M.R. v. Dreyfus , 697 F.3d 706 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M. R.; S. J.; C. B.; D. W.; A. B.; 
M. B.; AN. B.; J. B.; K. S.; T. M.;
A. R.; M. J. B.; J. H.; H. C.; THE
ARC OF WASHINGTON; SERVICE
EMPLOYEES INTERNATIONAL UNION
HEALTHCARE 775NW; PUGET SOUND
ALLIANCE FOR RETIRED AMERICANS,
Plaintiffs-Appellants, No. 11-35026
v.
 D.C. No.
2:10-cv-02052-TSZ
SUSAN DREYFUS, in her
professional capacity as Secretary OPINION
of Washington State Department
of Social and Health Services;
WASHINGTON STATE DEPARTMENT OF
SOCIAL AND HEALTH SERVICES, a
Department of the State of
Washington,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted
June 9, 2011—Seattle, Washington
Filed December 16, 2011
Before: Stephen Reinhardt, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge William A. Fletcher;
Dissent by Judge Rawlinson
21109
M. R. v. DREYFUS 21113
COUNSEL
Stephen P. Berzon. Eve Hedy Cervantez, Stacey Leyton, Mat-
thew John Murray, Casey Austin Roberts, ALSHULER BER-
ZON LLP, San Francisco, California, Andrea Brenneke,
MACDONALD HOAGUE & BAYLESS, Seattle, Washing-
ton, for the appellants.
Edward J. Dee, William T. Stephens, William Bruce Work,
OFFICE OF THE WASHINGTON ATTORNEY GENERAL,
Olympia, Washington, for the appellees.
21114 M. R. v. DREYFUS
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs, Washington State Medicaid beneficiaries with
severe mental and physical disabilities, appeal the district
court’s denial of their motion for a preliminary injunction.
Plaintiffs seek to enjoin the operation of a regulation promul-
gated by Washington’s Department of Social and Health Ser-
vices (“DSHS”) that reduces the amount of in-home “personal
care services” available under the state’s Medicaid plan. The
United States Department of Justice has filed a “statement of
interest” in the district court supporting Plaintiffs’ request for
an injunction.
“Personal care services” provide assistance in performing
basic life activities — such as eating, bathing, dressing, mov-
ing from place to place, and using the toilet — that Plaintiffs,
because of their disabilities, cannot perform by themselves.
To comply with Governor Christine Gregoire’s executive
order that directed an across-the-board reduction in all state
agency expenditures, DSHS promulgated a regulation that cut
the base hours of covered in-home personal care services by
an average of 10 percent per beneficiary per month.
Plaintiffs argue principally that the regulation violates the
antidiscrimination provisions of the Americans with Disabili-
ties Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29
U.S.C. § 794(a), because the reduction in hours will substan-
tially increase the risk that they will be institutionalized in
order to receive care adequate to maintain their mental and
physical health. The district court denied preliminary relief.
We reverse. We conclude that Plaintiffs have demonstrated
a likelihood of irreparable injury because they have shown
that reduced access to personal care services will place them
at serious risk of institutionalization. We further conclude that
Plaintiffs have raised serious questions going to the merits of
M. R. v. DREYFUS 21115
their Rehabilitation Act/ADA claims, that the balance of hard-
ships tips sharply in their favor, and that a preliminary injunc-
tion will serve the public interest. See Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011).
We therefore remand for entry of a preliminary injunction.
I. Background and Procedural History
A. Factual Background
Medicaid is a cooperative federal-state program under
which the federal government provides states with financial
assistance to supply medical services to low-income people.
Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 617 (9th
Cir. 2005). State participation is voluntary, but once a state
chooses to participate, the state must submit for federal
approval a plan that complies with federal statutory and regu-
latory requirements. Alexander v. Choate, 469 U.S. 287, 289
n.1 (1985); Townsend v. Quasim, 328 F.3d 511, 514 (9th Cir.
2003). A state plan must cover the cost to eligible people of
certain medical services, including inpatient and outpatient
hospital care; laboratory and X-ray services; nursing facility
care; and services provided by physicians, dentists, nurse-
midwives, and pediatric or family nurse practitioners. See 42
U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17), (21); 42
C.F.R. §§ 440.210, 440.220. Within this federal framework,
however, states retain “substantial discretion to choose the
proper mix of amount, scope, and duration limitations on cov-
erage.” Alexander, 469 U.S. at 303; see also Beal v. Doe, 432
U.S. 438, 444 (1977); 42 C.F.R. § 430.0.
States may, but need not, choose to subsidize other types of
medical services, including “personal care services,” the ben-
efit at issue here. See 42 U.S.C. §§ 1396a(a)(10)(A),
1396d(a)(24). “Personal care services” are:
services furnished to an individual who is not an
inpatient or resident of a hospital, nursing facility,
21116 M. R. v. DREYFUS
intermediate care facility for the mentally retarded,
or institution for mental disease that are
(A) . . . authorized for the individual in
accordance with a service plan approved by
the State,
(B) provided by an individual who is quali-
fied to provide such services and who is not
a member of the individual’s family, and
(C) furnished in a home or other location.
Id. § 1396d(a)(24); see also 42 C.F.R. § 440.167(b) (clarify-
ing that a family member is “a legally responsible relative”);
CTRS. FOR MEDICARE AND MEDICAID SERVS., STATE MEDICAID
MANUAL § 4480(C), at 4-495 (1999) (personal care services
“include a range of human assistance provided to persons
with disabilities and chronic conditions . . . which enables
them to accomplish tasks that they would normally do for
themselves if they did not have a disability,” and “most often
relate[ ] to . . . eating, bathing, dressing, toileting, transferring,
. . . maintaining continence, . . . personal hygiene, light house-
work, laundry, meal preparation, transportation, grocery shop-
ping, using the telephone, medication management, and
money management”).
Washington has elected to cover the cost of personal care
services, which the state defines as “physical or verbal assis-
tance with activities of daily living and instrumental activities
of daily living provided because of a person’s functional dis-
ability.” WASH. REV. CODE § 74.39A.009(18). The state
defines “activities of daily living,” in turn, to include bathing,
bed mobility, body care, dressing, eating, locomotion inside
and outside one’s room and immediate living environment,
walking in one’s room and immediate living environment,
medication management, toilet use, transferring between sur-
faces, and personal hygiene. WASH. ADMIN. CODE § 388-106-
M. R. v. DREYFUS 21117
0010. The state defines “instrumental activities of daily liv-
ing” as including meal preparation, ordinary housework,
essential shopping, wood supply when wood is used as one’s
sole source of heat, travel to medical services, managing
finances, and telephone use. Id.
Washington’s DSHS administers the state’s Medicaid pro-
grams. See 42 U.S.C. § 1396a(a)(5); WASH. REV. CODE
§ 74.09.530. DSHS covers the cost of personal care services
for approximately 45,000 people. Some 15,000 of those bene-
ficiaries are “categorically needy” participants in the state’s
Medicaid plan. The remaining 30,000 beneficiaries participate
in one of Washington’s Medicaid waiver programs, “under
which the Secretary of Health and Human Services is autho-
rized to waive certain Medicaid requirements for innovative
or experimental state health care programs.” Townsend, 328
F.3d at 514. Consistent with Congress’s preference for com-
munity rather than institutional care, “the waiver program
provides Medicaid reimbursement to States for the provision
of community-based services to individuals who would other-
wise require institutional care, upon a showing that the aver-
age annual cost of such services is not more than the annual
cost of institutional services.” Olmstead v. L.C. ex rel. Zim-
ring, 527 U.S. 581, 601 n.12 (1999) (citing 42 U.S.C.
§ 1396n(c)).
Before Washington may cover the cost of in-home personal
care services to participants in a Medicaid waiver program,
the state must have made “a determination that but for the
provision of such services the individuals would require the
level of care provided in a hospital or a nursing facility or
intermediate care facility for the mentally retarded the cost of
which could be reimbursed under the State plan.” Id.
§ 1396n(c)(1); 42 C.F.R. §§ 435.217, 441.302(c); see also,
e.g., WASH. ADMIN. CODE § 388-106-0310(4) (participants in
Community Options Program Entry Services (“COPES”)
waiver program must “need the level of care provided in a
nursing facility”); id. §§ 388-106-0410(4), 388-106-0510(4)
21118 M. R. v. DREYFUS
(same with respect to participants in Medically Needy Resi-
dential Waiver (“MNRW”) and Medically Needy In-Home
Waiver (“MNIW”) programs); id. § 388-845-0030(2)
(developmentally disabled participants in Home and
Community-Based Services (“HCBS”) waiver programs must
need the level of care provided in an intermediate care facility
for the mentally retarded).
DSHS determines the number of hours of in-home personal
services care to which a Medicaid beneficiary is entitled
through the Comprehensive Reporting Evaluation (“CARE”).
