M. R. v. Susan Dreyfus ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M. 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 No. 11-35026
HEALTHCARE 775NW; PUGET SOUND D.C. No.
ALLIANCE FOR RETIRED AMERICANS, 2:10-cv-02052-TSZ
Plaintiffs-Appellants,
ORDER
v.
 AMENDING
SUSAN DREYFUS, in her OPINION AND
professional capacity as Secretary DENYING
of Washington State Department REHEARING AND
of Social and Health Services; AMENDED
WASHINGTON STATE DEPARTMENT OF OPINION
SOCIAL AND HEALTH SERVICES, a
Department of the State of
Washington,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted
June 9, 2011—Seattle, Washington
Filed December 16, 2011
Amended June 18, 2012
Before: Stephen Reinhardt, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
6957
6958 M. R. v. DREYFUS
Order;
Dissent to Order by Judge Bea;
Opinion by Judge William A. Fletcher;
Dissent to Opinion by Judge Rawlinson
M. R. v. DREYFUS 6961
COUNSEL
Stephen P. Berzon. Eve Hedy Cervantez, Stacey Leyton, Mat-
thew John Murray, Casey Austin Roberts, ALSHULER BER-
ZON LLP, San Francisco, California, Andrea Brenneke,
MACDONALD HOAGUE & BAYLESS, Seattle, Washing-
ton, for the appellants.
6962 M. R. v. DREYFUS
Edward J. Dee, William T. Stephens, William Bruce Work,
OFFICE OF THE WASHINGTON ATTORNEY GENERAL,
Olympia, Washington, for the appellees.
ORDER
The opinion filed December 16, 2011, and published at 663
F.3d 1100, is amended as follows:
On page 1107, right column, lines 16-19: delete
On page 1121, left column, line 10: change to

On page 1121, left column, lines 17-19: change to
With these amendments, Judges Reinhardt and W. Fletcher
have voted to deny Plaintiffs-Appellants’ petition for rehear-
ing and Defendants-Appellees’ petition for rehearing and peti-
tion for rehearing en banc. Judge Rawlinson has voted to deny
Plaintiff-Appellants’ petition for rehearing and to grant
Defendants-Appellees’ petition for rehearing and petition for
rehearing en banc.
A judge of the court called for a vote on the petition for
rehearing en banc. A vote was taken, and a majority of the
active judges of the court failed to vote for en banc rehearing.
Fed. R. App. P. 35(f).
The petitions for rehearing and the petition for rehearing en
banc are DENIED. No further petitions for rehearing or for
M. R. v. DREYFUS 6963
rehearing en banc may be filed. The mandate shall be issued
forthwith.
BEA, Circuit Judge, joined by KOZINSKI, Chief Judge, and
O’SCANNLAIN, TALLMAN, RAWLINSON, BYBEE,
CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges, dis-
senting from denial of rehearing en banc:
This case is one of several recently brought requesting an
injunction to block across-the-board decreases in expenditures
for social services, enacted to eliminate a state’s budgetary
deficits. This, despite the fact that the rate reductions were
validly adopted by agency regulation, and despite a state law
requirement to prevent deficits in accounts. This, in the name
of preventing “discrimination” against disabled persons under
the Americans with Disabilities Act (“ADA”). Yet the panel
majority sided with the plaintiffs and reversed the denial of a
requested preliminary injunction.
Mind you, this case does not involve the provision of cer-
tain social services to one group of disabled—those in nursing
homes—but not to another group—the disabled residing at
their own homes. No, the panel majority’s decision proceeds
on the premise that the very reduction of social services cur-
rently provided the at-home disabled will risk their going to
nursing homes, and that such reduction therefore “discrimi-
nates” against the at-home disabled, although not in favor of
the disabled in nursing homes, or anyone else. But virtually
everything the government does involves discrimination; it is
in the nature of laws that they treat some people differently
from others. This is not generally impermissible discrimina-
tion. Most government spending affects some groups more
than others, but that doesn’t mean that the result is impermis-
sible discrimination.
The Supreme Court tells us that discrimination against the
disabled may occur when certain social services a state actu-
6964 M. R. v. DREYFUS
ally provides are found only at nursing homes, and not pro-
vided at-home. Then the risk arises that the at-home disabled
must enter nursing homes, rather than remain at-home. That
is discrimination under the ADA. See Olmstead v. L.C. ex rel.
Zimring, 527 U.S. 581 (1999).
As noted, a divided panel of our court reversed the denial
of a requested preliminary injunction to block the reductions
here. This decision has the immediate effect of blocking the
reductions of services for only the twelve named plaintiffs.
But since the decision interprets and applies the ADA, it con-
stitutes binding precedent in our nine Western states, with
20% of the nation’s population.1
We should have taken this case en banc. The panel majori-
ty’s opinion fits the criteria of Federal Rule of Appellate Pro-
cedure 35(a) to a tee. The panel majority’s opinion conflicts
with precedent of the Supreme Court,2 our court,3 and the Sec-
ond Circuit.4 It is also a case of exceptional importance. It
involves nothing less than the ability of a state to reduce the
amount of its totally voluntary and optional Medicaid social
welfare expenditures to balance its budget. No doubt that is
why California joined Washington to urge us to review the
case en banc. The issue is whether state budgetary decisions
1
In Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc), our en
banc court recently clarified that all published opinions—including those
interpreting statutory law at the preliminary injunction stage, as occurred
in that case—constitute “law of the circuit,” such that they “constitute[ ]
binding authority which must be followed unless and until overruled by
a body competent to do so.” Id. at __ n.4 (internal quotation marks omit-
ted).
2
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). See infra pp.
6970-74.
3
Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003). See infra pp.
6974-75.
4
Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999). See infra
pp. 6976-77.
M. R. v. DREYFUS 6965
will be replaced by those of our colleagues, federal appellate
judges, by use of a strained interpretation of the ADA.
I. Background
1. The program at issue. Washington has voluntarily
elected to pay for “personal care services,” such as feeding,
medication management, cooking, and other “physical or ver-
bal assistance with activities of daily living” to certain dis-
abled individuals under its state Medicaid program. See Wash.
Rev. Code § 74.39A.009(18). Approximately 45,000 disabled
individuals receive personal care services. M.R. v. Dreyfus,
663 F.3d 1100, 1104 (9th Cir. 2011). Some of the providers
of personal care services are professionals, but others are fam-
ily members who take care of their disabled relatives, at state
expense. Washington’s receipt of federal Medicaid money for
other medical services in no way depends on its provision of
these “personal care services.”
Washington devised an individualized assessment system
called CARE to determine the number of hours for each aid
recipient. Id. Under CARE, “the individual [recipient] is
scored on factors such as an individual’s ability to perform
daily activities and an individual’s mental status,” and is then
assigned to one of 17 groups. Id. (quoting Samantha A. v.
Dep’t of Soc. & Health Servs., 256 P.3d 1138, 1140 (Wash.
2011) (en banc)). In 2010, before the proposed cuts, the most
needy group received 416 hours of personal care assistance
per month (nearly 14 hours a day, 30 days per month), and the
least needy group received 26 hours per month. D. Ct. Order
6.
It is critical to understand, as the district court found and
the panel majority’s opinion does not dispute, that although
CARE is an individualized assessment based on needs, it is
not a guarantee of a minimum level of care needed to keep an
individual at home or outpatient locations, rather than in a
nursing home. D. Ct. Order 13. To the contrary, the program
6966 M. R. v. DREYFUS
is a flexible one: coverage is dependent in part on how much
money the state has.
Washington has used this flexibility to change its payout
for personal care service hours a number of times in the last
ten years. From 2004 to 2006, the number of hours paid for
was on average approximately the same as now, after the
most recent (late 2010) cuts.5 When the economy and the col-
lections rose, from 2007-2009, the paid hours allotment
increased. Following the recent recession, the state reduced
base hours by an average of about 4%; but in early 2010, the
state restored those 2009 cuts. Finally, because of the state’s
last budget crisis and an executive order of late 2010, the
State made the approximately 10% average cuts, which
brought the state back down to 2004 to 2006 levels of pay-
ments for hours provided. See generally D. Ct. Order 7.
Though the number of hours provided has fluctuated, the
record shows that Washington has shown consistent success
in accomplishing the goal of the integration mandate: keeping
the disabled in the community. In every year since 1992, the
number of disabled persons in Washington who receive
community-based care has increased, while the number of
persons who receive nursing home care has decreased. See
Exhibit Below.
5
As explained below, under the panel majority’s reasoning, even the
2004 to 2006 hours allotment would violate the ADA.
M. R. v. DREYFUS 6967
Two other features of the program must be kept in mind.
The first is called the “Exception to the Rule,” or ETR, pro-
cess. As the panel majority mentioned, a beneficiary who dis-
putes that his allotted hours are adequate for his needs may
request an increase in payment for hours of personal services.
M.R., 663 F.3d at 1105. What the panel majority does not
mention is that the state approved 89% of the ETR requests
for additional hours in 2010. D. Ct. Order 7.
Second, Washington’s program is extraordinarily generous.
Even after the proposed cuts, Washington pays for up to 393
hours per month for an individual. Of course, even more paid
hours are possible through the ETR process. D. Ct. Order 6,
Table 1. By contrast, the maximum number of personal care
hours authorized in California is 283 per month. Cal. Welf. &
Inst. Code § 12303.4(b).
2. The proposed cuts. Washington, like many states,
faced a severe budget crisis in 2010. On September 13, 2010,
6968 M. R. v. DREYFUS
Governor Gregoire issued an executive order requiring
across-the-board budget cuts because “the national economic
downturn” caused “revenues [that] have fallen short of projec-
tions,” and the state’s general fund was in danger of running
a deficit.6 663 F.3d at 1105. The Department of Social and
Health Services adopted a regulation which cut the base hours
of CARE recipients, with cuts ranging from 6.3% for those
receiving many hours to 18.8% for those receiving fewer. The
variation in cuts is based on “the notion that the individuals
currently receiving only a handful of personal care service
hours per month are the most independent and therefore the
least likely to require nursing home care.” D. Ct. Order 8 n.7.
Even after the cuts, anyone may still request an ETR to adjust
hours upward.7 WAC 388-440-0001.
3. This lawsuit. The plaintiffs are disabled and elderly indi-
viduals who receive in-home personal care services through
the voluntary “personal services” feature of Washington’s
Medicaid program. They are currently proceeding individu-
ally, and a motion for class certification was recently stricken
without prejudice to its being refiled following the issuance of
6
As the panel majority opinion acknowledges, Washington law requires
that “[i]f at any time during the fiscal period the governor projects a cash
deficit in a particular fund or account . . . the governor shall make across-
the-board reductions in allotments for that particular fund or account so as
to prevent a cash deficit.” 663 F.3d at 1105 (citing Wash. Rev. Code
§ 43.88.110(7)).
7
As of the time of the district court’s order, at least one of the original
named plaintiffs had already received additional hours through the ETR
process, and this adjustment actually increased his hours over those hours
he received before the cuts. Two others who requested ETRs will instead
receive a re-assessment of their base CARE classification level. They are
likely to be placed into a higher CARE group, and so will probably be
entitled to more hours than their previous allotment following the across-
the-board reduction. Five of the named plaintiffs applied for and were
denied extra hours when the state committee determined that the plaintiffs
did not require more hours to preserve their health and safety.
M. R. v. DREYFUS 6969
this court’s mandate. See Proposed Order Amending Opinion
at 2.8
As relevant here, the plaintiffs allege that the state’s reduc-
tion violates the general non-discrimination provision of the
ADA, which provides that “no qualified individual with a dis-
ability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, pro-
grams, or activities of a public entity, or be subjected to dis-
crimination by any such entity.” 42 U.S.C. § 12132. An
implementing regulation, called the “integration mandate”
provides that “[a] public entity shall administer services, pro-
grams, and activities in the most integrated setting appropriate
to the needs of qualified individuals with disabilities.”9 28
C.F.R. § 35.130(d). The plaintiffs contend that the state’s
reductions in paid hours for “personal services” violate the
ADA 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.” M.R., 663 F.3d at 1102.
The district court held over five hours of oral argument
and, in an order amply supported by the evidence, found that
plaintiffs’ claims of irreparable injury (risk of institutionaliza-
tion) were unlikely to succeed. He denied a request for a pre-
liminary injunction. D. Ct. Order 2 n.4, 3. The panel majority,
over Judge Rawlinson’s dissent, reverses the district court’s
legal conclusions and factual findings, and remands for entry
of a preliminary injunction as to the named plaintiffs. The
injunction prohibits the state from enforcing the reductions
against the named plaintiffs, and the panel “leave[s] it to the
8
Two advocacy organizations and the union that represents Washing-
ton’s home care workers are also plaintiffs in this suit. M.R., 663 F.3d at
1106.
