Full opinion text
Order; Dissent to Order by Judge BEA; Opinion by Judge WILLIAM A. FLETCHER; Dissent to Opinion by Judge RAWLINSON. ORDER The opinion filed December 16, 2011, and published at 663 F.3d 1100, is amended as follows: On page 1107, right column, lines 16-19: delete <The district court stayed proceedings, including disposition of the motion for class certification, pending our decisions On page 1121, left column, line 10: change <obviously > to <likely > On page 1121, left column, lines 17-19: change <The district court stayed its decision on class certification pending our ruling on appeal. > to <At the time we reviewed this appeal, the district court had yet to rule on Plaintiffs’ motion for class certifications With these amendments, Judges Reinhardt and W. Fletcher have voted to deny Plaintiffs-Appellants’ petition for rehearing and Defendants-Appellees’ petition for rehearing and petition for rehearing en banc. Judge Rawlinson has voted to deny Plaintiff-Appellants’ petition for rehearing and to grant Defendants-Appellees’ petition for rehearing and petition for rehearing en banc. A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f). The petitions for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc may be filed. The mandate shall be issued forthwith.
BEA, Circuit Judge, joined by KOZINSKI, Chief Judge, and O’SCANNLAIN, TALLMAN, RAWLINSON, BYBEE, CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges, dissenting from denial of rehearing en banc: This case is one of several recently brought requesting an injunction to block across-the-board decreases in expenditures for social services, enacted to eliminate a state’s budgetary deficits. This, despite the fact that the rate reductions were validly adopted by agency regulation, and despite a state law requirement to prevent deficits in accounts. This, in the name of preventing “discrimination” against disabled persons under the Americans with Disabilities Act (“ADA”). Yet the panel majority sided with the plaintiffs and reversed the denial of a requested preliminary injunction. Mind you, this case does not involve the provision of certain social services to one group of disabled — those in nursing homes — but not to another group — the disabled residing at their own homes. No, the panel majority’s decision proceeds on the premise that the very reduction of social services currently provided the at-home disabled will risk their going to nursing homes, and that such reduction therefore “discriminates” against the at-home disabled, although not in favor of the disabled in nursing homes, or anyone else. But virtually everything the government does involves discrimination; it is in the nature of laws that they treat some people differently from others. This is not generally impermissible discrimination. Most government spending affects some groups more than others, but that doesn’t mean that the result is impermissible discrimination. The Supreme Court tells us that discrimination against the disabled may occur when certain social services a state actually provides are found only at nursing homes, and not provided at-home. Then the risk arises that the at-home disabled must enter nursing homes, rather than remain at-home. That is discrimination under the ADA. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). As noted, a divided panel of our court reversed the denial of a requested preliminary injunction to block the reductions here. This decision has the immediate effect of blocking the reductions of services for only the twelve named plaintiffs. But since the decision interprets and applies the ADA, it constitutes binding precedent in our nine Western states, with 20% of the nation’s population. We should have taken this case en banc. The panel majority’s opinion fits the criteria of Federal Rule of Appellate Procedure 35(a) to a tee. The panel majority’s opinion conflicts with precedent of the Supreme Court, our court, and the Second Circuit. It is also a case of exceptional importance. It involves nothing less than the ability of a state to reduce the amount of its totally voluntary and optional Medicaid social welfare expenditures to balance its budget. No doubt that is why California joined Washington to urge us to review the case en banc. The issue is whether state budgetary decisions will be replaced by those of our colleagues, federal appellate judges, by use of a strained interpretation of the ADA. I. Background 1. The program at issue. Washington has voluntarily elected to pay for “personal care services,” such as feeding, medication management, cooking, and other “physical or verbal assistance with activities of daily living” to certain disabled individuals under its state Medicaid program. See Wash. Rev.Code § 74.39A.009(18). Approximately 45,000 disabled individuals receive personal care services. M.R. v. Dreyfus, 663 F.3d 1100, 1104 (9th Cir. 2011). Some of the providers of personal care services are professionals, but others are family members who take care of their disabled relatives, at state expense. Washington’s receipt of federal Medicaid money for other medical services in no way depends on its provision of these “personal care services.” Washington devised an individualized assessment system called CARE to determine the number of hours for each aid recipient. Id. Under CARE, “the individual [recipient] is scored on factors such as an individual’s ability to perform daily activities and an individual’s mental status,” and is then assigned to one of 17 groups. Id. (quoting Samantha A. v. Dep’t of Soc. & Health Servs., 171 Wash.2d 623, 256 P.3d 1138, 1140 (2011) (en banc)). In 2010, before the proposed cuts, the most needy group received 416 hours of personal care assistance per month (nearly 14 hours a day, 30 days per month), and the least needy group received 26 hours per month. D. Ct. Order 6. It is critical to understand, as the district court found and the panel majority’s opinion does not dispute, that although CARE is an individualized assessment based on needs, it is not a guarantee of a minimum level of care needed to keep an individual at home or outpatient locations, rather than in a nursing home. D. Ct. Order 13. To the contrary, the program is a flexible one: coverage is dependent in part on how much money the state has. Washington has used this flexibility to change its payout for personal care service hours a number of times in the last ten years. From 2004 to 2006, the number of hours paid for was on average approximately the same as now, after the most recent (late 2010) cuts. When the economy and the collections rose, from 2007-2009, the paid hours allotment increased. Following the recent recession, the state reduced base hours by an average of about 4%; but in early 2010, the state restored those 2009 cuts. Finally, because of the state’s last budget crisis and an executive order of late 2010, the State made the approximately 10% average cuts, which brought the state back down to 2004 to 2006 levels of payments for hours provided. See generally D. Ct. Order 7. Though the number of hours provided has fluctuated, the record shows that Washington has shown