451 F.3d 496 (8th Cir. 2006), 05-3587, Lankford v. Sherman

Docket Nº:05-3587.
Citation:451 F.3d 496
Party Name:Susan Lavon LANKFORD; Rachel Ely; Joseph Everett, by next friend, Jan Everett; Donald Eugene Brown; Laura Lee Greathouse; Kimberly Vogelpohl; Adam Daniel Thomason, Appellants, The National Council on Independent Living; The United States Society for Augmentative and Alternative Communication; The American Language-Hearing Association; The National
Case Date:June 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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451 F.3d 496 (8th Cir. 2006)

Susan Lavon LANKFORD; Rachel Ely; Joseph Everett, by next friend, Jan Everett; Donald Eugene Brown; Laura Lee Greathouse; Kimberly Vogelpohl; Adam Daniel Thomason, Appellants,

The National Council on Independent Living; The United States Society for Augmentative and Alternative Communication; The American Language-Hearing Association; The National Disability Rights Network, Amici on Behalf of Appellants,


Gary SHERMAN, in his official capacity as Director of the Missouri Department of Social Services, Appellee.

No. 05-3587.

United States Court of Appeals, Eighth Circuit.

June 22, 2006

Submitted: April 17, 2006.

Appeal from the United States District Court for the Western District of Missouri.

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Martha J. Perkins, argued, Chapel Hill, North Carolina (Jane Perkins and Sarah Somers, Chapel Hill, North Carolina; Joel Ferber, Ann B. Lever, and Daniel Claggett, Legal Services of Eastern Missouri, St. Louis, Missouri; Michael Finkelstein, Missouri Protection and Advocacy, Jefferson City, Missouri; Thomas E. Kennedy, III and Deborah S. Greider, Alton, Illinois; Rochelle Bobroff and Dorothy Siemon, AARP Foundation Litigation, Washington, D.C.; Henry A. Freedman, Marc Cohan, Petra T. Tasheff, Cary L. LaCheen, and Brooke Richie, New York, New York; Michael Ferry, Gateway Legal Services, Inc., St. Louis, Missouri; Sidney D. Watson and John J. Ammann, St. Louis University School of Law, St. Louis, Missouri; Lewis Golinker, Ithaca, New York; Ed King and Eugene Coffey, National Senior Citizens Law Center, Washington, D.C., on the brief), for appellant.

Gary L. Gardner, Asst. Atty. Gen., argued, Jefferson City, Missouri, for appellee.

Before WOLLMAN, BEAM, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Plaintiffs – disabled adult Medicaid recipients – seek a preliminary injunction prohibiting Missouri's Director of Social Services from enforcing a state regulation curtailing the provision of durable medical equipment ("DME") to most categorically-needy Medicaid recipients. See Mo. Code Regs. Ann. tit. 13, § 70-60.010 (2005). Invoking 42 U.S.C. § 1983 and the Supremacy Clause, U.S. Const. Art. VI, cl. 2, they allege that the regulation violates Medicaid's comparability and reasonable-standards requirements. See 42 U.S.C. §§ 1396a(a)(10)(B), (a)(17). The district court denied a preliminary injunction, finding the regulation consistent with the Medicaid Act. Plaintiffs appeal. Having jurisdiction under 28 U.S.C. § 1292(a)(1), this court vacates the order of the district court, and remands for further proceedings.

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Before the 2005 legislative session, Missouri provided DME as a stand-alone Medicaid benefit to all recipients. Under the DME program, plaintiffs received wheelchairs, wheelchair batteries and repairs, orthotics, orthopedic devices, parenteral nutrition, augmentative communication devices, hospital beds, bed rails, lifts, and other prosthetics. See Mo. Rev. Stat. § 208.152.1(15) (repealed August 28, 2005). Citing budget constraints, the General Assembly passed a new statute eliminating the DME program as a covered Medicaid service, except for recipients who are blind, pregnant, or needy children, or for those who receive home health care services under the state plan. See Mo. Rev. Stat. § 208.152.2 (Supp. 2005) (providing an exception for wheelchairs, prosthetics, and orthopedic devices to these individuals). Under the revised statute, Medicaid recipients may not receive DME as a stand-alone benefit, unless they fall within one of the statutory groups.

Plaintiffs have never challenged the statute's elimination of the DME program. Rather, plaintiffs contest a September 2005 emergency regulation, which reinstates coverage of certain DME items for all Medicaid recipients, while specifically defining the statutorily-provided DME items for the blind, pregnant, and needy children, and those receiving home health care. See Mo. Code Regs. Ann. tit. 13, § 70-60.010 (2005).1

Under the regulation, the blind, pregnant, needy children, and individuals who receive home health care may receive Medicaid coverage for DME items that include, but are not limited to:

Prosthetics; orthotics; oxygen and respiratory care equipment; parenteral nutrition; ostomy supplies; diabetic supplies and equipment; decubitus care equipment; wheelchairs; wheelchair accessories and scooters; augmentative communication devices; and hospital beds.

