M.R. v. Dreyfus ( 2011 )

FILED
FOR PUBLICATION DEC 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
M. R.; S. J.; C. B.; D. W.; A. B.; M. B.; No. 11-35026
AN. B.; J. B.; K. S.; T. M.; A. R.; M. J. B.;
J. H.; H. C.; THE ARC OF D.C. No. 2:10-cv-02052-TSZ
WASHINGTON; SERVICE
EMPLOYEES INTERNATIONAL
UNION HEALTHCARE 775NW; PUGET OPINION
SOUND ALLIANCE FOR RETIRED
AMERICANS,
Plaintiffs - Appellants,
v.
SUSAN DREYFUS, in her professional
capacity as Secretary of Washington State
Department of Social and Health Services;
WASHINGTON STATE DEPARTMENT
OF SOCIAL AND HEALTH SERVICES,
a Department of the State of Washington,
Defendants - Appellees.
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
Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.
Opinion by Judge William A. Fletcher
W. FLETCHER, Circuit Judge:
Plaintiffs, Washington State Medicaid beneficiaries with severe mental and
physical disabilities, appeal the district court’s denial of their motion for a
preliminary injunction. Plaintiffs seek to enjoin the operation of a regulation
promulgated by Washington’s Department of Social and Health Services
(“DSHS”) that reduces the amount of in-home “personal care services” available
under the state’s Medicaid plan. The United States Department of Justice has filed
a “statement of interest” in the district court supporting Plaintiffs’ request for an
injunction.
“Personal care services” provide assistance in performing basic life activities
— such as eating, bathing, dressing, moving from place to place, and using the
toilet — that Plaintiffs, because of their disabilities, cannot perform by themselves.
To comply with Governor Christine Gregoire’s executive order that directed an
across-the-board reduction in all state agency expenditures, DSHS promulgated a
regulation that cut the base hours of covered in-home personal care services by an
average of 10 percent per beneficiary per month.
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Plaintiffs argue principally that the regulation violates the antidiscrimination
provisions of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the
Rehabilitation Act, 29 U.S.C. § 794(a), because the reduction in hours will
substantially increase the risk that they will be institutionalized in order to receive
care adequate to maintain their mental and physical health. The district court
denied preliminary relief.
We reverse. We conclude that Plaintiffs have demonstrated a likelihood of
irreparable injury because they have shown that reduced access to personal care
services will place them at serious risk of institutionalization. We further conclude
that Plaintiffs have raised serious questions going to the merits of their
Rehabilitation Act/ADA claims, that the balance of hardships tips sharply in their
favor, and that a preliminary injunction will serve the public interest. See Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). We
therefore remand for entry of a preliminary injunction.
I. Background and Procedural History
A. Factual Background
Medicaid is a cooperative federal-state program under which the federal
government provides states with financial assistance to supply medical services to
low-income people. Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 617 (9th
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Cir. 2005). State participation is voluntary, but once a state chooses to participate,
the state must submit for federal approval a plan that complies with federal
statutory and regulatory requirements. Alexander v. Choate, 469 U.S. 287, 289 n.1
(1985); Townsend v. Quasim, 328 F.3d 511, 514 (9th Cir. 2003). A state plan must
cover the cost to eligible people of certain medical services, including inpatient and
outpatient hospital care; laboratory and X-ray services; nursing facility care; and
services provided by physicians, dentists, nurse-midwives, and pediatric or family
nurse practitioners. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17), (21);
42 C.F.R. §§ 440.210, 440.220. Within this federal framework, however, states
retain “substantial discretion to choose the proper mix of amount, scope, and
duration limitations on coverage.” Alexander, 469 U.S. at 303; 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 benefit at issue here. See 42
U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(24). “Personal care services” are:
services furnished to an individual who is not an inpatient or resident
of a hospital, nursing facility, intermediate care facility for the
mentally retarded, or institution for mental disease that are
(A) . . . authorized for the individual in accordance with a
service plan approved by the State,
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(B) provided by an individual who is qualified to provide
such services and who is not a member of the
individual’s family, and
(C) furnished in a home or other location.
