Davis v. ShahDavis v. Shah
We affirm in part and vacate in part. Because neither the Medicaid Act nor the Supremacy Clause confers a private cause of action to enforce the reasonable standards provision, we vacate the grant of summary judgment to plaintiffs on their reasonable standards claim. We decline to reach plaintiffs’ integration mandate claim as largely duplicative of their anti-discrimination claim under the Americans with Disabilities Act and Rehabilitation Act. With respect to plaintiffs’ other claims, however, we affirm the district court’s summary judgment rulings. Nevertheless, because the injunction ordered by the district court is broader than is warranted by our liability determinations, we vacate that injunction and remand for reconsideration of the appropriate relief.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
VICTOR PALADINO, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, New York, for Defendant-Appellant.
Molly J. Moran, Acting Assistant Attorney General (Mark L. Gross and Robert A. Koch, Attorneys, on the brief), Department of Justice, Civil Rights Division, Washington, D.C., for Amicus Curiae United States Department of Justice in Support of Plaintiffs-Appellees.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General (Alisa B. Klein and Lindsey Powell, Attorneys, on the brief), Department of Justice, Civil Division, Washington, D.C., for Amicus Curiae United States Department of Health and Human Services, Centers for Medicare and Medicaid Services, in Support of Neither Party.
GERARD E. LYNCH, Circuit Judge:
Plaintiffs-appellees Harry Davis, Rita-Marie Geary, Patty Poole, and Roberta Wallach ( plaintiffs ) brought this class action against defendant-appellant Nirav Shah, Commissioner of the New York State Department of Health (the Commissioner ), challenging New York’s coverage restrictions on certain medical services provided under its Medicaid plan. Plaintiffs argue that New York’s 2011 plan amendments, which restrict coverage of orthopedic
We affirm in part and vacate in part. Because neither the Medicaid Act nor the Supremacy Clause confers a private cause of action to enforce the reasonable standards provision, we vacate the district court’s grant of summary judgment to plaintiffs on that claim. We also decline to reach plaintiffs’ unequal treatment claim under the ADA and Rehabilitation Act as largely duplicative of their integration mandate claim. With respect to the remaining claims, however, we affirm the summary judgment rulings of the district court. Because orthopedic
Finally, because the injunction granted by the district court is broader than is warranted by our liability conclusions, we vacate that injunction and remand for further consideration of the appropriate relief.
I. The Federal Medicaid Program
Enacted in 1965 as Title XIX of the Social Security Act,
With regard to services provided under a state plan, the Medicaid Act similarly specifies certain categories of mandatory and optional medical care.
The Medicaid Act imposes several requirements on the administration of both required and optional services under a state plan. Under the so-called
The State of New York has participated in the federal Medicaid program since 1966. See
New York has chosen to provide Medicaid coverage to both the categorically needy and the medically needy. See
medically necessary medical, dental and remedial care, services, and supplies . . . which are necessary to prevent, diagnose, correct or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere with such person’s capacity for normal activity, or threaten some significant handicap . . . .
Until 2011, New York’s Medicaid program provided orthopedic footwear and compression stockings to all beneficiaries for whom such services were medically necessary. During that time, regulations promulgated by the NYSDH defined orthopedic footwear as
shoes, shoe modifications, or shoe additions which are used to correct, accommodate or prevent a physical deformity or range of motion malfunction in a diseased or injured part of the ankle or foot; to support a weak or deformed structure of the ankle or foot, or to form an integral part of a brace.
In 2011, New York found itself facing a state-wide fiscal crisis. In searching for ways to reduce its budget, New York discovered that orthopedic footwear and compression stocking were a source of significant waste in its Medicaid program. In the fiscal year for 2010-2011, nearly half of state Medicaid payments for orthopedic footwear went to the treatment of hammertoes and bunions, common medical conditions that can readily be treated through inexpensive off-the-shelf products. Similarly, numerous beneficiaries submitting claims for compression stockings had used such items to treat common and relatively mild complaints, such as varicose veins or aching legs.
