Jonathan Paul Boyd v. Steckel

Decision Date12 November 2010
Docket NumberCase No.: 2:10–cv–688–MEF.
PartiesJonathan Paul BOYD, Plaintiff,v.Carol H. STECKEL, in her official capacity as Commissioner of the Alabama Medicaid Agency, Defendant.
CourtU.S. District Court — Middle District of Alabama

OPINION TEXT STARTS HERE

James Patrick Hackney, James Arnold Tucker, Lonnie Jason Williams, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Stephen F. Gold, Attorney at Law, Philadelphia, PA, for Plaintiff.James William Davis, Margaret Lindsey Fleming, Misty S. Fairbanks, William G. Parker, Jr., State of Alabama, Office of the Attorney General, Stephanie McGee Azar, The Alabama Medicaid Agency, Montgomery, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

MARK E. FULLER, Chief Judge.

This cause is before the Court on the Amended Motion for Preliminary Injunction and Expedited Hearing, (Doc. # 15), filed on September 29, 2010 by Plaintiff Jonathan Paul Boyd (Boyd). The Court has carefully considered all submissions and argument in support of and in opposition to the motion and has convened a hearing on the matter. For the reasons set forth below, the motion for a preliminary injunction is due to be DENIED.

JURISDICTION AND VENUE

This Court has jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and 1334(a). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 as well as Federal Rule of Civil Procedure 65. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because Defendant Carol H. Steckler, in her official capacity as Commissioner of the Alabama Medicaid Agency (Commissioner Steckel), resides in this district.

FACTS 1 AND PROCEDURAL HISTORY

On September 29, 2010, Boyd sued Commissioner Steckel for alleged violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, as well as its implementing regulations, and violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and its implementing regulations. (Doc. # 14, at 11–12, ¶¶ 57, 60). Specifically, Boyd alleges that Commissioner Steckel has failed to properly assess and provide the Medicaid services needed to permit Boyd to live in the community, as opposed to the nursing home in which he resides. Id. at 12–13, ¶¶ 58, 61. On September 29, 2010, Boyd also filed an Amended Motion for Preliminary Injunction and Expedited Hearing. (Doc. # 15). This motion was granted to the extent that it sought an expedited hearing. (Doc. # 17). On October 12, 2010, the United State of America filed a statement of interest and brief in support of Boyd's motion for a preliminary injunction. (Doc. # 25). The hearing for the preliminary injunction motion was held on October 13, 2010.

A. Medicaid

Title XIX of the Social Security Act of 1965 established Medicaid. 79 Stat. 343, as amended, 42 U.S.C. §§ 1396 et seq. “Medicaid is a joint [S]tate-[F]ederal funding program for medical assistance in which the Federal Government approves a [S]tate plan for the funding of medical services for the needy and then subsidizes a significant portion of the financial obligations the State has agreed to assume.” Alexander v. Choate, 469 U.S. 287, 289 n. 1, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Medicaid is a voluntary program whereby the States need not participate. Id. However, should a State choose to participate, then it “must comply with the requirements of Title XIX and applicable regulations.” Id.

Under the Medicaid Act, states may choose to operate home and community-based waiver programs for individuals to avoid institutionalization. 42 U.S.C. § 1396n(c). Pursuant to this section:

The Secretary may by waiver provide that a State plan approved under this title may include as ‘medical assistance’ under such a plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility ... the cost of which could be reimbursed under the State plan.

Id. § 1396n(c)(1). Such waiver programs “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.” 42 C.F.R. § 430.25(b). However, these waiver programs must be cost-neutral in the aggregate—i.e. the cost of operating the waiver system must not exceed what the cost would be to provide Medicaid services without the waiver program. 42 U.S.C. § 1396n(c)(2)(D) ([U]nder such [a] waiver the average per capita expenditure estimated by the State in any fiscal year for medical assistance provided with respect to such individuals 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 ....”); see also 42 C.F.R. § 441.302(e)-(f).

