Case: 23-10223 Document: 69-1 Page: 1 Date Filed: 06/06/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 6, 2024
No. 23-10223
Lyle W. Cayce
____________
Clerk
Barbara Harrison, by her next friend and guardian,
Marguerite Harrison,
Plaintiff—Appellant,
versus
Cecile Erwin Young, in her official capacity as the Executive
Commissioner, Texas Health and Human Services Commission,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-1116
______________________________
Before Clement, Southwick, and Ho, Circuit Judges.
Edith Brown Clement, Circuit Judge:
For nearly five years, Barbara Harrison has been challenging the Texas
Health and Human Services Commission’s (“HHSC”) decision denying
funding for medical services that she claims are necessary for her survival.
The district court granted summary judgment to HHSC, in part on mootness
grounds. But we find that the district court’s mootness determination was
erroneous and that the factual record is still not sufficiently developed to
support a judgment as to Harrison’s discrimination claims. We therefore
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REVERSE in part, AFFIRM in part, and REMAND, once again, for
further proceedings.
I.
Harrison suffers from severe physical and intellectual disabilities. She
cannot walk or talk, and she is fed through a tube in her stomach. Because of
these conditions, Harrison needs intensive medical care.
Beginning in February 2017, Harrison lived in a group home where she
received nursing services funded by HHSC’s program for providing home- and community-based care to people with disabilities who would otherwise
require institutionalization (the “Program”). The Program receives federal
funding through Medicaid. See 42 U.S.C. § 1396n. As a condition of receiving
federal funding, HHSC must certify that the average per-person cost of
providing home- and community-based care through the Program is less than
or equal to the average cost of providing that care in an institution (i.e., a
nursing home). 42 U.S.C. § 1396n(c)(2)(D). Texas law therefore provides
that an individual is only eligible for the Program if the expected cost of that
person’s care does not exceed certain limits (the “Cost Cap”). 26 Tex.
Admin. Code § 263.101(a)(3). In situations where an applicant’s expected
medical need exceeds the Cost Cap, Texas has allocated state “general
revenue” funds that may be used to pay for services above the Cost Cap if
the relevant state officials determine that the individual meets certain
statutory criteria.
40 Tex. Admin. Code § 40.1.
In April 2018, Harrison’s treating physician determined that her
condition had deteriorated to the point where she required 24/7 one-on-one
nursing care. However, after reviewing her application, HHSC determined
that the cost of providing Harrison’s necessary level of care exceeded the
Cost Cap. Separately, HHSC also found that Harrison did not meet the
criteria to qualify for “general revenue” funds to cover the difference.
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Harrison was therefore denied Program-funded nursing services, meaning
her only option for receiving government-funded medical care was to move
to an institutional setting.
In May 2019, Harrison challenged HHSC’s determination in court,
arguing that HHSC (1) discriminated against Harrison because of her
disability, in violation of the Americans with Disabilities Act (“ADA”) and
the Rehabilitation Act, by denying her Program-funded nursing services, and
(2) violated her due process rights by denying her request for general revenue
funds without a hearing. The district court granted a preliminary injunction
requiring HHSC to fund 24/7 one-on-one care for Harrison until she
received a hearing on her request for general revenue funds. Three years
later—in August 2022—our court vacated the preliminary injunction and
remanded for further proceedings, holding that Harrison was unlikely to
succeed on her due process claim and had not demonstrated a likelihood of
success on the ADA/Rehabilitation Act claims. Harrison v. Young, 48 F.4th
331, 339–43 (5th Cir. 2022).
After the case was remanded to the district court, Harrison submitted
a new application to HHSC for 24-hour nursing care under the Program (new
applications are required annually), the cost of which again exceeded the
Cost Cap. Rather than reject her application outright, HHSC determined
that Harrison did not require 24-hour nursing care and that 5.5 hours of
nursing care per day would be sufficient to meet her medical needs. HHSC
therefore approved Harrison for $128,203.70 in Program funding, well below
the Cost Cap. The district court found that Harrison’s change in status—
from receiving no Program funding to receiving some Program funding—
mooted Harrison’s ADA/Rehabilitation Act claims. The court therefore
dismissed them and then granted summary judgment to HHSC on
Harrison’s due process claim. Harrison now appeals.
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II.
We review the district court’s grant of summary judgment de novo and
apply the same standards as the district court. Huskey v. Jones, 45 F.4th 827,
830 (5th Cir. 2022). “Summary judgment is appropriate if the record
evidence ‘shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’”
Id. (quoting FED. R.
CIV. P. 56(a)). We view all facts and inferences in the light most favorable
to the nonmoving party.
Id. “We may also affirm on any ground supported
by the record, including one not reached by the district court.” Ballew v.
Cont’l Airlines, Inc.,
668 F.3d 777, 781 (5th Cir. 2012).
III.
