M.R. v. Dreyfus

FILED
FOR PUBLICATION DEC 16 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

M. R.; S. J.; C. B.; D. W.; A. B.; M. B.; No. 11-35026
AN. B.; J. B.; K. S.; T. M.; A. R.; M. J. B.;
J. H.; H. C.; THE ARC OF D.C. No. 2:10-cv-02052-TSZ
WASHINGTON; SERVICE
EMPLOYEES INTERNATIONAL
UNION HEALTHCARE 775NW; PUGET OPINION
SOUND ALLIANCE FOR RETIRED
AMERICANS,

Plaintiffs - Appellants,

v.

SUSAN DREYFUS, in her professional
capacity as Secretary of Washington State
Department of Social and Health Services;
WASHINGTON STATE DEPARTMENT
OF SOCIAL AND HEALTH SERVICES,
a Department of the State of Washington,

Defendants - Appellees.

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding

Argued and Submitted June 9, 2011
Seattle, Washington

Filed December 16, 2011
Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.

Opinion by Judge William A. Fletcher

W. FLETCHER, Circuit Judge:

Plaintiffs, Washington State Medicaid beneficiaries with severe mental and

physical disabilities, appeal the district court’s denial of their motion for a

preliminary injunction. Plaintiffs seek to enjoin the operation of a regulation

promulgated by Washington’s Department of Social and Health Services

(“DSHS”) that reduces the amount of in-home “personal care services” available

under the state’s Medicaid plan. The United States Department of Justice has filed

a “statement of interest” in the district court supporting Plaintiffs’ request for an

injunction.

“Personal care services” provide assistance in performing basic life activities

— such as eating, bathing, dressing, moving from place to place, and using the

toilet — that Plaintiffs, because of their disabilities, cannot perform by themselves.

To comply with Governor Christine Gregoire’s executive order that directed an

across-the-board reduction in all state agency expenditures, DSHS promulgated a

regulation that cut the base hours of covered in-home personal care services by an

average of 10 percent per beneficiary per month.

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 Plaintiffs argue principally that the regulation violates the antidiscrimination

provisions of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the

Rehabilitation Act, 29 U.S.C. § 794(a), because the reduction in hours will

substantially increase the risk that they will be institutionalized in order to receive

care adequate to maintain their mental and physical health. The district court

denied preliminary relief.

We reverse. We conclude that Plaintiffs have demonstrated a likelihood of

irreparable injury because they have shown that reduced access to personal care

services will place them at serious risk of institutionalization. We further conclude

that Plaintiffs have raised serious questions going to the merits of their

Rehabilitation Act/ADA claims, that the balance of hardships tips sharply in their

favor, and that a preliminary injunction will serve the public interest. See Alliance

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). We

therefore remand for entry of a preliminary injunction.

I. Background and Procedural History

A. Factual Background

Medicaid is a cooperative federal-state program under which the federal

government provides states with financial assistance to supply medical services to

low-income people. Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 617 (9th

3
Cir. 2005). State participation is voluntary, but once a state chooses to participate,

the state must submit for federal approval a plan that complies with federal

statutory and regulatory requirements. Alexander v. Choate, 469 U.S. 287, 289 n.1

(1985); Townsend v. Quasim, 328 F.3d 511, 514 (9th Cir. 2003). A state plan must

cover the cost to eligible people of certain medical services, including inpatient and

outpatient hospital care; laboratory and X-ray services; nursing facility care; and

services provided by physicians, dentists, nurse-midwives, and pediatric or family

nurse practitioners. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17), (21);

42 C.F.R. §§ 440.210, 440.220. Within this federal framework, however, states

retain “substantial discretion to choose the proper mix of amount, scope, and

duration limitations on coverage.” Alexander, 469 U.S. at 303; see also Beal v.

Doe, 432 U.S. 438, 444 (1977); 42 C.F.R. § 430.0.

States may, but need not, choose to subsidize other types of medical

services, including “personal care services,” the benefit at issue here. See 42

U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(24). “Personal care services” are:

services furnished to an individual who is not an inpatient or resident
of a hospital, nursing facility, intermediate care facility for the
mentally retarded, or institution for mental disease that are

(A) . . . authorized for the individual in accordance with a
service plan approved by the State,

4
 (B) provided by an individual who is qualified to provide
such services and who is not a member of the
individual’s family, and

(C) furnished in a home or other location.

Id. § 1396d(a)(24); see also 42 C.F.R. § 440.167(b) (clarifying that a family

member is “a legally responsible relative”); CTRS. FOR MEDICARE AND MEDICAID

SERVS., STATE MEDICAID MANUAL § 4480(C), at 4-495 (1999) (personal care

services “include a range of human assistance provided to persons with disabilities

and chronic conditions . . . which enables them to accomplish tasks that they would

normally do for themselves if they did not have a disability,” and “most often

relate[] to . . . eating, bathing, dressing, toileting, transferring, . . . maintaining

continence, . . . personal hygiene, light housework, laundry, meal preparation,

transportation, grocery shopping, using the telephone, medication management,

and money management”).

Washington has elected to cover the cost of personal care services, which the

state defines as “physical or verbal assistance with activities of daily living and

instrumental activities of daily living provided because of a person’s functional

disability.” WASH. REV. CODE § 74.39A.009(18). The state defines “activities of

daily living,” in turn, to include bathing, bed mobility, body care, dressing, eating,

locomotion inside and outside one’s room and immediate living environment,

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walking in one’s room and immediate living environment, medication

management, toilet use, transferring between surfaces, and personal hygiene.

WASH. ADMIN. CODE § 388-106-0010. The state defines “instrumental activities of

daily living” as including meal preparation, ordinary housework, essential

shopping, wood supply when wood is used as one’s sole source of heat, travel to

medical services, managing finances, and telephone use. Id.

Washington’s DSHS administers the state’s Medicaid programs. See 42

U.S.C. § 1396a(a)(5); WASH. REV. CODE § 74.09.530. DSHS covers the cost of

personal care services for approximately 45,000 people. Some 15,000 of those

beneficiaries are “categorically needy” participants in the state’s Medicaid plan.

The remaining 30,000 beneficiaries participate in one of Washington’s Medicaid

waiver programs, “under which the Secretary of Health and Human Services is

authorized to waive certain Medicaid requirements for innovative or experimental

state health care programs.” Townsend, 328 F.3d at 514. Consistent with

Congress’s preference for community rather than institutional care, “the waiver

program provides Medicaid reimbursement to States for the provision of

community-based services to individuals who would otherwise require institutional

care, upon a showing that the average annual cost of such services is not more than

6
the annual cost of institutional services.” Olmstead v. L.C. ex rel. Zimring, 527

U.S. 581, 601 n.12 (1999) (citing 42 U.S.C. § 1396n(c)).

Before Washington may cover the cost of in-home personal care services to

participants in a Medicaid waiver program, the state must have made “a

determination that but for the provision of such services the individuals would

require the level of care provided in a hospital or a nursing facility or intermediate

care facility for the mentally retarded the cost of which could be reimbursed under

the State plan.” Id. § 1396n(c)(1); 42 C.F.R. §§ 435.217, 441.302(c); see also,

e.g., WASH. ADMIN. CODE § 388-106-0310(4) (participants in Community Options

Program Entry Services (“COPES”) waiver program must “need the level of care

provided in a nursing facility”); id. §§ 388-106-0410(4), 388-106-0510(4) (same

with respect to participants in Medically Needy Residential Waiver (“MNRW”)

and Medically Needy In-Home Waiver (“MNIW”) programs); id. § 388-845-

0030(2) (developmentally disabled participants in Home and Community-Based

Services (“HCBS”) waiver programs must need the level of care provided in an

intermediate care facility for the mentally retarded).

DSHS determines the number of hours of in-home personal services care to

which a Medicaid beneficiary is entitled through the Comprehensive Reporting

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Evaluation (“CARE”). See WASH. ADMIN. CODE § 388-106-0050 to -0145. The

Washington Supreme Court has described CARE as follows:

In the initial stage of a CARE evaluation, the individual is scored on
factors such as an individual’s ability to perform daily activities and
an individual’s mental status. The individual is then assigned to 1 of
17 classification groups, each group having a set number of base . . .
hours associated with it. Once these base hours are established, an
assessor individually considers the recipient’s self-performance and
the amount of informal support available for the recipient’s activities
of daily living (ADL) and instrumental activities of daily living
(IADL). The recipient’s level of informal support for each ADL and
IADL then reduces the base hours allocated to that recipient by a
predetermined percentage.

Samantha A. v. Dep’t of Soc. & Health Servs., 256 P.3d 1138, 1140 (Wash. 2011)

(en banc) (internal citation omitted); see also, e.g., Jenkins v. Wash. Dep’t of Soc.

