Price v. Director

• Decision Date: 01 September 2015
• Docket Number: Case No. 1:13-cv-74
• Parties: KATHRYN A. PRICE, et al., Plaintiffs, v. MEDICAID DIRECTOR, OFFICE OF MEDICAL ASSISTANCE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

KATHRYN A. PRICE, et al., Plaintiffs, v. MEDICAID DIRECTOR, OFFICE OF MEDICAL ASSISTANCE, et al., Defendants.

Case No. 1:13-cv-74

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

September 1, 2015

Litkovitz, M.J.

ORDER

I. INTRODUCTION

The State of Ohio's Medicaid assisted living waiver program pays for home and community-based services provided to qualified low income, elderly individuals who otherwise would require care in an institutional or nursing home environment. The named plaintiffs in this case, Betty Hilleger and Geraldine A. Saunders,¹ applied for assisted living waiver benefits under the Ohio program. Both were found eligible for assisted living waiver benefits. However, they were denied retroactive assisted living waiver benefits because Ohio provides only prospective coverage from the date an individual is officially "enrolled" in the assisted living waiver program.

Plaintiffs allege that defendants, state officials with jurisdiction over Ohio's Medicaid assisted living waiver program, violated federal law by denying them retroactive assisted living waiver benefits for up to three months prior to their applications. Plaintiffs bring this action under 42 U.S.C. § 1983 on behalf of themselves and a putative class they seek to represent challenging Ohio's administration of the assisted living waiver program as violative of theMedicaid Act, 42 U.S.C. § 1396a et seq., and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

This matter is before the Court on the parties' cross-motions for summary judgment (Docs. 74, 89), their respective memoranda in opposition (Docs. 102, 104), their reply memoranda (Docs. 112, 113), and their written responses to the Court's pre-oral argument questions (Docs. 119, 120).² This matter is also before the Court on plaintiffs' motion for class certification and appointment of class counsel (Doc. 77), defendants' memorandum in opposition (Doc. 105), and plaintiffs' reply memorandum (Doc. 111). Where the resolution of a summary judgment motion will result in a more efficient resolution of the class certification motion, the Court within its discretion may resolve the summary judgment motion prior to assessing the merits of class certification. Lee v. Javitch, Block & Rathbone, LLP, 522 F. Supp.2d 945, 947 (S.D. Ohio 2007) (citing Thompson v. County of Medina, Ohio, 29 F.3d 238, 240-41 (6th Cir. 1994)). Because the capacity of the named plaintiffs to represent the class depends on whether their own claims are barred, as argued by defendants on summary judgment, the Court chooses to resolve the parties' cross-motions for summary judgment prior to addressing plaintiffs' class certification motion.

II. BACKGROUND

Medicaid is a joint federal-state program that provides health care benefits to low-income disabled, elderly, and other qualifying individuals. 42 U.S.C. § 1396 et seq. The Medicaid program provides federal financial assistance to States that choose to participate in the program. State plans for medical assistance must comply with the detailed requirements of 42 U.S.C. §1396a(a) to be approved for federal funding. Ohio Dept. of Mental Retardation and Dev. Disabilities v. U.S. Dept. of Health and Human Servs., 761 F.2d 1187, 1188 (6th Cir. 1985).

Participation by a State in the Medicaid program is optional; however, once a State chooses to participate it must adopt a plan that conforms to the requirements set forth in the Medicaid Act and its implementing regulations. Harris v. McRae, 448 U.S. 297, 301 (1980). Among these requirements is that the State provide certain mandatory medical services. Id. See also Parents League for Effective Autism Servs. v. Jones-Kelley, 565 F. Supp.2d 905, 911 (S.D. Ohio 2008) (citing 42 U.S.C. § 1396d(a)(1)-(28) (setting forth the various required services)). A State may also elect to provide optional Medicaid services to qualified individuals, which once offered become part of the State plan and must comport with federal law. Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002) ("Once the [optional] waiver plan is created and approved, it becomes part of the state plan and therefore subject to federal law."); Doe 1-13 By and Through Doe, Sr. 1-13 v. Chiles, 136 F.3d 709, 721 (11th Cir. 1998) ("[W]hen a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law."); Weaver v. Reagen, 886 F.2d 194, 197 (8th Cir. 1989) ("Once a state chooses to offer such optional services it is bound to act in compliance with the [Medicaid] Act and the applicable regulations in the implementation of those services."). Accord Eder v. Beal, 609 F.2d 695, 701-02 (3d Cir. 1979); Dozier v. Haveman, No. 14-12455, 2014 WL 5480815, at *6 (E.D. Mich. Oct. 29, 2014).