The Medicaid Act also provides that States may deviate from certain other Medicaid requirements. 42 U.S.C. § 1396n(c)(3). For example, an approved waiver program may also include a waiver of the Medicaid requirements of “statewideness,” “comparability,” and “income and resource rules applicable in the community.” Id. More specifically, under the applicable federal regulations, the State may exclude those individuals [from waiver programs] for whom there is a reasonable expectation that home and community-based services would be more expensive than the Medicaid services the individual would otherwise receive.” 50 Fed. Reg. 10,013 (Mar. 13, 1985). Similarly, the State “can choose to provide home and community-based services to a limited group of eligibles, such as the developmentally disabled” and need not “provide the services to all eligible individuals who require an ICF [intermediate care facility] or SNF [skilled nursing facility] level of care.” Id.

The Medicaid statutes and regulations also provide for caps on the number of persons served under a waiver program for a given year—that is, they “contemplate that State waiver plans will limit the number of eligible participants in any year.” (Doc. # 20, at 23) (citing 42 U.S.C. § 1396n(c)(9) (In the case of any waiver under this subsection which contains a limit on the number of individuals who shall receive home or community-based services, the State may substitute additional individuals to receive such services to replace any individuals who die or become ineligible for services under the State plan.”); 42 C.F.R. § 441.303(f)(6) (The State must indicate the number of unduplicated beneficiaries which it intends to provide waiver services in each year of its program. This number will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment.”) (emphasis added)).

B. Alabama's Waiver Programs

The State of Alabama (“Alabama”) has chosen to participate in Medicaid and to provide certain waiver programs. (Doc. # 20, at 20). Currently, Alabama operates six waiver programs with varying purposes, qualifying criteria, services provided, and enrollment limits: (1) the Elderly & Disabled (“E & D”) Waiver; (2) the Intellectual Disabilities (“ID”) Waiver; 2 (3) the Living at Home (“LAH”) Waiver; 3 (4) the State of Alabama Independent Living (“SAIL”) Waiver; (5) the HIV/AIDs Waiver; 4 and (6) the Technology Assisted (“TA”) Waiver for Adults.5 Doc. # 20, at 24–25; see also Doc. # 16 Ex. D.

The SAIL Waiver program provides numerous services for persons with specific medical diagnoses, which includes quadriplegia. Doc. # 16 Ex. D. Such services include personal care, personal assistance service, environmental accessibility adaptations, medical supplies, and assistive technology. Id. However, there are limitations on the extent of such services. For example, “reimbursement for in-home personal care and assistance is limited to 25 hours per week.” (Doc. # 19 Ex. C, Chappelle Aff. ¶ 13). Moreover, while personal care is covered to some extent under the SAIL waiver, “skilled nursing care is not available at all under the SAIL Waiver....” Id. The SAIL Waiver program is capped at 660 persons, although the record is unclear as to whether the program is full.

The E & D Waiver program also provides numerous services “to individuals that would otherwise require the level of care available in an intermediate care facility.” (Doc. # 16 Ex. D). Such services include case management, homemaker services, personal care, adult day health, and respite care (skilled and unskilled). Id. As with the SAIL waiver, there are limitations on the extent of these services. For example, ‘skilled’ care (provided by a nurse or other health-care professional), is not available on a regular basis under the E & D Waiver, but may only be provided as respite care (relief for a regular caregiver).” (Doc. # 19 Ex. C, Chappelle Aff. ¶ 14). Additionally, this respite care is limited to 720 hours per year. Although there is no hourly limit on homemaker services, personal care and adult companion services, these “would not include administration of medicine....” Id. The E & D Waiver is capped at 9,205 people and has remained at the cap since 2008. (Doc. # 16, at 5). Additionally, according to the Kaiser Commission, there are over 7,000 persons on the E & D Waiver waiting list. Id.

C. Boyd's Facts

According to the Amended Complaint, Boyd is a 34 year-old man who became paralyzed after an accident in October of 1995, which broke his spine and rendered him tetraplegic—i.e. leaving him without the use of his arms and legs. (Doc. # 14, at 1, ¶ 1–2; Doc. # 20, at 8). Following his accident, Boyd lived with...

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