& Health Servs., 157 P.3d 388, 389-90 (Wash. 2007) (en banc). DSHS sets the

base monthly hours associated with each classification group by regulation.

WASH. ADMIN. CODE § 388-106-0125. DSHS conducts CARE reassessments at

least annually, or whenever a beneficiary’s ability to care for himself changes. Id.

§ 388-106-0050(1). A beneficiary who disagrees with his CARE evaluation may

appeal the evaluation in an administrative hearing. Id. § 388-106-1305. A

beneficiary who remains dissatisfied with his allocated hours of assistance may

request additional hours through an Exception to Rule (“ETR”). Id. § 388-440-

0001. DSHS will grant an ETR when “[t]he client’s situation differs from the

8
majority; . . . [i]t is in the interest of overall economy and the client’s welfare; and

[i]t increases opportunities for the client to function effectively.” Id. § 388-440-

0001(1)(b)-(d).

Once the CARE evaluation sets the number of hours to which a beneficiary

is entitled, the beneficiary and his DSHS case manager work together to design a

plan of care that specifies the services that the beneficiary will receive as well as

the caregivers who will provide those services. Id. §§ 388-106-0045, 388-106-

0130. At all times, a beneficiary has the right to choose where he will receive

authorized services (for example, in his home, in a residential facility, or in a

nursing home), id. § 388-106-0030; to “[t]ake part in and have [his] wishes

included in planning [his] care,” id. § 388-106-1300(13); and to “[c]hoose, fire, or

change” his caregiver, id. § 388-106-1300(14).

On September 13, 2010, Governor Gregoire issued an executive order

stating that because of “the national economic downturn” and “revenues [that]

have fallen short of projections,” the state’s general fund was in danger of running

a deficit. Exec. Order No. 10-04, Ordering Expenditure Reductions in Allotments

of State General Fund Appropriations (Sept. 13, 2010), available at

http://www.governor.wa.gov/execorders/eo_10-04.pdf. Governor Gregoire

ordered an across-the-board reduction in general fund appropriations to all state

9
agencies, in an amount to be computed by the state’s Office of Financial

Management. Id; see WASH. REV. CODE § 43.88.110(7) (“If at any time during the

fiscal period the governor projects a cash deficit in a particular fund or account . . .

the governor shall make across-the-board reductions in allotments for that

particular fund or account so as to prevent a cash deficit.”). The Office of

Financial Management, in turn, determined that each state agency would be

required to reduce its allotment from the general fund by 6.287 percent. See Office

of Fin. Mgmt., Allotment Reduction Instructions for Across-the-Board Cuts

Mandated by Executive Order 10-04, at 2 (Sept. 16, 2010), available at

http://www.ofm.wa.gov/budget/instructions/allotment/Allotment_reduction_instru

ctions091610.pdf.

To comply with the governor’s order, DSHS promulgated an emergency

regulation that reduced the base monthly hours of in-home personal services care

authorized for each CARE classification group, effective January 1, 2011. See

Wash. Reg. 11-02-041 (Dec. 30, 2010) (codified at WASH. ADMIN. CODE § 388-

106-0125), available at

http://apps.leg.wa.gov/documents/laws/wsr/2011/02/11-02-041.htm. DSHS

applied the lowest percentage reductions to the classification groups composed of

the most disabled beneficiaries. See WASH. REV. CODE § 74.09.520(4) (“Any

10
reductions in services made necessary for funding reasons should be accomplished

in a manner that assures that priority for maintaining services is given to persons

with the greatest need as determined by the assessment of functional disability.”).

For example, DSHS reduced the base monthly hours for people in group D High

from 277 to 260, a 6.1 percent decrease. Wash. Reg. 11-02-041. By contrast,

DSHS reduced the monthly base hours for people in group B Low from 47 to 39, a

17 percent decrease. Id. The average reduction in hours across all groups was

about 10 percent. Susan Dreyfus, DSHS’s Director, declared in January 2011 that

the reduction in hours would save $19.2 million in the five months then remaining

in the 2011 fiscal year. DSHS acknowledged in agency planning documents that

“[w]ith reduced hours, in-home clients will have to choose which tasks their

employees spend their time on and there may not be enough time to complete all

tasks.” Moreover, DSHS anticipated that “[a]t the higher percentage reductions,

some needed tasks may not be completed on a regular basis. In some cases, a safe

in-home plan of care will not be possible and clients may need to go to community

residential or nursing facility settings.”

On December 6, 2010, about three weeks before the reduction was to take

effect, DSHS mailed notice of the change to beneficiaries. The notice stated that

“you will receive fewer personal care hours each month starting January 1, 2011,”

11
set forth the beneficiary’s current and revised monthly hours, and computed the

difference. The notice stated that “[t]his notification serves as an amendment to

your plan of care. You will need to work with your personal care worker to

prioritize tasks within this reduced number of monthly authorized hours.” Finally,

the notice explained that DSHS

is making this change in response to the Governor’s September 14th
Executive Order 10-04 for 6.3% reductions. This was one of a
number of changes made across government to address the State’s
revenue shortfall.
There are no appeal rights for this change through the Office of
Administrative Hearings because this is a service change directed by
the governor and applies to the entire program. We know these
changes may be difficult for you. If you have questions or concerns
about changes to your services, please contact your case manager.

B. Procedural History

On December 23, 2010, Plaintiffs — 14 recipients of in-home personal

services care whose hours were reduced, two advocacy organizations, and a union

that represents Washington home-care workers — brought suit in federal district

court for the Western District of Washington. The 14 individual plaintiffs sued on

behalf of a proposed class of “Medicaid-eligible individuals in the State of

Washington living at home who were assessed to need personal care services based

upon individualized CARE assessments of their needs and who received these

Medicaid services in accordance with their assessment[s] until DSHS reduced their

12
services to below their level of need for budgetary reasons alone.” Plaintiffs

alleged that the regulation violated the Americans with Disabilities Act, 42 U.S.C.

§ 12132, the Rehabilitation Act, 29 U.S.C. § 794(a), due process, and various

statutory and regulatory Medicaid requirements. Plaintiffs sought a declaratory

judgment, as well as a temporary restraining order and preliminary and permanent

injunctions prohibiting DSHS from implementing the regulation. In the

alternative, Plaintiffs sought to enjoin the reduction in hours until beneficiaries

received individual CARE reassessments, notice of alternative institutional

placements, and administrative hearings.

The district court denied the motion for a TRO and deferred hearing on the

motion for a preliminary injunction. Plaintiffs appealed the denial of the motion

for a TRO, prompting the district court to stay proceedings and cancel a scheduled

hearing on Plaintiffs’ motion for a preliminary injunction. On appeal, a motions

panel of this court stayed implementation of the emergency regulation pending the

district court’s disposition of the motion for a preliminary injunction. The panel

concluded that denial of the TRO was reviewable “because the district court took

the hearing for the motion for preliminary injunction off calendar,” making denial

of the TRO “tantamount for present purposes to the denial of a motion for a

preliminary injunction.” On the merits, the panel determined that a stay pending a

13
hearing on the motion for a preliminary injunction was justified because “[n]o

other relief is available that will remedy the irreparable injury which continues to

occur pending such hearing.”

On remand, the district court denied Plaintiffs’ motion for a preliminary

injunction. The court determined that Plaintiffs failed to satisfy any prong of

Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008). According to the court,

Plaintiffs did not demonstrate a likelihood of irreparable injury because they

“failed to submit evidence that the reduction will deny beneficiaries needed

services, or that it will create a serious risk of institutionalization.” Nor, in the

view of the court, were Plaintiffs likely to succeed on the merits. Plaintiffs were

unlikely to prevail on their ADA/Rehabilitation Act claim because “the State’s

budget reduction does not leave individuals with no choice [but] to submit to

institutional care to obtain needed services” and because “it is likely that requiring

the State to continue current funding levels for personal care services indefinitely

would constitute a fundamental alteration in the State’s Medicaid program.”

Implementation of the emergency regulation did not violate due process because

“Medicaid recipients are not entitled to notice and a hearing when the State

implements a mass change that affects . . . all recipients.” The court rejected

Plaintiffs’ Medicaid claims by adopting the reasoning of its order denying

14
Plaintiffs’ motion for a TRO. Finally, the balance of hardships and the public

interest favored DSHS because the challenged reductions “do not involve medical

care.” The court conceded that “a few of the plaintiffs” might “ultimately require

institutionalization as a result of the State’s reduction in services.” However, the

court found “the possible threat of institutionalization for a few personal care

service beneficiaries” outweighed by “the State’s interest in balancing the

competing needs of a host of different state-sponsored social service programs that

currently provide aid to a diverse group of medically and financially disadvantaged

state residents.”