See WASH. ADMIN. CODE § 388-106-0050 to -0145. The Wash-
ington Supreme Court has described CARE as follows:
In the initial stage of a CARE evaluation, the indi-
vidual is scored on factors such as an individual’s
ability to perform daily activities and an individual’s
mental status. The individual is then assigned to 1 of
17 classification groups, each group having a set
number of base . . . hours associated with it. Once
these base hours are established, an assessor individ-
ually considers the recipient’s self-performance and
the amount of informal support available for the
recipient’s activities of daily living (ADL) and
instrumental activities of daily living (IADL). The
recipient’s level of informal support for each ADL
and IADL then reduces the base hours allocated to
that recipient by a predetermined percentage.
Samantha A. v. Dep’t of Soc. & Health Servs., 256 P.3d 1138,
1140 (Wash. 2011) (en banc) (internal citation omitted); see
also, e.g., Jenkins v. Wash. Dep’t of Soc. & Health Servs., 157
P.3d 388, 389-90 (Wash. 2007) (en banc). DSHS sets the base
monthly hours associated with each classification group by
regulation. WASH. ADMIN. CODE § 388-106-0125. DSHS con-
ducts CARE reassessments at least annually, or whenever a
beneficiary’s ability to care for himself changes. Id. § 388-
106-0050(1). A beneficiary who disagrees with his CARE
M. R. v. DREYFUS 21119
evaluation may appeal the evaluation in an administrative
hearing. Id. § 388-106-1305. A beneficiary who remains dis-
satisfied with his allocated hours of assistance may request
additional hours through an Exception to Rule (“ETR”). Id.
§ 388-440-0001. DSHS will grant an ETR when “[t]he cli-
ent’s situation differs from the majority; . . . [i]t is in the inter-
est of overall economy and the client’s welfare; and [i]t
increases opportunities for the client to function effectively.”
Id. § 388-440-0001(1)(b)-(d).
Once the CARE evaluation sets the number of hours to
which a beneficiary is entitled, the beneficiary and his DSHS
case manager work together to design a plan of care that spec-
ifies the services that the beneficiary will receive as well as
the caregivers who will provide those services. Id. §§ 388-
106-0045, 388-106-0130. At all times, a beneficiary has the
right to choose where he will receive authorized services (for
example, in his home, in a residential facility, or in a nursing
home), id. § 388-106-0030; to “[t]ake part in and have [his]
wishes included in planning [his] care,” id. § 388-106-
1300(13); and to “[c]hoose, fire, or change” his caregiver, id.
§ 388-106-1300(14).
On September 13, 2010, Governor Gregoire issued an exec-
utive order stating that because of “the national economic
downturn” and “revenues [that] have fallen short of projec-
tions,” the state’s general fund was in danger of running a def-
icit. Exec. Order No. 10-04, Ordering Expenditure Reductions
in Allotments of State General Fund Appropriations (Sept. 13,
2010), available at http://www.governor.wa.gov/execorders/
eo_10-04.pdf. Governor Gregoire ordered an across-the-board
reduction in general fund appropriations to all state agencies,
in an amount to be computed by the state’s Office of Finan-
cial Management. Id; see WASH. REV. CODE § 43.88.110(7)
(“If at any time during the fiscal period the governor projects
a cash deficit in a particular fund or account . . . the governor
shall make across-the-board reductions in allotments for that
particular fund or account so as to prevent a cash deficit.”).
21120 M. R. v. DREYFUS
The Office of Financial Management, in turn, determined that
each state agency would be required to reduce its allotment
from the general fund by 6.287 percent. See Office of Fin.
Mgmt., Allotment Reduction Instructions for Across-the-
Board Cuts Mandated by Executive Order 10-04, at 2 (Sept.
16, 2010), available at http://www.ofm.wa.gov/budget/
instructions/allotment/Allotment_reduction_instructions
091610.pdf.
To comply with the governor’s order, DSHS promulgated
an emergency regulation that reduced the base monthly hours
of in-home personal services care authorized for each CARE
classification group, effective January 1, 2011. See Wash.
Reg. 11-02-041 (Dec. 30, 2010) (codified at WASH. ADMIN.
CODE § 388-106-0125), available at http://apps.leg.wa.gov/
documents/laws/wsr/2011/02/11-02-041.htm. DSHS applied
the lowest percentage reductions to the classification groups
composed of the most disabled beneficiaries. See WASH. REV.
CODE § 74.09.520(4) (“Any reductions in services made nec-
essary for funding reasons should be accomplished in a man-
ner that assures that priority for maintaining services is given
to persons with the greatest need as determined by the assess-
ment of functional disability.”). For example, DSHS reduced
the base monthly hours for people in group D High from 277
to 260, a 6.1 percent decrease. Wash. Reg. 11-02-041. By
contrast, DSHS reduced the monthly base hours for people in
group B Low from 47 to 39, a 17 percent decrease. Id. The
average reduction in hours across all groups was about 10 per-
cent. Susan Dreyfus, DSHS’s Director, declared in January
2011 that the reduction in hours would save $19.2 million in
the five months then remaining in the 2011 fiscal year. DSHS
acknowledged in agency planning documents that “[w]ith
reduced hours, in-home clients will have to choose which
tasks their employees spend their time on and there may not
be enough time to complete all tasks.” Moreover, DSHS
anticipated that “[a]t the higher percentage reductions, some
needed tasks may not be completed on a regular basis. In
some cases, a safe in-home plan of care will not be possible
M. R. v. DREYFUS 21121
and clients may need to go to community residential or nurs-
ing facility settings.”
On December 6, 2010, about three weeks before the reduc-
tion was to take effect, DSHS mailed notice of the change to
beneficiaries. The notice stated that “you will receive fewer
personal care hours each month starting January 1, 2011,” set
forth the beneficiary’s current and revised monthly hours, and
computed the difference. The notice stated that “[t]his notifi-
cation serves as an amendment to your plan of care. You will
need to work with your personal care worker to prioritize
tasks within this reduced number of monthly authorized
hours.” Finally, the notice explained that DSHS
is making this change in response to the Governor’s
September 14th Executive Order 10-04 for 6.3%
reductions. This was one of a number of changes
made across government to address the State’s reve-
nue shortfall.
There are no appeal rights for this change through
the Office of Administrative Hearings because this is
a service change directed by the governor and
applies to the entire program. We know these
changes may be difficult for you. If you have ques-
tions or concerns about changes to your services,
please contact your case manager.
B. Procedural History
On December 23, 2010, Plaintiffs — 14 recipients of in-
home personal services care whose hours were reduced, two
advocacy organizations, and a union that represents Washing-
ton home-care workers — brought suit in federal district court
for the Western District of Washington. The 14 individual
plaintiffs sued on behalf of a proposed class of “Medicaid-
eligible individuals in the State of Washington living at home
who were assessed to need personal care services based upon
21122 M. R. v. DREYFUS
individualized CARE assessments of their needs and who
received these Medicaid services in accordance with their
assessment[s] until DSHS reduced their services to below
their level of need for budgetary reasons alone.” Plaintiffs
alleged that the regulation violated the Americans with Dis-
abilities Act, 42 U.S.C. § 12132, the Rehabilitation Act, 29
U.S.C. § 794(a), due process, and various statutory and regu-
latory Medicaid requirements. Plaintiffs sought a declaratory
judgment, as well as a temporary restraining order and prelim-
inary and permanent injunctions prohibiting DSHS from
implementing the regulation. In the alternative, Plaintiffs
sought to enjoin the reduction in hours until beneficiaries
received individual CARE reassessments, notice of alternative
institutional placements, and administrative hearings.
The district court denied the motion for a TRO and deferred
hearing on the motion for a preliminary injunction. Plaintiffs
appealed the denial of the motion for a TRO, prompting the
district court to stay proceedings and cancel a scheduled hear-
ing on Plaintiffs’ motion for a preliminary injunction. On
appeal, a motions panel of this court stayed implementation
of the emergency regulation pending the district court’s dispo-
sition of the motion for a preliminary injunction. The panel
concluded that denial of the TRO was reviewable “because
the district court took the hearing for the motion for prelimi-
nary injunction off calendar,” making denial of the TRO “tan-
tamount for present purposes to the denial of a motion for a
preliminary injunction.” On the merits, the panel determined
that a stay pending a hearing on the motion for a preliminary
injunction was justified because “[n]o other relief is available
that will remedy the irreparable injury which continues to
occur pending such hearing.”
On remand, the district court denied Plaintiffs’ motion for
a preliminary injunction. The court determined that Plaintiffs
failed to satisfy any prong of Winter v. Natural Res. Def.
Council, 555 U.S. 7 (2008). According to the court, Plaintiffs
did not demonstrate a likelihood of irreparable injury because
M. R. v. DREYFUS 21123
they “failed to submit evidence that the reduction will deny
beneficiaries needed services, or that it will create a serious
risk of institutionalization.” Nor, in the view of the court,
were Plaintiffs likely to succeed on the merits. Plaintiffs were
unlikely to prevail on their ADA/Rehabilitation Act claim
because “the State’s budget reduction does not leave individu-
als with no choice [but] to submit to institutional care to
obtain needed services” and because “it is likely that requiring
the State to continue current funding levels for personal care
services indefinitely would constitute a fundamental alteration
in the State’s Medicaid program.” Implementation of the
emergency regulation did not violate due process because
“Medicaid recipients are not entitled to notice and a hearing
when the State implements a mass change that affects . . . all
recipients.” The court rejected Plaintiffs’ Medicaid claims by
adopting the reasoning of its order denying Plaintiffs’ motion
for a TRO. Finally, the balance of hardships and the public
interest favored DSHS because the challenged reductions “do
not involve medical care.” The court conceded that “a few of
the plaintiffs” might “ultimately require institutionalization as
a result of the State’s reduction in services.” However, the
court found “the possible threat of institutionalization for a
few personal care service beneficiaries” outweighed by “the
State’s interest in balancing the competing needs of a host of
different state-sponsored social service programs that cur-
rently provide aid to a diverse group of medically and finan-
cially disadvantaged state residents.”
