United States District Court, N.D. Texas, Dallas Division
BARBARA HARRISON, by her next friend and guardian, MARGUERITE HARRISON, Plaintiff,
COURTNEY N. PHILLIPS, in her official capacity as THE EXECUTIVE COMMISSIONER, TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Defendant.
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Barbara Harrison's motion for a
preliminary injunction against Courtney N. Phillips, in her
official capacity as the Executive Commissioner of the Texas
Health and Human Services Commission (“HHSC”).
Doc. 3. This is the second time Harrison, a disabled
individual, has sued HHSC in this Court for failing to
approve sufficient funds to cover her health care in a
community setting as opposed to in an institution. See
Harrison v. Young (“Harrison I”), No.
3:18-cv-1730-B. The last case was voluntarily dismissed so
that the parties could try to resolve their dispute through
the administrative process. They returned to this Court after
HHSC again terminated Harrison's 24-hour licensed
vocational nursing care.
parties continue to dispute the proper level of care that
Harrison needs, how that care should be funded, and where it
should take place. The parties also dispute whether
HHSC's process for making these determinations is legal
under the ADA and the Constitution. The Court finds that
Harrison has met her burden of showing the four factors
required for a preliminary injunction and GRANTS in
PART and DENIES in PART
Harrison's motion: the Court orders that HHSC continue
funding Harrison's 24-hour licensed nursing care while
the parties return to the agency as described below.
core, this dispute is about the process the state uses to
allocate funding for medical services for disabled
individuals. Plaintiff Barbara Harrison is a forty-three year
old woman with severe disabilities. Doc. 1, Compl.,
¶¶ 1, 4. She has been medically diagnosed with,
among other things, cerebral palsy, epilepsy, obstructive
sleep apnea, severe dysphagia, gastrostomy tube dependence,
scoliosis, and profound intellectual disability. Id.
¶ 4; id. Exs. A-F. Marguerite Harrison, the
mother of Plaintiff, is her next friend and guardian.
Id. ¶ 1. Defendant Courtney N. Phillips is the
Executive Commissioner of the Texas Health and Human Services
Commission (HHSC). Id. ¶ 16. She is named as
Defendant in her official capacity.
state participating in the joint federal- and state-funded
Medicaid program must submit a plan to the Secretary of the
United States Department of Health and Human Services for
approval. 42 U.S.C. § 1396. Texas has designated HHSC to
administer and supervise the state's Medicaid plan. Tex.
Gov't Code § 531.021. Through a federally-approved
waiver, states have the option of covering home and
community-based services (HCS) for persons with physical or
mental disabilities who would otherwise require institutional
care that would be paid for by Medicaid. 42 U.S.C. §
1396n(c)(1). HHSC also operates this waiver program in Texas.
Every year HHSC reevaluates whether an individual still
qualifies for the waiver program based on the cost of her
care. Doc. 9-2, Kenneally Decl., ¶¶ 11-12. And up
until April 2018, both parties agreed that Harrison qualified
for the HCS program, and she received care through a HCS
provider, Berry Family Services.
2018, Harrison alleges that her health worsened. Doc. 14,
Pl.'s P.I. Br., 4. Her doctors determined that instead of
needing just a few licensed vocation nurse (LVN) hours per
year, she would require 24-hour LVN care, or risk aspiration
and death. Id. at 2-4. LVN services are available
through the HCS waiver program, but if HHSC finds that an
individual is requesting a level of care above the
waiver's cost cap, that person may be removed from the
waiver program entirely. See 40 Tex. Admin. Code
§ 9.155 (describing the eligibility criteria of the HCS
program). HHSC has discretion to apply additional funds from
the state's general revenue funds (Section 23 GR funds),
but if it does not, then the individual will no longer be
able to receive services at home or in the community, and
will likely be institutionalized. See 40 Tex. Admin.
Code § 40.1; General Appropriations Act, 85th Leg.,
R.S., art. II-128, § 23(b), Use of General Revenue Funds
for Services. HHSC currently offers a fair hearing review
process to appeal findings that an individual's plan
exceeds the cost cap, but not for a denial of Section 23 GR
funds. See Doc. 14-15, Ex. O (GR Final
waiver program has a $168, 615 cost cap for individuals like
Harrison. 40 Tex. Admin. Code § 9.155(a)(3)(B). There is
no dispute that on April 23, 2018, she requested services
that exceed the cost cap as the medical professionals from
Berry had determined that Harrison now needed
around-the-clock LVN care for the remainder of the 2018 plan
year. Doc. 14, Pl.'s P.I. Br., 4-5. Because
providing this type and amount of service costs more than the
cost cap allows, Berry asked the Commission to dip into
Texas's Section 23 GR funds to make up the difference.