Plaintiffs appealed. The district court stayed proceedings, including

disposition of the motion for class certification, pending our decision.

II. Standard of Review

We review the denial of a preliminary injunction for abuse of discretion.

Alliance for the Wild Rockies, 632 F.3d at 1131. A district court abuses its

discretion if it bases its decision “on an erroneous legal standard or clearly

erroneous findings of fact.” Id. (quoting Lands Council v. McNair, 537 F.3d 981,

986 (9th Cir. 2008) (en banc)). We review a district court’s legal conclusions de

novo and its factual findings for clear error. Id. (quoting Lands Council, 537 F.3d

at 986-87). In doing so, “we first look to whether the trial court identified and

15
applied the correct legal rule to the relief requested. Second, we look to whether

the trial court’s resolution . . . resulted from a factual finding that was illogical,

implausible, or without support in inferences that may be drawn from the facts in

the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en

banc).

To obtain a preliminary injunction, a plaintiff “must establish that he is

likely to succeed 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.” Winter, 555 U.S. at 20. A preliminary

injunction is proper if there is a likelihood of irreparable injury to plaintiff; there

are serious questions going to the merits; the balance of hardships tips sharply in

favor of the plaintiff; and the injunction is in the public interest. Alliance for the

Wild Rockies, 632 F.3d at 1131-32.

III. Discussion

For the reasons that follow, we conclude that the district court abused its

discretion in denying the motion for a preliminary injunction under the standard

articulated in Alliance for the Wild Rockies. We reach only Plaintiffs’ claims under

the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

A. Irreparable Injury

16
 The 12 named Plaintiffs remaining in this litigation submitted substantial

evidence that the emergency regulation threatens them with a serious risk of

institutionalization.1 DSHS contested this evidence as to some named Plaintiffs,

but as to others it offered either unsubstantiated and conclusory responses or no

responses at all. The district court rejected Plaintiffs’ showing by relying on three

general rationales. It wrote that Plaintiffs “fail to show a threat of harm because

they (1) ascribe the threat of institutionalization to [their] deteriorating medical

conditions, unrelated to the provision of personal care services hours; (2)

demonstrate ineffective management of currently allocated personal care services

hours; or (3) identify non-personal care services as the cause of their predicted

institutionalization.” We conclude that the district court did not sufficiently

consider individualized evidence that the named Plaintiffs were likely to suffer

irreparable injury. We describe three Plaintiffs whose situations illustrate the

inadequacy of DSHS’s responses, as well as the inadequacy of the general

rationales, to counteract Plaintiffs’ showing of the likelihood of irreparable injury.

1. M.R.

1
Two of the original 14 named Plaintiffs no longer allege that they face a
risk of institutionalization. Plaintiff M.J.B. has received an ETR increasing her
authorized hours, and Plaintiff H.C. has died, for reasons unrelated to the hours
reduction.
17
 Lead plaintiff M.R., a 37-year-old woman, suffers from severe mental

retardation, daily grand and petite mal seizures, scoliosis, cerebral palsy,

hypothyroidism, and mood disorder. M.R. lives with her mother, a registered

nurse, who provides personal care services. M.R.’s mother assists her with almost

all basic activities of daily life, including eating, toilet care, bathing, dressing,

medication management, and moving from place to place. She prepares all of

M.R.’s meals and feeds M.R. through a tube when she refuses to eat. M.R.’s

feeding tube “requires extensive maintenance because the tube was inserted too

low and has a tendency to ooze and become infected, and because [M.R.] has a

tendency to grab and pull on it.” M.R. is incontinent, wears adult diapers, and

cannot use the toilet or clean herself without assistance. “Frequently,” M.R. “has

accidents” and “[a]s a result of incontinence, . . . must bathe at least twice a day to

remove urine and sometimes feces.” M.R. likes to choose her own clothing, but

needs her mother’s assistance to dress and undress herself. Because of her

scoliosis and cerebral palsy, M.R. “requires assistance for walking, . . . is unsteady

on her feet, . . . has poor balance and unequal leg length, and her knees buckle.”

M.R.’s mother administers her numerous prescription medications through her

feeding tube several times a day.

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 M.R. participates in a Medicaid waiver program administered by DSHS’s

Division of Developmental Disabilities. That is, M.R. is eligible for full-time

institutional care, see 42 U.S.C. § 1396n(c)(1), WASH. ADMIN. CODE § 388-845-

0005, but M.R.’s mother has chosen to care for her at home “because her extensive

personal care and medical needs are best served at home . . . . M.R. loves the

independence she is afforded by living at home to set her own schedule, do

puzzles, color or trace letters, and spend time with [her mother] playing with beads

or sorting coins.” M.R.’s CARE assessment assigned her to group D Medium-

High, a designation that entitled her to 236 hours of in-home personal care services

per month. As is true of many family providers of personal care services, M.R.’s

mother provides more than 236 hours of care per month; the additional hours go

uncompensated. The emergency regulation reduced M.R.’s authorized hours of

compensated time to 215 per month, a decrease of 8.9 percent.

Before the challenged regulation took effect, a DSHS assessment of M.R.

concluded that her household was in “crisis mode” and at “serious risk of failure.”

The emergency regulation, M.R.’s mother declared, “will push us, in our already

vulnerable situation, over the edge. . . . I will have to find a job outside of the

house and cut back the time spent caring for M.R. . . . Already, I am stretched thin

and am living on the margin. . . . I cannot provide more care for no pay when

19
already there are insufficient funds to keep our household afloat.” M.R.’s mother

declared, “[i]f M.R.’s hours are reduced from their present levels, I will have no

other option but to take another job, which will require moving M.R. into an

institutional facility. I cannot afford to continue giving services at the rate that I

have[.] I have to get an outside job, and I know of no other individual, Adult

Family Home or Personal Care Provider who can take care of M.R. due to her

medical and behavioral issues.” If M.R.’s mother is forced to take a paying job

outside the home, M.R. will lose more than just 21 hours of care per month. She

will lose the 21 compensated hours, but she will also lose the uncompensated hours

that her mother was previously able to provide because she was not employed

outside the home.

Because M.R. has difficulty communicating, is “disruptive and aggressive,”

and “makes unwanted physical contact with others . . . by trying to hug them or

assault them,” she will likely suffer in an institutional setting; indeed, she has

previously been expelled from two Adult Day Health facilities. Institutional

placement will exacerbate M.R.’s already severe mental and physical disabilities.

Dr. William Gardner, an expert in habilitative mental health treatment, declared

that “[w]hen individuals with . . . developmental disabilities . . . would be able to

live successfully in the community, but are institutionalized because of insufficient

20
home and community based support, that is likely to result in frustration, despair,

hopelessness, and the severe deterioration of their mental and often physical

health.”

In response to M.R.’s factual allegations, DSHS introduced a declaration

from Geri-Lyn McNeill, a DSHS program manager. McNeill has never met M.R.

McNeill declared that she “spoke to [M.R.’s] case manager[;] he does not believe

that the decrease in hours would significantly increase the risk of injury, health

deterioration or institutionalization for M.R.”

The district court found that M.R. had made an insufficient showing of

irreparable injury for three reasons, none of them specific to M.R. First, the court

determined that M.R.’s medical condition, like that of eight other named Plaintiffs

(S.J., A.B., An.B., M.B., J.B., J.H., D.W., and C.B.), had “deteriorated since [her]

last CARE assessment.” Consequently, the court was “unable to determine

whether the alleged threat of institutionalization [M.R.] face[s] is the result of the

State’s reduction in personal care service hours or the deterioration in [her] medical

condition[].”

This finding misapprehends the law of causation in the context of an

irreparable injury inquiry. M.R. did indeed provide evidence that her condition

had deteriorated since her July 2010 CARE assessment. She suffered infections

21
and injured her head, back, and chin during grand mal seizures. M.R.’s feeding

tube fell out, leaving her with an open wound and causing dehydration. Her

replacement feeding tube makes it painful for M.R. to eat and drink, so her mother

must give her food and water in smaller, more frequently administered, quantities.

M.R.’s mobility has also worsened, making it more difficult for her mother to help

her use the toilet and clean herself. M.R.’s decline in health has necessitated more

trips to hospitals and physicians for care, and these trips consume more time

because M.R. cannot move as easily as she once could.