consistent success in accomplishing the goal of the integration mandate: keeping the disabled in the community. In every year since 1992, the number of disabled persons in Washington who receive community-based care has increased, while the number of persons who receive nursing home care has decreased. See Exhibit Below. People receiving care in cornmnnity-hased versus nursing home settings, Washington, 1992-2008. Source: Washington State Dcp’t of Social and'Health Services, Fact Sheet: A Successful Vision (entered into evidence in district court). Two other features of the program must be kept in mind. The first is called the “Exception to the Rule,” or ETR, process. As the panel majority mentioned, a beneficiary who disputes that his allotted hours are adequate for his needs may request an increase in payment for hours of personal services. M.R., 663 F.3d at 1105. What the panel majority does not mention is that the state approved 89% of the ETR requests for additional hours in 2010. D. Ct. Order 7. Second, Washington’s program is extraordinarily generous. Even after the proposed cuts, Washington pays for up to 393 hours per month for an individual. Of course, even more paid hours are possible through the ETR process. D. Ct. Order 6, Table 1. By contrast, the maximum number of personal care hours authorized in California is 283 per month. Cal. Welf. & InstCode § 12303.4(b). 2. The proposed cuts. Washington, like many states, faced a severe budget crisis in 2010. On September 13, 2010, Governor Gregoire issued an executive order requiring across-the-board budget cuts because “the national economic downturn” caused “revenues [that] have fallen short of projections,” and the state’s general fund was in danger of running a deficit. 663 F.3d at 1105. The Department of Social and Health Services adopted a regulation which cut the base hours of CARE recipients, with cuts ranging from 6.3% for those receiving many hours to 18.8% for those receiving fewer. The variation in cuts is based on “the notion that the individuals currently receiving only a handful of personal care service hours per month are the most independent and therefore the least likely to require nursing home care.” D. Ct. Order 8 n.7. Even after the cuts, anyone may still request an ETR to adjust hours upward. WAC 388-440-0001. S. This lawsuit. The plaintiffs are disabled and elderly individuals who receive in-home personal care services through the voluntary “personal services” feature of Washington’s Medicaid program. They are currently proceeding individually, and a motion for class certification was recently stricken without prejudice to its being refiled following the issuance of this court’s mandate. See Proposed Order Amending Opinion at 2. As relevant here, the plaintiffs allege that the state’s reduction violates the general non-discrimination provision of the ADA, which provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. An implementing regulation, called the “integration mandate” provides that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The plaintiffs contend that the state’s reductions in paid hours for “personal services” violate the ADA because “the reduction in hours will substantially increase the risk that they will be institutionalized in order to receive care adequate to maintain their mental and physical health.” M.R., 663 F.3d at 1102. The district court held over five hours of oral argument and, in an order amply supported by the evidence, found that plaintiffs’ claims of irreparable injury (risk of institutionalization) were unlikely to succeed. He denied a request for a preliminary injunction. D. Ct. Order 2 n.4, 3. The panel majority, over Judge Rawlinson’s dissent, reverses the district court’s legal conclusions and factual findings, and remands for entry of a preliminary injunction as to the named plaintiffs. The injunction prohibits the state from enforcing the reductions against the named plaintiffs, and the panel “leavefs] it to the district court to determine on remand whether, in light of this opinion, broader preliminary injunctive relief is appropriate.” 663 F.3d at 1121. II. Reasons to Take This Case En Banc The district court’s order was correct on the law, on the facts, and on the standard for issuing a preliminary injunction. Now, after this decision, the ADA will block states from making even small, evenhanded cuts to programs which the state has voluntarily added to its Medicaid program. This is so even when the reductions are in response to severe budget deficits, and even when there is no evidence that anyone will be subjected to imminent institutionalization. Somehow, this is all done in the name of prevention of discrimination. Congress, with the passage of the ADA, certainly never contemplated nor sanctioned such a one-way ratchet on governmental spending. We should have gone en banc to correct course. 1. The opinion’s incorrect analysis of the ADA. The panel held that there were “serious questions going to the merits” of whether a 10% cut to services in this voluntary and optional Medicaid program, which is being administered evenhandedly, violates the regulation that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The panel held that, to prevail on a claim under the integration mandate, “a plaintiff need only show that the challenged state action creates a serious risk of institutionalization.” 663 F.3d at 1116. That is not the law. According to the Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the integration mandate means that “[s]tates are required to provide community-based treatment for persons with ... disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with ... disabilities.” Id. at 607 (emphasis added). But it is not disputed that Washington does “provide community-based treatment for persons with ... disabilities” on an even-handed— even exemplary — basis. There is no claim that Washington discriminates against community-based recipients by favoring institutionalized recipients with more or better “services, programs, [or] activities.” See 28 C.F.R. § 35.130(d). Olmstead requires that community-based treatment be provided only after “taking into account the resources available to the State and the needs of others ... with disabilities.” 