To reduce spending, New York amended its Medicaid plan to limit coverage for both orthopedic footwear and compression stockings to what it deemed to be the most frequently occurring serious conditions requiring their use. In the spring of 2011, the New York legislature added a set of qualifications to
(iii) prescription footwear and inserts are limited to coverage only when used as an integral part of a lower limb orthotic appliance, as part of a diabetic treatment plan, or to address growth and development problems in children; [and]
(iv) compression and support stockings are limited to coverage only for pregnancy or treatment of venous stasis ulcers . . . .
To reflect the legislature’s changes, NYSDH also amended the definitions section at
shoes, shoe modifications, or shoe additions which are used . . . in the treatment of children, to correct, accommodate or prevent a physical deformity or range of motion malfunction in a diseased or injured part of the ankle or foot; in the treatment of children, to support a weak or deformed structure of the ankle or foot; as a component of a comprehensive diabetic treatment plan to treat amputation, ulceration, pre-ulcerative calluses, peripheral neuropathy with evidence of callus formation, a foot deformity or poor circulation; or to form an integral part of an orthotic brace.
Prior to implementing its changes, NYSDH submitted a proposed plan amendment for review by CMS, noting the new restrictions on New York’s coverage of orthopedic footwear and compression stockings. CMS informally
NYSDH subsequently adopted its new regulations on an emergency basis effective April 6, 2011, and as a permanent rule effective March 28, 2012. It communicated the new changes in service to medical suppliers by issuing a series of Provider Update[s] for Pharmacy and DME Providers. JA162. It did not notify individual beneficiaries of the changes.
By restricting coverage for orthopedic footwear and compression stockings, New York saved $14.6 million during the 2011-2012 fiscal year.
III. The Plaintiffs
Plaintiffs include both categorically needy and medically needy individuals who qualify for New York’s Medicaid plan on the basis of their disabilities. They suffer from a variety of ailments, including multiple sclerosis,
Prior to New York’s 2011 amendments, most plaintiffs had received Medicaid coverage for their orthopedic footwear or compression stockings.6 Because none of plaintiffs’ diagnoses fall within New York’s 2011 list of qualifying conditions, however, plaintiffs lost funding for those services in April 2011. They received no written notice of the new coverage restrictions, but instead learned of New York’s change in service when they attempted to fill or refill their orders and were denied by their medical providers.
On March 14, 2012, plaintiffs commenced this suit as a putative class action against the Commissioner in the United States District Court for the Western District of New York. They claimed that New York’s coverage restrictions violated the Medicaid Act’s reasonable standards provision,
In October 2012, plaintiffs moved for summary judgment on all counts of the complaint, and the Commissioner cross-moved for summary judgment on all counts. Prior to considering those motions, the district court granted plaintiffs’ motion for class certification. Echoing the broad certification request in plaintiffs’ complaint, the court certified a class that encompassed
[a]ll current and future New York State Medicaid recipients for whom Defendant has directly or indirectly failed to provide coverage for medically necessary orthopedic footwear and compression stockings as a result of New York Soc. Serv. Law § 365-a(2)(g)(iii) and (iv) and regulations and policies promulgated thereto.
Joint App’x at 415.7
On December 9, 2013, the district court issued an order granting in part and denying in part both parties’ motions for summary judgment. The district court granted judgment to defendant on plaintiffs’ home health services claim, holding that orthopedic footwear and compression stockings qualified as prosthetics rather than home health services, and consequently were optional services that failed to trigger that provision. With regard to the remaining claims, however, the district court ruled largely in favor of plaintiffs. Judge Siragusa found that New York’s restrictions violated the Medicaid Act’s reasonable standards provision by denying coverage of medically necessary services without any consideration of beneficiaries’ medical needs, and violated the comparability provision by discriminating among categorically needy
The district court thus concluded that plaintiffs were entitled to permanent injunctive relief, and directed the parties to settle and submit a proposed Order concerning such injunctive relief within fourteen days. Sp. App’x at 62. In light of the court’s decision, NYSDH announced that it would cease enforcing its plan amendments, explaining that it would simply return to its previous coverage policy for orthopedic footwear and compression stockings. Joint App’x at 465. Subsequently, the district court entered a final order of judgment that, among other things, permanently enjoined NYSDH and its agents from enforcing the coverage restrictions against any beneficiaries under New York’s Medicaid plan.
