2011 U. S. App. Lexis 24986, 1 of 1 document

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Olmstead, 527 U.S. at 598 (citation, alteration and internal quotation marks omitted) (emphasis added).

The fact that the district [*67] court elected not to defer to the DOJ's bald, unreasoned statement did not run afoul of the Supreme Court's permissive view of the deference owed to the DOJ's interpretation of the integration regulation.

Because I conclude that the plaintiffs have not raised serious questions going to the merits of their claim, and because the district court committed no clear error in finding a lack of irreparable harm, I would affirm the district court's denial of injunctive relief on those bases. However, I also note that Olmstead contains language supporting the district court's determination that granting the relief requested by Plaintiffs would likely constitute a fundamental alteration of the State's plan. See Olmstead, 27 U.S. at 597 ("In evaluating a State's fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with . . . disabilities, and the State's obligation to mete out those services equitably."). This same rationale supports the district court's determination that the public interest favors permitting [*68] the State to equitably balance the needs of all persons who are served by the Medicaid program rather than requiring the State to accommodate the needs of a discrete subset of that population at the expense of others in need.

Keeping in mind our limited scope of review and the deference owed to the district court's factual findings, I do not agree that the district court abused its discretion when it denied the requested preliminary injunction. Therefore, I respectfully dissent from the majority opinion.

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