527 U.S. at 607, 119 S.Ct. 2176. Here, the reductions in personal care service hours were applied in view of “resources available” and on a rational basis depending on need, and not on any discriminatory basis as between the community-based recipient and the institutionalized recipient. The panel majority seems to view an across-the-board reduction of services to the community-based recipients to be “discrimination” because of the effect the reduction might have: to cause some community-based recipients to seek institutional care. But even the broad view of “discrimination” endorsed in Olmstead requires some form of differential treatment amongst the disabled. What the Supreme Court held in Olmstead is that the disabled are discriminated against if states, without justification, provide services to the institutionalized that are not provided to community-based recipients, thus forcing certain individuals into institutionalized settings. See 527 U.S. at 597, 600-01, 119 S.Ct. 2176. What Olmstead did not hold — indeed what it specifically stated it was not holding — was that any sort of a level of services must be provided to prevent institutionalization, else the recipient would suffer discrimination. Indeed, the district court plainly found that the record showed no such discrimination was occurring here, stating that “the record does not reflect that the State is providing services to individuals in institutions that it has declined to provide to individuals living in community-based settings. To the contrary, plaintiffs’ evidence demonstrates that individuals living in community-based settings currently receive more and better care than individuals living in institutions.” D. Ct. Order 36. The panel majority’s opinion unfortunately ignored this finding. An example might help. If the reduction of personal services were to eliminate specific services from the personal care program — for instance, dressing care services — but that service were to be provided by institutionalized care, that would be discrimination as interpreted by Olmstead: this needed service, provided only in institutions, would require the disabled person to seek institutional care. Here, though, there is no allegation, much less proof, that the state made any cuts to particular personal care services. There is no service at all that was provided in 2009 that is no longer provided after the reductions. The gravamen of the claim, then, is simply that the plaintiffs want more hours of the personal care services they would receive in their homes following the reductions. It is understandable for the plaintiffs to want more services to be provided at no cost to them. The problem is that the plaintiffs are not entitled to any particular level of services — or a “standard of care” — under the ADA. This is especially so because more services for these plaintiffs necessarily means less for others, since “the State has submitted unrefuted evidence that it will need to make drastic cuts in other state programs if this Court grants plaintiffs’ requested preliminary injunction.” D. Ct. Order 41. The panel’s view of what constitutes “discrimination” conflicts with Olmstead, which explicitly conditioned benefits to community-based recipients on “resources available.” Olmstead condemns only “unjustified isolation.” 427 U.S. at 597, 96 S.Ct. 2791 (emphasis added). Now, under M.R., states must provide community-based services in a way that eliminates any “serious risk” that any individual currently receiving in-home services will be transferred to a nursing home. The opinion demands that community-based care meet a certain standard: the program must guarantee that each disabled individual currently receiving benefits in the program is able to continue to live in the community indefinitely. But the ADA requires only non-discrimination in the provision of services amongst the community-based recipients, or between the community-based recipients and the institutionalized, when a state allocates discretionary resources. The ADA does not require that any particular services be provided, or that any particular level of services be provided. Indeed, the Supreme Court has already rejected the opinion’s view of the ADA: We do not in this opinion hold that the ADA imposes on the States a “standard of care ” for whatever medical services they render, or that the ADA requires States to “provide a certain level of benefits to individuals with disabilities.” ... We do hold, however, that States must adhere to the ADA’s non-discrimination requirement with regard to the services they in fact provide. Olmstead, 527 U.S. at 603 n. 14, 119 S.Ct. 2176 (quoting Olmstead, 527 U.S. at 624, 119 S.Ct. 2176 (Thomas, J., dissenting)) (emphases added). The Court’s language helps to interpret the integration mandate’s language. 28 C.F.R. § 35.130(d) requires the states to “administer” existing programs and services in the most integrated setting possible, so as to avoid discrimination. The mandate does not require the states to “provide” or “maintain” programs to avoid discrimination. It gets worse, though, because we too have already rejected M.R.’s limitless expansion of Olmstead. In Townsend v. Quasim, 328 F.3d 511 (9th Cir.2003), we properly read Olmstead to have a limited scope when we stated that “where the issue is the location of services, not whether services will be provided, Olmstead controls.” Id. at 517; see also Olmstead, 527 U.S. at 612, 119 S.Ct. 2176 (Kennedy, J., concurring in judgment) (“No State has unlimited resources, and each must make hard decisions on how much to allocate to treatment of diseases and disabilities____ The judgment [regarding resource allocation], however, is a political one and not within the reach of the statute.”). Yet, despite this clear language in Olmstead and the instruction from our court in Townsend, a new standard of care based on a recipient’s subjective claims is exactly what the panel requires from the state of Washington. After M.R., that standard can never be reduced. In the teeth of this precedent, the panel majority’s opinion gives what amounts to controlling interpretive deference to a “statement of interest” the DOJ filed in support of the plaintiffs. See M.R., 663 F.3d at 1117. In Olmstead, the Court declined to consider whether to accord deference to the DOJ’s views of the ADA and implementing regulations. 527 U.S. at 598, 119 S.Ct. 2176. Notwithstanding the Supreme Court’s forbearance, the panel majority here contends that this “statement of interest,” filed in district court, is the equivalent of an “agency’s interpretation of its own regulation,” which the panel then says is “controlling unless plainly erroneous or inconsistent with the regulation.” M.R., 663 F.3d at 1117 (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). This is one leap too far. First, unlike Olmstead, where the United States participated through the appearance of the Solicitor General, the DOJ did not even submit an amicus brief to our court in this appeal, despite the fact that its position lost in district court. Second, a “statement of interest” has not gone through anywhere near the rigorous controls as has a regulation adopted pursuant to the Administrative Procedure Act, or even a Supreme Court amicus brief. Third, in any event, the DOJ’s view leads to a plainly unreasonable interpretation of the plain text of the ADA, so it must be rejected. See Auer, 519 U.S. at 461, 117 S.Ct. 905 (agency interpretation of a regulation not controlling if “plainly erroneous or inconsistent with the regulation” (internal quotation marks omitted)). It is plainly unreasonable to claim it is “discrimination” under the ADA when there is an even-handed reduction of a voluntarily-provided welfare benefit and no claim that this reduction will lead to anyone’s imminent institutionalization. Finally, in imposing on the states a standard of care for personal care service programs, we do not just depart from binding Supreme Court precedent. We also create a conflict with the Second Circuit. In Rodriguez v. City of New