Boyd v. Steckel

Filing 33

MEMORANDUM OPINION AND ORDER: It is ORDERED that the 15 Motion for a Preliminary Injunction is DENIED as further set out in the memorandum opinion and order. Signed by Hon. Chief Judge Mark E. Fuller on 11/12/2010. (dmn)

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-TFM Boyd v. Steckel Doc. 33 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J O N A T H A N PAUL BOYD P la in tif f , v. CAROL H. STECKEL, in her official c a p a c ity as Commissioner of the Alabama M e d ic a id Agency, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) ) C a s e No.: 2:10-cv-688-MEF (WO PUBLISH) M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Amended Motion for Preliminary Injunction a n d Expedited Hearing, (Doc. # 15), filed on September 29, 2010 by Plaintiff Jonathan P a u l Boyd ("Boyd"). The Court has carefully considered all submissions and argument in s u p p o rt of and in opposition to the motion and has convened a hearing on the matter. For th e reasons set forth below, the motion for a preliminary injunction is due to be DENIED. J U R I S D I C T IO N AND VENUE T h is Court has jurisdiction over the case pursuant to 28 U.S.C. 1331 and 1 3 3 4 (a ). Declaratory and injunctive relief is authorized by 28 U.S.C. 2201 and 2202 a s well as Federal Rule of Civil Procedure 65. Venue is proper in this district pursuant to 2 8 U.S.C. 1391(b) because Defendant Carol H. Steckler, in her official capacity as C o m m is s io n e r of the Alabama Medicaid Agency ("Commissioner Steckel"), resides in th is district. Dockets.Justia.com FACTS 1 AND PROCEDURAL HISTORY O n September 29, 2010, Boyd sued Commissioner Steckel for alleged violations of T itle II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12132, as well as its im p le m e n tin g regulations, and violations of Section 504 of the Rehabilitation Act, 29 U .S .C . 794(a), and its implementing regulations. (Doc. # 14, at 1112, 57, 60). Specifically, Boyd alleges that Commissioner Steckel has failed to properly assess and p ro v id e the Medicaid services needed to permit Boyd to live in the community, as o p p o se d to the nursing home in which he resides. Id. at 1213, 58, 61. On September 2 9 , 2010, Boyd also filed an Amended Motion for Preliminary Injunction and Expedited H e a rin g . (Doc. # 15). This motion was granted to the extent that it sought an expedited h e a rin g . (Doc. # 17). On October 12, 2010, the United State of America filed a statement o f interest and brief in support of Boyd's motion for a preliminary injunction. (Doc. # 2 5 ). The hearing for the preliminary injunction motion was held on October 13, 2010. A. Medicaid T itle XIX of the Social Security Act of 1965 established Medicaid. 79 Stat. 343, a s amended, 42 U.S.C. 1396 et seq. "Medicaid is a joint [S]tate-[F]ederal funding p ro g ra m for medical assistance in which the Federal Government approves a [S]tate plan f o r the funding of medical services for the needy and then subsidizes a significant portion This recitation of facts is based on the allegations in the Amended Complaint, (Doc. # 14), and the evidence and testimony submitted by the parties in support of and in opposition to the motion for a preliminary injunction. 2 1 of the financial obligations the State has agreed to assume." Alexander v. Choate, 469 U .S . 287, 289 n.1 (1985). Medicaid is a voluntary program whereby the States need not p a rtic ip a te . Id. However, should a State choose to participate, then it "must comply with th e requirements of Title XIX and applicable regulations." Id. U n d e r the Medicaid Act, states may choose to operate home and community-based w a iv e r programs for individuals to avoid institutionalization. 42 U.S.C. 1396n(c). Pursuant to this section: T h e Secretary may by waiver provide that a State plan approved under this title m a y include as `medical assistance' under such a plan payment for part or all o f the cost of home or community-based services (other than room and board) a p p ro v e d by the Secretary which are provided pursuant to a written plan of c a re to individuals with respect to whom there has been a determination that b u t for the provision of such services the individuals would require the level o f care provided in a hospital or a nursing facility . . . the cost of which could b e reimbursed under the State plan. Id . 1396n(c)(1). Such waiver programs "are intended to provide the flexibility needed to enable States to try new or different approaches to the efficient and cost-effective d e liv e ry of health care services, or to adapt their programs to the special needs of p a rtic u la r areas or groups of recipients." 42 C.F.R. 430.25(b). However, these waiver p ro g ra m s must be cost-neutral in the aggregate--i.e. the cost of operating the waiver s ys te m must not exceed what the cost would be to provide Medicaid services without the w a iv e r program. 42 U.S.C. 1396n(c)(2)(D) ("[U]nder such [a] waiver the average per c a p ita expenditure estimated by the State in any fiscal year for medical assistance p ro v id e d with respect to such individuals does not exceed 100 percent of the average per 3 capita expenditure that the State reasonably estimates would have been made in that fiscal ye a r for expenditures under the State plan for such individuals if the waiver had not been g ra n te d . . . ."); see also 42 C.F.R. 441.302(e)(f). The Medicaid Act also provides that States may deviate from certain other M e d ic a id requirements. 42 U.S.C. 1396n(c)(3). For example, an approved waiver p ro g ra m may also include a waiver of the Medicaid requirements of "statewideness," " c o m p a ra b ility," and "income and resource rules applicable in the community." Id. More s p e c if ic a lly, under the applicable federal regulations, "the State may exclude those in d iv id u a ls [from waiver programs] for whom there is a reasonable expectation that home a n d community-based services would be more expensive than the Medicaid services the in d iv id u a l would otherwise receive." 