Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page1 of 24

1

UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

OAKLAND DIVISION

4 LILLIE BRANTLEY, by her guardian ad litem
5 Chauncey McLorin; GILDA GARCIA; ALLIE JO WOODARD, by her guardian ad litem Linda
6 Gaspard-Berry, individually and on behalf of all other similarly situated,
7 Plaintiffs,
8 vs.
9 DAVID MAXWELL-JOLLY, Director of the
10 Department of Health Care Services, State of California, DEPARTMENT OF HEALTH
11 CARE SERVICES,

Case No: C 09-3798 SBA
ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Docket 14, 25

12

Defendants.

13

14

Plaintiffs are elderly persons and adults with disabilities who bring this class action suit

15 against Defendants California Department of Health Care Services and its Director

16 (Defendants) to stop funding cuts in the Medi-Cal Adult Day Health Care (ADHC) program.

17 ADHC is a community-based program for low income seniors and younger disabled adults that

18 provides health care and other services at centers located throughout California. As a result of

19 the state’s current fiscal crisis, the state legislature enacted Assembly Bill ABX4 5 as part of

20 the Budget Act of 2009, which will temporarily reduce ADHC services from a maximum of

21 five to three days per week. Plaintiffs allege that this reduction will place them along with

22 putative Class Members at risk of hospitalization and/or institutionalization in violation of Title

23 II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et seq., and Section 504

24 of the Rehabilitation Act, 29 U.S.C. § 794, et seq.

25

The parties are presently before the Court on Plaintiffs’ motion to preliminarily enjoin

26 Defendants from reducing, terminating or modifying ADHC program benefits to the Plaintiffs

27 and Class Members from four or five days per week, to a maximum of three days per week,

28 pursuant to ABX4 5, unless and until alternate Medi-Cal services are provided, including

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1 through reasonable modifications to the program, which prevent inappropriate

2 institutionalization in violation of their rights under the ADA and Section 504. On September

3 9, 2009, the Court conducted an extensive hearing on the motion. Having read the papers

4 submitted and considered the arguments of counsel, the Court hereby GRANTS Plaintiffs’

5 motion for preliminary injunction.

6 I. BACKGROUND

7

A. BACKGROUND OF THE ADHC PROGRAM

8

ADHC is a Medi-Cal funded community-based program for low income seniors and

9 younger disabled adults.1 More specifically, ADHC is an organized day care program that

10 includes therapeutic, social and skilled nursing health activities for the purpose of restoring or

11 maintaining optimal capacity for self care. Peach Decl. ¶ 3. ADHC services are administered

12 by non-profit and for profit providers which are licensed by the state, and operate centers

13 throughout the state. Individuals who live at home or in licensed residential care facilities

14 participate from one to five days per week (for a period of four hours per day), depending on

15 their assessed needs. While the majority of persons served are elderly, ADHC centers also

16 serve non-elderly adults with chronic disabling mental health, cognitive or physical conditions.

17

Individuals wishing to receive ADHC services must obtain their medical history and

18 physical information from their personal physician (if they have one) and participate in a three-

19 day assessment performed by a multi-disciplinary team of clinicians including physicians,

20 registered nurses, social workers, physical therapists, recreational therapists and dieticians,

21 among others. Missaelides Decl. ¶ 22. The multidisciplinary team designs an Individual Plan

22 of Care (IPC) that specifies the types of services the applicant requires and the amount of time

23

24 1 Medicaid is a cooperative federal-state program that authorizes the federal government to
25 provide funds to participating states to administer medical assistance to individuals “whose income
and resources are insufficient to meet the costs of necessary medical services.” 42 U.S.C. § 1396. 26 The program authorizes the government to pay a percentage of the costs incurred by a participating
state for patient care, provided that the state complies with certain federal requirements. 42 U.S.C. 27 § 1396a. California participates in Medicaid through the California Medical Assistance Program
(Medi-Cal), and has designated its Department of Health Care Services as the agency responsible 28 for its administration. Cal. Welf. & Inst.Code §§ 10720, 14000.

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1 each week those services are necessary, which is then sent for review to the Medi-Cal field

2 office with a Treatment Authorization Request. Id.

3

The IPC includes a number of certifications. One of those certifications, identified as

4 Medical Necessity Criterion #5, finds that: “The participant’s condition or conditions require

5 all of the ADHC services set forth in boxes 20-23 on each day of attendance that are

6 individualized and designed to maintain the ability of the participant to remain in the

7 community and avoid emergency department visits, hospitalizations, or other

8 institutionalization.” Davis Decl., Exh. A at 5 (emphasis in original). The IPC also certifies

9 that the participant meets the criteria for services, including a determination that if services are

10 not provided, “a high potential exists for the deterioration of the participant’s medical,

11 cognitive, or mental health condition or conditions in a manner likely to result in emergency

12 department visits, hospitalization, or other institutionalization if adult day care services are not

13 provided.” Cal. Welf. & Inst. Code § 14526.1(d)(4); Davis Decl. ¶ 18, McCloud Decl. ¶ 17,

14 Toth Decl. ¶ 13, Puckett Decl. ¶ 12, Myers Purkey Decl. ¶ 17. The IPC must be reapproved

15 every six months by Medi-Cal, at which point the ADHC center reassesses the participant and

16 revises the IPC, if necessary. Missalaedes Decl. ¶ 23.

17

B. FACTS RELATING TO PLAINTIFFS

18

1. Lillie Brantley

19

Lillie Brantley is an 84-year old woman severely impaired by Alzheimer’s disease and

20 inflicted with hyperlipidemia, seizure disorder, atrial fibrillation, has had a stroke, and is frail.

21 Davis Decl. ¶ 28; McLorin Decl. ¶ 3. For the last three years, she has been receiving services

22 through the Bayview Hunter’s Point ADHC program in San Francisco, California. McLorin

23 Decl. ¶ 4. She is authorized to receive Medi-Cal funded ADHC services five days a week.

24 Davis Decl. ¶¶ 26, 30. In accordance with her IPC, Ms. Brantley receives: daily professional

25 nursing services to monitor her hypertension, monitor and control her seizures and monitor her

26 weight loss; daily personal care services to assist with her feeding, toileting, and ambulation, as

27 well as to monitor her whereabouts; daily social services to improve her mood and behaviors,

28 which relate to her dementia; semi-weekly physical therapy maintenance to reduce her risk for

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1 falls and to maintain her current functioning; semi-weekly occupational therapy services to

2 maintain her functional strength; and nutritional monitoring in connection with her

3 hypertension and her recent weight loss. Id. ¶ 30.

4

In addition to attending and receiving services at the ADHC program five days per

5 week, she receives 283 hours of In-Home Supportive Services (IHSS), including protective

6 care, through the Medi-Cal program, which is her limit. Id. ¶ 10. Ms. Brantley can never be

7 left alone, given her cognitive and health impairments. McLorin Decl. ¶ 6. She lives with her

8 great niece Chauncey McLorin and Ms. McLorin’s 15-year old daughter. Id. ¶ 3. If Ms.

9 Brantley is unable to receive services from the ADHC center five days a week, there are no

10 persons or services readily available to fill that void. Id. ¶ 8. Ms. McLorin lacks funds to pay

11 for private care and cannot afford to quit her full-time job. Id. ¶ 10, 16-17. As a result, a

12 reduction in ADHC services will result in Ms. Brantley’s institutionalization. Steinke Decl. ¶¶

13 18-22; Davis Decl. ¶ 32; McLorin Decl. ¶ 16.

14

2. Allie Woodard

15

Allie Jo Woodard is a 79-year old woman who has been diagnosed with bipolar

16 affective disorder, depression, diabetes, glaucoma, hypertension, and osteoarthritis. Davis

17 Decl. ¶ 21. Like Ms. Brantley, she receives services from the Bayview Hunter’s Point ADHC

18 program, where she has gone for nine years. Gaspard Berry Decl. ¶ 4. She is authorized to

19 receive Medi-Cal funded ADHC services five days a week. Id.

20

Consistent with her IPC, Ms. Woodard receives: daily professional nursing services to

21 monitor her hypertension, fall risk and pain and mobility issues related to her arthritis; daily

22 personal care services to monitor her exertion level to prevent cardiac compromise; daily social

23 services in the form of group activities intended to prevent psychiatric hospitalization; weekly

24 psychological counseling, and daily monitoring by a program social worker for reality

25 reorientations; ongoing therapeutic activities to monitor and improve her socialization and 26 improve her interactions with peers; and semi-weekly occupational therapy services for 27 maintaining her functional strength. Davis Decl. ¶ 22. Ms. Woodard’s disability has rendered 28 her very fragile both emotionally and physically, resulting in frequent psychiatric

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1 hospitalizations. Gaspard-Berry Decl. ¶ 9; Davis Decl. ¶ 23. She is also at risk of falling, and

2 requires constant physical and verbal cueing to use her walker. Id.

3

Ms. Woodard lives alone; however, she may never be left alone because her mental

4 impairments place her at risk of wandering. Gaspard-Berry ¶ 6. A few years ago, she was

5 missing for two full days. Id. Ms. Woodard currently receives 283 IHSS hours of service,

6 which is the maximum available. Id. ¶ 5. In addition, her daughter and son rotate spending the

7 night with her. Id. ¶ 7. On weekends, her daughter Linda Gaspard-Berry brings Ms. Woodard

8 to her home in Fremont. Id. ¶ 7. Ms. Woodard will be institutionalized if she is unable to

9 receive the services provided by the ADHC five days a week or receive some appropriate

10 alternative services, as both Ms. Gaspard-Berry and her brother work full-time and cannot

11 afford to quit their jobs to care for their mother. Gaspard-Berry Decl. ¶ 16-17; Davis Decl.

12 ¶ 25; Steinke Decl. ¶¶ 18-21, 24.

13

3. Gilda Garcia

14

The third Plaintiff, Gilda Garcia, is a 77 year-old woman who lives alone in a one-

15 bedroom apartment in San Francisco. Garcia Decl. ¶ 3. She suffers from unstable diabetes,

16 hypertension, Bells’ Palsy, and kidney problems. McCloud Decl. ¶ 21. Ms. Garcia was

17 diagnosed with diabetes in 1995, and must take insulin four times a day to control her blood

18 sugar, along with other medications for conditions such as hypertension. Garcia Decl. ¶¶ 3, 5.

19 Depending on her blood sugar levels, Ms. Garcia’s condition can interfere with her vision and

20 mobility. Id. ¶ 3.

21

Ms. Garcia is highly dependent on the ADHC for medical stability and preventing

22 isolation and depression. Since 2004, Ms. Garcia has received services from the Institute on

23 Aging Adult Day Health Care Center (Institute on Aging) on a daily basis. Id. ¶¶ 6-7. In

24 addition to participating in the activities at the center, Ms. Garcia is treated by the nurses who

25 help her monitor her diabetes. Id. ¶¶ 8-10. An IHSS worker assists Ms. Garcia with activities

26 such as laundry, shopping, housework and meal preparation. Id. ¶ 14. However, the worker

27 only visits her for one hour, once per week. Id. The professional opinion of the nurse at the

28

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1 program is that it is crucial for Ms. Garcia to attend the center five days per week to prevent

2 emergency room visits and hospitalization. Perelman Decl. ¶¶ 14, 15; Garcia Decl. ¶ 18.

3

In accordance with her IPC at the Institute on Aging ADHC program, Ms. Garcia

4 receives: daily professional nursing services to monitor her for hypoglycemic reactions and to

5 monitor her joint and back pain; daily personal care services to supervise her ambulation and

6 prevent falls attributable to her poor vision and impulse control; daily social services to

7 increase her opportunities for socialization and on an as needed basis to help her coordinate her

8 IHSS and other social services; daily therapeutic activities to increase physical activity, leisure

9 and cognitive opportunities; physical therapy maintenance program three days per week to

10 maintain her endurance and physical strength; semi-weekly occupational therapy maintenance

11 program to maintain her current levels of functioning; and registered dietician services to

12 ensure she understands the importance of maintaining a diabetic diet. McCloud Decl. ¶ 24,

13 Exh. B.

14

Ms. Garcia lives alone, and receives limited IHSS services. She is dependent on the

15 socialization provided by the ADHC program. In addition, Ms. Garcia is protected from

16 isolation and depression by attending ADHC five days per week. Ms. Garcia will face

17 destabilization of her diabetes, and the risks that this condition poses, including a heightened

18 risk of falls and vision impairments. McCloud Decl. ¶ 24. Without five days per week of

19 ADHC services, she is at risk for hospitalization and/or institutionalization. McCloud Decl. ¶¶

20 25-27; Steinke Decl. ¶ 18-21, 23; Garcia Decl. ¶¶ 7, 8, 9, 16, 18; Steinke Decl. ¶¶ 18-21, 24.

21

C. ASSEMBLY BILL ABX4 5

22

On July 28, 2009, the California Legislature enacted Assemby Bill ABX4 5, which

23 include amendments to Welfare and Institutions Code section 14132(p) regarding ADHC

24 services. The new law, which will take effect on or about September 10, 2009, temporarily

25 reduces the maximum ADHC benefit to three days per week for all Medi-Cal beneficiaries.

26 Cal. Welf. & Inst. § 14132(p)(2). In addition, the bill imposes new restrictions limiting

27 eligibility for ADHC services and will go into effect if and when the Director of California

28 Department of Health Care Services provides a written declaration that the new restrictions are

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1 ready to be implemented. Cal. Welf. & Inst. Code § 14521.1. Once new eligibility criteria are

2 developed, the maximum ADHC benefit will return to five days per week. Bailey Decl. ¶ 3.

3 These new restrictions will terminate or deny ADHC services to individuals based on the

4 degree of their functional limitation and need for a certain level of care. See Compl. ¶ 48.

5

For those participants who will be affected by the benefit reduction, Defendants

6 anticipate reliance on alternative programs to fill the void created by the elimination of ADHC

7 services. Muchmore Decl. ¶ 13. The burden of identifying and accessing these unspecified

8 alternative services will be on the participant and his or her caregiver with the assistance of the

9 ADHC center. Id. Each of these alternative services, whether offered through Medi-Cal or by

10 some other source, has its own unique eligibility criteria that must be satisfied before the

11 participant receives authorization. Id. Eligibility for ADHC services does not automatically

12 confer eligibility or authorization for any of these alternative services. Id. In addition, at the

13 hearing on the instant motion, the parties acknowledged that there is no mechanism to ensure

14 that upon the reduction of ADHC benefits that the alternative services will be identified and in

15 place to ensure that Plaintiffs and class members will not suffer any gap in the services

16 required by their respective IPCs.

17

D. PROCEDURAL HISTORY

18

Plaintiffs commenced the instant action on August 18, 2009. The Complaint alleges six

19 claims for relief: (1) violation of the ADA; (2) violation of Section 504 of the Rehabilitation

20 Act; (3) violation of procedural due process under 42 U.S.C. section 1983: (4) violation of the

21 Medicaid Act; (5) violation of Medicaid comparability requirement; and (6) violation of

22 California Government Code sections 11135 and 11139. Plaintiffs purport to bring this action

23 on behalf of “all recipients of Medi-Cal in the State of California who receive Adult Day

24 Health Care Services whose Adult Day Health Care Benefits will be limited, cut, or terminated

25 under the provisions of ABX4 5.” Compl. ¶ 109. Plaintiffs also allege two subclasses. The

26 “Limitation of Benefits Subclass” consists of Medi-Cal beneficiaries who have been authorized

27 to receive four to five days of ADHC services, whose services will be reduced to three days

28 under ABX4 5. Id. ¶ 110(a). The “Termination of Benefits Subclass” includes past and future

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1 Medi-Cal recipients whose ADHC services will be terminated once the DHCS implements new

2 classification standards. Id. ¶ 110(b).

3

On August 24, 2009, Plaintiffs filed a Motion for a Temporary Restraining Order and

4 Order to Show Cause (Motion for TRO). Plaintiffs filed their Motion for TRO, anticipating

5 that the reduction in ADHC services would take effect on August 27, 2009. Upon learning that

6 the change would not transpire until the week of September 7, 2009, Plaintiffs superseded their

7 Motion for TRO with a Motion for Preliminary Injunction on August 26, 2009. In their

8 motion, Plaintiffs request an order:

9

(a) Enjoining and prohibiting Defendants Director David Maxwell-

Jolly and the Dept. of Health Care Services, and successors, agents,

10

officers, servants, employees, attorneys and representatives and all

persons acting in concert or participating with Defendants, from

11

implementing or enforcing ABX4 5 or engaging in the following

actions until this Court rules on a permanent injunction:

12

Reducing, terminating or modifying Medi-Cal Adult Day Health

13

Care (ADHC) program benefits to the Plaintiffs and Class Members from 4 or 5 days per week, to a maximum of 3 days per week,

14

pursuant to ABX4 5, in violation of their rights under the ADA, Section 504, the Due Process clause of the Constitution, and the

15

Medicaid Act.

Reducing, terminating or modifying Medi-Cal Adult Day Health

16

Care (ADHC) program benefits to the Plaintiffs and Class Members

from 4 or 5 days per week, to a maximum of 3 days per week,

17

pursuant to ABX4 5, unless and until alternate Medi-Cal services are

provided, including through reasonable modifications to the program,

18

which prevent inappropriate institutionalization in violation of their

rights under the ADA and Section 504.

19

(b) Enjoining and prohibiting Defendant Director David Maxwell-

20

Jolly and his successors, agents, officers, servants, employees, attorneys and representatives and all persons acting in concert or

21

participating with Defendants, from implementing or enforcing ABX4 5 or engaging in the following actions until this Court rules on

22

a permanent injunction:

Reducing, terminating or modifying Medi-Cal Adult Day Health

23

Care (ADHC) program benefits to the Plaintiffs and Class Members

from 4 or 5 days per week, to a maximum of 3 days per week,

24

pursuant to ABX4 5, until and unless Plaintiffs and Members are

afforded notice and a right to a hearing regarding alternate Medi-Cal

25

services which meet their medical needs as currently provided

through ADHC services in violation of their rights under the Due

26

Process clause of the Constitution, and the Medicaid Act.

27 Pls.’ Mot. at 1-2.

28

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1

The Court set a briefing schedule for the filing of Defendants’ opposition and Plaintiffs’

2 reply, which were filed on September 1 and September 3, 2009, respectively. The parties

3 appeared before the Court on September 9, 2009 for oral argument on the motion.

4 II. LEGAL STANDARD

5

The decision of whether to grant or deny a motion for preliminary injunction is a matter

6 of the district court’s discretion. Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d

7 1046, 1052 (9th Cir. 2009). The standard for assessing a motion for preliminary injunction is

8 set forth in Winter v. Natural Res. Def. Council, Inc., ---U.S. ---, 129 S.Ct. 365, 376 (2008).

9 “Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are

10 likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of

11 preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary

12 injunction is in the public interest.” Sierra Forest Legacy v. Rey, --- F.3d ---, 2009 WL

13 2462216 at *3 (9th Cir. Aug. 13, 2009).

14 III. DISCUSSION

15

A. LIKELIHOOD OF SUCCESS ON THE MERITS

16

1. ADA and Rehabilitation Act Claims

17

a) Violation of the Integration Mandate

18

The ADA was enacted in 1990 to “provide a clear and comprehensive national mandate

19 for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.

20 § 12101(b)(1).2 Title II of the ADA prohibits discrimination in access to public services by

21 requiring that “no qualified individual with a disability shall, by reason of such disability, be

22 excluded from participation in or be denied the benefits of the services, programs, or activities

23 of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

24

25

2 Plaintiffs’ first and second claims are for discrimination under Title II of the ADA and

Section 504 of the Rehabilitation Act, respectively. The Court’s analysis of the ADA applies

26 equally to both claims. Martin v. California Dept. of Veterans Affairs, 560 F.3d 1042, 1047

n.7 (9th Cir. 2009) (“Because ‘[t]here is no significant difference in analysis of the rights and

27 obligations created by the ADA and the Rehabilitation Act,’ we have consistently applied ‘the

same analysis to claims brought under both statutes,’”) (quoting in part Zukle v. Regents of

28 Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999)).

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1 The Ninth Circuit has counseled that “the ADA must be construed broadly in order to

2 effectively implement the ADA’s fundamental purpose of providing a clear and comprehensive

3 national mandate for the elimination of discrimination against individuals with disabilities.”

4 Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002) (quotation marks and

5 alteration omitted).

6

One form of disability discrimination is a violation of the ADA’s “integration mandate.”

7 See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 592, 600-601 (1999); Townsend v.

8 Quasim, 328 F.3d 511, 515-18 (9th Cir. 2003). This mandate, which is embodied within the

9 ADA and its implementing regulations, specifies that persons with disabilities receive services

10 in the “most integrated setting appropriate to their needs.” 28 C.F.R. § 35.130(d) (“[a] public

11 entity shall administer services, programs, and activities in the most integrated setting

12 appropriate to the needs of qualified individuals with disabilities.”); see 42 U.S.C.

13 § 12182(b)(1)(B). The “most integrated setting” is defined as “a setting that enables

14 individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”

15 28 C.F.R. pt. 35 app. A; Olmstead, 527 U.S. at 592. This mandate “serves one of the principal

16 purposes of Title II of the ADA: ending the isolation and segregation of disabled persons.” Arc

17 of Wash. State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005).

18

To state a claim under Title II of the ADA based on a violation of the integration

19 mandate, the plaintiff must plead and prove that he or she: (1) is a “qualified individual with a

20 disability”; (2) was either excluded from participation in or denied the benefits of a public

21 entity’s services, programs, or activities or was otherwise discriminated against by the public

22 entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his

23

24

25

26

27

28

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1 disability. See Townsend, 328 F.3d at 517.3 A state’s failure to provide services to a qualified

2 person in a community-based setting as opposed to a nursing home presents a violation of Title

3 II of the ADA. See id. at 517; Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181-82

4 (10th Cir. 2003) (imposition of cap on prescription medications placed on participants in

5 community-based program at high risk for premature entry into nursing homes in violation of

6 the ADA).

7

Defendants argue that the proposed cut in ADHC services does not violate the

8 integration mandate because Plaintiffs have not demonstrated that the loss of two days of

9 ADHC services will result in their institutionalization. In particular, they argue that in order to

10 state a Title II violation, Plaintiffs must show that the program reduction leaves them “no

11 choice” other than to be institutionalized in the event their ADHC services are limited to three

12 days—and that Plaintiffs have not made such a showing. Defs.’ Opp’n at 7.4 Defendants fail

13 to cite any relevant authority imposing a “no choice” requirement. Rather, cases involving

14 ADA integration claims have recognized that the risk of institutionalization is sufficient to

15 demonstrate a violation of Title II. See Fisher, 335 F.3d at 1184 (holding that Medicaid

16 participants not currently institutionalized but at “high risk for premature entry into a nursing

17 home” could bring claim for violation of the integration mandate); Mental Disability Law

18 Clinic v. Hogan, 2008 WL 4104460 at *15 (E.D.N.Y. Aug. 28, 2008) (“even the risk of

19 unjustified segregation may be sufficient under Olmstead”) .

20

21 3 Plaintiffs’ motion recites the test set forth in Olmstead which requires a showing that
22 (1) the state’s treatment professionals have determined that community-based services are appropriate, (2) the disabled individual does not oppose treatment, and (3) the provision of
23 community-based services can be reasonably accommodated, taking into account the resources available to the state and the needs of other disabled individuals. 527 U.S. at 587.
24 Nevertheless, in Townsend, the Ninth Circuit analyzed the plaintiffs’ integration mandate claim under the traditional test applicable to ADA claims brought under Title II. E.g., Martin v.
25 California Dept. of Veterans Affairs, 560 F.3d 1042, 1047 (9th Cir. 2009). Plaintiffs have made a sufficient showing under either formulation.
26 4 Defendants do not frame their argument in the context of the test set forth in
27 Townsend. Based on the substance of their arguments, however, it appears that they are focusing on the second element of the test, i.e., whether Plaintiffs were excluded from or
28 denied benefits. See Defs.’ Opp’n at 6-9.

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1

The above notwithstanding, Plaintiffs have sufficiently demonstrated for purposes of the

2 instant motion that the proposed reduction in ADHC services will place them at serious risk of

3 institutionalization. As an initial matter, Plaintiffs’ respective IPCs specify that each of them

4 requires five days of ADHC care per week. Davis Decl., Exhs. B, C; McCloud Decl., Exh. B.

5 The IPC, which is prepared by a multidisciplinary team including medical and health care

6 professionals following a three-day comprehensive assessment process, certifies that the

7 participants’ conditions “require” that they receive care “each day” that is specified. Id. (Item

8 19). In addition, the IPC includes a determination that the participant has been “determined to

9 have a high potential for the determination of their medical, cognitive, or mental health

10 condition or conditions in a manner likely to result in emergency department visits,

11 hospitalization, or other institutionalization if ADHC services are not provided.” McCloud

12 Decl. ¶ 17 (emphasis added).5 Notably, these IPCs are reviewed and approved by Medi-Cal

13 before any services are rendered. Davis Decl. ¶ 14; McCloud Decl. ¶ 13.

14

Moreover, Plaintiffs have proffered evidence that reducing ADHC services from five to

15 three days per week poses serious risks that they will be transferred to a nursing or other

16 skilled-care facility. For example, Ms. Brantley is 84 years-old, and is severely impaired by

17 Alzheimer’s disease and dementia. McLorin Decl. ¶ 3. She cannot perform basic necessities

18 such as bathing, using the bathroom or obtaining her medication on her own, and she cannot be

19 left alone. Id. ¶¶ 5-6. Ms. Brantley’s great niece, who works full-time and is raising a family,

20 is only able to keep Ms. Brantley in her home because ADHC services are provided five days

21 per week. Id. ¶¶ 8-10. Her caregiver, the Program Director of the ADHC center from which

22 she receives services and Plaintiffs’ well-qualified expert, Dr. Steinke, have concluded that if

23

24

25

26

27 5 This requirement for approval is set forth in California Welfare and Institutions Code
28 section 14526.1(d)(5).

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1 ADHC services are reduced, Ms. Brantley faces institutionalization. McLorin Decl. ¶ 10, 16-

2 17; Steinke Decl. ¶¶ 18-22; Davis Decl. ¶ 32.6

3

Ms. Allie Jo Woodard, who is 79 years-old and lives with her daughter Linda Gaspard-

4 Berry on weekends and some weeknights, suffers from bipolar affective disorder, depression,

5 diabetes, glaucoma, hypertension and osteoarthritis. Gaspard-Berry Decl. ¶¶ 3, 7-8. Like Ms.

6 Brantley, Ms. Woodard cannot be left unattended and she requires assistance and relies on Ms.

7 Gaspard-Berry and her brother for bathing, toileting, shopping and managing her medications.

8 Id. ¶¶ 5-7. Ms. Gaspard-Berry and her brother both work full-time and take turns watching Ms.

9 Woodard when she is not with her IHSS worker or at the ADHC center from which she

10 received daily services for the last nine years. Id. ¶ 4. Neither Ms. Gaspard-Berry nor her

11 brother is in a position to quit their jobs to take care of their mother in the absence of daily

12 ADHC services or alternative replacement services. Id. ¶¶ 16-17. In addition, neither can

13 afford private in-home care. Id. ¶ 15. As a result, any reduction of ADHC services would

14 necessitate Ms. Woodard’s placement in an out-of-home facility. Id. ¶ 16.

15

The risk of institutionalization as to Ms. Brantley and Woodard posed by the ADHC

16 service reduction is further supported by evidence provided by Catherine Davis, the Program

17 Director of the Bayview Hunter’s Point Adult Health Care Program, the ADHC center used by

18 Ms. Brantley and Ms. Woodard. Davis Decl. ¶ 3. The center serves approximately 100 seniors

19 and younger individuals with disabilities, all of whom live at the poverty level or below. Id. ¶

20 9. Of the 100 participants, 44 of them have Medi-Cal approved IPCs certifying a need for four

21 to five days per week of attendance to avoid institutionalization. Id. ¶ 19. With regard to Ms.

22 Brantley and Ms. Woodard, Ms. Davis confirms that the center provides them with critical and

23 extensive physical and mental health support. Id. ¶¶ 21-32. Ms. Davis opines that without the

24 center’s support five days per week, both individuals will require placement in a nursing home

25 6 At the hearing on the motion, Defendants posited that the 283 hours of monthly IHSS
26 services received by Ms. Brantley could be rearranged and coordinated with her great niece’s
schedule to counter the loss of ADHC services. However, IHSS services are unskilled and are not 27 a substitute for skilled services provided by her ADHC center. Supp. Steinke Decl. ¶ 9. In
addition, as noted, the IPC specifies that her conditions necessitate the provision of service on each 28 of the five days specified therein.

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page14 of 24

1 or other institution. Id. ¶¶ 25, 32. Plaintiffs’ expert, Dr. Steinke, concurs with that opinion.

2 Steinke Decl. ¶¶ 22, 24.7

3

The third named Plaintiff, Gilda Garcia, also faces the risk of hospitalization in the

4 event her five days of ADHC services are reduced to three. Steinke Decl. ¶ 23; McCloud Decl.

5 ¶ 29; Perelman Decl. ¶ 14. Ms. Garcia, who is 77 years-old, has suffered from unstable

6 diabetes since 1995. Garcia Decl. ¶ 3. Since 2004, she has received services from the Institute

7 on Aging ADHC center. Id. ¶ 6. Though Ms. Garcia’s condition is not as severe as the other

8 Plaintiffs, the provision of ADHC services as prescribed by her IPC is critical to her ability to

9 live independently. Steinke Decl. ¶ 23. A reduction in those services would place her at high

10 risk of hospitalization and/or institutionalization, where her condition would likely deteriorate

11 rapidly. Id.

12

It also is apparent that the risk of institutionalization is likely to be suffered by putative

13 Class Members, as well as the named Plaintiffs. For example, Ilene McKay suffers from a host

14 of maladies including uncontrolled diabetes, schizophrenia, hypertension, amputation and

15 hyperlipidemia (high lipid level in bloodstream). Supp. Zirker Decl. Exh. A. She requires

16 services five days per week consisting of professional nursing care for diabetic complications,

17 related skin problems, ambulation using a prosthetic device, along with specialized meal

18 preparation, social services. Id. Wilrene Lamar suffers from depression, cirrhosis of the liver,

19 and bladder issues, among other conditions. Id. Exh. B. Likewise, Charles Peterson suffers

20 from joint disease, blindness, hypertension, urinary issues and depression. Id. Exh. C. Both

21 individuals receive a variety of skilled services, five days per week, that are intended to address

22 their specific conditions.

23

24 7 Defendants claim that the only reason proffered by Dr. Steinke that Ms. Brantley is at risk
25 of institutionalization is that she cannot be left alone. Defendants contend that supplemental IHSS
services could be used in place of the eliminated ADHC services. However, Dr. Steinke’s opinion 26 is not isolated to paragraph 22 of his declaration, and must be viewed in tandem with his entire
declaration in which he renders opinions regarding the serious detriment that would result from 27 eliminating two days of services. In addition, Defendants ignore other evidence in the record,
including Ms. Brantley’s IPC and the opinion of the director of the ADHC center that provides her 28 services.

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page15 of 24

1

In addition to evidence specific to Plaintiffs and putative Class Members, Plaintiffs have

2 proffered evidence supporting their conclusion that the harm likely to result from the reduction

3 in ADHD services will be experienced by similarly situated class members. Ms. Davis and her

4 staff analyzed the needs of other participants who receive services from the center four to five

5 days per week and reached the conclusion that 22 of them face “imminent risk of

6 institutionalization, hospitalization, or death” if the maximum ADHC benefit were limited to

7 three days per week. Davis Decl. ¶ 33. Her findings are consistent with those reached by

8 Plaintiffs’ expert, Dr. Gary Steinke, who believes that “an across-the-board reduction in the

9 maximum number of allowable days from five to three per week will cause immediate or

10 imminent harm to thousands of current participants who currently attend ADHC more than

11 three days per week.” Steinke Decl. ¶ 10. He notes that ADHC services play a critical role in

12 monitoring patients who suffer from a myriad of physical and mental health issues, thus

13 decreasing the likelihood of hospitalization and/or institutionalization. Id. ¶¶ 10-15, 18. In Ms.

14 Brantley and Ms. Woodard’s case, Dr. Steinke notes that if their ADHC services are reduced to

15 three days per week, “[they] would need to be placed in a nursing facility” where they would

16 likely “deteriorate rapidly.” Id. ¶¶ 22, 24. As to Ms. Garcia, he believes that the reduction in

17 ADHC services would increase her chances of requiring hospitalization or institutionalization.

18 Id. ¶ 23.

19

Relying on the declaration of Rosemary Lamb, Chief of the Northern Field Operations

20 Branch in the Utilization Management Division of the Department of Health and Human

21 Services, Defendants argue that each of the Plaintiffs only needs three days of ADHC services

22 and therefore will be unaffected by the elimination of two days of services. Defs.’ Opp’n at 8;

23 Lamb Decl. ¶¶ 8, 13, 17.8 Ms. Lamb, who is a registered nurse, further claims that she

24 reviewed unspecified “records” pertaining to each Plaintiff and concluded that none of them

25 are at “imminent risk for institutionalization.” Lamb Decl. ¶¶ 8, 13, 17, 21, 25, 29. The Court

26 8 Plaintiffs have filed objections to various portions of Ms. Lamb’s declaration which
27 are meritorious. Irrespective of those objections, the Court finds that her declaration does not adequately refute Plaintiffs’ claim that the anticipated ADHC benefit reduction poses a serious
28 risk of institutionalization.

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page16 of 24

1 finds Ms. Lamb’s conclusions unpersuasive. As noted, Plaintiffs’ IPCs, which were prepared

2 following an comprehensive assessment by a team of health care professionals—and approved

3 by Medi-Cal—are compelling evidence that Plaintiffs require five, not three, days of services.

4 At oral argument, Defendants were unable to offer any compelling reasons that the Court

5 should credit the opinions of Ms. Lamb, a nurse who has no personal knowledge of Plaintiffs’

6 medical history or needs and has never examined or spoken to them, over those proffered by

7 the multidisciplinary team of physicians, nurses, therapists and various health care

8 professionals who have.9

9

Equally unavailing is Defendants’ assertion that Plaintiffs can avoid the risk of

10 institutionalization by availing themselves of other, largely unspecified Medi-Cal or other

11 community services. Defs.’ Opp’n at 7-9. The Court notes that there is no dispute between the

12 parties that there are alternative services available that could fill the void left by the reduction

13 in ADHC benefits. However, the Court is persuaded by Plaintiffs’ concern that Defendants

14 have failed to implement any means of ensuring that, if and when the cuts take effect, the

15 necessary alternative services will be identified and in place for Plaintiffs so that there will not

16 be a period where they are not receiving the care prescribed by their IPCs.10 Plaintiffs and

17 putative class members, many of whom are elderly and frail, have complex medical needs

18 which are met by a combination of skilled services provided at the ADHC. See Steinke Decl.

19 ¶ 18; McCloud Decl. ¶ 20-27, Exh. B., Davis Decl. ¶¶ 20-31, Exh. B; Zirker Supp. Decl., Exhs.

20 9 Ms. Lamb’s opinions are of limited probative value given the limited scope of her review
21 and analysis. She did not review any of the declarations of Plaintiffs’ caregivers or HDHC
providers, who care for and provide services to them on a daily basis. Ms. Lamb’s decision to limit 22 her review to unspecified “records” pertaining to each Plaintiff undermines the reliability of her
various opinions. For example, she opines that Ms. Brantley could be cared for by other family 23 members or caregivers, id. ¶ 8, despite the declaration from Ms. Brantley’s caregiver, who declares
that she works full-time and cannot give up her job in the event ADHC services are limited to three 24 days, McLorin Decl. ¶ 8. Similarly, with regard to Ms. Garcia, Ms. Lamb opines that her medical
needs can be met with only three ADHC visits per week. Lamb Decl. ¶ 13. Given the limited 25 scope of materials reviewed by Ms. Lamb, the Court finds that her declaration is of limited value,
particularly when compared to the declarations of those who have personal knowledge of each 26 Plaintiffs’ condition, living circumstances and medical requirements.

27

10 Eligibility for ADHC services does not automatically confer authorization for alternative

services. Muchmore Decl. ¶ 13. Each of these services has their own qualification criteria, and

28 Plaintiffs will have to separately apply for each of those services. Id.

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page17 of 24

1 A-C. Given their precarious conditions, even temporary gaps in services would present serious

2 consequences for Plaintiffs and place them at great risk of being institutionalized.

3

Defendants concede that they bear the ultimate responsibility for ensuring compliance

4 with federal disability laws. Nevertheless, they have taken an arguably cavalier approach to

5 ensuring their continuing compliance with the ADA and Rehabilitation Act by placing full

6 responsibility for identifying and securing alternative services to replace those eliminated by

7 Assembly Bill ABX4 5 on the individual ADHC programs. See Defs.’ Opp’n at 8 (citing

8 Peach Decl. ¶ 7).11 At the same time, Defendants refuse to specify how they will ensure their

9 continuing compliance with the ADA and Rehabilitation Act in the event that the ADHC

10 programs fail to comply with their “expectation” to secure alternative services for their

11 participants.12 Thus, to the extent that Defendants are claiming that alternative services satisfy

12 their obligations under the integration mandate, Defendants certainly bear the burden of

13 ensuring more than a “theoretical” availability of such services. C.f., Hillburn v. Maher, 795

14 F.2d 252, 261 (2d Cir. 1986) (“CDIM, as the single agency designated by Connecticut, retains

15 the authority to ‘[e]xercise administrative discretion in the administration or supervision of the

16 plan,’ and to ‘[i]ssue policies, rules, and regulations on program matters.’ [] These regulations

17 do not permit CDIM’s responsibility to be diminished or altered by the action or inaction of

18 other state offices or agencies.”).

19
11 In their opposition brief and at the hearing, Defendants asserted that the individual 20 ADHC program is responsible for identifying and ensuring Plaintiffs’ access to alternative
services. However, in the declaration of Phyllis Muchmore submitted by Defendants, Ms. 21 Muchmore asserts that “[e]ach of these alternative/supplemental services must be sought out by the
beneficiary and his/her family or caregiver(s) with the assistance of the ADHC center and with a 22 referral by the beneficiary’s personal health care provider.” Muchmore Decl. ¶ 13. The Court also
notes that Denise Peach, who is in charge of the state’s ADHC centers, states that in light of the 23 changes implemented by Assembly Bill ABX4 5, ADHC centers “will be” engaged in various
activities such as assessing the needs of their participants and making referrals to other health 24 care providers and community agencies. Peach Decl. ¶ 7. She does not state when those
assessments and referrals will take place—or what alternatives ADHC participants and 25 caregivers may avail themselves of once the ADHC benefit is reduced to a three day per week
maximum. 26
12 During the hearing, the Court inquired how Defendants planned to ensure that the various 27 ADHC programs would comply with their obligation to assist ADHC recipients in securing
alternative services. In response, Defendants stated that it was their “expectation” that the 28 programs would do so.

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page18 of 24

1

In sum, the Court is satisfied that Plaintiffs have demonstrated a likelihood of success as

2 to their first and second claims for disability discrimination under the ADA and the

3 Rehabilitation Act. The evidence presented by Plaintiffs show that the continuing availability

4 of five days of ADHC services per week is critical to their physical and mental health and their

5 continuing ability to remain integrated in their community, as opposed to being isolated in a

6 nursing home or other institution. While alternative services may exist to replace those

7 eliminated by the program cuts, Defendants have failed to ensure that there are any measures in

8 place to ensure that the transition from ADHC service to alternative services is seemless.

9

b) Methods of Administration

10

As part of their ADA and Rehabilitation Act claims, Plaintiffs also allege that

11 Defendants have violated the “methods of administration provision” of both statutes based on

12 their alleged discriminatory effect. Pls.’ Mot. at 20-21; Compl. ¶¶ 121, 126. This claim is

13 based on 28 C.F.R. § 35.130(b)(3), which states:

14

A public entity may not, directly or through contractual or other

arrangements, utilize criteria or methods of administration: ¶ (i)

15

That have the effect of subjecting qualified individuals with

disabilities to discrimination on the basis of disability; ¶ (ii) That

16

have the purpose or effect of defeating or substantially impairing

accomplishment of the objectives of the public entity's program

17

with respect to individuals with disabilities….

18 28 C.F.R. § 35.130(b)(3) (emphasis added). Section 504 regulations contain similar

19 requirements. See 28 C.F.R. § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4). Plaintiffs allege that

20 Defendants violated these regulations, inter alia, by cutting services before providing notice

21 and a hearing, failing to provide information regarding alternative, community-based services

22 that would avoid hospitalization or placement in an institution, and by failing to afford

23 sufficient notice to Plaintiffs to secure replacement services prior to the reduction in ADHC

24 services. Pls.’ Mot. at 17-21.

25

Defendants argue that Plaintiffs lack standing to assert a violation of these regulations

26 because they do not expressly provide for a private right of action. Defs.’ Opp’n at 9. As a

27 general proposition, Defendants are correct that under Alexander v. Sandoval, 532 U.S. 275,

28 291 (2001), only statutes can create enforceable rights. However, a regulation may be enforced

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page19 of 24

1 through a private action where the regulation construes a statute under which a private right of

2 action exists. Mark H. v. Lemahieu, 513 F.3d 922, 935-36 (9th Cir. 2008) (discussing

3 Sandoval). “For purposes of determining whether a particular regulation is ever enforceable

4 through the implied right of action contained in a statute, the pertinent question is simply

5 whether the regulation falls within the scope of the statute’s prohibition.” Id. at 938.

6

The ADA broadly prohibits disability discrimination, and both are enforceable through

7 private actions. See Barnes v. Gorman, 536 U.S. 181, 184-85 (2002); Mark H., 513 F.3d at

8 935. The regulation at issue does not create rights that do not exist under the ADA. Rather, it

9 merely prohibits public entities from employing methods of administration which have the

10 effect of discriminating against qualified disabled individuals on the basis of their disabilities.

11 This falls well within the ambit of the ADA’s proscription against disability discrimination.

12 Dillery v. City of Sandusky, 398 F.3d 562, 567 (6th Cir. 2005) (“if the regulation simply

13 effectuates the express mandates of the controlling statute, then the regulation may be enforced

14 via the private cause of action available under that statute.”); c.f., McGary v. City of Portland,

15 386 F.3d 1259, 1265-66 (9th Cir. 2004) (recognizing that the ADA prohibits discrimination

16 based on disparate treatment and disparate effect). It is thus unsurprising that the few

17 decisions addressing claims based on 28 C.F.R. § 35.130(b)(3) have concluded that a plaintiff

18 may state a methods of administration claim without running afoul of Sandoval. See Frederick

19 L. v. Department of Public Welfare, 157 F. Supp. 2d 509, 538-39 (E.D. Pa. 2001) (“The ADA

20 regulations at issue here are merely rules for the implementation of the statutory directives;

21 they do not prohibit otherwise permissible conduct”); Crabtree v. Goetz, 2008 WL 5330506 at

22 *24 (M.D. Tenn. Dec. 19, 2008) (ruling that plaintiffs had standing to enforce 28 C.F.R. §

23 35.130(b)); see also Pennsylvania Prot. and Advocacy, Inc. v. Pennsylvania Dept., 402 F.3d

24 374, 385 (3rd Cir. 2005) (remanding action for consideration of plaintiffs’ discriminatory

25 administration claim under 28 C.F.R. § 35.130(b)).13

26

27 13 In light of the Court’s conclusion regarding Plaintiffs’ first and second claims, the Court
28 need not reach their due process claim at this juncture.

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1

B. IRREPARABLE HARM

2

The next issue presented is whether Plaintiffs have shown that ADHC beneficiaries will

3 be irreparably harmed if their services are reduced from five to three days per week. Numerous

4 federal courts have recognized that the reduction or elimination of public medical benefits

5 irreparably harms the participants in the programs being cut. See Beltran v. Myers, 677 F.2d

6 1317, 1322 (9th Cir. 1982) (holding that possibility that plaintiffs would be denied Medicaid

7 benefits sufficient to establish irreparable harm); Newton-Nations v. Rogers, 316 F. Supp. 2d

8 883, 888 (D. Ariz. 2004) (citing Beltran and finding irreparable harm shown where Medicaid

9 recipients could be denied medical care as a result of their inability to pay increased co-

10 payment to medical service providers ); Edmonds v. Levine, 417 F. Supp. 2d 1323, 1342 (S.D.

11 Fla. 2006) (finding that state Medicaid agency’s denial of coverage for a off-label use of

12 prescription pain medication would irreparably harm plaintiffs). In addition, Plaintiffs have

13 presented ample evidence to support their claim of irreparable harm. Each of the Plaintiffs

14 suffers from debilitating physical and/or mental conditions for which the availability of ADHC

15 services is critical to ensuring that their tenuous physical and mental conditions remain stable,

16 enabling them to remain in the community. At least two of the three named Plaintiffs are

17 incapable of living independently, and the ability of the third to do so is dependent upon the

18 receipt of ADHC services.

19

The harm in this instance is particularly irreparable and imminent. The ADHC cuts are

20 scheduled to take effect immediately, at which time Plaintiffs and putative Class Members will

21 immediately have their services significantly reduced. As discussed, these services are

22 necessary and critical to Plaintiffs’ physical and mental well-being. Given the tenuousness and

23 complexities of their conditions, an interruption in their care, even if temporary, will have

24 serious consequences for Plaintiffs. While alternative services may be available to replace the

25 ADHC services at issue, Defendants have admitted that they are unable to assure the Court that

26 such services will be identified and provided to Plaintiffs before the reduction in their ADHC

27 benefits.

28

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page21 of 24

1

Defendants ignore the case law holding that the reduction in public medical benefits

2 standing alone is sufficient to demonstrate irreparable harm. Instead, Defendants resort to their

3 earlier argument that the likelihood that they will be institutionalized is speculative. As

4 discussed above, Plaintiffs have presented ample evidence from percipient and expert

5 witnesses demonstrating that the danger of having to institutionalize Plaintiffs if ADHC

6 services are reduced is both real and imminent. The Court therefore finds that Plaintiffs have

7 met their burden of demonstrating irreparable harm.

8

C. BALANCE OF HARDSHIPS AND THE PUBLIC INTEREST

9

The final two inquiries presented by Plaintiffs’ motion—but ignored in Defendants’

10 opposition—are whether the balance of hardships tips sharply in their favor and whether the

11 public will benefit from the proposed preliminary injunction. These factors may be viewed

12 together. See Independent Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644,657-58

13 (9th Cir. 2009) (Independent Living). In a case such as the present where the issue concerns

14 the proposed reduction in medical benefits to indigents due to budgetary concerns, the Ninth

15 Circuit has recognized that both the balance of hardships and public interest favor plaintiffs.

16 Id.

17

In Independent Living, the Ninth Circuit affirmed the district court’s order granting the

18 plaintiffs’ motion for preliminary injunction to enjoin the California Department of Health

19 Care Services—the same Defendant here—from implementing payment reductions to Medi-

20 Cal providers as a result of California’s budgetary woes. In discussing the balance of

21 hardships, the Ninth Circuit held that financial considerations due to state’s “fiscal crisis” were

22 outweighed by the “robust public interest in safeguarding access to healthcare for those eligible

23 for Medicaid, whom Congress has recognized as ‘the most needy in the country.’” Id. at 659;

24 see also Beltran, 677 F.2d at 1322 (“Balancing the medical or financial hardship to the

25 plaintiffs-appellees against the financial hardship to the state resulting from its inability to

26 recover for medical services should its rules ultimately be held valid, it was not an abuse of

27 discretion for the district judge to find that the balance of hardships tipped sharply in favor of

28

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page22 of 24

1 plaintiffs.”). Given these considerations, and Defendants’ lack of response thereto, the Court

2 finds that that the balance of hardships and public interest favor Plaintiffs.

3

D. SCOPE OF THE INJUNCTION

4

At the preliminary injunction hearing, Defendants intimated that if the Court were to issue

5 an injunction, it would be limited to the named Plaintiffs. That contradicts Defendants’ prior

6 representation to the Court in opposing a previous motion. Specifically, Plaintiffs filed a motion to

7 shorten time on their motion for class certification, requesting that it be heard on the same day as

8 the motion for preliminary injunction. In opposing Plaintiffs’ motion for an order shortening time,

9 Defendants stated its position that “if plaintiffs meet the requirement for a preliminary injunction as

10 to the named plaintiffs and they establish that putative class members will face the same harm,

11 there is no need for plaintiffs’ motion for class certification to be heard now in order for plaintiffs

12 to obtain the relief they seek now [because] … plaintiffs can obtain classwide injunctive relief

13 without certifying a class….” (Docket 28 at 2.) As stated previously, the Court finds that the

14 putative class members will face the same harm as Plaintiffs. As such, Defendants are judicially

15 estopped from now arguing that a classwide injunction cannot issue. See United Nat’l Ins. Co. v.

16 Spectrum Worldwide, Inc., 555 F.3d 772, 778 (9th Cir. 2009).14

17

E. BOND

18

Federal Rule of Civil Procedure 65(c) “invests the district court ‘with discretion as to

19 the amount of security required, if any.’” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir.

20 2003) (emphasis in original; quoting Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir.

21 1999)). A district court has the discretion to dispense with the security requirement where

22 giving security would effectively deny access to judicial review. See Save Our Sonoran, Inc. v.

23 Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005) (citation omitted). Similarly, a district court may

24 waive the bond requirement where the plaintiffs are indigent. See Walker v. Pierce, 665 F.

25 Supp. 831, 844 (N.D. Cal. 1987). Plaintiffs, all of whom are Medicaid recipients, request that

26

27

14 District courts are empowered to grant preliminary injunctions “regardless of whether the

class has been certified.” Schwarzer, Tashima and Wagstaffe, Fed.Civ.P. Before Trial, § 10:773 at

28 10-116 (TRG 2008).

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page23 of 24

1 the Court waive the bond requirement on the ground that they are indigent and to ensure their

2 ability to access to the courts on behalf of themselves and other class members. Defendants

3 offer no response to Plaintiffs’ request for a bond waiver. Thus, given the factual record

4 presented, coupled with Defendants’ lack of opposition, the Court will not require Plaintiffs to

5 post a bond in order for a preliminary injunction to take effect.

6 IV. CONCLUSION

7

For the reasons stated above,

8

IT IS HEREBY ORDERED THAT Plaintiffs’ Motion for a Preliminary Injunction is

9 GRANTED.

10

1. Defendants David Maxwell-Jolly, in his official capacity as Director of the

11 Department of Health Care Services, and the Department of Health Care Services, including their

12 successors, agents, officers, servants, employees, attorneys and representatives and all persons

13 acting in concert or participating with them, are hereby ENJOINED AND RESTRAINED from

14 implementing or enforcing ABX4 5, codified at Welfare and Institutions Code section 14132(p), or

15 reducing, terminating or modifying Medi-Cal Adult Day Health Care (ADHC) program benefits to

16 the Plaintiffs and putative Class Members from four or five days per week, to a maximum of three

17 days per week, pursuant to ABX4 5, unless and until appropriate alternative Medi-Cal services are

18 provided to prevent inappropriate institutionalization in violation of their rights under the ADA and

19 Section 504 of the Rehabilitation Act.

20

2. Defendants David Maxwell-Jolly, in his official capacity as Director of the

21 Department of Health Care Services, and the Department of Health Care Services, including

22 their successors, agents, officers, servants, employees, attorneys and representatives and all

23 persons acting in concert or participating with them are HEREBY ORDERED to:

24

a. Take all actions necessary within the scope of their authority to implement

25

the above injunction;

26

b. Provide prompt notice to all Adult Day Health Care program providers of the

27

terms of this Preliminary Injunction; and

28

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Case4:09-cv-03798-SBA Document57 Filed09/10/09 Page24 of 24

1

c. Provide prompt notice to all recipients of four or five days per week of Adult

2

Day Health Care program services of the terms of this Preliminary

3

Injunction.

4

3. The Court WAIVES the requirement for the posting of a bond as security for the

5 entry of preliminary injunctive relief on the grounds of Plaintiffs’ indigency.

6

IT IS SO ORDERED.

7

8 Dated: September 10, 2009 9 10

SAUNDRA BROWN ARMSTRONG United States District Judge

11

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 Case4:09-cv-03798-SBA Document14 Filed08/24/09 Page1 of 32

1 Elizabeth Zirker, State Bar No. 233487 elizabeth.zirker@disabilityrightsca.org
2 Jay B. Koslofsky, State Bar No. 97024 jay.koslofsky@disabilityrightsca.org
3 Kim Swain, State Bar No. 100340 kim.swain@disabilityrightsca.org
4 Elissa Gershon, State Bar No. 169741 elissa.gershon@disabilityrightsca.org
5 Daniel Brzovic, State Bar No. 89493 dan.brzovic@disabilityrightsca.org
6 Dara Schur, State Bar No. 98638 dara.schur@disabilityrightsca.org
7 DISABILITY RIGHTS CALIFORNIA 1330 Broadway, Suite 500
8 Oakland, CA 94612 Telephone: (510) 267-1200
9 Facsimile: (510) 267-1201

10 Attorneys for Plaintiffs

11 [Complete list of counsel on following pages]

12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

13

14 LILLIE BRANTLEY, by her guardian ad ) Case No.: C09-03798 MEJ

litem Chauncey Mc Lorin; GILDA GARCIA; )

15 ALLIE JO WOODARD, by her guardian ad ) CLASS ACTION

litem Linda Gaspard-Berry, individually and )

16 on behalf of all others similarly situated,

) NOTICE OF MOTION AND MOTION

) FOR TEMPORARY RESTRAINING

17

) ORDER AND ORDER TO SHOW CAUSE;

Plaintiffs,

) MEMORANDUM OF POINTS AND

18

) AUTHORITIES IN SUPPORT

vs.

)

19

)

DAVID MAXWELL-JOLLY, Director of the ) Date: TBD

20 Department of Health Care Services, State of ) Time: TBD

California, DEPARTMENT OF HEALTH ) Courtroom: TBD

21 CARE SERVICES,

)

)

22

Defendant.

)

)

23

24

25

26

27

28
i BRANTLEY V. MAXWELL-JOLLY, C09-03798 MEJ: NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

Case4:09-cv-03798-SBA Document14 Filed08/24/09 Page2 of 32
1 Anna Rich, State Bar No. 230195 arich@nsclc.org
2 Kevin Prindiville, State Bar No. 235835 kprindiville@nsclc.org
3 NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525
4 Oakland, CA 94612 Telephone: (510) 663-1055
5 Facsimile: (510) 663-1051
6 Barbara Jones, State Bar No. 88448 bjones@aarp.org
7 AARP FOUNDATION LITIGATION 200 So. Los Robles, Suite 400
8 Pasadena, CA 91101 Telephone: (626) 585-2628
9 Facsimile: (626) 583-8538
10 Kenneth W. Zeller, Pro Hac Vice Pending kzeller@aarp.org
11 AARP FOUNDATION LITIGATION 601 E Street NW
12 Washington D.C. 20049 Telephone: (202) 434-2060
13 Facsimile: (202) 434-6424
14
15
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18
19
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ii BRANTLEY V. MAXWELL-JOLLY, C09-03798 MEJ: NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

Case4:09-cv-03798-SBA Document14 Filed08/24/09 Page3 of 32

1

TABLE OF CONTENTS

2 NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE
3
4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

5 I. II.
6 7 8 9 10 11 12
III. 13

SUMMARY OF ARGUMENT .............................................................................................. 2 STATEMENT OF FACTS..................................................................................................... 3
A. Background of the ADHC Program.............................................................................. 3 B. Medi-Cal State Plan Services........................................................................................ 5 C. ABX4 5 Makes Devastating Cuts to Program .............................................................. 6 D. Plaintiffs ........................................................................................................................ 6
1. Lillie Brantley ................................................................................................... 6 2. Allie Jo Woodard .............................................................................................. 7 3. Gilda Garcia ...................................................................................................... 9
E. Failure to Provide Individual Notice........................................................................... 10
PLAINTIFFS MEET THE REQUIREMENT FOR GRANTING A TEMPORARY RESTRAINING ORDER..................................................................................................... 10

14

A. Standards for TRO and Preliminary Injunction .......................................................... 10

15

1. Plaintiffs will Suffer Irreparable Harm in the Absence of an Injunction........ 11

16 a. Lillie Brantley ..................................................................................... 12

17

b. Allie Jo Woodard ................................................................................ 12

c. Gilda Garcia ........................................................................................ 12

18

d. Class Members.................................................................................... 13

19

2. Plaintiffs are Likely to Succeed on the Merits of their Claims that Defendants

20

are Violating the ADA and Section 504. ........................................................ 14

21

a. The ADA and Section 504 Prohibit Discrimination Against Individuals

with Disabilities. ................................................................................. 14

22

b. The Cuts will Violate ADA and Section 504 Prohibitions Against

Unjustified and Unnecessary Institutionalization. .............................. 15 23

1) The State’s Treatment Professionals Have Determined That

24

Community Placement is Appropriate.................................... 16

25

2) Plaintiffs Want to Stay in the Community. ............................. 17

3) Defendants can Reasonably Accommodate Plaintiffs’ Desire to

26

Receive Services in the Community. ...................................... 17

27

c. Defendants are Violating the Prohibition on Employing Methods of

Administration that Result in Discrimination. .................................... 21 28

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1
2
3
4 IV.
5 V.
6 7 VI.

3. Plaintiffs are Likely to Succeed on the Merits of their Claims that Defendants are Violating the Due Process Clause of the Fourteenth Amendment and Medicaid Law by Failing to Provide Adequate Pre-termination Notice. ....... 22
4. The Balance of Equities is in Plaintiffs’ Favor ............................................... 24 5. An Injunction is in the Public’s Interest ......................................................... 25
CLASSWIDE RELIEF IS APPROPRIATE ...................................................................... 25
PLAINTIFFS SHOULD NOT BE REQUIRED TO POST BOND ................................. 25
CONCLUSION ..................................................................................................................... 25

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2 Cases

3 Cal. Welf. & Inst. Code § 14520 .......................................................................................................... 4

4 Cont’l Oil Co. v. Frontier Ref. Co., 338 F.2d 780, 782 (10th cir. 1964) ............................................. 25
5 Crabtree v. Goetz, 3:08-939, 2008 WL 5330506 (M.D. Tenn. Dec. 19, ............................................ 20
6 Daniels v. Wadley, 926 F. Supp. at 1313 ............................................................................................ 24
7 Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986)................................................................... 24
8 Heather K. v. Mallard, 887 F. Supp. 1249, 1263, 1266 (N.D. Iowa 1995) ........................................ 25
9
Id. 20 10
11 Kansas Hosp. Ass’n v. Whiteman, 835 F. Supp. 1548, 1552-53 (D. Kan. 1993) ............................... 24

12 Orantes-Hernandez v. Smith, 541 F.Supp. 351 (C.D. Cal. 1982)....................................................... 25

13 People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319

14

modified on other grounds, 775 F.2d 998 (9th Cir. 1985). ............................................................. 25

15 Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) ............................................................................ 19

16 17 Statutes 18 29 U.S.C. § 705(2)(B)......................................................................................................................... 15 19 42 U.S.C. § 12101............................................................................................................................... 25 20 Cal. Health & Safety Code § 1570........................................................................................................ 4
21 Welf. & Inst. Code § 14526.1(b)(4);..................................................................................................... 5

22 Rules 23 Fed. R. Civ. P. 65(c) ........................................................................................................................... 25 24

25 Regulations

26 Cal. Code Regs tit. 22 §§ 51151.7 ........................................................................................................ 6
27 Cal. Code Regs. tit. 22 (2009) § 54211................................................................................................. 5
28 Cal. Code Regs. tit. 22 (2009) § 54309(a) ............................................................................................ 4
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1 Cal. Code Regs. tit. 9 §§ 1810.100 ....................................................................................................... 5
2 STATUTES - State 3
. 28 C.F.R. § 41.32 ............................................................................................................................. 16 4
28 C.F.R. § 35.130 (b)(3).................................................................................................................... 21 5
28 C.F.R. § 35.130(b)(7)..................................................................................................................... 15 6
28 C.F.R. § 41.51(b)(3)(i) ................................................................................................................... 21 7
28 C.F.R. §§ 35.104 ............................................................................................................................ 16 8
42 C.F.R. § 431.53 ................................................................................................................................ 6 9 10 45 C.F.R. § 84.4(b)(4)......................................................................................................................... 21 11 11
12 §§ 14021(a), .......................................................................................................................................... 5 13 Cal. Health & Safety Code § 1250(a),(c).............................................................................................. 6 14 Cal. Health & Safety Code §§ 1725 et seq. .......................................................................................... 5 15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE
2

3

TO DIRECTOR DAVID MAXWELL-JOLLY, THE DEPARTMENT OF HEALTH CARE

4 SERVICES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August

5 _______, 2009 or soon thereafter as counsel may be heard in Courtroom _______, United States

6 District Court, Northern District of California, located at 450 Golden Gate Avenue, San Francisco,

7 CA, Plaintiffs individually and on behalf of class members, will move the Court pursuant to Rule 65

8 of the FRCP and Rule 65-1 of the Local Civil Rules for an order issuing a Temporary Restraining

9 Order immediately enjoining Defendants and their successors, agents, officers, servants, employees,

10 attorneys and representatives and all persons acting in concert or participating with them, from

11 violating Plaintiffs’ rights by:

12

(a) Enjoining and prohibiting Defendants Director David Maxwell-Jolly and the Dept. of

13 Health Care Services, and successors, agents, officers, servants, employees, attorneys and

14 representatives and all persons acting in concert or participating with Defendants, from engaging in

15 the following actions until this Court rules on Plaintiffs’ Motion for a Preliminary Injunction:

16

Reducing, terminating or modifying Medi-Cal Adult Day Health Care (ADHC) program

benefits to the Plaintiffs and Class Members, pursuant to ABX4 5, in violation of their rights

17

under the ADA, Section 504, the Due Process clause of the Constitution, and the Medicaid

Act.

