintiffs respectfully request that this Court enter a preliminary injunction enjoining the defendants from failing or refusing to provide the plaintiffs
27

with Medicaid coverage on the same terms and conditions as it is provided to disabled

individuals under age sixty-five pending the hearing and determination of this action.

Dated: September 12, 2000
Verne Vance BBO#:507540 Foley, Hoag and Eliot, LLP One Post Office Square Boston, MA 02109-2170 (617) 832-1000 Fax: (617) 832-7000

__________________________ J. Paterson Rae BBO#: 410520 Peter Benjamin BBO#: 037240 Marion Rosenau BBO#: 557048 Attorneys for Plaintiffs Western Mass. Legal Services 127 State Street, 4th fl. Springfield, MA 01103-1944 (413) 781-7814 (413) 746-3221 fax
Stephanie Krantz BBO#:564559
Matthew Engel BBO#:547465 Disability Law Center 22 Green Street Northampton, MA 01060 (413) 584-6337 Fax: (413) 586-5711
28

Steven A. Hitov National Health Law Program 1101 14th Street, N.W., Suite 405 Washington, DC 20005 (202) 289-7661 Fax: (202) 289-7724

Jan Steifel BBO#:544134 Western Mass. Legal Services 20 Hampton Avenue, Suite 100 Northampton, MA 01060 (413) 584-4034 Fax: (413) 585-0418

29

 
 UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_____________________________

ERNAST HERMANSON, et al. )

Civ. No. 00-CV-30156 MAP

Plaintiffs

)

v.

)

STIPULATION OF SETTLEMENT

)

COMMONWEALTH OF

)

MASSACHUSETTS, et al.

)

Defendants

)

______________________________)

Whereas the plaintiffs commenced this action challenging certain of the defendant’s

MassHealth financial eligibility rules which plaintiffs claimed discriminated against disabled

elders in need of personal care services;

Whereas the defendants have promulgated new MassHealth financial eligibility rules for

elders in need of personal care services (130 C.M.R. §520.013(B)) which significantly expand

the financial eligibility of elders in need of personal care services;

Whereas the defendants have implemented the new rules through the development of a

new MassHealth application form; consumer information booklet; staff instructions and staff

training; and

Whereas the plaintiffs believe that the newly implemented rules constitute a fair

resolution of plaintiffs claims;

Therefore, the parties hereby stipulate and agree that this action be dismissed upon the

following terms and conditions:

1. The defendants will provide the plaintiffs with quarterly monitoring reports over a 12

month period, due on April 1, 2003; July 1, 2003; October 1, 2003; and January 1, 2004. These

reports will contain the following information:

A) How many elders completed and submitted a PCA supplement? Of these:
1. How many of these qualified for the PCA disregard? 2. How many were denied the disregard? 3. How many appealed the denial and their appeal status?
B) How many total elders are coded “H”? Those coded “H” are elders who, regardless of income, have been identified as receiving PCA services and also those who qualified for the disregard by submitting a PCA supplement. Those coded “H” will receive the PCA disregard whenever their incomes exceed 100% FPL. Of these (after being coded “H”): 1. How many were authorized to receive all requested PCA services? 2. How many were authorized to received modified services (fewer than requested)? 3. How many were denied authorization for all requested PCA services? 4. How many were approved for day PCA but denied for night PCA? 5. How many were approved for night PCA but denied for day PCA? 6. How many appeals and their appeal status? 7. How many have not applied for authorization yet?
C) Number of those coded “H” broken down by income: 1. income up to 100% 2. income between 100 and 133% 3. income over 133%
D) Number of those coded “H” with deductibles (spenddowns)— 1. less that $250 2. $250 - $750 3. $750 – $1500 4. $1500 – $2500 5. $2500 - $3500 6. over $3500
E) How many coded “H” lost this coding and were denied eligibility due to their failure to apply for PCA authorization within the 90 days prescribed in the regulations?
2. Upon receipt of such reports by plaintiffs, DMA agrees to discuss with plaintiffs any
issues raised by such reports. In the event of a delay in the provision of the agreed upon
monitoring information, the date for the dismissal of this action will be extended until all of the
information has been provided. The parties will notify the Court in the event of any such
extension.

3. The parties have also reached agreement regarding plaintiffs’ claim for attorneys fees and costs, as reflected in a separate agreement on fees. The attorneys fees agreement will remain in effect until satisfied and is not superseded by this agreement.
4. Upon execution of this Agreement, the parties shall promptly request that the Court place the case on inactive status during the monitoring period. Within 30 days after the conclusion of the monitoring period, the parties shall voluntarily dismiss the Action by filing a stipulation of dismissal with prejudice, absent any intervening issues regarding the implementation and operation of the changes in the PCA rules or the provision of the monitoring information as specified above.
5. This Agreement is the entire agreement between the parties concerning the subject matters hereof and supersedes all prior oral and written agreements and discussions as to the matters addressed herein.
6. This Agreement shall not be enforceable by contempt or by a breach of contract action. In the event of a dispute regarding compliance with this agreement or the implementation and operation of the PCA rule changes upon which this agreement is predicated, the aggrieved party’s exclusive remedy shall be to move this Court for an order restoring the action to the Court’s active calendar.
7. Nothing in this Agreement is intended, nor should it be construed, to constitute an admission of liability by any party or a waiver of any sovereign immunity the Commonwealth may have. This Agreement is not intended nor shall it be construed to preclude DMA from promulgating or amending regulations or field operations memoranda, policies, or other sub-regulatory materials as DMA deems appropriate. However, in the event plaintiffs determine that such changes in policies or procedures

constitute a material change in the implementation or operation of the PCA program

changes upon which this agreement is predicated, plaintiffs may move to have the case

restored to the active calendar for disposition on its merits.

8. Each party represents that it has not relied upon any statement of any other

party except those statements set forth in this Agreement. This Agreement may be

amended only by an agreement in writing, signed by the parties or their counsel.

