Q & A
Significant ADA Case: Crabtree v. Goetz (M.D. Tenn.)
Produced by Sarah Somers
National Health Law Program
with a grant from the Training and Advocacy Support Center (TASC)1
May 2009
Q. I have heard that Medicaid beneficiaries have been successful in
challenging cuts to home health and nursing services in
Tennessee. What is this case and what is the current status?
A. The case is Crabtree v. Goetz¸ No. 3:08-0930 (M.D. Tenn.) Judge
William J. Haynes has granted preliminary injunctive relief to a
number of individuals to prohibit the state Medicaid agency from
reducing their home health and nursing services. The court held
that the plaintiffs had shown that they were likely to be forced into
nursing homes or suffer other serious harm if the reductions were
not enjoined. The parties have now filed cross motions for
summary judgment and briefing is ongoing.
Discussion
The Crabtree plaintiffs are individuals with serious disabilities who need
extensive care and assistance. They filed suit against Tennessee state
Medicaid officials, alleging that they were violating Title II of the Americans with
Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504)
because they (1) failed to provide services in the most integrated setting
appropriate; and (2) employed methods of administration that result in
discrimination on the basis of disability.2
Tennessee?s Medicaid program is called TennCare. Program
beneficiaries are enrolled in Managed Care Organizations (MCOs), which the
state pays to manage care and assure proper utilization of services. Until
September 2008, beneficiaries were eligible to receive 24 hours per day, seven
days per week of home health and nursing services, if those services were found
medically necessary. Home health services are provided by Certified Nursing
Assistants (CNAs), and home nursing services are provided by Licensed
Practical Nurses (LPNs) or Registered Nurses (RNs).
Effective July 1, 2008, Tennessee enacted the Long-Term Care
Community Choices Act of 2008, which provides:
Sec. 3 ? (c) The long-term care system shall promote
independence, choice, dignity, and quality of life?and shall include
consumer-directed options that offer more choices regarding the kinds of
long-term care services people need?.
(e) The long-term care system?shall offer services?delaying or
preventing the need for more expensive, institutional care?.
Sec. 8(a) The commissioner shall develop level of care criteria for
new nursing facility admissions which ensure that the most intensive level
of long-term care services is provided to persons with the highest level of
need.
Sec.9(a) The commissioner shall develop and implement
strategies to encourage the utilization of cost-effective home and
community-based services in lieu of institutional placement.
Sec. 15(a) The commissioner shall, upon approval of a waiver
amendment granting authority from the federal government, develop and
make available consumer-directed options for persons receiving home
and community-based long-term care services under the long-term care
program, which may include, but are not limited to, the ability to select,
direct, and/or employ persons?personal care assistant/attendant…the
ability to direct and supervise a paid personal aide in the performance of a
health care task?.
Long-Term Care Community Choices Act of 2008, Pub. Chap. No. 1180, Senate
Bill No. 4181, An Act to amend Tenn. Code annotated, Title 63 and Title 68 and
71.
In August 2008, TennCare began sending notices to individuals over age
21 who were receiving home health aide or nursing care, informing them that
these services would be capped at no more than eight hours per day and private
duty nursing at no more than 27 hours per week. For those needing a
combination of both types of care, no more than 35 hours per week would be
covered. There were exceptions for those dependent on ventilators or who had
tracheotomies. For most individuals, however, this policy change would
dramatically reduce their services.
Tennessee state officials claimed that this reduction was necessary to
save money because of a financial crisis. They claimed that it would not be
possible to implement the LTCCCA and expand the home and community based
waiver program unless the cuts were implemented. Also, they claimed that
there was significant overprescription of home health and nursing hours and that
many individuals actually had family members and friends who could provide the
care, rather than having Medicaid cover it. Finally, they alleged that nearly $50
million in savings was required to implement the LTCCCA and make other
necessary changes to the long term care system.
