On February 1, 2013, disabled seniors in Loveland and Ironton Ohio filed this lawsuit in the U.S. District Court for the Southern District of Ohio. Plaintiffs sued the Ohio Department of Jobs and Family Services and the Ohio Department of Aging under 42 U.S.C § 1983 and state law. Represented initially by private counsel and in later stages also by the public interest group Justice In Aging, the plaintiffs sought class action certification and injunctive and declaratory relief, claiming violation of the Social Security Act (42 U.S.C § 1396) and the Due Process Clause of the Fourteenth Amendment.
Specifically, plaintiffs alleged that Ohio unduly delayed enrolling eligible plaintiffs in the Medicaid Assisted Living Waiver Program, and also failed to either provide them with the opportunity to apply to state funded assisted living programs or to give them a written denial notice and opportunity for fair hearing.
On January 16, 2015, plaintiffs sought summary judgment, asking to court to rule that the state violated federal law by failing to provide retroactive assisted living benefits for three months prior to their enrollment. On February 20, 2015, defendants countered with their own summary judgment motion, based on a series of arguments that the plaintiffs lacked standing to bring suit. One of defendants’ main arguments was based on the Medicaid requirement that assisted living benefits were only available for treatment that was, “pursuant to a written plan of care to individuals who, but for such services, would require the level of care provided in a hospital or nursing facility.” Ohio argued that this provision required that a written plan of care be created before an individual would be eligible for assisted living benefits, and that plaintiffs lacked standing since they hadn’t had written plan of care prior to the period that they were claiming retroactive benefits for. Another major argument by defendants was that the plaintiffs lacked standing because they were seeking retroactive relief from state officials, which is barred by the Eleventh Amendment.
Defendants also made a series of more technical arguments alleging that plaintiffs lacked standing. They argued that that the plaintiffs lacked standing because the Supreme Court had barred notice relief or declarations that a state was violating federal law when the federal law had been changed before the case was brought. They argued that one of the plaintiffs had died before the suit and her claim hadn’t survived her death. And they argued that the other plaintiff lacked standing because she had moved to a nursing home and stopped being potentially eligible for assisted living benefits before the claim was brought.
On September 1, 2015, Magistrate Judge Karen L. Likovitz granted the plaintiffs’ motions for class action certification and for summary judgment. The certified class included all Ohio individuals who meet the eligibility standards for the assisted living Medicaid waiver for the months occurring no earlier than three months prior to the month of application, but who are denied coverage under the assisted living Medicaid waiver for all or some of those months. 381 F.R.D. 345 (S.D. Ohio 2015).
Judge Litkovitz dismissed all of the defendants’ arguments that plaintiffs lacked standing. She found that the requirement that treatment be pursuant to a written plan should be read in the context of the rest of 42 U.S.C. § 1396a(a)(34), which requires that benefits be provided retroactively to individuals who would have been eligible for said benefits if they had applied earlier. She found that the plaintiffs were asking for prospective injunctive relief, and thus weren’t barred from suing the state by the Fourteenth Amendment. She found that the federal law hadn’t been amended prior to the case and there was thus an ongoing violation of federal law. She found that the death of Mrs. Hilleger didn’t preclude standing under Ohio Law, which allows intangible property interest like those in Medicaid benefits to survive an individual’s death. And she found that the fact that Mrs. Saunders was no longer eligible for assisted living waiver benefits at the time of bringing suit didn’t preclude standing because a favorable ruling would allow her to sue for retroactive benefits. Id. at 358-359.
Judge Litkovitz then issued the plaintiffs declaratory relief under her analysis of the state plan section of the Social Security Act (42 U.S.C. § 1396a). She held that the Ohio regulations prohibiting assisted living waiver benefits for up to three months prior to the month of application for individuals who were eligible for coverage at the time those services were furnished violated the retroactivity provision of 42 U.S.C. § 1396a(a)(34). She also held that defendants' failure to notify applicants for assisted living waiver benefits that they were being denied coverage for months in which they met the eligibility requirements and the reasons for such action violated 42 U.S.C. § 1396a(a)(3) and the Due Process Clause. She further held that defendants' failure to provide plaintiffs and the class with retroactive Medicaid assisted living waiver coverage to which they were otherwise entitled violated the reasonable promptness requirement of 42 U.S.C. §1396a(a)(8). Id. at 381.
Magistrate Judge Likovitz then granted plaintiffs injunctive relief. She enjoined the state from denying plaintiffs and the class eligibility for Medicaid assisted living waiver benefits for months in which they are determined to meet eligibility standards, for as early as three months prior to the month in which application is made, and required the state to modify its policies and practices to achieve this relief. She also issued an injunction requiring the state to identify and provide written notice to plaintiffs and all class members that their Medicaid assisted living waiver coverage will begin on the first day of the month in which they meet all eligibility criteria, up to three months prior to the month of application, with a notice advising them of the state administrative procedure, compliant with due process requirements, available if they desire to have the state determine whether or not they may be eligible for additional days of Medicaid assisted living waiver coverage. Id.
On September 30, 2015, the defendants appealed the court's ruling to the Sixth Circuit Court of Appeals, and asked for a stay in the ruling pending that appeal. The state argued that the ruling undermined the Medicaid assisted waiver program's requirement that assisted living waiver services be provided pursuant to a written plan of care, without which individuals would require a similar level of care in a hospital or nursing home. Judge Likovitz denied a stay, holding that any damage to the defendants was outweighed by potential damage to plaintiff class members.
On January 22, 2016, plaintiffs asked the Sixth Circuit for a limited remand of the case to clarify an oversight in defining the class for class certification. On appeal, defendants had argued that the certified class was over broad because it didn’t incorporate the two-year statute of limitations in Ohio Rev. Code § 2305.10. Plaintiffs wanted the Sixth Circuit to remand the class definition to Magistrate Judge Litkovitz so she could change the defined class to clarify that plaintiffs had filed the suit on behalf of individuals who were denied coverage on or after February 1, 2011. However, on January 29, the Sixth Circuit denied this request without explanation.
On March 23, 2016, the U.S. DOJ filed a statement of interest in support of the defendants. The DOJ argued that the district court’s ruling was contrary to the interpretation of the statute by the Secretary of Health and Human Services, would defeat the core purpose of the plan of care requirement, and undermined overall scheme of the state-provided Medicaid waiver system, which was intended to allow states to craft their own plans without excessive and unanticipated costs.
Defendants' appeal is currently ongoing. In addition to the Statement of Interest by the DOJ, amicus briefs have been filed in favor of the plaintiffs by public interest groups the Ohio Centers for Assisted Living and the Ohio chapter of the National Academy of Elder Law Attorneys. Oral arguments were heard on April 28, 2016. At this point, on Feb. 1, 2016, the district court has stayed briefing on plaintiffs' pending motion for attorney fees and costs until after the Sixth Circuit rules on defendants' appeal. Ryan Berry - 06/01/2016