9
An “integrated setting” is one where a disabled individual is cared for
in a community-type setting (i.e., at-home or outpatient), as opposed to a
nursing home.
6970 M. R. v. DREYFUS
district court to determine on remand whether, in light of this
opinion, broader preliminary injunctive relief is appropriate.”
663 F.3d at 1121.
II. Reasons to Take This Case En Banc
The district court’s order was correct on the law, on the
facts, and on the standard for issuing a preliminary injunction.
Now, after this decision, the ADA will block states from mak-
ing even small, evenhanded cuts to programs which the state
has voluntarily added to its Medicaid program. This is so even
when the reductions are in response to severe budget deficits,
and even when there is no evidence that anyone will be sub-
jected to imminent institutionalization. Somehow, this is all
done in the name of prevention of discrimination. Congress,
with the passage of the ADA, certainly never contemplated
nor sanctioned such a one-way ratchet on governmental
spending. We should have gone en banc to correct course.
1. The opinion’s incorrect analysis of the ADA. The panel
held that there were “serious questions going to the merits” of
whether a 10% cut to services in this voluntary and optional
Medicaid program, which is being administered even-
handedly, violates the regulation that “[a] public entity shall
administer services, programs, and activities in the most inte-
grated setting appropriate to the needs of qualified individuals
with disabilities.” 28 C.F.R. § 35.130(d). The panel held that,
to prevail on a claim under the integration mandate, “a plain-
tiff need only show that the challenged state action creates a
serious risk of institutionalization.” 663 F.3d at 1116.
That is not the law. According to the Supreme Court in
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the
integration mandate means that “[s]tates are required to pro-
vide community-based treatment for persons with . . . disabili-
ties when the State’s treatment professionals determine that
such placement is appropriate, the affected persons do not
oppose such treatment, and the placement can be reasonably
M. R. v. DREYFUS 6971
accommodated, taking into account the resources available to
the State and the needs of others with . . . disabilities.” Id. at
607 (emphasis added). But it is not disputed that Washington
does “provide community-based treatment for persons with
. . . disabilities” on an even-handed—even exemplary—basis.
There is no claim that Washington discriminates against
community-based recipients by favoring institutionalized
recipients with more or better “services, programs, [or] activi-
ties.” See 28 C.F.R. § 35.130(d). Olmstead requires that
community-based treatment be provided only after “taking
into account the resources available to the State and the needs
of others . . . with disabilities.” 527 U.S. at 607. Here, the
reductions in personal care service hours were applied in view
of “resources available” and on a rational basis depending on
need, and not on any discriminatory basis as between the
community-based recipient and the institutionalized recipient.
The panel majority seems to view an across-the-board
reduction of services to the community-based recipients to be
“discrimination” because of the effect the reduction might
have: to cause some community-based recipients to seek insti-
tutional care. But even the broad view of “discrimination”
endorsed in Olmstead requires some form of differential treat-
ment amongst the disabled. What the Supreme Court held in
Olmstead is that the disabled are discriminated against if
states, without justification, provide services to the institution-
alized that are not provided to community-based recipients,
thus forcing certain individuals into institutionalized settings.10
See 527 U.S. at 597, 600-01. What Olmstead did not hold—
indeed what it specifically stated it was not holding—was that
any sort of a level of services must be provided to prevent ins-
titutionalization, else the recipient would suffer discrimina-
tion.
10
Our court explained this principle clearly: “where the issue is the loca-
tion of services, not whether services will be provided, Olmstead con-
trols.” Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003) (emphasis
in original). See infra pp. 6974-75.
6972 M. R. v. DREYFUS
Indeed, the district court plainly found that the record
showed no such discrimination was occurring here, stating
that “the record does not reflect that the State is providing ser-
vices to individuals in institutions that it has declined to pro-
vide to individuals living in community-based settings. To the
contrary, plaintiffs’ evidence demonstrates that individuals
living in community-based settings currently receive more
and better care than individuals living in institutions.” D. Ct.
Order 36. The panel majority’s opinion unfortunately ignored
this finding.
An example might help. If the reduction of personal ser-
vices were to eliminate specific services from the personal
care program—for instance, dressing care services—but that
service were to be provided by institutionalized care, that
would be discrimination as interpreted by Olmstead: this
needed service, provided only in institutions, would require
the disabled person to seek institutional care. Here, though,
there is no allegation, much less proof, that the state made any
cuts to particular personal care services. There is no service
at all that was provided in 2009 that is no longer provided
after the reductions.
The gravamen of the claim, then, is simply that the plain-
tiffs want more hours of the personal care services they would
receive in their homes following the reductions. It is under-
standable for the plaintiffs to want more services to be pro-
vided at no cost to them. The problem is that the plaintiffs are
not entitled to any particular level of services—or a “standard
of care”—under the ADA. This is especially so because more
services for these plaintiffs necessarily means less for others,
since “the State has submitted unrefuted evidence that it will
need to make drastic cuts in other state programs if this Court
grants plaintiffs’ requested preliminary injunction.” D. Ct.
Order 41.11
11
The reason the panel majority in M.R. rejected this finding by the dis-
trict court—a finding which was supported by unrefuted evidence—is:
M. R. v. DREYFUS 6973
The panel’s view of what constitutes “discrimination” con-
flicts with Olmstead, which explicitly conditioned benefits to
community-based recipients on “resources available.”
Olmstead condemns only “unjustified isolation.” 427 U.S. at
597 (emphasis added). Now, under M.R., states must provide
community-based services in a way that eliminates any “seri-
ous risk” that any individual currently receiving in-home ser-
vices will be transferred to a nursing home. The opinion
demands that community-based care meet a certain standard:
the program must guarantee that each disabled individual cur-
rently receiving benefits in the program is able to continue to
live in the community indefinitely. But the ADA requires only
non-discrimination in the provision of services amongst the
community-based recipients, or between the community-
based recipients and the institutionalized, when a state allo-
cates discretionary resources. The ADA does not require that
any particular services be provided, or that any particular
level of services be provided. Indeed, the Supreme Court has
already rejected the opinion’s view of the ADA:
We do not in this opinion hold that the ADA
imposes on the States a “standard of care” for what-
ever medical services they render, or that the ADA
requires States to “provide a certain level of benefits
to individuals with disabilities.” . . . We do hold,
however, that States must adhere to the ADA’s non-
“[i]t is clear that money spent on behalf of the Plaintiffs is money that will
not be spent on other programs. But it is not clear from the evidence in
the record or from the arguments made to us precisely what those other
programs are and the extent to which they would be cut.” 663 F.3d at
1119-20. The opinion did not grace us with what details were missing.
Should the state submit an entire budget, passed with alternatives, should
a panel of judges on this court invalidate some cuts? That would require
the court to engage in mini-management for which it is ill-suited. The
impossibility of a state’s ever prevailing on the basis of Washington’s
showing here is exactly what Olmstead called “unacceptable” because “it
would leave the State virtually defenseless once it is shown that the plain-
tiff is qualified for the service or program she seeks.” 527 U.S. at 603.
6974 M. R. v. DREYFUS
discrimination requirement with regard to the ser-
vices they in fact provide.
Olmstead, 527 U.S. at 603 n.14 (quoting Olmstead, 527 U.S.
at 624 (Thomas, J., dissenting)) (emphases added). The
Court’s language helps to interpret the integration mandate’s
language. 28 C.F.R. § 35.130(d) requires the states to “admin-
ister” existing programs and services in the most integrated
setting possible, so as to avoid discrimination. The mandate
does not require the states to “provide” or “maintain” pro-
grams to avoid discrimination.
It gets worse, though, because we too have already rejected
M.R.’s limitless expansion of Olmstead. In Townsend v. Qua-
sim, 328 F.3d 511 (9th Cir. 2003), we properly read Olmstead
to have a limited scope when we stated that “where the issue
is the location of services, not whether services will be pro-
vided, Olmstead controls.” Id. at 517; see also Olmstead, 527
U.S. at 612 (Kennedy, J., concurring in judgment) (“No State
has unlimited resources, and each must make hard decisions
on how much to allocate to treatment of diseases and disabili-
ties. . . . The judgment [regarding resource allocation], how-
ever, is a political one and not within the reach of the
statute.”). Yet, despite this clear language in Olmstead and the
instruction from our court in Townsend, a new standard of
care based on a recipient’s subjective claims is exactly what
the panel requires from the state of Washington. After M.R.,
that standard can never be reduced.
In the teeth of this precedent, the panel majority’s opinion
gives what amounts to controlling interpretive deference to a
“statement of interest” the DOJ filed in support of the plain-
tiffs. See M.R., 663F.3d at 1117. In Olmstead, the Court
declined to consider whether to accord deference to the DOJ’s
views of the ADA and implementing regulations. 527 U.S. at
598.12 Notwithstanding the Supreme Court’s forbearance, the
12
There, the United States participated as amicus at the Supreme Court
level. The Court also noted three previous appellate-level amicus briefs,
M. R. v. DREYFUS 6975
panel majority here contends that this “statement of interest,”
filed in district court, is the equivalent of an “agency’s inter-
pretation of its own regulation,” which the panel then says is
“controlling unless plainly erroneous or inconsistent with the
regulation.” M.R., 663 F.3d at 1117 (quoting Auer v. Robbins,
519 U.S. 452, 461 (1997)).
This is one leap too far. First, unlike Olmstead, where the
United States participated through the appearance of the
Solicitor General, the DOJ did not even submit an amicus
brief to our court in this appeal, despite the fact that its posi-
tion lost in district court. Second, a “statement of interest” has
not gone through anywhere near the rigorous controls as has
a regulation adopted pursuant to the Administrative Procedure
Act, or even a Supreme Court amicus brief. Third, in any
event, the DOJ’s view leads to a plainly unreasonable inter-
pretation of the plain text of the ADA, so it must be rejected.
See Auer, 519 U.S. at 461 (agency interpretation of a regula-
tion not controlling if “plainly erroneous or inconsistent with
the regulation” (internal quotation marks omitted)).13 It is
and observed that “We need not inquire whether the degree of deference
described in Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), is in order; [i]t is enough to observe that the
well-reasoned views of the agencies implementing a statute constitute a
body of experience and informed judgment to which courts and litigants
may properly resort for guidance.” Olmstead, 527 U.S. at 598 (1999)
(internal quotation marks omitted; alteration in original). Notice also that
the Court there referred to whether Chevron deference was in order. The
Court did not even mention Auer deference, which is the form of defer-
ence used by the panel majority here.
13
The panel also ignores the fact that our court has read Auer narrowly
and refused to “give controlling deference” to “interpretations of statutes
expressed for the first time in case-by-case amicus filings.” Christopher
v. SmithKline Beecham Corp., 635 F.3d 383, 395 (9th Cir. 2011), cert.
granted 132 S. Ct. 760 (2011). Moreover, the core principle in Auer that
a court should ever substantially defer to an agency’s interpretation of its
own regulation, even if validly asked to do so in a brief filed before the
tribunal deciding the case, has recently been cast into doubt by subsequent
6976 M. R. v. DREYFUS
plainly unreasonable to claim it is “discrimination” under the
ADA when there is an even-handed reduction of a
voluntarily-provided welfare benefit and no claim that this
reduction will lead to anyone’s imminent institutionalization.
Finally, in imposing on the states a standard of care for per-
sonal care service programs, we do not just depart from bind-
ing Supreme Court precedent. We also create a conflict with
the Second Circuit. In Rodriguez v. City of New York, 197
F.3d 611 (2d Cir. 1999), decided after Olmstead, the Second
Circuit considered a case where a class of mentally-disabled
plaintiffs contended that New York violated the ADA because
the state failed to provide “safety-monitoring services” in its
personal-care services program. Id. at 613. As here, the plain-
tiffs claimed that the state’s failure to do this rendered the per-
sonal care services provided “inadequate to meet their
medical needs and to allow them to continue living in their
homes.” Id. at 614.
The Second Circuit recognized that this argument does not
allege “illegal discrimination against the disabled” but instead
presents a challenge to “the substance of the services provid-
ed.” Id. at 618. This is because “[t]he ADA requires only that
a particular service provided to some not be denied to dis-
abled people.” Id. The court thus rejected the “discrimination”
claim. Id. In so doing, the Second Circuit also explained that
Olmstead was “inapposite” in such a case because it does not
“stand for the proposition that states must provide disabled
individuals with the opportunity to remain out of institutions.”
Id. at 619. Instead, Olmstead means “only that States must
adhere to the ADA’s nondiscrimination requirement with
administrative law cases. See Talk Am., Inc. v. Mich. Bell Tel. Co., 131
S. Ct. 2254, 2266 (2011) (Scalia, J., concurring) (“It is comforting to know
that I would reach the Court’s result even without Auer. For while I have
in the past uncritically accepted that rule, I have become increasingly
doubtful of its validity.”).
