Grant ex rel. Family Eldercare v. Gilbert

• Citation: 324 F.3d 383
• Decision Date: 24 March 2003
• Docket Number: No. 01-51120.,01-51120.
• Parties: Ernest GRANT, by His Guardian, FAMILY ELDERCARE, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. Don R. GILBERT, in His Official Capacity as the Commissioner of the Texas Health and Human Services Commission; Karen Hale, in Her Official Capacity as the Commissioner of the Texas Department of Mental Health and Mental Retardation; and Eric M. Bost, in His Official Capacity as the Commissioner of the Texas Department of Human Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

324 F.3d 383

Ernest GRANT, by His Guardian, FAMILY ELDERCARE, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. Don R. GILBERT, in His Official Capacity as the Commissioner of the Texas Health and Human Services Commission; Karen Hale, in Her Official Capacity as the Commissioner of the Texas Department of Mental Health and Mental Retardation; and Eric M. Bost, in His Official Capacity as the Commissioner of the Texas Department of Human Services, Defendants-Appellees.

No. 01-51120.

United States Court of Appeals, Fifth Circuit.

March 24, 2003.

Garth Anthony Corbett (argued), Beth L. Mitchell, Advocacy Inc., Austin, TX, for Plaintiff-Appellant.

Heather Leigh Horton, Asst. Atty. Gen., Edwin N. Horne (argued), Austin, TX, for Defendants-Appellees.

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

Before GARWOOD, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ernest Grant, a mentally retarded nursing home resident, sued three Texas state officers in their official capacities for failing to provide him with adequate information about community-based placement alternatives to nursing home care. Grant claims that without this information, he and others similarly situated are unable to make fully informed decisions regarding their living options. Before considering Grant's motion for class certification, the district court found that Grant lacked standing. Because Grant since has applied for, and is now receiving, community-based care, we dismiss the appeal as moot, concluding that Grant likewise is ineligible to proceed as class representative.

I.

Congress passed the Nursing Home Reform Amendments to "quell overutilization of nursing home care for those who are not in need of institutionalization." Rolland v. Cellucci, 52 F.Supp.2d 231, 234 (D.Mass. 1999). The NHRA creates a "Preadmission Screening and Annual Resident Review" ("PASARR") process by which an appropriate state agency, following federal statutes and regulations, assesses the level of care required by "mentally ill and retarded individuals ... who are admitted to nursing facilities...." 42 U.S.C. § 1396r(e)(7)(A)(i). The statute also requires that the state "inform the resident of the institutional and noninstitutional alternatives covered under the State plan for the resident." 42 U.S.C. § 1396r(e)(7)(C)(i)(I).

The state's annual reviews in 1991, 1992, and 1993 revealed that Grant did not need nursing home care, that he did need "specialized services," and that he was not competent. Because Grant was a "long-term resident," these findings entitled him to choose whether to remain in the nursing facility or to opt for an alternative placement. 42 U.S.C. § 1396r(e)(7)(C)(i). Grant claims that, in each of those years, the state failed in its statutory obligation to provide him with sufficient information about the placement options available to him, and therefore prevented him from making a reasoned choice. In particular, he claims that the state should have provided him with more information about its Home and Community Services-OBRA (HCS-O) waiver program, through which it provides community-based alternatives to nursing home care for developmentally disabled individuals.

The state provided Grant with a letter, called a "CHO-1" letter, informing him that he had a choice to (1) remain in the nursing home or (2) select a community-based placement. Grant, who claims to have an IQ of about 24, did not have a legal guardian at the time. The state sent the letter directly to him, containing a three-page attachment explaining community-based placements, including the HCS-O waiver program, informing Grant that the "1915(c) Medicaid waiver for mentally retarded clients provides in-home and out-of-home services for a limited number of SSI eligible mentally retarded clients who qualify for ICF/MR institutional care. Available in 15 locations."

Grant claims this language is too vague and legalistic to satisfy the state's obligation, under the statute and federal regulations, to provide him with information about his alternatives to remaining in a nursing home. He also alleges that a separate federal statute, 42 U.S.C § 1396n(c)(2)(C), required the state, when it initially found him eligible for nursing home care and placed him in the nursing facility, to provide him with information about community-based alternatives.

