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Wilborn v. Martin

United States District Court, M.D. Tennessee

August 15, 2013

JEREMY WILBORN, By next friend and Conservator, TARA WILBORN, Plaintiff,
LARRY MARTIN, Interim Commissioner, Tennessee Department of Finance and Administration; DARIN GORDON, Deputy Commissioner and Director, Bureau of TennCare; and PATTI KILLINGSWORTH, Assistant Commissioner, Chief of Long-Term Care, Bureau of TennCare, Defendants

For Jeremy Wilborn, by next friend and conservator, Tara Wilborn, Plaintiffs: Lee Ann Swarm, LEAD ATTORNEY, Legal Aid of East Tennessee, Knoxville, TN; Lenny Lee Croce, LEAD ATTORNEY, Tennessee Justice Center, Inc., Nashville, TN.

For Larry Martin, Interim Commissioner, TN Dept of Finance and Administration, Patti Killingsworth, Assistant Commissioner, Chief of Long-Term Care, Bureau of TennCare, Darin Gordon, Deputy Commissioner and Director, Bureau of TennCare, Defendants: Linda A. Ross, LEAD ATTORNEY, Carolyn E. Reed, Tennessee Attorney General's Office, Nashville, TN.


William J. Haynes, Jr., Chief United States District Judge.

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Plaintiff, Jeremy Wilborn, by his next friend and conservator, Tara Wilborn, filed this action under 28 U.S.C. § 1331, the federal question statute against the Defendants: Larry Martin, Interim Commissioner, Tennessee Department of Finance and Administration; Darin Gordon, Deputy Commissioner and Director, TennCare Bureau and Patti Killingsworth, Assistant Commissioner, Chief of Long-Term Care, TennCare Bureau. Plaintiff asserts claims under the Americans with Disabilities Act (" ADA" ) 42 U.S.C. § § 12131-12165 and Section 504 of the Rehabilitation Act (" RA" ) 29 U.S.C. § 794(a) for the Defendants' alleged discrimination on the basis of his disability. Plaintiff, who has quadriplegia, is an enrollee in Tennessee's TennCare, a Medicaid program administered by the Defendants. Plaintiff who was a minor, receives daily home health care services, but as an adult the Defendants informed Plaintiff of a substantial reduction in these benefits. For his ADA and RHA claims, Plaintiff alleges that as a qualified person with a permanent disability, the Defendants discriminated against him by severely limiting Plaintiff's existing benefits, that will result in Plaintiff's unjustified institutionalization in a nursing home in violation of the ADA and the RA.

Before the Court is Plaintiff's motion for preliminary injunctive relief (Docket Entry No. 4) contending, in sum, that notwithstanding Plaintiff's treating physician's medical assessment that Plaintiff's medical condition requires twenty four hours of care for seven days a week, the Defendants' TennCare plan limits Plaintiff's home health benefits to a maximum of 40 hours per week of home health care that are insufficient for Plaintiff's prescribed

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medical care. Plaintiff cites potential additional services under the Defendants' Home and Community Based Services (HCBS) under the Defendants' CHOICES program, but the Defendants refuse to provide them. In sum, Plaintiff asserts that the Defendants' cost limitations for services in their CHOICES program will force Plaintiff's institutionalization despite Plaintiff's previous rejection by a nursing home due to his medical treatment needs.

In response, Defendants contend, in essence, that given the State's comprehensive and effective plan for home and community-based services to persons with disabilities, the TennCare benefits and other accommodations offered to Plaintiff do not violate the ADA or RA. Moreover, Defendants assert that any alternation of those benefits to provide Plaintiff his prior health care regimen will cause a fundamental alteration of its TennCare plan that is prohibited by Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). Further, to provide Plaintiff home medical services at costs that exceed the Defendants' individual cost cap or limitation, is not a reasonable accommodation given the State's limited resources and the needs of other individuals with disabilities for the State's CHOICES program.