9. The parties represent that each of them has cooperated in the drafting and

preparation of this Agreement. Hence, no ambiguity in this Agreement shall be

construed against any of them. This Agreement is executed as, and shall have the

effect of, an instrument under seal. It shall be governed by and construed in

accordance with the laws of the Commonwealth of Massachusetts.

For all Plaintiffs,

For all Defendants,

THOMAS F. REILLY ATTORNEY GENERAL

___________________________ J. Paterson Rae, BBO#410520
Peter Benjamin, BBO#037240 Western Mass. Legal Services
127 State Street, 4th fl. Springfield, MA 01103-1944 (413) 781-7814
Stefanie Krantz, BBO#564559
Disability Law Center 30 Industrial Drive East Northampton, MA 01060 (413) 584-6337

____________________________ Peter T. Wechsler,
BBO#550339 Government Bureau One Ashburton Place, Room
2019 Boston, Massachusetts 02108 (617) 727-2200, ext. 2083
William P. O’Neill, BBO#379745 Western Massachusetts
Office 436 Dwight Street Springfield, MA 01103 (413) 784-1240, Ext. 35

So Ordered: Entered: ___________________

____________________________ Michael A. Ponsor U.S. District Judge

 
 Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 1 of 14
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:00−cv−30156−MAP

CLOSED

Hermanson, et al v. The Commonwealth, et al Assigned to: Judge Michael A. Ponsor Demand: $0 Cause: 28:1983 Civil Rights
Plaintiff
Ernast Hermanson

Date Filed: 09/12/2000 Date Terminated: 02/10/2003 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by J. Paterson Rae Center for Public Representation 22 Green Street Northampton, MA 01060 413−587−6265 Fax: 413−586−5711 Email: prae@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jan Steifel Western Mass. Legal Services 20 Hampton Ave., Suite 100 Northampton, MA 01060 413−584−4034 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Tenney Rosenau Western Mass. Legal Services One Monarch Place, Suite 400 Springfield, MA 01144 413 781−7814 Fax: 413−746−3221 Email: mrosenau@wmls.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Engel Disability Law Center, Inc. 32 Industrial Drive East Northampton, MA 01060 413−584−6337 Fax: 413−584−2976 Email: mengel@dlc−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter R. Benjamin Benjamin &Bers 382 North Main Street Suite 207 East Longmeadow, MA 01028 413−348−1951 Email: peter@benjaminbers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie L. Krantz Disability Law Center 30 Industrial Drive East

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 2 of 14

Northampton, MA 01060 413−584−6337 Fax: 413−584−2976 Email: skrantz@dlc−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Hitov National Health Law Program, Inc. Suite 405 1101 14th St., N.W. Washington, DC 20005 202−289−7661 Fax: 202−289−7724 Email: mitov@healthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Verne W. Vance , Jr. Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210−2600 617−832−1000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Robert O'Donnell

represented by J. Paterson Rae (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jan Steifel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marion Tenney Rosenau (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Engel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter R. Benjamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stefanie L. Krantz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Hitov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Verne W. Vance , Jr. (See above for address)

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 3 of 14

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Helen Kopec

represented by J. Paterson Rae (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jan Steifel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marion Tenney Rosenau (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Engel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter R. Benjamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stefanie L. Krantz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Hitov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Verne W. Vance , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Della Wimes

represented by J. Paterson Rae (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jan Steifel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marion Tenney Rosenau (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Engel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 4 of 14

Plaintiff Florence Ashley on behalf of themselves and all persons similarly situated,
Plaintiff Stavros Center for Independent Living

Peter R. Benjamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie L. Krantz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Hitov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Verne W. Vance , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by J. Paterson Rae (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jan Steifel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Tenney Rosenau (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Engel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter R. Benjamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie L. Krantz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Hitov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Verne W. Vance , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 5 of 14

J. Paterson Rae (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jan Steifel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marion Tenney Rosenau (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Engel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter R. Benjamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stefanie L. Krantz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Hitov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Verne W. Vance , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Massachusetts Senior Action Council, Inc.,

represented by J. Paterson Rae (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jan Steifel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marion Tenney Rosenau (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Engel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter R. Benjamin (See above for address) LEAD ATTORNEY

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 6 of 14
ATTORNEY TO BE NOTICED
Stefanie L. Krantz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Hitov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Verne W. Vance , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Paul Argeo Cellucci in his capacity as Governor of Massachusetts,
Defendant The Division of Medical Assistance,
Defendant Wendy E. Warring in her capacity as Commissioner of the Division of Medical Assistance,

represented by Cynthia J. Gagne Attorney General's Office 1350 Main Street Springfield, MA 01103 413/784−1240 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter T. Wechsler Dept. of Justice / Civil / Federal Program Branch 20 Massachusetts Avenue NW Room 7111 Washington, DC 20530 202−514−2705 Fax: 202−616−8470 Email: peter.wechsler@usdoj.gov TERMINATED: 02/06/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cynthia J. Gagne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter T. Wechsler (See above for address) TERMINATED: 02/06/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cynthia J. Gagne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter T. Wechsler (See above for address) TERMINATED: 02/06/2003

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 7 of 14

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
the Executive Office of Health and Human Services

represented by Cynthia J. Gagne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter T. Wechsler (See above for address) TERMINATED: 02/06/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
William D. O'Leary in his capacity as Secretary of the Executive Office of Health and Human Services,

represented by Cynthia J. Gagne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter T. Wechsler (See above for address) TERMINATED: 02/06/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Commonwealth of Massachusetts

represented by Cynthia J. Gagne (See above for address) TERMINATED: 06/19/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter T. Wechsler (See above for address) TERMINATED: 02/06/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William P. O'Neill Office of the Attorney General Western Massachusetts Division 1350 Main Street Springfield, MA 01103−1629 413−784−1240 Fax: 413−784−1244 Email: william.o'neill@ago.state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Frank Kachinsky

represented by J. Paterson Rae (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jan Steifel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 8 of 14
Marion Tenney Rosenau (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter R. Benjamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stefanie L. Krantz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Hitov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Verne W. Vance , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/12/2000 09/12/2000
09/12/2000
09/12/2000
09/12/2000 09/12/2000 09/12/2000 09/12/2000 09/12/2000 09/12/2000 09/12/2000 09/13/2000
09/15/2000

