FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

M. R.; S. J.; C. B.; D. W.; A. B.; 

M. B.; AN. B.; J. B.; K. S.; T. M.;

A. R.; M. J. B.; J. H.; H. C.; THE

ARC OF WASHINGTON; SERVICE

EMPLOYEES INTERNATIONAL UNION No. 11-35026

HEALTHCARE 775NW; PUGET SOUND D.C. No.

ALLIANCE FOR RETIRED AMERICANS, 2:10-cv-02052-TSZ

Plaintiffs-Appellants, ORDER

v.  AMENDING

SUSAN DREYFUS, in her OPINION AND

professional capacity as Secretary DENYING

of Washington State Department REHEARING AND

of Social and Health Services; AMENDED

WASHINGTON STATE DEPARTMENT OF OPINION

SOCIAL AND HEALTH SERVICES, a

Department of the State of

Washington,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, Senior District Judge, Presiding

Argued and Submitted

June 9, 2011—Seattle, Washington

Filed December 16, 2011

Amended June 18, 2012

Before: Stephen Reinhardt, William A. Fletcher, and

Johnnie B. Rawlinson, Circuit Judges.

6957
Order;

Dissent to Order by Judge Bea;

Opinion by Judge William A. Fletcher;

Dissent to Opinion by Judge Rawlinson

6958 M. R. v. DREYFUS
COUNSEL

Stephen P. Berzon. Eve Hedy Cervantez, Stacey Leyton, Matthew John Murray, Casey Austin Roberts, ALSHULER BERZON LLP, San Francisco, California, Andrea Brenneke,

MACDONALD HOAGUE & BAYLESS, Seattle, Washington, for the appellants.

M. R. v. DREYFUS 6961
Edward J. Dee, William T. Stephens, William Bruce Work,

OFFICE OF THE WASHINGTON ATTORNEY GENERAL,

Olympia, Washington, for the appellees.

ORDER

The opinion filed December 16, 2011, and published at 663

F.3d 1100, is amended as follows:

On page 1107, right column, lines 16-19: delete <The district court stayed proceedings, including disposition of the

motion for class certification, pending our decision.>

On page 1121, left column, line 10: change <obviously> to

<likely>

On page 1121, left column, lines 17-19: change <The district court stayed its decision on class certification pending

our ruling on appeal.> to <At the time we reviewed this

appeal, the district court had yet to rule on Plaintiffs’ motion

for class certification.> 

With these amendments, Judges Reinhardt and W. Fletcher

have voted to deny Plaintiffs-Appellants’ petition for rehearing and Defendants-Appellees’ petition for rehearing and petition for rehearing en banc. Judge Rawlinson has voted to deny

Plaintiff-Appellants’ petition for rehearing and to grant

Defendants-Appellees’ petition for rehearing and petition for

rehearing en banc.

A judge of the court called for a vote on the petition for

rehearing en banc. A vote was taken, and a majority of the

active judges of the court failed to vote for en banc rehearing.

Fed. R. App. P. 35(f).

The petitions for rehearing and the petition for rehearing en

banc are DENIED. No further petitions for rehearing or for

6962 M. R. v. DREYFUS
rehearing en banc may be filed. The mandate shall be issued

forthwith.

BEA, Circuit Judge, joined by KOZINSKI, Chief Judge, and

O’SCANNLAIN, TALLMAN, RAWLINSON, BYBEE,

CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges, dissenting from denial of rehearing en banc:

This case is one of several recently brought requesting an

injunction to block across-the-board decreases in expenditures

for social services, enacted to eliminate a state’s budgetary

deficits. This, despite the fact that the rate reductions were

validly adopted by agency regulation, and despite a state law

requirement to prevent deficits in accounts. This, in the name

of preventing “discrimination” against disabled persons under

the Americans with Disabilities Act (“ADA”). Yet the panel

majority sided with the plaintiffs and reversed the denial of a

requested preliminary injunction. 

Mind you, this case does not involve the provision of certain social services to one group of disabled—those in nursing

homes—but not to another group—the disabled residing at

their own homes. No, the panel majority’s decision proceeds

on the premise that the very reduction of social services currently provided the at-home disabled will risk their going to

nursing homes, and that such reduction therefore “discriminates” against the at-home disabled, although not in favor of

the disabled in nursing homes, or anyone else. But virtually

everything the government does involves discrimination; it is

in the nature of laws that they treat some people differently

from others. This is not generally impermissible discrimination. Most government spending affects some groups more

than others, but that doesn’t mean that the result is impermissible discrimination. 

The Supreme Court tells us that discrimination against the

disabled may occur when certain social services a state actuM. R. v. DREYFUS 6963
ally provides are found only at nursing homes, and not provided at-home. Then the risk arises that the at-home disabled

must enter nursing homes, rather than remain at-home. That

is discrimination under the ADA. See Olmstead v. L.C. ex rel.

Zimring, 527 U.S. 581 (1999). 

As noted, a divided panel of our court reversed the denial

of a requested preliminary injunction to block the reductions

here. This decision has the immediate effect of blocking the

reductions of services for only the twelve named plaintiffs.

But since the decision interprets and applies the ADA, it constitutes binding precedent in our nine Western states, with

20% of the nation’s population.1

We should have taken this case en banc. The panel majority’s opinion fits the criteria of Federal Rule of Appellate Procedure 35(a) to a tee. The panel majority’s opinion conflicts

with precedent of the Supreme Court,2

 our court,3 and the Second Circuit.4

 It is also a case of exceptional importance. It

involves nothing less than the ability of a state to reduce the

amount of its totally voluntary and optional Medicaid social

welfare expenditures to balance its budget. No doubt that is

why California joined Washington to urge us to review the

case en banc. The issue is whether state budgetary decisions

1

In Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc), our en

banc court recently clarified that all published opinions—including those

interpreting statutory law at the preliminary injunction stage, as occurred

in that case—constitute “law of the circuit,” such that they “constitute[ ]

binding authority which must be followed unless and until overruled by

a body competent to do so.” Id. at __ n.4 (internal quotation marks omitted). 

2

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). See infra pp.

6970-74. 

3

Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003). See infra pp.

6974-75. 

4

Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999). See infra

pp. 6976-77. 

6964 M. R. v. DREYFUS
will be replaced by those of our colleagues, federal appellate

judges, by use of a strained interpretation of the ADA.

I. Background

1. The program at issue. Washington has voluntarily

elected to pay for “personal care services,” such as feeding,

medication management, cooking, and other “physical or verbal assistance with activities of daily living” to certain disabled individuals under its state Medicaid program. See Wash.

Rev. Code § 74.39A.009(18). Approximately 45,000 disabled

individuals receive personal care services. M.R. v. Dreyfus,

663 F.3d 1100, 1104 (9th Cir. 2011). Some of the providers

of personal care services are professionals, but others are family members who take care of their disabled relatives, at state

expense. Washington’s receipt of federal Medicaid money for

other medical services in no way depends on its provision of

these “personal care services.” 

Washington devised an individualized assessment system

called CARE to determine the number of hours for each aid

recipient. Id. Under CARE, “the individual [recipient] is

scored on factors such as an individual’s ability to perform

daily activities and an individual’s mental status,” and is then

assigned to one of 17 groups. Id. (quoting Samantha A. v.

Dep’t of Soc. & Health Servs., 256 P.3d 1138, 1140 (Wash.

2011) (en banc)). In 2010, before the proposed cuts, the most

needy group received 416 hours of personal care assistance

per month (nearly 14 hours a day, 30 days per month), and the

least needy group received 26 hours per month. D. Ct. Order

6. 

It is critical to understand, as the district court found and

the panel majority’s opinion does not dispute, that although

CARE is an individualized assessment based on needs, it is

not a guarantee of a minimum level of care needed to keep an

individual at home or outpatient locations, rather than in a

nursing home. D. Ct. Order 13. To the contrary, the program

M. R. v. DREYFUS 6965
is a flexible one: coverage is dependent in part on how much

money the state has. 

Washington has used this flexibility to change its payout

for personal care service hours a number of times in the last

ten years. From 2004 to 2006, the number of hours paid for

was on average approximately the same as now, after the

most recent (late 2010) cuts.5

 When the economy and the collections rose, from 2007-2009, the paid hours allotment

increased. Following the recent recession, the state reduced

base hours by an average of about 4%; but in early 2010, the

state restored those 2009 cuts. Finally, because of the state’s

last budget crisis and an executive order of late 2010, the

State made the approximately 10% average cuts, which

brought the state back down to 2004 to 2006 levels of payments for hours provided. See generally D. Ct. Order 7.

Though the number of hours provided has fluctuated, the

record shows that Washington has shown consistent success

in accomplishing the goal of the integration mandate: keeping

the disabled in the community. In every year since 1992, the

number of disabled persons in Washington who receive

community-based care has increased, while the number of

persons who receive nursing home care has decreased. See

Exhibit Below. 

5

As explained below, under the panel majority’s reasoning, even the

2004 to 2006 hours allotment would violate the ADA. 

6966 M. R. v. DREYFUS
Two other features of the program must be kept in mind.

The first is called the “Exception to the Rule,” or ETR, process. As the panel majority mentioned, a beneficiary who disputes that his allotted hours are adequate for his needs may

request an increase in payment for hours of personal services.

M.R., 663 F.3d at 1105. What the panel majority does not

mention is that the state approved 89% of the ETR requests

for additional hours in 2010. D. Ct. Order 7. 

Second, Washington’s program is extraordinarily generous.

Even after the proposed cuts, Washington pays for up to 393

hours per month for an individual. Of course, even more paid

hours are possible through the ETR process. D. Ct. Order 6,

Table 1. By contrast, the maximum number of personal care

hours authorized in California is 283 per month. Cal. Welf. &

Inst. Code § 12303.4(b). 

2. The proposed cuts. Washington, like many states,

faced a severe budget crisis in 2010. On September 13, 2010,

M. R. v. DREYFUS 6967
Governor Gregoire issued an executive order requiring

across-the-board budget cuts because “the national economic

downturn” caused “revenues [that] have fallen short of projections,” and the state’s general fund was in danger of running

a deficit.6

 663 F.3d at 1105. The Department of Social and

Health Services adopted a regulation which cut the base hours

of CARE recipients, with cuts ranging from 6.3% for those

receiving many hours to 18.8% for those receiving fewer. The

variation in cuts is based on “the notion that the individuals

currently receiving only a handful of personal care service

hours per month are the most independent and therefore the

least likely to require nursing home care.” D. Ct. Order 8 n.7.

Even after the cuts, anyone may still request an ETR to adjust

hours upward.7

 WAC 388-440-0001. 

3. This lawsuit. The plaintiffs are disabled and elderly individuals who receive in-home personal care services through

the voluntary “personal services” feature of Washington’s

Medicaid program. They are currently proceeding individually, and a motion for class certification was recently stricken

without prejudice to its being refiled following the issuance of

6

As the panel majority opinion acknowledges, Washington law requires

that “[i]f at any time during the fiscal period the governor projects a cash

deficit in a particular fund or account . . . the governor shall make acrossthe-board reductions in allotments for that particular fund or account so as

to prevent a cash deficit.” 663 F.3d at 1105 (citing Wash. Rev. Code

§ 43.88.110(7)). 

7

As of the time of the district court’s order, at least one of the original

named plaintiffs had already received additional hours through the ETR

process, and this adjustment actually increased his hours over those hours

he received before the cuts. Two others who requested ETRs will instead

receive a re-assessment of their base CARE classification level. They are

likely to be placed into a higher CARE group, and so will probably be

entitled to more hours than their previous allotment following the acrossthe-board reduction. Five of the named plaintiffs applied for and were

denied extra hours when the state committee determined that the plaintiffs

did not require more hours to preserve their health and safety. 

6968 M. R. v. DREYFUS
this court’s mandate. See Proposed Order Amending Opinion

at 2.8

As relevant here, the plaintiffs allege that the state’s reduction violates the general non-discrimination provision of the

ADA, which provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. An

implementing regulation, called the “integration mandate”

provides that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate

to the needs of qualified individuals with disabilities.”9

 28

C.F.R. § 35.130(d). The plaintiffs contend that the state’s

reductions in paid hours for “personal services” violate the

ADA because “the reduction in hours will substantially

increase the risk that they will be institutionalized in order to

receive care adequate to maintain their mental and physical

health.” M.R., 663 F.3d at 1102.

The district court held over five hours of oral argument

and, in an order amply supported by the evidence, found that

plaintiffs’ claims of irreparable injury (risk of institutionalization) were unlikely to succeed. He denied a request for a preliminary injunction. D. Ct. Order 2 n.4, 3. The panel majority,

over Judge Rawlinson’s dissent, reverses the district court’s

legal conclusions and factual findings, and remands for entry

of a preliminary injunction as to the named plaintiffs. The

injunction prohibits the state from enforcing the reductions

against the named plaintiffs, and the panel “leave[s] it to the

8

Two advocacy organizations and the union that represents Washington’s home care workers are also plaintiffs in this suit. M.R., 663 F.3d at

1106. 9

An “integrated setting” is one where a disabled individual is cared for

in a community-type setting (i.e., at-home or outpatient), as opposed to a

nursing home. 

