M.R. v. Dreyfus

• Decision Date: 09 February 2011
• Docket Number: No. C10–2052Z.,C10–2052Z.
• Citation: 767 F.Supp.2d 1149
• Parties: M.R. et al., Plaintiffs,v.Susan DREYFUS, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

767 F.Supp.2d 1149

M.R. et al., Plaintiffs,

v.Susan DREYFUS, et al., Defendants.

No. C10–2052Z.

United States District Court, W.D. Washington,at Seattle.

Feb. 9, 2011.

Stacey Leyton, Altshuler Berzon LLP, San Francisco, CA, Andrea Brenneke, MacDonald, Hoague & Bayless, Seattle, WA, for Plaintiffs.Edward Joseph Dee, Jonathon Bashford, William T. Stephens, William Bruce Work, Attorney General's Office, Olympia, WA, Regan Rush, Washington, DC, for Defendants.

ORDER

THOMAS S. ZILLY, District Judge.

THIS MATTER comes before the Court on plaintiffs' motion for a preliminary injunction (docket no. 95). This action arises out of the State of Washington's decision to reduce Medicaid spending in 2011 in response to the current budget crisis. The individual named plaintiffs are disabled and elderly individuals who currently receive in-home personal care services ¹ through Washington's Medicaid program, which is administrated by defendants Susan Dreyfus ² and the Department of Social and Health Services (“DSHS”). Plaintiffs ³ seek to enjoin DSHS from implementing an across-the-board reduction in the number of personal care service hours beneficiaries currently receive in their own homes in lieu of treatment in an institution or nursing facility.⁴

Plaintiffs' lawsuit is predicated on a fundamental misunderstanding of the manner in which personal care service hours are distributed under Washington's Comprehensive Assessment and Reporting Evaluation (“CARE”) method. Plaintiffs attempt in various ways to characterize the hours allotted under CARE as a minimum, below which individuals cannot safely reside in their homes. CARE, however, allocates hours in accordance with beneficiaries' relative needs and State budget constraints, and not on the basis of what an individual actually needs to remain in a non-institutional setting.

Since the denial of their motion for a temporary restraining order, plaintiffs have had additional time and opportunities to further brief the issues, supplement the record,⁵ and present their arguments. Plaintiffs, however, have not improved their showing of either likelihood of success on the merits or irreparable injury, and the balancing of equities and public interest tips sharply in favor of the State. The Court therefore DENIES plaintiffs' motion and the “extraordinary” interlocutory remedy they desire. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008) (observing that a preliminary injunction is “an extraordinary remedy never awarded as of right”).

BACKGROUND

Under the Medicaid Act, also known as Title XIX of the Social Security Act, 42 U.S.C. §§ 1396a–1396w, the federal government provides monetary assistance to participating States so that they may furnish medical care and other services to qualified individuals. If a State elects to participate in Medicaid—which all fifty do—it must operate its program in conformity with applicable federal laws. Alexander v. Choate, 469 U.S. 287, 289 n. 1, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). The federal government administers Medicaid through the Centers for Medicare and Medicaid Services (“CMS”). 42 C.F.R. § 400.200. Washington's Medicaid program is managed by DSHS. RCW 74.04.050.

Under the Medicaid program, each participating State must submit, and have approved by CMS, a state plan for the provision of “medical assistance.” See 42 C.F.R. § 430.10. Only some categories of “medical assistance,” such as inpatient and outpatient hospital care, are mandatory for participating States, while others, such as in-home “personal care services,” are optional. See 42 U.S.C. §§ 1396d(a) & 1396a(a)(10)(A). Washington has elected to provide “personal care services,” which are defined by the Medicaid Act as services that are

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 by a physician or in accordance with a plan of treatment or (at the option of the State) otherwise 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.