# Docket Text
1 Complaint filed. Case assigned to Judge: Ponsor. Receipt #: 304294 Amount:$ 150.00. Fee Status: Paid (mgl) (Entered: 09/13/2000)
2 Motion by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior for temporary restraining order and/or preliminary injunction , filed. c/s (mgl) (Entered: 09/13/2000)
3 Motion by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior for permission to file memorandum of law in excess of 20 pages , filed. c/s (mgl) (Entered: 09/13/2000)
4 Proposed Addendum of Authorities by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior received for filing. (mgl) (Entered: 09/13/2000)
5 Affidavit of Ernast Hermanson , re: , filed. (mgl) (Entered: 09/13/2000)
6 Affidavit of Sheila Chabot , re: Ernast Hermanson, filed. (mgl) (Entered: 09/13/2000)
7 Affidavit Edith Hermanson , re: Ernast Hermanson, filed. (mgl) (Entered: 09/13/2000)
8 Affidavit of Della Wimes , re: , filed. (mgl) (Entered: 09/13/2000)
9 Affidavit of Daughter of Della Wimes, re: Della Wimes , filed. (mgl) (Entered: 09/13/2000)
10 Affidavit of Glafyra Ennis− Yentsch , re: , filed. (mgl) (Entered: 09/13/2000)
11 Affidavit of Helen Kopec , re: , filed. (mgl) (Entered: 09/13/2000)
Summons issued for The Commonwealth, Paul Argeo Cellucci, Division of Medical, Wendy E. Warring, Executve Office, William D. O'Leary (mef) (Entered: 09/13/2000)
Judge Michael A. Ponsor . Endorsed Order entered granting [3−1] motion for permission to file memorandum of law in excess of 20 pages . [EOD Date 9/15/00] (laf) (Entered: 09/15/2000)

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 9 of 14

09/15/2000 09/19/2000 09/21/2000 09/26/2000 09/26/2000 09/26/2000 09/27/2000 09/27/2000 10/16/2000 10/31/2000
11/15/2000 11/16/2000 11/20/2000 12/12/2000
12/12/2000 12/12/2000

12 Memorandum of law by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior re: In support of Motion for TRo filed. (laf) (Entered: 09/15/2000)
13 Judge Michael A. Ponsor . Order entered, Motion hearing set for 10:30 9/28/00 for [2−1] motion for temporary restraining order and/or preliminary injunction , Response to motion set to 9/25/00 for [2−1] motion for temporary restraining order and/or preliminary injunction . [EOD Date 9/19/00] (laf) (Entered: 09/19/2000)
14 Notice of appearance of attorney for Paul Argeo Cellucci, Division of Medical, Wendy E. Warring, Executve Office, William D. O'Leary, Mass., Commonwealth by Peter Wechsler filed. (mef) (Entered: 09/06/2001)
15 Notice of change of address filed by Peter Benjamin by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior . (mef) (Entered: 09/26/2000)
16 Notice of change of address filed by J. Paterson Rae by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior . (mef) (Entered: 09/26/2000)
NOTIFIED BY COUNSEL − MOTION FOR PI HAS BEEN RESOLVED − HEARING ON 11/28/00 AT 10:30 CANCELLED (laf) (Entered: 09/27/2000)
17 Return of service executed by certified mail as to Paul Argeo Cellucci, Wendy E. Warring, w/s/o 9/14/00 filed. Answer due on 10/4/00 for Wendy E. Warring and Paul Argeo Cellucci (mef) Modified on 09/27/2000 (Entered: 09/27/2000)
18 Return of service executed by certified mail as to Division of Medical, Executve Office, William D. O'Leary, Mass., Commonwealth w/s/o on 9/26/2000 filed. Answer due on 10/16/00 for Mass., Commonwealth, William D. O'Leary, Executve Office and Division of Medical (mef) (Entered: 09/27/2000)
19 Assented to motion by Paul Argeo Cellucci, Division of Medical, Wendy E. Warring, Executve Office, William D. O'Leary, Mass., Commonwealth to extend time to November 15, 2000 to answer complaint , filed. (bah) (Entered: 10/16/2000)
20 Amended complaint by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior filed. (Answer due 11/10/00 for Mass., Commonwealth, for William D. O'Leary, for Executve Office, for Wendy E. Warring, for Division of Medical, for Paul Argeo Cellucci ) . Amended complaint amends [1−1] complaint by adding Frank Kachinsky as a Pltf. (mef) (Entered: 11/01/2000)
21 Answer by Paul Argeo Cellucci, Division of Medical, Wendy E. Warring, Executve Office, William D. O'Leary, Mass., Commonwealth to complaint , filed. (mgl) (Entered: 11/15/2000)
22 Judge Michael A. Ponsor . ORDER entered: referral to Mag. Judge Kenneth P. Neiman for a Rule 16 scheduling conf. . (mef) (Entered: 11/16/2000)
23 Mag. Judge Kenneth P. Neiman . Notice of Conference: Set Pretrial scheduling conf. for 2:30 P.M. on 12/18/2000; cc/cl. . (mef) (Entered: 11/21/2000)
24 Joint statement by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Paul Argeo Cellucci, Division of Medical, Wendy E. Warring, Executve Office, William D. O'Leary, Mass., Commonwealth, Frank Kachinsky , re: Rule 16 scheduling conf., filed. (sealed) (Entered: 12/12/2000)
25 Rule 16.1 Certification filed by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Frank Kachinsky . (sealed) (Entered: 12/12/2000)
25 Rule 16.1 Certification filed by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Frank Kachinsky . (sealed) (Entered: 12/12/2000)

