Boulet v. Cellucci

Decision Date19 July 2000
Docket NumberNo. CIV.A. 99-10617-DPW.,CIV.A. 99-10617-DPW.
Citation107 F.Supp.2d 61
PartiesEdmund BOULET, et al., Plaintiffs, v. Argeo Paul CELLUCCI, et al., Defendants.
CourtU.S. District Court — District of Massachusetts

Neil V. McKittrick, Carol V. Rose, David S. Friedman, Hill & Barlow, Boston, MA, for plaintiffs.

Giny Sinkel, Atty. Gen.'s Office, Boston, MA, John E. Bowman, Jr., Government Bureau, Office of Atty. Gen., Boston, MA, for Argeo Paul Cellucci, Gerald Morrissey, Jr., defendants.

Giny Sinkel, Atty. Gen.'s Office, Boston, MA, for Andrew Natsios, defendant.

Thomas E. Kanwit, U.S.Atty.'s Office, Boston, MA, for Donna E. Shalala, interested party.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

This case turns on the meaning of the mandate of the Medicaid Act that Medicaid "assistance shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C.A. § 1396a(a)(8) (emphasis supplied). The named plaintiffs are five mentally retarded adults eligible to receive Medicaid services who, acting by and through their parents, have brought a class action lawsuit against state officials responsible for administering Massachusetts' Medicaid program. The plaintiffs' proposed class includes all mentally retarded or developmentally disabled individuals in Massachusetts who are not receiving Medicaid services for which they are eligible. They seek an injunction ordering the Commonwealth to provide them with such services—specifically, with respect to the named plaintiffs, residential habitation services for which the plaintiffs have been on a waiting list for years— within a reasonable period of time.

I will certify a class somewhat narrower than that which plaintiffs propose and I will grant the plaintiffs' motion for partial summary judgment specifically declaring their entitlement within 90 days to residential habitation services in a group home setting to the extent such settings exist. The record before me is unclear about the availability of such settings. Consequently, I will conditionally order a show cause hearing to allow defendants to move, if they choose, to establish an alternative transitional timetable for delivering plaintiffs the services they have requested.

I. BACKGROUND

The parties broadly agree that the questions before me are questions of law and that no material facts are in dispute. Nonetheless, they strenuously and extensively debate contested points of fact. I agree that I am asked essentially to resolve points of law and that the disputes of fact are not now material. Accordingly, I will set out the undisputed facts together with a brief account of the disputed points.

A. The Parties

The named plaintiffs are all unable to care for themselves and presently live with their parents1. All of the named plaintiffs have been declared eligible for Medicaid services, and in each case, the plaintiffs' parents have requested residential 24-hour-per-day services for their children. (Compl. ¶¶ 9-12.) None of the plaintiffs has yet received the requested services, and all have been placed on a Department of Mental Retardation ("DMR") waiting list for these services. (Id.)

Plaintiff Edmund Boulet is 40 years old and lives with his parents Mary Ann and Gerald Boulet in Sharon, Massachusetts. He has been on the DMR waiting list for more than 10 years. (Compl. ¶ 9.)

Plaintiff Richard Byers is 45 years old and lives with his parents Donald and Natalie Byers in Medford, Massachusetts. He also has been on the DMR waiting list for more than 10 years. (Id. ¶ 10.)

Plaintiffs Robert Dubord and Bryan Dubord are brothers and are 31 and 27 years old respectively. They live with their parents Marlene and Claude Dubord in Bridgewater, Massachusetts. Robert Dubord has been on the DMR waiting list for more than 9 years, and Bryan has been on the list for more than 5 years. (Id. ¶ 11.)

Plaintiff Bridget Studley is 25 years old and lives with her parents Fred and Fay Studley in Abington, Massachusetts. She has been on the DMR waiting list for more than 3 years. (Id. ¶ 12.)

The complaint defines the proposed class of plaintiffs as "all mentally retarded or developmentally disabled individuals in the Commonwealth of Massachusetts who are not receiving or have not received Medicaid services for which they are eligible." (Id. ¶ 20.) The plaintiffs assert that the class includes at least 3,000 people. (Id. ¶ 19.)