York, 197 F.3d 611 (2d Cir.1999), decided after Olmstead, the Second Circuit considered a case where a class of mentally-disabled plaintiffs contended that New York violated the ADA because the state failed to provide “safety-monitoring services” in its personal-care services program. Id. at 613, 119 S.Ct. 2176. As here, the plaintiffs claimed that the state’s failure to do this rendered the personal care services provided “inadequate to meet their medical needs and to allow them to continue living in their homes.” Id. at 614, 119 S.Ct. 2176. The Second Circuit recognized that this argument does not allege “illegal discrimination against the disabled” but instead presents a challenge to “the substance of the services provided.” Id. at 618, 119 S.Ct. 2176. This is because “[t]he ADA requires only that a particular service provided to some not be denied to disabled people.” Id. The court thus rejected the “discrimination” claim. Id. In so doing, the Second Circuit also explained that Olmstead was “inapposite” in such a case because it does not “stand for the proposition that states must provide disabled individuals with the opportunity to remain out of institutions.” Id. at 619, 119 S.Ct. 2176. Instead, Olmstead means “only that States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Id. (quoting Olmstead, 527 U.S. at 603 n. 14, 119 S.Ct. 2176) (emphasis in original). The bottom line is simple enough: “[T]he disabilities statutes do not guarantee any particular level of medical care for disabled persons, nor assure maintenance of service previously provided.” Rodriguez, 197 F.3d at 619 (quoting Cercpac v. Health and Hosp. Corp., 147 F.3d 165, 168 (2d Cir.1998)) (emphasis added). Yet “maintenance of service previously provided” is exactly what our court requires in M.R. The panel majority’s insistence that Washington state provide a particular standard of care means the remainder of Ninth Circuit states must abandon any attempt to reduce voluntarily-provided, optional personal care services from their current levels. Instead, states are locked into a program they thought voluntary and optional, one not required by Medicaid— and certainly not required to continue at a particular service level. If a 10% reduction in hours in one of the nation’s most generous programs creates a “serious risk of institutionalization,” then it is hard to imagine what other reduction, in any state, will ever fail to meet the “serious risk” standard. This is because Washington state’s entire personal care services program is essentially an at-home substitute for nursing home care. Almost by definition, if this program offers fewer hours and serves fewer people, more people will be at risk of needing to go into a nursing home. But, at worst, that risk is not caused by discrimination in the services actually provided, but by the lessening of the services previously provided. Thus, plaintiffs will argue, applying the integration mandate to this type of service in the first place leads inexorably to the conclusion that the states that do not currently participate in this optional program are in violation of the ADA. If cutting personal care hours presents a “serious risk of institutionalization,” the argument will go, surely providing no personal care services at all presents an even bigger risk of institutionalization. Now, after the panel majority’s opinion in M.R., there is no stopping point to the plaintiffs’, activist organizations’, and unions’ claims that the “integration mandate” prohibits any reduction in services to the at-home disabled. This argument is absurd on its face, and we should have taken this case en banc now to stop plaintiffs’ assertion of what they may style as an “inexorable” progression. 2. The opinion’s impermissible fact-finding. The panel majority acknowledged in its standard of review section that this court reviews a denial of preliminary injunction for abuse of discretion and that, in so doing, “we first look to whether the trial court identified and applied the correct legal rule to the relief requested. Second, we look to whether the trial court’s resolution ... resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009) (en banc). Our standard was drawn directly from the Supreme Court’s language in Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“Based on our own reading of the record, we cannot say that either interpretation of the facts is illogical or implausible. Each has support in inferences that may be drawn from the facts in the record; and if either interpretation had been drawn by a district court on the record before us, we would not be inclined to find it clearly erroneous.”) (emphases added). Yet the panel majority replaces the district court’s amply-supported factual findings with its own findings. The opinion fails to keep in mind my colleague Judge Farris’s pithy line characterizing the “appropriate appellate function”: while his colleague in dissent “would retry,” Judge Farris was “content to review.” Li v. Ashcroft, 378 F.3d 959, 964 n. 1 (9th Cir.2004). The discussion of irreparable harm in the panel opinion focuses nearly exclusively on three of the twelve plaintiffs: M.R., C.B., and K.S. 663 F.3d at 1108-14. The facts the panel majority relates of their conditions are sad and unfortunate, as M.R. and C.B. in particular are severely disabled individuals who require extensive care on a daily basis. The plaintiffs contend that they have “demonstrated a likelihood of irreparable injury because they have shown that reduced access to personal care services will place them at serious risk of institutionalization.” Id. at 1102. The panel majority agreed, overturning the district court’s careful findings to the contrary. The panel majority reversed the district court because the state’s responses to the plaintiffs’ recitations of harm were “weak” and the “the district court addressed these individualized showings in a generalized fashion.” Id. at 1114. On the contrary, the district court did indeed give individualized consideration to each plaintiff. For instance, after citing the declarations of nine of the named plaintiffs whose “medical conditions have deteriorated” — a group that includes both M.R. and C.B. — the district court said that “the Court is unable to determine whether the alleged threat of institutionalization these particular plaintiffs face is the result of the State’s reduction in personal care service hours or the deterioration in their medical conditions.” D. Ct. Order 25. In a lengthy passage, the district court also described evidence that contradicted the allegations of harm to the plaintiffs arising from the reduction, and the district court further noted that some of the allegations in the plaintiffs’ declarations were “speculative at best.” Id. at 25 n. 31. The district court also found that certain declarations did not show a likelihood of irreparable injury because plaintiffs had not attempted to raise the hours of personal care they claimed to need through the available ETR process. D. Ct. Order 26-27. For instance, in the case of plaintiff A.R., the district court said that it “can only conclude that the declarations