18

19

(b) Granting a Temporary Restraining Order, compelling Defendants, their officers,

20 agents, employees, attorneys, and all persons who are in active concert or participation with them, to

21 take all actions necessary within the scope of their authority to implement the above injunctions; and

22 ordering Defendants to maintain this Temporary Restraining Order, until such time as this Court

23 rules on Plaintiffs’ Motion for a Preliminary Injunction herein.

24

Plaintiffs further request that the Court waive the requirement for the posting of a bond as

25 security for the entry of preliminary relief, on the grounds of Plaintiffs’ indigency, and that this court

26 issue an Order to Show Cause fixing the time for a hearing on Plaintiffs’ motion for a Preliminary

27 Injunction and Motion for Class Certification.

28
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1

This Motion for a Temporary Restraining Order is based upon this Notice of Motion and

2 Motion, a copy of the Complaint, the Memorandum of Points and Authorities, the Proposed

3 Temporary Restraining Order, and declarations and exhibits filed concurrently herewith and upon

4 such oral and written argument as be presented at the hearing on the Motion.

5

The Motion will be made on the ground that Plaintiffs and Class Members will suffer

6 irreparable injury unless the activities described above are enjoined pending the hearing on

7 Plaintiffs’ Motion for Preliminary Injunction.

8

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

9 I. SUMMARY OF ARGUMENT

10

On August 27, 2009, unless this Court issues a Temporary Restraining Order, illegal and

11 devastating cuts to the Adult Day Health Care (ADHC) benefit under the State Medi-Cal program

12 will take place, causing irreparable harm to thousands of elderly and disabled individuals.

13

On that date, A.B. 5, 4th Ex. Sess. (Cal. 2009) (Chapter 5, Statutes of 2009) (ABX4 5) is

14 scheduled to go into effect. The ADHC program provides cost-effective community based services

15 to thousands of Californians, enabling them to avoid unnecessary hospitalization and

16 institutionalization, maintain community and family ties, and improve health outcomes. ABX4 5

17 cuts ADHC benefits based solely on economic considerations. The most immediate cut is from a

18 maximum of 5 to 3 days per week for all Medi-Cal beneficiaries, with no exceptions, and regardless

19 of existing treatment authorizations and the health condition of the individual. These two days per

20 week cuts mean the difference between being at home and being institutionalized for the Plaintiffs

21 and others similarly situated.

22

As Plaintiff Lillie Brantley’s niece attests, “If my aunt is not able to attend the ADHC 5 times

23 a week I will not be able to keep her at home, and will have to look for a nursing home for her. I

24 would hate to do it, because she raised me, and I love her very much, and want to keep her with us,

25 but I can’t afford to quit my job, which is what I would have to do.” (McLorin Decl. ¶¶16, 17.)

26

Additional cuts, terminating many people completely, will also take place upon a declaration

27 from Defendant Maxwell-Jolly. Without these services, Plaintiffs will experience immediate and

28 irreparable harm. Plaintiffs and other Class Members will be at risk of deterioration in health and
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1 functioning, and will be forced into hospitals and nursing facilities due to Defendants’ violation of

2 the Americans with Disabilities Act of 1990 (ADA ), 42 U.S.C. §§ 12101-12213 (West 2008), and

3 Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. §§ 794-794a (West 2007).

4

Defendants have not even issued statutorily required written notice to Plaintiffs informing

5 them that their benefits are being terminated and of their right to a hearing, in violation of federal

6 Medicaid law and the Fourteenth Amendments of the U.S. Constitution.

7

Plaintiffs request that a temporary restraining order be issued prohibiting any cuts until

8 preliminary injunction motion can be heard. Plaintiffs further request that a preliminary injunction

9 be issued prohibiting Defendants from implementing across-the-board cuts from 5 to 3 days per

10 week of ADHC services prior to giving required notices and determining whether replacement

11 services under the Medi-Cal program can meet their needs.

12 II. STATEMENT OF FACTS

13

A. Background of the ADHC Program

14

Adult Day Health Care (ADHC) is a Medi-Cal funded community-based program for low

15 income seniors and younger disabled adults. Cal. Welf. & Inst. Code ¶14521 (West 2009). ADHC

16 services are generally provided at centers located in communities throughout California. Individuals

17 who live at home or in licensed residential care participate in ADHC from 1 to 5 days per week,

18 depending on their assessed needs.

19

In enacting the ADHC program, the California legislature found that:

[T]here exists a pattern of overutilization of long-term institutional care for elderly

20

persons or adults with disabilities, and that there is an urgent need to establish and to

21

continue a community-based system of quality adult day health care which will enable elderly persons or adults with disabilities to maintain maximum independence.

22

. . . [O]verreliance on [nursing facility care] has proven to be a costly panacea in both

financial and human terms, often traumatic, and destructive of continuing family

23

relationships and the capacity for independent living.1

24 25 1 The legislature went on to say:

26

It is, therefore, the intent of the Legislature in enacting this chapter and related provisions to

provide for the development of policies and programs that will accomplish the following: 27

28

(a) Ensure that elderly persons and adults with disabilities are not institutionalized inappropriately or prematurely.

3

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1 Cal. Health & Safety Code § 1570.2 (West 2009).

2

ADHC serves these purposes by providing participants with a bundle of medical and other

3 therapeutic services. Under Medi-Cal, ADHC centers must provide:

4

1) Rehabilitation services, including physical therapy, occupational therapy, and speech

therapy;

5

2) Medical services supervised by either the participant's personal physician or a staff

6

physician or both; 3) Nursing services, including skilled nursing care and self-care training and services

7

oriented toward activities of daily living and personal hygiene, such as toileting, bathing

and grooming;

8

4) Nutrition services, including one meal per day and dietary counseling and nutrition

education for participants and their families;

9

5) Psychiatric and psychological services including consultation, individual assessment, and

10

supervision of treatment by a psychiatrist, psychologist, psychiatric social worker or psychiatric nurse, when indicated;

11

6) Medical social services to participants and their families to help with personal, family and

adjustment problems that interfere with the effectiveness of treatment;

12

7) Recreational and social activities designed to encourage physical exercise to prevent

deterioration and to stimulate social interaction; and

13

8) Non-medical and medical transportation service for participants.

14 Cal. Code Regs. tit. 22 § 54309(a) (2009); Cal. Welf. & Inst. Code § 14550 (West 2009); Cal. Health

15 & Safety Code § 1570, et seq. (West 2006). ADHC centers provide services for a daily all-inclusive

16 Medi-Cal reimbursement rate of $76.22. (Missaelides Decl. ¶21.)

17

Individuals wishing to receive ADHC services must have a physician submit history and

18 physical information and participate in a 3 day assessment performed by a multidisciplinary team

19 of clinicians including a physician, registered nurse, social worker, physical therapist and

20

21 (b) Provide a viable alternative to institutionalization for those elderly persons and adults with

22

disabilities who are capable of living at home with the aid of appropriate health care or

rehabilitative and social services.

23

(c) Establish adult day health centers in the community for this purpose, that will be easily

24

accessible to all participants, including economically disadvantaged elderly persons and adults with disabilities, and that will provide outpatient health, rehabilitative, and social

25

services necessary to permit the participants to maintain personal independence and lead

meaningful lives.

26

(d) Include the services of adult day health centers as a benefit under the Medi-Cal Act, that shall

be an initial and integral part in the development of an overall plan for a coordinated,

27

comprehensive continuum of optional long-term care services based upon appropriate need.

28

Cal. Health & Safety Code § 1570.7 (West 2009).

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1 occupational therapist, at minimum. Cal. Code Regs. tit. 22 (2009) § 54211. The

2 multidisciplinary team designs an Individual Plan of Care (IPC) that includes recommended days

3 of attendance, which is then submitted to the Medi-Cal Field Office along with the Treatment

4 Authorization Request (TAR) for approval by Medi-Cal. (Missaelides Decl. ¶ 22.)

5

Defendants have certified through the IPC process that all participants in the ADHC program

6 meet the criteria for services, including that a “a high potential exists for the deterioration of the

7 participant's medical, cognitive, or mental health condition or conditions in a manner likely to result

8 in emergency department visits, hospitalization, or other institutionalization if adult day health care

9 services are not provided.” Cal. Welf. & Inst. Code § 14526.1(d)(4); (Davis Decl. ¶ 18); (McCloud

10 Decl. ¶ 17; (Toth Decl. ¶ 13); (Puckett Decl. ¶ 12); (Myers Purkey Decl. ¶ 17.)

11

B. Medi-Cal State Plan Services

12

Many of these same services that are part of the ADHC package are also included as

13 community-based Medicaid state plan services and would be otherwise available to Plaintiffs and

14 Class Members as an alternative to ADHC. These include but are not limited to:

15

1. Personal care services through the In-Home Supportive Services program;2

2. Home Health services, including part-time or intermittent skilled nursing services by

16

licensed nursing personnel and home health aide services;3

3. Specialty mental health services, including rehabilitation services and medication

17

management;4

4. Targeted Case Management (TCM) services to assist Medi-Cal recipients in gaining

18

access to needed medical, social, educational and other services;5

5. Home and community-based waiver services, which provide case management,

19

20 2 Including meal preparation and cleanup, assistance with ambulation, bowel and bladder care, 21 paramedical services, and others. Cal. Welf. & Inst. Code §§ 12300, 14132.95, 14132.95.1.
22 3 Including in-home medical care services as defined in California Welfare and Institutions Code section 14132(s); physical, occupational or speech therapy; medical social services; home health
23 aide services, which include assisting with personal care, bathroom needs and ambulation, and performing medically necessary household services to facilitate self-care such as changing the bed
24 and light cleaning; medical supplies other than drugs and biologicals; and the use of medical appliances, provided for under an approved treatment plan. Cal. Health & Safety Code §§ 1725 et
25 seq.
26 4 Cal. Welf. & Inst. Code §§ 14021(a), 14021.4, 14681, 14683, 14684; Cal. Code Regs. tit. 9 §§ 1810.100; 1810.247.
27 5 Including assistance in obtaining Medi-Cal services, assessments, service/support planning, and 28 monitoring to ensure services and supports are meeting a beneficiary’s needs. Cal. Welf. & Inst.
Code § 14132.44.
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1

community transition services, private duty nursing, family training, home health

aides, life-sustaining utility reimbursement, habilitation services, and respite care; 6

2

and

6. Medical and non-medical transportation.7

3

In addition to the above community-based services, Medi-Cal also funds skilled nursing

4

facility services which provide skilled nursing care and supportive care to individuals, and hospitals.

5

Cal. Health & Safety Code § 1250(a),(c) (West 2009).

6

C. ABX4 5 Makes Devastating Cuts to Program 7
ABX4 5 is scheduled to go into effect on August 27, 2009. The new law reduces the ADHC 8
benefit to 3 days per week for all Medi-Cal beneficiaries, with no exceptions. Cal. Welf. & Inst. § 9
14132(p)(2) effective August 27, 2009.8 These cuts are based on financial considerations. No 10
reevaluations have been done of individuals to determine whether they still need services or qualify 11
for other available services. (Missaelides Decl. ¶ 32, Exh. D.) 12

D. Plaintiffs 13

1. Lillie Brantley 14

Plaintiff Lillie Brantley is an 84-year-old woman who has severe Alzheimer’s disease, 15

hyperlipidemia, a seizure disorder, atrial fibrillation, has had a stroke, and is very frail. (Davis Decl. 16
¶ 28.) Ms. Brantley lives with her niece Chauncey McLorin9 and Ms. McLorin’s 15-year old 17

18

19 6 Cal. Welf. & Inst. Code § 14000 et. seq.
20 7 42 C.F.R. § 431.53 (2009); Cal. Welf. & Inst. Code §§ 14132(i), 14133.6, 14133.65, 14136 et. 21 seq.; Cal. Code Regs tit. 22 §§ 51151.7, 51151 et seq.

22 8 In addition to this cut, new restrictions limiting who is eligible to receive ADHC services will go into effect if and when the Director of DHCS provides a written declaration that new restrictions are

23 ready to be implemented. Cal. Welf. & Inst. Code § 14521.1, effective August 27, 2009. These new

restrictions will terminate or deny ADHC services to individuals based on degree of functional 24 limitation and need for a certain level of care. The statute provides that at the time of the declaration

25 of new restrictions by the Director, the ADHC benefit will revert back to a maximum of 5 days per week for the individuals who remain eligible. Plaintiffs have alleged that these new restrictions

26 violate the law, however, as they are not yet in place, Plaintiffs do not seek a TRO or PI regarding

this component of ABx4 5. Cal. Welf. & Inst. Code §§ 14525.1, 14522.4(a)(10), effective August

27 27, 2009.

28

9 An application to appoint Ms. McLorin to act as a Guardian Ad Litem for Ms. Brantley in this action has been filed with this Court.

6

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1 daughter. Because of her cognitive impairments, Ms. Brantley can never be left alone. (McLorin

2 Decl. ¶ 6.) Ms. Brantley and her family want her to remain in the community, and in her family

3 home, where she can be part of the household, and among people and places she knows and loves.

4 According to Ms. McLorin, putting Ms. Brantley into a nursing home would be devastating: “It is so

5 painful to consider this, and even though she is deteriorating, she is not in a vegetative state, and still

6 knows me and my family, and our neighborhood. We go to church together, and out to eat. I think

7 it would be terrible for her to have to leave us.” (Id. at ¶¶ 17-18.) However, Ms. Brantley’s family

8 will be forced to institutionalize her if she is not able to go to the ADHC program 5 days a week, as

9 Ms. McLorin cannot afford to quit her job. (Id. at ¶¶ 8, 16).

10

Ms. Brantley has been attending the Bayview Hunter’s Point ADHC program in San

11 Francisco California for 3 years. (Id. at ¶ 4.) Ms. Brantley is authorized under Medi-Cal to receive

12 ADHC services 5 days per week, and these services including professional nursing services every

13 day to monitor her hypertension, monitor and control her seizures, and monitor her for weight loss;

14 personal care services every day to help her with feeding, toileting, and ambulation, as well as

15 monitoring her whereabouts; physical therapy maintenance program twice per week to reduce her

16 risk for falls and maintain current functioning; occupational therapy services for maintaining her

17 functional strength; and nutritional monitoring because of her diagnosis of hypertension and her

18 recent weight loss. (Davis Decl. ¶¶ 26, 30.)

19

Ms. Brantley’s most recent IPC, which is approved by Medi-Cal and current through August

20 31, 2009, documents that she is at high risk of institutionalization if she does not receive ADHC

21 services 5 days per week, due to her inappropriate behavior and affect, two or more chronic medical

22 conditions, poor judgment, medication mismanagement, frailty, isolation, risk for falls, including

23 forgetting to use her cane and being unsafe in transfers, self neglect, and dementia-related behavioral

24 problems. (Id. at ¶ 31.)

25

As of August 21, 2009, Ms. Brantley has not received written notice from Medi-Cal

26 informing her that her ADHC services will be cut. (McLorin Decl. ¶ 15.)

27

2. Allie Jo Woodard

28
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1

Plaintiff Allie Jo Woodard is a 79-year-old woman who is diagnosed with bipolar affective

2 disorder, depression, glaucoma, hypertension, osteoarthritis, and is pre-diabetic. (Davis Decl. ¶ 21.)

3 Ms. Woodard receives Medi-Cal, and is authorized to receive ADHC service 5 days per week at the

4 Bayview Hunter’s Point ADHC program in San Francisco California. (Id. at ¶ 20.) She has been

5 attending the program for nine years. (Gaspard-Berry Decl. ¶ 4.) Ms. Woodard’s disability causes

6 her to be very fragile emotionally, and she has had frequent psychiatric hospitalizations as a result.

7 (Id. at ¶ 9.) Her daughter, Linda Gaspard-Berry, believes that Ms. Woodard’s attendance and

8 services at the ADHC 5 days per week are essential to support her, and that without the program’s

9 services, Ms. Woodard would have been hospitalized more frequently than she has been. Id.

10

Although Ms. Woodard lives alone, after a two-day disappearance a few years ago, her

11 family ensures that she is never alone. (Id. at ¶ 6.) Her daughter and son taking turns spending the

12 nights with her, as they juggle full time jobs and their own families. (Id. at ¶ 7.) On the weekends,

13 her daughter takes Ms. Woodard to Ms. Gaspard-Berry’s home in Fremont, California. (Id. at ¶ 8.)

14

Ms. Woodard’s family goes to great lengths to keep her in her home and depend on her

15 attending ADHC 5 days per week. Her daughter says, “My brother and I are working very hard, and

16 are sacrificing a lot already to try to keep our mother in the community. It would be terrible for her

17 to be in a facility, but we cannot afford to quit our jobs and put our families at risk.” (Id. at ¶ 17.)

18

Ms. Woodard’s most recent Medi-Cal approved Individual Plan of Care authorizes her to

19 receive the following ADHC services 5 days per week: professional nursing services every day to

20 monitor her for fall risk, for her hypertension, and for her pain and mobility related to her arthritis;

21 personal care services daily to monitor her exertion level to prevent cardiac compromise; social

22 services intended to prevent psychiatric hospitalization in the form of group activities, weekly

23 psychological counseling, and daily check in with the program social worker to reorient her to

24 reality; therapeutic activities to decrease her feelings of isolation, and improve her interactions with

25 peers; occupational therapy services for maintaining functional strength two days per week. (Davis

26 Decl. ¶ 23.) Ms. Woodard’s current IPC, authorized by Medi-Cal through December 31, 2009,

27 states that she is at a high risk of institutionalization if she does not receive ADHC services 5 days

28
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1 per week, based on her chronic medical conditions, poor judgment, medication mismanagement,

2 frailty, isolation, risk for falls, and dementia-related behavioral problems. (Id. at ¶ 31.)

3

As of August 21, 2009, Ms. Woodard has not received written notice from Medi-Cal

4 informing her that her ADHC services will be cut. (Gaspard-Berry Decl. ¶ 14.)

5

3. Gilda Garcia

6

Plaintiff Gilda Garcia is a 77–year-old woman with unstable diabetes, hypertension, Bells’

7 Palsy, and kidney problems. (McCloud Decl. ¶ 21.) She is Medi-Cal eligible and currently receives

8 5 days a week of ADHC through the Institute on ADHC program in San Francisco, California. (Id.

9 at ¶¶ 19.) Ms. Garcia lives alone, and receives limited IHSS services. (Garcia Decl. ¶¶ 4, 14.)

10

Ms. Garcia is highly dependent on the ADHC program for medical stability and preventing

11 isolation and depression. She says, “I love going to the center. It gives me a place to go everyday,

12 and things to do. . . I also go to the center because they help me with my diabetes there. On the

13 weekends, I just pray not to have problems with my diabetes. I am afraid I will have to go to the

14 hospital if I don’t have a nurse 5 days a week who can help me.” (Id. at ¶¶ 7, 8, 9, 16, 18.)

15

In the professional opinion of the nurse at her program, “. . . based on the 4.5 years I have

16 known Gilda, it’s crucial for her to be at the Center Monday through Friday to prevent Emergency

17 Room visits and hospitalizations. I am very concerned for her health and safety if she does not have

18 the daily monitoring we provide here at our program. I don’t know how else she will get this

19 monitoring on the two days she would not attend our program.” (Perelman Decl. ¶¶ 14, 15.)

20

Ms. Garcia’s most recent Medi-Cal approved Individual Plan of Care authorizes her to

21 receive the following ADHC services 5 days per week: professional nursing services 5 times a week

22 to monitor her for hypoglycemic reactions, and monitoring for joint and back pain; personal care

23 services 5 times a week to supervise her ambulation and prevent falls due to her poor vision and

24 impulse control; social services 5 times a week to increase her opportunities for socialization and on

25 an as needed basis help her coordinate her IHSS and other social services; physical therapy

26 maintenance program 3 days per week to maintain her endurance and physical strength; occupational

27 therapy maintenance program two days per week to maintain her current levels of functioning; and

28 registered dietician services. (McCloud Decl. ¶ 24.)
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1

Ms. Garcia’s most recent IPC states that she is at a high risk of institutionalization if she does

2 not receive ADHC services 5 days per week, based on her two or more chronic medical conditions,

3 frailty, hyper/hypoglycemia, inappropriate affect/appearance or behavior, poor judgment, risk for

4 falls, and medication mismanagement. (Id. at ¶ 25.)

5

As of August 20, Ms. Garcia has not received written notice from Medi-Cal that her services

6 will be cut. (Garcia Decl. ¶ 17.)

7

E. Failure to Provide Individual Notice

8

Medicaid program recipients have rights to written notice and a predetermination fair hearing

9 if the benefits they are receiving are reduced, suspended or terminated. 42 C.F.R. § 431.200 et seq.

10 (2009); Cal. Code Regs. tit. 22 § 51014.1.(a).

11

On July 30, 2009, Defendants informed providers of the ADHC program that Medi-Cal

12 would no longer approve or pay for a beneficiary to attend an ADHC center for more than 3 days per

13 week as of August 27, 2009. (Puckett Decl. ¶ 15, Exh. A.) Defendants also posted a notice on the

14 DHCS website that the “ADHC benefit is reduced to a maximum of 3 days of ADHC per week” and

15 that: “Effective August 27, 2009, Medi-Cal will only authorize and pay for a maximum of 3 days

16 per week of Adult Day Health Care.” (Id. at ¶ 15, Exh. B.)

17

Plaintiffs Lillie Brantley, Gilda Garcia, and Allie Jo Woodard have not received

18 individualized notice of the cuts to their services providing them with statutorily required hearing

19 rights. (McLorin Decl. ¶ 15; Garcia Decl. ¶ 17; Gaspard-Berry Decl. ¶ 14.) Upon information and

20 belief, no class members have received individualized notice of the cuts to their services providing

21 them with statutorily required hearing rights. (Puckett Decl. ¶ 18.)

22 III. 23

PLAINTIFFS MEET THE REQUIREMENT FOR GRANTING A TEMPORARY RESTRAINING ORDER

24

A. Standards for TRO and Preliminary Injunction

25

“A plaintiff seeking a preliminary injunction must establish that he is (1) likely to succeed on

26 the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that

27 the balance of equities tips in his favor, and (4) that an injunction is in the public interest.” Am.

28 Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); Winter v. Natural Res.
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1 Def. Council, 129 S. Ct. 365, 374 (2008); Stormans, Inc. v. Selecky, 571 F.3d 960, 977-98 (9th Cir.

2 2009). Standards for a temporary restraining order are the same. The purpose of a temporary

3 restraining order is to preserve the status quo and prevent irreparable harm just so long as necessary

4 to hold a preliminary injunction hearing. It is governed by the same general standards as a

5 preliminary injunction, but in any event applications for a temporary restraining order cannot be

6 more rigorous than those for a preliminary injunction. Granny Goose Foods, Inc. v. Brotherhood of

7 Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (94 S. Ct. 1113, 1124). Hoechst Diafoil Co. v. 8 Nan Ya Plastics Corp., 174 F.3d 411, 422 (4th Cir. 1999); Los Angeles Unified Sch. Dist. v. United 9 States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J. dissenting). Plaintiffs meet all

10 four criteria.

11

1. Plaintiffs will Suffer Irreparable Harm in the Absence of an Injunction

12

Recipients of government benefits frequently constitute the most vulnerable sector of the

13 population. Numerous courts have held that reductions in either government benefits or medical

14 care cause irreparable harm even when the cuts are of a relatively small magnitude. See e.g., 15 Beno v. Shalala, 30 F. 3d 1057, 1063-64, fn. 10 (9th Cir. 1994) (noting harm to beneficiaries 16 from government benefit and medical care cuts); Beltran v. Myers, 677 F. 2d 1317, 1322 (9th

17 Cir.1982). In Beltran, the Plaintiffs were a class of aged, blind, and disabled individuals who

18 were denied Medi-Cal benefits by application of a transfer of assets rule in California. The Court

19 held that by showing loss of the Medi-Cal benefits to the class, the Plaintiffs had demonstrated

20 irreparable injury. See also Edmonds v. Levine, 417 F. Supp 2d 1323, 1342 (S.D. Fla. 2006)

21 (summarizing eight different Medicaid cases finding irreparable harm or imminent risk of

22 irreparable harm due to a variety of Medicaid cuts.

23

In addition, a violation of civil rights under the ADA and Section 504 because of a state’s

24 failure to provide services “in the most integrated setting appropriate,” and being placed at “high

25 risk for premature entry into a nursing home,” satisfy the standard for granting injunctive relief.

26 See Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1184-1185 (10th Cir. 2003). In

27 this case, the named Plaintiffs and class members are elderly and/or disabled individuals who

28 face both Medicaid benefits cuts and ADA violations.
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1

a. Lillie Brantley

2

Ms. Brantley would be irreparable harmed by a reduction in ADHC services to 3 days per

3 week. (Steinke Decl. ¶ 22.) Although Ms. Brantley is severely impaired by Alzheimer’s disease,

4 ADHC services 5 days per week enable her to live in a familiar environment with family members

5 who care for her and whom she recognizes and can interact with. She can go out to eat with family,

6 and attend church. (McLorin Decl. ¶¶ 17, 18.) However, because she is unable to be left alone for

7 any period of time, she would be at risk of serious injury if she were home alone during the time that

8 ADHC is no longer available. (Id. at ¶ 6.) Given her family’s inability to stay at home with her for

9 the days she would no longer be able to go to ADHC, she would need to be placed in a nursing

10 facility and would likely deteriorate rapidly in an unfamiliar environment such as a nursing facility.

11 (Steinke Decl. ¶ 22.) Placement in an institution would be devastating to her and to her family. (Id.

12 at ¶ 22; McLorin Decl. ¶ 17.)

13

b. Allie Jo Woodard

14

Allie Jo Woodard would be irreparably harmed by a reduction in ADHC to 3 days per week.

15 Ms. Woodward lives in her own home with family alternating caring for her. Given her complex

16 medical and mental health conditions, Ms. Woodard cannot be left alone safely. Ms. Woodward

17 relies on ADHC services for pain and medication management, and socialization to assist her mental

18 health condition. Without 5 days per week of ADHC, Ms. Woodward would need to be placed in a

19 nursing facility; where she would deteriorate physically and mentally. (Steinke Decl. ¶ 24; Davis

20 Decl. ¶ 25; Gaspard-Berry Decl. ¶ 16-17.)

21

c. Gilda Garcia

22

Ms. Garcia would be irreparably harmed by a reduction in ADHC to 3 days per week. Ms.

23 Garcia has unstable diabetes such that the frequent medical monitoring by ADHC nursing cannot be

24 replicated by primary care. Ms. Garcia relies on ADHC for medical stabilization. In addition, Ms.

25 Garcia is protected from isolation and depression by attending ADHC 5 days per week. If she had to

26 remain at home for part of the week, she would likely see a rapid decrease in her mental and physical

27 states, which would likely result in acute hospitalization and institutionalization. (Steinke Decl. ¶

28 23; McCloud Decl. ¶¶ 26-27; Garcia Decl. ¶ 18; Perelman Decl. ¶ 14-15.)
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1

d. Class Members

2

Plaintiffs’ situations are typical of thousands of individuals who receive ADHC services, all

3 of whom face imminent harm if the ADHC cuts are enacted. There are approximately 36,860

4 recipients of ADHC services; approximately 8,121 of them currently receive services 4 and 5 day a

5 week and will be affected by these cuts. (Missaelides Decl. ¶¶ 27, 33.) The following examples

6 show the severe harm similarly situated individuals will suffer:

7

Chuck Peterson, 61, of Woodland, who has Chronic Obstructive Pulmonary Disease

8 (COPD), emphysema, depression, anxiety, a hearing impairment, and is legally blind, among other

9 disabilities. Mr. Peterson is oxygen dependent. He has coughing episodes due to COPD, which

10 cause him to black out and fall to the ground. As a result, he uses a wheelchair. He lives alone in an

11 SRO and requires assistance with taking his medication and is dependent upon others for meals,

12 transportation, personal assistance, chores, and shopping. (Peterson Decl. ¶ 3.) He attends the Yolo

13 Adult Day Health Center 5 days a week, and fears institutionalization if he is only able to attend the

14 program 3 days per week. (Peterson Decl. ¶ 9; see also, Myers Purkey Decl. ¶ 23 (stating that Mr.

15 Peterson is a “high risk” for institutionalization).)

16

Wilrene LaMar, 57, of Oroville, who has multiple disabilities as a result of a cerebral

17 vascular accident (CVA), and attends the Peg Taylor Center in Chico California 5 days per week.

18 Ms Lamar receives daily nursing services to monitor her and to assess for signs of stroke, medication

19 side effects, stomach problems and other serious health concerns. She fears she will be

20 institutionalized in a nursing facility if ADHC services are cut. (LaMar Decl. ¶ 9.)

21

Ilene McKray, 70, of Orland, has schizoaffective disorder and diabetes. She had her left leg

22 amputated. She lives in an assisted living facility, and is dependent on ADHC 5 days a week to

23 avoid nursing facility institutionalization. She receives daily physical therapy services to assist her

24 with using her prosthetic leg. Ms. McKray’s sister believes she will suffer both physical and

25 emotional harm if her ADHC services are cut to only 3 days per week. (Simmons Decl. ¶¶ 8, 10.)

26

In addition to these individual participants, ADHC program providers have identified

27 participants who they believe will be harmed by these cuts:

28
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1

Catherine Davis, Program Director of the Bayview Hunter’s Point Adult Day Health Care

2 program: Of the participants in her Program, Ms. Davis and her staff have identified 22 individuals

3 who they believe are most at risk of institutionalization and/or physical harm should their ADHC

4 services be cut and they not receive replacement services. These individuals have been determined

5 to have a high potential for the deterioration of their medical, cognitive, or mental health condition

6 or conditions in a manner likely to result in emergency department visits, hospitalization, or other

7 institutionalization if ADHC services are not provided. (Davis Decl., ¶¶ 18, 33-36, Exh. A.)

8

Marina Krupnik, Executive Director of the Circle of Friends Adult Day Health Care Center

9 in San Francisco, CA.: Ms. Krupnik has identified 160 participants who receive ADHC services

10 four and 5 days a week. Based on her knowledge and experience, Ms. Krupnik believes that

11 reductions to ADHC services from 5 to 3 days per week will cause individuals in her programs to be

12 institutionalized, hospitalized, or otherwise harmed. (Krupnik Decl. ¶ 18.)

13

Diane Puckett, Executive Director of Innovative Health Care Services and Administrator of

14 the Peg Taylor Center for Adult Day Health Care, Chico: Ms. Puckett has identified twenty-eight

15 participants in her program who receive services four and 5 days per week, who face the risk of

16 institutionalization, hospitalization or even death as a result of the reduction to their services.

17 (Puckett Decl. ¶¶ 14, 20, 23.)

18

Debbie Toth, Executive Director of the Mt. Diablo Center for Adult Day Health Care in

19 Pleasant Hill: Ms. Toth has identified 28 participants in her program who receive services four and

20 5 days per week, who face the risk of institutionalization as a result of the reduction to their services.

21 (Toth Decl. ¶ 17.)

22

2. Plaintiffs are Likely to Succeed on the Merits of their Claims that

Defendants are Violating the ADA and Section 504. 23

24

a. The ADA and Section 504 Prohibit Discrimination Against Individuals with Disabilities.

25

In 1990, Congress enacted the Americans with Disabilities Act, as amended by the ADA of

26 2008 (ADA) in 1990, to prohibit discrimination by all public entities. 42 U.S.C. §§ 12101(2008);

27 H.R. Rep. No. 101-485, pt. 3, at 49 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 472.

28

Title II of the ADA, which governs public programs such as Medi-Cal, provides:

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1

[N]o qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits

2

of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.

3

4 42 U.S.C. § 12132. This built upon the bar on disability discrimination by federal fund recipients

5 embodied in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”).

6

Under the ADA, a “qualified individual with a disability” is a person who “with or without

7 reasonable modifications to rules, polices or practices” meets the “essential eligibility requirements

8 for the receipt of services or the participation in programs or activities provided by a public entity.”

9 42 U.S.C. § 12131. Section 504’s definition is substantially similar. See 29 U.S.C. § 705(20).

10 Plaintiffs are eligible for Medicaid and are qualified persons with disabilities within the meaning of 11 the ADA and Section 504.10 (McCloud Dec. ¶¶ 19 – 21 (regarding Plaintiff Garcia); Garcia Dec.

12 ¶ 3; Davis Dec. ¶¶ 21-22 (regarding Plaintiff Woodard)); ¶¶ 26-28 (regarding Plaintiff Brantley).)

13

Public entities must make reasonable modifications in “policies, practices, or procedures”

14 when the modifications are necessary to avoid discrimination, unless the accommodation would

15 fundamentally alter the nature of the program. 28 C.F.R. § 35.130(b)(7) (1991).

16

b. The Cuts will Violate ADA and Section 504 Prohibitions Against

Unjustified and Unnecessary Institutionalization.

17

18

In enacting the ADA, Congress specifically found that segregation of persons with

19 disabilities, especially in institutions, is a form of discrimination prohibited under the Act. 42 U.S.C.

20 §§ 12101(a)(2), (3), (5). The ADA and Section 504 specifically mandate that individuals with

21 disabilities be integrated into the community to the greatest extent possible. The ADA requires

22 public entities to “administer services, programs and activities in the most integrated setting

23 appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). Similarly,

24 under Section 504, agencies receiving federal financial assistance must administer their programs

25

26

27 10 ADA regulations define disabilities, with respect to an individual, to include “a physical or mental

28

impairment that substantially limits one or more of the major life activities of such individual… such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing,

15

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1 and activities “in the most integrated setting appropriate to the needs of qualified handicapped

2 persons.” 28 C.F.R. §41.51(d). These obligations, known as the “integration mandate,” are

3 construed and applied in the same manner. Fisher v. Oklahoma Health Care Authority, 335 F.3d

4 1175, 1179 n.3 (10th Cir. 2003).

5

The integration mandate was analyzed and interpreted by the United States Supreme Court in

6 the landmark decision Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead plaintiffs were

7 individuals with mental disabilities who were confined in Georgia’s state psychiatric institutions but

8 who wanted to live in the community. Plaintiffs asserted that the state’s refusal to pay for services

9 that would enable them to live in community settings violated the integration mandate of Title II of

10 the ADA and its implementing regulations. The Court agreed, and held that “unjustified isolation is

11 properly regarded as discrimination based on disability.” Id. at 597.

12

The high Court interpreted the ADA’s “integration mandate” as requiring persons with

13 disabilities to be served in the community when: 1) the state's treatment professionals have

14 determined that community placement is appropriate; 2) community placement is not opposed by the

15 affected individual; and 3) the placement can be reasonably accommodated, taking into account the

16 resources available to the state and the needs of others with disabilities. Id. at 587.

17

Plaintiffs do not need to wait until they are institutionalized to bring a claim under the

18 integration mandate. Individuals at risk of placement in nursing homes are also protected. See

19 Fisher, 335 F.3d at 1181 (“…Olmstead does not imply that disabled persons who, by reason of a

20 change in state policy, stand imperiled with segregation, may not bring a challenge to that state

21 policy under the ADA’s integration regulation without first submitting to institutionalization.”)

22

Defendants are violating Plaintiffs’ rights to receive Medi-Cal services in the most integrated

23 setting appropriate. Each Plaintiff meets all of the criteria necessary to show that the community

24 integration mandate has been violated.

25

1) The State’s Treatment Professionals Have Determined

26

That Community Placement is Appropriate.

27

28

learning, and working.” 28 C.F.R. § 35.104 (1991). The Section 504 requirements are essentially the same. 28 C.F.R. § 41.32 (1981).

16

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1

Defendants have determined that receiving Medi-Cal services in the community is

2 appropriate to meet Plaintiffs’ needs. All Plaintiffs currently live in the community where they have

3 been receiving Medi-Cal services, many for years. (McCloud Decl. ¶¶ 19-20 (regarding Plaintiff

4 Garcia); Davis Decl. ¶¶ 20-21 (regarding Plaintiff Woodard); and ¶¶ 26-27 (regarding Plaintiff

5 Brantley).) They all have Individual Plans of Care (IPC), developed by a multi-disciplinary team

6 which sets forth services needed for them to remain safely in the community. These IPCs have been

7 submitted and approved by Medi-Cal. (McCloud Decl. ¶ 19; Davis Decl. ¶¶ 20 and 26.) As a

8 requirement of the program, Plaintiffs have been determined to have a “high potential for the

9 deterioration of their medical, cognitive, or mental health condition or conditions in a manner likely

10 to result in emergency department visits, hospitalization, or other institutionalization if ADHC

11 services are not provided.” (McCloud Decl. ¶¶ 17, 19, and 29; Exh. B; Davis Decl. ¶¶ 18, 20 and 26,

12 Exh. B, C.) Moreover, Plaintiffs’ treating providers and Plaintiffs’ medical expert have specifically

13 opined that community-based ADHC is the appropriate option, and institutionalizing them in nursing

14 homes will be dangerous to their health and lives. (Steinke Decl. ¶¶ 21-24; McCloud Decl. ¶¶ 20-

15 26; Davis Decl. ¶¶ 24-25, 27-32.)

16

2) Plaintiffs Want to Stay in the Community.

17

Far from opposing community placement, these Plaintiffs are fighting to remain in their

18 homes. (Garcia Decl. ¶¶ 4, 7, 16-17; McLorin Decl. ¶¶ 8-9, 16-17 (regarding Plaintiff Brantley);

19 Gaspard-Berry Decl. ¶ 17 (regarding Plaintiff Woodard).) As a result of Defendants’ cuts, however,

20 the only way Plaintiffs can receive the services they need is to move to a nursing home or risk

21 hospitalization. (Steinke Decl. ¶¶ 21-24; McCloud Decl. ¶ 29; Davis Decl. ¶¶ 24-25, 31-32.)

22

3) Defendants can Reasonably Accommodate Plaintiffs’

Desire to Receive Services in the Community.

23

24

Under Olmstead, the integration mandate requires that Plaintiffs receive Medi-Cal services in

25 the community when this desire can be reasonably accommodated, taking into account the resources

26 available to the state and the needs of others with disabilities. Olmstead, 527. Defendants can

27 accommodate Plaintiffs’ needs because the necessary services are available not only through the

28 ADHC program, but also are covered separately by Medi-Cal. ADHC allowed Plaintiffs to be
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1 supported in the community by providing cost-effective community-based services.11 However,

2 under California’s Medi-Cal program, there are a range of alternative community services that could

3 be used to replace the ADHC services that are being cut, including nursing, personal care, therapy, 4 case management, medication, meals, and transportation.12

5

Plaintiffs need information, assistance and time to secure those services prior to termination

6 of ADHC services. Defendants have failed to take any steps to identify and ensure provision of

7 these services to Plaintiffs and Class Members. Cuts should be stopped until Defendants meet their

8 obligations, under Olmstead, to ensure access to alternative services, available under the Medi-Cal

9 program, which are needed to avoid institutionalization in hospitals and nursing facilities.

10

Moreover, for those Plaintiffs for whom replacement services cannot be located, and

11 continuance of ADHC for 4 or 5 days is necessary to prevent institutionalization, ADHC services

12 should be available 4 or 5 days as a reasonable modification to the Medi-Cal program. In fact, under

13 ABX4 5, once Defendant Maxwell-Jolly issues a declaration implementing new eligibility

14 restrictions, the temporary ban on 4 or 5 days of ADHC will be lifted altogether. It is not only

15 reasonable, but prudent, to permit up to 5 days per week in the interim when necessary.

16

Defendants’ rush to cut ADHC services, paired with the complete failure to provide notice,

17 give participants information on or arrange for replacement services, or take any steps to prevent the

18 unnecessary institutionalization of Plaintiffs is culpable, and violates both the ADA and Section 504.

19

Case law is instructive here. In Fisher, the state imposed a rule limiting Medicaid coverage

20 of prescription drugs to only 5 prescriptions per month for individuals in the community. 335 F.3d

21 at 1178. If Medicaid beneficiaries required more than 5 prescriptions, they had to move into nursing

22 homes, where prescriptions were unlimited. Id. Plaintiffs requested an accommodation that would

23 enable them to obtain prescriptions in excess of the cap while still in their homes. The Tenth Circuit

24

25 11 ADHC services were specifically designed to “ensure that elderly persons and adults with

26 disabilities are not institutionalized inappropriately or prematurely,” recognizing that overreliance on

27

nursing facilities and institutions has proven to be a “costly panacea in both financial and human terms, often traumatic, and destructive of continuing family relationships and the capacity for

28

independent living.” Cal. Health & Safety Code § 1570.2. 12 For a more complete list and description of services see Section II. B. above.

18

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1 reversed a grant of summary judgment in defendants’ favor and held that the cap on prescriptions

2 could violate the ADA’s integration mandate. Id. The circuit court rejected the district court’s

3 holding that fiscal burdens associated with reasonable accommodations would necessarily require a

4 fundamental alteration, stating:

5

[It is not] clear why the preservation of a program as it has existed for

years . . . would fundamentally alter the nature of the program. . . .

6

Plaintiffs are simply asking that a service for which they would be

eligible under an existing state program . . . be provided in a

7

community-based setting rather than a nursing home. . . .

8 Id. at 1183. The court observed that “Congress was clearly aware that ‘while the integration of

9 people with disabilities will sometimes involve substantial short term burdens, financial and

10 administrative, the long range effects will benefit society as a whole.’” Id., quoting H.R. Rep. No.

11 101-485, pt. 3, at 50, reprinted in 1990 U.S.C.C.A.N. 445, 473. Moreover, the court questioned

12 whether the required accommodation would constitute a fiscal burden at all. In response to the

13 lower court’s suggestion that having to provide prescriptions in excess of the cap would force them

14 to eliminate the home based program all together, the court observed that:

15 16 17 Id. at 1183.

[g]iven that the cost of institutional care is nearly twice that of community based care, it seems unlikely that . . . elimination of the waiver program, would have solved Oklahoma’s fiscal crisis, because it could have served only to drive participants into nursing homes.

18

The situation in California is similar. Plaintiffs request only that Defendants ensure that

19 Plaintiffs have coverage for Medi-Cal replacement services, or, in cases where that is not possible,

20 continue to provide a cost-effective community alternative to institutional care -- ADHC services.

21 Missaelides Decl. ¶¶ 28, 38.

22

In Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) the plaintiff was a “categorically

23 needy” Medicaid recipient who lived in a community setting with Home and Community-Based

24 Services (HCBS) Waiver services. When his income increased slightly, he became ineligible for

25 HCBS Waiver services; thus, Mr. Townsend and those similarly situated would be forced to receive

26 long-term care services in nursing homes. The district court granted summary judgment in favor of

27 the State on the basis that the plaintiffs were requesting “new” services which were not required by

28 Olmstead. The Ninth Circuit reversed, concluding that the services sought by plaintiffs were not
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1 new, as they were already provided in a nursing home setting and requiring the State to demonstrate

2 that providing Waiver services to medically needy individuals would compel cutbacks in services to

3 other Medicaid recipients. As the Court pointed out:

4

[W]here the issue is the location of services, not whether services will

be provided, Olmstead controls.

5

Here, the precise issue is not whether the state must provide the long

6

term care services sought by Mr. Townsend and the class members –

the state is already providing these services – but in what location

7

these services will be provided. Mr. Townsend simply requests that

the services he is already eligible to receive under an existing state

8

program (assistance in dressing, bathing, preparing meals, taking

medications, and so on) be provided in the community-based adult

9

home where he lives, rather than the nursing home setting the state

requires.

10

11 Townsend, 328 F.3d at 517. See also Radaszewski v. Maram, No. 01-C 9551, 2008 WL 2097382

12 (N.D. Ill. 2008) (on remand, the Court ordered the state to provide community-based, in-home

13 nursing care above the state cap on services); Crabtree v. Goetz, 3:08-939, 2008 WL 5330506 (M.D.

14 Tenn. Dec. 19, 2008) (Memorandum); (enjoining state agency from reducing plaintiffs' home health

15 aide and nursing services, which would place them at risk of institutionalization, until individualized

16 assessments could be made of their specific needs for services).

17

As in Townsend, Plaintiffs have already been determined to need the bundle of services

18 available under the ADHC program. Plaintiffs’ Individual Plans of Care, and the services set forth

19 therein, have been authorized by Defendants as “medically necessary” to avoid a “high potential” for

20 health risks and deterioration “likely to result in emergency department visits, hospitalization, or

21 other institutionalization” without ADHC services. (Davis Decl. ¶¶ 24 and 31; McCloud Decl. ¶ 25.)

22 Their care needs and health require services that could be provided in their homes, or, although

23 undesirable, at an institution. (Davis Decl. ¶¶ 23, 30.) There is no dispute about eligibility or need

24 for services, just where these services must be provided. The ADA answers that question. Plaintiffs

25 should receive services at home, in the community with their families, where they desire to be.

26

As in Fisher, Radaszewski, Townsend, and Crabtree, Plaintiffs are not asking that a new

27 program be created, nor do they ask Defendants to fund a service that it otherwise would not fund in

28 an institutional setting. They simply ask that they continue to receive services in the community
20 BRANTLEY V. MAXWELL-JOLLY, C09-03798 MEJ: NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

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1 instead of in a nursing home. There are numerous ways that Defendants can deliver these services.

2 Accordingly, Plaintiffs are likely to succeed on the merits of this claim.

3

c. Defendants are Violating the Prohibition on Employing Methods of

Administration that Result in Discrimination.

4

5

The ADA prohibits methods of administration or contractual arrangements which, though

6 neutral on their face, have a discriminatory effect. A public entity may not:

7

directly or through contractual or other arrangements, utilize …

methods of administration (i) [t]hat have the effect of subjecting

8

qualified individuals with a disability to discrimination on the basis of

disability; [and](ii) [t]hat have the purpose or effect of defeating or

9

substantially impairing accomplishment of the objectives of the public

entity’s program with respect to individuals with disability.

10

11 28 C.F.R. § 35.130 (b)(3). Section 504 contains similar requirements. See 28 C.F.R.

12 § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4) (2005).

13

Defendants’ actions violate the methods of administration provision of the ADA and Section

14 504 by denying Plaintiffs access to community-based Medi-Cal services and by subjecting them to

15 unnecessary institutionalization in hospitals and nursing facilities, as follows:

16

1. by cutting Medi-Cal ADHC services before providing notice, which would

enable Plaintiffs and other beneficiaries to seek secure community-based replacement services;

17

2. by failing to provide information about alternative community-based services

18

under the Medi-Cal program, which are available to Plaintiffs and other beneficiaries in order to avoid hospitalization or placement in an institution;

19

3. by failing to provide enough time for Plaintiffs and other beneficiaries to

actually secure replacement community services prior to termination of current ADHC services;

20

4. by forcing Plaintiffs and other beneficiaries to be institutionalized pending the

issuance of the Director’s declaration reinstating ADHC services to up to 5 days per week;

21

5. by imposing ADHC cuts without regard to the individual needs of Plaintiffs

22

and other beneficiaries; 6. by providing no system by which Plaintiffs and beneficiaries may obtain

23 exceptions to the caps on services; 7. by failing to provide reasonable modification exceptions, including the

24 provision of ADHC services four – 5 days per week, as required to avoid unnecessary

institutionalization of Plaintiffs and other beneficiaries; and,

25

8. by forcing doctors and other providers into reducing levels of services

26

contrary to the documented medical needs of Plaintiffs and other beneficiaries, placing them at risk of institutionalization, physical harm or death.

27

28
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1

Defendants’ actions and inactions defeat or substantially impair the purpose of the ADHC

2 Medi-Cal program which is to “provide a viable alternative” and “ensure that elderly persons and

3 adults with disabilities are not institutionalized . . . prematurely.” Cal. Health & Safety Code §§

4 1570.7(a), (b) (West 2009). Defendants’ methods of administration undermine these goals.

5

3. Plaintiffs are Likely to Succeed on the Merits of their Claims that

Defendants are Violating the Due Process Clause of the Fourteenth

6

Amendment and Medicaid Law by Failing to Provide Adequate Pre-

7

termination Notice.

8

Defendants have failed to provide adequate pre-termination notice and opportunity for a

9 hearing, in violation of the Due Process Clause of the Fourteenth Amendment and the federal

10 Medicaid statute and regulations. The Fourteenth Amendment to the U.S. Constitution prohibits a

11 state from depriving any person of property without due process of law. U.S. Const. amend XIV,

12 § 1. Moreover, it is well established that Medicaid recipients have a statutory entitlement to benefits

13 that is protected by the Due Process Clause of the Fourteenth Amendment. See, e.g., O’Bannon v.

14 Town Court Nursing Center, 447 U.S. 773, 787 (1980) (Medicaid recipient has right protected by

15 due process to continued Medicaid benefits to pay for services from the qualified provider of his

16 choice). In Goldberg v. Kelly, 397 U.S. 254 (1970), the Court noted that termination of public

17 benefits “pending resolution of a controversy over eligibility may deprive an eligible recipient of the

18 very means by which to live while he waits.” Goldberg v. Kelly, 397 U.S. at 264 (emphasis in

19 original). Thus, the Court held that such individuals (which include Plaintiffs in this case) are

20 entitled, under due process, to an evidentiary hearing before benefits can be discontinued.

21 According to the Court, such recipients must also be given an “opportunity to be heard . . . at a

22 meaningful time and in a meaningful manner.” Goldberg, 397 at 267.

23

Further, the federal Medicaid statute and regulations require that a state provide notice and an

24 opportunity for an administrative hearing before it terminates eligibility or authorization for services.

25 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.220. The regulations require that, at the time of any

26 action affecting an individual’s claim to services, an individual must receive written notice of: (1)

27 the right to a hearing; (2) the method by which she may obtain a hearing; and (3) that she may

28 represent herself or be represented by another. 42 C.F.R. § 431.210. The notice must contain:
22 BRANTLEY V. MAXWELL-JOLLY, C09-03798 MEJ: NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

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1

(a) a statement of what action the State . . . intends to take;

(b) the reasons for the intended action;

2

(c) the specific regulations that support, or the change in Federal or State law that

3

requires, the action; (d) an explanation of –

4

(1) the individual’s right to request an evidentiary hearing if one is available,

or a state agency hearing; or

5

(2) In cases of an action based on a change in law, the circumstances under

which a hearing will be granted; and

6

(e) An explanation of the circumstances under which Medicaid is continued if a

7

hearing is requested.

8 Id. This notice must be mailed at least 10 days before the date of the action. 42 C.F.R. § 431.211:

9 Cal. Code of Regs. Tit. 22 §§ 50179(d), 51014.1(c). In addition, if a hearing is requested within 10

10 days, benefits must continue until the agency reaches a final decision. 42 C.F.R. § 431.230 (a).

11

Defendants have failed to provide Plaintiffs and other affected ADHC recipients with direct

12 or individualized notice of the imminent reduction in their benefits. The only notices to date have

13 been a web posting and mailing to providers. To date, the named Plaintiffs and other affected

14 ADHC recipients have not received any direct, individualized notice or personal copy of the web

15 notice. (McLorin Decl., ¶ 15; Gaspard-Berry Decl., ¶ 14; Garcia Decl. ¶ 17; Puckett Decl. ¶ 18.)

16 Nowhere in the web notice does it state that ADHC recipients may be entitled to services under other

17 Medi-Cal benefit programs, nor does the notice advise Plaintiffs of their right to a fair hearing, the

18 manner for requesting a hearing, their right to a continuation of benefits pending a hearing, or

19 whether components of their existing services or other similar other services may be available to

20 meet Plaintiffs’ needs which are established in their currently-authorized TARs. (Puckett Decl. ¶ 17,

21 Exh. B.)

22

Defendants may claim that Plaintiffs are not entitled to an opportunity for a hearing because

23 the change in ADHC benefits is based upon a change in law. See 42 C.F.R. § 431.220(b) (2002) (a

24 state agency “need not grant a hearing if the sole issue is a Federal or State law requiring an

25 automatic change adversely affecting some or all recipients” (emphasis added)). Even if this were

26 true, nothing exempts Defendants from the obligation to provide individual written notice ten days

27 before cutting Plaintiffs’ services, which Defendants have not done. 42 C.F.R. §§ 431.211, 431.213,

28 431.214; Cal. Code Regs. tit. 22, §§ 50179(d), 51014.1(c).
23 BRANTLEY V. MAXWELL-JOLLY, C09-03798 MEJ: NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

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1

Furthermore, Plaintiffs are entitled to a hearing. Other issues that could be addressed at a

2 hearing include whether they continue to be entitled to skilled nursing services, personal care

3 services, and other Medi-Cal services independent of the ADHC benefit. At the very least, Plaintiffs

4 should be granted hearings to determine whether there are other contested issues other than the

5 change in law reducing the ADHC benefit. 42 C.F.R. § 431.230(a)(1) (1980) (providing that, if a

6 hearing is requested within 10 days, benefits must continue pending a determination of whether the

7 sole contested issue is one of federal or state law.) Defendants have not even attempted to meet their

8 procedural due process obligations under the Medicaid law, or the Constitution’s due process clause.

9

4. The Balance of Equities is in Plaintiffs’ Favor

10

The balance of hardships tips sharply towards Plaintiffs. They stand to lose vital services at

11 risk to their health and lives. They are also at risk of institutionalization and its attendant loss of

12 independence and separation from family and community. In contrast, Defendants will suffer no

13 harm because the injunction will only require them to continue providing services in exactly the

14 same manner that it has done for years. Moreover, if the injunction is not granted, they would be

15 required to provide the same services in costly nursing homes, which is likely to be more expensive.

16

In any case, the expense incurred by providing benefits does not outweigh harm to plaintiffs.

17 See Daniels v. Wadley, 926 F. Supp. 1305 at 1313 (M.D. Tenn. 1996); Kansas Hosp. Ass’n v.

18 Whiteman, 835 F. Supp. 1548, 1552-1553 (D. Kan. 1993) (concluding that the threatened injuries to

19 the plaintiffs outweighed any harm to the defendant because changing Medicaid coverage

20 “significantly alters the status quo to the detriment of the individual plaintiffs, while its positive

21 budgetary impact on state coffers is negligible in a relative sense”).

22

In this case, it is extremely unlikely the state will realize any significant savings. Without

23 ADHC services, Plaintiffs and class members will face deteriorating, and ultimately acute, medical

24 conditions. They will be forced into expensive nursing homes where most of them are at risk of

25 deterioration and likely to require even more costly hospital admissions.

26

Finally, the Defendant cannot be harmed by complying with what the federal law requires.

27 Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986) (granting preliminary injunction requiring

28 defendant's compliance with federal Food Stamp law).
24 BRANTLEY V. MAXWELL-JOLLY, C09-03798 MEJ: NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

Case4:09-cv-03798-SBA Document14 Filed08/24/09 Page31 of 32

1

5. An Injunction is in the Public’s Interest

2

The public interest will be served by granting an injunction. The ADA and Section 504 are

3 based on strong public policy concerns. Congress enacted the ADA to build upon the guarantees of

4 Section 504 and to address the “serious and pervasive” social problem caused by discrimination

5 against people with disabilities and to provide a clear and comprehensive national mandate for

6 elimination of discrimination against individuals with disabilities. 42 U.S.C. § 12101. It serves the

7 public interest to carry out the mandates of these laws. See also Heather K. v. Mallard, 887 F. Supp.

8 1249, 1263, 1266 (N.D. Iowa 1995) (issuing temporary restraining order, holding that Americans

9 with Disabilities Act embodied the public interest in enforcement of anti-discrimination provisions

10 against public officials.

11 IV. CLASSWIDE RELIEF IS APPROPRIATE

12

Plaintiffs have also moved for certification of a class of ADHC beneficiaries, and a subclass

13 of ADHC beneficiaries immediately affected by the 5 to 3 day reduction. Classwide relief for the

14 class and subclass is appropriate at the TRO stage. A TRO will preserve the status quo until the

15 hearing on the preliminary injunction and class certification.

16 V. PLAINTIFFS SHOULD NOT BE REQUIRED TO POST BOND

17

This Court has the discretion to issue a preliminary injunction without requiring plaintiffs to

18 post bond. People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 19 F.2d 1319 modified on other grounds, 775 F.2d 998 (9th Cir. 1985). Exercise of that discretion is

20 particularly appropriate where an action is brought by a class of indigent plaintiffs. Orantes-

21 Hernandez v. Smith, 541 F.Supp. 351 (C.D. Cal. 1982).Plaintiffs, who are all Medicaid recipients,

22 seek a waiver of the security requirements in Fed. R. Civ. P. 65(c) where requiring security would

23 effectively deny access to judicial review. Van De Kamp, 766 F.2d at 1325. The Court also has

24 discretion to waive the bond in a case where issues of overriding public concern or important federal 25 rights are involved. See, e.g., Cont’l Oil Co. v. Frontier Ref. Co., 338 F.2d 780, 782 (10th cir. 1964).

26 VI. CONCLUSION

27

Therefore, Plaintiffs request that this Court issue a Temporary Restraining Order.

28
25 BRANTLEY V. MAXWELL-JOLLY, C09-03798 MEJ: NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

Case4:09-cv-03798-SBA Document14 Filed08/24/09 Page32 of 32

1 Date: August 24, 2009

Respectfully submitted,

2

DISABILITY RIGHTS CALIFORNIA

3

4

By:

/s/

Elizabeth Zirker

5

Attorneys for Plaintiffs

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
26 BRANTLEY V. MAXWELL-JOLLY, C09-03798 MEJ: NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

 
 Case4:09-cv-03798-SBA Document15 Filed08/24/09 Page1 of 31

1 Elizabeth Zirker, State Bar No. 233487 elizabeth.zirker@disabilityrightsca.org
2 Jay B. Koslofsky, State Bar No. 97024 jay.koslofsky@disabilityrightsca.org
3 Kim Swain, State Bar No. 100340 kim.swain@disabilityrightsca.org
4 Elissa Gershon, State Bar No. 169741 elissa.gershon@disabilityrightsca.org
5 Daniel Brzovic, State Bar No. 89493 Dan.brzovic@disabilityrightsca.org
6 Dara Schur, State Bar No. Dara.schur@disabilityrightsca.org
7 DISABILITY RIGHTS CALIFORNIA 1330 Broadway, Suite 500
8 Oakland, CA 94612 Telephone: (510) 267-1200
9 Facsimile: (510) 267-1201

10 Attorneys for Plaintiffs

11 [Complete list of counsel on following pages]

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

LILLIE BRANTLEY, by her guardian ad ) Case No.: C09-03798 MEJ

15 litem Chauncey McLorin; GILDA GARCIA; )

ALLIE JO WOODARD, by her guardian ad ) CLASS ACTION

16 litem Linda Gaspard-Berry, individually and )

on behalf of all others similarly situated,

) PLAINTIFFS’ NOTICE OF

17

) MOTION AND MOTION FOR

18

Plaintiffs,

19

vs.

) CLASS CERTIFICATION;

) ) )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

)

20 DAVID MAXWELL-JOLLY, Director of the ) Hearing Date, Time and Location to be set by

Department of Health Care Services, State of ) the Court at the Hearing on Plaintiffs’ Motion

21 California, DEPARTMENT OF HEALTH ) for Temporary Restraining Order

CARE SERVICES,

)

22

)

Defendants.