50 Fed. Reg. 10,013 (Mar. 13, 1985). Similarly, th e State "can choose to provide home and community-based services to a limited group o f eligibles, such as the developmentally disabled" and need not "provide the services to a ll eligible individuals who require an ICF [intermediate care facility] or SNF [skilled n u rs in g facility] level of care." Id. T h e Medicaid statutes and regulations also provide for caps on the number of p e rs o n s served under a waiver program for a given year--that is, they "contemplate that S ta te waiver plans will limit the number of eligible participants in any year." (Doc. # 20, a t 23) (citing 42 U.S.C. 1396n(c)(9) ("In the case of any waiver under this subsection w h ic h contains a limit on the number of individuals who shall receive home or 4 community-based services, the State may substitute additional individuals to receive such s e rv ic e s to replace any individuals who die or become ineligible for services under the S ta te plan."); 42 C.F.R. 441.303(f)(6) ("The State must indicate the number of u n d u p lic a te d beneficiaries which it intends to provide waiver services in each year of its p ro g ra m . This number will constitute a limit on the size of the waiver program unless the S ta te requests and the Secretary approves a greater number of waiver participants in a w a iv e r amendment.") (emphasis added)). B . Alabama's Waiver Programs T h e State of Alabama ("Alabama") has chosen to participate in Medicaid and to p ro v id e certain waiver programs. (Doc. # 20, at 20). Currently, Alabama operates six w a iv e r programs with varying purposes, qualifying criteria, services provided, and e n ro llm e n t limits: (1) the Elderly & Disabled ("E&D") Waiver; (2) the Intellectual D is a b ilitie s ("ID") Waiver;2 (3) the Living at Home ("LAH") Waiver;3 (4) the State of A la b a m a Independent Living ("SAIL") Waiver; (5) the HIV/AIDs Waiver;4 and (6) the The ID Waiver (formerly known as the Mental Retardation ("MR") Waiver) is available only for persons with intellectual disabilities. (Doc. # 19 Ex. C, Chappelle Aff. 9). As such, it is inapplicable in the instant case. The LAH Waiver is available only for persons with intellectual disabilities. (Doc. # 19 Ex. C, Chappelle Aff. 9). As such, it is inapplicable in the instant case. The HIV/AIDS Waiver is available only for persons diagnosed with HIV, AIDS, and related illnesses. (Doc. # 19 Ex. C, Chappelle Aff. 10). As such, it is inapplicable in the instant case. 5 4 3 2 Technology Assisted ("TA") Waiver for Adults.5 Doc. # 20, at 2425; see also Doc. # 16 E x . D. The SAIL Waiver program provides numerous services for persons with specific m e d ic a l diagnoses, which includes quadriplegia. Doc. # 16 Ex. D. Such services include p e rs o n a l care, personal assistance service, environmental accessibility adaptations, m e d ic a l supplies, and assistive technology. Id. However, there are limitations on the e x te n t of such services. For example, "reimbursement for in-home personal care and a s s is ta n c e is limited to 25 hours per week." (Doc. # 19 Ex. C, Chappelle Aff. 13). Moreover, while personal care is covered to some extent under the SAIL waiver, "skilled n u rs in g care is not available at all under the SAIL Waiver . . . ." Id. The SAIL Waiver p ro g ra m is capped at 660 persons, although the record is unclear as to whether the p ro g ra m is full. T h e E&D Waiver program also provides numerous services "to individuals that w o u ld otherwise require the level of care available in an intermediate care facility." (Doc. # 16 Ex. D). Such services include case management, homemaker services, p e rs o n a l care, adult day health, and respite care (skilled and unskilled). Id. As with the S A IL waiver, there are limitations on the extent of these services. For example, "`skilled' The TA Waiver for Adults is "available only for persons who received private duty nursing services through the EPSDT Program under the Medicaid State Plan prior to turning 21 years of age." Doc. # 19 Ex. C, Chappelle Aff. 11. Because there is no evidence on the record establishing whether Boyd received such services, the TA Waiver for Adults is inapplicable at this juncture. Id. 6 5 care (provided by a nurse or other health-care professional), is not available on a regular b a s is under the E&D Waiver, but may only be provided as respite care (relief for a re g u la r caregiver)." (Doc. # 19 Ex. C, Chappelle Aff. 14). Additionally, this respite c a re is limited to 720 hours per year. Although there is no hourly limit on homemaker s e rv ic e s , personal care and adult companion services, these "would not include a d m in is tra tio n of medicine . . . ." Id. The E&D Waiver is capped at 9,205 people and has re m a in e d at the cap since 2008. (Doc. # 16, at 5). Additionally, according to the Kaiser C o m m is s io n , there are over 7,000 persons on the E&D Waiver waiting list. Id. C . Boyd's Facts According to the Amended Complaint, Boyd is a 34 year-old man who became p a ra lyz e d after an accident in October of 1995, which broke his spine and rendered him te tra p le g ic -- i.e . leaving him without the use of his arms and legs. (Doc. # 14, at 1, 12; D o c . # 20, at 8). Following his accident, Boyd lived with his mother and stepfather for e le v e n years, with his mother acting as his primary care giver. (Doc. # 14, at 1, 3; Doc. # 20, at 8). During this time, Boyd "was eligible for and received community-based M e d ic a id waiver services to complement the care being provided by his mother." (Doc. # 1 4 , at 1, 3; Doc. # 20, at 8). However, after his mother was no longer able to provide th e required care, Boyd entered the nursing facility--Chandler Health and Rehab Center in Alabaster, Alabama--where he has lived since December of 2006. (Doc. # 14, at 1, 3 ; Doc. # 20, at 8). Because community-based services and reimbursement for nursing 7 home care are mutually exclusive alternatives, the community-based Medicaid waiver s e rv ic e s were discontinued when Boyd entered the nursing facility. (Doc. # 14, at 4, 19; D o c . # 20, at 89). C u rre n tly, Boyd is eligible for and receives Medicaid, which pays for his nursing h o m e services. (Doc. # 14, at 4, 20; Doc. # 20, at 9). For ambulation, Boyd uses a m o to riz e d wheelchair which he controls with a "sip and puff" device. (Doc. # 14, at 4, 2 1 ). At the nursing home, Boyd "receives assistance with his activities of daily living, in c lu d in g assistance with taking medications, bathing, dressing, toileting, feeding, and tra n s f e rrin g from and to his bed and into and out of his wheelchair." Id. at 45, 22. He a ls o receives assistance with basic household chores, for his bowel program (twice w e e k ly), and for changing his catheter (twice monthly). Id. After his accident, Boyd returned to college and graduated in 2007 with a bachelor o f fine arts from the University of Montevallo. (Doc. # 14 at 5, 25; Doc. # 20, at 9). His nursing home is 13 miles from the university. (Doc. # 14, at 5, 27). While earning h is bachelor's degree, Boyd took public transportation (ClasTran) to and from classes. (Doc. # 14, at 5, 27; Doc. # 20, at 9). The Alabama Department of Rehabilitation S e rv ic e s ("Rehab Services") paid for this use of ClasTran. (Doc. # 20, at 9). Boyd a lle g e s that this public transportation was, and still is, available only until 3:30p.m. (Doc. # 14, at 56, 27). In 2010, Boyd was admitted to a University of Montevallo graduate program 8 seeking a Master's degree in community counseling. (Doc. # 14, at 5, 26; Doc. # 20, at 9 ). He began this program in September of 2010. (Doc. # 14, at 5 26). Because the g ra d u a te program offers classes only at night, Boyd alleges that he is unable to take the C la s T ra n and must "rely upon and pay a nursing home maintenance worker all of his s c h o la rs h ip funds ($500 for the semester) to transport him to and from campus for his c la s s e s ." Id. at 6, 28; see also Doc. # 20, at 9.6 Additionally, Boyd claims that he b o rro w s money from his brother to pay others $20 per trip for six additional trips per s e m e s te r, which are needed in order to complete required