Around the time that the notices were sent out, TennCare MCOs began
instructing participating health care providers to revise patients? order to reduce
services to the limits set forth in the notice, or the patients with new orders would
receive not care at all. Some providers complied, others refused.
The case was filed on behalf of individual plaintiffs ranging in age from 21
to 97.3 They have a variety of chronic and disabling conditions, including
cerebral palsy, muscular dystrophy, traumatic brain injury, Parkinson?s disease,
stroke, and Alzheimer?s disease. They cannot afford to pay for in-home nursing
out of pocket. Their family and friends already provide as much care as possible.
If the cuts were allowed to go into effect, Plaintiffs will be forced either to leave
their homes and spouses, children, siblings and parents and go live in a nursing
home, or stay home with grossly inadequate care that will damage their health
and endanger their lives. For example:
! Sara Crabtree is 28 and lives with her parents and her three children in
Gibson. A car accident two years ago left her with a severe brain injury, a
severe seizure disorder and incontinency. She needs substantial care,
part of which is provided by her parents, who also care for her children.
Ms. Crabtree was institutionalized in a nursing home immediately after her
accident. She developed a blood clot and almost died, due in part to lack
of care. If her home health nursing care were reduced, she would have to
go back to a nursing home.
! Plaintiff Harold Lee (?Lee?) Murphey, age 30, has Duchene?s Muscular
Dystrophy, a heart condition, chronic lung disorder, and spinal fusion to
immobilize his vertebrae and reduce abnormal motions. Mr. Murphey eats
very little by mouth and cannot chew or swallow, cannot reposition his
hands or legs, and needs to receive chest percussions to keep his
passages clear. He cannot lift his hand to push a call button. He cannot
be left alone for five minutes. He lives with his mother, who works to pay
the mortgage and put food on the table. Mr. Murphey recently graduated
from Middle Tennessee State University with a degree in journalism. His
mother cannot provide all of the additional care both because she works
and because she cannot lift him and position him by herself. When she is
the only one with Mr. Murphey, she cannot even take a shower as she
cannot be away from him that long. There is no nursing home in his
community or area that can accommodate his needs.
! Plaintiff Betty Jean Taylor is a 69-year-old resident of Mt. Juliet. She has
advanced Charcot Marie Tooth disease, a severe neuromuscular disease
that destroys both nerves and muscles. She cannot walk or stand. She
uses a ventilator, has a functioning tracheotomy, and otherwise uses an
oxygen machine. She must be put on and taken off the ventilator, and she
requires regular suctioning. If her nursing services are reduced, Ms.
Taylor will not be able to live in her home. Her only local family is a son,
who also suffers from Charcot Marie Tooth disease and cannot care for
her because he struggles to care for himself. Her physicians have stated
that nursing home placement would be physically dangerous for Ms.
Taylor and that it would also take a psychological toll on her.
! Lorrinda Mabry, a 42 year old woman with cerebral palsy, lives alone in an
apartment in Antioch. She has severe physical limitations and great
difficulty communicating. She needs assistance with eating, drinking,
bathing, getting in and out of bed. Even so, she is an activist for people
with disabilities who has advocated before the media, elected officials and
in the community. She relies on Medicaid-covered in-home nursing
services for assistance, because her aging mother can no longer take
care of her needs. Her doctor has stated that Ms. Mabry would need to be
institutionalized if her in-home nursing hours were reduced to the levels
mandated by Defendants.
According to data reported to the federal government in 2006, the last
year for which data was available, Tennessee spent 98 percent of its Medicaid
long-term care dollars on institutional care and less than 2 percent on home and
community-based services. Moreover, the federal government ranks states
based on the ratio of spending on institutional versus community-based long term
care services: the higher the proportion of spending on institutional services, the
lower the ranking. For the past several years, Tennessee was ranked last in the
country.
The Court heard Plaintiffs? Motion for Preliminary Injunction on November
7, 2008, nearly two months after the motion was filed.4 Four plaintiffs, several
caregivers and providers, and three TennCare officials testified at the hearing.