For the reasons set forth below, the Court concludes that Plaintiff's proof establishes a substantial likelihood of success on his ADA and RA claims. The Court finds that Plaintiff, as a person with a serious and permanent disability, will suffer severe risk of irreparable harm if he is confined at a nursing home. Plaintiff was previously released fro a nursing home due to the demands of his medical care. The TennCare program for minors had determined that Plaintiff was in need of his current home care services. Plaintiff presented a home care services plan for his continuing care that is consistent with the Defendants' CHOICES program. The preliminary injunctive relief to effect Plaintiff's medical care plan does not present a fundamental alteration of the Defendants' CHOICES program nor pose any injury to any enrollee or prospective enrollee in the CHOICES program.

A. Findings of Fact

1. Plaintiff's Medical Care History

Plaintiff suffered an anoxic brain injury as a result of a suicide attempt in 2006 and enrolled in TennCare in January 2007. (Docket Entry No. 16, Dr. Willis Declaration at ¶ ¶ 3, 5). Plaintiff now receives twenty four hour home health care services at his residence from a private duty nurse who provides twelve hours care and a home health aide who also provides twelve hours care. (Docket Entry No. 16, Dr. Willis Declaration at ¶ ¶ 5, 8). Plaintiff is unable to attend to his bodily needs and is unable to communicate except that family members interpret his facial expressions and sounds as communicating with them. (Docket Entry No. 15, Swiney Declaration at ¶ 21, and Docket Entry No. 4, Exhibit B at ¶ 2 and Exhibit C at ¶ 3). Tara Wilborn, Plaintiff's mother, who is also his conservator, testified that Plaintiff enjoys activities outside the home, such as family gatherings movies, shopping and attending Church, with the assistance of others. (Docket entry No. 4, Exhibit B at ¶ 9).

Crabtree v. Goetz, No. 3: Id [1] Crabtree v. Goetz,

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No. 3:08-0939, 2008 WL 5330506, at **30-3 (M.D. Tenn. Dec. 19, 2008), TennCare continued Plaintiff's existing home health services until implementation of the Defendants' CHOICES program and completion of Plaintiff's individualized assessment thereunder. From June 19, 2008 until this action, Plaintiff received 24 hours of home medical treatment seven days a week. (Docket Entry No. 16, Dr. Willis Declaration at ¶ ¶ 5, 8). This care consisted of twelve hours per day for private duty nursing and twelve hours per day for home health aide care. Id. During this period, Plaintiff was under 21 years of age and his benefits were under the Defendants' plan for Early and Periodic Screening, Diagnosis, and Treatment (" EPSDT" ). Id. at ¶ 6. Plaintiff who is now over 21 years of age, is ineligible for EPSDT benefits. Id.

BlueCare, one of the Defendants' managed care organizations (" MCOs" ) that administer services for the Defendants' CHOICES program for adult care will determine his home health care benefits. Id. at ¶ ¶ 3, 5. In early 2012, BlueCare initiated its assessment of Plaintiff's medical needs and evaluated Plaintiff for community-based services through Tennessee's CHOICES program. (Docket Entry No. 15, Swiney Declaration at ¶ 3). Under TennCare benefit limits and the CHOICES program, qualified enrollees are not entitled to all medical services necessary to remain in their homes. BlueCare had to develop a plan for Plaintiff's medical care consistent with CHOICES's covered benefits. (Docket Entry No. 17, Killingsworth Declaration at ¶ 48). Plaintiff's mother who is also Plaintiff's conservator rejected BlueCare's various options for her son's medical care, including for hiring of a 24-hour live-in caregiver to assist with personal care and health care tasks and attendant care with 15 hours per day at an hourly rate of $10). (Docket Entry No.15, Swiney Decl., ¶ ¶ 12-18, 30, 34, 37). Defendants note that Plaintiff's

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mother was unreceptive to providing care for her son when paid care would be unavailable due to CHOICES cost limit. Id. at ¶ 17. Plaintiff's mother also rejected skilled nursing facility (" Level 2 NF" ) care rating for her son's placement in a nursing home and terminated the enrollment process. Yet, in February 2013, BlueCare performed two home visits, but Plaintiff's mother again rejected BlueCare's options for community services or nursing facility reimbursement through CHOICES program. Id. at ¶ ¶ 6-27.