assignments. (Doc. # 14, at 6, 2 9 ). Essentially, Boyd wishes to receive community-based services necessary for him to liv e in the community, to be able to take more than two classes per semester towards his g ra d u a te degree, and to enjoy other University functions.7 Id. 3031. He has located re n ta l housing near campus which meets his accessibility needs but is unable to secure the re n ta l unless he knows that the necessary community-based services will be provided. Id. Commissioner Steckel argues that Boyd's "assertion that he has been `forced' into this position is disingenuous, however, as he failed to request assistance from Rehab Services--which has a history and current practice of assisting him with transportation." (Doc. # 20, at 10). At the October 13, 2010 hearing, Boyd admitted that he was satisfied with his current transportation arrangements. However, he also claimed that these arrangements could not continue past the spring semester, after which he alleges that he will lose the $500 per semester scholarship he currently uses to pay the nursing home employee. Specifically, Boyd contends that he "is experiencing an increase in time, effort and expense for him to complete his graduate degree and is being prevented from participating in aspects of college life enjoyed by other graduate students." Id. at 6, 31. He is currently taking two nighttime classes for his graduate program, but he would like to take four. Id. 30. Boyd also points out that he is unable to attend other University functions such as athletic events, author readings, theatrical performances, and musical performances. Id. 9 7 6 at 67, 32.8 Boyd also complains of the conditions and atmosphere of the nursing h o m e . Id. at 78, 3438.9 B o yd applied for a Medicaid waiver program in October of 2008 and has been on a w a itin g list for services since that time. Id. at 8, 41. He also "recently renewed his re q u e s t for services by asking [Commissioner Steckel] to make reasonable modifications to her waiver programs and provide him with waiver services including 10 hours per day o f assistance with activities of daily living, assistance with his bowel program twice per w e e k , assistance with changing his catheter twice per month and necessary equipment and Because "accessible rental housing is difficult to locate and secure," Boyd alleges that he "needs to act as soon as possible in order to secure rental housing." Id. at 78, 32. Specifically, Boyd alleges that, since he moved into the nursing home in December of 2006, he has had five decubitus ulcers ("pressure sore[s]"). Id. at 7, 34. In the eleven years when his mother was his primary care giver, he only had one. Id. Furthermore, Boyd contends that he "must return to the facility by a specific time in the evening, which limits his socializing with friends and having overnight stays with friends." Id. 35. Because he is a Medicaid resident in a nursing home, only $30 of his $897 monthly Social Security Disability check is available for his personal expenses, again limiting his ability to socialize or have snacks. Id. He claims that "virtually all of the [other] residents are disabled and most are much older than [him]" taking away the "simple pleasure of being around people his own age who have similar interests and activities." Id. at 8, 37. As such, he does not take part in many of the nursing home's activities because they are "geared toward octogenarians." Id. He also points out that he "must eat when and what the facility provides and must transfer to and from his bed, shower, toilet, and dress on the staff's schedule." Id. at 7, 36. To accommodate others with their morning routines, the nursing home staff often pushes Boyd's back until 11a.m. or later. Id. Thus, he contends that he "is unable to get out of bed until 11a.m. unless he schedules his activities a few days in advance." Id. at 78, 36. This also applies to his evening routine. Id. at 8, 36. Finally, Boyd complains that "[t]here is little or no privacy" in the nursing home, where "[t]here is constant noise, screaming and crying." Id. 38. He claims that the nursing home residents "are often not dressed and are exposed" and "[t]here is a pervasive unpleasant disinfectant odor." 10 9 8 care supplies." Id. at 89, 41. Because Commissioner Steckel has failed to provide s u c h community-based services, Boyd alleges that he is forced to "continue to reside in a M e d ic a id -f u n d e d nursing facility instead of the community." 10 D IS C U SS IO N A . Preliminary Injunction Standard T h e purpose of a typical preliminary injunction is prohibitive in nature in that it is " `m e re ly to preserve the relative positions of the parties until a trial on the merits can be h e ld .'" United States v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983) (quoting Univ. of. T e x . v. Camenisch, 451 U.S. 390, 395 (1981)); see also Mercedes-Benz U.S. Int'l, Inc. V. C o b a s y s , LLC, 605 F. Supp. 2d 1189, 1196 (N.D. Ala. 2009) ("Typically, a preliminary in ju n c tio n is prohibitory and generally seeks only to maintain the status quo pending a tria l on the merits.") (citations omitted). The burden on the party seeking a typical, p ro h ib itiv e preliminary injunction is particularly high. All Care Nursing Serv., Inc. v. B e th e s d a Mem. Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989) ("Preliminary in ju n c tio n s are issued when drastic relief is necessary to preserve the status quo.") (citing C a te v. Oldham, 707 F.2d 1176 (11th Cir. 1983); Bannum, Inc. v. City of Fort L a u d e rd a le , Fla., 657 F. Supp. 735 (S.D. Fla. 1986)), cert. denied, Quality Prof'l N u r s in g , Inc. v. Bethesda Mem'l Hosp., Inc., 526 U.S. 1016 (1999); see also Lambert, 6 9 5 F.2d at 539 ("[A preliminary injunction's] grant is the exception rather than the rule, 10 He describes this as being "unnecessarily institutionalized." Id. at 8, 4041. 11 and plaintiff must clearly carry the burden of persuasion.") (emphasis added). However, w h e re , as here, "a preliminary injunction goes beyond the status quo and seeks to force o n e party to act, it becomes a mandatory or affirmative injunction and the burden placed o n the moving party is increased." Mercedes-Benz, 605 F. Supp. 2d at 1196 (citing E x h ib ito rs Poster Exchange, Inc. v. Nat'l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir. 1 9 7 1 ), reh'g denied, 520 F.2d 943 (5th Cir. 1975), cert. denied, 423 U.S. 1054 (1976)).11 F o r such mandatory injunctions, relief should be granted "[o]nly in rare instances." Harris v. Wilters, 596 F.2d 678, 680 (5th Cir. 1979) (emphasis added); see also M e r c e d e s -B e n z , 605 F. Supp. 2d at 1196. A preliminary injunction is "an extraordinary and drastic remedy" that cannot be g ra n te d unless the moving party clearly establishes the following four prerequisites: (1 ) it has a substantial likelihood of success on the merits; (2) irreparable in ju ry will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may c a u s e the opposing party; and (4) if issued, the injunction would not be a d v e rs e to the public interest. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc), reh'g denied, 234 F.3d 1 2 1 8 (11th Cir. 2000) . If the moving party cannot clearly establish any one of the four re q u ire d elements, then a preliminary injunction should not be granted. Bethel v. City of M o n tg o m e r y , No. 2:04cv743-MEF, 2010 U.S. Dist. LEXIS 24949 at *1112 (M.D. Ala. Unless subsequently overruled, decisions of the old Fifth Circuit before October 1, 1981 are binding on the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 12 11 Mar. 2, 2010) ("A preliminary injunction is an extraordinary and drastic remedy which s h o u ld not be granted unless the movant clearly carries the burden of persuasion as to all p re re q u is ite s ." ) (emphasis in original) (Coody, J.) (citations omitted); see also Church v. C ity of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994) (holding that the moving party's f a ilu re to demonstrate a substantial likelihood of success on the merits defeated the p a rty's motion for a preliminary injunction, regardless of the party's ability to establish a n y of the other elements). Because this Court finds that Boyd has failed to establish a s u b s ta n tia l likelihood of success on the merits sufficient justify the use of such an e x tra o rd in a ry remedy as a mandatory preliminary injunction, this motion is due to be D E N IE D . B . Substantial Likelihood of Success on the Merits i. The Statutes and Regulations S e c tio n 504 of the Rehabilitation Act and Title II of the ADA contain similar p ro v is io n s and are enforced by similar implementing regulations. Section 504 provides, in part, that "[n]o otherwise qualified individual with a disability in the United States . . . s h a ll, solely by reason of his or her disability, . . . be subjected to discrimination under any p ro g ra m or activity receiving Federal financial assistance . . . ."1 2 29 U.S.C. 794(a). Its Neither party disputes "that the Federal Government funds a substantial portion of what Alabama spends on Medicaid." (Doc. # 20, at 18); see also Alexander, 469 U.S. at 301 ("Medicaid is a joint state-federal funding program for medical assistance in which the Federal Government approves a state plan for the funding of medical services for the needy and then subsidizes a significant portion of the financial obligations the State has agreed to assume."). 13 12 implementing regulation states that "[r]ecipients shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.F.R. 41.51(d). Finally, Section 504 contains a fundamental-alteration defense for th e recipient of federal funds. Id. 41.53 ("A recipient shall make reasonable a c c o m m o d a tio n to the known physical or mental limitations of an otherwise qualified h a n d ic a p p e d applicant or employee unless the recipient can demonstrate that the a c c o m m o d a tio n would impose an undue hardship on the operation of its program."). Similarly, Title II of the ADA also prohibits discrimination in the provision of p u b lic services. It provides, in part, that "no qualified individual with a disability shall, b y reason of such disability, . . . be subjected to discrimination by any [public] entity." 42 U .S .C . 12132. Under Title II, "Congress instructed the Attorney General to issue re g u la tio n s implementing provisions of Title II, including 12131's discrimination p ro s c rip tio n ." Olmstead v. L.S. by Zimring, 527 U.S. 581, 591 (1999) (citing 42 U.S.C. 1 2 1 3 4 (a )). The Olmstead Court further explained: O n e of the 504 regulations requires recipients of federal funds to `administer p ro g ra m s and activities in the most integrated setting appropriate to the needs o f qualified handicapped persons.' 28 CFR 41.51(d) (1998). As Congress in s tru c te d , the Attorney General issued Title II regulations . . ., including one m o d e le d on the 504 regulation just quoted; called the `integration re g u la tio n ,' it reads: `A public entity shall administer services, programs, and a c tiv itie s in the most integrated setting appropriate to the needs o f qualified individuals with disabilities.' 2 8 C.F.R 35.130(d) (1998) Id . at 59192. Like 504, Title II of the ADA provides for a fundamental-alteration 14 defense. 28 C.F.R. 35.130(b)(7) ("A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid d is c rim in a tio n on the basis of disability, unless the public entity can demonstrate that m a k in g the modifications would fundamentally alter the nature of the service, program, or a c t i v i t y. " ) . Indeed, Congress stated in the ADA that "[t]he remedies, procedures, and rights s e t forth in section 505 of the Rehabilitation Act of 1973 shall be the remedies, p ro c e d u re s , and rights this title provides to any person alleging discrimination on the b a s is of disability . . . ." 42 U.S.C. 12133. "Because the same standards govern d is c rim in a tio n claims under the Rehabilitation Act and the ADA, [this Court will] discuss th o s e claims together and rely on cases construing those statutes interchangeably." Allmond v. Akal Sec. Inc., 558 F.3d 1312, 1316 n.3 (11th Cir. 2009), reh'g en banc d e n ie d , 347 Fed. Appx. 555 (11th Cir. 2009), cert. denied, 130 S. Ct. 1139 (2010). ii. Analysis T h e Supreme Court's fragmented decision1 3 in Olmstead remains the seminal case o n the ADA's--and therefore the Rehabilitation Act's--anti-discrimination provision. In The Olmstead decision consisted of a majority of five justices--Justices Ginsburg, O'Connor, Souter, and Breyer--joining in Parts I, II, and III.A. However, only a plurality of four--Justices Ginsburg, O'Connor, Souter, and Breyer--joined in part III.B, which is the main focus of the instant case. Furthermore, Justice Stevens filed an opinion concurring in part and concurring in the judgment. Justice Kennedy filed an opinion concurring only in the judgment, in which Justice Breyer joined as to Part I. Finally, Justice Thomas dissented, joined by Justices Rehnquist and Scalia. 15 13 Olmstead, the disabled persons were two women with mental illnesses--schizophrenia a n d a personality disorder, respectively. 