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 10 of 14

12/18/2000 12/18/2000 12/18/2000
12/18/2000 12/18/2000 12/18/2000 12/19/2000 02/28/2001 04/02/2001 04/02/2001 04/09/2001 04/13/2001
04/13/2001
04/13/2001 04/13/2001 04/18/2001 04/20/2001 04/20/2001 04/20/2001 04/20/2001

Scheduling conference held . (mef) (Entered: 12/19/2000)
26 Mag. Judge Kenneth P. Neiman . Clerk's Notes: re: Counsel present for scheduling conf. Order to issue. Court Reporter: Tape. (mef) (Entered: 12/19/2000)
27 Mag. Judge Kenneth P. Neiman . Scheduling Order entered. Set discovery re: completion of depositions to be completed by 4/1/2001. , Set Ds' motion to join the U.S. Dept. of Health and Human Services to be filed by 3/16/01. Set Ps' motion for class certification and Ds' motion to dismiss filing deadline for 4/16/2001. Set Case Management Conf. for 10:00 A.M. on 4/20/2001 before Mag. Judge Kenneth P. Neiman; cc/cl. [EOD Date 12/19/00] (mef) (Entered: 12/19/2000)
Mag. Judge Kenneth P. Neiman . Endorsed Order entered At the req. of Counsel [2−1] motion for TRO and/or P.I. is WITHDRAWN; cc/cl. . [EOD Date 12/19/00] (mef) (Entered: 12/19/2000)
Mag. Judge Kenneth P. Neiman . Endorsed Order entered granting [19−1] motion to ext. time to November 15, 2000 to answer complaint; cc/cl. [EOD Date 12/19/00] (mef) (Entered: 12/19/2000)
CASE NO LONGER REFERRED TO Mag. Judge Kenneth P. Neiman . (bah) (Entered: 09/26/2001)
28 Rule 16.1 Certification filed by Division of Medical Assistance. (mef) (Entered: 12/19/2000)
29 Notice of appearance of attorney for Mass., Commonwealth by William P. O'Neil, filed. (mgl) (Entered: 02/28/2001)
30 Motion to compel answers to intgs. , and for sanctions , filed. Referred to Mag. Judge Kenneth P. Neiman (jcs) (Entered: 04/03/2001)
31 Memorandum in support of [30−1] motion to compel answers to intgs., [30−2] motion for sanctions , filed. (jcs) (Entered: 04/03/2001)
32 Response by Mass., Commonwealth in opposition to [30−1] motion to compel answers to intgs. and request to defer ruling on such motion, filed. c/s (mgl) (Entered: 04/09/2001)
33 Motion by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Frank Kachinsky to certify class action filed. Referred to Mag. Judge Kenneth P. Neiman (mef) (Entered: 04/16/2001)
34 Memorandum by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Frank Kachinsky in support of [33−1] motion to certify class action , filed. (mef) (Entered: 04/16/2001)
35 Ps' Affidavit of James Kruidenier in support of [33−1] motion to certify class action , filed. (mef) (Entered: 04/16/2001)
36 Ps' Affidavits of Class Members in support of [33−1] motion to certify class action , filed. (mef) (Entered: 04/16/2001)
37 Ps' Affidavit of J. Paterson Rae in support of [30−1] motion to compel answers to intgs., [30−2] motion for sanctions filed. (mef) (Entered: 04/18/2001)
Case management conference held. (bah) (Entered: 04/23/2001)
38 Mag. Judge Kenneth P. Neiman. Clerk's Notes re: case management conf. Order to issue. Court Reporter: tape (bah) (Entered: 04/23/2001)
Mag. Judge Kenneth P. Neiman. Endorsed Order mooting [30−1] motion to compel answers to ints, ENTERED, cc:cl. "But for the question of attorney's fees, the motion is deemed MOOT as of today." (bah) (Entered: 04/23/2001)
39 Mag. Judge Kenneth P. Neiman. Scheduling Order setting Ds' opp to Ps' mot for class cert., as well as Ps' req. for attys' fees filed by 4/27/01; Ps' reply brief re: motion for class cert due 5/4/01; all remaining Phase II disc., excluding expert disc.

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 11 of 14

04/27/2001 04/27/2001 04/27/2001 05/04/2001 05/04/2001 05/10/2001 05/10/2001 05/10/2001
05/15/2001 05/25/2001 06/14/2001
06/15/2001
06/19/2001 07/31/2001 07/31/2001
08/14/2001 08/14/2001