M. R. v. DREYFUS 6969
district court to determine on remand whether, in light of this

opinion, broader preliminary injunctive relief is appropriate.”

663 F.3d at 1121.

II. Reasons to Take This Case En Banc

The district court’s order was correct on the law, on the

facts, and on the standard for issuing a preliminary injunction.

Now, after this decision, the ADA will block states from making even small, evenhanded cuts to programs which the state

has voluntarily added to its Medicaid program. This is so even

when the reductions are in response to severe budget deficits,

and even when there is no evidence that anyone will be subjected to imminent institutionalization. Somehow, this is all

done in the name of prevention of discrimination. Congress,

with the passage of the ADA, certainly never contemplated

nor sanctioned such a one-way ratchet on governmental

spending. We should have gone en banc to correct course.

1. The opinion’s incorrect analysis of the ADA. The panel

held that there were “serious questions going to the merits” of

whether a 10% cut to services in this voluntary and optional

Medicaid program, which is being administered evenhandedly, violates the regulation that “[a] public entity shall

administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals

with disabilities.” 28 C.F.R. § 35.130(d). The panel held that,

to prevail on a claim under the integration mandate, “a plaintiff need only show that the challenged state action creates a

serious risk of institutionalization.” 663 F.3d at 1116.

That is not the law. According to the Supreme Court in

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the

integration mandate means that “[s]tates are required to provide community-based treatment for persons with . . . disabilities when the State’s treatment professionals determine that

such placement is appropriate, the affected persons do not

oppose such treatment, and the placement can be reasonably

6970 M. R. v. DREYFUS
accommodated, taking into account the resources available to

the State and the needs of others with . . . disabilities.” Id. at

607 (emphasis added). But it is not disputed that Washington

does “provide community-based treatment for persons with

. . . disabilities” on an even-handed—even exemplary—basis.

There is no claim that Washington discriminates against

community-based recipients by favoring institutionalized

recipients with more or better “services, programs, [or] activities.” See 28 C.F.R. § 35.130(d). Olmstead requires that

community-based treatment be provided only after “taking

into account the resources available to the State and the needs

of others . . . with disabilities.” 527 U.S. at 607. Here, the

reductions in personal care service hours were applied in view

of “resources available” and on a rational basis depending on

need, and not on any discriminatory basis as between the

community-based recipient and the institutionalized recipient.

The panel majority seems to view an across-the-board

reduction of services to the community-based recipients to be

“discrimination” because of the effect the reduction might

have: to cause some community-based recipients to seek institutional care. But even the broad view of “discrimination”

endorsed in Olmstead requires some form of differential treatment amongst the disabled. What the Supreme Court held in

Olmstead is that the disabled are discriminated against if

states, without justification, provide services to the institutionalized that are not provided to community-based recipients,

thus forcing certain individuals into institutionalized settings.10

See 527 U.S. at 597, 600-01. What Olmstead did not hold—

indeed what it specifically stated it was not holding—was that

any sort of a level of services must be provided to prevent institutionalization, else the recipient would suffer discrimination. 

10Our court explained this principle clearly: “where the issue is the location of services, not whether services will be provided, Olmstead controls.” Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003) (emphasis

in original). See infra pp. 6974-75. 

M. R. v. DREYFUS 6971
Indeed, the district court plainly found that the record

showed no such discrimination was occurring here, stating

that “the record does not reflect that the State is providing services to individuals in institutions that it has declined to provide to individuals living in community-based settings. To the

contrary, plaintiffs’ evidence demonstrates that individuals

living in community-based settings currently receive more

and better care than individuals living in institutions.” D. Ct.

Order 36. The panel majority’s opinion unfortunately ignored

this finding. 

An example might help. If the reduction of personal services were to eliminate specific services from the personal

care program—for instance, dressing care services—but that

service were to be provided by institutionalized care, that

would be discrimination as interpreted by Olmstead: this

needed service, provided only in institutions, would require

the disabled person to seek institutional care. Here, though,

there is no allegation, much less proof, that the state made any

cuts to particular personal care services. There is no service

at all that was provided in 2009 that is no longer provided

after the reductions. 

The gravamen of the claim, then, is simply that the plaintiffs want more hours of the personal care services they would

receive in their homes following the reductions. It is understandable for the plaintiffs to want more services to be provided at no cost to them. The problem is that the plaintiffs are

not entitled to any particular level of services—or a “standard

of care”—under the ADA. This is especially so because more

services for these plaintiffs necessarily means less for others,

since “the State has submitted unrefuted evidence that it will

need to make drastic cuts in other state programs if this Court

grants plaintiffs’ requested preliminary injunction.” D. Ct.

Order 41.11

11The reason the panel majority in M.R. rejected this finding by the district court—a finding which was supported by unrefuted evidence—is:

6972 M. R. v. DREYFUS
The panel’s view of what constitutes “discrimination” conflicts with Olmstead, which explicitly conditioned benefits to

community-based recipients on “resources available.”

Olmstead condemns only “unjustified isolation.” 427 U.S. at

597 (emphasis added). Now, under M.R., states must provide

community-based services in a way that eliminates any “serious risk” that any individual currently receiving in-home services will be transferred to a nursing home. The opinion

demands that community-based care meet a certain standard:

the program must guarantee that each disabled individual currently receiving benefits in the program is able to continue to

live in the community indefinitely. But the ADA requires only

non-discrimination in the provision of services amongst the

community-based recipients, or between the communitybased recipients and the institutionalized, when a state allocates discretionary resources. The ADA does not require that

any particular services be provided, or that any particular

level of services be provided. Indeed, the Supreme Court has

already rejected the opinion’s view of the ADA: 

We do not in this opinion hold that the ADA

imposes on the States a “standard of care” for whatever medical services they render, or that the ADA

requires States to “provide a certain level of benefits

to individuals with disabilities.” . . . We do hold,

however, that States must adhere to the ADA’s non-

“[i]t is clear that money spent on behalf of the Plaintiffs is money that will

not be spent on other programs. But it is not clear from the evidence in

the record or from the arguments made to us precisely what those other

programs are and the extent to which they would be cut.” 663 F.3d at

1119-20. The opinion did not grace us with what details were missing.

Should the state submit an entire budget, passed with alternatives, should

a panel of judges on this court invalidate some cuts? That would require

the court to engage in mini-management for which it is ill-suited. The

impossibility of a state’s ever prevailing on the basis of Washington’s

showing here is exactly what Olmstead called “unacceptable” because “it

would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks.” 527 U.S. at 603. 

M. R. v. DREYFUS 6973
discrimination requirement with regard to the services they in fact provide.

Olmstead, 527 U.S. at 603 n.14 (quoting Olmstead, 527 U.S.

at 624 (Thomas, J., dissenting)) (emphases added). The

Court’s language helps to interpret the integration mandate’s

language. 28 C.F.R. § 35.130(d) requires the states to “administer” existing programs and services in the most integrated

setting possible, so as to avoid discrimination. The mandate

does not require the states to “provide” or “maintain” programs to avoid discrimination. 

It gets worse, though, because we too have already rejected

M.R.’s limitless expansion of Olmstead. In Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003), we properly read Olmstead

to have a limited scope when we stated that “where the issue

is the location of services, not whether services will be provided, Olmstead controls.” Id. at 517; see also Olmstead, 527

U.S. at 612 (Kennedy, J., concurring in judgment) (“No State

has unlimited resources, and each must make hard decisions

on how much to allocate to treatment of diseases and disabilities. . . . The judgment [regarding resource allocation], however, is a political one and not within the reach of the

statute.”). Yet, despite this clear language in Olmstead and the

instruction from our court in Townsend, a new standard of

care based on a recipient’s subjective claims is exactly what

the panel requires from the state of Washington. After M.R.,

that standard can never be reduced. 

In the teeth of this precedent, the panel majority’s opinion

gives what amounts to controlling interpretive deference to a

“statement of interest” the DOJ filed in support of the plaintiffs. See M.R., 663F.3d at 1117. In Olmstead, the Court

declined to consider whether to accord deference to the DOJ’s

views of the ADA and implementing regulations. 527 U.S. at

598.12 Notwithstanding the Supreme Court’s forbearance, the

12There, the United States participated as amicus at the Supreme Court

level. The Court also noted three previous appellate-level amicus briefs,

6974 M. R. v. DREYFUS
panel majority here contends that this “statement of interest,”

filed in district court, is the equivalent of an “agency’s interpretation of its own regulation,” which the panel then says is

“controlling unless plainly erroneous or inconsistent with the

regulation.” M.R., 663 F.3d at 1117 (quoting Auer v. Robbins,

519 U.S. 452, 461 (1997)). 

This is one leap too far. First, unlike Olmstead, where the

United States participated through the appearance of the

Solicitor General, the DOJ did not even submit an amicus

brief to our court in this appeal, despite the fact that its position lost in district court. Second, a “statement of interest” has

not gone through anywhere near the rigorous controls as has

a regulation adopted pursuant to the Administrative Procedure

Act, or even a Supreme Court amicus brief. Third, in any

event, the DOJ’s view leads to a plainly unreasonable interpretation of the plain text of the ADA, so it must be rejected.

See Auer, 519 U.S. at 461 (agency interpretation of a regulation not controlling if “plainly erroneous or inconsistent with

the regulation” (internal quotation marks omitted)).13 It is

and observed that “We need not inquire whether the degree of deference

described in Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), is in order; [i]t is enough to observe that the

well-reasoned views of the agencies implementing a statute constitute a

body of experience and informed judgment to which courts and litigants

may properly resort for guidance.” Olmstead, 527 U.S. at 598 (1999)

(internal quotation marks omitted; alteration in original). Notice also that

the Court there referred to whether Chevron deference was in order. The

Court did not even mention Auer deference, which is the form of deference used by the panel majority here. 

13The panel also ignores the fact that our court has read Auer narrowly

and refused to “give controlling deference” to “interpretations of statutes

expressed for the first time in case-by-case amicus filings.” Christopher

v. SmithKline Beecham Corp., 635 F.3d 383, 395 (9th Cir. 2011), cert.

granted 132 S. Ct. 760 (2011). Moreover, the core principle in Auer that

a court should ever substantially defer to an agency’s interpretation of its

own regulation, even if validly asked to do so in a brief filed before the

tribunal deciding the case, has recently been cast into doubt by subsequent

M. R. v. DREYFUS 6975
plainly unreasonable to claim it is “discrimination” under the

ADA when there is an even-handed reduction of a

voluntarily-provided welfare benefit and no claim that this

reduction will lead to anyone’s imminent institutionalization.

Finally, in imposing on the states a standard of care for personal care service programs, we do not just depart from binding Supreme Court precedent. We also create a conflict with

the Second Circuit. In Rodriguez v. City of New York, 197

F.3d 611 (2d Cir. 1999), decided after Olmstead, the Second

Circuit considered a case where a class of mentally-disabled

plaintiffs contended that New York violated the ADA because

the state failed to provide “safety-monitoring services” in its

personal-care services program. Id. at 613. As here, the plaintiffs claimed that the state’s failure to do this rendered the personal care services provided “inadequate to meet their

medical needs and to allow them to continue living in their

homes.” Id. at 614. 

The Second Circuit recognized that this argument does not

allege “illegal discrimination against the disabled” but instead

presents a challenge to “the substance of the services provided.” Id. at 618. This is because “[t]he ADA requires only that

a particular service provided to some not be denied to disabled people.” Id. The court thus rejected the “discrimination”

claim. Id. In so doing, the Second Circuit also explained that

Olmstead was “inapposite” in such a case because it does not

“stand for the proposition that states must provide disabled

individuals with the opportunity to remain out of institutions.”

Id. at 619. Instead, Olmstead means “only that States must

adhere to the ADA’s nondiscrimination requirement with

administrative law cases. See Talk Am., Inc. v. Mich. Bell Tel. Co., 131

S. Ct. 2254, 2266 (2011) (Scalia, J., concurring) (“It is comforting to know

that I would reach the Court’s result even without Auer. For while I have

in the past uncritically accepted that rule, I have become increasingly

doubtful of its validity.”). 

6976 M. R. v. DREYFUS
regard to the services they in fact provide.” Id. (quoting Olmstead, 527 U.S. at 603 n.14) (emphasis inoriginal). 