527 U.S. at 593. Both women were voluntarily c o n f in e d for treatment in a Georgia hospital's psychiatric unit. Id. Eventually, their tre a tin g psychiatrists concluded that one of the community-based programs would be a p p ro p ria te to meet their treatment needs. Id. However, after they remained in s titu tio n a liz e d , they sued the State under Title II of the ADA, alleging "that the State's f a ilu re to place [them] in a community-based program, once [their] treating professionals d e te rm in e d that such placement was appropriate, violated, inter alia, Title II of the A D A ." Id. at 59394. The women requested, amongst other forms of relief, that "the S ta te place [them] in a community care residential program, and that [they] receive tre a tm e n t with the ultimate goal of integrating [them] into the mainstream of society." Id. a t 594.14 Procedurally, the District Court granted partial summary judgment in favor of the women, holding that the failure to provide community-based services violated Title II of the ADA. Olmstead, 527 U.S. at 954. The District Court also rejected the State's argument that the failure to provide community-based services was "by reason of" lack of funds, not the women's disabilities. Id. The court concluded that "unnecessary institutional segregation of the disabled constitutes discrimination per se, which cannot be justified by lack of funding." Id. Finally, the District Court rejected the State's fundamental-alteration defense--namely that it was already using all of its funds to provide services to other disabled persons--noting that the State already provided services of the kind which the women sought and that the provision of such services to the women would cost considerably less than institutionalization. Id. at 595. The Eleventh Circuit affirmed the judgment, but remanded for reconsideration of the State's lack-of-funds defense. Id. The appeals court held that, when the treating physician finds community-based services appropriate to meet the needs of a disabled person, then the State must provide such services under the ADA. Id. Absent such a finding, the Eleventh Circuit held that the ADA does not require deinstitutionalization. Id. However, the duty to deinsitutionalize was "not absolute" because "fundamental alterations [to the State's Medicaid program] were not demanded." Id. As such, the Eleventh Circuit remanded so that the State could attempt to prove 16 14 a. Determining Qualification for Community-Based Services: the O lm s te a d Majority T h e majority opinion in Olmstead addressed only two issues: (1) whether the w o m e n were discriminated against "by reason of" their disability and (2) whether d is c rim in a tio n under the ADA required a showing that the State treated similarly situated in d iv id u a ls outside of the protected class differently. Id. at 598. With regards to the s e c o n d issue, the Court merely stated that it was "satisfied that Congress had a more c o m p re h e n s iv e view of the concept of discrimination advanced in the ADA." Id. As to whether there was discrimination "by reason of" disability, the Court e m p h a s iz e d that the ADA specifically identifies "`segregation' of persons with d is a b ilitie s `as a form of discrimination.'" Id. at 600 (citing 42 U.S.C. 12101(a) (" [ H ]is to ric a lly, society has tended to isolate and segregate individuals with disabilities, a n d , despite some improvements, such forms of discrimination against individuals with d is a b ilitie s continues to be a pervasive social problem."); Id. 1201(a)(5) ("[I]ndividuals w ith disabilities continually encounter various forms of discrimination, including . . . s e g re g a tio n ." )). Thus, the Court held that "unjustified institutional isolation of persons w ith disabilities is a form of discrimination." Id. This holding reflected "two evident ju d g m e n ts:" (1) that unnecessary institutional isolation "perpetuates unwarranted a s s u m p tio n s that persons so isolated are incapable or unworthy of participating in that "the additional expenditures necessary to treat [the women] would be unreasonable given the demands of the State's mental health budget." Id. 17 community life" and (2) that such confinement "severely diminishes everyday life a c tiv itie s of individuals, including family relations, social contacts, work options, e c o n o m ic independence, educational advancement, and cultural enrichment." Id. at 6 0 0 0 1 . The Court further noted that discrimination also existed because disabled p e rs o n s "must, because of their disabilities, relinquish participation in community life th e y could enjoy given reasonable accommodations" in order to "receive needed medical s e rv ic e s " whereas non-disabled persons need not make the same sacrifice. Id. at 601. H o w e v e r, the Court also stressed that the ADA does not require d e in s titu tio n a liz a tio n when the person would be incapable of managing or benefitting f ro m it. Id. at 60102 ("[N]othing in the ADA or its implementing regulations condones te rm in a tio n of institutional settings for persons unable to handle or benefit from c o m m u n ity settings."). Thus, as the Court stated: T h e State generally may rely on the reasonable assessments of its own p ro f e s sio n a ls in determining whether an individual `meets the essential e lig ib ility requirements' for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a patient from th e more restrictive setting. See 28 C.F.R. 35.130(d) (public entity shall a d m in is te r services and programs in "the most integrated setting appropriate to the needs of the qualified individuals with disabilities") (emphasis added)); c f. School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 288, 94 L.Ed. 2d 307, 1 0 7 S. Ct. 1123 (1987) ("Courts normally should defer to the reasonable m e d ic a l judgments of public health officials."). Id . at 602 (emphasis added). Because there was no genuine dispute regarding the q u a lif ic a tio n s of the women for community-based services--indeed, the State's own p ro f e ss io n a ls determined that such services would be appropriate--the Court found 18 discrimination in the failure to deinstitutionalize. Id. Here, this Court finds that Boyd cannot establish a substantial likelihood of s u c c e s s at this early juncture as to whether he is qualified for community-based services. In his brief in support of the summary judgment motion, Boyd addresses Olmstead's h o ld in g that "`unjustified isolation . . . is properly regarded as discrimination based on d is a b ility.'" (Doc. # 16, at 10) (quoting Olmstead, 527 U.S. at 597). He then goes on to a rg u e that being in a nursing home severely limits his everyday life activities. Id. at 1 0 1 3 . However, the key in Olmstead is that the institutionalization must be unjustified a n d unnecessary. 527 U.S. at 596597. Hence, the Olmstead majority required a s h o w in g that the women qualified for community-based services--i.e. that communityb a s e d services were appropriate for them.1 5 Id. at 60203. This burden was met in that The Olmstead Court's language on this issue is somewhat confusing, since the Medicaid statute refers a "qualified individual with a disability," which is "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for receipt of services or the participation in programs or activities provided by the public entity." 42 U.S.C. 12131(2). In its brief in support of Boyd's preliminary injunction motion, the United States Department of Justice ("DOJ") contends that Commissioner Steckel's argument on Boyd's qualifications "conflates the question of eligibility with the question of whether the relief sought is a reasonable modification." (Doc. # 25 at 12). However, a closer reading of Olmstead reveals that the Court's requirement of being qualified for community-based services means that the services are appropriate to meet the individual's needs. 