Plaintiffs appealed. The district court stayed proceedings,
including disposition of the motion for class certification,
pending our decision.
II. Standard of Review
We review the denial of a preliminary injunction for abuse
of discretion. Alliance for the Wild Rockies, 632 F.3d at 1131.
A district court abuses its discretion if it bases its decision “on
an erroneous legal standard or clearly erroneous findings of
21124 M. R. v. DREYFUS
fact.” Id. (quoting Lands Council v. McNair, 537 F.3d 981,
986 (9th Cir. 2008) (en banc)). We review a district court’s
legal conclusions de novo and its factual findings for clear
error. Id. (quoting Lands Council, 537 F.3d at 986-87). In
doing so, “we first look to whether the trial court identified
and applied the correct legal rule to the relief requested. Sec-
ond, we look to whether the trial court’s resolution . . .
resulted from a factual finding that was illogical, implausible,
or without support in inferences that may be drawn from the
facts in the record.” United States v. Hinkson, 585 F.3d 1247,
1263 (9th Cir. 2009) (en banc).
To obtain a preliminary injunction, a plaintiff “must estab-
lish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter, 555 U.S. at 20. A
preliminary injunction is proper if there is a likelihood of
irreparable injury to plaintiff; there are serious questions
going to the merits; the balance of hardships tips sharply in
favor of the plaintiff; and the injunction is in the public inter-
est. Alliance for the Wild Rockies, 632 F.3d at 1131-32.
III. Discussion
For the reasons that follow, we conclude that the district
court abused its discretion in denying the motion for a prelim-
inary injunction under the standard articulated in Alliance for
the Wild Rockies. We reach only Plaintiffs’ claims under the
Americans with Disabilities Act (“ADA”) and the Rehabilita-
tion Act.
A. Irreparable Injury
The 12 named Plaintiffs remaining in this litigation submit-
ted substantial evidence that the emergency regulation threat-
ens them with a serious risk of institutionalization.1 DSHS
1
Two of the original 14 named Plaintiffs no longer allege that they face
a risk of institutionalization. Plaintiff M.J.B. has received an ETR increas-
M. R. v. DREYFUS 21125
contested this evidence as to some named Plaintiffs, but as to
others it offered either unsubstantiated and conclusory
responses or no responses at all. The district court rejected
Plaintiffs’ showing by relying on three general rationales. It
wrote that Plaintiffs “fail to show a threat of harm because
they (1) ascribe the threat of institutionalization to [their]
deteriorating medical conditions, unrelated to the provision of
personal care services hours; (2) demonstrate ineffective man-
agement of currently allocated personal care services hours;
or (3) identify non-personal care services as the cause of their
predicted institutionalization.” We conclude that the district
court did not sufficiently consider individualized evidence
that the named Plaintiffs were likely to suffer irreparable
injury. We describe three Plaintiffs whose situations illustrate
the inadequacy of DSHS’s responses, as well as the inade-
quacy of the general rationales, to counteract Plaintiffs’ show-
ing of the likelihood of irreparable injury.
1. M.R.
Lead plaintiff M.R., a 37-year-old woman, suffers from
severe mental retardation, daily grand and petite mal seizures,
scoliosis, cerebral palsy, hypothyroidism, and mood disorder.
M.R. lives with her mother, a registered nurse, who provides
personal care services. M.R.’s mother assists her with almost
all basic activities of daily life, including eating, toilet care,
bathing, dressing, medication management, and moving from
place to place. She prepares all of M.R.’s meals and feeds
M.R. through a tube when she refuses to eat. M.R.’s feeding
tube “requires extensive maintenance because the tube was
inserted too low and has a tendency to ooze and become
infected, and because [M.R.] has a tendency to grab and pull
on it.” M.R. is incontinent, wears adult diapers, and cannot
use the toilet or clean herself without assistance. “Frequent-
ing her authorized hours, and Plaintiff H.C. has died, for reasons unrelated
to the hours reduction.
21126 M. R. v. DREYFUS
ly,” M.R. “has accidents” and “[a]s a result of incontinence,
. . . must bathe at least twice a day to remove urine and some-
times feces.” M.R. likes to choose her own clothing, but needs
her mother’s assistance to dress and undress herself. Because
of her scoliosis and cerebral palsy, M.R. “requires assistance
for walking, . . . is unsteady on her feet, . . . has poor balance
and unequal leg length, and her knees buckle.” M.R.’s mother
administers her numerous prescription medications through
her feeding tube several times a day.
M.R. participates in a Medicaid waiver program adminis-
tered by DSHS’s Division of Developmental Disabilities.
That is, M.R. is eligible for full-time institutional care, see 42
U.S.C. § 1396n(c)(1), WASH. ADMIN. CODE § 388-845-0005,
but M.R.’s mother has chosen to care for her at home “be-
cause her extensive personal care and medical needs are best
served at home . . . . M.R. loves the independence she is
afforded by living at home to set her own schedule, do puz-
zles, color or trace letters, and spend time with [her mother]
playing with beads or sorting coins.” M.R.’s CARE assess-
ment assigned her to group D Medium-High, a designation
that entitled her to 236 hours of in-home personal care ser-
vices per month. As is true of many family providers of per-
sonal care services, M.R.’s mother provides more than 236
hours of care per month; the additional hours go uncompen-
sated. The emergency regulation reduced M.R.’s authorized
hours of compensated time to 215 per month, a decrease of
8.9 percent.
Before the challenged regulation took effect, a DSHS
assessment of M.R. concluded that her household was in “cri-
sis mode” and at “serious risk of failure.” The emergency reg-
ulation, M.R.’s mother declared, “will push us, in our already
vulnerable situation, over the edge. . . . I will have to find a
job outside of the house and cut back the time spent caring for
M.R. . . . Already, I am stretched thin and am living on the
margin. . . . I cannot provide more care for no pay when
already there are insufficient funds to keep our household
M. R. v. DREYFUS 21127
afloat.” M.R.’s mother declared, “[i]f M.R.’s hours are
reduced from their present levels, I will have no other option
but to take another job, which will require moving M.R. into
an institutional facility. I cannot afford to continue giving ser-
vices at the rate that I have[.] I have to get an outside job, and
I know of no other individual, Adult Family Home or Per-
sonal Care Provider who can take care of M.R. due to her
medical and behavioral issues.” If M.R.’s mother is forced to
take a paying job outside the home, M.R. will lose more than
just 21 hours of care per month. She will lose the 21 compen-
sated hours, but she will also lose the uncompensated hours
that her mother was previously able to provide because she
was not employed outside the home.
Because M.R. has difficulty communicating, is “disruptive
and aggressive,” and “makes unwanted physical contact with
others . . . by trying to hug them or assault them,” she will
likely suffer in an institutional setting; indeed, she has previ-
ously been expelled from two Adult Day Health facilities.
Institutional placement will exacerbate M.R.’s already severe
mental and physical disabilities. Dr. William Gardner, an
expert in habilitative mental health treatment, declared that
“[w]hen individuals with . . . developmental disabilities . . .
would be able to live successfully in the community, but are
institutionalized because of insufficient home and community
based support, that is likely to result in frustration, despair,
hopelessness, and the severe deterioration of their mental and
often physical health.”
In response to M.R.’s factual allegations, DSHS introduced
a declaration from Geri-Lyn McNeill, a DSHS program man-
ager. McNeill has never met M.R. McNeill declared that she
“spoke to [M.R.’s] case manager[;] he does not believe that
the decrease in hours would significantly increase the risk of
injury, health deterioration or institutionalization for M.R.”
The district court found that M.R. had made an insufficient
showing of irreparable injury for three reasons, none of them
21128 M. R. v. DREYFUS
specific to M.R. First, the court determined that M.R.’s medi-
cal condition, like that of eight other named Plaintiffs (S.J.,
A.B., An.B., M.B., J.B., J.H., D.W., and C.B.), had “deterio-
rated since [her] last CARE assessment.” Consequently, the
court was “unable to determine whether the alleged threat of
institutionalization [M.R.] face[s] is the result of the State’s
reduction in personal care service hours or the deterioration in
[her] medical condition[ ].”
This finding misapprehends the law of causation in the con-
text of an irreparable injury inquiry. M.R. did indeed provide
evidence that her condition had deteriorated since her July
2010 CARE assessment. She suffered infections and injured
her head, back, and chin during grand mal seizures. M.R.’s
feeding tube fell out, leaving her with an open wound and
causing dehydration. Her replacement feeding tube makes it
painful for M.R. to eat and drink, so her mother must give her
food and water in smaller, more frequently administered,
quantities. M.R.’s mobility has also worsened, making it more
difficult for her mother to help her use the toilet and clean
herself. M.R.’s decline in health has necessitated more trips
to hospitals and physicians for care, and these trips consume
more time because M.R. cannot move as easily as she once
could.