We review a district court’s order granting summary judgment de novo, resolving all ambiguities and drawing all permissible factual inferences in favor of the non-moving party. Doe ex rel. Doe v. Whelan, 732 F.3d 151, 155 (2d Cir. 2013). We may affirm a grant of summary judgment only if the movant establishes that there is no genuine dispute as to any material facts and that the movant is entitled to judgment as a matter of law. Id.; see also
We review a district court’s grant of a permanent injunction for abuse of discretion. Shain v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004). A district court abuses its discretion when (1) its decision rests on an error of law . . . or a clearly erroneous factual finding, or (2) its decision – though not necessarily the product of a legal error or a clearly erroneous factual finding – cannot be located within the range of permissible decisions. ACORN v. United States, 618 F.3d 125, 133 (2d Cir. 2010) (internal quotation marks omitted). To prevail on a motion for a permanent injunction, a plaintiff must both succeed on the merits and demonstrate the absence of an adequate remedy at law and irreparable harm if the relief is not granted. Roach, 440 F.3d at 56 (internal quotation marks
I. Reasonable Standards Provision
First, plaintiffs claim that New York‘s coverage restrictions on orthopedic footwear and compression stockings violate the reasonable standards provision of the Medicaid Act by denying beneficiaries access to services on the basis of their diagnoses without regard to their medical needs.
The Medicaid Act provides that any state participating in the federal program must “include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of this subchapter.”
The Supreme Court, however, has interpreted
Plaintiffs, for their part, seem to concede that the reasonable standards provision creates no private right of action under
This Court has previously held that where a state law conflicts with a federal statute, the Supremacy Clause creates a private cause of action to enforce
In its recent decision in Armstrong, however, the Supreme Court rejected that interpretation of Article VI. As the Court noted, the “ample discussion” of the Supremacy Clause during the ratification debates included no mention of endowing individuals with private rights of action against the states – despite the fact that the constitutional creation of such a cause of action would have significantly restricted Congress‘s power to establish mechanisms for the enforcement of its own laws. 575 U.S. at —, 135 S. Ct. at 1383. In context, the Court found it “apparent” that the Supremacy Clause simply “creates a rule of decision” by which courts are to resolve conflicts between state and federal laws. Id. But it “is not the source of any federal rights, and certainly does not create a
After concluding that the Supremacy Clause does not create a private right of action, the Supreme Court further determined that the language of the provision of the Medicaid Act at issue in the case,
provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough provides so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.
Id., quoting
Plaintiffs’ claim under the reasonable standards provision in this case rests entirely on an implied right of action arising out of the Supremacy Clause. Because the Court‘s decision in Armstrong denies the existence of any such right, Armstrong would thus seem to preclude their claim. Moreover, the language of the reasonable standards provision is similar to that of
Plaintiffs object, however, that the Commissioner has waived his challenge to their right to enforce the reasonable standards provision – under Armstrong or
Although the Commissioner did not raise his Supremacy Clause objection in his summary judgment papers before the district court, he included it in his
Because Armstrong forecloses plaintiffs’ claim that the Supremacy Clause endows them with an implied right of action to enforce the reasonable standards provision, defendant is entitled to summary judgment on plaintiffs’ claim under
II. Home Health Services
Second, plaintiffs claim that New York‘s coverage restrictions for orthopedic footwear and compression stockings based on a beneficiary‘s medical condition violates the Medicaid Act‘s home health services provision by denying
Under the home health services provision, a state participating in the federal Medicaid program must provide “home health services for any individual who, under the State plan, is entitled to nursing facility services.”