A.
We begin with Harrison’s discrimination claims. The ADA and
Rehabilitation Act prohibit HHSC from discriminating against a “qualified
individual with a disability” on account of that disability when administering
the Program. 42 U.S.C. § 12132;
29 U.S.C. § 794(a). And “unjustified
institutional isolation of persons with disabilities is a form of discrimination”
prohibited by these statutes. Olmstead v. L.C. ex rel. Zimring,
527 U.S. 581,
599–600 (1999).
Harrison claims that she faces imminent unjustified
institutionalization and is therefore being unlawfully discriminated against
under Olmstead. But the district court determined that because Harrison was
now re-enrolled in the Program—albeit with only 5.5 hours of nursing care
per day—she “no longer face[d] institutional isolation” and therefore her
claims were moot. The parties agree that the district court erred in this
determination. And they are correct. Harrison’s argument is, and has always
been, that she cannot survive if she receives less than 24/7 one-on-one
nursing care. But the Program funding she received is not enough to cover
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that level of care. Therefore, Harrison still has a live claim that she is at
imminent risk of being forced into an institution. And because the district
court could still effectuate relief through a favorable ruling requiring HHSC
to approve Harrison’s requested level of care under the Program, her claims
are not moot. See Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298,
307 (2012) (“A case becomes moot only when it is impossible for a court to
grant any effectual relief whatever to the prevailing party.” (cleaned up)).
Despite conceding that Harrison’s discrimination claims are not
moot, HHSC urges this court to affirm the district court’s dismissal on three
alternative bases: (1) Harrison was not “qualified” for the Program; (2)
Harrison was not discriminated against based on her disability; and (3)
Harrison’s request cannot be reasonably accommodated. We address each
contention in turn.
1.
A “qualified individual with a disability” means an individual who,
“with or without reasonable modifications to rules, policies, or practices . . .
meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.” 42 U.S.C.
§ 12131(2). HHSC argues that Harrison is not a “qualified” individual that
is protected by the ADA because her requested treatment exceeds the Cost
Cap and is “not the kind of services the [Program] was designed to provide.”
But solely relying on whether the cost of an individual’s care exceeds the Cost
Cap to determine that a disabled person is unqualified for the Program
ignores the “reasonable modification” command in the statute. Indeed, if the
sole basis for being unqualified were exceeding the Cost Cap, then the
“reasonable modification” requirement would be meaningless. See Steimel v.
Wernert,
823 F.3d 902, 916 (7th Cir. 2016).
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With respect to the types of services offered, HHSC argues that the
Program does not provide the “twenty-four-hour monitoring by a medical
professional” Harrison seeks. But HHSC does not appear to really contend
that the type of service Harrison requests is not offered by the Program. To
the contrary, HHSC approved Harrison’s request for one-on-one nursing
care. Instead, HHSC’s issue concerns the amount of services Harrison
requested, i.e., the number of hours of one-on-one nursing care per day. But
this goes towards the question of “reasonable modification,” not whether
Harrison is otherwise “qualified” in the first place.
2.
HHSC’s second argument is that the 2008 amendments to the ADA
changed the meaning of “discrimination” under the statute, casting doubt
on Olmstead’s continuing validity. Specifically, HHSC says that the Olmstead
opinion “borrowed [the] definition [of discrimination] from Title I” of the
ADA because Title II did not specifically define the term. See Olmstead, 527
U.S. at 622 (Thomas, J., dissenting). And because the ADA Amendment Act
of 2008 changed the definition of “discrimination” in Title I to “track the
language of the ban on discrimination in Title VII of the Civil Rights Act,”
HHSC reasons that Olmstead’s definition of discrimination is no longer good
law. Instead, HHSC urges that we use the “ordinary” or “traditional”
meaning of discrimination, which “requires only ‘evenhanded treatment in
relation to non-handicapped individuals.’” See Traynor v. Turnage,
485 U.S.
535, 548 (1988).
There are several problems with HHSC’s argument. First, the
Olmstead decision did not rely on the definition of discrimination in Title I.
Instead, it drew from the congressional findings provisions of the ADA,
which “appli[ed] to the entire statute” and “explicitly identified
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‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’”
Olmstead, 527 U.S. at 600 (quoting
42 U.S.C. § 12101(a)(2), (5)).
Second, the 2008 amendments do not require a “traditional”
meaning for the term “discrimination” as HHSC suggests. HHSC draws
meaning from the fact that the 2008 amendments changed Title I’s
discrimination provision from “[n]o covered entity shall discriminate against
a qualified individual with a disability because of the disability of such
individual,” 42 U.S.C. § 12112(a) (2006) (emphasis added), to “[n]o covered
entity shall discriminate against a qualified individual on the basis of
disability,” § 12112(a) (2012) (emphasis added);
Pub. L. No. 110-325, § 5,
122
Stat. 3553, 3557. We do not share HHSC’s view. The portion of Title I that
Justice Thomas asserted was “substantially import[ed]” into Olmstead’s
Title II definition remained unchanged. See Olmstead,
527 U.S. at 622
(Thomas, J., dissenting). Compare § 12112(b)(1) (2006), with § 12112(b)(1)
(2012) (both prohibiting “limiting, segregating, or classifying” persons with
disabilities adversely (emphasis added)). Thus, even assuming that Olmstead
used the definition of discrimination in Title I, the 2008 amendments would
not require a different understanding of discrimination under Title II.
