Harris v. James, CV-94-A-1422-N.

• Citation: 896 F. Supp. 1120
• Decision Date: 13 September 1995
• Docket Number: No. CV-94-A-1422-N.,CV-94-A-1422-N.
• Parties: Willie Mae HARRIS, et al., Plaintiffs, v. Governor Fob JAMES, et al., Defendants.
• Court: United States District Courts. 11th Circuit. Middle District of Alabama

896 F. Supp. 1120

Willie Mae HARRIS, et al., Plaintiffs, v. Governor Fob JAMES, et al., Defendants.

No. CV-94-A-1422-N.

United States District Court, M.D. Alabama, Northern Division.

July 10, 1995.

Order Implementing Plan September 13, 1995.

COPYRIGHT MATERIAL OMITTED

J. Richard Cohen, Southern Poverty Law Center, Montgomery, AL, Lawrence F. Gardella, Legal Services Corp. of Alabama, Montgomery, AL, for plaintiffs.

Henry Clay Barnett, Jr., Herman H. Hamilton, Jr., Capell, Howard, Knabe & Cobbs, P.A., Montgomery, AL, James H. Evans, Jeff Sessions, Atty. Gen., Office of the Atty. Gen., Montgomery, AL, Charles H. Durham, III, Asst. Atty. Gen., Alabama Medicaid Agency, Montgomery, AL, for defendants.

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

ALBRITTON, District Judge.

This cause is now before the Court on the Motion for Summary Judgment filed by Plaintiffs on March 14, 1995. For reasons that follow, the Court finds that Plaintiffs' Motion for Summary Judgment is due to be GRANTED on the issue of liability.

On November 2, 1994, Plaintiffs¹ filed this civil action pursuant to 42 U.S.C. § 1983 seeking to enforce their rights under the Social Security Act. Plaintiffs, who are Medicaid recipients, seek injunctive relief that requires the State of Alabama to ensure necessary medical transportation to them and to all Medicaid recipients, as Plaintiffs allege is mandated by federal law.

Plaintiffs allege that Alabama's failure to offer non-emergency transportation to and from providers of services paid for by Medicaid and its failure to ensure that such transportation is available has forced the Plaintiffs to delay or forgo needed medical services and has subjected the Plaintiffs to a deterioration of their medical conditions. Plaintiffs allege that Defendants have failed to develop, implement, and maintain an adequate state plan that ensures necessary, non-emergency transportation for recipients and actually provides such transportation. Plaintiffs contend that 42 U.S.C. §§ 1396, 1396a-u, the Medicaid subchapter of the Social Security Act, and regulations issued thereunder, require such transportation and that the state's failure to provide it violates Plaintiffs' rights to such transportation.

Plaintiffs ask this court to (1) declare that the Alabama state plan for administering Medicaid violates rights guaranteed to the Plaintiffs by 42 U.S.C. § 1396a and the regulations adopted thereunder, (2) order Defendants to develop, implement, and maintain a state plan for transportation that will protect Plaintiffs' rights as guaranteed by 42 U.S.C. § 1396a and the regulations adopted thereunder, (3) award reasonable attorneys' fees and costs, and (4) order any other relief as the court deems necessary and just.

On May 17, 1995, Defendants filed a Brief in opposition to Plaintiffs' Motion for Summary Judgment.² In their brief, Defendants contend that although Alabama's non-emergency transportation plan is undoubtedly imperfect, the current record is not adequate for this court to determine that the plan violates federal law. Imperfection and ineffectiveness do not equate to illegality according to the Defendants. Defendants argue that the Alabama plan substantially complies with the requirements of the federal Medicaid statute and regulations. Defendants urge this court to find that the Plaintiffs may not bring this action because they have not done all they can to get help with their transportation problems under the current system.

Defendants seek to distinguish the Alabama plan from the Texas plan that a federal district court struck down in Smith v. Vowell, 379 F.Supp. 139 (W.D.Tex.), aff'd, 504 F.2d 759 (5th Cir.1974).³ Instead, Defendants liken the Alabama plan to the plan that a federal court in Tennessee provisionally approved in Daniels v. Tennessee Dep't of Health & Env't, No. 79-3107, 1985 WL 56553 (M.D.Tenn. Feb. 20, 1985). Defendants note that Congress contemplated the use of volunteers to provide services to Medicaid recipients and gave states discretion to devise a plan for necessary transportation. They state that they devised such a plan and that using volunteers keeps costs down. Finally, the Defendants contend that the Secretary of Health and Human Services ("Secretary") has taken a laissez-faire approach to Alabama's plan and that this court should follow suit.