M. R. v. DREYFUS 6977
regard to the services they in fact provide.” Id. (quoting Olm-
stead, 527 U.S. at 603 n.14) (emphasis inoriginal).
The bottom line is simple enough: “[T]he disabilities stat-
utes do not guarantee any particular level of medical care for
disabled persons, nor assure maintenance of service previ-
ously provided.” Rodriguez, 197 F.3d at 619 (quoting Cerpac
v. Health and Hosp. Corp., 147 F.3d 165, 168 (2d Cir. 1998))
(emphasis added). Yet “maintenance of service previously
provided” is exactly what our court requires in M.R.14
The panel majority’s insistence that Washington state pro-
vide a particular standard of care means the remainder of
Ninth Circuit states must abandon any attempt to reduce
voluntarily-provided, optional personal care services from
their current levels. Instead, states are locked into a program
they thought voluntary and optional, one not required by
Medicaid—and certainly not required to continue at a particu-
lar service level. If a 10% reduction in hours in one of the
nation’s most generous programs creates a “serious risk of
institutionalization,” then it is hard to imagine what other
reduction, in any state, will ever fail to meet the “serious risk”
standard. This is because Washington state’s entire personal
care services program is essentially an at-home substitute for
nursing home care. Almost by definition, if this program
offers fewer hours and serves fewer people, more people will
be at risk of needing to go into a nursing home. But, at worst,
that risk is not caused by discrimination in the services actu-
14
Rodriguez relied explicitly on the ADA itself, rather than the integra-
tion mandate. However, the Second Circuit’s extensive discussion of Olm-
stead makes clear that its decision is directly applicable in this context,
and that, following Rodriguez, the Second Circuit would have decided our
case differently. Indeed, our own court has looked to Rodriguez in a case
explicitly about the integration mandate, and stated: “As Rodriguez makes
clear, where the issue is the location of services, not whether services will
be provided, Olmstead controls.” Townsend, 328 F.3d at 517 (first empha-
sis added).
6978 M. R. v. DREYFUS
ally provided, but by the lessening of the services previously
provided.
Thus, plaintiffs will argue, applying the integration man-
date to this type of service in the first place leads inexorably
to the conclusion that the states that do not currently partici-
pate in this optional program are in violation of the ADA. If
cutting personal care hours presents a “serious risk of institu-
tionalization,” the argument will go, surely providing no per-
sonal care services at all presents an even bigger risk of
institutionalization. Now, after the panel majority’s opinion in
M.R., there is no stopping point to the plaintiffs’, activist
organizations’, and unions’ claims that the “integration man-
date” prohibits any reduction in services to the at-home dis-
abled. This argument is absurd on its face, and we should
have taken this case en banc now to stop plaintiffs’ assertion
of what they may style as an “inexorable” progression.
2. The opinion’s impermissible factfinding. The panel
majority acknowledged in its standard of review section that
this court reviews a denial of preliminary injunction for abuse
of discretion and that, in so doing, “we first look to whether
the trial court identified and applied the correct legal rule to
the relief requested. Second, we look to whether the trial
court’s resolution . . . resulted from a factual finding that was
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). Our
standard was drawn directly from the Supreme Court’s lan-
guage in Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 577 (1985) (“Based on our own reading of the record, we
cannot say that either interpretation of the facts is illogical or
implausible. Each has support in inferences that may be
drawn from the facts in the record; and if either interpretation
had been drawn by a district court on the record before us, we
would not be inclined to find it clearly erroneous.”) (empha-
ses added). Yet the panel majority replaces the district court’s
amply-supported factual findings with its own findings. The
M. R. v. DREYFUS 6979
opinion fails to keep in mind my colleague Judge Farris’s
pithy line characterizing the “appropriate appellate function”:
while his colleague in dissent “would retry,” Judge Farris was
“content to review.” Li v. Ashcroft, 378 F.3d 959, 964 n.1 (9th
Cir. 2004).
The discussion of irreparable harm in the panel opinion
focuses nearly exclusively on three of the twelve plaintiffs:
M.R., C.B., and K.S. 663 F.3d at 1108-14. The facts the panel
majority relates of their conditions are sad and unfortunate, as
M.R. and C.B. in particular are severely disabled individuals
who require extensive care on a daily basis. The plaintiffs
contend that they have “demonstrated a likelihood of irrepara-
ble injury because they have shown that reduced access to
personal care services will place them at serious risk of insti-
tutionalization.” Id. at 1102. The panel majority agreed, over-
turning the district court’s careful findings to the contrary.
The panel majority reversed the district court because the
state’s responses to the plaintiffs’ recitations of harm were
“weak”15 and the “the district court addressed these individu-
alized showings in a generalized fashion.” Id. at 1114.
On the contrary, the district court did indeed give individu-
alized consideration to each plaintiff. For instance, after citing
the declarations of nine of the named plaintiffs whose “medi-
cal conditions have deteriorated”—a group that includes both
M.R. and C.B.—the district court said that “the Court is
unable to determine whether the alleged threat of institutional-
ization these particular plaintiffs face is the result of the
State’s reduction in personal care service hours or the deterio-
ration in their medical conditions.” D. Ct. Order 25. In a
lengthy passage, the district court also described evidence that
contradicted the allegations of harm to the plaintiffs arising
from the reduction, and the district court further noted that
15
This word is a classic giveaway that the panel majority weighed the
evidence anew, rather than applying the standard of appellate review of
factfinding demanded by Anderson and Hinkson.
6980 M. R. v. DREYFUS
some of the allegations in the plaintiffs’ declarations were
“speculative at best.” Id. at 25 n.31.
The district court also found that certain declarations did
not show a likelihood of irreparable injury because plaintiffs
had not attempted to raise the hours of personal care they
claimed to need through the available ETR process. D. Ct.
Order 26-27. For instance, in the case of plaintiff A.R., the
district court said that it “can only conclude that the declara-
tions relating to A.R. do not suggest a likelihood of irrepara-
ble injury because, until the State has had the opportunity to
correct the gap in care through case management, the Court
cannot determine whether the threat of harm is the result of
the State’s reduction, or the decision by A.R.’s guardian to
give preference to the provider’s convenience over A.R.’s
care needs.” Id. at 27. The panel opinion does not address this
reasoning. Instead, it pretends this finding was not there.
Moreover, the panel majority’s criticism of the district
court’s findings as impermissibly general is misplaced. The
panel majority does not claim that the district court failed to
comply with Fed. R. Civ. P. 52(a)(2), which requires that
“[i]n granting or refusing an interlocutory injunction, the
court must . . . state the findings [of fact] and conclusions [of
law] that support its action.” Instead, the panel majority con-
flates a criticism of how the district court discussed the evi-
dence with an evaluation of the sufficiency of the evidence
itself. This contradicts our circuit’s test for “clear error,”
which turns only on whether there was a sufficient evidentiary
basis for the determination the district court made, not how
the trial court “addressed” the evidence in the record. Here,
there was a sufficient evidentiary basis for the district court’s
findings.
In 2009, our en banc court closely tracked the Court’s lan-
guage in Anderson when it stated that factual findings would
be overturned only if they were “illogical, implausible, or
without support in inferences that may be drawn from the
M. R. v. DREYFUS 6981
facts in the record.” Hinkson, 585 F.3d at 1263 (drawing on
and quoting from Anderson, 470 U.S. at 577 (1985)). Yet, in
direct contradiction to this mandatory analytical framework,
the panel opinion never lets the reader know upon which of
these shoals the district court’s factual findings ran aground,
or why. This error too demanded en banc review, because it
constitutes a three-judge panel’s departure from an en banc-
approved standard.
III. The Effect of Our Decision
Under M.R., states will be hard-pressed to reduce benefit
levels in voluntarily-provided personal care services programs
and, perhaps, in a variety of other voluntary social services
programs. This not only departs from the text of the relevant
statutes and regulations, but it presents two major practical
problems. First, in the near term, states will not be able to bal-
ance their budgets. Second, in the longer term, if states do not
have flexibility to cut the provision of such services, then they
are far less likely to decide to provide the programs in the first
place. Both of these cause serious harm to states and their citi-
zens, yet this harm was entirely ignored by the panel majority.
Of course, I am not a state executive or legislative official,
charged with administering the state budget, so do not take
my word for it. Instead, look at the recent remarks of Califor-
nia Governor Jerry Brown regarding the state’s $16 billion
budget deficit. Why is the shortfall so large—and in particular
so much larger than the $9 billion deficit forecast only months
ago? “Tax receipts are coming in lower than expected,” he
said. “And the federal government and the courts have
blocked us from making billions in necessary budget reduc-
tions.”16 At a press conference on Monday, May 14, 2012,
Governor Brown noted:
16
See J.J. McGrath, California Budget Gap Widens to $16B from $9B,
Int’l Business Times (May 13, 2012), available at http://
www.ibtimes.com/articles/340491/20120513/california-budget-deficit-
taxes-cuts-transcript-video.htm?page=all (emphasis added).
6982 M. R. v. DREYFUS
The fact is we’re in a democratic society. We have
so much money from the people, and we’ve got so
much spending. We can have it be out of alignment
for a while . . . but I’ve committed to getting it into
balance. What that means is that things that are good
in and of themselves have got to be stopped or cur-
tailed if we’re going to have balance. Otherwise, we
borrow and sink deeper into debt, and you see Spain,
Portugal, Italy, Ireland, England, they’re all having
trouble. While the short-term pain is real, I think the
greater good is balancing the revenue with the spend-
ing.17
The majority ignores this fundamental reality of our democ-
racy.
The long-term impact of the panel majority’s decision and
the inevitable path we will now be forced to follow is that leg-
islators will think long and hard about ever again authorizing
such voluntary and optional programs. After all, state legisla-
tors and executive officials are not blind to what we do here
at the Ninth Circuit. Rather, those who govern in the states in
our circuit will see the reductions we have blocked, even to
voluntary, optional services like the one here, and then ask
themselves: why should we ever go through this battle again?
The harm that will come to all of us from these programs
foregone—these legislative possibilities left untried—will be
hard to measure. But it will be very real.
Fortunately, this is not a result demanded by the ADA, the
facts of this case, or the balancing of the equities courts look
to in issuing injunctions. Far from it. This result is one manu-
factured by the panel majority’s stretched reading of the law,
its mistreatment of the record, and its arrogation to itself of
the factfinding function. We should have gone en banc to cor-
17
See Video of Press Conference on May 14, 2012, available at
http://www.calchannel.com/video-on-demand/.
M. R. v. DREYFUS 6983
rect this opinion’s turn toward anti-democratic budgeting by
judicial fiat.
OPINION
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 promul-
gated by Washington’s Department of Social and Health Ser-
vices (“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, mov-
ing 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 Disabili-
ties Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29
U.S.C. § 794(a), because the reduction in hours will substan-
tially 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.
6984 M. R. v. DREYFUS
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 hard-
ships tips sharply in their favor, and that a preliminary injunc-
tion 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 regu-
latory requirements. Alexander v. Choate, 469 U.S. 287, 289
n.1 (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 cov-
erage.” Alexander, 469 U.S. at 303; see also Beal v. Doe, 432
U.S. 438, 444 (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 ben-
M. R. v. DREYFUS 6985
efit 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 quali-
fied 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) (clarify-
ing 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 house-
work, laundry, meal preparation, transportation, grocery shop-
ping, 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 assis-
tance with activities of daily living and instrumental activities
of daily living provided because of a person’s functional dis-
ability.” WASH. REV. CODE § 74.39A.009(18). The state
defines “activities of daily living,” in turn, to include bathing,
6986 M. R. v. DREYFUS
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 sur-
faces, and personal hygiene. WASH. ADMIN. CODE § 388-106-
0010. The state defines “instrumental activities of daily liv-
ing” 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 pro-
grams. See 42 U.S.C. § 1396a(a)(5); WASH. REV. CODE
§ 74.09.530. DSHS covers the cost of personal care services
for approximately 45,000 people. Some 15,000 of those bene-
ficiaries 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 autho-
rized 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 com-
munity rather than institutional care, “the waiver program
provides Medicaid reimbursement to States for the provision
of community-based services to individuals who would other-
wise require institutional care, upon a showing that the aver-
age annual cost of such services is not more than the annual
cost of institutional services.” Olmstead v. L.C. ex rel. Zim-
ring, 527 U.S. 581, 601 n.12 (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.