Grant seeks, for himself and others similarly situated, information regarding community-based placements, a declaration of retroactive eligibility, and an injunction requiring the state to provide access to waiver services. Following Grant's motion for class certification, the court, sua sponte, became concerned that Grant lacked standing, because he never had applied to the HCS-O program. Grant's suit ultimately was dismissed without prejudice, with the provision that he could re-file his complaint later if he applied for the waiver program and was denied. The court also denied his class certification motion without reaching the merits.¹ Grant appeals the decision that he lacks standing.

Before oral argument in this appeal, Grant applied for, and began receiving, waiver services.² He concedes that his claims are moot as to his own asserted injury, but he contends he still may pursue the claims on behalf of the proposed class. He argues that should we conclude, contrary to the decision of the district court, that he had standing when he sued and that, under United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), we should remand for reconsideration of his class certification motion. Although we agree with Grant that the district court erred in stating that he lacks standing to pursue one of his informational claims, we nevertheless dismiss the appeal as moot, finding Geraghty inapposite.

II.

Standing, as "an essential and unchanging part of the case-or-controversy requirement of Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), determines the courts' "fundamental power even to hear the suit." Ford v. Nylcare Health Plans, Inc., 301 F.3d 329, 333 (5th Cir.2002) (citation omitted), petition for cert. filed, 71 U.S.L.W. 3489 (Nov. 22, 2002) (No. 02-1042). If Grant did not have standing when he sued, whether the expiration of his claims makes him ineligible to proceed as class representative becomes, for lack of better description, a moot issue.

Regarding Grant's standing as to his informational claims, the district court stated that "[b]ased on the record and the pleadings on file, the Court cannot agree with plaintiff's contention that he has not received adequate notice and information from the defendants regarding the HCS-O waiver program." The court then determined that Grant lacked standing to seek eligibility and waiver services relief, because he had never applied for HCS-O services. The court dismissed the case, stating that Grant could refile his complaint if he applied for waiver services and was rejected.

A.

The court erred in holding Grant lacked standing to bring his § 1396r(e)(7)(C)(i)(I) informational claim. The adequacy of the information provided by the CHO-1 letter relates to the merits of Grant's suit, not his standing, so the decision to address the merits as part of the standing inquiry was premature.³ "This reasoning misconstrues the purpose and elements of standing. `In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.' Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). It is inappropriate for the court to focus on the merits of the case when considering the issue of standing." Hanson v. Veterans Admin., 800 F.2d 1381, 1385 (5th Cir. 1986)⁴

Grant, as the party invoking federal jurisdiction, bears the burden of establishing the three elements of Article III standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. First, he must show that he has "suffered an `injury in fact' — an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent not conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130. He also must demonstrate a causal connection between his injury and defendants' conduct, and a "likely" probability that his injury will be redressed by a favorable decision. Id. at 560-61, 112 S.Ct. 2130.

Grant has sufficiently alleged an injury-in-fact under § 1396r(e)(7)(C)(i)(I), which requires the state to inform residents no longer in need of nursing facility services of the institutional and noninstitutional living alternatives covered under the state waiver plan.⁵ The state sent Grant a CHO-1 letter in 1991, 1992, and 1993, after he was determined to have met the requirements of § 1396r(e)(7)(B). The state was not required to provide Grant a letter in 1994 and 1995 after he was deemed to require nursing facility care. In 1996, the NHRA's requirement for annual assessments of residents was repealed.⁶ So far as we can tell, the state has not been obligated to provide Grant information since 1993.

The "inability to obtain information" required to be disclosed by statute constitutes a sufficiently concrete and palpable injury to qualify as an Article III injury-in-fact. Fed. Election Comm'n v. Akins, 524 U.S. 11, 21, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). Section § 1396r(e)(7)(C)(i)(I), however, entitles only those nursing care residents satisfying the conditions of subparagraph B to the information Grant claims he has been denied.⁷ Grant has shown that he was entitled to state-provided information from 1991 to 1993. But because he seeks only declaratory and injunctive relief, he must "demonstrate either continuing harm or a real and immediate threat of repeated injury in the future." Soc'y of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir.1992) (citation...