On May 3, 2013, Dr. Mathew T. Kraus and Tina Williams, a registered nurse performed a " HOME HEALTH CERTIFICATION AND PLAN OF CARE" for Plaintiff that reads, in pertinent part:

" Orders for Discipline and Treatments (Specify Amount/Frequency/Duration)
FR Private Duty Frequency: SN 84 and CNA 84 hours per week
SN SN to administer medications via g-tube with 120ml H20
SN to administer feedings via g-tube Flush with 120 ml H20
Additional Interventions to include: SN to apply glasses PRN Q shift
Additional Intervention to include: SN to apply eye patch to affected eye PRN for squinting of eyes or dilated pupil
Additional Interventions to include: SN to cleanse nares PRN with BBG; to keep nasal airway passage clear

(Docket Entry No. 26-4 at 1). Plaintiff was rated as having functional limitations in six of the nine functional categories. Id.

Dr. Kraus, an internist and pediatrician who has been Plaintiff's primary care physician since Plaintiff was 5 years old, filed his declaration in this action that reiterates his earlier findings, but adds that " [w]ithout the level of home health care he receives now [168 hours], it is my opinion, based on a reasonable medical certainty, that Jerry will be at great risk of further complications requiring hospitalization at greater expense than the home health care" . (Docket Entry No. 4, Exhibit C at ¶ 6). Dr. Kraus also stated that with the Defendants' proposed care of 40 hours of home health services, Plaintiff will be forced to be placed in a nursing home. Id. at ¶ ¶ 5-7. Kraus is unaware of any medical study that a nursing home is an appropriate medical placement for a person with Plaintiff's condition. Id. In Dr. Kraus's opinion, Plaintiff needs a higher level of care than provided in a nursing home and additional staff would be necessary. Id. Dr. Kraus also stated that it is not safe for Mr. Wilborn to be left by himself because of his constant need for " secretion/pulmonary" care. Id.

Dr. Robert Chironna who specializes in rehabilitation medicine at the Patricia Neal Rehabilitation Center in Knoxville agrees with Dr. Kraus that Plaintiff cannot be alone because of his constant need for suctioning. (Docket No. 4, Exhibit D. At ¶ 3). In Dr. Chironna's opinion, Plaintiff's condition is " complex enough that he requires frequent suctioning ... needs frequent position changes and multiple tube treatments and feedings Id. Given his condition, Dr. Chironna notes that Plaintiff id " unable to use his hands and cannot push a button" Id. at ¶ 4. Dr. Chironna shares Dr. Kraus's opinion that the Defendants' proposed offer of home services would require Plaintiff's placement in a nursing home and such placement creates a greater risks of hospitalization that would exceed the cost of his current home care regimen. Id. at ¶ ¶ 6-8. In a second affidavit, Dr. Chironna opines that Plaintiff's need for constant suctioning cannot be provided by the typical nursing facility and recommends a tracheotomy unless Plaintiff can receive constant suctioning. (Docket Entry No. 26-10 at 2-3).

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Rena Yeary, a licensed practical nurse who has been one of Plaintiff's providers and prior to that worked in skill nursing facilities, submitted her affidavit on Plaintiff's medical needs and the likely effects of a nursing home placement. (Docket Entry No. 26-11 at ¶ ¶ 1-3). Yeary describes Plaintiff as a " silent aspirator" who does not evince any warnings or signs of his need to aspirate. Id. at ¶ 2. Because Plaintiff cannot be heard from another room, " he requires constant monitoring" . Id. In Yeary's experience, a nurse in a long term care facility has 20 to 30 patients in addition to rounds and could not provide the requisite care for Plaintiff. Id. at ¶ 3.

Plaintiff notes that the Center for Medicaid and Medicare Services (CMS) collects data concerning nursing facility staffing and makes ratings available online at Among six nursing facilities within 25 miles of Plaintiff's home in Morristown, the highest ranked facility for staffing averaged less than 5 staff hours (including RNs, LPNs, CNAs and PTs) per resident per day; the lowest averaged about 3.5 staff hours per resident per day. (Docket Entry No. 26-9 at ¶ 4). In Crabtree, the Court noted " [a] recent report" of " a CMS study [that] ranked Tennessee's nursing homes 47th among the States. The Tennessean, December 18, 2008 at p.1." 2008 WL 5330506 at * 20 n.5.