)

23

)

)

24

)

25

26

27

28

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Case4:09-cv-03798-SBA Document15 Filed08/24/09 Page2 of 31
1 Anna Rich, State Bar No. 230195 arich@nsclc.org
2 Kevin Prindiville, State Bar No. 235835 kprindiville@nsclc.org
3 NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525
4 Oakland, CA 94612 Telephone: (510) 663-1055
5 Facsimile: (510) 663-1051
6 Barbara Jones, State Bar No. 88448 bjones@aarp.org
7 AARP FOUNDATION LITIGATION 200 So. Los Robles, Suite 400
8 Pasadena, CA 91101 Telephone: (626) 585-2628
9 Facsimile: (626) 583-8538
10 Kenneth W. Zeller, Pro Hac Vice Pending kzeller@aarp.org
11 AARP FOUNDATION LITIGATION 601 E Street NW
12 Washington D.C. 20049 Telephone: (202) 434-2060
13 Facsimile: (202) 434-6424
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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Case4:09-cv-03798-SBA Document15 Filed08/24/09 Page3 of 31

1

TABLE OF CONTENTS

2

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION ............................1

3

MEMORANDUM OF POINTS AND AUTHORITIES.............................................................2

4

I. INTRODUCTION ...............................................................................................................2

5

II. STATEMENT OF THE ISSUE TO BE DECIDED .......................................................3

6

III. STATEMENT OF FACTS................................................................................................4

7

A. Description of Adult Day Health Care Program and Recipients .............................4

8

B. Passage of ABX4 5 ..................................................................................................5

9

C. New Restrictions on ADHC Eligibility ...................................................................6

10

IV. ARGUMENT......................................................................................................................6

11

A. This Lawsuit Satisfies All the Requirements of Rule 23 for Maintenance

12

As a Class Action.....................................................................................................6

13

B. Plaintiffs Meet the Standards for Certification Under Rule 23(a). ..........................7

14

1. The Proposed Class Meets the Numerosity Requirement of Rule 23(a) .....7

15

2. There are Questions of Law or Fact Common to All Members of the

Class. ............................................................................................................9

16

3. The Named Plaintiffs’ Claims Are Typical of the Claims of the Class.....12

17

4. The Named Plaintiffs and Their Attorneys Will Fairly

18

And Adequately Protect the Interests of the Class.....................................13

19

a. The Individual Plaintiffs’ Interests are Not

Antagonistic to Those of the Class ................................................14

20

b. Plaintiffs’ Counsel Are Qualified to Litigate This Action.............14

21

5. The Proposed Plaintiff Class Is Adequately Defined and Clearly

Ascertainable..............................................................................................15

22

C. This Case Satisfies Rule 23(b)(2) Because Defendant has Acted on Grounds

23

Generally Applicable to the Class Making Final Injunctive and Declaratory

Relief Appropriate. ................................................................................................16

24

D. The Court Should Designate Plaintiffs’ Counsel as Class Counsel Pursuant to

25

Rule 23 (g)(1)ed.....................................................................................................18

26

E. Precertification Class Notice is Not Required. ......................................................18

27 V. CONCLUSION..................................................................................................................20

28

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1 2 Cases

TABLE OF AUTHORITIES

3 Amchem Products v. Windsor 521 U.S. 591 (1997). ...................................................................................................................... 17
4
Armstrong v. Davis 5 275 F.3d 849 (9th Cir. 2001)...................................................................................................... 9, 10

6 Armstrong v. Pingree 7 629 F. Supp. 273 (M.D. Fla. 1986) .................................................................................................. 7

8 Arnold v. UA Theatre Circuit, Inc. 158 F.R.D. 439 (N.D. Cal 1994) .................................................................................................... 10
9
10 Ashmus v. Calderon 935 F.Supp. 1048 (N.D. Cal. 1996)................................................................................................. 8
11 Beltran v. Myers
12 701 F.2d 91 (9th Cir. 1983),........................................................................................................... 19

13 Blackie v. Barrack

14

524 F.2d 891 (9th Cir. 1975), cert. denied, 429 U.S. 816, 97 S.Ct.57, 50 L.Ed.2d 75 (1976). .... 6, 7

15 Burkhalter Travel Agency v. MacFarms Intern., Inc. 141 F.R.D. 144 (N.D. Cal. 1991....................................................................................................... 7
16

17

California Rural Legal Assistance v. Legal Services Corp. 917 F.2d 1171 (9th Cir. 1990).................................................................................................... 9, 10

18 Crawford v. Honig
19 37 F.3d 485 (9th Cir. 1994)............................................................................................................ 19

20 Cruz v. Bowen

21

672 F.Supp. 1300 (N.D. Cal. 1987).................................................................................................. 8

22 Dukes v. Wal-Mart, Inc. 474 F.3d 1214 (9th Cir. 2007)...................................................................................... 7, 8, 9, 10, 13
23 Eisen v. Carlisle & Jacquelin
24 417 U.S. 156 S.Ct. 2140, 40 L.Ed.2d 732 (1974) ........................................................................ 6, 7

25 Elliott v. Weinberger 26 564 F.2d 1219 n.12 (9th Cir. 1977).......................................................................................... 17, 19

27 Frederick L. v. Dep’t of Public Welfare 217 F.Supp.2d 581 (E.D. Pa. 2002)................................................................................................ 18
28

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Case4:09-cv-03798-SBA Document15 Filed08/24/09 Page5 of 31

1 Forbush v. J.C. Penney Co. 994 F.2d 1101 (5th Cir. 1993)........................................................................................................ 10
2

3

General Telephone Co. v. Falcon 457 U.S. 147 (1982) ................................................................................................. 9, 12, 17, 19, 20

4 Haley v. Medtronic, Inc.
5 169 F.R.D. 643 (C.D. Cal. 1996) ..................................................................................................... 9

6 Hanlon v. Chrysler Corp.

7

150 F.3d 1011 (9th Cir. 1998)................................................................................................ 8, 9, 13

8 Hanon v. Dataproducts Corp. 976 F.2d 497 (9th Cir. 1992).......................................................................................................... 12
9
Harris v. Palm Springs Alpine Estates 10 329 F.2d 909 (9th Cir. 1964)............................................................................................................ 7

11 In re MDC Holdings Securities Litig. 12 754 F. Supp 785 (S.D. Cal. 1990). ................................................................................................. 14

13 In re Northern Dist. of Cal. Dalkon Shield IUD Prods. Liab. Litig. 693 F.2d 847 (9th Cir. 1982).......................................................................................................... 14
14
15 In re Tableware Antitrust Litigation No. C 04-3514-VRW, 2007 U.S. Dist. LEXIS 21166, at *12 (N.D. Cal. Mar. 13, 2007)............. 16
16 Jones v. Diamond
17 519 F.2d 1090 (5th Cir. 1975)..................................................................................................... 7, 10

18 Jordan v. County of Los Angeles

19

669 F.2d 1311 (9th Cir.).............................................................................................................. 8, 12

20 Lancaster v. Tilton No. C 79-01630-WHA, 2006 U.S. Dist. LEXIS 75121 (N.D. Cal. Oct. 4, 2006) ..... 7, 8, 10, 12, 14
21

22

Ligas v. Maram No. 05 C 4331, 2006 U.S. Dist. LEXIS 10856 (N.D. Ill. Mar. 7, 2006)........................................ 18

23 Lightbourn v. County of El Paso
24 118 F.3d 421 (5th Cir. 1997).......................................................................................................... 12

25 Lopez v. Heckler

26

572 F. Supp. 26 (C.D. Cal. 1983),................................................................................................. 14

27 Lovely H. v. Eggleston 235 F.R.D. 248 (S.D.N.Y. 2006).............................................................................................. 17, 18
28

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Case4:09-cv-03798-SBA Document15 Filed08/24/09 Page6 of 31

1 Lukovsky v. City and County of San Francisco No. C 05-00389-WHA, 2006 U.S. Dist. LEXIS 3174 (N.D. Cal. Jan. 17, 2006).................... 15, 16
2

3

Lynch v. Rank 604 F.Supp. 30 (N.D. Cal. 1984), aff'd, 747 F.2d 528 (9th Cir. 1984) ........................................... 8

4 Marisol A. v. Giuliani
5 126 F.3d 372 (2d Cir. 1997) ..................................................................................................... 10, 17

6 Martin v. Taft

7

No. C2-89-362, 2005 U.S. Dist. LEXIS 19872 (S.D. Ohio Sept. 13, 2005).................................. 18

8

Moore v. Hughes Helicopters, Inc. 708 F.2d 475 (9th Cir. 1983)............................................................................................................. 6

9

Olmstead v. L.C. 10 527 U.S. 581 (1999) ....................................................................................................................... 19

11 Nat’l Federation of the Blind v. Target Corp.

12

No. C 06-01802-MHP, 2007 U.S. Dist. LEXIS 30513 (N.D. Cal. Apr. 25, 2007)....................... 16

13 Navarro-Ayala v. Hernandez-Colon 951 F.2d 1325 (1st Cir. 1991). ....................................................................................................... 19
14

15 Perez-Funez v. District Dir. 611 F.Supp. 990 (C.D. Cal. 1984).................................................................................................... 8

16

Rank v. Beltran

17

462 U.S. 1134 (1983) ................................................................................................................... 17

18 Rodriguez v. Hayes

19

-- F.3d --, 2009 WL 2526622 (9th Cir. 2009) ......................................................................... passim

20 Schwartz v. Harp 108 F.R.D. 279 (C.D. Cal. 1985). .................................................................................................. 12
21

22

Schwartz v. Upper Deck Co. 183 F.R.D. 672, 679-80 (S.D. Cal. 1999) ........................................................................................... 16

23 Serritella v. Engleman
24 39 F. Supp. 738 (D.N.J.), aff'd, 462 F.2d 601 (3d Cir. 1972) ........................................................ 14

25 Staton v. Boeing

26

27 F.3d 938 (9th Cir. 2003)........................................................................................................ 9, 11

27 Stolz v. United Bd. of Carpenters and Joiners of Am. 20 F.Supp. 396 (D. Nev. 1985). ............................................................................................... 17, 19
28

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Case4:09-cv-03798-SBA Document15 Filed08/24/09 Page7 of 31

1 Von Colln v. County of Ventura 189 F.R.D. 583 (C.D. Cal. 1999) .................................................................................................... 9
2

3

Walters v. Reno 45 F.3d 1032 (9th Cir. 1998).................................................................................................... 10, 17

4 Wang v. Chinese Daily News, Inc.
5 31 F.R.D. 602 (C.D. Cal. 2005). ...................................................................................................... 7

6 Williams v. Blagojevich

7

No. 05 C 4673, 2006 U.S Dist. LEXIS 83537 (N.D. Ill. Nov. 13, 2006) ...................................... 17

8 Wyatt v. Poundstone 169 F.R.D. 155 (M.D. Ala. 1995) .............................................................................................. 8, 10
9

10 Statutes

11 United States Constitution

12 29 U.S.C.

13

§ 794 ........................................................................................................................................ passim

14 42 U.S.C. § 1983 ............................................................................................................................................... 2

15 § 5001 ............................................................................................................................................. 15

§ 10801 ........................................................................................................................................... 15 16 § 12131 .................................................................................................................................... passim

17

§ 13969 ............................................................................................................................................. 2

18 California Government Code (2006)

19

§ 11135 ............................................................................................................................................. 2

20 California Health & Safety Code

21

§ 1570 ............................................................................................................................................... 4

22 California Welfare & Institutions Code § 4900 ............................................................................................................................................. 15

23 § 14521 ............................................................................................................................................. 6

§ 14132 ............................................................................................................................................. 5 24 § 14522 ............................................................................................................................................. 6

25

§ 14525 ............................................................................................................................................. 6 § 14526 ............................................................................................................................................. 5

26

27

28

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1 Rules 2
Federal Rules of Civil Procedure 3 Rule 23. ................................................................................................................................... passim 4
Treatises 5
1 Newberg on Class Actions (4th ed. 2002) § 3.5 ................................................................................... 6
2 Newberg on Class Actions § 8.05 (1995) ........................................................................................ 19 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

2

TO: DAVID MAXWELL-JOLLY, Director of the Department of Health Care Services,

3

State of California, DEPARTMENT OF HEALTH CARE SERVICES AND ITS

4

ATTORNEYS OF RECORD

5

PLEASE TAKE NOTICE that at the date, time and location set by the Court at the Hearing

6 on Plaintiffs’ Motion for Temporary Restraining Orders, or as soon thereafter as counsel may be

7 heard, in the United States District Court for the Northern District of California, the individual

8 Plaintiffs Lillie Brantley, by her guardian ad litem Chauncey McLorin; Gilda Garcia; and Allie Jo

9 Woodard, by her guardian ad litem Linda Gaspard-Berry, individually and on behalf of all others

10 similarly situated, will and do hereby move under Rules 23(a) and 23(b)(2) of the Federal Rules of

11 Civil Procedure for an order certifying the following class for the purposes of injunctive and

12 declaratory relief:

13

“All recipients of Medi-Cal in the State of California who receive

14

Adult Day Health Care Services whose Adult Day Health Care

15

Benefits will be limited, cut, or terminated under the provisions of

16

ABX4 5.”

17

Plaintiffs will also and do hereby move at this time for certification of a “Limitation of

18 Benefits Subclass” on the First, Second, Third, Fourth and Sixth Claims for Relief to be defined as:

19

“All Medi-Cal beneficiaries who, as of August 26, 2009, have been authorized to

20

receive four or five days of Adult Day Health Care Services by DHCS, and whose

21

services will be reduced to a maximum of three days under the provisions of

22

ABX4 5.”

23

Plaintiffs further request that this Court appoint Plaintiffs’ counsel to serve as class counsel,

24 and that the Court dispense with any requirement for Plaintiffs to provide unnamed plaintiff class

25 members notice of the pendency of this action at this stage of the litigation.

26

The individual Plaintiffs move for certification because the above-defined plaintiff class and

27 subclass are so numerous that joinder would be impracticable, there are common questions of law or

28 fact among the class members and subclass members, the claims of the representative plaintiffs are

1
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1 typical of those of the class and subclass, and the representative plaintiffs and their counsel will

2 fairly and adequately represent the class and subclass interests. Additionally, Defendant David

3 Maxwell-Jolly, Director of the Department of Health Care Services, State of California and

4 Defendant Department of Health Care Services have acted or refused to act on grounds applicable to

5 the entire class and subclass, rendering declaratory and injunctive relief appropriate to the class and

6 subclass as a whole.

7

This Motion is based on the following Memorandum of Points and Authorities, the

8 Declarations of Class Counsel Elizabeth Zirker, Anna Rich, Barbara Jones, and Sara Somers; the

9 Declarations filed in Support of Plaintiffs’ Motion for Temporary Restraining Order, Preliminary

10 Injunction, and Class Certification and attached exhibits; the arguments of counsel; and all other

11 relevant pleadings, briefs and evidence made of record.

12

MEMORANDUM OF POINTS AND AUTHORITIES

13

I. INTRODUCTION

14

The individual Plaintiffs seek an Order certifying this case as a class action pursuant to Rule

15 23 of the Federal Rules of Civil Procedure. They represent a putative class of elderly people and

16 people with disabilities who currently receive Adult Day Health Care services (“ADHC”) which

17 allow them to live safely in their homes. (Complaint ¶¶ 2, 107, 114, 121.) They bring an action to

18 enforce the rights of the putative class members to receive notice and hearing before termination of

19 Medicaid benefits and to enforce the integration mandates of federal law. The individual Plaintiffs

20 seek exclusively declaratory and injunctive relief under: (a) the Americans with Disabilities Act, as

21 Amended by the American with Disabilities Act Amendments Act of 2008 (“ADA”), 42 U.S.C.

22 §§ 12131 et seq. (2000, as amended in 2008); (b) Section 504 of the Rehabilitation Act of 1973, 29

23 U.S.C. §§ 794 et seq. (2000) (“Section 504”); (c) the United States Constitution; (d) Title XIX of

24 the Social Security Act, (the Medicaid Act), 42 U.S.C. § 13969(a); (e) 42 U.S.C. § 1983; and (f)

25 Section 11135 of the California Government Code, California Government Code Sections 11135

26 (2006) (“Section 11135”). (Complaint ¶¶ 3, 115-145, Request for Relief, p. 30 et seq.)

27

As a result of Defendants’ failure to carry out the “integration mandate” of federal law, the

28 individual Plaintiffs and the class members they propose to represent are at risk of being

2
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1 unnecessarily institutionalized, and will be denied the right to receive the community-based services

2 they need in order to live in their own homes and communities. (Complaint ¶¶ 118-122; Steinke

3 Decl. ¶¶ 21-24; McCloud Decl. ¶¶ 20-26; Davis Decl. ¶¶ 24-25, 27-32.) Defendants’ policies and

4 practices with respect to community-based Medi-Cal services will result in risk of injury, death,

5 unnecessary segregation, and isolation of the putative class members away from their families and

6 home communities. Id.

7

This action readily satisfies the requirements for class certification under Rule 23(a) and the

8 requirements of Rule 23(b)(2). First, the proposed class consists of over 36,000 members and the

9 proposed subclass consists of more than 8,000 members, thus making joinder impracticable.

10 Second, members of the proposed class and subclass share common issue of fact and law as they are

11 currently threatened and will continue to be threatened with the denial of ADHC benefits to which

12 they are entitled and with the risk of discriminatory institutionalization. Third, the named Plaintiffs

13 satisfy the typicality requirement because they are threatened with the loss of ADHC benefits, and in

14 regard to the subclass, with the loss of two days a week of ADHC benefits. Fourth, Plaintiffs are

15 adequate class representatives because they have no conflicts with the claims of putative class

16 members. Likewise, Plaintiffs’ attorneys have no conflict with the claims of putative class members

17 and have substantial experience in class actions, public benefits cases, ADA and 504 cases, and other

18 complex civil rights cases in federal court, making them more than adequate case counsel.

19

This case is appropriate under Rule 23(b)(2) because the class has been subject to a common

20 set of practices for which they only seek injunctive relief.

21

Plaintiffs therefore request that the Court certify the proposed class and subclass, and appoint

22 Plaintiffs’ counsel to serve as class counsel. Plaintiffs also request that once the class is certified,

23 they not be required to give unnamed plaintiff class members notice of the pendency of this action

24 prior to judgment. Pre-judgment notice is not required in Rule 23(b)(2) class actions.

25

II. STATEMENT OF THE ISSUES TO BE DECIDED

26

This Motion presents the following issues for decision by this Court:

27

Issue No. 1: Should the following Plaintiff class be certified under Rule 23(a) and Rule

28 23(b)(2) of the Federal Rules of Civil Procedure?

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1

“All recipients of Medi-Cal in the State of California who receive Adult Day Health Care

2 Services whose Adult Day Health Care Benefits will be limited, cut, or terminated under the

3 provisions of ABX4 5.”

4

Issue No. 2: Should the following Plaintiff subclass be certified under Rule 23(a) and Rule

5 23(b)(2) of the Federal Rules of Civil Procedure for the First, Second, Third, Fourth and Sixth

6 Claim for Relief?

7

“Limitation of Benefits Subclass” to be defined as “all Medi-Cal beneficiaries who, as of

8 August 26, 2009, have been authorized to receive four or five days of Adult Day Health Care

9 Services by DHCS, and whose services will be reduced to a maximum of three days under the 10 provisions of ABX4 5.”1

11

Issue No. 3: Assuming that a Plaintiff class and subclass as defined above are certified

12 under Rule 23(a) and Rule 23(b)(2) of the Federal Rules of Civil Procedure, should the individual

13 Plaintiffs be required to give notice of the pendency of this action to unnamed class members prior

14 to judgment?

15

III. STATEMENT OF FACTS

16

A. Description of Adult Day Health Care Program and Recipient.

17

Adult Day Health Care is a community-based day program for low income seniors and

18 younger disabled adults. Adult Day Health Care programs provide comprehensive health and social

19 services centered on a multi-disciplinary team approach with skilled professionals providing

20 individualized care, treatments and services to frail elderly and disabled persons, in order to maintain

21 their ability to reside in their own homes or with their families. (Complaint ¶ 1.)

22

The California legislature specifically intended ADHC as an alternative to institutional care.

23 Cal. Health & Safety Code § 1570.2. The ADHC program includes as an eligibility criteria for

24 receipt of services that: “A high potential exists for the deterioration of the participant’s medical,

25

26 1 Plaintiffs reserve the right to seek certification of the following subclass at a later date: 27 “Termination of Benefits Subclass” to be defined as “all present and future Medi-Cal beneficiaries
who have been authorized to receive any Adult Heath Care services, and whose ADHC services will 28 be terminated under the provisions of ABX4 5 at the time DHCS issues new classification standards
pursuant to that statute for receipt of ADHC services.” See Complaint, Fifth Claim for Relief.
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1 cognitive, or mental health condition or conditions in a manner likely to result in emergency

2 department visits, hospitalization, or other institutionalization if adult day health care services are

3 not provided.” Cal. Welf. & Inst. Code § 14526.1(d)(4). The goal of the ADHC program is to

4 prevent avoidable hospitalizations, emergency department use and nursing facility placement by

5 improving and stabilizing an individual’s daily functioning, medical conditions and mental status.

6 (Complaint ¶ 52.)

7

Adult Day Health Care services are generally provided at a community based center.

8 (Complaint ¶ 53.) Participants live at home or in assisted living, and are transported to and from the

9 program center on a daily basis. ADHC programs are required to provide skilled nursing, skilled

10 social work, therapeutic activities, dietician and nutritionally customized meal services, skilled

11 physical therapy, skilled occupational therapy, skilled speech and language pathology services,

12 skilled mental health services and non-emergency transportation to and from the center. Individuals

13 can participate in ADHC from one to five days per week, depending on their needs and medical

14 authorizations. (Complaint ¶ 38.)

15

The ADHC serves over 36,000 individuals throughout California. (Missaelides Decl., ¶ 27,

16 Exh. C.) While the majority of persons served are elderly and frail, ADHCs also serve non-elderly

17 adults with chronic disabling mental health, cognitive or physical conditions: for example, chronic

18 schizophrenia, Parkinson’s disease, Alzheimer’s disease, stroke, or head injury. (Complaint ¶ 57.)

19 Every recipient meets the criteria in the California Welfare and Institutions Code section

20 14526.1(d)(4) that he or she is at risk of hosptilization or institutionalization without ADHC

21 services. (Complaint ¶ 52.)

22

B. Passage of ABX45

23

The Governor signed ABX4 5 on July 28, 2009. ABX4 5 provides that effective 30 days

24 after the law is signed by the Governor, the maximum number of days that any ADHC participant

25 may be authorized for Medi-Cal funding to attend ADHC is cut from five to three, regardless of

26 current authorizations or the health condition of the individual. Cal. Welf. & Inst. Code § 14132(p),

27 effective August 27, 2009. (Complaint ¶ 62.) These cuts are scheduled to occur on August 27,

28 2009. The reduction in the ADHC benefit from four or five days to three days will affect

5
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1 approximately 8,000 individuals. (Complaint ¶ 63.) This group of individuals are members of the

2 “Limitation of Benefits Subclass” discussed below.

3

C. New Restrictions on ADHC Eligibility

4

In addition to the cut in the maximum number of ADHC days, new restrictions limiting who

5 is eligible to receive ADHC services will go into effect if and when the Director of DHCS provides a
6 written declaration that new restrictions are ready to be implemented. Cal. Welf. & Inst. Code § 14521.1, effective August 27, 2009. These new restrictions will terminate or deny ADHC services
7 to individuals based on degree of functional limitation and need for a certain level of care. The
8 statute provides that at the time of the declaration of new restrictions by the Director, the ADHC
9 benefit will revert back to a maximum of five days per week for the individuals who remain eligible.

10 Plaintiffs have alleged that these new restrictions violate the law, and they are addressed by the

11 proposed “Termination of Benefits Subclass” to be defined as “all present and future Medi-Cal
12 beneficiaries who have been authorized to receive any Adult Day Health Care services, and whose ADHC services will be terminated under the provisions of ABX4 5 at the time DHCS issues new
13 classification standards pursuant to that statue for receipt of ADHC services.” (Complaint ¶ 110(b),
14 Fifth Claim for Relief.) However, these proposed cuts are not yet in place. Cal. Welf. & Inst. Code 15 §§ 14525.1, 14522.4(a)(10), effective August 27, 2009. Therefore, at this point Plaintiffs do not

16 seek certification of the subclass affected by this component of ABX4 5.

17

IV. ARGUMENT

18

A. This Lawsuit Satisfies All the Requirements of Rule 23 for Maintenance as a

Class Action

19

20

Rule 23(c) specifies that at an “early practicable time” after commencement of an action the

21 court shall determine whether the action is to be maintained as a class action. Fed.R.Civ.P. 22 23(c)(1)(A); see also Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975), cert. denied, 429 U.S.

23 816, 97 S.Ct.57, 50 L.Ed.2d 75 (1976). In determining whether an action warrants class treatment

24 under Rule 23, “the question is not whether the plaintiff or plaintiffs have stated a cause of action or

25 will prevail on the merits, but rather whether the requirements of Rule 23 are met. Eisen v. Carlisle

26 & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (quotations and citation 27 omitted); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983) (same.)

28

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1

“No weighing of competing evidence” is appropriate on a class certification motion. Wang v.

2 Chinese Daily News, Inc., 231 F.R.D. 602, 605 (C.D. Cal. 2005). Indeed, the Court should accept

3 the factual allegations in the Complaint as true at this stage in the proceedings. Blackie, 524 F.2d at

4 901 n.17; Burkhalter Travel Agency v. MacFarms Intern., Inc., 141 F.R.D. 144, 152 (N.D. Cal.

5 1991); see Eisen, 417 U.S. at 177.

6

As discussed below, this class meets all the requirements of Rule 23(a): numerosity,

7 commonality, typicality, and adequacy of representation. In addition, this class meets the

8 requirements of Rule 23(b)(2) in that declaratory and injunctive relief predominates and is

9 appropriate.

10

B. Plaintiffs Meet the Standards for Certification Under Rule 23(a).

11

Rule 23(a) of the Federal Rules of Civil Procedure allows an action to be maintained as a

12 class action provided that it meets four prerequisites: “(1) the class is so numerous that joinder is

13 impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses

14 of the representative parties are typical of the claims or defenses of the class, and (4) the

15 representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. 16 P.23(a). See Rodriguez v. Hayes, -- F.3d --, 2009 WL 2526622, *10 (9th Cir. 2009); Dukes v. Wal-

17 Mart, Inc., 474 F.3d 1214, 1224 (9th Cir. 2007); Lancaster v. Tilton, No. C 79-01630-WHA, 2006

18 U.S. Dist. LEXIS 75121, at *19-20 (N.D. Cal. Oct. 4, 2006). Rule 23(a) should be read liberally in

19 the context of civil rights suits. Armstrong v. Pingree, 629 F. Supp. 273, 279 (M.D. Fla. 1986) 20 (citing Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975)). As shown below, the proposed class

21 here easily satisfies all of the requirements of 23(a).

22

1. The Proposed Class Meets the Numerosity Requirement of Rule 23(a).

23

A class action may be maintained only if “the class is so numerous that the joinder of all

24 parties is impracticable.” Fed. R. Civ. P. 23(a)(1). Impracticability addresses the expense and

25 burden, to the parties and the court, of litigating each claim individually, rendering the case difficult

26 or inconvenient without joining all members of the class. Harris v. Palm Springs Alpine Estates,

27 329 F.2d 909, 913-14 (9th Cir. 1964); Wang, 231 F.R.D. at 605. Courts have often found the

28 numerosity requirement satisfied by the sheer number of class members. See, e.g., Lancaster, 2006

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1 U.S. Dist. LEXIS 75121, at *20-21 (finding numerosity in a class of over 600 prisoners housed at

2 San Quentin); Wyatt v. Poundstone, 169 F.R.D. 155, 164 (M.D. Ala. 1995) (upholding class of 1,000

3 persons with developmental disabilities in state facilities). The fact that the exact size of the class

4 cannot be easily ascertained does not preclude class certification. Lynch v. Rank, 604 F.Supp. 30, 36

5 (N.D. Cal. 1984), aff'd, 747 F.2d 528 (9th Cir. 1984). A court may find the numerosity requirement

6 has been met where the exact size of the class is unknown but general knowledge and common sense

7 indicate that it is large. Dukes, 474 F.3d at 1224; Cruz v. Bowen, 672 F.Supp. 1300, 1304 (N.D. Cal.

8 1987).

9

While there is no exact numerical formula, a class of over 100 members satisfies the

10 numerosity requirements. See 1 Newberg on Class Actions (4th ed. 2002) § 3.5 at 247 (“as few as 40

11 class members should raise a presumption that joinder is impracticable”). Courts in the Ninth

12 Circuit have found that classes of far fewer than 100 persons are sufficiently numerous to render 13 joinder impracticable. See, e.g., Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 (9th Cir.),

14 vacated and rem’d on other grounds, 459 U.S. 810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982) (“we would

15 be inclined to find the numerosity requirement in the present case satisfied solely on the basis of the

16 number of ascertained class members, i.e., 39, 64, and 71 . . . .”); Perez-Funez v. District Dir., 611

17 F.Supp. 990, 995 (C.D. Cal. 1984) (“Classes consisting of 25 members have been held large enough

18 to justify certification.”); Ashmus v. Calderon, 935 F.Supp. 1048, 1064 (N.D. Cal. 1996) (52 class

19 members).

20

In this case, there is no question that joinder is impracticable. There are in excess of 36,000

21 people in the class. (Complaint, ¶ 63, Missaelides Decl., ¶ 27, Exh. C.) The “Limitation of Benefits

22 subclass” consists of more than 8,000 people. (Missaelides Decl., ¶ 33, Exh. D)

23

Apart from the sheer number of affected individuals, joinder is not considered feasible when

24 “members of the class, who are by definition poor and disabled, do not have the economic means to

25 pursue remedies on an individual basis.” Lynch, 604 F. Supp. at 36. In this case, the proposed class

26 as defined possesses this characteristic because it consists of persons with disabilities who qualify

27 for Medi-Cal benefits based on their inability to pay for their medical care. (Complaint, ¶ 109.)

28

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1 Those who must survive on public assistance programs cannot afford to prosecute individual legal

2 claims.

3

The numerosity requirement of Rule 23(a)(1) is therefore satisfied in this case.

4

2. There are Questions of Law or Fact Common to All Members of the

Class.

5

6

Rule 23(a)(2) requires that there be either “questions of law or fact common to the class.”

7 Fed. R. Civ. P. 23(a)(2). “[F]or the commonality requirement to be met, there must only be one

8 single issue common to the proposed class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th

9 Cir. 1998) (“All questions of fact and law need not be common to satisfy the rule. The existence of

10 shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts

11 coupled with disparate legal remedies within the class.”); Staton v. Boeing, 327 F.3d 938, 953 (9th

12 Cir. 2003) (quoting Hanlon); Haley v. Medtronic, Inc., 169 F.R.D. 643, 648 (C.D. Cal. 1996). The

13 commonality requirement is met “where the lawsuit challenges a system-wide practice or policy that

14 affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001).

15 Courts do not treat commonality as a difficult hurdle; the requirement should be “construed 16 permissively.” Hanlon, 150 F.3d at 1019.2

17

This requirement “focuses on the relationship of common facts and legal issues among class

18 members.” Dukes, 474 F.3d at 1225. A class action is particularly appropriate when the issues

19 involved are common to the class as a whole and when they “turn on questions of law applicable in

20 the same manner to each member of the class.” Falcon, 457 U.S. at 155. Rule 23(a)(2) does not

21 require the named plaintiffs to be “identically situated with all other class members;” it is enough if

22 their situations share a common issue of law or fact and are sufficiently parallel to ensure a vigorous

23 and full presentation of all claims for relief. California Rural Legal Assistance v. Legal Services

24

25 2In addition, courts apply the commonality requirement more liberally where, as here, plaintiff seeks
26 class certification under Rule 23(b)(2) because a proposed class seeking declaratory or injunctive relief generally challenges policies and practices affecting an identifiable group in the same way. See
27 Von Colln v. County of Ventura, 189 F.R.D. 583, 591 (C.D. Cal. 1999) (“[W]hen addressing commonality of class members proposed under Rule 23(b)(2), a court may employ a liberal
28 definition of commonality.”).

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1 Corp., 917 F.2d 1171, 1175 (9th Cir. 1990) (citations omitted). Plaintiffs need only present a single

2 issue of law or fact common to all class members, and not all questions of law and fact must be

3 common. Rodriguez, 2009 WL 2526622 at *10; Dukes, 474 F.3d at 1225 (pointing out that the

4 commonality requirement is qualitative rather than quantitative; “one significant issue common to

5 the class may be sufficient to warrant certification”).

6

Even when the effect on each class member differs, a common allegation that a governmental

7 Defendants’ general or systemic policy, procedure, or practice is discriminatory or illegal suffices to

8 establish commonality of the claims. Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (citing

9 Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993)); Arnold v. UA Theatre Circuit,

10 Inc., 158 F.R.D. 439, 448 (N.D. Cal 1994) (common questions of failure to provide reasonable

11 accommodations existed regardless of class members’ different disabilities and accommodation

12 needs; commonality is “met by the alleged existence of common discriminatory practices. The

13 actions of the defendant need not affect each member of the class in the same manner.”) (citations

14 omitted). The Ninth Circuit has held, specifically in the civil rights context, that “commonality is

15 satisfied where [a] . . . lawsuit challenges a system-wide practice or policy that affects all of the

16 putative class members . . . In such circumstance [sic], individual factual differences among the

17 individual litigants or groups of litigants will not preclude a finding of commonality.” Armstrong v.

18 Davis, 275 F.3d at 868 (affirming certification of class of prisoners with disabilities despite facts

19 showing different disabilities and accommodation needs because entire class had common issues

20 related to systemic policies and implementation) (citations omitted); accord Lancaster, 2006 U.S.

21 Dist. LEXIS 75121, at *21. See also Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (in

22 class action involving foster children, court held “[t]he unique circumstances of each child do not

23 compromise the common question of whether, as plaintiffs allege, defendants have failed to meet

24 their federal and state law obligations.”); Wyatt, 169 F.R.D. at 165 (allegation that “defendants have

25 not given them [plaintiffs] an informed choice to live in the community” was common question of

26 law sufficient to uphold class determination). The Ninth Circuit has observed that courts “have

27 generally given [Rule 23(a)(2)] a permissive application in a variety of substantive law areas so that

28 the commonality requirement is usually found to be satisfied.” Jordan, 669 F.2d at 1320.

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1

In this case, the overriding issues are Defendants’ compliance with the federal and state

2 statutes that require them to afford access to home and community-based services for persons with

3 disabilities who are able to live in the community, and Defendants’ compliance with constitutional

4 and statutory requirements for notice and due process. This includes a challenge to Defendants’

5 policies and practices that will lead to the unnecessary institutionalization and segregation of people

6 with disabilities. See Olmstead v. L.C., 527 U.S. 581, 600 (1999) (“unjustified isolation of persons

7 with disabilities is discrimination” under the ADA).

8

There are many questions of law and fact common to the members of the proposed class.

9 Among the common issues of law are:

10

(1) Whether Defendants violated the integration mandate of the Americans with

11 Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) by cutting

12 their community-based ADHC services, causing Plaintiffs to be segregated and confined

13 unnecessarily in institutional settings in order to receive services, rather than continuing to provide

14 those services in appropriate, integrated settings in plaintiffs’ homes and communities;

15

(2) Whether Defendants violated the methods of administrative provisions of ADA and

16 Section 504 by cutting ADHC benefits in a manner which discriminates or has the effect of

17 discriminating against class members; and

18

(3) Whether Defendants violated Plaintiffs’ rights arising from Medicaid and

19 constitutional obligations of notice and due process.

20

Because the issue of Defendants’ compliance with the federal statutes is common to all class

21 members, the commonality requirement has been satisfied.

22

Common issues of fact also unite the class. For example, all class members are Medicaid

23 beneficiaries receiving ADHC services who allege failure to get notice.

24

Furthermore, the prosecution of separate actions by individual members of the class would

25 create a risk of inconsistent or varying adjudication, establishing incompatible rules of law for the

26 provision of services to people with disabilities served by the ADHC program.

27

Any differences in the ways in which these policies and practices affect individual class

28 members do not undermine the finding of commonality. Staton, 313 F.3d at 447, 464 (where

11
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1 plaintiffs have alleged a “complex of discriminatory practices,” individual class members need not

2 have been affected by every practice); Jordan, 669 F.2d at 1320 (“The legality of defendant’s

3 practice or policies will usually be a question common to the class, and the existence of different

4 factual questions with respect to various [plaintiffs] will not defeat satisfaction of the commonality
5 requirement”).
6

7

A common inquiry is the plainly most efficient and appropriate way to answer any and each

8 of the common factual and legal questions posed in this case.

9

3. The Named Plaintiffs’ Claims Are Typical of the Claims of the Class.

10

Rule 23(a)(3) requires that the claims of the class representatives be typical of the class

11 claims. Fed. R. Civ. P. 23(a)(3); Jordan, 669 F. 2d at 1321. “A class representative must be part of

12 the class and possess the same interest and suffer the same injury as the class members.” General,

13 457 U.S. at 156 (citations omitted). The primary purpose of the typicality requirement is to ensure

14 that the nature of the claims brought by the class representative are so interrelated that the interests

15 of the class members will be fairly and adequately protected in their absence. Id. at 157. In other

16 words, the interests of the class representatives must align with the interests of the class. Lancaster,

17 2006 U.S. Dist. LEXIS 75121, at *25 (citing Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th

18 Cir. 1992)).

19

Like commonality, typicality does not require that each class member share the same factual

20 situation. The Supreme Court has recognized that “the commonality and typicality requirements of

21 Rule 23(a) tend to merge….” Falcon, 457 U.S. at 158 n.13. “[A] named plaintiff’s claim is typical if

22 it stems from the same event, practice or course of conduct that forms the basis of the class claims

23 and is based upon the same legal or remedial theory.” Id. See also Rodriguez, 2009 WL 2526622

24 at*11; Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985). In such a situation, “varying factual

25 differences between the claims or defenses of the class and the class representative will not render

26 the named representative's claim atypical.” Jordan, 669 F.2d at 1321. “The test for typicality, like

27 the test for commonality, is not demanding.” Lightbourn v. County of El Paso, 118 F.3d 421, 425

28 (5th Cir. 1997). “Like the commonality requirement, typicality is “permissive” and requires only

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1 that the representative’s claims are “reasonably co-extensive with those of absent class members;

2 they need not be substantially identical.” Rodriguez, 2009 WL 2526622 at *10 citing Hanlon, 150

3 F.3d at 1020.

4

Here, the claims of the named Plaintiffs mirror those of the class as a whole. Each of the

5 individual Plaintiffs is a recipient of Adult Day Health Care services and a Medicaid recipient. Each

6 of them faces termination or reduction of the services that allow them to remain safely in their

7 homes (McLorin Decl. ¶¶ 17, 18; Garcia Decl. ¶ 18; Gaspard-Berry Decl. ¶¶ 16-17; Steinke Decl. ¶¶

8 22-24; Davis Decl. ¶ 25; McCloud Decl. ¶¶ 26-27; Perelman Decl. ¶¶ 14-15). The individual

9 Plaintiffs, like the proposed class as a whole, charge Defendants with violations of federal law due to

10 their proposed reduction of ADHC benefits without notice. Their claims typify the claims of the

11 class and they seek the same relief as all class members.

12

Regardless of any individual differences among class members, each has sustained the same

13 discrimination and injuries resulting from the same course of conduct by Defendants. The claims of

14 the individual Plaintiffs are typical of all unnamed class members who may lose ADHC services due

15 to ABX4 5. In addition, the claims of the named Plaintiffs are typical of all unnamed class members

16 whose ADHC benefits may be reduced from 4 or 5 days to 3 days a week. Each of the named

17 plaintiffs currently gets ADHC benefits for 5 days and each of them will have those benefits reduced

18 to 3 days if defendants’ practices are not enjoined. (Complaint, ¶¶ 9, 14, 17, 62.)

19

Hence, the requirements of Rule 23(a)(3) are met for both the proposed class and the

20 proposed subclass.

21

4. The Named Plaintiffs and Their Attorneys Will Fairly and Adequately

Protect the Interests of the Class.

22

23

The final requirement of Rule 23(a) is that the representative parties must “fairly and

24 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy of

25 representation requirement is two-fold: (1) the proposed class representatives must not have conflicts

26 of interest with the proposed class, and (2) they must have qualified and competent counsel. Dukes,

27 474 F.3d at 1233. Because the individual Plaintiffs have no interests that conflict with or are

28

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1 antagonistic to those of the class, and their counsel are qualified, Plaintiffs meet this requirement as

2 well.

3

a. The Individual Plaintiffs’ Interests are Not Antagonistic to

Those of the Class

4

5

The class representatives do not have any interests that are antagonistic to the interests of the

6 class. This inquiry includes examination of whether there is antagonism between the representatives

7 and class members, a sharing of interests between the representatives and class members, and the

8 unlikelihood that the suit is collusive. In re Northern Dist. of Cal. Dalkon Shield IUD Prods. Liab.

9 Litig., 693 F.2d 847, 855 (9th Cir. 1982); accord Lancaster, 2006 U.S. Dist. LEXIS 75121, at *28;

10 Rodriguez, 2009 WL 2526622, at *12.

11

Here, as discussed above, the individual Plaintiffs’ claims and their injuries are typical of

12 those of the proposed class members. None of the individual Plaintiffs seeks personal damages or

13 other individualized relief to the exclusion of other class members. To the contrary, the focus of this

14 litigation is the grant of broad injunctive relief that will benefit the entire class. Collusion is absent.

15 No conflicts exist which could hinder the individual Plaintiffs’ ability to pursue the litigation

16 vigorously on behalf of the class. They will fairly and adequately protect the interests of the class.

17

b. Plaintiffs’ Counsel Are Qualified to Litigate This Action.

18

Rule 23(a)(4) also requires that the proposed class representatives be able to prosecute the

19 action vigorously through qualified counsel. In re MDC Holdings Securities Litig., 754 F. Supp 785,

20 802 (S.D. Cal. 1990). It has been recognized that public interest attorneys with experience in

21 protecting the interests of the poor adequately represent class interests. See, e.g., Lopez v. Heckler,

22 572 F. Supp. 26, 31 (C.D. Cal. 1983), modified on other grounds, 725 F.2d 1489 (9th Cir.), vacated

23 and remanded on other grounds, 469 U.S. 1082 (1984); Serritella v. Engleman, 339 F. Supp. 738,

24 748 (D.N.J.), aff'd, 462 F.2d 601 (3d Cir. 1972).

25

Plaintiffs’ attorneys in this matter are counsel with long established public interest firms, all

26 with extensive experience in litigation of federal class actions involving disability and health

27 programs. They are highly qualified and their resources are more than adequate to represent the

28 class completely.

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1

Lead counsel are employed by Disability Rights California, a private, non-profit agency

2 established as California’s federally-mandated advocacy system to protect the rights and interests of

3 people with disabilities. Zirker Decl. in Support of Class Certification ¶ 3. See, e.g., 42 U.S.C.

4 §§ 10801 et seq., §§ 5001 et seq.; 29 U.S.C. § 794e; Cal. Welf. & Inst. Code § 4900 et seq.

5 Disability Rights California provides advocacy exclusively to people with disabilities. Id. Disability

6 Rights California has served as counsel in federal and state class actions and other litigation on a

7 broad range of issues, including unnecessary institutionalization, access to community-based

8 programs and services, including Medicaid/Medi-Cal services, and disability-based discrimination in

9 a variety of contexts under the ADA, Section 504 and federal and state fair housing statutes. Id. ¶ 8.

10 The three primary Disability Rights California attorneys working on this case have almost 40 years

11 combined experience as attorneys practicing disability rights law. Id., ¶ 4.

12

The National Senior Citizens Law Center is a national, non-profit organization dedicated to

13 promoting the independence and well-being of low-income seniors and individuals with disabilities.

14 Rich Decl., ¶ 3. Attorneys with National Senior Citizens Law Center are national experts in public

15 benefits law affecting senior citizens. Id., ¶¶ 3, 5. They have extensive experience in class action

16 litigation involving Medicaid. Id., ¶ 6.

17

AARP Foundation Litigation is a national program that defends the rights of older Americans

18 across the United States. Jones Decl., ¶¶ 3, 4. Attorneys in the program have extensive class action

19 and Medicaid experience in numerous federal courts. Id., ¶¶ 4, 5.

20

Additionally, no conflicts exist between counsel, named Plaintiffs and the proposed class

21 members that would compromise their ability to represent the class.

22

In summary, the individual Plaintiffs satisfy the adequacy of representation requirement

23 under Rule 23(a)(4) both with respect to their interests and their choice of counsel.

24

5. The Proposed Plaintiff Class Is Adequately Defined and Clearly

25

Ascertainable.

26

In addition to the explicit requirements of Rules 23(a) and 23(b)(2), “the class must be

27 adequately defined and clearly ascertainable before a class action may proceed.’” Lukovsky v. City

28 and County of San Francisco, No. C 05-00389-WHA, 2006 U.S. Dist. LEXIS 3174, at *5 (N.D. Cal.

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1 Jan. 17, 2006) (quoting Schwartz v. Upper Deck Co., 183 F.R.D. 672, 679-80 (S.D. Cal. 1999)). See

2 also Nat’l Federation of the Blind v. Target Corp., No. C 06-01802-MHP, 2007 U.S. Dist. LEXIS

3 30513, at *12 (N.D. Cal. Apr. 25, 2007) (holding that a class needs to “be adequately defined so that

4 the class membership is clearly ascertainable”); In re Tableware Antitrust Litigation, No. C 04-3514-

5 VRW, 2007 U.S. Dist. LEXIS 21166, at *12 (N.D. Cal. Mar. 13, 2007) (holding that “there must be

6 some evidence that a class exists and that it may be defined with reasonable specificity”).

7

A proposed class is considered ascertainable when it has been defined by objective criteria

8 that are administratively feasible to apply, without the need to resort to a subjective determination.

9 See Tableware Antitrust Litigation, 2007 U.S. Dist. LEXIS 21166, at *13. In Tableware Antitrust

10 Litigation, the Court concluded that the proposed class as defined was clearly ascertainable because

11 “individuals would be able to determine, simply by reading the definition, whether they are members

12 of the proposed class.” 2007 U.S. Dist. LEXIS 21166, at *15. The Court found that none of the

13 terms in the proposed definition required further clarification and the Court would not have to

14 conduct individualized hearings to determine membership. Id. at *15-16.

15

None of the terms in the Plaintiffs’ proposed class and subclass definitions require additional

16 clarification. For example, the term “Medi-Cal beneficiaries” is well understood to refer to

17 beneficiaries of the State of California’s program for providing necessary medical services to low-

18 income people under the federal Medicaid statute. Moreover, an individual would be able to readily

19 determine, by looking at the class definition, whether he or she is a current recipient of ADHC

20 services and will know what services are reduced or terminated.

21

In summary, the individual Plaintiffs’ proposed class definition provides a set of objective

22 criteria by which class membership is clearly ascertainable and administratively feasible for this

23 Court to manage.

24

C. This Case Satisfies Rule 23(b)(2) Because Defendant has Acted on

Grounds Generally Applicable to the Class Making Final Injunctive and

25

Declaratory Relief Appropriate.

26

In addition to the four requirements of Rule 23(a), the individual Plaintiffs also must satisfy

27 the requirement contained in one of the subdivisions of Rule 23(b). Fed. R. Civ. P. 23(b). Rule

28 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds generally

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1 applicable to the class, thereby making appropriate final injunctive relief or corresponding

2 declaratory relief with respect to the class as a whole . . . .” In interpreting this requirement, courts

3 have held that where the primary purpose in bringing the action is to seek injunctive relief, the action

4 is properly certifiable under Rule 23(b)(2). Elliott v. Weinberger, 564 F.2d 1219, 1228 n.12 (9th Cir.

5 1977) aff’d in relevant part, rev’d in part, 442 U.S. 682, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979);

6 Stolz v. United Bd. of Carpenters and Joiners of Am., 620 F.Supp. 396, 407 (D. Nev. 1985). Civil

7 rights cases against parties charged with class-based discrimination are “prime examples” of actions

8 under Rule 23(b)(2). Amchem Products v. Windsor, 521 U.S. 591, 614 (1997). For example, the

9 Ninth Circuit has held that class determination under Rule 23(b)(2) is appropriate when “class

10 members complain of a pattern or practice that is generally applicable to the class as a

11 whole…[e]ven if some class members have not been injured by the challenged practice….” Walters,

12 145 F.3d at 1046. Additionally, the individual circumstances of each class member do not defeat

13 class determination when the challenged policies are systemic and declaratory and injunctive relief is

14 sought. Marisol A., 126 F.3d at 377. Rule 23(b)(2) “does not require us to examine the viability or

15 bases of class members’ claims for declaratory and injunctive relief, but only to look at whether

16 class members seek uniform relief from a practice applicable to all of them.” Rodriguez, 2009 WL

17 2526622 at *13.

18

This case is exemplary of a Rule 23(b)(2) action because Defendants’ policies and practices

19 affect all members of the class as well as the individual Plaintiffs, and Plaintiffs seek only

20 declaratory and injunctive relief. Defendants’ violations of federal law have equal application to all

21 class members as persons with disabilities who receive Medicaid ADHC health care services.

22

Moreover, civil rights cases alleging discriminatory policies or practices are “by definition”

23 class actions, provided the named and class plaintiffs share a common question of law or fact and

24 injury. General Telephone Co. v. Falcon, 457 U.S. 147, 157 (1982). Several district courts have

25 certified a plaintiff class in civil rights actions alleging a violation of the anti-discrimination

26 provisions of the ADA and Section 504. See, e.g., Williams v. Blagojevich, No. 05 C 4673, 2006

27 U.S. Dist. LEXIS 83537, at *15-16 (N.D. Ill. Nov. 13, 2006) (certifying a class); Lovely H. v.

28 Eggleston, 235 F.R.D. 248, 263 (S.D.N.Y. 2006) (certifying a subclass of people with physical or

17
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1 mental impairment); Ligas v. Maram, No. 05 C 4331, 2006 U.S. Dist. LEXIS 10856, at *18-19

2 (N.D. Ill. Mar. 7, 2006) (certifying a class); Martin v. Taft, No. C2-89-362, 2005 U.S. Dist. LEXIS

3 19872, at *3 (S.D. Ohio Sept. 13, 2005) (denying decertification of a previously certified class);

4 Frederick L. v. Dep’t of Public Welfare, 217 F.Supp.2d 581, 582 (E.D. Pa. 2002) (making reference

5 to the prior certification of a class action).

6

Class-wide final injunctive and declaratory relief is appropriate to facilitate enforcement of

7 judgments. Given that the individual Plaintiffs seek only declaratory and injunctive relief, and the

8 granting of such relief is appropriate with respect to the class as a whole to remedy Defendants’

9 discriminatory actions, Rule 23(b)(2) is satisfied in this case.

10

D. The Court Should Designate Plaintiffs’ Counsel as Class Counsel

Pursuant to Rule 23 (g)(1).

11

12

When a class is certified, the court must appoint class counsel (Fed.R.Civ.P. 23(g)(1)) and

13 the class certification order must list these counsel. Fed.R.Civ.P. 23(c)(1)(B). The Federal Rules list

14 four factors the court must consider in appointing class counsel:

“(i) the work counsel has done in identifying or investigation potential claims in the action; 15
(ii) counsel’s experience in handling class actions, other complex litigation and the types of
16 claims asserted in the action;

17

(iii) counsel’s knowledge of the applicable law; and

18

(iv) the resources that counsel will commit to representing the class.”

19 Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv).

20

Pursuant to these four factors, Plaintiffs’ counsel qualify for appointment in this case. As

21 reflected in Plaintiff’s concurrently filed Motions for Temporary Restraining Order and Preliminary Injunction, Plaintiffs’ counsel has committed extensive time and resources to investigating and
22 analyzing Plaintiffs’ claims. Counsel is very experienced in class actions and complex litigation and

23 has extensive knowledge of discrimination and benefits law. Zirker Decl., Rich Decl., Jones Decl.

24 The Court should appoint Plaintiffs’ counsel as class counsel in its class certification order.

25

E. Precertification Class Notice is Not Required.

26

Because Plaintiffs seek to certify a class under Rule 23(b)(2), notice is not required. Fed. R.

27 Civ. P. 23(c)(2)(A); see also Elliot, 564 F.2d at 1228-29; Navarro-Ayala v. Hernandez-Colon, 951
28 F.2d 1325, 1336-37 (1st Cir. 1991). There are several reasons why notice is less needed in a (b)(2) than a (b)(3) class action: class members have no right to request exclusion from a (b)(2) class

18
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1 action; the “characteristics of the class may reduce the need for formal notice”; and cost of providing

2 notice “could easily cripple actions that do not seek damages.” Advisory Committee Notes to 2003

3 Amendments to Rule 23; see also 2 Newberg at § 8.05 at 178 (“[C]lass actions seeking declaratory

or injunctive relief under Rule 23(b)(2) are not subject to the individual notice requirements of Rule 4
23(c)(2).”).

5

The purpose of the notice provisions is to protect absent class members. 2 Newberg on Class

6 Actions at § 8.05 at 178. Due process requires notice to absent class members only when it is

7 necessary to provide class members an opportunity to signify whether representation by named

8 plaintiffs is fair and adequate or to otherwise intervene. Elliott, 564 F.2d at 1229. In Rule 23(b)(2)

9 actions for equitable relief, however, “the due process rights of absent class members generally are

10 satisfied by adequate representation alone.” Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994)

11 (citation omitted). For example, in public benefits actions involving claims for declaratory and

12 injunctive relief, once underlying liability has been determined, it is then well within the district

13 court’s discretion simply to direct the offending governmental agency to notify absent class

14 members of their rights under the class judgment in their favor. Beltran v. Myers, 701 F.2d 91, 94

15 (9th Cir. 1983), cert. denied sub nom. Rank v. Beltran, 462 U.S. 1134 (1983).

16

“The authority to direct notice to class members in a . . . (b)(2) class action should be

17 exercised with care.” Advisory Committee Notes to 2003 Amendments to Rule 23. Notice is not

18 necessary in this case, because the named Plaintiffs’ claims are typical of those of the class as a

19 whole, the named Plaintiffs are clearly adequate representatives of the class and are represented by

20 experienced counsel. See Elliot, 564 F.2d at 1229 (notice not necessary for nationwide (b)(2) class

where named plaintiffs are adequate representatives with experienced counsel); Stolz v.United Bhd. 21
of Carpenters, 620 F.Supp. 396, 408 (D.Nev. 1985) (notice unnecessary for (b)(2) class where 22 named plaintiffs are adequate representatives).

23

This case involves only claims for declaratory and injunctive relief. Accordingly, there is no

24 need to provide absent class members with notice and the opportunity to opt out. General Telephone,

25 559 F.2d at 334. Accordingly, Plaintiffs respectfully request that the Court exercise its discretion to

26 certify the class without requiring any notice to unnamed plaintiff class members of the pendency of

27 this action, at least at this stage of the litigation.

28

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1

V. CONCLUSION

2

For the reasons stated above, the individual Plaintiffs have satisfied all of the requirements of

3 Rule 23(a) and Rule 23(b)(2) with respect to the proposed defined class, and Rule 23 23(g)(1) as to

4 appointment of class counsel. Plaintiffs respectfully request that this Court:

5

1) Certify this case as a Rule 23(b)(2) class action;

6

2) Define the Class as “All recipients of Medi-Cal in the State of California who receive

7 Adult Day Health Care Services whose Adult Day Health Care Benefits will be limited, cut, or

8 terminated under the provisions of ABX4 5”;

9

3) Certify a “Limitations of Benefits” Subclass for the First, Second, Third, Fourth and Sixth

10 Claims for Relief of all “Medi-Cal beneficiaries who, as of August 26, 2009, have been authorized to

11 receive four or five days of Adult Day Health Care Services by DHCS, and whose services will be

12 reduced to a maximum of three days under the provisions of ABX4 5”;

13

4) Appoint Plaintiffs’ counsel to serve as class counsel; and

14

5) Dispense with any requirement for Plaintiffs to give notice to absent class members at this

15 stage of the litigation.

16 Date: August 24, 2009
17
18

Respectfully submitted, DISABILITY RIGHTS CALIFORNIA

19

By:

/s/ Elizabeth Zirker

20

Elizabeth Zirker

Attorneys for Plaintiffs 21

22

23

24

25

26

27

28

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 Case4:09-cv-03798-SBA Document25 Filed08/26/09 Page1 of 35

1 Elizabeth Zirker, State Bar No. 233487

elizabeth.zirker@disabilityrightsca.org 2 Jay B. Koslofsky, State Bar No. 97024

3

jay.koslofsky@disabilityrightsca.org Kim Swain, State Bar No. 100340

4 kim.swain@disabilityrightsca.org Elissa Gershon, State Bar No. 169741

5 elissa.gershon@disabilityrightsca.org

Daniel Brzovic, State Bar No. 89493 6 dan.brzovic@disabilityrightsca.org

7

Dara Schur, State Bar No. 98638 dara.schur@disabilityrightsca.org

8 DISABILITY RIGHTS CALIFORNIA 1330 Broadway, Suite 500

9 Oakland, CA 94612

Telephone: (510) 267-1200 10 Facsimile: (510) 267-1201

11 Attorneys for Plaintiffs

12 [Complete list of counsel on following pages]
13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

16 LILLIE BRANTLEY, by her guardian ad ) Case No.: 4:09-cv-03798-SBA

litem Chauncey Mc Lorin; GILDA GARCIA; )

17 ALLIE JO WOODARD, by her guardian ad ) CLASS ACTION

litem Linda Gaspard-Berry, individually and )

18 on behalf of all others similarly situated,

) NOTICE OF MOTION AND MOTION FOR

19

) PRELIMINARY INJUNCTION;

) MEMORANDUM OF POINTS AND

20

Plaintiffs,

) AUTHORITIES IN SUPPORT

21

vs.

) ) Date:

September 8, 2009

22

) Time: DAVID MAXWELL-JOLLY, Director of the ) Location:

1:00 pm 1301 Clay Street, Oakland, CA

23 Department of Health Care Services, State of ) Courtroom: 3, 3rd Floor

California, DEPARTMENT OF HEALTH )

24 CARE SERVICES,

)

)

25

Defendant.

)

26

)

27

28

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Case4:09-cv-03798-SBA Document25 Filed08/26/09 Page2 of 35

1 Anna Rich, State Bar No. 230195

arich@nsclc.org 2 Kevin Prindiville, State Bar No. 235835

3

kprindiville@nsclc.org NATIONAL SENIOR CITIZENS LAW CENTER

4 1330 Broadway, Suite 525 Oakland, CA 94612

5 Telephone: (510) 663-1055

Facsimile: (510) 663-1051 6

7

Barbara Jones, State Bar No. 88448 bjones@aarp.org

8 AARP FOUNDATION LITIGATION 200 So. Los Robles, Suite 400

9 Pasadena, CA 91101

Telephone: (626) 585-2628 10 Facsimile: (626) 583-8538

11 Kenneth W. Zeller, Pro Hac Vice Pending
12 kzeller@aarp.org AARP FOUNDATION LITIGATION
13 601 E Street NW
Washington, D.C. 20049 14 Telephone: (202) 434-2060
15 Facsimile: (202) 434-6424

16

17

18

19

20

21

22

23

24

25

26

27

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1

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................................... i 2 NOTICE OF MOTION AND MOTION AND MOTION FOR PRELIMINARY

3

INJUNCTION ......................................................................................................................... 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT ........................................ 2

4 I. SUMMARY OF ARGUMENT.............................................................................................. 2 II. STATEMENT OF FACTS..................................................................................................... 3

5

A. Background of the ADHC Program.............................................................................. 3

6

B. ADHC Services Compared to other Medi-Cal Services............................................... 4

7

C. ABX4 5 Makes Devastating Cuts to Program .............................................................. 5 D. Plaintiffs........................................................................................................................ 5

8 9 10 11
III. 12

1. Lillie Brantley ................................................................................................... 5 2. Allie Jo Woodard .............................................................................................. 6 3. Gilda Garcia ...................................................................................................... 7
E. Failure to Provide Individual Notice............................................................................. 8
PLAINTIFFS MEET THE REQUIREMENT FOR GRANTING A RULE 65(a) PRELIMINARY INJUNCTION ........................................................................................... 9

13

A. Standards for Preliminary Injunction............................................................................ 9

14

1. Plaintiffs will Suffer Irreparable Harm in the Absence of an Injunction........ 10

15 a. Lillie Brantley ..................................................................................... 11

16

b. Allie Jo Woodard ................................................................................ 11

c. Gilda Garcia ........................................................................................ 11

17

d. Class Members.................................................................................... 12

18

2. Plaintiffs are Likely to Succeed on the Merits of their Claims that

19

Defendants are Violating the ADA and Section 504. ..................................... 14

20

a. The ADA and Section 504 Prohibit Discrimination Against

Individuals with Disabilities. .............................................................. 14

21

b. The Cuts will Violate ADA and Section 504 Prohibitions Against

Unjustified and Unnecessary Institutionalization. .............................. 15 22

1) The State’s Treatment Professionals Have Determined That

23

Community Placement is Appropriate.................................... 16

24

2) Plaintiffs Want to Stay in the Community.............................. 17

3) Defendants can Reasonably Accommodate Plaintiffs’ Desire

25

to Receive Services in the Community. .................................. 17

26

c. Defendants are Violating the Prohibition on Employing Methods of

Administration that Result in Discrimination. .................................... 20 27

28

3. Plaintiffs are Likely to Succeed on the Merits of their Claims that Defendants are Violating the Due Process Clause of the Fourteenth

i

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1
2
3 4 IV.
V. 5 VI.

Amendment and Medicaid Law by Failing to Provide Adequate Pretermination Notice and Opportunity for a Hearing......................................... 21 4. The Balance of Equities is in Plaintiffs’ Favor............................................... 23 5. An Injunction is in the Public’s Interest ......................................................... 24
CLASSWIDE RELIEF IS APPROPRIATE ...................................................................... 24 PLAINTIFFS SHOULD NOT BE REQUIRED TO POST BOND ................................. 25 CONCLUSION ..................................................................................................................... 25

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2 Cases

3 Am. Trucking Ass’ns v. City of Los Angeles 559 F.3d 1046 (9th Cir. 2009) .............................................................................................. 10

4

Beltran v. Myers

5

677 F.2d 1317 (9th Cir. 1982). .............................................................................................. 10

6 Benda v. Grand Lodge of the Int'l Ass'n of Machinists & Aerospace Workers 584 F.2d 308 (9th Cir. 1978) ................................................................................................ 10

7

Beno v. Shalala

8

30 F.3d 1057 (9th Cir. 1994) ................................................................................................. 10

9 Caldwell v. Blum

621 F.2d 491 (2d Cir. 1980).................................................................................................. 11

10

Cont’l Oil Co. v. Frontier Ref. Co.

11

338 F.2d 780 (10th Cir. 1964) ............................................................................................... 25

12 Crabtree v. Goetz

--- F. Supp. 2d ---, 2008 WL 5330506 at *30 (M.D. Tenn. Dec. 19) ............................ 19, 20

13

Daniels v. Menke

14

145 F.3d 1330 (6th Cir. 1998) ............................................................................................. 11

15 Daniels v. Wadley

926 F. Supp. 1305 (M.D. Tenn. 1996)............................................................................ 11, 23

16

Edmonds v. Levine

17

417 F. Supp. 2d 1323 (S.D. Fla. 2006) ................................................................................ 10

18 Fisher v. Oklahoma Health Care Authority

335 F.3d 1175 (10th Cir. 2003). .................................................................. 11, 15, 16, 18, 20

19

Frederick L. v. Dep’t of Public Welfare

20

157 F. Supp. 2d 509 (E.D. Pa. 2001) ................................................................................... 15

21 Glenwood Bridge, Inc. v. Minneapolis

940 F.2d 367 (8th Cir. 1991) ............................................................................................... 24

22

Goldberg v. Kelly

23

397 U.S. 254 (1970)............................................................................................................. 22

24 Habeas Corpus Res. Ctr. v. United States Dep't of Justice

2009 WL 185423, at *5 (N.D.Cal.2009) ............................................................................. 10

25

Haskins v. Stanton

26

794 F.2d 1273 (7th Cir. 1986) ............................................................................................. 24

27 Heather K. v. Mallard 887 F. Supp. 1249 (N.D. Iowa 1995).................................................................................... 24
28
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1 Joyce v. City & County of San Francisco

864 F. Supp. 843 (N.D. Cal. 1994) ....................................................................................... 25

2

Kai v. Ross

3

336 F.3d 650 (8th Cir. 2003) ................................................................................................ 11

4 Kaiser v. County of Sacramento

780 F. Supp. 1309 (E.D. Cal. 1991)...................................................................................... 25

5

Kansas Hosp. Ass’n v. Whiteman

6

835 F. Supp. 1548 (D. Kan. 1993)........................................................................................ 23

7 Maine v. Ass’n of Interdependent Neighborhoods v. Petit

647 F. Supp. 1312 (D. Me. 1985) ........................................................................................ 11

8

Markva v. Haveman

9

168 F. Supp. 2d 695 (E.D. Mich. 2001)................................................................................ 11

10 N.Y. State Nat’l. Org. for Women v. Terry

697 F. Supp. 1324 (S.D. N.Y. 1988)..................................................................................... 25

11

O’Bannon v. Town Court Nursing Center

12

447 U.S. 773 (1980).............................................................................................................. 22

13 Olmstead v. L.C

527 U.S. 581 (1999)........................................................................................................ 15, 16

14

Orantes-Hernandez v. Smith

15

541 F. Supp. 351 (C.D. Cal. 1982) ....................................................................................... 25

16 People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency 766 F.2d 1319, modified on other grounds, 775 F.2d 998 (9th Cir. 1985)...................... 12, 25

17

Radaszewski v. Maram

18

383 F.3d 599 (7th Cir. 2004) .................................................................................... 16, 19, 20

19 Save Strawberry Canyon I v. Dept. of Energy

613 F. Supp. 2d 1177 (N.D. Cal. 2009) ................................................................................ 10

20

Southeastern Community College v. Davis

21

442 U.S. 397 (1979)............................................................................................................. 15

22 Stormans, Inc. v. Selecky

571 F.3d 960 (9th Cir. 2009) ................................................................................................ 10

23

Thomas v. Johnston

24

557 F. Supp. 879 (W.D. Tex. 1983)...................................................................................... 25

25 Townsend v. Quasim 328 F.3d 511 (9th Cir. 2003) ........................................................................................... 19, 20

26

U.S. v. Edward Rose & Sons

27

384 F.3d 258 (6th Cir. 2004) ................................................................................................ 24

28
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1 Winter v. Natural Res. Def. Council --- U.S. ---, 129 S. Ct. 365 (2008)......................................................................................... 10
2 Statutes

3 29 U.S.C.

