J., et al v. Riley, et al

Filing 239

MEMORANDUM OPINION AND ORDER, ORDERED as follows:(1) Defendants Motions (Doc. ## 127 , 152 , 172 ) for Summary Judgment are DENIED to the extent they argue Plaintiffs lack standing;(2) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTE D to the extent it seeks dismissal of all claims against the Alabama Department of Mental Health and Mental Retardation and all of Plaintiffs claims against that defendant are DISMISSED;(3) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRA NTED to the extent it seeks to prevent this Court from compelling state officials to comply with state law;(4) Defendants Motion for Summary Judgment as to All Claims Brought by Paul B.(Doc. # 127 ) is DENIED;(5) Defendants Motion for Summary Judgme nt as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152 ) is GRANTED to the extent it seeks to have the claims of Elizabeth A. and Charles P. dismissed and all claims brought by Elizabeth A. and Charl es P. are DISMISSED;(6) Defendants Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152 ) is DENIED to the extent it seeks dismissal of the claims of Angie D. and Susan J.; (7) Defendants Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152 ) is DENIED as moot to the extent it seeks to have the claims of Nicholas A. dismissed;(8) Defendants Mo tion for Summary Judgment (Doc. # 172 ) is DENIED to the extent it seeks to have the claims of Tara L., Beverly W., Krystal W., Brishette W. and Rico C.dismissed;(9) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it s eeks to have the claims of Shavon H. dismissed and all claims brought by Shavon H. are DISMISSED;(10) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks to have Count II dismissed;(11) Defendants Motion for Summar y Judgment (Doc. # 172 ) is GRANTED to the extent it seeks to have Count IV dismissed;(12)Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks dismissal of Plaintiffs claims that seek placement in an ICF/MR institu tion;(13) Defendants Motions (Doc. ## 127 , 152 , 172 ) are GRANTED to the extent they seek dismissal of all or part of the claims of Plaintiffs who (1) seek services not provided for in the documents that govern the terms of the HCB Waiver progra ms, and/or (2) cannot prove that they are one of the eligible recipients;(14) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks dismissal of claims of Plaintiffs that seek alterations to the administration of the waiting list and to the extent Plaintiffs claim an entitlement to the provision of medical assistance with reasonable promptness but are not either in a Waiver slot or entitled to one;(15) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRA NTED to the extent it seeks dismissal of Plaintiffs claims for the provision of services with reasonable promptness, rather than payment for services with reasonable promptness;(16) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks dismissal of Plaintiffs claims for the reasonably prompt payment for services;(17) Plaintiffs Motion for Partial Summary Judgment on Reasonable promptness Claim (Doc. # 211 ) is DENIED;(18) Defendants Motion for Summary Judgment (Doc. # 172 ) is DENIED as moot to the extent it seeks dismissal of Plaintiffs claims for failure to join indispensable parties;(19) Defendants Motion for Summary Judgment (Doc. # 172 ) is DENIED to the extent it argues 42 U.S.C. § 1396a(a)(8) does not create privately enforceable rights;(20) Defendants Motion for Summary Judgment (Doc # 172 ) is DENIED to the extent it seeks dismissal of the claims of Subclass Two; and (21) Defendants Motion for Summary Judgment (Doc. # 172 ) is DENIED to the extent it seeks dismissal of the claims of Subclass Three as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 4/29/09. (Attachments: # 1 appeals checklists)(vma, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S U S A N J., et al., P la in tif f s , v. BOB RILEY, in his official capacity as G o v e rn o r of the State of Alabama, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:00-cv-918-MEF (W O -- P u b lis h )

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION P la in tif f s are adults with disabilities and mental retardation who bring this class action f o r declaratory and injunctive relief to declare their rights, to remedy alleged violations of th e Social Security (Medicaid) Act, 42 U.S.C. §§ 1396 et seq., and to redress alleged d e p riv a tio n s of their due process rights under the Fourteenth Amendment to the United States C o n s titu tio n . This case is before the Court on the following summary judgment motions: D e f e n d a n ts ' Motion for Summary Judgement as to All Claims Brought By Paul B. (Doc. # 1 2 7 ); Defendants' Motion for Summary Judgment as to All Claims Brought by Susan J., A n g ie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152); Defendants' Motion for S u m m a ry Judgment (Doc. # 172); and Plaintiffs' Motion for Partial Summary Judgment on " R e a so n a b le Promptness" Claim (Doc. # 211). For the reasons set forth in this Memorandum Opinion and Order, Defendants' Motion 1

for Summary Judgment as to All Claims Brought by Paul B. (Doc. # 127) is due to be D E N IE D . Defendants' Motion for Summary Judgment as to All Claims Brought by Susan J ., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152) is due to be GRANTED w ith respect to Elizabeth A. and Charles P., due to be DENIED with respect to Angie D. and S u sa n J, and due to be DENIED as moot with respect to Nicholas A. Defendants' Motion for S u m m a ry Judgment (Doc. # 172) is due to be GRANTED in part and DENIED in part, and P la in tif f s ' Motion for Partial Summary Judgment on "Reasonable Promptness" Claim (Doc. # 211) is due to be DENIED. In the end, all that remains (and they remain completely) are th e claims of Subclasses Two and Three. II. JURISDICTION AND VENUE T h is Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 because Plaintiffs c la im s are pursuant to 42 U.S.C. § 1396 et seq., § 1983, and the Due Process Clause of the F o u rte e n th Amendment. The parties do not contest venue and personal jurisdiction, and the C o u rt finds a sufficient basis for each. III. PROCEDURAL HISTORY O n July 12, 2000, Named Plaintiffs filed suit against Don Siegelman in his official capacity as Governor of the State of Alabama, Kathy Sawyer in her official capacity as C o m m is s io n e r of Mental Health and Mental Retardation for the State of Alabama, and the A la b a m a Department of Mental Health and Mental Retardation seeking declaratory and in ju n c tiv e relief to enforce their rights under the Social Security (Medicaid) Act, 42 U.S.C.

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§§ 1396 et seq. and the United States Constitution. (Doc. #1.) On May 20, 2003, the Court te rm in a te d Defendant Siegelman and added Defendant Bob Riley in his official capacity as G o v e rn o r of the State of Alabama. (Doc. # 21.) Likewise, on August 17, 2007, the Court te rm in a te d Defendant Sawyer and added Defendant John Houston in his official capacity as C o m m i ss io n e r of the State of Alabama Department of Mental Health and Mental R e ta rd a tio n . (Doc. # 117.)1 W ith leave of this Court, Plaintiffs filed a Second Amended Complaint on June 21, 2 0 0 5 (Doc. # 46) and Third Amended Complaint on July 26, 2007 (Doc. # 107) ("Third A m e n d e d Complaint"). On April 24, 2007, Plaintiffs filed a motion to certify the case as a class action (Doc. # 87), which this Court denied on September 12, 2007 (Doc. # 126). Plaintiffs then filed a S e c o n d Motion to Certify Class (Doc. # 128), which this Court granted in part and denied in p a rt on October 24, 2008 (Doc. # 222). The Court certified two subclasses: S u b c la s s Two: All persons with mental retardation who have applied for s e rv ic e s compensable under Alabama's Home and C o m m u n ity Based Waiver Programs but who have been a d jud g ed ineligible and/or denied services without notice a n d opportunity for hearing. All persons with mental retardation who have applied for s e rv ic e s compensable under Alabama's Home and C o m m u n ity Based Waiver Programs and have not re c e iv e d a reasonably prompt claims determination.