[1] M.R.’s mother’s filed two declarations. Her first decla-
ration, filed before any of the incidents of deterioration just
discussed occurred, established that the reduction in hours
would threaten M.R. with institutionalization even in her pre-
deterioration condition. Her second declaration, which
described M.R.’s deteriorating condition, showed that the risk
of institutionalization had grown, not that it had newly arisen.
A plaintiff who seeks preliminary injunctive relief must show
“that irreparable injury is likely in the absence of an injunc-
tion.” Winter, 555 U.S. at 22. She need not further show that
the action sought to be enjoined is the exclusive cause of the
injury. See, e.g., Harris v. Bd. of Supervisors, 366 F.3d 754,
766 (9th Cir. 2004). In Harris, we affirmed a preliminary
M. R. v. DREYFUS 21129
injunction barring Los Angeles County from closing one hos-
pital that served indigent patients and reducing the number of
beds at another. Id. at 766-67. We determined that the patients
had shown that reducing the available public health care facil-
ities would likely cause them irreparable harm that “includes
pain, infection, amputation, medical complications, and death
due to delayed treatment.” Id. at 766. This was so “[a]lthough
delays exist in the stretched county health care system
already.” Id. We affirmed because “exacerbation of the cur-
rent overcrowded situation and additional suffering [could] be
avoided” by enjoining the hospital closures. Id.Likewise, in Brown v. Plata, 131 S. Ct. 1910, 1936-37
(2011), the Supreme Court affirmed an injunction ordering a
reduction in California’s prison population even though the
constitutional violations that prompted the injunction — sys-
temwide deficiencies in the provision of medical and mental
health care — “were caused by factors in addition to over-
crowding and . . . reducing crowding in the prisons would not
entirely cure the violations.” Id. at 1936. Applying the restric-
tive standard set forth in the Prison Litigation Reform Act —
legislation designed to “curb[ ] the equitable discretion of dis-
trict courts,” Miller v. French, 530 U.S. 327, 339 (2000) —
the Court concluded that overcrowding was a “primary cause”
of the constitutional violations. 131 S. Ct. at 1923, 1936(quoting 18 U.S.C. § 3626(a)(3)(E)(I)). The court reached this
conclusion notwithstanding its acknowledgment that “[i]n
addition to overcrowding the failure of California’s prisons to
provide adequate medical and mental health care may be
ascribed to chronic and worsening budget shortfalls, a lack of
political will in favor of reform, inadequate facilities, and sys-
temic administrative failures.” Id. at 1936.
[2] Like many Washington beneficiaries of in home per-
sonal care services, M.R. suffers from numerous mental and
physical disabilities, some of them degenerative. Her medical
condition will worsen over time, and as her health declines
she will face an increased risk of institutionalization. That risk
21130 M. R. v. DREYFUS
is not exclusively attributable to the challenged regulation
reducing the number of compensated hours of assistance, but
the challenged regulation and resulting reduction in hours will
exacerbate that risk. The regulation therefore inflicts cogniza-
ble irreparable injury for purposes of a preliminary injunction.
See Harris, 366 F.3d at 766.
Second, in the alternative, the district court found that M.R.
had not shown a likelihood of irreparable injury because there
was “evidence controverting the possibility of any harm.” The
sole basis in the record for the court’s finding was McNeill’s
declaration, which relied on the conclusory opinion of a
DSHS case manager who “does not believe that the decrease
in hours would significantly increase the risk of injury, health
deterioration, or institutionalization for M.R.” McNeill’s dec-
laration contains neither the detail nor the substantiation nec-
essary to rebut M.R.’s detailed factual showing. See United
States v. Navarro, 979 F.2d 786, 789 (9th Cir. 1992).
Third, the district court concluded that M.R., like four other
named Plaintiffs (T.M., M.B., A.B., and A.R.), had not made
a showing of cognizable harm because she “argue[s] that
[she] face[s] a threat of institutionalization because the budget
reduction will reduce available services for supervision, exer-
cise, and medication management.” The court reasoned, “per-
sonal care services do not include supervision, exercise, or
medication management.” DSHS concedes that the court
erred as a matter of law by excluding medication management
from personal care services. See WASH. ADMIN. CODE § 388-
106-0010. Further, the court’s conclusion does not suffi-
ciently take into account M.R.’s evidence. M.R.’s “personal
care services” do include supervision, and without such super-
vision, she faces the threat of institutionalization. M.R.’s
mother declared that she “needs constant supervision” in
order to perform activities of daily living and instrumental
activities of daily living that constitute covered personal care
services. For example, if left unsupervised, M.R. “could wake
up, try to get out of bed, and fall with no ability to get up.”
M. R. v. DREYFUS 21131
Compare WASH. ADMIN. CODE § 388-106-0010 (covered
activities of daily living include “bed mobility” and “locomo-
tion in room and immediate living environment”). In addition,
M.R. “could have bowel and bladder accidents and be unable
to get clean, resulting in skin breakdowns and hospitaliza-
tion.” Compare WASH. ADMIN. CODE § 388-106-0010 (covered
activities of daily living include “toilet use” and “personal
hygiene”). M.R. could “pull out the feeding tube” and there-
fore “wouldn’t get adequate nutrition or medications on
schedule.” Compare WASH. ADMIN. CODE § 388-106-0010
(covered activities of daily living include “eating” and “medi-
cation management”).
2. C.B.
Plaintiff C.B., a 55-year-old woman, suffers from spinal
stenosis, congestive heart failure, emphysema, hepatitis B and
C, chronic bacterial infections, neuropathy in both hands and
feet, high blood pressure, depression, and bipolar disorder.
C.B. requires assistance with a range of tasks, including cook-
ing, transporting herself to and from appointments with physi-
cians, bathing and dressing herself, and cleaning her home.
C.B. participates in Washington’s COPES Medicaid waiver
program. The emergency regulation reduced her authorized
in-home personal services care hours from 133 to 115 per
month, a 13.5 percent decrease. As a result, C.B. stated, her
caregiver Tia Davis “will be forced to change her work sched-
ule and cut back the time spent on taking me to and from doc-
tor’s appointments and household chores such as cooking and
helping me bathe.” C.B.’s health will likely suffer because
absent Davis’s assistance she will have difficulty transporting
herself to doctor’s appointments; will bathe herself and attend
to her personal hygiene less capably; will not clean her home,
which will exacerbate the symptoms of her bacterial infec-
tions; and will feed herself by preparing only microwaveable
hot meals, with adverse consequences for her high blood pres-
sure and obesity. If these predictable results occur, C.B. “will
face severe deterioration in [her] condition and [will] have to
21132 M. R. v. DREYFUS
seek emergency room care and admission to a nursing home
from an even weaker point.”
DSHS did not respond to C.B.’s evidence. The district
court, relying on a single sentence in a declaration in which
C.B. stated that her “health has deteriorated,” rejected C.B.’s
showing of irreparable injury on the same ground that it
rejected the showings made by M.R. and seven other named
Plaintiffs. That is, the court stated that it was “unable to deter-
mine whether the alleged threat of institutionalization these
particular plaintiffs face is the result of the State’s reduction
in personal care service hours or the deterioration in their
medical conditions.”
[3] The court did not sufficiently analyze C.B.’s individu-
alized evidence and the impact of the emergency regulation
on her specific clinical situation. C.B. established that because
of the hours reduction, Davis will spend less time with her.
Consequently, Davis will cook fewer meals for C.B., so that
C.B. will “eat microwaveable instant foods that are generally
high in fat and sodium and detrimental to my pre-diabetes,
high blood pressure, and obesity.” Davis “will likely have to
spend less time taking C.B. to her doctor’s appointments,”
resulting in compromised care because C.B. “[v]ery rarely . . .
has energy to use the paratransit services alone, as she finds
it much more cumbersome and more difficult for her to get
around without the one-on-one assistance I provide.” Neces-
sarily, C.B. will bathe and clean her home less often because
she can do neither by herself. When C.B. is left alone, her
apartment falls into “disarray — pet fur everywhere, dirty
dishes in the sink, pet food scattered across the kitchen floor
. . . . [T]he inevitable clutter around her apartment also
increases her risk of tripping and falling.”
[4] The reduction in hours places C.B. at risk of institu-
tionalization. Dr. Mitchell LaPlante, an expert in the demog-
raphy and epidemiology of disability, declared that “[h]aving
inadequate levels of help compromises the safety, comfort,
M. R. v. DREYFUS 21133
and hygiene of individuals requiring help with ADLs and
IADLs, reducing their ability to live independently and
increasing their risk of institutionalization and death.” Dr.
LaPlante declared that “[u]nmet needs are especially serious
. . . when individuals go unbathed, remain in the same cloth-
ing for an extended period, are left in a bed or chair longer
than is acceptable, or are unassisted when they need to go to
the bathroom or eat. Because these activities involve satisfy-
ing primary biological functions [unmet] need cannot be toler-
ated for long.”
