TIMOTHY S. BLACK, District Judge.
This civil action is before the Court regarding the parties' cross motions for summary judgment (Docs. 50, 52) and their supporting memoranda (Docs. 53, 56, 57, 58, 60, 61).
Plaintiff Cynthia Carpenter-Barker brings this action on behalf of her daughter, Megan Carpenter. Megan is a woman in her early thirties who suffers from multiple disabling medical impairments. Her condition is medically complex, with her diagnoses including, among others: encephalopathy NOS; general convulsive with intractable epilepsy; autism; profound mental retardation; cognitive impairment; hypothyroidism NOS; generalized muscle weakness; profound sensorineural hearing loss (deafness); ataxia; and sub-cortical myoclonus. (Doc. 6-1, at 2). Megan has impaired mobility, selfinjurious behaviors, outbursts and aggression, and is unable to perform activities of daily living for herself. Id. Megan also suffers from seizures that require treatment with medication administered directly after a seizure (although the parties disagree on the frequency and severity of these seizures). Id.
Megan lives with her mother and receives in-home nursing care seven days per week. Megan is enrolled in the Individual Options ("I/O") home and community-based services waiver program through the Ohio Department of Medicaid ("ODM"), through which she receives homemaker/personal care services. (Doc. 1-2, at 2). The Butler County Board of Developmental Disabilities administers Megan's I/O waiver. Id. Megan is also enrolled in Medicaid's State Plan ("State Plan") and receives 128 hours per week of private duty nursing ("PDN") services through the State Plan. Id.
The central dispute in this case revolves around the number of PDN hours Megan is afforded by the State Plan. Defendants' motion provides a helpful, neutral factual background on the nature of PDN:
(Doc. 52, at 7-9).
Pursuant to the process outlined above, ODM has reviewed the PDN hours authorized for Megan annually for several years. For the last decade, Defendants have consistently attempted to reduce the number of PDN hours authorized for Megan after each evaluation, arguing that ODM's evaluations of Megan demonstrate that Megan's condition can be managed adequately with reduced PDN time. Plaintiff has consistently fought against any PDN reduction using the administrative appellate system authorized by statute. (See Doc. 50, 13-16). Although Megan had been authorized 168 hours of PDN per week in 2008, she has lived with 128 hours since 2010. (Id. at 13). Plaintiff has thwarted ODM's annual attempts to reduce Megan's PDN hours each year since then, either through winning her cases on appeal or through negotiated settlements. (See id. at 13-15).
In December 2014, despite having reached, only four months previously, a settlement agreement with Plaintiff to continue Megan's PDN at 128 hours per week, ODM again issued notice to Plaintiff that it proposed to reduce Megan's PDN hours from 128 hours per week to 56 hours per week. (Doc. 21, at 11). This notice spurred Plaintiff to file the present suit.
Plaintiff's amended complaint raised the following claims against Defendants:
(Id. at 14-19). On December 12, 2015, the parties filed a "joint stipulation regarding scope of Plaintiff's request for relief and Defendants' fundamental alteration affirmative defense" that purported to clarify the exact relief Plaintiff seeks through this civil action. (Doc. 36, at 31-34). That document identifies the following as Plaintiff's claims for relief:
(Id. at 32-33).
Plaintiff filed the complaint in this case on January 20, 2015. (Doc. 1). On January 26, 2015, Plaintiff filed a motion for preliminary injunction requesting that Defendants be enjoined from reducing Megan's PDN hours pending the outcome of the action. (Doc. 6). To the parties' credit, an agreement was reached wherein Defendants would not reduce Megan's PDN hours while this action was ongoing, and the Court accordingly entered an Order staying the motion for preliminary injunction. (Doc. 20).