S u b c la s s Three:

(Doc. # 222.) Proposed Subclass One contained persons "with mental retardation who have
1

The Court also terminated John Doe, a pseudonymous defendant, on April 9, 2007. 3

applied for services compensable under Alabama's Home and Community Based Waiver P r o g r a m s and who have been determined to be eligible for services but who have not re c e iv e d them with reasonable promptness or have received inadequate or inappropriate s e rv ic e s . " The Court declined to certify this subclass because there was insufficient

in f o rm a tio n available to make a numerosity determination. The Court also noted proposed Subclass One did not meet the adequacy requirement. Upon joint motion of the Parties (Doc. # 225), the Court staid the case pending in te rlo c u to ry appeal under Rule 26(f) (Doc. # 226). The Eleventh Circuit denied the Petition f o r Permission to Appeal on December 12, 2008. (Doc. # 227.) The Court then held a Status C o n f e re n c e (Doc. ## 228, 230), lifted the stay (Doc. # 232), and set this case for trial in the C o u rt's June 29, 2009 term. (Doc. # 229.) Currently before the Court are four motions for summary judgment filed by parties on b o th sides: (1) Defendants' Motion for Summary Judgment as to All Claims Brought By Paul B (Doc. # 127), filed on September 19, 2007; (2) Defendants' Motion for Summary J u d g m e n t as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and N ic h o la s A. (Doc. # 152), filed on December 28, 2007; (3) Defendants' Motion for Summary J u d g m e n t (Doc. # 172), filed on January 22, 2008; and (4) Plaintiffs' Motion for Partial S u m m a ry Judgment on "Reasonable Promptness" Claim (Doc. # 211), filed on January 23, 2 0 0 8 . These four motions are ripe for disposition. IV. FACTS

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The Memorandum Opinion and Order granting the Amended Motion for Class C e r t i f ic a tio n provides a full account of the facts of this case. See Susan J. v. Riley, 254 F .R .D . 439, 445-50 (M.D. Ala. 2008) (Fuller, C.J.). The Court incorporates those largely u n d is p u te d facts by reference and assumes familiarity with them. This Section therefore p ro v id e s only a brief summary of the case and a discussion of the claims of the named p la in tif f s . The Court has carefully considered all deposition excerpts and documents s u b m itte d in support of and in opposition to the Motions. Because of the way this case has p ro g re s s e d , the Court has also considered its Order on Pretrial Hearing. (Doc. # 221.) There a re cross-motions for summary judgment in this case, so the Court will consider the facts and r e a s o n a b le inferences to be drawn from the facts in the light most favorable to the nonm o v in g party as the Court considers each of the motions. With that caveat, the submissions o f the parties, viewed in the light most favorable to the nonmoving party, establish the f o llo w in g relevant facts: T h e named Plaintiffs represent a group of adults with mental retardation who are u n a b le to care fully for themselves and require varying degrees of care and treatment. The D e f e n d a n ts are Bob Riley, in his official capacity as Governor of the State of Alabama, the A la b am a Department of Mental Health and Mental Retardation (the "Department"), and John M . Houston ("Houston"), in his official capacity as Commissioner of the Department. Plaintiffs seek placement in Alabama's Home and Community Based Waiver p ro g ra m s ("HCB Waiver" or "Waiver"), which includes both the Mental Retardation Waiver

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program ("MR Waiver") and the Living at Home Waiver program ("LAH Waiver"). They a ls o seek to enforce procedural protections they claim the Constitution and the Medicaid Act p ro v id e to applicants for slots in those programs. They present their claims in four counts. They claim:2 (1) that Defendants have violated the Medicaid act by failing to provide IC F /M R and/or Waiver services with reasonable promptness as required by 42 U.S.C. § 1396a(a)(8); (2) that Defendants have also failed to comply with the comparability r e q u ire m e n ts of 42 U.S.C. § 1396a(a)(10); (3) that Defendants have deprived Plaintiffs of th e ir right to apply pursuant to 42 U.S.C. § 1396a(a)(3); and (4) that Defendants have v io la te d Plaintiffs' due process rights guaranteed by the United States Constitution. A. Susan J. S u sa n J. is a forty-six year old female with Down Syndrome associated with mental re ta rd a tio n and a seizure disorder. She applied for residential services in 1992 and withdrew h e r request for these services in 2007. She applied for day habilitation services in 1993 and b e g a n receiving them in 1999. She remains on the waiting list for respite services with a c ritic a lity score of one because she may want additional services in the future. As of January 2 0 0 8 , her ranking on the waiting list was 1256. She would like financial reimbursement for p e rs o n s who transport her to her day habilitation program, but the state has not authorized s u c h reimbursement under its Waiver program. B. Angie D.

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Each of these claims proceeds though the vehicle of 42 U.S.C. § 1983. 6

Angie D. is a thirty-one year old female with cerebral palsy associated with mental re ta rd a tio n . She applied for day habilitation LAH Waiver services in 2000 and began re c e iv in g them in June 2007. She is on the waiting list for residential services, but does not s e e k them at this time. Angie D. is eligible for Medicaid medical assistance benefits. C. Elizabeth A. E liz a b e th A. is a twenty-eight year old female with Rett Syndrome, neurological p ro b le m s , and mental retardation. She applied for day habilitation Waiver services in 1995 a n d was offered these services in October 2006, but her mother turned them down because s h e thought they were inadequate. From November 2006 to September 2007, while still on th e waiting list for an MR Waiver slot, Elizabeth received twenty hours per week of respite a n d support services through another waiver program that is not at issue in this case. As of J u ly 24, 2007, she was number 499 on the waiting list. In September 2007, she obtained an M R Waiver slot and began receiving eleven hours per day of in-home support services. As s h e was receiving all the services she sought, Elizabeth was removed from the waiting list. D. Charles P. C h a rle s P. is a twenty-four year old male with mental retardation associated with a u tis m . He applied for day habilitation and supported employment services in 2005. As of J u ly 24, 2007, he was number 362 on the waiting list. In August 2007, he obtained an LAH W a iv e r slot and is receiving day habilitation services and supported employment services. Charles P. is no longer on the waiting list. He is eligible for and receives Medicaid medical

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assistance benefits and Social Security Income. E. Paul B. Paul B. is a twenty-two year old male with Down Syndrome, cerebral palsy, and s e v e re developmental delays due to mental retardation. Paul applied for HCB Waiver s e rv ic e s in approximately 1999. He is eligible for and received Medicaid medical assistance a n d Social Security Income. In May 2007, Paul was entered onto the list for day habilitation s e rv ic e s , and was number 907 on that list on July 24, 2007. Paul aged out of the school s ys te m in May 2007, and was enrolled in the MR Waiver program in September of that year. He began receiving day habilitation services at that time. In September 2008, his mother re q u e s te d additional services for him. F. Beverly W. B e v e rly W. is a fifty year old female with mental retardation, brain damage, and p o s s ib le fetal alcohol syndrome. She submitted paperwork requesting HCB Waiver services in 1992 and again in 1996 and is not receiving those services. Between 1996 and 2004 B e v e rly's caretaker received no communication regarding the status of Beverly's application o r her place on the waiting list. G. Tara L. T a ra L. is a twenty-nine year old female with mental retardation and autism. Tara's c a re ta k e r applied for residential, day, and support services though the local 310 board. She is qualified for Medicaid medical assistance benefits, Targeted Case Management, and Social

