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Q&A
Significant ADA Case: Crabtree v. Goetz (M.D. Tenn.)
May 2009
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
Produced by the National Health Law Program with a grant from the Training
1
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.
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.
2
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
Counsel decided not to file the case as a class action, in part because one of the lead
3
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.
3
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.
The delay occurred for an unusual reason: four judges recused themselves from
4
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
4
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.
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.
5
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 contrast, the Court held that Tennessee had nothing comparable in effect.
(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.
(3) . . . determine whether nursing homes will in fact provide the services
each Plaintiff requires.14
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
6
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.
• 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
placement. 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.
7
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.
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.
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.
8
Lessons
Conclusion