§ 705(2)(B)............................................................................................................................ 14

4

§ 794(a) ............................................................................................................................. 3, 15

§ 794 (West 2007)................................................................................................................... 3

5

42 U.S.C.

6

§ 1396a(a)(3)......................................................................................................................... 22

§ 12101.................................................................................................................................. 24

7

§ 12101 et seq. (West 2008) ................................................................................................... 3

§ 12101(2008); H.R. Rep. No. 101-485, pt. 3, at 49 (1990)................................................. 14

8

§ 12101(a)(2) ........................................................................................................................ 15

§ 12101(a)(3) ........................................................................................................................ 15

9

§ 12131.................................................................................................................................. 14

§ 12132.................................................................................................................................. 14

10 Rules

11

Fed. R. Civ. P. 23(c)(1)......................................................................................................... 24

Fed. R. Civ. P. 65(c) ............................................................................................................. 25 12

13 Federal Regulations

14

28 C.F.R. § 35.104................................................................................................................................. 14

15

§ 35.130(b)(3) ....................................................................................................................... 20 § 35.130(b)(7) ....................................................................................................................... 15

16

§ 35.130(d)............................................................................................................................ 15 § 41.32................................................................................................................................... 14

17

§ 41.51(b)(3)(i) ..................................................................................................................... 21 § 41.51(d).............................................................................................................................. 15

18 42 C.F.R.

19

§ 431.200........................................................................................................................... 9, 22 § 431.206(b)............................................................................................................................ 9

20

§ 431.210........................................................................................................................... 9, 22 § 431.211........................................................................................................................... 9, 22

21

§ 431.213................................................................................................................................. 9 § 431.214................................................................................................................................. 9

22

§ 431.220............................................................................................................................... 22 § 431.230(a) ..................................................................................................................... 22,23

23 45 C.F.R.

24

§ 84.4(b)(4) ........................................................................................................................... 20

25 California Code of Regulations

26

Title 22 § 50179(c) ............................................................................................................................9

27

§ 50179(d),.....................................................................................................................9, 22 § 51014.1.(a). .......................................................................................................................9

28

§ 51014.1(c) ...................................................................................................................9, 22 § 54211.................................................................................................................................4

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1

STATUTES - State

2

California Welfare &Institutions Code

3

§ 14132(p)(2) .......................................................................................................................5

§ 14521.................................................................................................................................3

4

§ 14521.1..............................................................................................................................5

§ 14522.................................................................................................................................5

5

§ 14526.1(b)(4) ....................................................................................................................4

§ 14526.1(d)(4) ....................................................................................................................4

6

California Health and Safety Code

7

§ 1570.2....................................................................................................................4, 18, 19

§ 1570.7(a) (West 2009) ....................................................................................................21

8

§ 1570.7(b) (West 2009) ....................................................................................................21

9 Other Authorities

10 U.S. Const. Amend XIV, § 1 ............................................................................................................ 22 11 2 Newberg on Class Actions (4th Ed. 2002) § 9:45 n.3 at 411.......................................................... 25

12 3 Newberg at § 9:45 n.11.................................................................................................................. 25 13 7B Wright, Miller & Kane, Fed. Practice & Proc. § 1785 (1986) .................................................... 25 14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1 NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION
2 TO DIRECTOR DAVID MAXWELL-JOLLY, THE DEPARTMENT OF HEALTH CARE
3 SERVICES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on
4 September 8, 2009, at 1:00 p.m., or soon thereafter as counsel may be heard before Judge Saundra
5 Armstrong, in Courtroom 3, United States District Court, Northern District of California, located at
6 1301 Clay Street, Oakland, CA, Plaintiffs individually and on behalf of class members, will move
7 the Court pursuant to Rule 65(a) of the FRCP and Rule 65-2 and 7-2 of the Local Civil Rules for an
8 order issuing a Preliminary Injunction immediately enjoining Defendants and their successors,
9 agents, officers, servants, employees, attorneys and representatives and all persons acting in concert
10 or participating by:

11

(a) Enjoining and prohibiting Defendants Director David Maxwell-Jolly and the Dept. of

12 Health Care Services, and successors, agents, officers, servants, employees, attorneys and

13 representatives and all persons acting in concert or participating with Defendants, from

14 implementing or enforcing ABX4 5 or engaging in the following actions until this Court rules on a

15 permanent injunction:

16

Reducing, terminating or modifying Medi-Cal Adult Day Health Care (ADHC) program

benefits to the Plaintiffs and Class Members from 4 or 5 days per week, to a maximum of 3

17

days per week, pursuant to ABX4 5, in violation of their rights under the ADA, Section 504,

the Due Process clause of the Constitution, and the Medicaid Act.

18 Reducing, terminating or modifying Medi-Cal Adult Day Health Care (ADHC) program

19

benefits to the Plaintiffs and Class Members from 4 or 5 days per week, to a maximum of 3

days per week, pursuant to ABX4 5, unless and until alternate Medi-Cal services are

20

provided, including through reasonable modifications to the program, which prevent

inappropriate institutionalization in violation of their rights under the ADA and Section 504.

21 (b) Enjoining and prohibiting Defendant Director David Maxwell-Jolly and his

22 successors, agents, officers, servants, employees, attorneys and representatives and all persons acting

23 in concert or participating with Defendants, from implementing or enforcing ABX4 5 or engaging in

24 the following actions until this Court rules on a permanent injunction:

25

Reducing, terminating or modifying Medi-Cal Adult Day Health Care (ADHC) program

26

benefits to the Plaintiffs and Class Members from 4 or 5 days per week, to a maximum of 3 days per week, pursuant to ABX4 5, until and unless Plaintiffs and Members are afforded

27

notice and a right to a hearing regarding alternate Medi-Cal services which meet their medical needs as currently provided through ADHC services in violation of their rights under

28

the Due Process clause of the Constitution, and the Medicaid Act.

1
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1

(c) Granting a Preliminary Injunction compelling Defendants, their officers, agents,

2 employees, attorneys, and all persons who are in active concert or participation with them, to take all

3 actions necessary within the scope of their authority to implement the above injunctions; and

4 ordering Defendants to maintain this Preliminary Injunction until such time as this Court rules on a

5 permanent injunction in this case.

6

Plaintiffs further request that the Court waive the requirement for the posting of a bond as

7 security for the entry of preliminary relief, on the grounds of Plaintiffs’ indigency.

8

This Motion for a Preliminary Injunction is based upon this Notice of Motion and Motion, a

9 copy of the Complaint, the Memorandum of Points and Authorities, the Proposed Preliminary

Injunction Order, and declarations and exhibits filed in this matter and upon such oral and written 10

argument as may be presented at the hearing on the Motion. 11

The Motion will be made on the ground that Plaintiffs and Class Members will suffer 12
irreparable injury unless the activities described above are enjoined. 13
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

14 I. SUMMARY OF ARGUMENT
15 On September 10, 2009, unless this Court issues a Preliminary Injunction, illegal and
16 devastating cuts to the Adult Day Health Care (ADHC) benefit under the State Medi-Cal program

17 will take place, causing irreparable harm to thousands of elderly and disabled individuals.

18

On that date, A.B. 5, 4th Ex. Sess. (Cal. 2009) (Chapter 5, Statutes of 2009) (ABX4 5) is

19 scheduled to go into effect. The ADHC program provides cost-effective community based services

20 to thousands of Californians, enabling them to avoid unnecessary hospitalization and

21 institutionalization, maintain community and family ties, and improve health outcomes. ABX4 5

22 cuts ADHC benefits based solely on economic considerations. The most immediate cut is from a

23 maximum of 5 to 3 days per week for all Medi-Cal beneficiaries, with no exceptions, and regardless

24 of existing treatment authorizations and the health condition of the individual. These two days per

25 week cuts mean the difference between being at home and being institutionalized for the Plaintiffs

26 and others similarly situated.

27

As Plaintiff Lillie Brantley’s niece attests, “If my aunt is not able to attend the ADHC 5 times

28 a week I will not be able to keep her at home, and will have to look for a nursing home for her. I
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1 would hate to do it, because she raised me, and I love her very much, and want to keep her with us,

2 but I can’t afford to quit my job, which is what I would have to do.” (McLorin Decl. ¶¶16, 17.)

3

Without these services, Plaintiffs will experience immediate and irreparable harm. Plaintiffs

4 and other Class Members will be at risk of deterioration in health and functioning, and will be forced

5 into hospitals and nursing facilities due to Defendants’ violation of the Americans with Disabilities

6 Act of 1990 (ADA ), 42 U.S.C. §§ 12101-12213 (West 2008), and Section 504 of the Rehabilitation

7 Act of 1973 (Section 504), 29 U.S.C. §§ 794-794a (West 2007).

8

Defendants have not issued statutorily required written notice to Plaintiffs informing them

9 that their benefits are being terminated and of their right to a hearing, in violation of federal
Medicaid law and the Fourteenth Amendments of the U.S. Constitution. 10
Plaintiffs request that a preliminary injunction be issued prohibiting Defendants from 11
implementing across-the-board cuts from 5 to 3 days per week of ADHC services prior to giving 12
required notices and determining whether alternative services under the Medi-Cal program can meet 13
their needs, including the provision of services with reasonable modifications. 14
II. STATEMENT OF FACTS 15
A. Background of the ADHC Program 16
Adult Day Health Care (ADHC) is a Medi-Cal funded community-based program for low
17 income seniors and younger disabled adults. Cal. Welf. & Inst. Code ¶ 14521 (West 2009). ADHC
18 services are provided at centers throughout California. Individuals who live at home or in licensed

19 residential care participate from 1 to 5 days per week, depending on their assessed needs.

20

In enacting the ADHC program, the California legislature found that:

21

[T]here exists a pattern of overutilization of long-term institutional care for elderly

persons or adults with disabilities, and that there is an urgent need to establish and to

22

continue a community-based system of quality adult day health care which will

enable elderly persons or adults with disabilities to maintain maximum independence.

23

. . . [O]verreliance on [nursing facility care] has proven to be a costly panacea in both

24

financial and human terms, often traumatic, and destructive of continuing family relationships and the capacity for independent living.1

25

26 1 The legislature went on to say:

It is, therefore, the intent of the Legislature in enacting this chapter and related provisions to

27

provide for the development of policies and programs that will accomplish the following:

28

(a) Ensure that elderly persons and adults with disabilities are not institutionalized inappropriately or prematurely.

3

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1 Cal. Health & Safety Code § 1570.2 (West 2009).

2

ADHC centers must provide a full range of medical, nursing, therapeutic, and rehabilitative

3 services for a daily all-inclusive Medi-Cal reimbursement rate of $76.22. (Missaelides Decl. ¶21.)

4

Individuals wishing to receive ADHC services must have a physician submit history and

5 physical information and participate in a 3 day assessment performed by a multidisciplinary team

6 of clinicians including a physician, registered nurse, social worker, physical therapist and

7 occupational therapist, at minimum. Cal. Code Regs. tit. 22 (2009) § 54211. The

8 multidisciplinary team designs an Individual Plan of Care (IPC) that includes recommended days

9 of attendance, which is then submitted to the Medi-Cal Field Office along with the Treatment

10 Authorization Request (TAR) for approval by Medi-Cal. (Missaelides Decl. ¶ 22.)

Defendants ensure that each participant in the ADHC program meets “Medical Necessity 11

Criterion #4” by requiring that the “yes” box be checked for “Criterion 4” in the IPC: 12

(16) MEDICAL NECESSITY CRITERION #4

13

Criterion Met A high potential exists for the deterioration of the participant’s medical,

14

cognitive, or mental health condition or conditions in a manner likely to result

Yes No in emergency department visits, hospitalization, or other institutionalization if

15

O

O ADHC services are not provided.

16

17 Cal. Welf. & Inst. Code § 14526.1(d)(4); (Davis Decl. ¶ 18; Ex. A, p.4; McCloud Decl. ¶ 17, Ex. A,

18 p.4; Toth Decl. ¶¶ 13-14, Ex. A, p.4; Puckett Decl. ¶ 12; Myers Purkey Decl. ¶ 17, Ex. 1, p.4.)

19

B. ADHC Services Compared to other Medi-Cal Services

20

21

(b) Provide a viable alternative to institutionalization for those elderly persons and adults with

disabilities who are capable of living at home with the aid of appropriate health care or

22

rehabilitative and social services.

(c) Establish adult day health centers in the community for this purpose, that will be easily

23

accessible to all participants, including economically disadvantaged elderly persons and

24

adults with disabilities, and that will provide outpatient health, rehabilitative, and social services necessary to permit the participants to maintain personal independence and lead

25

meaningful lives.

(d) Include the services of adult day health centers as a benefit under the Medi-Cal Act, that shall

26

be an initial and integral part in the development of an overall plan for a coordinated,

comprehensive continuum of optional long-term care services based upon appropriate

27

need. . . . .

28

Cal. Health & Safety Code § 1570.2 (West 2009).

4
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1

Many of these same services that are part of the ADHC package are also included as

2 community-based Medicaid services and would be otherwise available to Plaintiffs and Class

3 Members as an alternative to ADHC. Medi-Cal also covers skilled nursing facilities – institutional

4 care – for beneficiaries. See “Comparison of Statutes and Regulations Relating to Provision of

5 Services” attached to Declaration of Elizabeth Zirker as Exhibit A.

6

C. ABX4 5 Makes Devastating Cuts to Program

7

ABX4 5 is scheduled to go into effect on September 10, 2009. The new law reduces the

8 ADHC benefit to 3 days per week for all Medi-Cal beneficiaries, with no exceptions. Cal. Welf. &

9 Inst. § 14132(p)(2).2 These cuts are based on financial considerations. No reevaluations have been

10 done of individuals to determine whether they still need services or qualify for other available

11 services. (Missaelides Decl. ¶ 32, Exh. D.)

12

D. Plaintiffs

13

1. Lillie Brantley

14

Plaintiff Lillie Brantley is an 84-year-old woman who has severe Alzheimer’s disease,

15 hyperlipidemia, a seizure disorder, atrial fibrillation, has had a stroke, and is very frail. (Davis Decl. 16 ¶ 28.) Ms. Brantley lives with her niece Chauncey McLorin3 and Ms. McLorin’s 15-year old
17 daughter. Because of her cognitive impairments, Ms. Brantley can never be left alone. (McLorin
18 Decl. ¶ 6.) Ms. Brantley and her family want her to remain in her family home, where she can be part of the household, and among people and places she knows and loves. According to Ms.
19 McLorin, putting Ms. Brantley into a nursing home would be devastating: “It is so painful to
20 consider this, and even though she is deteriorating, she is not in a vegetative state, and still knows
21

22

23 2 In addition to this cut, new restrictions limiting who is eligible to receive ADHC services will go

into effect if and when the Director of DHCS provides a written declaration that new restrictions are 24 ready to be implemented. Cal. Welf. & Inst. Code § 14521.1. These new restrictions will terminate

25

or deny ADHC services to individuals based on degree of functional limitation and need for a certain level of care. The statute provides that at the time of the declaration of new restrictions by the

26 Director, the ADHC benefit will revert back to a maximum of 5 days per week for the individuals who remain eligible. Cal. Welf. & Inst. Code §§ 14525.1, 14522.4(a)(10). Plaintiffs have alleged

27 that these new restrictions violate the law, however, as they are not yet in place, Plaintiffs do not

seek a Preliminary Injunction regarding this component of ABx4 5. 28 3 Ms. McLorin has applied to act as a Guardian Ad Litem for Ms. Brantley in this action.

5

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1 me and my family, and our neighborhood. We go to church together, and out to eat. I think it would

2 be terrible for her to have to leave us.” (Id. at ¶¶ 17-18.) However, Ms. Brantley’s family will be

3 forced to institutionalize her if she is not able to go to the ADHC program 5 days a week, as Ms.

4 McLorin cannot afford to quit her job. (Id. at ¶¶ 8, 16).

5

Ms. Brantley has been attending the Bayview Hunter’s Point ADHC program in San

6 Francisco California for 3 years. (Id. at ¶ 4.) Ms. Brantley is authorized under Medi-Cal to receive

7 ADHC services 5 days per week, and these services including professional nursing services every

8 day to monitor her hypertension, monitor and control her seizures, and monitor her for weight loss;
9 personal care services every day to help her with feeding, toileting, and ambulation, as well as
monitoring her whereabouts; physical therapy maintenance program twice per week to reduce her 10
risk for falls and maintain current functioning; occupational therapy services for maintaining her 11
functional strength; and nutritional monitoring because of her diagnosis of hypertension and her 12
recent weight loss. (Davis Decl. ¶¶ 26, 30.) 13
Ms. Brantley’s most recent IPC, which is approved by Medi-Cal, documents that she is at 14
high risk of institutionalization if she does not receive ADHC services 5 days per week, due to her 15
inappropriate behavior and affect, two or more chronic medical conditions, poor judgment,
16 medication mismanagement, frailty, isolation, risk for falls, including forgetting to use her cane and

17 being unsafe in transfers, self neglect, and dementia-related behavioral problems. (Id. at ¶ 31.)

18

As of August 21, 2009, Ms. Brantley has not received written notice from Medi-Cal

19 informing her that her ADHC services will be cut and advising her of her right to a hearing.

20 (McLorin Decl. ¶ 15.)

21

2. Allie Jo Woodard

22

Plaintiff Allie Jo Woodard is a 79-year-old woman who is diagnosed with bipolar affective

23 disorder, depression, glaucoma, hypertension, osteoarthritis, and is pre-diabetic. (Davis Decl. ¶ 21.)

24 Ms. Woodard receives Medi-Cal, and is authorized to receive ADHC service 5 days per week at the

25 Bayview Hunter’s Point ADHC program in San Francisco California. (Id. at ¶ 20.) She has been

26 attending the program for nine years. (Gaspard-Berry Decl. ¶ 4.) Ms. Woodard’s disability causes

27 her to be very fragile emotionally, and she has had frequent psychiatric hospitalizations as a result.

28 (Id. at ¶ 9.) Her daughter, Linda Gaspard-Berry, believes that Ms. Woodard’s attendance and
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1 services at the ADHC 5 days per week are essential to support her, and that without the program’s 2 services, Ms. Woodard would have been hospitalized more frequently than she has been.4 Id.

3

Although Ms. Woodard lives alone, after a two-day disappearance a few years ago, her

4 family ensures that she is never alone. (Id. at ¶ 6.) Her daughter and son taking turns spending the

5 nights with her, as they juggle full time jobs and their own families. (Id. at ¶ 7.) On the weekends,

6 her daughter takes Ms. Woodard to Ms. Gaspard-Berry’s home in Fremont, California. (Id. at ¶ 8.)

7

Ms. Woodard’s family goes to great lengths to keep her in her home and depend on her

8 attending ADHC 5 days per week. Her daughter says, “My brother and I are working very hard, and
9 are sacrificing a lot already to try to keep our mother in the community. It would be terrible for her
to be in a facility, but we cannot afford to quit our jobs and put our families at risk.” (Id. at ¶ 17.) 10
Ms. Woodard’s most recent Medi-Cal approved Individual Plan of Care authorizes her to 11
receive the following ADHC services 5 days per week: professional nursing services every day to 12
monitor her for fall risk, for her hypertension, and for her pain and mobility related to her arthritis; 13
personal care services daily to monitor her exertion level to prevent cardiac compromise; social 14
services intended to prevent psychiatric hospitalization in the form of group activities, weekly 15
psychological counseling, and daily check in with the program social worker to reorient her to
16 reality; therapeutic activities to decrease her feelings of isolation, and improve her interactions with
17 peers; occupational therapy services for maintaining functional strength two days per week. (Davis

18 Decl. ¶ 23.) Ms. Woodard’s current IPC, authorized by Medi-Cal through December 31, 2009,

19 states that she is at a high risk of institutionalization if she does not receive ADHC services 5 days

20 per week, based on her chronic medical conditions, poor judgment, medication mismanagement,

21 frailty, isolation, risk for falls, and dementia-related behavioral problems. (Id. at ¶ 31.)

22

As of August 21, 2009, Ms. Woodard has not received written notice from Medi-Cal

23 informing her that her ADHC services will be cut and advising her or her right to a hearing.

24 (Gaspard-Berry Decl. ¶ 14.)

25

3. Gilda Garcia

26

Plaintiff Gilda Garcia is a 77–year-old woman with unstable diabetes, hypertension, Bells’

27

28 4 Ms. Gaspard-Berry has applied to act as a Guardian Ad Litem for Ms. Woodard in this action.
7
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1 Palsy, and kidney problems. (McCloud Decl. ¶ 21.) She is Medi-Cal eligible and currently receives

2 5 days a week of ADHC through the Institute on ADHC program in San Francisco, California. (Id.

3 at ¶¶ 19.) Ms. Garcia lives alone, and receives limited IHSS services. (Garcia Decl. ¶¶ 4, 14.)

4

Ms. Garcia is highly dependent on the ADHC program for medical stability and preventing

5 isolation and depression. She says, “I love going to the center. It gives me a place to go everyday,

6 and things to do. . . I also go to the center because they help me with my diabetes there. On the

7 weekends, I just pray not to have problems with my diabetes. I am afraid I will have to go to the

8 hospital if I don’t have a nurse 5 days a week who can help me.” (Id. at ¶¶ 7, 8, 9, 16, 18.)

9

In the professional opinion of the nurse at her program, “. . . based on the 4.5 years I have

known Gilda, it’s crucial for her to be at the Center Monday through Friday to prevent Emergency 10
Room visits and hospitalizations. I am very concerned for her health and safety if she does not have 11
the daily monitoring we provide here at our program. I don’t know how else she will get this 12
monitoring on the two days she would not attend our program.” (Perelman Decl. ¶¶ 14, 15.) 13
Ms. Garcia’s most recent Medi-Cal approved Individual Plan of Care authorizes her to 14
receive the following ADHC services 5 days per week: professional nursing services 5 times a week
15 to monitor her for hypoglycemic reactions, and monitoring for joint and back pain; personal care

16 services 5 times a week to supervise her ambulation and prevent falls due to her poor vision and

17 impulse control; social services 5 times a week to increase her opportunities for socialization and on

18 an as needed basis help her coordinate her IHSS and other social services; physical therapy

19 maintenance program 3 days per week to maintain her endurance and physical strength; occupational

20 therapy maintenance program two days per week to maintain her current levels of functioning; and

21 registered dietician services. (McCloud Decl. ¶ 24.)

22

Ms. Garcia’s most recent IPC states that she is at a high risk of institutionalization if she does

23 not receive ADHC services 5 days per week, based on her two or more chronic medical conditions,

24 frailty, hyper/hypoglycemia, inappropriate affect/appearance or behavior, poor judgment, risk for

25 falls, and medication mismanagement. (Id. at ¶ 25.)

26

As of August 20, Ms. Garcia has not received written notice from Medi-Cal that her services

27 will be cut and advising her of her right to a hearing. (Garcia Decl. ¶ 17.)

28

E. Failure to Provide Individual Notice

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1

Medicaid program recipients have rights to written notice and a predetermination fair hearing

2 if the benefits they are receiving are reduced, suspended or terminated. 42 C.F.R. § 431.200 et seq.

3 (2009); Cal. Code Regs. tit. 22 § 51014.1.(a). The notice must be sent at least ten days before the

4 date of the action and must contain a statement of the intended action, the reasons and specific legal

5 support for the action, and an explanation of the individual’s hearing rights, rights to representation

6 and to continued benefits. 42 C.F.R. §§ 431.206(b); 431.210 et seq; Cal. Code Regs. tit. 22,

7 §§ 50179(c), 51014.1(c).

8

On July 30, 2009, Defendants informed providers of the ADHC program that Medi-Cal

9 would no longer approve or pay for a beneficiary to attend an ADHC center for more than 3 days per

week as of August 27, 2009. (Puckett Decl. ¶ 15, Exh. A.) Defendants also posted a notice on the 10

DHCS website that the “ADHC benefit is reduced to a maximum of 3 days of ADHC per week” and 11
that: “Effective August 27, 2009, Medi-Cal will only authorize and pay for a maximum of 3 days 12
per week of Adult Day Health Care.” (Id. at ¶ 15, Exh. B.) 13
After Plaintiffs filed this lawsuit, Defendants sent individual notification of the cuts (without
14 including notification of the right to a hearing) to recipients, but Plaintiffs have not seen the notices

15 as of the date of this Motion. (Zirker Decl. in Support of Plaintiffs’ Motion for Order Shortening

16 Time, ¶ 10.) Plaintiffs Lillie Brantley, Gilda Garcia, and Allie Jo Woodard have not received

17 individualized notice of the cuts to their services providing them with statutorily required hearing

18 rights. (McLorin Decl. ¶ 15; Garcia Decl. ¶ 17; Gaspard-Berry Decl. ¶ 14.) Upon information and

19 belief, no class members have received individualized notice of the cuts to their services which

20 inform them of their statutorily required hearing rights. (Puckett Decl. ¶ 18.)

21 III. PLAINTIFFS MEET THE REQUIREMENT FOR GRANTING A PRELIMINARY INJUNCTION
22
A. Standards for Preliminary Injunction 23
“A plaintiff seeking a preliminary injunction must establish that he is (1) likely to succeed on 24
the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that 25
the balance of equities tips in his favor, and (4) that an injunction is in the public interest.” Am. 26
Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); Winter v. Natural Res. 27
Def. Council, --- U.S. ---, 129 S. Ct. 365, 374 (2008); Stormans, Inc. v. Selecky, 571 F.3d 960, 97728

9
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1 98 (9th Cir. 2009). Plaintiffs meet all four criteria.

2

The Ninth Circuit has traditionally advanced a “sliding-scale” formulation under which

3 injunctive relief is appropriate, among other circumstances, in cases of obvious irreparable injury but

4 where the plaintiff is only able to show that “serious questions going to the merits were raised.”
5 Benda v. Grand Lodge of the Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 314-15
6 (9th Cir.1978). Many recent decisions continue to use the alternative formulation. See e.g. Save
7 Strawberry Canyon I v. Dept. of Energy, 613 F. Supp. 2d 1177, 1180 (N.D. Cal. 2009); Save
8 Strawberry Canyon II v. Dept. of Energy, 2009 WL 1098888, at *3 (N.D. Cal. 2009). Habeas 9 Corpus Res. Ctr. v. United States Dep't of Justice, 2009 WL 185423, at *5 (N.D.Cal.2009) (after
Winter, “[w]hen the balance of harm ‘tips decidedly toward the plaintiff,’ injunctive relief may be 10
granted if the plaintiff raises questions ‘serious enough to require litigation.’”). Plaintiffs also meet 11
the alternative formulation. 12
1. Plaintiffs will Suffer Irreparable Harm in the Absence of an Injunction 13
Recipients of government benefits frequently constitute the most vulnerable sector of the 14
population. Numerous courts have held that reductions in either government benefits or medical 15
care cause irreparable harm even when the cuts are of a relatively small magnitude. See e.g., 16 Beno v. Shalala, 30 F. 3d 1057, 1063-64, fn. 10 (9th Cir. 1994) (noting harm to beneficiaries 17 from government benefit and medical care cuts); Beltran v. Myers, 677 F. 2d 1317, 1322 (9th 18 Cir.1982). In Beltran, the Plaintiffs were a class of aged, blind, and disabled individuals who 19 were denied Medi-Cal benefits by application of a transfer of assets rule in California. The Court
20 held that by showing loss of the Medi-Cal benefits to the class, the Plaintiffs had demonstrated
21 irreparable injury. See also Edmonds v. Levine, 417 F. Supp 2d 1323, 1342 (S.D. Fla. 2006)
22 (summarizing eight different Medicaid cases finding irreparable harm or imminent risk of
23 irreparable harm due to a variety of Medicaid cuts); Daniels v. Wadley, 926 F. Supp. 1305, 1313

24 (M.D. Tenn. 1996) vacated in part on other grounds sub nom Daniels v. Menke, 145 F.3d 1330

25 (6th Cir. 1998); Markva v. Haveman, 168 F. Supp. 2d 695, 719 (E.D. Mich. 2001); Maine v.

26 Ass’n of Interdependent Neighborhoods v. Petit, 647 F. Supp. 1312, 1315 (D. Me. 1985); Kai v.

27 Ross, 336 F.3d 650, 656 (8th Cir. 2003); Caldwell v. Blum, 621 F.2d 491, 498 (2d Cir. 1980),

28 cert. denied 452 U.S. 909 (1981).
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1

In addition, a violation of civil rights under the ADA and Section 504 because of a state’s

2 failure to provide services “in the most integrated setting appropriate,” and being placed at “high

3 risk for premature entry into a nursing home,” satisfy the standard for granting injunctive relief.

4 See Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1184-1185 (10th Cir. 2003). In

5 this case, the named Plaintiffs and class members are elderly and/or disabled individuals who

6 face both Medicaid benefits cuts and ADA violations.

7

a. Lillie Brantley

8

Ms. Brantley would be irreparable harmed by a reduction in ADHC services to 3 days per

9 week. (Steinke Decl. ¶ 22.) Although Ms. Brantley is severely impaired by Alzheimer’s disease,

10 ADHC services 5 days per week enable her to live in a familiar environment with family members

who care for her and whom she recognizes and can interact with. She can go out to eat with family, 11
and attend church. (McLorin Decl. ¶¶ 17, 18.) However, because she is unable to be left alone for 12
any period of time, she would be at risk of serious injury if she were home alone during the time that 13
ADHC is no longer available. (Id. at ¶ 6.) Given her family’s inability to stay at home with her for 14
the days she would no longer be able to go to ADHC, she would need to be placed in a nursing 15
facility. Given her cognitive condition, she would likely deteriorate rapidly in an unfamiliar
16 environment such as a nursing facility. (Steinke Decl. ¶ 22.) Placement in an institution would be

17 devastating to her and to her family. (Id. at ¶ 22; McLorin Decl. ¶ 17.)

18

b. Allie Jo Woodard

19

Plaintiff Allie Jo Woodard would be irreparably harmed by a reduction in ADHC to 3 days

20 per week. Ms. Woodward lives in her own home with family alternating caring for her. Given her

21 complex medical and mental health conditions, Ms. Woodard cannot be left alone safely. There

22 would be no one to care for her on the days that she would no longer be able to attend ADHC. Ms.

23 Woodward relies on ADHC services for pain and medication management, and socialization to assist

24 her mental health condition. Without 5 days per week of ADHC, Ms. Woodward would need to be

25 placed in a nursing facility. Most likely, she would deteriorate physically and mentally. (Steinke

26 Decl. ¶ 24; Davis Decl. ¶ 25; Gaspard-Berry Decl. ¶ 16-17.)

27

c. Gilda Garcia

28

Ms. Garcia would be irreparably harmed by a reduction in ADHC to 3 days per week. Ms.

11

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1 Garcia has unstable diabetes such that the frequent medical monitoring by ADHC nursing cannot be

2 replicated by primary care. Ms. Garcia relies on ADHC for medical stabilization. In addition, Ms.

3 Garcia is protected from isolation and depression by attending ADHC 5 days per week. If she had to

4 remain at home for part of the week, she would likely see a rapid decrease in her mental and physical

5 states, which would likely result in acute hospitalization and institutionalization. (Steinke Decl. ¶

6 23; McCloud Decl. ¶¶ 26-27; Garcia Decl. ¶ 18; Perelman Decl. ¶ 14-15.)

7

d. Class Members

8

Plaintiffs’ situations are typical of thousands of individuals who receive ADHC services, all

9 of whom face imminent harm if the ADHC cuts are enacted. There are approximately 36,860

10 recipients of ADHC services; approximately 8,121 of them currently receive services 4 and 5 day a

11 week and will be affected by these cuts. (Missaelides Decl. ¶¶ 27, 33.) The following examples

12 show the severe harm similarly situated individuals will suffer:

13

Chuck Peterson, 61, of Woodland, who has Chronic Obstructive Pulmonary Disease

14 (COPD), emphysema, depression, anxiety, a hearing impairment, and is legally blind, among other

15 disabilities. Mr. Peterson is oxygen dependent and takes approximately 15 medications. He has

16 coughing episodes due to COPD, which cause him to black out and fall to the ground. As a result,

17 he uses a wheelchair. He lives alone in an SRO and requires assistance with taking his medication

18 and is dependent upon others for meals, transportation, personal assistance, chores, and shopping.

19 (Peterson Decl. ¶ 3.) He attends the Yolo Adult Day Health Center 5 days a week, and fears

20 institutionalization if he is only able to attend the program 3 days per week. (Peterson Decl. ¶ 9; see

21 also, Myers Purkey Decl. ¶ 23 (stating that Mr. Peterson is a “high risk” for institutionalization).)

22

Wilrene LaMar, 57, of Oroville, who has multiple disabilities as a result of a cerebral

23 vascular accident (CVA), and attends the Peg Taylor Center in Chico California 5 days per week.

24 Ms Lamar receives daily nursing services to monitor her and to assess for signs of stroke, medication

25 side effects, stomach problems and other serious health concerns. She fears she will be

26 institutionalized in a nursing facility if ADHC services are cut. (LaMar Decl. ¶ 9.)

27

Ilene McKray, 70, of Orland, has schizoaffective disorder and diabetes. She had her left leg

28 amputated. She lives in an assisted living facility, and is dependent on ADHC 5 days a week to
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1 avoid nursing facility institutionalization. She receives daily physical therapy services to assist her

2 with using her prosthetic leg. Ms. McKray’s sister believes she will suffer both physical and

3 emotional harm if her ADHC services are cut to only 3 days per week. (Simmons Decl. ¶¶ 8, 10.)

4

In addition to these individual participants, ADHC program providers have identified

5 participants who they believe will be harmed by these cuts:

6

Catherine Davis, Program Director of the Bayview Hunter’s Point Adult Day Health Care

7 program: Of the participants in her Program, Ms. Davis and her staff have identified 22 individuals

8 who they believe are most at risk of institutionalization and/or physical harm should their ADHC

9 services be cut and they not receive replacement services. These individuals have been determined

10 to have a high potential for the deterioration of their medical, cognitive, or mental health condition

11 or conditions in a manner likely to result in emergency department visits, hospitalization, or other

12 institutionalization if ADHC services are not provided. (Davis Decl., ¶¶ 18, 33-36, Exh. A.)

13

Marina Krupnik, Executive Director of the Circle of Friends Adult Day Health Care Center

14 in San Francisco, CA.: Ms. Krupnik has identified 160 participants who receive ADHC services

15 four and 5 days a week. Based on her knowledge and experience, and the rules of the ADHC

16 program which require individuals to be at a high risk of institutionalization without the provision of

17 ADHC services every day of the week they currently receive ADHC services, Ms. Krupnik believes

18 that reductions to ADHC services from 5 to 3 days per week will cause individuals in her programs

19 to be institutionalized, hospitalized, or otherwise harmed. (Krupnik Decl. ¶ 18.)

20

Diane Puckett, Executive Director of Innovative Health Care Services and Administrator of

21 the Peg Taylor Center for Adult Day Health Care, Chico: Ms. Puckett has identified twenty-eight

22 participants in her program who receive services four and 5 days per week, who face the risk of

23 institutionalization, hospitalization or even death as a result of the reduction to their services.

24 (Puckett Decl. ¶¶ 14, 20, 23.)

25

Debbie Toth, Executive Director of the Mt. Diablo Center for Adult Day Health Care in

26 Pleasant Hill: Ms. Toth has identified 28 participants in her program who receive services four and

27 5 days per week, who face the risk of institutionalization as a result of the reduction to their services.

28 (Toth Decl. ¶ 17.)
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1

2. Plaintiffs are Likely to Succeed on the Merits of their Claims that

Defendants are Violating the ADA and Section 504. 2

3

a. The ADA and Section 504 Prohibit Discrimination Against Individuals with Disabilities.

4

In 1990, Congress enacted the Americans with Disabilities Act, as amended by the ADA of

5 2008 (ADA) in 1990, to prohibit discrimination by all public entities. 42 U.S.C. §§ 12101(2008);

6 H.R. Rep. No. 101-485, pt. 3, at 49 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 472.

7

Title II of the ADA, which governs public programs such as Medi-Cal, provides:

8

[N]o qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits

9

of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.

10

42 U.S.C. § 12132.

11

Under the ADA, a “qualified individual with a disability” is a person who “with or without

12

reasonable modifications to rules, policies or practices” meets the “essential eligibility requirements

13

for the receipt of services or the participation in programs or activities provided by a public entity.”

14

42 U.S.C. § 12131. Section 504’s definition is substantially similar. See 29 U.S.C. § 705(20).

15

Plaintiffs are eligible for Medicaid and are qualified persons with disabilities within the meaning of

16 the ADA and Section 504.5 (McCloud Dec. ¶¶ 19 – 21 (regarding Plaintiff Garcia); Garcia Dec. ¶ 3;

17

Davis Dec. ¶¶ 21-22 (regarding Plaintiff Woodard)); ¶¶ 26-28 (regarding Plaintiff Brantley).)

18

Public entities must make reasonable modifications in “policies, practices, or procedures”

19

when the modifications are necessary to avoid discrimination, unless the accommodation would

20

fundamentally alter the nature of the program. 28 C.F.R. § 35.130(b)(7) (1991). Section 504 also

21

requires publicly-funded programs to provide reasonable accommodations when needed to assure

22

that people with disabilities have meaningful access to its programs and services. 29 U.S.C. §

23

794(a); see also Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979).

24

25

26 5 ADA regulations define disabilities, with respect to an individual, to include “a physical or mental

impairment that substantially limits one or more of the major life activities of such individual… such 27 as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing,

28

learning, and working.” 28 C.F.R. § 35.104 (1991). The Section 504 requirements are essentially the same. 28 C.F.R. § 41.32 (1981).

14

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1

b. The Cuts will Violate ADA and Section 504 Prohibitions Against

Unjustified and Unnecessary Institutionalization.

2

In enacting the ADA, Congress specifically found that segregation of persons with

3

disabilities, especially in institutions, is a form of discrimination prohibited under the Act. 42 U.S.C.

4

§§ 12101(a)(2), (3), (5). Moreover, the Supreme Court has held that unjustified isolation is properly

5

regarded as discrimination based on disability under the ADA. Olmstead, 527 U.S. at 597.

6

Institutional confinement “severely diminishes the everyday life activities of individuals, including

7

family relations, social contacts, work options, economic independence, educational advancement,

8

and cultural enrichment.” Id. Section 504’s ban on disability discrimination also encompasses

9

unjustified institutionalization. See, e.g., Frederick L. v. Dep’t of Public Welfare, 157 F. Supp. 2d

10

509, 538 (E.D. Pa. 2001).

11

The ADA and Section 504 specifically mandate that individuals with disabilities be

12

integrated into the community to the greatest extent possible. The ADA requires public entities to

13

“administer services, programs and activities in the most integrated setting appropriate to the needs

14

of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). Similarly, under Section 504,

15

agencies receiving federal financial assistance must administer their programs and activities “in the

16

most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R.

17

§41.51(d). These obligations, known as the “integration mandate,” are construed and applied in the

18

same manner. Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1179 n.3 (10th Cir.

19

2003).

20

The integration mandate was analyzed and interpreted by the United States Supreme Court in

21

the landmark decision Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead plaintiffs were

22

individuals with mental disabilities who were confined in Georgia’s state psychiatric institutions but

23

who wanted to live in the community. Plaintiffs asserted that the state’s refusal to pay for services

24

that would enable them to live in community settings violated the integration mandate of Title II of

25

the ADA and its implementing regulations. The Court agreed, and held that “unjustified isolation is

26

properly regarded as discrimination based on disability.” Id at 597.

27

The high Court interpreted the ADA’s “integration mandate” as requiring persons with

28

15
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1 disabilities to be served in the community when: 1) the state's treatment professionals have

2 determined that community placement is appropriate; 2) community placement is not opposed by the

3 affected individual; and 3) the placement can be reasonably accommodated, taking into account the

4 resources available to the state and the needs of others with disabilities. Id. at 587.

5

Plaintiffs do not need to wait until they are institutionalized to bring a claim under the

6 integration mandate. Individuals at risk of placement in nursing homes are also protected. See

7 Fisher, 335 F.3d at 1181 (“…Olmstead does not imply that disabled persons who, by reason of a

8 change in state policy, stand imperiled with segregation, may not bring a challenge to that state

9 policy under the ADA’s integration regulation without first submitting to institutionalization.”)

10

Defendants are violating Plaintiffs’ rights to receive Medi-Cal services in the most integrated

11 setting appropriate. Each Plaintiff meets all of the criteria necessary to show that the community

12 integration mandate has been violated. See Olmstead, 527 U.S. at 587; Radaszewski v. Maram, 383

13 F.3d 599, 608 (7th Cir. 2004).

14

1) The State’s Treatment Professionals Have Determined

15

That Community Placement is Appropriate.

16

Defendants have determined that receiving Medi-Cal services in the community is

17 appropriate to meet Plaintiffs’ needs. All Plaintiffs currently live in the community where they have

18 been receiving Medi-Cal services, many for years. (McCloud Decl. ¶¶ 19-20 (regarding Plaintiff

19 Garcia); Davis Decl. ¶¶ 20-21 (regarding Plaintiff Woodard); and ¶¶ 26-27 (regarding Plaintiff

20 Brantley).) They all have Individual Plans of Care (IPC), developed by a multi-disciplinary team

21 which sets forth services needed for them to remain safely in the community. These IPCs have been

22 submitted and approved by Medi-Cal. (McCloud Decl. ¶ 19; Davis Decl. ¶¶ 20 and 26.) As a

23 requirement of the program, Plaintiffs have been determined to have a “high potential for the

24 deterioration of their medical, cognitive, or mental health condition or conditions in a manner likely

25 to result in emergency department visits, hospitalization, or other institutionalization if ADHC

26 services are not provided.” (McCloud Decl. ¶¶ 17, 19, and 29; Exh. B; Davis Decl. ¶¶ 18, 20 and 26,

27 Exh. B, C.) Moreover, Plaintiffs’ treating providers and Plaintiffs’ medical expert have specifically

28 opined that community-based ADHC is the appropriate option, and institutionalizing them in nursing
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1 homes will be dangerous to their health and lives. (Steinke Decl. ¶¶ 21-24; McCloud Decl. ¶¶ 20-

2 26; Davis Decl. ¶¶ 24-25, 27-32.)

3

2) Plaintiffs Want to Stay in the Community.

4

Far from opposing community placement, these Plaintiffs are fighting to remain in their

5 homes. (Garcia Decl. ¶¶ 4, 7, 16-17; McLorin Decl. ¶¶ 8-9, 16-17 (regarding Plaintiff Brantley);

6 Gaspard-Berry Decl. ¶ 17 (regarding Plaintiff Woodard).) As a result of Defendants’ cuts, however,

7 the only way Plaintiffs can receive the services they need is to move to a nursing home or risk

8 hospitalization. (Steinke Decl. ¶¶ 21-24; McCloud Decl. ¶ 29; Davis Decl. ¶¶ 24-25, 31-32.)

9

3) Defendants can Reasonably Accommodate Plaintiffs’

Desire to Receive Services in the Community.

10

Under Olmstead, the integration mandate requires that Plaintiffs receive Medi-Cal services in

11 the community when this desire can be reasonably accommodated, taking into account the resources

12 available to the state and the needs of others with disabilities. Olmstead, 527. Defendants can

13 accommodate Plaintiffs’ needs because the necessary services are available not only through the

14 ADHC program, but also are covered separately by Medi-Cal. ADHC services enable Plaintiffs to

15 be supported in the community by providing cost-effective community-based care.6 However, under

16 California’s Medi-Cal program, there are a range of alternative community services that could be

17 used to replace the ADHC services that are being cut, including nursing, personal care, therapy, case

18 management, medication, meals, and transportation. See, “Comparison of Services and Programs

19 chart.” (Zirker Decl., Exh. A.)

20

Plaintiffs need information, assistance and time to secure those alternative community-based

21 services prior to termination of ADHC services. Defendants have failed to take any steps to identify

22 and ensure provision of these services to Plaintiffs and Class Members. Cuts should be stopped until

23 Defendants meet their obligations, under Olmstead, to ensure access to alternative services, available 24 under the Medi-Cal program, which are needed to avoid institutionalization in hospitals and nursing

25

26 6 ADHC services were specifically designed to “ensure that elderly persons and adults with

disabilities are not institutionalized inappropriately or prematurely,” recognizing that overreliance on 27 nursing facilities and institutions has proven to be a “costly panacea in both financial and human

28

terms, often traumatic, and destructive of continuing family relationships and the capacity for independent living.” Cal. Health & Safety Code § 1570.2.

17

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1 facilities.

2

Moreover, for those Plaintiffs for whom alternative services cannot be located, and

3 continuance of ADHC for 4 or 5 days is necessary to prevent institutionalization, ADHC services

4 should be available 4 or 5 days as a reasonable modification to the Medi-Cal program. In fact, under

5 ABX4 5, once Defendant Maxwell-Jolly issues a declaration implementing new eligibility

6 restrictions, the temporary ban on 4 or 5 days of ADHC will be lifted altogether. It is not only

7 reasonable, but prudent, to permit up to 5 days per week in the interim when necessary.

8

Defendants’ rush to cut ADHC services, paired with the complete failure to provide notice,

9 give participants information on or arrange for replacement services, or take any steps to prevent the

unnecessary institutionalization of Plaintiffs is culpable, and violates both the ADA and Section 504. 10
Case law is instructive here. In Fisher, the state imposed a rule limiting Medicaid coverage 11
of prescription drugs to only 5 prescriptions per month for individuals in the community. 335 F.3d 12
at 1178. If Medicaid beneficiaries required more than 5 prescriptions, they had to move into nursing 13
homes, where prescriptions were unlimited. Id. Plaintiffs requested an accommodation that would 14
enable them to obtain prescriptions in excess of the cap while still in their homes. The Tenth Circuit
15 reversed a grant of summary judgment in defendants’ favor and held that the cap on prescriptions

16 could violate the ADA’s integration mandate. Id. The circuit court rejected the district court’s

17 holding that fiscal burdens associated with reasonable accommodations would necessarily require a

18 fundamental alteration, stating:

19

[It is not] clear why the preservation of a program as it has existed for

20

years . . . would fundamentally alter the nature of the program. . . . Plaintiffs are simply asking that a service for which they would be

21

eligible under an existing state program . . . be provided in a community-based setting rather than a nursing home. . . .

22 Id. at 1183. The court observed that “Congress was clearly aware that ‘while the integration of

23 people with disabilities will sometimes involve substantial short term burdens, financial and

24 administrative, the long range effects will benefit society as a whole.’” Id., quoting H.R. Rep. No.

25 101-485, pt. 3, at 50, reprinted in 1990 U.S.C.C.A.N. 445, 473. Moreover, the court questioned

26 whether the required accommodation would constitute a fiscal burden at all. In response to the

27 lower court’s suggestion that having to provide prescriptions in excess of the cap would force them

28 to eliminate the home based program all together, the court observed that:
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1 2 3 Id. at 1183.

[g]iven that the cost of institutional care is nearly twice that of community based care, it seems unlikely that . . . elimination of the waiver program, would have solved Oklahoma’s fiscal crisis, because it could have served only to drive participants into nursing homes.

4

The situation in California is similar. Plaintiffs request only that Defendants ensure that

5 Plaintiffs have coverage for Medi-Cal replacement services, or, in cases where that is not possible,

6 continue to provide a cost-effective community alternative to institutional care -- ADHC services 4

7 or 5 days per week. Missaelides Decl ¶¶ 28, 38.

8

In Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) the plaintiff was a “categorically

9 needy” Medicaid recipient who lived in a community setting with Home and Community-Based

10 Services (HCBS) Waiver services. When his income increased slightly, he became ineligible for

11 HCBS Waiver services; thus, Mr. Townsend and those similarly situated would be forced to receive
12 long-term care services in nursing homes. The district court granted summary judgment in favor of
the State on the basis that the plaintiffs were requesting “new” services which were not required by 13
Olmstead. The Ninth Circuit reversed, concluding that the services sought by plaintiffs were not 14
new, as they were already provided in a nursing home setting and requiring the State to demonstrate 15
that providing community-based services to medically needy individuals would compel cutbacks in 16
services to other Medicaid recipients. As the Court pointed out: “[W]here the issue is the location 17
of services, not whether services will be provided, Olmstead controls.” Id. at 517. 18
See also, Radaszewski, 383 F.3d 600 at 611. (Seventh Circuit reversed the district court,
19 holding that “[t]he integration mandate may well require the state to make reasonable modifications
20 to the form of existing services in order to adapt them to community-integrated settings” and

21 remanded the case for further findings.) On remand, Radaszewski, No. 01-C 9551, 2008 WL

22 2097382 (N.D. Ill. 2008) (Plaintiffs’ nursing needs could be accommodated by providing additional

23 hours above the cap or modifying other Medicaid programs to meet Plaintiffs’ needs.)

24 *****Crabtree v. Goetz, 3:08-939, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) (Memorandum);

25 (enjoining state agency from reducing plaintiffs'home health aide and nursing services, which would

26 place them at risk of institutionalization, until individualized assessments could be made of their

27 specific needs for services).

28

As in Townsend and Radaszewski, Plaintiffs have already been determined to need the type

19
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1 of services available under the ADHC Medi-Cal program. Plaintiffs’ Individual Plans of Care, and

2 the services set forth therein, have been authorized by Defendants as “medically necessary” to avoid

3 a “high potential” for health risks and deterioration “likely to result in emergency department visits,

4 hospitalization, or other institutionalization” without ADHC services. (Davis Decl. ¶¶ 24 and 31;

5 McCloud Decl. ¶ 25.) Their care needs and health require services that could be provided in their

6 homes, or, although undesirable, at an institution. (Davis Decl. ¶¶ 23, 30.) There is no dispute about

7 eligibility or need for services, just where these services must be provided. The ADA answers that

8 question. Plaintiffs should receive services at home, in the community with their families, where

9 they desire to be.

As in Fisher, Radaszewski, Townsend, and Crabtree, Plaintiffs are not asking that a new 10

program be created, nor do they ask Defendants to fund a service that it otherwise would not fund in 11

an institutional setting. They simply ask that they continue to receive services in the community 12

instead of in a nursing home. There are numerous ways that Defendants can deliver these services.

13 Accordingly, Plaintiffs are likely to succeed on the merits of this claim.

14

c. Defendants are Violating the Prohibition on Employing Methods of

15

Administration that Result in Discrimination.

16

The ADA prohibits methods of administration or contractual arrangements which, though

17 neutral on their face, have a discriminatory effect. A public entity may not:

18

directly or through contractual or other arrangements, utilize … methods of administration (i) [t]hat have the effect of subjecting

19

qualified individuals with a disability to discrimination on the basis of disability; [and](ii) [t]hat have the purpose or effect of defeating or

20

substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disability.

21 28 C.F.R. § 35.130 (b)(3). Section 504 contains similar requirements. See 28 C.F.R.

22 § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4) (2005).

23

Defendants’ actions violate the methods of administration provision of the ADA and Section

24 504 by denying Plaintiffs access to community-based Medi-Cal services and by subjecting them to

25 unnecessary institutionalization in hospitals and nursing facilities, as follows:

26

1. by cutting Medi-Cal ADHC services before providing notice and an

27

opportunity for a hearing, which would enable Plaintiffs and other beneficiaries to seek secure community-based replacement services;

28

2. by failing to provide information about alternative community-based services

20
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1 under the Medi-Cal program, which are available to Plaintiffs and other beneficiaries in order to

avoid hospitalization or placement in an institution;

2

3. by failing to provide enough time for Plaintiffs and other beneficiaries to

3

actually secure replacement community services prior to termination of current ADHC services; 4. by forcing Plaintiffs and other beneficiaries to be institutionalized pending the

4 issuance of the Director’s declaration reinstating ADHC services to up to 5 days per week; 5. by imposing ADHC cuts without regard to the individual needs of Plaintiffs

5 and other beneficiaries;

6. by providing no system by which Plaintiffs and beneficiaries may obtain 6 exceptions to the caps on services;

7

7. by failing to provide reasonable modification exceptions, including the provision of ADHC services 4 – 5 days per week, as required to avoid unnecessary

8 institutionalization of Plaintiffs and other beneficiaries; and, 8. by forcing doctors and other providers into reducing levels of services

9 contrary to the documented medical needs of Plaintiffs and other beneficiaries, placing them at risk

of institutionalization, physical harm or death. 10

11

Further, Defendants’ actions and inactions defeat or substantially impair the very purpose of

the ADHC Medi-Cal program which is to “provide a viable alternative” and “ensure that elderly 12

persons and adults with disabilities are not institutionalized in appropriately or prematurely.” Cal. 13

Health & Safety Code § 1570.7(a),(b) (West 2009). Defendants’ methods of administration 14

undermine these goals and must be judged in that light. Plaintiffs have shown a likelihood of 15
success on this claim.
16 3. Plaintiffs are Likely to Succeed on the Merits of their Claims that

17

Defendants are Violating the Due Process Clause of the Fourteenth

Amendment and Medicaid Law by Failing to Provide Adequate Pre-

18

termination Notice and Opportunity for a Hearing.

19

Defendants have failed to provide adequate pre-termination notice and opportunity for a

20 hearing, in violation of the Due Process Clause of the Fourteenth Amendment and the federal

21 Medicaid statute and regulations. The Fourteenth Amendment to the U.S. Constitution prohibits a

22 state from depriving any person of property without due process of law. U.S. Const. amend XIV,

23 § 1. Moreover, it is well established that Medicaid recipients have a statutory entitlement to benefits

24 that is protected by the Due Process Clause of the Fourteenth Amendment. See, e.g., O’Bannon v.

25 Town Court Nursing Center, 447 U.S. 773, 787 (1980) (Medicaid recipient has right protected by

26 due process to continued Medicaid benefits to pay for services from the qualified provider of his

27 choice). In Goldberg v. Kelly, 397 U.S. 254 (1970), the Court noted that termination of public

28 benefits “pending resolution of a controversy over eligibility may deprive an eligible recipient of the
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1 very means by which to live while he waits.” Goldberg v. Kelly, 397 U.S. at 264 (emphasis in

2 original). Thus, the Court held that such individuals (which include Plaintiffs in this case) are

3 entitled, under due process, to an evidentiary hearing before benefits can be discontinued.

4 According to the Court, such recipients must also be given an “opportunity to be heard . . . at a

5 meaningful time and in a meaningful manner.” Goldberg, 397 at 267.

6

Further, the federal Medicaid statute and regulations require that a state provide notice and an

7 opportunity for an administrative hearing before it terminates eligibility or authorization for services.

8 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.220. The regulations require that, at the time of any

9 action affecting an individual’s claim to services, an individual must receive written notice of: (1)

the right to a hearing; (2) the method by which she may obtain a hearing; and (3) that she may 10

represent herself or be represented by another. 42 C.F.R. § 431.210. The notice must contain: 11

(a) a statement of what action the State . . . intends to take;

12

(b) the reasons for the intended action;

13

(c) the specific regulations that support, or the change in Federal or State law that requires, the action;

14

(d) an explanation of: (1) the individual’s right to request an evidentiary hearing if one is

available, or a state agency hearing; or (2) In cases of an action based on a change in law, the

15

circumstances under which a hearing will be granted; and

(e) An explanation of the circumstances under which Medicaid is continued if a hearing is

16

requested.

17 Id. This notice must be mailed at least 10 days before the date of the action. 42 C.F.R. § 431.211:

18 Cal. Code of Regs. Tit. 22 §§ 50179(d), 51014.1(c). In addition, if a hearing is requested within 10

19 days, benefits must continue until the agency reaches a final decision. 42 C.F.R. § 431.230 (a).

20

Defendants have failed to provide Plaintiffs and other affected ADHC recipients with notice

21 which includes their right to a hearing. (McLorin Decl., ¶ 15; Gaspard-Berry Decl., ¶ 14; Garcia

22 Decl. ¶ 17.) Nowhere in the web notice does it state that ADHC recipients may be entitled to
23 services under other Medi-Cal benefit programs, nor does the notice advise Plaintiffs of their right to
24 a fair hearing, the manner for requesting a hearing, their right to a continuation of benefits pending a 25 hearing, or whether components of their existing services or other similar other services may be 26 available to meet Plaintiffs’ needs which are established in their currently-authorized TARs. 27 (Puckett Decl. ¶ 17, Exh. B.)
Furthermore, Plaintiffs are entitled to not only notification of the cut, but also to a pre28
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1 termination hearing. In the case of the named Plaintiffs and other class members, there are other

2 issues that could be addressed at a hearing, including whether they continue to be entitled to skilled

3 nursing services, personal care services, and other Medi-Cal services independent of the ADHC

4 benefit. At the very least, Plaintiffs should be granted hearings to determine whether there are other

5 contested issues other than the change in law reducing the ADHC benefit. 42 C.F.R. § 431.230(a)(1)

6 (1980) (providing that, if a hearing is requested within 10 days, benefits must continue pending a

7 determination of whether the sole contested issue is one of federal or state law.)

8

Defendants have not met their procedural due process obligations under the Medicaid law, or

9 the Constitution’s due process clause. Accordingly, Plaintiffs have a strong likelihood of success on

these claims. 10
4. The Balance of Equities is in Plaintiffs’ Favor 11
The balance of hardships tips sharply towards Plaintiffs. They stand to lose vital services at 12
risk to their health and lives. They are also at risk of institutionalization and its attendant loss of 13
independence and separation from family and community. In contrast, Defendants will suffer no 14
harm because the injunction will only require them to continue providing services in exactly the 15
same manner that it has done for years. Moreover, if the injunction is not granted, they would be
16 required to provide the same services in costly nursing homes, which is likely to be more expensive.

17

In any case, the expense incurred by providing benefits does not outweigh harm to plaintiffs.

18 See Daniels v. Wadley, 926 F. Supp. 1305 at 1313 (M.D. Tenn. 1996); Kansas Hosp. Ass’n v.

19 Whiteman, 835 F. Supp. 1548, 1552-1553 (D. Kan. 1993) (concluding that the threatened injuries to

20 the plaintiffs outweighed any harm to the defendant because changing Medicaid coverage

21 “significantly alters the status quo to the detriment of the individual plaintiffs, while its positive

22 budgetary impact on state coffers is negligible in a relative sense”).

23

In this case, it is extremely unlikely the state will realize any significant savings. Without

24 ADHC services, Plaintiffs and class members will face deteriorating, and ultimately acute, medical

25 conditions. They will be forced into expensive nursing homes where most of them are at risk of

26 deterioration and likely to require even more costly hospital admissions.

27

Finally, the Defendant cannot be harmed by complying with what the federal law requires:

28

Because the defendants are required to comply with the [law in

question], we do not see how enforcing compliance imposes any

23

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1

burden on them. The Act itself imposes the burden; this injunction

merely seeks to prevent the defendants from shirking their

2

responsibilities under it.

3 Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986) (granting preliminary injunction requiring

4 defendant's compliance with federal Food Stamp law).

5

5. An Injunction is in the Public’s Interest

6

The public interest will be served by granting an injunction. The ADA and Section 504 are

7 based on strong public policy concerns. Congress enacted the ADA to build upon the guarantees of

8 Section 504 and to address the “serious and pervasive” social problem caused by discrimination

9 against people with disabilities and to provide a clear and comprehensive national mandate for

10 elimination of discrimination against individuals with disabilities. 42 U.S.C. § 12101. It serves the

11 public interest to carry out the mandates of these laws. See also Heather K. v. Mallard, 887 F. Supp.

12 1249, 1263, 1266 (N.D. Iowa 1995) (issuing temporary restraining order, holding that Americans

13 with Disabilities Act embodied the public interest in enforcement of anti-discrimination provisions

14 against public officials); U.S. v. Edward Rose & Sons, 384 F.3d 258 (6th Cir. 2004) (holding that

15 enforcing the Federal Housing Act serves the public interest); Glenwood Bridge, Inc. v. Minneapolis,

16 940 F.2d 367, 372 (8th Cir. 1991) (enforcement of the federal law is in the public interest.)

17 IV. CLASSWIDE RELIEF IS APPROPRIATE

18

Plaintiffs have moved simultaneously with this motion for certification of a class of ADHC

19 beneficiaries and a subclass of ADHC beneficiaries immediately affected by the 5 to 3 day

20 reduction, since all members of the class and subclass face irreparable harm. Fed. R. Civ.P. 23(c)(1)

21 provides that “as soon as practicable after the commencement of an action brought as a class action,

22 the court shall determine…” whether it is to be so maintained. Classwide relief for the class and

23 subclass is appropriate at the preliminary injunction stage. If the motion for class certification

24 cannot be held simultaneously, class wide injunctive relief can still be granted.” “[W]hen the

25 determination of the class action issues is delayed, a suit brought under Rule 23 should be treated as

26 a class action . . . until there is a determination that the action may not proceed under the rule.” N.Y.