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Security Income. As of September, 2008, Tara was number 462 on the waiting list for day h a b ilita tio n services. Tara is currently not receiving day habilitation services. H. Krystal W. Krystal W. is a twenty-six year old female with mental retardation. She is eligible for a n d receives Medicaid medical assistance benefits and Social Security Income. Her mother c la im s she submitted a request to the Department of Mental Retardation in 2000 requesting d a y habilitation and group home services. Her mother further claims that she made numerous c a lls to the relevant agencies to determine Krystal's status on the waiting list in the three ye a rs following the initial application. Defendants contend they received the application in N o v e m b e r 2007. As of January 15, 2008, Krystal was number 464 on the waiting list. She w a s approved for the LAH Waiver on August 26, 2008, and she began receiving day h a b ilita tio n services three days later. I . Brishette W. B ris h e tte W. is a twenty-four year old female with mental retardation. She is seeking d a y habilitation services, and, in 2005, submitted an application for those services. She b e c a m e eligible for Alabama Medicaid services in 2006, because she is a new Alabama re s id e n t. As of September 2008, she is number 583 on the waiting list with a criticality score o f four. Brishette W. is not receiving HCB Waiver services. J. Rico C. Rico C. is a thirty-four year old male with mental retardation. He is eligible for and

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receives Medicaid medical assistance and Social Security Income. As of January 15, 2008, R ic o was number 528 on the waiting list for day services and for residential services with a c ritic a lity score of four and one, respectively. K. Shavon H. Shavon H. is a thirty-nine year old female with mental retardation, cerebral palsy, v is u a l and hearing impairments, and digestive difficulties. Shavon received day habilitation s e rv ic e s for a brief period in 2002. She subsequently declined offers for services and re q u e s te d that her case be closed. Shavon is not currently receiving Waiver services and is n o t on the waiting list. V. Discussion: Jurisdictional Issues D e f e n d a n ts advance two classes of jurisdictional arguments, which this Court must a d d re s s prior to reaching the merits of the Motions. See Seaborn v. Florida, 143 F.3d 1405, 1 4 0 7 (11th Cir. 1998). First are the familiar justiciability doctrines of standing, mootness, a n d ripeness. Defendants argue that the claims of the individual plaintiffs are moot because e a c h plaintiff is receiving reimbursement for all appropriate Waiver services. Defendants a ls o argue that Plaintiffs' claims are not ripe to the extent they concern services not yet re q u e s te d and that Plaintiffs seek reimbursement for medical services that are not c o m p e n s a b le , and that Plaintiffs do not have standing to seek prospective injunctive relief. Second are Eleventh Amendment and absolute sovereign immunity. Defendants argue that th is Court lacks jurisdiction to compel state Defendants to comply with state law and that the

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Eleventh Amendment to the United States Constitution bars claims against the Alabama D e p a rtm e n t of Mental Health and Mental Retardation. The Court is satisfied that it has s u b je c t matter jurisdiction over the claims brought by Paul B., Angie D., Susan J., Brishette W ., Rico C., Tara L., Beverly W., and Krystal W., but not over the claims brought by E liz a b e th A., Charles P., and Shavon H. and not over claims brought against the Alabama D e p a rtm e n t of Mental Health and Mental Retardation. The Court therefore retains

ju ris d ic tio n over the individual claims of Paul B., Angie D., Susan J., Brishette W., Rico C., T a ra L., Beverly W., and Krystal W. and over the claims of both subclasses. A. Legal Standard D e f e n d a n ts characterize their motions as ones for summary judgment, which they are to some extent. Defendants include in the motions, however, arguments that clearly attack th e subject matter jurisdiction of this Court. Their arguments that various claims are moot o r not ripe and that some plaintiffs do not have standing concern subject matter jurisdiction a n d are "appropriately dealt with by means of a motion to dismiss under Federal Rule of C iv il Procedure 12(b)(1)." Troiano v. Supervisor of Elections in Palm Beach County, Fla., 3 8 2 F.3d 1276, 1278 n.2 (11th Cir. 2004). Therefore, when a party seeks to have a case d is m is s e d on justiciabilty grounds, the district court should treat the motion as one to dismiss f o r lack of subject matter jurisdiction under Rule 12(b)(1), even if the party has labeled its m o tio n as one for summary judgment. See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1 1 7 3 , 1182 (11th Cir. 2007) (mootness); United States v. Blue Cross & Blue Shield of Ala.,

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Inc., 156 F.3d 1098, 1101 n.7 (11th Cir.1998) (mootness); Elend v. Basham, 471 F.3d 1199 (1 1 th Cir. 2006) (ripeness); Hames v. City of Miami, 479 F. Supp. 2d 1276 (M.D. Fla. 2007) (s u b je c t matter jurisdiction). To the extent these motions for summary judgment concern the s u b je c t matter jurisdiction of the Court, the Court considers them under the standards of Rule 1 2 (b )(1). "A Rule 12(b)(1) motion may challenge the court's subject matter jurisdiction based o n the face of the pleadings or based on the actual substantive facts of the case." Morrison v . Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003). These two forms of attack differ s u b s ta n tia lly. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Where the ju ris d ic tio n a l attack is based on the face of the pleadings, courts merely look to determine w h e th e r the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the a lle g a tio n s in the plaintiffs' complaint are taken as true for purposes of the motion. Id. at 1 5 2 9 . When addressing a factual challenge, on the other hand, a court "is free to weigh the e v id e n c e and satisfy itself as to the existence of its power to hear the case." See id. at 1 5 2 8 -2 9 (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. May 20, 1981)). 3 G e n e ra lly, in the context of a factual challenge to jurisdiction, there is no presumption of tru th f u ln e s s in favor of the plaintiff's allegations and the existence of disputed material facts w ill not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981 12

3

See id. at 1529-30. Because these jurisdictional challenges are made at a stage when the f a c tu a l record is well developed, the Court will consider Defendants' jurisdictional a rg u m e n ts as factual challenges and will evaluate for itself the merits of their jurisdictional c la im s . B. Immunity 1 . Eleventh Amendment D e f e n d a n ts argue that "Plaintiffs' claims against the Alabama Department of Mental H e a lth and Mental Retardation are barred by the Eleventh Amendment." (Doc. #178 83.) Because the Department enjoys Alabama's Eleventh Amendment immunity as a department o f the State, Plaintiffs' claims against the Department are due to be dismissed. The Eleventh Amendment provides: "The Judicial power of the United States shall n o t be construed to extend to any suit in law or equity, commenced or prosecuted against one o f the United States by Citizens of another State, or by Citizens or Subjects of any Foreign S ta te ." U.S. Const. amend. XI. The Supreme Court has not, however, limited the application o f this immunity to the suits described in the text of the Eleventh Amendment. The Court h a s extended a State's immunity to suits brought by the State's own citizens in order to re s p e c t the "broader concept of immunity" implicit in the Constitution and exemplified by th e Eleventh Amendment. Doe v. Chiles, 136 F.3d 709, 719 (11th Cir. 1998) (quoting Idaho v . Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997)). The decisions of the Supreme Court th u s establish that "an unconsenting State is immune from suits brought in federal courts by

