Royal v. Reese et al
Filing
12
OPINION and ORDER re Plaintiff's 3 Motion for Temporary Restraining Order. IT IS HEREBY ORDERED that Defendant Clyde L. Reese, III, in his official capacity as the Commissioner of the Georgia Department of Community Health, provide to Plain tiff Zachary Royal three (3) visits per day by personal support assistants or nursing assistants, and two (2) visits per day by a skilled nurse. The visits shall be coordinated with Plaintiff to occur at appropriate intervals during the day when P laintiff's father is at work. The skilled nurse visits also shall be coordinated with Plaintiff to occur at those times best suited to Plaintiff's medical needs, including as his treating physician may recommend. This order will remain i n effect until further notice from the Court. IT IS FURTHER ORDERED that Counsel for the parties shall file, by 5:00 p.m. on each Friday this Order is in effect, a report confirming that the visits required by this Order were made and the times t hat they occurred. These reports should include a general assessment of Plaintiff's condition during the preceding week. IT IS FURTHER ORDERED that if Plaintiff is required to be placed at a hospital or other facility a report shall be filed by counsel for the parties within 24 hours of such occurrence in which counsel shall advise the Court of the purpose of such treatment and its outcome. Signed by Judge William S. Duffey, Jr. on 1/7/2014. (dfb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ZACHARY ROYAL,
Plaintiff,
v.
1:14-cv-0025-WSD
CLYDE L. REESE, III, in his
Official Capacity as Commissioner
of the GEORGIA DEPARTMENT
OF COMMUNITY HEALTH, and
FRANK BERRY, in his Official
Capacity as Commissioner of the
GEORGIA DEPARTMENT OF
BEHAVIORAL HEALTH AND
DEVELOPMENTAL
DISABILITIES,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff Zachary Royal’s Motion for a
Temporary Restraining Order (the “TRO Motion”) [3].
I.
BACKGROUND
Late in the afternoon on January 3, 2014, Plaintiff Zachary Royal
(“Plaintiff”) filed a motion for a temporary restraining order seeking to enjoin
Defendant Clyde L. Reese, III, in his official capacity as the Commissioner of the
Georgia Department of Community Health, from reducing the nursing services
Plaintiff currently receives under the Medicaid program known as the Georgia
Pediatric Program (GAPP). Plaintiff has spinal muscle atrophy, SMA Type 1,
Werdnig-Hoffmann disease, a progressive and degenerative condition of the
central nervous system that results in neuromuscular deterioration.
In the TRO Motion, Plaintiff alleged that on January 6, 2014, when he
turned 22 years of age, he aged out of the Georgia Pediatric Program (GAPP), a
subprogram of Georgia’s Medicaid program available to individuals aged 21 and
younger. Under GAPP, Plaintiff received 84 hours a week of in-home, skilled
nursing services. As of January 7, 2014, Plaintiff is no longer eligible for services
available under the GAPP subprogram but is eligible for services under the
Medicaid Independent Care Waiver Program (ICWP). ICWP provides home- and
community-support and services for adults with disabilities who would otherwise
be cared for in an institution. Plaintiff alleges that the ICWP program offers only
personal support services and while it provides for skilled nursing visits, they are
not at the same continuous-care level he was receiving under GAPP. Plaintiff
claims the level of care available to him under ICWP is insufficient to provide him
adequate medical care in light of his condition.
2
Plaintiff further alleges that he applied for the Comprehensive Supports
Waiver Program (COMP), but that Defendants determined that he was ineligible
for services under COMP. Under COMP, Plaintiff asserts he would continue to
receive the same in-home, skilled nursing care that he currently receives under
GAPP.
Plaintiff contends that Defendants illegally denied Plaintiff entry into COMP
and, further, that the more limited nursing care that Defendants propose under
ICWP will cause Plaintiff’s condition to worsen and likely will result in his
hospitalization. Plaintiff argues that this institutionalization violates Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section
504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibit the discrimination
against individuals with disabilities, including the provision of public services in
segregated settings.
At around 5:00 p.m. on January 3, 2014, the Court conducted a hearing on
the TRO Motion. Although Plaintiff’s counsel had left one or more messages, late
in the afternoon on January 3, 2013, to advise Defendants he had filed the TRO
Motion and had requested an immediate hearing, Defendants did not receive these
notices. The Court, through its own efforts, was able to contact counsel for
Defendants and arranged for counsel for the Defendant to participate in the
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5:00 p.m. hearing by telephone. During the hearing, counsel for Defendants stated
the Defendants had not received or reviewed the TRO Motion and wanted to be
heard on the motion. The Court, concluding that the Defendants were entitled to
be heard, reset the hearing for 3:00 p.m. on January 6, 2014.