As a preliminary matter, the Commissioner insists that CMS implicitly found that orthopedic footwear and compression stockings qualify as “prosthetics” when it excused New York from seeking further agency approval of its proposed coverage restrictions – permission CMS could have given only if it deemed New York‘s plan amendments consistent with the home health services provision. As a general principle, we owe a “significant measure of deference to CMS‘s interpretation” of the Medicaid Act, Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d 132, 137 (2d Cir. 2002), including to its “implicit judgment” that “a state plan complies with federal law” in approving that plan, id. at 140, as well as to “relatively informal” communications, such as letters from local administrators, id. at 138. In this case, however, CMS has submitted an amicus brief explicitly disclaiming that its communications with NYSDH reflected any measured consideration of New York‘s plan amendments entitled to judicial deference. See U.S. CMS Amicus Br. at 8-9.10 Because that representation
The Medicaid Act does not define the meaning of “home health services.” See
Independent of its obligation to cover home health services, a state participating in Medicaid may also elect to provide beneficiaries with a variety of optional benefits, including “prosthetic devices.”
replacement, corrective, or supportive devices prescribed by a physician or other licensed practitioner of the healing arts . . . to – (1) Artificially replace a missing portion of the body; (2) Prevent or correct physical deformity or
malfunction; or (3) Support a weak or deformed portion of the body.
Under both New York‘s statutory definitions and a common-sense understanding of the terms, both orthopedic footwear and compression stockings fall squarely within the federal definition of “prosthetic devices.” The New York regulations define “orthopedic footwear” as shoes or modifications used “to correct, accommodate or prevent a physical deformity or range of motion malfunction . . . ; to support a weak or deformed structure of the ankle or foot . . . ; or to form an integral part of an orthotic brace.”
Plaintiffs note that NYSDH‘s regulations define the term “compression footwear” separately from “prosthetic appliances” – a distinction they claim establishes that New York does not view such services purely as “prosthetics” within the scheme of its Medicaid program. See
Plaintiffs argue that, even if orthopedic footwear and compression stockings qualify as “prosthetics” under New York‘s plan, they may nevertheless be subject to the home health services requirements so long as they also qualify as medical equipment or supplies. To that end, plaintiffs insist that orthopedic footwear and compression stockings fit easily within CMS‘s definition of medical “equipment,” as items that primarily “serve a medical purpose,” are “not useful to an individual in the absence of a disability, illness or injury,” can “withstand repeated use,” and can be “reusable or removable.” See
We have our reservations as a matter of law about plaintiffs’ suggestion that services falling squarely within the definition of optional “prosthetics” may nevertheless qualify as mandatory services under the Medicaid Act. Regardless, we need not resolve whether or under what circumstances that theory of the Medicaid Act might prevail, because we conclude that plaintiffs’ approach is plainly inappropriate in the circumstances of this case.
CMS‘s elaborations of the terms “supplies, equipment, and appliances” do little to remedy this problem. The rule defines “supplies” as “health care related items that are consumable or disposable, or cannot withstand repeated use by more than one individual,” and defines “equipment and appliances” as items that “are primarily . . . used to serve a medical purpose, generally are not useful to an individual in the absence of a disability, illness or injury, can withstand repeated use, and can be reusable or removable.”
In context, we must assume that HHS‘s more specific definition of “prosthetic devices” in
That conclusion, moreover, makes eminent sense. The coverage of home health services is made mandatory for states that also provide nursing facility services, and is intended to permit patients who would otherwise be confined to nursing home facilities to receive equivalent treatment more economically in their own homes. The items covered by the home health services provision are thus primarily the types of medical supplies and equipment available in nursing homes as a matter of course, but not typically available in ordinary residences or community settings. Prosthetic devices such as artificial limbs are not aspects of that sort of care, but rather are permanent or long-lasting substitutes or supports for “missing,” “weak or deformed portion[s] of the body.”
