By Deborah J. Juneau

Since 2003, Louisiana, through the Department of Health and Hospitals (“DHH”) and the Medicaid Program, administers home and community-based health services (“HCBS”) available to disabled citizens. The HCBS includes several programs, one of which is the Long Term Personal Care Services (“LT-PCS”) program. The LT-PCS program provides disabled citizens with a personal care worker to assist with performing personal care or household chores that the disabled citizen would otherwise be unable to perform, in order to avoid being institutionalized. Individuals who do not qualify for LT-PCS or who seek additional or alternative services may enter one of Louisiana’s waiver programs: Elderly and Disabled Adults, Adult Day Health Care, Program of All-inclusive Care for the Elderly, or Money Follows the Person for individuals transitioning from nursing facilities. However, these programs have limited slots, geographical or age limits, and long waiting lists. An individual may be moved to the top of the priority list and immediately obtain a waiver, if the individual has had a hospital stay in excess of 30 days or has been treated in a nursing facility for 120 consecutive days.

In September, 2010, to address budgetary concerns, Louisiana passed Act 490, which lowered the maximum weekly hours available to LT-PCS program beneficiaries from 42 hours to 32 hours per week. The reduction in weekly service hours applied to current and new LT-PCS beneficiaries. DHH determined that the reduction in service hours would save Louisiana $5 million in 2011 and $24 million in 2012.

On September 22, 2010, Helen Pitts and other plaintiffs filed suit against DHH and Secretary Bruce Greenstein (“Defendants”) for declaratory and injunctive relief to prohibit the implementation of the reduction in weekly service hours, claiming the Act violated Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973, by unlawfully discriminating against them by depriving them of at-home assistance necessary to remain “integrated” into the community. Pitts et al v. Greenstein, 2011 WL 2193398 (M.D. La. 2011). Plaintiffs contended the average cost of services for an individual in the LT-PCS program is less than the cost of maintaining the individual in a nursing home.

DHH and Greenstein filed a motion for summary judgment, seeking to have the lawsuit dismissed. They contended the reduction did not discriminate against the plaintiffs under the ADA or Section 504 of the Rehabilitation Act of 1973, because there was a comprehensive and effective plan in place to provide disabled individuals with HCBS. The Defendants pointed to the combination of HCBS and waiver programs that would ensure disabled individuals were not forced into nursing facilities. They also contended that, even if the reduction did discriminate against the plaintiffs, the claims failed because plaintiffs did not meet their burden of showing that returning to the 42-hour weekly maximum for services hours was a reasonable modification to the plan for reduction of service hours to 32 hours per week. In response, the Plaintiffs asserted the State’s plan increased their risk of institutionalization, because the waiver programs were either not available in their geographic area or had a long waiting period to qualify. The plaintiffs argued that, in order to move to the top of the waiting list for the waiver programs, they had to be subjected to institutionalization—the very situation the ADA was designed to prevent.

The court denied the Defendants’ motion for summary judgment, finding genuine issues of material fact as to whether maintaining the prior 42 hours per week maximum for services was a reasonable modification or a fundamental alteration for purposes of the Plaintiffs’ ADA claims. The court stated that Louisiana’s current plan plainly violated the ADA by creating a greater risk for institutionalization for those disabled individuals who require more than 32 hours per week of assistance.

The plaintiffs also sought certification of a class action for all Louisiana residents with disabilities who are recipients or prospective recipients of Medicaid-funded services through the LT-PCS program, who want to and are able to continue to reside in the community rather than in an institution with appropriate Medicaid-funded LT-PCS services, and who are at risk of institutionalization because of the planned reduction in the maximum number of service hours available under the LT-PCS program. The Defendants opposed the certification, arguing that the defined class was overly broad, that plaintiffs’ claims were not typical of the remaining class members, and that the plaintiffs had conflicting interests with the remaining class members such that the plaintiffs would not fairly and adequately represent the interests of the remaining class members. The Defendants argued that the class was overly broad because it included: 1) individuals who did not require more than 32 hours per week of services; 2) individuals who, if they did require more than 32 hours per week, had access to waiver programs or other means to secure supplemental care; or 3) required more than 42 hours of weekly services.

The court agreed the class should be defined to exclude those individuals who did not require more than 32 hours per week of services and those who could receive the necessary supplemental care through alternative sources. The court refused to exclude those individuals who required more than 42 hours per week of services, since those individuals would be at risk for institutionalization if their service hours were reduced even more. Thus, the court defined the class as follows:

“Louisiana residents with disabilities who have been receiving Medicaid-funded services through the LT-PCS program; who desire to reside in the community instead of a nursing facility; who require more than 32 hours of Medicaid-funded personal care services per week in order to avoid entering a nursing facility, and who do not have available (including through family supports, shared living arrangements, or enrollment in the ADHC [Adult Day Health Care] waiver) other means of receiving personal care services.”

The court also found that the class was sufficiently numerous, because 28% of the 12,000 individuals currently receiving LT-PCS services receive in excess of 32 hours per week of services. In addition, the court noted there were countless future members of the class who may not yet qualify for LT-PCS but who may wish to preserve their rights on the issue of the reduction of the service hours. Finally, many of the class members faced severe financial hardship due to their conditions and lacked the financial resources to bring suit individually to protect their rights.

The court found all class members were at risk of being forced to enter a nursing home as a result of the reduction in weekly service hours. The court likewise found there were common issues of law and fact as to each of the class members, including whether the Defendants violated the ADA or Section 504 of the Rehabilitation Act of 1973 by lowering the maximum weekly service hours from 42 to 32 hours or by requiring individuals to submit to an extended stay in a nursing facility to immediately qualify for critical, supplemental services through the waiver programs. Another common issue was whether the State’s waiver programs were sufficient to fill the void created by the reduction in service hours.

The court also found the plaintiffs’ claims and the Defendants’ defenses to those claims were sufficiently typical to the claims and defenses applicable to the remaining class members. Both the plaintiffs and the remaining class members claim that the reduction in service hours increases their risk of institutionalization; the waiting lists for the waiver programs do not move fast enough to provide the supplemental care required to avoid institutionalization; and they must submit to the very institutionalization they want to avoid to be moved to the top of the waiver waiting lists. Finally, the court found the plaintiffs would fairly and adequately represent the claims of the remaining class members. The court granted the plaintiffs’ motion to certify the class.

For the many LT-PCS providers and recipients, this class action case will be important to monitor to see whether the court rules Louisiana cannot limit the LT-PCS services hours to a maximum of 32 per week. If so, the state will incur increased costs for the program. It remains to be seen how Louisiana would cover these costs in the current budget-cutting environment and what other changes to this and the other home and community based programs may be made.