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
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
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
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
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' ...