527 U.S. at 602 ("The State generally may rely on the reasonable assessments of its own professionals in determining whether an individual `meets the essential eligibility requirements' for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting.") (emphasis added) (citing 28 C.F.R. 35.130(d) (public entity shall administer services and programs in "the most integrated setting appropriate to the needs of the qualified individuals with disabilities") (emphasis added by the Supreme Court)). Otherwise, the citation to the integration provision and the emphasis on the appropriateness language would be unnecessary and irrelevant. Additionally, a contrary 19 15 case because neither party disputed it. Id. In the instant case, Boyd has declared what his needs would be should he be p ro v id e d with community-based services. Specifically, he states that he will require "ten h o u rs per day of assistance with activities of daily living, assistance with his bowel p ro g ra m twice weekly, assistance with replacement of his catheter twice monthly and n e c e s s a ry equipment and care supplies." (Doc. # 16, at 14). He also asserts that C o m m is s io n e r Steckel "does not dispute that Plaintiff Boyd is a qualified person with a d is a b ility who meets the eligibility requirements for Alabama's Medicaid nursing home `le v e l of care' as well as for its waiver and Medicaid programs." Id. at 7. In response, Commissioner Steckel admits that Boyd is eligible for nursing home le v e l of care but argues that "the issue of whether [Boyd] is qualified for Medicaid W a iv e r services, insofar as the ADA and Rehab[ilitation] Act define that term, is c o n te s te d ." (Doc. # 20, at 52 n.31). Commissioner Steckel has put evidence before this C o u rt in the form of an affidavit by Dr. Robert Moon, ("Dr. Moon"), Medical Director a n d Deputy Commissioner of Health Systems for the Alabama Medicaid Agency. (Doc. # 2 2 Ex. B). After reviewing Boyd's medical records, Dr. Moon contends that numerous interpretation would mean that a person who qualifies for Medicaid generally would then automatically qualify for community-based services as a "qualified individual with a disability" even if it were not the most appropriate setting for his needs. Such a result would be contrary to the integration provision's express language. See 28 C.F.R 35.130(d); 28 C.F.R. 41.51(d); see also Olmstead, 527 U.S. at 607 (holding that one element necessary for a State to be required to provide community-based services is that "the State's treatment professionals determine that such placement is appropriate") (emphasis added). 20 additional services would be needed to ensure that Boyd's needs are met. Id. 7. He also p o in ts to several of Boyd's past health issues, one of which required hospitalization. Id. 8 . Essentially, Dr. Moon states that more care and more expertise than that requested by B o yd would be needed in order to monitor for and remedy these health issues should they o c c u r again. C o m m is sio n e r Steckel is entitled to rely on Dr. Moon's assessment and conclude th a t the community-based services requested by Boyd are inappropriate for his needs. Olmstead, 527 U.S. at 602 ("The State generally may rely on the reasonable assessments o f its own professionals in determining whether an individual `meets the essential e lig ib ility requirements' for habilitation in a community-based program.").1 6 Thus, "[i]t w o u ld be inappropriate to remove [Boyd] from the more restrictive setting"--at least until B o yd can demonstrate, at summary judgment or trial, that Dr. Moon's assessment is u n re a s o n a b le or that he is still qualified for community-based services even under Dr. M o o n 's assessment.1 7 Id. Without more at this stage, this Court cannot find that Boyd Boyd himself has presented no evidence from a medical professional that supports his views of what his needed medical services would be the community setting. Instead, he merely states what he believes his needs would be and asserts that his treating physician at the nursing home supports his decision to move out. Even without the conflicting evidence presented by Dr. Moon, this Court could not find these bare assertions sufficient to prove that the requested community-based services would be appropriate to meet Boyd's needs. The DOJ contends that the fact that Boyd lived in the community for eleven years demonstrates that community-based services are appropriate for his needs. (Doc. # 25 at 12). However, the record before this Court does not contain sufficient information to determine (1) what services Boyd actually received while his mother was his primary caregiver; (2) whether those services alone would be enough without his mother acting as primary caregiver; (3) what additional services, if any, would be needed for Boyd to live in the community; and (4) whether 21 17 16 has established a substantial likelihood of proving his qualification for the communityb a s e d services requested--i.e. that they are appropriate to meet his needs.1 8 F u rth e rm o re , according to the federal regulations, Alabama is entitled to exclude in d iv id u a ls from waiver programs where "there is a reasonable expectation that home and c o m m u n ity-b a s e d services would be more expensive than Medicaid services the in d iv id u a l would otherwise receive." 50 Fed. Reg. 10,013. Attempting to prove that c o m m u n ity-b a s e d services are cheaper than nursing home care, Boyd points to data s h o w in g that "Alabama's Medicaid nursing home reimbursement is approximately $ 3 3 ,7 0 0 a year" whereas the "Medicaid waiver for home and community-based services Boyd's medical needs have changed since he lived in the community. On such a barren record, this Court cannot find that the fact that Boyd lived in the community for eleven years with a relative acting as primary caregiver, in and of itself, establishes that community-based services are appropriate for his needs now. In support of Boyd's motion for a preliminary injunction, the DOJ places much emphasis on a recent case from the Middle District of Florida. (Doc. # 25, at 6 n.6) (citing Haddad v. Arnold, No. 3:10-cv-00414-MMH-TEM (M.D. Fla. July 9, 2010)); see also id. at 11. In Haddad, the court issued a preliminary injunction requiring the State to provide communitybased services for a woman with quadriplegia. However, the facts of Haddad are easily--and pertinently--distinguishable from the instant case. In Haddad, the plaintiff pointed to a specific waiver, already in existence, which appeared to have open slots and provided the services requested by her. Haddad, at 27. The State did not dispute that she was qualified for that program. Id. Similarly, in Olmstead, the women qualified for a specific waiver program, in which slots were still available. 527 U.S. at 601. Here, Boyd has failed to establish which specific waiver, if any, already provides the services he requests. Even looking to the E&D Waiver that Boyd discussed briefly, he has failed to establish how it provides all of the services he requested and/or would need to live in the community. Indeed, Commissioner Steckel contends that none of the existing waivers covers the community-based services requested by Boyd. See Doc. # 20, at 64; see also Doc. # 19 Ex. C, Chappelle Aff. 515. She also specifically contends that the E&D Waiver does not cover the equipment requested by Boyd or the skilled care that Dr. Moon determined he would need. (Doc. # 19 Ex. C, Chappelle Aff. 14). Boyd has done nothing to rebut this evidence at this stage. 