T. et al v. Bowling et al

Filing 169

MEMORANDUM OPINION AND ORDER denying without prejudice plaintiffs' 140 MOTION to Extend Preliminary Injunctive Relief to Class Members. Signed by Judge Thomas E. Johnston on 9/20/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

MICHAEL T., et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:15-cv-09655

BILL J. CROUCH, in his official capacity
as Secretary of the WEST VIRGINIA
DEPARTMENT OF HEALTH AND HUMAN
RESOURCES,
Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Motion to Extend Preliminary Injunctive Relief to Class
Members (“Motion to Extend”). (ECF No. 140.) For the reasons stated herein, the Court DENIES
WITHOUT PREJUDICE the motion.
On September 13, 2016, this Court granted Plaintiffs’ request for a preliminary injunction
and ordered Defendant “to reinstate the named Plaintiffs’ individualized I/DD Waiver Program
budgets to the amounts Plaintiffs received in 2014, but only for those Plaintiffs that received a
reduction in their individualized budgets after 2014.” (ECF No. 122 at 32.) The Court thereafter
granted Plaintiffs’ Motion for Class Certification on September 30, 2016. (ECF No. 136.) On
October 28, 2016, the parties appeared before the Court for a settlement conference, and they
continued negotiations for the next several months. On April 27, 2017, the parties informed the
Court that while progress had been made toward reaching a resolution as to Count II of Plaintiffs’

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Amended Complaint, the parties “concluded that they [were] unable to settle Counts I, III, and
IV.” (See ECF No. 152.) The Court held a telephonic status conference on April 28, 2017, and
subsequently ordered Defendant to respond to the Motion to Extend by May 12, 2017, and
Plaintiffs to file any reply one week later. (ECF Nos. 153, 154.)
The arguments within Plaintiffs’ Motion to Extend rely on the West Virginia Department
of Health and Human Resources’ (“DHHR”) perpetual use of the old authorization system. (See
ECF No. 141 at 3–11.) Similarly, the affidavit and three declarations attached to the motion—
explaining hardships suffered by certain I/DD Waiver Program participants—are premised on the
effects of the old authorization system. (See ECF Nos. 140-1, 140-2, 140-3, 140-4.) Plaintiffs
argue that because the 4,600-plus unnamed class members receive annual budgets calculated under
a process that the Court previously criticized, they are entitled to the same preliminary relief as the
named Plaintiffs. (See ECF No. 158 at 1–6 (“That is especially true given it appears defendant
will not pursue its plan unless this Court first gives an advisory opinion finding [that] this
speculative, non-legislative change satisfies the Constitution, the Medicaid Act, the ADA, and the
Rehab Act.”).) Plaintiffs emphasize that at the time their Motion to Extend was filed, “the actual
parameters of any new process ha[d] not been established . . . .” (See id. at 7–8 (stating that
DHHR’s reliance on the implementation of a new system “is simply too speculative to present a
ripe, justiciable issue”).) Thus, Plaintiffs argue that for the same reasons that injunctive relief was
appropriate for the named Plaintiffs, the Winter factors support extending preliminary relief to the
entire class. (See id. at 8–14.)
Defendant argues in his response to the motion that Plaintiffs did not demonstrate the
necessity of extending preliminary relief to all 4,634 members of the class. (See ECF No. 157.)
Defendant avers that Plaintiffs are unlikely to succeed on the merits of their due process claim in

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light of the new service authorization system developed by DHHR. (See id. at 4–5.) After arguing
that Plaintiffs failed to show that the class as a whole would suffer irreparable harm, Defendant
provides that “[r]eturning thousands of waiver members to their 2014 service authorization levels
would cost taxpayers tens of millions of dollars” and “would threaten the State’s ability to continue
to offer 4,634 slots for enrollment in the I/DD Waiver [Program],” particularly in light of West
Virginia’s worsening budget crisis. (See id. at 5–10, 11–12.) Finally, Defendant states that
extending the preliminary injunction to the entire class would prevent DHHR from adding fifty
spots to the I/DD Waiver Program in fiscal year 2018 as originally planned and would prevent
DHHR’s ability to implement the new service authorization system. (See id. at 13–16 (“DHHR
does not have the administrative or financial resources to both restore thousands of waiver
members to their service levels from three years ago (2014) and implement the new service
authorization system it has developed.” (emphasis in original)).)
During the briefing period for the Motion to Extend, Defendant filed a Motion to Vacate
or Modify Preliminary Injunction Order (“Motion to Vacate or Modify”). (ECF No. 155.)
Attached to the motion is an exhibit detailing a “new service authorization system” developed by
DHHR that Defendant believes satisfies the Court’s concerns expressed when granting the
preliminary injunction. (See ECF No. 155-1; ECF No. 156 at 6–12.) Recently, on September 15,
2017, Defendant’s counsel submitted a letter-form status report to the Court informing it that
DHHR is “mov[ing] ahead with implementation of this new system . . . .” (ECF No. 168.) DHHR
provides the following timeline by which it will abide:
Date

Action

November 15, 2017

DHHR issues notice to the public
for changes to the I/DD Waiver
Policy Manual to implement the

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proposed new service authorization
system
December 15, 2017 - January 31, 2018

DHHR reviews and considers public
comments

February 1, 2018

DHHR finalizes and publishes
changes to the I/DD Waiver Program
Manual

February 1 - March 31, 2018

DHHR works with KEPRO to put in
place practices and procedures to
implement the new service
authorization system

April 1, 2018

DHHR begins evaluating waiver
members and calculating their service
authorization levels pursuant to the
new system, based on anchor dates

90 days after evaluation

Waiver members begin receiving
services pursuant to service
authorization levels developed under
the new system

July 1, 2018

DHHR adds 50 new slots to the I/DD
Waiver Program

(Id. at 1–2.) DHHR recognizes its responsibility to continue providing the named Plaintiffs their
2014 service authorization levels, if necessary, pursuant to the current injunction. (Id. at 2.)
Defendant’s latest status report demonstrates that the new authorization system will soon
cover the unnamed members of the class, which sullies the arguments in Plaintiffs’ Motion to
Extend as they are premised on the assumption that the old authorization system will continue to
apply to the class members. All class members will begin switching over to the new authorization
system in just over six months, and the Court finds that it would be inequitable to order DHHR to
provide up to 4,634 members with their service authorization levels from 2014 while the agency
simultaneously prepares to implement a new authorization system that Defendant argues

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ameliorates the Court’s concerns with the old system. In fact, Defendant states that doing both is
impossible. (See ECF No. 157 at 15–16.) Further, contrary to the analysis provided in the previous
memorandum opinion and order issuing the preliminary injunction, (see ECF No. 122 at 14–24),
the Court is uncertain that Plaintiffs remain likely to succeed on their due process claim in light of
the changes incorporated in the new authorization system outlined in Exhibit One to Defendant’s
Motion to Vacate or Modify. (See ECF No. 155-1.) Regarding Plaintiffs’ likelihood of success
on the merits as to the new authorization system, only the due process claim from Plaintiffs’
Amended Complaint is fully briefed by the parties in the Motion to Vacate or Modify. (See ECF
Nos. 156, 163, 167.) Because Defendant has indicated DHHR’s intention to move forward with
implementation of the new authorization system, the Court anticipates another round of briefing
from the parties and, for that reason, declines to resolve the Motion to Vacate or Modify at this
time.
For these reasons, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ Motion to
Extend. (ECF No. 140.)
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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September 20, 2017