Third, the 2008 amendments overturned Supreme Court precedent
on what constitutes a disability, not what constitutes discrimination. See Pub.
L. No. 110-325, § 2(b), 122 Stat. at 3553 (discussing Sutton v. United Airlines,
Inc.,
527 U.S. 471 (1999) and Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S.
184 (2002)). In Sutton, the Court held that courts must consider ameliorative
effects of treatment when determining whether a person is “substantially
limited” in major life activity to be considered “disabled.” 527 U.S. at 482.
In Toyota Motor, the Court extended its Sutton reasoning to hold that the
statutory definition of “disability” “need[s] to be interpreted strictly to
create a demanding standard for qualifying as disabled.”
534 U.S. at 197. This
went too far for Congress, so it passed the 2008 amendments to “reject” the
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Supreme Court’s conclusions, “reinstat[e] a broad scope of protection to be
available under the ADA,” and convey that the issue of whether a person is
disabled under the ADA “should not demand extensive analysis.” Pub. L.
No. 110-325, § 2(b), 122 Stat. at 3553–54. It would be counterintuitive for
Congress to have broadened the interpretation of the term “disability” and
expanded ADA coverage while simultaneously limiting the scope of the
“discrimination” prohibited by Title II. See Neely v. PSEG Tex., LP,
735 F.3d
242, 245–46 (5th Cir. 2013).
Fourth, HHSC cites a passage from the congressional record stating
that the 2008 amendments were intended to “mirror the structure of [the]
nondiscrimination protection provision in Title VII of the Civil Rights Act of
1964.” 154 Cong. Rec. S8840, S8843 (Sept. 16, 2008). But that passage
proceeds to explain that the salient result of the amendment to Section
12112(b) is that it “ensures that the emphasis in questions of disability
discrimination is properly on the critical inquiry of whether a qualified person
has been discriminated against on the basis of disability, and not unduly
focused on the preliminary question of whether a particular person is a
‘person with a disability.’” Id. Thus, even assuming that we are willing to
consider the legislative history, it supports the interpretation that the 2008
amendments were intended to reduce scrutiny over whether an individual is
disabled, not change the inquiry into whether discrimination occurred.
Fifth, and finally, our court has applied or relied on Olmstead in
varying contexts, albeit without addressing the argument HHSC raises here,
repeatedly since the 2008 amendments—including in this case. See, e.g.,
United States v. Mississippi, 82 F.4th 387, 392–401 (5th Cir. 2023); Harrison,
48 F.4th at 341–42; Caldwell v. KHOU-TV,
850 F.3d 237, 243–44 (5th Cir.
2017). And we see no good reason to deviate from that path here. See In re
AKD Invs.,
79 F.4th 487, 491 (5th Cir. 2023) (explaining that a court’s prior
decisions, including on “issues decided by ‘necessary implication,’”
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“should continue to govern the same issues in subsequent stages of the same
case” (citations omitted)). Indeed, HHSC has cited no case, from any circuit,
adopting its proposed interpretation. Olmstead therefore remains good law
and we must abide by it. See Ballew, 668 F.3d at 782.
3.
To determine whether Harrison was discriminated against by way of
imminent unjustifiable institutional isolation in violation of the ADA and
Rehabilitation Act, we analyze whether (1) “treatment professionals have
determined that community placement is appropriate” for Harrison, (2)
Harrison desires (or does not oppose) community-based treatment; and (3)
“the placement can be reasonably accommodated, taking into account the
resources available to the State and the needs of others with mental
disabilities.” Olmstead, 527 U.S. at 587. Only the first and third prongs are at
issue.
With respect to the first prong, the parties’ dispute centers around the
question of which treatment professionals’ determination controls. Olmstead
focused on the determination of “the State’s treatment professionals.” Id.
And HHSC argues that Olmstead means exactly what it says—the opinion of
the State’s treatment professionals governs, and here HHSC’s treatment
professionals concluded that Harrison could be appropriately treated in a
community-based setting with only 5.5 hours per day of nursing care.
Harrison disagrees. She contends that the Court in Olmstead deferred to the
“State’s treatment professionals” only because the plaintiffs there were
already institutionalized and therefore being treated by the State. So, Harrison
argues, the court must defer to the opinions of the professionals who are
“actually treating the plaintiff[] at issue”—here, Harrison’s own physicians.