Defendant then filed a motion for judgment on the pleadings on December 12, 2015. (Doc. 36). That motion argued that claim preclusion prevented Plaintiff from pursuing any of her claims, as the voluntary dismissal of her 2015 hearing in state court constituted a binding decision. (Id. at 6). This Court rejected that argument, but held that Plaintiff's due process claim was mooted, as the time period implicated in Defendants' 2014 notice that Megan's PDN hours would be reduced had expired. (Doc. 48, at 7-9). Accordingly, Plaintiff's only surviving claims are the closely related claims citing the "integration mandate" present in both the ADA and the Rehabilitation Act. (See Part III.A, infra).
This case has been active on the Court's docket for nearly three years, and as stated above, the time period implicated in ODM's late 2014 decision to reduce Megan's PDN hours has expired. Although the parties in this action agreed to maintain the status quo regarding Megan's PDN hours until this litigation had concluded, ODM's annual review process of Megan's PDN needs and Plaintiff's subsequent appeals of ODM's decisions has continued. Accordingly, ODM again recommended in late 2015 that Megan's weekly PDN hours be reduced from 128 to 56. Plaintiff contested that decision, and following a hearing on March 10, 2016, a state hearing examiner found that ODM's denial of Megan's request for 128 weekly PDN hours was "incorrect." (Doc. 51, at 26). The examiner's written decision found that ODM had not provided sufficient evidence that certified non-nurse aides or caregivers were prepared to monitor Megan for seizures and administer her medication in the event of a seizure. (Id. at 28). The Court is unaware of the status of any state hearings or ODM determinations since March 2016.
Both parties have filed motions for summary judgment on Plaintiff's two remaining claims. (Docs. 50, 52). Those motions are now ripe for review.
A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be construed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (1986).
Plaintiff's motion for summary judgment claims that "Defendants, as a public entity receiving federal funds, have discriminated against [Plaintiff], a qualified individual with a disability, in violation of federal law by unlawfully precluding her from services Defendants offer based on her disability." (Doc. 50, at 22). Specifically, Plaintiff claims that Defendants' efforts to reduce Plaintiff's PDN hours violate Title II of the ADA and Section 504 of the Rehabilitation Act.
Although two separate statutes are cited, they provide support for what is essentially one claim. Plaintiff claims that, by reducing Plaintiff's PDN hours below 128 hours per week, Defendants are taking action that will necessarily mandate Plaintiff's removal from her home and require her institutionalization. (Id. at 21).
Title II of the ADA regulations provide that public entities are to "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). A program or activity means "all the operations of" the entity of a state, "department, agency, or other instrumentality of a State or local government" distributing such assistance, as well as each "department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government." 29 U.S.C. § 794(b)(1) and (2). "The most integrated setting" is one that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." 28 C.F.R. § Pt. 35, App. B. Similarly, Section 504 of the Rehabilitation Act provides, "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . ." 29 U.S.C. § 794(a). Plaintiff's claim is essentially that, by taking action that will result in Megan's institutionalization, Defendants are discriminating against Megan on the basis of her disability and violating the abovequoted "integration mandates" found in the ADA and the Rehabilitation Act.
Plaintiff's claim is heavily reliant upon the Supreme Court's decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). In Olmstead, two mentally retarded plaintiffs who were voluntarily admitted to Georgia institutions sued when they remained institutionalized long after their treating medical professionals determined that they could be treated appropriately in a community-based setting. Id. at 594. The Court ultimately determined that
Id. at 607.
Plaintiff argues that Defendant's decision to reduce Megan's PDN hours will necessarily result in her institutionalization, and that her remaining at home under 128 hours per week of nursing care is reasonable. Defendants disagree with both of these assertions, arguing that, based on the independent review of the ODM, Megan's condition does not require 128 weekly hours of PDN. Defendants have for years maintained that Megan's conditions can be properly managed with reduced PDN time and that any on site treatment for Megan's seizures can be administered by trained homemaker/personal care aides provided through Megan's I/O waiver as opposed to nurses. (See Doc. 52-5).