27 State Nat’l. Org. for Women v. Terry, 697 F. Supp. 1324, 1336 (S.D. N.Y. 1988), citing to 7B

28 Wright, Miller & Kane, Fed. Practice & Proc. § 1785 (1986); Joyce v. City & County of San
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1 Francisco, 864 F. Supp. 843, 854 (N.D. Cal. 1994); see 2 Newberg on Class Actions (4th Ed. 2002)

2 9:45 n.3 at 411 (list of cases ordering class-wide preliminary injunctive relief pending class

3 certification.)

4

Furthermore, since the court retains the authority to modify the class at any time, conditional

5 certification for purposes of preliminary relief is within the court’s general equity powers. 3

6 Newberg at § 9:45 n.11; Thomas v. Johnston, 557 F. Supp. 879, 917 n.29 (W.D. Tex. 1983)

7 (preliminary injunctive relief provided to class of Medicaid recipients with disabilities prior to filing

8 of motion for class certification); Kaiser v. County of Sacramento, 780 F. Supp. 1309, 1312 n.5

9 (E.D. Cal. 1991) (provisional certification of class.)

10 V. PLAINTIFFS SHOULD NOT BE REQUIRED TO POST BOND

11

This Court has the discretion to issue a preliminary injunction without requiring plaintiffs to

12 post bond. People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 13 F.2d 1319 modified on other grounds, 775 F.2d 998 (9th Cir. 1985). Exercise of that discretion is

14 particularly appropriate where an action is brought by a class of indigent plaintiffs. Orantes-

15 Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982). Plaintiffs, who are all Medicaid recipients,

16 see a waiver of the security requirements in Fed. R. Civ. P. 65(c) where requiring security would

17 effectively deny access to judicial review. Van De Kamp, 766 F.2d at 1325. The Court also has

18 discretion to waive the bond in a case where issues of overriding public concern or important federal 19 rights are involved. See, e.g., Cont’l Oil Co. v. Frontier Ref. Co., 338 F.2d 780, 782 (10th cir. 1964).

20 VI. CONCLUSION

21

Therefore, Plaintiffs request that the Court issue a Preliminary Injunction enjoining the

22 ABX4 5 cuts.

23 Date: August 26, 2009

Respectfully submitted,

24

DISABILITY RIGHTS CALIFORNIA

25

By:

/s/

26

Elizabeth Zirker

27

Attorneys for Plaintiffs

28
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1 2 3 4 F:\DOCS\ADHC Litigation\Pleadings\TRO-PI\Final\Notice and P&A on PI (Kim final edits) 8-26-09.doc 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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 Case4:09-cv-03798-SBA Document46 Filed09/03/09 Page1 of 21

1 Elizabeth Zirker, State Bar No. 233487

elizabeth.zirker@disabilityrightsca.org 2 Jay B. Koslofsky, State Bar No. 97024

3

jay.koslofsky@disabilityrightsca.org Kim Swain, State Bar No. 100340

4 kim.swain@disabilityrightsca.org Elissa Gershon, State Bar No. 169741

5 elissa.gershon@disabilityrightsca.org

Daniel Brzovic, State Bar No. 89493 6 Dan.brzovic@disabilityrightsca.org

7

Dara Schur, State Bar No. Dara.schur@disabilityrightsca.org

8 DISABILITY RIGHTS CALIFORNIA 1330 Broadway, Suite 500

9 Oakland, CA 94612

Telephone: (510) 267-1200 10 Facsimile: (510) 267-1201

11 Attorneys for Plaintiffs
12 [Complete list of counsel on following pages]
13
IN THE UNITED STATES DISTRICT COURT 14

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

LILLIE BRANTLEY, by her guardian ad ) Case No.: C09-03798 SBA

17 litem Chauncey McLorin; GILDA GARCIA; )

18

ALLIE JO WOODARD, by her guardian ad litem Linda Gaspard-Berry, individually and

) CLASS ACTION )

19 on behalf of all others similarly situated,

) PLAINTIFFS’ REPLY TO ) DEFENDANTS’ OPPOSITION TO

20

) PLAINTIFFS’ MOTION FOR

Plaintiffs, 21

) PRELIMINARY INJUNCTION )

22

vs.

) Date: September 9, 2009 ) Time: 1:00 P.M.

23 DAVID MAXWELL-JOLLY, Director of the ) Place: Courtroom One, Fourth Floor Department of Health Care Services, State of )

24 California, DEPARTMENT OF HEALTH )

CARE SERVICES,

)

25

)

26

Defendants.

) )

27

)

28
i Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

Case4:09-cv-03798-SBA Document46 Filed09/03/09 Page2 of 21

1 Anna Rich, State Bar No. 230195

arich@nsclc.org 2 Kevin Prindiville, State Bar No. 235835

3

kprindiville@nsclc.org NATIONAL SENIOR CITIZENS LAW CENTER

4 1330 Broadway, Suite 525 Oakland, CA 94612

5 Telephone: (510) 663-1055

Facsimile: (510) 663-1051 6

7

Barbara Jones, State Bar No. 88448 bjones@aarp.org

8 AARP FOUNDATION LITIGATION 200 So. Los Robles, Suite 400

9 Pasadena, CA 91101

Telephone: (626) 585-2628 10 Facsimile: (626) 583-8538

11 Kenneth W. Zeller, Pro Hac Vice Pending
12 kzeller@aarp.org AARP FOUNDATION LITIGATION
13 601 E Street NW
Washington, D.C. 20049 14 Telephone: (202) 434-2060
15 Facsimile: (202) 434-6424

16

17

18

19

20

21

22

23

24

25

26

27

28
ii Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

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1

TABLE OF CONTENTS

2 I. INTRODUCTION................................................................................................................... 1

3 II. PLAINTIFFS MEET THE WINTER REQUIREMENTS ................................................. 1

4 III. 5 6

PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF AN INJUNCTION ......................................................................................................................... 2
A. Plaintiffs and Class Members Face Irreparable Harm from the Loss of Medicaid Benefits, as a Matter of Law ......................................................................................... 2

7

B. Defendants’ Determination of Eligibility Establishes Irreparable Harm...................... 3

8

C. Plaintiffs’ and Class Members’ Risk of Imminent, Irreparable Harm is Supported by

Ample Evidence............................................................................................................ 3

9

D. The Harm to Plaintiffs Outweighs any Budgetary Concerns of the Defendants .......... 4

10

E. Plaintiffs Have Demonstrated that the Named Plaintiffs Face Imminent Irreparable

11

Harm and have Established that Class Members Face the Same Harm. ...................... 5

12 IV. 13 14

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS..................................................................................................................... 5
A. Plaintiffs Have Shown a Likelihood of Being Unnecessarily Institutionalized in Violation of the ADA and Section 504......................................................................... 5

15
16
17 V.
18 VI.
19

B. Plaintiffs Have a Private Right of Action to Enforce the “Methods of Administration” Regulations Implementing Title II of the ADA and § 504. .......................................... 9
C. Plaintiffs Have Shown a Likelihood of Success on Their Due Process Claims ......... 11
THE BALANCE OF HARDSHIPS FAVORS PLAINTIFFS .......................................... 13 THE PUBLIC INTEREST STRONGLY FAVORS THE GRANT OF AN INJUNCTION ....................................................................................................................... 14

20 VII. CONCLUSION ..................................................................................................................... 15

21

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

Cases

2

Alexander v. Choat

3

469 U.S. 285, 295 (1985)........................................................................................................ 10

4 Alexander v. Sandoval

532 U.S. 285 .......................................................................................................................... 10

5

Barnes v. Gorman

6

536 U.S. 181 (2002).................................................................................................................. 9

7 Beltran v. Myers

677 F.2d 1317 (9th Cir. 1982) ........................................................................................ 2, 5, 14

8

Beno v. Shalala

9

30 F.3d 1057 (9th Cir. 1994) ................................................................................................ 2, 4

10 Caldwell v. Blum

621 F.2d 491 (2nd Cir. 1980), cert. denied,452 U.S. 909 (1981) ........................................... 14

11

Class Plaintiffs v. City of Seattle

12

955 F.2d 1268 (9th Cir. 1992) (quoting Regal Knitwear Co. v. NLRB

324 U.S. 9 S. Ct. 478(1945)...................................................................................................... 9

13

Crabtree v. Goetz

14

2008 WL 5330506 (M.D. Tenn., December 19, 2008.)............................................................ 6

15 Edmonds v. Levine

417 F. Supp 2d 1323 (S.D. Fla. 2006) ...................................................................................... 2

16

Fisher v. Oklahoma Health Care Authority

17

335 F.3d 1175 (10th Cir. 2003) ................................................................................................ 6

18 Frederick L. v. Dep’t of Public Welf.

157 F. Supp. 2d 509 (E.D. Pa. 2001) ...................................................................................... 10

19

Habeas Corpus Res. Ctr. v. United States Dep't of Justice

20

2009 WL 185423, at *5 (N.D.Cal.2009) ................................................................................ 13

21 Hillburn v. Maher

795 F.2d 252 (2d Cir. 1986)...................................................................................................... 8

22

Hurley v. Toia

23

432 F. Supp. 1170 (S.D.N.Y.) aff’d 573 F.2d 1291 (2nd Dir. 1977)........................................ 4

24 Independent Living Center of Southern California v. Maxwell-Jolly

572 F.3d 644 (9th Cir. 2009) .......................................................................................... 3, 5, 15

25

Independent Living Center of Southern California v. Shewry

26

543 F.3d 1047 (9th Cir. 2008) ................................................................................................ 13

27 Kathleen S. v. Dep’t Pub. Welf. 10 F. Supp. 2d 460 (E.D. Pa. 1998) ........................................................................................ 10
28
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1 Lands Council v. McNair

537 F.3d 981 (9th Cir. 2008) ................................................................................................ 2, 3

2

Lopez v. Heckler

3

713 at 1437 (9th Cir.), rev’d in part on other ground, 463 U.S. 1328 (1983)...................... 4, 14

4 Mark H. v. Lemahiu

513 F.3d 922 (9th Cir. 2008) .................................................................................................. 10

5

McMillan v. McCrimon

6

807 F. Supp. 475 (C.D. Ill. 1992) ........................................................................................... 14

7 Memorial Hospital v. Maricopa County

415 U.S. 250 (1974)................................................................................................................ 14

8

Miller v. Carlson

9

768 F. Supp. 1331 (N.D. Cal. 1991) ......................................................................................... 4

10 Olmstead v. L.C. ex rel Zimring

527 U.S. 581 (1999)............................................................................................................ 8, 10

11

Quinault Indian Nation v. Kempthorne

12

2009 WL 734682, at *2 (W.D.Wash.2009) ............................................................................ 13

13 Rancher’s Cattlemen

415 F.3d 1092 ....................................................................................................................... 1, 3

14

Rodde v. Bonta

15

357 F.3d 988 (9th Cir. 2004) .................................................................................................. 14

16 Save Our Valley v. Sound Transit

335 F.3d 932 (9th Cir. 2003) .................................................................................................. 11

17

U.S. v. Midway Heights County Water District

18

695 F. Supp. 1072 (E.D. Cal. 1988).......................................................................................... 4

19 United States v. Odessa Union Warehouse Co-Op

833 F.2d 172 (9th Cir. 1987) .................................................................................................. 14

20

Winter v. Natural Resources Defense Council

21

129 S.Ct. 365 (2008)........................................................................................................ passim

22 Statutes

23 29 U.S.C.

§ 794........................................................................................................................................ 10

24

§ 794a(a)(2)............................................................................................................................. 10

42 U.S.C.

25

§ 1396a(a)(5)............................................................................................................................. 8

§ 1396(1)................................................................................................................................. 14

26

§ 12132.................................................................................................................................... 10

§ 12133.................................................................................................................................... 10

27

§ 431.220(b)............................................................................................................................ 12

28
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1 State

2 California Welfare and Institutions Code

§ 14526.1(d)(5) ................................................................................................................. 1, 3, 6

3

Rules

4

Federal Rules of Civil Procedure 65(d) ................................................................................................ 8

5

Regulations

6

28 C.F.R.

7

§ 35.104 (1991)......................................................................................................................... 5

§ 35.130(b)(3) ........................................................................................................................... 9

8

§ 41.32 (1981)........................................................................................................................... 5

§ 41.51(b)(3)(i) ......................................................................................................................... 9

9

§ 42.104(b)(2) ......................................................................................................................... 11

10 42 C.F.R.

§ 431.206................................................................................................................................. 13

11

45 C.F.R.

12

§ 84.4(b)(4) (2005).................................................................................................................... 9

13 California Code of Regulations Title 22 § 51014.1(c)............................................................................................................... 13
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1 I. INTRODUCTION

2

In the absence of a Preliminary Injunction, over 8000 elderly, frail, and disabled Californians

3 will lose the Medi-Cal services they need to remain at home. Defendants have already determined,

4 following an extensive process of assessment and review, and as a matter of state law, that each of

5 these individuals’ conditions require adult day health care services…on each day of attendance,

6 that are individualized and designed to maintain the ability of the participant to remain in the

7 community and avoid emergency department visits, hospitalizations, or other institutionalization.”

8 Cal. Welf. & Inst. Code § 14526.1(d)(5). These admissions by Defendants establish Defendants’

9 obligation under the Americans with Disabilities Act (ADA) and the Supreme Court’s Olmstead

10 decision, as well as irreparable harm. Defendants cannot now, after the fact, attempt to contradict

11 their own multi-disciplinary team assessments and authorizations with blithe assertions that

12 Plaintiffs’ and class members’ needs could easily be met in another fashion.

13

Defendants have also failed to provide timely or legally adequate notice of the pending cuts.

14 To date, no participants have received individual notices with the correct information about the date

15 of the cuts, nor have any of them received information about their hearing rights. Nor can

16 Defendants abdicate their responsibility for the fate of these 8000 plus individuals, or blame ADHC

17 programs, when Defendants have failed to provide the ADHC programs with adequate time,

18 information, resources, or authority to assist participants whose services are being cut.

19

Since Plaintiffs meet the standard for a preliminary injunction under Winter, Plaintiffs’

20 respectfully request that this Court issue an order that requires Defendants to ensure that Plaintiffs

21 have coverage for Medi-Cal replacement services, or, in cases where that is not possible, a cost-

22 effective community alternative to institutional care – ADHC services 4 or 5 days a week.

23 II. PLAINTIFFS MEET THE WINTER REQUIREMENTS

24

Plaintiffs have met each Winter standard as shown in their opening papers and

25 argued below. Winter v. Natural Resources Defense Council 129 S. Ct. 365 (2008).1.

26

27 1 Defendants assert that “even if the Plaintiffs can establish the threshold showing on the merits, i.e.,

28

a strong likelihood of success. . . . they will be entititled to a preliminary injunction motion only if the balance of hardships tips sharply in their favor.” They cite two cases decided before Winter:

1

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1 III. 2

PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF AN INJUNCTION

3

A. Plaintiffs and Class Members Face Irreparable Harm from the Loss of

Medicaid Benefits, as a Matter of Law

4

5

Plaintiffs cited controlling Ninth Circuit cases that establish that loss of Medicaid benefits

6 constitutes irreparable harm. Plaintiffs’ Opening Brief (Pl. Op. Brief) at 11. Defendants have

7 ignored these cases, making no attempt to distinguish them. The named Plaintiffs and all other

8 4-5 day recipients are Medi-Cal beneficiaries who face the loss of 1-2 days a week of necessary

9 medical services, and thus face irreparable harm without any further showing. Beltran v. Myers, 10 677 F.2d 1317, 1322 (9th Cir. 1982); Beno v. Shala, 30 F.3d 1057 (9th Cir. 1994); Edmonds v.

11 Levine, 417 F. Supp 2d 1323, 1342 (S.D. Fla. 2006).

12

Defendants argue that harm to Plaintiffs and Class Members is “speculative.” They cite

13 Winter for the proposition that “a preliminary injunction will not issue simply to prevent the

14 possibility of some remote future injury.” Winter supra, 129 S. Ct. at 375-376.

15

The injury to Plaintiffs and Class Members is hardly “remote.” The State’s cutbacks may

16 deny them needed medical care and other important services. Each of the Plaintiffs and Class

17 Members have been approved by the State of California to receive more than three days of ADHC

18 services based upon medical necessity. The very purpose of the ADHC program and its enabling

19 statute was to prevent and minimize institutionalization. See, Pl. Op. Brief at 3-5. The case of

20 Angotti v. Rexam, 2006 WL 1646135 (N.D. Cal.)(Wilken, J.) cited by Defendants, is instructive.

21 Judge Wilken recognized that “speculative injury does not constitute irreparable injury.” Id. at 13.

22 However, the Court specifically held that denial of needed medical care is an irreparable injury. The

23

24 Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. U.S. Department of

25 Agriculture 415 F.3d 1078; and Lands Council v. McNair 537 F.3d 981 (9th Cir. 2008) which require alternative tests for preliminary injunctive relief. This alternative test required Plaintiffs to

26 demonstrate either (1) a combination of probable success on the merits and the possibility of

irreparable harm, or that serious questions are raised and the balance of hardships tips sharply in 27 Plaintiffs’ favor. Ranchers Cattlemen, Id. 415 F.3d at 1092; Lands Council Id. 537 F.3d at 1003.

28

Defendants wrongfully combine the alternative tests into one stringent standard that misrepresents applicable law.

2

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1 Court, analyzing Beltran v. Myers 677 F.2d 1317, 1322 (9th Cir. 1982) held that, “The Plaintiffs have

2 shown a risk of irreparable injury since enforcement of the California rule may deny them needed

3 medical care. That is a sufficient showing.” Id. at 12. In Independent Living Center v. Maxwell4 Jolly, 572 F.3d 644 (9th Cir. 2009) the Ninth Circuit reaffirmed Beltran and held that, “Medi-Cal

5 Recipients may demonstrate a risk of irreparable injury by showing that enforcement of a proposed

6 rule may deny them needed medical care.” Id. at 658.

7

B. Defendants’ Determination of Eligibility Establishes Irreparable Harm

8

Furthermore, irreparable harm to Plaintiffs and all 4-5 day recipients is established by

9 Defendants’ previous determination, after extensive assessment and approval by the State, that “each

10 of these individuals requires adult day health care services…on each day of attendance, that are

11 individualized and designed to maintain the ability of the participant to remain in the community and

12 avoid emergency department visits, hospitalizations, or other institutionalization” (Cal. Welf. & Inst.

13 Code § 14526.1(d)(5)) and that "A high potential exists for the deterioration of the participant’s

14 medical, cognitive, or mental health condition or conditions in a manner likely to result in

15 emergency department visits, hospitalization, or other institutionalization if ADHC services are not

16 provided." Cal. Welf. & Inst. Code § 14526.1(d)(4). See Pl. Op. Brief; Declarations in support.

17 Thus, Plaintiffs and Class Members are, by definition, at risk of harm from the ADHC cuts.

18

C. Plaintiffs’ and Class Members’ Risk of Imminent, Irreparable Harm is

Supported by Ample Evidence

19

20

The likelihood of institutionalization is hardly speculative, and is supported by numerous

21 declarants, including Plaintiffs’ well-qualified expert, Dr. Gary Steinke. Dr. Steinke, who has been

22 the Chief of Geriatrics Medicine Section at the Santa Clara Valley Medical Center for 23 years and

23 who is a Clinical Professor in the Department of Medicine at Stanford University School of

24 Medicine states that “each of the named Plaintiffs is likely to be institutionalized if the cuts are

25 enacted. (Steinke Decl. ¶¶ 22, 23 and 24; Supplemental Declaration of Gary Steinke, ¶¶ 5, 7-9.) He

26 further states that the availability of ADHC is critical to enabling people at risk of institutionalization

27 to remain home or in the community as long as possible; that the reduction in allowable days of

28
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1 ADHC will increase utilization of emergency rooms and acute care hospitals; and that a reduction of

2 ADHC services can make a critical difference to Plaintiffs’ health. (Steinke Decl. ¶¶ 10, 15, 18.)

3

Plaintiffs submitted 15 declarations and accompanying exhibits, from two experts, Dr. Gary

4 Steinke and Lydia Missaelides, treating providers, family members, and affected participants. The

5 providers have spoken regarding over 350 known participants who will be harmed.

6

Defendants’ declarant, Rosemary Lamb, based her analysis that named Plaintiffs can be

7 adequately served by three days per week of ADHC services on an incomplete review of

8 Plaintiffs’ evidence, including an apparent failure to review the declarations of named Plaintiffs,

9 their family members, and their providers.

10

D. The Harm to Plaintiffs Outweighs any Budgetary Concerns of the Defendants

11

In contrast to the harm and suffering to the Plaintiffs and class members which will result

12 from these devastating cuts, Defendants’ only potential harm is budgetary concerns. The courts

13 have not given that concern great weight. In Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir.),

14 rev’d in part on other ground, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed. 2d 143 (1983), an injunction

15 was granted despite government expenditures of $20 million per month. The Court stated:

16

[T]he physical and emotional suffering shown by plaintiffs in the record before us

17

is far more compelling than the possibility of some administrative inconvenience or monetary loss to the government…Faced with such a conflict between the financial

18

concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.

19 Id. at 1437. Accord, Miller v. Carlson, 768 F. Supp. 1331, 1339-1340 (N.D. Cal. 1991)

20 (injunction required continued provision of child care despite fiscal cutbacks to program); Hurley

21 v. Toia, 432 F. Supp. 1170, 1776 (S.D.N.Y.) aff’d 573 f.2d 1291 (2nd Dir. 1977); U.S. v. Midway

22 Heights County Water District, 695 F. Supp. 1072, 1077 (E.D. Cal. 1988) (when “preventable

23 human suffering hangs in the balance,” preliminary injunction cannot be stayed despite

24 economic hardship to defendant), Beno v. Shalala, 30 F.3d 1057, 1069 (9th Cir. 1994) (rejecting

25 budget cutting as grounds for waiver of Federal AFDC requirements.)

26

Most recently, the Ninth Circuit balanced the hardships between loss of benefits to Medi-

27 Cal recipients and the State’s budgetary concerns in light of California’s current budgetary

28 situation. Independent Living Center of Southern California v. Maxwell-Jolly, 572 F.3d 644 (9th
4
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1 Cir. 2009). The court held that “we do not doubt the severity of the fiscal challenges facing the

2 State of California.” Id. 572 F.3d at 699. The court went on to emphasize that, “A budget crisis

3 does not excuse ongoing violation of federal law particularly where there are no adequate

4 remedies other than an injunction.” Id. 572 F.3d at 699.

5

Plaintiffs have shown irreparable injury by the denial of medical services as well as other

6 essential ADHC services. The harm to Plaintiffs clearly outweigh any budgetary harm that

7 Defendants may incur, and the budgetary concerns of the State of California does not excuse

8 compliance with due process, the ADA, the Medicaid Act and other provisions of federal law.

9

E. Plaintiffs Have Demonstrated that the Named Plaintiffs Face Imminent

Irreparable Harm and have Established that Class Members Face the Same

10

Harm.

11

In Angotti, supra, the Court held that injunctive relief can be sought on a class-wide basis

12 provided the named Plaintiffs face imminent irreparable harm and there is reason to believe the

13 putative class members face the same harm. Accord, Mandriguez v. World Savings, 2009 WL

14 160213, 3 (N.D. Cal. 2009). The Court in Angotti stated that a showing of irreparable harm can be

15 made without individualized showings by individual class members. The court stated that:

16
17
18 IV.
19
20

The plaintiffs in Beltran and Newton-Nations were, by definition, so poor they could not otherwise afford any medical care and therefore the finding that they faced irreparable harm could have been a reasonable inference even without any particularized showings by individual class members. Id. (citations omitted.)
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS
A. Plaintiffs Have Shown a Likelihood of Being Unnecessarily Institutionalized in Violation of the ADA and Section 504

21

1. Plaintiffs will be Forced into Institutions Due to Defendants’ Actions and Inaction

22

Nowhere in their opposition do Defendants dispute that Plaintiffs and class members are

23 eligible for Medicaid and are qualified persons with disabilities within the meaning of the ADA and

24 Section 504.2 Defendants’ position that Plaintiffs have failed to meet the other prongs of an ADA

25

26

27 2 ADA regulations define disabilities, with respect to an individual, to include “a physical or mental

28

impairment that substantially limits one or more of the major life activities of such individual… such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing,

5

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1 discrimination claim under Olmstead is both legally and factually insupportable.

2

Defendants assert, without authority, that Fisher v. Oklahoma Health Care Authority and

3 Crabtree v. Goetz stand for the proposition that the only way to show risk of institutionalization is to

4 show that the only place they can receive needed services is in an institution. Defendants’ 5 Opposition (Def. Opp.) at 6-9; Fisher, 335 F.3d 1175 (10th Cir. 2003); Crabtree, 2008 WL 5330506

6 (M.D. Tenn., December 19, 2008.) This is simply not correct. Fisher involved a situation in which

7 Defendants challenged Plaintiffs’ right to bring an Olmstead cause of action prior to being

8 institutionalized. The Court of Appeals found that because Defendants’ actions would force

9 Plaintiffs into an institution, Plaintiffs had a valid claim under the ADA’s integration mandate. “We

10 note, however, that given the Plaintiffs’ precarious health and finances, the five-prescription cap

11 places them at ‘high risk for premature entry into a nursing home.’” Fisher at 1184. Thus, the

12 appropriate inquiry is whether Plaintiffs are at high risk of being forced into institutions because of

13 Defendants’ actions or inaction. Here, as in Fisher and Crabtree, Defendants have reduced services

14 that they previously determined were necessary to avoid institutionalization, without making

15 reasonable accommodations necessary to avoid such an illegal and harmful result. Here, as in Fisher

16 and Crabtree, such actions violate the ADA and Section 504.

17

Defendants allege that Plaintiffs have failed to show that the reduction of ADHC services

18 will cause any of them to be institutionalized. Def. Opp. at 6. This is incorrect. First, as a

19 requirement of participation in the ADHC program, Plaintiffs all have been determined to have a

20 “high potential for the deterioration of their medical, cognitive, or mental health condition or

21 conditions in a manner likely to result in emergency department visits, hospitalization, or other

22 institutionalization if ADHC services are not provided.” (McCloud Decl. ¶¶ 17, 19, and 29; Exh. B;

23 Davis Decl. ¶¶ 18, 20 and 26, Exh. B, C.)

24

Additionally, under state law, as a requirement for receipt of ADHC services, Plaintiffs all

25 have been determined to need ADHC services on each day of attendance, as set forth in their

26 Individual Plans of Care in order to avoid hospitalization or institutionalization. Cal. Welf. & Inst.

27

28 learning, and working.” 28 C.F.R. § 35.104 (1991). The Section 504 requirements are essentially
6 Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

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1 Code 14526.1(d)(5). (McCloud Decl. Exh. B; Davis Decl. Exh. B, C.) Moreover, Plaintiffs’ treating

2 providers and Plaintiffs’ medical expert have specifically opined that community-based ADHC is the

3 appropriate option, and institutionalizing them in nursing homes will be dangerous to their health

4 and lives. (Steinke Decl. ¶¶ 21-24; Supp. Steinke Decl. ¶¶ 7, 9; McCloud Decl. ¶¶ 20-26; Davis

5 Decl. ¶¶ 24-25, 27-32.)

6

Rather than taking into account the abundance of evidence provided to support Plaintiffs’

7 position, Defendants offer the declaration of Rosemary Lamb, a nurse who appears to have no field

8 experience, has no personal knowledge of Plaintiffs, and who from all evidence did not review

9 declarations submitted regarding Plaintiffs, including declarations from the family members who

10 care for them, and know them best.

11

Ms. Lamb proposes that Ms. Brantley and Ms. Woodard can receive additional IHSS, when,

12 as stated in their caretakers’ declarations, they currently receive the maximum hours available under

13 the program, 283. (McLorin Decl. ¶ 10; Gaspard-Berry Decl. ¶ 5; Lamb Decl. ¶¶ 9, 18.) Ms. Lamb

14 proposes that Ms. Brantley can be cared for by family members, when her niece works full-time and

15 will not be able to quit her job to care for her. (McLorin Decl. ¶ 17; Lamb Decl. ¶ 8.) Ms. Lamb

16 proposes that Gilda Garcia is not in need of five days per week of ADHC because her needs can be

17 met by three days per week, despite the declarations of her longtime treating providers to the

18 contrary. (McCloud Decl. ¶¶ 25, 26; Perelman Decl. ¶ 14.)

19

Defendants point to funds shifted to the Department of Developmental Services (DDS) as

20 support for its claim that Plaintiffs are not likely to prevail on their ADA claim. Def. Opp. 8:22-9:3.

21 Rather, the DDS fund shift demonstrates that for an arbitrary subset of the affected participants --

22 people with developmental disabilities -- Defendants have acknowledged a continuing need for

23 ADHC or replacement services, without any showing that people with developmental disabilities

24 have greater needs than other Plaintiffs and Class Members. Moreover, the funds are intended "to

25 enable regional centers to provide services set forth in individuals'Individual Program Plans that

26 would be impacted by the ADHC benefit reduction." Def. Opp. 8:26-27. This is precisely the effort

27

28 the same. 28 C.F.R. § 41.32 (1981).
7
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1 needed by all affected ADHC participants, not just people with developmental disabilities. This fact

2 does not defeat Plaintiffs'ADA claim. Rather, it supports Plaintiffs'position that all affected

3 participants, including those with developmental disabilities, will face harm from a precipitous cut in

4 services, unless and until Defendants take necessary steps to ensure replacement services.

5 Furthermore, Defendants make no showing that even the participants with developmental disabilities

6 have actually received necessary services prior to the ADHC cuts that would prevent their

7 unnecessary institutionalization.

8

2. Defendants Have Failed to Make Reasonable Accommodations for

Plaintiffs to Avoid Unnecessary Institutionalization

9

Defendants do not address at all Plaintiffs’ right to reasonable accommodation under the 10

11 ADA as interpreted by the Olmstead decision. Olmstead v. L.C. ex rel Zimring, 527 U.S. 581

(1999). Under Olmstead, the integration mandate requires that Plaintiffs receive Medi-Cal services 12

in the community when this desire can be reasonably accommodated, taking into account the 13

resources available to the state and the needs of others with disabilities. Olmstead at 527; see also, 14

Fisher at 1182. Indeed, Defendants contend that “Plaintiffs can receive all the services they need in 15

the community from various sources,” (Def. Opp. at 7), but nowhere do they state how and when the 16

services will be put into place. Defendants can accommodate Plaintiffs’ needs because the necessary 17

services are available not only through the ADHC program, but also are covered separately by Medi18

Cal programs that have not been cut. Defendants’attempt to place the burden on Plaintiffs and 19

ADHC programs to secure these other Medi-Cal services, rather than acknowledge their 20

responsibility to take steps to ensure provision of the services that the State has determined are 21

needed by Plaintiffs and class members, violates the ADA. 22

As the single state Medicaid agency, Defendants are responsible for the implementation of 23

the entire Medi-Cal program in California. The "reason for the requirement that a state designate a 24

'single State agency'to administer its Medicaid program ... was to avoid a lack of accountability for 25

the appropriate operation of the program." Hillburn v. Maher, 795 F.2d 252, 261 (2d Cir.1986); 42 26

U.S.C. §1396a(a)(5). Consequently, the ADHC programs and other community agencies are merely 27

28
8 Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

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1 agents acting in privity with Defendant in providing Medi-Cal funded services. Emily Q. v Bonta,

2 208 F.Supp.2d 1078, 1093 (C.D. Cal. 2001).

3

Even assuming arguendo that Defendants are correct that the remedy Plaintiffs’ seek lies in

4 the hands of these local programs, then an injunction against the state defendant, as the principal and

5 single state Medicaid agency, is the way to secure that remedy. Under Fed. R. Civ. P. 65(d), an

6 injunction binds “the parties to the action” and also “their officers, agents, servants, employees and

7 attorneys” plus “those persons in active concert or participation with them who receive actual notice

8 of the order.” This rule “’is derived from the common law doctrine that a decree of injunction not

9 only binds the parties but also those identified with them in interest, in privity with them, represented 10 by them or subject to their control’.” Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1280 (9th Cir.

11 1992) (quoting Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14, 65 S.Ct. 478, 481, 89 L.Ed. 661 (1945).

12

Plaintiffs have never alleged that ADHC programs do not have responsibility to coordinate

13 with other services. However, ADHC programs have no legal ability to ensure provision of services

14 beyond the ADHC services they in fact provide. (Missaelides Supplemental Decl. ¶ 5.) ADHC

15 programs must refer participants to other services and work with other agencies to coordinate

16 services. Id. ADHC programs have no control over eligibility and access to other Medi-Cal

17 services—that control lies with Defendants. Id. Defendants have, however, made it impossible for

18 ADHCs and other community agencies to assist affected ADHC participants by their failure to

19 adequately plan, allow sufficient time, or provide clear direction. (Missaelides Decl. ¶11-14.)

20

B. Plaintiffs Have a Private Right of Action to Enforce the “Methods of

Administration” Regulations Implementing Title II of the ADA and § 504. 21

22

Plaintiffs have alleged that Defendant is violating Title II and Section 504 by employing

23 methods of administration that have the effect of subjecting them to discrimination on the basis of

24 their disabilities. See 28 C.F.R. §§ 35.130(b)(3), 41.51 (b)(3)(i); 45 C.F.R. § 84.4(b)(4) (2005).

25 Defendants contend that Plaintiffs cannot enforce this prohibition because an agency regulation

26 cannot create enforceable rights. Contrary to Defendant’s implications, however, the ADA and

27 Section 504 prohibit such discrimination and Plaintiffs have the right to enforce that prohibition.

28
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1

Congress has expressly provided that Title II of the ADA is enforceable through a private

2 right of action. 42 U.S.C. § 12133, 29 U.S.C. § 794a(a)(2); see also, Barnes v. Gorman, 536 U.S.

3 181, 185 (2002) Moreover, courts have recognized Section 504 and Title II themselves prohibit

4 discrimination that has the effect of denying individuals with disabilities meaningful access to public 5 programs.3 See Alexander v. Choate, 469 U.S. 285, 295 (1985) (holding that “[d]iscrimination

6 against the handicapped was perceived by Congress to be most often the product not of invidious

7 animus, but rather of thoughtlessness and indifference – of benign neglect” and noting that all of the

8 Courts of Appeals have held that section 504 prohibits at least some disparate impact

9 discrimination), Frederick L. v. Dep’t of Public Welf., 157 F. Supp. 2d 509, 539 (E.D. Pa. 2001)

10 (holding that Section 504 and the ADA prohibit disparate impact discrimination). Indeed, the Ninth

11 Circuit has recognized that Section 504 prohibits disparate impact discrimination that results from

12 the manner in which a public program is designed. Mark H. v. Lemahiu, 513 F.3d 922, 936 (9th Cir.

13 2008). Here, the essence of Plaintiffs’ methods of administration claim is that Defendants have 14 designed the cuts to the Medi-Cal program in a manner that subjects them to discrimination. 4

15 (Missaelides Decl. ¶¶ 6, 8, 11, 12-14.) Accordingly, the methods of administration regulations

16 construe rights embodied in Title II and Section 504 and are enforceable. Compare Olmstead v.

17 L.C., 527 U.S. 581 (1999) (holding Title II regulation requiring that individuals receive services in

18 the most integrated setting appropriate simply embodied a requirement implicit in the ADA itself

19 and therefore was enforceable through the ADA’s private right of action).

20

21 3 Notably, Title II of the ADA provides that “no qualified individual with a disability shall, by

22 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

23 U.S.C. § 12132 (emphasis added). Similarly, Section 504 of the Rehabilitation Act provides that

“[n]o otherwise qualified individual with a disability * * * shall, solely by reason of her or his 24 disability, be excluded from the participation in, be denied the benefits of, or be subjected to

25

discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794 (emphasis added).

26 4 See, e.g., Kathleen S. v. Dep’t Pub. Welf., 10 F. Supp. 2d 460, 471 (E.D. Pa. 1998) (holding that

defendant utilized methods of administration that resulted in discrimination against class members

27 by failing to initiate plans sufficiently in advance to ensure necessary community placements within

a reasonable time. 28

10 Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

Case4:09-cv-03798-SBA Document46 Filed09/03/09 Page17 of 21

1

Defendant cites Alexander v. Sandoval as support for their argument. Sandoval concerned a

2 regulation implementing Title VI of the Civil Rights Act and forbidding methods of administration

3 that had the effect of subjecting individuals to race, color, or national origin discrimination. 532

4 U.S. at 285, considering 28 C.F.R. § 42.104(b)(2). The Court held that, unlike the ADA and Section

5 504, Title VI prohibited only intentional discrimination. Accordingly, because the regulation

6 prohibited conduct that was not prohibited by the statute, the Court held that it could not be enforced

7 through a private right of action. Id.

8

Sandoval, therefore, does not help Defendants.5 Indeed, the Sandoval Court held that when

9 valid and reasonable regulations “authoritatively construe [a] statute itself, [ ] it is [ ] meaningless to

10 talk about a separate cause of action to enforce the regulations from the statute. A Congress that

11 intends the statute to be enforced through a private cause of action intends the authoritative

12 interpretation of the statute to be so enforced as well.” Id.at 284. As explained above, Title II and

13 the Section 504 prohibit the discriminatory design of methods of administration that Plaintiffs attack

14 in this action. Accordingly, Defendant’s argument should be rejected.

15

C. Plaintiffs Have Shown a Likelihood of Success on Their Due Process Claims

16

Plaintiffs have demonstrated a very strong likelihood of success on their Medicaid and

17 constitutional due process claims, and Defendants'eleventh hour attempts to issue notice have not

18 remedied these defects. Defendants do not dispute that Plaintiffs'interests are protected by the

19 Medicaid statute and regulations and Due Process Clause. Def. Opp. at 11-12.

20

Defendants also do not deny that they were required to send Plaintiffs and other prospective

21 class members individual notice at least ten days prior to reduction of their benefits, nor do they

22 dispute that individual notice was not provided prior to the filing of this lawsuit. Defendants report

23 that notices were mailed to individual ADHC recipients on August 24 and 25, up to a week after

24 Plaintiffs filed suit. Id. (Bailey Decl., ¶ 11, Exh. C.) Such notice was not timely or adequate

25 because it gave the wrong date of the cuts and failed to provide 10 days’ notice. Defendants then

26 prepared a second beneficiary notice, but, again, failed to meet the 10-day mailing requirement.

27

28
11 Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

Case4:09-cv-03798-SBA Document46 Filed09/03/09 Page18 of 21

1 (See, Bailey Decl. ¶¶ 14, 15, indicating that notices were revised on August 28 and submitted for

2 distribution with the September mailing.) As of August 31, when Ms. Bailey signed her declaration,

3 the notices had apparently not yet been mailed, and to date, upon information and belief, no clients

4 have received a second notice with an effective date of September 7, 2009. In any case, a mailing on

5 August 31 would not satisfy the 10-day notice requirement for an effective date of September 7.

6

Defendants now assert that that Plaintiffs are not entitled to a pre-termination hearing, and

7 that the August 24-25 mass mailing discharges Defendants'obligations under the Medicaid Act and

8 the Due Process Clause. Their argument rests on § 431.220(b) of the regulations implementing the

9 Medicaid Act, which provides that the state agency need not grant a request for a hearing “if the sole

10 issue is a Federal or State law requiring an automatic change adversely affecting some or all

11 recipients” (emphasis added). Defendants baldly assert that, in this case, there “is no issue of fact or

12 judgment to be made as to any individual recipient.” (Defs.'Opp. at 12.) Yet the rest of their brief

13 contradicts this assertion. Indeed, Defendants agree that Plaintiffs might be entitled to alternative

14 Medi-Cal covered services that would allow them to remain at home and in the community after the

15 ADHC cuts. Id. at 8 (citing Lamb Decl. and Zirker Decl. Para 2, Ex. A). As Plaintiffs have shown

16 in their response to Rosemary Lamb's declaration, there are absolutely issues of “fact and judgment” 17 at stake for individuals.6

18

Plaintiffs argued in their opening brief, and Defendants did not deny, that prospective class

19 members have approved TARs determining their medical need for four or five days of services,

20 including services such as skilled nursing, therapies, and personal care covered by other Medi-Cal

21

22 5 Similarly, Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003), also concerns Title VI

23 and similar regulations, accordingly, it is not applicable to this case. 6 Defendants also cite a section of the state Medicaid manual which explains that the state agency's
24 determination whether a hearing request involves “issues of law or policy, or issues of fact or

25

judgment” will “affect whether a hearing is granted and whether Medicaid will be continued pending the hearing decision.” Defs.'Req. for Jud. Not. Ex. C, § 2902.4. This provision is inapposite, as it

26 applies to the state's decisions to grant a request for a hearing and aid paid pending, and not the state's obligation to provide notice of hearing. Moreover, as Plaintiffs have explained, reduction in

27 ADHC services for individuals who otherwise remain eligible for Medi-Cal does involve issues of

fact or judgment, and thus a hearing is required. 28

12 Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

Case4:09-cv-03798-SBA Document46 Filed09/03/09 Page19 of 21

1 programs. The three day cap on the ADHC benefit also summarily reduces access to these

2 underlying services, and their replacement could be addressed, if needed, at a hearing.

3

Plaintiffs and other prospective class members would not know to request such a hearing,

4 however, because the individual notices mailed August 24-25 are inadequate. The generic, three

5 paragraph notice merely states that ADHC benefits will be reduced to a maximum of three days due

6 to the budget. (Bailey Decl., Ex. B, C, E, F.) The notices do not provide recipients with any means

7 to identify or challenge this reduction in underlying services. Adequate notice pursuant to Medicaid

8 requirements requires notice of the right to a hearing and the method by which a hearing may be

9 obtained. 42 C.F.R. § 431.206; see also Cal. Code of Regs. tit. 22 § 51014.1(c) (requiring notice to

10 include, inter alia, statement of intended action, reason for intended action, and procedure for

11 requesting hearing). The notice mailed to beneficiaries does not even mention the word hearing,

12 much less the services approved in the recipient's TAR or availability of those services through other

13 Medi-Cal programs. The notice fails to meet basic due process requirements.

14

Defendants'desperate attempt to foist their due process obligations under the Medicaid Act

15 onto the ADHC providers fails. Defendants discuss at length their notices to ADHC providers. See,

16 e.g., Def. Opp. Brief; Bailey Decl. Such notices are not relevant. While ADHC providers have

17 some obligations to assist program participants with case management, those obligations in no way

18 supplant Defendants'own obligations under Medicaid law and regulations and the Due Process

19 Clause. Defendants cannot rely on notice to providers to counter Plaintiffs'due process claims.

20 V. THE BALANCE OF HARDSHIPS FAVORS PLAINTIFFS

21

Defendants fail to address balance of hardships. The balance of hardships tips decidedly in

22 favor of Plaintiffs’ behalf as well. Habeas Corpus Res. Ctr. v. United States Dep't of Justice, 2009

23 WL 185423, at *5 (N.D.Cal.2009) (after Winter, “[w]hen the balance of harm ‘tips decidedly toward

24 the plaintiff,’ injunctive relief may be granted if the plaintiff raises questions ‘serious enough to

25 require litigation.’ ”); see also, Quinault Indian Nation v. Kempthorne, 2009 WL 734682, at *2

26 (W.D.Wash.2009).

27

Decisions of the Ninth Circuit clearly hold that hardships likely to be suffered by Medi-Cal

28 beneficiaries who are forced to go without medical care outweigh any harm to the State in light of its
13 Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

Case4:09-cv-03798-SBA Document46 Filed09/03/09 Page20 of 21

1 budget problems. In Independent Living Center of Southern California v. Shewry, 543 F.3d 1047

2 (9th Cir. 2008), the Court held, “. . . when balancing the medical or financial hardship to (Medi-Cal

3 recipients) against the financial hardship to the State that the balance of hardships ‘tipped sharply’ in

4 favor of the Plaintiffs.” Id., 543 F.3d at 1049 (emphasis added).

5

The Ninth Circuit reached the same result in Beltran v. Myers, 677 F.2d 1317, 1322 (9th

6 Cir. 1982). In Beltran, the Plaintiffs were a class of aged, blind, and disabled individuals who

7 were denied Medi-Cal benefits by application of a transfer of assets rule in California. The Court

8 held that by showing loss of the Medi-Cal benefits to the class, the Plaintiffs had demonstrated

9 irreparable injury. The Court further held that when balancing medical hardships to the

10 Plaintiffs’ and financial hardship to the State that “the balance of hardships tipped sharply in

11 favor of the Plaintiffs.” Id., 677 F.2d at 1322 (emphasis added); see also, Rodde v. Bonta, 357 12 F.3d 988, 999 (9th Cir. 2004).

13

Generally, in Medicaid cases, “[t]he nature of their claim – a claim against the state for

14 medical services, makes it impossible to say that any remedy at law could compensate them.”

15 McMillan v. McCrimon, 807 F.Supp. 475, 479 (C.D. Ill. 1992); Caldwell v. Blum, 621 F.2d 491, 16 498 (2nd Cir. 1980), cert. denied,452 U.S. 909 (1981) (Medicaid applicants established

17 irreparable harm were they would, “absent relief, be exposed to the hardship of being denied

18 essential medical benefits”). Because Medicaid beneficiaries by definition “have income and

19 resources…insufficient to meet the costs of necessary medical services” (42 U.S.C. § 1396(1)),

20 they have no recourse when the state denies essential care.

21 VI. 22

THE PUBLIC INTEREST STRONGLY FAVORS THE GRANT OF AN INJUNCTION

23

“The public interest is a factor to be strongly considered” in granting a preliminary

24 injunction to assure that Medicaid recipients receive essential medical services. Lopez v. 25 Heckler, supra, 713 at 1437 (9th Cir.), rev’d in part on other ground, 463 U.S. 1328, 104 S.Ct. 10,

26 77 L.Ed. 2d 143 (1983). The Supreme Court has already characterized medical care as a “basic

27 necessity of life.” Memorial Hospital v. Maricopa County, 415 U.S. 250, 259, 261, 94 S.Ct.

28
14 Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

Case4:09-cv-03798-SBA Document46 Filed09/03/09 Page21 of 21

1 1076, 39 L.Ed.2d 306 (1974) (“The denial of medical care is all the more cruel in this context,

2 falling as it does on indigent who are often without the means to obtain alternative treatment”).

3

Here it is in the public interest to enforce federal law to effect Congress’ purpose in

4 enacting Medicaid protections and is not in the public interest to flout the law. United States v. 5 Odessa Union Warehouse Co-Op, 833 F.2d 172, 176 (9th Cir. 1987). The Ninth Circuit recently

6 balanced the equities and the public interest in a case involving cuts to rates to Medi-Cal

7 providers. In Independent Living Center v. Maxwell-Jolly, supra, the court held that although

8 there is a public interest in ensuring the State has enough money to meet its financial obligations,

9 this interest was outweighed by the public interest in ensuring access to health care. The Court

10 stated, “We do not doubt the severity of fiscal challenge facing the State of California. State

11 budgetary concerns cannot however be the conclusive factor in decisions regarding Medicaid.”

12 Id., 572 F.3d at 699. The court further held that state budgetary concerns were not a critical

13 public interest. The court said, “State budgetary concerns do not therefore, in social welfare

14 cases, constitute a critical public interest that would be injured by the grant of preliminary

15 relief.” Id. at 659 (emphasis added). The court contrasted Plaintiffs rights to health services

16 with the state’s budgetary concerns, “In contrast, there is a robust public interest in safeguarding

17 access to health care for those eligible for Medicaid.” Id at 659 (emphasis added). The public

18 interest favors Plaintiffs in balancing equities and the public interest.

19 VII. CONCLUSION

20

Plaintiffs respectfully request entry of a Preliminary Injunction.

21 DATED: September 3, 2009

Respectfully submitted,

22

DISABILITY RIGHTS CALIFORNIA

23

By:

/s/

24

Elizabeth Zirker

Attorneys for Plaintiffs

25

26

27

28
15 Brantley, et al. v. Maxwell-Jolly, C09-03798: Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

 
 Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page1 of 37

Elizabeth Zirker, State Bar No. 233487
elizabeth .lirkcr(ildis'lbi Iitvri ghtsca.on;
2 Jay B. Koslofsky State Bar No. 97024
iav.kos10fsk y(ddisabi Iityri ghtsea.org
3 Kim Swain State Bar No. 100340
ki Ill.swai n(!lldi sabi lityri ghtsca.org 4 Elissa Gershon State Bar No. 169741
cl issa. gershon(il\lisabi lityri ghtsca.org 5 Daniel Brzovic, State Bar No. 89493
Dan.brzovic(a)disabilityrightsca.org 6 DISABILITY RIGHTS CALIFORNIA
1330 Broadway, Suite 500 7 Oakland, CA 94612
Telephone: (510) 267-1200 8 Facsimile: (510) 267-1201

9 Attorneys for Plaintiffs

10 [Complete list of counsel on following pages]

II

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA 12

13 LILLIE BRANTLEY, by her guardian ad

CO 9- 03 ) Case No.:

'79

litem Chauncey McLorin, GILDA GARCIA )

14 ALLIE .10 WOODARD, by her guardian ad ) COMPLAINT FOR INJUNCTIVE AND

litem Linda Gaspard-Berry, , individually and ) DECLARATORY RELIEF

15 on behalf of all others similarly situated

)

)

16

)

Plaintiffs, 17

) CLASS ACTION )

)

18

)

DAVID MAXWELL-JOLLY, Directo[ofthe

19 Department of Health Care Services, State of

California, DEPARTMENT OF HEALTH 20 CARE SERVICES,

21

Defendant.

22

23

24

25

26

27

28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page2 of 37
Anna Rich, State Bar No. 230]95 arichGDnsclc.org Kevin Prindiville, State Bar No. 235835 2 kprindi vi Ile(ii·nsc Ie .or>! NATIONAL SENIOR CITIZENS LAW CENTER 3 1330 Broadway, Suite 525 Oakland, CA 94612 4 Telephone: (510) 663- I055 FAX: (510) 663-1051
5
Barbara Jones, State Bar No. 88448 6 bi ones(i'·.aarp.org
AARP FOUNDATJON LITIGATION 7 200 So. Los Robles, Stc 400
Pasadena, CA 9110 I 8 Telephone: (626) 585-2628
Facsimile: (626) 583-8538 9
Kenneth W. Zeller, Pro Hac Vice Pending
10 kze Iler(iDaarp.org AARP FOUNDATION LITIGAnON
I 1 601 E Street NW Washington D.C. 20049
12 Telephone: (202) 434-2060 Facsimile: (202) 434-6424
13
14
15
16
17
18
19
20
21
22
23
24
2S
26
27
28
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page3 of 37

1

TABLE OF CONTENTS

2 I.

INTRODUCTION................................................................................................................... 1

3 II. JURISDICTION ..................................................................................................................... 2

4 III. VENUE..................................................................................................................................... 2

5 IV. INTRADISTRICT ASSIGNMENT ...................................................................................... 2

6 V. PARTIES ................................................................................................................................. 3

7

Plaintiffs .................................................................................................................................... 3

8 9
10 11 12
VI. 13
14 15
16

Lillie Brantley ............................................................................................................... 3 Gilda Garcia .................................................................................................................. 3 Allie J0 Woodard .......................................................................................................... 4 Defendants ................................................................................................................................ 4 STATUTORY AND REGULATORY FRAMEWORK ..................................................... 5 Anti-Discrimination Laws ........................................................................................................ 5 Medicaid and Medi-Cal Programs ............................................................................................ 6 2009 Legislation Affecting ADHC - ABX4 5 (Chapter 5. Statutes of 2009) ........................ 10

17 VII. FACTUAL ALLEGATIONS ............................................................................................... 11

18

Background of the ADHC Program........................................................................................ 11

19

Cuts in Days of Service........................................................................................................... 13

20

New ADHC Restrictions ......................................................................................................... 13

21

Facts Related to Plaintiff Lillie Brantley ................................................................................ 15

22

Facts Related to Plaintiff Allie 10 Woodard ........................................................................... 1

23

Facts Related to Plaintiff Gilda Garcia ................................................................................... 18

24

Failure to Provide Adequate Notice and Hearing................................................................... 19

25

Facts Related to Medi-Cal ADHC Participants Generally ..................................................... 21

26 VIII. CLASS DEFINITION AND ALLEGATIONS.................................................................. 22 27 IX. LEGAL CLAIMS.................................................................................................................. 25 28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page4 of 37

X. 2 3 4 5 6 7 8 9 10
11
12
13
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

REQUEST FOR RELIEF .................................................................................................... 30

11
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARA TORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page5 of 37

I. INTRODUCTION

2

1. Plaintiffs, who are elderly persons and adults with disabilities, bring this class action

3 suit against the California Department of Health Care Services and its Director (Defendants) to stop

4 devastating cuts to Adult Day Health Care (ADHC) services which, if implemented, will place

5 Plaintiffs and Class Members at imminent risk of institutionalization, hospitalization, injury or death.

6 ADHC is a Medi-Cal funded community-based program for low income seniors and younger

7 disabled adults, the purpose of which is to provide "a viable alternative to institutionalization for

8 those elderly persons and adults with disabilities who are capable of living at home with the aid of

9 appropriate health care or rehabilitative services." Cal. Health & Safety Code §1570.2(b) (West

10 2003). Adult Day Health Care (ADHC) services are generally provided at centers located in

11 communities throughout California. Individuals who live at home or in licensed residential care

12 facilities participate in ADHC from one to five days per week, depending on their assessed needs.

13 Services include professional nursing services, personal care services, social and therapeutic

14 services. case management, medication management, meals. physical therapy, occupational therapy,

15 speech therapy and transportation to and from the ADHC center.

16

2. ABX45 (Chapter 5, Statutes of2009). one of a number of bills passed in response to

17 California's budget crisis - is scheduled to go into effect on August 27. 2009. It cuts the ADHC

18 benefit based solely on economic considerations, from a maximum of five to three days per week for

19 all Medi-Cal beneficiaries. with no exceptions, and regardless of existing treatment authorizations

20 and the health condition of the individual. In addition to the reduction in days of service, new

21 restrictions limiting receipt of ADHC services will go into effect if and when the Director of the

22 California Department of Health Care Services (DHCS) provides a written declaration that the new

23 restrictions are ready to be implemented. This declaration will return the number of days allowable

24 under the program to five per week, but the new restrictions will also be triggered, resulting in

25 permanent termination of all services for many current beneficiaries who have been assessed to need

26 those services and who currently receive them.

27

3. Without needed community-based ADHC services, or in the alternative, provision of

28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page6 of 37

replacement services otherwise available to Plaintiffs and Class Members under California's Medi-

2 Cal program, without interruption, Plaintiffs will experience immediate and irreparable harm.

3 Plaintiffs and other Class Members are at risk of deterioration in health and functioning, and will be

4 forced into hospitals and nursing facilities due to Defendants' actions and inactions in violation of

5 the Americans with Disabilities Act of 1990 (ADA ), (42 U.S.c. §§ 12101-12213 (West 2008)),

6 Section 504 of the Rehabilitation Act of 1973 (Section 504), (29 U.S.C. §§ 794-794a (West 2007»,

7 Title XIX of the Social Security Act (Medicaid Act), (42 U.S.C .. § 1396a (West 2009», and

8 California Government Code section 11135 (Cal. Gov't Code § 11135 (West 2007».

9

II. JURISDICTION

10

4. This is an action for declaratory and injunctive relieffor violation ofthe Due Process

11 Clanse of the Fom1eenth Amendment to the U.S. Constitution; Title XIX of the Social Security Act,

12 (the Medicaid Act), (42 U.S.C. § 1396a et seq.) under 42 U.S.C. § 1983; Title II of the Americans

13 With Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132; and Section 504 ofthe Rehabilitation Act

14 of 1973 (Section 504), (29 U.S.C. § 794).

15

5. Jurisdiction is based 28 U.S.C. §§ 1331 and 1342 for a violation of 42 U.S.C. § 1983;

16 Title II of the ADA, and Section 504. Plaintiffs' claims for declaratory and injunctive relief are

17 authorized under 28 U.S.C. §§ 2201 - 2202. At all times relevant to this action, Defendants have

18 acted under color of state law.

19

6. The Court has Supplemental Jurisdiction over Plaintiffs' state claim pursuant to

20 28 U.S.C. § 1367 and California Government Code Section 11139.

21

III. VENUE

22

7. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

23 § 1391 (b), because the Defendants operate and perform their official duties therein and thns reside

24 therein for purposes of venue, and because a substantial part of the events and omissions giving rise

25 to the claims herein occur in counties that are pm1 of the Northern District of California.

26

IV. INTRADISTRICT ASSIGNMENT

27

8. Pursuant to Civil Local Rule 3-2(c) this action should be assigned to the San

28

2 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page7 of 37

1 Francisco or Oakland Division of the Northern District of California, because a substantial part of

2 the events and omissions giving rise to the claims herein occur in counties in the Northern District 0

3 California and Plaintiffs are residents of the City and County of San Francisco.

4

V. PARTIES

5 Plaintiffs

6

Lillie Brantley

7

9. Named Plaintiff Lillie Brantley is an 84-year-old woman who has severe Alzheimer's

8 disease, hyperlipidemia, a seizure disorder, atrial fibrillation, has had a stroke, and is very frail. She

9 receives Medi-Cal, and currently attends ADHC five days a week.

10

10. Ms. Brantley needs supervision with feeding and transferring; assistance with

11 ambulation, bathing, dressing, and toileting; and is totally dependent on others for housework,

12 hygiene, laundry, shopping, transportation, medication management, money management, accessing

13 resources, and meal preparation.

14

11. Because of her cognitive impairments, Ms. Brantley can never be left alone. She is at

15 high risk for falls. She requires regular nursing services five times per week to monitor her medical

16 conditions.

17

12. Ms. Brantley is proceeding in this litigation through her Guardian Ad Litem

18 Chauncey McLorin, as Ms. Brantley is not able to proceed on her own behalf. Ms. McLorin, who is

19 Ms. Brantley's niece, has agreed to act as her Guardian Ad Litem, and is qualified to do so. She will

20 competently proceed on Ms. Brantley's behalf. An application to appoint Ms. McLorin to act as a

21 Guardian Ad Litem in this action has been filed with this court.

22

13. Ms. Brantley and her family wish for her to remain in her family home with her

23 current level of ADHC services, and she is at imminent risk of institutionalization in a nursing

24 facility if these services are cut.

25

Gilda Garcia

26

14. Named Plaintiff Gilda Garcia is a 77-year-old woman with unstable diabetes,

27 hypertension, Bells' Palsy, and kidney problems. She is Medi-Cal eligible and currently receives

28

3 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page8 of 37

1 five days a week of ADHC.

2

IS. Ms. Garcia needs supervision with ambulation, dressing, toileting, and transferring.

3 She needs assistance with bathing, accessing resources, hygiene, meal preparation, shopping, and

4 transportation. She is dependent on others for housework and laundry. She uses a cane for

5 ambulation.

6

16. In order to remain in her own home in the community, Ms. Garcia requires the

7 frequent daily medical monitoring she receives with her current level of ADHC services, and she is

8 at imminent risk of hospitalization due to her unstable diabetes ifher services are cut.

9

Allie Jo Woodard

10

17. Plaintiff Allie Jo Woodard is a 79-year-old woman who is diagnosed with bipolar

II affective disorder, depression, diabetes, glaucoma, hypertension, and osteomihritis. Ms. Woodard

12 receives Medi-Cal and is currently attending ADHC five days per week.

13

18. Ms. Woodard needs supervision with an1bulation, toileting, and transferring,

14 assistance with bathing and dressing, m1d is totally dependent on others for housework, hygiene,

IS laundry, shopping, transportation, medication management, money management, accessing

16 resources, and meal preparation.

17

19. Ms. Woodard is proceeding in this litigation by her Guardian Ad Litem Linda

18 Gaspard-Berry as she is not able to proceed on her own behalf. Ms. Gaspard-Berry, who is Ms.

19 Woodard's daughter, has agreed to act as her Guardian Ad Litem, and is qualified to do so. She will

20 competently proceed on Ms. Woodard's behalf. An application to appoint Ms. Gaspard Berry to act

21 as a Guardian Ad Litem in this action has been filed with this court.

22

20. Ms. Woodard and her family want her to remain in her own home with her current

23 level of ADHC services, and she is at imminent risk of institutionalization if these services are cut.

24 Defendants

25

21. Defendant California Depmiment of Health Care Services (DHCS) is a state agency

26 which receives federal funds and is responsible for administering the federal Medicaid program,

27 entitled, "Medi-Cal" in California. Defendant DHCS is sued only under the Second Claim for Relie

28

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(Section 504 of the Rehabilitation Act) and the Sixth Claim for Relief (Cal. Gov't Code § 11135).

2

22. Defendant David Maxwell-Jolly is the Director of the California Department of Health

3 Care Services, a state agency which receives federal funds. Defendant Maxwell-Jolly is a public

4 agency director responsible for operation of a public entity, pursuant to 42 U.S.C. §§ 12131(1 )(A) &

5 (B). Defendant Maxwell-Jolly is sued in his official capacity.

6

VI. STATUTORY AND REGULATORY FRAMEWORK

7 Anti-Discrimination Laws

8

23. In enacting the Americans With Disabilities Act, Congress found that "[individuals

9 with disabilities continually encounter various forms of discrimination, including... segregation... "

10 42 U.S.C. § 12101(a)(5). Title II of the Americans with Disabilities Act provides that "no qualified

II individual with a disability shall, by reason of disability, be excluded from participation in or be

12 denied the benefits of services, programs, or activities of a public entity or be subjected to

13 discrimination by such entity." 42 U.S.C. § 12132.

14

24. Regulations implementing Title II of the ADA provide: "A public entity shall

15 administer services, programs, and activities in the most integrated setting appropriate to the needs

16 of qualified individuals with disabilities." 28 C.F.R. § 35.130(d) (1991).

