Wilborn v. Martin

• Citation: 965 F.Supp.2d 834
• Decision Date: 15 August 2013
• Docket Number: Case No. 3:13–00574.
• Parties: Jeremy WILBORN, By next friend and Conservator, Tara WILBORN, Plaintiff, v. Larry MARTIN, Interim Commissioner, Tennessee Department of Finance and Administration; Darin Gordon, Deputy Commissioner and Director, Bureau of TennCare; and Patti Killingsworth, Assistant Commissioner, Chief of Long–Term Care, Bureau of TennCare, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

965 F.Supp.2d 834

Jeremy WILBORN, By next friend and Conservator, Tara WILBORN, Plaintiff,

v.Larry MARTIN, Interim Commissioner, Tennessee Department of Finance and Administration; Darin Gordon, Deputy Commissioner and Director, Bureau of TennCare; and Patti Killingsworth, Assistant Commissioner, Chief of Long–Term Care, Bureau of TennCare, Defendants.

Case No. 3:13–00574.

United States District Court,

M.D. Tennessee,

Nashville Division.

Aug. 15, 2013.

Lee Ann Swarm, Legal Aid of East Tennessee, Knoxville, TN, Lenny Lee Croce, Tennessee Justice Center, Inc., Nashville, TN, for Plaintiffs.

Linda A. Ross, Carolyn E. Reed, Tennessee Attorney General's Office, Nashville, TN, for Defendants.

MEMORANDUM

WILLIAM J. HAYNES, JR., Chief Judge.

Plaintiff, Jeremy Wilborn, by his next friend and conservator, Tara Wilborn, filed this action under 28 U.S.C. § 1331, the federal question statute against the Defendants: Larry Martin, Interim Commissioner, Tennessee Department of Finance and Administration; Darin Gordon, Deputy Commissioner and Director, TennCare Bureau and Patti Killingsworth, Assistant Commissioner, Chief of Long–Term Care, TennCare Bureau. Plaintiff asserts claims under the Americans with Disabilities Act (“ADA”) 42 U.S.C. §§ 12131–12165 and Section 504 of the Rehabilitation Act (“RA”) 29 U.S.C. § 794(a) for the Defendants' alleged discrimination on the basis of his disability. Plaintiff, who has quadriplegia, is an enrollee in Tennessee's TennCare, a Medicaid program administered by the Defendants. Plaintiff who was a minor, receives daily home health care services, but as an adult the Defendants informed Plaintiff of a substantial reduction in these benefits. For his ADA and RHA claims, Plaintiff alleges that as a qualified person with a permanent disability, the Defendants discriminated against him by severely limiting Plaintiff's existing benefits, that will result in Plaintiff's unjustified institutionalization in a nursing home in violation of the ADA and the RA.

Before the Court is Plaintiff's motion for preliminary injunctive relief (Docket Entry No. 4) contending, in sum, that notwithstanding Plaintiff's treating physician's medical assessment that Plaintiff's medical condition requires twenty four hours of care for seven days a week, the Defendants' TennCare plan limits Plaintiff's home health benefits to a maximum of 40 hours per week of home health care that are insufficient for Plaintiff's prescribed medical care. Plaintiff cites potential additional services under the Defendants' Home and Community Based Services (HCBS) under the Defendants' CHOICES program, but the Defendants refuse to provide them. In sum, Plaintiff asserts that the Defendants' cost limitations for services in their CHOICES program will force Plaintiff's institutionalization despite Plaintiff's previous rejection by a nursing home due to his medical treatment needs.

In response, Defendants contend, in essence, that given the State's comprehensive and effective plan for home and community-based services to persons with disabilities, the TennCare benefits and other accommodations offered to Plaintiff do not violate the ADA or RA. Moreover, Defendants assert that any alternation of those benefits to provide Plaintiff his prior health care regimen will cause a fundamental alteration of its TennCare plan that is prohibited by Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). Further, to provide Plaintiff home medical services at costs that exceed the Defendants' individual cost cap or limitation, is not a reasonable accommodation given the State's limited resources and the needs of other individuals with disabilities for the State's CHOICES program.

For the reasons set forth below, the Court concludes that Plaintiff's proof establishes a substantial likelihood of success on his ADA and RA claims. The Court finds that Plaintiff, as a person with a serious and permanent disability, will suffer severe risk of irreparable harm if he is confined at a nursing home. Plaintiff was previously released from a nursing home due to the demands of his medical care. The TennCare program for minors had determined that Plaintiff was in need of his current home care services. Plaintiff presented a home care services plan for his continuing care that is consistent with the Defendants' CHOICES program. The preliminary injunctive relief to effect Plaintiff's medical care plan does not present a fundamental alteration of the Defendants' CHOICES program nor pose any injury to any enrollee or prospective enrollee in the CHOICES program.