M.R.’s mother’s filed two declarations. Her first declaration, filed before

any of the incidents of deterioration just discussed occurred, established that the

reduction in hours would threaten M.R. with institutionalization even in her pre-

deterioration condition. Her second declaration, which described M.R.’s

deteriorating condition, showed that the risk of institutionalization had grown, not

that it had newly arisen. A plaintiff who seeks preliminary injunctive relief must

show “that irreparable injury is likely in the absence of an injunction.” Winter, 555

U.S. at 22. She need not further show that the action sought to be enjoined is the

exclusive cause of the injury. See, e.g., Harris v. Bd. of Supervisors, 366 F.3d 754,

766 (9th Cir. 2004). In Harris, we affirmed a preliminary injunction barring Los

Angeles County from closing one hospital that served indigent patients and

22
reducing the number of beds at another. Id. at 766-67. We determined that the

patients had shown that reducing the available public health care facilities would

likely cause them irreparable harm that “includes pain, infection, amputation,

medical complications, and death due to delayed treatment.” Id. at 766. This was

so “[a]lthough delays exist in the stretched county health care system already.” Id.

We affirmed because “exacerbation of the current overcrowded situation and

additional suffering [could] be avoided” by enjoining the hospital closures. Id.

Likewise, in Brown v. Plata, 131 S. Ct. 1910, 1936-37 (2011), the Supreme

Court affirmed an injunction ordering a reduction in California’s prison population

even though the constitutional violations that prompted the injunction —

systemwide deficiencies in the provision of medical and mental health care —

“were caused by factors in addition to overcrowding and . . . reducing crowding in

the prisons would not entirely cure the violations.” Id. at 1936. Applying the

restrictive standard set forth in the Prison Litigation Reform Act — legislation

designed to “curb[] the equitable discretion of district courts,” Miller v. French,

530 U.S. 327, 339 (2000) — the Court concluded that overcrowding was a

“primary cause” of the constitutional violations. 131 S. Ct. at 1923, 1936 (quoting

18 U.S.C. § 3626(a)(3)(E)(I)). The court reached this conclusion notwithstanding

its acknowledgment that “[i]n addition to overcrowding the failure of California’s

23
prisons to provide adequate medical and mental health care may be ascribed to

chronic and worsening budget shortfalls, a lack of political will in favor of reform,

inadequate facilities, and systemic administrative failures.” Id. at 1936.

Like many Washington beneficiaries of in home personal care services,

M.R. suffers from numerous mental and physical disabilities, some of them

degenerative. Her medical condition will worsen over time, and as her health

declines she will face an increased risk of institutionalization. That risk is not

exclusively attributable to the challenged regulation reducing the number of

compensated hours of assistance, but the challenged regulation and resulting

reduction in hours will exacerbate that risk. The regulation therefore inflicts

cognizable irreparable injury for purposes of a preliminary injunction. See Harris,

366 F.3d at 766.

Second, in the alternative, the district court found that M.R. had not shown a

likelihood of irreparable injury because there was “evidence controverting the

possibility of any harm.” The sole basis in the record for the court’s finding was

McNeill’s declaration, which relied on the conclusory opinion of a DSHS case

manager who “does not believe that the decrease in hours would significantly

increase the risk of injury, health deterioration, or institutionalization for M.R.”

McNeill’s declaration contains neither the detail nor the substantiation necessary to

24
rebut M.R.’s detailed factual showing. See United States v. Navarro, 979 F.2d

786, 789 (9th Cir. 1992).

Third, the district court concluded that M.R., like four other named Plaintiffs

(T.M., M.B., A.B., and A.R.), had not made a showing of cognizable harm because

she “argue[s] that [she] face[s] a threat of institutionalization because the budget

reduction will reduce available services for supervision, exercise, and medication

management.” The court reasoned, “personal care services do not include

supervision, exercise, or medication management.” DSHS concedes that the court

erred as a matter of law by excluding medication management from personal care

services. See WASH. ADMIN. CODE § 388-106-0010. Further, the court’s

conclusion does not sufficiently take into account M.R.’s evidence. M.R.’s

“personal care services” do include supervision, and without such supervision, she

faces the threat of institutionalization. M.R.’s mother declared that she “needs

constant supervision” in order to perform activities of daily living and instrumental

activities of daily living that constitute covered personal care services. For

example, if left unsupervised, M.R. “could wake up, try to get out of bed, and fall

with no ability to get up.” Compare WASH. ADMIN. CODE § 388-106-0010

(covered activities of daily living include “bed mobility” and “locomotion in room

and immediate living environment”). In addition, M.R. “could have bowel and

25
bladder accidents and be unable to get clean, resulting in skin breakdowns and

hospitalization.” Compare WASH. ADMIN. CODE § 388-106-0010 (covered

activities of daily living include “toilet use” and “personal hygiene”). M.R. could

“pull out the feeding tube” and therefore “wouldn’t get adequate nutrition or

medications on schedule.” Compare WASH. ADMIN. CODE § 388-106-0010

(covered activities of daily living include “eating” and “medication management”).

2. C.B.

Plaintiff C.B., a 55-year-old woman, suffers from spinal stenosis, congestive

heart failure, emphysema, hepatitis B and C, chronic bacterial infections,

neuropathy in both hands and feet, high blood pressure, depression, and bipolar

disorder. C.B. requires assistance with a range of tasks, including cooking,

transporting herself to and from appointments with physicians, bathing and

dressing herself, and cleaning her home. C.B. participates in Washington’s

COPES Medicaid waiver program. The emergency regulation reduced her

authorized in-home personal services care hours from 133 to 115 per month, a 13.5

percent decrease. As a result, C.B. stated, her caregiver Tia Davis “will be forced

to change her work schedule and cut back the time spent on taking me to and from

doctor’s appointments and household chores such as cooking and helping me

bathe.” C.B.’s health will likely suffer because absent Davis’s assistance she will

26
have difficulty transporting herself to doctor’s appointments; will bathe herself and

attend to her personal hygiene less capably; will not clean her home, which will

exacerbate the symptoms of her bacterial infections; and will feed herself by

preparing only microwaveable hot meals, with adverse consequences for her high

blood pressure and obesity. If these predictable results occur, C.B. “will face

severe deterioration in [her] condition and [will] have to seek emergency room care

and admission to a nursing home from an even weaker point.”

DSHS did not respond to C.B.’s evidence. The district court, relying on a

single sentence in a declaration in which C.B. stated that her “health has

deteriorated,” rejected C.B.’s showing of irreparable injury on the same ground

that it rejected the showings made by M.R. and seven other named Plaintiffs. That

is, the court stated that it was “unable to determine whether the alleged threat of

institutionalization these particular plaintiffs face is the result of the State’s

reduction in personal care service hours or the deterioration in their medical

conditions.”

The court did not sufficiently analyze C.B.’s individualized evidence and the

impact of the emergency regulation on her specific clinical situation. C.B.

established that because of the hours reduction, Davis will spend less time with

her. Consequently, Davis will cook fewer meals for C.B., so that C.B. will “eat

27
microwaveable instant foods that are generally high in fat and sodium and

detrimental to my pre-diabetes, high blood pressure, and obesity.” Davis “will

likely have to spend less time taking C.B. to her doctor’s appointments,” resulting

in compromised care because C.B. “[v]ery rarely . . . has energy to use the

paratransit services alone, as she finds it much more cumbersome and more

difficult for her to get around without the one-on-one assistance I provide.”

Necessarily, C.B. will bathe and clean her home less often because she can do

neither by herself. When C.B. is left alone, her apartment falls into “disarray —

pet fur everywhere, dirty dishes in the sink, pet food scattered across the kitchen

floor . . . . [T]he inevitable clutter around her apartment also increases her risk of

tripping and falling.”

The reduction in hours places C.B. at risk of institutionalization. Dr.

Mitchell LaPlante, an expert in the demography and epidemiology of disability,

declared that “[h]aving inadequate levels of help compromises the safety, comfort,

and hygiene of individuals requiring help with ADLs and IADLs, reducing their

ability to live independently and increasing their risk of institutionalization and

death.” Dr. LaPlante declared that “[u]nmet needs are especially serious . . . when

individuals go unbathed, remain in the same clothing for an extended period, are

left in a bed or chair longer than is acceptable, or are unassisted when they need to

28
go to the bathroom or eat. Because these activities involve satisfying primary

biological functions [unmet] need cannot be tolerated for long.”

The reduction in hours, like the risk of institutionalization that the reduction

produces, is directly attributable to the emergency regulation, not to C.B.’s

deteriorating health. And, as explained above, C.B. was not required to show that

the emergency regulation was the exclusive cause of her injury. She need only

show that, by depriving her of access to care that is critical to her health, the

regulation exacerbates the risk that she will be institutionalized.