Id. § 1396d(a)(24); see also 42 C.F.R. § 440.167(b) (clarifying that a family
member is “a legally responsible relative”); CTRS. FOR MEDICARE AND MEDICAID
SERVS., STATE MEDICAID MANUAL § 4480(C), at 4-495 (1999) (personal care
services “include a range of human assistance provided to persons with disabilities
and chronic conditions . . . which enables them to accomplish tasks that they would
normally do for themselves if they did not have a disability,” and “most often
relate[] to . . . eating, bathing, dressing, toileting, transferring, . . . maintaining
continence, . . . personal hygiene, light housework, laundry, meal preparation,
transportation, grocery shopping, using the telephone, medication management,
and money management”).
Washington has elected to cover the cost of personal care services, which the
state defines as “physical or verbal assistance with activities of daily living and
instrumental activities of daily living provided because of a person’s functional
disability.” WASH. REV. CODE § 74.39A.009(18). The state defines “activities of
daily living,” in turn, to include bathing, bed mobility, body care, dressing, eating,
locomotion inside and outside one’s room and immediate living environment,
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walking in one’s room and immediate living environment, medication
management, toilet use, transferring between surfaces, and personal hygiene.
WASH. ADMIN. CODE § 388-106-0010. The state defines “instrumental activities of
daily living” as including meal preparation, ordinary housework, essential
shopping, wood supply when wood is used as one’s sole source of heat, travel to
medical services, managing finances, and telephone use. Id.
Washington’s DSHS administers the state’s Medicaid programs. See 42
U.S.C. § 1396a(a)(5); WASH. REV. CODE § 74.09.530. DSHS covers the cost of
personal care services for approximately 45,000 people. Some 15,000 of those
beneficiaries are “categorically needy” participants in the state’s Medicaid plan.
The remaining 30,000 beneficiaries participate in one of Washington’s Medicaid
waiver programs, “under which the Secretary of Health and Human Services is
authorized to waive certain Medicaid requirements for innovative or experimental
state health care programs.” Townsend, 328 F.3d at 514. Consistent with
Congress’s preference for community rather than institutional care, “the waiver
program provides Medicaid reimbursement to States for the provision of
community-based services to individuals who would otherwise require institutional
care, upon a showing that the average annual cost of such services is not more than
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the annual cost of institutional services.” Olmstead v. L.C. ex rel. Zimring, 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. § 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 Residential 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
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Evaluation (“CARE”). See WASH. ADMIN. CODE § 388-106-0050 to -0145. The
Washington Supreme Court has described CARE as follows:
In the initial stage of a CARE evaluation, the individual is scored on
factors such as an individual’s ability to perform daily activities and
an individual’s mental status. The individual is then assigned to 1 of
17 classification groups, each group having a set number of base . . .
hours associated with it. Once these base hours are established, an
assessor individually 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 monthly hours associated with each classification group by regulation.
WASH. ADMIN. CODE § 388-106-0125. DSHS conducts 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 dissatisfied 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 client’s situation differs from the
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majority; . . . [i]t is in the interest 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 specifies 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 executive order
stating that because of “the national economic downturn” and “revenues [that]
have fallen short of projections,” the state’s general fund was in danger of running
a deficit. 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
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agencies, in an amount to be computed by the state’s Office of Financial
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_instru
ctions091610.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
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reductions in services made necessary for funding reasons should be accomplished
in a manner that assures that priority for maintaining services is given to persons
with the greatest need as determined by the assessment 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 percent. 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 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 nursing facility settings.”
On December 6, 2010, about three weeks before the reduction 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,”
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set forth the beneficiary’s current and revised monthly hours, and computed the
difference. The notice stated that “[t]his notification 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
revenue 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 questions 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 Washington 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
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services to below their level of need for budgetary reasons alone.” Plaintiffs
alleged that the regulation violated the Americans with Disabilities Act, 42 U.S.C.