17

25. Regulations implementing Title II of the ADA provide: "A public entity may not,

18 directly or through contractual or other arrangements, utilize criteria or other methods of

19 administration: (i) that have the effect of subjecting qualified individuals with disabilities to
20 discrimination on the basis of disability; [or1(ii) that have the purpose or effect of defeating or

21 substantially impairing accomplishment of the objectives of the entity's program with respect to

22 individuals with disabilities...." 28 C.F.R. § 35.130(b)(3).

23

26. The United States Supreme Court in Olmsteadv. L.C ex rei. Zimring, 527 U.S. 581

24 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of

25 discrimination under Title II of the ADA. In doing so, the high Court interpreted the ADA's

26 "integration mandate" as requiring persons with disabilities to be served in the community when:

27 (1) the state determines that community-based treatment is appropriate; (2) the individual does not

28

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1 oppose community placement; and, (3) community placement can be reasonably accommodated.

2 527 U.S. at 607.

3

27. Section 504 of the Rehabilitation Act of 1973, on which the ADA is modeled, sets

4 forth similar protections against discrimination by recipients of federal funds, such as Defendant

5 herein. 29 U.S.C. §§ 794-794a. These protections include the prohibition against wmecessary

6 segregation. Regulations implementing Section 504 require that a public entity administer its

7 services, programs and activities in "the most integrated setting appropriate" to the needs of

8 qualified individuals with disabilities. 28 C.F.R. § 41.5l(d).

9

28. Section 504's regulations prohibit recipients of federal financial assistance from

10 utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting qualified

11 handicapped persons to discrimination on the basis of handicap [or] (ii) that have the purpose or

12 effect of defeating or substantially impairing accomplishment of the objectives of the recipient's

13 program with respect to handicapped persons. 28 C.F.R. § 41.51(b)(3)(I); 45 C.F.R. § 84.4(b)(4).

14

29. Likewise, California's non-discrimination statute prohibits discriminatory actions by

15 the state and state-funded agencies or departments, similar to the ADA, and provides civil

16 enforcement rights for violations. Cal. Gov't Code §§ 11135-11139 (West 2007).

17 Medicaid and Medi-Cal Programs

18

30. Medicaid is a cooperative, jointly-funded program between the federal and state

19 governments that provides medical assistance to, inter alia, low-income individuals with disabilities.

20 42 U.S.C. §§ 1396-1396v. The purpose of Medicaid is to furnish, as far as practicable, "medical

21 assistance on behalf of ... aged, blind or disabled individuals, whose income and resources are

22 insufficient to meet the costs of necessary medical services" and "to help such families and

23 individuals to attain or retain capability for independence or self-care... " 42 U.S.C. § 1396-1.

24

31. On the federal level, Medicaid is administered by the Centers for Medicare and

25 Medicaid Services (CMS), an agency within the United States Department of Health and Human

26 Services (DHHS).

27

32. States participate in Medicaid by submitting a State Medicaid Plan to CMS for

28

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approval. 42 U.S.c. § 1396; 42 C.P.R. § 430.12 (1995). States can make chm1ges to their Medicaid

2 programs by submitting state plan amendments to CMS for approval. Jd. Coverage of celiain

3 services is mandatory under Medicaid. States that elect to participate in the Medicaid program must

4 cover nursing facility services for individuals over 21 years of age. 42 U.S.c. § I396d(a)(4)(A).

5 States must also offer home health agency services, including skilled nursing services, physical

6 therapy, occupational therapy, speech pathology and other rehabilitative services. 42 U.S.C.

7 § I 396d(a)(7); 42 C.P.R.§ 440.70 (1997).

8

California has elected to pmiicipate in Medicaid, and, therefore, must comply with

9 the requirements of the federal Medicaid Act, its implementing regulations, the United States

10 Constitution, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973.

11 42 U.S.C. § 1396, et seq. California's Medicaid program under the federal Medicaid statute is

12 known as Medi-Cal, and is set forth in the Welfare and Institutions Code. Cal. Welf. & Inst. Code

13 §§ 14000-14685 (West 2006). The California Department of Health Care Services (DHCS)

14 administers the California Medicaid program.

15

34. Under federal Medicaid requirements, states must provide comparable benefits, i. e.,

16 benefits that are equal in "amount, duration and scope," to all categorically needy Medicaid

17 beneficiaries. 42 U.S.c. § 1396a(a)(10)(S)(i); 42 C.P.R. §§ 440.240(a), (b)(\) (1981). CategoricaII

18 needy Medicaid beneficiaries are beneficiaries who, in most cases, receive cash public assistance to

19 meet basic needs. States must also provide comparable benefits to all medically needy Medicaid

20 beneficiaries. Medically needy Medicaid beneficiaries are beneficiaries who do not receive cash

21 public assistance because they have income or resources in excess of the requirements for receipt of

22 such assistance, but who, nevertheless meet categorical requirements for such assistance, e.g., they

23 are over age 65, blind, or disabled. States can provide benefits to the medically needy that are less in

24 amount, duration and scope than benefits to the categorically needy, but California has not elected to

25 do so. Therefore (with certain exceptions for some groups such as pregnant women, certain aliens

26 and services provided pursuant to waiver of federal requirements) California must provide benefits

27 under its Medicaid program that are equal in amount, duration and scope to all eligible needy

28

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beneficiaries.

2

35. Under the Medicaid program recipients and applicants for Medicaid services have

3 rights (0 written notice and a fair hearing. 42 C.F.R. § 431.200 e/ seq. Medicaid recipients have a

4 right to written notice and a pretennination fair hearing if the benefits they are receiving are reduced.

5 suspended or tenninated. Id.

6

36. Califomia Medi-Cal State Plan services are available to persons with disabilities in

7 the community as an entitlement: if individuals meet the eligibility criteria for receipt of the services,

8 including the requirement that the services be medically necessary, then they have a right to receive

9 them with reasonable promptness. 42 U.S.C. § 1396a(a)(8).

10

37. Califomia's Medi-Cal plan provides payments for a variety of services, including but

11 not limited to, Adult Day Health Care. personal care services, home health agency services, skilled

12 nursing facility services, hospital services, specialty mental health services, targeted case

13 management. and medical and non-medical transportation.

14

38. Under Medi-Cal. each adult day health center shall provide, directly on the premises,

15 at least the following services: 1) rehabilitation services. including physical therapy. occupational

16 therapy, and speech therapy; 2) medical services supervised by either the participant's personal

17 physician or a staff physician or both; 3) nursing services, including:(a) skilled nursing care rendered

18 by a professional nursing staff, who evaluate the paliicular nursing needs of each participant and

19 provide the care and treatment indicated, and (b) self-care training and services oriented toward

20 activities of daily living and personal hygiene, such as toileting, bathing and grooming; 4) nutrition

21 services. including (a) a minimum of one meal per day and (b) dietary counseling and nutrition

22 education for participants and their families; 5) psychiatric and psychological services

23 including:(a) consultation, (b) individual assessment, (c) supervision of treatment by a psychiatrist,

24 psychologist, psychiatric social worker or psychiatric nurse, when indicated; 6) medical social

25 services to pmiicipants and their families to help with personal, family and adjustment problems that

26 interfere with the efI"ectiveness of treatment; 7) recreational and social activities suited to the needs

27 of the participants and designed to encourage physical exercise to prevent deterioration and to

28

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1 stimulate social interaction; and 8) non-medical and medical transportation service for participants,

2 only if necessary, to and from their homes, including the use of specially equipped vehicles when

3 medically necessary to accommodate participants with severe physical disabilities that limit

4 mobility. Cal. Code Regs. tit. 22 (2009) § 54309(a); Cal. Welf. & Inst. Code § 14520, et seq. (West

5 2006): Cal. Health & Safety Code § 1570, et seq. (West 2006).

6

39. Under the Medi-Cal program, the following personal care services are available in the

7 community through the In-Home SuppOliive Services program: meal preparation and cleanup,

8 feeding, transportation to and from medical appointments, ambulation, bowel and bladder care,

9 paramedical services, protective supervision, and other personal care services. Cal. Welf. & Inst.

10 Code §§ 12300, 14132.95, 14132.951.

11

40. Under Medi-Cal, the following home health agency services are available in the

12 community when needed: part-time or intennittent skilled nursing services by licensed nursing

13 personnel; in-home medical care services as defined in Califomia Welfare and Institutions Code

14 section 14132(s); physical, occupational or speech therapy; medical social services; home health

15 aide services, which include assisting with personal care, bathroom needs and ambulation, and

16 performing medically necessary household services to facilitate self-care such as changing the bed

17 and light cleaning; medical supplies other than drugs and biologicals; and the use of medical

18 appliances, provided for under an approved treatment plan. Cal. Code. Regs. tit. 22 §§ 51003,

19 51125, 51129, 51146, 51217, 51337, 51455, 51523; Cal. Health & Safety Code §§ 1725 e/ seq.

20 (West 2006); Chapter 9.1., Medi-Cal Manual of Criteria R-15-98E.

21

41. Under Medi-Cal, skilled nursing facility services are available to provide skilled

22 nursing care and supportive care to individuals. Cal. Health & Safety Code § 1250(c).

23

42. Under Medi-Cal, hospital services are available to provide 24-hour inpatient care,

24 including the following basic services: medical, nursing, surgical, anesthesia, laboratory, radiology,

25 pharmacy, and dietary services. Cal. Health & Safety Code § 1250(a).

26

43. Under Medi-Cal, Specialty Mental Health services are available in the community,

27 and include rehabilitation services and medication management. Cal. Welf. & Inst. Code §§

28

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1 14021(a), 14021.4, 14681,14683,14684; Cal. Code Regs, tit 9 §§ 1810,100; 1810247,

2

44, Under Medi-Cal, Targeted Case Management (TCM) is available to assist Medi-Cal

3 recipients in gaining access to needed medical, social, educational and other services, including

4 assistance in obtaining services covered under the Medi-Cal State Plan, assessment, service/support

5 planning, and monitoring services and supports to ensure they are meeting a beneficiary's needs,

6 Cal. Welf & Inst Code § 14132.44,

7

45, Under Medi-Cal, medical and non-medical transportation are available, 42 C,F,R,

8 § 431.53; Cal. Welf & Inst Code §§ 14132(i), 14133,6, 14133,65, 14136 et.seq. Cal. Code Regs

9 tit 22 §§ 51151.7, 51151 et seq.

10

46. Medi-Cal recipients are entitled to notice of their right to a fair hearing when there is

11 any action by the Department to terminate or reduce any medical service. Cal. Code Regs. tit 22

12 § 51014.1.(a).

13 2009 Legislation Affecting ADHC - ABX4 5 (Chapter 5, Statutes of 2009)

14

47. ABx45 is scheduled to go into effect on August 27, 2009. The new law reduces the

15 ADHC benefit to three days per week for all Medi-Cal beneficiaries, with no exceptions. Cal. Welf

16 & Inst. § 14132(p)(2) effective August 27, 2009.

17

48. In addition to this cut, new restrictions limiting who is eligible to receive ADHC

18 services will go into effect if and when the Director of DHCS provides a written declaration that ne

19 restrictions are ready to be implemented. Welf. & Inst. Code § 14521.1, effective August 27, 2009.

20 These new restrictions will terminate or deny ADHC services to individuals based on degree of

21 functional limitation and need for a certain level of care.

22

49. The statute provides that at the time of the declaration of new restrictions by the

23 Director, the ADHC benefit will revert back to a maximum of five days per week for the individuals

24 who remain eligible.

25

50. The new restrictions provide new and ambiguous standards, e.g., that participants will

26 remain eligible only if they need "substantial human assistance" a new term defined as direct hands-

27 on assistance provided by a "qualified" caregiver which entails physically helping the pmiicipant

28

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perfonn the essential elements of the activities of daily living (ADLs), will be terminated or barred

2 from receiving any ADHC services unless they have a condition or type of disability entitled to an

3 exception of this requirement. Cal. Welf. & Ins!. Code §§ 14525.1, 14522.4(a)(10), effective August

4 27,2009.

5

VII. FACTUAL ALLEGATIONS

6 Background of the ADHC Program

7

51. Adult Day Health Care is a community-based day program for low income seniors

8 and younger disabled adults. Adult Day Health Care progran1s provide comprehensive health and

9 social services centered on a multi-disciplinary team approach with skilled professionals providing

10 individualized care. treatments and services to frail elderly and disabled persons, in order to

11 maintain their ability to reside in the community.

12

52. The California legislature specifically intended ADHC as an alternative to

13 institutional care. Cal. Health & Safety Code § 1570.2. The ADHC program includes as an

14 eligibility criteria for receipt of services that: "A high potential existsfiJr the deterioration ofthe

15 participant '.I' medical, cognitive, or mental health condition or conditions in a manner likely 10

16 result in emergenGY department visits, hospitalization, or other institutionalization if adult day

17 health care services are no/ provided." Cal. Welf. & Inst. Code § 14526. I (d)(4). The goal of the

18 ADHC program is to prevent avoidable hospitalizations, emergency department use and nursing

19 facility placement by improving and stabilizing an individual's daily functioning, medical

20 conditions and mental status.

21

53. Adult Day Health Care services are generally provided at a community based center.

22 Participants live at home or in assisted living, and are transported to and from the program center on

23 a daily basis.

24

54. For one daily all-inclusive Medi-Cal reimbursement rate of$76.22. ADHCs are

25 required to provide skilled nursing, skilled social work, therapeutic activities, dietician and

26 nutritionally customized meal services, skilled physical therapy, skilled occupational therapy,

27 skilled speech and language pathology services, skilled mental health services and non-emergency

28

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transportation to and from the center. Individuals can participate in ADHC from one to five days

2 per week, depending on their needs and medical authorizations.

3

55. Statewide, approximately 90% of the 37,235 individuals projected to be served in

4 ADHC centers within Fiscal Year 2009-10 rely on Medi-Cal. ADHCs serve a disproportionate

5 number of Medi-Cal beneficiaries because the program was designed, as a matter of public policy,

6 to be a community-based altemative to nursing homes for low-income adults with disabling

7 physical, mental, or cognitive conditions.

8

56. Based on the most recent available information provided by the Califomia

9 Department of Aging, fifty-eight percent (58%) of those served in ADHC are 75 years of age or

10 older. Of that group, fourteen percent (14%) are over the age of 85, the most rapidly growing

11 segment of Califomia's population. There are few options comparable to ADHC services for those

12 older adults who choose to live out their lives with dignity and independence in their own homes or

13 in community-based settings.

14

57. While the majority of persons served are elderly and frail, ADHCs also serve non-

15 elderly adults with chronic disabling mental health, cognitive or physical conditions: for example,

16 chronic schizophrenia, Parkinson's disease, Alzheimer's disease, stroke, or head injury.

17

58. Individuals wishing to receive ADHC services must have a physician submit history

18 and physical information and participate in a three day assessment performed by a multi-

19 disciplinary team of clinicians including a registered nurse, social worker, and therapist, at

20 minimum. An Individual Plan of Care (IPC) is designed and submitted to Medi-Cal along with the

21 Treatment Authorization Request (TAR). All individuals with Medi-Cal insurance must be prior-

22 authorized by the DHCS through a local field office to attend the ADHC center for a certain number

23 of days per week.

24

59. This approval to receive services is re-authorized every six months. The state

25 adjudicates the number of days of attendance based on the documented need of each beneficiary.

26 Prior to the passage of ABX4 5 in late July 2009, there was no cap on the number of days per week

27 that a beneficiary could access ADHC.

28

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60. The State of California pays significantly more to institutionalize disabled individuals

2 in nursing homes or other institutional facilities than it does to cover their care in community-based

3 settings, e.g., ADHC services. The average daily rate for nursing facility services is approximately

4 $161.81, or $4,854.30 per month.

5

61. The ADHC Program helps prevent costly aIld unnecessary institutionalization, saving

6 the State significant funds, and, at the same time, improving the quality oflife for the individuals

7 served.

8 Cuts in Davs of Service

9

62. The Governor signed ABx4 5 on July 28, 2009. The bill provides that effective 30

10 days after the law is signed by the Governor, the maximum number of days that any ADHC

11 paIiicipant may be authorized for Medi-Cal funding to attend ADHC is cut from five to three,

12 regardless of current authorizations or the health condition of the individual. Cal. Welf. & Inst.

13 Code § 14132 (p), effective August 27,2009.

14

63. DefendaIlts have estimated that the reduction in the ADHC benefit from four or five

15 days to three days will affect approximately 8,000 individuals.

16

64. Upon information and belief, Defendants have not arranged for provision of

17 alternative, community-based Medi-Cal services to be provided to Plaintiffs.

18

65. This group of individuals are members of the "Limitation of Benefits Subclass"

19 discussed below.

20 New ADHC Restrictions

21

66. New restrictions limiting who is eligible for receipt of ADHC services will go into

22 effect when the Director of DHCS provides a written declaration that the new restrictions are ready

23 to be implemented. This declaration will trigger reinstatement of the maximum number of days

24 allowable under the ADHC program to five per week, but the new restrictions will also be triggered,

25 resulting in termination of all services for many current beneficiaries who need and receive them.

26 Cal. Welf. & Ins!. Code § 14525.1, effective August 27, 2009.

27

67. These new restrictions will require that in order to receive ADHC services,

28

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individuals must meet all of the following criteria: (I) be IS years of age or older and have one or

2 more chronic or post-acute medical, cognitive, or mental health conditions, and a physician, nurse

3 practitioner, or other health care provider has, within his or her scope of practice, requested adult day

4 health care services for the person; (2) meet the skilled nursing facility level of care set forth in CaL

5 Code of Regs. tit. 22 § 51124; and (3) have two or more functional impairments involving

6 ambulation, bathing, dressing, self-feeding, toileting, transferring, medication management, and

7 hygiene and require substantial human assistance in performing these activities. CaL Welf. & Inst.

S Code § 14525.1, effective August 27, 2009.

9

6S. "Substantial human assistance" is defined as direct, hands-on assistance provided by

10 qualified caregiver, which entails physically helping the participant perform the essential elements 0

11 the activities of daily living (ADLs) and instrumental activities of daily living (IADLs). It entails

12 more than cueing, supervision, or stand-by assistance to perfonn the ADLs and IADLs. It also

13 includes the performance of the entire ADL or IADL for participants totally dependent on human

14 assistance. CaL Welf. & Inst. Code § 14522.4(a)(10), effective August 27, 2009.

IS

69. The restrictions contain exceptions for individuals who are residents of an

16 Intennediate Care Facility for Persons with Developmental Disabilities (ICF-DD H), and have

17 disabilities and a level of functioning that are of such a nature that, without supplemental

IS intervention through Adult Day Health Care, placement to a more costly institutional level of care

19 would be likely to occur; and individuals with chronic mental illness or moderate to severe

20 Alzheimer's disease or other cognitive impairments. These individuals will not be required to meet

21 Skilled Nursing Facility (SNF) level of care, or to need "substantial human assistance" in completin"

22 activities, but will be required to need only "assistance" in perfonning these activities.

23

70. Upon information and belief, the triggering conditions for such a declaration are

24 based on purely tiscal considerations, as the new restrictions, although nominally restoring ADHC to

25 tive days per week, will serve to reduce the eligible population by imposing arbitrarily heightened

26 requirements, e.g. that participants need "substantial human assistance" defined as direct hands-on

27 assistance provided by a "qualitied" caregiver which entails physically helping the participant

2S

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1 perform ADL's. Cal. Welf. & Inst. Code § 14525.1., effective August 27, 2009.

2

71. Individuals not meeting the new restrictions will have their services tenninated.

3 Upon infonnation and belief, those individuals most likely to be affected by the new restrictions will

4 include those with unstable diabetes or other unstable medical conditions, and medically frail elders

5 who do not meet the test of requiring "substantial human assistance" in performing activities of daily

6 living because they are ambulatory and can move their limbs, but are dependent on the medical

7 monitoring, nursing treatments, medication monitoring, structured environment and social work to

8 maintain stability. In addition, individuals harmed by the new eligibility restrictions are likely to be

9 those with cognitive impairments such as mild Alzheimer's disease who are physically able to care

10 for themselves but who may forget to take medications or eat when alone, and require the structure,

11 stability, socialization, frequent assessment, and medication management offered at ADHC.

12

72. This group of individuals are members of the "Termination of Benefits Subclass",

13 discussed below.

14 Facts Related to Plaintiff Lillie Brantley

15

73. Lillie Brantley attends the Bayview Hunter's Point ADHC program in San Francisco

16 California. She has been attending the program for three years. She is authorized to receive and

17 does receive Medi-Cal funded ADHC services five days a week. Her most current Individual Plan

18 of Care (lPC) is approved through August 31, 2009.

19

74. In accordance with her most recent IPC at the Bayview Hunter's Point ADHC

20 program, Mrs. Brantley receives: professional nursing services every day to monitor her

21 hypertension, monitor and control her seizures, and monitor her for weight loss; personal care

22 services every day to help her with feeding, toileting, and ambulation, as well as monitoring her

23 whereabouts; social services every day to improve her mood and behaviors, which are deteriorating

24 due to her increasing dementia; therapeutic activities to increase her interactions with others and

25 reduce her isolation; physical therapy maintenance program twice per week to reduce her risk for

26 falls and maintain current functioning; occupational therapy services for maintaining her functional

27

28

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I strength; and nutritional monitoring because of her diagnosis of hypeliension and her recent weight

2 loss.

3

75. Ms. Brantley's most recent IPC documents that she is at high risk of

4 institutionalization if she does not receive ADHC services five days per week, due to her

5 inappropriate behavior and affect, two or more chronic medical conditions, poor judgment,

6 medication mismanagement, frailty, isolation, risk for falls, including forgetting to use her cane and

7 being unsafe in transfers, self neglect, and dementia-related behavioral problems.

8

76. Ms. Brantley can never be alone due to her cognitive and health impairments; in

9 addition to five days of attending and receiving services at the ADHC program, she receives the

10 maximum number of In-Home Supportive Services (IHSS) through the Medi-Cal program, 283

II hours.

12

77. Ms. Brantley lives with her niece Chauncey McLorin and Ms. McLorin's 15-year old

13 daughter. Ms. Brantley's family will be forced to institutionalize her ifshe is not able to go to the

14 ADHC program five days a week, as Ms. McLorin cannot afford to quit her job, and Ms. Brantley is

15 already receiving the maximum amount of IHSS available.

16

78. Plaintiff Lillie Brantley would be irreparable harmed by a reduction in ADHC

17 services to three days per week. Although Ms. Brantley is severely impaired by Alzheimer's

18 disease, ADHC services five days per week enable her to live in a familiar environment with family

19 members who care for her and whom she recognizes and can interact with. She can go out to eat

20 with family, and attend church. However, because she is unable to be left alone for any period of

21 time, she would be at risk of serious injury if she were home alone during the time that ADHC is no

22 longer available. Given her family'S inability to stay at home with her for the days she would no

23 longer be able to go to ADHC, she would need to be placed in a nursing facility. Given her

24 cognitive condition, she would likely deteriorate rapidly in an unfamiliar environment such as a

25 nursing facility. Placement in an institution would be devastating to her, and to her family.

26

27

28

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Facts Related to Plaintiff Allie Jo Woodard

2

79. Allie Jo Woodard attends the Bayview Hunter's Point ADHC program in San

3 Francisco Califomia. She has been attending the program for nine years. She is authorized to

4 receive and does receive Medi-Cal funded ADHC services five days a week. Her most current IPC

5 is approved through December 31,2009.

6

80. In accordance with her most recent IPC at the Bayview Hunter's Point ADHC

7 program, Ms. Woodard receives: professional nursing services every day to monitor her for fall risk,

8 for her hypertension, and for her pain and mobility related to her 31ihritis; personal care services

9 daily to monitor her exertion level to prevent cardiac compromise; social services intended to

10 prevent psychiatric hospitalization in the form of group activities, weekly psychological counseling,

11 and daily check in with the program social worker to reorient her to reality; therapeutic activities to

12 decrease her feelings of isolation, and improve her interactions with peers; occupational therapy

13 services for maintaining functional strength two days per week.

14

81. Mrs. Woodard's current IPC states that she is at a high risk of institutionalization if

15 she does not receive ADHC services five days per week, based on her two or more chronic medical

16 conditions, poor judgment, medication mismanagement, frailty, isolation, risk for falls, and

17 dementia-related behavioral problems.

18

82. Ms. Woodard lives alone, however she is never able to actually be alone because she

19 is at risk of wandering. A few years ago she was missing for two full days.

20

83, Ms. Woodard has the maximum hours ofIHSS available, 283 hours. In addition, her

21 daughter and son rotate spending the night with her. On the weekends her daughter Linda Gaspard-

22 Berry brings her to Ms. Gaspard-Berry's home in Fremont.

23

84. Ms. Woodard's disability causes her to be very fragile emotionally, and she has had

24 frequent psychiatric hospitalizations as a result. She is also at risk of falling, and sometimes needs

25 constant physical 311d verbal cueing to use her walker.

26

85. lIer daughter believes that Ms. Woodard's attendance and services at the ADHC five

27 days per week are essential to support her, and that without the program's services, Ms. Woodard

28

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1 would have been hospitalized more frequently than she has been.

2

86. Both Ms. Gaspard-Berry and her brother work full-time and cannot afford to qnit

3 their jobs to care for their mother. lfher ADHC services are cut she will not be safe alone, and her

4 children will have to place her in an institution.

5

87. Plaintiff Allie Jo Woodard would be irreparably harmed by a reduction in ADHC to

6 three days per week. Ms. Woodward lives in her own home with family alternating caring for her,

7 and she receives the maximum amount of attendant care through the IHSS program. Given her

8 complex medical and mental health conditions, she camlot be left alone safely and there would be no

9 one to care for her on the days that she would no longer be able to attend ADHC. Ms. Woodward

10 relies on ADHC services for pain and medication management, and the socialization provided at

11 ADHC assists her mental health condition. Without five days per week of ADHC, Ms. Woodward

12 would need to be placed in a nursing facility. Most likely, she would deteriorate physically and

13 mentally if that were to occur.

14 Facts Related to Plaintiff Gilda Garcia

15

88. Gilda Garcia attends the Institute on Aging ADHC program in San Francisco

16 California. She has been attending the program since 2005. She is authorized to receive and does

17 receive Medi-Cal funded ADHC services five days a week. Her most current IPC is approved

18 through October 31,2009.

19

89. In accordance with her current IPC at the Institute on Aging ADHC program, Ms.

20 Garcia receives: professional nursing services five times a week to monitor her for hypoglycemic

21 reactions, and monitoring for joint and back pain; personal care services five times a week to

22 supervise her ambulation and prevent falls due to her poor vision and impulse control; social

23 services five times a week to increase her opportunities for socialization and on an as needed basis

24 help her coordinate her IHSS and other social services; therapeutic activities five times a week to

25 increase her physical activity, leisure and cognitive opportunities, physical therapy maintenance

26 program three days per week to maintain her endurance and physical strength; occupational therapy

27

28

18 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page23 of 37

maintenance program two days per week to maintain her current levels of functioning; and registere

2 dietician services to ensure she understands the importance of maintaining a diabetic diet.

3

90. Ms. Garcia's most recent IPC states that she is at a high risk of institutionalization if

4 she does not receive ADHC services five days per week, based on her two or more chronic medical

5 conditions, frailty, hyper/hypoglycemia, inappropriate affect/appearance or behavior, poor judgment,

6 risk for falls, and medication mismanagement.

7

91. Ms. Garcia lives alone, and receives limited IHSS services.

8

92. Ms. Garcia fears she will face hospitalization due to her unstable diabetes, and the

9 risks that this condition poses, including a heightened risk offalls.

10

93. Ms. Garcia is also highly dependent on the socialization that the ADHC program

11 offers her.

12

94. Ms. Garcia would be irreparably harmed by a reduction in ADHC to three days per

13 week. Ms. Garcia has unstable diabetes such that the frequent medical monitoring by ADHC

14 nursing cmmot be replicated by primary care. Ms. Garcia relies on ADHC for medical stabilization.

15

95. Without five days per week of ADHC, she is at high risk for acute hospitalization

16 and/or institutionalization. In addition, Ms. Garcia is protected from isolation and depression by

17 attending ADHC five days per week. If she were to remain at home for the majority of the week,

18 she would likely see a rapid decrease in her mental state and thus, her physical state, which would

19 likely result in acute hospitalization and institutionalization.

20

96. Upon infonnation and belief, Ms. Garcia will be terminated from the program by the

21 new restrictions in California Welfare and Institutions Code section 14521.1, as she is not in an

22 exception category, and she does not need "substantial human assistance" in two or more functional

23 impainnents involving ambulation, bathing, dressing, self-feeding, toileting, transferring, medication

24 management, and hygiene.

25 Failure to Provide Adequate Notice and Hearing.

26

97. Plaintiffs have all been found eligible for and currently receive ADHC services on an

27 individualized basis as set forth in their Individual Plans of Care. As part of their ADHC Individual

28

19 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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Plan of Care (IPC), Plaintiffs have each been found eligible for specific ADHC services five days

2 per week. Plaintiff Lillie Brantley has a Medi-Cal approved IPC through August 31, 2009 for five

3 days a week of services through ADHC. Plaintiff Allie.To Woodard has a Medi-Cal approved IPC

4 through December 31,2009 for five days a week of services through ADHC. Plaintiff Gilda Garcia

5 has a Medi-Cal approved IPC through October 31, 2009 for five days a week of services through

6 ADHC.

7

98. On July 30, 2009, Defendant informed providers of the ADHC program that

8

"Effective August 27, 2009.....and until the State law is amended or becomes

9

inoperative, Medi-Cal will no longer approve or pay for a beneficiary to attend an

10

ADHC center for more than three days per week. If your ADHC center currently has

11

participants attending the ADIlC center more than three days per week pursuant to a

12

currently approved Treatment Authorization Request (TAR), DHCS will send those

13

beneficiaries a notice informing them that their authorized ADHC services will be

14

reduced to a maximum of three days of ADHC per week, effective 30 days after

15

signing of the Trailer Bill. In addition, DHCS will notify all Medi-Cal beneficiaries

16

who receive ADHC services of the reduction to this ADHC benefit. Copies of all

17

notices released regarding ADHC benefit changes will be provided on the DHCS

18

website at www.dhcs.ca.QovandontheMedi-Calwebsiteat\vww.medi-cal.ca.Qov.

19

Please feel free to print, post, and/or distribute these notices for your ADHC

20

participants."

21

99. Following this provision of notice to providers, Defendant posted a notice on the

22 DHCS website informing all ADHC recipients that the "ADHC benefit is reduced to a maximum of

23 three days of ADHC per week" and further infonning Plaintiffs and Class Members in the

24 "Limitations of Benefits subclass", set forth infi'a, that:

25

"Dear Medi-Cal Beneficiary:

26

This is to notify you that a recent change in California law will reduce the Adult Day

27

Health Care benefit to a maximum of three days per week for any beneficiary. This

28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page25 of 37

1

change will occur 30 days after signing of the law that accompanies the State Fiscal

2

Year 2009-2010 Budget. The Depm1ment of Health Care Services records show that

3

you are currently authorized to receive four or more days per week of Adult Day

4

Health Care. Effective August 27, 2009, Medi-Cal will only authorize and pay for a

5

maximum of three days per week of Adult Day Health Care. Due to this change of

6

State law, carry-over days and make-up days will not be allowed. If you have any

7

questions, please contact the Medi-Cal beneficiary Services line at 1-888-284-0623 or

8

speak with your ADHC provider."

9

100. Upon infonnation and belief, Plaintiffs Lillie Brantley, Gilda Garcia, and Allie Jo

10 Woodard have not received individualized notice of the cuts to their services providing them with

11 statutorily required hearing rights.

12

101. Defendant's notice posted on its website states that ADHC benefits are being reduced

13 to a maximum of three days per week. This notice violates both federal and state law in that it states

14 that Plaintiffs and Class Members are no longer entitled to ADHC services for four or five days per

15 week, when, in fact, Plaintiffs continue to be entitled to the services under other Medi-Cal state plan

16 services. This notice fails to advise Plaintiffs of their right to a fair hearing if they are dissatisfied

17 with the reductions or terminations in services, the manner in which they can request a hearing, their

18 right to continuation of benefits pending a hearing, and other rights.

19

102. The Plaintiffs are representative of the broader population of ADHC pm1icipm1ts

20 throughout the state who would be affected by the cuts contained in ABX4 5 and who have not

21 received required notice and hearing rights.

22 Facts Related to Medi-Cal ADHC Participants Generally

23

103. All ADl-lC pm1icipants have been authorized to receive and do receive Medi-Cal

24 funded ADHC services in accordance with physician recommendations and an Individual Plan of

25 Care (JPC) submitted to and approved by Defendants.

26

104. Upon information and belief, virtually all ADHC participants are receiving services

27 between one and five days per week and have approved treatment authorizations approved by Medi-

28

21 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page26 of 37

1 Cal which extend beyond the proposed ternlination date of August 27,2009.

2

105. Upon information and belief~ ADHC participants have not received individualized

3 notification of the cuts or changes in services providing them with statutorily required hearing rights,

4 nor have they been provided with replacement services available under the Medi-Cal State Plan.

5

106. Cuts to ADHC will cause Class Members to suffer decline in physical functioning,

6 will lead to increased preventable emergency room visits, and will lead to institutionalization.

7

107. Significantly, for many participants, such as people whose physical or cognitive

8 impairments are such that they cannot be left alone, or whose health conditions are extremely

9 unstable, or those whose families rely on the individual being out of home in order to work, sleep, or

10 care for other family members, the loss of one or two days of ADHC will mean immediate out-of-

11 home placement in a nursing facility.

12

108. To the extent there are any applicable administrative remedies, exhaustion on the pati

13 of Plaintiffs would be futile. On August 10,2009, Plaintiffs sent a demand letter to Defendants

14 requesting that the reduction, elimination or termination of services be halted until Defendants

15 provided Plaintiffs with due process, continued services and/or replacement services needed to

16 maintain them in the community in accordance with the law. On August 13,2009, Defendants

17 responded by letter, refusing to do so

18

VIII. CLASS DEFINITION AND ALLEGATIONS.

19

109. Pursuant to Rule 23(a) and Rule (b)(2) of the Federal Rules of Civil Procedure, the

20 Plaintiffs Brantley, Woodard and Garcia bring this action on behalf of themselves and all other

21 persons similarly situated. Plaintiffs bring this action on behalf of a class consisting of "all

22 recipients of Medi-Cal in the State of California who receive Adult Day Health Care Services whose

23 Adult Day Health Care Benefits will be limited, cut, or ternlinated under the provisions of ABx4 5

24 (hereinafter the "Class"). Fed. R. Civ. P. 23(a), (b)(2).

25

110. Plaintiffs Brantley, Woodard and Garcia also plead a subclass of individuals as

26 follows:

27

a. "Limitation of Benefits Subclass" to be defined as "all Medi-Cal

28

22 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page27 of 37

beneficiaries who. as of August 26,2009, have been authorized to receive fou

2

or five days of Adult Day Health Care Services by DHCS, and whose services

3

will be reduced to a maximum of three days under the provisions of ABx4 5."

4

Plaintiffs Brantley, Garcia. and Woodard are typical of this subclass.

5

b. "Termination of Benefits Subclass" to be defined as "all present and future

6

Medi-Cal beneficiaries who have been authorized to receive any Adult Heath

7

Care services, and whose ADHC services will be terminated under the

8

provisions of ABx4 5 at the time DHCS issues new classification standards

9

pursuant to that statute for receipt of ADHC services." Plaintiff Garcia is

10

typical of this subclass.

11

Ill. Numerosity: The Plaintiff class is so numerous that joinder of all its members is

12 impracticable. Upon information and belief, there are in excess of37.000 persons in the class.

13 Upon information and belief, the "Limitation of Benefits subclass" consists of more than 8,000

14 people. Upon information and belief the "Termination of Benefits subclass" will consist of

15 thousands of individuals. Joinder of individuals in the subclasses is also impracticable because of

16 the size of the subclasses, and because Class Members lack the knowledge and financial means to

17 maintain individual actions and are geographically disbursed throughout the state.

18

112. Commonalitv: Common questions of law and fact predominate over questions

19 affecting individual Class Members. Questions of law and fact common to members of the class

20 include, but are not limited to: the fact that all Plaintiffs and Class Members receive Medi-Cal

21 funded ADHC services that will be limited or reduced due to the common policies and actions of

22 Defendants that apply to all of the Class Members; the determination of whether Defendants'

23 policies and actions violate federal and/or state law; and the determination of whether defendants

24 have failed to give adequate notice to all Class Members. The prosecution of separate actions by

25 individual members of the class would create a risk of inconsistent or varying adjudication.

26 establishing incompatible rules of law for the provision of services to people with disabilities served

27 by the ADHC program.

28

- : - - - - - - -......-..-.....- - - - . - - - - = 23 ' - - - - - - - - - - - - - - - - - - - 1
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page28 of 37

I

113. Typicality: The claims of the Plaintiffs are typical ofthe claims of the class as a

2 whole and are typical of the claims of the subclasses in that the Plaintiffs and Class members

3 currently are Medi-Cal eligible ADHC participants and qualified individuals with disabilities, who

4 face imminent risk of institutionalization, hospitalization, or other risk of irreparable harm to their

5 health, when subjected to the cuts in ADHC and Defendants' policies and practices. The claims

6 arise from the same unlawful and discriminatory policies and practices of Defendants.

7

114. Adequate representation: The Plaintiffs will fairly represent and adequately protect

8 the interests of members of the class as a whole. The Plaintiffs do not have any interests

9 antagonistic to those of other Class Members. By filing this action, the Plaintiffs have displayed an

10 interest in vindicating their rights, as well as the claims of others who are similarly situated. The

II relief sought by the Plaintiffs will inure to the benefit of members of the class generally. The

12 Plaintiffs are represented by counsel who are skilled and knowledgeable about civil rights litigation,

13 disability discrimination, Medicaid law, practice and procedure in the federal courts and the

14 prosecution and management of class action litigation.

IS

lIS. Defendants have acted, refused to act, or will act on grounds generally applicable to

16 the class, thereby making final injunctive and declaratory relief appropriate with respect to the class

17 as a whole under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Class Members share a

18 common need for ADHC services and/or replacement services and Defendants' policies and actions

19 in limiting or termination ADHC services are applicable to the entire class. A class action is

20 superior to individual lawsuits for resolving this controversy.

21

116. Defendant's actions, as alleged herein, have resulted in, and will continue to result in

22 irreparable injury to Plaintiffs and Class Members for which they have no plain, speedy, or adequate

23 remedy at law. Plaintiffs and Class Members will suffer irreparable injury in that they will be placed

24 at imminent risk of institutionalization and/or harm to their health.

25

117. An actual controversy exists between Plaintiffs and Class Members and Defendants

26 in that Defendants are seeking to implement reductions and terminations in Medi-Cal services to

27 which Plaintiffs and Class Members are entitled, and which, if implemented will place Plaintiffs and

28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page29 of 37

Class Members at risk of unnecessary institutionalization and that such denial will violate the rights

2 of Plaintiffs and Class Members under the Due Process Clause of the FOUlieenth Amendment to the

3 United States Constitution, the Americans With Disabilities Act, Section 504, and various provisions

4 of the Medicaid Act, and California Government Code section 11136. Plaintiffs and Class Members

5 therefore seek a declaration as to their rights and Defendants' corresponding duties with respect to

6 the matters alleged herein.

7

IX.

LEGAL CLAIMS

8

FIRST CLAIM FOR RELIEF

9

Violation of the Americans with Disabilities Act, 42 U.S.c. § 12131 et seq.

10

118. Plaintiffs reallege and incorporate herein by reference each and every allegation and

11 paragraph set forth previously.

12

119. Each named Plaintiff and Class Member is a "qualified individual with a disability"

13 within the meaning of the ADA in that they (I) have a physical impairment that substantially limits

14 one or more major life activities; and (2) meet the essential eligibility requirements for community-

15 based long-term care under California's Medicaid program.

16

120. Defendant has required that ADHC services to Plaintiffs and Class Members

17 arbitrarily be reduced from five days per week to no more than three days per week without

18 reassessment of need or the provision of replacement services, thereby placing Plaintiffs and Class

19 Members at imminent risk of institutionalization in violation of the ADA's integration mandate.

20

121. Defendant has utilized criteria and methods of administration that subject Plaintiffs

21 and Class Members to discrimination on the basis of disability, including risk of unnecessary

22 institutionalization, by including but not limited to the following: (I) failing to properly assess for

23 replacement services and supports that would enable Plaintiffs and Class Members to remain in the

24 community; (2) failing to provide ADHC or replacement services needed to enable Plaintiffs and

25 Class Members to remain in the community; (3) basing their decision on levels of service solely on

26 economic considerations not taking into account the assessed needs of the participants; and

27

28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page30 of 37

(4) allocating resources for institutional versus community long-term care contrary to the desires and

2 needs of people with disabilities.

3

122. Defendant's actions are in violation of Title II of the ADA.

4

SECOND CLAIM FOR RELIEF

5

(Defendants DRCS and Director Maxwell-Jolly)

6

Section 504 of the Rehabilitation Act, 29 U.S.c. § 794 et seq.

7

123. Plaintiffs reallege m1d incorporate herein by reference each and every allegation and

8 paragraph set forth previously.

9

124. Each Plaintiffand Class Member is a "qualified person with a disability" within the

10 mem1ing of Section 504, because they (I) have physical and/or mental impainnents that substaJ1tially

11 limit one or more major life activities; and (2) meet the essential eligibility requirements for

12 community-based services under California's Medicaid programs."

13

125. Defendants' actions have placed Plaintiffs and Class Members at risk of unnecessary

14 confinement in institutions, i.e., nursing facilities, rather thm1 the community, in order to obtain long

15 term care services, in violation of Section 504's integration mandate.

16

126. Defendants have utilized criteria aJ1d methods of administration that subject Plaintiffs

17 and Class Members to discrimination on ilie basis of disability, including risk of unnecessary

18 institutionalization, by (I) failing to properly assess for replacement services and supports that woul

19 enable Plaintiffs and Class Members to live in the community, (2) failing to base service decisions

20 on individualized needs assessments instead of purely economic concerns; and (3) allocating

21 resources for institutional versus long-term care contrary to the desires and needs of people with

22 disabilities.

23

24

25

26

27

28

26
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page31 of 37

1

THIRD CLAIM FOR RELIEF

2

(Defendant Director Maxwell-Jolly)

3

Claim under 42 U.S.c. § 1983, Deprivation of Federal Constitutional Rights -

4

Procedural Due Process

5

127. Plaintiffs reallege and incorporate herein by reference each and every allegation and

6 paragraph set forth previously.

7

128. Plaintiffs are entitled under federal and state law to adequate notice and opportunity

8 for a pre-termination or pre-reduction hearing on any tennination or reduction in medical care and

9 services. See Goldberg v. Kelly, 397 U.S. 254 (1970) (holding that due process requires that welfare

10 beneficiaries be given effective notice and a right to a hearing); Cal. Code Regs. tit. 22

11 § 51014.1 (a)(2) (providing Medi-Cal recipients with rights to notice and fair hearing).

12

129. Plaintiffs receive ADHC services which are being cut to three days per week.

13 Plaintiffs have not received notice informing them of their rights to a pre-termination or pre-

14 reduction hearing.

15

130. Defendant has attempted to reduce or terminate services provided at adult day health

16 centers that continue to be Medi-Cal covered services and continue to be available in the community

17 under the Medi-Cal program, including home health agency services, IHSS, rehabilitation services,

18 specialty mental health services, targeted case management, and transportation to these services,

19 thereby depriving Plaintiffs and other Class Members of their right to an opportunity for fair hearing

20 before reduction or termination of benefits.

21

131. Defendants have violated the Due Process clause of the FOUlieenth Amendment to the

22 U.S. Constitution, by, among other things, denying the Plaintiffs and Plaintiff class meaningful

23 notice and oPPOliunity for a fair hearing; and advance notice and the 0ppOliunity for a fair hearing

24 prior to suspension or termination of services previously authorized by the State.

25

132. In all ofthis, Defendants have, under color of state law, deprived Plaintiffs and Class

26 Members of rights, privileges or immunities secured to them by the Constitution of the United

27 States, in violation of 42 U.S.c. § 1983.

28

27 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

FOURTH CLAIM FOR RELIEF

2

(Defendant Director Maxwell-Jolly)

3

Violation of Medicaid Act, Deprivation of Right to a Fair Hearing

4

133. Plaintiffs reallege and incorporate herein by reference each and every allegation and

5 paragraph set forth previously.

6

134. Pursuant to the Medicaid Act, the state of California has established a procedure to

7 provide a pre-termination fair hearing to any Medi-Cal beneficiary whose services are denied,

8 reduced, or terminated. In reducing or terminating services to Plaintiffs and Class Members as set

9 forth above, Defendant has deprived Plaintiffs and Class Members of an opportunity to a fair hearing

10 in violation of 42 U.S.C. § 1396a(a)(3).

11

135. Defendant has under color of state law, deprived Plaintiffs and Class members of

12 rights or privileges and immunities secured to them by the Constitution and laws of the United States

13 in violation of 42 U.S.C. § 1983.

14

FIFTH CLAIM FOR RELIEF

15

(Defendant Director Maxwell-Jolly)

16

Violation of Medicaid Comparability Requirement Termination Subclass Only

17

136. Plaintiffs reallege and incorporate herein by reference each and every allegation and

18 paragraph set forth previously.

19

137. The California Legislature has enacted a statute that seeks to deprive eligible

20 Medicaid beneficiaries who are in need of, and are qualified to receive, or are currently receiving

21 ADHC services.

22

138. The statute seeks to deprive Plaintiffs and Class Members of medically necessary

23 ADHC services based solely on their degree of functional limitation or the level of care that they

24 need. Defendant, by creating one eligibility standard for individuals with certain conditions or types

25 of disabilities while applying a separate standard for all other individuals, establishes Medi-Cal

26 eligibility criteria in contravention of the comparability provisions of the Medicaid Act. 42 U.S.C.

27 § I 396a(a)(10)(B).

28

28 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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139. In all of this, Defendant has, under color of state law, deprived Plaintiffs and Class

2 members of rights. privileges, or immunities secured to them by the Constitution and laws of the

3 United States in violation of 42 U.S.c. § 1983.

4

SIXTH CLAIM FOR RELIEF

5

(Defendants DHCS and Director Maxwell-Jolly)

6

Violation of Government Code Sections 11135 and 11139

7

140. Plaintiffs reallege and incorporate herein by reference each and every allegation and

8 paragraph set forth previously.

9

141. Plaintiffs and Class Members are persons with disabilities within the meaning of

10 California Government Code section 11135(c) el seq. and its implementing regulations.

II

142. Plaintiffs and Class Members meet the essential eligibility requirements for Medi-Cal

12 services, including services necessary to maintain them in their homes in the community.

13

143. Defendants DHCS and Director Maxwell-Jolly conduct, operate or administer the

14 state Medicaid program, entitled Medi-Ca1, which is directly funded, in part, by state financial

15 assistance within the meaning of Califomi a Government Code section 11135(a) and implementing

16 regulations.

17

144. Defendants' actions, in terminating or limiting community-based Medi-Cal services

18 and not assessing for or providing replacement services and placing plaintiffs and Class Members at

19 risk of institutionalization have discriminated against Plaintiffs and Class Members, thereby

20 excluding them from participation in, denying them the benefits of, and otherwise subjecting them to

21 discrimination in violation of Califomi a Govermnent Code section 11135 el seq. and implementing

22 regulations.

23

145. Plaintiffs and Class Members further allege that violations of their rights under the

24 Americans with Disabilities Act and implementing regulations contained in the First Claim for

25 Relief are incorporated herein and constitute a violation of California Government Code section

26 11135 et seq. as well, as set forth in section 11135(b).

27

28

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1

X. REQUEST FOR RELIEF

2

WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies on

3 behalf of themselves and all others similarly situated:

4

a) Assume jurisdiction over this action and maintain continuing jurisdiction until

5 defendants are in full compliance with every order of this court;

6

b) Certify this action as a class action;

7

c) As to all defendants, declare that defendants' policies, practices, acts and omissions

8 as set fOlih above violate Plaintiffs' and Class Members' rights under the American with Disabilities

9 Act, Section 504 of the Rehabilitation Act, the Medicaid Act, the United States Constitution,

10 Califomia Govemment Code 11135, and 42 U.S.C. § 1983, by, inter alia:

11

1.

Denying Plaintiffs and Class Members their entitlement to services in the least

12

restrictive environment;

13

11. Discriminating against Plaintiffs and Class Members on the basis of disability,

14

and on the basis of severity of disability, by utilizing methods of

15

administration, adopting and applying policies, and engaging in practices that

16

result in unnecessary segregation and institutionalization; and

17

111. Failing to provide Medi-Cal covered services without interruption and without

18

adequate notice or opportunity for a fair hearing.

19

d) Declare that Defendant Maxwell-Jolly's tennination, reduction or suspension of

20 Plaintiffs' and Class Members' rights to Medi-Cal-covered services to which they are entitled,

21 without adequate notice or opportunity for a fair hearing, and failure to transition Plaintiffs and Class

22 Members to adequate Medi-Cal-covered services to which they are entitled, without interruption of

23 services, constitutes a denial of:

24

I.

Plaintiffs' and Class Members' constitutionally protected right to due process

25

oflaw guaranteed to them under the Fourteenth Amendment to the

26

Constitution of the United States;

27

28

30 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page35 of 37

11. The Medicaid program. Title XIX of the Social Security Act. Title 42 U.S.c.

2

§ I 396a, et seq,;

3

e) Declare that Defendant's heightened eligibility standards violate the comparability

4 standards offederal Medicaid law. Title XIX of the Social Security Act, 42 U.S.c.

5 § 1396a(a)(lO)(B).

6

f)

Declare that Defendants' elimination of Plaintiffs' Medicaid skilled nursing and

7 rehabilitation services provided through the ADHC program, without the provision of continuation

8 services in community-based settings which are the most integrated setting appropriate to the needs

9 of Plaintiffs and Class Members. and conditioning the receipt of medically necessary Medicaid

10 services on segregation in an institutional or non-community setting, violate laws which prohibit

11 discrimination on the basis of disability and unjustified institutionalization and which require

12 Defendants to administer its services and programs in the most integrated setting appropriate to the

13 needs of the individual with disabilities, including:

14

I.

The Americans with Disabilities Act ("ADA"), (42 U.S.C.A. §§ 12101-12213

15

(West 2005))

16

11. Section 504 of the Rehabilitation Act ("Section 504"), (29 U.S.C.A. §§ 794-

17

794a (West 2006)),

18

III. California Government Code section 11135. (Cal. Gov't Code § 11135 (West

19

2006)).

20

g) Grant a temporary restraining order, preliminary and pel1l1anent injunction enjoining

21 Defendant, their officers, agents, employees, attol1leys, and all persons who are in active concert or

22 participation with them from violation of Plaintiffs and Class Members' rights under the American

23 with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid Act, the United States

24 Constitution, Califol1lia Govel1lment Code 11135, and 42 U.S.C. § 1983;

25

h) Grant a temporary restraining order. preliminary and permanent injunction enjoining

26 Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or

27 participation with them from reducing ADHC program benefits from five or four days to a

28

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1 maximum of three days to the Plaintiffs and Class Members and reinstate full ADHC program

2 benefits until such time as Defendants offer Plaintiffs and Class Members the Medi-Cal skilled

3 nursing, physical and occupational therapy, and other Medi-Cal-covered services Plaintiffs and Class

4 Members are entitled to in the most integrated and least restrictive setting appropriate to their nceds.

5

i) Grant a temporary restraining order. preliminary and pennanent injunction enjoining

6 Defendants, their officers, agents, employees. attorneys, and all persons who are in active concert or

7 participation with them from tern1inating, reducing or suspending Plaintiffs' and Class Members'

8 Medi-Cal skilled nursing. physical and occupational therapy, and other services to which they are

9 entitled, until such time as alternative community-based services are provided by defendants for each

10 Plaintiff and Class Member: and until Defendant provides Plaintiffs and Class Members full notice

II and due process appeal rights from any tenninations, reductions or suspensions of their Medi-Cal

12 benefits, as required under the U.S. Constitution and the Medicaid Act.

13

j) Grant a temporary restraining order, preliminary and pennanent injunction

14 compelling Defendants, their officers, agents, employees, attorneys, and all persons who are in

IS active concert or participation with them to take all actions necessary within the scope of their

16 authority to implement the above injunctions;

17

k) Maintain the injunctions above until such time as skilled nursing, physical and

18 occupational rehabilitation therapy, and other services are provided to the extent required under

19 federal law and so as to ensure each Plaintiff and Class Member receives the services which meet

20 their needs in the most integrated setting appropriate to their needs.

21

I) Waive the requirement for the posting of a bond as security for the entry of

22 preliminary reliet~ on the grounds of Plaintiffs' indigency.

23

m) Award the Plaintiffs the costs of this action and reasonable attorneys' fees pursuant to

24 20 U.S.c. § 794a; 42 U.S.C. §§ 1988, 12133, 12205: California Goverl1ll1ent Code section 1021.5;

25 and as otherwise may be allowed by law.

26 III

27 III

28

32 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document1 Filed08/18/09 Page37 of 37

11) All such other and further relief as the Court deems to be just and equitable.

2 Dated: August 18, 2009

Respectfully Submitted

3

DISABILITY RIGHTS CALIFORNIA

NATIONAL SENIOR CITIZENS LAW CENTER

4

AARP FOUNDAnON LInGAnON

5

7

~w By:

8 Attorneys for Plaintiffs
9

10

I 1

12

13

14

15

16

17

18

19

20

21

22

23
24

25

26

27

28

" ' ('Tl 'I1\.'

33
1\,)1 A ll\.lT J.:(lP Tl\.l II n,T('TI\/r;' A t-.lf) nr:;rl t\ D II T(,DV R cr Ie L'

 
 Case4:09-cv-03798-SBA Document74 Filed12/18/09 Page1 of 57

1 Elissa Gershon, State Bar No. 169741 elissa.gershon@disabilityrightsca.org
2 Elizabeth Zirker, State Bar No. 233487 elizabeth.zirker@disabilityrightsca.org
3 Jay B. Koslofsky, State Bar No. 97024 jay.koslofsky@disabilityrightsca.org
4 Kim Swain, State Bar No. 100340 kim.swain@disabilityrightsca.org
5 Daniel Brzovic, State Bar No. 89493 Dan.brzovic@disabilityrightsca.org
6 Dara Schur, State Bar No. 98638 Dara.schur@disabilityrightsca.org
7 DISABILITY RIGHTS CALIFORNIA 1330 Broadway, Suite 500
8 Oakland, CA 94612 Telephone: (510) 267-1200
9 Facsimile: (510) 267-1201

10 Attorneys for Plaintiffs

11 [Complete list of counsel on following pages]

12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

13

14 LILLIE BRANTLEY, by her guardian ad ) Case No.: C09-03798 SBA

litem Chauncey McLorin; GILDA GARCIA; )

15 ALLIE JO WOODARD, by her guardian ad ) CLASS ACTION

litem Linda Gaspard-Berry; HARRY COTA; )

16 SUMI KONRAI by her guardian ad litem ) FIRST AMENDED COMPLAINT FOR

Casey Konrai; RONALD BELL by his

) INJUNCTIVE AND DECLARATORY

17 guardian ad litem Rozene Dilworth,

) RELIEF

individually and on behalf of all others

)

18 similarly situated,

)

)

19

Plaintiffs,

)

)

20

vs.

)

)

21 DAVID MAXWELL-JOLLY, Director of the )

Department of Health Care Services, State of )

22 California, DEPARTMENT OF HEALTH )

CARE SERVICES,

)

23

Defendants.

24

25

26

27

28

i

BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF

Case4:09-cv-03798-SBA Document74 Filed12/18/09 Page2 of 57
1 Anna Rich, State Bar No. 230195 arich@nsclc.org
2 Kevin Prindiville, State Bar No. 235835 kprindiville@nsclc.org
3 NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525
4 Oakland, CA 94612 Telephone: (510) 663-1055
5 Facsimile: (510) 663-1051
6 Eric Carlson, State Bar No. 141538 ecarlson@nsclc.org
7 NATIONAL SENIOR CITIZENS LAW CENTER 3435 Wilshire Boulevard, Ste 2860
8 Los Angeles, CA 90010-1938 Telephone: 213-674-2813
9 Facsimile: 213-639-0934
10 Barbara Jones, State Bar No. 88448 bjones@aarp.org
11 AARP FOUNDATION LITIGATION 200 So. Los Robles, Suite 400
12 Pasadena, CA 91101 Telephone: (626) 585-2628
13 Facsimile: (626) 583-8538
14 Kenneth W. Zeller, Pro Hac Vice kzeller@aarp.org
15 AARP FOUNDATION LITIGATION 601 E Street NW
16 Washington D.C. 20049 Telephone: (202) 434-2060
17 Facsimile: (202) 434-6424
18 Sarah Somers, State Bar No. 170118 somers@healthlaw.org
19 Martha Jane Perkins, State Bar No. 104784 perkins@healthlaw.org
20 NATIONAL HEALTH LAW PROGRAM 211 N. Columbia Street
21 Chapel Hill, NC 27514 Telephone: (919) 968 - 6308
22 Facsimile: (919) 968-8855
23
24
25
26
27
28
ii
BRANTLEY, ET AL. V. MAXWELL-JOLLY, C09-03798 SBA: FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document74 Filed12/18/09 Page3 of 57

1

TABLE OF CONTENTS

2 I. INTRODUCTION................................................................................................................... 1

3 II. JURISDICTION ..................................................................................................................... 2

4 III. VENUE..................................................................................................................................... 2

5 IV. INTRADISTRICT ASSIGNMENT ...................................................................................... 3

6 V. PARTIES ................................................................................................................................. 3

7

Plaintiffs.................................................................................................................................... 3

8

Lillie Brantley—Limitation of Benefits Subclass Representative............................................ 3

9

Gilda Garcia—Limitation and Termination of Benefits Subclasses Representative................ 4

10

Allie Jo Woodard-- Limitation of Benefits Subclass Representative ....................................... 4

11

Harry Cota – Termination and Limitation of Benefits Subclasses Representative .................. 5

12

Sumi Konrai --Termination and Limitation of Benefits Subclasses Representative ................ 5

13

Ronald Bell – Termination of Benefits Subclass Representative ............................................. 6

14

Defendants ................................................................................................................................ 7

15 VI. STATUTORY AND REGULATORY FRAMEWORK ..................................................... 7

16

Federal and State Anti-Discrimination Laws............................................................................ 7

17

Medicaid and Medi-Cal Programs ............................................................................................ 9

18

Medicaid Due Process Requirements ..................................................................................... 11

19

Medi-Cal Covered Services .................................................................................................... 12

20

2009 Legislation Affecting ADHC – ABx4 5 (Chapter 5, Statutes of 2009) ......................... 14

21 VII. FACTUAL ALLEGATIONS............................................................................................... 15

22

Background of the ADHC Program........................................................................................ 15

23

Cuts in Days of Service from a Maximum of Five to No More than Three ........................... 17

24

New, Restrictive ADHC Eligibility Requirements ................................................................. 18

25

Facts Related to Plaintiff Lillie Brantley-- Limitation of Benefits Subclass

Representative............................................................................................................. 22

26

Facts Related to Plaintiff Allie Jo Woodard-- Limitation of Benefits Subclass

27

Representative............................................................................................................. 24

28
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BRANTLEY, ET AL. V. MAXWELL-JOLLY, C09-03798 SBA: FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document74 Filed12/18/09 Page4 of 57

1

Facts Related to Plaintiff Gilda Garcia—Limitation and Termination of Benefits

Subclasses Representative .......................................................................................... 25

2

Facts Related to Plaintiff Harry Cota – Termination and Limitation of Benefits

3

Subclasses Representative .......................................................................................... 27

4

Facts Related to Plaintiff Sumi Konrai – Termination and Limitation of Benefits

Subclasses Representative .......................................................................................... 29

5

Facts Related to Plaintiff Ronald Bell – Termination of Benefits Subclass

6

Representative............................................................................................................. 31

7

Failure to Provide Adequate Notice and Pre-Termination Hearing: Limitation of

Benefits Subclass. ....................................................................................................... 33

8

Failure to Provide Adequate Notice and Pre-Termination Hearing: Termination of

9

Benefits Subclass. ....................................................................................................... 35

10

Facts Related to Medi-Cal ADHC Participants Generally ..................................................... 35

11 VIII. CLASS DEFINITION AND ALLEGATIONS. ................................................................. 36

12 IX. LEGAL CLAIMS.................................................................................................................. 39

13

Violation of Title II of the Americans with Disabilities Act .................................................. 39

14

Violation of Section 504 of the Rehabilitation Act ................................................................ 41

15

Violation of Procedural Due Process Rights .......................................................................... 42

16

Violation of Medicaid Act, Failure to provide Opportunity for Hearing ............................... 43

17

Violation of Medicaid Comparability Requirement ............................................................... 44

18

Violation of Medicaid Reasonable Standards Requirement ................................................... 44

19

Violation of Government Code Sections 11135 and 11139 ................................................... 45

20 X. REQUEST FOR RELIEF .................................................................................................... 46

21

22

23

24

25

26

27

28
iv
BRANTLEY, ET AL. V. MAXWELL-JOLLY, C09-03798 SBA: FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document74 Filed12/18/09 Page5 of 57

1

I. INTRODUCTION

2

1. Plaintiffs, who are elderly persons and adults with disabilities, brought this class

3 action suit against the California Department of Health Care Services and its Director (Defendants)

4 to stop devastating cuts to Adult Day Health Care (ADHC) services. If implemented, these cuts will

5 place named Plaintiffs and Class Members at imminent risk of harm, including institutionalization,

6 hospitalization, injury and/or death.