On December 19, 2008, the court granted the preliminary injunction.5
The reasoning of the opinion hews closely to that of the leading U.S.
Supreme Court case, L.C. v. Olmstead. The court held that Plaintiffs had
demonstrated irreparable injury based on the showing that the cuts would force
them into nursing homes and that ?such institutionalization would cause [them] to
suffer injury to their mental and physical health, including a shortened life and
even death for some Plaintiffs.?6 Further, the Court held that success on the
merits is likely. The court noted that Defendants had previously determined that
community placement was medically necessary ? the only justification for cutting
services was fiscal. The Court recognized that ?[u]nder the ADA,? the opinion
of a responsible treating physician in determined the appropriate conditions of
treatment ought to be given the greatest of deference.?? 7 Also significant was
the fact that Defendants had made no individualized assessment of the Plaintiffs?
needs before making the cuts.
The Court rejected Defendants? contention that continuing to provide
services to Plaintiffs in the community would be a fundamental alteration to the
TennCare program. It reasoned that the cost of continuing home health and
nursing care for the 22 plaintiffs would ?be only a fraction of the $50 million that
Defendants identify as necessary for the changes Tennessee proposes.?
However, the Court also noted that it needed to consider the cost of providing
benefits to ?substantially similar? beneficiaries.8 However, the court also noted
that ?states would sometimes be required to make short-term financial outlays,
even in the face of mounting fiscal problems.? 9
Defendants had argued that the requested relief would be a fundamental
alteration because it would interfere with Defendants? comprehensive plan to
move eligible patients into community care settings.10 The Court held that the
LTCCCA was the state?s comprehensive plan; however, it noted that Defendants
had conceded that it was not yet operational and that ?the phasing in of . . .
waiver slots and effective home and community based alternatives . . . are all
promissory.? Nor was there any evidence of the draft plan called for by the
LTCCCA.11
Notably, the Court cited two Ninth Circuit decisions that held in favor of the
state Defendants in support of its conclusion that Tennessee has no effectively
working plan. These decisions have been troublesome for ADA plaintiffs, thus it
is encouraging to see that they need not be insurmountable obstacles.The Court
noted that:
in Sanchez v. Johnson . . . the Ninth Circuit found an effectively working
plan where: (1) a 30 year old state law required coverage of services for
people with developmental disabilities to prevent or minimize
institutionalization; (2) a significant decrease in institutionalized individuals
occurred over a decade; (3) the State significantly increased community
based spending, home and community based waiver slots over the course
of a decade; (4) the State had a system of individualized community
placement plans with extensive databases containing disabled citizens in
the system. In Arc of Washington v. Braddock . . . the HCB waiver
program had increased more that 600 percent and the State doubled the
budget for community-based programs, and had a 20 percent reduction in
its institutionalized population. 12
In contrast, the Court held that Tennessee had nothing comparable in effect.
The Court ordered that the Defendants: 13
(1) . . . refrain from imposing the cuts . . . upon the Plaintiffs until the
community-based, patient centered system authorized by the States
[LTCCCA] is implemented and available to Plaintiffs.
(2) . . . conduct individualized assessments of the Plaintiffs to determine
the specific needs of each Plaintiff, including the amount of time
required to meet those needs, and the extent to which family or other
natural supports are available, and whether the needs could be
satisfied in the community at less cost than Defendants are presently
paying; and
(3) . . . determine whether nursing homes will in fact provide the services
each Plaintiff requires.14
The Defendants did not appeal the decision.
Since the injunction was entered, four intervener complaints and additional
preliminary injunction motions have been filed on behalf of a total of 35 Plaintiffs.
For those Plaintiffs for whom services had not yet been reduced, Defendants
agreed to maintain their services pending the litigation. Unfortunately, however,
some of the Plaintiffs? services had already been cut, and they were struggling.
Defendants would not agree to restore their services. Accordingly, on April 20,
2009, a motion for temporary restraining order and preliminary injunction was
filed on behalf of three Plaintiffs asking that their services be restored to the level
preceding the cuts.