Finally, in an amicus brief to the Court, the United States suggests that even if the federal
That theory offers plaintiffs no solace in this case, however, where New York’s definitions of medical equipment and supplies flatly preclude the conclusion that orthopedic footwear and compression stockings – or, indeed, any “prosthetics” under New York’s plan – also qualify as home health services. Section 505.5(a)(1) of NYSDH’s regulations define “[d]urable medical equipment” as medical “devices and equipment, other than prosthetic or orthotic appliances,” that can withstand protracted use and are not usually fitted or
We thus agree with the Commissioner that orthopedic footwear and compression stockings qualify as optional “prosthetics” rather than obligatory “equipment” or “supplies” under New York’s Medicaid plan. The district court thus properly entered summary judgment in favor of defendant on plaintiffs’ home health services claim.
III. Due Process Provision
Third, plaintiffs claim that New York violated the Medicaid Act’s due process provision by implementing its new coverage restrictions on orthopedic footwear and compression stockings without providing affected beneficiaries notice of the changes or an opportunity to request evidentiary hearings to contest them.14
Despite the general requirement of an evidentiary hearing, HHS has specified that no state is obliged to grant a beneficiary such a hearing where “the sole issue is a Federal or State law requiring an automatic change adversely affecting some or all beneficiaries.”
Because plaintiffs raise no factual disputes about their right to coverage under New York’s Medicaid plan, as modified by the 2011 amendments,
The Commissioner challenges this latter conclusion on two grounds. First, he suggests that, per the Supreme Court’s decision in Atkins v. Parker, 472 U.S. 115 (1985), the legislative process surrounding New York’s adoption of its plan
In Atkins, the Supreme Court dismissed plaintiffs’ claim that they were entitled to individualized notice prior to benefit reductions under the
Alternatively, the Commissioner argues that, even if NYSDH violated the Medicaid Act’s due process provision by failing to provide written notice of its coverage changes, that failure was harmless error. Based on the record – not least, the fact that plaintiffs brought this timely lawsuit challenging New York’s proposed restrictions – the Commissioner insists that the absence of written notice did not deprive plaintiffs of any meaningful opportunities to protect their statutory rights.
The Commissioner’s argument is facile at best. Where a statute explicitly prescribes procedures to be followed by a state agency prior to taking certain actions, the agency cannot avoid an injunction demanding compliance with those requirements by assigning plaintiffs the burden of demonstrating why such procedural requirements – enacted in a direct exercise of Congress’s legislative judgment – are worth respecting in any given instance. As we have repeatedly recognized,
In any event, the record demonstrates that NYSDH’s failure to provide written notice of its coverage restrictions in fact caused plaintiffs direct and practical harm. Absent such advance notice, plaintiffs had to endure the cost, inconvenience, and distress of seeking to refill their prescriptions, only to have their requests rejected by their providers or pharmacists. They suffered the disadvantage of receiving no opportunity to ration their current items or to find novel means to obtain replacements in light of advance knowledge that their Medicaid coverage was set to expire. And even once they learned from their providers that their benefits had been discontinued, they received no notification
We thus agree with the district court that defendant is entitled to summary judgment on plaintiffs’ due process claim with respect to plaintiffs’ right to have received evidentiary hearings prior to the termination of their Medicaid benefits, but that plaintiffs are entitled to summary judgment with respect to their right to have received written notice of the coverage restrictions prior to termination. Plaintiffs’ injunctive relief on this ground should be limited to an order barring implementation of NYSDH’s restrictions pending the provision of written notice to affected beneficiaries. See Eder v. Beal, 609 F.2d 695, 702 (3d Cir. 1979); Catanzano by Catanzano v. Dowling, 847 F. Supp. 1070, 1086 (W.D.N.Y. 1994).
IV. Comparability Provision
Fourth, plaintiffs argue that New York’s coverage restrictions violate the Medicaid Act’s comparability provision by providing lesser medical services to some categorically needy individuals than to others with the same medical needs.
