Korab et al v. Koller et al

Filing 74

ORDER (1) DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING NEW RESIDENTS; AND (2) DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION 62 ; 63 - Signed by JUDGE J. MICHAEL SEABRIGHT on 7/28/11. (emt, )< center>CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TONY KORAB, TOJIO CLANTON,
KEBEN ENOCH, CASMIRA
AGUSTIN, ANTONIO IBANA,
AGAPITA MATEO, and RENATO
MATEO, each individually and on
behalf of those persons similarly
situated,

)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
PATRICIA MCMANAMAN, in her
)
official capacity as Director of the State )
of Hawaii, Department of Human
)
Services, and KENNETH FINK, in his )
official capacity as State of Hawaii,
)
Department of Human Services, Med- )
QUEST Division Administrator,
)
)
Defendants.
)
________________________________ )

CIVIL NO. 10-00483 JMS/KSC
ORDER (1) DENYING
DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY
JUDGMENT REGARDING NEW
RESIDENTS; AND (2) DENYING
PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION

ORDER (1) DENYING DEFENDANTS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING NEW RESIDENTS; AND (2)
DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I. INTRODUCTION
On April 5, 2010, Plaintiffs filed this class action asserting claims
against Patricia McManaman, in her official capacity as Director of the State of

Hawaii, Department of Human Services (“DHS”),1 and Kenneth Fink, in his
official capacity as State of Hawaii, DHS, Med-QUEST Division Administrator
(collectively “Defendants”) challenging DHS’s implementation of a new health
care benefits program, Basic Health Hawaii (“BHH”), which Defendants created
for non-pregnant citizens, age nineteen or older, of countries with Compacts of
Free Association (“COFA”) with the United States who are lawfully residing in
Hawaii (“COFA Residents”), and non-pregnant immigrants, age nineteen or older,
who have been United States residents for less than five years (“New Residents”).
Plaintiffs are COFA Residents and New Residents who bring this action on behalf
of themselves and others similarly situated, asserting that BHH violates (1) the
Equal Protection Clause of the Fourteenth Amendment because it provides less
health benefits than the State of Hawaii’s (the “State”) Medicaid program offered
to citizens and certain qualified aliens, and (2) the Americans with Disabilities Act
(the “ADA”) because BHH is not administered in the most integrated setting
appropriate to meet their medical needs.
In a first round of motions directed to COFA Residents’ claims, the
court denied Defendants’ Motion to Dismiss, see Korab v. Koller, 2010 WL

1

This action was originally brought against Lillian Koller, who Patricia McManaman
subsequently replaced as Director of DHS.
2

4688824 (D. Haw. Nov. 10, 2010) (“Korab COFA I”), and granted Plaintiffs’
Motion for Preliminary Injunction. Korab v. Koller, 2010 WL 5158883 (D. Haw.
Dec. 13, 2010) (“Korab COFA II”). Currently before the court is a second set of
motions directed solely to New Residents’ claims. Based on the following, the
court finds that the reasoning denying Defendants’ Motion to Dismiss as to COFA
residents applies with equal force to New Residents and therefore DENIES
Defendants’ Motion for Summary Judgment. The court further finds, however,
that Plaintiffs have not established that they are entitled to preliminary relief and
therefore DENIES Plaintiffs’ Motion for Preliminary Injunction.
II. BACKGROUND
A.

Factual Background
As the court did previously, see Korab COFA I, 2010 WL 4688824, at

*1-2, the court first outlines the history of Medicaid and health care in Hawaii as
relevant to New Residents’ claims, and then addresses the facts relevant to their
claims.
1.

History of Medicaid Benefits Provided to Aliens in Hawaii
Medicaid is a cooperative federal-state program that provides federal

funding for state medical services to the poor, disabled, and others in need. 42
U.S.C. § 1396 et seq. “State participation is voluntary; but once a State elects to
3

join the program, it must administer a state plan that meets federal requirements.”
Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 433 (2004) (citations omitted).
The Personal Work Opportunities Reconciliation Act of 1996
(“PRWORA”) changed Medicaid law significantly. As is relevant to this action,2
the PRWORA limited Medicaid availability to aliens in an effort to, among other
things, “remove the incentive for illegal immigration provided by the availability
of public benefits” and encourage “self-sufficiency.” 8 U.S.C. § 1601(1), (6). The
PRWORA divided aliens into two groups -- qualified and non-qualified. Qualified
aliens include lawful permanent residents, designated refugees, aliens granted
asylum, and certain other specified categories of lawfully present aliens.
8 U.S.C. § 1612(b); id. § 1641(b). Qualified aliens may generally receive
Medicaid if they entered the United States prior to August 22, 1996, or otherwise
have lived in the United States for at least five years.3 8 U.S.C. § 1613(a). In other
words, qualified aliens entering the United States after August 22, 1996 must
generally wait five years to become eligible for Medicaid. In contrast,
nonqualified aliens are not eligible, even after the five-year waiting period, for

2

The PRWORA provided comprehensive welfare reform, but the court is concerned
with Title IV only, which addresses eligibility of aliens for certain benefits.
3