Id. § 70-60.010.6. All other adult Medicaid recipients cannot receive Medicaid-funded DME, except for:

Prosthetics, excluding an artificial larynx; ostomy supplies; diabetic supplies and equipment; oxygen and respiratory equipment, excluding CPAPs, BiPAPs, nebulizers, IPPB machines, humidification items, suction pumps and apnea monitors; and wheelchairs, excluding wheelchair accessories and scooters.


The regulation further clarifies that, for all DME recipients, "DME is equipment that can withstand repeated use, is primarily and customarily used to serve a medical purpose, generally is not useful to a person in the absence of an illness or injury, and is appropriate for use in the home." Id. § 70-60.010(4). Even if an item is classified as DME, it is not covered unless it both meets the DME definition and "is reasonable and necessary for treatment of the illness or injury, or to improve the functioning of a malformed or permanently inoperative body part." Id. § 70-60.010(6).

Plaintiffs, adult Medicaid recipients, have disabilities ranging from paralysis to cardiopulmonary disease. Before the new regulation, they received medically-prescribed DME from Medicaid. Under the new regulation, however, plaintiffs claim they are ineligible to receive DME items

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that are necessary for their medical care and independence (which they cannot afford). Compared to the repealed DME program, they argue, the new regulation excludes (for most recipients) orthotics, parenteral nutrition, catheters, augmentative communication devices, hospital beds, bed rails, lifts, and wheelchair batteries and repair items.

Rather than attack the revised statute, plaintiffs seek to enjoin the DME regulation. Plaintiffs agree that Missouri may lawfully provide additional benefits only to needy children and pregnant women. See 42 U.S.C. § 1396a(a)(10)(G)(V), 42 C.F.R. § 440.250(p) (pregnant women); 42 U.S.C. §§ 1396a(a)(4)(B), 1396d(r), 42 C.F.R. § 440.250(b) (needy children). Plaintiffs contend that Missouri may not provide additional DME benefits to blind recipients (unless Missouri provides those benefits to all adult recipients). Plaintiffs assert violations of federal comparability and reasonable-standards requirements that the State treat Medicaid recipients equally and with reasonable, non-discriminatory standards. See 42 U.S.C. §§ 1396a(a)(10)(B), (a)(17). See also 42 C.F.R. § 440.230. They also claim that the state regulation conflicts with these federal requirements, and is preempted by the Supremacy Clause. U.S. Const. Art. VI, cl. 2.

In the district court, the State defended the DME regulation primarily by arguing that it had applied to the Centers for Medicare and Medicaid Services ("CMS") for a waiver of the federal comparability requirement, which would permit additional benefits for the blind. See 42 U.S.C. § 1396n(b). The State argued that the waiver application defeated plaintiffs' likelihood of success on the merits. The State also claimed that plaintiffs can still obtain necessary DME if they (1) qualify for home health care, or (2) seek an exception for non-covered DME items through the exceptions process. Due to these options, said the State, the DME regulation did not harm plaintiffs enough to justify an injunction.

The district court denied a preliminary injunction. The court focused entirely on plaintiffs' comparability claim, and did not discuss the reasonable-standards claim. Specifically, the court determined that, because plaintiffs had other options to receive necessary DME, they could not establish irreparable harm. Moreover, the court agreed that Missouri's pending waiver application precluded a likelihood of success on the merits. The court noted, however, that if the waiver were not obtained, Missouri could not provide additional items of DME to the blind (without providing them to all adult recipients). Plaintiffs appeal.2


Before addressing the merits, this court must resolve the issue of mootness – a jurisdictional issue raised in the State's supplemental brief and at oral argument. See Ali v. Cangemi, 419 F.3d 722, 723-24 (8th Cir. 2005) (en banc) ("If an issue is moot in the Article III sense, we have no discretion and must dismiss the action for lack of jurisdiction"). The record has significantly changed since plaintiffs first appealed. CMS has now denied Missouri's request for a comparability waiver. While CMS recommended a number of alternatives that may allow Missouri to provide additional DME services to the blind, Missouri chose to submit an amended Medicaid

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plan that deletes any reference to federal financial participation for additional services to the blind. To date, CMS has not approved or rejected the amended plan; negotiations are ongoing. While the revised Missouri statute and DME regulation have not changed, the State contends that it provides additional DME to the blind only with state tax funds, with no federal funding.

The State argues that its decision to fund the DME program for blind recipients only with state dollars makes the amended plan comply with all Medicaid rules, rendering this case moot. It is well-settled that "a defendant's voluntary cessation...

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