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her own citizens as well as citizens of other states." Pennhurst State School & Hosp. v. H a ld e rm a n , 465 U.S. 89, 100 (1984) (citing Employees of Dep't of Pub. Health & Welfare, M o . v. Dep't of Pub. Health & Welfare, Mo., 411 U.S. 279, 280 (1973)). Agencies, departments, and instrumentalities of states are entitled to the same E le v e n th Amendment immunity as the states themselves. Pennhurst, 465 U.S. at 100-01 (c itin g Florida Dep't of Health v. Fla. Nursing Home Ass'n, 450 U.S. 147 (1981) (per c u ria m ); Alabama v. Pugh, 438 U.S. 781 (1978) ( per curiam )); Harden v. Adams, 760 F.2d 1 1 5 8 , 1163 (11th Cir. 1985); University of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411-12 (1 1 th Cir. 1999) ("In the context of Eleventh Amendment immunity, we have held that state u n iv e rs itie s are "agencies or instrumentalities" of the state, and thus are immune from suit in federal court."). Whether the entity sued can be considered an agency, department, or in s tru m e n ta lity of the state is generally determined by reference to state law. Harden, 760 F .2 d at 1163 (citing Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)); Sessions v. R u s k State Hosp., 648 F.2d 1066 (5th Cir. June 26, 1981))4 ; Cross v. Ala. Dep't of Mental H e a lth & Mental Retardation, 49 F.3d 1490, 1503 (11th Cir. 1995). Factors that bear on this d e te rm in a tio n include the definition of "state" and "political subdivision"; the degree of state c o n tro l over the entity; and the fiscal autonomy of the entity. Harden, 760 F.2d at 1163;

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981 14

4

Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1520 (11th Cir.1983).5 T h e issue of Eleventh Amendment immunity thus turns on whether the Alabama D e p a rtm e n t of Mental Health and Mental Retardation is an agency, department or in s tru m e n ta lity of the state. The Court finds that it is. In Cross, 49 F.3d at 1502-03, the E le v e n t h Circuit explained, in the Eleventh Amendment context, that "The Alabama D e p a rtm e n t of Mental Health and Mental Retardation is a department of the state g o v e rn m e n t." (citing Ala.Code § 22-50-2 (1990)). Furthermore, Alabama Code § 22-50-2 p ro v id e s : T h e re shall be created and established a department of the state government to b e known as the Department of Mental Health and Mental Retardation. The d e p a rtm e n t shall be composed of the State Mental Health and Mental R e ta rd a tio n Commissioner and such divisions and administrative sections as th e Mental Health and Mental Retardation Commissioner may direct. The p rin c ip a l offices of the department shall be located at the state capitol. The d e p a rtm e n t shall perform the functions prescribed in this chapter.

M o re o v e r, the statutes that govern the Department make it clear that the degree of State c o n tro l over the entity is absolute and the Department is not at all fiscally autonomous. See

States and their agencies and departments enjoy Eleventh Amendment protection regardless of the nature of the relief sought. See, e.g., Fouche, 713 F.2d at 1523 (citing Missouri v. Fiske, 290 U.S. 18, 27 (1933) ("Expressly applying to suits in equity as well as at law, the Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State")); Harden, 760 F.2d at 1163 (noting that in Alabama v. Pugh, 438 U.S. 781 (1978), the Supreme Court "held that actions for injunctive relief against a state or its instrumentality were also barred by the Eleventh Amendment."); See also 3 Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation § 9:48 (4th ed. 2004) ("States and their "alter ego" agencies may not be sued in federal court directly in their own names either for damages or for declaratory and injunctive relief by virtue of the Eleventh Amendment."). 15

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Harden, 760 F.2d at 1163; Fouche, 713 F.2d at 1520. Under the relevant provisions of the A la b a m a Code, the Department is required to "perform the functions described in this c h a p te r," Ala. Code. § 22-50-2, the offices of the department are "at the state capitol," id., a ll fees collected by the Department must be spent either within the Department or in support o f state hospitals, id. § 22-50-3, the Governor is chairman of the board of trustees and a p p o in ts the members of the board, id. § 22-50-5, the trustees' expenses are paid from the s ta te treasury, id. § 22-50-8, the Department must give an annual report to the Governor and d is trib u te copies to members of the State legislature, id. § 22-50-13, the Department must re q u e s t operating funds from the Governor who should include those requests in his a p p ro p ria tio n bill, id. § 22-50-14, final decisions of the Department are subject to judicial r e v ie w , id. § 22-50-19, and the Department may hire police officers to assist it in carrying o u t its tasks, id. § 22-50-21. In light of the foregoing, the Court finds that the Alabama Department of Mental H e a lth and Mental Retardation is an agency, department or instrumentality of the State, and is therefore entitled to Eleventh Amendment immunity in this case.6 The degree of state c o n tro l over the entity is complete, and the fiscal autonomy of the entity is slight. See H a r d e n , 760 F.2d at 1163. Therefore, Defendants' Motion is due to be granted to the extent

Congress has not abrogated Eleventh Amendment immunity for § 1983 cases like this one. See Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir.1990). Neither has Alabama waived its immunity. E.g., Pugh, 438 U.S. at 782. 16

6

it seeks dismissal of all claims against the Department.7 2 . State Sovereign Immunity D e f e n d a n t s also argue that "to the extent that Plaintiffs seek to enjoin the State D e f e n d a n ts to follow Alabama law . . . the State Defendants are entitled to absolute sovereign im m u n ity." (Doc. # 178 81.) The Court agrees that under Pennhurst State School & H o s p ita l v. Halderman it lacks power to compel state officials to obey state law.8 See 465 U .S . 89, 106 (1984) (holding that federal courts are barred by the Eleventh Amendment from o rd e rin g state officials to conform their conduct to state law, even when only prospective in ju n c tiv e relief is sought). Plaintiffs have not requested this Court issue an injunction c o m p e llin g compliance with state law, and their claim seeks vindication of federal statutory a n d constitutional rights. While this argument currently appears to be irrelevant to this Case, D e f e n d a n ts ' Motion for Summary Judgment is due to be granted to the extent it seeks to p re v e n t this Court from compelling state officials to comply with state law. C. Justiciability The courts of the United States are courts of limited jurisdiction. The Constitution of th e United States, Article III, Section 2, provides that the judicial power of the United States

None of this has any effect, of course, on the official capacity claims against the individual defendants for prospective injunctive relief, as those claims fit neatly within the Ex parte Young doctrine. Ex parte Young, 209 U.S. 123, 156 (1908); see also Wu v. Thomas, 863 F.2d 1543, 1550 (11th Cir.1989); Parker v. Williams, 862 F.2d 1471, 1475 (11th Cir.1989). Alabama has not waived its state sovereign immunity. Ala. Const. art.I, § 14 ("[t]he State of Alabama shall never be made a defendant in any court of law or equity"). 17
8

7

shall extend only to "cases" and "controversies." U.S. Const. art. III, § 2; see also Coral S p r in g s St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1327 (11th Cir. 2004) (citing Lujan v . Defenders of Wildlife, 504 U.S. 555, 559 (1992)). Defendants argue that Plaintiffs lack s ta n d in g ,9 that their claims are moot, and that some of their claims are not ripe.1 0 1 . Legal Framework Mootness is among the limitations placed on the power of the federal courts because " [ b ]y its very nature, a moot suit `cannot present an Article III case or controversy.'" Nat'l A d v e rtis in g Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005) (citing Coral S p r in g s , 371 F.3d at 1328). "A case is moot when it no longer presents a live controversy w ith respect to which the court can give meaningful relief." Sheely v. MRI Radiology N e tw o r k , P.A., 505 F.3d 1173, 1183 (11th Cir. 2007) (quoting Triano v. Supervisor of