compl. by 11/1/01; case mgmt conf. set for 2:00 11/7/01 before M/J Neiman, ENTERED, cc:cl. (bah) (Entered: 04/23/2001)
40 Defendants' Response in opposition to [33−1] motion to certify class action , filed. (jcs) (Entered: 04/27/2001)
41 Defendants' Memorandum in opposition to [30−1] motion to compel answers to intgs. , filed. (jcs) (Entered: 04/27/2001)
42 Affidavit of William P. O'Neil , re: [30−1] motion to compel answers to intgs. , filed. (jcs) (Entered: 04/27/2001)
43 Memorandum by Ernast Hermanson, et al., in support of [33−1] motion to certify class action , filed. c/s (mgl) (Entered: 05/04/2001)
44 Motion by Ernast Hermanson, et al., for permission to file a reply and declaration in response to dft's oppostion to award of fees on motion to compel , filed. Referred to Mag. Judge Kenneth P. Neiman c/s (mgl) (Entered: 05/04/2001)
Mag. Judge Kenneth P. Neiman. Endorsed Order granting [44−1] motion for permission to file a reply and declaration in response to dft's oppostion to award of fees on motion to compel, ENTERED, cc:cl. (bah) (Entered: 05/11/2001)
45 Reply by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Frank Kachinsky to response to [30−2] motion for sanctions, filed, c/s. (bah) (Entered: 05/11/2001)
46 Affidavit of J. Paterson Rae on behalf of Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior and Frank Kachinsky in support of [30−2] motion for sanctions, filed. (bah) (Entered: 05/11/2001)
47 Mag. Judge Kenneth P. Neiman. Memorandum and Order granting [30−2] motion for sanctions, ENTERED, cc:cl. "...Accordingly, the court will ALLOW the motion and award a total of $2,137.50 in fees." (bah) (Entered: 05/18/2001)
48 Judge Michael A. Ponsor . Notice of Hearing/conference: Motion hearing before Judge Michael A. Ponsor set for 11:00 6/15/01 for [33−1] motion to certify class action . (laf) (Entered: 05/25/2001)
49 Joint motion by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Paul Argeo Cellucci, Division of Medical, Wendy E. Warring, Executve Office, William D. O'Leary, Mass., Commonwealth, Frank Kachinsky to continue the class certification hearing , filed. Referred to Mag. Judge Kenneth P. Neiman . (mgl) (Entered: 06/14/2001)
Judge Michael A. Ponsor . Endorsed Order entered granting [49−1] joint motion to continue the class certification hearing, Motion hearing set for 3:00 8/2/01 for [33−1] motion to certify class action . [EOD Date 6/15/01] (laf) (Entered: 06/15/2001)
50 Notice of withdrawal of counsel by attorney Cynthia J. Gagne for Mass., Commonwealth filed. (mef) (Entered: 06/19/2001)
51 Parties Joint motion to cont. the class certification motion hearing set for 8/02/2001 and to schedule a status conf. for 8/16, 17, 20 or 21, 2001 filed. . (mef) (Entered: 07/31/2001)
Judge Michael A. Ponsor . Endorsed Order entered granting [51−1] joint motion to cont. the class certification motion hearing set for 8/02/2001, Motion hearing before Judge Michael A. Ponsor set for 2:00 8/20/01 for [51−1] joint motion to cont. the class certification motion hearing set for 8/02/2001 . [EOD Date 7/31/01] (laf) (Entered: 07/31/2001)
52 Parties Joint motion to cont. the status conf. set for 8/20/2001 to 9/06/2001 at 11:30 A.M. filed. . (mef) (Entered: 08/14/2001)
Judge Michael A. Ponsor . Endorsed Order entered granting [52−1]; cc/cl. Motion hearing before Judge Michael A. Ponsor reset to 11:30 A.M. on 9/6/2001 for

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 12 of 14

09/04/2001
09/06/2001 09/06/2001 09/06/2001
10/17/2001 10/24/2001 11/26/2001 12/12/2001 12/13/2001 02/07/2002 02/28/2002 02/28/2002
03/05/2002
03/05/2002
04/25/2002 05/02/2002 05/07/2002
05/08/2002 05/15/2002 05/17/2002

[33−1] motion to certify class action . [EOD Date 8/15/01] (mef) (Entered: 08/15/2001)
53 Joint Status report by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Paul Argeo Cellucci, Division of Medical, Wendy E. Warring, Executve Office, William D. O'Leary, Mass., Commonwealth, Frank Kachinsky , filed. (sealed) (Entered: 09/04/2001)
54 Judge Michael A. Ponsor . Clerk's Notes: re: Status Conference Court Reporter: A. Moran (laf) (Entered: 09/06/2001)
Status conference held . Order to issue (laf) (Entered: 09/06/2001)
Judge Michael A. Ponsor . Oral Order, set status conference for 2:00 12/10/00 Scheduling Order vacated and return for further status on 12/10/01 before Judge Michael A. Ponsor . (laf) (Entered: 09/06/2001)
55 Notice of Conference ISSUED, cc:cl. reset case mgmt conf. for 11:30 on 11/9/01 before Mag. Judge Kenneth P. Neiman . (bah) (Entered: 10/18/2001)
56 Mag. Judge Kenneth P. Neiman. Notice of Cancellation, ISSUED, cc:cl. Deadline terminated: case management conf. set for 11/09/01. (bah) (Entered: 10/24/2001)
57 Judge Michael A. Ponsor . Notice of Hearing/conference: reset status conference for 11:30 12/12/01 before Judge Michael A. Ponsor . (laf) (Entered: 11/26/2001)
58 Judge Michael A. Ponsor . Clerk's Notes: re: Status Conference held; status report by 3/1/02, order to issue. Court Reporter: A. Moran (mgl) (Entered: 12/12/2001)
59 Judge Michael A. Ponsor . Further Order entered, Status report due on 3/1/02 . [EOD Date 12/14/01] cc/cl (mgl) (Entered: 12/14/2001)
60 Suggestion of death as to Helen Kopec, filed. (bah) (Entered: 02/07/2002)
Terminated document: mooting [51−2] joint motion to schedule a status conf. for 8/16, 17, 20 or 21, 2001 Requested by LAF. (laf) (Entered: 02/28/2002)
61 Joint Status report by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Paul Argeo Cellucci, Division of Medical, Wendy E. Warring, Executve Office, William D. O'Leary, Mass., Commonwealth, Frank Kachinsky , filed. (mgl) (Entered: 02/28/2002)
Judge Michael A. Ponsor . Endorsed Order entered denying [33−1] motion to certify class action. DENIED, without prejudice. [EOD Date 3/5/02] cc/cl (mgl) (Entered: 03/05/2002)
Judge Michael A. Ponsor . Endorsed Order entered approving [61−1] status report, further Status report due on 5/3/02 under the circumstances, the court has DENIED plaintiff's pending motion for class certication, without prejudice. The motion will be reconsidered if necessary. [EOD Date 3/5/02] cc/cl (mgl) (Entered: 03/05/2002)
62 Notice of change of address filed by Stephanie Krantz . (mgl) (Entered: 04/25/2002)
63 Parties Joint Status Report filed. (mef) (Entered: 05/02/2002)
Judge Michael A. Ponsor . Endorsement of [63−1] status report. CONFIRM. The clerk will schedule a status conference for July 2002. cc/cl (mgl) (Entered: 05/07/2002)
64 Judge Michael A. Ponsor . Notice of Hearing/conference: set status conference for 3:00 7/12/02 before Judge Michael A. Ponsor . (laf) (Entered: 05/08/2002)
65 Pltfs' STIPULATED (Motion) to cont. the status conf. set for 7/12/2002 at 3:00 P.M. , filed. (mef) (Entered: 05/15/2002)
Judge Michael A. Ponsor . Endorsed Order entered granting [65−1]; cc/cl. Reset Status Conf. for 2:00 P.M. on 7/29/2002 before Judge Michael A. Ponsor . [EOD