42 U.S.C. § 1396d(a)(24). DSHS has further divided personal care services into two types of activities for which beneficiaries might require physical or verbal assistance, namely activities of daily living (“ADLs”) and instrumental activities of daily living (“IADLs”). WAC 388–106–0010. ADLs include basic personal tasks like bathing, dressing, eating, and toilet use, while IADLs consist of functions performed around the home or community, for example, shopping, meal preparation, and housekeeping. Id.

In administering Washington's long-term personal care services program, DSHS uses a system known as CARE. WAC 388–106–0065. CARE begins with an individualized assessment that assesses each beneficiary's functional capacity using five criteria, namely (i) cognitive performance score; (ii) clinical complexity; (iii) mood/behavior and behavior point score; (iv) ADL score; and (v) exceptional care. WAC 388–106–0125. Based on the results of these examinations, the beneficiary is placed into one of five acuity classification groups (A–E). Id. For example, if an individual meets the criteria for clinical complexity, and has a cognitive performance score less than four, the individual is placed into Group “C,” regardless of the individual's mood and behavior qualification or behavior points. WAC 388–106–0125(3). Thereafter, beneficiaries are further classified into subgroups depending upon their ADL scores. Id. DSHS performs annual CARE reassessments for all 45,000 personal care service beneficiaries to ensure that everyone is properly classified. WAC 388–106–0050(1) (“[DSHS] will assess you at least annually or more often when there are significant changes in your ability to care for yourself.”) (emphasis added).

DSHS has assigned each acuity classification subgroup a maximum number of base hours for personal care services. WAC 388–106–0125. Beneficiaries with the most severe functional limitations are assigned to the group and subgroup with the highest number of base hours. Id. By emergency rule, WAC 388–106–0125, Wash. St. Reg. 11–02–041 (Dec. 30, 2010), the State identified the base hours assigned to each subgroup as follows:

                    TABLE 1------------------------------------------------                2010 Base      2011 Reduced BaseClassification  Monthly Hours  Monthly Hours------------------------------------------------E High                    416                393------------------------------------------------E Medium                  346                327------------------------------------------------D High                    277                260------------------------------------------------D Med“High                234                215------------------------------------------------D Medium                  185                168------------------------------------------------D Low                     138                120------------------------------------------------C High                    194                176------------------------------------------------C Med“High                174                158------------------------------------------------C Medium                  132                115------------------------------------------------C Low                      87                 73------------------------------------------------B High                    147                129------------------------------------------------B Med“High                101                 84------------------------------------------------B Medium                   82                 69------------------------------------------------B Low                      47                 39------------------------------------------------A High                     71                 59------------------------------------------------A Medium                   56                 47------------------------------------------------A Low                      26                 22------------------------------------------------

Once a beneficiary is assigned to an acuity classification subgroup and allocated the base number of hours associated with that subgroup, those base hours may then be adjusted, either up or down, in accordance with several factors, including: (i) the availability of informal supports; (ii) whether there are multiple clients in the same household; and (iii) the characteristics of the living environment, for example, offsite laundry facilities or wood used as a sole source of heat. WAC 388–106–0130(2)–(4) (2010). The result of this computation is the “maximum number of hours that can be used to develop [a] plan of care.” Emergency Rule WAC 388–106–0130(6), Wash. St. Reg. 10–22–066 (Oct. 29, 2010).

If a change in a beneficiary's medical condition increases his or her need for personal care service hours, the beneficiary may request a reassessment. WAC 388–106–0140; 388–106–1303(6)(a). This request may occur at any time a beneficiary concludes the allocated hours are not sufficient. Beneficiaries may also ask their case managers to submit an exception to rule (“ETR”) request for additional hours. WAC 388–440–0001.⁶ In 2010, out of the roughly 45,000 adult personal care service beneficiaries, DSHS processed approximately 2,020 ETR requests. Rector Decl. at ¶ 9 (docket no. 125). DSHS approved 89% of the requests for additional hours. Id.

In 2009, the State reduced the base hours for each acuity subgroup by an average of four percent, with the largest percentage decreases applied to the classifications associated with the least acuity. See Emergency Rule 388–106–0125, Wash. St. Reg....