3. K.S.

Plaintiff K.S., a 59-year-old woman, suffers from diabetes, congenital

glaucoma, macular degeneration, and clinical depression. K.S. participates in

Washington’s COPES waiver program. She has undergone hip and knee

replacements and has very limited mobility. She uses a walker to move about her

home and is susceptible to falls. K.S. requires assistance moving, bathing and

dressing herself, cooking, managing her medications, using the toilet, and cleaning

herself after accidents. If K.S. experiences incontinence while she is left alone, she

must sit on the toilet until a provider arrives to help her undress, bathe, and launder

her soiled clothes.

29
 Prior to the challenged regulation, K.S. received 133 hours of in-home

personal care services per month. The regulation reduced her authorized monthly

hours to 115, a 13.5 percent decrease. To accommodate the reduction in hours,

K.S. discontinued weekend care and has “suffered negative physical and mental

health consequences.” For example, K.S. wears compression stockings because

she suffers from edema. K.S. cannot remove her stockings without assistance, so

when she is unattended for long periods of time, the skin on her legs becomes dry

and itchy and develops sores, putting K.S. at risk of infection. Because K.S.

cannot lace her shoes without help, she cannot leave her home on the weekends

because it is too dangerous for her to walk in slippers. Consequently, she feels

“trapped” in her home and “shut off from the world.” K.S. declared that “[i]t is

difficult to get all of my cleaning, shopping, food preparation, bathing and hygiene

needs done” during the hours authorized. Consequently, K.S. is “worried that I

would be unable to remain in my home . . . and I very much want to avoid going to

an adult group home. Staying in my home gives me a feeling of independence and

I believe my mental health condition would deteriorate in an adult day home

quickly. Even though I would be able to get more continuous hours of care at a

nursing home, the lack of privacy and the lack of independence that I would

experience there would be very difficult for me.”

30
 In response, DSHS introduced a declaration from McNeill, who stated that it

was “unclear” why K.S. did not discuss her concerns about going unattended on

the weekends with her case manager. Had she done so, McNeill declared, “[a]

Care Plan could have been developed with a daily schedule or a schedule with a

shorter gap between care. . . . Recipients and providers often believe that more

hours are the only solution to problems, but good care planning and effective case

management can often create effective alternatives. DSHS believes that could

occur here.” The district court relied on McNeill’s declaration to find that K.S.’s

“apparent failure to contact [her] case manager[] about [her] concerns is

particularly noteworthy. Rather than giving the State an opportunity to correct any

gaps in care, [K.S.] appear[s] to assume that the reduction will result in harm and

that the only alternative to reinstatement of [her] hours is institutionalization.”

McNeill’s declaration ignores the fact that K.S. did contact her case manager

to discuss the impact of the hours reduction on her care plan. In a declaration filed

before McNeill’s, K.S. stated that after learning of the hours reduction, she

“informed my case manager . . . that in order to cope with the announced cuts to

my home care hours, I had made the decision to let go of my weekend provider.”

K.S.’s case manager “did not suggest any alternative scheduling arrangements for

me to avoid going without weekend care during or any time since that phone call.”

31
The district court should not have discounted K.S.’s showing of harm on the

ground that she should have revised her care plan with her case manager. K.S. had

attempted to do just that, but without success.

4. Summary

The detailed evidence introduced to show the adverse impact of the

challenged regulation on M.R., C.B., and K.S., as well as the weak responses that

DSHS offered to contest that evidence, establish a sufficient likelihood of

irreparable injury. Each of the named Plaintiffs has made similar showings of

specific ways in which the hours reduction will injure them, but the district court

addressed these individualized showings in a generalized fashion.

Our dissenting colleague, Judge Rawlinson, faults us for relying on

Plaintiffs’ declarations and not adequately deferring to the district court’s

determination regarding irreparable injury. However, as discussed above, the

district court relied on an overly strict causation standard and an erroneous

assumption that personal care services did not include medication management,

and it did not address the facts of the individual Plaintiffs’ cases. Judge Rawlinson

implies that the district court discredited the Plaintiffs’ declarations because of

their “verbatim or nearly verbatim” recitations of harm. The declarations’

similarities in structure and language are offset by the many different, specific

32
details, such as those described above for M.R., C.B., and K.S., about each named

Plaintiff.

We have several times held that beneficiaries of public assistance “may

demonstrate a risk of irreparable injury by showing that enforcement of a proposed

rule ‘may deny them needed medical care.’” Indep. Living Ctr. of S. Cal., Inc. v.

Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (quoting Beltran v. Meyers, 677

F.2d 1317, 1322 (9th Cir. 1982)), cert. granted on other issue, 131 S. Ct. 992

(2011); see also, e.g., Cal. Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098,

1113 (9th Cir. 2010), cert. granted on other issue, 131 S. Ct. 992 (2011); Rodde v.

Bonta, 357 F.3d 988, 998-99 (9th Cir. 2004); Lopez v. Heckler, 713 F.2d 1432,

1437 (9th Cir. 1983). District courts in our circuit have reached the same

conclusion. See, e.g., Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 997 (N.D. Cal.

2010) (“[T]he reduction or elimination of public medical benefits is sufficient to

establish irreparable harm to those likely to be affected by the program cuts.”); V.L.

v. Wagner, 669 F. Supp. 2d 1106, 1121-22 (N.D. Cal. 2009); Brantley v. Maxwell-

Jolly, 656 F. Supp. 2d 1161, 1176-77 (N.D. Cal. 2009).

In its order, the district court emphasized that “[t]his case does not involve . .

. the provision of medical care . . . ; rather this case relates solely to in-home

personal care services, which consist of non-medical assistance with activities of

33
daily living.” The court reasoned that “[t]he standard articulated in Beltran and

Independent Living Ctr. . . . is not applicable in this case because personal care

services are not included within Medicaid’s definition of ‘medical care.’” But

whether personal care services are included in Medicaid’s definition is not the

critical issue. The critical issue is whether the services are necessary to maintain

Plaintiffs’ mental or physical health, and to avoid serious risk of

institutionalization.

Under Washington law, DSHS may cover the costs to beneficiaries only for

services deemed “medically necessary.” WASH. ADMIN. CODE § 388-501-

0050(4)(d). All payments by DSHS, both before and after the promulgation of the

challenged regulation, are therefore payments for “medically necessary” services.

“Medically necessary” services are defined as those that are “reasonably calculated

to prevent, diagnose, correct, cure, alleviate or prevent worsening of conditions in

the client that endanger life, or cause suffering or pain, or result in an illness or

infirmity, or threaten to cause or aggravate a handicap, or cause physical deformity

or malfunction.” Id. § 388-501-0005. Plaintiffs have shown that the services they

will lose as a result of the challenged regulation — which include assistance in

feeding, cleaning, and medicating themselves — relate intimately to their mental

and physical health. The loss of these services will exacerbate Plaintiffs’ already

34
severe mental and physical difficulties. These predictable consequences will put

Plaintiffs at serious risk of institutionalization.2 We therefore conclude that

Plaintiffs have shown a likelihood of irreparable injury.

B. Serious Questions Going to the Merits

Plaintiffs argue that the challenged regulation violates the antidiscrimination

provisions of the ADA, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. §

794(a). We conclude that Plaintiffs have at least presented serious questions going

to the merits of their ADA and Rehabilitation Act claims. Because the applicable

provisions of the ADA and the Rehabilitation Act are “co-extensive,” we discuss

both claims together, focusing on the ADA. Sanchez v. Johnson, 416 F.3d 1051,

1062 & n.6 (9th Cir. 2005).

In enacting the ADA, Congress found that “historically, society has tended

to isolate and segregate individuals with disabilities, and, despite some

improvements, such forms of discrimination against individuals with disabilities

continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2).

Moreover, Congress found that “discrimination against individuals with disabilities

persists in such critical areas as . . . institutionalization,” id. § 12101(a)(3); and that

2
We do not reach Plaintiffs’ alternative argument that DSHS’s CARE tool
measures minimum individual need, such that any departure below hours
authorized by the CARE process will necessarily cause irreparable injury.
35
“individuals with disabilities continually encounter various forms of

discrimination, including outright intentional exclusion, . . . failure to make

modifications to existing facilities and practices, . . . [and] . . . segregation,” id. §

12101(a)(5).

In an attempt to remedy society’s history of discriminating against the

disabled — discrimination that included isolating, institutionalizing, and

segregating them — the ADA provides 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.” Id. § 12132; accord 29 U.S.C.