As
The Commissioner does not dispute that plaintiffs include categorically needy individuals, nor that all the plaintiffs, no matter their diagnoses, have a genuine medical need for orthopedic footwear or compression stockings. By denying plaintiffs access to such services purely on the basis of the nature of their
In an amicus brief to this Court, the United States suggests that our resolution of plaintiffs’ claim depends on the breadth with which New York defines the “purpose” of orthopedic footwear and compression stockings under its plan. If, for example, New York’s designated purpose in providing orthopedic footwear were to aid growth in children, or if its purpose in providing compression stockings were to reduce swelling during pregnancy, then New York could restrict coverage of those services to children and pregnant women while nevertheless providing “equal access” to such services for all categorically needy individuals. If, by contrast, New York defined the purpose of those services simply as relieving pain or enhancing mobility, then
Portions of the record in fact suggest that New York restricted the purpose of orthopedic footwear – though not compression stockings – under its plan to treating limited medical conditions.17 During the 2011 revisions to its regulations,
in the treatment of children, to correct, accommodate or prevent a physical deformity or range of motion malfunction . . . ; in the treatment of children, to support a weak or deformed structure of the ankle or foot; as a component of a comprehensive diabetic treatment plan to treat [various conditions and deformities]; or to form an integral part of an orthotic brace.
Medical services are always, by nature, diagnosis-specific, and rarely are two diagnoses or medical histories exactly alike. Once we accept the principle that the comparability provision prohibits discrimination among individuals as well as groups, see
Accordingly, we reject the suggestion that a state’s definition of the purpose behind its medical services may, in and of itself, resolve a plaintiff’s challenge under the comparability provision. Rather, any genuine enforcement of the Medicaid Act’s comparability requirements must entail some independent judicial assessment of whether a state has made its services available to all categorically needy individuals with equivalent medical needs. See White, 555 F.2d at 1150 (assessing validity of state’s judgment of comparative medical need). Where a state purports to have made a medical determination that a particular service is not a necessary or appropriate treatment for a particular condition, our review of that judgment would presumably be highly deferential.18 Even then, however, our deference may be limited by the requirement that a state’s determination bear some genuine relation to beneficiaries’ medical needs. See
The record in this case exemplifies how easily a state can amend its definitions of its medical services without any regard to beneficiaries’ medical needs – and the propriety of some judicial oversight over those definitions. The Commissioner does not purport to have determined that orthopedic footwear or compression stockings are medically necessary to treat only the medical conditions to which he has restricted them, nor that individuals with those medical conditions have a more urgent medical need for those services. Indeed, the Commissioner concedes that such products may be equally necessary for plaintiffs as they are for covered beneficiaries. Rather, he explains that, as a cost-saving measure, New York has elected to provide those products only to the most common conditions for which they are medically necessary – thus denying
New York’s coverage restrictions thus violate the plain text of
V. Anti-Disability Discrimination under the ADA and Rehabilitation Act
Fifth, plaintiffs claim that New York’s restrictions on orthopedic footwear and compression stockings violate Title II of the ADA and § 504 of the Rehabilitation Act by excluding disabled individuals from public medical services on the basis of their disabilities, and violate the integration mandate of
Both Title II of the ADA and § 504 of the Rehabilitation Act protect the rights of disabled individuals to participate in state-administered or funded services. Title II 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.”
Because the standards imposed by Title II on public entities are generally equivalent to those of § 504, we “treat claims under the two statutes identically” in most cases. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). To
The Commissioner does not dispute that at least some plaintiffs qualify as disabled individuals for the purposes of Title II and § 504. Nor does he dispute that New York’s coverage restrictions on orthopedic footwear and compression stockings exclude those plaintiffs from access to public medical services on the basis of their medical conditions, effectively subjecting plaintiffs to disparate treatment within New York’s Medicaid program.21 Accordingly, the sole
The Commissioner insists that NYSDH’s restrictions do not violate either Title II or § 504 because they do not discriminate against the disabled, but simply allocate limited state resources among disabled individuals. According to the Commissioner, the ADA and Rehabilitation Act prohibit discrimination against the disabled as compared to the able-bodied, but do not bar public entities from drawing distinctions among groups of the disabled themselves.22 Courts, including this one, have held that the ADA does not bar unequal treatment of
Plaintiffs argue that a majority of the Supreme Court endorsed a broader view of discrimination under the ADA in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). We agree that it did, at least with respect to a program requiring persons with mental disabilities to receive care in an institutionalized setting, while allowing those with physical disabilities to receive similar services in a community setting.