M. R. v. DREYFUS 6987
§ 1396n(c)(1); 42 C.F.R. §§ 435.217, 441.302(c); see also,
e.g., WASH. ADMIN. CODE § 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 Resi-
dential Waiver (“MNRW”) and Medically Needy In-Home
Waiver (“MNIW”) programs); id. § 388-845-0030(2)
(developmentally disabled participants in Home and
Community-Based Services (“HCBS”) 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. CODE § 388-106-0050 to -0145. The Wash-
ington Supreme Court has described CARE as follows:
In the initial stage of a CARE evaluation, the indi-
vidual 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 individ-
ually considers the recipient’s self-performance and
the amount of informal support available for the
recipient’s activities of daily living (ADL) and
instrumental activities of daily living (IADL). The
recipient’s level of informal support for each ADL
and IADL then reduces the base hours allocated to
that recipient by a predetermined percentage.
Samantha A. v. Dep’t of Soc. & Health Servs., 256 P.3d 1138,
1140 (Wash. 2011) (en banc) (internal citation omitted); see
also, e.g., Jenkins v. Wash. Dep’t of Soc. & Health Servs., 157
P.3d 388, 389-90 (Wash. 2007) (en banc). DSHS sets the base
6988 M. R. v. DREYFUS
monthly hours associated with each classification group by
regulation. WASH. ADMIN. CODE § 388-106-0125. DSHS con-
ducts CARE reassessments at least annually, or whenever a
beneficiary’s ability to care for himself changes. Id. § 388-
106-0050(1). A beneficiary who disagrees with his CARE
evaluation may appeal the evaluation in an administrative
hearing. Id. § 388-106-1305. A beneficiary who remains dis-
satisfied with his allocated hours of assistance may request
additional hours through an Exception to Rule (“ETR”). Id.
§ 388-440-0001. DSHS will grant an ETR when “[t]he cli-
ent’s situation differs from the majority; . . . [i]t is in the inter-
est of overall economy and the client’s welfare; and [i]t
increases opportunities for the client to function effectively.”
Id. § 388-440-0001(1)(b)-(d).
Once the CARE evaluation sets the number of hours to
which a beneficiary is entitled, the beneficiary and his DSHS
case manager work together to design a plan of care that spec-
ifies the services that the beneficiary will receive as well as
the caregivers who will provide those services. Id. §§ 388-
106-0045, 388-106-0130. At all times, a beneficiary has the
right to choose where he will receive authorized services (for
example, in his home, in a residential facility, or in a nursing
home), id. § 388-106-0030; to “[t]ake part in and have [his]
wishes included in planning [his] care,” id. § 388-106-
1300(13); and to “[c]hoose, fire, or change” his caregiver, id.
§ 388-106-1300(14).
On September 13, 2010, Governor Gregoire issued an exec-
utive order stating that because of “the national economic
downturn” and “revenues [that] have fallen short of projec-
tions,” the state’s general fund was in danger of running a def-
icit. Exec. Order No. 10-04, Ordering Expenditure Reductions
in Allotments of State General Fund Appropriations (Sept. 13,
2010), available at http://www.governor.wa.gov/execorders/
eo_10-04.pdf. Governor Gregoire ordered an across-the-board
reduction in general fund appropriations to all state agencies,
in an amount to be computed by the state’s Office of Finan-
M. R. v. DREYFUS 6989
cial Management. Id; see WASH. REV. CODE § 43.88.110(7)
(“If at any time during the fiscal period the governor projects
a cash deficit in a particular fund or account . . . the governor
shall make across-the-board reductions in allotments for that
particular fund or account so as to prevent a cash deficit.”).
The Office of Financial Management, in turn, determined that
each state agency would be required to reduce its allotment
from the general fund by 6.287 percent. See Office of Fin.
Mgmt., Allotment Reduction Instructions for Across-the-
Board Cuts Mandated by Executive Order 10-04, at 2 (Sept.
16, 2010), available at http://www.ofm.wa.gov/budget/
instructions/allotment/Allotment_reduction_instructions
091610.pdf.
To comply with the governor’s order, DSHS promulgated
an emergency regulation that reduced the base monthly hours
of in-home personal services care authorized for each CARE
classification group, effective January 1, 2011. See Wash.
Reg. 11-02-041 (Dec. 30, 2010) (codified at WASH. ADMIN.
CODE § 388-106-0125), available at http://apps.leg.wa.gov/
documents/laws/wsr/2011/02/11-02-041.htm. DSHS applied
the lowest percentage reductions to the classification groups
composed of the most disabled beneficiaries. See WASH. REV.
CODE § 74.09.520(4) (“Any reductions in services made nec-
essary for funding reasons should be accomplished in a man-
ner that assures that priority for maintaining services is given
to persons with the greatest need as determined by the assess-
ment of functional disability.”). For example, DSHS reduced
the base monthly hours for people in group D High from 277
to 260, a 6.1 percent decrease. Wash. Reg. 11-02-041. By
contrast, DSHS reduced the monthly base hours for people in
group B Low from 47 to 39, a 17 percent decrease. Id. The
average reduction in hours across all groups was about 10 per-
cent. Susan Dreyfus, DSHS’s Director, declared in January
2011 that the reduction in hours would save $19.2 million in
the five months then remaining in the 2011 fiscal year. DSHS
acknowledged in agency planning documents that “[w]ith
reduced hours, in-home clients will have to choose which
6990 M. R. v. DREYFUS
tasks their employees spend their time on and there may not
be enough time to complete all tasks.” Moreover, DSHS
anticipated that “[a]t the higher percentage reductions, some
needed tasks may not be completed on a regular basis. In
some cases, a safe in-home plan of care will not be possible
and clients may need to go to community residential or nurs-
ing facility settings.”
On December 6, 2010, about three weeks before the reduc-
tion was to take effect, DSHS mailed notice of the change to
beneficiaries. The notice stated that “you will receive fewer
personal care hours each month starting January 1, 2011,” set
forth the beneficiary’s current and revised monthly hours, and
computed the difference. The notice stated that “[t]his notifi-
cation serves as an amendment to your plan of care. You will
need to work with your personal care worker to prioritize
tasks within this reduced number of monthly authorized
hours.” Finally, the notice explained that DSHS
is making this change in response to the Governor’s
September 14th Executive Order 10-04 for 6.3%
reductions. This was one of a number of changes
made across government to address the State’s reve-
nue shortfall.
There are no appeal rights for this change through
the Office of Administrative Hearings because this is
a service change directed by the governor and
applies to the entire program. We know these
changes may be difficult for you. If you have ques-
tions or concerns about changes to your services,
please contact your case manager.
B. Procedural History
On December 23, 2010, Plaintiffs — 14 recipients of in-
home personal services care whose hours were reduced, two
advocacy organizations, and a union that represents Washing-
M. R. v. DREYFUS 6991
ton home-care workers — brought suit in federal district court
for the Western District of Washington. The 14 individual
plaintiffs sued on behalf of a proposed class of “Medicaid-
eligible individuals in the State of Washington living at home
who were assessed to need personal care services based upon
individualized CARE assessments of their needs and who
received these Medicaid services in accordance with their
assessment[s] until DSHS reduced their services to below
their level of need for budgetary reasons alone.” Plaintiffs
alleged that the regulation violated the Americans with Dis-
abilities Act, 42 U.S.C. § 12132, the Rehabilitation Act, 29
U.S.C. § 794(a), due process, and various statutory and regu-
latory Medicaid requirements. Plaintiffs sought a declaratory
judgment, as well as a temporary restraining order and prelim-
inary and permanent injunctions prohibiting DSHS from
implementing the regulation. In the alternative, Plaintiffs
sought to enjoin the reduction in hours until beneficiaries
received individual CARE reassessments, notice of alternative
institutional placements, and administrative hearings.
The district court denied the motion for a TRO and deferred
hearing on the motion for a preliminary injunction. Plaintiffs
appealed the denial of the motion for a TRO, prompting the
district court to stay proceedings and cancel a scheduled hear-
ing on Plaintiffs’ motion for a preliminary injunction. On
appeal, a motions panel of this court stayed implementation
of the emergency regulation pending the district court’s dispo-
sition of the motion for a preliminary injunction. The panel
concluded that denial of the TRO was reviewable “because
the district court took the hearing for the motion for prelimi-
nary injunction off calendar,” making denial of the TRO “tan-
tamount for present purposes to the denial of a motion for a
preliminary injunction.” On the merits, the panel determined
that a stay pending a hearing on the motion for a preliminary
injunction was justified because “[n]o other relief is available
that will remedy the irreparable injury which continues to
occur pending such hearing.”
6992 M. R. v. DREYFUS
On remand, the district court denied Plaintiffs’ motion for
a preliminary injunction. The court determined that Plaintiffs
failed to satisfy any prong of Winter v. Natural Res. Def.
Council, 555 U.S. 7 (2008). According to the court, Plaintiffs
did not demonstrate a likelihood of irreparable injury because
they “failed to submit evidence that the reduction will deny
beneficiaries needed services, or that it will create a serious
risk of institutionalization.” Nor, in the view of the court,
were Plaintiffs likely to succeed on the merits. Plaintiffs were
unlikely to prevail on their ADA/Rehabilitation Act claim
because “the State’s budget reduction does not leave individu-
als with no choice [but] to submit to institutional care to
obtain needed services” and because “it is likely that requiring
the State to continue current funding levels for personal care
services indefinitely would constitute a fundamental alteration
in the State’s Medicaid program.” Implementation of the
emergency regulation did not violate due process because
“Medicaid recipients are not entitled to notice and a hearing
when the State implements a mass change that affects . . . all
recipients.” The court rejected Plaintiffs’ Medicaid claims by
adopting the reasoning of its order denying Plaintiffs’ motion
for a TRO. Finally, the balance of hardships and the public
interest favored DSHS because the challenged reductions “do
not involve medical care.” The court conceded that “a few of
the plaintiffs” might “ultimately require institutionalization as
a result of the State’s reduction in services.” However, the
court found “the possible threat of institutionalization for a
few personal care service beneficiaries” outweighed by “the
State’s interest in balancing the competing needs of a host of
different state-sponsored social service programs that cur-
rently provide aid to a diverse group of medically and finan-
cially disadvantaged state residents.”
Plaintiffs appealed.
II. Standard of Review
We review the denial of a preliminary injunction for abuse
of discretion. Alliance for the Wild Rockies, 632 F.3d at 1131.
M. R. v. DREYFUS 6993
A district court abuses its discretion if it bases its decision “on
an erroneous legal standard or clearly erroneous findings of
fact.” Id. (quoting Lands Council v. McNair, 537 F.3d 981,
986 (9th Cir. 2008) (en banc)). We review a district court’s
legal conclusions de novo and its factual findings for clear
error. Id. (quoting Lands Council, 537 F.3d at 986-87). In
doing so, “we first look to whether the trial court identified
and applied the correct legal rule to the relief requested. Sec-
ond, we look to whether the trial court’s resolution . . .
resulted from a factual finding that was illogical, implausible,
or without support in inferences that may be drawn from the
facts in the record.” United States v. Hinkson, 585 F.3d 1247,
1263 (9th Cir. 2009) (en banc).
To obtain a preliminary injunction, a plaintiff “must estab-
lish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter, 555 U.S. at 20. A
preliminary injunction is proper if there is a likelihood of
irreparable injury to plaintiff; there are serious questions
going to the merits; the balance of hardships tips sharply in
favor of the plaintiff; and the injunction is in the public inter-
est. Alliance for the Wild Rockies, 632 F.3d at 1131-32.
III. Discussion
For the reasons that follow, we conclude that the district
court abused its discretion in denying the motion for a prelim-
inary injunction under the standard articulated in Alliance for
the Wild Rockies. We reach only Plaintiffs’ claims under the
Americans with Disabilities Act (“ADA”) and the Rehabilita-
tion Act.
A. Irreparable Injury
The 12 named Plaintiffs remaining in this litigation submit-
ted substantial evidence that the emergency regulation threat-
6994 M. R. v. DREYFUS
ens them with a serious risk of institutionalization.1 DSHS
contested this evidence as to some named Plaintiffs, but as to
others it offered either unsubstantiated and conclusory
responses or no responses at all. The district court rejected
Plaintiffs’ showing by relying on three general rationales. It
wrote that Plaintiffs “fail to show a threat of harm because
they (1) ascribe the threat of institutionalization to [their]
deteriorating medical conditions, unrelated to the provision of
personal care services hours; (2) demonstrate ineffective man-
agement of currently allocated personal care services hours;
or (3) identify non-personal care services as the cause of their
predicted institutionalization.” We conclude that the district
court did not sufficiently consider individualized evidence
that the named Plaintiffs were likely to suffer irreparable
injury. We describe three Plaintiffs whose situations illustrate
the inadequacy of DSHS’s responses, as well as the inade-
quacy of the general rationales, to counteract Plaintiffs’ show-
ing of the likelihood of irreparable injury.
1. M.R.
Lead plaintiff M.R., a 37-year-old woman, suffers from
severe mental retardation, daily grand and petite mal seizures,
scoliosis, cerebral palsy, hypothyroidism, and mood disorder.
M.R. lives with her mother, a registered nurse, who provides
personal care services. M.R.’s mother assists her with almost
all basic activities of daily life, including eating, toilet care,
bathing, dressing, medication management, and moving from
place to place. She prepares all of M.R.’s meals and feeds
M.R. through a tube when she refuses to eat. M.R.’s feeding
tube “requires extensive maintenance because the tube was
inserted too low and has a tendency to ooze and become
infected, and because [M.R.] has a tendency to grab and pull
1
Two of the original 14 named Plaintiffs no longer allege that they face
a risk of institutionalization. Plaintiff M.J.B. has received an ETR increas-
ing her authorized hours, and Plaintiff H.C. has died, for reasons unrelated
to the hours reduction.
M. R. v. DREYFUS 6995
on it.” M.R. is incontinent, wears adult diapers, and cannot
use the toilet or clean herself without assistance. “Frequent-
ly,” M.R. “has accidents” and “[a]s a result of incontinence,
. . . must bathe at least twice a day to remove urine and some-
times feces.” M.R. likes to choose her own clothing, but needs
her mother’s assistance to dress and undress herself. Because
of her scoliosis and cerebral palsy, M.R. “requires assistance
for walking, . . . is unsteady on her feet, . . . has poor balance
and unequal leg length, and her knees buckle.” M.R.’s mother
administers her numerous prescription medications through
her feeding tube several times a day.
M.R. participates in a Medicaid waiver program adminis-
tered by DSHS’s Division of Developmental Disabilities.
That is, M.R. is eligible for full-time institutional care, see 42
U.S.C. § 1396n(c)(1), WASH. ADMIN. CODE § 388-845-0005,
but M.R.’s mother has chosen to care for her at home “be-
cause her extensive personal care and medical needs are best
served at home . . . . M.R. loves the independence she is
afforded by living at home to set her own schedule, do puz-
zles, color or trace letters, and spend time with [her mother]
playing with beads or sorting coins.” M.R.’s CARE assess-
ment assigned her to group D Medium-High, a designation
that entitled her to 236 hours of in-home personal care ser-
vices per month. As is true of many family providers of per-
sonal care services, M.R.’s mother provides more than 236
hours of care per month; the additional hours go uncompen-
sated. The emergency regulation reduced M.R.’s authorized
hours of compensated time to 215 per month, a decrease of
8.9 percent.
Before the challenged regulation took effect, a DSHS
assessment of M.R. concluded that her household was in “cri-
sis mode” and at “serious risk of failure.” The emergency reg-
ulation, M.R.’s mother declared, “will push us, in our already
vulnerable situation, over the edge. . . . I will have to find a
job outside of the house and cut back the time spent caring for
M.R. . . . Already, I am stretched thin and am living on the
6996 M. R. v. DREYFUS
margin. . . . I cannot provide more care for no pay when
already there are insufficient funds to keep our household
afloat.” M.R.’s mother declared, “[i]f M.R.’s hours are
reduced from their present levels, I will have no other option
but to take another job, which will require moving M.R. into
an institutional facility. I cannot afford to continue giving ser-
vices at the rate that I have[.] I have to get an outside job, and
I know of no other individual, Adult Family Home or Per-
sonal Care Provider who can take care of M.R. due to her
medical and behavioral issues.” If M.R.’s mother is forced to
take a paying job outside the home, M.R. will lose more than
just 21 hours of care per month. She will lose the 21 compen-
sated hours, but she will also lose the uncompensated hours
that her mother was previously able to provide because she
was not employed outside the home.
Because M.R. has difficulty communicating, is “disruptive
and aggressive,” and “makes unwanted physical contact with
others . . . by trying to hug them or assault them,” she will
likely suffer in an institutional setting; indeed, she has previ-
ously been expelled from two Adult Day Health facilities.
Institutional placement will exacerbate M.R.’s already severe
mental and physical disabilities. Dr. William Gardner, an
expert in habilitative mental health treatment, declared that
“[w]hen individuals with . . . developmental disabilities . . .
would be able to live successfully in the community, but are
institutionalized because of insufficient home and community
based support, that is likely to result in frustration, despair,
hopelessness, and the severe deterioration of their mental and
often physical health.”
In response to M.R.’s factual allegations, DSHS introduced
a declaration from Geri-Lyn McNeill, a DSHS program man-
ager. McNeill has never met M.R. McNeill declared that she
“spoke to [M.R.’s] case manager[;] he does not believe that
the decrease in hours would significantly increase the risk of
injury, health deterioration or institutionalization for M.R.”
M. R. v. DREYFUS 6997
The district court found that M.R. had made an insufficient
showing of irreparable injury for three reasons, none of them
specific to M.R. First, the court determined that M.R.’s medi-
cal condition, like that of eight other named Plaintiffs (S.J.,
A.B., An.B., M.B., J.B., J.H., D.W., and C.B.), had “deterio-
rated since [her] last CARE assessment.” Consequently, the
court was “unable to determine whether the alleged threat of
institutionalization [M.R.] face[s] is the result of the State’s
reduction in personal care service hours or the deterioration in
[her] medical condition[ ].”
This finding misapprehends the law of causation in the con-
text of an irreparable injury inquiry. M.R. did indeed provide
evidence that her condition had deteriorated since her July
2010 CARE assessment. She suffered infections and injured
her head, back, and chin during grand mal seizures. M.R.’s
feeding tube fell out, leaving her with an open wound and
causing dehydration. Her replacement feeding tube makes it
painful for M.R. to eat and drink, so her mother must give her
food and water in smaller, more frequently administered,
quantities. M.R.’s mobility has also worsened, making it more
difficult for her mother to help her use the toilet and clean
herself. M.R.’s decline in health has necessitated more trips
to hospitals and physicians for care, and these trips consume
more time because M.R. cannot move as easily as she once
could.
[1] M.R.’s mother’s filed two declarations. Her first decla-
ration, filed before any of the incidents of deterioration just
discussed occurred, established that the reduction in hours
would threaten M.R. with institutionalization even in her pre-
deterioration condition. Her second declaration, which
described M.R.’s deteriorating condition, showed that the risk
of institutionalization had grown, not that it had newly arisen.
A plaintiff who seeks preliminary injunctive relief must show
“that irreparable injury is likely in the absence of an injunc-
tion.” Winter, 555 U.S. at 22. She need not further show that
the action sought to be enjoined is the exclusive cause of the
6998 M. R. v. DREYFUS
injury. See, e.g., Harris v. Bd. of Supervisors, 366 F.3d 754,
766 (9th Cir. 2004). In Harris, we affirmed a preliminary
injunction barring Los Angeles County from closing one hos-
pital that served indigent patients and reducing the number of
beds at another. Id. at 766-67. We determined that the patients
had shown that reducing the available public health care facil-
ities would likely cause them irreparable harm that “includes
pain, infection, amputation, medical complications, and death
due to delayed treatment.” Id. at 766. This was so “[a]lthough
delays exist in the stretched county health care system
already.” Id. We affirmed because “exacerbation of the cur-
rent overcrowded situation and additional suffering [could] be
avoided” by enjoining the hospital closures. Id.Likewise, in Brown v. Plata, 131 S. Ct. 1910, 1936-37
(2011), the Supreme Court affirmed an injunction ordering a
reduction in California’s prison population even though the
constitutional violations that prompted the injunction — sys-
temwide deficiencies in the provision of medical and mental
health care — “were caused by factors in addition to over-
crowding and . . . reducing crowding in the prisons would not
entirely cure the violations.” Id. at 1936. Applying the restric-
tive standard set forth in the Prison Litigation Reform Act —
legislation designed to “curb[ ] the equitable discretion of dis-
trict courts,” Miller v. French, 530 U.S. 327, 339 (2000) —
the Court concluded that overcrowding was a “primary cause”
of the constitutional violations. 131 S. Ct. at 1923, 1936
(quoting 18 U.S.C. § 3626(a)(3)(E)(I)). The court reached this
conclusion notwithstanding its acknowledgment that “[i]n
addition to overcrowding the failure of California’s prisons to
provide adequate medical and mental health care may be
ascribed to chronic and worsening budget shortfalls, a lack of
political will in favor of reform, inadequate facilities, and sys-
temic administrative failures.” Id. at 1936.
[2] Like many Washington beneficiaries of in home per-
sonal care services, M.R. suffers from numerous mental and
physical disabilities, some of them degenerative. Her medical
M. R. v. DREYFUS 6999
condition will worsen over time, and as her health declines
she will face an increased risk of institutionalization. That risk
is not exclusively attributable to the challenged regulation
reducing the number of compensated hours of assistance, but
the challenged regulation and resulting reduction in hours will
exacerbate that risk. The regulation therefore inflicts cogniza-
ble irreparable injury for purposes of a preliminary injunction.
See Harris, 366 F.3d at 766.
Second, in the alternative, the district court found that M.R.
had not shown a likelihood of irreparable injury because there
was “evidence controverting the possibility of any harm.” The
sole basis in the record for the court’s finding was McNeill’s
declaration, which relied on the conclusory opinion of a
DSHS case manager who “does not believe that the decrease
in hours would significantly increase the risk of injury, health
deterioration, or institutionalization for M.R.” McNeill’s dec-
laration contains neither the detail nor the substantiation nec-
essary to rebut M.R.’s detailed factual showing. See United
States v. Navarro, 979 F.2d 786, 789 (9th Cir. 1992).
Third, the district court concluded that M.R., like four other
named Plaintiffs (T.M., M.B., A.B., and A.R.), had not made
a showing of cognizable harm because she “argue[s] that
[she] face[s] a threat of institutionalization because the budget
reduction will reduce available services for supervision, exer-
cise, and medication management.” The court reasoned, “per-
sonal care services do not include supervision, exercise, or
medication management.” DSHS concedes that the court
erred as a matter of law by excluding medication management
from personal care services. See WASH. ADMIN. CODE § 388-
106-0010. Further, the court’s conclusion does not suffi-
ciently take into account M.R.’s evidence. M.R.’s “personal
care services” do include supervision, and without such super-
vision, she faces the threat of institutionalization. M.R.’s
mother declared that she “needs constant supervision” in
order to perform activities of daily living and instrumental
activities of daily living that constitute covered personal care
7000 M. R. v. DREYFUS
services. For example, if left unsupervised, M.R. “could wake
up, try to get out of bed, and fall with no ability to get up.”
Compare WASH. ADMIN. CODE § 388-106-0010 (covered
activities of daily living include “bed mobility” and “locomo-
tion in room and immediate living environment”). In addition,
M.R. “could have bowel and bladder accidents and be unable
to get clean, resulting in skin breakdowns and hospitaliza-
tion.” Compare WASH. ADMIN. CODE § 388-106-0010 (covered
activities of daily living include “toilet use” and “personal
hygiene”). M.R. could “pull out the feeding tube” and there-
fore “wouldn’t get adequate nutrition or medications on
schedule.” Compare WASH. ADMIN. CODE § 388-106-0010
(covered activities of daily living include “eating” and “medi-
cation management”).
2. C.B.
Plaintiff C.B., a 55-year-old woman, suffers from spinal
stenosis, congestive heart failure, emphysema, hepatitis B and
C, chronic bacterial infections, neuropathy in both hands and
feet, high blood pressure, depression, and bipolar disorder.
C.B. requires assistance with a range of tasks, including cook-
ing, transporting herself to and from appointments with physi-
cians, bathing and dressing herself, and cleaning her home.
C.B. participates in Washington’s COPES Medicaid waiver
program. The emergency regulation reduced her authorized
in-home personal services care hours from 133 to 115 per
month, a 13.5 percent decrease. As a result, C.B. stated, her
caregiver Tia Davis “will be forced to change her work sched-
ule and cut back the time spent on taking me to and from doc-
tor’s appointments and household chores such as cooking and
helping me bathe.” C.B.’s health will likely suffer because
absent Davis’s assistance she will have difficulty transporting
herself to doctor’s appointments; will bathe herself and attend
to her personal hygiene less capably; will not clean her home,
which will exacerbate the symptoms of her bacterial infec-
tions; and will feed herself by preparing only microwaveable
hot meals, with adverse consequences for her high blood pres-
M. R. v. DREYFUS 7001
sure and obesity. If these predictable results occur, C.B. “will
face severe deterioration in [her] condition and [will] have to
seek emergency room care and admission to a nursing home
from an even weaker point.”
DSHS did not respond to C.B.’s evidence. The district
court, relying on a single sentence in a declaration in which
C.B. stated that her “health has deteriorated,” rejected C.B.’s
showing of irreparable injury on the same ground that it
rejected the showings made by M.R. and seven other named
Plaintiffs. That is, the court stated that it was “unable to deter-
mine whether the alleged threat of institutionalization these
particular plaintiffs face is the result of the State’s reduction
in personal care service hours or the deterioration in their
medical conditions.”
[3] The court did not sufficiently analyze C.B.’s individu-
alized evidence and the impact of the emergency regulation
on her specific clinical situation. C.B. established that because
of the hours reduction, Davis will spend less time with her.
Consequently, Davis will cook fewer meals for C.B., so that
C.B. will “eat microwaveable instant foods that are generally
high in fat and sodium and detrimental to my pre-diabetes,
high blood pressure, and obesity.” Davis “will likely have to
spend less time taking C.B. to her doctor’s appointments,”
resulting in compromised care because C.B. “[v]ery rarely . . .
has energy to use the paratransit services alone, as she finds
it much more cumbersome and more difficult for her to get
around without the one-on-one assistance I provide.” Neces-
sarily, C.B. will bathe and clean her home less often because
she can do neither by herself. When C.B. is left alone, her
apartment falls into “disarray — pet fur everywhere, dirty
dishes in the sink, pet food scattered across the kitchen floor
. . . . [T]he inevitable clutter around her apartment also
increases her risk of tripping and falling.”
[4] The reduction in hours places C.B. at risk of institu-
tionalization. Dr. Mitchell LaPlante, an expert in the demog-
7002 M. R. v. DREYFUS
raphy and epidemiology of disability, declared that “[h]aving
inadequate levels of help compromises the safety, comfort,
and hygiene of individuals requiring help with ADLs and
IADLs, reducing their ability to live independently and
increasing their risk of institutionalization and death.” Dr.
LaPlante declared that “[u]nmet needs are especially serious
. . . when individuals go unbathed, remain in the same cloth-
ing for an extended period, are left in a bed or chair longer
than is acceptable, or are unassisted when they need to go to
the bathroom or eat. Because these activities involve satisfy-
ing primary biological functions [unmet] need cannot be toler-
ated for long.”
[5] The reduction in hours, like the risk of institutionaliza-
tion that the reduction produces, is directly attributable to the
emergency regulation, not to C.B.’s deteriorating health. And,
as explained above, C.B. was not required to show that the
emergency regulation was the exclusive cause of her injury.
She need only show that, by depriving her of access to care
that is critical to her health, the regulation exacerbates the risk
that she will be institutionalized.
3. K.S.
Plaintiff K.S., a 59-year-old woman, suffers from diabetes,
congenital glaucoma, macular degeneration, and clinical
depression. K.S. participates in Washington’s COPES waiver
program. She has undergone hip and knee replacements and
has very limited mobility. She uses a walker to move about
her home and is susceptible to falls. K.S. requires assistance
moving, bathing and dressing herself, cooking, managing her
medications, using the toilet, and cleaning herself after acci-
dents. If K.S. experiences incontinence while she is left alone,
she must sit on the toilet until a provider arrives to help her
undress, bathe, and launder her soiled clothes.
Prior to the challenged regulation, K.S. received 133 hours
of in-home personal care services per month. The regulation
M. R. v. DREYFUS 7003
reduced her authorized monthly hours to 115, a 13.5 percent
decrease. To accommodate the reduction in hours, K.S. dis-
continued weekend care and has “suffered negative physical
and mental health consequences.” For example, K.S. wears
compression stockings because she suffers from edema. K.S.
cannot remove her stockings without assistance, so when she
is unattended for long periods of time, the skin on her legs
becomes dry and itchy and develops sores, putting K.S. at risk
of infection. Because K.S. cannot lace her shoes without help,
she cannot leave her home on the weekends because it is too
dangerous for her to walk in slippers. Consequently, she feels
“trapped” in her home and “shut off from the world.” K.S.
declared that “[i]t is difficult to get all of my cleaning, shop-
ping, food preparation, bathing and hygiene needs done” dur-
ing the hours authorized. Consequently, K.S. is “worried that
I would be unable to remain in my home . . . and I very much
want to avoid going to an adult group home. Staying in my
home gives me a feeling of independence and I believe my
mental health condition would deteriorate in an adult day
home quickly. Even though I would be able to get more con-
tinuous hours of care at a nursing home, the lack of privacy
and the lack of independence that I would experience there
would be very difficult for me.”
[6] In response, DSHS introduced a declaration from
McNeill, who stated that it was “unclear” why K.S. did not
discuss her concerns about going unattended on the weekends
with her case manager. Had she done so, McNeill declared,
“[a] Care Plan could have been developed with a daily sched-
ule or a schedule with a shorter gap between care. . . . Recipi-
ents and providers often believe that more hours are the only
solution to problems, but good care planning and effective
case management can often create effective alternatives.
DSHS believes that could occur here.” The district court
relied on McNeill’s declaration to find that K.S.’s “apparent
failure to contact [her] case manager[ ] about [her] concerns
is particularly noteworthy. Rather than giving the State an
opportunity to correct any gaps in care, [K.S.] appear[s] to
7004 M. R. v. DREYFUS
assume that the reduction will result in harm and that the only
alternative to reinstatement of [her] hours is institutionaliza-
tion.”
[7] McNeill’s declaration ignores the fact that K.S. did
contact her case manager to discuss the impact of the hours
reduction on her care plan. In a declaration filed before
McNeill’s, K.S. stated that after learning of the hours reduc-
tion, she “informed my case manager . . . that in order to cope
with the announced cuts to my home care hours, I had made
the decision to let go of my weekend provider.” K.S.’s case
manager “did not suggest any alternative scheduling arrange-
ments for me to avoid going without weekend care during or
any time since that phone call.” The district court should not
have discounted K.S.’s showing of harm on the ground that
she should have revised her care plan with her case manager.
K.S. had attempted to do just that, but without success.
4. Summary
[8] The detailed evidence introduced to show the adverse
impact of the challenged regulation on M.R., C.B., and K.S.,
as well as the weak responses that DSHS offered to contest
that evidence, establish a sufficient likelihood of irreparable
injury. Each of the named Plaintiffs has made similar show-
ings of specific ways in which the hours reduction will injure
them, but the district court addressed these individualized
showings in a generalized fashion.
Our dissenting colleague, Judge Rawlinson, faults us for
relying on Plaintiffs’ declarations and not adequately defer-
ring to the district court’s determination regarding irreparable
injury. However, as discussed above, the district court relied
on an overly strict causation standard and an erroneous
assumption that personal care services did not include medi-
cation management, and it did not address the facts of the
individual Plaintiffs’ cases. Judge Rawlinson implies that the
district court discredited the Plaintiffs’ declarations because
M. R. v. DREYFUS 7005
of their “verbatim or nearly verbatim” recitations of harm.
The declarations’ similarities in structure and language are
offset by the many different, specific details, such as those
described above for M.R., C.B., and K.S., about each named
Plaintiff.
[9] We have several times held that beneficiaries of public
assistance “may demonstrate a risk of irreparable injury by
showing that enforcement of a proposed rule ‘may deny them
needed medical care.’ ” Indep. Living Ctr. of S. Cal., Inc. v.
Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (quoting
Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982)), cert.
granted on other issue, 131 S. Ct. 992 (2011); see also, e.g.,
Cal. Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098,
1113 (9th Cir. 2010), cert. granted on other issue, 131 S. Ct.
992 (2011); Rodde v. Bonta, 357 F.3d 988, 998-99 (9th Cir.
2004); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).
District courts in our circuit have reached the same conclu-
sion. See, e.g., Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980,
997 (N.D. Cal. 2010) (“[T]he reduction or elimination of pub-
lic medical benefits is sufficient to establish irreparable harm
to those likely to be affected by the program cuts.”); V.L. v.
Wagner, 669 F. Supp. 2d 1106, 1121-22 (N.D. Cal. 2009);
Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1176-77
(N.D. Cal. 2009).
[10] In its order, the district court emphasized that “[t]his
case does not involve . . . the provision of medical care
. . . ; rather this case relates solely to in-home personal care
services, which consist of non-medical assistance with activi-
ties of daily living.” The court reasoned that “[t]he standard
articulated in Beltran and Independent Living Ctr. . . . is not
applicable in this case because personal care services are not
included within Medicaid’s definition of ‘medical care.’ ” But
whether personal care services are included in Medicaid’s
definition is not the critical issue. The critical issue is whether
the services are necessary to maintain Plaintiffs’ mental or
7006 M. R. v. DREYFUS
physical health, and to avoid serious risk of institutionaliza-
tion.
[11] Under Washington law, DSHS may cover the costs to
beneficiaries only for services deemed “medically necessary.”
WASH. ADMIN. CODE § 388-501-0050(4)(d). All payments by
DSHS, both before and after the promulgation of the chal-
lenged regulation, are therefore payments for “medically nec-
essary” services. “Medically necessary” services are defined
as those that are “reasonably calculated to prevent, diagnose,
correct, cure, alleviate or prevent worsening of conditions in
the client that endanger life, or cause suffering or pain, or
result in an illness or infirmity, or threaten to cause or aggra-
vate a handicap, or cause physical deformity or malfunction.”
Id. § 388-501-0005. Plaintiffs have shown that the services
they will lose as a result of the challenged regulation —
which include assistance in feeding, cleaning, and medicating
themselves — relate intimately to their mental and physical
health. The loss of these services will exacerbate Plaintiffs’
already severe mental and physical difficulties. These predict-
able consequences will put Plaintiffs at serious risk of institu-
tionalization.2 We therefore conclude that Plaintiffs have
shown a likelihood of irreparable injury.
B. Serious Questions Going to the Merits
Plaintiffs argue that the challenged regulation violates the
antidiscrimination provisions of the ADA, 42 U.S.C. § 12132,
and the Rehabilitation Act, 29 U.S.C. § 794(a). We conclude
that Plaintiffs have at least presented serious questions going
to the merits of their ADA and Rehabilitation Act claims.
Because the applicable provisions of the ADA and the Reha-
bilitation Act are “co-extensive,” we discuss both claims
2
We do not reach Plaintiffs’ alternative argument that DSHS’s CARE
tool measures minimum individual need, such that any departure below
hours authorized by the CARE process will necessarily cause irreparable
injury.
M. R. v. DREYFUS 7007
together, focusing on the ADA. Sanchez v. Johnson, 416 F.3d
1051, 1062 & n.6 (9th Cir. 2005).
In enacting the ADA, Congress found that “historically,
society has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of
discrimination against individuals with disabilities continue to
be a serious and pervasive social problem.” 42 U.S.C.
§ 12101(a)(2). Moreover, Congress found that “discrimination
against individuals with disabilities persists in such critical
areas as . . . institutionalization,” id. § 12101(a)(3); and that
“individuals with disabilities continually encounter various
forms of discrimination, including outright intentional exclu-
sion, . . . failure to make modifications to existing facilities
and practices, . . . [and] . . . segregation,” id. § 12101(a)(5).
[12] In an attempt to remedy society’s history of discrimi-
nating against the disabled — discrimination that included
isolating, institutionalizing, and segregating them — the ADA
provides that “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activi-
ties of a public entity, or be subjected to discrimination by any
such entity.” Id. § 12132; accord 29 U.S.C. § 794(a). The
Department of Justice has promulgated regulations imple-
menting the ADA. See 42 U.S.C. § 12134(a). One of the regu-
lations is the so-called “integration mandate,” providing that
“[a] public entity shall administer services, programs, and
activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities.” 28 C.F.R.
§ 35.130(d). The “most integrated setting” is the one that “en-
ables individuals with disabilities to interact with nondisabled
persons to the fullest extent possible.” Id. Part 35, App. B
(2011). The regulation also provides that “[a] public entity
shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid dis-
crimination on the basis of disability, unless the public entity
can demonstrate that making the modifications would funda-
7008 M. R. v. DREYFUS
mentally alter the nature of the service, program, or activity.”
Id. § 35.130(b)(7).
In Olmstead, the Supreme Court addressed this statutory
and regulatory scheme and reached two conclusions. First, the
Court held that “[u]njustified isolation” of disabled persons
“is properly regarded as discrimination based on disability.”
527 U.S. at 597; see also Sanchez, 416 F.3d at 1063 (“In Olm-
stead, the Supreme Court interpreted . . . the ADA as forbid-
ding the arbitrary segregation of the disabled in large state
institutions.”). Second, however, the Court held that “[t]he
State’s responsibility, once it provides community-based
treatment to qualified persons with disabilities, is not bound-
less. . . . Sensibly construed, the fundamental-alteration com-
ponent of the reasonable-modifications regulation would
allow the State to show that, in the allocation of available
resources, immediate relief for the plaintiffs would be inequi-
table, given the responsibility the State has undertaken for the
care and treatment of a large and diverse population of per-
sons with . . . disabilities.” 527 U.S. at 603-04; see also Arc
of Wash. State, 427 F.3d at 619 (“[T]he Court recognized cer-
tain state justifications that would defeat an ADA-based chal-
lenge, for example ‘the States’ need to maintain a range of
facilities for the care and treatment of persons with diverse
. . . disabilities, and the States’ obligation to administer ser-
vices with an even hand.’ ” (quoting Olmstead, 527 U.S. at
597)). The Court held that under the ADA, “States are
required to provide community-based treatment for persons
with . . . disabilities when the State’s treatment professionals
determine that such placement is appropriate, the affected per-
sons do not oppose such treatment, and the placement can be
reasonably accommodated, taking into account the resources
available to the State and the needs of others with . . . disabili-
ties.” Olmstead, 527 U.S. at 607; accord id. at 587.
The district court rejected Plaintiffs’ ADA claim on two
grounds. The court concluded that to state a violation of the
ADA’s integration mandate, Plaintiffs were required to show
M. R. v. DREYFUS 7009
“that the State’s action leaves them no choice but to submit
to institutional care to obtain services for which they are oth-
erwise qualified.” In the alternative, the court concluded that
requiring Washington to maintain in-home personal care ser-
vices hours at pre-regulation levels “would likely constitute a
fundamental alteration of the state’s Medicaid program.” We
take the court’s two conclusions in turn.
[13] First, the district court erred in stating the legal stan-
dard under the integration mandate of the ADA. An ADA
plaintiff need not show that institutionalization is “inevitable”
or that she has “no choice” but to submit to institutional care
in order to state a violation of the integration mandate. Rather,
a plaintiff need only show that the challenged state action
creates a serious risk of institutionalization. The United States
Department of Justice (“DOJ”), the agency that promulgated
the regulation containing the integration mandate, 28 C.F.R.
§ 35.130(d), filed a statement of interest in the district court
in which it argued in favor of a preliminary injunction. In its
filing, DOJ wrote that “[t]he integration mandate prohibits
public entities from pursuing policies that place individuals at
risk of unnecessary institutionalization.” “[I]mminent risk of
institutionalization is not required.” Rather, “[t]he elimination
of services that have enabled Plaintiffs to remain in the com-
munity violates the ADA, regardless of whether it causes
them to enter an institution immediately, or whether it causes
them to decline in health over time and eventually enter an
institution in order to seek necessary care.”
[14] We afford DOJ’s view considerable respect. Olms-
tead, 527 U.S. at 597-98 (“Because the Department is the
agency directed by Congress to issue regulations implement-
ing Title II [of the ADA], its views warrant respect.”). We
also defer to an agency’s reasonable interpretation of its own
statutorily authorized regulation. Barrientos v. 1801-1825
Morton LLC, 583 F.3d 1197, 1214 (9th Cir. 2009) (citing Fed.
Express Corp. v. Holowecki, 552 U.S. 389, 395, 397 (2008)).
An agency’s interpretation of its own regulation is “control-
7010 M. R. v. DREYFUS
ling unless plainly erroneous or inconsistent with the regula-
tion.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal
quotation marks omitted); Barboza v. Cal. Ass’n of Prof’l
Firefighters, 650 F.3d 1073, 1079 (9th Cir. 2011) (“[U]nless
an alternative reading is compelled by the regulation’s plain
language or by other indications of [the agency’s] intent at the
time of the regulation’s promulgation, deference is required.”
(internal quotation marks and citation omitted)).
The district court discounted DOJ’s interpretation of the
integration mandate as “a self-serving agency interpretation
taken solely in the context of ongoing litigation.” In Auer, the
Supreme Court rejected the argument that an agency position
taken in an amicus brief was unworthy of deference:
[T]hat the Secretary’s interpretation comes to us in
the form of a legal brief . . . does not, in the circum-
stances of this case, make it unworthy of deference.
The Secretary’s position is in no sense a post hoc
rationalization advanced by an agency seeking to
defend past agency action against attack. There is
simply no reason to suspect that the interpretation
does not reflect the agency’s fair and considered
judgment on the matter in question.
519 U.S. at 462 (internal quotation marks and citation omit-
ted); accord Holowecki, 552 U.S. at 397 (deferring to agen-
cy’s interpretation of a regulation in an amicus brief);
Barrientos, 583 F.3d at 1214 (same). The circumstances in
this case are similar to those in Auer. DOJ is not a party and
is not “seeking to defend past agency action against attack.”
Its “statement of interest” in the district court under 28 U.S.C.
§ 517 is comparable to an amicus brief because of its interest
in ensuring a proper interpretation and application of the inte-
gration mandate. Further, we note that DOJ’s interpretation of
the integration mandate in this case is consistent with its inter-
pretation in another case before this court. The district court,
and our dissenting colleague, overlook the Supreme Court’s
M. R. v. DREYFUS 7011
direction about how to treat agency interpretations in such
instances.
DOJ’s interpretation is not only reasonable; it also better
effectuates the purpose of the ADA “to provide clear, strong,
consistent, enforceable standards addressing discrimination
against individuals with disabilities.” 42 U.S.C.
§ 12101(b)(2). Institutionalization sometimes proves irrevers-
ible. Dr. Gardner, Plaintiffs’ expert on habilitative mental
health care, declared that “[i]nstitutionalization . . . creates an
unnecessary clinical risk that the individual will become so
habituated to, and so reliant upon, the programmatic and treat-
ment structures that are found in an inpatient setting that his
or her ability to function in less structured, less restrictive,
environments may become severely compromised.” In recog-
nition of this clinical reality, the cases accord with DOJ’s
interpretation. See, e.g., V.L., 669 F. Supp. 2d at 1119(“[P]laintiffs who currently reside in community settings may
assert ADA integration claims to challenge state actions that
give rise to a risk of unnecessary institutionalization.”);
Brantley, 656 F. Supp. 2d at 1170-71 (“[T]he risk of institu-
tionalization is sufficient to demonstrate a violation of [the
ADA].”); see also, e.g., Fisher v. Okla. Health Care Auth,
335 F.3d 1175, 1182 (10th Cir. 2003) (“Olmstead does not
imply that disabled persons who, by reason of a change in
state policy, stand imperiled with segregation, may not bring
a challenge to that state policy under the ADA’s integration
regulation without first submitting to institutionalization.”).
The district court’s second ground for rejecting Plaintiffs’
ADA claim was that requiring DSHS to maintain pre-
regulation levels of personal care services hours would likely
constitute a fundamental alteration of the state’s Medicaid
plan. We have not previously decided whether a state may
assert a fundamental alteration defense where, as here, the
state opposes an injunction that would preserve a preexisting
program that complies with the ADA. The text of the regula-
tion suggests that the defense is available only to excuse pro-
7012 M. R. v. DREYFUS
spective modifications to programs. See 28 C.F.R.
§ 35.130(b)(7) (“A public entity shall make reasonable modi-
fications in policies, practices, or procedures . . . unless the
public entity can demonstrate that making the modifications
would fundamentally alter the nature of the service, program,
or activity.”). Here, Plaintiffs argue that they are seeking to
preserve the status quo and prevent modifications to the
state’s preexisting program. The Tenth Circuit rejected a fun-
damental alteration defense in similar circumstances, observ-
ing, “[n]or is it clear why the preservation of a program as it
has existed for years and as approved by the federal govern-
ment would fundamentally alter the nature of the program.”
Fisher, 335 F.3d at 1183 (internal quotation marks omitted).
However, we need not decide whether the fundamental alter-
ation defense applies in these circumstances because, even if
it does, Plaintiffs have at least raised a serious question on the
merits about the validity of the defense on the facts.
[15] When evaluating a fundamental alteration defense, a
court must consider “not only the cost of providing
community-based care to the litigants, but also the range of
services the State provides others with mental disabilities, and
the State’s obligation to mete out those services equitably.”
Olmstead, 527 U.S. at 597. That is, the ADA requires home
or community-based placement of disabled persons only if
“the placement can be reasonably accommodated, taking into
account the resources available to the State and the needs of
others with . . . disabilities.” Id. at 607; see also 28 C.F.R.
§ 35.130(b)(7); Sanchez, 416 F.3d at 1067-68; Arc of Wash.
State, 427 F.3d at 618-19. But budgetary concerns do not
alone sustain a fundamental alteration defense. See Fisher,
335 F.3d at 1181 (“If every alteration in a program or service
that required the outlay of funds were tantamount to a funda-
mental alteration, the ADA’s integration mandate would be
hollow indeed.”); see also, e.g., Townsend, 328 F.3d at 520(“[E]ven if extension of community-based long term care ser-
vices to the medically needy were to generate greater
expenses for the state’s Medicaid program, it is unclear
M. R. v. DREYFUS 7013
whether these extra costs would, in fact, compel cutbacks in
services to other Medicaid recipients.”); Pa. Prot. & Advo-
cacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3d
Cir. 2005); Radaszewski v. Maram, 383 F.3d 599, 614 (7th
Cir. 2004); Frederick L., 364 F.3d at 495-96; Cota, 688 F.
Supp. 2d at 995. DSHS must show how “fund-shifting . . .
would disadvantage other segments of the . . . disabled popu-
lation.” Frederick L., 364 F.3d at 497; see Townsend, 328
F.3d at 520.
[16] At this point in the litigation, it is highly speculative
that preliminary injunctive relief for Plaintiffs will compro-
mise care for the rest of Washington’s disabled community to
such an extent that Washington’s Medicaid program would be
fundamentally altered. Dreyfus, DSHS’s director, filed a dec-
laration in the district court stating that if an injunction were
granted the agency “would need to eliminate the Optional
State Plan Service of Medicaid Personal Care and put a limit
on the number of recipients . . . served under the Long Term
Care [42 U.S.C. § 1396n(c)] waivers including COPES and
New Freedom.” It is difficult to assess Dreyfus’s dire predic-
tions and to determine, even if they are borne out, whether
they would constitute a fundamental alteration. Washington’s
legislature has mandated that the state Medicaid plan include
the provision of personal care services for the categorically
needy, and DSHS has touted COPES as the centerpiece of the
legislatively mandated commitment to deinstitutionalization.
WASH. REV. CODE § 74.09.520(2). In its briefs, DSHS did not
identify specific programs that would necessarily be cut if all
or part of the challenged regulation were preliminarily
enjoined, nor was counsel able to identify such programs at
oral argument. Indeed, DSHS counsel was unable to say with
certainty whether the cuts would necessarily come from the
Medicaid program, or whether cuts could be made to some
other portion of Washington’s budget if Plaintiffs were to pre-
vail in this litigation. See Townsend, 328 F.3d at 520 (to make
out fundamental alteration defense, state must show that the
“provision of community-based services to medically needy
7014 M. R. v. DREYFUS
disabled Washingtonians might fundamentally alter its Medic-
aid programs” (emphasis added)). The state must make a
more particularized showing of harm to others in the disabled
community in order to eliminate serious questions on the mer-
its concerning the validity of the fundamental alteration
defense. See Frederick L., 364 F.3d at 497; Townsend, 328
F.3d at 520.
C. Balance of Hardships
[17] We conclude that the balance of hardships tips sharply
in favor of Plaintiffs. As discussed above, the record in this
case establishes that the named Plaintiffs suffer severe hard-
ship, made still more severe by the challenged regulation,
resulting in a serious risk of institutionalization in violation of
the ADA and the Rehabilitation Act. Set against Plaintiffs’
hardship are diffuse and nonspecific hardships asserted by the
State. It is clear that money spent on behalf of the Plaintiffs
is money that will not be spent on other programs. But it is
not clear from the evidence in the record or from the argu-
ments made to us precisely what those other programs are and
the extent to which they would be cut. See, e.g., Harris, 366
F.3d at 766 (“The County suggests that the injunction forces
it to cut other important programs . . . . But whether any or
all of those programs will actually be impacted by the court’s
injunction is much more speculative than the probable injury
the chronically ill plaintiffs face absent preliminary injunctive
relief.”).
Nor is it clear that the state, on balance, will save money
by cutting the services at issue in this case, given the cost to
the state of institutionalizing Plaintiffs. We have several times
held that the balance of hardships favors beneficiaries of pub-
lic assistance who may be forced to do without needed medi-
cal services over a state concerned with conserving scarce
resources. See, e.g., Indep. Living Ctr., 572 F.3d at 659(“State budgetary considerations do not therefore, in social
welfare cases, constitute a critical public interest that would
M. R. v. DREYFUS 7015
be injured by the grant of preliminary relief.”). The balance
of hardships favors plaintiffs challenging cuts to state pro-
grams “in light of evidence in the record that suggests that
[the action sought to be enjoined] may have an adverse, rather
than beneficial, effect on the State’s budget, such that it would
actually save the State money if it maintained [the status
quo].” Dominguez v. Schwarzenegger, 596 F.3d 1087, 1098
(9th Cir. 2010); see also Rodde, 357 F.3d at 999-1000. Plain-
tiffs have advanced such evidence in this case by showing that
if program beneficiaries currently treated in their homes tran-
sition to more costly institutional care, the state will not real-
ize its anticipated cost savings.