[5] The reduction in hours, like the risk of institutionaliza-
tion that the reduction produces, is directly attributable to the
emergency regulation, not to C.B.’s deteriorating health. And,
as explained above, C.B. was not required to show that the
emergency regulation was the exclusive cause of her injury.
She need only show that, by depriving her of access to care
that is critical to her health, the regulation exacerbates the risk
that she will be institutionalized.
3. K.S.
Plaintiff K.S., a 59-year-old woman, suffers from diabetes,
congenital glaucoma, macular degeneration, and clinical
depression. K.S. participates in Washington’s COPES waiver
program. She has undergone hip and knee replacements and
has very limited mobility. She uses a walker to move about
her home and is susceptible to falls. K.S. requires assistance
moving, bathing and dressing herself, cooking, managing her
medications, using the toilet, and cleaning herself after acci-
dents. If K.S. experiences incontinence while she is left alone,
she must sit on the toilet until a provider arrives to help her
undress, bathe, and launder her soiled clothes.
Prior to the challenged regulation, K.S. received 133 hours
of in-home personal care services per month. The regulation
reduced her authorized monthly hours to 115, a 13.5 percent
decrease. To accommodate the reduction in hours, K.S. dis-
21134 M. R. v. DREYFUS
continued weekend care and has “suffered negative physical
and mental health consequences.” For example, K.S. wears
compression stockings because she suffers from edema. K.S.
cannot remove her stockings without assistance, so when she
is unattended for long periods of time, the skin on her legs
becomes dry and itchy and develops sores, putting K.S. at risk
of infection. Because K.S. cannot lace her shoes without help,
she cannot leave her home on the weekends because it is too
dangerous for her to walk in slippers. Consequently, she feels
“trapped” in her home and “shut off from the world.” K.S.
declared that “[i]t is difficult to get all of my cleaning, shop-
ping, food preparation, bathing and hygiene needs done” dur-
ing the hours authorized. Consequently, K.S. is “worried that
I would be unable to remain in my home . . . and I very much
want to avoid going to an adult group home. Staying in my
home gives me a feeling of independence and I believe my
mental health condition would deteriorate in an adult day
home quickly. Even though I would be able to get more con-
tinuous hours of care at a nursing home, the lack of privacy
and the lack of independence that I would experience there
would be very difficult for me.”
[6] In response, DSHS introduced a declaration from
McNeill, who stated that it was “unclear” why K.S. did not
discuss her concerns about going unattended on the weekends
with her case manager. Had she done so, McNeill declared,
“[a] Care Plan could have been developed with a daily sched-
ule or a schedule with a shorter gap between care. . . . Recipi-
ents and providers often believe that more hours are the only
solution to problems, but good care planning and effective
case management can often create effective alternatives.
DSHS believes that could occur here.” The district court
relied on McNeill’s declaration to find that K.S.’s “apparent
failure to contact [her] case manager[ ] about [her] concerns
is particularly noteworthy. Rather than giving the State an
opportunity to correct any gaps in care, [K.S.] appear[s] to
assume that the reduction will result in harm and that the only
M. R. v. DREYFUS 21135
alternative to reinstatement of [her] hours is institutionaliza-
tion.”
[7] McNeill’s declaration ignores the fact that K.S. did
contact her case manager to discuss the impact of the hours
reduction on her care plan. In a declaration filed before
McNeill’s, K.S. stated that after learning of the hours reduc-
tion, she “informed my case manager . . . that in order to cope
with the announced cuts to my home care hours, I had made
the decision to let go of my weekend provider.” K.S.’s case
manager “did not suggest any alternative scheduling arrange-
ments for me to avoid going without weekend care during or
any time since that phone call.” The district court should not
have discounted K.S.’s showing of harm on the ground that
she should have revised her care plan with her case manager.
K.S. had attempted to do just that, but without success.
4. Summary
[8] The detailed evidence introduced to show the adverse
impact of the challenged regulation on M.R., C.B., and K.S.,
as well as the weak responses that DSHS offered to contest
that evidence, establish a sufficient likelihood of irreparable
injury. Each of the named Plaintiffs has made similar show-
ings of specific ways in which the hours reduction will injure
them, but the district court addressed these individualized
showings in a generalized fashion.
Our dissenting colleague, Judge Rawlinson, faults us for
relying on Plaintiffs’ declarations and not adequately defer-
ring to the district court’s determination regarding irreparable
injury. However, as discussed above, the district court relied
on an overly strict causation standard and an erroneous
assumption that personal care services did not include medi-
cation management, and it did not address the facts of the
individual Plaintiffs’ cases. Judge Rawlinson implies that the
district court discredited the Plaintiffs’ declarations because
of their “verbatim or nearly verbatim” recitations of harm.
21136 M. R. v. DREYFUS
The declarations’ similarities in structure and language are
offset by the many different, specific details, such as those
described above for M.R., C.B., and K.S., about each named
Plaintiff.
[9] We have several times held that beneficiaries of public
assistance “may demonstrate a risk of irreparable injury by
showing that enforcement of a proposed rule ‘may deny them
needed medical care.’ ” Indep. Living Ctr. of S. Cal., Inc. v.
Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (quoting
Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982)), cert.
granted on other issue, 131 S. Ct. 992 (2011); see also, e.g.,
Cal. Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098,
1113 (9th Cir. 2010), cert. granted on other issue, 131 S. Ct.
992 (2011); Rodde v. Bonta, 357 F.3d 988, 998-99 (9th Cir.
2004); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).
District courts in our circuit have reached the same conclu-
sion. See, e.g., Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980,
997 (N.D. Cal. 2010) (“[T]he reduction or elimination of pub-
lic medical benefits is sufficient to establish irreparable harm
to those likely to be affected by the program cuts.”); V.L. v.
Wagner, 669 F. Supp. 2d 1106, 1121-22 (N.D. Cal. 2009);
Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1176-77
(N.D. Cal. 2009).
[10] In its order, the district court emphasized that “[t]his
case does not involve . . . the provision of medical care
. . . ; rather this case relates solely to in-home personal care
services, which consist of non-medical assistance with activi-
ties of daily living.” The court reasoned that “[t]he standard
articulated in Beltran and Independent Living Ctr. . . . is not
applicable in this case because personal care services are not
included within Medicaid’s definition of ‘medical care.’ ” But
whether personal care services are included in Medicaid’s
definition is not the critical issue. The critical issue is whether
the services are necessary to maintain Plaintiffs’ mental or
physical health, and to avoid serious risk of institutionaliza-
tion.
M. R. v. DREYFUS 21137
[11] Under Washington law, DSHS may cover the costs to
beneficiaries only for services deemed “medically necessary.”
WASH. ADMIN. CODE § 388-501-0050(4)(d). All payments by
DSHS, both before and after the promulgation of the chal-
lenged regulation, are therefore payments for “medically nec-
essary” services. “Medically necessary” services are defined
as those that are “reasonably calculated to prevent, diagnose,
correct, cure, alleviate or prevent worsening of conditions in
the client that endanger life, or cause suffering or pain, or
result in an illness or infirmity, or threaten to cause or aggra-
vate a handicap, or cause physical deformity or malfunction.”
Id. § 388-501-0005. Plaintiffs have shown that the services
they will lose as a result of the challenged regulation —
which include assistance in feeding, cleaning, and medicating
themselves — relate intimately to their mental and physical
health. The loss of these services will exacerbate Plaintiffs’
already severe mental and physical difficulties. These predict-
able consequences will put Plaintiffs at serious risk of institu-
tionalization.2 We therefore conclude that Plaintiffs have
shown a likelihood of irreparable injury.
B. Serious Questions Going to the Merits
Plaintiffs argue that the challenged regulation violates the
antidiscrimination provisions of the ADA, 42 U.S.C. § 12132,
and the Rehabilitation Act, 29 U.S.C. § 794(a). We conclude
that Plaintiffs have at least presented serious questions going
to the merits of their ADA and Rehabilitation Act claims.
Because the applicable provisions of the ADA and the Reha-
bilitation Act are “co-extensive,” we discuss both claims
together, focusing on the ADA. Sanchez v. Johnson, 416 F.3d
1051, 1062 & n.6 (9th Cir. 2005).
2
We do not reach Plaintiffs’ alternative argument that DSHS’s CARE
tool measures minimum individual need, such that any departure below
hours authorized by the CARE process will necessarily cause irreparable
injury.
21138 M. R. v. DREYFUS
In enacting the ADA, Congress found that “historically,
society has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of
discrimination against individuals with disabilities continue to
be a serious and pervasive social problem.” 42 U.S.C.
§ 12101(a)(2). Moreover, Congress found that “discrimination
against individuals with disabilities persists in such critical
areas as . . . institutionalization,” id. § 12101(a)(3); and that
“individuals with disabilities continually encounter various
forms of discrimination, including outright intentional exclu-
sion, . . . failure to make modifications to existing facilities
and practices, . . . [and] . . . segregation,” id. § 12101(a)(5).