More specifically, Olmstead unquestionably holds that the “unjustified institutional isolation of persons with disabilities” is, in an of itself, a prohibited “form of discrimination.” 527 U.S. at 600; see also id. at 607 (Stevens, J, concurring in part and concurring in the judgment) (“Unjustified disparate treatment, in this case, ‘unjustified institutional isolation,’ constitutes discrimination under the Americans with Disabilities Act of 1990.”); id. at 613-14 (Kennedy, J, concurring in judgment) (“I deem it relevant and instructive that
Justice Ginsburg, writing in Olmstead, reached that conclusion over the state’s objection that “discrimination necessarily requires uneven treatment of similarly situated individuals,” and that the plaintiffs had not identified a “comparison class” of similarly-situated non-disabled individuals “given preferential treatment,” id. at 598 (internal quotation marks omitted); cf. Henrietta D., 331 F.3d at 277 (holding, in context of reasonable accommodations claim, that evidence “that a disability makes it difficult for a plaintiff to access benefits . . . is sufficient to sustain a claim,” regardless of comparative treatment of others).23 Indeed, in Amundson ex rel. Amundson v. Wisconsin Dep’t of Health Services, 721 F.3d 871 (7th Cir. 2013), the Seventh Circuit observed that “‘discrimination’ as used in
In this case, New York’s plan amendments restrict coverage of orthopedic footwear and compression stockings for disabled persons to a narrow set of medical conditions. Any disabled persons who do not happen to suffer from those enumerated ailments are thus denied access to medically necessary assistance directly on the grounds of their disabling conditions. It is undisputed that at least some of the plaintiffs suffer from disabilities, which could be ameliorated by the services New York now denies to them, and that, without those services, would lead to their institutionalization. By subjecting those
As the Supreme Court held in Olmstead, this conclusion follows in substantial part from the “integration mandate,” which is consistent with the “concept of discrimination advanced in the ADA.” 527 U.S. at 598; see
In Olmstead, the Supreme Court interpreted the integration mandate to mean that the “unjustified isolation” of disabled individuals in institutionalized care facilities constitutes discrimination on the basis of disability under the ADA. 527 U.S. at 597. As the Court observed, the “unjustified institutional isolation” of disabled persons both “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” and “severely diminishes [their] everyday life activities.” Id. at 600-01. To avoid such damaging repercussions, the integration mandate thus requires a state to provide community-based treatment for disabled persons when (1) “the State’s treatment
Following the Supreme Court’s decision, DOJ announced its view that the disability discrimination claim recognized in Olmstead is not limited to individuals already subject to unjustified isolation, but also “extend[s] to persons at serious risk of institutionalization or segregation.” U.S. Dep’t of Justice, Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., Q.6 (last updated June 22, 2011), [hereinafter “DOJ Statement”], available at www.ada.gov/olmstead/q&a_olmstead.htm. As the Department explained, a plaintiff “need not wait until the harm of institutionalization or segregation occurs or is imminent” in order to bring a claim under the ADA. Id. Rather, a plaintiff establishes a “sufficient risk of institutionalization to make out an Olmstead violation if a public entity’s failure to provide community services . . . will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution.” Id. (emphasis added).
