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August 17, 1992


The opinion of the court was delivered by: Baker, District Judge.


The plaintiffs filed this class action against Audrey McCrimon, Director of the Illinois Department of Rehabilitation Services (DORS), and Phil Bradley, Director of the Illinois Department of Public Aid (IDPA), alleging that the defendants' refusal to accept and process applications for the Home Services Program violates the Medicaid statute, 42 U.S.C. § 1396n, its implementing regulations, 42 C.F.R. § 431.200 et seq., and the Due Process Clause of the Fourteenth Amendment. Along with the complaint, the plaintiffs filed a motion for a preliminary injunction (docket # 5) and a motion for class certification. (docket # 7) The court held a hearing on both motions on July 7, 1992. At the hearing, the court granted the plaintiffs' request for class certification and certified the class under Fed.R.Civ.P. 23(b)(2).*fn1 After reviewing the materials submitted at the hearing, the court ordered the parties to file additional memoranda addressing specific issues. (docket # 18) The parties submitted supplemental briefs on August 3, 1992. For the reasons discussed below, the court now grants the plaintiffs' request for a preliminary injunction.


The Home Services Program (HSP) is a Medicaid program designed to prevent the unnecessary institutionalization of disabled persons. Illinois enacted the HSP, found at section 3(g) of the Disabled Persons Rehabilitation Act, Ill.Rev.Stat. ch. 23, para. 3434, as a waiver program under 42 U.S.C. § 1396n(c). The HSP provides support services such as personal care, housekeeping and delivered meals. IDPA has delegated operational responsibility for the HSP to DORS which administers two HSP programs: one to assist physically disabled persons between the ages of 21 and 59 and another to aid individuals with AIDS, ARC, or HIV infections. On February 14, 1992, DORS published an emergency rule in the Illinois Register, providing that, as of February 3, 1992, DORS shall not make applications for HSP services available. 16 Ill. Reg. 2688, 2694 (1992) (Exhibit A Attached to Plaintiffs' Brief in Support of Preliminary Injunction). The authority for this rule is the Emergency Budget Reduction Act of Fiscal Year 1992 which the General Assembly enacted in January, 1992. Public Act 87-0838 (Exhibit D Attached to Plaintiffs' Brief in Support of Preliminary Injunction). The amendment to the HSP statute states:

  Notwithstanding any other provision of this Act to
  the contrary, the Department is authorized to
  limit services, to reduce or adjust payment rates,
  and to modify eligibility criteria under this
  subsection (g) as necessary to implement
  contingency reserves under the Emergency Budget
  Act of Fiscal Year 1992, to the extent permitted
  by federal law. Any such modification, adjustment,
  reduction or limitation shall expire on July 1,

See Ill.Rev.Stat. ch. 23, para. 3434(g) (1992). At the hearing, the plaintiffs submitted a copy of a bill that amends paragraph 3434(g) and states: "Starting July 1, 1992, and for a period of one year thereafter, the Department is authorized to suspend, from time to time, the application process." Plaintiff's Exhibit 1. (docket # 17) The regulations interpreting the HSP are found at 89 Ill.Adm.Code 683.100 et seq. An amendment to these regulations, effective July 1, 1992, states: "DORS shall not make applications available to individuals wishing to apply for services through HSP." 16 Ill. Reg. 11681, 11685 (1992) (adding 89 Ill.Adm.Code 673.30). The amendments to the regulations also provide that "applicants/preapplicants shall not have the right to appeal . . . any action or inaction on the part of DORS related to the refusal by DORS to take an application." 16 Ill. Reg. at 11686 (adding 89 Ill.Adm.Code 673.50).

The plaintiffs are severely disabled persons who are eligible for Medicaid and who assert that, as a result of their disabilities, they are at risk of institutionalization. The plaintiffs claim that they would be able to avoid entering nursing homes if they could apply for the Home Services Program (HSP). In their complaint, the plaintiffs allege that the State's refusal to accept HSP applications is not permitted by federal law. The plaintiffs also contend that, under the emergency rule, DORS is supposed to be gathering information on all persons seeking HSP but "these `pre-applicants' are not considered clients and have no right to appeal any action or inaction of DORS. Many individuals have been discouraged from even providing the pre-application level of information after being advised there is no money available at the present time." Complaint. para. 25.

Motion for a Preliminary Injunction

The plaintiffs seek to have the court enjoin the defendants to:

    1. Resume processing new applications for
  assistance under the Home Services Program
  pursuant to the regulations in place prior to
  February 3, 1992.
    2. Transfer all "pre-applications" received
  since February 3, 1992 into active applications.

Brief in Support of Motion for Preliminary Injunction at 3. (docket # 6) In deciding whether to issue a preliminary injunction, the court must consider several factors: (1) whether the plaintiffs will be irreparably harmed if the injunction does not issue; (2) whether the plaintiffs have an adequate remedy at law; (3) whether the plaintiffs have some likelihood of success on the merits; (4) whether the threatened harm to the plaintiffs outweighs the possible harm to the defendants if the court grants the injunction; and (5) how the plaintiffs' likelihood of success effects the balance of harms. Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 386-88 (7th Cir. 1984). If the decision to grant or deny a preliminary injunction will involve the public interest, then the court must consider the public interest in the weighing process. Id.

To prevail on a motion for a preliminary injunction, the plaintiff carries the burden of demonstrating each factor. Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1015 (7th Cir. 1990); Illinois Council on Long Term Care v. Bradley, 759 F. Supp. 1309, 1311 (N.D.Ill. 1991) (citing Kellas v. Lane, 923 F.2d 492, 493 (7th Cir. 1990)), aff'd, 957 F.2d 305 (7th Cir. 1992). However, the plaintiff's threshold burden is to satisfy the first three factors. Ping v. National Educ. Ass'n, 870 F.2d 1369, 1371 (7th Cir. 1989). Once the plaintiff has met this burden, "the inquiry then becomes a `sliding scale' ...

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