Harrison v. Young

48 F.4th 331

Barbara HARRISON, by her next friend and guardian, Marguerite Harrison, Plaintiff—Appellee,

v.Cecile Erwin YOUNG, in her official capacity as the Executive Commissioner, Texas Health and Human Services Commission, Defendant—Appellant.

No. 19-10874

United States Court of Appeals, Fifth Circuit.

FILED August 31, 2022

Mark S. Whitburn, Whitburn & Pevsner, P.L.L.C., Arlington, TX, Garth Anthony Corbett, Disability Rights Texas, Central Texas Regional Office, Austin, TX, Sean Ashly Jackson, Disability Rights Texas, Houston, TX, for Plaintiff-Appellee.

Lanora Christine Pettit, Office of the Attorney General of Texas, Office of the Solicitor General, Austin, TX, Rola Daaboul, Assistant Attorney General, Akerman, L.L.P., Austin, TX, for Defendant-Appellant.

Before King, Jones, and Costa, Circuit Judges.

Gregg Costa, Circuit Judge:

This dispute is about whether Texas must provide around-the-clock nursing services to a disabled individual even though the expense of doing so exceeds the cost cap in the state's Medicaid program. Plaintiff contends that the Americans with Disabilities Act and Rehabilitation Act require this service because the alternative of institutionalization would amount to discrimination. The district court issued a preliminary injunction requiring Texas to provide the nursing services. Although we conclude that the district court has jurisdiction to hear this suit under Ex parte Young , we vacate the injunction and remand for the district court to make additional findings.

I

Barbara Harrison suffers from cerebral palsy, epilepsy, obstructive sleep apnea, severe dysphagia, gastrostomy tube dependence, scoliosis, and substantial intellectual disabilities. Because of those conditions, Harrison needs intensive medical care. The Texas Health and Human Service Commission (HHSC)—of which defendant Cecile Erin Young is now Commissioner¹ —pays for Harrison to receive that care from Berry Family Services, a community-based care center near Dallas.

Until Harrison's health deteriorated in early 2018, her care was funded through a Medicaid program that states can adopt to provide home-and community-based care for persons with disabilities who would otherwise require institutionalization. 42 U.S.C. § 1396n(c)(1). This is called a "waiver" program because approval of such a plan by the federal Centers for Medicare and Medicaid waives a number of Medicaid requirements, such as the requirements that a plan be available throughout the state and that a single standard be used for financial eligibility. Id. § 1396n(c)(3) (referring to 42 U.S.C. §§ 1396a(a)(1), (a)(10)(C)(i)(III) ). As with other Medicaid programs, the source of these funds includes a mix of federal and state dollars.

Such waiver plans are aimed at promoting "cost-effectiveness and efficiency." Id. § 1396n(b). To ensure those goals, a state must certify that the average per-person cost of providing home and community care through the waiver program does not exceed the average cost of providing that care in an institution. Id. § 1396n(c)(2)(D). Texas's waiver program thus provides home-and community-based care only if the annual cost of care is less than approximately $170,000. 40 TEX. ADMIN. Code § 9.155(a)(3) (2016).

To cover expenses that would surpass the limit in the waiver plan, HHSC may use general state revenues. If HHSC chooses not to use those funds for a patient whose cost of home care exceeds the cap, institutionalization is the only remaining option for government-funded care. Indeed, one of the prerequisites for using general revenue for home care is a determination that "there is no other available living arrangement in which the person's health and safety can be protected at that time, as evidenced by: (i) an assessment conducted by clinical staff of the commission; and (ii) supporting documentation, including the person's medical and service records." GENERAL APPROPRIATIONS ACT , 85th Leg., R.S., art. II, § 23(b).

In April 2018, Harrison's worsening health required additional care that exceeded the cap in the waiver program. Her primary care physician concluded that she faces a substantial risk of death if a nurse does not attend to her constantly. Harrison proposed a plan that included around-the-clock nursing care at an annual cost of approximately $330,000—well in excess of the $170,000 cap for the community-based service program. To make up the difference, Harrison requested that the HHSC use general revenue funds. The agency denied Harrison's request, concluding that her needs could be met in a state facility based on the opinion of a doctor who reviewed Harrison's medical records and visited her. But HHSC approved Harrison for eight hours of daily nurse care in the community care center where she has been residing since 2017.