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 13 of 14

07/29/2002 07/29/2002 07/30/2002
10/09/2002 10/09/2002 10/09/2002 10/11/2002 10/28/2002 10/28/2002 10/28/2002 10/29/2002
10/31/2002 12/18/2002 12/18/2002 01/31/2003 01/31/2003 02/03/2003 02/05/2003 02/06/2003

Date 5/17/02] (mef) (Entered: 05/17/2002)
66 Judge Michael A. Ponsor . Clerk's Notes: re: status conf Court Reporter: A Moran (laf) (Entered: 07/30/2002)
Status conference held . Further stat 10/9/02 at 2:30 p.m. (laf) (Entered: 07/30/2002)
67 Judge Michael A. Ponsor . Further Order entered, Counsel for all parties will appear for a status conference on 10/9/02 at 2:30 P.M. and if documents are to be submitted memorializing the resolution of this case, they will be filed by 10/2/02 [EOD Date 7/30/02] cc/cl (mgl) (Entered: 07/30/2002)
68 Motion by Mass., Commonwealth to continue Status Conf , filed. (laf) (Entered: 10/09/2002)
Judge Michael A. Ponsor . Endorsed Order entered granting [68−1] motion to continue, reset status conference for reset to 2:00 10/28/02 before Judge Michael A. Ponsor . [EOD Date 10/9/02] (laf) (Entered: 10/09/2002)
69 Assented−to Motion by Mass., Commonwealth to postpone status conference , filed. c/s (mgl) (Entered: 10/09/2002)
Terminated document: mooting [69−1] motion to postpone status conference (Fax copy docketed and ruled on. (laf) (Entered: 10/11/2002)
70 Judge Michael A. Ponsor . Clerk's Notes: re: Status Cnf Court Reporter: A Moran (laf) (Entered: 10/28/2002)
Status conference held . (Def. did not appear) Further conference for 12/18/02 at 3:00 p.m. (laf) (Entered: 10/28/2002)
Status conference held . Further hearing set for 12/18/02 at 3:00 p.m. (laf) (Entered: 10/28/2002)
71 Judge Michael A. Ponsor. Further Scheduling Order entered. Pltfs' counsel to make their submision to the Defts' re: fees by 11/15/2002. Set Status Conf. re: fees and general status for 3:00 P.M. on 12/18/2002. Counsel for the Defts., Peter T. Wechsler, to report to the Court by 11/08/2002 re: failure to appear at 10/28/2002 status conf. and confirm that he will be present for the next conf. on 12/18/2002; cc/cl. [EOD Date 10/29/02] (mef) (Entered: 10/29/2002)
72 Letter by Peter T. Wechsler dated: 10/30/02 to: Ms. French re: Scheduling order of 10/28/02., filed. (mgl) (Entered: 10/31/2002)
73 Judge Michael A. Ponsor . Clerk's Notes: re: Status Conf Court Reporter: S. Mubarek (laf) (Entered: 12/19/2002)
Status conference held . Counsel to file status report or Stipulation of settlement by 1/31/03 (laf) (Entered: 12/19/2002)
74 Plaintiff's Status report by Ernast Hermanson, filed. c/s (mgl) (Entered: 02/03/2003)
74 Certificate of service by Ernast Hermanson, Robert O'Donnell, Helen Kopec, Della Wimes, Florence Ashley, Stavros Center, Massachusetts Senior, Mass., Comm. of re: [74−1] status report , filed. (mgl) (Entered: 02/03/2003)
Judge Michael A. Ponsor . Endorsed Order entered approving [74−1] status report, Further Status report due on or before 2/28/03 . [EOD Date 2/4/03] cc/cl (mgl) (Entered: 02/04/2003)
75 Paties STIPULATION of Settlement filed. (mef) (Entered: 02/05/2003)
76 Notice of withdrawal of counsel by attorney Peter T. Wechsler for Mass., Comm. of, attorney Peter T. Wechsler for William D. O'Leary, attorney Peter T. Wechsler for Executve Office, attorney Peter T. Wechsler for Wendy E. Warring, attorney Peter T. Wechsler for Division of Medical, attorney Peter T. Wechsler for Paul Argeo Cellucci filed. c/s (mgl) (Entered: 02/06/2003)

Case: 3:00-cv-30156 As of: 02/18/2011 02:07 PM EST 14 of 14

02/07/2003
02/10/2003 05/14/2004

Judge Michael A. Ponsor . Endorsed Order entered granting [75−2] stipulation of settlement. [EOD Date 2/10/03] cc/cl (mgl) (Entered: 02/10/2003)
Case closed. (mgl) (Entered: 02/10/2003)
77 STIPULATION of Dismissal by Florence Ashley, Paul Argeo Cellucci, Commonwealth of Massachusetts, Ernast Hermanson, Frank Kachinsky, Helen Kopec, Massachusetts Senior Action Council, Inc.,, Robert O'Donnell, William D. O'Leary, Stavros Center for Independent Living, The Division of Medical Assistance,, Wendy E. Warring, Della Wimes, the Executive Office of Health and Human Services. (Lindsay, Maurice) (Entered: 05/14/2004)