Refugees, aliens granted asylum, and certain other groups are exempted from the fiveyear limitation. 8 U.S.C. § 1613(b).
4

Medicaid benefits. “New Residents,” as defined by the First Amended Complaint
(“FAC”), includes “non-pregnant immigrants, age nineteen or older, who have
been United States residents for less than five years.” See Doc. No. 57, FAC ¶ 1.
The PRWORA provides that states may also create benefits programs
outside of Medicaid, and if they do, state benefits programs may not exclude
certain groups of aliens, 8 U.S.C. § 1622(b), but must exclude other certain groups.
Id. § 1621(a). As for a third group of aliens not qualified for federal benefits -which includes New Residents (i.e., qualified aliens who do not meet the five-year
durational residency requirement for Medicaid eligibility or who are
nonimmigrants as provided in 8 U.S.C. § 1101) -- the PRWORA gives discretion
to the states to determine eligibility for state benefits. Specifically, 8 U.S.C.
§ 1622(a) provides:
Notwithstanding any other provision of law . . . , a State
is authorized to determine the eligibility for any State
public benefits of an alien who is a qualified alien (as
defined in section 1641 of this title), a nonimmigrant
under the Immigration and Nationality Act [8 U.S.C.
§ 1101 et seq.], or an alien who is paroled into the United
States under section 212(d)(5) of such Act [8 U.S.C. §
1182(d)(5)] for less than one year.
Thus, as a result of the PRWORA, federal funds are no longer
available for New Residents to participate in Medicaid, but states on their own may
choose to provide medical coverage for them.
5

2.

Hawaii’s Health Programs
After the PRWORA went into effect, neither New Residents nor

COFA Residents were eligible for Medicaid. The State nonetheless allowed
COFA Residents to receive the same medical benefits provided through Medicaid
to citizens and qualified aliens who meet the durational residency requirement,
such as the State’s QUEST, QExA, QUEST-Net, QUEST-ACE, fee-for-service,
and SHOTT programs (“Old Programs”).4 See Korab COFA I, 2010 WL 4688824,
at *2.
The State did not, however, cover New Residents in the Old Programs
as they did for COFA Residents. See Doc. No. 62-3, Fink Decl. ¶ 8. Instead, the
Hawaii legislature appropriated funds for providers who would otherwise have
provided uncompensated care to New Residents in a program called Hawaii
Immigrant Health Initiative (“IHI”). Doc. No. 66-1, Fink Decl. ¶ 8, Doc. No. 67-4,
Pls.’ Ex. B. Under IHI, New Residents could receive primary care, preventative
care, specialty care, prescription drugs, Tuberculin testing and immunizations, and

4

As stipulated by the parties, the State did not adopt any administrative rules to create a
state-funded medical assistance program, and instead created a de facto state-funded medical
assistance program by continuing to provide medical assistance benefits to COFA Residents and
paying for those benefits entirely with State funds. See Doc. No. 29 ¶¶ 2-3. COFA Residents
used the same application as that used for applicants seeking Medicaid. Id. ¶ 4. So long as the
COFA Resident met the income and asset eligibility requirements for Hawaii’s Federal Medicaid
program, the COFA Resident received the same benefits as those provided under the Old
Programs. Id. ¶ 5.
6

gynecological services, but not inpatient care and emergency care.5 See Doc. No.
66-1, Fink Decl. ¶ 9, Doc. No. 67-4, Pls.’ Ex. B.
On July 1, 2010, DHS Med-Quest implemented BHH -- a medical
benefits program for COFA Residents and New Residents who are age nineteen or
older and not pregnant and who are not eligible for federal Medicaid assistance.
Haw. Admin. R. (“HAR”) § 17-1714-2. As of this date, DHS has disenrolled
COFA Residents who were not pregnant and who were age nineteen or older from
the Old Programs and enrolled them in BHH. As to New Residents, HAR § 171722.3-33(b) deemed those who received financial assistance and who meet the
eligibility requirements into BHH. See also Doc. No. 62-3, Fink Decl. ¶ 11.
Enrollment in BHH is capped at 7,000 statewide, and an open
application period will not occur until enrollment drops below 6,500. HAR § 171722.3-10. About 7,000 non-immigrants, mostly COFA Residents, were
transferred from the Old Programs to BHH.6 See Doc. No. 67-5, Pls.’ Ex. C. The

5

The parties dispute whether IHI is a “medical assistance program,” given that there is
no eligibility determination by the State and IHI does not exist through statute or administrative
rule. See Doc. No. 66-1, Fink Decl. ¶ 12. It is also unclear whether IHI currently exists -Defendants state that funding was approved only through the State fiscal year 2010. See id. ¶ 14.
Ultimately, these facts do not affect the court’s determinations of these motions because the
issue is not whether the State violated Plaintiffs’ Equal Protection rights by implementing IHI,
but rather whether the State violated Plaintiffs’ Equal Protection rights by refusing to allow them
to participate in the Old Programs.
6