Defendants conflate the concepts of standing and mootness when they argue Plaintiffs lack standing. (Doc. # 178 63-65.) As the Supreme Court has explained, "the doctrine of mootness can be described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Friends of the Earth, Inc. v. Laidlaw Evntl. Serv., 528 U.S. 167, 189-90 (2000); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1189 n.16 (11th Cir. 2007). In other words, standing is determined as of when the case is filed. See Laidlaw, 528 U.S. 167. Here, Defendants do not dispute that Plaintiffs had standing when the case was filed. Rather, they argue that Plaintiffs' claims are moot because of the provision of Waiver services subsequent to the commencement of this litigation. Therefore, Defendants' motions for summary judgment are due to be denied to the extent Defendants argue Plaintiffs lack standing. Defendants' claims that because to some extent Plaintiffs intend to seek services at some unspecified time in the future, their claims are not ripe lacks merit. Plaintiffs' future need for services is not the basis of their claims. To the contrary, their alleged previous deprivations are the basis of their claims. Their claimed future needs simply allow the case to be heard even if the claims would otherwise be moot, as the future needs create a probability that the same Plaintiff will be subjected to the same wrongdoing in the future. This exception to the mootness doctrine is explained more fully below. 18
10

9

Elections in Palm Beach County, Fla., 382 F.3d 1276, 1281-82 (11th Cir. 2004)). There are th re e exceptions to the mootness doctrine: First, the doctrine of voluntary cessation provides an important exception to the g e n e ra l rule that a case is mooted by the end of the offending behavior. Sheely, 505 F.3d at 1 1 8 4 (citing Triano, 382 F.3d at 1282). "It is well settled that a defendant's voluntary c e s s a tio n of a challenged practice does not deprive a federal court of its power to determine th e legality of the practice." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 5 2 8 U.S. 167, 189 (2000). A defendant who asserts that a plaintiff's claims are moot because o f the defendant's voluntary conduct bears the "heavy burden of persuading the court that th e challenged conduct cannot reasonably be expected to start up again." Id.; United States v . Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968) (noting that the test for m o o tn e s s in cases of voluntary cessation is "a stringent one" and that "[a] case might become m o o t if subsequent events made it absolutely clear that the allegedly wrongful behavior could n o t reasonably be expected to recur"). "A defendant's assertion that it has no intention of re in s ta tin g the challenged practice `does not suffice to make a case moot' and is but `one of th e factors to be considered in determining the appropriateness of granting an injunction a g a in s t the now-discontinued acts.'" Sheely, 505 F.3d at 1184 (citing United States v. W.T. G r a n t Co., 345 U.S. 629, 633 (1953)). In the Eleventh Circuit, government actors are

e n title d to "the benefit of a rebuttable presumption that the offending behavior will not re c u r." Sheely, 505 F.3d at 1184; Coral Springs, 371 F.3d at 1328-29. District courts must,

19

however, "beware of efforts to defeat injunctive relief by protestations of repentance and re f o rm , especially when abandonment seems timed to anticipate suit, and there is probability o f resumption." Sec'y of Labor, U.S. Dep't of Labor v. Burger King Corp., 955 F.2d 681, 6 8 4 (11th Cir. 1992) (quoting United States v. Oregon State Med. Soc'y, 343 U.S. 326, 333 (1 9 5 2 )). Second, a district court may entertain a moot case if it arises from a situation that is " c a p a b le of repetition, yet evading review." Bourgeois v. Peters, 387 F.3d 1303, 1308 (11th C ir. 2004) (citation omitted). This exception has two requirements: "(1) the challenged a c tio n was in its duration too short to be fully litigated prior to its cessation or expiration, and (2 ) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per c u ria m )). Finally, with respect to class actions, a named Plaintiffs' claim "must be live both at th e time he brings suit and when the district court determines whether to certify the putative c la s s . If the plaintiff's claim is not live, the court lacks a justiciable controversy and must d i s m i s s the claim as moot." Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir. 1987) (c ita t i o n s omitted). In other words, "a lawsuit brought as a class action must present ju s tic ia b le claims at each stage of the litigation; if the named plaintiffs' individual claims b e c o m e moot before a class has been certified, no justiciable claims are at that point before th e court and the case must as a general rule be dismissed for mootness." Zeidman v. J. Ray

20

McDermott & Co., Inc., 651 F.2d 1030, 1046 (5th Cir. Unit A, July 27, 1981). 1 1 In cases w h e re the named Plaintiffs' claims became moot after class certification, the Plaintiff may re ta in standing to pursue the class action because the class has a "legal status separate from th e interest asserted by the [named plaintiffs]." Tucker, 819 F.2d at 1034 (quoting Sosna v. Io w a , 419 U.S. 393, 399 (1975)). The act of certification brings the unnamed members of th e class before the court for Article III purposes; so long as their claims are justiciable, the m o o tn e s s of the original named plaintiff's claim does not require dismissal. Zeidman, 651 F .2 d at 1045. 2 . Discussion Defendants argue first that the claims of Paul B., Susan J., Angie D., Elizabeth A., C h a rle s P., and Nicholas A. are moot.1 2 (Doc. ## 127, 153.) Defendants also argue more g lo b a lly that "Plaintiffs' claims are moot because their needs have been [met] to the extent re q u ire d under the existing terms of the controlling HCB waiver documents." (Doc. # 178.) A s an initial matter, because part of this case is a class action, the claims of the s u b c la s s representatives must not be moot when the district court determines whether to c e rtif y the putative class. Tucker, 819 F.2d at 1033. This Court certified the class in this

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981 The claims of Nicholas A. were voluntarily dismissed by a prior order of this court. (Doc. # 215.) Therefore, Defendants' Motion is due to be dismissed as moot to the extent it seeks to have the claims of Nicholas A. dismissed. 21
12

11

case on October 24, 2008. If the claims of Named Plaintiffs who are members of the c e rtif ie d subclasses became moot before that date, their claims must be dismissed. The

C o u rt continues to have jurisdiction, however, over the claims of the other named Plaintiffs w h o represent Subclasses Two and Three if their claims became moot after class c e rtif ic a tio n . See id. at 1034; Zeidman v. J. Ray McDermott & Co. Inc., 651 F.2d 1030, 1045 (5 th Cir. July 27, 1981)1 3 Additionally, if the claims of Named Plaintiffs who are not m e m b e rs of either certified subclass are moot now (or become so at any later point prior to ju d g m e n t), their claims must be dismissed.1 4 F irs t, the Claims of Paul B. are not moot. The Complaint alleged that Paul B. needs b u t is not receiving day habilitation services. At the time of Defendants' Motion as to Paul B ., he was receiving all requested services and was no longer on the waiting list for services. He was in a MR Waiver slot and was receiving compensation for all services provided to him in accordance with the terms of the HCB Waiver documents. However, in September, 2008, P a u l's mother requested additional services for him. Therefore, his claim is not moot and D e f e n d a n ts ' Motion for Summary Judgment as to All Claims Brought by Paul B. is due to b e denied.