The bottom line is simple enough: “[T]he disabilities statutes do not guarantee any particular level of medical care for

disabled persons, nor assure maintenance of service previously provided.” Rodriguez, 197 F.3d at 619 (quoting Cerpac

v. Health and Hosp. Corp., 147 F.3d 165, 168 (2d Cir. 1998))

(emphasis added). Yet “maintenance of service previously

provided” is exactly what our court requires in M.R.14

The panel majority’s insistence that Washington state provide a particular standard of care means the remainder of

Ninth Circuit states must abandon any attempt to reduce

voluntarily-provided, optional personal care services from

their current levels. Instead, states are locked into a program

they thought voluntary and optional, one not required by

Medicaid—and certainly not required to continue at a particular service level. If a 10% reduction in hours in one of the

nation’s most generous programs creates a “serious risk of

institutionalization,” then it is hard to imagine what other

reduction, in any state, will ever fail to meet the “serious risk”

standard. This is because Washington state’s entire personal

care services program is essentially an at-home substitute for

nursing home care. Almost by definition, if this program

offers fewer hours and serves fewer people, more people will

be at risk of needing to go into a nursing home. But, at worst,

that risk is not caused by discrimination in the services actu14Rodriguez relied explicitly on the ADA itself, rather than the integration mandate. However, the Second Circuit’s extensive discussion of Olmstead makes clear that its decision is directly applicable in this context,

and that, following Rodriguez, the Second Circuit would have decided our

case differently. Indeed, our own court has looked to Rodriguez in a case

explicitly about the integration mandate, and stated: “As Rodriguez makes

clear, where the issue is the location of services, not whether services will

be provided, Olmstead controls.” Townsend, 328 F.3d at 517 (first emphasis added). 

M. R. v. DREYFUS 6977
ally provided, but by the lessening of the services previously

provided. 

Thus, plaintiffs will argue, applying the integration mandate to this type of service in the first place leads inexorably

to the conclusion that the states that do not currently participate in this optional program are in violation of the ADA. If

cutting personal care hours presents a “serious risk of institutionalization,” the argument will go, surely providing no personal care services at all presents an even bigger risk of

institutionalization. Now, after the panel majority’s opinion in

M.R., there is no stopping point to the plaintiffs’, activist

organizations’, and unions’ claims that the “integration mandate” prohibits any reduction in services to the at-home disabled. This argument is absurd on its face, and we should

have taken this case en banc now to stop plaintiffs’ assertion

of what they may style as an “inexorable” progression. 

2. The opinion’s impermissible factfinding. The panel

majority acknowledged in its standard of review section that

this court reviews a denial of preliminary injunction for abuse

of discretion and that, in so doing, “we first look to whether

the trial court identified and applied the correct legal rule to

the relief requested. Second, we look to whether the trial

court’s resolution . . . resulted from a factual finding that was

illogical, implausible, or without support in inferences that

may be drawn from the facts in the record.” United States v.

Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). Our

standard was drawn directly from the Supreme Court’s language in Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 577 (1985) (“Based on our own reading of the record, we

cannot say that either interpretation of the facts is illogical or

implausible. Each has support in inferences that may be

drawn from the facts in the record; and if either interpretation

had been drawn by a district court on the record before us, we

would not be inclined to find it clearly erroneous.”) (emphases added). Yet the panel majority replaces the district court’s

amply-supported factual findings with its own findings. The

6978 M. R. v. DREYFUS
opinion fails to keep in mind my colleague Judge Farris’s

pithy line characterizing the “appropriate appellate function”:

while his colleague in dissent “would retry,” Judge Farris was

“content to review.” Li v. Ashcroft, 378 F.3d 959, 964 n.1 (9th

Cir. 2004). 

The discussion of irreparable harm in the panel opinion

focuses nearly exclusively on three of the twelve plaintiffs:

M.R., C.B., and K.S. 663 F.3d at 1108-14. The facts the panel

majority relates of their conditions are sad and unfortunate, as

M.R. and C.B. in particular are severely disabled individuals

who require extensive care on a daily basis. The plaintiffs

contend that they have “demonstrated a likelihood of irreparable injury because they have shown that reduced access to

personal care services will place them at serious risk of institutionalization.” Id. at 1102. The panel majority agreed, overturning the district court’s careful findings to the contrary.

The panel majority reversed the district court because the

state’s responses to the plaintiffs’ recitations of harm were

“weak”15 and the “the district court addressed these individualized showings in a generalized fashion.” Id. at 1114. 

On the contrary, the district court did indeed give individualized consideration to each plaintiff. For instance, after citing

the declarations of nine of the named plaintiffs whose “medical conditions have deteriorated”—a group that includes both

M.R. and C.B.—the district court said that “the Court is

unable to determine whether the alleged threat of institutionalization these particular plaintiffs face is the result of the

State’s reduction in personal care service hours or the deterioration in their medical conditions.” D. Ct. Order 25. In a

lengthy passage, the district court also described evidence that

contradicted the allegations of harm to the plaintiffs arising

from the reduction, and the district court further noted that

15This word is a classic giveaway that the panel majority weighed the

evidence anew, rather than applying the standard of appellate review of

factfinding demanded by Anderson and Hinkson. 

M. R. v. DREYFUS 6979
some of the allegations in the plaintiffs’ declarations were

“speculative at best.” Id. at 25 n.31. 

The district court also found that certain declarations did

not show a likelihood of irreparable injury because plaintiffs

had not attempted to raise the hours of personal care they

claimed to need through the available ETR process. D. Ct.

Order 26-27. For instance, in the case of plaintiff A.R., the

district court said that it “can only conclude that the declarations relating to A.R. do not suggest a likelihood of irreparable injury because, until the State has had the opportunity to

correct the gap in care through case management, the Court

cannot determine whether the threat of harm is the result of

the State’s reduction, or the decision by A.R.’s guardian to

give preference to the provider’s convenience over A.R.’s

care needs.” Id. at 27. The panel opinion does not address this

reasoning. Instead, it pretends this finding was not there. 

Moreover, the panel majority’s criticism of the district

court’s findings as impermissibly general is misplaced. The

panel majority does not claim that the district court failed to

comply with Fed. R. Civ. P. 52(a)(2), which requires that

“[i]n granting or refusing an interlocutory injunction, the

court must . . . state the findings [of fact] and conclusions [of

law] that support its action.” Instead, the panel majority conflates a criticism of how the district court discussed the evidence with an evaluation of the sufficiency of the evidence

itself. This contradicts our circuit’s test for “clear error,”

which turns only on whether there was a sufficient evidentiary

basis for the determination the district court made, not how

the trial court “addressed” the evidence in the record. Here,

there was a sufficient evidentiary basis for the district court’s

findings. 

In 2009, our en banc court closely tracked the Court’s language in Anderson when it stated that factual findings would

be overturned only if they were “illogical, implausible, or

without support in inferences that may be drawn from the

6980 M. R. v. DREYFUS
facts in the record.” Hinkson, 585 F.3d at 1263 (drawing on

and quoting from Anderson, 470 U.S. at 577 (1985)). Yet, in

direct contradiction to this mandatory analytical framework,

the panel opinion never lets the reader know upon which of

these shoals the district court’s factual findings ran aground,

or why. This error too demanded en banc review, because it

constitutes a three-judge panel’s departure from an en bancapproved standard.

III. The Effect of Our Decision

Under M.R., states will be hard-pressed to reduce benefit

levels in voluntarily-provided personal care services programs

and, perhaps, in a variety of other voluntary social services

programs. This not only departs from the text of the relevant

statutes and regulations, but it presents two major practical

problems. First, in the near term, states will not be able to balance their budgets. Second, in the longer term, if states do not

have flexibility to cut the provision of such services, then they

are far less likely to decide to provide the programs in the first

place. Both of these cause serious harm to states and their citizens, yet this harm was entirely ignored by the panel majority.

Of course, I am not a state executive or legislative official,

charged with administering the state budget, so do not take

my word for it. Instead, look at the recent remarks of California Governor Jerry Brown regarding the state’s $16 billion

budget deficit. Why is the shortfall so large—and in particular

so much larger than the $9 billion deficit forecast only months

ago? “Tax receipts are coming in lower than expected,” he

said. “And the federal government and the courts have

blocked us from making billions in necessary budget reductions.”16 At a press conference on Monday, May 14, 2012,

Governor Brown noted:

16See J.J. McGrath, California Budget Gap Widens to $16B from $9B,

Int’l Business Times (May 13, 2012), available at http://

www.ibtimes.com/articles/340491/20120513/california-budget-deficittaxes-cuts-transcript-video.htm?page=all (emphasis added). 

M. R. v. DREYFUS 6981
The fact is we’re in a democratic society. We have

so much money from the people, and we’ve got so

much spending. We can have it be out of alignment

for a while . . . but I’ve committed to getting it into

balance. What that means is that things that are good

in and of themselves have got to be stopped or curtailed if we’re going to have balance. Otherwise, we

borrow and sink deeper into debt, and you see Spain,

Portugal, Italy, Ireland, England, they’re all having

trouble. While the short-term pain is real, I think the

greater good is balancing the revenue with the spending.17

The majority ignores this fundamental reality of our democracy. 

The long-term impact of the panel majority’s decision and

the inevitable path we will now be forced to follow is that legislators will think long and hard about ever again authorizing

such voluntary and optional programs. After all, state legislators and executive officials are not blind to what we do here

at the Ninth Circuit. Rather, those who govern in the states in

our circuit will see the reductions we have blocked, even to

voluntary, optional services like the one here, and then ask

themselves: why should we ever go through this battle again?

The harm that will come to all of us from these programs

foregone—these legislative possibilities left untried—will be

hard to measure. But it will be very real. 

Fortunately, this is not a result demanded by the ADA, the

facts of this case, or the balancing of the equities courts look

to in issuing injunctions. Far from it. This result is one manufactured by the panel majority’s stretched reading of the law,

its mistreatment of the record, and its arrogation to itself of

the factfinding function. We should have gone en banc to cor17See Video of Press Conference on May 14, 2012, available at

http://www.calchannel.com/video-on-demand/. 

6982 M. R. v. DREYFUS
rect this opinion’s turn toward anti-democratic budgeting by

judicial fiat.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiffs, Washington State Medicaid beneficiaries with

severe mental and physical disabilities, appeal the district

court’s denial of their motion for a preliminary injunction.

Plaintiffs seek to enjoin the operation of a regulation promulgated by Washington’s Department of Social and Health Services (“DSHS”) that reduces the amount of in-home “personal

care services” available under the state’s Medicaid plan. The

United States Department of Justice has filed a “statement of

interest” in the district court supporting Plaintiffs’ request for

an injunction.

“Personal care services” provide assistance in performing

basic life activities — such as eating, bathing, dressing, moving from place to place, and using the toilet — that Plaintiffs,

because of their disabilities, cannot perform by themselves.

To comply with Governor Christine Gregoire’s executive

order that directed an across-the-board reduction in all state

agency expenditures, DSHS promulgated a regulation that cut

the base hours of covered in-home personal care services by

an average of 10 percent per beneficiary per month. 

Plaintiffs argue principally that the regulation violates the

antidiscrimination provisions of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29

U.S.C. § 794(a), because the reduction in hours will substantially increase the risk that they will be institutionalized in

order to receive care adequate to maintain their mental and

physical health. The district court denied preliminary relief. 

M. R. v. DREYFUS 6983
We reverse. We conclude that Plaintiffs have demonstrated

a likelihood of irreparable injury because they have shown

that reduced access to personal care services will place them

at serious risk of institutionalization. We further conclude that

Plaintiffs have raised serious questions going to the merits of

their Rehabilitation Act/ADA claims, that the balance of hardships tips sharply in their favor, and that a preliminary injunction will serve the public interest. See Alliance for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011).

We therefore remand for entry of a preliminary injunction.

I. Background and Procedural History

A. Factual Background

Medicaid is a cooperative federal-state program under

which the federal government provides states with financial

assistance to supply medical services to low-income people.

Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 617 (9th

Cir. 2005). State participation is voluntary, but once a state

chooses to participate, the state must submit for federal

approval a plan that complies with federal statutory and regulatory requirements. Alexander v. Choate, 469 U.S. 287, 289

n.1 (1985); Townsend v. Quasim, 328 F.3d 511, 514 (9th Cir.

2003). A state plan must cover the cost to eligible people of

certain medical services, including inpatient and outpatient

hospital care; laboratory and X-ray services; nursing facility

care; and services provided by physicians, dentists, nursemidwives, and pediatric or family nurse practitioners. See 42

U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17), (21); 42

C.F.R. §§ 440.210, 440.220. Within this federal framework,

however, states retain “substantial discretion to choose the

proper mix of amount, scope, and duration limitations on coverage.” Alexander, 469 U.S. at 303; see also Beal v. Doe, 432

U.S. 438, 444 (1977); 42 C.F.R. § 430.0. 

States may, but need not, choose to subsidize other types of

medical services, including “personal care services,” the ben6984 M. R. v. DREYFUS
efit at issue here. See 42 U.S.C. §§ 1396a(a)(10)(A),

1396d(a)(24). “Personal care services” are: 

services furnished to an individual who is not an

inpatient or resident of a hospital, nursing facility,

intermediate care facility for the mentally retarded,

or institution for mental disease that are

(A) . . . authorized for the individual in

accordance with a service plan approved by

the State,

(B) provided by an individual who is qualified to provide such services and who is not

a member of the individual’s family, and

(C) furnished in a home or other location.

Id. § 1396d(a)(24); see also 42 C.F.R. § 440.167(b) (clarifying that a family member is “a legally responsible relative”);

CTRS. FOR MEDICARE AND MEDICAID SERVS., STATE MEDICAID

MANUAL § 4480(C), at 4-495 (1999) (personal care services

“include a range of human assistance provided to persons

with disabilities and chronic conditions . . . which enables

them to accomplish tasks that they would normally do for

themselves if they did not have a disability,” and “most often

relate[ ] to . . . eating, bathing, dressing, toileting, transferring,

. . . maintaining continence, . . . personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and

money management”).

Washington has elected to cover the cost of personal care

services, which the state defines as “physical or verbal assistance with activities of daily living and instrumental activities

of daily living provided because of a person’s functional disability.” WASH. REV. CODE § 74.39A.009(18). The state

defines “activities of daily living,” in turn, to include bathing,

M. R. v. DREYFUS 6985
bed mobility, body care, dressing, eating, locomotion inside

and outside one’s room and immediate living environment,

walking in one’s room and immediate living environment,

medication management, toilet use, transferring between surfaces, and personal hygiene. WASH. ADMIN. CODE § 388-106-

0010. The state defines “instrumental activities of daily living” as including meal preparation, ordinary housework,

essential shopping, wood supply when wood is used as one’s

sole source of heat, travel to medical services, managing

finances, and telephone use. Id.

Washington’s DSHS administers the state’s Medicaid programs. See 42 U.S.C. § 1396a(a)(5); WASH. REV. CODE

§ 74.09.530. DSHS covers the cost of personal care services

for approximately 45,000 people. Some 15,000 of those beneficiaries are “categorically needy” participants in the state’s

Medicaid plan. The remaining 30,000 beneficiaries participate

in one of Washington’s Medicaid waiver programs, “under

which the Secretary of Health and Human Services is authorized to waive certain Medicaid requirements for innovative

or experimental state health care programs.” Townsend, 328

F.3d at 514. Consistent with Congress’s preference for community rather than institutional care, “the waiver program

provides Medicaid reimbursement to States for the provision

of community-based services to individuals who would otherwise require institutional care, upon a showing that the average annual cost of such services is not more than the annual

cost of institutional services.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601 n.12 (1999) (citing 42 U.S.C.

§ 1396n(c)). 

Before Washington may cover the cost of in-home personal

care services to participants in a Medicaid waiver program,

the state must have made “a determination that but for the

provision of such services the individuals would require the

level of care provided in a hospital or a nursing facility or

intermediate care facility for the mentally retarded the cost of

which could be reimbursed under the State plan.” Id.

6986 M. R. v. DREYFUS
§ 1396n(c)(1); 42 C.F.R. §§ 435.217, 441.302(c); see also,

e.g., WASH. ADMIN. CODE § 388-106-0310(4) (participants in

Community Options Program Entry Services (“COPES”)

waiver program must “need the level of care provided in a

nursing facility”); id. §§ 388-106-0410(4), 388-106-0510(4)

(same with respect to participants in Medically Needy Residential Waiver (“MNRW”) and Medically Needy In-Home

Waiver (“MNIW”) programs); id. § 388-845-0030(2)

(developmentally disabled participants in Home and

Community-Based Services (“HCBS”) waiver programs must

need the level of care provided in an intermediate care facility

for the mentally retarded).

DSHS determines the number of hours of in-home personal

services care to which a Medicaid beneficiary is entitled

through the Comprehensive Reporting Evaluation (“CARE”).

See WASH. ADMIN. CODE § 388-106-0050 to -0145. The Washington Supreme Court has described CARE as follows: 

In the initial stage of a CARE evaluation, the individual is scored on factors such as an individual’s

ability to perform daily activities and an individual’s

mental status. The individual is then assigned to 1 of

17 classification groups, each group having a set

number of base . . . hours associated with it. Once

these base hours are established, an assessor individually considers the recipient’s self-performance and

the amount of informal support available for the

recipient’s activities of daily living (ADL) and

instrumental activities of daily living (IADL). The

recipient’s level of informal support for each ADL

and IADL then reduces the base hours allocated to

that recipient by a predetermined percentage.

Samantha A. v. Dep’t of Soc. & Health Servs., 256 P.3d 1138,

1140 (Wash. 2011) (en banc) (internal citation omitted); see

also, e.g., Jenkins v. Wash. Dep’t of Soc. & Health Servs., 157

P.3d 388, 389-90 (Wash. 2007) (en banc). DSHS sets the base

M. R. v. DREYFUS 6987
monthly hours associated with each classification group by

regulation. WASH. ADMIN. CODE § 388-106-0125. DSHS conducts CARE reassessments at least annually, or whenever a

beneficiary’s ability to care for himself changes. Id. § 388-

106-0050(1). A beneficiary who disagrees with his CARE

evaluation may appeal the evaluation in an administrative

hearing. Id. § 388-106-1305. A beneficiary who remains dissatisfied with his allocated hours of assistance may request

additional hours through an Exception to Rule (“ETR”). Id.

§ 388-440-0001. DSHS will grant an ETR when “[t]he client’s situation differs from the majority; . . . [i]t is in the interest of overall economy and the client’s welfare; and [i]t

increases opportunities for the client to function effectively.”

Id. § 388-440-0001(1)(b)-(d).

Once the CARE evaluation sets the number of hours to

which a beneficiary is entitled, the beneficiary and his DSHS

case manager work together to design a plan of care that specifies the services that the beneficiary will receive as well as

the caregivers who will provide those services. Id. §§ 388-

106-0045, 388-106-0130. At all times, a beneficiary has the

right to choose where he will receive authorized services (for

example, in his home, in a residential facility, or in a nursing

home), id. § 388-106-0030; to “[t]ake part in and have [his]

wishes included in planning [his] care,” id. § 388-106-

1300(13); and to “[c]hoose, fire, or change” his caregiver, id.

§ 388-106-1300(14). 

On September 13, 2010, Governor Gregoire issued an executive order stating that because of “the national economic

downturn” and “revenues [that] have fallen short of projections,” the state’s general fund was in danger of running a deficit. Exec. Order No. 10-04, Ordering Expenditure Reductions

in Allotments of State General Fund Appropriations (Sept. 13,

2010), available at http://www.governor.wa.gov/execorders/

eo_10-04.pdf. Governor Gregoire ordered an across-the-board

reduction in general fund appropriations to all state agencies,

in an amount to be computed by the state’s Office of Finan6988 M. R. v. DREYFUS
cial Management. Id; see WASH. REV. CODE § 43.88.110(7)

(“If at any time during the fiscal period the governor projects

a cash deficit in a particular fund or account . . . the governor

shall make across-the-board reductions in allotments for that

particular fund or account so as to prevent a cash deficit.”).

The Office of Financial Management, in turn, determined that

each state agency would be required to reduce its allotment

from the general fund by 6.287 percent. See Office of Fin.

Mgmt., Allotment Reduction Instructions for Across-theBoard Cuts Mandated by Executive Order 10-04, at 2 (Sept.

16, 2010), available at http://www.ofm.wa.gov/budget/

instructions/allotment/Allotment_reduction_instructions

091610.pdf.

To comply with the governor’s order, DSHS promulgated

an emergency regulation that reduced the base monthly hours

of in-home personal services care authorized for each CARE

classification group, effective January 1, 2011. See Wash.

Reg. 11-02-041 (Dec. 30, 2010) (codified at WASH. ADMIN.

CODE § 388-106-0125), available at http://apps.leg.wa.gov/

documents/laws/wsr/2011/02/11-02-041.htm. DSHS applied

the lowest percentage reductions to the classification groups

composed of the most disabled beneficiaries. See WASH. REV.

CODE § 74.09.520(4) (“Any reductions in services made necessary for funding reasons should be accomplished in a manner that assures that priority for maintaining services is given

to persons with the greatest need as determined by the assessment of functional disability.”). For example, DSHS reduced

the base monthly hours for people in group D High from 277

to 260, a 6.1 percent decrease. Wash. Reg. 11-02-041. By

contrast, DSHS reduced the monthly base hours for people in

group B Low from 47 to 39, a 17 percent decrease. Id. The

average reduction in hours across all groups was about 10 percent. Susan Dreyfus, DSHS’s Director, declared in January

2011 that the reduction in hours would save $19.2 million in

the five months then remaining in the 2011 fiscal year. DSHS

acknowledged in agency planning documents that “[w]ith

reduced hours, in-home clients will have to choose which

M. R. v. DREYFUS 6989
tasks their employees spend their time on and there may not

be enough time to complete all tasks.” Moreover, DSHS

anticipated that “[a]t the higher percentage reductions, some

needed tasks may not be completed on a regular basis. In

some cases, a safe in-home plan of care will not be possible

and clients may need to go to community residential or nursing facility settings.”

On December 6, 2010, about three weeks before the reduction was to take effect, DSHS mailed notice of the change to

beneficiaries. The notice stated that “you will receive fewer

personal care hours each month starting January 1, 2011,” set

forth the beneficiary’s current and revised monthly hours, and

computed the difference. The notice stated that “[t]his notification serves as an amendment to your plan of care. You will

need to work with your personal care worker to prioritize

tasks within this reduced number of monthly authorized

hours.” Finally, the notice explained that DSHS

is making this change in response to the Governor’s

September 14th Executive Order 10-04 for 6.3%

reductions. This was one of a number of changes

made across government to address the State’s revenue shortfall. 

There are no appeal rights for this change through

the Office of Administrative Hearings because this is

a service change directed by the governor and

applies to the entire program. We know these

changes may be difficult for you. If you have questions or concerns about changes to your services,

please contact your case manager.

B. Procedural History

On December 23, 2010, Plaintiffs — 14 recipients of inhome personal services care whose hours were reduced, two

advocacy organizations, and a union that represents Washing6990 M. R. v. DREYFUS
ton home-care workers — brought suit in federal district court

for the Western District of Washington. The 14 individual

plaintiffs sued on behalf of a proposed class of “Medicaideligible individuals in the State of Washington living at home

who were assessed to need personal care services based upon

individualized CARE assessments of their needs and who

received these Medicaid services in accordance with their

assessment[s] until DSHS reduced their services to below

their level of need for budgetary reasons alone.” Plaintiffs

alleged that the regulation violated the Americans with Disabilities Act, 42 U.S.C. § 12132, the Rehabilitation Act, 29

U.S.C. § 794(a), due process, and various statutory and regulatory Medicaid requirements. Plaintiffs sought a declaratory

judgment, as well as a temporary restraining order and preliminary and permanent injunctions prohibiting DSHS from

implementing the regulation. In the alternative, Plaintiffs

sought to enjoin the reduction in hours until beneficiaries

received individual CARE reassessments, notice of alternative

institutional placements, and administrative hearings.

The district court denied the motion for a TRO and deferred

hearing on the motion for a preliminary injunction. Plaintiffs

appealed the denial of the motion for a TRO, prompting the

district court to stay proceedings and cancel a scheduled hearing on Plaintiffs’ motion for a preliminary injunction. On

appeal, a motions panel of this court stayed implementation

of the emergency regulation pending the district court’s disposition of the motion for a preliminary injunction. The panel

concluded that denial of the TRO was reviewable “because

the district court took the hearing for the motion for preliminary injunction off calendar,” making denial of the TRO “tantamount for present purposes to the denial of a motion for a

preliminary injunction.” On the merits, the panel determined

that a stay pending a hearing on the motion for a preliminary

injunction was justified because “[n]o other relief is available

that will remedy the irreparable injury which continues to

occur pending such hearing.”

M. R. v. DREYFUS 6991
On remand, the district court denied Plaintiffs’ motion for

a preliminary injunction. The court determined that Plaintiffs

failed to satisfy any prong of Winter v. Natural Res. Def.

Council, 555 U.S. 7 (2008). According to the court, Plaintiffs

did not demonstrate a likelihood of irreparable injury because

they “failed to submit evidence that the reduction will deny

beneficiaries needed services, or that it will create a serious

risk of institutionalization.” Nor, in the view of the court,

were Plaintiffs likely to succeed on the merits. Plaintiffs were

unlikely to prevail on their ADA/Rehabilitation Act claim

because “the State’s budget reduction does not leave individuals with no choice [but] to submit to institutional care to

obtain needed services” and because “it is likely that requiring

the State to continue current funding levels for personal care

services indefinitely would constitute a fundamental alteration

in the State’s Medicaid program.” Implementation of the

emergency regulation did not violate due process because

“Medicaid recipients are not entitled to notice and a hearing

when the State implements a mass change that affects . . . all

recipients.” The court rejected Plaintiffs’ Medicaid claims by

adopting the reasoning of its order denying Plaintiffs’ motion

for a TRO. Finally, the balance of hardships and the public

interest favored DSHS because the challenged reductions “do

not involve medical care.” The court conceded that “a few of

the plaintiffs” might “ultimately require institutionalization as

a result of the State’s reduction in services.” However, the

court found “the possible threat of institutionalization for a

few personal care service beneficiaries” outweighed by “the

State’s interest in balancing the competing needs of a host of

different state-sponsored social service programs that currently provide aid to a diverse group of medically and financially disadvantaged state residents.” 

Plaintiffs appealed.

II. Standard of Review

We review the denial of a preliminary injunction for abuse

of discretion. Alliance for the Wild Rockies, 632 F.3d at 1131.

6992 M. R. v. DREYFUS
A district court abuses its discretion if it bases its decision “on

an erroneous legal standard or clearly erroneous findings of

fact.” Id. (quoting Lands Council v. McNair, 537 F.3d 981,

986 (9th Cir. 2008) (en banc)). We review a district court’s

legal conclusions de novo and its factual findings for clear

error. Id. (quoting Lands Council, 537 F.3d at 986-87). In

doing so, “we first look to whether the trial court identified

and applied the correct legal rule to the relief requested. Second, we look to whether the trial court’s resolution . . .

resulted from a factual finding that was illogical, implausible,

or without support in inferences that may be drawn from the

facts in the record.” United States v. Hinkson, 585 F.3d 1247,

1263 (9th Cir. 2009) (en banc).

To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely

to suffer irreparable harm in the absence of preliminary relief,

that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter, 555 U.S. at 20. A

preliminary injunction is proper if there is a likelihood of

irreparable injury to plaintiff; there are serious questions

going to the merits; the balance of hardships tips sharply in

favor of the plaintiff; and the injunction is in the public interest. Alliance for the Wild Rockies, 632 F.3d at 1131-32.

III. Discussion

For the reasons that follow, we conclude that the district

court abused its discretion in denying the motion for a preliminary injunction under the standard articulated in Alliance for

the Wild Rockies. We reach only Plaintiffs’ claims under the

Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

A. Irreparable Injury

The 12 named Plaintiffs remaining in this litigation submitted substantial evidence that the emergency regulation threatM. R. v. DREYFUS 6993
ens them with a serious risk of institutionalization.1

 DSHS

contested this evidence as to some named Plaintiffs, but as to

others it offered either unsubstantiated and conclusory

responses or no responses at all. The district court rejected

Plaintiffs’ showing by relying on three general rationales. It

wrote that Plaintiffs “fail to show a threat of harm because

they (1) ascribe the threat of institutionalization to [their]

deteriorating medical conditions, unrelated to the provision of

personal care services hours; (2) demonstrate ineffective management of currently allocated personal care services hours;

or (3) identify non-personal care services as the cause of their

predicted institutionalization.” We conclude that the district

court did not sufficiently consider individualized evidence

that the named Plaintiffs were likely to suffer irreparable

injury. We describe three Plaintiffs whose situations illustrate

the inadequacy of DSHS’s responses, as well as the inadequacy of the general rationales, to counteract Plaintiffs’ showing of the likelihood of irreparable injury.

1. M.R.

Lead plaintiff M.R., a 37-year-old woman, suffers from

severe mental retardation, daily grand and petite mal seizures,

scoliosis, cerebral palsy, hypothyroidism, and mood disorder.

M.R. lives with her mother, a registered nurse, who provides

personal care services. M.R.’s mother assists her with almost

all basic activities of daily life, including eating, toilet care,

bathing, dressing, medication management, and moving from

place to place. She prepares all of M.R.’s meals and feeds

M.R. through a tube when she refuses to eat. M.R.’s feeding

tube “requires extensive maintenance because the tube was

inserted too low and has a tendency to ooze and become

infected, and because [M.R.] has a tendency to grab and pull

1

Two of the original 14 named Plaintiffs no longer allege that they face

a risk of institutionalization. Plaintiff M.J.B. has received an ETR increasing her authorized hours, and Plaintiff H.C. has died, for reasons unrelated

to the hours reduction. 

6994 M. R. v. DREYFUS
on it.” M.R. is incontinent, wears adult diapers, and cannot

use the toilet or clean herself without assistance. “Frequently,” M.R. “has accidents” and “[a]s a result of incontinence,

. . . must bathe at least twice a day to remove urine and sometimes feces.” M.R. likes to choose her own clothing, but needs

her mother’s assistance to dress and undress herself. Because

of her scoliosis and cerebral palsy, M.R. “requires assistance

for walking, . . . is unsteady on her feet, . . . has poor balance

and unequal leg length, and her knees buckle.” M.R.’s mother

administers her numerous prescription medications through

her feeding tube several times a day. 

M.R. participates in a Medicaid waiver program administered by DSHS’s Division of Developmental Disabilities.

That is, M.R. is eligible for full-time institutional care, see 42

U.S.C. § 1396n(c)(1), WASH. ADMIN. CODE § 388-845-0005,

but M.R.’s mother has chosen to care for her at home “because her extensive personal care and medical needs are best

served at home . . . . M.R. loves the independence she is

afforded by living at home to set her own schedule, do puzzles, color or trace letters, and spend time with [her mother]

playing with beads or sorting coins.” M.R.’s CARE assessment assigned her to group D Medium-High, a designation

that entitled her to 236 hours of in-home personal care services per month. As is true of many family providers of personal care services, M.R.’s mother provides more than 236

hours of care per month; the additional hours go uncompensated. The emergency regulation reduced M.R.’s authorized

hours of compensated time to 215 per month, a decrease of

8.9 percent.

Before the challenged regulation took effect, a DSHS

assessment of M.R. concluded that her household was in “crisis mode” and at “serious risk of failure.” The emergency regulation, M.R.’s mother declared, “will push us, in our already

vulnerable situation, over the edge. . . . I will have to find a

job outside of the house and cut back the time spent caring for

M.R. . . . Already, I am stretched thin and am living on the

M. R. v. DREYFUS 6995
margin. . . . I cannot provide more care for no pay when

already there are insufficient funds to keep our household

afloat.” M.R.’s mother declared, “[i]f M.R.’s hours are

reduced from their present levels, I will have no other option

but to take another job, which will require moving M.R. into

an institutional facility. I cannot afford to continue giving services at the rate that I have[.] I have to get an outside job, and

I know of no other individual, Adult Family Home or Personal Care Provider who can take care of M.R. due to her

medical and behavioral issues.” If M.R.’s mother is forced to

take a paying job outside the home, M.R. will lose more than

just 21 hours of care per month. She will lose the 21 compensated hours, but she will also lose the uncompensated hours

that her mother was previously able to provide because she

was not employed outside the home. 

Because M.R. has difficulty communicating, is “disruptive

and aggressive,” and “makes unwanted physical contact with

others . . . by trying to hug them or assault them,” she will

likely suffer in an institutional setting; indeed, she has previously been expelled from two Adult Day Health facilities. 

Institutional placement will exacerbate M.R.’s already severe

mental and physical disabilities. Dr. William Gardner, an

expert in habilitative mental health treatment, declared that

“[w]hen individuals with . . . developmental disabilities . . .

would be able to live successfully in the community, but are

institutionalized because of insufficient home and community

based support, that is likely to result in frustration, despair,

hopelessness, and the severe deterioration of their mental and

often physical health.”

In response to M.R.’s factual allegations, DSHS introduced

a declaration from Geri-Lyn McNeill, a DSHS program manager. McNeill has never met M.R. McNeill declared that she

“spoke to [M.R.’s] case manager[;] he does not believe that

the decrease in hours would significantly increase the risk of

injury, health deterioration or institutionalization for M.R.”

6996 M. R. v. DREYFUS
The district court found that M.R. had made an insufficient

showing of irreparable injury for three reasons, none of them

specific to M.R. First, the court determined that M.R.’s medical condition, like that of eight other named Plaintiffs (S.J.,

A.B., An.B., M.B., J.B., J.H., D.W., and C.B.), had “deteriorated since [her] last CARE assessment.” Consequently, the

court was “unable to determine whether the alleged threat of

institutionalization [M.R.] face[s] is the result of the State’s

reduction in personal care service hours or the deterioration in

[her] medical condition[ ].” 

This finding misapprehends the law of causation in the context of an irreparable injury inquiry. M.R. did indeed provide

evidence that her condition had deteriorated since her July

2010 CARE assessment. She suffered infections and injured

her head, back, and chin during grand mal seizures. M.R.’s

feeding tube fell out, leaving her with an open wound and

causing dehydration. Her replacement feeding tube makes it

painful for M.R. to eat and drink, so her mother must give her

food and water in smaller, more frequently administered,

quantities. M.R.’s mobility has also worsened, making it more

difficult for her mother to help her use the toilet and clean

herself. M.R.’s decline in health has necessitated more trips

to hospitals and physicians for care, and these trips consume

more time because M.R. cannot move as easily as she once

could. 

[1] M.R.’s mother’s filed two declarations. Her first declaration, filed before any of the incidents of deterioration just

discussed occurred, established that the reduction in hours

would threaten M.R. with institutionalization even in her predeterioration condition. Her second declaration, which

described M.R.’s deteriorating condition, showed that the risk

of institutionalization had grown, not that it had newly arisen.

A plaintiff who seeks preliminary injunctive relief must show

“that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. She need not further show that

the action sought to be enjoined is the exclusive cause of the

M. R. v. DREYFUS 6997
injury. See, e.g., Harris v. Bd. of Supervisors, 366 F.3d 754,

766 (9th Cir. 2004). In Harris, we affirmed a preliminary

injunction barring Los Angeles County from closing one hospital that served indigent patients and reducing the number of

beds at another. Id. at 766-67. We determined that the patients

had shown that reducing the available public health care facilities would likely cause them irreparable harm that “includes

pain, infection, amputation, medical complications, and death

due to delayed treatment.” Id. at 766. This was so “[a]lthough

delays exist in the stretched county health care system

already.” Id. We affirmed because “exacerbation of the current overcrowded situation and additional suffering [could] be

avoided” by enjoining the hospital closures. Id. 

Likewise, in Brown v. Plata, 131 S. Ct. 1910, 1936-37

(2011), the Supreme Court affirmed an injunction ordering a

reduction in California’s prison population even though the

constitutional violations that prompted the injunction — systemwide deficiencies in the provision of medical and mental

health care — “were caused by factors in addition to overcrowding and . . . reducing crowding in the prisons would not

entirely cure the violations.” Id. at 1936. Applying the restrictive standard set forth in the Prison Litigation Reform Act —

legislation designed to “curb[ ] the equitable discretion of district courts,” Miller v. French, 530 U.S. 327, 339 (2000) —

the Court concluded that overcrowding was a “primary cause”

of the constitutional violations. 131 S. Ct. at 1923, 1936

(quoting 18 U.S.C. § 3626(a)(3)(E)(I)). The court reached this

conclusion notwithstanding its acknowledgment that “[i]n

addition to overcrowding the failure of California’s prisons to

provide adequate medical and mental health care may be

ascribed to chronic and worsening budget shortfalls, a lack of

political will in favor of reform, inadequate facilities, and systemic administrative failures.” Id. at 1936.

[2] Like many Washington beneficiaries of in home personal care services, M.R. suffers from numerous mental and

physical disabilities, some of them degenerative. Her medical

6998 M. R. v. DREYFUS
condition will worsen over time, and as her health declines

she will face an increased risk of institutionalization. That risk

is not exclusively attributable to the challenged regulation

reducing the number of compensated hours of assistance, but

the challenged regulation and resulting reduction in hours will

exacerbate that risk. The regulation therefore inflicts cognizable irreparable injury for purposes of a preliminary injunction.

See Harris, 366 F.3d at 766. 

Second, in the alternative, the district court found that M.R.

had not shown a likelihood of irreparable injury because there

was “evidence controverting the possibility of any harm.” The

sole basis in the record for the court’s finding was McNeill’s

declaration, which relied on the conclusory opinion of a

DSHS case manager who “does not believe that the decrease

in hours would significantly increase the risk of injury, health

deterioration, or institutionalization for M.R.” McNeill’s declaration contains neither the detail nor the substantiation necessary to rebut M.R.’s detailed factual showing. See United

States v. Navarro, 979 F.2d 786, 789 (9th Cir. 1992).

Third, the district court concluded that M.R., like four other

named Plaintiffs (T.M., M.B., A.B., and A.R.), had not made

a showing of cognizable harm because she “argue[s] that

[she] face[s] a threat of institutionalization because the budget

reduction will reduce available services for supervision, exercise, and medication management.” The court reasoned, “personal care services do not include supervision, exercise, or

medication management.” DSHS concedes that the court

erred as a matter of law by excluding medication management

from personal care services. See WASH. ADMIN. CODE § 388-

106-0010. Further, the court’s conclusion does not sufficiently take into account M.R.’s evidence. M.R.’s “personal

care services” do include supervision, and without such supervision, she faces the threat of institutionalization. M.R.’s

mother declared that she “needs constant supervision” in

order to perform activities of daily living and instrumental

activities of daily living that constitute covered personal care

M. R. v. DREYFUS 6999
services. For example, if left unsupervised, M.R. “could wake

up, try to get out of bed, and fall with no ability to get up.”

Compare WASH. ADMIN. CODE § 388-106-0010 (covered

activities of daily living include “bed mobility” and “locomotion in room and immediate living environment”). In addition,

M.R. “could have bowel and bladder accidents and be unable

to get clean, resulting in skin breakdowns and hospitalization.” Compare WASH. ADMIN. CODE § 388-106-0010 (covered

activities of daily living include “toilet use” and “personal

hygiene”). M.R. could “pull out the feeding tube” and therefore “wouldn’t get adequate nutrition or medications on

schedule.” Compare WASH. ADMIN. CODE § 388-106-0010

(covered activities of daily living include “eating” and “medication management”).

2. C.B.

Plaintiff C.B., a 55-year-old woman, suffers from spinal

stenosis, congestive heart failure, emphysema, hepatitis B and

C, chronic bacterial infections, neuropathy in both hands and

feet, high blood pressure, depression, and bipolar disorder.

C.B. requires assistance with a range of tasks, including cooking, transporting herself to and from appointments with physicians, bathing and dressing herself, and cleaning her home.

C.B. participates in Washington’s COPES Medicaid waiver

program. The emergency regulation reduced her authorized

in-home personal services care hours from 133 to 115 per

month, a 13.5 percent decrease. As a result, C.B. stated, her

caregiver Tia Davis “will be forced to change her work schedule and cut back the time spent on taking me to and from doctor’s appointments and household chores such as cooking and

helping me bathe.” C.B.’s health will likely suffer because

absent Davis’s assistance she will have difficulty transporting

herself to doctor’s appointments; will bathe herself and attend

to her personal hygiene less capably; will not clean her home,

which will exacerbate the symptoms of her bacterial infections; and will feed herself by preparing only microwaveable

hot meals, with adverse consequences for her high blood pres7000 M. R. v. DREYFUS
sure and obesity. If these predictable results occur, C.B. “will

face severe deterioration in [her] condition and [will] have to

seek emergency room care and admission to a nursing home

from an even weaker point.”

DSHS did not respond to C.B.’s evidence. The district

court, relying on a single sentence in a declaration in which

C.B. stated that her “health has deteriorated,” rejected C.B.’s

showing of irreparable injury on the same ground that it

rejected the showings made by M.R. and seven other named

Plaintiffs. That is, the court stated that it was “unable to determine whether the alleged threat of institutionalization these

particular plaintiffs face is the result of the State’s reduction

in personal care service hours or the deterioration in their

medical conditions.”

[3] The court did not sufficiently analyze C.B.’s individualized evidence and the impact of the emergency regulation

on her specific clinical situation. C.B. established that because

of the hours reduction, Davis will spend less time with her.

Consequently, Davis will cook fewer meals for C.B., so that

C.B. will “eat microwaveable instant foods that are generally

high in fat and sodium and detrimental to my pre-diabetes,

high blood pressure, and obesity.” Davis “will likely have to

spend less time taking C.B. to her doctor’s appointments,”

resulting in compromised care because C.B. “[v]ery rarely . . .

has energy to use the paratransit services alone, as she finds

it much more cumbersome and more difficult for her to get

around without the one-on-one assistance I provide.” Necessarily, C.B. will bathe and clean her home less often because

she can do neither by herself. When C.B. is left alone, her

apartment falls into “disarray — pet fur everywhere, dirty

dishes in the sink, pet food scattered across the kitchen floor

. . . . [T]he inevitable clutter around her apartment also

increases her risk of tripping and falling.” 

[4] The reduction in hours places C.B. at risk of institutionalization. Dr. Mitchell LaPlante, an expert in the demogM. R. v. DREYFUS 7001
raphy and epidemiology of disability, declared that “[h]aving

inadequate levels of help compromises the safety, comfort,

and hygiene of individuals requiring help with ADLs and

IADLs, reducing their ability to live independently and

increasing their risk of institutionalization and death.” Dr.

LaPlante declared that “[u]nmet needs are especially serious

. . . when individuals go unbathed, remain in the same clothing for an extended period, are left in a bed or chair longer

than is acceptable, or are unassisted when they need to go to

the bathroom or eat. Because these activities involve satisfying primary biological functions [unmet] need cannot be tolerated for long.”

[5] The reduction in hours, like the risk of institutionalization that the reduction produces, is directly attributable to the

emergency regulation, not to C.B.’s deteriorating health. And,

as explained above, C.B. was not required to show that the

emergency regulation was the exclusive cause of her injury.

She need only show that, by depriving her of access to care

that is critical to her health, the regulation exacerbates the risk

that she will be institutionalized.

3. K.S.

Plaintiff K.S., a 59-year-old woman, suffers from diabetes,

congenital glaucoma, macular degeneration, and clinical

depression. K.S. participates in Washington’s COPES waiver

program. She has undergone hip and knee replacements and

has very limited mobility. She uses a walker to move about

her home and is susceptible to falls. K.S. requires assistance

moving, bathing and dressing herself, cooking, managing her

medications, using the toilet, and cleaning herself after accidents. If K.S. experiences incontinence while she is left alone,

she must sit on the toilet until a provider arrives to help her

undress, bathe, and launder her soiled clothes.

Prior to the challenged regulation, K.S. received 133 hours

of in-home personal care services per month. The regulation

7002 M. R. v. DREYFUS
reduced her authorized monthly hours to 115, a 13.5 percent

decrease. To accommodate the reduction in hours, K.S. discontinued weekend care and has “suffered negative physical

and mental health consequences.” For example, K.S. wears

compression stockings because she suffers from edema. K.S.

cannot remove her stockings without assistance, so when she

is unattended for long periods of time, the skin on her legs

becomes dry and itchy and develops sores, putting K.S. at risk

of infection. Because K.S. cannot lace her shoes without help,

she cannot leave her home on the weekends because it is too

dangerous for her to walk in slippers. Consequently, she feels

“trapped” in her home and “shut off from the world.” K.S.

declared that “[i]t is difficult to get all of my cleaning, shopping, food preparation, bathing and hygiene needs done” during the hours authorized. Consequently, K.S. is “worried that

I would be unable to remain in my home . . . and I very much

want to avoid going to an adult group home. Staying in my

home gives me a feeling of independence and I believe my

mental health condition would deteriorate in an adult day

home quickly. Even though I would be able to get more continuous hours of care at a nursing home, the lack of privacy

and the lack of independence that I would experience there

would be very difficult for me.”

[6] In response, DSHS introduced a declaration from

McNeill, who stated that it was “unclear” why K.S. did not

discuss her concerns about going unattended on the weekends

with her case manager. Had she done so, McNeill declared,

“[a] Care Plan could have been developed with a daily schedule or a schedule with a shorter gap between care. . . . Recipients and providers often believe that more hours are the only

solution to problems, but good care planning and effective

case management can often create effective alternatives.

DSHS believes that could occur here.” The district court

relied on McNeill’s declaration to find that K.S.’s “apparent

failure to contact [her] case manager[ ] about [her] concerns

is particularly noteworthy. Rather than giving the State an

opportunity to correct any gaps in care, [K.S.] appear[s] to

M. R. v. DREYFUS 7003
assume that the reduction will result in harm and that the only

alternative to reinstatement of [her] hours is institutionalization.”

[7] McNeill’s declaration ignores the fact that K.S. did

contact her case manager to discuss the impact of the hours

reduction on her care plan. In a declaration filed before

McNeill’s, K.S. stated that after learning of the hours reduction, she “informed my case manager . . . that in order to cope

with the announced cuts to my home care hours, I had made

the decision to let go of my weekend provider.” K.S.’s case

manager “did not suggest any alternative scheduling arrangements for me to avoid going without weekend care during or

any time since that phone call.” The district court should not

have discounted K.S.’s showing of harm on the ground that

she should have revised her care plan with her case manager.

K.S. had attempted to do just that, but without success.

4. Summary

[8] The detailed evidence introduced to show the adverse

impact of the challenged regulation on M.R., C.B., and K.S.,

as well as the weak responses that DSHS offered to contest

that evidence, establish a sufficient likelihood of irreparable

injury. Each of the named Plaintiffs has made similar showings of specific ways in which the hours reduction will injure

them, but the district court addressed these individualized

showings in a generalized fashion.

Our dissenting colleague, Judge Rawlinson, faults us for

relying on Plaintiffs’ declarations and not adequately deferring to the district court’s determination regarding irreparable

injury. However, as discussed above, the district court relied

on an overly strict causation standard and an erroneous

assumption that personal care services did not include medication management, and it did not address the facts of the

individual Plaintiffs’ cases. Judge Rawlinson implies that the

district court discredited the Plaintiffs’ declarations because

7004 M. R. v. DREYFUS
of their “verbatim or nearly verbatim” recitations of harm.

The declarations’ similarities in structure and language are

offset by the many different, specific details, such as those

described above for M.R., C.B., and K.S., about each named

Plaintiff.

[9] We have several times held that beneficiaries of public

assistance “may demonstrate a risk of irreparable injury by

showing that enforcement of a proposed rule ‘may deny them

needed medical care.’ ” Indep. Living Ctr. of S. Cal., Inc. v.

Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (quoting

Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982)), cert.

granted on other issue, 131 S. Ct. 992 (2011); see also, e.g.,

Cal. Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098,

1113 (9th Cir. 2010), cert. granted on other issue, 131 S. Ct.

992 (2011); Rodde v. Bonta, 357 F.3d 988, 998-99 (9th Cir.

2004); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).

District courts in our circuit have reached the same conclusion. See, e.g., Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980,

997 (N.D. Cal. 2010) (“[T]he reduction or elimination of public medical benefits is sufficient to establish irreparable harm

to those likely to be affected by the program cuts.”); V.L. v.

Wagner, 669 F. Supp. 2d 1106, 1121-22 (N.D. Cal. 2009);

Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1176-77

(N.D. Cal. 2009). 

[10] In its order, the district court emphasized that “[t]his

case does not involve . . . the provision of medical care

. . . ; rather this case relates solely to in-home personal care

services, which consist of non-medical assistance with activities of daily living.” The court reasoned that “[t]he standard

articulated in Beltran and Independent Living Ctr. . . . is not

applicable in this case because personal care services are not

included within Medicaid’s definition of ‘medical care.’ ” But

whether personal care services are included in Medicaid’s

definition is not the critical issue. The critical issue is whether

the services are necessary to maintain Plaintiffs’ mental or

M. R. v. DREYFUS 7005
physical health, and to avoid serious risk of institutionalization.

[11] Under Washington law, DSHS may cover the costs to

beneficiaries only for services deemed “medically necessary.”

WASH. ADMIN. CODE § 388-501-0050(4)(d). All payments by

DSHS, both before and after the promulgation of the challenged regulation, are therefore payments for “medically necessary” services. “Medically necessary” services are defined

as those that are “reasonably calculated to prevent, diagnose,

correct, cure, alleviate or prevent worsening of conditions in

the client that endanger life, or cause suffering or pain, or

result in an illness or infirmity, or threaten to cause or aggravate a handicap, or cause physical deformity or malfunction.”

Id. § 388-501-0005. Plaintiffs have shown that the services

they will lose as a result of the challenged regulation —

which include assistance in feeding, cleaning, and medicating

themselves — relate intimately to their mental and physical

health. The loss of these services will exacerbate Plaintiffs’

already severe mental and physical difficulties. These predictable consequences will put Plaintiffs at serious risk of institutionalization.2

 We therefore conclude that Plaintiffs have

shown a likelihood of irreparable injury.

B. Serious Questions Going to the Merits

Plaintiffs argue that the challenged regulation violates the

antidiscrimination provisions of the ADA, 42 U.S.C. § 12132,

and the Rehabilitation Act, 29 U.S.C. § 794(a). We conclude

that Plaintiffs have at least presented serious questions going

to the merits of their ADA and Rehabilitation Act claims.

Because the applicable provisions of the ADA and the Rehabilitation Act are “co-extensive,” we discuss both claims

2

We do not reach Plaintiffs’ alternative argument that DSHS’s CARE

tool measures minimum individual need, such that any departure below

hours authorized by the CARE process will necessarily cause irreparable

injury. 

7006 M. R. v. DREYFUS
together, focusing on the ADA. Sanchez v. Johnson, 416 F.3d

1051, 1062 & n.6 (9th Cir. 2005).

In enacting the ADA, Congress found that “historically,

society has tended to isolate and segregate individuals with

disabilities, and, despite some improvements, such forms of

discrimination against individuals with disabilities continue to

be a serious and pervasive social problem.” 42 U.S.C.

§ 12101(a)(2). Moreover, Congress found that “discrimination

against individuals with disabilities persists in such critical

areas as . . . institutionalization,” id. § 12101(a)(3); and that

“individuals with disabilities continually encounter various

forms of discrimination, including outright intentional exclusion, . . . failure to make modifications to existing facilities

and practices, . . . [and] . . . segregation,” id. § 12101(a)(5).

[12] In an attempt to remedy society’s history of discriminating against the disabled — discrimination that included

isolating, institutionalizing, and segregating them — the ADA

provides that “no qualified individual with a disability shall,

by reason of such disability, be excluded from participation in

or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” Id. § 12132; accord 29 U.S.C. § 794(a). The

Department of Justice has promulgated regulations implementing the ADA. See 42 U.S.C. § 12134(a). One of the regulations is the so-called “integration mandate,” providing that

“[a] public entity shall administer services, programs, and

activities in the most integrated setting appropriate to the

needs of qualified individuals with disabilities.” 28 C.F.R.

§ 35.130(d). The “most integrated setting” is the one that “enables individuals with disabilities to interact with nondisabled

persons to the fullest extent possible.” Id. Part 35, App. B

(2011). The regulation also provides that “[a] public entity

shall make reasonable modifications in policies, practices, or

procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity

can demonstrate that making the modifications would fundaM. R. v. DREYFUS 7007
mentally alter the nature of the service, program, or activity.”

Id. § 35.130(b)(7).

In Olmstead, the Supreme Court addressed this statutory

and regulatory scheme and reached two conclusions. First, the

Court held that “[u]njustified isolation” of disabled persons

“is properly regarded as discrimination based on disability.”

527 U.S. at 597; see also Sanchez, 416 F.3d at 1063 (“In Olmstead, the Supreme Court interpreted . . . the ADA as forbidding the arbitrary segregation of the disabled in large state

institutions.”). Second, however, the Court held that “[t]he

State’s responsibility, once it provides community-based

treatment to qualified persons with disabilities, is not boundless. . . . Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would

allow the State to show that, in the allocation of available

resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the

care and treatment of a large and diverse population of persons with . . . disabilities.” 527 U.S. at 603-04; see also Arc

of Wash. State, 427 F.3d at 619 (“[T]he Court recognized certain state justifications that would defeat an ADA-based challenge, for example ‘the States’ need to maintain a range of

facilities for the care and treatment of persons with diverse

. . . disabilities, and the States’ obligation to administer services with an even hand.’ ” (quoting Olmstead, 527 U.S. at

597)). The Court held that under the ADA, “States are

required to provide community-based treatment for persons

with . . . disabilities when the State’s treatment professionals

determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be

reasonably accommodated, taking into account the resources

available to the State and the needs of others with . . . disabilities.” Olmstead, 527 U.S. at 607; accord id. at 587.

The district court rejected Plaintiffs’ ADA claim on two

grounds. The court concluded that to state a violation of the

ADA’s integration mandate, Plaintiffs were required to show

7008 M. R. v. DREYFUS
“that the State’s action leaves them no choice but to submit

to institutional care to obtain services for which they are otherwise qualified.” In the alternative, the court concluded that

requiring Washington to maintain in-home personal care services hours at pre-regulation levels “would likely constitute a

fundamental alteration of the state’s Medicaid program.” We

take the court’s two conclusions in turn.

[13] First, the district court erred in stating the legal standard under the integration mandate of the ADA. An ADA

plaintiff need not show that institutionalization is “inevitable”

or that she has “no choice” but to submit to institutional care

in order to state a violation of the integration mandate. Rather,

a plaintiff need only show that the challenged state action

creates a serious risk of institutionalization. The United States

Department of Justice (“DOJ”), the agency that promulgated

the regulation containing the integration mandate, 28 C.F.R.

§ 35.130(d), filed a statement of interest in the district court

in which it argued in favor of a preliminary injunction. In its

filing, DOJ wrote that “[t]he integration mandate prohibits

public entities from pursuing policies that place individuals at

risk of unnecessary institutionalization.” “[I]mminent risk of

institutionalization is not required.” Rather, “[t]he elimination

of services that have enabled Plaintiffs to remain in the community violates the ADA, regardless of whether it causes

them to enter an institution immediately, or whether it causes

them to decline in health over time and eventually enter an

institution in order to seek necessary care.” 

[14] We afford DOJ’s view considerable respect. Olmstead, 527 U.S. at 597-98 (“Because the Department is the

agency directed by Congress to issue regulations implementing Title II [of the ADA], its views warrant respect.”). We

also defer to an agency’s reasonable interpretation of its own

statutorily authorized regulation. Barrientos v. 1801-1825

Morton LLC, 583 F.3d 1197, 1214 (9th Cir. 2009) (citing Fed.

Express Corp. v. Holowecki, 552 U.S. 389, 395, 397 (2008)).

An agency’s interpretation of its own regulation is “controlM. R. v. DREYFUS 7009
ling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal

quotation marks omitted); Barboza v. Cal. Ass’n of Prof’l

Firefighters, 650 F.3d 1073, 1079 (9th Cir. 2011) (“[U]nless

an alternative reading is compelled by the regulation’s plain

language or by other indications of [the agency’s] intent at the

time of the regulation’s promulgation, deference is required.”

(internal quotation marks and citation omitted)).

The district court discounted DOJ’s interpretation of the

integration mandate as “a self-serving agency interpretation

taken solely in the context of ongoing litigation.” In Auer, the

Supreme Court rejected the argument that an agency position

taken in an amicus brief was unworthy of deference: 

[T]hat the Secretary’s interpretation comes to us in

the form of a legal brief . . . does not, in the circumstances of this case, make it unworthy of deference.

The Secretary’s position is in no sense a post hoc

rationalization advanced by an agency seeking to

defend past agency action against attack. There is

simply no reason to suspect that the interpretation

does not reflect the agency’s fair and considered

judgment on the matter in question.

519 U.S. at 462 (internal quotation marks and citation omitted); accord Holowecki, 552 U.S. at 397 (deferring to agency’s interpretation of a regulation in an amicus brief);

Barrientos, 583 F.3d at 1214 (same). The circumstances in

this case are similar to those in Auer. DOJ is not a party and

is not “seeking to defend past agency action against attack.”

Its “statement of interest” in the district court under 28 U.S.C.

§ 517 is comparable to an amicus brief because of its interest

in ensuring a proper interpretation and application of the integration mandate. Further, we note that DOJ’s interpretation of

the integration mandate in this case is consistent with its interpretation in another case before this court. The district court,

and our dissenting colleague, overlook the Supreme Court’s

7010 M. R. v. DREYFUS
direction about how to treat agency interpretations in such

instances.

DOJ’s interpretation is not only reasonable; it also better

effectuates the purpose of the ADA “to provide clear, strong,

consistent, enforceable standards addressing discrimination

against individuals with disabilities.” 42 U.S.C.

§ 12101(b)(2). Institutionalization sometimes proves irreversible. Dr. Gardner, Plaintiffs’ expert on habilitative mental

health care, declared that “[i]nstitutionalization . . . creates an

unnecessary clinical risk that the individual will become so

habituated to, and so reliant upon, the programmatic and treatment structures that are found in an inpatient setting that his

or her ability to function in less structured, less restrictive,

environments may become severely compromised.” In recognition of this clinical reality, the cases accord with DOJ’s

interpretation. See, e.g., V.L., 669 F. Supp. 2d at 1119

(“[P]laintiffs who currently reside in community settings may

assert ADA integration claims to challenge state actions that

give rise to a risk of unnecessary institutionalization.”);

Brantley, 656 F. Supp. 2d at 1170-71 (“[T]he risk of institutionalization is sufficient to demonstrate a violation of [the

ADA].”); see also, e.g., Fisher v. Okla. Health Care Auth,

335 F.3d 1175, 1182 (10th Cir. 2003) (“Olmstead does not

imply that disabled persons who, by reason of a change in

state policy, stand imperiled with segregation, may not bring

a challenge to that state policy under the ADA’s integration

regulation without first submitting to institutionalization.”). 

The district court’s second ground for rejecting Plaintiffs’

ADA claim was that requiring DSHS to maintain preregulation levels of personal care services hours would likely

constitute a fundamental alteration of the state’s Medicaid

plan. We have not previously decided whether a state may

assert a fundamental alteration defense where, as here, the

state opposes an injunction that would preserve a preexisting

program that complies with the ADA. The text of the regulation suggests that the defense is available only to excuse proM. R. v. DREYFUS 7011
spective modifications to programs. See 28 C.F.R.

§ 35.130(b)(7) (“A public entity shall make reasonable modifications in policies, practices, or procedures . . . unless the

public entity can demonstrate that making the modifications

would fundamentally alter the nature of the service, program,

or activity.”). Here, Plaintiffs argue that they are seeking to

preserve the status quo and prevent modifications to the

state’s preexisting program. The Tenth Circuit rejected a fundamental alteration defense in similar circumstances, observing, “[n]or is it clear why the preservation of a program as it

has existed for years and as approved by the federal government would fundamentally alter the nature of the program.”

Fisher, 335 F.3d at 1183 (internal quotation marks omitted).

However, we need not decide whether the fundamental alteration defense applies in these circumstances because, even if

it does, Plaintiffs have at least raised a serious question on the

merits about the validity of the defense on the facts.

[15] When evaluating a fundamental alteration defense, a

court must consider “not only the cost of providing

community-based care to the litigants, but also the range of

services the State provides others with mental disabilities, and

the State’s obligation to mete out those services equitably.”

Olmstead, 527 U.S. at 597. That is, the ADA requires home

or community-based placement of disabled persons only if

“the placement can be reasonably accommodated, taking into

account the resources available to the State and the needs of

others with . . . disabilities.” Id. at 607; see also 28 C.F.R.

§ 35.130(b)(7); Sanchez, 416 F.3d at 1067-68; Arc of Wash.

State, 427 F.3d at 618-19. But budgetary concerns do not

alone sustain a fundamental alteration defense. See Fisher,

335 F.3d at 1181 (“If every alteration in a program or service

that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be

hollow indeed.”); see also, e.g., Townsend, 328 F.3d at 520

(“[E]ven if extension of community-based long term care services to the medically needy were to generate greater

expenses for the state’s Medicaid program, it is unclear

7012 M. R. v. DREYFUS
whether these extra costs would, in fact, compel cutbacks in

services to other Medicaid recipients.”); Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3d

Cir. 2005); Radaszewski v. Maram, 383 F.3d 599, 614 (7th

Cir. 2004); Frederick L., 364 F.3d at 495-96; Cota, 688 F.

Supp. 2d at 995. DSHS must show how “fund-shifting . . .

would disadvantage other segments of the . . . disabled population.” Frederick L., 364 F.3d at 497; see Townsend, 328

F.3d at 520. 

[16] At this point in the litigation, it is highly speculative

that preliminary injunctive relief for Plaintiffs will compromise care for the rest of Washington’s disabled community to

such an extent that Washington’s Medicaid program would be

fundamentally altered. Dreyfus, DSHS’s director, filed a declaration in the district court stating that if an injunction were

granted the agency “would need to eliminate the Optional

State Plan Service of Medicaid Personal Care and put a limit

on the number of recipients . . . served under the Long Term

Care [42 U.S.C. § 1396n(c)] waivers including COPES and

New Freedom.” It is difficult to assess Dreyfus’s dire predictions and to determine, even if they are borne out, whether

they would constitute a fundamental alteration. Washington’s

legislature has mandated that the state Medicaid plan include

the provision of personal care services for the categorically

needy, and DSHS has touted COPES as the centerpiece of the

legislatively mandated commitment to deinstitutionalization.

WASH. REV. CODE § 74.09.520(2). In its briefs, DSHS did not

identify specific programs that would necessarily be cut if all

or part of the challenged regulation were preliminarily

enjoined, nor was counsel able to identify such programs at

oral argument. Indeed, DSHS counsel was unable to say with

certainty whether the cuts would necessarily come from the

Medicaid program, or whether cuts could be made to some

other portion of Washington’s budget if Plaintiffs were to prevail in this litigation. See Townsend, 328 F.3d at 520 (to make

out fundamental alteration defense, state must show that the

“provision of community-based services to medically needy

M. R. v. DREYFUS 7013
disabled Washingtonians might fundamentally alter its Medicaid programs” (emphasis added)). The state must make a

more particularized showing of harm to others in the disabled

community in order to eliminate serious questions on the merits concerning the validity of the fundamental alteration

defense. See Frederick L., 364 F.3d at 497; Townsend, 328

F.3d at 520.

C. Balance of Hardships

[17] We conclude that the balance of hardships tips sharply

in favor of Plaintiffs. As discussed above, the record in this

case establishes that the named Plaintiffs suffer severe hardship, made still more severe by the challenged regulation,

resulting in a serious risk of institutionalization in violation of

the ADA and the Rehabilitation Act. Set against Plaintiffs’

hardship are diffuse and nonspecific hardships asserted by the

State. It is clear that money spent on behalf of the Plaintiffs

is money that will not be spent on other programs. But it is

not clear from the evidence in the record or from the arguments made to us precisely what those other programs are and

the extent to which they would be cut. See, e.g., Harris, 366

F.3d at 766 (“The County suggests that the injunction forces

it to cut other important programs . . . . But whether any or

all of those programs will actually be impacted by the court’s

injunction is much more speculative than the probable injury

the chronically ill plaintiffs face absent preliminary injunctive

relief.”). 