The December 13 COFA Order required Defendants to reinstate the benefits that the
(continued...)
7

parties do not dispute that BHH provides limited care as compared to the Old
Programs. See Korab, 2010 WL 4688824, at *2-3 (describing differences between
the Old Programs and BHH).
Plaintiffs have presented evidence of several specific instances where
the named New Resident class representatives have been denied State health care
benefits and as a result are unable to receive needed health care and/or are facing
significant bills due to a lack of coverage. For example, Casmira Agustin, a lawful
permanent resident since 2009, received emergency surgery for a cyst on her ovary
and without coverage, is facing medical bills totaling almost $50,000. See Doc.
No. 63-2, Casmira Agustin Decl. Antonio Ibana, a resident since 2010, was denied
medical insurance coverage through Med-Quest, and has been foregoing needed
eye surgery. Doc. No. 63-3, Antonio Ibana Decl. Renato Mateo, a resident since
September 2006, has no insurance coverage for his chemotherapy treatments, and
the office where he receives treatments has denied treating him after he accrued
more than $85,000 in bills. Doc. No. 63-4, Renato Mateo Decl. Agapita Mateo,
Renato Mateo’s wife, has foregone insulin for her diabetes, causing her vision to
become cloudy, and she cannot receive needed back surgery because she cannot
6

(...continued)
COFA Residents were receiving through the Old Programs, see Korab COFA II, 2010 WL
5158883, at *5, and as a result, it is unclear whether BHH opened enrollment after the December
13 COFA Order. Neither party presents any evidence addressing this issue.
8

afford the necessary specialists. Doc. No. 63-5, Agapita Mateo Decl. Plaintiffs did
not submit any evidence regarding other putative class members beyond the class
representatives.
B.

Procedural Background
On August 23, 2010, Plaintiffs filed this action, alleging claims for

violations of the Equal Protection Clause and the ADA.
A first round of Motions addressed COFA Residents’ claims.
Specifically, on November 10, 2010, the court denied Defendants’ Motion to
Dismiss COFA Residents’ claims (the “November 10 COFA Order”), Korab
COFA I, 2010 WL 4688824; and on December 13, 2010, the court granted Plaintiff
COFA Residents’ Motion for Preliminary Injunction (the “December 13 COFA
Order”). Korab COFA II, 2010 WL 5158883.
As to the present Motions regarding New Residents, on April 28,
2011, Defendants filed their Motion for Partial Summary Judgment, and Plaintiffs
filed a Motion for Preliminary Injunction. Oppositions were filed on May 9, 2011,
and Replies were filed on May 16, 2011. A hearing was held on June 27, 2011.
///
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III. STANDARDS OF REVIEW
A.

Summary Judgment
Summary judgment is proper where there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal

10

quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor.” (citations omitted)).
B.

Motion for Preliminary Injunction
“A preliminary injunction is an extraordinary and drastic remedy

[that] is never awarded as of right.” Munaf v. Geren, 128 S. Ct. 2207, 2219 (2008)
(citation and quotation signals omitted). In Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20 (2008), the Supreme Court explained that “[a]
plaintiff seeking a preliminary injunction must establish that he is likely to succeed

11

on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” So long as all four parts of the Winter test are
applied, “a preliminary injunction [may] issue where the likelihood of success is
such that ‘serious questions going to the merits were raised and the balance of
hardships tips sharply in [plaintiff’s] favor.’” Alliance for Wild Rockies v. Cottrell,
632 F.3d 1127, 1132 (9th Cir. 2011) (quoting Clear Channel Outdoor, Inc. v. City
of L.A., 340 F.3d 810, 813 (9th Cir. 2003)).
There are two types of preliminary injunctions -- a prohibitory
injunction that “preserve[s] the status quo pending a determination of the action on
the merits[, versus a] mandatory injunction [that] orders a responsible party to
‘take action.’” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
F.3d 873, 879 (9th Cir. 2009) (citations and quotations omitted). “A mandatory
injunction “‘goes well beyond simply maintaining the status quo [p]endente lite
[and] is particularly disfavored.’” Id. (quoting Anderson v. United States, 612 F.2d
1112, 1114 (9th Cir. 1980)). The status quo means “the last, uncontested status
which preceded the pending controversy.” Marlyn Nutraceuticals, Inc., 571 F.3d
at 879.
Where a claimant seeks a mandatory injunction, “courts should be

12

extremely cautious about issuing a preliminary injunction,” and “should deny such
relief ‘unless the facts and law clearly favor the moving party.’” Stanley v. Univ.
of S. Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994) (quoting Anderson, 612 F.2d at
1114). In general, mandatory injunctions “are not granted unless extreme or very
serious damage will result and are not issued in doubtful cases or where the injury
complained of is capable of compensation in damages.” Anderson, 612 F.2d at
1115; see also Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) (describing
that “the movant must make a heightened showing of the four factors” (citation and
quotation signals omitted)).
IV. DISCUSSION
A.

Motion for Summary Judgment
Defendants argue that Plaintiffs have failed to establish a genuine

issue of material fact in support of their claims pursuant to the Equal Protection
Clause and the ADA. The court addresses these claims in turn.
1.