Id. After reviewing Harrison's Individual
Service Plan (ISP) and other documents, HHSC denied her
request for 24/7 LVN care, but after some back-and-forth
approved her for 8 LVN hours per day for the remainder of the
year at a cost below the cap. Id. at 4-5; Doc. 9-2,
Kenneally Decl., ¶ 15. Because this was a level of care
below that which her doctors had determined was medically
necessary to keep her alive, on July 2, 2018, Harrison
brought suit in this Court for the first time, seeking
relief. See Harrison v. Young (“Harrison
I”), No. 3:18-cv-1730.
first litigation last summer, Harrison voluntarily dismissed
her claims after the Commission agreed to continue fully
funding Harrison's health care pending the results of the
administrative process. Doc. 3, TRO Mot., 6; No.
3:18-cv-1730, Doc. 32, Notice of Dismissal. The dismissal
came after this Court granted a temporary restraining order
on July 16, 2018, requiring the Commission to “provide
funding for Plaintiff's twenty-four hour one-on-one
licensed nursing care” until a preliminary-injunction
hearing. Harrison I, No. 3:18-cv-1730, Doc. 18,
Order Granting TRO. The preliminary-injunction hearing never
happened, as Harrison dismissed her claims only a few days
before, on August 28, 2018.
parties had agreed to continue Harrison's 24-hour LVN
care as they went back to the administrative process.
Originally Harrison pursued a fair hearing on HHSC's 2018
decision, which by that point was 12 LVN hours per day for
the remainder of the service year. Doc. 9-2, Kenneally Decl.,
¶¶ 15-17. But once Harrison's yearly renewal
came due, the parties agreed that the fair hearing would
address only the 2019 service request, which was also for
24-hour LVN care and also exceeded the cost cap. Id.
¶ 17. That fair hearing was conducted on January 23,
2019. Doc. 3, Mot. for TRO, 7. While a decision was pending,
HHSC denied her request for general revenue funding.
Id. at 7-8; Doc. 14-15, Ex. O, 2.
at the fair hearing in January, Harrison had requested that
the hearings officer weigh in on whether general revenue
funds were appropriate for Harrison. Doc. 14-13, Ex. M
(Transcript), 19. HHSC strenuously objected, saying that the
hearings officer did not have jurisdiction to opine on the
general revenue funds, only on whether Harrison's
requested level of care was over the cost cap-a point neither
party disputed. Id. at 16-17, 36, 39. In the final
opinion, dated May 1, 2019, the hearings officer did not
mention whether he considered the availability of general
revenue funding to cover the excess cost, or any of the
constitutional, federal, or state law issues Harrison raised,
and simply concluded that Harrison:
was no longer eligible to receive services in the Home and
Community Services (HCS) program because [Harrison's]
proposed 2018-2019 Individual Plan of Care (IPC) exceeded
$168, 615.00. Therefore, the Agency's action is
Doc. 14-11, Ex. K, 6 (reviewing an IPC cost of $327, 923.10).
HHSC then terminated Harrison's services. On May 8, 2019,
Berry sent Harrison its letter indicating it could no longer
provide services for Harrison because HHSC would no longer
pay for it. Doc. 1, Compl., Ex. L. This suit ensued.
Plaintiff requests a declaratory judgment that:
(a) HHSC's denial of the necessary funding for nursing
services for Barabara Harrison in her group home violates 42
U.S.C. § 12132 and 29 U.S.C. § 794(a) and their
implementing regulations, 28 C.F.R. § 35.130(d) and
41.51(d); and (b) HHSC's failure to offer Plaintiff a
fair hearing and an opportunity to appeal HHSC's decision
to deny her general revenue funding without such a hearing
violates her due process rights to an administrative hearing
to challenge her ongoing request for state general revenue
funds and her right under the Medicaid Act to request the
continuation of HCS program services pending the hearings
officer's final decision
as well as a temporary restraining order, a preliminary
injunction, and a permanent injunction enjoining HHSC from
denying Harrison funding for medically necessary nursing
services in her group home and enjoining HHSC from denying
her request for a fair hearing on HHSC's denial of
general revenue funds. Doc. 1, Compl, 21-23.