II. FACTS

The court has carefully considered all affidavits, statements, exhibits, and documents appropriately submitted in support of and in opposition to Plaintiffs' Motion for Summary Judgment. Viewed in the light most favorable to the non-moving parties, the submissions establish the following undisputed facts:

Willie Mae Harris ("Harris") is a Medicaid recipient who resides in Perry County, Alabama. (Harris Aff.) Harris suffers from end stage kidney disease and needs three dialysis treatments a week. Id. Once or twice a month, Harris misses a dialysis treatment because of a lack of transportation. Id. Missing dialysis harms her health and makes her sick. Id. For example, in December 1994, Harris missed two dialysis treatments in a row because she could not get transportation, and she ended up having to go to the emergency room. Id.

There is no dialysis clinic in Harris' home town of Marion so she must travel forty miles one way from her home to the dialysis clinic in Selma. Id. No public transportation is available. Id. Because her car is unsafe to drive, Harris relies on her children to drive her to dialysis appointments. Id. Often there is not a car that works, and Harris pays a neighbor twenty dollars to take her to and from an appointment. Id. Harris does not have enough income to pay this cost very often. Id. In 1992, Harris asked the Department of Human Resources in Marion for assistance with her medical transportation, and she received no help. (Def.Attach. 1).

Linda Patton ("Patton") lives with her children in Birmingham, Alabama. (Def.Attach. 1). Patton and her two children, Tanika and John, are Medicaid recipients. (Patton Aff.) Patton is blind and suffers from endometriosis and other health problems. Id. Her children need to go to the doctor for general check-ups and pediatric, dental, and eye appointments. Id. The lack of transportation to her family's doctor appointments is an ongoing problem that has caused harm to the health of Patton and her children. Id. She has had to cancel medical appointments for herself and her children because she lacked transportation to the appointments. Id.

Patton often requests non-emergency medical transportation from Metro Area Express-Very Important Person ("MAX-VIP"), a specialized public transportation service for the Birmingham area, for herself and her children. (Def.Attach. 1). Patton calls MAX-VIP one week before a medical appointment for herself or one of her children to reserve a seat on the MAX-VIP vehicle for the date of the appointment. (Def.Attach. 1). On some occasions, Patton is unable to arrange transportation from this service, and as she is unable to pay for other transportation, she is forced to cancel appointments with her doctor or her children's doctor. (Patton Aff.).

Bessie Ross ("Ross"), of Selma, Alabama, is the sister and next friend of Tommy Gordon ("Gordon"), a Medicaid recipient. (Ross Aff.) Gordon is handicapped and mentally retarded; he also is afflicted with high blood pressure and a hiatal hernia. Id. Gordon's conditions require him to see the doctor on a regular basis. Id. When he misses doctor appointments, his health worsens. Id.

Tommy has recurring problems obtaining transportation to his appointment with his doctor. Id. Ross does not have a car and has back problems which prevent her from being able to drive. Id. Ross cannot afford the expense of transportation by cab, so she tries to arrange transportation by paying friends a small fee. Id. She is not always successful, and Gordon has missed many appointments because there is no available transportation. Id.

Bertha J. is a Medicaid recipient with end stage renal disease. (Bertha J. Aff.) She must travel fifty miles for her hemodialysis treatments three times a week. Id. Obtaining transportation to her dialysis appointments is a severe hardship for her. Id. Over the past three years, Bertha J. has regularly missed dialysis treatments once or twice a month because of a lack of transportation. Id. Bertha J. has sought assistance from the Department of Human Resources twice, but both times she was told that they did not have transportation. Id.

Although Bertha J. recently found reliable transportation to her dialysis, she must pay fifteen dollars a trip. Id. The cost of her transportation to dialysis constitutes at least a third of her total income. Id. Consequently, she struggles to pay her utilities and other necessities. Id.

None of the aforementioned representative plaintiffs has contacted Medicaid employees about transportation requests. (Def.Attach. 1). They have sought transportation assistance from such sources as the Alabama Kidney Foundation, private individuals, Children's Aid, and the Alabama Institute of the Deaf and Blind. Id.

In addition to the evidence regarding the difficulties that the named plaintiffs have had securing transportation to their medical appointment, there is evidence that other class members have similar problems. Steven Prince ("Prince") of Colbert County, has a daughter who receives Medicaid through SOBRA. (Prince Aff.) His daughter has birth defects and reflux problems that require frequent medical treatment from specialists in Birmingham. Id. Medicaid has covered most of the cost of medical treatment, but the travel back and forth to the doctors and clinics has created a financial hardship on the entire family. Id. Consequently, Prince is presently fighting eviction and utility cut-off. Id. Medicaid has never advised Prince that there was assistance available to help with transportation for his daughter's medical treatments. Id. Prince has...