Plaintiff cites several cases applying Olmstead for the proposition that "the risk of institutionalization can support a valid claim under the ADA's integration mandate." (See, e.g., Doc. 56, et passim (citing Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013); M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004); Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003); Townshead v. Quasim, 328 F.3d 511 (9th Cir. 2003)). However, each of these cases is distinguishable from the present case. The cases cited by Plaintiff all involve agency decisions to reduce or limit benefits to certain classes of individuals based on a categorical distinction, while the present case involves a decision to reduce benefits based on a highly detailed individual examination. In Pashby, 13 disabled plaintiffs sued after the North Carolina general assembly voted to impose stricter eligibility requirements across the board for in-home personal care services awarded through Medicaid. Pashby, 709 F.3d at 313. In M.R. v. Dreyfus, Washington state implemented an order that reduced the base monthly allotment of in-home care hours to all disabled care recipients for budgetary reasons. M.R. v. Dreyfus, 697 F.3d 706 at 723-24. In Radaszewski, the plaintiff challenged an Illinois Medicaid policy that awarded PDN to individuals under the age of 21 but imposed additional restrictions on individuals over the age of 21 that would have required Plaintiff to become institutionalized when he aged out of the more generous youth program. Radaszewski, 383 F.3d 599, 602-03. In Fisher, Plaintiffs challenged Oklahoma's decision to impose a blanket cap limiting covered prescription medications for individuals in the home and community-based services program to five per month. Fisher, 335 F.3d at 1177-78. In Townshead, Plaintiffs challenged the fact that Washington State's community based services Medicaid program gave differing levels of support otherwise similarly situated individuals based on their income level (distinguishing between the "medically needy" and the "categorically needy"). Townshead, 328 F.3d at 513-14.
In contrast to each of the cases cited above, the hundreds of pages of evidence submitted with the parties' dispositive motions clearly demonstrate that ODM's decision to reduce Megan's PDN hours was a decision based on careful analysis of Megan's specific case, and not premised on the type of disability Megan suffers or based on Megan's membership in any category or class. Prior to ODM's attempt to reduce Megan's PDN hours in 2014 that prompted this case, an ODM nurse reviewed a broad array of documents regarding Megan's care and needs, including Megan's plan of care, Megan's Individual Support Plan, Megan's Day Program Summary, the Butler County Board of Developmental Disabilities' Comprehensive Level of Care Assessment, the Butler County Board of Developmental Disabilities' Health Record Review, forms that purport to document Megan's seizure activity, and forms that purport to document medications administered to Megan. (See Doc. 52-1, at 5-6, 11-212). Also, two ODM nurses visited Megan in her home, and at least one ODM nurse assessed Megan using a PDN acuity tool and a PDN assessment tool, talked to Megan's only nurse, Gayle Windhorst, and talked to Plaintiff regarding Megan's condition. (See id.). ODM's determination that Megan should receive fewer weekly PDN hours affects no other disabled individual's care.
The only evidence submitted by Plaintiff that would suggest that ODM's determination regarding Megan's PDN hours was categorically based, rather than based on Megan's unique circumstances, is a quote from Dr. Mary Applegate, ODM's Medical Director, at the March 10, 2016 state hearing to review ODM's December 22, 2015 decision denying Plaintiff's PDN request. Dr. Applegate was questioned by Paul Disantis, Plaintiff's representative at the hearing, regarding her opinion of the plan of care established by Megan's treating physician:
(Doc. 51, at 111-12 (emphasis added)). Plaintiff argues that Dr. Applegate's statements demonstrate that ODM will only award significant PDN hours to patients with burns and patients on ventilators and that patients such as Megan who suffer from seizures and other neurological disorders would never be approved for PDN at the level Megan requires, regardless of the circumstances of any individual patient. (Doc. 50, at 21).
However, taken in context with Dr. Applegate's testimony at that hearing, and at previous hearings concerning Megan, it is clear beyond a dispute of material fact that Dr. Applegate did not claim that ODM policy was to bar access to any specific amount of PDN hours based upon the category of disability suffered by a claimant. Dr. Applegate's statement emphasized above is read by this Court to indicate that the only patients who need PDN are patients who require skilled nursing care on a continuous basis, and that burn victims and patients on ventilators are two examples of patients who, unlike Megan, need that level of care. This reading is reinforced by a Dr. Applegate's statements during an administrative hearing regarding Megan's allotted PDN hours held on January 27, 2015:
(Doc. 57-1, at 114-15 (emphasis added)). These additional comments from Dr. Applegate clearly demonstrate the non-exclusive nature of her later statement that patients on ventilators and patients with burns are examples of those who need PDN services.
