Bryson v. NH HHS, et al. CV-99-558-M 03/26/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Bonnie Bryson and Claire Shepardson, on behalf of themselves and all others similarly situated. Plaintiffs Civil No. 99-558-M v. Class Action Opinion No.

Nicholas Vailas, in his capacity as Commissioner of the State of New Hampshire Department of Health and Human Services; and Dennis Powers, in his capacity as Director of the State of New Hampshire Division of Developmental Services, Defendants

O R D E R

The parties have renewed cross-motions for summary judgment

upon remand of this case from the court of appeals. See Bryson

v. Shumway,

(1st Cir. 2002) . Several interrelated

issues either remain, or were deferred, pending the appeal,

including, principally, whether the State of New Hampshire is

violating the rights of the plaintiff class by discriminating

against them based upon disability in the delivery of medical

services and programs. Plaintiffs are a class of persons suffering from acquired

brain disorders ("ABD") some of whom receive medical services for

that condition in institutional settings (nursing homes,

specialized rehabilitation facilities, etc.)1? but who wish to

receive services in home or community-based settings. The State

participates in a model waiver program under Medicaid, which

permits reimbursement (or, technically, use of federal funds to

reimburse) providers of home and community-based ABD services.

That program is limited in scope, however, and participation is

currently capped at approximately 115 people. Because all 115

slots are filled, the State maintains a waiting list. Plaintiffs

are all on that list.

The plaintiffs are eligible to receive home or community-

based ABD services under the model waiver program in every

respect except one - the lack of available slots. Medicaid

services must be furnished with reasonable promptness to all

eligible individuals - but with respect to the model waiver

program, a person is "eligible" for community-based ABD services

only if he or she is 1) on the waiting list and 2) a waiver

1 Those plaintiffs who are not institutionalized currently receive no ABD services at all.

2 program slot is available for them. See Bryson, 308 F.3d at 88

(citing Boulet v. Cellucci,

(D. Mass.

2000)) ("The cap on waiver services is simply a constraint on

eligibility."); see also Makin v. Hawaii,

(D. Haw. 1999) .

The court of appeals decided that plaintiffs have no legal

claim to community-based ABD services under the model waiver

program, because they are not "eligible," given the State's

right, under Medicaid law, to limit the model program's scope and

its own financial exposure (the state and federal governments

share the costs). That decision did not end this litigation,

however, because plaintiffs also have enforceable rights under

Title II of the Americans with Disabilities Act,

, and § 504 of the Rehabilitation Act of 1973,

(a). Both acts "entitle disabled persons to care in the

least restrictive possible environment." Bruggeman ex rel.

Bruggeman v. Blagojevich,

(7th Cir. 2003). As

a recipient of federal funds, and as an administrator of programs

and services for the mentally disabled, the State is obligated,

under federal law and independently of the Medicaid statute, to

3 "administer programs and activities in the most integrated

setting appropriate to the needs of gualified handicapped

persons,"

(citing

(d),

;

and

(d)).

In Olmstead v. L.C.,

(1999), the Supreme Court

determined that the unjustified isolation of persons with

disabilities in institutional settings is properly regarded as

discrimination based on disability. The court noted that

"institutional placement of persons who can handle and benefit

from community settings perpetuates unwarranted assumptions that

persons so isolated are incapable or unworthy of participating in

community life,"

(citations omitted) and "confinement

in an institution severely diminished the everyday life

activities of individuals, including family relations, social

contacts, work options, economic independence, educational

advancement, and cultural enrichment,"

(citation

omitted).

When, as is the case here, the State's treatment

professionals reasonably determine that home or community

4 placement is appropriate, and the affected person wishes such

treatment, the State must provide it, j_f the community-based

placement can be reasonably accommodated, taking into account the

"resources available" to the State and the needs of others

receiving state-supported disability services. In its summary

judgment brief, the State incorrectly perceives the issue of

accommodation as strictly related to the limited ABD waiver

program; in reality, the State's obligation to provide community-

based services, and the plaintiffs' right to such services,

extends beyond the particular reguirements or scope of the model

waiver program.

Plaintiffs are invoking independent rights under the ADA and

Rehabilitation Act, asserting that the State can easily provide a

reasonable accommodation and deliver community-based services to

everyone on the waiting list, either by choosing to enlarge the

scope of the ABD waiver program (with federal subsidies), or by

using available State resources exclusively, without suffering

even a modest adverse fiscal or administrative impact, and

without diminishing the services provided to other disabled

recipients. Predictably, the State counters that it is entitled

5 to limit the waiver program, and so, is not required to provide

community-based services beyond what it chooses to provide under

the waiver program - in short, that it cannot reasonably

accommodate plaintiffs without making a "fundamental alteration"

in the ABD waiver program. That position misperceives the

State's overriding integration obligations under the ADA and

Rehabilitation Act.

Under the ADA, the State is obligated to make reasonable

modifications in its program - presumably its overall mental

health services program - as necessary to avoid discrimination on

the basis of disability (i.e., unjustified institutionalization),

unless it can establish that making requested modifications would

fundamentally alter the nature of the service, programs or

activity.