temporary restraining order hearing was held on May 15, 2019,
and the Court ordered that Harrison's 24-hour LVN care be
continued until a preliminary-injunction hearing could be
held. Doc. 13, TRO. In the interim, the Court requested and
was given additional briefing on the issues. At the
preliminary-injunction hearing, held June 10, 2019, the Court
concluded that Harrison's 24hour LVN care should be
continued, and that it was necessary to order HHSC to conduct
additional administrative hearings. The Court solicited
proposed orders, which it received, along with objections
filed by HHSC. Doc. 33, Pl.'s Proposed Order; Doc. 34,
Def.'s Am. Objections. Having reviewed the extensive
briefing filed by both sides, the Court memorializes the
are four prerequisites for the extraordinary relief of
preliminary injunction. A court may grant such relief only
when the movant establishes that:
(1) there is a substantial likelihood that the movant will
prevail on the merits; (2) there is a substantial threat that
irreparable harm will result if the injunction is not
granted; (3) the threatened injury [to the movant] outweighs
the threatened harm to the defendant; and (4) the granting of
the preliminary injunction will not disserve the public
Clark v. Prichard, 812 F.2d 991, 993 (5th Cir.
1987); Canal Auth. of the State of Florida v.
Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc).
The party seeking such relief must satisfy a cumulative
burden of proving each of the four elements enumerated before
a temporary restraining order or preliminary injunction can
be granted. Mississippi Power & Light Co. v. United
Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985);
Clark, 812 F.2d at 993. Otherwise stated, if a party
fails to meet any of the four requirements, the court cannot
grant the preliminary injunction.
entitled to a preliminary injunction, Harrison first must
demonstrate a substantial likelihood of success on the
merits. She must also demonstrate a substantial likelihood
that abstention principles will not preclude relief. See
Sierra Club v. City of San Antonio, 112 F.3d 789, 793
(5th Cir. 1997) (holding that “whether the [district]
court properly entered a preliminarily injunction . . . turns
on whether the [plaintiff] established a substantial
likelihood of success on the merits in the face of the
Burford abstention doctrine”); Lone Star
Chapter Paralyzed Veterans of Am. v. City of San
Antonio, 2010 WL 1780353, at *7 (W.D. Tex. May 3, 2010)
(citing Sierra Club approvingly in the context of a
TRO). If abstention is not warranted, the Court need only
consider whether Harrison has shown a substantial likelihood
of success on the merits of one of her claims. See Ramada
Franchise Sys. Inc. v. Jacobcart, Inc., 2001 WL 540213,
at *1 (N.D. Tex. May 17, 2001). Thus, the Court first
addresses whether abstention under Burford is proper
before proceeding to address the four preliminary-injunction
Burford Abstention Does Not Apply Here
argues that the Court should abstain from hearing this case,
citing Burford abstention, which takes its name from
Burford v. Sun Oil Co., 319 U.S. 315 (1943).
“The general thrust of Burford-type abstention can be
well captured by saying that abstention is ordered in order
to avoid needless conflict with the administration by a state
of its own affairs[.]” § 4244 Needless Conflict
with States-When Abstention Required, 17A Fed. Prac. &
Proc. Juris. § 4244 (3d ed.). Under Burford,
abstention is proper “where the issues ‘so
clearly involve basic problems of [State] policy' that
the federal courts should avoid entanglement.”
Aransas Project v. Shaw, 775 F.3d 641, 649 (5th Cir.
2014) (quoting Burford, 319 U.S. at 332). Otherwise,
“[t]he federal courts have a virtually unflagging
obligation . . . to exercise the jurisdiction given
them.” Id. (internal quotations omitted)
Supreme Court has explained:
Where timely and adequate state-court review is available, a
federal court sitting in equity must decline to interfere
with the proceedings or orders of state administrative
agencies: (1) when there are “difficult questions of
state law bearing on policy problems of substantial public
import whose importance transcends the result in the case
then at bar”; or (2) where the “exercise of
federal review of the question in a case and in similar cases
would be disruptive of state efforts to establish a coherent
policy with respect to a matter of substantial public
New Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 491 U.S. 350, 361 (1989). In considering
Burford abstention, the Fifth Circuit weighs the
(1) whether the cause of action arises under federal or state
law; (2) whether the case requires inquiry into unsettled
issues of state law, or into local facts; (3) the importance
of the state interest involved; (4) the state's need for
a coherent policy in that area; and (5) the presence of a
special state forum for judicial review.