7

2. ADHC is a Medi-Cal funded community-based program for low-income seniors and

8 disabled adults, which provides “a viable alternative to institutionalization for those elderly persons

9 and adults with disabilities who are capable of living at home with the aid of appropriate health care

10 or rehabilitative services.” Cal. Health & Safety Code §1570.2(b) (West 2003). ADHC services are

11 provided at centers located in communities throughout California. ADHC participants live at home

12 or in licensed residential care facilities, and participate in ADHC from one to five days per week,

13 depending on their assessed needs. ADHC services include professional nursing services, personal

14 care services, social and therapeutic services, case management, medication management, meals,

15 physical therapy, occupational therapy, speech therapy and transportation to and from the ADHC

16 center.

17

3. ABx4 5 (Chapter 5, Statutes of 2009), one of a number of bills passed in response to

18 California’s budgetary difficulties, imposed two cutbacks on the ADHC program, each of which was

19 based solely on reducing State expenditures, with little or no consideration of the harm to vulnerable

20 elderly and disabled persons. The first cutback reduced the maximum weekly ADHC services from

21 five to three days per week for all Medi-Cal funded program participants, with no exceptions, and

22 regardless of existing treatment authorizations and the participant’s health condition. This cutback

23 has been enjoined by this Court through a preliminary injunction issued on September 10, 2009.

24

4. The second cutback establishes new and restrictive eligibility requirements for

25 participation in an ADHC program. This cutback will go into effect when the Director of the

26 California Department of Health Care Services (DHCS) provides a written declaration that the

27 restrictive eligibility requirements are ready to be implemented. This declaration will return the

28
1 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document74 Filed12/18/09 Page6 of 57

1 maximum number of days allowable under the program to five per week, but will cause termination

2 of all ADHC services for an estimated 15,000 current participants who have been assessed to need

3 those services and who currently receive them, and denial of services to otherwise qualified future

4 ADHC applicants. Defendants have targeted March 1, 2010 for the second cutback to go into effect.

5

5. Without vital community-based ADHC services, or in the alternative, provision of

6 alternative services to which Plaintiffs and Class Members are entitled, without interruption, under

7 California’s Medi-Cal program, Plaintiffs will experience immediate and irreparable harm.

8 Plaintiffs and other Class Members are at risk of physical and/or mental deterioration in health and

9 functioning, and will be forced into hospitals and nursing facilities due to Defendants’ actions and

10 inactions in violation of the Americans with Disabilities Act of 1990 (ADA), (42 U.S.C. §§ 12101-

11 12213 (West 2008)), Section 504 of the Rehabilitation Act of 1973 (Section 504), (29 U.S.C.

12 §§ 794-794a (West 2007)), Title XIX of the Social Security Act (Medicaid Act), (42 U.S.C. § 1396a

13 – 1396v (West 2009)), and California Government Code section 11135 (Cal. Gov’t. Code § 11135

14 (West 2007)).

15

II. JURISDICTION

16

6. This is an action for declaratory and injunctive relief for violation of the Due Process

17 Clause of the Fourteenth Amendment to the U.S. Constitution; Title XIX of the Social Security Act,

18 (the Medicaid Act), (42 U.S.C. §§ 1396a-1396v); Title II of the Americans With Disabilities Act of

19 1990 (ADA), (42 U.S.C. § 12132); and Section 504 of the Rehabilitation Act of 1973 (Section 504),

20 (29 U.S.C. § 794).

21

7. Jurisdiction is based 28 U.S.C. §§ 1331 and 1343; Title II of the ADA, and Section

22 504. Plaintiffs’ claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201 -

23 2202. At all times relevant to this action, Defendants have acted under color of state law.

24

8. The Court has Supplemental Jurisdiction over Plaintiffs’ state claim pursuant to

25 28 U.S.C. § 1367 and California Government Code section 11139.

26

III. VENUE

27

9. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

28
2 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 § 1391(b), because the Defendants operate and perform their official duties therein and thus reside

2 therein for purposes of venue, and because a substantial part of the events and omissions giving rise

3 to the claims herein occur in counties that are part of the Northern District of California.

4

IV. INTRADISTRICT ASSIGNMENT

5

10. Pursuant to Civil Local Rule 3-2(c) this action should be assigned to the San

6 Francisco or Oakland Division of the Northern District of California, because a substantial part of

7 the events and omissions giving rise to the claims herein occur in counties in the Northern District of

8 California and certain Plaintiffs are residents of the City and County of San Francisco.

9

V. PARTIES

10 Plaintiffs

11

Lillie Brantley—Limitation of Benefits Subclass Representative

12

11. Named Plaintiff Lillie Brantley is an 84-year-old woman who has severe Alzheimer’s

13 disease, hyperlipidemia, a seizure disorder, and arterial fibrillation. She has had a stroke, and is very

14 frail. She receives Medi-Cal, and currently attends ADHC five days a week.

15

12. Ms. Brantley needs supervision with feeding and transferring; and assistance with

16 ambulation, bathing, dressing, and toileting. She is totally dependent on others for housework,

17 hygiene, laundry, shopping, transportation, medication management, money management, accessing

18 resources, and meal preparation.

19

13. Because of her cognitive impairments, Ms. Brantley can never be left alone. She is at

20 high risk for falls. She requires regular nursing services five times per week to monitor her medical

21 conditions.

22

14. Ms. Brantley is proceeding in this litigation through her Guardian ad Litem Chauncey

23 McLorin, as Ms. Brantley is not able to proceed on her own behalf. Ms. McLorin, who is Ms.

24 Brantley’s niece, has agreed to act as her Guardian ad Litem, and is qualified to do so. She will

25 competently proceed on Ms. Brantley’s behalf. An application to appoint Ms. McLorin to act as a

26 Guardian ad Litem in this action has been granted by this court.

27

15. Ms. Brantley and her family wish for her to remain in her family home with her

28
3 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 current level of ADHC services, and she is at imminent risk of institutionalization in a nursing

2 facility if these services are reduced to three days per week.

3

Gilda Garcia—Limitation and Termination of Benefits Subclasses Representative

4

16. Named Plaintiff Gilda Garcia is a 77–year-old woman with unstable diabetes,

5 hypertension, Bells’ Palsy, and kidney problems. She is Medi-Cal eligible and currently receives

6 five days a week of ADHC.

7

17. Ms. Garcia needs supervision with ambulation, dressing, toileting, and transferring.

8 She needs assistance with bathing, accessing resources, hygiene, meal preparation, shopping, and

9 transportation. She is dependent on others for housework and laundry. She uses a cane for

10 ambulation.

11

18. In order to remain in her own home in the community, Ms. Garcia requires the

12 frequent daily medical monitoring she receives with her current level of ADHC services, and she is

13 at imminent risk of hospitalization due to her unstable diabetes if her services are reduced or

14 terminated. According to her ADHC provider, Ms. Garcia will no longer be eligible for ADHC once

15 the new, restrictive eligibility requirements are imposed.

16

Allie Jo Woodard-- Limitation of Benefits Subclass Representative

17

19. Plaintiff Allie Jo Woodard is a 79-year-old woman who is diagnosed with bipolar

18 affective disorder, depression, diabetes, glaucoma, hypertension, and osteoarthritis. Ms. Woodard

19 receives Medi-Cal and is currently attending ADHC five days per week.

20

20. Ms. Woodard needs supervision with ambulation, toileting, and transferring; and

21 assistance with bathing and dressing. She is totally dependent on others for housework, hygiene,

22 laundry, shopping, transportation, medication management, money management, accessing

23 resources, and meal preparation.

24

21. Ms. Woodard is proceeding in this litigation through her Guardian ad Litem Linda

25 Gaspard-Berry as she is not able to proceed on her own behalf. Ms. Gaspard-Berry, who is Ms.

26 Woodard’s daughter, has agreed to act as her Guardian ad Litem, and is qualified to do so. She will

27

28
4 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 competently proceed on Ms. Woodard’s behalf. An application to appoint Ms. Gaspard Berry to act

2 as a Guardian ad Litem in this action has been granted by this court.

3

22. Ms. Woodard and her family want her to remain in her own home with her current

4 level of ADHC services, and she is at imminent risk of institutionalization if these services are

5 reduced to three days per week.

6

Harry Cota – Termination and Limitation of Benefits Subclasses Representative

7

23. Named Plaintiff Harry Cota is a 60-year-old man with a left-sided hemiparesis from a

8 stroke, hypertension, insulin dependent diabetes, a spinal cord injury following an automobile

9 accident, arthritis, a peptic ulcer, a seizure disorder and obstructive sleep apnea. He is Medi-Cal

10 eligible. Mr. Cota lives alone in Hayward California, and attends the Lifelong Medical Center

11 ADHC program in Oakland five days a week.

12

24. Mr. Cota needs supervision with ambulation, and assistance with accessing resources,

13 housework, meal preparation, shopping, and transportation. He is dependent on others for laundry.

14 He primarily uses a wheelchair for ambulation, though sometimes also uses a walker.

15

25. In order to maintain his health and safety, and remain living in his own home, Mr.

16 Cota relies on the five days per week of skilled care, medical monitoring, physical therapy, and

17 social support he receives through ADHC. He is at high risk for falls and would be at risk of

18 hospitalization and eventual nursing home placements without ADHC.

19

Sumi Konrai --Termination and Limitation of Benefits Subclasses Representative

20

26. Named Plaintiff Sumi Konrai is an 87-year-old woman with dementia, arthritis,

21 hypertension, and a history of depression. Ms. Konrai is Medi-Cal eligible and receives ADHC

22 services five days a week. Ms. Konrai lives alone in Walnut Creek California and attends the Mt.

23 Diablo Adult Day Health Care Center in Pleasant Hill California.

24

27. Ms. Konrai needs supervision with bathing, dressing, and hygiene, and assistance

25 with housework. She is totally dependent on others for medication management, accessing

26 resources, laundry, meal preparation, shopping, and transportation. She can feed herself, but she

27 needs to have her food portions prepared specially.

28

5 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

28. In order to remain in her own home in the community, Ms. Konrai relies upon the

2 daily skilled care and medical monitoring she receives with her current level of ADHC services, and

3 she is at risk of nursing facility placement due to her dementia and frailty if she loses ADHC

4 services.

5

29. Ms. Konrai is proceeding in this litigation through her Guardian ad Litem Casey

6 Konrai, as she is not able to proceed on her own behalf. Casey Konrai, who is Ms. Konrai’s

7 daughter-in-law, has agreed to act as her Guardian ad Litem and is qualified to do so. She will

8 competently proceed on Ms. Konrai’s behalf. An application to appoint Casey Konrai as Sumi

9 Konrai’s Guardian ad Litem in this action has been filed with this court.

10

Ronald Bell – Termination of Benefits Subclass Representative

11

30. Named Plaintiff Ronald Bell is a 45-year-old man with unstable diabetes, a seizure

12 disorder, organic brain syndrome, hypertension, arthritis, hyperlipidemia, and a cataract in one eye.

13 He is Medi-Cal eligible and has been approved by Medi-Cal for and receives ADHC services three

14 days per week at the Graceful Senescence Adult Day Health Care Program in Los Angeles,

15 California

16

31. Mr. Bell lives with his 78-year-old grandmother and caretaker Rozene Dilworth, who

17 also has diabetes. Because Mr. Bell is subject to seizures at any time, and because of his cognitive

18 impairments, his grandmother can never leave him alone.

19

32. Due to his cognitive impairments, Mr. Bell needs assistance with accessing resources,

20 housework, laundry, meal preparation, money management, and shopping, and is totally dependent

21 on others for transportation and medication management.

22

33. In order to remain in his own home, Mr. Bell relies upon the skilled care and medical

23 monitoring he receives with his current level of ADHC services, and he is at risk of emergency room

24 visits and hospitalizations, and eventual out-of-home placement due to his unstable diabetes, his

25 seizure disorder, and his cognitive impairments.

26

34. Ronald Bell is proceeding in this litigation through his Guardian ad Litem Rozene

27 Dilworth, as he is not able to proceed on his own behalf. Ms. Dilworth has agreed to act as his

28
6 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 Guardian ad Litem and is qualified to do so. She will competently proceed on Mr. Bell’s behalf. An

2 application to appoint Rozene Dilworth as Ronald Bell’s Guardian ad Litem in this action has been

3 filed with this court.

4 Defendants

5

35. Defendant California Department of Health Care Services (DHCS) is a state agency

6 which receives federal funds and is responsible for administering the federal Medicaid program,

7 entitled, “Medi-Cal” in California. Defendant DHCS is sued only under the Second Claim for Relief

8 (Section 504 of the Rehabilitation Act) and the Seventh Claim for Relief (Cal. Gov’t. Code

9 § 11135).

10

36. Defendant David Maxwell-Jolly is the Director of the California Department of Health

11 Care Services, a state agency which receives federal funds. Defendant Maxwell-Jolly is a public

12 agency director responsible for operation of a public entity, pursuant to 42 U.S.C. §§ 12131(1)(A)

13 and (B). Defendant Maxwell-Jolly is sued in his official capacity.

14

STATUTORY AND REGULATORY FRAMEWORK

15 Federal and State Anti-Discrimination Laws

16

37. In enacting the Americans With Disabilities Act, Congress found that “[i]ndividuals

17 with disabilities continually encounter various forms of discrimination, including…segregation…”

18 42 U.S.C. § 12101(a)(5). Title II of the Americans with Disabilities Act provides that “no qualified

19 individual with a disability shall, by reason of disability, be excluded from participation in or be

20 denied the benefits of services, programs, or activities of a public entity or be subjected to

21 discrimination by such entity.” 42 U.S.C. § 12132.

22

38. Regulations implementing Title II of the ADA provide: “A public entity shall

23 administer services, programs, and activities in the most integrated setting appropriate to the needs

24 of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (1991).

25

39. Section 504 of the Rehabilitation Act of 1973, on which the ADA is modeled, sets

26 forth similar protections against discrimination by recipients of federal funds, such as Defendant

27 herein. 29 U.S.C. §§ 794-794a. These protections include the prohibition against unnecessary

28
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1 segregation. Regulations implementing Section 504 require that a public entity administer its

2 services, programs and activities in “the most integrated setting appropriate” to the needs of

3 qualified individuals with disabilities. 28 C.F.R. § 41.51(d).

4

40. Regulations implementing Title II of the ADA and Section 504 also provide: “A

5 public entity may not, directly or through contractual or other arrangements, utilize criteria or other

6 methods of administration: (i) that have the effect of subjecting qualified individuals with

7 disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of

8 defeating or substantially impairing accomplishment of the objectives of the entity’s program with

9 respect to individuals with disabilities. . . .” 28 C.F.R. § 35.130(b)(3); 28 C.F.R. § 41.51(b)(3)(I); 45

10 C.F.R. § 84.4(b)(4).

11

41. ADA regulations further provide: “A public entity shall not impose or apply

12 eligibility criteria that screen out or tend to screen out an individual with a disability or any class of

13 individuals with disabilities from fully and equally enjoying any service, program, or activity, unless

14 such criteria can be shown to be necessary for the provision of the service, program, or activity being

15 offered.” 28 C.F.R. § 35.130(b)(8); see also parallel Section 504 regulations, 45 C.F.R.

16 § 84.4(b)(1)(iv).

17

42. ADA regulations further provide: “A public entity shall make reasonable

18 modifications in policies, practices, or procedures when the modifications are necessary to avoid

19 discrimination on the basis of disability, unless the public entity can demonstrate that making the

20 modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.

21 § 35.130(b)(7).

22

43. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581

23 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of

24 discrimination under Title II of the ADA. In doing so, the Court interpreted the ADA’s “integration

25 mandate” as requiring persons with disabilities to be served in the community when: (1) the state

26 determines that community-based treatment is appropriate; (2) the individual does not oppose

27 community placement; and, (3) community placement can be reasonably accommodated. 527 U.S.

28
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1 at 607.

2

44. Similar to the ADA, California’s anti-discrimination statute prohibits discriminatory

3 actions by the state and state-funded agencies or departments, and provides civil enforcement rights

4 for violations. Cal. Gov’t. Code §§ 11135-11139 (West 2007).

5 Medicaid and Medi-Cal Programs

6

45. Medicaid is a cooperative, jointly-funded program between the federal and state

7 governments that provides medical assistance to, inter alia, low-income elderly persons and persons

8 with disabilities. 42 U.S.C. §§ 1396-1396v. The purpose of Medicaid is to furnish, as far as

9 practicable, “medical assistance on behalf of …aged, blind or disabled individuals, whose income

10 and resources are insufficient to meet the costs of necessary medical services” and “to help such

11 families and individuals to attain or retain capability for independence or self-care…” 42 U.S.C.

12 § 1396-1.

13

46. On the federal level, Medicaid is administered by the Centers for Medicare and

14 Medicaid Services (CMS), an agency within the United States Department of Health and Human

15 Services (DHHS).

16

47. California has elected to participate in Medicaid, and, therefore, must comply with

17 the requirements of the federal Medicaid Act, and its implementing regulations. 42 U.S.C. § 1396-

18 1396v. California’s Medicaid program is known as “Medi-Cal”, and is set forth in the Welfare and

19 Institutions Code. Cal. Welf. & Inst. Code §§ 14000-14685 (West 2006).

20

48. States participating in Medicaid must designate a “single State agency” to administer

21 or supervise the administration of the plan. The California Department of Health Care Services

22 (DHCS) is the single state agency and administers the California Medicaid program.

23

49. States participate in Medicaid by submitting a State Medicaid Plan to CMS for

24 approval. 42 U.S.C. § 1396; 42 C.F.R. § 430.12 (2009). States can make changes to their Medicaid

25 programs by submitting state plan amendments to CMS for approval. Id. Coverage of certain

26 services is mandatory under Medicaid. For one, States that elect to participate in the Medicaid

27 program must cover nursing facility services for individuals over 21 years of age. 42 U.S.C.

28
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1 § 1396d(a)(4)(A). States must also offer: home health agency services, including skilled nursing

2 services; other rehabilitative services; and, at state option, physical therapy, occupational therapy,

3 and speech pathology. 42 U.S.C. § 1396d(a)(7); 42 C.F.R.§ 440.70 (2009). California offers

4 physical and occupational therapy and speech pathology as part of its home health agency service.

5 22 C.C.R. § 51337(a)(3).

6

50. California’s Medi-Cal plan provides payments for a variety of services, including but

7 not limited to: Adult Day Health Care, personal care services, home health agency services, skilled

8 nursing facility services, hospital services, specialty mental health services, targeted case

9 management, and medical and non-medical transportation.

10

51. “Categorically needy” Medicaid beneficiaries are beneficiaries who, in most cases,

11 receive cash public assistance to meet basic needs or who qualify under other categories set forth in

12 federal and state law. “Medically needy” Medicaid beneficiaries are beneficiaries who do not

13 receive cash public assistance because they have income or resources in excess of the requirements

14 for receipt of such assistance, but who, nevertheless meet categorical requirements for such

15 assistance, e.g., they are over age 65, blind, or disabled, and have medical expenses which are high

16 enough to reduce their available monthly income to a specified low level.

17

52. Under federal Medicaid requirements, states must provide comparable benefits, i.e.,

18 benefits that are equal in “amount, duration and scope,” to all categorically needy Medicaid

19 beneficiaries. 42 U.S.C. § 1396a(a)(10)(B)(i); 42 C.F.R. §§ 440.240(a), (b)(1) (1981). States must

20 also provide comparable benefits to all medically needy Medicaid beneficiaries. States can provide

21 benefits to the medically needy that are less in amount, duration and scope than benefits to the

22 categorically needy, but California has not elected to do so. Therefore (with certain exceptions for

23 some groups such as pregnant women, certain aliens and services provided pursuant to waiver of

24 federal requirements) California must provide benefits under its Medicaid program that are equal in

25 amount, duration and scope to all eligible beneficiaries.

26

53. A State Medicaid program must use “reasonable standards (which shall be

27 comparable for all groups …) for determining eligibility for and the extent of medical assistance

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1 under the plan which … are consistent with the objectives” of the program. 42 U.S.C.

2 § 1396a(a)(17).

3

54. The federal Medicaid Act requires that states provide individuals with the opportunity

4 to make application for medical assistance and that such assistance shall be furnished, as an

5 entitlement, with reasonable promptness to all eligible individuals. 42 U.S.C. § 1396a(a)(8).

6 Medicaid Due Process Requirements

7

55. Recipients and applicants for Medicaid services have rights to written notice and an

8 opportunity for a hearing before coverage of services can be denied, suspended, reduced or

9 terminated. Goldberg v. Kelly, 397 U.S. 254 (1970); 42 U.S.C. § 1396a(a)(3); 42 C.F.R.

10 §§ 431.200-250.

11

56. At least ten days before termination, suspension, or reduction of Medicaid eligibility

12 or covered services, written notice must be mailed to Medicaid beneficiaries. 42 C.F.R. §§ 431. 201,

13 .206(b), .211.

14

57. Such notice must include:

15

(a) a statement of the action the State intends to take;

16

(b) the reasons for the intended action;

17

(c) the specific regulations that support, or the change in federal or state law that

18

requires, the action;

19

(d) an explanation of the individual’s right to request an evidentiary hearing or a

20

state agency hearing;

21

(e) in cases of an action based on a change in law, the circumstances under which

22

a hearing will be granted; and

23

(f) an explanation of the circumstances under which Medicaid is continued if a

24

hearing is requested. 42 C.F.R. § 431.210.

25

58. The state agency must grant an opportunity for a hearing when a recipient requests it

26 because he or she believes that services have been denied, reduced, suspended, or terminated

27 erroneously. The agency need not grant a hearing if the sole issue is a Federal or State law requiring

28
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1 an automatic change adversely affecting some or all recipients. 42 C.F.R. §§ 431.220(a)(2), (b)

2 (emphasis added).

3

59. If, after notice of reduction, suspension, or termination of covered services is

4 provided, a recipient requests a hearing before the action takes place, services must be continued at

5 the same level until a decision is rendered after the hearing. 42 C.F.R. § 431.230.

6

60. Medi-Cal recipients are entitled to notice of their right to a fair hearing when there is

7 any action by the Department to deny, terminate, defer, or reduce any medical service. Cal. Code

8 Regs. tit. 22 § 51014.1(a).

9 Medi-Cal Covered Services

10

61. ADHC: Under Medi-Cal, each adult day health care center shall provide, directly on

11 the premises, at least the following services: 1) rehabilitation services, including physical therapy,

12 occupational therapy, and speech therapy; 2) medical services supervised by either the participant's

13 personal physician or a staff physician or both; 3) nursing services, including: (a) skilled nursing

14 care rendered by professional nursing staff, who evaluate the particular nursing needs of each

15 participant and provide the care and treatment indicated, and (b) self-care training and services

16 oriented toward activities of daily living and personal hygiene, such as toileting, bathing and

17 grooming; 4) nutrition services, including (a) a minimum of one meal per day and (b) dietary

18 counseling and nutrition education for participants and their families; 5) psychiatric and

19 psychological services including:(a) consultation, (b) individual assessment, (c) supervision of

20 treatment by a psychiatrist, psychologist, psychiatric social worker or psychiatric nurse, when

21 indicated; 6) medical social services to participants and their families to help with personal, family

22 and adjustment problems that interfere with the effectiveness of treatment; 7) recreational and social

23 activities suited to the needs of the participants and designed to encourage physical exercise to

24 prevent deterioration and to stimulate social interaction; and 8) non-medical and medical

25 transportation service for participants, if necessary, to and from their homes, including the use of

26 specially equipped vehicles when medically necessary to accommodate participants with severe

27 physical disabilities that limit mobility. Cal. Code Regs. tit. 22 (2009) § 54309(a); Cal. Welf. & Inst.

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1 Code § 14520, et seq. (West 2006): Cal. Health & Safety Code § 1570, et seq. (West 2006).

2

62. IHSS: Under Medi-Cal, Plaintiffs and class members are entitled to the following

3 personal care services in their own homes through the In-Home Supportive Services (IHSS)

4 program, depending on individual need: meal preparation and cleanup, feeding, transportation to

5 and from medical appointments, ambulation, bowel and bladder care, paramedical services,

6 protective supervision, and other personal care services. Cal. Welf. & Inst. Code §§ 12300,

7 14132.95, 14132.951.

8

63. Home Health: Under Medi-Cal, Plaintiffs and class members are entitled to the

9 following home health agency services depending on individual need and when prescribed by a

10 physician: part-time or intermittent skilled nursing services by licensed nursing personnel; in-home

11 medical care services as defined in California Welfare and Institutions Code section 14132(s);

12 physical, occupational or speech therapy; medical social services; home health aide services, which

13 include assisting with personal care, bathroom needs and ambulation, and performing medically

14 necessary household services to facilitate self-care such as changing the bed and light cleaning;

15 medical supplies other than drugs and biologicals; and the use of medical appliances, provided for

16 under an approved treatment plan. Cal. Code. Regs. tit. 22 §§ 51003, 51125, 51129, 51146, 51217,

17 51337, 51455, 51523; Cal. Health & Safety Code §§ 1725 et seq. (West 2006); Chapter 9.1., Medi-

18 Cal Manual of Criteria R-15-98E.

19

64. Nursing Facilities: Under Medi-Cal, Plaintiffs and class members are entitled to

20 skilled nursing facility services to provide skilled nursing care and supportive care to individuals,

21 depending on individual need. Cal. Health & Safety Code § 1250(c).

22

65. Acute Hospitals: Under Medi-Cal, Plaintiffs and class members are entitled to 24-

23 hour inpatient acute hospital care, including the following basic services: medical, nursing, surgical,

24 anesthesia, laboratory, radiology, pharmacy, and dietary services, depending on individual need.

25 Cal. Health & Safety Code § 1250(a).

26

66. Speciality Mental Health: Under Medi-Cal, Plaintiffs and Class members are entitled

27 to receive Specialty Mental Health services in the community, which include rehabilitation services

28
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1 and medication management, depending on individual need. Cal. Welf. & Inst. Code §§ 14021(a),

2 14021.4, 14681, 14683, 14684; Cal. Code Regs. tit. 9 §§ 1810.100; 1810.247.

3

67. Targeted Case Management: Under Medi-Cal, Plaintiffs and Class members are

4 entitled to receive Targeted Case Management (TCM) to assist them, depending on individual need,

5 in gaining access to needed medical, social, educational and other services, including assistance in

6 obtaining services covered under the Medi-Cal State Plan, assessment, service/support planning, and

7 monitoring services and supports to ensure their needs are met. Cal. Welf. & Inst. Code § 14132.44.

8

68. Transportation: Under Medi-Cal, Plaintiffs and Class members are entitled to receive

9 medical and non-medical transportation, depending on individual need. 42 C.F.R. § 431.53; Cal.

10 Welf. & Inst. Code §§ 14132(i), 14133.6, 14133.65, 14136 et seq.; Cal. Code Regs tit. 22

11 §§ 51151.7, 51151 et seq.

12 2009 Legislation Affecting ADHC – ABx4 5 (Chapter 5, Statutes of 2009)

13

69. ABx4 5 was passed by the Legislature on July 28, 2009 and was scheduled to go into

14 effect on August 27, 2009. The new law makes two significant cutbacks to the ADHC program.

15

70. First, effective August 27, 2009, ABx4 5 would have reduced Medi-Cal funding for

16 ADHC to a maximum of three days per week for all Medi-Cal beneficiaries, with no exceptions.

17 Cal. Welf. & Inst. § 14132(p)(2). This provision of ABx4 5 was enjoined by this Court on

18 September 10, 2009.

19

71. In addition to this cut, new arbitrary and restrictive eligibility requirements limiting

20 who will receive ADHC services will go into effect when the Director of DHCS provides a written

21 declaration that the restrictive eligibility requirements are ready to be implemented. Welf. & Inst.

22 Code § 14521.1. These restrictive eligibility requirements will terminate or deny ADHC services to

23 individuals based on their need for assistance with eight specified activities of daily living and need

24 for a certain institutional level of care. Defendants have targeted March 1, 2010 as the date that the

25 restrictive eligibility requirements will go into effect.

26

72. The statute provides that upon the declaration by the Director, Medi-Cal will once

27 again cover the ADHC benefit up to a maximum of five days per week for the participants who

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1 remain eligible.

2

73. The new requirements create arbitrary and ambiguous eligibility standards, which

3 will result in termination of ADHC for approximately 15,000 individuals who currently receive

4 ADHC services—40 % of the current participants, according to Defendants. These individuals will

5 be terminated entirely from the program, and otherwise qualified future applicants will be denied

6 ADHC services, leaving them at risk of institutionalization, hospitalization, or physical and/or

7 mental deterioration resulting in hospitalization and/or institutionalization. The legislation contains

8 no exceptions for individuals who would be at risk of institutionalization without ADHC services or

9 for whom adequate alternatives are not available. Cal. Welf. & Inst. Code §§ 14525.1, 14526.2,

10 14522.4.

11

FACTUAL ALLEGATIONS

12 Background of the ADHC Program

13

74. Adult Day Health Care is a community-based day program for low- income elderly

14 persons and younger disabled adults. ADHC programs provide comprehensive health and social

15 services centered on a multi-disciplinary team approach with skilled professionals providing

16 individualized care, treatment, and services to frail elderly and disabled persons, in order to

17 maintain their ability to reside in the community.

18

75. The California legislature specifically intended ADHC as an alternative to

19 institutional care. Cal. Health & Safety Code § 1570.2. The ADHC program includes as an

20 eligibility criteria for receipt of services that: “A high potential exists for the deterioration of the

21 participant’s medical, cognitive, or mental health condition or conditions in a manner likely to

22 result in emergency department visits, hospitalization, or other institutionalization if adult day

23 health care services are not provided.” Cal. Welf. & Inst. Code § 14526.1(d)(4). The goal of the

24 ADHC program is to prevent avoidable hospitalizations, emergency department use and nursing

25 facility placement by improving and stabilizing an individual’s daily functioning, medical

26 conditions and mental status. Health & Safety Code § 1570.2.

27

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1

76. Adult Day Health Care services are typically provided at a community based center.

2 Participants live at home or in a residential care facility, and are transported to and from the

3 program center on a daily basis. In order to attend ADHC, each participant’s conditions must

4 “require adult day health care services … on each day of attendance, that are individualized and

5 designed to maintain the ability of the participant to remain in the community and avoid emergency

6 department visits, hospitalizations, or other institutionalization.” Cal. Welf. & Inst. Code

7 § 14526.1(d)(5).

8

77. For one daily all-inclusive Medi-Cal reimbursement rate of $76.22, ADHCs are

9 required to provide skilled nursing, skilled social work, therapeutic activities, dietician and

10 nutritionally customized meal services, skilled physical therapy, skilled occupational therapy,

11 skilled speech and language pathology services, skilled mental health services and non-emergency

12 transportation to and from the center. The number of days of service per week are based on the

13 participant’s needs and Medi-Cal authorizations.

14

78. Statewide, participants funded through Medi-Cal comprise approximately 90% of

15 the 37,235 individuals projected to be served in ADHC centers within Fiscal Year 2009-10.

16 ADHCs serve a disproportionate number of Medi-Cal beneficiaries because the program was

17 designed, as a matter of public policy, to be a community-based alternative to nursing facilities for

18 low-income adults with disabling physical, mental, or cognitive conditions.

19

79. Based on the most recent available information provided by the California

20 Department of Aging, fifty-eight percent (58%) of those served in ADHC are 75 years of age or

21 older. Of that group, fourteen percent (14%) are over the age of 85, the most rapidly growing

22 segment of California’s population. There are few options comparable to ADHC services for those

23 older adults who choose to live out their lives with dignity and independence in their own homes or

24 in community-based settings.

25

80. While many persons served are elderly and physically frail, ADHCs also serve

26 elderly and younger adults with chronic and disabling mental health, cognitive or physical

27

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1 conditions: for example, chronic schizophrenia, mental retardation, Parkinson’s disease,

2 Alzheimer’s disease, stroke, or head injury.

3

81. Individuals wishing to receive ADHC services must have a physician submit

4 historical and physical information and participate in a three-day assessment performed by a multi-

5 disciplinary team of clinicians including a registered nurse, social worker, and therapist, at a

6 minimum. An Individual Plan of Care (IPC) is designed and submitted to Medi-Cal along with the

7 Treatment Authorization Request (TAR). All individuals with Medi-Cal insurance must be prior-

8 authorized by the DHCS through a local Medi-Cal field office to attend the ADHC center for a

9 certain number of days per week.

10

82. This approval to receive services is re-authorized every six months. The State

11 adjudicates the number of days of attendance based on the documented need of each beneficiary.

12 Prior to the passage of ABx4 5 in late July 2009, Medi-Cal funded up to five days per week of

13 attendance, depending on the individual need of the participant.

14

83. The State of California pays significantly more to institutionalize disabled individuals

15 in nursing facilities or other institutions than it does to cover their care in community-based settings,

16 e.g., ADHC services. The average daily rate for nursing facility services is approximately $161.81,

17 or $4,854.30 per month.

18

84. The ADHC Program helps prevent costly and unnecessary institutionalization, saving

19 the State significant funds, and, at the same time, improving the quality of life for the individuals

20 served.

21 Cuts in Days of Service from a Maximum of Five to No More than Three

22

85. The Governor signed ABx4 5 on July 28, 2009. The bill provides that, effective 30

23 days after the law is signed by the Governor, the maximum number of days that any ADHC

24 participant may be authorized for Medi-Cal funding to attend ADHC is cut from five to three,

25 regardless of current authorizations or the health condition of the individual. Cal. Welf. & Inst.

26 Code § 14132 (p)(2),. These cuts were preliminarily enjoined by this Court on September 10, 2009

27 and have not taken effect.

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1

86. Defendants have estimated that the reduction in the ADHC benefit from four or five

2 days to three days would affect approximately 8,000 individuals.

3

87. Upon information and belief, Defendants have not arranged for provision of

4 alternative, community-based Medi-Cal services to be provided to affected ADHC participants.

5 Defendants have represented that they do not intend to secure the alternative services that, pursuant

6 to this Court’s Preliminary Injunction Order, would allow them to cut ADHC to no more than three

7 days per week and thus, Welfare and Institutions Code section 14132(p)(2) has not been

8 implemented.

9

88. The group of individuals affected by the five-to-three day cut are members of the

10 “Limitation of Benefits Subclass” discussed below.

11 New, Restrictive ADHC Eligibility Requirements

12

89. New, restrictive eligibility requirements limiting who will receive ADHC services

13 will go into effect when the Director of DHCS provides a written declaration that the requirements

14 are ready to be implemented. The State has targeted March 1, 2010 as the date that these restrictive

15 eligibility requirements will go into effect. This declaration will trigger reinstatement of the

16 maximum number of days allowable under the ADHC program to five per week, but the new

17 eligibility restrictions will also be triggered, resulting in termination of all services for many current

18 beneficiaries who need and receive them, and denial of eligibility for otherwise qualified future

19 applicants to ADHC. There is no exception process for individuals who are determined to be at risk

20 of institutionalization without ADHC services or for whom adequate alternatives are not available.

21 Cal. Welf. & Inst. Code § 14525.1.

22

90. The new and restrictive eligibility criteria will require that in order to receive ADHC

23 services, individuals without any cognitive impairment must: (1) meet the Nursing Facility- level A

24 (Intermediate Care Facility) level of care set forth in Cal. Code of Regs. tit. 22 § 51120; and (2) due

25 to functional impairments, require “substantial human assistance” to perform two or more specified

26 activities: ambulation, bathing, dressing, self-feeding, toileting, transferring, medication

27 management, and hygiene. Cal. Welf. & Inst. Code § 14525.1.

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1

91. The new requirements define “substantial human assistance” as direct, hands-on

2 assistance provided by a qualified caregiver, which entails physically helping the participant perform

3 the activity. It entails more than cueing, supervision, or stand-by assistance and includes the

4 performance of the entire activity for participants totally dependent on human assistance. Cal. Welf.

5 & Inst. Code § 14522.4(a)(10).

6

92. The new level of care criteria that individuals without cognitive impairments must

7 meet, contained in title 22 of the California Code of Regulations, section 51120, state that

8 individuals must require “intermediate care services” which means that they, inter alia, “require

9 protective and supportive care, because of mental or physical conditions or both, above the level of

10 board and care.” (emphasis added). While “board and care” is not a term of art, and not defined by

11 ABx4 5 or the Defendants, the term loosely refers to licensed residential care facilities whose

12 services vary widely — some offer simply meals and housing, while others offer supportive services.

13 Upon information and belief, many current recipients will be terminated from, and otherwise

14 qualified future applicants will be denied access to, ADHC simply because of their living

15 arrangement.

16

93. Different eligibility requirements apply for certain individuals with cognitive

17 impairments – specifically, those individuals who: (1) are residents of an Intermediate Care Facility

18 for Persons with Developmental Disabilities (ICF-DD H), and have disabilities and a level of

19 functioning that are of such a nature that, without supplemental intervention through Adult Day

20 Health Care, placement to a more costly institutional level of care would be likely to occur; (2) have

21 chronic mental illness; (3) have moderate to severe Alzheimer's disease; or (4) have other “cognitive

22 impairments.” These individuals will be required to show a need for “assistance” with the eight

23 specified activities: ambulation, bathing, dressing, self-feeding, toileting, transferring, medication

24 management, and hygiene.

25

94. The new requirements define “assistance” as “verbal or physical prompting or aid,

26 including cueing, supervision, stand-by assistance, or hands-on support to complete the task

27 correctly.” Cal. Welf. & Inst. Code § 14522.4(a)(9).

28
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1

95. The new requirements define “cognitive impairment” as “the loss or deterioration of

2 intellectual capacity characterized by impairments in short- or long-term memory, language,

3 concentration and attention, orientation to people, place or time, visual-spatial abilities or executive

4 functions, or both, including, but not limited to, judgment, reasoning, or the ability to inhibit

5 behaviors that interfere with social, occupational, or everyday functioning due to conditions,

6 including, but not limited to, mile cognitive impairment, Alzheimer’s disease or other form of

7 dementia, or brain injury.” Cal. Welf. & Inst. Code § 14522.4(a)(11).

8

96. Upon information and belief, the definition of “cognitive impairment” does not

9 include people with mental retardation or other developmental disabilities who have not experienced

10 a “loss or deterioration of intellectual capacity” but rather, who were born with such impairments.

11 This means that such individuals, unless they reside in an ICF-DD H facility, will be subject to the

12 same stringent criteria as individuals without any cognitive impairment, rather than the less

13 restrictive requirements that apply to others with cognitive impairments or mental illness.

14

97. Upon information and belief, Defendants have interpreted eligibility requirements as

15 requiring that individuals demonstrate that they require assistance or substantial human assistance

16 with the eight specified activities at the ADHC center. Since participants do not typically bathe,

17 dress, or maintain hygiene at the center, individuals who require assistance or substantial human

18 assistance with those activities will not be allowed to count a need for such assistance towards

19 ADHC eligibility.

20

98. The new ADHC eligibility requirements are not a reasonable measure of need for

21 ADHC services. The new ADHC eligibility requirements are a particularly poor measure of need

22 for certain groups of ADHC recipients, such as those who are medically fragile or those who have a

23 high level of need in one area but not others, or those with cognitive impairments that affect their

24 judgment but not their ability to perform the eight specified activities.

25

99. Individuals not meeting the new eligibility requirements will have their services

26 terminated, and future, otherwise-qualified applicants will be denied ADHC services. Upon

27 information and belief, those individuals most likely to be affected by the new, restrictive eligibility

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1 requirements will include those with unstable diabetes or other unstable medical conditions, and

2 medically frail elders who do not meet the test of requiring “substantial human assistance” in

3 performing two of eight activities of daily living because they are ambulatory and can move their

4 limbs, but are dependent on the medical monitoring, nursing treatments, medication management,

5 structured environment and social work to maintain stability, and avoid hospitalization,

6 deterioration, or nursing facility placement. In addition, individuals harmed by the new eligibility

7 requirements are likely to be those with cognitive impairments such as mild Alzheimer’s disease,

8 mental illness, developmental disabilities or brain injury who are physically able to care for

9 themselves but who may forget to take medications or eat when alone, and require the structure,

10 stability, socialization, frequent assessment, and medication management offered by ADHC.

11

100. The group of individuals who will be terminated from or denied ADHC based on the

12 new, restrictive eligibility requirements are members of the “Termination of Benefits Subclass”,

13 discussed below.

14 Implementation of New, Restrictive Eligibility Requirements

15

101. ABx4 5 requires that prior to issuing the declaration that will implement the new,

16 restrictive eligibility requirements, Defendants shall meet and confer with stakeholders for

17 determining the methods and procedures necessary to implement the new requirements. Welf.

18 & Inst. Code § 14525.1(f) and (g). Defendants held two two-hour meetings, on November 17, 2009

19 and December 1, 2009, during which they reviewed the new eligibility requirements and draft

20 participant plan of care with attendees.

21

102. The ADHC providers in attendance at these meetings raised significant issues with

22 respect to definition and interpretation of terms; asked questions about the State’s expectation of the

23 role of ADHC providers — including provision of notice, hearings, and obligation to secure

24 alternative services; and requested training on the implementation of the new requirements. The

25 California Association of Adult Day Services (CAADS), provided a written list of questions and

26 concerns to the State.

27

103. Defendants have failed, and upon information and belief, will fail, to provide

28
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1 clarification as to essential definitional and procedural aspects of implementation of the new

2 eligibility requirements, and have declined to offer training to the ADHC providers who will be

3 required to conduct assessments and make eligibility determinations, despite repeated requests by

4 providers. Upon information and belief, Defendants have not responded adequately to the questions

5 raised by CAADS. Thus, there is a virtual certainty of overly broad, improper and inconsistent

6 application of the new requirements.

7

104. Defendants have failed to arrange for or provide information about securing

8 alternative community services, steps to take to avoid institutionalization, or procedures for

9 requesting reasonable accommodations.

10 Facts Related to Plaintiff Lillie Brantley-- Limitation of Benefits Subclass Representative

11

105. Lillie Brantley attends the Bayview Hunter’s Point ADHC program in San Francisco

12 California. She has been attending the program for three years. She is authorized to receive and

13 does receive Medi-Cal funded ADHC services five days a week. Her most current Individual Plan

14 of Care (IPC) is approved through February 28, 2010.

15

106. In accordance with her most recent IPC at the Bayview Hunter’s Point ADHC

16 program, Mrs. Brantley receives:

17

a) professional nursing services every day to monitor her hypertension, monitor and

18

control her seizures, and monitor her for weight loss;

19

b) personal care services every day to help her with feeding, toileting, and ambulation,

20

as well as monitoring her whereabouts;

21

c) social services every day to improve her mood and behaviors, which are

22

deteriorating due to her increasing dementia;

23

d) therapeutic activities to increase her interactions with others and reduce her

24

isolation;

25

e) physical therapy maintenance program twice per week to reduce her risk for falls and

26

maintain current functioning;

27

f) occupational therapy services for maintaining her functional strength; and

28
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1

g) nutritional monitoring because of her diagnosis of hypertension and her recent

2

weight loss.

3

107. Ms. Brantley’s most recent IPC documents that she is at high risk of

4 institutionalization if she does not receive ADHC services five days per week, due to her

5 inappropriate behavior and affect, two or more chronic medical conditions, poor judgment,

6 medication mismanagement, frailty, isolation, risk for falls, including forgetting to use her cane and

7 being unsafe in transfers, self neglect, and dementia-related behavioral problems.

8

108. Ms. Brantley can never be alone due to her cognitive and health impairments; in

9 addition to five days of attending and receiving services at the ADHC program, she receives the

10 maximum number of In-Home Supportive Services (IHSS) through the Medi-Cal program, 283

11 hours per month.

12

109. Ms. Brantley lives with her niece Chauncey McLorin and Ms. McLorin’s 15-year

13 old daughter. Ms. Brantley’s family will be forced to institutionalize her if she is not able to go to

14 the ADHC program five days a week, as Ms. McLorin cannot afford to quit her job, and Ms.

15 Brantley is already receiving the maximum amount of IHSS allowable by State law.

16

110. Plaintiff Lillie Brantley would be irreparably harmed by a reduction in ADHC

17 services to three days per week. Although Ms. Brantley is severely impaired by Alzheimer’s

18 disease, ADHC services five days per week enable her to live in a familiar environment with family

19 members who care for her and whom she recognizes and can interact with. She can go out to eat

20 with family, and attend church. However, because she is unable to be left alone for any period of

21 time, she would be at risk of serious injury if she were home alone during the time that ADHC is no

22 longer available. Given her family’s inability to stay at home with her for the days she would no

23 longer be able to go to ADHC, she would need to be placed in a nursing facility. Given her

24 cognitive condition, she would likely deteriorate rapidly in an unfamiliar environment such as a

25 nursing facility. Placement in an institution would be devastating to her, and to her family.

26

27

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1 Facts Related to Plaintiff Allie Jo Woodard-- Limitation of Benefits Subclass Representative

2

111. Allie Jo Woodard attends the Bayview Hunter’s Point ADHC program in San

3 Francisco California. She has been attending the program for nine years. She is authorized to

4 receive and does receive Medi-Cal funded ADHC services five days a week. Her most current IPC

5 is approved through December 31, 2009.

6

112. In accordance with her most recent IPC at the Bayview Hunter’s Point ADHC

7 program, Ms. Woodard receives:

8

a) professional nursing services every day to monitor her for fall risk, for her

9

hypertension, and for her pain and mobility related to her arthritis;

10

b) personal care services daily to monitor her exertion level to prevent cardiac

11

compromise;

12

c) social services intended to prevent psychiatric hospitalization in the form of group

13

activities, weekly psychological counseling, and daily check in with the program

14

social worker to reorient her to reality;

15

d) therapeutic activities to decrease her feelings of isolation, and improve her

16

interactions with peers; and

17

e) occupational therapy services for maintaining functional strength two days per week.

18

113. Mrs. Woodard’s current IPC states that she is at a high risk of institutionalization if

19 she does not receive ADHC services five days per week, based on her two or more chronic medical

20 conditions, poor judgment, medication mismanagement, frailty, isolation, risk for falls, and

21 dementia-related behavioral problems.

22

114. Ms. Woodard lives alone, however she is never able to actually be alone because she

23 is at risk of wandering. A few years ago she was missing for two full days.

24

115. Ms. Woodard has the maximum hours of IHSS allowable, 283 hours. In addition,

25 her daughter and son rotate spending the night with her. On the weekends her daughter Linda

26 Gaspard-Berry brings her to Ms. Gaspard-Berry’s home in Fremont.

27

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1

116. Ms. Woodard’s disability causes her to be very fragile emotionally, and she has had

2 frequent psychiatric hospitalizations as a result. She is also at risk of falling, and sometimes needs

3 constant physical and verbal cueing to use her walker.

4

117. Her daughter believes that Ms. Woodard’s attendance and services at the ADHC five

5 days per week are essential to support her, and that without the program’s services, Ms. Woodard

6 would have been hospitalized more frequently than she has been.

7

118. Both Ms. Gaspard-Berry and her brother work full-time and cannot afford to quit

8 their jobs to care for their mother. If her ADHC services are cut she will not be safe alone, and her

9 children will have to place her in an institution.

10

119. Plaintiff Allie Jo Woodard would be irreparably harmed by a reduction in ADHC to

11 three days per week. Ms. Woodward lives in her own home with family alternating caring for her,

12 and she receives the maximum amount of attendant care through the IHSS program. Given her

13 complex medical and mental health conditions, she cannot be left alone safely and there would be

14 no one to care for her on the days that she would no longer be able to attend ADHC. Ms. Woodard

15 relies on ADHC services for pain and medication management, and the socialization provided at

16 ADHC assists her mental health condition. Without five days per week of ADHC, Ms. Woodard

17 would need to be placed in a nursing facility. Most likely, she would deteriorate physically and

18 mentally if that were to occur.

19 Facts Related to Plaintiff Gilda Garcia—Limitation and Termination of Benefits Subclasses

20 Representative

21

120. Gilda Garcia attends the Institute on Aging ADHC program in San Francisco

22 California. She has been attending the program since 2005. She is authorized to receive and does

23 receive Medi-Cal funded ADHC services five days a week. Her most current IPC is approved

24 through April 30, 2010.

25

121. In accordance with her current IPC at the Institute on Aging ADHC program, Ms.

26 Garcia receives:

27

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1

a) professional nursing services five times a week to monitor her for hypoglycemic

2

reactions, and monitoring for joint and back pain;

3

b) personal care services five times a week to supervise her ambulation and prevent falls

4

due to her poor vision and impulse control;

5

c) social services five times a week to increase her opportunities for socialization and on

6

an as needed basis help her coordinate her IHSS and other social services;

7

d) therapeutic activities five times a week to increase her physical activity, leisure and

8

cognitive opportunities,

9

e) physical therapy three days per week to maintain her endurance and physical strength;

10

f) occupational therapy maintenance program two days per week to maintain her current

11

levels of functioning; and

12

g) registered dietician services to ensure she understands the importance of maintaining

13

a diabetic diet.

14

122. Ms. Garcia’s most recent IPC states that she is at a high risk of institutionalization if

15 she does not receive ADHC services five days per week, based on her two or more chronic medical

16 conditions, frailty, hyper/hypoglycemia, inappropriate affect/appearance or behavior, poor

17 judgment, risk for falls, and medication mismanagement.

18

123. Ms. Garcia lives alone, and receives limited IHSS services.

19

124. Ms. Garcia fears she will face hospitalization due to her unstable diabetes, and the

20 risks that this condition poses, including a heightened risk of falls.

21

125. Ms. Garcia is also highly dependent on the socialization that the ADHC program

22 offers her.

23

126. Ms. Garcia would be irreparably harmed by termination of her ADHC services, or

24 reduction in ADHC to three days per week. Ms. Garcia has unstable diabetes such that the frequent

25 medical monitoring by ADHC nursing cannot be replicated by periodic primary care visits. Ms.

26 Garcia relies on ADHC for medical stabilization.

27

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1

127. Without five days per week of ADHC, she is at high risk for acute hospitalization

2 and/or institutionalization. In addition, Ms. Garcia is protected from isolation and depression by

3 attending ADHC five days per week. If she were to remain at home every day she would likely see

4 a rapid decrease in her mental state and thus, her physical state, which would likely result in acute

5 hospitalization and institutionalization.

6

128. Upon information and belief, Ms. Garcia will be terminated completely from the

7 program by the new, restrictive eligibility requirements in California Welfare and Institutions Code

8 section 14521.1, as she does not have a cognitive impairment as defined by ABx4 5, and she does

9 not require “substantial human assistance” in two or more of the eight specified activities.

10

129. Ms. Garcia's need for ADHC services, particularly the skilled monitoring and

11 assessment of her diabetic condition, is as high or higher than the needs of others who, under the

12 new eligibility requirements, will not be terminated from or denied ADHC.

13 Facts Related to Plaintiff Harry Cota – Termination and Limitation of Benefits Subclasses

14 Representative

15

130. Harry Cota attends the Lifelong Medical Care ADHC program in Oakland

16 California. He has been attending the program since 2004. He is authorized to receive and does

17 receive Medi-Cal funded ADHC services five days a week. His most current IPC is approved

18 through April 30, 2010.

19

131. In accordance with his current IPC at the Lifelong Medical Care ADHC program,

20 Mr. Cota receives:

21

a) professional nursing services five times a week to monitor: for seizures; his low

22

salt/low calorie diet; his chronic pain related to carpel tunnel syndrome, myelopathy,

23

osteoarthritis, and spasticity;

24

b) professional nursing services on a weekly basis to monitor: his blood pressure; his

25

hypo/hyperglycemia; and his weight, including monitoring for edema;

26

c) professional nursing services on a monthly basis to monitor recurrent skin breakdown

27

due to venous insufficiency and occasional venous stasis dermatitis;

28
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1

d) personal care services five days a week to prevent incontinence related to use of Lasix

2

for edema;

3

e) social services five days a week to monitor depressive feelings;

4

f) therapeutic activities five days a week to provide social interaction and improve

5

personal friendships with peers, including bible study, a group which Mr. Cota leads

6

at the center;

7

g) physical therapy five times a week for his chronic pain and muscle spasms due to

8

stroke and spinal cord injury;

9

h) occupational therapy five times a week, including fine motor skill therapies three

10

times per week to maintain his fine motor skills; hot/cold therapies two times per

11

week to maintain and improve his fine motor coordination, range of motion, strength,

12

and to decrease pain; and paraffin treatments for his hands; and

13

i) registered dietician counseling services as needed to support his compliance with a

14

diabetic diet

15

132. Mr. Cota’s most recent IPC states that he is at a high risk of institutionalization if he

16 does not receive ADHC services five days per week, based on his two or more chronic medical

17 conditions, isolation, and risk for falls.

18

133. Mr. Cota lives alone, and receives 134.4 hours per month of IHSS services. He gets

19 up at 4:00 A.M. every morning in order to take his diuretic medication, and give himself enough

20 time before he arrives at the ADHC to ensure that when he is at the center he will not have episodes

21 of incontinence. Mr. Cota takes 13 prescribed medications and lives in constant pain as a result of

22 his stroke and spinal cord injury, as well as from diabetic neuropathy.

23

134. Mr. Cota fears he will face hospitalization without ADHC due to his multiple

24 medical conditions, and his risk for falls.

25

135. Mr. Cota relies on his attendance at the ADHC center for social and emotional

26 support. He is terrified at the idea he will no longer be able to attend the program because of what

27 it will mean for his emotional and physical health.

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1

136. Mr. Cota would be irreparably harmed by the loss of ADHC services. Mr. Cota’s

2 complex medical and physical needs are currently met by the daily skilled care and medical

3 monitoring through ADHC nursing and daily physical therapy services.

4

137. Without ADHC, he is at high risk for acute hospitalization and/or

5 institutionalization. In addition, Mr. Cota’s depression and isolation are alleviated by attending

6 ADHC five days per week. If he were to lose the services of the ADHC program, he would remain

7 at home alone for the majority of the time, and would likely see a rapid decrease in his mobility and

8 worsening of physical strength as well as his chronic pain due to the lack of physical and

9 occupational therapy. He would be at an increased risk for falls, skin ulcers related to diabetes, and

10 he would face severe isolation, all of which would likely result in acute hospitalization and

11 institutionalization.

12

138. According to Lifelong Medical Care ADHC, Mr. Cota will be terminated from the

13 program by the new, restrictive eligibility requirements in California Welfare and Institutions Code

14 section 14521.1, as he does not have a cognitive impairment as defined by ABx4 5, and does not

15 require “substantial human assistance” in two or more of the eight specified activities.

16

139. Mr. Cota’s need for skilled medical and therapeutic ADHC services is as high or

17 higher than the needs of others who, under the new eligibility criteria, will not be terminated from

18 or denied ADHC.

19 Facts Related to Plaintiff Sumi Konrai – Termination and Limitation of Benefits Subclasses

20 Representative

21

140. Sumi Konrai has been attending the Mt. Diablo Center for Adult Day Health Care

22 for three years. She is authorized to receive and does receive Medi-Cal funded ADHC services five

23 days a week. Her most current IPC is approved through December 31, 2009.

24

141. In accordance with her current IPC at the Mt. Diablo Center for Adult Day Health

25 Care program, Ms. Konrai receives:

26

27

28
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1

a) professional nursing services five days a week to monitor her for: altered

2

cardiovascular status related to her hypertension; adverse effects of psychotropic

3

medication; and for discomfort related to her migraines, as needed;

4

b) personal care services five days a week to: respond to her memory loss due to

5

dementia; support her maintenance of a healthy weight; and prevent falls through

6

verbal cueing;

7

c) social services five days a week to address her isolation and provide a structured

8

routine;

9

d) physical therapy five days a week to maintain her strength and mobility;

10

e) occupational therapy five days a week to maintain her range of motion in her upper

11

body.

12

f) registered dietician services on a daily and monthly basis to address her history of

13

weight loss and failure to thrive.

14

142. Ms. Konrai’s most recent IPC states that she is at a high risk of institutionalization if

15 she does not receive ADHC services five days per week, based on her poor judgment, medication

16 mismanagement, self-neglect, dementia-related behavioral problems, two or more chronic medical

17 conditions, isolation, frailty, and risk for falls.

18

143. Ms. Konrai lives alone, and receives 88.5 hours per month of IHSS services,

19 provided to her by her daughter-in-law and Guardian ad Litem Casey Konrai.

20

144. Ms. Konrai’s family believes that ADHC services are critical for her to continue to

21 be able to remain in the community. Before she began attending the ADHC program, she had

22 multiple hospitalizations for weight loss and dehydration caused by severe depression. With the

23 services of the center she is able to maintain her weight, and her depression has been lessened.

24

145. Ms. Konrai would be irreparably harmed by the loss of ADHC services. If Ms.

25 Konrai were to lose ADHC services, her family would have to institutionalize her, which would be

26 devasting for Ms. Konrai, who currently is able to interact with her family and community, and

27 maintain her functioning through the skilled services of ADHC.

28
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1

146. According to the Mount Diablo Center for Adult Day Health Care, they believe that

2 Ms. Konrai will be terminated from the program by the new, restrictive eligibility requirements in

3 California Welfare and Institutions Code section 14521.1, because although she has dementia, she

4 only needs “assistance” at the ADHC center with one of the eight specified activities, medication

5 management. Since Defendants have interpreted the eligibility requirements as meaning that

6 participants must show a need for services at the ADHC center, the fact that Ms. Konrai requires

7 assistance with bathing, dressing and hygiene doesn’t count towards eligibility for ADHC.

8 Moreover, although she needs to have her food portions specially prepared to encourage sufficient

9 food intake, she can eat independently. She thus does not qualify as requiring assistance with self-

10 feeding, according to the ADHC provider’s understanding of that term. Defendants have not

11 provided any clarification of the scope of “self-feeding” for purposes of ADHC eligibility.

12

147. Ms. Konrai's need for skilled medical and therapeutic ADHC services is as high or

13 higher than the needs of others who, under the new eligibility criteria, will not be terminated or

14 denied from ADHC.

15 Facts Related to Plaintiff Ronald Bell – Termination of Benefits Subclass Representative

16

148. Ronald Bell has been attending the Graceful Senescence ADHC program since

17 January 2009. He lives with his grandmother and Guardian ad Litem, Rozene Dilworth, who raised

18 him, and who provides him with 47.6 hours per month of IHSS services. He is authorized to

19 receive and does receive Medi-Cal funded ADHC services three days a week. His most current IPC

20 is approved through January 31, 2010.

21

149. In accordance with his current IPC at the Graceful Senescence ADHC program, Mr.

22 Bell receives:

23

a) professional nursing services three days a week to monitor: his diabetes, including

24

pain and numbness due to diabetic neuropathy; any changes in cognitive or visual

25

status; for seizures; his diabetic diet; his cognitive status; and his blood pressure;

26

b) personal care services three days a week to observe for changes with his self-care

27

abilities and promote self-care, as well as to monitor him for falls due to seizures;

28
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1

c) social services on an as needed basis to maintain cognitive functioning, and support

2

his remaining in the community, including group counseling twice per week.

3

d) therapeutic activities three days a week to assist with his interactions with peers;

4

e) physical therapy services three days a week to maintain and/or increase his functional

5

mobility, strength, and endurance, and prevent physical decline;

6

f) occupational therapy services three days a week to maintain or improve his strength,

7

endurance, and range of motion;

8

g) registered dietician services to support compliance with a modified diet related to his

9

diabetes and high cholesterol, including through providing him a modified diabetic

10

diet for both breakfast and lunch three days a week;

11

h) mental health services, on a one-on-one basis, twice a month and as needed to assist

12

him with coping skills and decrease his depression and social isolation;

13

150. Mr. Bell’s most current IPC states that he is at risk of institutionalization due to his

14 poor judgment, medication mismanagement, two or more chronic conditions, and isolation.

15

151. Prior to receiving ADHC services, Mr. Bell’s blood sugar levels fluctuated wildly,

16 and he was taken to the emergency room on average more than once per month.

17

152. Mr. Bell began receiving ADHC services in January 2009, and since then his blood

18 sugar levels have stabilized and his trips to the emergency room have been reduced significantly.

19

153. Mr. Bell’s grandmother believes that ADHC services are critical for Mr. Bell to

20 continue to be able to remain in the community in part due to his difficulty complying with a

21 diabetic diet, as well as his inability to administer his own insulin. The ADHC arranged for a lock

22 box at the house so that Mr. Bell cannot access the insulin, and his blood sugar levels, though still

23 elevated, are now generally under control. Mr. Bell has not needed emergency services since May

24 2009.

25

154. Mr. Bell would be irreparably harmed by the loss of ADHC services. If Mr. Bell

26 were to lose ADHC services, he would use increased emergency services, require more

27 hospitalizations, and would face out-of-home placement.

28
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1

155. According to Graceful Senescence, Mr. Bell will be terminated from the program by

2 the new, restrictive eligibility requirements in California Welfare and Institutions Code section

3 14521.1, because although he has a cognitive impairment, he only needs “assistance” with one of

4 the eight specified activities, medication management.

5

156. Mr. Bell’s need for skilled medical and therapeutic ADHC services is as high or

6 higher than the needs of others who, under the new eligibility criteria, will not be terminated from

7 or denied ADHC.

8 Failure to Provide Adequate Notice and Pre-Termination Hearing

9

157. Plaintiffs have all been found eligible for and currently receive ADHC services on

10 an individualized basis as set forth in their Individual Plans of Care. As part of their ADHC

11 Individual Plan of Care (IPC), Plaintiffs have each been found eligible for specific ADHC services

12 on each day of attendance authorized by Medi-Cal. Plaintiff Lillie Brantley has a Medi-Cal

13 approved IPC through February 28, 2010 for five days a week of services through ADHC. Plaintiff

14 Allie Jo Woodard has a Medi-Cal approved IPC through December 31, 2009 for five days a week

15 of services through ADHC. Plaintiff Gilda Garcia has a Medi-Cal approved IPC through April 30,

16 2010 for five days a week of services through ADHC. Plaintiff Harry Cota has a Medi-Cal

17 approved IPC through April 30, 2010 for five days a week of services through ADHC. Sumi

18 Konrai has a Medi-Cal approved IPC through December 31, 2009 for five days a week of services

19 through ADHC. Ronald Bell has a Medi-Cal approved IPC through January 31, 2010 for three days

20 a week of services through ADHC.