relating to A.R. do not suggest a likelihood of irreparable injury because, until the State has had the opportunity to correct the gap in care through case management, the Court cannot determine whether the threat of harm is the result of the State’s reduction, or the decision by A.R.’s guardian to give preference to the provider’s convenience over A.R.’s care needs.” Id. at 27. The panel opinion does not address this reasoning. Instead, it pretends this finding was not there. Moreover, the panel majority’s criticism of the district court’s findings as impermissibly general is misplaced. The panel majority does not claim that the district court failed to comply with Fed.R.Civ.P. 52(a)(2), which requires that “[i]n granting or refusing an interlocutory injunction, the court must ... state the findings [of fact] and conclusions [of law] that support its action.” Instead, the panel majority conflates a criticism of how the district court discussed the evidence with an evaluation of the sufficiency of the evidence itself. This contradicts our circuit’s test for “clear error,” which turns only on whether there was a sufficient evidentiary basis for the determination the district court made, not how the trial court “addressed” the evidence in the record. Here, there was a sufficient evidentiary basis for the district court’s findings. In 2009, our en banc court closely tracked the Court’s language in Anderson when it stated that factual findings would be overturned only if they were “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Hinkson, 585 F.3d at 1263 (drawing on and quoting from Anderson, 470 U.S. at 577, 105 S.Ct. 1504 (1985)). Yet, in direct contradiction to this mandatory analytical framework, the panel opinion never lets the reader know upon which of these shoals the district court’s factual findings ran aground, or why. This error too demanded en banc review, because it constitutes a three-judge panel’s departure from an en banc approved standard. III. The Effect of Our Decision Under M.R., states will be hard-pressed to reduce benefit levels in voluntarily-provided personal care services programs and, perhaps, in a variety of other voluntary social services programs. This not only departs from the text of the relevant statutes and regulations, but it presents two major practical problems. First, in the near term, states will not be able to balance their budgets. Second, in the longer term, if states do not have flexibility to cut the provision of such services, then they are far less likely to decide to provide the programs in the first place. Both of these cause serious harm to states and their citizens, yet this harm was entirely ignored by the panel majority. Of course, I am not a state executive or legislative official, charged with administering the state budget, so do not take my word for it. Instead, look at the recent remarks of California Governor Jerry Brown regarding the state’s $16 billion budget deficit. Why is the shortfall so large — and in particular so much larger than the $9 billion deficit forecast only months ago? “Tax receipts are coming in lower than expected,” he said. “And the federal government and the courts have blocked us from making billions in necessary budget reductions.” At a press conference on Monday, May 14, 2012, Governor Brown noted: The fact is we’re in a democratic society. We have so much money from the people, and we’ve got so much spending. We can have it be out of alignment for a while ... but I’ve committed to getting it into balance. What that means is that things that are good in and of themselves have got to be stopped or curtailed if we’re going to have balance. Otherwise, we borrow and sink deeper into debt, and you see Spain, Portugal, Italy, Ireland, England, they’re all having trouble. While the short-term pain is real, I think the greater good is balancing the revenue with the spending. The majority ignores this fundamental reality of our democracy. The long-term impact of the panel majority’s decision and the inevitable path we will now be forced to follow is that legislators will think long and hard about ever again authorizing such voluntary and optional programs. After all, state legislators and executive officials are not blind to what we do here at the Ninth Circuit. Rather, those who govern in the states in our circuit will see the reductions we have blocked, even to voluntary, optional services like the one here, and then ask themselves: why should we ever go through this battle again? The harm that will come to all of us from these programs foregone — these legislative possibilities left untried — will be hard to measure. But it will be very real. Fortunately, this is not a result demanded by the ADA, the facts of this case, or the balancing of the equities courts look to in issuing injunctions. Far from it. This result is one manufactured by the panel majority’s stretched reading of the law, its mistreatment of the record, and its arrogation to itself of the factfinding function. We should have gone en banc to correct this opinion’s turn toward anti-democratic budgeting by judicial fiat. OPINION W. FLETCHER, Circuit Judge: Plaintiffs, Washington State Medicaid beneficiaries with severe mental and physical disabilities, appeal the district court’s denial of their motion for a preliminary injunction. Plaintiffs seek to enjoin the operation of a regulation promulgated by Washington’s Department of Social and Health Services (“DSHS”) that reduces the amount of in-home “personal care services” available under the state’s Medicaid plan. The United States Department of Justice has filed a “statement of interest” in the district court supporting Plaintiffs’ request for an injunction. “Personal care services” provide assistance in performing basic life activities— such as eating, bathing, dressing, moving from place to place, and using the toilet— that Plaintiffs, because of their disabilities, cannot perform by themselves. To comply with Governor Christine Gregoire’s executive order that directed an across-the-board reduction in all state agency expenditures, DSHS promulgated a regulation that cut the base hours of covered in-home personal care services by an average of 10 percent per beneficiary per month. Plaintiffs argue principally that the regulation violates the antidiscrimination provisions of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794(a), because the reduction in hours will substantially increase the risk that they will be institutionalized in order to receive care adequate to maintain their mental and physical health. The district court denied preliminary relief. We reverse. We conclude that Plaintiffs have demonstrated a likelihood of irreparable injury because they have shown that reduced access to personal care services will place them at serious risk of institutionalization. We further conclude that Plaintiffs have raised serious questions going to the merits of their Rehabilitation Act/ADA claims, that the balance of hardships tips sharply in their favor, and that a preliminary injunction will serve the public interest. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir.2011). We therefore remand for entry of a preliminary injunction. I. Background and Procedural History A. Factual Background Medicaid is a cooperative federal-state program under which the federal government provides states with financial assistance to supply medical services to low-income people. Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 617 (9th Cir.2005). State participation is voluntary, but once a state chooses to participate, the state must submit for federal approval a plan that complies with federal statutory and regulatory requirements. Alexander v. Choate, 469 U.S. 287, 289 n. 1, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); Townsend v. Quasim, 328 F.3d 511, 514 (9th Cir.2003). A state plan must cover the cost to eligible people of certain medical services, including inpatient and outpatient hospital care; laboratory and X-ray services; nursing facility care; and services provided by physicians, dentists, nurse, midwives, and pediatric or family nurse practitioners. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17), (21); 42 C.F.R. §§ 440.210, 440.220. Within this federal framework, however, states retain “substantial discretion to choose the proper mix of amount, scope, and duration limitations on coverage.” Alexander, 469 U.S. at 303, 105 S.Ct. 712; see also Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977); 42 C.F.R. § 430.0. States may, but need not, choose to subsidize other types of medical services, including “personal care services,” the benefit at issue here. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(24). “Personal care services” are: services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility, intermediate care facility for the mentally retarded, or institution for mental disease that are (A) ... authorized for the individual in accordance with a service plan approved by the State, (B) provided by an individual who is qualified to provide such services and who is not a member of the individual’s family, and (C) furnished in a home or other location. Id. § 1396d(a)(24); see also 42 C.F.R. § 440.167(b) (clarifying that a family member is “a legally responsible relative”); Ctrs. for Medicare and Medicaid Servs., State Medicaid Manual § 4480(C), at 4-495 (1999) (personal care services “include a range of human assistance provided to persons with disabilities and chronic conditions ... which enables them to accomplish tasks that they would normally do for themselves if they did not have a disability,” and “most often relate[ ] to ... eating, bathing, dressing, toileting, transferring, ... maintaining continence, ... personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management”). Washington has elected to cover the cost of personal care services, which the state defines as “physical or verbal assistance with activities of daily living and instrumental activities of daily living provided because of a person’s functional disability.” Wash. Rev. Code § 74.39A.009(18). The state defines “activities of daily living,” in turn, to include bathing, bed mobility, body care, dressing, eating, locomotion inside and outside one’s room and immediate living environment, walking in one’s room and immediate Hving environment, medication management, toilet use, transferring between surfaces, and personal hygiene. Wash. Admin. Code § 388-106-0010. The state defines “instrumental activities of daily living” as including meal preparation, ordinary housework, essential shopping, wood supply when wood is used as one’s sole source of heat, travel to medical services, managing finances, and telephone use. Id. Washington’s DSHS administers the state’s Medicaid programs. See 42 U.S.C. § 1396a(a)(5); Wash. Rev. Code § 74.09.530. DSHS covers the cost of personal care services for approximately 45,000 people. Some 15,000 of those beneficiaries are “categorically needy” participants in the state’s Medicaid plan. The remaining 30,000 beneficiaries participate in one of Washington’s Medicaid waiver programs, “under which the Secretary of Health and Human Services is authorized to waive certain Medicaid requirements for innovative or experimental state health care programs.” Townsend, 328 F.3d at 514. Consistent with Congress’s preference for community rather than institutional care, “the waiver program provides Medicaid reimbursement to States for the provision of community-based services to individuals who would otherwise require institutional care, upon a showing that the average annual cost of such services is not more than the annual cost of institutional services.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601 n. 12, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (citing 42 U.S.C. § 1396n(c)). Before Washington may cover the cost of in-home personal care services to participants in a Medicaid waiver program, the state must have made “a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.” Id. § 1396n(c)(1); 42 C.F.R. §§ 435.217, 441.302(c); see also, e.g., Wash. Admin. Code § 388-106-0310(4) (participants in Community Options Program Entry Services (“COPES”) waiver program must “need the level of care provided in a nursing facility”); id. §§ 388-106-0410(4), 388-106-0510(4) (same with respect to participants in Medically Needy Residential Waiver and Medically Needy In-Home Waiver programs); id. § 388-845-0030(2) (developmental^ disabled participants in Home and Community-Based Services waiver programs must need the level of care provided in an intermediate care facility for the mentally retarded). DSHS determines the number of hours of in-home personal services care to which a Medicaid beneficiary is entitled through the Comprehensive Reporting Evaluation (“CARE”). See Wash. Admin. Code § 388-106-0050 to -0145. The Washington Supreme Court has described CARE as follows: In the initial stage of a CARE evaluation, the individual is scored on factors such as an individual’s ability to perform daily activities and an individual’s mental status. The individual is then assigned to 1 of 17 classification groups, each group having a set number of base ... hours associated with it. Once these base hours are established, an assessor individually considers the recipient’s self-performance and the amount of informal support available for the recipient’s activities of daily living (ADL) and instrumental activities of daily living (IADL). The recipient’s level of informal support for each ADL and IADL then reduces the base hours allocated to that recipient by a predetermined percentage. Samantha A. v. Dep’t of Soc. & Health Servs., 171 Wash.2d 623, 256 P.3d 1138, 1140 (2011) (en banc) (internal citation omitted); see also, e.g., Jenkins v. Wash. Dep’t of Soc. & Health Servs., 160 Wash.2d 287, 157 P.3d 388, 389-90 (2007) (en banc). DSHS sets the base monthly hours associated with each classification group by regulation. Wash. Admin. Code § 388-106-0125. DSHS conducts CARE reassessments at least annually, or whenever a beneficiary’s ability to care for himself changes. Id. § 388-106-0050(1). A beneficiary who disagrees with his CARE evaluation may appeal the evaluation in an administrative hearing. Id. § 388-106-1305. A beneficiary