Assisted living waiver services are not mandatorily-covered services under federal Medicaid law. Rather, the Medicaid Act permits States to apply for a Medicaid Home and Community-Based Services (HCBS) waiver (commonly termed an "HCBS waiver") to provide assisted living waiver services to individuals as an alternative to more expensive institutional ornursing home care. 42 U.S.C. § 1396n(c). In an HCBS waiver program, the United States Department of Health and Human Services "waives" certain statutory requirements of the Medicaid Act. Id. "Section 1915(d) of the Act permits States to offer, under a waiver of statutory requirements, home and community-based services not otherwise available under Medicaid to individuals age 65 or older, in exchange for accepting an aggregate limit on the amount of expenditures for which they claim FFP [Federal Financial Participation] for certain services furnished to these individuals." 42 C.F.R. § 441.350. These home and community-based services may include: (1) case management services; (2) homemaker services; (3) home health aide services; (4) personal care services; (5) adult day health services; (6) habilitation services; (7) respite care services; and (8) other medical and social services requested by the Medicaid agency and approved by the Centers for Medicare and Medicaid Services (CMS),³ which will contribute to the health and well-being of individuals and their ability to reside in a community-based care setting. See 42 U.S.C. § 1396n(c)(4)(B). The Medicaid assisted living waiver pays for supportive services, but not room and board in a residential care facility. 42 U.S.C. § 1396n(c)(1). Assisted living waiver services are provided pursuant to a written plan of care⁴ to individuals who, but for such services, would require the level of care provided in a hospital or nursing facility. Id.

The Ohio Department of Medicaid (ODM) administers the Medicaid program for the State of Ohio and offers assisted living waiver services through an HCBS waiver. Ohio'sassisted living waiver program provides supportive services - such as assistance with bathing, mobility, and dressing - to Medicaid-eligible individuals whose needs qualify them for intermediate or skilled level of care coverage of nursing home or institutional care services.⁵ The Ohio Department of Aging (ODA)⁶ conducts the daily operations of the waiver program. ODA's designee, PASSPORT Administrative Agencies, determines the non-financial eligibility requirements of the waiver program (i.e., level of care) and develops the individual's plan of care, while the county departments of job and family services determine the financial eligibility requirements of the waiver program. Ohio Admin. Code 173-38-03. To be eligible for the assisted living waiver program, an individual must meet, inter alia, the following requirements:

(1) have a need for intermediate or skilled level of care;

(2) reside in a residential care facility certified by ODA; and

(3) be eligible for Medicaid as determined by the county department of job and family services.

Ohio Admin. Code 5160-33-03.⁷ Ohio also requires that individuals have a "plan of care" or "service plan"⁸ that specifies the types of services the individual will receive under the assistedliving waiver program. See Ohio Admin. Code 5160-33-02(V); Ohio Admin. Code 5160-33-06(C); Ohio Admin. Code 173-39-01(B)(22); Ohio Admin. Code 173-39-02.16.

Ohio regulations permit only prospective coverage for assisted living waiver services. If an individual is determined eligible for Medicaid assisted living waiver services, Ohio regulations state that the Medicaid waiver program "enrollment date," i.e., the effective date of coverage, is determined by ODA's designee and shall be the latest date that all of the following conditions are met:

(i) The individual's basic medicaid effective date;⁹

(ii) The date that the individual meets the level of care requirements to participate in the medicaid waiver program;

(iii) The date that the individual meets all the medicaid waiver program requirements listed in rule 5160-33-03 of the Administrative Code;(iv) The date that the individual has a service plan that is approved by ODA's designee and that includes at least one medicaid waiver service; and,

(v) The date that the individual resides in an ODA-certified residential care facility in an ODA-approved living unit.

Ohio Admin. Code 173-38-03(C)(1)(b). The "medicaid waiver program enrollment date for the medicaid-funded component of the assisted living program may differ from the basic medicaid effective date." Ohio Admin. Code 173-38-03(C)(1)(d). Ohio will not pay for supportive services rendered before ODA's designee determines the Medicaid waiver enrollment date. Ohio Admin. Code 173-38-03(C)(1)(c).

Ohio Admin. Code 173-38-03 was amended effective March 1, 2014, to change the effective date of enrollment to the latest date the individual met all the eligibility requirements for the assisted living waiver. Previously, at the time plaintiffs filed this lawsuit, the regulations based the enrollment date on the latter of: (1) the date that the ODA's designee determined...