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ERNAST HERMANSON ET AL., Plaintiffs,

CIVIL ACTION NO. 00-CV-30156-MAP

V.
COMMONWEALTH OF MASSACHUSETTS ET AL.,
Defendants.

FIFTH INTERIM AGREEMENT IN LIEU OF A PRELIMINARY INJUNCTION
Plaintiffs seek to obtain a temporary restraining order and/or preliminary injunction on behalf of plaintiff Robert O’Donnell, a 65 year-old man, and Alice Grogan, an 88 year-old woman who is not a named plaintiff but would seek to intervene. Each of them lives at his or her home with personal care attendant (“PCA”) services and seek to continue living there. Each of them asserts that he or she cannot continue to meet the deductible amount applied during each six-month period under Medicaid law to disabled persons aged sixty-five and over, and thus cannot continue to qualify for Medicaid or MassHealth payments for PCA services that are assertedly needed to continue living in a residential setting.
In order to address the issue of the recurring six-month deductible for Mr. O’Donnell and Ms. Grogan while this case is pending in the District Court, and thereby resolve their claims for a preliminary injunction, Defendants hereby agree that they will deem each of them to have met the six-month deductible while this case is pending, subject to their continuing obligations to meet all other requirements under federal and state law for MassHealth Standard eligibility. Defendants are thereby providing the same interim relief for Mr. O’Donnell and Ms. Grogan as Defendants previously agreed to provide for other persons under the First Interim Agreement.
In exchange for the provision of this interim relief, Mr. O’Donnell and Ms. Grogan agree not to file a motion for a preliminary injunction.

By entering into and complying with this Agreement, neither party waives any claims or

defenses or makes any concession as to the merits of the opposing party’s claims or defenses,

and Defendants reserve their right to challenge whether Plaintiffs have met each of the

requirements to maintain the present action as a class action under Fed. R. Civ. P. 23 and

whether Ms. Grogan has the right to intervene.

By entering into and complying with this Agreement, Defendants do not make any

representation as to the adequacy or medical necessity of any living arrangements and services

sought by Mr. O’Donnell or Ms. Grogan.

By entering into and complying with this Agreement, neither party waives its respective

rights to seek or oppose any- form of preliminary relief for any person other than Mr. O’Donnell

or Ms. Grogan or any form of permanent relief for any person.

Dated January is,2001

The Plaintiffs, By their attorneys,

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J. Paterson Rae, BBO#4 10520 fiPeter Benjamin, BBO# 037240
127 State Street, 4th fl. Springfield, MA 0 1103 - 1944 (413) 781-7814

For the Defendants, THOMAS F. REILLY ATTORNEY GENERAL
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Peter T. Wechsler, BBO#550339 Government Bureau One Ashburton Place, Room 2019 Boston, Massachusetts 02 108 (617) 727-2200, ext. 2083

Stefanie Krantz, BB0#564559 Disability Law Center 22 Green Street Northampton, M-4 0 1060 (413) 584-6337

Cynthia Gagne, BBO #556801 Western Massachusetts Office 436 Dwight Street Springfield, MA 0 1103 (413) 784-1240, Ext. 20

 
 LAW OFFICES
WESTERN MASSACHUSETTS LEGAL SERVICES INC.
127 STATE STREET, 4th FLOOR SPRINGFIELD, MASSACHUSETTS 01103-1944
TEL. 413-781-7814 (Voice & TTY) FAX # 413-746-3221
January 31, 2002
Ronald Preston Associate Regional Administrator Center for Medicare and Medical Services Region 1 JFK Federal Building Government Center Boston, MA 02203
RE: Massachusetts State Plan Amendment
Dear Dr. Preston:
We represent the plaintiffs class in the case Hermanson et al. v. Cellucci et al., Civ. No. 00-30156 MAP (D. Mass). The class consists of disabled elders in need of personal care services in the community who are unable to qualify for such services through MassHealth due to the high recurring deductibles they are required to satisfy every six months and, as a result, are now institutionalized or are at serious risk of institutionalization in the near future.
On December 31, 2001, the Massachusetts Division of Medical Assistance in order to reasonably accommodate the Hermanson class submitted State Plan Amendment (SPA) 01-015 for approval. The SPA seeks to allow medically needy aged recipients a monthly disregard of unearned income equal to the monthly cost of authorized personal care attendant services up to an amount equal to $20 less than the difference between the medically needy income standard and 133% of the federal poverty level. We urge you to approve the accommodation contained in the SPA so that disabled elders can obtain the medical care they need in their homes, surrounded by family and friends, rather than being forced into a nursing home to obtain such care.
In Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court held that Title II of the Americans with Disabilities Act requires states to provide services to qualified individuals with disabilities in the most integrated setting appropriate to their needs. One of the major claims in Hermanson is that the current Massachusetts Medicaid program violates this requirement by pushing disabled elders into nursing homes to obtain personal care services that could more appropriately and less expensively be provided to them in the community.

Following Olmstead, HCFA(now CMS) issued a series of letters to state Medicaid directors. In those letters, you emphasized to states that they have an obligation and “DHHS [has] a commitment to expanding home and community-based services and offering consumers choices in how services are organized and delivered.” (January 14, 2000 letter to state Medicaid Directors). In four subsequent letters, HCFA reiterated these obligations and urged states to collaborate with “all relevant stakeholders.... to develop and implement comprehensive and effective working plans for providing services to all qualified individuals with disabilities in the most integrated setting.” Olmstead Update No.2. And in Olmstead Update No. 5, HCFA identified the very barrier at issue in Hermanson, large recurring “spenddowns,” as a cause of unnecessary institutionalization. Olmstead Update No. 5, Attachment 5-A.

that :

On June 18, 2001, President Bush issued Executive Order 13217 in which he declared
(a) The United States is committed to community-based alternative for individuals with disabilities......