Equal Protection
New Resident Plaintiffs assert that Defendants’ implementation of

BHH violates the Equal Protection clause of the Fourteenth Amendment because it
discriminates between citizens and certain groups of aliens who may receive
Medicaid, and New Residents who may receive BHH’s lesser benefits only (when

13

and if BHH allows additional enrollment). See FAC ¶ 56. In comparison,
Defendants argue that the State’s creation of BHH is subject to rational basis
review because Congress, not the State, excludes certain groups of aliens from
participating in Medicaid and the State does not have an obligation to create a
separate benefits program for aliens with equal benefits.
These arguments mirror those raised by the parties as to COFA
Residents, which the November 10 COFA Order addressed and found that strict
scrutiny applies. As between the two Motions, there are certainly some
distinctions. The November 10 COFA Order addressed a Motion to Dismiss as
opposed to a Motion for Summary Judgment, and there are factual differences
between COFA Residents and New Residents. For example, Defendants allowed
COFA Residents to participate in the Old Programs for fourteen years until
implementation of BHH in 2010, whereas New Residents received medical care
through IHI. The parties further dispute precisely what medical benefits New
Residents received prior to BHH and how many New Residents (if any) were
deemed into BHH. These distinctions, however, are ultimately not controlling
because the issue in both Motions boils down to a legal question -- what is the
standard of review for the State’s implementation of BHH, where citizens and
qualified residents receive more comprehensive benefits under the Old Programs

14

and COFA Residents and New Residents can participate in BHH only?
The November 10 COFA Order outlined the legal framework for
determining the standard of review for classification based on alienage, and
explained that due to the PRWORA, the State’s decision to no longer provide
COFA Residents access to the same medical benefits provided to citizens appeared
to be neither a purely state decision subject to strict scrutiny, nor a federal decision
subject to rational basis review. Korab COFA I, 2010 WL 4688824, at *4-7.
Thus, the issue became “whether the PRWORA validly granted states the authority
to classify individuals based on alienage in determining eligibility for [BHH and
the Old Programs].” Id. at *7. The November 10 COFA Order answered this
question in the negative -- the PRWORA could validly allow states to classify
based on alienage only if it established a uniform rule for the states to follow.
Because the PRWORA gave states a choice in determining what benefits to
provide certain groups of aliens, the November 10 COFA Order concluded that the
PRWORA did not create a uniform rule for states to follow such that the State’s
implementation of BHH was subject to strict scrutiny. Id. at *8-10.
The reasoning of the November 10 COFA Order applies equally to
New Residents. The decision to distinguish between citizens and qualified aliens
who may participate in the Old Programs versus COFA Residents and New

15

Residents who may participate in BHH is a classification based on alienage.
Although Defendants attempt to characterize this classification instead as one
based on Medicaid eligibility, such characterization is one based on semantics and
not realities, especially where the State provided COFA Residents access to the
Old Programs for fourteen years. The decision to classify based on alienage was a
choice by the State and not mandated by the federal government -- although the
PRWORA prevents certain groups of aliens from participating in Medicaid,
Medicaid is a voluntary program, jointly funded by State and federal dollars and
jointly administered by the State and federal government. The PRWORA also
allows states to determine for themselves whether to provide medical benefits to
aliens excluded from Medicaid solely through state funds. As the November 10
COFA Order found, this flexibility results in a lack of uniformity, which prevents
the State’s decision from being cloaked in rational basis review.
Despite the November 10 COFA Order and its application to New
Residents, Defendants largely rehash the same arguments they raised before; the
court need not further explain the applicability of November 10 COFA Order to
reject these arguments. The court therefore focuses on Defendants’ argument not
previously considered by the court -- that the court should follow the reasoning of
Hong Pham v. Starkowski, 16 A.3d 635 (Conn. 2011), a case issued after the

16

November 10 COFA Order in which the Connecticut Supreme Court overruled a
Connecticut Superior Court decision, 2009 WL 5698062, at *16 (Conn. Super.
Dec. 18, 2009), which the November 10 COFA Order had cited with approval. For
a number of reasons, Hong Pham does not change the court’s analysis.
As an initial matter, Hong Pham is only one of a number of cases
addressing state decisions to cut back medical benefits programs provided to
aliens, and the November 10 COFA Order analyzed the relevant caselaw available
at the time. See Korab COFA I, 2010 WL 4688824, at *8. As the November 10
COFA Order explained, courts have fallen on both sides of the issue in determining
the appropriate standard of review; Hong Pham hardly tips the balance in favor of
rational basis review. Indeed, since the November 10 COFA Order, two other
cases have applied strict scrutiny to state decisions cutting medical benefit
programs to aliens. See Pimentel v. Dreyfus, 2011 WL 321778, at *4-5 (W.D.
Wash. Jan. 28, 2011) (finding that the plaintiffs challenging Washington’s decision
to repeal state-funded food assistance program was subject to strict scrutiny
because the PRWORA did not establish a uniform rule for the states to follow);
Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262, 1277
(Mass. 2011) (holding that a state’s exclusion of aliens from health insurance
premium program was subject to strict scrutiny).