Unsurprisingly, against this backdrop, courts of appeals applying the disability discrimination claim recognized in Olmstead have consistently held that the risk of institutionalization can support a valid claim under the integration mandate. See Pashby, 709 F.3d at 322 (4th Cir. 2013) (holding that plaintiffs may raise successful ADA and Rehabilitation Act claims “because they face a risk of institutionalization”); M.R. v. Dreyfus, 697 F.3d 706, 720 (9th Cir. 2012) (recognizing violation where plaintiffs established that “reduced access to personal care services will place them at serious risk of institutionalization”); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 608 (7th Cir. 2004) (recognizing violation where state’s actions “portend[ ] . . . unjustified
Because the “State’s responsibility, once it provides community-based treatment to qualified persons with disabilities, is not boundless,” a state may be able to “resist modifications that entail a ‘fundamenta[l] alter[ation]’ of the States’ services and programs.” Olmstead, 527 U.S. at 603, quoting
The Commissioner does insist, however, that even assuming that a substantial risk of institutionalization may violate the integration mandate, the plaintiffs cannot prevail on their claim in this case, which involves purely optional services under New York’s Medicaid program. Since New York could permissibly eliminate coverage of all orthopedic footwear and compression stockings, and thus leave plaintiffs with the same risk of institutionalization, without violating either the Medicaid Act or the ADA, the Commissioner argues that New York’s decision to provide those benefits to only select recipients cannot be seen to “create” any such risk.
New York’s conceded discretion to decide whether to provide coverage of orthopedic footwear and compression stockings under the Medicaid Act, however, does not affect its duty to provide those services in a non-discriminatory manner under the ADA. A state’s duties under the ADA are wholly distinct from its obligations under the Medicaid Act. The Medicaid Act aims to provide comprehensive but resource-conscious medical care to needy individuals, a goal that it effects by mandating different levels of assistance for
So long as New York continues to provide coverage of orthopedic footwear and compression stockings under its Medicaid plan, it cannot deny such services only to certain disabled beneficiaries, with the effect of placing those disabled persons at substantial risk of institutionalization, because such a denial subjects plaintiffs to unjustified isolation on the basis of their disabilities in violation of the integration mandate. Since the Commissioner does not dispute the validity of
VI. Remedies
Finally, we come to the question of remedy. In the proceedings below, the district court certified plaintiffs’ class action on behalf of all “current and future New York State Medicaid recipients for whom Defendant has directly or indirectly failed to provide coverage for medically necessary orthopedic footwear and compression stockings as a result of [the 2011 restrictions].” Joint App’x at 415. The court subsequently entered a permanent injunction prohibiting NYSDH and its agents from enforcing those coverage restrictions against any beneficiaries under New York’s Medicaid plan.
The breadth of that remedy depended largely on the district court’s ruling in favor of plaintiffs on their reasonable standards claim – a ruling that would have precluded NYSDH from enforcing its coverage restrictions against any and all beneficiaries. With that claim now resolved in favor of the Commissioner, however, plaintiffs’ remaining successful claims do not compel such sweeping relief. Without exception, the provisions on which plaintiffs have prevailed entail remedies that are either more modest or benefit smaller subsets of the
Accordingly, while we affirm the district court’s grants of summary judgment to plaintiffs on their claims under the comparability provision, the due process provision, and the anti-discrimination provision of the ADA and Rehabilitation Act, we must remand the case to allow the district court to craft a remedy more appropriately tailored to those claims. See Patsy’s Italian Rest., Inc. v. Banas, 658 F.3d 254, 272 (2d Cir. 2011) (“[I]njunctive relief should be narrowly tailored to fit specific legal violations.” (internal quotation marks omitted)). In so
CONCLUSION
For the foregoing reasons, the district court’s judgment is VACATED as to plaintiffs’ claims under the Medicaid Act’s reasonable standards provision and AFFIRMED as to plaintiffs’ claims under the home health services, due process, the comparability provisions of the Act, and under Title II of the ADA and § 504 of the Rehabilitation Act. The injunction issued by the district court is VACATED and the case is REMANDED to the district court for reconsideration of appropriate relief.
Notes
(1) Compression and surgical stockings are limited to coverage during pregnancy and for venous stasis ulcers.
(2) Orthopedic footwear is limited to coverage in the treatment of children to correct, accommodate or prevent a physical deformity or range of motion malfunction in a diseased or injured part of the ankle or foot; in the treatment of children to support a weak or deformed structure of the ankle or foot; as a component of a comprehensive diabetic treatment plan to treat amputation, ulceration, pre-ulcerative calluses, peripheral neuropathy with evidence of callus formation, a foot deformity or poor circulation; or to form an integral part of an orthotic brace.