§ 794(a). The Department of Justice has promulgated regulations implementing

the ADA. See 42 U.S.C. § 12134(a). One of the regulations is the so-called

“integration mandate,” providing that “[a] public entity shall administer services,

programs, and activities in the most integrated setting appropriate to the needs of

qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The “most

integrated setting” is the one that “enables individuals with disabilities to interact

with nondisabled persons to the fullest extent possible.” Id. Part 35, App. B

(2011). The regulation also provides that “[a] public entity shall make reasonable

modifications in policies, practices, or procedures when the modifications are

36
necessary to avoid discrimination on the basis of disability, unless the public entity

can demonstrate that making the modifications would fundamentally alter the

nature of the service, program, or activity.” Id. § 35.130(b)(7).

In Olmstead, the Supreme Court addressed this statutory and regulatory

scheme and reached two conclusions. First, the Court held that “[u]njustified

isolation” of disabled persons “is properly regarded as discrimination based on

disability.” 527 U.S. at 597; see also Sanchez, 416 F.3d at 1063 (“In Olmstead, the

Supreme Court interpreted . . . the ADA as forbidding the arbitrary segregation of

the disabled in large state institutions.”). Second, however, the Court held that

“[t]he State’s responsibility, once it provides community-based treatment to

qualified persons with disabilities, is not boundless. . . . Sensibly construed, the

fundamental-alteration component of the reasonable-modifications regulation

would allow the State to show that, in the allocation of available resources,

immediate relief for the plaintiffs would be inequitable, given the responsibility the

State has undertaken for the care and treatment of a large and diverse population of

persons with . . . disabilities.” 527 U.S. at 603-04; see also Arc of Wash. State, 427

F.3d at 619 (“[T]he Court recognized certain state justifications that would defeat

an ADA-based challenge, for example ‘the States’ need to maintain a range of

facilities for the care and treatment of persons with diverse . . . disabilities, and the

37
States’ obligation to administer services with an even hand.’” (quoting Olmstead,

527 U.S. at 597)). The Court held that under the ADA, “States are required to

provide community-based treatment for persons with . . . disabilities when the

State’s treatment professionals determine that such placement is appropriate, the

affected persons do not oppose such treatment, and the placement can be

reasonably accommodated, taking into account the resources available to the State

and the needs of others with . . . disabilities.” Olmstead, 527 U.S. at 607; accord

id. at 587.

The district court rejected Plaintiffs’ ADA claim on two grounds. The court

concluded that to state a violation of the ADA’s integration mandate, Plaintiffs

were required to show “that the State’s action leaves them no choice but to submit

to institutional care to obtain services for which they are otherwise qualified.” In

the alternative, the court concluded that requiring Washington to maintain in-home

personal care services hours at pre-regulation levels “would likely constitute a

fundamental alteration of the state’s Medicaid program.” We take the court’s two

conclusions in turn.

First, the district court erred in stating the legal standard under the

integration mandate of the ADA. An ADA plaintiff need not show that

institutionalization is “inevitable” or that she has “no choice” but to submit to

38
institutional care in order to state a violation of the integration mandate. Rather, a

plaintiff need only show that the challenged state action creates a serious risk of

institutionalization. The United States Department of Justice (“DOJ”), the agency

that promulgated the regulation containing the integration mandate, 28 C.F.R. §

35.130(d), filed a statement of interest in the district court in which it argued in

favor of a preliminary injunction. In its filing, DOJ wrote that “[t]he integration

mandate prohibits public entities from pursuing policies that place individuals at

risk of unnecessary institutionalization.” “[I]mminent risk of institutionalization is

not required.” Rather, “[t]he elimination of services that have enabled Plaintiffs to

remain in the community violates the ADA, regardless of whether it causes them to

enter an institution immediately, or whether it causes them to decline in health over

time and eventually enter an institution in order to seek necessary care.”

We afford DOJ’s view considerable respect. Olmstead, 527 U.S. at 597-98

(“Because the Department is the agency directed by Congress to issue regulations

implementing Title II [of the ADA], its views warrant respect.”). We also defer to

an agency’s reasonable interpretation of its own statutorily authorized regulation.

Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1214 (9th Cir. 2009) (citing

Fed. Express Corp. v. Holowecki, 552 U.S. 389, 395, 397 (2008)). An agency’s

interpretation of its own regulation is “controlling unless plainly erroneous or

39
inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997)

(internal quotation marks omitted); Barboza v. Cal. Ass’n of Prof’l Firefighters,

650 F.3d 1073, 1079 (9th Cir. 2011) (“[U]nless an alternative reading is compelled

by the regulation’s plain language or by other indications of [the agency’s] intent at

the time of the regulation’s promulgation, deference is required.” (internal

quotation marks and citation omitted)).

The district court discounted DOJ’s interpretation of the integration mandate

as “a self-serving agency interpretation taken solely in the context of ongoing

litigation.” In Auer, the Supreme Court rejected the argument that an agency

position taken in an amicus brief was unworthy of deference:

[T]hat the Secretary’s interpretation comes to us in the form of a legal brief .
. . does not, in the circumstances of this case, make it unworthy of deference.
The Secretary’s position is in no sense a post hoc rationalization advanced
by an agency seeking to defend past agency action against attack. There is
simply no reason to suspect that the interpretation does not reflect the
agency’s fair and considered judgment on the matter in question.

519 U.S. at 462 (internal quotation marks and citation omitted); accord Holowecki,

552 U.S. at 397 (deferring to agency’s interpretation of a regulation in an amicus

brief); Barrientos, 583 F.3d at 1214 (same). The circumstances in this case are

similar to those in Auer. DOJ is not a party and is not “seeking to defend past

agency action against attack.” Its “statement of interest” in the district court under

40
28 U.S.C. § 517 is comparable to an amicus brief because of its interest in ensuring

a proper interpretation and application of the integration mandate. Further, we note

that DOJ’s interpretation of the integration mandate in this case is consistent with

its interpretation in another case before this court. The district court, and our

dissenting colleague, overlook the Supreme Court’s direction about how to treat

agency interpretations in such instances.

DOJ’s interpretation is not only reasonable; it also better effectuates the

purpose of the ADA“to provide clear, strong, consistent, enforceable standards

addressing discrimination against individuals with disabilities.” 42 U.S.C. §

12101(b)(2). Institutionalization sometimes proves irreversible. Dr. Gardner,

Plaintiffs’ expert on habilitative mental health care, declared that

“[i]nstitutionalization . . . creates an unnecessary clinical risk that the individual

will become so habituated to, and so reliant upon, the programmatic and treatment

structures that are found in an inpatient setting that his or her ability to function in

less structured, less restrictive, environments may become severely compromised.”

In recognition of this clinical reality, the cases accord with DOJ’s interpretation.

See, e.g., V.L., 669 F. Supp. 2d at 1119 (“[P]laintiffs who currently reside in

community settings may assert ADA integration claims to challenge state actions

that give rise to a risk of unnecessary institutionalization.”); Brantley, 656 F. Supp.

41
2d at 1170-71 (“[T]he risk of institutionalization is sufficient to demonstrate a

violation of [the ADA].”); see also, e.g., Fisher v. Okla. Health Care Auth, 335

F.3d 1175, 1182 (10th Cir. 2003) (“Olmstead does not imply that disabled persons

who, by reason of a change in state policy, stand imperiled with segregation, may

not bring a challenge to that state policy under the ADA’s integration regulation

without first submitting to institutionalization.”).

The district court’s second ground for rejecting Plaintiffs’ ADA claim was

that requiring DSHS to maintain pre-regulation levels of personal care services

hours would likely constitute a fundamental alteration of the state’s Medicaid plan.

We have not previously decided whether a state may assert a fundamental

alteration defense where, as here, the state opposes an injunction that would

preserve a preexisting program that complies with the ADA. The text of the

regulation suggests that the defense is available only to excuse prospective

modifications to programs. See 28 C.F.R. § 35.130(b)(7) (“A public entity shall

make reasonable modifications in policies, practices, or procedures . . . unless the

public entity can demonstrate that making the modifications would fundamentally

alter the nature of the service, program, or activity.”). Here, Plaintiffs argue that

they are seeking to preserve the status quo and prevent modifications to the state’s

preexisting program. The Tenth Circuit rejected a fundamental alteration defense

42
in similar circumstances, observing, “[n]or is it clear why the preservation of a

program as it has existed for years and as approved by the federal government

would fundamentally alter the nature of the program.” Fisher, 335 F.3d at 1183

(internal quotation marks omitted). However, we need not decide whether the

fundamental alteration defense applies in these circumstances because, even if it

does, Plaintiffs have at least raised a serious question on the merits about the

validity of the defense on the facts.