Because ODM's determinations regarding Megan's need for PDN hours have been tailored to her particular circumstances based on analysis of her unique condition and medical history, Plaintiff's ADA and Rehabilitation Act claims must be dismissed. Plaintiff claims that "the ODM denied [Megan] round-the-clock PDN services because she doesn't have the `right kind' of disability" (Doc. 60, at 19), but evidence has not been provided that would allow a reasonable juror to conclude that ODM would never grant 128 hours of PDN per week to an individual with a disability similar to Megan's but whose individual circumstances demonstrated to ODM a greater need for PDN. In other words, ODM has not determined that individuals with seizures should not receive 128 weekly hours of PDN—it has merely determined that Megan should not. Therefore, even assuming that ODM's decision regarding the level of care required by Megan was incorrect, the antidiscrimination protections of the statutes cited by Plaintiff are inapplicable here.
Accordingly, Plaintiff's claims regarding the ADA and the Rehabilitation Act are dismissed.
A significant portion of both motions for summary judgment and their responsive memoranda is dedicated to arguments regarding the accuracy and validity of the process through which Defendant determined that Megan's PDN hours should be reduced. Plaintiff has raised the following arguments in opposition to ODM's determination regarding PDN hours:
In response, Defendant has raised the following arguments supporting its attempts to reduce Megan's PDN hours:
These arguments attacking and defending the merits of Defendant's decisions regarding PDN hours, which have been consistently made through the years during the appeals process provided for ODM determinations, have no bearing on the claims that remain viable in the case before this Court. As discussed in detail above, the only remaining claims from Plaintiff's complaint accuse Defendant of discrimination against Megan on the basis of her disability in violation of the "integration mandates" of the ADA and the Rehabilitation Act. (See supra Part III.A). The antidiscrimination protections of the ADA and the Rehabilitation Act are not appropriately used to attack a state's individualized assessment of a person's medical needs when there is a disagreement as to the validity of that determination. Plaintiff is more than familiar with the proper venue for disputing the validity of ODM's determinations regarding PDN hours, as she has successfully used that venue for years to prevent the reduction of Megan's care (and has continued to do so even while this case was pending). To the extent that Plaintiff's assertions regarding the flaws in ODM's determination regarding Megan's PDN hours are allegations of a lack of procedural due process, that claim, which per Plaintiff's earlier stipulation was limited only to the circumstances surrounding ODM's 2014 determination (see Doc. 36, at 31-34), was previously dismissed by this Court as moot. (See Doc. 38, at 7-9).
Finally, even were the Court able to order ODM to refrain from evaluating Megan's PDN hours in the future, any such order is now moot due to recent changes in Ohio law. Ohio's state prior-authorization rule, which previously granted ODM the authority to review any request for prior authorization of PDN services, has been amended to remove ODM's authority. See Ohio Admin. Code 5160-12-02.3 (eff. July 1, 2017). The Ohio Department of Developmental Disabilities is now responsible for reviewing such requests. Accordingly, any order binding ODM would have no impact on how future requests concerning Megan's PDN authorization will be handled. Plaintiff's request for injunctive relief is therefore moot.
The Court understands Plaintiff's motives in bringing this case to federal court. Despite Plaintiff's repeated victories over ODM through the administrative appellate process, ODM has continually attempted to reduce Megan's PDN hours year after year, forcing Plaintiff to renew the fight each time. Plaintiff's frustration is not without cause. However, the state by statute has the duty to evaluate Medicaid patients annually to determine what services are medically necessary for the state to provide. Plaintiff has not presented a case that would grant her the extraordinary relief she seeks—a permanent circumvention of this statutorily mandated process.
Accordingly, for the reasons outlined above: