Mikkelson v. Piper

• Decision Date: 06 July 2017
• Docket Number: Civil No. 15-3439 (DWF/BRT)
• Parties: Maxwell Mikkelson, by his parents and Guardians, Scott and Annmarie Mikkelson, and R.H., a minor child by R.H.'s parent, Heather Heath, and on behalf of others similarly situated, Plaintiffs, v. Emily Johnson Piper, Commissioner of the Minnesota Department of Human Services, Defendant.
• Court: U.S. District Court — District of Minnesota

Maxwell Mikkelson, by his parentsand Guardians, Scott and Annmarie Mikkelson,and R.H., a minor child by R.H.'s parent,Heather Heath, and on behalf of others similarly situated, Plaintiffs, v. Emily Johnson Piper, Commissioner of the

Minnesota Department of Human Services, Defendant.

Civil No. 15-3439 (DWF/BRT)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

July 6, 2017

MEMORANDUM OPINION AND ORDER

Pamela S. Hoopes, Esq., Barnett I. Rosenfield, Esq., and Steven C. Schmidt, Esq., Mid-Minnesota Legal Aid, Minnesota Disability Law Center, and Mark R. Azman, Esq., and Shamus P. O'Meara, Esq., O'Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

Scott H. Ikeda, Ian M. Welsh, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General's Office, counsel for Defendant.

INTRODUCTION

This matter is before the Court on the Motion to Dismiss filed by Defendant Emily Johnson Piper ("Commissioner Johnson Piper" or "Defendant"), Commissioner of the Minnesota Department of Human Services ("DHS"). (Doc. No. 91.) For the reasons set forth below, the Court denies the motion.

BACKGROUND¹

I. Minnesota's Waiver Services for Individuals with Disabilities

The State of Minnesota participates in Medicaid, a health care program operated and funded jointly by individual states and the federal government. (Doc. No. 80 ("Third Am. Compl.") ¶ 18.) Plaintiffs allege that federal Medicaid requirements obligate Minnesota to provide various services, including treatment in institutional settings, for persons with developmental disabilities. (Id. ¶ 19.) As an alternative to providing care and treatment in institutional settings, Plaintiffs allege that Minnesota may provide Home and Community Based Waiver Services ("Waiver Services"), which encompass a variety of services and supports which Plaintiffs allege are "designed to help people with disabilities live in his or her own home and access his or her community." (Id. ¶¶ 1, 20.) Plaintiffs allege that states that choose to offer these optional Waiver Services must do so in accordance with federal law. (Id. ¶ 21.)

Defendant operates four Waiver Services programs for individuals with disabilities as part of Minnesota's Medicaid program known as Medical Assistance ("MA"). (Id. ¶¶ 29, 30.) According to Plaintiffs, these Waiver Services programs include the Developmental Disabilities ("DD") Waiver, the Community Alternatives forDisabled Individuals ("CADI") Waiver, the Community Alternative Care ("CAC") Waiver, and the Brain Injury ("BI") Waiver. (Id. ¶ 30.) Plaintiffs allege that Defendant "serves as the 'single state agency' responsible for the administration of the Medicaid program in Minnesota." (Id. ¶ 16.) Plaintiffs allege that "Defendant is responsible for developing and implementing the Medicaid Waiver Services to eligible individuals." (Id ¶ 14.) According to Plaintiffs, Defendant is also "responsible for overseeing the agencies which provide or arrange services to all persons with developmental disabilities." (Id. ¶ 16.) Plaintiffs allege that they, along with thousands of similarly situated individuals, have been deemed eligible for Waiver Services but have been put on waiting lists for services. (Id. ¶ 41.)

Plaintiffs allege that Minnesota "[c]ounties act as 'local agencies' of the state and Defendant's agency" to aid in the administration of the Waiver Services programs. (Id. ¶¶ 30, 31.) Specifically, Plaintiffs allege that Defendant identifies each county's total budget to spend for each Waiver, and the counties "create individual waiver services budgets and . . . manage those budgets in the aggregate, pursuant to policies created by Defendant and within amounts specified by Defendant as available to serve eligible persons under each waiver." (Id. ¶¶ 32, 33.) Plaintiffs claim that the counties are authorized by state statute "to reserve a certain portion of the available funding for unexpected situations that might arise during the year." (Id. ¶ 34.) In addition, Plaintiffs allege that "Defendant also withholds funds under each Waiver to address unexpected, crisis needs." (Id.) Plaintiffs assert that these additional reserves withheld by Defendant "eas[e] the burden on counties to handle all unexpected costs at a local level." (Id.)Plaintiffs allege that Waiver Services funds are returned to the State's general fund if unspent in a given year. (Id. ¶ 36; see also id. ¶ 42.) In particular, Plaintiffs assert that "[u]nspent Waiver funds are not carried over or otherwise reserved for the Waiver programs to remove people from the waitlists and pay for Waiver Services in future years." (Id. ¶ 36.)

