Q & A: Significant ADA Case: Crabtree v. Goetz

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. 

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