Dr. Andrea Willis, BlueCare's director for its CHOICES program, responds that BlueCare had never determined that Plaintiff needed 24/7 care that is not provided in any medical care setting. (Docket Entry No. 16 at ¶ ¶ 2-3). Dr. Willis stated that the care sought for Plaintiff " is simply not provided elsewhere - not in adult patient homes, nursing facilities, or routinely in hospital inpatient settings. Certainly, patients receive periodic episodes of hands-on, one-on-one care as needed. However, a nurse or aide is not assigned to a patient's bedside every hour of every day. Such care is prohibitively expensive and is more than is required" . Id. at ¶ 23. As to Plaintiff's need for additional nurses for his nursing home placement, Dr. Wiillis stated that those issues could be addressed during the admission process, and the nursing facility would provide the staffing and plan necessary to provide appropriate care for Plaintiff, but the reimbursement rate to the hospital for Plaintiff's care would remain the same. Id. at ¶ 21. The Defendants do not explain the economic viability of the nursing home agreeing to provide additional nurses without additional compensation or reimbursement.

By notice dated February 20, 2013, Blue Care informed Plaintiff that as of March 2, 2013, Plaintiff would receive only 40 hours of home health services and or placement in a nursing facility. (Docket No. 4, Exhibit A). BlueCare also notified Plaintiff that his current services of private duty nurse and home health aide would also end effective March 2, 2013. (Docket Entry No.16, Dr. Willis Declaration, Exhibit B thereto and Docket Entry No. 15, Swiney Declaration at ¶ 28). At some point, BlueCare offered Plaintiff 30 hours per week of home nursing services and 10 hours per week for a home health aide, the maximum benefits for adults with similar circumstances as Plaintiff. Id. Defendants also informed Plaintiff that he was eligible for 101.5 hours of care per week through the CHOICES program, but this limit created a 66.5 hour gap each week that Plaintiff's mother is unable to cover. Defendants contend those offered services actually exceed the applicable benefit limits for adults. Id. Tenn. Comp. R. & Regs. 1200-13-13-.01 (56).

Plaintiff appealed BlueCare's service reduction plan. (Docket Entry No. 15, Swiney

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Declaration, at ¶ ¶ 28-37). An Administrative Law Judge (" ALJ" ) determined Blue Care correctly terminated Plaintiff's daily twenty four hour services benefits, but also found that " Petitioner cannot be left alone primarily due to his inability to swallow properly. Petitioner frequently chokes on hs saliva which must be cleared from his throat using a suction device" (Docket Entry No. 26-8 at 2) (emphasis added). The ALJ also found that " Petitioner [Plaintiff] " requires 24 hours per day, 7 days per week of either PDN or HHA care to meet his medical needs." Id. (emphasis added).

2. Defendants' CHOICES Program[2]

Tennessee's Long Term Care Community Choices Act authorizes the creation of a " long-term care system" that " shall promote independence, choice, dignity, and quality of life ... and shall include consumer-directed options that offer more choices regarding the kinds of long-term care services people need [and] shall offer services ... delaying or preventing the need for more expensive, institutional care." Long Term Care Community Choices Act of 2008, Pub. Ch. No. 1180, Senate Bill No. 4181, an Act to amend Tenn. Code Ann., Title 63, 68 and 71. This legislative goal promotes the purposes of the ADA and RHA.

A part of the State's " long term care system" is the Defendants' TennCare program that is authorized and funded by the United States in a ratio of $3 in federal funds to every $1 of state funds. Defendants note that Federal regulations on State waivers for home and community based medical care services require cost neutrality between the cost of community care and the institutional care, such as a nursing facility. Defendants assert that the Center for Medicare and Medicaid Services ('CMS" ) will not approve such a waiver request unless the State Medicaid agency provides specific assurances of cost neutrality of the waiver program. (Docket Entry No. 17, Killingsworth Declaration, at ¶ 18, n. 3, citing 42 C.F.R. § 441.302). According to Defendants, this cost neutrality mandate requires the State to ensure that the per capita cost of providing home and community based services and all other Medicaid services to enrollees in the HCBS Waiver program does not exceed the per capita cost of providing institutional care plus the cost of providing all other Medicaid services to institutionalized residents that are not included in the payment for the institutional care. Defendants cite 42 C.F.R. § 441.301(a)(3) as providing that a State's waiver application must specify whether cost neutrality will be ...

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