who remains dissatisfied with his allocated hours of assistance may request additional hours through an Exception to Rule (“ETR”). Id. § 388-440-0001. DSHS will grant an ETR when “[t]he client’s situation differs from the majority; ... [i]t is in the interest of overall economy and the client’s welfare; and [i]t increases opportunities for the client to function effectively.” Id. § 388-440-0001(l)(b)-(d). Once the CARE evaluation sets the number of hours to which a beneficiary is entitled, the beneficiary and his DSHS case manager work together to design a plan of care that specifies the services that the beneficiary will receive as well as the caregivers who will provide those services. Id. §§ 388-106-0045, 388-106-0130. At all times, a beneficiary has the right to choose where he will receive authorized services (for example, in his home, in a residential facility, or in a nursing home), id. § 388— 106-0030; to “[t]ake part in and have [his] wishes included in planning [his] care,” id. § 388-1061300(13); and to “[e]hoose, fire, or change” his caregiver, id. § 388-106-1300(14). On September 13, 2010, Governor Gregoire issued an executive order stating that because of “the national economic downturn” and “revenues [that] have fallen short of projections,” the state’s general fund was in danger of running a deficit. Exec. Order No. 10-04, Ordering Expenditure Reductions in Allotments of State General Fund Appropriations (Sept. 13, 2010), available at http://www.governor. wa.gov/execorders/eo_10-04.pdf. Governor Gregoire ordered an across-the-board reduction in general fund appropriations to all state agencies, in an amount to be computed by the state’s Office of Financial Management. Id.; see Wash. Rev. Code § 43.88.110(7) (“If at any time during the fiscal period the governor projects a cash deficit in a particular fund or account ... the governor shall make across-the-board reductions in allotments for that particular fund or account so as to prevent a cash deficit.”). The Office of Financial Management, in turn, determined that each state agency would be required to reduce its allotment from the general fund by 6.287 percent. See Office of Fin. Mgmt., Allotment Reduction Instructions for Across-the-Board Cuts Mandated by Executive Order 10-04, at 2 (Sept. 16, 2010), available at http://www.ofin.wa.gov/budget/ instructions/allotment/Allotment_ reduction_instructions091610.pdf. To comply with the governor’s order, DSHS promulgated an emergency regulation that reduced the base monthly hours of in-home personal services care authorized for each CARE classification group, effective January 1, 2011. See Wash. Reg. 11-02-041 (Dec. 30, 2010) (codified at Wash. Admin. Code § 388-106-0125), available at http://apps.leg.wa.gov/documents/ laws/wsr/2011/02/ll-02-041.htm. DSHS applied the lowest percentage reductions to the classification groups composed of the most disabled beneficiaries. See WASH. REV. CODE § 74.09.520(4) (“Any reductions in services made necessary for funding reasons should be accomplished in a manner that assures that priority for maintaining services is given to persons with the greatest need as determined by the assessment of functional disability.”). For example, DSHS reduced the base monthly hours for people in group D High from 277 to 260, a 6.1 percent decrease. Wash. Reg. 11-02-041. By contrast, DSHS reduced the monthly base hours for people in group B Low from 47 to 39, a 17 percent decrease. Id. The average reduction in hours across all groups was about 10 percent. Susan Dreyfus, DSHS’s Director, declared in January 2011 that the reduction in hours would save $19.2 million in the five months then remaining in the 2011 fiscal year. DSHS acknowledged in agency planning documents that “[w]ith reduced hours, in-home clients will have to choose which tasks their employees spend their time on and there may not be enough time to complete all tasks.” Moreover, DSHS anticipated that “[a]t the higher percentage reductions, some needed tasks may not be completed on a regular basis. In some cases, a safe in-home plan of care will not be possible and clients may need to go to community residential or nursing facility settings.” On December 6, 2010, about three weeks before the reduction was to take effect, DSHS mailed notice of the change to beneficiaries. The notice stated that “you will receive fewer personal care hours each month starting January 1, 2011,” set forth the beneficiary’s current and revised monthly hours, and computed the difference. The notice stated that “[t]his notification serves as an amendment to your plan of care. You will need to work with your personal care worker to prioritize tasks within this reduced number of monthly authorized hours.” Finally, the notice explained that DSHS is making this change in response to the Governor’s September 14th Executive Order 10-04 for 6.8% reductions. This was one of a number of changes made across government to address the State’s revenue shortfall. There are no appeal rights for this change through the Office of Administrative Hearings because this is a service change directed by the governor and applies to the entire program. We know these changes may be difficult for you. If you have questions or concerns about changes to your services, please contact your case manager. B. Procedural History On December 23, 2010, Plaintiffs — 14 recipients of in-home personal services care whose hours were reduced, two advocacy organizations, and a union that represents Washington home-care workers — brought suit in federal district court for the Western District of Washington. The 14 individual plaintiffs sued on behalf of a proposed class of “Medicaid-eligible individuals in the State of Washington living at home who were assessed to need personal care services based upon individualized CARE assessments of their needs and who received these Medicaid services in accordance with their assessments] until DSHS reduced their services to below their level of need for budgetary reasons alone.” Plaintiffs alleged that the regulation violated the Americans with Disabilities Act, 42 U.S.C. § 12132, the Rehabilitation Act, 29 U.S.C. § 794(a), due process, and various statutory and regulatory Medicaid requirements. Plaintiffs sought a declaratory judgment, as well as a temporary restraining order and preliminary and permanent injunctions prohibiting DSHS from implementing the regulation. In the alternative, Plaintiffs sought to enjoin the reduction in hours until beneficiaries received individual CARE reassessments, notice of alternative institutional placements, and administrative hearings. The district court denied the motion for a TRO and deferred hearing on the motion for a preliminary injunction. Plaintiffs appealed the denial of the motion for a TRO, prompting the district court to stay proceedings and cancel a scheduled hearing on Plaintiffs’ motion for a preliminary injunction. On appeal, a motions panel of this court stayed implementation of the emergency regulation pending the district court’s disposition of the motion for a preliminary injunction. The panel concluded that denial of the TRO was reviewable “because