[12] In an attempt to remedy society’s history of discrimi-
nating against the disabled — discrimination that included
isolating, institutionalizing, and segregating them — the ADA
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 activi-
ties of a public entity, or be subjected to discrimination by any
such entity.” Id. § 12132; accord 29 U.S.C. § 794(a). The
Department of Justice has promulgated regulations imple-
menting the ADA. See 42 U.S.C. § 12134(a). One of the regu-
lations is the so-called “integration mandate,” providing that
“[a] public entity shall administer services, programs, and
activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities.” 28 C.F.R.
§ 35.130(d). The “most integrated setting” is the one that “en-
ables individuals with disabilities to interact with nondisabled
persons to the fullest extent possible.” Id. Part 35, App. B
(2011). The regulation also provides that “[a] public entity
shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid dis-
crimination on the basis of disability, unless the public entity
can demonstrate that making the modifications would funda-
mentally alter the nature of the service, program, or activity.”
Id. § 35.130(b)(7).
M. R. v. DREYFUS 21139
In Olmstead, the Supreme Court addressed this statutory
and regulatory scheme and reached two conclusions. First, the
Court held that “[u]njustified isolation” of disabled persons
“is properly regarded as discrimination based on disability.”
527 U.S. at 597; see also Sanchez, 416 F.3d at 1063 (“In Olm-
stead, the Supreme Court interpreted . . . the ADA as forbid-
ding the arbitrary segregation of the disabled in large state
institutions.”). Second, however, the Court held that “[t]he
State’s responsibility, once it provides community-based
treatment to qualified persons with disabilities, is not bound-
less. . . . Sensibly construed, the fundamental-alteration com-
ponent of the reasonable-modifications regulation would
allow the State to show that, in the allocation of available
resources, immediate relief for the plaintiffs would be inequi-
table, given the responsibility the State has undertaken for the
care and treatment of a large and diverse population of per-
sons with . . . disabilities.” 527 U.S. at 603-04; see also Arc
of Wash. State, 427 F.3d at 619 (“[T]he Court recognized cer-
tain state justifications that would defeat an ADA-based chal-
lenge, for example ‘the States’ need to maintain a range of
facilities for the care and treatment of persons with diverse
. . . disabilities, and the States’ obligation to administer ser-
vices with an even hand.’ ” (quoting Olmstead, 527 U.S. at
597)). The Court held that under the ADA, “States are
required to provide community-based treatment for persons
with . . . disabilities when the State’s treatment professionals
determine that such placement is appropriate, the affected per-
sons do not oppose such treatment, and the placement can be
reasonably accommodated, taking into account the resources
available to the State and the needs of others with . . . disabili-
ties.” Olmstead, 527 U.S. at 607; accord id. at 587.
The district court rejected Plaintiffs’ ADA claim on two
grounds. The court concluded that to state a violation of the
ADA’s integration mandate, Plaintiffs were required to show
“that the State’s action leaves them no choice but to submit
to institutional care to obtain services for which they are oth-
erwise qualified.” In the alternative, the court concluded that
21140 M. R. v. DREYFUS
requiring Washington to maintain in-home personal care ser-
vices hours at pre-regulation levels “would likely constitute a
fundamental alteration of the state’s Medicaid program.” We
take the court’s two conclusions in turn.
[13] First, the district court erred in stating the legal stan-
dard under the integration mandate of the ADA. An ADA
plaintiff need not show that institutionalization is “inevitable”
or that she has “no choice” but to submit to institutional care
in order to state a violation of the integration mandate. Rather,
a plaintiff need only show that the challenged state action
creates a serious risk of institutionalization. The United States
Department of Justice (“DOJ”), the agency that promulgated
the regulation containing the integration mandate, 28 C.F.R.
§ 35.130(d), filed a statement of interest in the district court
in which it argued in favor of a preliminary injunction. In its
filing, DOJ wrote that “[t]he integration mandate prohibits
public entities from pursuing policies that place individuals at
risk of unnecessary institutionalization.” “[I]mminent risk of
institutionalization is not required.” Rather, “[t]he elimination
of services that have enabled Plaintiffs to remain in the com-
munity violates the ADA, regardless of whether it causes
them to enter an institution immediately, or whether it causes
them to decline in health over time and eventually enter an
institution in order to seek necessary care.”
[14] We afford DOJ’s view considerable respect. Olms-
tead, 527 U.S. at 597-98 (“Because the Department is the
agency directed by Congress to issue regulations implement-
ing Title II [of the ADA], its views warrant respect.”). We
also defer to an agency’s reasonable interpretation of its own
statutorily authorized regulation. Barrientos v. 1801-1825
Morton LLC, 583 F.3d 1197, 1214 (9th Cir. 2009) (citing Fed.
Express Corp. v. Holowecki, 552 U.S. 389, 395, 397 (2008)).
An agency’s interpretation of its own regulation is “control-
ling unless plainly erroneous or inconsistent with the regula-
tion.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal
quotation marks omitted); Barboza v. Cal. Ass’n of Prof’l
M. R. v. DREYFUS 21141
Firefighters, 650 F.3d 1073, 1079 (9th Cir. 2011) (“[U]nless
an alternative reading is compelled by the regulation’s plain
language or by other indications of [the agency’s] intent at the
time of the regulation’s promulgation, deference is required.”
(internal quotation marks and citation omitted)).
The district court discounted DOJ’s interpretation of the
integration mandate as “a self-serving agency interpretation
taken solely in the context of ongoing litigation.” In Auer, the
Supreme Court rejected the argument that an agency position
taken in an amicus brief was unworthy of deference:
[T]hat the Secretary’s interpretation comes to us in
the form of a legal brief . . . does not, in the circum-
stances of this case, make it unworthy of deference.
The Secretary’s position is in no sense a post hoc
rationalization advanced by an agency seeking to
defend past agency action against attack. There is
simply no reason to suspect that the interpretation
does not reflect the agency’s fair and considered
judgment on the matter in question.
519 U.S. at 462 (internal quotation marks and citation omit-
ted); accord Holowecki, 552 U.S. at 397 (deferring to agen-
cy’s interpretation of a regulation in an amicus brief);
Barrientos, 583 F.3d at 1214 (same). The circumstances in
this case are similar to those in Auer. DOJ is not a party and
is not “seeking to defend past agency action against attack.”
Its “statement of interest” in the district court under 28 U.S.C.
§ 517 is comparable to an amicus brief because of its interest
in ensuring a proper interpretation and application of the inte-
gration mandate. Further, we note that DOJ’s interpretation of
the integration mandate in this case is consistent with its inter-
pretation in another case before this court. The district court,
and our dissenting colleague, overlook the Supreme Court’s
direction about how to treat agency interpretations in such
instances.
21142 M. R. v. DREYFUS
DOJ’s interpretation is not only reasonable; it also better
effectuates the purpose of the ADA “to provide clear, strong,
consistent, enforceable standards addressing discrimination
against individuals with disabilities.” 42 U.S.C.
§ 12101(b)(2). Institutionalization sometimes proves irrevers-
ible. Dr. Gardner, Plaintiffs’ expert on habilitative mental
health care, declared that “[i]nstitutionalization . . . creates an
unnecessary clinical risk that the individual will become so
habituated to, and so reliant upon, the programmatic and treat-
ment structures that are found in an inpatient setting that his
or her ability to function in less structured, less restrictive,
environments may become severely compromised.” In recog-
nition of this clinical reality, the cases accord with DOJ’s
interpretation. See, e.g., V.L., 669 F. Supp. 2d at 1119(“[P]laintiffs who currently reside in community settings may
assert ADA integration claims to challenge state actions that
give rise to a risk of unnecessary institutionalization.”);
Brantley, 656 F. Supp. 2d at 1170-71 (“[T]he risk of institu-
tionalization is sufficient to demonstrate a violation of [the
ADA].”); see also, e.g., Fisher v. Okla. Health Care Auth,
335 F.3d 1175, 1182 (10th Cir. 2003) (“Olmstead does not
imply that disabled persons who, by reason of a change in
state policy, stand imperiled with segregation, may not bring
a challenge to that state policy under the ADA’s integration
regulation without first submitting to institutionalization.”).
The district court’s second ground for rejecting Plaintiffs’
ADA claim was that requiring DSHS to maintain pre-
regulation levels of personal care services hours would likely
constitute a fundamental alteration of the state’s Medicaid
plan. We have not previously decided whether a state may
assert a fundamental alteration defense where, as here, the
state opposes an injunction that would preserve a preexisting
program that complies with the ADA. The text of the regula-
tion suggests that the defense is available only to excuse pro-
spective modifications to programs. See 28 C.F.R.
§ 35.130(b)(7) (“A public entity shall make reasonable modi-
fications in policies, practices, or procedures . . . unless the
M. R. v. DREYFUS 21143
public entity can demonstrate that making the modifications
would fundamentally alter the nature of the service, program,
or activity.”). Here, Plaintiffs argue that they are seeking to
preserve the status quo and prevent modifications to the
state’s preexisting program. The Tenth Circuit rejected a fun-
damental alteration defense in similar circumstances, observ-
ing, “[n]or is it clear why the preservation of a program as it
has existed for years and as approved by the federal govern-
ment would fundamentally alter the nature of the program.”