These Plaintiffs? facts included the following:
! Plaintiff-Intervener Darrell Johnson has only spastic muscle
movements and requires a feeding tube and an external catheter. He
does not communicate verbally and communicates with family by nonverbal cues. He was receiving 24 hours per day, 7 days per week of
home nursing services. In December 2008, his home nursing services
were reduced 30 hours per week and home health aide services to 10
hours per week. His wife has been struggling to care for him, despite
her own physical limitations which include back problems related to
lifting him. Over the past several weeks, Mr. Johnson?s physical
condition has gotten much worse. He has been coughing violently and
is possibly having seizures. His wife has been trying to keep him from
falling out of bed or hitting his head by lying on top of him. She fears
that she will not be able to prevent harm to him. In addition, her back
problems have worsened.
! Plaintiff Bonnie Smiley is paralyzed as a result of a spinal cord injury.
She is in constant pain and requires frequent catheterization. She was
receiving 24/7 home health services until September 15, 2008, when
they were reduced to 35 hours per week. A friend was staying with her
to provide additional care, but has since moved away.
! Rachel and Rebecca Bostic were each receiving 12 hours per day of
home health aide services (two home health aides for 12 hours per
day, seven days a week) until January 24, 2009, when services were
reduced to five hours per day (one home health aide for 10 hours a
day, seven days a week). Their health has been declining over the
past several weeks. They are not getting out of bed as often and
Rebecca is having much more frequent aspirations. More
importantly, the stress and strain on Mrs. Bostic is taking its toll. She is
65 and she is getting weaker and more exhausted. There is a great
risk that Rachel or Rebecca might be harmed and/or forced into a
nursing home because Mrs. Bostic is overwhelmed and exhausted.
At a hearing on May 4, the Court granted the temporary restraining order
and preliminary injunction for these Plaintiffs, holding that irreparable harm had
clearly been established ?by reason of threats to their mental and medical
conditions.? Further, there was a ?serious risk? of institutionalization. The Court
also held that ?the defendants continue to engage in a categorical approach in
this matter in a manner that the Court believes deprives these intervener plaintiffs
who have disabilities, resulting in a loss of their individual lives, community
activities, [and] separate from their loved ones.?15 Finally, the Court held that
the relief would not pose an adverse effect on others.16 The Defendants have
not, as of this writing, appealed the order.
The parties have also filed cross-motions for summary judgment on behalf
of one Plaintiffs, David Scott, in order to obtain final judgment on some of the
legal issues in the case. In addition to challenging the across-the-board cuts, Mr.
Scott has also challenged another aspect of the TennCare program. Tennessee
law currently defines medical necessity in a very narrow manner. Among other
things, in order for a treatment to be found ?medically necessary,? it must the
?least costly alternative . . . adequate to meet an individuals? needs.?17 Under this
definition, the MCOs had been reducing home health and nursing services to a
level that cost no more than the nursing home care. Because Defendants had
calculated that nursing home care cost about $4,200 per month, home health or
nursing services that cost more than that amount were not ?medically necessary.?
And, $4,200 worth of home health or nursing services – about the same number
of hours that were allowed under the caps.
Mr. Scott?s hours had been reduced pursuant to the ?medical necessity?
definition. Because this criteria is similarly unrelated to individual needs and
would also result in institutionalization, he also challenges them under the ADA
and Section 504. This question will eventually become relevant for all of the
Plaintiffs, as TennCare has announced its intention to apply this ?least costly
alternative? criteria to all home health and nursing beneficiaries.
Summary judgment briefing will continue through the summer.
Lessons
The success of this case to date is due to several factors. Undoubtedly,
however, the participation of Plaintiffs with extremely sympathetic facts has been
pivotal. Moreover, several of the Plaintiffs who were physically and logistically
able to do so appeared at the hearing to testify. It seems that the judge was very
impressed by their testimony.