In its preliminary injunction order, the district court considered the
various medical opinions proffered by the parties and found that “the opinion
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of Harrison’s own doctors should carry more weight . . . than that of HHSC’s
professionals.” We found no error in that approach. Harrison, 48 F.4th at
342. Today, the parties continue to present conflicting medical opinions as
to Harrison’s necessary level of care. And since there has been no additional
factual development towards resolving that issue, we see no grounds for
granting summary judgment on this basis at this juncture. See Crabb v.
Comm’r,
136 F.2d 501, 502 (5th Cir. 1943) (“[T]he record as supplemented
on the new hearing fails to bring anything to light which would warrant our
departing from the law of the case as it was settled in the former opinion.”).
The dispositive question is thus, assuming Harrison’s request for 24-
hour, one-on-one nursing care is medically necessary, can this level of care
be “reasonably accommodated” by the Program? But the factual record in
this case is simply not sufficiently developed to provide an answer. As we
previously explained, “[d]etermining whether an Olmstead accommodation
is reasonable” is a fact-intensive inquiry requiring more than just a “marginal
cost comparison” between community-based care and institutionalization.
Harrison, 48 F.4th at 342. For example, the district court must “tak[e] into
account the resources available to the State and the needs of others with . . .
disabilities.”
Id. (quoting Olmstead,
527 U.S. at 607). But there is no evidence
in the record that it has done so.
The bottom line is that many important factual questions concerning
Harrison’s appropriate level of medical care and whether such care can be
reasonably accommodated by the Program remain unanswered. For example:
• Where is Harrison now? Harrison’s counsel represented during
oral argument that she was moved to a new group home in April
2023, but that information is not in the record, nor do we know why
she was moved.
• What level of care is Harrison currently receiving? Harrison’s
counsel said at oral argument that she has one nurse and three non-
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nurse staff members providing her with 24-hour care. But again,
that is not in the record.
• Has Harrison’s current level of care been sufficient to keep her
alive and healthy? Harrison’s counsel told us at oral argument that
she has been hospitalized at least once in the time period since our
previous opinion in this case, but again this is outside the scope of
the record.
• Is HHSC using its entire annual budget for home- and community-based care under the Program or is there a surplus? Case law
suggests that it may not be possible to reasonably accommodate a
plaintiff’s request when the state’s home- and community-based
care program is already “operating at capacity.” Arc of Washington
State Inc. v. Braddock, 427 F.3d 615, 620 (9th Cir. 2005).
• Can any Texas institution actually provide 24-hour, one-on-one
nursing care? Case law suggests that a relevant inquiry is “whether
a nursing home facility actually could meet [the plaintiff]’s medical
needs.” Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599,
610 (7th Cir. 2004).
These questions, and others, should be explored by the district court in the
first instance on remand.
B.
Finally, we address Harrison’s due process claim. Medicaid-funded
State medical-assistance plans are required to provide “an opportunity for a
fair hearing before the State agency to any individual whose claim for medical
assistance under the plan is denied.” 42 U.S.C. § 1396a(a)(3). Harrison
claims that, by denying without a hearing her request for state “general
revenue” funds to cover the cost of care exceeding the Cost Cap, HHSC
violated her statutory due process rights. But Texas’ “general revenue”
funds are not funded by Medicaid. Rather, they are funds allocated by the
State legislature to cover expenses for Texas citizens over-and-above the
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Cost Cap of the State’s Medicaid-funded Program. So, the requirements of
§ 1396a(a)(3) do not apply.
To be sure, there is a direct link between “[t]he general revenue
funding [Harrison] seeks” and “the Medicaid funding provided under the
[Program],” in that, absent an alternative accommodation, Harrison will not
receive her requested care under the Program if she is denied general revenue
funds to cover the amount exceeding the Cost Cap. But “a state may give
additional medical assistance under its own legislation, independent of
federal reimbursement” under Medicaid. Lankford v. Sherman, 451 F.3d 496,
506 (8th Cir. 2006). That is precisely the situation here. Texas has allocated
its own “general revenue” to “pay for services above the [Cost Cap]” when
“federal financial participation is not available.”
40 Tex. Admin. Code
§ 40.1(b). In other words, State general revenue funds are only available when
federal Medicaid funds are not. And the State’s funding decisions under this
independent program are not subject to Medicaid’s “fair hearing”
requirement. See Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1, 28
(1981) (suggesting that state program was not bound by federal requirements
where it received no federal funding).
IV.
For these reasons, we AFFIRM the district court’s grant of summary
judgment to HHSC on Harrison’s due process claim but REVERSE the
district court’s dismissal of Harrison’s discrimination claims and
REMAND for further factfinding and proceedings.
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