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. The distinction between Named Plaintiffs who are class members and Plaintiffs who are not members of the certified classes proves unimportant to the decision of these Motions, as the Court does not have information that shows that the status of any Named Plaintiff changed between the class certification and the date of this Opinion and Order. 22
14

13

The claims of Elizabeth A. and Charles P. are moot because neither of them is on the w a itin g list and they are both receiving all the services they requested. Elizabeth A. has been p la c e d in a MR Waiver slot and receives in-home support services. Charles P. is enrolled in a LAH Waiver slot and attends a day habilitation program. Plaintiffs argue that Defendants h a v e voluntarily ceased the offending behavior and would be free to resume it at any time. However, Plaintiffs have not meet the burden of overcoming the "rebuttable presumption that th e offending behavior will not recur" to which the government defendants are entitled. Sheely, 505 F.3d at 1184; Coral Springs, 371 F.3d at 1328-29. Finally, Plaintiffs' argument th a t these claims are "capable of repetition, yet evading review," fails because there is no " re a s o n a b le expectation that the same complaining party would be subjected to the same a c tio n again" because neither Elizabeth A. nor Charles P. is on the waiting list. See B o u r g e o is , 387 F.3d at 1308. The undisputed evidence in this case also shows that once a p e rs o n is in a Waiver slot, they usually only leave the slot because of relocation out-of-state o r death. Therefore, Defendants' Motion for Summary Judgment as to All Claims of Susan J ., Angie D., Elizabeth A., Charles P., and Nicholas A. is due to be granted in part. It is due to be granted with respect to Elizabeth A. and Charles P. O n the other hand, the claims of Angie D. and Susan J. are not moot. Angie D. has b e e n placed in a LAH Waiver slot and therefore is receiving the assistance she has requested. However, she remains on the waiting list for residential services, and her claims, to the extent th e y would otherwise be moot, are "capable of repetition, yet evading review," because there

23

is a " reasonable expectation that the same complaining party would be subjected to the same a c tio n again." Bourgeois, 387 F.3d at 1308. Because Angie D. is on the waiting list for re s id e n tia l services, it is reasonable to expect she will need those services in the future. See id . Similarly, Susan J. remains on the waiting list for support services. Therefore, to the e x te n t her individual claims would otherwise be moot, they are "capable of repetition, yet e v a d in g review," because there is a " reasonable expectation that the [Susan J.] would be s u b je c te d to the same action again." Id. Therefore, Defendants' Motion for Summary J u d g m e n t as to All Claims of Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. is due to be denied in part. It is due to be denied with respect to Angie D. and Susan J. D e f e n d a n ts also argue more generally that "Plaintiffs' claims are moot because their n e e d s have been [met] to the extent required under the existing terms of the controlling HCB w a iv e r documents." (Doc. # 178). Having already made determinations regarding the claims o f Susan J., Elizabeth A., Charles P., Paul B., Angie D., and Nicholas A., the Court now tu rn s to the claims of Beverly W., Tara L., Krystal W., Brishette W., Rico C., and Shavon H . This Court previously determined that the claims of Tara L., Beverly W., and Krystal W. w e re justiciable. Susan J., 254 F.R.D. at 449-50. Because the Court has no information to in d ic a te their situations have changed since its prior Order, the Court is satisfied that their c l a i m s are justiciable and are not moot. Therefore, Defendants' Motion for Summary J u d g m e n t is due to be denied to the extent it seeks to have the claims of Tara L., Beverly W., a n d Krystal W. dismissed.

24

Turning to the claims of Brishette W., Rico C., and Shavon H., the Court notes that B ris h e tte W. is on the waiting list for services, ranked number 583 with a criticality score of f o u r. Rico C. is on the waiting list for residential services and day services, with a criticality s c o re of one and four, respectively. He is ranked number 528 on the waiting list. Finally, S h a v o n H. has declined offers for services and requested that her case be closed. She is th e re f o re no longer on the waiting list. After reviewing the facts, the Court finds that the c la im s of Brishette W. and Rico C. present live controversies, but that the claims of Shavon H . do not at this time present a justiciable dispute. Therefore, Defendants' Motion for S u m m a ry Judgment is due to be granted in part and denied in part. The Motion is due to be g ra n te d with respect to Shavon H. and denied with respect to Brishette W. and Rico C. VI. Discussion: Substantive Issues D e f e n d a n ts seek summary judgment on all of Plaintiffs' claims. Defendants' Motion c a n be granted summarily with respect to Counts II and IV because of this Court's prior ru lin g s . The Court will then subject remaining claims to the tests posed by Defendants' M o tio n s and will determine whether Plaintiffs are entitled to summary judgment on the re a s o n a b le promptness claim. A . Legal Standard U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact

25

and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tr e tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). The party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s, depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a c t." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u r d e n of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) " re q u ire s the nonmoving party to go beyond the pleadings and by her own affidavits, or by th e `depositions, answers to interrogatories, and admissions on file,' designate `specific facts s h o w in g that there is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1 9 8 6 ). On the other hand, a court ruling on a motion for summary judgment must believe

26

the evidence of the nonmovant and must draw all justifiable inferences from the evidence in t h e nonmoving party's favor. Anderson, 477 U.S. at 255. After the nonmoving party has re s p o n d e d to the motion for summary judgment, the Court must grant summary judgment if th e re is no genuine issue of material fact and the moving party is entitled to judgment as a m a tte r of law. Fed. R. Civ. P. 56(c). B. Counts II and IV On October 24, 2008, this Court granted in part and denied in part Plaintiffs' Motion to Certify Class. Susan J. v. Riley, 254 F.R.D. 439 (M.D. Ala. 2008) (Fuller, C.J.). In their o p p o sitio n to class certification, Defendants argued Named Plaintiffs lacked standing to b ri n g the claims associated with their respective subclasses. The nature of the standing c h a lle n g e required the Court to decide whether Plaintiffs' four counts stated grounds for r e lie f . With respect to Count II, which alleges Defendants' violated Medicaid's

c o m p a ra b ility requirements, this Court stated: P la in tif f s ' second count alleges that Defendants violated 42 U.S.C. § 1 3 9 6 a (a )(1 0 )(B ) by failing to provide comparable services to Waiver p a rtic i p a n t s . As a general matter, when states provide assistance under M e d ic a id programs, benefits must be comparable among recipients. See 42 U .S .C . § 1396a(a)(10)(B); see also Fisher v. Oklahoma Health Care Auth., 3 3 5 F.3d 1175, 1186 n.12 (10th Cir. 2003). However, states may waive the c o m p a ra b ility requirement for programs such as the HCB Waiver programs at is su e in this case. Section 42 U.S.C. § 1396n(c)(3) provides that A waiver granted under this subsection may include a waiver of th e requirements of section 1396a(a)(1) of this title (relating to s ta te w id e n e s s ), section 1396a(a)(10)(B) of this title (relating to c o m p a ra b ility), and section 1396a(a)(10)(C)(i)(III) of this title (re la tin g to income and resource rules applicable in the 27

community). A s is plainly permissible on the face of this statute, Alabama's HCB Waiver p ro g ra m s include a waiver of the comparability requirement. As such, A la b a m a is not required to provide comparable services across participants in th e HCB Waiver programs. In other words, Plaintiffs enjoy no statutory right to comparable treatment in the context of the HCB Waiver programs.