At the January 6, 2014, hearing, Defendant and Plaintiff acknowledged that
the state Medicaid plan authorized up to fifty (50) home health skilled nursing
visits and that Plaintiff is eligible for additional skilled nursing visits under an
IWCP waiver. In addition, Plaintiff has the option to self-direct care under a
Consumer Directed Care Option, through which skilled nursing visits may be
available. The hearing also disclosed that Plaintiff did not engage the process
necessary to allow these services to be available, to determine the level of care to
which he is entitled and which may be necessary to avoid care at an inpatient
facility, and whether that level of care is necessarily the same level of care he was
receiving under GAPP.
II.
DISCUSSION
A.
Legal Standard on a Motion for a TRO
To be eligible for a temporary restraining order (“TRO”) or preliminary
injunctive relief under Rule 65, a movant must establish each of the following
elements: (1) a substantial likelihood of success on the merits; (2) that irreparable
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injury will be suffered if the relief is not granted; (3) that the threatened injury
outweighs the harm the relief would inflict on the non-movant; and (4) that entry
of the relief would serve the public interest. See Schiavo ex rel. Schindler v.
Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005); Parker v. State Bd. of Pardons
and Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001). Preliminary injunctive
relief is a drastic and extraordinary remedy which should not be granted unless the
movant can clearly establish each of the four elements. Four Seasons Hotels and
Resorts v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003).
The elements for a TRO are essentially the same as for a preliminary
injunction, except that “[t]he motion must be supported by allegations . . . that such
[irreparable] injury is so imminent that notice and hearing would be impractical if
not impossible.” Hernandez v. Board of Regents, 1997 WL 391800, *1 (M.D.
Fla.1997) (quoting Chase Manhattan Bank v. Dime Savings Bank of New York,
961 F. Supp. 275, 276 (M.D. Fla.1997)). Fundamentally, TROs are “designed to
preserve the status quo until there is an opportunity to hold a hearing on the
application for a preliminary injunction.” 11A Wright & Miller, Federal Practice
& Procedure: Civ.2d § 2951.
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A.
Analysis
The Court finds that Plaintiff has demonstrated a likelihood of success on
the merits of his claim to the extent that he will be eligible to receive some inhome, skilled nursing care.1 As Defendants acknowledged, Plaintiff is eligible
under the state Medicaid plan for up to fifty (50) home health skilled nursing visits
and for additional skilled nursing visits available under IWCP. Although Plaintiff
may not be entitled to the 84 hours a week of in-home, skilled nursing care that he
was receiving under GAPP, there appears to be no dispute that Plaintiff is entitled
to receive the benefit of skilled nursing care provided in his home environment.
Accordingly, the Court concludes that appropriate relief in this case, at least until a
preliminary injunction hearing can be conducted and a full evidentiary record can
be developed, is for Plaintiff to receive three (3) visits per day by personal support
assistants or nursing assistants, and two (2) visits per day by a skilled nurse.
In light of the serious nature of Plaintiff’s medical condition, the Court finds
that Plaintiff may well suffer irreparable injury if some in-home, skilled nursing
care was not provided now that Plaintiff has aged out of GAPP. Further,
Defendants have acknowledged that Plaintiff is entitled to at least fifty (50) visits
1
The Court determined the Plaintiff did not present sufficient legal authority or a
sufficient factual basis for the Court to find at this stage of the action that Plaintiff
had a likelihood of success on his claim under COMP.
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by a skilled nurse, and therefore granting Plaintiff limited relief in this regard does
not present substantial harm to Defendants. The Court finds, in any case, that that
the threatened injury to Plaintiff if relief is not granted outweighs the harm the
relief inflicts on Defendants. Finally, relief to Plaintiff serves the public interest in
protecting the medical well-being of a Georgia citizen, an interest that Defendants
necessarily share.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Clyde L. Reese, III, in his
official capacity as the Commissioner of the Georgia Department of Community
Health, provide to Plaintiff Zachary Royal three (3) visits per day by personal
support assistants or nursing assistants, and two (2) visits per day by a skilled
nurse. The visits shall be coordinated with Plaintiff to occur at appropriate
intervals during the day when Plaintiff’s father is at work. The skilled nurse visits
also shall be coordinated with Plaintiff to occur at those times best suited to
Plaintiff’s medical needs, including as his treating physician may recommend.
This order will remain in effect until further notice from the Court.
IT IS FURTHER ORDERED that Counsel for the parties shall file, by
5:00 p.m. on each Friday this Order is in effect, a report confirming that the visits
7
required by this Order were made and the times that they occurred. These reports
should include a general assessment of Plaintiff’s condition during the preceding
week.
IT IS FURTHER ORDERED that if Plaintiff is required to be placed at a
hospital or other facility a report shall be filed by counsel for the parties within 24
hours of such occurrence in which counsel shall advise the Court of the purpose of
such treatment and its outcome.
SO ORDERED this 7th day of January 2014.
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