A. Findings of Fact

1. Plaintiff's Medical Care History

Plaintiff suffered an anoxic brain injury as a result of a suicide attempt in 2006 and enrolled in TennCare in January 2007. (Docket Entry No. 16, Dr. Willis Declaration at ¶ 3, 5). Plaintiff now receives twenty four hour home health care services at his residence from a private duty nurse who provides twelve hours care and a home health aide who also provides twelve hours care. (Docket Entry No. 16, Dr. Willis Declaration at ¶¶ 5, 8). Plaintiff is unable to attend to his bodily needs and is unable to communicate except that family members interpret his facial expressions and sounds as communicating with them. (Docket Entry No. 15, Swiney Declaration at ¶ 21, and Docket Entry No. 4, Exhibit B at ¶ 2 and Exhibit C at ¶ 3). Tara Wilborn, Plaintiff's mother, who is also his conservator, testified that Plaintiff enjoys activities outside the home, such as family gatherings movies, shopping and attending Church, with the assistance of others. (Docket entry No. 4, Exhibit B at ¶ 9).

In February 2009, Plaintiff intervened as a plaintiff in Crabtree v. Goetz, No. 3:08–0939, filed in this District challenging changes to TennCare's home health benefits. Id. at Docket Entry No. 100 Third Interveners' Complaint. Based upon the ruling in that action ¹, Crabtree v. Goetz, No. 3:08–0939, 2008 WL 5330506, at **30–3 (M.D.Tenn. Dec. 19, 2008), TennCare continued Plaintiff's existing home health services until implementation of the Defendants' CHOICES program and completion of Plaintiff's individualized assessment thereunder. From June 19, 2008 until this action, Plaintiff received 24 hours of home medical treatment seven days a week. (Docket Entry No. 16, Dr. Willis Declaration at ¶¶ 5, 8). This care consisted of twelve hours per day for private duty nursing and twelve hours per day for home health aide care. Id. During this period, Plaintiff was under 21 years of age and his benefits were under the Defendants' plan for Early and Periodic Screening, Diagnosis, and Treatment (“EPSDT”). Id. at ¶ 6. Plaintiff who is now over 21 years of age, is ineligible for EPSDT benefits. Id.

BlueCare, one of the Defendants' managed care organizations (“MCOs”) that administer services for the Defendants' CHOICES program for adult care will determine his home health care benefits. Id. at ¶ ¶ 3, 5. In early 2012, BlueCare initiated its assessment of Plaintiff's medical needs and evaluated Plaintiff for community-based services through Tennessee's CHOICES program. (Docket Entry No. 15, Swiney Declaration at ¶ 3). Under TennCare benefit limits and the CHOICES program, qualified enrollees are not entitled to all medical services necessary to remain in their homes. BlueCare had to develop a plan for Plaintiff's medical care consistent with CHOICES's covered benefits. (Docket Entry No. 17, Killingsworth Declaration at ¶ 48). Plaintiff's mother who is also Plaintiff's conservator rejected BlueCare's various options for her son's medical care, including for hiring of a 24–hour live-in caregiver to assist with personal care and health care tasks and attendant care with 15 hours per day at an hourly rate of $10). (Docket Entry No. 15, Swiney Decl., ¶ ¶ 12–18, 30, 34, 37). Defendants note that Plaintiff's mother was unreceptive to providing care for her son when paid care would be unavailable due to CHOICES cost limit. Id. at ¶ 17. Plaintiff's mother also rejected skilled nursing facility (“Level 2 NF”) care rating for her son's placement in a nursing home and terminated the enrollment process. Yet, in February 2013, BlueCare performed two home visits, but Plaintiff's mother again rejected BlueCare's options for community services or nursing facility reimbursement through CHOICES program. Id. at ¶¶ 6–27.

On May 3, 2013, Dr. Mathew T. Kraus and Tina Williams, a registered nurse performed a “HOME HEALTH CERTIFICATION AND PLAN OF CARE” for Plaintiff that reads, in pertinent part:

“Orders for Discipline and Treatments (Specify Amount/Frequency/Duration)

FR Private Duty Frequency: SN 84 and CNA 84 hours per week

SN SN to administer medications via g-tube with 120ml H20

SN to administer feedings via g-tube Flush with 120 ml H20

Additional Interventions to include: SN to apply glasses PRN Q shift

Additional Intervention to include: SN to apply eye patch to affected eye PRN for squinting of eyes or dilated pupil

Additional Interventions to include: SN to cleanse nares PRN with BBG; to keep nasal airway passage clear

(Docket Entry No. 26–4 at 1). Plaintiff was rated as having functional limitations in six of the nine functional categories. Id.

Dr. Kraus, an internist and pediatrician who has been Plaintiff's primary care physician since Plaintiff was 5 years old, filed his declaration in this action that reiterates his earlier findings, but adds that “[w]ithout the level of home health care he receives now [168 hours], it is my opinion, based on a reasonable medical certainty, that Jerry will be at great risk of further complications requiring hospitalization at greater expense than the home health care”. (Docket Entry No. 4, Exhibit C at ¶ 6). Dr. Kraus also stated that with the Defendants' proposed care of 40 hours of home health services, Plaintiff will be forced to be placed in a nursing home. Id. at ¶¶ 5–7. Kraus is unaware of any medical study that a nursing home is an...