17

Turning to the substance of Hong Pham, the court finds its reasoning
unpersuasive. Hong Pham addressed Connecticut’s termination of a state program
that provided medical assistance to qualified aliens who did not meet the five-year
requirement to participate in Medicaid. According to Hong Pham, the relevant
question was “whether the state program provides a benefit to citizens that it does
not provide to some or all aliens because of their status as noncitizens.” Hong
Pham, 16 A.3d at 648. Hong Pham answered this question in the negative because
the eliminated program did not provide benefits to citizens. In other words,
“[b]ecause the state is not providing a benefit to citizens through that program that
it denies to some or all aliens, the state cannot be discriminating against aliens in
favor of citizens.” Id. at 648.
Hong Pham further rejected that Connecticut’s participation in
Medicaid required it to provide an equivalent level of assistance to those that
cannot participate in Medicaid. Id. at 649. Relying on other cases applying
rational basis review (considered by the November 10 COFA Order), Hong Pham
reasoned that “the equal protection clause does not require the state to treat
individuals in a manner similar to how others are treated in a different program
governed by a different government.” Id. at 650. Hong Pham concluded that in
any event, even if it compared the treatment of aliens ineligible for Medicaid

18

versus citizens, “the state’s decision to participate in federal Medicaid does not
draw a classification based on alienage but, instead, draws a classification based on
an individual’s eligibility for federal Medicaid.” Id. at 659.
The court questions Hong Pham’s premise that the issue can be
limited to “whether the state program provides a benefit to citizens that it does not
provide to some or all aliens because of their status as noncitizens.” Id. at 648. By
limiting the inquiry to a particular program on its own as opposed to a state’s
provision of medical benefits to its residents through various different programs
generally, Hong Pham would allow a state to create separate programs that provide
different benefits based on suspect classification (i.e., alienage, race, gender). A
state could, for example, create one medical benefits program with limited benefits
for African Americans, and another program with greater benefits for Caucasians.
Under Hong Pham’s reasoning, there would apparently be no suspect classification
based on race because neither individual program provides a benefit to one race
that it does not provide to individuals of other races because of their race. Such an
absurd (and insidious) result stands the Equal Protection clause on its head.
Unlike Hong Pham, the court finds that the relevant inquiry is whether
the State’s provision of medical benefits to its residents -- regardless of the specific
contours of each individual program -- classifies based on alienage. Such inquiry

19

takes into account that the State affirmatively decided to create and spend State
dollars on each benefits program. That one benefits program is partially funded by
the federal government (i.e., the Old Programs) is not controlling; as explained
above, the State voluntarily participates and partially funds the program -- that the
federal government is a partner with the State does not give the State a license to
violate the Equal Protection clause. See Graham v. Richardson, 403 U.S. 365, 382
(1971) (explaining that “Congress does not have the power to authorize the
individual States to violate the Equal Protection Clause,” and that while Congress
has the power to “establish a uniform Rule of Naturalization,” “[a] congressional
enactment construed so as to permit state legislatures to adopt divergent laws on
the subject of citizenship requirements for federally supported welfare programs
would appear to contravene this explicit constitutional requirement of
uniformity”).
Indeed, by categorizing the classification as one based on Medicaid
eligibility as opposed to alienage, Hong Pham completely side-stepped the
uniformity inquiry that was not only central to the November 10 COFA Order, but
also a relevant inquiry in most cases addressing state medical benefits programs
provided to aliens (even those that ultimately applied rational basis review). See,
e.g., Pimentel, 2011 WL 321778, at *4-5 (finding that the plaintiffs challenging

20

Washington’s decision to repeal state-funded food assistance program was subject
to strict scrutiny because the PRWORA did not establish a uniform rule for the
states to follow); Soskin v. Reinertson, 353 F.3d 1242, 1256 (10th Cir. 2004)
(holding that the PRWORA did not run afoul of the uniformity requirement when
it is interpreted flexibly); Ehrlich v. Perez, 908 A.2d 1220, 1244 (Md. 2006)
(holding that the PRWORA prescribes no uniform rule and applying strict
scrutiny); Finch, 946 N.E.2d at 1276-77 (holding that strict scrutiny applies to
state’s exclusion of aliens from health insurance premium program because the
PRWORA “does not require that States apply Federal eligibility requirements but
instead merely declares that Federal policy will not be thwarted if States decide to
discriminate against qualified aliens”); Doe v. Comm’r of Transitional Assistance,
773 N.E.2d 404, 410 (Mass. 2002) (holding that state statute incorporating
eligibility requirements of the PRWORA is subject to rational basis review because
the state did “nothing more than adopt the uniform Federal policy barring qualified
aliens from receiving benefits from federally funded State programs until they have
resided in the United States for five years”); Aliessa ex rel. Fayad v. Novello, 754
N.E.2d 1085, 1098 (N.Y. 2001) (rejecting that the PRWORA creates uniformity
because “the States are free to discriminate in either direction -- producing not
uniformity, but potentially wide variation based on localized or idiosyncratic

21

concepts of largesse, economics and politics”).
The court therefore rejects that Hong Pham adds any new insight into
the Equal Protection analysis that would change the court’s conclusion that the
reasoning of the November 10 COFA Order applies equally to New Residents as it
does to COFA Residents.7 Accordingly, the court adopts the reasoning of the
November 10 COFA Order and concludes that strict scrutiny applies to the State’s
implementation of BHH as to New Residents.
Because Defendants offer no argument that they are entitled to
summary judgment if strict scrutiny applies, the court DENIES Defendants’
Motion for Summary Judgment on Plaintiffs’ Equal Protection claim.
2.