S u s a n J., 254 F.R.D. at 455 (internal footnotes omitted). In their Motion for Summary J u d g m e n t, Defendants correctly point out that "The State of Alabama has waived c o m p a ra b ility under 42 U.S.C. § 1396a(a)(10)(B)." (Doc. # 178 79.) Defendants also offer th e uncontroverted affidavit testimony of Eranell McIntosh-Wilson, who stated that "With re s p e c t to the MR Waiver program and the LAH Waiver program, Alabama has elected to w a iv e the requirements of 42 U.S.C. § 1396a(a)(10)(B). Thus the comparability requirement d o e s not apply to Alabama's HCB Waiver programs" (Id. Ex. B ¶ 3.) In accordance with th e Court's earlier holding and the undisputed facts, Defendants' Motions for Summary J u d g m e n t are due to be granted to the extent they seek to have Count II dismissed. Similarly, Defendants' opposition to class certification required the Court to determine th e scope of the right allegedly protected by the substantive due process protections of the F o u rte e n th Amendment to the United States Constitution. With respect to Count IV, this C o u rt said: C o u n t IV of Plaintiffs' Third Amended Complaint alleges that D e f e n d a n ts violated the Constitutional rights of the putative class m e m b e rs by "fail[ing] or refus[ing] to remedy the known and c o n tin u i n g violation of plaintiffs' clearly established constitutional rights to habilitation, care, and treatment." The Court cannot locate, in 28

caselaw or elsewhere, support for the proposition that there is a "clearly e s ta b lis h e d constitutional right to habilitation, care, [or] treatment." B e c a u s e there is no substantive due process right that guarantees p ro te c tio n from the conduct Plaintiffs complain of, there is no alleged v io la tio n of § 1983, and that statute cannot support standing in this c a s e . Accordingly, Plaintiffs' Motion for Class Certification is D E N IE D to the extent the subclasses implicate alleged violations of s u b s ta n tiv e due process rights. Susan J., 254 F.R.D. at 457-58 (internal footnotes and citation omitted). In accordance with th is holding, Defendants' Motions for Summary Judgment are due to be granted to the extent th e y seek to have Count IV dismissed. C. ICF/MR and HCB Waiver D e f e n d a n ts argue they are entitled to summary judgment "as to any ICF-MR claims a s s e r t e d by the Plaintiffs in this case." (Doc. # 178 48.) Defendants' felt need to argue a g a in s t ICF/MR claims is a result of Plaintiffs' repeated use of "ICF-MR and/or waiver s e rv ic e s " language. (Doc. # 46 33); (Doc. 107 ¶ ¶ 1, 26); (Doc. # 170 ¶¶ 6(a), (b), (c), & (d )).1 5 After Defendants filed the Motions currently under submission, Plaintiffs clarified that " th e y do not seek institutional placement (ICF/MR) services." (Doc. # 183 ¶¶ 3(a)-(d)); (D o c . # 187 20) ("plaintiffs do not actively seek to be institutionalized"). Plaintiffs have s ta te d that they employed the "and/or" language because eligibility for ICF/MR services is a prerequisite for participation in the HCB Waiver program.

ICF/MR services are medical services from an intermediate care facility for persons with mental retardation. See, e.g., Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004). As discussed more fully above, HCB Waiver services are provided in home and community based settings. 29

15

Nevertheless, Defendants moved for summary judgment on any ICF/MR claims, so th e Court will decide the issue. As discussed above, Plaintiffs do not seek ICF/MR services. Additionally, Defendants discovered and adduced uncontroverted evidence that none of the N a m e d Plaintiffs sought ICF/MR placement. (Doc. # 195 4 n.2.) While it is not clear to the C o u rt that there are any claims in this Case that seek ICF/MR placement, to the extent P la in tif f s do seek placement in an ICF/MR institution, Defendants' Motion for Summary J u d g m e n t is due to be granted. D. Remaining Individual Claims P la in t i f f s ' proposed Subclass One contained persons who have been determined e lig ib le , but have not received services with reasonable promptness in violation of § 1396a(a)(8). The Court previously denied certification of this class because of problems with a d e q u a c y and numerosity. Susan J., 254 F.R.D. at 458-59, 459 n.26. The individual claims o f members of this putative subclass remain, however.1 6 Defendants mount numerous c h a lle n g e s to these claims in particular, and Plaintiffs have moved for summary judgment o n these claims as well. 1. Legal Framework T h e remaining individual claims seek remedy for violations of the reasonable p ro m p tn e ss requirement of § 1396a(a)(8). As discussed more fully in this Court's Class C e rtif ic a tio n Order, the Medicaid Act requires states provide some services and permits them

16

Nothing in this Section is intended to affect the claims of Subclasses Two and Three. 30

to provide other services. The latter group is referred to as "optional services," and the HCB W a iv e r programs are optional services. While it is true that the Waiver program is governed b y an agreement between the state and the federal government, "when a state elects to p ro v id e an optional service, that service becomes part of the state Medicaid plan and is s u b je c t to the requirements of federal law." Susan J., 254 F.R.D. at 451 (citing Doe v. Chiles, 1 3 6 F.3d 709, 714 (11th Cir.1998)); see also Boulet v. Cellucci, 107 F. Supp. 2d 61, 76 (D. M a s s . 2000) ("once a state opts to implement a waiver program and sets out eligibility re q u ire m e n ts for that program, eligible individuals are entitled to those services and to the a s s o c ia te d protections of the Medicaid Act"). Section 1396a(a)(8) provides: [ A state plan for medical assistance must] provide that all individuals wishing to make application for medical assistance under the plan shall have o p p o rtu n ity to do so, and that such assistance shall be furnished with re a s o n a b le promptness to all eligible individuals.

2. Discussion a . Finite and Discretionary D e f e n d a n ts first argue that "because participation in the HCB Waiver programs is b o th finite and discretionary, there is no entitlement either to participate in the Waiver p ro g ra m s or to receive financial reimbursement for any particular waiver services." (Doc. # 1 7 8 48.) The thrust of this argument is that Plaintiffs have no right to complain about not re c e iv in g medical assistance with reasonable promptness because they have no legitimate c la im of entitlement to such assistance under the Waiver. Defendants cite the report of their

31

expert, which contains the following language: The services and supports of all state HCB waiver programs, including those in Alabama, are not an entitlement for individuals just because they are eligible f o r Medicaid services. . . . [A] person must be fully enrolled in an HCBS w a iv e r program before he or she is entitled to receive services offered through th e waiver. Even then, the individual must have an assessed need for the s e rv ic e and the service must be determined necessary to assure his health and w e lf a re . (Doc. # 178 49) (quoting Doc. # 179 Ex. A, Affidavit of Cathy Anderson ¶ 24.) Defendants c o n tra st this with their characterization of Plaintiffs' position: an assertion "that everyone w h o is on the waiting list is entitled to an HCB Waiver slot, and that the State Defendants m u s t therefore unilaterally increase the cap on the HCB Waiver to provide unlimited f in a n c ia l reimbursements for everyone on that list." (Doc. # 178 50.) Defendants' argument s ta n d s on three legs: i. The Cap F irs t, Defendants argue that because of the existence of a legal cap on the number of e lig ib le Waiver participants, no one has a "right" to medical assistance under the Waiver.17 H o w e v e r, the cap on Waiver participation is "simply a constraint on eligibility" and does not re lie v e Defendants of their statutory obligations with respect to individuals who would not e x c e e d the cap and otherwise meet the eligibility requirements. Susan J., 254 F.R.D. at 454.