Romano v. Greenstein, 721 F.3d 373, 380 (5th Cir.
2013) (finding Burford abstention did not apply in a
§ 1983 suit challenging a state agency's Medicaid
benefits determination) (quoting Wilson v. Valley Elec.
Membership Corp., 8 F.3d 311, 314 (5th Cir. 1993)
(internal quotations omitted)). A court may exercise
jurisdiction over a preliminary-injunction matter that
ultimately fails to show a substantial likelihood of success
on the merits without running afoul of Burford.
See Jefferson Cmty Health Care Ctrs, Inc. v. Jefferson
Parish Gov't, 849 F.3d 615, 622-23 (5th Cir. 2017)
(affirming the district court's decision not to abstain
under Burford although ultimately overturning the
relies primarily on two cases to argue that the
Burford abstention doctrine does not apply:
Romano and Jefferson. Doc. 14, Pl.'s
P.I. Br., 21-23. “In Romano, a Medicaid
beneficiary sued the Louisiana Department of Health and
Hospitals under § 1983, alleging that its decisions,
policies, and procedures resulted in an illegal termination
of her benefits.” Jefferson, 849 F.3d at 623
(summarizing Romano, 721 F.3d at 374-75). The
Romano court rejected the agency's argument that
Burford abstention was appropriate, stating that
none of the five factors weighed in favor of abstention.
Romano, 721 F.3d at 380. Likewise, when reviewing
another case involving claims based on Medicaid, the Fifth
Circuit rejected the defendant's Burford
argument with the same reasoning as in Romano.
Jefferson, 849 F.3d at 623. In Jefferson,
the Fifth Circuit found that the defendant state agency had
not overcome the presumption that the federal court should
exercise jurisdiction. See Id. (enumerating the ways
the defendant failed to explain how the five factors tilted
toward abstention). Notably the Jefferson panel
distinguished a case decided by the Second Circuit, which
also dealt with the provision of home and community-based
services for disabled individuals. Id. (citing
Bethphage Lutheran Serv., Inc. v. Weicker, 965 F.2d
1239, 1240 (2d Cir. 1992)).
Bethphage, the Second Circuit affirmed abstention
under Burford when a nonprofit providing services to
persons with mental retardation and other disabilities
alleged that the state proposed to fund its service contracts
at a level inconsistent with the standards mandated by the
Home and Community Based Services Waiver Act.
Bethphage, 965 F.2d at 1240 (referring to 42 U.S.C.
§ 1396n(c)). But in that case, the plaintiff was asking
the court to set rates and impose terms on the parties'
contracts, a function that was normally given to a
“complex state administrative process.”
Id. at 1247. The Second Circuit also pointed out
that “[i]t is true that Burford does not
require abstention whenever there exists a complex state
administrative process, or even in all cases where there is a
potential for conflict with state regulatory law or policy
from federal litigation, but only where there would be
‘undue' federal interference.” Id.
The Fifth Circuit in Jefferson distinguished
Bethphage in part by the fact that the
Bethphage district court had found that setting
payment rates “‘necessarily invokes the expertise
and best judgment of the [state's] Commissioner of Mental
Retardation and does not lend itself to consistent judicial
interpretation.'” Jefferson, 849 F.3d at
623 (quoting Bethphage, 965 F.2d at 1243). As
described below, the Court likewise finds Bethphage
HHSC does not provide any examples in which a court abstained
under Burford when healthcare involving Medicaid
funding was implicated. See, e.g., Doc. 27,
Def.'s Br., 8-11. Indeed, in one other almost factually
identical case from this district, the court did not abstain,
although it does not appear that the Burford issue
was raised at any point. See generally, Knowles v.
Horn, 2010 WL 517591 (N.D. Tex. Feb. 10, 2010). HHSC
argues generally that federal review of Harrison's case
“would disrupt the efforts of the Commission to carry
out its obligation[s]” and federal review “could
produce a ...