M.R. v. Dreyfus

697 F.3d 706

2012 Daily Journal D.A.R. 8193

M.R.; S.J.; C.B.; D.W.; A.B.; M.B.; An.B.; J.B.; K.S.; T.M.; A.R.; M.J.B.; J.H.; H.C.; The Arc of Washington; Service Employees International Union Healthcare 775NW; Puget 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.

No. 11–35026.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2011.

Filed Dec. 16, 2011.

Amended June 18, 2012.

Stephen P. Berzon, Eve Hedy Cervantez, Stacey Leyton, Matthew J. Murray, Casey Austin Roberts, Altshuler 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.

Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, Senior District Judge, Presiding. D.C. No. 2:10–cv–02052–TSZ.

Before: STEPHEN REINHARDT, WILLIAM A. FLETCHER, and JOHNNIE B. RAWLINSON, Circuit Judges.

Order; Dissent to Order by Judge BEA; Opinion by Judge WILLIAM A. FLETCHER; Dissent to Opinion by Judge RAWLINSON.

ORDER

The opinion filed December 16, 2011, and published at 663 F.3d 1100, is amended as follows:

On page 1107, right column, lines 16–19: delete district court stayed proceedings, including disposition of the motion for class certification, pending our decision.>

On page 1121, left column, line 10: change to

On page 1121, left column, lines 17–19: change district court stayed its decision on class certification pending our ruling on appeal.> to we reviewed this appeal, the district court had yet to rule on Plaintiffs' motion for class certification.>

With these amendments, Judges Reinhardt and W. Fletcher have voted to deny Plaintiffs–Appellants' petition for rehearing and Defendants–Appellees' petition for rehearing and petition for rehearing en banc. Judge Rawlinson has voted to deny Plaintiff–Appellants' petition for rehearing and to grant Defendants–Appellees' petition for rehearing and petition for rehearing en banc.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

The petitions for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc may be filed. The mandate shall be issued forthwith.

BEA, Circuit Judge, joined by KOZINSKI, Chief Judge, and O'SCANNLAIN, TALLMAN, RAWLINSON, BYBEE, CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges, dissenting from denial of rehearing en banc:

This case is one of several recently brought requesting an injunction to block across-the-board decreases in expenditures for social services, enacted to eliminate a state's budgetary deficits. This, despite the fact that the rate reductions were validly adopted by agency regulation, and despite a state law requirement to prevent deficits in accounts. This, in the name of preventing “discrimination” against disabled persons under the Americans with Disabilities Act (“ADA”). Yet the panel majority sided with the plaintiffs and reversed the denial of a requested preliminary injunction.

Mind you, this case does not involve the provision of certain social services to one group of disabled—those in nursing homes—but not to another group—the disabled residing at their own homes. No, the panel majority's decision proceeds on the premise that the very reduction of social services currently provided the at-home disabled will risk their going to nursing homes, and that such reduction therefore“discriminates” against the at-home disabled, although not in favor of the disabled in nursing homes, or anyone else. But virtually everything the government does involves discrimination; it is in the nature of laws that they treat some people differently from others. This is not generally impermissible discrimination. Most government spending affects some groups more than others, but that doesn't mean that the result is impermissible discrimination.

The Supreme Court tells us that discrimination against the disabled may occur when certain social services a state actually provides are found only at nursing homes, and not provided at-home. Then the risk arises that the at-home disabled must enter nursing homes, rather than remain at-home. That is discrimination under the ADA. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999).

As noted, a divided panel of our court reversed the denial of a requested preliminary injunction to block the reductions here. This decision has the immediate effect of blocking the reductions of services for only the twelve named plaintiffs. But since the decision interprets and applies the ADA, it constitutes binding precedent in our nine Western states, with 20% of the nation's population.¹

We should have taken this case en banc. The panel majority's opinion fits the criteria of Federal Rule of Appellate Procedure 35(a) to a tee. The panel majority's opinion conflicts with precedent of the Supreme Court,² our court,³ and the Second Circuit.⁴ It is also a case of exceptional importance. It involves nothing less than the ability of a state to reduce the amount of its totally voluntary and optional Medicaid social welfare expenditures to balance its budget. No doubt that is why California joined Washington to urge us to review the case en banc. The issue is whether state budgetary decisions will be replaced by those of our colleagues, federal appellate judges, by use of a strained interpretation of the ADA.

I. Background

1. The program at issue. Washington has voluntarily elected to pay for “personal care services,” such as feeding, medication management, cooking, and other “physical or verbal assistance with activities of daily living” to certain disabled individuals under its state Medicaid program. SeeWash. Rev.Code § 74.39A.009(18). Approximately 45,000 disabled individuals receive personal care services. M.R. v. Dreyfus, 663 F.3d 1100, 1104 (9th Cir.2011). Some of the providers of personal care services are professionals, but others are family members who take care of their disabled relatives, at state expense. Washington's receipt of federal Medicaid money for other medical services in no way depends on its provision of these “personal care services.”

Washington devised an individualized assessment system called CARE to determinethe number of hours for each aid recipient. Id. Under CARE, “the individual [recipient] is scored on factors such as an individual's ability to perform daily activities and an individual's mental status,” and is then assigned to one of 17 groups. Id. (quoting Samantha A. v. Dep't of Soc. & Health Servs., 171 Wash.2d 623, 256 P.3d 1138, 1140 (2011) (en banc)). In 2010, before the proposed cuts, the most needy group received 416 hours of personal care assistance per month (nearly 14 hours a day, 30 days per month), and the least needy group received 26 hours per month. D. Ct. Order 6.

It is critical to understand, as the district court found and the panel majority's opinion does not dispute, that although CARE is an individualized assessment based on needs, it is not a guarantee of a minimum level of care needed to keep an individual at home or outpatient locations, rather than in a nursing home. D. Ct. Order 13. To the contrary, the program is a flexible one: coverage is dependent in part on how much money the state has.

Washington has used this flexibility to change its payout for personal care service hours a number of times in the last ten years. From 2004 to 2006, the number of hours paid for was on average approximately the same as now, after the most recent (late 2010) cuts.⁵ When the economy and the collections rose, from 2007–2009, the paid hours allotment increased. Following the recent recession, the state reduced base hours by an average of about 4%; but in early 2010, the state restored those 2009 cuts. Finally, because of the state's last budget crisis and an executive order of late 2010, the State made the approximately 10% average cuts, which brought the state back down to 2004 to 2006 levels of payments for hours provided. See generally D. Ct. Order 7. Though the number of hours provided has fluctuated, the record shows that Washington has shown consistent success in accomplishing the goal of the integration mandate: keeping the disabled in the community. In every year since 1992, the number of disabled persons in Washington who receive community-based care has increased, while the number of persons who receive nursing home care has decreased. See Exhibit Below.

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Two other features of the program must be kept in mind. The first is called the “Exception to the Rule,” or ETR, process. As the panel majority mentioned, a beneficiary who disputes that his allotted hours are adequate for his needs may request an increase in payment for hours of personal services. M.R., 663 F.3d at 1105. What the panel majority does not mention is that the state approved 89% of the ETR requests for additional hours in 2010. D. Ct. Order 7.

Second, Washington's program is extraordinarily generous. Even after the proposed cuts, Washington pays for up to 393 hours per month for an individual. Of course, even more paid hours are possible through the ETR process. D. Ct. Order 6, Table 1. By contrast, the maximum number of personal care hours authorized in California is 283 per month. Cal. Welf. & Inst.Code § 12303.4(b).

2. The proposed cuts. Washington, like many states, faced a severe budget crisis in 2010. On September 13, 2010, Governor...