(b)(7). Whether a requested

modification would involve a "fundamental alteration" turns on

several factors, including the cost of providing services in the

most appropriate integrated setting, the resources available to

the State; and the extent to which provision of the requested

community-based services would adversely affect the State's

6 ability to meet the needs of others with disabilities. See

Olmstead,

.

In Olmstead, the Supreme Court explained that a state could

demonstrate compliance with the "integration mandate" embodied in

and its implementing regulation,

, if it established that it had "a comprehensive,

effectively working plan for placing gualified persons with

mental disabilities in less restrictive settings, and a waiting

list that moved at a reasonable pace not controlled by the

State's endeavors to keep its institutions fully populated."

Olmstead, at

-06. So, the principal issues before

this court are whether affording plaintiffs the relief they seek

would amount to a fundamental alteration of the State's mental

health services program, and whether the State has a

comprehensive plan that is working effectively to place members

of the plaintiff class in community treatment settings, and

whether the waiting list moves at a reasonable pace, uncontrolled

by an effort to keep available institutional space fully

populated.

7 Stating the issues in such general terms might suggest,

incorrectly, that they are subject to easy resolution. In

reality, a host of complex factual and legal matters must be

considered and resolved before the controlling issues can be

rationally addressed and judgment entered. Can the State, for

example, simply refuse to provide community-based services beyond

the number of slots available in the model ABD waiver program

without running afoul of the federal integration mandate? Does

it make a difference that the State directly limits the number of

slots available in the program by applying for only that number

it chooses to fund, notwithstanding the apparent availability of

additional slots from the federal government simply for the

asking? If the State chooses not to take advantage of federal

funding participation available through the waiver program, must

it nevertheless provide a reasonable accommodation under the ADA

at its own expense? Does the State have a "comprehensive" plan?2

Is it "effective?" Is the waiting list "moving" at a "reasonable

pace?" Must it move at a reasonable pace relative to each

individual waiting for services, or just as to the group as a

2 See principles outlined by the Office of Civil Rights in, Olmstead Update No. 2 letter. Department of Health and Human Services, Center for Medicaid and State Operations, July 25, 2000 (available at www.cms.hhs.gov/states/letters) . whole - i.e., if some move off the list into the community

quickly but others never move off the list, does the list "move"

at a reasonable pace? Does the State have resources "available"

to accommodate these plaintiffs? Are those resources available

through budget line item adjustments or would "new funds" be

required? What budget should the court look to when making that

determination? What do current and proposed future budgets look

like? See, e.g., Bruggeman v. Blagojevich,

, 434-

36 (N.D. 111. 2004) (to the extent future proposed budgets

include efforts to gain federal matching or Medicaid funding,

inquiry into those efforts is appropriate, as such funding may be

available by the time of trial); Martin v. Taft,

(S.D. Ohio 2002) (requiring state to seek additional

waiver slots may be reasonable accommodation). Can the State

reasonably seek and obtain additional waiver slots with minimal

fiscal impact? See letter, Olmstead Update No. 4, Department of

Health & Human Services, Center for Medicaid and State

Operations, January 10, 2001 (available at www. cms .hhs .gov / s t a t e s / l e t t e r s )

("The state does not have an obligation under Medicaid law to

serve more people in the HCBS waiver than the number requested by

the state and approved by the secretary. If other laws (e.g.,

ADA) require the State to serve more people, the State may do so using non-Medicaid funds or may request an increase in the number

of people permitted under the HCBS waiver. Whether the State

chooses to avail itself of possible federal funding is a matter

of the State's discretion. Failure to seek or secure Federal

Medicaid funding does not generally relieve the State of an

obligation that might be derived from other legislative sources

(beyond Medicaid), such as the ADA.")

Because summary judgment is only available when there are no

disputed issues of material fact, see F e d . R. C i v . P. 56(c), such

a disposition is not appropriate in this case. To the contrary,

both material factual and legal issues remain unresolved and

unaddressed by the parties. Neither side has adequately

identified the pool of funds and the range of programs properly

examined in performing the analysis required by Olmstead. Thus,

the parties necessarily have not established facts sufficient to

grant or deny the relief sought. Nor has it been established

that uncontroverted facts lead inevitably to the legal conclusion

that granting plaintiffs' requested accommodation would involve a

fundamental alteration in the State's program for delivery of

mental health services. At trial, should trial be necessary.

10 both parties will focus, with reasonable specificity, on facts

pertinent to the question of "available resources," and the

related issue of what other claims placed on those resources

would suffer if plaintiffs were accommodated.

For the reasons given, both motions for summary judgment

(document no. 55 and document no. 61) are denied. The Clerk of

the Court shall schedule a pre-trial conference at which further

scheduling and convenient trial dates will be set.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 26, 2004

cc: Suzanne M. Gorman, Esq. Sheila 0. Zakre, Esq.

11