§ 12132, the Rehabilitation Act, 29 U.S.C. § 794(a), due process, and various
statutory and regulatory Medicaid requirements. Plaintiffs sought a declaratory
judgment, as well as a temporary restraining order and preliminary 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
hearing 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 disposition 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 preliminary injunction off calendar,” making denial
of the TRO “tantamount for present purposes to the denial of a motion for a
preliminary injunction.” On the merits, the panel determined that a stay pending a
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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.”
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 individuals 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
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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
currently provide aid to a diverse group of medically and financially disadvantaged
state residents.”
Plaintiffs appealed. The district court stayed proceedings, including
disposition of the motion for class certification, pending our decision.
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. 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
15
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).
To obtain a preliminary injunction, a plaintiff “must establish 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 interest. 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 preliminary 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 Rehabilitation Act.
A. Irreparable Injury
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The 12 named Plaintiffs remaining in this litigation submitted substantial
evidence that the emergency regulation threatens 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 management 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 inadequacy of the general
rationales, to counteract Plaintiffs’ showing of the likelihood of irreparable injury.
1. M.R.
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 increasing her
authorized hours, and Plaintiff H.C. has died, for reasons unrelated to the hours
reduction.
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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 on it.” M.R. is incontinent, wears adult diapers, and
cannot use the toilet or clean herself without assistance. “Frequently,” M.R. “has
accidents” and “[a]s a result of incontinence, . . . must bathe at least twice a day to
remove urine and sometimes 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.
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M.R. participates in a Medicaid waiver program administered 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 “because 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
puzzles, color or trace letters, and spend time with [her mother] playing with beads
or sorting coins.” M.R.’s CARE assessment assigned her to group D Medium-
High, a designation that entitled her to 236 hours of in-home personal care services
per month. As is true of many family providers of personal care services, M.R.’s
mother provides more than 236 hours of care per month; the additional hours go
uncompensated. 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 “crisis mode” and at “serious risk of failure.”
The emergency regulation, 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 margin. . . . I cannot provide more care for no pay when
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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 services at the rate that I
have[.] I have to get an outside job, and I know of no other individual, Adult
Family Home or Personal 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 compensated 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
previously 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
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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 manager. 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.”
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 medical 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 “deteriorated 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 context 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
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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.
M.R.’s mother’s filed two declarations. Her first declaration, 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 injunction.” Winter, 555
U.S. at 22. She need not further show that the action sought to be enjoined is the
exclusive cause of the 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 hospital that served indigent patients and
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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 facilities 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 current 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 —
systemwide deficiencies in the provision of medical and mental health care —
“were caused by factors in addition to overcrowding and . . . reducing crowding in
the prisons would not entirely cure the violations.” Id. at 1936. Applying the
restrictive standard set forth in the Prison Litigation Reform Act — legislation
designed to “curb[] the equitable discretion of district 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
23
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 systemic administrative failures.” Id. at 1936.
Like many Washington beneficiaries of in home personal care services,
M.R. suffers from numerous mental and physical disabilities, some of them
degenerative. Her medical 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
cognizable 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 declaration contains neither the detail nor the substantiation necessary to
24
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, exercise, and medication
management.” The court reasoned, “personal 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 sufficiently take into account M.R.’s evidence. M.R.’s
“personal care services” do include supervision, and without such supervision, 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 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 “locomotion in room
and immediate living environment”). In addition, M.R. “could have bowel and
25
bladder accidents and be unable to get clean, resulting in skin breakdowns and
hospitalization.” 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 therefore “wouldn’t get adequate nutrition or
medications on schedule.” Compare WASH. ADMIN. CODE § 388-106-0010
(covered activities of daily living include “eating” and “medication 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 cooking,
transporting herself to and from appointments with physicians, 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 schedule and cut back the time spent on taking me to and from
doctor’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
26
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 infections; and will feed herself by
preparing only microwaveable hot meals, with adverse consequences for her high
blood pressure 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 determine 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.”
The court did not sufficiently analyze C.B.’s individualized 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
27
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.”
Necessarily, 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.”
The reduction in hours places C.B. at risk of institutionalization. Dr.
Mitchell LaPlante, an expert in the demography 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 clothing for an extended period, are
left in a bed or chair longer than is acceptable, or are unassisted when they need to
28
go to the bathroom or eat. Because these activities involve satisfying primary
biological functions [unmet] need cannot be tolerated for long.”