ADA
Title II of the ADA states that “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To prove
that a public service or program violates the ADA, a plaintiff must show: (1) she is
a “qualified individual with a disability;” (2) she was either excluded from

7

Hong Pham is also factually distinguishable from this case. Hong Pham addressed
Connecticut’s termination of a state program that was available to aliens only. In comparison,
the State allowed both Medicaid-eligible residents as well as COFA Residents to participate in
the Old Programs -- there was no separate program for COFA Residents.
22

participation in or denied the benefits of a public entity’s services, programs, or
activities or was otherwise discriminated against by the public entity; (3) the
service, program, or activity receives federal financial assistance; and (4) such
exclusion, denial of benefits, or discrimination was by reason of plaintiff’s
disability. Townsend v. Quasim, 328 F.3d 511, 516 (9th Cir. 2003).
Within this general framework, Plaintiffs are asserting a claim for
violation of the ADA’s integration mandate, which requires public entities to
administer their programs “in the most integrated setting appropriate to the needs
of qualified persons with disabilities.” 28 C.F.R. § 35.130(d); see also FAC
¶¶ 62-64 (asserting that Defendants are discriminating against disabled New
Resident Plaintiffs by requiring them to seek care in a hospital setting, which is not
the most integrated setting appropriate to meet their needs). Although not welldeveloped in the law, in certain circumstances, a plaintiff may assert a violation of
this integration mandate challenging state action that may unnecessarily risk
institutionalization. See Fisher v. Okla. Health Care Auth., 335 F.3d 1175,
1181-82 (10th Cir. 2003) (denying motion for summary judgment where evidence
established that imposition of cap on prescription medications would place
participants in community-based program at high risk for premature entry into
nursing homes in violation of ADA); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1119-

23

20 (N.D. Cal. 2009) (granting preliminary injunction where plaintiffs established
that class members faced a severe risk of institutionalization as a result of losing
services new health care plan eliminates); Ball v. Rodgers, 2009 WL 1395423, at
*5 (D. Ariz. Apr. 24, 2009) (finding violation of the ADA where Defendants’
“failure to provide Plaintiffs with the necessary services threatened Plaintiffs with
institutionalization, prevented them from leaving institutions, and in some
instances forced them into institutions in order to receive their necessary care”).
Defendants seek summary judgment on this claim, raising a number of
arguments, including that (1) Plaintiffs are not qualified individuals with
disabilities; (2) Plaintiffs were not denied any benefits by reason of their
disabilities; and (3) the ADA does not require the state to provide services where
none were previously provided. The briefing on this claim, however, is limited
and/or conclusory, which is ultimately unhelpful to the court where the caselaw
does not clearly define the contours of such claim. The court therefore DENIES
Defendants’ Motion without prejudice to Defendants raising these arguments at a
later time.
B.

Motion for Preliminary Injunction
Plaintiffs seek a preliminary injunction prohibiting Defendants from

excluding New Residents from the Old Programs and from enrolling New

24

Residents in BHH. Doc. No. 63, Pls.’ PI Mot. at 2. Based on the following, the
court finds that Plaintiffs have failed to carry their burden to establish they are
entitled to this relief.
1.

Preliminary Injunctions and Class Certification
The first problem with Plaintiffs’ Motion for Preliminary Injunction is

that Plaintiffs have not yet sought class certification for New Residents. Although
Plaintiffs correctly point out that they may move for class-wide relief before
moving to certify the class, injunctive relief is discretionary and “[c]ourts often
refuse such relief until after the class is certified, because until then it may be
difficult to determine the extent of benefits to the class and consequences to
defendant if an injunction is granted.” Schwarzer, Tashima and Wagstaffe, Fed.
Civ. P. Before Trial, § 10:773 at 10-116 (TRG 2008); see also Easyriders Freedom
F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996) (recognizing that
“injunctive relief generally should be limited to apply only to named plaintiffs
where there is no class certification”); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.
1984) (“A federal court may issue an injunction if it has personal jurisdiction over
the parties and subject matter jurisdiction over the claim; it may not attempt to
determine the rights of persons not before the court.”). Absent class certification,
the rule that “injunctive relief should be no more burdensome to the defendant than