II. The Named Plaintiffs²

The two named Plaintiffs in this case allege that they "have not moved up or off the various wait lists at a reasonable pace or received Waiver Services within a reasonable time" and that the services they seek "could have been and can be provided with the unspent or currently available Waiver funds." (Id. ¶¶ 53, 54.) According to these individuals, the counties in which they reside "have routinely and repeatedly maintained reserves and failed to spend all of their available Waiver funds, while Plaintiffs remained on wait lists or were otherwise denied Waiver Services." (Id. ¶ 52.)

Plaintiff Maxwell Mikkelson ("Mikkelson") is a twenty-two-year-old individual with a developmental disability, autism, and language deficits who desires "to be less isolated from his community and more independent from his family and paid caregivers." (Id. ¶¶ 50, 50.A.) Mikkelson currently "receives personal care assistant services andattends a sheltered work shop program." (Id. ¶ 50.A.) Mikkelson alleges that he needs DD Waiver Services such as assistive technology, staffing, and respite care to live a more fully integrated life. (Id. ¶ 50.B.) He alleges that he "has been eligible and waiting for the DD Waiver since he was approximately 8 years old but has been told at various times that the waiver is 'unavailable' and that there is 'no funding.'" (Id. ¶ 50.C.) In addition, Mikkelson asserts that "[i]n 2015, his family was told that waivers were available but he was never ultimately offered one." (Id.) He alleges that he has received "few updates on any progress toward obtaining waiver services" and that he not received a written notice of denial or information about how to challenge being denied Waiver Services. (Id.)

Plaintiff R.H. is a minor with a severe intellectual disability and autism. (Id. ¶ 51, 51.A.) R.H. needs "significant assistance" with many daily tasks and behaviors, is nonverbal, and "requires ongoing supervision and intervention for . . . severe self-injurious behavior and physical aggression." (Id. ¶¶ 51.A, 51.B.) R.H. alleges that he has been determined to be eligible for DD Waiver Services but instead receives CADI Waiver Services. (Id. ¶¶ 51.C, 51.D.) According to R.H., the CADI Waiver "provides an inadequate level of services and supports." (Id. ¶ 51.D.) Specifically, R.H. alleges, "the quantity and quality of services available under this waiver, for R.H., are not sufficient" because R.H. cannot access needed services "to address R.H.'s significant developmental delays and to allow R.H. to develop the skills necessary to become more independent and better access R.H.'s community." (Id.) According to the Third Amended Complaint, "R.H. has been told that the DD Waiver would offer R.H. a significantly larger services budget" through which R.H. could hire trained staff and access and pay for water therapyand other community activities. (Id. ¶ 51.E.) Plaintiffs allege "R.H. has been denied access to and not permitted to choose the DD Waiver" due to an alleged "policy or practice of prohibiting people currently on the CADI Waiver from being offered or otherwise accessing the DD Waiver." (Id. ¶ 51.F.) According to R.H., "[u]nder Defendant's new assessment process, R.H. and other similarly situated individuals who are otherwise eligible for DD Waiver services are categorically denied access to the DD Waiver if they receive CADI Waiver Services." (Id.) R.H. claims that DD Waiver Services have not been offered as an alternative to CADI Waiver Services and that R.H. has not been provided written notice of the denial of DD Waiver Services. (Id. ¶ 51.G.)

III. Plaintiffs' Claims

Plaintiffs bring their claims on their own behalf and on behalf of a putative class of similarly situated individuals with disabilities³ in Minnesota who have applied for and been deemed eligible for DD Waiver Services but "have been denied or otherwise not offered" such services. (Id. ¶¶ 55, 56.A.) "As of April 1, 2015," Plaintiffs allege, "there were 3,586 persons on wait lists for the DD Waiver." (Id. ¶ 44.) Plaintiffs claim that Defendant has "fundamentally mismanage[d]" Minnesota's Waiver Services programs, "depriv[ing] thousands of persons with disabilities of available services and supports intended to help them live independent, inclusive lives in their communities." (Id. ¶ 1.) Plaintiffs allege that "Defendant has failed to ensure that otherwise eligible individualsare not improperly placed on wait lists for services when money is available under the Waivers to serve their needs." (Id. ¶ 43.)

According to Plaintiffs, Defendant has failed to undertake necessary administrative steps to remedy underspending by Minnesota counties. (Id.) In addition, Plaintiffs allege that Defendant does not have an effective and comprehensive plan "for ensuring that Plaintiffs and members of the Plaintiff class be provided with DD Waiver Services within the funding appropriated by the Legislature each year, rather than placing them on wait lists, to enable them to live in the most integrated settings possible, consistent with their needs and preferences." (Id. ¶ 88.) Plaintiffs allege that Defendant's actions have caused them harm and have caused them to remain isolated from their communities in a discriminatory manner in violation of federal law. (Id. ¶ 2.)

In particular, Plaintiffs allege that the...