When evaluating a fundamental alteration defense, a court must consider

“not only the cost of providing community-based care to the litigants, but also the

range of services the State provides others with mental disabilities, and the State’s

obligation to mete out those services equitably.” Olmstead, 527 U.S. at 597. That

is, the ADA requires home or community-based placement of disabled persons

only if “the placement can be reasonably accommodated, taking into account the

resources available to the State and the needs of others with . . . disabilities.” Id. at

607; see also 28 C.F.R. § 35.130(b)(7); Sanchez, 416 F.3d at 1067-68; Arc of

Wash. State, 427 F.3d at 618-19. But budgetary concerns do not alone sustain a

fundamental alteration defense. See Fisher, 335 F.3d at 1181 (“If every alteration

in a program or service that required the outlay of funds were tantamount to a

fundamental alteration, the ADA’s integration mandate would be hollow indeed.”);

43
see also, e.g., Townsend, 328 F.3d at 520 (“[E]ven if extension of community-

based long term care services to the medically needy were to generate greater

expenses for the state’s Medicaid program, it is unclear whether these extra costs

would, in fact, compel cutbacks in services to other Medicaid recipients.”); Pa.

Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3d Cir.

2005); Radaszewski v. Maram, 383 F.3d 599, 614 (7th Cir. 2004); Frederick L.,

364 F.3d at 495-96; Cota, 688 F. Supp. 2d at 995. DSHS must show how “fund-

shifting . . . would disadvantage other segments of the . . . disabled population.”

Frederick L., 364 F.3d at 497; see Townsend, 328 F.3d at 520.

At this point in the litigation, it is highly speculative that preliminary

injunctive relief for Plaintiffs will compromise care for the rest of Washington’s

disabled community to such an extent that Washington’s Medicaid program would

be fundamentally altered. Dreyfus, DSHS’s director, filed a declaration in the

district court stating that if an injunction were granted the agency “would need to

eliminate the Optional State Plan Service of Medicaid Personal Care and put a

limit on the number of recipients . . . served under the Long Term Care [42 U.S.C.

§ 1396n(c)] waivers including COPES and New Freedom.” It is difficult to assess

Dreyfus’s dire predictions and to determine, even if they are borne out, whether

they would constitute a fundamental alteration. Washington’s legislature has

44
mandated that the state Medicaid plan include the provision of personal care

services for the categorically needy, and DSHS has touted COPES as the

centerpiece of the legislatively mandated commitment to deinstitutionalization.

WASH. REV. CODE § 74.09.520(2). In its briefs, DSHS did not identify specific

programs that would necessarily be cut if all or part of the challenged regulation

were preliminarily enjoined, nor was counsel able to identify such programs at oral

argument. Indeed, DSHS counsel was unable to say with certainty whether the

cuts would necessarily come from the Medicaid program, or whether cuts could be

made to some other portion of Washington’s budget if Plaintiffs were to prevail in

this litigation. See Townsend, 328 F.3d at 520 (to make out fundamental alteration

defense, state must show that the “provision of community-based services to

medically needy disabled Washingtonians might fundamentally alter its Medicaid

programs” (emphasis added)). The state must make a more particularized showing

of harm to others in the disabled community in order to eliminate serious questions

on the merits concerning the validity of the fundamental alteration defense. See

Frederick L., 364 F.3d at 497; Townsend, 328 F.3d at 520.

C. Balance of Hardships

We conclude that the balance of hardships tips sharply in favor of Plaintiffs.

As discussed above, the record in this case establishes that the named Plaintiffs

45
suffer severe hardship, made still more severe by the challenged regulation,

resulting in a serious risk of institutionalization in violation of the ADA and the

Rehabilitation Act. Set against Plaintiffs’ hardship are diffuse and nonspecific

hardships asserted by the State. It is clear that money spent on behalf of the

Plaintiffs is money that will not be spent on other programs. But it is not clear

from the evidence in the record or from the arguments made to us precisely what

those other programs are and the extent to which they would be cut. See, e.g.,

Harris, 366 F.3d at 766 (“The County suggests that the injunction forces it to cut

other important programs . . . . But whether any or all of those programs will

actually be impacted by the court’s injunction is much more speculative than the

probable injury the chronically ill plaintiffs face absent preliminary injunctive

relief.”).

Nor is it clear that the state, on balance, will save money by cutting the

services at issue in this case, given the cost to the state of institutionalizing

Plaintiffs. We have several times held that the balance of hardships favors

beneficiaries of public assistance who may be forced to do without needed medical

services over a state concerned with conserving scarce resources. See, e.g., Indep.

Living Ctr., 572 F.3d at 659 (“State budgetary considerations do not therefore, in

social welfare cases, constitute a critical public interest that would be injured by

46
the grant of preliminary relief.”). The balance of hardships favors plaintiffs

challenging cuts to state programs “in light of evidence in the record that suggests

that [the action sought to be enjoined] may have an adverse, rather than beneficial,

effect on the State’s budget, such that it would actually save the State money if it

maintained [the status quo].” Dominguez v. Schwarzenegger, 596 F.3d 1087, 1098

(9th Cir. 2010); see also Rodde, 357 F.3d at 999-1000. Plaintiffs have advanced

such evidence in this case by showing that if program beneficiaries currently

treated in their homes transition to more costly institutional care, the state will not

realize its anticipated cost savings.

D. Public Interest

The Washington legislature has expressly found that “the public interest

would best be served by a broad array of long-term care services that support

persons who need such services at home or in the community whenever practicable

and that promote individual autonomy, dignity, and choice.” WASH. REV. CODE §

74.39A.005. “[T]here is a robust public interest in safeguarding access to health

care for those eligible for Medicaid, whom Congress has recognized as ‘the most

needy in the country.’” Indep. Living Ctr., 572 F.3d at 659 (quoting Schweiker v.

Hogan, 457 U.S. 569, 590 (1982)); see also Cal. Pharmacists Ass’n, 596 F.3d at

1114-15 (rejecting the argument that the public interest required that the legislature

47
be able to “exercise its considered judgment in a manner that serves the best

interests of both [Medicaid] recipients and the State as a whole,” despite the state’s

argument that “injunctions against payment reductions have forced the State to

eliminate many optional [Medicaid] services”).

We recognize that a preliminary injunction is an “extraordinary remedy

never awarded as of right.” Winter, 555 U.S. at 24. But given the likelihood of

irreparable harm to Plaintiffs, the serious questions on the merits raised by their

suit, the balance of hardships that tips sharply in their favor, and the statutorily

declared policy of the state in favor of the services they seek to preserve, we

conclude that the public interest is served by preserving the status quo by means of

a preliminary injunction. See Rodde, 357 F.3d at 999 n.14 (that Plaintiffs seek “to

preserve, rather than alter, the status quo while they litigate the merits of this action

also strengthens their position”).

E. Scope of the Injunction

Our conclusion with respect to irreparable injury and risk of

institutionalization is limited to the named Plaintiffs. We have stated that

“[s]ystem-wide [injunctive] relief is required if the injury is the result of violations

of a statute . . . that are attributable to policies or practices pervading the whole

system (even though injuring a relatively small number of plaintiffs), or if the

48
unlawful policies or practices affect such a broad range of plaintiffs that an

overhaul of the system is the only feasible manner in which to address the class’s

injury.” Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir. 2001). The challenged

regulation obviously establishes such a policy for a system of care. But Armstrong

involved a certified class. Subject to exceptions not applicable here, “[w]ithout a

properly certified class, a court cannot grant relief on a class-wide basis.” Zepeda

v. INS, 753 F.2d 719, 728 n.1 (9th Cir. 1984). The district court stayed its decision

on class certification pending our ruling on appeal. We conclude that the

regulation must be preliminarily enjoined as to the named Plaintiffs. We leave it to

the district court to determine on remand whether, in light of this opinion, broader

preliminary injunctive relief is appropriate.

Conclusion

The named Plaintiffs have shown a likelihood of irreparable injury because

the regulation puts them at serious risk of institutionalization. For the same reason,

they have raised a serious question going to the merits of their ADA/Rehabilitation

Act claim. They have also raised a serious question on the merits about the

validity of the fundamental alteration defense. The balance of hardships tips

sharply in Plaintiffs’ favor, and the public interest favors a preliminary injunction.

49
We therefore reverse and remand for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

50
 COUNSEL LISTING

Stephen P. Berzon. Eve Hedy Cervantez, Stacey Leyton, Matthew John Murray,
Casey Austin Roberts
ALSHULER BERZON LLP, San Francisco, CA

Andrea Brenneke
MACDONALD HOAGUE & BAYLESS, Seattle, WA

for the Appellants

Edward J. Dee, William T. Stephens, William Bruce Work
OFFICE OF THE WASHINGTON ATTORNEY GENERAL, Olympia, WA

for the Appellees

51
 FILED
M.R. v. Dreyfus, Case No. 11-35026 DEC 16 2011
Rawlinson, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

I respectfully dissent from the majority opinion in this case. It is important

to note at the outset that this appeal challenges the denial of a preliminary

injunction. Our review is for an abuse of the considerable discretion afforded the

district court in making the determination whether a preliminary injunction should

be entered. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th

Cir. 2011). So long as the district court “got the law right,” we “will not reverse

the district court.” Id. (citation omitted). Our scope of review is necessarily

limited. See Sports Form, Inc. v. UPI, Inc., 686 F.2d 750, 752 (9th Cir. 1982).