25

necessary to provide complete relief to the plaintiffs” applies with special force.
L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011).
Seeking class certification would have certainly assisted Plaintiffs in
addressing the preliminary injunction inquiries. Although Plaintiffs submitted
evidence regarding the possible harm to the named class representatives, they
presented no evidence from which the court can conclude that this harm is typical
and common to the entire class. Further, Plaintiffs have provided the court
absolutely no idea of the size of the class of “New Residents.” Their failure to
provide any ballpark idea of the size of the class may be due to the various
different definitions Plaintiffs have provided of “New Residents.” For example,
the FAC defines New Residents as “non-pregnant immigrants, age nineteen or
older, who have been United States residents for less than five years.” See Doc.
No. 57, FAC ¶ 1. In their Motion for Preliminary Injunction, however, Plaintiffs
define “New Residents” as “resident aliens lawfully in the United States for less
than five years.” Doc. No. 63 at 2. Finally, in their Reply Brief, Plaintiffs assert
that “[t]he New Resident class includes ‘qualified immigrants’ under PRWORA”
as well as “‘nonimmigrants’ or other lawfully-resident aliens who are not
‘qualified immigrants.’” Doc. No. 69, Pls.’ PI Reply at 7 n.5. Despite using these
different terms, at no point do Plaintiffs define “immigrants,” “aliens,” or “non-

26

immigrants.” With little clarity as to possible harm to the class as a whole, the
definition of “New Residents,” or the size of the class, Plaintiffs have failed to give
the court any idea as the true scope of the relief requested.
For this reason alone, and in the exercise of its discretion, the court
DENIES Plaintiffs’ Motion for Preliminary Injunction.
2.

The Substance of Plaintiffs’ Motion for Preliminary Injunction
Even if the court did not deny the Motion for Preliminary Injunction

based on a lack of class certification, the court nonetheless finds that Plaintiffs
have not carried their burden on the Winter factors.
As an initial matter, Plaintiffs are not seeking a prohibitory injunction
maintaining the status quo, but rather a mandatory injunction that “goes well
beyond simply maintaining the status quo pendente lite [and] is particularly
disfavored.” Stanley, 13 F.3d at 1320 (citations omitted). Specifically, the court
cannot return the parties to their pre-PRWORA status because as described above,
Medicaid is a joint federal-state program and the PRWORA excluded New
Residents from federal funding. Further, unlike the State did for COFA Residents,
at no time after the PRWORA did the State provide through State funds only the
same medical benefits to New Residents as provided to citizens. Thus, Plaintiffs’
Motion for Preliminary Injunction is seeking something that New Residents never

27

received before -- access to the same medical benefits that are provided to citizens
through Medicaid, but funded through State funds only.8 As a result, Plaintiffs
must establish that “the facts and law clearly favor [Plaintiffs].’” Stanley, 13 F.3d
at 1320. With this heightened standard, the court considers the Winter factors.
a.

Likelihood of success on the merits

New Resident Plaintiffs assert that they have a likelihood of
prevailing on their Equal Protection claim because strict scrutiny applies to the
State’s provision of medical benefits based on alienage, and the State has not
forwarded a compelling state interest.
The court agrees that Plaintiffs have established some likelihood of
success on the merits -- as explained above, the court finds that strict scrutiny
applies to the State’s implementation of BHH for COFA residents and New
Residents, where citizens and qualified residents receive more comprehensive
benefits under the Old Programs. Further, under a strict scrutiny review, i.e.,
requiring Defendants to show that their classification “advance[s] a compelling
state interest by the least restrictive means available,” Bernal v. Fainter, 467 U.S.

8

Although Plaintiffs argued in their briefing that they are seeking only a prohibitory
injunction maintaining the status quo because the last uncontested status is the equal provision of
health benefits as between New Residents and citizens prior to the PRWORA in 1996, at the
June 27, 2011 hearing, Plaintiffs conceded that they are indeed seeking a mandatory injunction.
28

216, 219 (1984), Defendants have failed to identify any viable State interest that is
advanced by their decision to exclude New Residents from the Old Programs. And
as the December 13 COFA Order explained, budget concerns are an insufficient
reason to classify based on alienage -- “when applying strict scrutiny, the
‘justification of limiting expenses is particularly inappropriate and unreasonable
when the discriminated class consists of aliens.’” Korab, 2010 WL 5158883, at *4
(quoting Graham, 403 U.S. at 376 (quotation and citation signals omitted)).
With that said, however, Plaintiffs have not established that the law
clearly favors them. See Stanley, 13 F.3d at 1320. Determining the appropriate
standard of review for Plaintiffs’ Equal Protection claim is a legal question that
will be reviewed de novo (and is already on appeal as to COFA Residents), and as
explained above, courts have split on whether rational basis or strict scrutiny
review applies. Although the court finds that strict scrutiny applies to the State’s
decision to implement BHH for COFA Residents and New Residents, the Ninth
Circuit may disagree with the court’s reasoning and join those courts applying
rational basis review. For example, the Ninth Circuit might construe the
classification as one based on Medicaid eligibility as opposed to alienage, and/or
find that a court cannot compare the fully State-funded BHH to the federal-state
programs provided through Medicaid. The Ninth Circuit could also hold that the

29

uniformity requirement is more limited than as the court interprets based on
Sudomir v. McMahon, 767 F.2d 1456, 1464-66 (9th Cir. 1985). In other words, it
is an open question whether the Ninth Circuit will hold that strict scrutiny applies
to Plaintiffs’ claims. The law is, quite clearly, murky.
Thus, the court finds that although Plaintiffs have established some
likelihood of success on the merits, they have not established that the law clearly
favors their position.
b.

Irreparable harm

Plaintiffs have established that the individually-named Plaintiffs will
experience irreparable harm without an injunction. Each of the individual New
Resident Plaintiffs suffers from serious medical conditions and they will likely not
receive treatment if they do not receive medical benefits from the State. Even
Defendants do not dispute that the individually-named Plaintiffs will suffer
irreparable harm without an injunction. See generally Doc. No. 66, Defs.’ PI
Opp’n (failing to address irreparable harm inquiry).
What Plaintiffs have not established, however, is that New Residents
as a class will suffer irreparable injury. Although Plaintiffs presented evidence
regarding hardship to the individually-named Plaintiffs, they have not addressed
whether that harm is common and/or typical of the class as a whole and Plaintiffs

30

have not yet sought class certification. This lack of evidence as to New Residents
as a class is apparent in comparing the evidence presented as to their previous
Motion for Preliminary Injunction as to COFA Residents. For their previous
Motion, Plaintiffs presented evidence establishing that COFA Residents could not
receive certain medical treatments in their COFA countries and that they as a
population suffer from a higher than average prevalence of several serious medical
conditions. See Korab COFA II, 2010 WL 5158883, at *2. Plaintiffs further
presented evidence from doctors establishing that they cannot provide adequate
care to COFA Residents through BHH. Id. Plaintiffs have presented no such
evidence in support of this Motion as to New Residents.
Thus, although Plaintiffs have established irreparable harm as to the
individually-named Plaintiffs, they have not established irreparable harm as to the
class.
c.

Balance of the equities

Plaintiffs have not carried their burden on the balance of the equities.
Although Plaintiffs have established that the individual New Resident Plaintiffs
may be irreparably harmed without an injunction, Plaintiffs have not established
the harm to the class as a whole. Further, Plaintiffs have not addressed in any
meaningful manner the harm to Defendants if a mandatory injunction is granted.

31

Given that the size of the class is unknown and the State has not previously
provided New Residents access to the Old Programs, Plaintiffs have provided the
court no means for determining how the State might be affected by a mandatory
injunction.
Thus, this factor does not weigh in favor of Plaintiffs.
d.

Public interest

Plaintiffs, in conclusory fashion, argue that this factor weighs in their
favor because it is not in the public interest to force uninsured patients to seek
treatment only when their conditions reach an emergency level. Doc. No. 63-1,
Pls.’ PI Mot. at 18. The same could be said, however, as to any uninsured
individual and there are countervailing considerations that an injunction may
impinge on the State’s policy and budget determinations. The court therefore finds
this factor neutral.
e.

Weighing the factors

In sum, although Plaintiffs have established that the individuallynamed New Resident Plaintiffs may be harmed, Plaintiffs have not established a
clear likelihood of success on the merits, irreparable harm to the class, or that the
balance of the equities and/or public interest weigh in their favor. Based upon
these factors and given the considerations that Plaintiffs are seeking a mandatory

32

injunction and have failed to identify the class, the court finds that Plaintiffs have
not established that they are entitled to preliminary relief.9 The court therefore
DENIES Plaintiffs’ Motion for Preliminary Injunction.
V. CONCLUSION
Based on the above, the court DENIES Defendants’ Motion for
Summary Judgment as to Plaintiffs’ claims directed to New Residents, and
DENIES Plaintiffs’ Motion for Preliminary Injunction.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 28, 2011.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge
Korab et al. v. McManaman et al., Civ. No. 10-00483 JMS/KSC, Order (1) Denying Defendants’
Motion for Partial Summary Judgment Regarding New Residents; and (2) Denying
Plaintiffs’Motion for Preliminary Injunction

9

The court recognizes that the December 13 COFA Order noted that even if Plaintiffs
were seeking a mandatory injunction as to COFA Residents, it was “warranted given the serious
damage that COFA Residents will face without access to the State Medicaid program.” Korab
COFA II, 2010 WL 5158883, at *4 n.5. There are differences between the two Motions
warranting the different outcomes between New Residents and COFA Residents. First, the
parties stipulated as to the class of COFA Residents, Doc. No. 37, but Plaintiffs have not yet
sought class certification as to New Residents. Second, the State had provided COFA Residents
access to the Old Programs before implementing BHH, indicating that an injunction requiring
the State to continue to provide COFA Residents these benefits was feasible. In comparison, the
court cannot speculate as to the size of the class of “New Residents” or the impact of a
mandatory injunction because Plaintiffs have not adequately defined the class or presented any
evidence as to the feasibility of requiring the State to provide New Residents access to the Old
Programs. Finally, Plaintiffs presented evidence indicating the likelihood of irreparable harm to
COFA Residents as a class, but have not presented any similar evidence as to New Residents.
33