Fisher, 335 F.3d at 1183 (internal quotation marks omitted).
However, we need not decide whether the fundamental alter-
ation defense applies in these circumstances because, even if
it does, Plaintiffs have at least raised a serious question on the
merits about the validity of the defense on the facts.
[15] When evaluating a fundamental alteration defense, a
court must consider “not only the cost of providing
community-based care to the litigants, but also the range of
services the State provides others with mental disabilities, and
the State’s obligation to mete out those services equitably.”
Olmstead, 527 U.S. at 597. That is, the ADA requires home
or community-based placement of disabled persons only if
“the placement can be reasonably accommodated, taking into
account the resources available to the State and the needs of
others with . . . disabilities.” Id. at 607; see also 28 C.F.R.
§ 35.130(b)(7); Sanchez, 416 F.3d at 1067-68; Arc of Wash.
State, 427 F.3d at 618-19. But budgetary concerns do not
alone sustain a fundamental alteration defense. See Fisher,
335 F.3d at 1181 (“If every alteration in a program or service
that required the outlay of funds were tantamount to a funda-
mental alteration, the ADA’s integration mandate would be
hollow indeed.”); see also, e.g., Townsend, 328 F.3d at 520(“[E]ven if extension of community-based long term care ser-
vices to the medically needy were to generate greater
expenses for the state’s Medicaid program, it is unclear
whether these extra costs would, in fact, compel cutbacks in
services to other Medicaid recipients.”); Pa. Prot. & Advo-
cacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3d
21144 M. R. v. DREYFUS
Cir. 2005); Radaszewski v. Maram, 383 F.3d 599, 614 (7th
Cir. 2004); Frederick L., 364 F.3d at 495-96; Cota, 688 F.
Supp. 2d at 995. DSHS must show how “fund-shifting . . .
would disadvantage other segments of the . . . disabled popu-
lation.” Frederick L., 364 F.3d at 497; see Townsend, 328
F.3d at 520.
[16] At this point in the litigation, it is highly speculative
that preliminary injunctive relief for Plaintiffs will compro-
mise care for the rest of Washington’s disabled community to
such an extent that Washington’s Medicaid program would be
fundamentally altered. Dreyfus, DSHS’s director, filed a dec-
laration in the district court stating that if an injunction were
granted the agency “would need to eliminate the Optional
State Plan Service of Medicaid Personal Care and put a limit
on the number of recipients . . . served under the Long Term
Care [42 U.S.C. § 1396n(c)] waivers including COPES and
New Freedom.” It is difficult to assess Dreyfus’s dire predic-
tions and to determine, even if they are borne out, whether
they would constitute a fundamental alteration. Washington’s
legislature has mandated that the state Medicaid plan include
the provision of personal care services for the categorically
needy, and DSHS has touted COPES as the centerpiece of the
legislatively mandated commitment to deinstitutionalization.
WASH. REV. CODE § 74.09.520(2). In its briefs, DSHS did not
identify specific programs that would necessarily be cut if all
or part of the challenged regulation were preliminarily
enjoined, nor was counsel able to identify such programs at
oral argument. Indeed, DSHS counsel was unable to say with
certainty whether the cuts would necessarily come from the
Medicaid program, or whether cuts could be made to some
other portion of Washington’s budget if Plaintiffs were to pre-
vail in this litigation. See Townsend, 328 F.3d at 520 (to make
out fundamental alteration defense, state must show that the
“provision of community-based services to medically needy
disabled Washingtonians might fundamentally alter its Medic-
aid programs” (emphasis added)). The state must make a
more particularized showing of harm to others in the disabled
M. R. v. DREYFUS 21145
community in order to eliminate serious questions on the mer-
its concerning the validity of the fundamental alteration
defense. See Frederick L., 364 F.3d at 497; Townsend, 328
F.3d at 520.
C. Balance of Hardships
[17] We conclude that the balance of hardships tips sharply
in favor of Plaintiffs. As discussed above, the record in this
case establishes that the named Plaintiffs suffer severe hard-
ship, made still more severe by the challenged regulation,
resulting in a serious risk of institutionalization in violation of
the ADA and the Rehabilitation Act. Set against Plaintiffs’
hardship are diffuse and nonspecific hardships asserted by the
State. It is clear that money spent on behalf of the Plaintiffs
is money that will not be spent on other programs. But it is
not clear from the evidence in the record or from the argu-
ments made to us precisely what those other programs are and
the extent to which they would be cut. See, e.g., Harris, 366
F.3d at 766 (“The County suggests that the injunction forces
it to cut other important programs . . . . But whether any or
all of those programs will actually be impacted by the court’s
injunction is much more speculative than the probable injury
the chronically ill plaintiffs face absent preliminary injunctive
relief.”).
Nor is it clear that the state, on balance, will save money
by cutting the services at issue in this case, given the cost to
the state of institutionalizing Plaintiffs. We have several times
held that the balance of hardships favors beneficiaries of pub-
lic assistance who may be forced to do without needed medi-
cal services over a state concerned with conserving scarce
resources. See, e.g., Indep. Living Ctr., 572 F.3d at 659(“State budgetary considerations do not therefore, in social
welfare cases, constitute a critical public interest that would
be injured by the grant of preliminary relief.”). The balance
of hardships favors plaintiffs challenging cuts to state pro-
grams “in light of evidence in the record that suggests that
21146 M. R. v. DREYFUS
[the action sought to be enjoined] may have an adverse, rather
than beneficial, effect on the State’s budget, such that it would
actually save the State money if it maintained [the status
quo].” Dominguez v. Schwarzenegger, 596 F.3d 1087, 1098
(9th Cir. 2010); see also Rodde, 357 F.3d at 999-1000. Plain-
tiffs have advanced such evidence in this case by showing that
if program beneficiaries currently treated in their homes tran-
sition to more costly institutional care, the state will not real-
ize its anticipated cost savings.
D. Public Interest
The Washington legislature has expressly found that “the
public interest would best be served by a broad array of long-
term care services that support persons who need such ser-
vices at home or in the community whenever practicable and
that promote individual autonomy, dignity, and choice.”
WASH. REV. CODE § 74.39A.005. “[T]here is a robust public
interest in safeguarding access to health care for those eligible
for Medicaid, whom Congress has recognized as ‘the most
needy in the country.’ ” Indep. Living Ctr., 572 F.3d at 659(quoting Schweiker v. Hogan, 457 U.S. 569, 590 (1982)); see
also Cal. Pharmacists Ass’n, 596 F.3d at 1114-15 (rejecting
the argument that the public interest required that the legisla-
ture be able to “exercise its considered judgment in a manner
that serves the best interests of both [Medicaid] recipients and
the State as a whole,” despite the state’s argument that “in-
junctions against payment reductions have forced the State to
eliminate many optional [Medicaid] services”).
[18] We recognize that a preliminary injunction is an “ex-
traordinary remedy never awarded as of right.” Winter, 555
U.S. at 24. But given the likelihood of irreparable harm to
Plaintiffs, the serious questions on the merits raised by their
suit, the balance of hardships that tips sharply in their favor,
and the statutorily declared policy of the state in favor of the
services they seek to preserve, we conclude that the public
interest is served by preserving the status quo by means of a
M. R. v. DREYFUS 21147
preliminary injunction. See Rodde, 357 F.3d at 999 n.14 (that
Plaintiffs seek “to preserve, rather than alter, the status quo
while they litigate the merits of this action also strengthens
their position”).
E. Scope of the Injunction
[19] Our conclusion with respect to irreparable injury and
risk of institutionalization is limited to the named Plaintiffs.
We have stated that “[s]ystem-wide [injunctive] relief is
required if the injury is the result of violations of a statute . . .
that are attributable to policies or practices pervading the
whole system (even though injuring a relatively small number
of plaintiffs), or if the unlawful policies or practices affect
such a broad range of plaintiffs that an overhaul of the system
is the only feasible manner in which to address the class’s
injury.” Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir.
2001). The challenged regulation obviously establishes such
a policy for a system of care. But Armstrong involved a certi-
fied class. Subject to exceptions not applicable here,
“[w]ithout a properly certified class, a court cannot grant
relief on a class-wide basis.” Zepeda v. INS, 753 F.2d 719,
728 n.1 (9th Cir. 1984). The district court stayed its decision
on class certification pending our ruling on appeal. We con-
clude that the regulation must be preliminarily enjoined as to
the named Plaintiffs. We leave it to the district court to deter-
mine on remand whether, in light of this opinion, broader pre-
liminary injunctive relief is appropriate.
Conclusion
The named Plaintiffs have shown a likelihood of irrepara-
ble injury because the regulation puts them at serious risk of
institutionalization. For the same reason, they have raised a
serious question going to the merits of their ADA/
Rehabilitation Act claim. They have also raised a serious
question on the merits about the validity of the fundamental
alteration defense. The balance of hardships tips sharply in
21148 M. R. v. DREYFUS
Plaintiffs’ favor, and the public interest favors a preliminary
injunction. We therefore reverse and remand for further pro-
ceedings consistent with this opinion.
REVERSED AND REMANDED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion in this case.
