M.R. v. Dreyfus

Decision Date16 December 2011
Docket NumberNo. 11–35026.,11–35026.
Citation11 Cal. Daily Op. Serv. 15127,2011 Daily Journal D.A.R. 18015,663 F.3d 1100,44 NDLR P 124
PartiesM.R.; S.J.; C.B.; D.W.; A.B.; M.B.; An.B.; J.B.; K.S.; T.M.; A.R.; M.J.B.; J.H.; H.C.; The Arc of Washington; Service Employees International Union Healthcare 775NW; Puget Sound Alliance for Retired Americans, Plaintiffs–Appellants, v. Susan DREYFUS, in her professional capacity as Secretary of Washington State Department of Social and Health Services; Washington State Department of Social and Health Services, a Department of the State of Washington, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Stephen P. Berzon, Eve Hedy Cervantez, Stacey Leyton, Matthew J. Murray, Casey Austin Roberts, Altshuler Berzon LLP, San Francisco, CA, Andrea Brenneke, MacDonald Hoague & Bayless, Seattle, WA, for the appellants.

Edward J. Dee, William T. Stephens, William Bruce Work, Office of the Washington Attorney General, Olympia, WA, for the appellees.

Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, Senior District Judge, Presiding. D.C. No. 2:10–cv–02052–TSZ.


Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge RAWLINSON.


W. FLETCHER, Circuit Judge:

Plaintiffs, Washington State Medicaid beneficiaries with severe mental and physical disabilities, appeal the district court's denial of their motion for a preliminary injunction. Plaintiffs seek to enjoin the operation of a regulation promulgated by Washington's Department of Social and Health Services (“DSHS”) that reduces the amount of in-home “personal care services” available under the state's Medicaid plan. The United States Department of Justice has filed a “statement of interest” in the district court supporting Plaintiffs' request for an injunction.

“Personal care services” provide assistance in performing basic life activities—such as eating, bathing, dressing, moving from place to place, and using the toilet—that Plaintiffs, because of their disabilities, cannot perform by themselves. To comply with Governor Christine Gregoire's executive order that directed an across-the-board reduction in all state agency expenditures, DSHS promulgated a regulation that cut the base hours of covered in-home personal care services by an average of 10 percent per beneficiary per month.

Plaintiffs argue principally that the regulation violates the antidiscrimination provisions of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a), because the reduction in hours will substantially increase the risk that they will be institutionalized in order to receive care adequate to maintain their mental and physical health. The district court denied preliminary relief.

We reverse. We conclude that Plaintiffs have demonstrated a likelihood of irreparable injury because they have shown that reduced access to personal care services will place them at serious risk of institutionalization. We further conclude that Plaintiffs have raised serious questions going to the merits of their Rehabilitation Act/ADA claims, that the balance of hardships tips sharply in their favor, and that a preliminary injunction will serve the public interest. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir.2011). We therefore remand for entry of a preliminary injunction.

I. Background and Procedural History
A. Factual Background

Medicaid is a cooperative federal-state program under which the federal government provides states with financial assistance to supply medical services to low-income people. Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 617 (9th Cir.2005). State participation is voluntary, but once a state chooses to participate, the state must submit for federal approval a plan that complies with federal statutory and regulatory requirements. Alexander v. Choate, 469 U.S. 287, 289 n. 1, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); Townsend v. Quasim, 328 F.3d 511, 514 (9th Cir.2003). A state plan must cover the cost to eligible people of certain medical services, including inpatient and outpatient hospital care; laboratory and X-ray services; nursing facility care; and services provided by physicians, dentists, nurse-midwives, and pediatric or family nurse practitioners. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17), (21); 42 C.F.R. §§ 440.210, 440.220. Within this federal framework, however, states retain “substantial discretion to choose the proper mix of amount, scope, and duration limitations on coverage.” Alexander, 469 U.S. at 303, 105 S.Ct. 712; see also Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977); 42 C.F.R. § 430.0.

States may, but need not, choose to subsidize other types of medical services, including “personal care services,” the benefit at issue here. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(24). “Personal care services” are:

services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility, intermediate care facility for the mentally retarded, or institution for mental disease that are

(A) ... authorized for the individual in accordance with a service plan approved by the State,

(B) provided by an individual who is qualified to provide such services and who is not a member of the individual's family, and

(C) furnished in a home or other location.

Id. § 1396d(a)(24); see also 42 C.F.R. § 440.167(b) (clarifying that a family member is “a legally responsible relative”); Ctrs. for Medicare and Medicaid Servs., State Medicaid Manual § 4480(C), at 4–495 (1999) (personal care services “include a range of human assistance provided to persons with disabilities and chronic conditions ... which enables them to accomplish tasks that they would normally do for themselves if they did not have a disability,” and “most often relate[ ] to ... eating, bathing, dressing, toileting, transferring, ... maintaining continence, ... personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management”).

Washington has elected to cover the cost of personal care services, which the state defines as “physical or verbal assistance with activities of daily living and instrumental activities of daily living provided because of a person's functional disability.” Wash. Rev.Code § 74.39A.009(18). The state defines “activities of daily living,” in turn, to include bathing, bed mobility, body care, dressing, eating, locomotion inside and outside one's room and immediate living environment, walking in one's room and immediate living environment, medication management, toilet use, transferring between surfaces, and personal hygiene. Wash. Admin. Code § 388–106–0010. The state defines “instrumental activities of daily living” as including meal preparation, ordinary housework, essential shopping, wood supply when wood is used as one's sole source of heat, travel to medical services, managing finances, and telephone use. Id.

Washington's DSHS administers the state's Medicaid programs. See 42 U.S.C. § 1396a(a)(5); Wash. Rev.CodeE § 74.09.530. DSHS covers the cost of personal care services for approximately 45,000 people. Some 15,000 of those beneficiaries are “categorically needy” participants in the state's Medicaid plan. The remaining 30,000 beneficiaries participate in one of Washington's Medicaid waiver programs, “under which the Secretary of Health and Human Services is authorized to waive certain Medicaid requirements for innovative or experimental state health care programs.” Townsend, 328 F.3d at 514. Consistent with Congress's preference for community rather than institutional care, “the waiver program provides Medicaid reimbursement to States for the provision of community-based services to individuals who would otherwise require institutional care, upon a showing that the average annual cost of such services is not more than the annual cost of institutional services.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601 n. 12, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (citing 42 U.S.C. § 1396n(c)).

Before Washington may cover the cost of in-home personal care services to participants in a Medicaid waiver program, the state must have made “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 or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.” Id. § 1396n(c)(1); 42 C.F.R. §§ 435.217, 441.302(c); see also, e.g., Wash. Admin. CodeE § 388–106–0310(4) (participants in Community Options Program Entry Services (“COPES”) waiver program must “need the level of care provided in a nursing facility”); id. §§ 388–106–0410(4), 388–106–0510(4) (same with respect to participants in Medically Needy Residential Waiver and Medically Needy In–Home Waiver programs); id. § 388–845–0030(2) (developmentally disabled participants in Home and Community–Based Services waiver programs must need the level of care provided in an intermediate care facility for the mentally retarded).

DSHS determines the number of hours of in-home personal services care to which a Medicaid beneficiary is entitled through the Comprehensive Reporting Evaluation (“CARE”). See Wash. Admin. CodeE § 388–106–0050 to –0145. The Washington Supreme Court has described CARE as follows:

In the initial stage of a CARE evaluation, the individual is scored on factors such as an individual's ability to perform daily activities and an individual's mental status. The individual is then assigned to 1 of 17 classification groups, each group having a set number of base ... hours associated with it. Once these base hours are established, an assessor individually...

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