the district court took the hearing for the motion for preliminary injunction off calendar,” making denial of the TRO “tantamount for present purposes to the denial of a motion for a preliminary injunction.” On the merits, the panel determined that a stay pending a hearing on the motion for a preliminary injunction was justified because “[n]o other relief is available that will remedy the irreparable injury which continues to occur pending such hearing.” On remand, the district court denied Plaintiffs’ motion for a preliminary injunction. The court determined that Plaintiffs failed to satisfy any prong of Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). According to the court, Plaintiffs did not demonstrate a likelihood of irreparable injury because they “failed to submit evidence that the reduction will deny beneficiaries needed services, or that it will create a serious risk of institutionalization.” Nor, in the view of the court, were Plaintiffs likely to succeed on the merits. Plaintiffs were unlikely to prevail on their ADA/Rehabilitation Act claim because “the State’s budget reduction does not leave individuals with no choice [but] to submit to institutional care to obtain needed services” and because “it is likely that requiring the State to continue current funding levels for personal care services indefinitely would constitute a fundamental alteration in the State’s Medicaid program.” Implementation of the emergency regulation did not violate due process because “Medicaid recipients are not entitled to notice and a hearing when the State implements a mass change that affects ... all recipients.” The court rejected Plaintiffs’ Medicaid claims by adopting the reasoning of its order denying Plaintiffs’ motion for a TRO. Finally, the balance of hardships and the public interest favored DSHS because the challenged reductions “do not involve medical care.” The court conceded that “a few of the plaintiffs” might “ultimately require institutionalization as a result of the State’s reduction in services.” However, the court found “the possible threat of institutionalization for a few personal care service beneficiaries” outweighed by “the State’s interest in balancing the competing needs of a host of different state-sponsored social service programs that currently provide aid to a diverse group of medically and financially disadvantaged state residents.” Plaintiffs appealed. II. Standard of Review We review the denial of a preliminary injunction for abuse of discretion. Alliance for the Wild Rockies, 632 F.3d at 1131. A district court abuses its discretion if it bases its decision “on an erroneous legal standard or clearly erroneous findings of fact.” Id. (quoting Lands Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc)). We review a district court’s legal conclusions de novo and its factual findings for clear error. Id. (quoting Lands Council, 537 F.3d at 986-87). In doing so, “we first look to whether the trial court identified and applied the correct legal rule to the relief requested. Second, we look to whether the trial court’s resolution ... resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009) (en banc). To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20, 129 S.Ct. 365. A preliminary injunction is proper if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest. Alliance for the Wild Rockies, 632 F.3d at 1131-32. III. Discussion For the reasons that follow, we conclude that the district court abused its discretion in denying the motion for a preliminary injunction under the standard articulated in Alliance for the Wild Rockies. We reach only Plaintiffs’ claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. A. Irreparable Injury The 12 named Plaintiffs remaining in this litigation submitted substantial evidence that the emergency regulation threatens them with a serious risk of institutionalization. DSHS contested this evidence as to some named Plaintiffs, but as to others it offered either unsubstantiated and conclusory responses or no responses at all. The district court rejected Plaintiffs’ showing by relying on three general rationales. It wrote that Plaintiffs “fail to show a threat of harm because they (1) ascribe the threat of institutionalization to [their] deteriorating medical conditions, unrelated to the provision of personal care services hours; (2) demonstrate ineffective management of currently allocated personal care services hours; or (3) identify non-personal care services as the cause of their predicted institutionalization.” We conclude that the district court did not sufficiently consider individualized evidence that the named Plaintiffs were likely to suffer irreparable injury. We describe three Plaintiffs whose situations illustrate the inadequacy of DSHS’s responses, as well as the inadequacy of the general rationales, to counteract Plaintiffs’ showing of a likelihood of irreparable injury. 1. M.R. Lead plaintiff M.R., a 37-year-old woman, suffers from severe mental retardation, daily grand and petite mal seizures, scoliosis, cerebral palsy, hypothyroidism, and mood disorder. M.R. lives with her mother, a registered nurse, who provides personal care services. M.R.’s mother assists her with almost all basic activities of daily life, including eating, toilet care, bathing, dressing, medication management, and moving from place to place. She prepares all of M.R.’s meals and feeds M.R. through a tube when she refuses to eat. M.R.’s feeding tube “requires extensive maintenance because the tube was inserted too low and has a tendency to ooze and become infected, and because [M.R.] has a tendency to grab and pull on it.” M.R. is incontinent, wears adult diapers, and cannot use the toilet or clean herself without assistance. “Frequently,” M.R. “has accidents” and “[a]s a result of incontinence, ... must bathe at least twice a day to remove urine and sometimes feces.” M.R. likes to choose her own clothing, but needs her mother’s assistance to dress and undress herself. Because of her scoliosis and cerebral palsy, M.R. “requires assistance for walking, ... is unsteady on her feet, ... has poor balance and unequal leg length, and her knees buckle.” M.R.’s mother administers her numerous prescription medications through her feeding tube several times a day. M.R. participates in a Medicaid waiver program administered by DSHS’s Division of Developmental Disabilities. That is, M.R. is eligible for full-time institutional care, see 42 U.S.C. § 1396n(c)(1), Wash. Admin. Code § 388-845-0005, but M.R.’s mother has chosen to care for her at home “because her extensive personal care and medical needs are best served at home.... M.R. loves the independence she is afforded by living at home to set her own schedule, do puzzles, color or trace letters, and spend time with [her mother] playing with beads or sorting coins.” M.R.’s CARE assessment assigned her to group D Medium-High, a designation that entitled her to 286 hours of in-home personal care services per month. As is true of many family providers of personal care services, M.R.’s mother provides more than 236 hours of care per month; the additional hours go uncompensated. The e