(2) The United States seeks to ensure that America’s community-based programs effectively foster independence and participation in the community for Americans with disabilities,

(3) Unjustified isolation or segregation of qualified individuals with disabilities through institutionalization is a from of disability-based discrimination.......

(4) The Federal Government must assist States and localities to implement swiftly the Olmstead decision so as to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently.... and to participate in community life.

In order to implement these goals, the President ordered federal agencies to work cooperatively with each other and the states to deliver services in the most integrated setting possible. The President also order the federal agencies under the leadership of HHS to review procedures and policies for compliance with the integration mandate and report back to him.

On December 21, 2001, Secretary Thompson submitted to the President a status report, Delivering on the Promise: Preliminary Report of Federal Agencies’ Actions to Eliminate Barriers and Promote Community Integration. In the section on Health Care Structure and Financing, the first problem noted was the “institutional bias” of the Medicaid program. One of the items in a proposed “reform package” is to “let states disregard state-specified income or assets of HCBS waiver recipients specifically served through home and community-based services waivers (rather than apply such disregards to an entire Medicaid eligibility group).”

We have reviewed these agency and administration responses to the Olmstead decision because they confirm that the reasonable accommodation contained in the SPA submitted for your review furthers the administration’s New Freedom Initiative. In response to our federal district court complaint, the Division, rather that defending a practice that clearly drove numerous elders into nursing homes prematurely, invited us to sit down and discuss possible

solutions. After numerous meetings during which a variety of possible approaches were presented by both sides, the parties were able to agree upon the accommodation encapsulated in the SPA.
Indeed, this particular resolution was inspired by the January 11, 2001 regulatory change in federal Medicaid rules which enhanced state flexibility in the use of less restrictive income and resource methodologies under §1902(r)(2). The preamble to the regulations suggested that states could use this enhanced flexibility to ameliorate the impact of large recurring spenddowns on the ability of individuals in the community to financially qualify for Medicaid. The preamble specifically identified the problem faced by the Hermanson class, placement in nursing homes because of the differential financial eligibility requirements for institutional or community-based care. 66 Fed. Reg. 2316 at 2319-20 (1/11/01). On May 11, 2001 HCFA issued technical guidance on the 1902(r)(2) regulatory change in question and answer format. Question A14 clarified that states can choose to disregard different kinds of income and question A15 made clear that states can disregard income that is used for a particular purpose. Building on these instructions, the parties crafted the reasonable accommodation contained in the SPA - disregarding from unearned income the monthly cost of authorized PCA services (subject to a dollar cap). This appears to comply with the letter of the technical guidance and certainly comports with the intent of the 1902(r)(2) regulatory change by mitigating the harsh impact of large recurring spenddowns on disabled elders seeking community-based care. This disregard is available to the entire group of medically needy elders. That only some may benefit from it is no different than disregarding income placed in medical savings accounts or interest income which only some of the group may have. The SPA also further the goals identified in Executive Order 13217, the Olmstead decision, and the Olmstead state letters.
The SPA provides a needed framework by which the Hermanson litigation can be settled. If CMS does not approve this SPA, the litigation will proceed and both the Division and HHS 1 run the risk of greater financial exposure and programmatic revision if the more expansive relief sough by the plaintiff class is awarded.
Finally CMS should keep in mind that under Section 504 of the Rehabilitation Act, federal, as well as state, agencies are obligated to modify or even waive policies, rules, regulations or practices where necessary to reasonably accommodate qualified individuals with disabilities. 29 U.S.C. §794(a); 45 C.F.R. Parts 84 and 85; see also Galvez-Letona v. Kirkpatrick, 54 F. Supp. 2d 1218, 1224-1226 (D. Utah 1999) (requiring INS to waive statutory and regulatory oath requirements for disabled alien seeking naturalization). While we are confident that the SPA complies with current Medicaid rules and policies, any doubt or ambiguity should be resolved in favor of the SPA. And, should CMS feel that the SPA has crossed the line of permissible policy under federal income methodology rules, CMS should modify those rules to reasonably accommodate the disabled elders who need the SPA in order to access needed health care in the community, rather than in a nursing home.2
1 Pursuant to 42 C.F.R. §43.1250, HHS is obligated to provide FFP for any court-ordered relief. See also, Tinoco v. Belshe, 916 F. Supp. 974, 983-84 (N.D. Cal. 1985).
2 Some question appears to have been raised about the appropriateness of an SPA that

will impact only a relatively small subset of the Medicaid population. We are aware of nothing in the 1902(r)(2) regulatory guidance or SPA requirements that precludes SPA’s or 1902(r)(2) disregards that may affect only a small number of recipients, as long as the disregard is available to the entire eligibility group, which is true of the disregard in the SPA. Furthermore, where the SPA operates to reasonably accommodate the needs of a discrete group of disabled Medicaid applicants and recipients, it would be discriminatory to reject it for that reason. Indeed, it is our understanding that CMS requires that States use SPA’s (or waivers) to implement reasonable accommodations that are systemic in nature, even though they may impact only a relatively small number of participants.

We urge you to promptly approve SPA No. 01-015. Should you have any questions or would like to further discuss any of the points raised in this letter, please contact me at 413-7817826, ext. 131.
Yours very truly,
J. Paterson Rae Peter Benjamin Marion Rosenau Jan Steifel Western Massachusetts Legal Services, Inc.
Verne Vance Kristi Hatrick Foley, Hoag and Eliott, LLP
Steven A. Hitov National Health Law Program
Stefanie Krantz Matthew Engel Disability Law Center
Vicki Pulos Neil Cronin Massachusetts Law Reform Institute
cc: Tommy G. Thompson, Secretary U.S. Department of Health and Human Services
Thomas E. Hamilton, Director Disabled and Elderly Health Programs Group, CMS