The reduction in hours, like the risk of institutionalization 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 accidents. 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.
29
Prior to the challenged regulation, K.S. received 133 hours of in-home
personal care services per month. The regulation reduced her authorized monthly
hours to 115, a 13.5 percent decrease. To accommodate the reduction in hours,
K.S. discontinued 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, shopping, food preparation, bathing and hygiene
needs done” during 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 continuous 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.”
30
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 schedule or a schedule with a
shorter gap between care. . . . Recipients 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 assume that the reduction will result in harm and
that the only alternative to reinstatement of [her] hours is institutionalization.”
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 reduction, 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 arrangements for
me to avoid going without weekend care during or any time since that phone call.”
31
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
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 showings 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 deferring 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 medication 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 of
their “verbatim or nearly verbatim” recitations of harm. The declarations’
similarities in structure and language are offset by the many different, specific
32
details, such as those described above for M.R., C.B., and K.S., about each named
Plaintiff.
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
conclusion. See, e.g., Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 997 (N.D. Cal.
2010) (“[T]he reduction or elimination of public 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).
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 activities of
33
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 physical health, and to avoid serious risk of
institutionalization.
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
challenged regulation, are therefore payments for “medically necessary” 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 aggravate 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
34
severe mental and physical difficulties. These predictable consequences will put
Plaintiffs at serious risk of institutionalization.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 Rehabilitation Act are “co-extensive,” we discuss
both claims 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
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.
35
“individuals with disabilities continually encounter various forms of
discrimination, including outright intentional exclusion, . . . failure to make
modifications to existing facilities and practices, . . . [and] . . . segregation,” id. §
12101(a)(5).
In an attempt to remedy society’s history of discriminating 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 activities 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 implementing
the ADA. See 42 U.S.C. § 12134(a). One of the regulations 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 “enables 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
36
necessary to avoid discrimination on the basis of disability, unless the public entity
can demonstrate that making the modifications would fundamentally 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 Olmstead, the
Supreme Court interpreted . . . the ADA as forbidding 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 boundless. . . . Sensibly construed, the
fundamental-alteration component 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 inequitable, given the responsibility the
State has undertaken for the care and treatment of a large and diverse population of
persons with . . . disabilities.” 527 U.S. at 603-04; see also Arc of Wash. State, 427
F.3d at 619 (“[T]he Court recognized certain state justifications that would defeat
an ADA-based challenge, for example ‘the States’ need to maintain a range of
facilities for the care and treatment of persons with diverse . . . disabilities, and the
37
States’ obligation to administer services 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 persons 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 . . . disabilities.” 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 “that the State’s action leaves them no choice but to submit
to institutional care to obtain services for which they are otherwise qualified.” In
the alternative, the court concluded that requiring Washington to maintain in-home
personal care services 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.
First, the district court erred in stating the legal standard 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
38
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 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.”
We afford DOJ’s view considerable respect. Olmstead, 527 U.S. at 597-98(“Because the Department is the agency directed by Congress to issue regulations
implementing 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 “controlling unless plainly erroneous or
39
inconsistent with the regulation.” 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 circumstances 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 omitted); accord Holowecki,
552 U.S. at 397 (deferring to agency’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
40
28 U.S.C. § 517 is comparable to an amicus brief because of its interest in ensuring
a proper interpretation and application of the integration mandate. Further, we note
that DOJ’s interpretation of the integration mandate in this case is consistent with
its interpretation in another case before this court. The district court, and our
dissenting colleague, overlook the Supreme Court’s 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 irreversible. 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 treatment
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 recognition 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.
412d at 1170-71 (“[T]he risk of institutionalization 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
regulation suggests that the defense is available only to excuse prospective
modifications to programs. See 28 C.F.R. § 35.130(b)(7) (“A public entity shall
make reasonable modifications 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 fundamental alteration defense
42
in similar circumstances, observing, “[n]or is it clear why the preservation of a
program as it has existed for years and as approved by the federal government
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 alteration 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.
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
fundamental alteration, the ADA’s integration mandate would be hollow indeed.”);
43
see also, e.g., Townsend, 328 F.3d at 520 (“[E]ven if extension of community-
based long term care services to the medically needy were to generate greater
expenses for the state’s Medicaid program, it is unclear whether these extra costs
would, in fact, compel cutbacks in services to other Medicaid recipients.”); Pa.
Prot. & Advocacy, 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 population.”
Frederick L., 364 F.3d at 497; see Townsend, 328 F.3d at 520.
At this point in the litigation, it is highly speculative that preliminary
injunctive relief for Plaintiffs will compromise 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 declaration 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 predictions and to determine, even if they are borne out, whether
they would constitute a fundamental alteration. Washington’s legislature has
44
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 prevail 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 disabled Washingtonians might fundamentally alter its Medicaid
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 merits 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
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
45
suffer severe hardship, 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 arguments 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 public assistance who may be forced to do without needed medical
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 be injured by
46
the grant of preliminary relief.”). The balance of hardships favors plaintiffs
challenging cuts to state programs “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. Plaintiffs have advanced
such evidence in this case by showing that if program beneficiaries currently
treated in their homes transition to more costly institutional care, the state will not
realize 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 services 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 legislature
47
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 “injunctions against payment reductions have forced the State to
eliminate many optional [Medicaid] services”).
We recognize that a preliminary injunction is an “extraordinary 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, 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
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
48
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 obviously establishes such a policy for a system of care. But Armstrong
involved a certified 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). The district court stayed its decision
on class certification pending our ruling on appeal. We conclude that the
regulation must be preliminarily 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 irreparable 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/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.
49
We therefore reverse and remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
50
COUNSEL LISTING
Stephen P. Berzon. Eve Hedy Cervantez, Stacey Leyton, Matthew John Murray,
Casey Austin Roberts
ALSHULER BERZON LLP, San Francisco, CA
Andrea Brenneke
MACDONALD HOAGUE & BAYLESS, Seattle, WA
for the Appellants
Edward J. Dee, William T. Stephens, William Bruce Work
OFFICE OF THE WASHINGTON ATTORNEY GENERAL, Olympia, WA
for the Appellees
51
FILED
M.R. v. Dreyfus, Case No. 11-35026 DEC 16 2011
Rawlinson, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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. Cottrell, 632 F.3d 1127, 1131 (9th
Cir. 2011). So long as the district court “got the law right,” we “will not reverse
the district court.” Id. (citation omitted). Our scope of review is necessarily
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 district 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
1
Counsel Inc., 129 S. Ct. 365, 376 (2008)).
The district court found that not one of the named plaintiffs satisfied the
criteria to be placed in the classification reflecting 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 plaintiffs 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 allocated. See id. at p. 15. Because the
assessment does not translate 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
2
required showing that institutionalization 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 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 presented, and the trier of fact selects one view over the other, no
clear error can be shown. See Anderson v. City of Bessemer 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
omitted).
In this case, the plaintiffs presented declarations averring that
3
institutionalization was likely if the personal service hours were decreased. The
State defendants presented declarations 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 plaintiffs’
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 predicted
institutionalization.
Id. at p. 24.2
The district court described nine plaintiffs whose medical conditions
worsened without regard to the decrease in personal care service hours. See id. at
1
It is of some interest that the district court noticed that the plaintiffs’
declarations of harm were “repeated verbatim or nearly verbatim throughout the
various declarations . . .” Id. at p. 24 n.30.
2
The district court also noted the use of qualifying language in the
declarations that rendered them “speculative at best . . .” Id. at p. 25 n.31.
4
pp. 24-25. The district court also credited evidence from the State defendants
regarding “[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 personal care services hours will result in institutionalization of
individuals who could remain in the community if the personal 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 provision in Olmstead
5
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 . . . .” 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 Department of Justice’s
bald statement that “the elimination of services 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
6
time and eventually enter an institution in order to seek necessary care.” Majority
Opinion, pp. 40-41 (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.
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 serious 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
7
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 consider, 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 deference 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.
8