In a thoughtful and comprehensive 50-page order, the district court denied

the request for a preliminary injunction. As the majority acknowledges, any

factual findings made by the district court must be accepted unless clearly

erroneous. See Alliance for the Wild Rockies, 632 F.3d at 1131. The district court

prefaced its decision by noting its “careful” review” of the 164+ documents filed

by the parties and the 5+ hours of oral argument during two hearings. See District

Court Order, p. 2 n.4. The district court also recognized that a preliminary

injunction is an “extraordinary interlocutory remedy” that should be the exception

rather than the rule. See id. at p. 3 (quoting Winter v. Natural Res. Defense

1
Counsel Inc., 129 S. Ct. 365, 376 (2008)).

The district court found that not one of the named plaintiffs satisfied the

criteria to be placed in the classification reflecting the highest acuity of need. See

id. at p. 10. Keeping in mind that the services at issue are personal care services,

and not medical care, the district court determined that the plaintiffs failed to

establish a likelihood of irreparable harm. See id. at p. 12 & n.13. The district

court relied largely on its determination that the threatened injury

(institutionalization) was not imminent. See id. at p. 13 n.14 (quoting City of Los

Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). The district court emphasized that

this factor was particularly important where a party seeks to enjoin official action

on the part of a State. See id. (noting federalism concern).

The district court underscored the fact that Washington’s assessment

mechanism did not reflect the individual need of each program participant. Rather,

the assessment reflected the relative acuity of the need for personal care services.

See id. at p. 14. The assessment essentially determined what share of the available

resources a program participant should be allocated. See id. at p. 15. Because the

assessment does not translate into a number of absolute hours of required personal

services, the district court concluded that plaintiffs could not persuasively argue

that a decrease in the number of personal care services hours resulted in the

2
required showing that institutionalization was imminent. Indeed, the district court

found to the contrary. See id. at p. 17 n.20 (referring to evidence in the record that

the 2009 reduction in personal care services hours “did not result in any negative

consequences to personal care service beneficiaries . . . .”) (emphasis in the

original). Specifically, program participants were not institutionalized due to the

decrease in personal care service hours. See id.; see also id. at p. 18 (explaining

that since the 2011 reductions went into effect, “over 99% of the sampled records

reflected no complaint concerning the adequacy of allotted hours”).

I recognize that my colleagues in the majority rely on the declarations from

the plaintiffs to support their reversal of the district court’s decision. However,

without a showing of clear error on the part of the district court judge, it is not

enough to simply credit one party’s view of the evidence. Actually, Supreme

Court precedent dictates exactly the opposite approach. Where there are two views

of the evidence presented, and the trier of fact selects one view over the other, no

clear error can be shown. See Anderson v. City of Bessemer City, 470 U.S. 564,

574 (1985) (“Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.”) (citations

omitted).

In this case, the plaintiffs presented declarations averring that

3
institutionalization was likely if the personal service hours were decreased. The

State defendants presented declarations refuting those submitted by the plaintiffs.

At this stage of the proceedings and considering our limited standard of review, I

am not persuaded that the district court clearly erred in crediting the State’s view of

the facts.1

Ultimately, the district court determined that the plaintiffs’ declarations

failed to make an adequate showing of a likely threat of harm because the

declarations

(1) ascribe the threat of institutionalization to plaintiffs’
deteriorating medical conditions, unrelated to the
provision of personal care service hours; (2) demonstrate
ineffective management of currently allocated personal
care service hours; or (3) identify non-personal care
services as the cause of their predicted
institutionalization.

Id. at p. 24.2

The district court described nine plaintiffs whose medical conditions

worsened without regard to the decrease in personal care service hours. See id. at

1
It is of some interest that the district court noticed that the plaintiffs’
declarations of harm were “repeated verbatim or nearly verbatim throughout the
various declarations . . .” Id. at p. 24 n.30.
2
The district court also noted the use of qualifying language in the
declarations that rendered them “speculative at best . . .” Id. at p. 25 n.31.
4
pp. 24-25. The district court also credited evidence from the State defendants

regarding “[i]nefficient [u]se of [c]urrently [a]llocated [p]ersonal [c]are [s]ervice

[h]ours[,]” Id. at pp. 26-27, and the inclusion of non-personal care services in the

asserted harm arguments, see id. at pp. 27-28.

Considering the district court’s determination regarding the likelihood of

irreparable harm with the required deference to its factual findings, I am not

persuaded that we should reverse the district court’s determination.

In my view, a similar conclusion is in order upon review of the district

court’s resolution of plaintiffs’ claim predicated on the provisions of the

Americans With Disabilities Act (ADA). The thrust of plaintiffs’ argument is that

the mandated decrease in personal care services hours violates the ADA

requirement that disabled individuals be integrated into the community for services

rather than be institutionalized to receive services. According to plaintiffs, the

decrease in personal care services hours will result in institutionalization of

individuals who could remain in the community if the personal care services hours

were maintained at their previous levels. The majority agrees with the plaintiffs’

contention, describing this issue as a serious question going to the merits of

plaintiffs’ ADA claims.

The Supreme Court addressed the ADA’s integration provision in Olmstead

5
v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). In that case, mental patients were

retained in institutional facilities after medical providers concluded that treatment

in community-based facilities was appropriate. See id. at 593. The Court held that

the ADA required placement in a community-based facility if “the placement can

be reasonably accommodated, taking into account the resources available to the

State and the needs of others with . . . disabilities . . . .” Id. at 587. The Court fully

acknowledged that the State had multiple and diverse obligations to its disabled

citizens and a concomitant obligation to administer all its services “with an even

hand . . . .” Id. at 597. The Court explained that the State’s obligation to provide a

variety of services evenly for all program participants mandated that more leeway

be afforded the States in administering those programs. See id. at 605.

Given the leeway that the Supreme Court has instructed must be afforded the

States in administering social services programs, the question of whether plaintiffs

have raised a serious issue going to the merits is not as cut-and-dried as the

majority portrays.

The majority urges “considerable respect” to the Department of Justice’s

bald statement that “the elimination of services that have enabled Plaintiffs to

remain in the community violates the ADA, regardless of whether it causes them to

enter an institution immediately, or whether it causes them to decline in health over

6
time and eventually enter an institution in order to seek necessary care.” Majority

Opinion, pp. 40-41 (quoting the statement of interest filed by the DOJ). However,

the district court was not persuaded that the DOJ’s bald statement was entitled to

deference. See District Court Order, p. 39 n.42.

The Supreme Court in Olmstead stopped short of requiring that deference be

given to the DOJ’s view. Rather, the Supreme Court stated:

We need not inquire whether the degree of deference
described in Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc. . . . is in order: [i]t is enough to
observe that the well-reasoned views of the agencies
implementing a statute constitute a body of experience
and informed judgment to which courts and litigants may
properly resort for guidance.

Olmstead, 527 U.S. at 598 (citation, alteration and internal quotation marks

omitted) (emphasis added).

The fact that the district court elected not to defer to the DOJ’s bald,

unreasoned statement did not run afoul of the Supreme Court’s permissive view of

the deference owed to the DOJ’s interpretation of the integration regulation.

Because I conclude that the plaintiffs have not raised serious questions going

to the merits of their claim, and because the district court committed no clear error

in finding a lack of irreparable harm, I would affirm the district court’s denial of

injunctive relief on those bases. However, I also note that Olmstead contains

7
language supporting the district court’s determination that granting the relief

requested by Plaintiffs would likely constitute a fundamental alteration of the

State’s plan. See Olmstead, 527 U.S. at 597 (“In evaluating a State’s fundamental-

alteration defense, the District Court must consider, in view of the resources

available to the State, not only the cost of providing community-based care to the

litigants, but also the range of services the State provides others with . . .

disabilities, and the State’s obligation to mete out those services equitably.”). This

same rationale supports the district court’s determination that the public interest

favors permitting the State to equitably balance the needs of all persons who are

served by the Medicaid program rather than requiring the State to accommodate

the needs of a discrete subset of that population at the expense of others in need.

Keeping in mind our limited scope of review and the deference owed to the

district court’s factual findings, I do not agree that the district court abused its

discretion when it denied the requested preliminary injunction. Therefore, I

respectfully dissent from the majority opinion.

8