22 18 [under the E&D Waiver] is approximately $10,365." (Doc. # 16, at 5). Thus, Boyd c la im s that the use of community-based services saves Alabama and the federal g o v e rn m e n t approximately $22,000 a year. However, the data relied upon by Boyd refers to cost-neutrality in the "average per capita expenditures," not cost-neutrality as it relates to him in particular. (Doc. # 16 Ex. E, at 8). Commissioner Steckel contends that Boyd w o u ld need significantly more hours of care, more expertise in care, and more services a n d equipment then requested by Boyd or provided under the E&D Waiver in order to liv e in the community. Given this dispute, the evidence provided by Dr. Moon, and the la c k of any evidence from a medical professional supporting Boyd's contentions as to his n e e d s , Boyd cannot establish a substantial likelihood of success on the issue of whether it w o u ld be more cost-efficient to treat him in the community. b. The Fundamental-Alteration Defense: the Olmstead Plurality A d d itio n a lly, Boyd has failed to establish a substantial likelihood of success on the a lle g e d ly reasonable modifications requested by him. The plurality in Olmstead d is c u s se d the fundamental-alteration defense advanced by the State--namely, that all of its available funds were already being used to provide services to other disabled p e rs o n s -- a n d rejected the Court of Appeal's holding that the State must show that the c o s t of providing community care to the women was unreasonable in comparison to its e n tire mental health budget. 527 U.S. at 604. The plurality further clarified: [ S u c h an interpretation] would leave the State virtually defenseless once it is s h o w n that the plaintiff is qualified for the service or program she seeks. If the 23 expense entailed in placing one or two people in a community-based treatment p ro g ra m is properly measured for reasonableness against the State's entire m e n ta l health budget, it is unlikely that a State, relying on the fundamentala lte ra tio n defense, could ever prevail. . . . Sensibly construed, the f u n d a m e n ta l-a lte ra tio n component of the reasonable-modifications regulation w o u ld allow the State to show that, in the allocation of available resources, im m e d ia te relief for the plaintiffs would be inequitable, given the re s p o n s ib ility the State has undertaken for the care and treatment of a large and d iv e rs e population of persons with . . . disabilities. Id . at 60304 (emphasis added). Noting that deinstitutionalization might never be a p p ro p ria te for some persons, the plurality made clear that the ADA was not designed to e ra d ic a te institutions or to force deinstitutionalization on persons when it would be in a p p ro p ria te . Id. at 604 ("[T]he ADA is not reasonably read to impel States to phase out in s titu tio n s , placing patients in need of close care at risk. Nor is it the ADA's mission to d riv e States to move institutionalized patients into an inappropriate setting . . . ."). In emphasizing the "leeway" that must be given to States to "maintain a range of f a c ilitie s and to administer services with an even hand," the plurality highlighted the u n f a irn e s s associated with ordering a State to deinstitutionalize one person under certain c irc u m s ta n c e s . Id. at 605. For example, if a State demonstrates a "comprehensive, e f f e c tiv e ly working plan for placing qualified persons with . . . disabilities in less re s tric tiv e settings, and a waiting list that moved at a reasonable pace not controlled by th e State's endeavors to keep its institutions fully populated, the reasonable-modifications s ta n d a rd would be met." Id. at 60506. The plurality stated that courts could not allow o n e to essentially line-jump such a program for providing community based services. Id. 24 at 606 ("In such circumstances, a court would have no warrant effectively to order d is p la c e m e n t of persons at the top of the community-based treatment waiting list by in d iv id u a ls lower down who commenced civil actions."). Thus, the plurality concluded that a State is required to provide community-based s e rv ic e s for disabled persons when several factors are met: (1) "the State's treatment p ro f e ss io n a ls determine that such placement is appropriate"; (2) "the affected persons do n o t oppose such treatment"; and (3) "the placement can be reasonably accommodated, ta k in g into account the resources available to the State and the needs of others with . . . d is a b ilitie s ." Id. at 607. In addition to disputing the first element, Commissioner Steckel a rg u e s that Boyd's placement into the community would not be a reasonable a c c o m m o d a tio n , but rather would result in a fundamental alteration of Alabama's M e d ic a id system. See Doc. # 20, at 6165. Assuming that Boyd does qualify for an existing waiver program or for a modified w a iv e r program, this Court must be mindful of the limitations on the Olmstead plurality's d is c u s sio n of the fundamental-alteration defense. Boyd has averred that the E&D W a iv e r-- w h ic h Commissioner Steckel disputes whether Boyd is qualified to be u n d e r-- is capped at 9,205 people and has been at that cap since 2008. The DOJ contends th a t Alabama need only request an increase in the cap for a particular waiver program in o rd e r to comply with the ADA. (Doc. # 25, at 9). However, the Medicaid waiver p ro g ra m at issue in Olmstead had unused slots open. 527 U.S. at 601. Thus, the 25 Olmstead Court "did not consider whether a forced change in the waiver program's cap w o u ld constitute a fundamental alteration, because the [S]tate's program in that case was f a r from full." Arc. of Wash. State Inc. v. Braddock, 427 F.3d 615, 619 (9th Cir. 2005). A lth o u g h there is no applicable precedent from the Eleventh Circuit, other circuits h a v e addressed the issue of what would constitute a fundamental alteration, with s e e m in g ly conflicting results. For example, the First Circuit has stated that "in no event is th e [State] required to undertake measures that would pose an undue financial or a d m in is tra tiv e burden . . . or effect a fundamental alteration in the nature of the service." Toledo v. Sanchez, 454 F.3d 24, 39 (1st Cir. 2006) (emphasis added), cert. denied, Univ. o f P.R. v. Toledo, 549 U.S. 1301 (2007). On the other hand, the Third Circuit has held th a t budgetary constraints, "[t]hough clearly relevant," are alone "insufficient to establish a fundamental alteration defense." Pa. Prot. & Advocacy, Inc. v. Pa. Dep't of Pub. W e lfa re , 402 F.3d 374, 380 (3rd Cir. 2005) (citations omitted). Going further, the Ninth C irc u it has held that "[o]ne basis for finding a `fundamental alteration' would have been f o r the [S]tate to demonstrate