It is important to note at the outset that this appeal challenges
the denial of a preliminary injunction. Our review is for an
abuse of the considerable discretion afforded the district court
in making the determination whether a preliminary injunction
should be entered. See Alliance for the Wild Rockies v. Cot-
trell, 632 F.3d 1127, 1131 (9th Cir. 2011). So long as the dis-
trict court “got the law right,” we “will not reverse the district
court.” Id. (citation omitted). Our scope of review is necessar-
ily limited. See Sports Form, Inc. v. UPI, Inc., 686 F.2d 750,
752 (9th Cir. 1982).
In a thoughtful and comprehensive 50-page order, the dis-
trict court denied the request for a preliminary injunction. As
the majority acknowledges, any factual findings made by the
district court must be accepted unless clearly erroneous. See
Alliance for the Wild Rockies, 632 F.3d at 1131. The district
court prefaced its decision by noting its “careful” review” of
the 164+ documents filed by the parties and the 5+ hours of
oral argument during two hearings. See District Court Order,
p. 2 n.4. The district court also recognized that a preliminary
injunction is an “extraordinary interlocutory remedy” that
should be the exception rather than the rule. See id. at p. 3
(quoting Winter v. Natural Res. Defense Counsel Inc., 129 S.
Ct. 365, 376 (2008)).
The district court found that not one of the named plaintiffs
satisfied the criteria to be placed in the classification reflect-
M. R. v. DREYFUS 21149
ing the highest acuity of need. See id. at p. 10. Keeping in
mind that the services at issue are personal care services, and
not medical care, the district court determined that the plain-
tiffs failed to establish a likelihood of irreparable harm. See
id. at p. 12 & n.13. The district court relied largely on its
determination that the threatened injury (institutionalization)
was not imminent. See id. at p. 13 n.14 (quoting City of Los
Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). The district
court emphasized that this factor was particularly important
where a party seeks to enjoin official action on the part of a
State. See id. (noting federalism concern).
The district court underscored the fact that Washington’s
assessment mechanism did not reflect the individual need of
each program participant. Rather, the assessment reflected the
relative acuity of the need for personal care services. See id.
at p. 14. The assessment essentially determined what share of
the available resources a program participant should be allo-
cated. See id. at p. 15. Because the assessment does not trans-
late into a number of absolute hours of required personal
services, the district court concluded that plaintiffs could not
persuasively argue that a decrease in the number of personal
care services hours resulted in the required showing that insti-
tutionalization was imminent. Indeed, the district court found
to the contrary. See id. at p. 17 n.20 (referring to evidence in
the record that the 2009 reduction in personal care services
hours “did not result in any negative consequences to personal
care service beneficiaries . . . .”) (emphasis in the original).
Specifically, program participants were not institutionalized
due to the decrease in personal care service hours. See id.; see
also id. at p. 18 (explaining that since the 2011 reductions
went into effect, “over 99% of the sampled records reflected
no complaint concerning the adequacy of allotted hours”).
I recognize that my colleagues in the majority rely on the
declarations from the plaintiffs to support their reversal of the
district court’s decision. However, without a showing of clear
error on the part of the district court judge, it is not enough
21150 M. R. v. DREYFUS
to simply credit one party’s view of the evidence. Actually,
Supreme Court precedent dictates exactly the opposite
approach. Where there are two views of the evidence pre-
sented, and the trier of fact selects one view over the other,
no clear error can be shown. See Anderson v. City of Besse-
mer City, 470 U.S. 564, 574 (1985) (“Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”) (citations omit-
ted).
In this case, the plaintiffs presented declarations averring
that institutionalization was likely if the personal service
hours were decreased. The State defendants presented decla-
rations refuting those submitted by the plaintiffs. At this stage
of the proceedings and considering our limited standard of
review, I am not persuaded that the district court clearly erred
in crediting the State’s view of the facts.1
Ultimately, the district court determined that the plaintiffs’
declarations failed to make an adequate showing of a likely
threat of harm because the declarations
(1) ascribe the threat of institutionalization to plain-
tiffs’ deteriorating medical conditions, unrelated to
the provision of personal care service hours; (2)
demonstrate ineffective management of currently
allocated personal care service hours; or (3) identify
non-personal care services as the cause of their pre-
dicted institutionalization.
Id. at p. 24.2
1
It is of some interest that the district court noticed that the plaintiffs’
declarations of harm were “repeated verbatim or nearly verbatim through-
out the various declarations . . .” Id. at p. 24 n.30.
2
The district court also noted the use of qualifying language in the dec-
larations that rendered them “speculative at best . . .” Id. at p. 25 n.31.
M. R. v. DREYFUS 21151
The district court described nine plaintiffs whose medical
conditions worsened without regard to the decrease in per-
sonal care service hours. See id. at pp. 24-25. The district
court also credited evidence from the State defendants regard-
ing “[i]nefficient [u]se of [c]urrently [a]llocated [p]ersonal
[c]are [s]ervice [h]ours[,]” Id. at pp. 26-27, and the inclusion
of non-personal care services in the asserted harm arguments,
see id. at pp. 27-28.
Considering the district court’s determination regarding the
likelihood of irreparable harm with the required deference to
its factual findings, I am not persuaded that we should reverse
the district court’s determination.
In my view, a similar conclusion is in order upon review of
the district court’s resolution of plaintiffs’ claim predicated on
the provisions of the Americans With Disabilities Act (ADA).
The thrust of plaintiffs’ argument is that the mandated
decrease in personal care services hours violates the ADA
requirement that disabled individuals be integrated into the
community for services rather than be institutionalized to
receive services. According to plaintiffs, the decrease in per-
sonal care services hours will result in institutionalization of
individuals who could remain in the community if the per-
sonal care services hours were maintained at their previous
levels. The majority agrees with the plaintiffs’ contention,
describing this issue as a serious question going to the merits
of plaintiffs’ ADA claims.
The Supreme Court addressed the ADA’s integration provi-
sion in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
In that case, mental patients were retained in institutional
facilities after medical providers concluded that treatment in
community-based facilities was appropriate. See id. at 593.
The Court held that the ADA required placement in a
community-based facility if “the placement can be reasonably
accommodated, taking into account the resources available to
the State and the needs of others with . . . disabilities . . . .”
21152 M. R. v. DREYFUS
Id. at 587. The Court fully acknowledged that the State had
multiple and diverse obligations to its disabled citizens and a
concomitant obligation to administer all its services “with an
even hand . . . .” Id. at 597. The Court explained that the
State’s obligation to provide a variety of services evenly for
all program participants mandated that more leeway be
afforded the States in administering those programs. See id. at
605.
Given the leeway that the Supreme Court has instructed
must be afforded the States in administering social services
programs, the question of whether plaintiffs have raised a
serious issue going to the merits is not as cut-and-dried as the
majority portrays.
The majority urges “considerable respect” to the Depart-
ment of Justice’s bald statement that “the elimination of ser-
vices that have enabled Plaintiffs to remain in the community
violates the ADA, regardless of whether it causes them to
enter an institution immediately, or whether it causes them to
decline in health over time and eventually enter an institution
in order to seek necessary care.” Majority Opinion, pp.
21140-41 (quoting the statement of interest filed by the DOJ).
However, the district court was not persuaded that the DOJ’s
bald statement was entitled to deference. See District Court
Order, p. 39 n.42.
The Supreme Court in Olmstead stopped short of requiring
that deference be given to the DOJ’s view. Rather, the
Supreme Court stated:
We need not inquire whether the degree of deference
described in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc. . . . is in order: [i]t
is enough to observe that the well-reasoned views of
the agencies implementing a statute constitute a
body of experience and informed judgment to which
courts and litigants may properly resort for guidance.
M. R. v. DREYFUS 21153
Olmstead, 527 U.S. at 598 (citation, alteration and internal
quotation marks omitted) (emphasis added).
The fact that the district court elected not to defer to the
DOJ’s bald, unreasoned statement did not run afoul of the
Supreme Court’s permissive view of the deference owed to
the DOJ’s interpretation of the integration regulation.
Because I conclude that the plaintiffs have not raised seri-
ous questions going to the merits of their claim, and because
the district court committed no clear error in finding a lack of
irreparable harm, I would affirm the district court’s denial of
injunctive relief on those bases. However, I also note that
Olmstead contains language supporting the district court’s
determination that granting the relief requested by Plaintiffs
would likely constitute a fundamental alteration of the State’s
plan. See Olmstead, 527 U.S. at 597 (“In evaluating a State’s
fundamental-alteration defense, the District Court must con-
sider, in view of the resources available to the State, not only
the cost of providing community-based care to the litigants,
but also the range of services the State provides others with
. . . disabilities, and the State’s obligation to mete out those
services equitably.”). This same rationale supports the district
court’s determination that the public interest favors permitting
the State to equitably balance the needs of all persons who are
served by the Medicaid program rather than requiring the
State to accommodate the needs of a discrete subset of that
population at the expense of others in need.
Keeping in mind our limited scope of review and the defer-
ence owed to the district court’s factual findings, I do not
agree that the district court abused its discretion when it
denied the requested preliminary injunction. Therefore, I
respectfully dissent from the majority opinion.