It was possible to find such good plaintiffs because of the participation of
local attorneys, not all of whom were counsel in the case. Because of a long
history of advocacy on behalf of Medicaid beneficiaries with disabilities, many
channels of communication to Medicaid beneficiaries and providers had been
established over the years. This made locating compelling plaintiffs much easier.
In addition, there was existing publicly-available CMS data showing that
Tennessee had a relatively poor record of providing home and community based
care. These figures indicated that little or no progress had been made since
Olmstead was decided in 1999. In both preliminary injunction orders, the judge
specifically recognized this fact. For more information about how to locate this
data for your state, contact NHeLP or Steve Gold.
Finally, counsel had many avenues for gathering information about
Tennessee?s budget, which enabled them to present evidence that the fiscal
situation was not nearly as dire as the state asserted.
Conclusion
NHeLP will keep advocates informed about further progress and
developments in this case.
1 Produced by the National Health Law Program with a grant from the Training
Advocacy Support Center (TASC), which is sponsored by the Administration on Developmental
Disabilities, the Center for Mental Health Services, the Rehabilitation Services Administration, the
Social Security Administration, and the HealthResources Services Administration. TASC is a
division of the National Disabilities Rights Network (NDRN).
2 Counsel for Plaintiffs are Stephen F. Gold, the Legal Aid Society of Tennessee, Sherrard
& Roe of Nashville, and NHeLP.
3 Counsel decided not to file the case as a class action, in part because one of the lead
counsel in the case is a legal services organization that is barred from participating in class action
cases. Instead, the case was filed on behalf of 22 individuals. Since then, an additional 35
plaintiffs have been successfully intervened.
4 The delay occurred for an unusual reason: four judges recused themselves from
hearing the case. The first judge, Aleta Trauger, most likely recused herself because she is close
friends with Tennessee?s governor. Phil Bredesen. The second judge, Todd J. Campbell, stated
that he had ?a conflict of interest regarding defense counsel who is on my conflict list.? The next
judge, Robert L. Echols, simply issued an order stating that he ?could not undertake the case at
this time.? Subsequently, Senior Judge John T. Nixon recused himself without explanation.
Judge Nixon had, however, presided over other litigation against TennCare and clashed
repeatedly with the state?s attorneys, eventually recusing himself in John B. v. Goetz, 3:98-0168
(M.D. Tenn.). Thus, it is possible that he simply did not want to invite additional complications
into the case, or just did not want the headache. Finally, Judge Haynes was assigned the case
and the litigation continues under him. Fortunately, Defendants had agreed to postpone
reduction of the services, pending the preliminary injunction hearing, so this delay didn?t harm
them.
5 See Crabtree v. Goetz, No. 3:08-0939, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2009).
6 2008 WL 5330506, *30.
7 Id., *25, quoting L.C. v. Olmstead, 527 U.S. __, 610 (1999) (Kennedy, J., concurring).
8 Id., *27.
9 Id., *26.
10 Olmstead had suggested that the disruption of such a plan would be a fundamental
alteration. See 527 U.S. at 605-06.
11 Id., *29.
12 Id, citing Arc, 427 F.3d 615, 621 (9th Cir. 2005); Sanchez, 416 F.3d 1051, 1064 (9th
Cir. 2005).
13 Order, 1 (Dec. 19, 2009). This section of the order is not included in the Westlaw
version of the case. For a copy, contact NHeLP.
14 It is important to emphasize that the Court did not suggest that, if a nursing home
were available for a particular plaintiff, that individual would be required to accept such a
lacement. Rather, it appears to reflect the Court?s acceptance of the evidence that Plaintiffs had
shown that Defendants did not identify nursing homes that would take plaintiffs because of their
serious disabilities.
15 Hearing Transcript, at 122. There is no written order. A electronic copy of the
transcript can be obtained from NHeLP.
16 Id.
17 Tenn. Comp. R. & Regs. § 1200-13-16-.05.