that the remedy would force it `to apply for additional M e d ic a id waivers in order to provide community-based services" to the plaintiffs. Id. (q u o tin g Townsend v. Qausim, 328 F.3d 511, 519 (9th Cir. 2003)); see also Bruggeman v. B la g o je v ic h , No. 00 C 5392, 2004 U.S. Dist. LEXIS 276 at *15 (N.D. Ill. Jan. 8, 2004) (re je c tin g the argument that a court can consider the fact that the State can "request a d d itio n a l waiver slots to expand community-based services" as part of the State's 26 available resources because it is "beyond the scope of inquiry permissible under O lm s te a d " ). Requiring Alabama to seek more waiver slots could very well be a fundamental a lte ra tio n as the Ninth Circuit has held. Were this Court to grant a preliminary injunction h e re , nothing would prevent these other thousands of persons on the waiting lists from f ilin g lawsuits and being granted preliminary injunctions that essentially increase the w a iv e r cap. Cf. Long v. Benson, No. 4:08cv26-RH/WCS, 2008 WL 4571903 at *2 (N.D. F la . Oct. 14, 2008) ("[C]ommon sense and experience suggest there is nothing that can be d o n e for [the plaintiff] in a nursing home that cannot also be done in his apartment c o m p le x . Indeed, this is true of most if not all services provided in nursing homes for m o s t if not all patients."), affirmed, No.08-16261, 2010 WL 2500349 (11th Cir. June 22, 2 0 1 0 ). Such a result would hardly render preliminary injunctions a drastic and extreme re m e d y. Furthermore, it could potentially disrupt the entire balance of the Alabama M e d ic a id program, rendering the permissible caps illusory and requiring Alabama to p ro v id e community-based services to anyone and everyone who qualifies for a particular M e d ic a id waiver program or a modified version of that program.1 9 See Olmstead, 527 In Haddad, the Middle District of Florida considered similar arguments about the apparent conflict between the ADA and the Rehabilitation Act's anti-discrimination provisions--as applied by the Olmstead Court to prevent unnecessary institutionalization--and the Medicaid Act--which has a extensive regulatory and statutory scheme that permits capped waiver programs. Rejecting the State's contentions that there was a conflict, the court concluded that the plaintiff's claim "simply addresses the question of whether these Defendants, having opted to provide particular services via the mechanism of a Medicaid Waiver Program, may be required, under the ADA, to provide those same services to [the plaintiff] if necessary to avoid 27 19 U.S. at 604 ("[T]he ADA is not reasonably read to impel States to phase out institutions, p la c in g patients in need of close care at risk).20 A d d itio n a lly, nothing in the record establishes whether the waiting list "move[s] at a reasonable pace not controlled by [Alabama's] endeavors to keep its institutions fully p o p u la te d ." Olmstead, 527 U.S. at 60506. Simply stating that the waiver program is c a p p e d , which is permitted under the Medicaid Act, does not mean that this is anything b u t "a comprehensive, effectively working plan." Id. Although Alabama bears the b u rd e n of establishing the existence of such a program, this Court cannot find--on the re c o rd before it--that there is a substantial likelihood that Alabama will not be meet this imminent, unnecessary institutionalization." Haddad at 29. Because Haddad is factually distinguishable from this case--neither party disputed the plaintiff's qualifications for a particular waiver program which may have had open slots--this Court is not convinced that the issue is so narrow in the instant case, particularly given the Olmstead Court's holding that the courts must look at the big picture. 527 U.S. at 606 (requiring courts to consider whether "the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with . . . disabilities") (emphasis added). Thus, the potential impact of a grant of preliminary injunctive relief on the State's Medicaid program, and its waiver programs in particular, is an appropriate consideration. To be clear, this Court is not holding that the ADA and the Rehabilitation Act do not apply to a State who chooses to have Medicaid. However, this Court is not convinced that the intended interaction between the statutes is such that States who choose to have Medicaid and who choose to use optional waiver programs must therefore provide such community-based services to all persons who could benefit from them even when the waiver programs are full. For these same reasons, this Court finds that the balance of hardships does not favor granting a preliminary injunction and that it would not be in the public interest to grant such injunctive relief at this stage. Without a more developed record and an opportunity to more fully brief the issues, the grant of preliminary injunctive relief poses a grave risk of setting precedent which could undermine Alabama's Medicaid scheme, negatively impacting those other disabled persons receiving Medicaid funds. For these additional reasons, the motion is due to be DENIED. 28 20 burden. Cf. Townsend, 328 F.3d at 519 (reversing summary judgment for the State b e c a u s e the "current record [did] not provide [the court] with sufficient information to e v a lu a te the . . . fundamental alteration defense"). Finally, Boyd has not pointed to anything--nor can this Court find anything--that w o u ld distinguish him from the other thousands of persons on waiting lists for c o m m u n ity-b a s e d services under Alabama's Medicaid program. Permitting Boyd to jump a h e a d of others on the waiting list merely because he filed a lawsuit goes against the e x p re s s language of the Olmstead plurality, which this Court will not do. See Olmstead, 5 2 7 U.S. at 606 ("In such circumstances, a court would have no warrant effectively to o r d e r displacement of persons at the top of the community-based treatment waiting list by in d iv id u a ls lower down who commenced civil actions.") (emphasis added). Given the f ra g m e n te d nature of the Olmstead opinion, the lack of guidance as to what constitutes a f u n d a m e n ta l alteration, and the potential conflict between the Medicaid Act and the ADA a n d Rehabilitation Act, this Court cannot find that Boyd has established a substantial lik e lih o o d of success on the merits as to whether the relief he seeks would constitute a re a s o n a b le modification or a fundamental alteration. The uncertainty is heightened by the f a c t that Boyd seeks a mandatory preliminary injunction requiring him to satisfy a h e ig h te n e d burden.21 Even if his pleadings could be construed as seeking a typical prohibitory injunction, Boyd still cannot establish the substantial likelihood of success on the merits sufficient to upset the status quo in this case. 29 21 CONCLUSION F o r the foregoing reasons, it is hereby ORDERED that the motion for a p re lim in a ry injunction, (Doc. # 15), is DENIED. DONE this day of November, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 30

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