Harrison's guardian sought administrative review.² The Medicaid hearing officer decided that Harrison was ineligible to receive the home-and community-based service program funds because the cost of her proposed plan exceeded the $170,000 cap. The parties, though, had not disputed that cost issue. Harrison had asked the officer to review HHSC's refusal to dip into the general revenues. The agency argued that there is no administrative review of that discretionary decision. The hearing officer was silent on the disputed issue, not addressing HHSC's refusal to use general revenue.

Harrison's guardian then brought this suit, alleging that the HHSC Commissioner discriminated against Harrison because of her disability, violating the Americans with Disabilities Act and the Rehabilitation Act. The complaint also asserts a section 1983 claim alleging that depriving Harrison of the general revenue funds without a hearing violates due process. The plaintiff asked the district court to enter a preliminary injunction ordering the Commissioner to maintain 24/7 nurse care until a Medicaid fair-hearing officer resolves whether HHSC should use general revenue funds to pay for her community care and whether her care complies with the ADA.

The district court issued the requested injunction. The Commissioner appeals.

II

We first address whether the district court had jurisdiction. The Eleventh Amendment generally bars private individuals from suing states in federal court.³ Bd. of Trs. of the Univ. of Ala. v. Garrett , 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). There is, however, an important exception when a plaintiff seeks injunctive relief to enjoin ongoing violations of federal law. Va. Off. for Prot. & Advoc. v. Stewart , 563 U.S. 247, 254–56, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011) ; Ex parte Young , 209 U.S. 123, 156, 28 S.Ct. 441, 52 L.Ed. 714 (1908). A state official violating federal law can be sued for prospective relief. Verizon Md., Inc. v. Pub. Serv. Comm'n of Md. , 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).

Does Ex parte Young allow this suit being brought against another state official named Young? The general dividing line is between impermissible suits seeking remedies for past violations of federal law and permissible suits seeking prospective relief to prevent ongoing violations. A request for injunctive relief does not automatically put a suit on the Ex parte Young side of the line. The key is not the type of relief sought but whether the remedy is preventing ongoing violations of federal law as opposed to past ones. Edelman v. Jordan , 415 U.S. 651, 664, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (contrasting the permissible prospective relief granted in Young with the impermissible retrospective relief sought in Edelman ). A state employee fired because of her disability could not obtain an award of "equitable restitution" requiring the state official to pay her for lost wages. Id. at 668, 94 S.Ct. 1347 (concluding that such a remedy is "in practical effect indistinguishable in many aspects from an award of damages against the State"); see also Garrett , 531 U.S. at 374, 121 S.Ct. 955 (holding that the Eleventh Amendment bars suits for damages under Title I of the ADA). But such an employee could sue the state seeking reinstatement. See Nelson v. Univ. of Tex. at Dallas , 535 F.3d 318, 322 (5th Cir. 2008) ("[R]einstatement [is] an acceptable form of prospective relief that may be sought through Ex parte Young ").

A prospective remedy like reinstatement will, of course, have some effect on the state treasury. The reinstated worker will have to be paid going forward. But that impact on the fisc does not take the suit outside Young 's ambit. Ex parte Young itself had an "effect on the States's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions." Edelman , 415 U.S. at 667, 94 S.Ct. 1347. Much bigger drains on state funds resulted from a number of Supreme Court cases, brought under Young , that required future payment of welfare benefits. Id. (citing Graham v. Richardson , 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) ; Goldberg v. Kelly , 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ); see also Milliken v. Bradley , 433 U.S. 267, 288–90, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (holding that the Eleventh Amendment did not bar an injunction to eliminate a segregated school system and share ongoing educational costs among defendants). Closer to home, we allowed a suit for injunctive relief against a previous HHSC Commissioner for allegedly denying access to the same Medicaid program at issue here. McCarthy ex rel. Travis v. Hawkins , 381 F.3d 407, 414 (5th Cir. 2004). These cases show that even when substantial sums are at stake, "an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young. " Edelman , 415 U.S. at 668, 94 S.Ct. 1347.

It follows that despite its potential impact on the Texas treasury, Harrison's suit is properly brought under Young because it seeks only...