The defendants are the state officials — the governor of Massachusetts; the Secretary of the Executive Office of Administration and Finance of Massachusetts; the Secretary for the Executive Offices of Health and Human Services of Massachusetts; the Commissioner of the Division of Medical Assistance for the Executive Office of Health and Human Services of Massachusetts; and the Commissioner of the Department of Mental Retardation of Massachusetts —charged with administering the Medicaid program in Massachusetts.

B. The Statutory Scheme

Medicaid is a joint federal-state program which aims to provide medical care to low-income individuals. See 42 U.S.C. § 1396 et seq.; Visiting Nurse Ass'n. of North Shore, Inc. v. Bullen, 93 F.3d 997, 999 (1st Cir.1996). Under the Medicaid program, the federal government "provides financial assistance to participating States to aid them in furnishing health care to needy persons." Harris v. McRae, 448 U.S. 297, 308, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). States may choose whether or not to participate. "Once a State voluntarily chooses to participate in Medicaid, the State must comply with the requirements of Title XIX and applicable regulations." Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 714 n. 1, 83 L.Ed.2d 661 (1985). States electing to participate must submit a state plan, which must then be approved by the Federal Health Care Financing Administration ("HCFA"). See Visiting Nurse Ass'n, 93 F.3d at 999. Federal funds are then made available to pay for "medical assistance" which is defined in § 1396d(a) to include the full range of services and beneficiaries that a state may choose to cover in its plan.

The Medicaid provision which is the basis for the claim at issue here requires that a state plan must "provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8). Two regulations follow from this statute. 42 C.F.R. § 435.911 provides that a state agency "must establish time standards for determining eligibility and inform the applicant of what they are. These standards may not exceed ... [n]inety days for applicants who apply for Medicaid on the basis of disability." Another regulation instructs, "The agency must — (a) Furnish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures; [and] (b) Continue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible." 42 C.F.R. § 435.930. "Medical assistance" under the Medicaid Act includes payment of part or all of the cost of "services in an intermediate care facility for the mentally retarded" (hereinafter "ICF/MR"). 42 U.S.C.A. § 1396d(a)(xi)(15). The primary purpose of an ICF/MR is to provide health or rehabilitative services to mentally retarded individuals. Id. § 1396d(d)(1).

The Medicaid Act allows states to bring a broader range of services into Medicaid coverage through its waiver provision, which provides:

The Secretary may by waiver provide that a State plan approved under this subchapter may include as "medical assistance" under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a[n] ... intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.

42 U.S.C. § 1396n(c)(1). The Medicaid Act allows states to fund the waiver up to the per capita average payments that it would have made to fund ICF/MR services. 42 U.S.C. § 1396n(c)(2)(D). A state with a waiver program must inform individuals found to require the level of services provided by an ICF/MR "of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of ... services in an [ICF/ MR]." 42 U.S.C. § 1396n(c)(2)(C). States may determine a maximum number of individuals to whom they will offer waiver services, but the number may not be limited to fewer than 200. 42 U.S.C. § 1396n(c)(10).

C. The Massachusetts Medicaid Program

Massachusetts participates in the Medicaid program and has filed a State Plan which the federal government has approved. (Compl. ¶ 27; Answer ¶ 27; Pls.' Ex. 1.) In the State Plan, Massachusetts commits to cover both "categorically needy" and "medically needy" individuals. (Statement of Undisputed Material Facts in Supp. of Pls.' Mot. for Summ.J. ("Pls.' Facts") ¶ 2; State Plan, Pls.' Ex. 1, at 12, 20, Attachment 2.2-A.). The Massachusetts Medicaid program includes coverage for services for qualified individuals in an ICF/MR. (Pls.' Facts ¶ 3; State Plan at 19, 20, 20a, Attachments 3.1-A at 7, 3.1-B at 6.)

Massachusetts also has a waiver plan, which has been approved by HCFA, "to provide home and community-based services to individuals who, but for the provision of such services, would require" ICF/MR services. (Pls.' Facts ¶ 4; Massachusetts Waiver, Pls.' Ex. 2, at 1.) Home or community-based services (other than room and board) are included as "medical assistance" for which federal funds are made available. 42 U.S.C.A. § 1396n(c)(1). The waiver covers services including residential habilitation, respite care, supported employment services, day services and...

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