Nor is it clear that the state, on balance, will save money

by cutting the services at issue in this case, given the cost to

the state of institutionalizing Plaintiffs. We have several times

held that the balance of hardships favors beneficiaries of public assistance who may be forced to do without needed medical services over a state concerned with conserving scarce

resources. See, e.g., Indep. Living Ctr., 572 F.3d at 659

(“State budgetary considerations do not therefore, in social

welfare cases, constitute a critical public interest that would

7014 M. R. v. DREYFUS
be injured by the grant of preliminary relief.”). The balance

of hardships favors plaintiffs challenging cuts to state programs “in light of evidence in the record that suggests that

[the action sought to be enjoined] may have an adverse, rather

than beneficial, effect on the State’s budget, such that it would

actually save the State money if it maintained [the status

quo].” Dominguez v. Schwarzenegger, 596 F.3d 1087, 1098

(9th Cir. 2010); see also Rodde, 357 F.3d at 999-1000. Plaintiffs have advanced such evidence in this case by showing that

if program beneficiaries currently treated in their homes transition to more costly institutional care, the state will not realize its anticipated cost savings.

D. Public Interest

The Washington legislature has expressly found that “the

public interest would best be served by a broad array of longterm care services that support persons who need such services at home or in the community whenever practicable and

that promote individual autonomy, dignity, and choice.”

WASH. REV. CODE § 74.39A.005. “[T]here is a robust public

interest in safeguarding access to health care for those eligible

for Medicaid, whom Congress has recognized as ‘the most

needy in the country.’ ” Indep. Living Ctr., 572 F.3d at 659

(quoting Schweiker v. Hogan, 457 U.S. 569, 590 (1982)); see

also Cal. Pharmacists Ass’n, 596 F.3d at 1114-15 (rejecting

the argument that the public interest required that the legislature be able to “exercise its considered judgment in a manner

that serves the best interests of both [Medicaid] recipients and

the State as a whole,” despite the state’s argument that “injunctions against payment reductions have forced the State to

eliminate many optional [Medicaid] services”).

[18] We recognize that a preliminary injunction is an “extraordinary remedy never awarded as of right.” Winter, 555

U.S. at 24. But given the likelihood of irreparable harm to

Plaintiffs, the serious questions on the merits raised by their

suit, the balance of hardships that tips sharply in their favor,

M. R. v. DREYFUS 7015
and the statutorily declared policy of the state in favor of the

services they seek to preserve, we conclude that the public

interest is served by preserving the status quo by means of a

preliminary injunction. See Rodde, 357 F.3d at 999 n.14 (that

Plaintiffs seek “to preserve, rather than alter, the status quo

while they litigate the merits of this action also strengthens

their position”).

E. Scope of the Injunction

[19] Our conclusion with respect to irreparable injury and

risk of institutionalization is limited to the named Plaintiffs.

We have stated that “[s]ystem-wide [injunctive] relief is

required if the injury is the result of violations of a statute . . .

that are attributable to policies or practices pervading the

whole system (even though injuring a relatively small number

of plaintiffs), or if the unlawful policies or practices affect

such a broad range of plaintiffs that an overhaul of the system

is the only feasible manner in which to address the class’s

injury.” Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir.

2001). The challenged regulation likely establishes such a

policy for a system of care. But Armstrong involved a certified class. Subject to exceptions not applicable here,

“[w]ithout a properly certified class, a court cannot grant

relief on a class-wide basis.” Zepeda v. INS, 753 F.2d 719,

728 n.1 (9th Cir. 1984). At the time we reviewed this appeal,

the district court had yet to rule on Plaintiffs’ motion for class

certification. We conclude that the regulation must be preliminarily enjoined as to the named Plaintiffs. We leave it to the

district court to determine on remand whether, in light of this

opinion, broader preliminary injunctive relief is appropriate.

Conclusion

The named Plaintiffs have shown a likelihood of irreparable injury because the regulation puts them at serious risk of

institutionalization. For the same reason, they have raised a

serious question going to the merits of their ADA/

7016 M. R. v. DREYFUS
Rehabilitation Act claim. They have also raised a serious

question on the merits about the validity of the fundamental

alteration defense. The balance of hardships tips sharply in

Plaintiffs’ favor, and the public interest favors a preliminary

injunction. We therefore reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion in this case.

It is important to note at the outset that this appeal challenges

the denial of a preliminary injunction. Our review is for an

abuse of the considerable discretion afforded the district court

in making the determination whether a preliminary injunction

should be entered. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). So long as the district court “got the law right,” we “will not reverse the district

court.” Id. (citation omitted). Our scope of review is necessarily limited. See Sports Form, Inc. v. UPI, Inc., 686 F.2d 750,

752 (9th Cir. 1982). 

In a thoughtful and comprehensive 50-page order, the district court denied the request for a preliminary injunction. As

the majority acknowledges, any factual findings made by the

district court must be accepted unless clearly erroneous. See

Alliance for the Wild Rockies, 632 F.3d at 1131. The district

court prefaced its decision by noting its “careful” review” of

the 164+ documents filed by the parties and the 5+ hours of

oral argument during two hearings. See District Court Order,

p. 2 n.4. The district court also recognized that a preliminary

injunction is an “extraordinary interlocutory remedy” that

should be the exception rather than the rule. See id. at p. 3

(quoting Winter v. Natural Res. Defense Counsel Inc., 129 S.

Ct. 365, 376 (2008)).

M. R. v. DREYFUS 7017
The district court found that not one of the named plaintiffs

satisfied the criteria to be placed in the classification reflecting the highest acuity of need. See id. at p. 10. Keeping in

mind that the services at issue are personal care services, and

not medical care, the district court determined that the plaintiffs failed to establish a likelihood of irreparable harm. See

id. at p. 12 & n.13. The district court relied largely on its

determination that the threatened injury (institutionalization)

was not imminent. See id. at p. 13 n.14 (quoting City of Los

Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). The district

court emphasized that this factor was particularly important

where a party seeks to enjoin official action on the part of a

State. See id. (noting federalism concern).

The district court underscored the fact that Washington’s

assessment mechanism did not reflect the individual need of

each program participant. Rather, the assessment reflected the

relative acuity of the need for personal care services. See id.

at p. 14. The assessment essentially determined what share of

the available resources a program participant should be allocated. See id. at p. 15. Because the assessment does not translate into a number of absolute hours of required personal

services, the district court concluded that plaintiffs could not

persuasively argue that a decrease in the number of personal

care services hours resulted in the required showing that institutionalization was imminent. Indeed, the district court found

to the contrary. See id. at p. 17 n.20 (referring to evidence in

the record that the 2009 reduction in personal care services

hours “did not result in any negative consequences to personal

care service beneficiaries . . . .”) (emphasis in the original).

Specifically, program participants were not institutionalized

due to the decrease in personal care service hours. See id.; see

also id. at p. 18 (explaining that since the 2011 reductions

went into effect, “over 99% of the sampled records reflected

no complaint concerning the adequacy of allotted hours”).

I recognize that my colleagues in the majority rely on the

declarations from the plaintiffs to support their reversal of the

7018 M. R. v. DREYFUS
district court’s decision. However, without a showing of clear

error on the part of the district court judge, it is not enough

to simply credit one party’s view of the evidence. Actually,

Supreme Court precedent dictates exactly the opposite

approach. Where there are two views of the evidence presented, and the trier of fact selects one view over the other,

no clear error can be shown. See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (“Where there are two

permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.”) (citations omitted). 

In this case, the plaintiffs presented declarations averring

that institutionalization was likely if the personal service

hours were decreased. The State defendants presented declarations refuting those submitted by the plaintiffs. At this stage

of the proceedings and considering our limited standard of

review, I am not persuaded that the district court clearly erred

in crediting the State’s view of the facts.1

Ultimately, the district court determined that the plaintiffs’

declarations failed to make an adequate showing of a likely

threat of harm because the declarations

(1) ascribe the threat of institutionalization to plaintiffs’ deteriorating medical conditions, unrelated to

the provision of personal care service hours; (2)

demonstrate ineffective management of currently

allocated personal care service hours; or (3) identify

non-personal care services as the cause of their predicted institutionalization. 

Id. at p. 24.2

1

It is of some interest that the district court noticed that the plaintiffs’

declarations of harm were “repeated verbatim or nearly verbatim throughout the various declarations . . .” Id. at p. 24 n.30. 2

The district court also noted the use of qualifying language in the declarations that rendered them “speculative at best . . .” Id. at p. 25 n.31. 

M. R. v. DREYFUS 7019
The district court described nine plaintiffs whose medical

conditions worsened without regard to the decrease in personal care service hours. See id. at pp. 24-25. The district

court also credited evidence from the State defendants regarding “[i]nefficient [u]se of [c]urrently [a]llocated [p]ersonal

[c]are [s]ervice [h]ours[,]” Id. at pp. 26-27, and the inclusion

of non-personal care services in the asserted harm arguments,

see id. at pp. 27-28.

Considering the district court’s determination regarding the

likelihood of irreparable harm with the required deference to

its factual findings, I am not persuaded that we should reverse

the district court’s determination.

In my view, a similar conclusion is in order upon review of

the district court’s resolution of plaintiffs’ claim predicated on

the provisions of the Americans With Disabilities Act (ADA).

The thrust of plaintiffs’ argument is that the mandated

decrease in personal care services hours violates the ADA

requirement that disabled individuals be integrated into the

community for services rather than be institutionalized to

receive services. According to plaintiffs, the decrease in personal care services hours will result in institutionalization of

individuals who could remain in the community if the personal care services hours were maintained at their previous

levels. The majority agrees with the plaintiffs’ contention,

describing this issue as a serious question going to the merits

of plaintiffs’ ADA claims.

The Supreme Court addressed the ADA’s integration provision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).

In that case, mental patients were retained in institutional

facilities after medical providers concluded that treatment in

community-based facilities was appropriate. See id. at 593.

The Court held that the ADA required placement in a

community-based facility if “the placement can be reasonably

accommodated, taking into account the resources available to

the State and the needs of others with . . . disabilities . . . .”

7020 M. R. v. DREYFUS
Id. at 587. The Court fully acknowledged that the State had

multiple and diverse obligations to its disabled citizens and a

concomitant obligation to administer all its services “with an

even hand . . . .” Id. at 597. The Court explained that the

State’s obligation to provide a variety of services evenly for

all program participants mandated that more leeway be

afforded the States in administering those programs. See id. at

605.

Given the leeway that the Supreme Court has instructed

must be afforded the States in administering social services

programs, the question of whether plaintiffs have raised a

serious issue going to the merits is not as cut-and-dried as the

majority portrays.

The majority urges “considerable respect” to the Department of Justice’s bald statement that “the elimination of services that have enabled Plaintiffs to remain in the community

violates the ADA, regardless of whether it causes them to

enter an institution immediately, or whether it causes them to

decline in health over time and eventually enter an institution

in order to seek necessary care.” Majority Opinion, pp.

21140-41 (quoting the statement of interest filed by the DOJ).

However, the district court was not persuaded that the DOJ’s

bald statement was entitled to deference. See District Court

Order, p. 39 n.42. 

The Supreme Court in Olmstead stopped short of requiring

that deference be given to the DOJ’s view. Rather, the

Supreme Court stated:

We need not inquire whether the degree of deference

described in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc. . . . is in order: [i]t

is enough to observe that the well-reasoned views of

the agencies implementing a statute constitute a

body of experience and informed judgment to which

courts and litigants may properly resort for guidance.

M. R. v. DREYFUS 7021
Olmstead, 527 U.S. at 598 (citation, alteration and internal

quotation marks omitted) (emphasis added). 

The fact that the district court elected not to defer to the

DOJ’s bald, unreasoned statement did not run afoul of the

Supreme Court’s permissive view of the deference owed to

the DOJ’s interpretation of the integration regulation. 

Because I conclude that the plaintiffs have not raised serious questions going to the merits of their claim, and because

the district court committed no clear error in finding a lack of

irreparable harm, I would affirm the district court’s denial of

injunctive relief on those bases. However, I also note that

Olmstead contains language supporting the district court’s

determination that granting the relief requested by Plaintiffs

would likely constitute a fundamental alteration of the State’s

plan. See Olmstead, 527 U.S. at 597 (“In evaluating a State’s

fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only

the cost of providing community-based care to the litigants,

but also the range of services the State provides others with

. . . disabilities, and the State’s obligation to mete out those

services equitably.”). This same rationale supports the district

court’s determination that the public interest favors permitting

the State to equitably balance the needs of all persons who are

served by the Medicaid program rather than requiring the

State to accommodate the needs of a discrete subset of that

population at the expense of others in need.

Keeping in mind our limited scope of review and the deference owed to the district court’s factual findings, I do not

agree that the district court abused its discretion when it

denied the requested preliminary injunction. Therefore, I

respectfully dissent from the majority opinion.

7022 M. R. v. DREYFUS