The cap itself is clearly proper. See 42 U.S.C. §§ 1396n(c)(9), 1396n(c)(10); 42 C.F.R. § 441.303(f)(6) ("The State must indicate the number of unduplicated beneficiaries to which it intends to provide waiver services in each year of its program. The number will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment."); Mandy R. v. Owens, 464 F.3d 1139, 1142 (10th Cir. 2006); see also Susan J., 254 F.R.D. at 454 n.12. 32

17

"Individuals who apply after the cap has been reached are not eligible . . . . [T]he eligible in d iv id u a ls under the cap are entitled to waiver services. In short, the cap does not support th e defendants' position that the state has total discretion in providing waiver services." Id. (quoting Boulet, 107 F. Supp. 2d at 77-78). Therefore, the reasonable promptness p ro v is io n applies to medical assistance if an individual can prove that he or she is entitled to a vacant slot or is allocated a slot and the individual is eligible for the assistance, but not w h e n a person meets the preliminary eligibility requirements and a slot is not available. Id. Eligible individuals under the cap are entitled to medical assistance under the applicable W a iv e r and to the provision of such assistance with reasonable promptness. T h e re f o re , Defendants' argument is not fatal to Plaintiffs' claim, because the cap m e r e l y limits the eligible persons to those who (1) meet the preliminary requirements for p a rtic ip a tio n in the HCB Waiver programs, and (2) are entitled to one of the lawfully limited n u m b e r of Waiver slots that exist.1 8 The import of this holding is not, as Defendants assert, th a t no one has a right to medical assistance when slots are available. To the contrary, some p e rs o n s do have a right to assistance and to provision of such assistance in compliance with th e requirements of the Medicaid Act. ii. Services are Limited S e c o n d , Defendants argue that the services compensable under the HCB Waivers are lim ite d . According to the uncontroverted affidavit testimony of Eranell McIntosh-Wilson, To be clear, even eligible individuals are only entitled to those services provided for under the controlling HCB Waiver documents, as detailed in the next subsection. 33
18

"the specific terms of Alabama's HCB Waivers have been negotiated between the Alabama M e d ic a id Agency and the federal Center for Medicaid and Medicare Services (CMS) p u rs u a n t to Section 1915(c) of the Social Security Act." (Doc. # 178 Ex. B ¶ 3.) This is in a c c o rd with the statutory requirements set out in 42 U.S.C. § 1396n(c). Once approved, the W a iv e r application becomes the controlling document. See 42 C.F.R. § 430.25(e)-(h); see a ls o (Doc. # 178 Ex. B ¶ 28.) As a result, "Alabama's HCB Waivers are limited in scope, b o th with respect to the array of reimbursable services and with respect to the number of e lig ib le recipients." (Doc. # 178 Ex. B ¶ 5.) With respect to the array of reimbursable s e rv ic e s , the MR Waiver is limited to those listed in a catalogue submitted with the affidavit o f Eranell McIntosh-Wilson.1 9 The services available under the LAH Waiver program are th e same, except that residential habilitation in a group home is not available under the LAH W a iv e r. According to Defendants' expert, Cathy Anderson, "[a] Person must be fully e n ro lle d in an HCBS Waiver program before he or she is entitled to receive services offered th r o u g h the Waiver. Even then, the individual must have an assessed need for the service a n d the service must be determined necessary to assure his or her health or welfare." (Doc. # 178 Ex A ¶ 24.) It is clear from the above that the statutory scheme that established the HCB Waiver

The Medicaid HCBS MR Waiver Service Catalog provides that the following services are available under the MR Waiver: personal care services, respite care, residential habilitation, day habilitation, prevocational services, supported employment services, environmental accessability adaptations, skilled nursing, specialized medical equipment and supplies, adult companion services, assistive technology, speech and language therapy, physical therapy, occupational therapy, behavior therapy, community specialist services, and crisis intervention. 34

19

programs envisioned programs of limited scope. See Susan J., 254 F.R.D. at 447-48, 455-56. In particular, the Waiver programs are limited in the variety of services offered through the W a iv e r program.2 0 Defendants' Motions are due to be granted to the extent they seek d is m is s a l of all or part of the claims of Plaintiffs who (1) seek services not provided for in th e documents that govern the terms of the HCB Waiver programs, and/or (2) cannot prove th a t they are one of the eligible recipients.2 1 Plaintiffs Motion is due to be denied it seeks the p ro v is io n of assistance to ineligible persons. iii. The Waiting List F in a lly, Defendants argue that the use of the waiting list is irrelevant to Plaintiffs' c la im s . Plaintiffs challenge the administration of the waiting list as violative of the Medicaid A c t's reasonable promptness requirement. They argue that Defendants have transgressed the d ic ta te s of the statute by allowing the waiting list to grow and allowing unserved persons to la n g u ish on the list. Defendants counter that the waiting list is entirely permissible because

The limitation on the number of persons served, i.e. the cap, was dealt with primarily in the previous subsection. As this Court previously held, "eligible persons . . . are those who (1) meet the requirements for participation in the HCB Waiver programs, and (2) are entitled to one of the lawfully limited number of waiver slots that exist. In other words, if a slot is not available, a person is not eligible, . . . even if that person otherwise meets the eligibility requirements." Susan J., 254 F.R.D. at 454. Plaintiffs claim that "it is undisputed that the defendants have already determined that at least ten of the eleven plaintiffs are eligible for the services at issue, [a]nd an issue of fact exists as to the eleventh plaintiff, Beverly W." (Doc. # 187 at 24.) Defendants have determined that at least ten of the eleven plaintiffs meet the preliminary eligibility requirements for participation in the HCB Waiver programs, not that each of the ten is entitled to one of the lawfully limited number of Waiver slots. 35
21

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the number of eligible recipients far outstrips the number of available Waiver slots. The Court agrees with Defendants that the waiting list is an entirely permissible way to manage the significant population of persons who are otherwise eligible for medical a s s is ta n c e under the Waivers, but for whom no slot is available.2 2 As discussed in the p re c e d in g sections, the Waiver statute provides eligible individuals in Alabama with an e n title m e n t to medical assistance under the Waiver program and affords them the protections o f the Medicaid Act with respect to such assistance. Susan J., at 454 (citing Chiles, 136 F.3d a t 714). Only those persons who both (1) meet the preliminary eligibility requirements for p a rtic ip a tio n in the Waiver program, as indicated by their presence on the waiting lists, and ( 2 ) are entitled to one of the few Waiver slots are entitled to the provision of medical a s s is ta n c e with reasonable promptness. Id. The many persons who are on the waiting list, w h o evidently meet the preliminary eligibility requirements, but who are not entitled to one o f the few available Waiver slots are not entitled to the provision of medical assistance with re a s o n a b le promptness. See id. Therefore, Plaintiffs who are not either actually in a Waiver s lo t or entitled to one have no legal basis to support their claim for the provision of assistance w ith reasonable promptness. Moreover, Alabama's use of a waiting list is not unusual. According to the uncontroverted testimony of Defendants' expert, it is "not unusual for states to have waiting lists for services." (Doc. # 178 Ex. A ¶ 21.) Therefore, the Court is satisfied
22

This not to say that placing an individual on the waiting list when they meet the preliminary eligibility requirements and are entitled to a Waiver slot is not a violation of such an individual's right to the provision of medical assistance with reasonable promptness under the Medicaid Act. See Boulet, 107 F. Supp. 2d at 79-80. 36

that the existence of the waiting list is immaterial. Defendants' Motion is due to be granted to the extent Plaintiffs seek alterations to the administration of the waiting list and to the e x te n t Plaintiffs claim an entitlement to the provision of medical assistance with reasonable p ro m p tn e ss but are not either in a Waiver slot or entitled to on