Bryson v. Shumway

• Decision Date: 23 October 2001
• Docket Number: No. Civ. 99-558-M.,Civ. 99-558-M.
• Citation: 177 F.Supp.2d 78
• Parties: Bonnie BRYSON and Claire Shepardson, on behalf of themselves and all others similarly situated, Plaintiffs v. Donald SHUMWAY, in his capacity as Commissioner of the State of New Hampshire Department of Health and Human Services; and Susan Fox, in her capacity as Director of the State of New Hampshire Division of Developmental Services, Defendants
• Court: U.S. District Court — District of New Hampshire

177 F.Supp.2d 78

Bonnie BRYSON and Claire Shepardson, on behalf of themselves and all others similarly situated, Plaintiffs v. Donald SHUMWAY, in his capacity as Commissioner of the State of New Hampshire Department of Health and Human Services; and Susan Fox, in her capacity as Director of the State of New Hampshire Division of Developmental Services, Defendants

No. Civ. 99-558-M.

United States District Court, D. New Hampshire.

October 23, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Sheila O'Leary Zakre, Disabilities Rights Center, Inc., Concord, NH, for Bonnie Bryson, Claire Shepardson.

Suzanne M. Gorman, Attorney General's Office Civil Bureau, Concord, NH, for NH Dept. of Health and Human Services, New Hampshire Division of Developmental Services.

ORDER

MCAULIFFE, District Judge.

Plaintiffs in this action represent themselves and a class of persons who: (1) have acquired brain disorders (ABDs); (2) have requested home and community-based care ("HCBC") services from the State of New Hampshire's Medicaid program; (3) are eligible for services funded by Medicaid; (4) are on a waiting list for HCBC services; and (5) have been, or are likely to be, placed in nursing homes or other institutions due to a lack of available HCBC services. Defendant Susan Fox is Director of the Division of Developmental Services ("DDS"), a unit of the New Hampshire Department of Health and Human Services ("HHS"), of which Defendant Shumway is Commissioner. DDS, under the oversight of HHS, administers the portion of the State's Medicaid program that provides reimbursement for services to persons, such as the class of plaintiffs, who have ABDs.

In this seven-count action for declaratory and injunctive relief, brought under 42 U.S.C. § 1983, plaintiffs seek to vindicate the right of the class they represent under: (1) 42 U.S.C. § 1396a et seq. (the Medicaid Act) and associated regulations; (2) 42 U.S.C. § 12132 et seq. (the Americans with Disabilities Act or "ADA"); (3) 29 U.S.C. § 794 (section 504 of the Rehabilitation Act of 1973 or "section 504"); and (4) the due process clause of the United States Constitution. Counts I, II, and VII allege violations of plaintiffs' rights under the Medicaid Act. Counts III and IV are based upon the ADA and section 504. Counts V and VI allege violations of plaintiffs' due process rights. In their prayers for relief, plaintiffs ask the court to order defendants to: (1) submit a plan for providing them, expeditiously, with ABD/HCBC services; (2) cease and desist from providing ABD/HCBC services in an untimely manner; (3) cease and desist from policies and practices that: (a) deny them services based upon the severity of their needs, and (b) provide them with inferior institutional services rather than more effective HCBC services; (4) cease and desist from providing them with services that curtail their freedom of movement and right to control their daily lives; (5) administer the ABD/HCBC program in accordance with reasonable written standards; and (6) provide class members with written notices of all decisions regarding their applications for the ABD/HCBC program that: (a) state the legal and factual basis for any such decision, and (b) inform them of their right to a hearing.

Before the court are: (1) defendants' motion for summary judgment on all counts (document no. 19), to which plaintiffs object; and (2) plaintiffs' motion for partial summary judgment on Counts II, VI, and VII (document no. 20), to which defendants object. For the reasons stated below: (1) defendants' motion for summary judgment is granted as to Counts I and V, denied as to Counts II, III, IV and VII, and moot as to Count VI; and (2) plaintiffs' motion for summary judgment is granted as to Count VII, denied as to Count II, and moot as to Count VI. Accordingly this case shall proceed to trial on Counts II, III, and IV.