D. Public Interest
The Washington legislature has expressly found that “the
public interest would best be served by a broad array of long-
term care services that support persons who need such ser-
vices at home or in the community whenever practicable and
that promote individual autonomy, dignity, and choice.”
WASH. REV. CODE § 74.39A.005. “[T]here is a robust public
interest in safeguarding access to health care for those eligible
for Medicaid, whom Congress has recognized as ‘the most
needy in the country.’ ” Indep. Living Ctr., 572 F.3d at 659(quoting Schweiker v. Hogan, 457 U.S. 569, 590 (1982)); see
also Cal. Pharmacists Ass’n, 596 F.3d at 1114-15 (rejecting
the argument that the public interest required that the legisla-
ture be able to “exercise its considered judgment in a manner
that serves the best interests of both [Medicaid] recipients and
the State as a whole,” despite the state’s argument that “in-
junctions against payment reductions have forced the State to
eliminate many optional [Medicaid] services”).
[18] We recognize that a preliminary injunction is an “ex-
traordinary remedy never awarded as of right.” Winter, 555
U.S. at 24. But given the likelihood of irreparable harm to
Plaintiffs, the serious questions on the merits raised by their
suit, the balance of hardships that tips sharply in their favor,
7016 M. R. v. DREYFUS
and the statutorily declared policy of the state in favor of the
services they seek to preserve, we conclude that the public
interest is served by preserving the status quo by means of a
preliminary injunction. See Rodde, 357 F.3d at 999 n.14 (that
Plaintiffs seek “to preserve, rather than alter, the status quo
while they litigate the merits of this action also strengthens
their position”).
E. Scope of the Injunction
[19] Our conclusion with respect to irreparable injury and
risk of institutionalization is limited to the named Plaintiffs.
We have stated that “[s]ystem-wide [injunctive] relief is
required if the injury is the result of violations of a statute . . .
that are attributable to policies or practices pervading the
whole system (even though injuring a relatively small number
of plaintiffs), or if the unlawful policies or practices affect
such a broad range of plaintiffs that an overhaul of the system
is the only feasible manner in which to address the class’s
injury.” Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir.
2001). The challenged regulation likely establishes such a
policy for a system of care. But Armstrong involved a certi-
fied class. Subject to exceptions not applicable here,
“[w]ithout a properly certified class, a court cannot grant
relief on a class-wide basis.” Zepeda v. INS, 753 F.2d 719,
728 n.1 (9th Cir. 1984). At the time we reviewed this appeal,
the district court had yet to rule on Plaintiffs’ motion for class
certification. We conclude that the regulation must be prelimi-
narily enjoined as to the named Plaintiffs. We leave it to the
district court to determine on remand whether, in light of this
opinion, broader preliminary injunctive relief is appropriate.
Conclusion
The named Plaintiffs have shown a likelihood of irrepara-
ble injury because the regulation puts them at serious risk of
institutionalization. For the same reason, they have raised a
serious question going to the merits of their ADA/
M. R. v. DREYFUS 7017
Rehabilitation Act claim. They have also raised a serious
question on the merits about the validity of the fundamental
alteration defense. The balance of hardships tips sharply in
Plaintiffs’ favor, and the public interest favors a preliminary
injunction. We therefore reverse and remand for further pro-
ceedings consistent with this opinion.
REVERSED AND REMANDED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion in this case.
It is important to note at the outset that this appeal challenges
the denial of a preliminary injunction. Our review is for an
abuse of the considerable discretion afforded the district court
in making the determination whether a preliminary injunction
should be entered. See Alliance for the Wild Rockies v. Cot-
trell, 632 F.3d 1127, 1131 (9th Cir. 2011). So long as the dis-
trict court “got the law right,” we “will not reverse the district
court.” Id. (citation omitted). Our scope of review is necessar-
ily limited. See Sports Form, Inc. v. UPI, Inc., 686 F.2d 750,
752 (9th Cir. 1982).
In a thoughtful and comprehensive 50-page order, the dis-
trict court denied the request for a preliminary injunction. As
the majority acknowledges, any factual findings made by the
district court must be accepted unless clearly erroneous. See
Alliance for the Wild Rockies, 632 F.3d at 1131. The district
court prefaced its decision by noting its “careful” review” of
the 164+ documents filed by the parties and the 5+ hours of
oral argument during two hearings. See District Court Order,
p. 2 n.4. The district court also recognized that a preliminary
injunction is an “extraordinary interlocutory remedy” that
should be the exception rather than the rule. See id. at p. 3
(quoting Winter v. Natural Res. Defense Counsel Inc., 129 S.
Ct. 365, 376 (2008)).
7018 M. R. v. DREYFUS
The district court found that not one of the named plaintiffs
satisfied the criteria to be placed in the classification reflect-
ing the highest acuity of need. See id. at p. 10. Keeping in
mind that the services at issue are personal care services, and
not medical care, the district court determined that the plain-
tiffs failed to establish a likelihood of irreparable harm. See
id. at p. 12 & n.13. The district court relied largely on its
determination that the threatened injury (institutionalization)
was not imminent. See id. at p. 13 n.14 (quoting City of Los
Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). The district
court emphasized that this factor was particularly important
where a party seeks to enjoin official action on the part of a
State. See id. (noting federalism concern).
The district court underscored the fact that Washington’s
assessment mechanism did not reflect the individual need of
each program participant. Rather, the assessment reflected the
relative acuity of the need for personal care services. See id.
at p. 14. The assessment essentially determined what share of
the available resources a program participant should be allo-
cated. See id. at p. 15. Because the assessment does not trans-
late into a number of absolute hours of required personal
services, the district court concluded that plaintiffs could not
persuasively argue that a decrease in the number of personal
care services hours resulted in the required showing that insti-
tutionalization was imminent. Indeed, the district court found
to the contrary. See id. at p. 17 n.20 (referring to evidence in
the record that the 2009 reduction in personal care services
hours “did not result in any negative consequences to personal
care service beneficiaries . . . .”) (emphasis in the original).
Specifically, program participants were not institutionalized
due to the decrease in personal care service hours. See id.; see
also id. at p. 18 (explaining that since the 2011 reductions
went into effect, “over 99% of the sampled records reflected
no complaint concerning the adequacy of allotted hours”).
I recognize that my colleagues in the majority rely on the
declarations from the plaintiffs to support their reversal of the
M. R. v. DREYFUS 7019
district court’s decision. However, without a showing of clear
error on the part of the district court judge, it is not enough
to simply credit one party’s view of the evidence. Actually,
Supreme Court precedent dictates exactly the opposite
approach. Where there are two views of the evidence pre-
sented, and the trier of fact selects one view over the other,
no clear error can be shown. See Anderson v. City of Besse-
mer City, 470 U.S. 564, 574 (1985) (“Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”) (citations omit-
ted).
In this case, the plaintiffs presented declarations averring
that institutionalization was likely if the personal service
hours were decreased. The State defendants presented decla-
rations refuting those submitted by the plaintiffs. At this stage
of the proceedings and considering our limited standard of
review, I am not persuaded that the district court clearly erred
in crediting the State’s view of the facts.1
Ultimately, the district court determined that the plaintiffs’
declarations failed to make an adequate showing of a likely
threat of harm because the declarations
(1) ascribe the threat of institutionalization to plain-
tiffs’ deteriorating medical conditions, unrelated to
the provision of personal care service hours; (2)
demonstrate ineffective management of currently
allocated personal care service hours; or (3) identify
non-personal care services as the cause of their pre-
dicted institutionalization.
Id. at p. 24.2
1
It is of some interest that the district court noticed that the plaintiffs’
declarations of harm were “repeated verbatim or nearly verbatim through-
out the various declarations . . .” Id. at p. 24 n.30.
2
The district court also noted the use of qualifying language in the dec-
larations that rendered them “speculative at best . . .” Id. at p. 25 n.31.
7020 M. R. v. DREYFUS
The district court described nine plaintiffs whose medical
conditions worsened without regard to the decrease in per-
sonal care service hours. See id. at pp. 24-25. The district
court also credited evidence from the State defendants regard-
ing “[i]nefficient [u]se of [c]urrently [a]llocated [p]ersonal
[c]are [s]ervice [h]ours[,]” Id. at pp. 26-27, and the inclusion
of non-personal care services in the asserted harm arguments,
see id. at pp. 27-28.
Considering the district court’s determination regarding the
likelihood of irreparable harm with the required deference to
its factual findings, I am not persuaded that we should reverse
the district court’s determination.
In my view, a similar conclusion is in order upon review of
the district court’s resolution of plaintiffs’ claim predicated on
the provisions of the Americans With Disabilities Act (ADA).
The thrust of plaintiffs’ argument is that the mandated
decrease in personal care services hours violates the ADA
requirement that disabled individuals be integrated into the
community for services rather than be institutionalized to
receive services. According to plaintiffs, the decrease in per-
sonal care services hours will result in institutionalization of
individuals who could remain in the community if the per-
sonal care services hours were maintained at their previous
levels. The majority agrees with the plaintiffs’ contention,
describing this issue as a serious question going to the merits
of plaintiffs’ ADA claims.
The Supreme Court addressed the ADA’s integration provi-
sion in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
In that case, mental patients were retained in institutional
facilities after medical providers concluded that treatment in
community-based facilities was appropriate. See id. at 593.
The Court held that the ADA required placement in a
community-based facility if “the placement can be reasonably
accommodated, taking into account the resources available to
the State and the needs of others with . . . disabilities . . . .”
M. R. v. DREYFUS 7021
Id. at 587. The Court fully acknowledged that the State had
multiple and diverse obligations to its disabled citizens and a
concomitant obligation to administer all its services “with an
even hand . . . .” Id. at 597. The Court explained that the
State’s obligation to provide a variety of services evenly for
all program participants mandated that more leeway be
afforded the States in administering those programs. See id. at
605.
Given the leeway that the Supreme Court has instructed
must be afforded the States in administering social services
programs, the question of whether plaintiffs have raised a
serious issue going to the merits is not as cut-and-dried as the
majority portrays.
The majority urges “considerable respect” to the Depart-
ment of Justice’s bald statement that “the elimination of ser-
vices that have enabled Plaintiffs to remain in the community
violates the ADA, regardless of whether it causes them to
enter an institution immediately, or whether it causes them to
decline in health over time and eventually enter an institution
in order to seek necessary care.” Majority Opinion, pp.
21140-41 (quoting the statement of interest filed by the DOJ).
However, the district court was not persuaded that the DOJ’s
bald statement was entitled to deference. See District Court
Order, p. 39 n.42.
The Supreme Court in Olmstead stopped short of requiring
that deference be given to the DOJ’s view. Rather, the
Supreme Court stated:
We need not inquire whether the degree of deference
described in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc. . . . is in order: [i]t
is enough to observe that the well-reasoned views of
the agencies implementing a statute constitute a
body of experience and informed judgment to which
courts and litigants may properly resort for guidance.
7022 M. R. v. DREYFUS
Olmstead, 527 U.S. at 598 (citation, alteration and internal
quotation marks omitted) (emphasis added).
The fact that the district court elected not to defer to the
DOJ’s bald, unreasoned statement did not run afoul of the
Supreme Court’s permissive view of the deference owed to
the DOJ’s interpretation of the integration regulation.
Because I conclude that the plaintiffs have not raised seri-
ous questions going to the merits of their claim, and because
the district court committed no clear error in finding a lack of
irreparable harm, I would affirm the district court’s denial of
injunctive relief on those bases. However, I also note that
Olmstead contains language supporting the district court’s
determination that granting the relief requested by Plaintiffs
would likely constitute a fundamental alteration of the State’s
plan. See Olmstead, 527 U.S. at 597 (“In evaluating a State’s
fundamental-alteration defense, the District Court must con-
sider, in view of the resources available to the State, not only
the cost of providing community-based care to the litigants,
but also the range of services the State provides others with
. . . disabilities, and the State’s obligation to mete out those
services equitably.”). This same rationale supports the district
court’s determination that the public interest favors permitting
the State to equitably balance the needs of all persons who are
served by the Medicaid program rather than requiring the
State to accommodate the needs of a discrete subset of that
population at the expense of others in need.
Keeping in mind our limited scope of review and the defer-
ence owed to the district court’s factual findings, I do not
agree that the district court abused its discretion when it
denied the requested preliminary injunction. Therefore, I
respectfully dissent from the majority opinion.