Standard of Review

Summary judgment is appropriate when the record reveals "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). "To determine whether these criteria have been met, a court must pierce the boilerplate of the pleadings and carefully review the parties' submissions to ascertain whether they reveal a trialworthy issue as to any material fact." Perez v. Volvo Car Corp., 247 F.3d 303, 310 (1st Cir.2001) (citing Grant's Dairy-Me., LLC v. Comm'r of Me. Dep't of Agric., Food & Rural Res., 232 F.3d 8, 14 (1st Cir.2000)). A material fact is "a contested fact [that] has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (citing McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). In defending against a motion for summary judgment, "[t]he nonmovant may not rely on allegations in its pleadings, but must set forth specific facts indicating a genuine issue for trial." Geffon v. Micrion Corp., 249 F.3d 29, 34 (1st Cir.2001) (citing Lucia v. Prospect St. High Income Portfolio, Inc., 36 F.3d 170, 174 (1st Cir.1994)). When ruling upon a party's motion for summary judgment, the court must "scrutinize the summary judgment record `in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.'" Navarro, 261 F.3d at 94 (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990)).

Factual Background

The plaintiff class consists of persons with acquired brain disorders who qualify for Medicaid assistance. Acquired brain disorders are disruptions in brain function that are neither congenital nor caused by birth trauma, manifest prior to age sixty, and present "a severe and life-long disabling condition which significantly impairs a person's ability to function in society." N.H. CODE ADMIN. R. He-M 522.02(a). Key symptoms include a significant decline in cognitive functioning and/or a deterioration of behavior. Id.

The federal Medicaid program, as administered in New Hampshire by HHS, provides reimbursement for a variety of programs and services for persons with ABDs. Plaintiffs in this case are persons with ABDs who currently receive, or who are likely to receive, Medicaid funded services in nursing homes, psychiatric facilities, rehabilitation facilities, or other institutions. In addition to services provided in institutional settings, DDS also administers a program of home and community-based services for persons with ABDs. Many aspects of this program are actually carried out, under the direction of DDS, by a group of "area agencies." Plaintiffs represent the class of persons who wish to receive ABD/HCBC services rather than institutional care and who are currently on a waiting list for those services.

The ABD/HCBC program is operated under a waiver granted to HHS/DDS by the Center for Medicare and Medicaid Services ("CMS") (formerly the Health Care Financing Administration or HCFA), pursuant to the provisions of 42 U.S.C. § 1396n(c).

Waivers are intended to provide the flexibility needed to enable States to try new or different approaches to the efficient and cost-effective delivery of health care services, or to adapt their programs to the special needs of particular areas or groups of recipients. Waivers allow exceptions to State plan requirements and permit a State to implement innovative programs or activities on a time-limited basis, and subject to specific safeguards for the protection of recipients and the program.

42 C.F.R. § 430.25. Among other things, the waiver program: (1) allows a state to "include as [reimbursable] `medical assistance' ... payment for part or all of the cost of home or community-based services ...," 42 U.S.C. § 1396n(c)(1); and (2) waives certain requirements pertaining to statewideness, comparability, and income and resources that normally apply to state Medicaid programs, 42 U.S.C. § 1396n(c)(3). The waiver statute also requires that

the State provide[] assurances satisfactory to the Secretary that -

. . .

(D) under such waiver the average per capita expenditure estimated by the State in any fiscal year for medical assistance provided with respect to such individuals [as are served under the waiver program] does not exceed 100 percent of the average per capita expenditure that the State reasonably estimates would have been made in that fiscal year for expenditures under the State plan for such individuals if the waiver had not been granted.

42 U.S.C. § 1396n(c)(2)(D). To participate in the waiver program, a state applies to the Secretary of Health and Human Services for a certain number of waiver "slots," see 42 C.F.R. § 430.25(e), and "[t]he Secretary shall not limit to fewer than 200 the number of individuals in the State who may receive home and community-based services under a waiver under this subsection," 42 U.S.C. § 1396n(c)(10).

Defendants first applied for an ABD/HCBC waiver in 1993, to implement a three-year program that would serve fifteen, twenty-six, and thirty-seven individuals in its first, second, and third years. (Fox Aff., Ex. A.) After two amendments, New Hampshire now has a waiver program, up for renewal at the end of October 2001, that provided seventy-four slots for the year ending October 31, 1997, seventy-seven slots for the year ending October 31, 1998, eighty-one slots for the year ending October 31, 1999, eighty-five slots for the year ending October 31, 2000, and eighty-nine slots in the year ending October 31, 2001. (Fox Aff., Ex. B.) The waiver agreement between defendants and CMS (formerly HCFA) provides, inter alia:

14. The State will not refuse to offer home and community-based services to any recipient for whom it can reasonably be expected that the cost of home or community-based services furnished to that recipient would exceed the cost of a level of care referred to in item 2 of this request.

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