21

Limitations of Benefits Subclass

22

158. On July 30, 2009, Defendant sent a fax to ADHC providers, stating that:

23

“Effective August 27, 2009. . . ..and until the State law is amended or

becomes inoperative, Medi-Cal will no longer approve or pay for a

24

beneficiary to attend an ADHC center for more than three days per week. If

your ADHC center currently has participants attending the ADHC center more

25

than three days per week pursuant to a currently approved Treatment

Authorization Request (TAR), DHCS will send those beneficiaries a notice

26

informing them that their authorized ADHC services will be reduced to a

maximum of three days of ADHC per week, effective 30 days after signing of

27

the Trailer Bill. In addition, DHCS will notify all Medi-Cal beneficiaries who

receive ADHC services of the reduction to this ADHC benefit. Copies of all

28

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1

notices released regarding ADHC benefit changes will be provided on the

DHCS website at www.dhcs.ca.gov and on the Medi-Cal website at

2

www.medi-cal.ca.gov. Please feel free to print, post, and/or distribute these

notices for your ADHC participants.”

3

4

159. Following this communication, Defendant posted a two-page notice on the DHCS

5 website. The first page, addressed to Medi-Cal beneficiaries, states that the “ADHC benefit is

6 reduced to a maximum of three days of ADHC per week.” The second page is directed at ADHC

7 participants affected by the cut and states:

8

“Dear Medi-Cal Beneficiary:

9

This is to notify you that a recent change in California law will reduce the

Adult Day Health Care benefit to a maximum of three days per week for any

10

beneficiary. This change will occur 30 days after signing of the law that

accompanies the State Fiscal Year 2009-2010 Budget. The Department of

11

Health Care Services records show that you are currently authorized to receive

four or more days per week of Adult Day Health Care. Effective August 27,

12

2009, Medi-Cal will only authorize and pay for a maximum of three days per

week of Adult Day Health Care. Due to this change of State law, carry-over

13

days and make-up days will not be allowed. If you have any questions, please

contact the Medi-Cal beneficiary Services line at 1-888-284-0623 or speak

14

with your ADHC provider.”

15

160. Upon information and belief, Plaintiffs Lillie Brantley, Gilda Garcia, Allie Jo

16 Woodard, Harry Cota and Sumi Konrai have not received individualized written notice of the cuts

17 to their services nor have they been informed of their right to hearing before services are denied,

18 suspended, reduced or terminated, nor about whether and how to assert their rights to alternative

19 services offered through Medi-Cal.

20

161. The above-described notice to Medi-Cal beneficiaries does not comply with federal

21 and state requirements governing notice and hearing because, among other reasons, it was not

22 mailed to beneficiaries and, moreover, fails to advise Plaintiffs of (a) their right to a fair hearing if

23 they are disagree with the reductions or terminations in services, (b) the manner in which they can

24 request a hearing, (c) their right to continuation of benefits pending a hearing.

25

162. Plaintiffs Brantley, Woodard, Garcia, and new Plaintiffs Harry Cota, Sumi Konrai

26 and Ronald Bell are representative of the broader population of ADHC participants throughout the

27

28
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1 state who would be affected by the cuts contained in ABx4 5 and who have not received required

2 notice and hearing rights.

3

Termination of Benefits Subclass

4

163. With respect to the Termination of Benefits subclass, upon information and belief,

5 Defendant does not intend to issue notice to the vast majority of potentially affected individuals.

6 Rather, individuals who are assessed by their ADHC provider and determined not to meet the new

7 eligibility requirements are supposed to receive a termination or denial notice from the ADHC

8 provider. For current participants, such notice will not offer them a pre-termination Medi-Cal

9 hearing nor will they be entitled to continuation of benefits pending the hearing. For the small

10 number of individuals whose ADHC provider determines meet the new eligibility requirements, the

11 ADHC provider will submit a Treatment Authorization Request (TAR) to the Medi-Cal field office

12 for approval. If the field office determines that the individual does not meet the new requirements,

13 then the field office will issue a Medi-Cal notice, offer a pre-termination hearing, and the

14 opportunity to have services continued pending the hearing.

15

164. Plaintiffs Garcia, Cota, Konrai, and Bell are representative of the broader population

16 of ADHC participants throughout the state who would be affected by the cuts contained in ABx4 5

17 and who have not received required notice and hearing rights.

18 Facts Related to Medi-Cal ADHC Participants Generally

19

165. All ADHC participants have been authorized to receive and do receive Medi-Cal

20 funded ADHC services in accordance with physician recommendations and an Individual Plan of

21 Care (IPC) submitted to and approved by Defendants.

22

166. Upon information and belief, virtually all ADHC participants are receiving services

23 between one and five days per week and have approved treatment authorizations approved by

24 Medi-Cal. Upon information and belief, ADHC participants have not received individualized

25 notification of the cuts or changes in services, nor has Defendant ensured that they are informed of

26 the availability of alternative services available under the Medi-Cal State Plan, such as home health

27 agency services, IHSS, rehabilitation services, specialty mental health services, targeted case

28
35 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 management, and transportation, nor have Defendants ensured that they have access to these

2 alternative services.

3

167. Upon information and belief, Defendant does not intend to provide such information

4 or secure alternative services for affected ADHC participants.

5

168. Denials, suspensions or termination of, or reductions to ADHC services will cause

6 Class Members to suffer decline in physical functioning, will lead to increased preventable

7 emergency room visits, and will lead to institutionalization.

8

169. Significantly, for many participants, such as people whose physical or cognitive

9 impairments are such that they cannot be left alone, or whose health conditions are extremely

10 unstable, or those whose families rely on the individual being out of home in order to work, sleep,

11 or care for other family members, the loss of one or two days, or complete termination of ADHC,

12 will mean imminent and irreparable harm, including hospitalization, out-of-home placement in a

13 nursing facility, or physical and/or mental deterioration resulting in hospitalization or

14 institutionalization.

15

170. To the extent there are any applicable administrative remedies, exhaustion on the

16 part of Plaintiffs would be futile. On August 10, 2009, Plaintiffs sent a demand letter to Defendants

17 requesting that the reduction, elimination or termination of services be halted until Defendants

18 provided Plaintiffs with due process, continued services and/or replacement services needed to

19 maintain them in the community in accordance with the law. On August 13, 2009, Defendants

20 responded by letter, refusing to do so.

21

VIII. CLASS DEFINITION AND ALLEGATIONS.

22

171. Pursuant to Rule 23(a) and Rule (b)(2) of the Federal Rules of Civil Procedure,

23 Plaintiffs Brantley, Woodard, Garcia, Cota, Konrai, and Bell bring this action on behalf of

24 themselves and all other persons similarly situated. Plaintiffs bring this action on behalf of a class

25 consisting of “all Medi-Cal beneficiaries in the State of California for whom Adult Day Health

26 Care benefits will be reduced, suspended, denied or terminated under the provisions of ABx4 5

27 (hereinafter the “Class”). Fed. R. Civ. P. 23(a), (b)(2).

28
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1

172. Plaintiffs Brantley, Woodard, Garcia, Cota, Konrai, and Bell also plead a subclass of

2 individuals as follows:

3

a. “Limitation of Benefits Subclass” to be defined as “all Medi-Cal

4

beneficiaries who, as of August 26, 2009, have been authorized to receive four

5

or five days of Adult Day Health Care Services by DHCS, and whose services

6

will be reduced to a maximum of three days under the provisions of ABx4 5.”

7

Plaintiffs Brantley, Garcia, Woodard, Cota, and Konrai are typical of this

8

subclass.

9

b. “Termination of Benefits Subclass” to be defined as “all present and future

10

Medi-Cal beneficiaries who have been authorized to receive any Adult Day

11

Heath Care services, and whose ADHC services will be reduced, suspended,

12

or terminated, and otherwise qualified future ADHC applicants who will be

13

denied ADHC services, when the eligibility and medical necessity

14

requirements of ABx4 5 become operative.” Plaintiffs Garcia, Cota, Konrai,

15

and Bell are typical of this subclass.

16

173. Numerosity: The Plaintiff class is so numerous that joinder of all its members is

17 impracticable. Upon information and belief, there are in excess of 37,000 persons in the class.

18 Upon information and belief, the “Limitation of Benefits subclass” consists of more than 8,000

19 people. Upon information and belief the “Termination of Benefits subclass” will consist of

20 approximately 15,000 people who will be terminated from ADHC. Joinder of individuals in the

21 subclasses is also impracticable because of the size of the subclasses, and because Class Members

22 lack the knowledge and financial means to maintain individual actions and are geographically

23 disbursed throughout the state.

24

174. Commonality: Common questions of law and fact predominate over questions

25 affecting individual Class Members. Questions of law and fact common to members of the class

26 include, but are not limited to: the fact that all Plaintiffs and Class Members have been determined

27 by Defendants to have a high potential for, and to need the ADHC services they receive on each day

28
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1 of attendance in order to avoid, emergency room visits, hospitalization or other institutionalization

2 (Cal. Welf. & Inst. Code §§ 14526.1(d)(4) and (5)); the fact that Plaintiffs and Class Members have

3 been determined to need Medi-Cal funded ADHC services that will be suspended, reduced, or

4 terminated, or they will otherwise be denied access to ADHC services, due to the common policies

5 and actions of Defendants that apply to all of the Class Members; the determination of whether

6 Defendants’ policies and actions violate federal and/or state law; the determination of whether

7 Defendant’s new, restrictive eligibility requirements are reasonable; and the determination of

8 whether Defendants have failed to give adequate notice and the opportunity for a pre-termination

9 hearing to all affected Class Members. The prosecution of separate actions by individual members

10 of the class would create a risk of inconsistent or varying adjudication, establishing incompatible

11 rules of law for the provision of services to people with disabilities served by the ADHC program.

12

175. Typicality: The claims of the Plaintiffs are typical of the claims of the class as a

13 whole and are typical of the claims of the subclasses in that the Plaintiffs and Class members

14 currently are Medi-Cal eligible ADHC participants and qualified individuals with disabilities, who

15 face the risk of institutionalization, hospitalization, and/or mental or physical deterioration resulting

16 in hospitalization and/or institutionalization, when subjected to the termination, suspension,

17 reduction or denial of ADHC services. The claims arise from the same unlawful and discriminatory

18 policies and practices of Defendants.

19

176. Adequate representation: The Plaintiffs will fairly represent and adequately protect

20 the interests of members of the class as a whole. The Plaintiffs do not have any interests

21 antagonistic to those of other Class Members. By filing this action, the Plaintiffs have displayed an

22 interest in vindicating their rights, as well as the claims of others who are similarly situated. The

23 relief sought by the Plaintiffs will inure to the benefit of members of the class generally. The

24 Plaintiffs are represented by counsel who are skilled and knowledgeable about civil rights litigation,

25 disability discrimination, Medicaid law, practice and procedure in the federal courts and the

26 prosecution and management of class action litigation.

27

28
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1

177. Defendants have acted, refused to act, or will act on grounds generally applicable to

2 the class, thereby making final injunctive and declaratory relief appropriate with respect to the class

3 as a whole under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Class Members share a

4 common need for ADHC services and/or replacement services and Defendants’ policies and actions

5 in reducing, suspending, denying or terminating ADHC services are applicable to the entire class.

6 A class action is superior to individual lawsuits for resolving this controversy.

7

178. Defendants’ actions, as alleged herein, have resulted in, and will continue to result in

8 irreparable injury to Plaintiffs and Class Members for which they have no plain, speedy, or

9 adequate remedy at law. Plaintiffs and Class Members will suffer irreparable injury in that they

10 will be placed at risk of institutionalization, hospitalization, or deterioration resulting in

11 hospitalization and/or institutionalization.

12

179. An actual controversy exists between Plaintiffs and Class Members and Defendants

13 in that Defendants are seeking to implement denials, suspensions, reductions and terminations of

14 Medi-Cal services to which Plaintiffs and Class Members are entitled, and which, if implemented

15 will place Plaintiffs and Class Members at risk of unnecessary institutionalization and that such

16 denial will violate the rights of Plaintiffs and Class Members under the Due Process Clause of the

17 Fourteenth Amendment to the United States Constitution, the Americans With Disabilities Act,

18 Section 504, the Medicaid Act, and California Government Code section 11135. Plaintiffs and

19 Class Members therefore seek a declaration as to their rights and Defendants’ corresponding duties

20 with respect to the matters alleged herein.

21

IX. LEGAL CLAIMS

22

FIRST CLAIM FOR RELIEF

23

(Defendant Director Maxwell-Jolly)

24

(Claim by both Limitation and Termination of Benefits Subclasses)

25

Violation of Title II of the Americans with Disabilities Act

26

180. Plaintiffs reallege and incorporate herein by reference each and every allegation and

27 paragraph set forth previously.

28
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1

181. Each named Plaintiff and Class Member is a “qualified individual with a disability”

2 within the meaning of the ADA in that they (1) have a physical impairment that substantially limits

3 one or more major life activities; and (2) meet the essential eligibility requirements for community-

4 based long-term care under California’s Medicaid program.

5

182. As to the Limitations of Benefits Subclass, Defendant has required that ADHC

6 services to Plaintiffs and Class Members arbitrarily be reduced from five days per week to no more

7 than three days per week without reassessment of need or the provision of alternative services they

8 need to avoid institutionalization, thereby placing Plaintiffs and Class Members at risk of

9 institutionalization in violation of the ADA’s integration mandate.

10

183. As to the Termination of Benefits Subclass, Defendant has imposed new, restrictive

11 eligibility requirements on Plaintiffs and Class Members which will result in complete termination

12 or denial of ADHC services regardless of their need for ADHC to remain safely in their own homes

13 or in community settings, and without securing alternative services they need to avoid unnecessary

14 institutionalization, thereby placing Plaintiffs and Class Members at risk of institutionalization in

15 violation of the ADA’s integration mandate.

16

184. As to the Termination of Benefits Subclass, Defendant has imposed arbitrary

17 eligibility requirements which unlawfully screen out or tend to screen out equally needy and

18 qualified classes of individuals with disabilities from fully and equally enjoying ADHC services,

19 based on their need for assistance with activities of daily living and/or level of care.

20

185. Defendant has discriminated against all Plaintiffs and Class Members in ways that

21 include, but are not limited to failing to provide reasonable modifications to programs and services.

22

186. Defendant has utilized criteria and methods of administration that subject Plaintiffs

23 and Class Members to discrimination on the basis of disability, including risk of unnecessary

24 institutionalization, by, including but not limited to the following: (1) failing to properly assess for

25 replacement services and supports that would enable Plaintiffs and Class Members to remain in the

26 community; (2) failing to provide ADHC or replacement services needed to enable Plaintiffs and

27 Class Members to remain in the community; (3) basing their decision on levels of service solely on

28
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1 economic considerations not taking into account the assessed needs of the participants; and

2 (4) allocating resources for institutional versus community long-term care contrary to the desires

3 and needs of people with disabilities.

4

187. Defendant’s actions are in violation of Title II of the ADA.

5

SECOND CLAIM FOR RELIEF

6

(Defendants DHCS and Director Maxwell-Jolly)

7

(Claim by both Limitation and Termination of Benefits Subclasses)

8

Violation of Section 504 of the Rehabilitation Act

9

188. Plaintiffs reallege and incorporate herein by reference each and every allegation and

10 paragraph set forth previously.

11

189. Each Plaintiff and Class Member is a “qualified person with a disability” within the

12 meaning of Section 504, because they (1) have physical and/or mental impairments that

13 substantially limit one or more major life activities; and (2) meet the essential eligibility

14 requirements for community-based services under California’s Medicaid programs.

15

190. As to the Limitations of Benefits Subclass, Defendants have required that ADHC

16 services to Plaintiffs and Class Members arbitrarily be reduced from five days per week to no more

17 than three days per week without reassessment of need or the provision of alternative services they

18 need to avoid institutionalization, thereby placing Plaintiffs and Class Members at risk of

19 institutionalization in violation of Section 504’s integration mandate.

20

191. As to the Termination of Benefits Subclass, Defendants have imposed new,

21 restrictive eligibility requirements on Plaintiffs and Class Members which will result in complete

22 termination or denial of ADHC services regardless of their need for ADHC to remain safely in their

23 own homes or in community settings, and without securing alternative services they need to avoid

24 unnecessary institutionalization, thereby placing Plaintiffs and Class Members at risk of

25 institutionalization in violation of Section 504’s integration mandate.

26

192. As to the Termination of Benefits Subclass, Defendants have imposed arbitrary

27 eligibility requirements which unlawfully screen out or tend to screen out equally needy and

28
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1 qualified classes of individuals with disabilities from fully and equally enjoying ADHC services,

2 based on their need for assistance with activities of daily living and/or level of care.

3

193. Defendants have discriminated against all Plaintiffs and Class Members in ways that

4 include, but are not limited to, failing to provide reasonable modifications to programs and services.

5

194. Defendants have utilized criteria and methods of administration that subject all

6 Plaintiffs and Class Members to discrimination on the basis of disability, including risk of

7 unnecessary institutionalization, by, including but not limited to the following: (1) failing to

8 properly assess for replacement services and supports that would enable Plaintiffs and Class

9 Members to remain in the community; (2) failing to provide ADHC or replacement services needed

10 to enable Plaintiffs and Class Members to remain in the community; (3) basing their decision on

11 levels of service solely on economic considerations not taking into account the assessed needs of

12 the participants; and (4) allocating resources for institutional versus community long-term care

13 contrary to the desires and needs of people with disabilities.

14

195. Defendants’ actions are in violation of Section 504 of the Rehabilitation Act.

15

THIRD CLAIM FOR RELIEF

16

(Defendant Director Maxwell-Jolly)

17

(Claim by both Limitation and Termination of Benefits Subclasses)

18

Claim under 42 U.S.C. § 1983, Deprivation of Federal Constitutional Rights –

19

Violation of Procedural Due Process Rights

20

196. Plaintiffs reallege and incorporate herein by reference each and every allegation and

21 paragraph set forth previously.

22

197. Defendant Maxwell-Jolly, as the Director of the Medicaid single state agency, is

23 ultimately responsible for administration of the Medi-Cal program, including ensuring the provision

24 of adequate notice and pre-termination hearing rights.

25

198. Plaintiffs receive ADHC services which are being cut to three days per week and/or

26 are being terminated by application of new eligibility and medical necessity criteria. Plaintiffs have

27

28
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1 not received notice informing them of their rights to a pre-termination or pre-reduction hearing or

2 been informed of their right to alternative services available through Medi-Cal.

3

199. Defendant’s practices and procedures alleged herein violate the Due Process clause

4 of the Fourteenth Amendment to the U.S. Constitution by, among other things, denying Plaintiffs

5 and Class Members adequate notice and the opportunity for a fair hearing prior to reduction,

6 suspension or termination of services previously authorized by the State.

7

200. In all of this, Defendant has, under color of state law, deprived Plaintiffs and Class

8 Members of rights, privileges or immunities secured to them by the Constitution of the United

9 States, in violation of 42 U.S.C. § 1983.

10

FOURTH CLAIM FOR RELIEF

11

(Defendant Director Maxwell-Jolly)

12

(Claim by both Limitation and Termination of Benefits Subclasses)

13

Violation of Medicaid Act, Failure to provide Opportunity for Hearing

14

201. Plaintiffs reallege and incorporate herein by reference each and every allegation and

15 paragraph set forth previously.

16

202. Defendant Maxwell-Jolly, as the Director of the Medicaid single state agency, is

17 ultimately responsible for administration of the Medi-Cal program, including ensuring the provision

18 of adequate notice and pre-termination hearing rights.

19

203. Pursuant to the Medicaid Act, the state of California has established a procedure to

20 provide a fair hearing to any Medi-Cal beneficiary whose services are denied, reduced, suspended,

21 or terminated. In denying, reducing, suspending, or terminating services to Plaintiffs and Class

22 Members as set forth above, Defendant has deprived Plaintiffs and Class Members of an

23 opportunity for a fair hearing in violation of 42 U.S.C. § 1396a(a)(3).

24

204. Defendant’s practices and procedures alleged herein violate 42 U.S.C § 1396a(a)(3)

25 by among other things, failing to ensure that individuals whose ADHC services will be denied,

26 suspended, terminated or reduced have access to a fair hearing.

27

28
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1

205. Defendant has under color of state law, deprived Plaintiffs and Class members of

2 rights or privileges and immunities secured to them by the Constitution and laws of the United

3 States in violation of 42 U.S.C. § 1983.

4

FIFTH CLAIM FOR RELIEF

5

(Defendant Director Maxwell-Jolly)

6

(Claim by Termination of Benefits Subclass Only)

7

Violation of Medicaid Comparability Requirement

8

206. Plaintiffs reallege and incorporate herein by reference each and every allegation and

9 paragraph set forth previously.

10

207. The California Legislature has enacted a statute that will reduce, suspend, deny or

11 terminate coverage of ADHC services for many eligible Medicaid beneficiaries based solely on

12 their ability to perform eight specified activities and their institutional level of care. Defendant, by

13 creating one eligibility standard for individuals with certain conditions or types of disabilities while

14 applying a separate standard for all other individuals, establishes Medi-Cal eligibility criteria in

15 contravention of the comparability provisions of the Medicaid Act. 42 U.S.C. § 1396a(a)(10)(B).

16

208. Defendant has, under color of state law, deprived Plaintiffs and Class members of

17 rights, privileges, or immunities secured to them by the Constitution and laws of the United States

18 in violation of 42 U.S.C. § 1983. In addition, ABx4 5 is in conflict with and inconsistent with

19 42 U.S.C. § 1396a(a)(10)(B) and therefore preempted by the Supremacy Clause of the United

20 States Constitution art. IV.

21

SIXTH CLAIM FOR RELIEF

22

(Defendant Director Maxwell-Jolly)

23

(Claim by Termination of Benefits Subclass Only)

24

Violation of Medicaid Reasonable Standards Requirement

25

209. Plaintiffs reallege and incorporate herein by reference each and every allegation and

26 paragraph set forth previously.

27

28
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1

210. Federal Medicaid law requires participating states to establish reasonable standards,

2 consistent with the objectives of the Medicaid Act, for determining the extent of covered services.

3 42 U.S.C. § 1396a(a)(17).

4

211. Pursuant to ABx4 5 and subsequent amendments, Defendant will provide ADHC

5 services for some Medi-Cal recipients, while denying the same services to other ADHC recipients

6 who have comparable needs, and will use eligibility criteria that do not provide a reasonable

7 measure of need for ADHC services.

8

212. ABx4 5 is inconsistent and in conflict with the reasonable standards requirements of

9 the federal Medicaid Act, 42 U.S.C. § 1396a(a)(17), and interpretive federal guidelines, and is thus

10 preempted by the Supremacy Clause of the United States Constitution, art. IV.

11

SEVENTH CLAIM FOR RELIEF

12

(Defendants DHCS and Director Maxwell-Jolly)

13

(Claim by both Limitation and Termination of Benefits Subclasses)

14

Violation of Government Code Sections 11135 and 11139

15

213. Plaintiffs reallege and incorporate herein by reference each and every allegation and

16 paragraph set forth previously.

17

214. Plaintiffs and Class Members are persons with disabilities within the meaning of

18 California Government Code section 11135(c) et seq. and its implementing regulations.

19

215. Plaintiffs and Class Members meet the essential eligibility requirements for Medi-

20 Cal services, including services necessary to maintain them in their homes in the community.

21

216. Defendants DHCS and Director Maxwell-Jolly conduct, operate or administer the

22 state Medicaid program, entitled Medi-Cal, which is directly funded, in part, by state financial

23 assistance within the meaning of California Government Code section 11135(a) and implementing

24 regulations.

25

217. Defendants’ actions, in denying, reducing, suspending or terminating community-

26 based Medi-Cal services and not assessing for or providing replacement services and placing

27 plaintiffs and Class Members at risk of institutionalization have discriminated against Plaintiffs and

28
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1 Class Members, thereby excluding them from participation in, denying them the benefits of, and

2 otherwise subjecting them to discrimination in violation of California Government Code section

3 11135 et seq. and implementing regulations.

4

218. Plaintiffs and Class Members further allege that violations of their rights under the

5 Americans with Disabilities Act and implementing regulations contained in the First Claim for

6 Relief are incorporated herein and constitute a violation of California Government Code section

7 11135 et seq. as well, as set forth in section 11135(b).

8

X. REQUEST FOR RELIEF

9

WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies

10 on behalf of themselves and all others similarly situated:

11

A. Assume jurisdiction over this action and maintain continuing jurisdiction until

12 Defendants are in full compliance with every order of this court;

13

B. Certify this action as a class action;

14

C. As to all Defendants, declare that Defendants’ policies, practices, acts and omissions,

15 in implementing and enforcing ABx4 5, as set forth above, violate Plaintiffs’ and Class Members’

16 rights under the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid

17 Act, the United States Constitution, and California Government Code section 11135 by, inter alia:

18

i. Denying Plaintiffs and Class Members their entitlement to services in the

19

most integrated setting;

20

ii. Discriminating against Plaintiffs and Class Members on the basis of disability,

21

and on the basis of severity of disability, by utilizing methods of

22

administration, adopting and applying policies, failing to make reasonable

23

modifications to programs and policies, and engaging in practices that result

24

in unnecessary segregation and institutionalization; and

25

iii. Failing to provide Medi-Cal covered services without interruption and without

26

adequate notice or opportunity for a fair hearing.

27

28
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1

D. Declare that Defendant Maxwell-Jolly’s denial, termination, reduction or suspension

2 of Plaintiffs’ and Class Members’ Medi-Cal-covered services to which they are entitled, without

3 adequate notice or opportunity for a fair hearing, and failure to provide adequate Medi-Cal-covered

4 alternative services to which they are entitled, without interruption of services, constitutes a denial of

5 due process of law guaranteed to them under:

6

i. The Fourteenth Amendment to the Constitution of the United States;

7

ii. The Medicaid program, Title XIX of the Social Security Act, Title 42 U.S.C.

8

§ 1396a – 1369v.

9

E. Declare that Defendants’ elimination of Plaintiffs’ Medicaid skilled nursing and

10 rehabilitation services provided through the ADHC program, without the provision of alternative

11 services in community-based settings which are the most integrated setting appropriate to the needs

12 of Plaintiffs and Class Members, and conditioning the receipt of medically necessary Medicaid

13 services on segregation in an institutional or non-community setting, violate laws which prohibit

14 discrimination on the basis of disability and unjustified institutionalization and which require

15 Defendants to administer their services and programs in the most integrated setting appropriate to the

16 needs of the individuals with disabilities, including:

17

i. The Americans with Disabilities Act (“ADA”), (42 U.S.C.A. §§ 12101-12213

18

(West 2005))

19

ii. Section 504 of the Rehabilitation Act (“Section 504”), (29 U.S.C.A. §§ 794-

20

794a (West 2006)),

21

iii. California Government Code section 11135. (Cal. Gov’t. Code § 11135

22

(West 2006)).

23

F. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

24 agents, employees, attorneys, and all persons who are in active concert or participation with them

25 from implementing or enforcing ABx4 5 in violation of Plaintiffs’ and Class Members’ rights under

26 the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid Act, the

27 United States Constitution, and California Government Code section 11135.

28
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1 For the “Limitation of Benefits Subclass” only:

2

G. Certify this action as a class action as to the Limitation of Benefits Subclass;

3

H. As to all Defendants, declare that Defendants’ policies, practices, acts and omissions,

4 in implementing and enforcing ABx4 5, as set forth above, violate Plaintiffs’ and Class Members’

5 rights under the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid

6 Act, the United States Constitution, and California Government Code section 11135 by, inter alia:

7

i. Denying Plaintiffs and Class Members their entitlement to services in the most

8

integrated setting;

9

ii. Discriminating against Plaintiffs and Class Members on the basis of disability, and on

10

the basis of severity of disability, by utilizing methods of administration, adopting

11

and applying policies, failing to make reasonable modifications to programs and

12

policies, and engaging in practices that result in unnecessary segregation and

13

institutionalization; and

14

iii. Failing to provide Medi-Cal covered services without interruption and without

15

adequate notice or opportunity for a fair hearing.

16

I. Declare that Defendant Maxwell-Jolly’s denial, termination, reduction or suspension

17 of Plaintiffs’ and Class Members’ Medi-Cal-covered services to which they are entitled, without

18 adequate notice or opportunity for a fair hearing, and failure to provide adequate Medi-Cal-covered

19 alternative services to which they are entitled, without interruption of services, constitutes a denial of

20 due process of law guaranteed to them under:

21

i. The Fourteenth Amendment to the Constitution of the United States;

22

ii. The Medicaid program, Title XIX of the Social Security Act, Title 42 U.S.C.

23

§ 1396a – 1369v.

24

J. Declare that Defendants’ elimination of Plaintiffs’ Medicaid skilled nursing and

25 rehabilitation services provided through the ADHC program, without the provision of alternative

26 services in community-based settings which are the most integrated setting appropriate to the needs

27 of Plaintiffs and Class Members, and conditioning the receipt of medically necessary Medicaid

28
48 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 services on segregation in an institutional or non-community setting, violate laws which prohibit

2 discrimination on the basis of disability and unjustified institutionalization and which require

3 Defendants to administer their services and programs in the most integrated setting appropriate to the

4 needs of the individuals with disabilities, including:

5

i. The Americans with Disabilities Act (“ADA”), (42 U.S.C.A. §§ 12101-12213

6

(West 2005))

7

ii. Section 504 of the Rehabilitation Act (“Section 504”), (29 U.S.C.A. §§ 794-

8

794a (West 2006)),

9

iii. California Government Code section 11135. (Cal. Gov’t. Code § 11135

10

(West 2006)).

11

K. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

12 agents, employees, attorneys, and all persons who are in active concert or participation with them

13 from implementing or enforcing ABx4 5 in violation of Plaintiffs’ and Class Members’ rights under

14 the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid Act, the

15 United States Constitution, and California Government Code section 11135;

16

L. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

17 agents, employees, attorneys, and all persons who are in active concert or participation with them

18 from reducing ADHC program benefits from five or four days to a maximum of three days to the

19 Plaintiffs and Class Members and reinstate full ADHC program benefits until such time as

20 Defendants provide Plaintiffs and Class Members the Medi-Cal skilled nursing, physical and

21 occupational therapy, and other Medi-Cal-covered alternative services Plaintiffs and Class Members

22 are entitled to in the most integrated and least restrictive setting appropriate to their needs.

23

M. Grant a preliminary and permanent injunction enjoining Defendant Maxwell-Jolly,

24 his officers, agents, employees, attorneys, and all persons who are in active concert or participation

25 with him from denying, terminating, reducing or suspending Plaintiffs’ and Class Members’ Medi-

26 Cal skilled nursing, physical and occupational therapy, and other services to which they are entitled,

27 until such time as alternative community-based services are provided by Defendant for each Plaintiff

28
49 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 and Class Member; and until Defendant provides Plaintiffs and Class Members full notice and due

2 process appeal rights from any denials, terminations, reductions or suspensions of their Medi-Cal

3 benefits, as required under the U.S. Constitution and the Medicaid Act.

4

N. Maintain the injunctions above until such time as skilled nursing, physical and

5 occupational rehabilitation therapy, and other services are provided to the extent required under

6 federal law and so as to ensure each Plaintiff and Class Member receives the services which meet

7 their needs in the most integrated setting appropriate to their needs.

8 For the “Termination of Benefits Subclass” only:

9

O. Certify this action as a class action as to the Termination of Benefits Subclass;

10

P. As to all Defendants, declare that Defendants’ policies, practices, acts and omissions,

11 in implementing and enforcing ABx4 5, as set forth above, violate Plaintiffs’ and Class Members’

12 rights under the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid

13 Act, the United States Constitution, and California Government Code section 11135, by, inter alia:

14

i. Denying Plaintiffs and Class Members their entitlement to services in the

15

most integrated setting;

16

ii. Discriminating against Plaintiffs and Class Members on the basis of disability,

17

and on the basis of severity of disability, by utilizing methods of

18

administration, adopting and applying policies, failing to make reasonable

19

modifications in programs and policies, imposing arbitrary and illegal

20

eligibility criteria, and engaging in practices that result in unnecessary

21

segregation and institutionalization; and

22

iii. Failing to provide Medi-Cal covered services without interruption and without

23

adequate notice or opportunity for a fair hearing.

24

Q. Declare that Defendant Maxwell-Jolly’s denial, termination, reduction or suspension

25 of Plaintiffs’ and Class Members’ Medi-Cal-covered services to which they are entitled, without

26 adequate notice or opportunity for a fair hearing, and failure to provide Plaintiffs and Class Members

27

28
50 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document74 Filed12/18/09 Page55 of 57

1 to adequate Medi-Cal-covered alternative services to which they are entitled, without interruption of

2 services, constitutes a denial of due process of law guaranteed under:

3

i. The Fourteenth Amendment to the Constitution of the United States;

4

ii. The Medicaid program, Title XIX of the Social Security Act, Title 42 U.S.C.

5

§ 1396a – 1396v.

6

R. Declare that Defendants’ elimination of Plaintiffs’ Medicaid skilled nursing and

7 rehabilitation services provided through the ADHC program, without the provision of alternative

8 services in community-based settings which are the most integrated setting appropriate to the needs

9 of Plaintiffs and Class Members, and conditioning the receipt of medically necessary Medicaid

10 services on segregation in an institutional or non-community setting, violate laws which prohibit

11 discrimination on the basis of disability and unjustified institutionalization and which require

12 Defendants to administer their services and programs in the most integrated setting appropriate to the

13 needs of the individuals with disabilities, including:

14

i. The Americans with Disabilities Act (“ADA”), (42 U.S.C.A. §§ 12101-12213

15

(West 2005))

16

ii. Section 504 of the Rehabilitation Act (“Section 504”), (29 U.S.C.A. §§ 794-

17

794a (West 2006)),

18

iii. California Government Code section 11135. (Cal. Gov’t. Code § 11135

19

(West 2006)).

20

S. As to Defendant Maxwell-Jolly, declare that Defendant’s new, restrictive eligibility

21 requirements violate the comparability and reasonable standards requirements of the Medicaid Act,

22 Title XIX of the Social Security Act, 42 U.S.C. §§ 1396a(a)(10)(B) and (17) and are preempted by

23 the Supremacy Clause;

24

T. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

25 agents, employees, attorneys, and all persons who are in active concert or participation with them

26 from implementing or enforcing ABx4 5 in violation of Plaintiffs’ and Class Members’ rights under

27

28
51 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case4:09-cv-03798-SBA Document74 Filed12/18/09 Page56 of 57

1 the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid Act, the

2 United States Constitution, and California Government Code section 11135.

3

U. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

4 agents, employees, attorneys, and all persons who are in active concert or participation with them

5 from denying, terminating, reducing, or suspending ADHC program benefits to Plaintiffs and Class

6 Members and reinstate full ADHC program benefits until such time as Defendants provide Plaintiffs

7 and Class Members the Medi-Cal skilled nursing, physical and occupational therapy, and other

8 Medi-Cal-covered alternative services Plaintiffs and Class Members are entitled to in the most

9 integrated and least restrictive setting appropriate to their needs.

10

V. Grant a preliminary and permanent injunction enjoining Defendant Maxwell-Jolly,

11 his officers, agents, employees, attorneys, and all persons who are in active concert or participation

12 with him from denying, terminating, reducing or suspending Plaintiffs’ and Class Members’ Medi-

13 Cal skilled nursing, physical and occupational therapy, and other services to which they are entitled,

14 until such time as alternative community-based services are provided by Defendant for each Plaintiff

15 and Class Member; and until Defendant provides Plaintiffs and Class Members full notice and due

16 process appeal rights from any denials, terminations, reductions or suspensions of their Medi-Cal

17 benefits, as required under the U.S. Constitution and the Medicaid Act.

18

W. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

19 agents, employees, attorneys, and all persons who are in active concert or participation with them

20 from implementing the restrictive eligibility requirements on ADHC participants provided for in

21 ABx4 5.

22

X. Maintain the injunctions above until such time as skilled nursing, physical and

23 occupational rehabilitation therapy, and other services are provided to the extent required under

24 federal law and so as to ensure each Plaintiff and Class Member receives the services which meet

25 their needs in the most integrated setting appropriate to their needs.

26

27

28
52 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1 For All Class Members:

2

Y. Grant a preliminary and permanent injunction compelling Defendants, their officers,

3 agents, employees, attorneys, and all persons who are in active concert or participation with them to

4 take all actions necessary within the scope of their authority to implement the above injunctions.

5

Z. Maintain the injunctions above until such time as skilled nursing, physical and

6 occupational rehabilitation therapy, and other services are provided to the extent required under

7 federal law and so as to ensure each Plaintiff and Class Member receives the services which meet

8 their needs in the most integrated setting appropriate to their needs.

9

AA. Waive the requirement for the posting of a bond as security for the entry of

10 preliminary relief, on the grounds of Plaintiffs’ indigency.

11

BB. Award the Plaintiffs the costs of this action and reasonable attorneys’ fees pursuant to

12 20 U.S.C. § 794a; 42 U.S.C. §§ 1988, 12133, 12205; California Code of Civil Procedure section

13 1021.5; and as otherwise may be allowed by law.

14 Dated: December 18, 2009

Respectfully Submitted,

15

DISABILITY RIGHTS CALIFORNIA

NATIONAL SENIOR CITIZENS LAW CENTER

16

AARP FOUNDATION LITIGATION

NATIONAL HEALTH LAW PROGRAM

17

18

19

By: ____/s/____________________________________

Elissa Gershon

20

Attorneys for Plaintiffs

21

22

23

24

25

26

27

28
53 BRANTLEY, ET AL. V. MAXWELL-JOLLY, ET AL., C09-03798 SBA; FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

 
 Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page1 of 26

1

2

3

4

5 UNITED STATES DISTRICT COURT
6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
7 OAKLAND DIVISION
8

9 HARRY COTA; GILDA GARCIA; ALLIE JO WOODARD, by her guardian ad litem Linda
10 Gaspard-Berry; HARRY COTA; SUMI KONRAI by her guardian ad litem Casey
11 Konrai; RONALD BELL by his guardian ad litem Rozene Dilworth, individually and on
12 behalf of all other similarly situated,

Case No: C 09-3798 SBA ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Docket 90

13

Plaintiffs,

14

vs.

15 DAVID MAXWELL-JOLLY, Director of the Department of Health Care Services, State of
16 California, DEPARTMENT OF HEALTH CARE SERVICES,
17 Defendants.
18

19 Plaintiffs are elderly persons and adults with physical and mental disabilities who bring
20 the instant class action suit on behalf of themselves and those similarly situated against
21 Defendants California Department of Health Care Services (DHCS) and its Director, David
22 Maxwell-Jolly, to enjoin funding cuts as mandated by Assembly Bill ABx4 5 (ABx4 5) in the
23 Medi-Cal Adult Day Health Care (ADHC) program. The Court previously entered a
24 preliminary injunction preventing Defendants from reducing the maximum number of days per
25 week of ADHC services from five to three.
26 The parties are now before the Court on Plaintiffs’ second Motion for Preliminary
27 Injunction. Specifically, Plaintiffs seek to prevent Defendants from implementing new, more
28

Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page2 of 26

1 restrictive eligibility requirements for ADHC services that will take effect on or about March 1,

2 2010. Plaintiffs allege that these new requirements will result in the loss of ADHC benefits to

3 themselves and potentially thousands of Class Members in violation of Title II of the

4 Americans with Disabilities (ADA), section 504 of the Rehabilitation Act, The Medicaid Act,

5 and various other state laws. Having read and considered the papers submitted and reviewed

6 the record in this action, the Court hereby GRANTS Plaintiffs’ motion for preliminary

7 injunction.1

8 I. BACKGROUND

9

A. OVERVIEW OF MEDICAID/MEDI-CAL

10

In 1965, Congress enacted Title XIX of the Social Security Act, more generally referred

11 to as Medicaid or The Medicaid Act, to provide states with funding to furnish medical

12 assistance to individuals “whose income and resources are insufficient to meet the costs of

13 necessary medical services.” 42 U.S.C. §§ 1396-1; Wilder v. Va. Hosp. Ass’n, 496 U.S. 498,

14 502 (1990). A state’s participation in Medicaid is voluntary, but when a state chooses to

15 participate, it must comply with the provisions of the Medicaid Act and its implementing

16 regulations. Alaska Dept. of Health and Social Servs. v. Cnts. for Medicare and Medicaid

17 Servs., 424 F.3d 931, 935 (9th Cir. 2005). Thus, to receive federal funds, states are required to

18 administer their programs in compliance with various federal requirements, including those set

19 forth in 42 U.S.C. § 1396a(a)(1)-(71). See also 42 C.F.R. §§ 430.0-456.725.

20

California participates in Medicaid through the California Medical Assistance Program,

21 also known as Medi-Cal, and has designated DHCS as the agency responsible for its

22 administration. See Cal. Welf. & Inst.Code §§ 10720, 14000. One of the benefits offered by

23 Medi-Cal is ADHC, which is a community-based program for low income seniors and younger

24 disabled adults. Muchmore Decl. ¶¶ 3-5. This program provides organized day care that

25 includes therapeutic, social and skilled nursing health activities for the purpose of restoring or

26

27 1 Pursuant to Federal Rule of Civil Procedure 78(b), the Court adjudicates the instant
28 motion without oral argument.

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Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page3 of 26

1 maintaining optimal capacity for self care. Id. ¶ 3; Missaelides Decl. ¶ 21. Services are

2 provided through privately-run ADHC centers, which provide a full range of services. Id.

3

ADHC providers must be licensed by the DHCS. Muchmore Decl. ¶ 4. Each center

4 must obtain authorization from DHCS for each day of service provided to Medi-Cal

5 beneficiaries. Id. ¶¶ 6, 8. Persons wishing to receive ADHC services must obtain their medical

6 history and physical information from their personal physician (if they have one) and

7 participate in a three-day assessment performed by a multi-disciplinary team of clinicians

8 including physicians, registered nurses, social workers, physical therapists, recreational

9 therapists and dieticians, among others. Missaelides Decl. ¶ 24. The multidisciplinary team

10 designs an Individual Plan of Care (IPC) that specifies the types of services the applicant

11 requires and the amount of time each week those services are necessary. Id. In order to

12 receive ADHC services, the participant must be certified in the IPC that he or she has been

13 determined to have a “high potential for the deterioration of their medical, cognitive, or mental

14 health condition or conditions in a manner likely to result in emergency department visits,

15 hospitalization or other institutionalization if ADHC services are not provided.” Id. ¶ 25. The

16 completed IPC is then sent for review to the Medi-Cal field office along with a Treatment

17 Authorization Request (TAR). Id. ¶ 24; Muchmore Decl. ¶¶ 6, 17. Approval for services

18 pursuant to the TAR must be reapproved by DHCS every six months. Missaelides Decl. ¶ 28;

19 Bailey Decl. ¶ 8.

20

At present, there are approximately 328 approved ADHC centers located in 34 of

21 California’s 58 counties. Missaelides Decl. ¶¶ 29-30. The projected number of monthly users

22 of ADHC services for Fiscal Year 2009-2010 is 36,860. Id. ¶ 32. Approximately 58% of

23 ADHC users are over the age of 75, and of that group, 14% are over the age of 85. Id. ¶ 33.

24 The average ADHC participant is 75 years of age and takes 6 or more medications per day. Id.

25 ¶ 35. More than two-thirds of those users face cardiovascular disease (39%), dementia (13%)

26 and diabetes (10%). Id. ¶ 35.

27

28

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Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page4 of 26

1

B. ABX4 5

2

Effective March 1, 2010, new medical necessity and eligibility criteria enacted under

3 ABx4 5 will apply to individuals seeking ADHC services. Bailey Decl. ¶ 3. Presently, all

4 participants must show that they require assistance or supervision with at least two of fifteen

5 qualifying daily activities, which serve as a measure of the individual’s overall physical, mental

6 or cognitive functioning abilities. Welf. & Inst.Code § 14525; 14526.2(d)(2)(A). These

7 activities are referred to as Activities of Daily Living (ADLs) or Instrumental Activities of

8 Daily Living (IADLs). Missaelides Decl. ¶ 48. Currently, there are six qualifying ADLs

9 (ambulation, bathing, dressing, self-feeding, toileting, and transferring) and nine IADLs

10 (accessing resources, housework, hygiene, laundry, meal preparation, medication management,

11 money management, shopping, and transportation). Id. The current eligibility criteria make no

12 distinction between individuals with chronic mental illness, moderate to severe Alheimer’s

13 disease, or other cognitive impairments. Id. ¶ 49.

14

ABx4 5 continues to require that individuals demonstrate two deficits; however, the

15 number of qualifying daily activities will be reduced from fifteen to eight areas of need. The

16 eight remaining functional impairments consist of ambulation, bathing, dressing, self-feeding,

17 toileting, transferring, medication management, and hygiene. Cal.Welf. & Inst. Code

18 §§ 14521.1(a)(2), 14526(d)(2)(A).2 The seven areas eliminated are transportation, money

19 management, shopping, meal preparation, laundry, accessing resources, and housework. Id.

20 According to Plaintiffs, approximately 8,000 to 15,000 individuals will lose their ADHC

21 services under the new qualifying criteria, irrespective of whether they are at risk of

22 institutionalization. Missaelides Decl. ¶ 47; Supp. Missaelides Decl. ¶¶ 15-16.

23

The new eligibility requirements also effectively create two categories of beneficiaries,

24 depending on whether the individual has “[1] chronic mental illness or [2] moderate to severe

25 Alzheimer’s disease or [3] other cognitive impairments . . . .” Cal.Welf. & Inst. Code

26 2 Plaintiffs assert that these activities must now be undertaken “while at the ADHC
27 center,” a point that Defendants vehemently dispute. Pls.’ Mot. at 4; Defs.’ Opp’n at 1. Because the “at the center” requirement is not critical to the Court’s analysis, the Court need
28 not resolve this dispute.

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Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page5 of 26

1 §§ 14525.1(b), (c), 14522.4(a)(11). Individuals who fall into any of these three categories must

2 show that they need “assistance” with two of the eight specified functional impairments (i.e.,

3 ambulation, bathing, dressing, self-feeding, toileting, transferring, medication management and

4 hygiene). Id. §§ 14525.1(a)(3)(B), 14526.2(d)(2)(B), 14522.4(a)(9).

5

Individuals who do not have chronic mental illness, moderate to severe Alzheimer’s

6 disease or other cognitive impairments, must show a heightened level of need in order to

7 qualify for services. First, such persons must demonstrate that they require “substantial human

8 assistance” to perform two of the eight specified activities. Cal.Welf. & Inst. Code

9 §§ 14525.1(a)(3)(A), 14526.2(d)(2)(B), 14522.4(a)(10). “Substantial human assistance” is

10 defined as “direct, hands-on assistance provided by a qualified caregiver, which entails helping

11 the participant perform the elements of ADLs and IADLs. It also includes the performance of

12 the entire ADL or IADL for participants totally dependent on human assistance.” Id.

13 § 14522.4(a)(10). Second, they must show the need for intermediate care services, as set forth

14 in 22 Cal.Code.Regs. § 51120. Cal.Welf. & Inst. Code § 14525.1(b).3

15

C. FACTS RELATING TO PLAINTIFFS4

16

1. Ronald Bell

17

Ronald Bell is a 45 year-old-man with diabetes, organic brain syndrome, a seizure

18 disorder, arthritis, hypertension, and hyperlipidemia. Dilworth Decl. ¶ 3; Nolcox Decl. ¶ 30.

19 He is Medi-Cal eligible and has been approved by Medi-Cal to receive three days a week of

20 ADHC services through the Graceful Senescence ADHC Program in Los Angeles, California.

21 Nolcox Decl. ¶ 30. Due to seizures, he cannot work. Dilworth Decl. ¶ 10.

22

23 3 Despite the Byzantine nature of these new requirements, there apparently is no money
24 budgeted to conduct training on the implementation of the new criteria. Supp. Missaelides Decl. ¶ 8.
25 4 The instant action was filed by Lillie Brantley (who recently passed), Allie Woodard
26 and Gilda Garcia. Plaintiffs Ronald Bell, Harry Cota and Sumi Konrai were joined as Plaintiffs in the First Amended Complaint to represent the subclass of individuals who face termination
27 of their ADHC benefits. 28

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Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page6 of 26

1

Mr. Bell lives with his 78-year old grandmother, Rozene Dilworth, who has raised him

2 since he was an infant. Id. ¶¶ 4, 7, 13. Ms. Dilworth, who suffers from arthritis, back

3 problems and an irregular heartbeat, has difficulty caring for her grandson, and both rely on the

4 ADHC services Mr. Bell receives to keep him safely at home with her. Id. ¶¶ 13, 21-23. In his

5 most recent Medi-Cal approved IPC, Mr. Bell is authorized to receive the following ADHC

6 services three days per week: professional nursing services; personal care; social services;

7 therapeutic activities; physical therapy; occupational therapy; and registered dietician services.

8 He also receives mental health services, on a one-on-one basis, twice a month and as needed to

9 assist him with coping skills and decrease his depression and social isolation. Nolcox Decl.

10 ¶ 34.

11

Due to his cognitive impairments, Mr. Bell needs assistance with accessing resources,

12 housework, laundry, meal preparation, money management, and shopping, and is totally

13 dependent on others for transportation and medication management. Dilworth Decl. ¶ 20;

14 Nolcox Decl. ¶ 30. Mr. Bell’s receipt of ADHC services has likely prevented him from

15 suffering from a catastrophic medical incident and has helped him avoid being placed in a

16 nursing home. Nolcox Decl. ¶ 35; Dilworth Decl. ¶¶ 21-25; Gardner Decl. ¶ 16. Because the

17 only qualifying factor he meets under the new criteria is assistance with medication

18 management, he will be terminated from ADHC under the new eligibility requirements, which

19 specify that the beneficiary must have two areas of need. Nolcox Decl. ¶ 35.

20

2. Harry Cota

21

Plaintiff Harry Cota is a 60 year-old man with a left-sided hemiparesis (muscle

22 weakness), hypertension, insulin dependent diabetes, arthritis, a peptic ulcer, a seizure disorder,

23 muscle spasms, neuropathy, myelopathy, and obstructive sleep apnea. French Decl. ¶¶ 22, 24;

24 Burke Decl. ¶ 6; Chinn Decl. ¶ 9. He is Medi-Cal eligible, and currently receives five days a

25 week of ADHC at Lifelong Medical Care ADHC in Oakland, California. French Decl. ¶ 22.

26 Mr. Cota lives alone and receives 134 hours of In Home Support Supportive Service (IHSS)

27 per month. French Decl. ¶¶ 22, 26. He takes thirteen prescribed medications for his multiple

28 chronic conditions. Id. ¶ 26.

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Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page7 of 26

1

Mr. Cota depends upon ADHC services to remain living as independently as possible in

2 the community. According to Michele Burke, the Nursing Supervisor for Lifelong, and Mr.

3 Cota’s treating nurse, “Mr. Cota has suffered from multiple disabling conditions for decades.

4 He tolerates excruciating pain, disabling spasticity and weakness and blood sugar

5 abnormalities. He has fought fiercely to maintain his independence — for instance, he gets up

6 at 4:00 AM every morning in order to take his high dose of diuretics and ensure that he has

7 enough time to use the bathroom before he leaves his home so that he will not have

8 incontinence at or on the way to the ADHC.” Burke Decl. ¶ 12. His treating physician,

9 Dr. Courtney Chinn, opines that “Mr. Cota has made the gains he has in terms of his mobility

10 as a direct result of the physical therapies he receives on a daily basis at the ADHC program.

11 [¶] In addition, his complex medical conditions, which are frequently unstable because of the

12 combination of effects from his diabetes, medication side effects, left-sided hemiparesis,

13 muscle spasms, and neuropathy, make the daily availability of skilled nursing a critical part of

14 his ability to remain safely in the community.” Chinn Decl. ¶¶ 12-13.

15

Mr. Cota’s most recent Medi-Cal approved IPC authorizes him to receive the following

16 ADHC services on a daily, weekly, and monthly basis: professional nursing; personal care

17 services; social services; therapeutic activities including social groups, physical therapy,

18 occupational therapy, and pain treatments; and registered dietician counseling services as

19 needed. French Decl. ¶ 24. Mr. Cota needs supervision with ambulation; assistance with

20 accessing resources, housework, meal preparation, shopping, and transportation; and is

21 dependent on others for laundry. Id. ¶ 23. He relies primarily on a wheelchair, although he

22 sometimes uses a walker. Id. Because Mr. Cota does not have a chronic mental illness,

23 Alzheimer’s disease or other cognitive impairments, and because he does not require

24 “substantial human assistance” with any of the qualifying factors, he is subject to termination

25 from ADHC under the new criteria. French Decl. ¶¶ 23, 27. Without ADHC services, Mr.

26 Cota is at risk for deterioration and injury, and faces hospitalization and nursing home

27 placements. Burke Decl. ¶¶ 16-17; see also Steinke Decl. ¶¶ 22-25; Chinn Decl. ¶¶ 11-16.

28

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Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page8 of 26

1

3. Sumi Konrai

2

Sumi Konrai is an 87 year-old woman with dementia, hypertension, and a history of

3 depression. Toth Decl. ¶ 33; Konrai Decl. ¶ 3. Mrs. Konrai has been attending the Mt. Diablo

4 Center for ADHC in Pleasant Hill, California, for four years. Toth Decl. ¶ 33. She is Medi-

5 Cal eligible and approved by Medi-Cal to receive ADHC services five days per week. Konrai

6 Decl. ¶ 5. Mrs. Konrai and her family rely on her receiving ADHC services five days a week

7 in order for her to be able to remain in her own apartment and avoid institutionalization. Id.

8 ¶ 16. Pursuant to her most current IPC, Mrs. Konrai receives, on a daily, weekly, or monthly

9 basis: professional nursing services; personal care services; assistance with consuming

10 appropriate and adequate nutrition; social services case management; therapeutic activities

11 including cognitive stimulation activities, physical therapy, and occupational therapy; and

12 registered dietician services to address her poor intake of food and history of failure to thrive.

13 Toth Decl. ¶ 37.

14

As set forth in her most current IPC, which was approved by the Mt. Diablo Center

15 multi-disciplinary team, Mrs. Konrai needs supervision with bathing, dressing, and hygiene,

16 and assistance with housework. Id. ¶ 35. She is dependent on others for medication and

17 money management accessing resources, laundry, meal preparation, shopping, and

18 transportation. She can feed herself, but she needs to have her food portions prepared specially.

19 Id. ¶¶ 35-36. Because the only qualifying factor she meets is assistance with medication

20 management, she may no longer will qualify for ADHC services when the new criteria go into

21 effect. Id. ¶ 39. Without ADHC services, Mrs. Konrai’s family will have to place her in a

22 nursing home. Konrai Decl. ¶ 16; see also Toth Decl. ¶ 52; Steinke Decl. ¶ 32.

23

4. Harm to Class Members

24

Based on the data presented, it appears that the new eligibility criteria could reduce the

25 number of persons eligible for ADHC services by twenty to forty percent. This translates into

26 approximately 8,000 to 15,000 affected individuals. Missaelides Decl. ¶¶ 32, 47; Supp.

27 Missaelides Decl. ¶¶ 15-16. The new requirements also will affect persons who remain eligible

28 for services. Many programs will be forced to discharge dozens of their participants, which

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Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page9 of 26

1 may jeopardize their ability to continue to operate, threatening access to services even for

2 people who remain eligible. McCloud Decl. ¶ 83; Regalia Decl. ¶¶ 22-24, 35; French Decl.

3 ¶ 18; Toth Decl. ¶¶ 28, 69; Puckett Decl. ¶ 24; Davis Decl. ¶ 24; Myers Purkey Decl. ¶¶ 25-26,

4 49; Nolcox Decl. ¶ 11.

5

D. PROCEDURAL HISTORY

6

Plaintiffs Lillie Brantley, Gilda Garcia and Allie Jo Woodward commenced the instant

7 action on August 18, 2009, alleging claims, inter alia, under the ADA and section 504 of the

8 Rehabilitation Act. DHCS and David Maxwell-Jolly, Director of DHCS, are named as

9 defendants. On September 10, 2009, the Court granted Plaintiffs’ motion for preliminary

10 injunction to enjoin Defendants from reducing ADHC services from a maximum of five days

11 to three days per week. See Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal.

12 2009). Among other things, the Court found that Plaintiffs had demonstrated a likelihood of

13 success on their claim that the elimination of up to two days per week of ADHC services

14 violates the ADA, and that Plaintiffs would suffer immediate and irreparable harm if an

15 injunction did not issue. Id. at 1175-77.

16

On December 18, 2009, Plaintiffs filed a First Amended Complaint for Injunctive and

17 Declaratory Relief (“Amended Complaint”), which joined Mr. Cota, Mrs. Konrai and Mr. Bell

18 as additional plaintiffs. The Amended Complaint alleges seven claims for relief: (1) Violation

19 of Title II of the ADA; (2) Violation of Section 504 of the Rehabilitation Act; (3) Violation of

20 Procedural Due Process Rights; (4) Violation of the Medicaid Act, Failure to Provide

21 Opportunity for Hearing; (5) Violation of Medicaid Comparability Requirement; (6) Violation

22 of Medicaid Reasonable Standards Requirement; and (7) Violation of Government Code

23 Sections 11135 and 11139.

24

Plaintiffs purport to bring this action on behalf of “all recipients of Medi-Cal in the

25 State of California who receive Adult Day Health Care Services whom Adult Day Health Care

26 Benefits will be reduced, suspended, denied or terminated under the provisions of ABx4 5[.]”

27 Am. Compl. ¶ 171. There also are two subclasses: (1) “Limitation of Benefits Subclass,”

28 consisting of “Medi-Cal beneficiaries who, as of August 26, 2009, have been authorized to

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1 receive five days of Adult Day Health Care Services by DHCS, whose services will be reduced 2 to a maximum of three days under the provisions of ABx4 5”; and (2) “Termination of Benefits 3 Subclass,” which is defined as “all present and future Medi-Cal beneficiaries who have been 4 authorized to receive any Adult Day Health Care services, and whose ADHC services will be

5 reduced, suspended, terminated, and otherwise qualified future ADHC applicants who will be

6 denied ADHC services, when the eligibility and medical necessity requirements of ABx4 5

7 become operative.” Id. ¶ 172a-b.

8

Presently pending before the Court is Plaintiffs’ Motion for Preliminary Injunction,

9 filed on January 19, 2010. In this motion, Plaintiffs seek to enjoin Defendants from 10 implementing the new eligibility requirements for ADHC services under ABx4 5, which are 11 scheduled to take effect on March 1, 2010. Plaintiffs allege that the new criteria, which the 12 State of California is attempting to implement to reduce its budget deficit, will result in the 13 indiscriminate termination of ADHC services to thousands of individuals who are at risk of 14 institutionalization. In response, Defendants contend that they have the right to cut services,

15 that the cutbacks are not discriminatory and that it is too early to determine precisely how

16 many individuals will lose eligibility for ADHC benefits. The parties have submitted

17 voluminous papers in support of their respective positions, and the motion is now ripe for

18 adjudication.

19 II. LEGAL STANDARD

20

The decision of whether to grant or deny a motion for preliminary injunction is a matter

21 of the district court’s discretion. Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d

22 1046, 1052 (9th Cir. 2009). The standard for assessing a motion for preliminary injunction is

23 set forth in Winter v. Natural Res. Def. Council, Inc., ---U.S. ---, 129 S.Ct. 365, 376 (2008).

24 “Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are

25 likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of

26 preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary

27 injunction is in the public interest.” Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.

28 2009). District courts are empowered to grant preliminary injunctions “regardless of whether

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1 the class has been certified.” Schwarzer, Tashima and Wagstaffe, Fed.Civ.P. Before Trial, §

2 10:773 at 10-116 (TRG 2008).

3 III. DISCUSSION

4

A. LIKELIHOOD OF SUCCESS ON THE MERITS

5

1. Medicaid Act Claims

6

Plaintiffs allege that the new eligibility requirements for ADHC services violate the

7 “comparability” and “reasonable standards” provisions of the Medicaid Act. The Court

8 discusses each claim in turn.

9

a) Reasonable Standards Requirement

10

The Medicaid Act requires that all participating states use “reasonable standards (which

11 shall be comparable for all groups) . . . for determining eligibility for and the extent of medical

12 assistance under the plan which . . . are consistent with the objectives” of the program. 42

13 U.S.C. § 1396a(a)(17). States generally have “broad discretion” under this provision to set

14 standards for determining the amount of medical assistance to be afforded. See State of Wash.

15 Dept. of Soc. and Health Servs. v. Bowen, 815 F.2d 549, 555 (9th Cir. 1987). Nevertheless, a

16 state may run afoul of the reasonable standards requirement where it seeks to impose eligibility

17 requirements that fail to reasonably measure the individual’s need for a particular service. V.L.

18 v. Wagner, --- F. Supp. 2d ---, 2009 WL 3486708 at *6, *9 (N.D. Cal., Oct. 23, 2009)

19 (enjoining California Department of Social Services from implementing new eligibility criteria

20 for In-Home Supportive Services that did not measure “the individual need of a disabled or

21 elderly person for a particular service.”).

22

Citing Watson v. Weeks, 436 F.3d. 1152, 1162 (9th Cir. 2006), Defendants argue, as a

23 threshold matter, that Plaintiffs lack standing to allege a violation of the reasonable standards

24 requirement because there is no private right of action to enforce its provisions. See Defs.’

25 Opp’n at 11. While it is true that Watson precludes Plaintiffs from bringing a claim under 42

26 U.S.C. § 1983 based on section 1396a(a)(17), it does not prevent them from stating a claim

27 under the Supremacy Clause. Indep. Living Cntr. of S. Cal. v. Shewry, 543 F.3d 1050, 1060

28 (9th Cir. 2008). In Indep. Living, plaintiffs brought a section 1983 action to enjoin

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1 enforcement of California Assembly Bill X35 (AB 5), which reduced the payments to Medi-

2 Cal providers by ten percent, on the ground that such reduction violated both the “quality of

3 care” and “access to care” requirements of 42 U.S.C. § 1396a(a)(30)(A). Id. at 1053. The

4 district court denied plaintiffs’ motion for preliminary injunction on the ground that section

5 1396a(a)(30)(A) does not confer a private right of action. Id. at 1054 (citing Sanchez v.

6 Johnson, 416 F.3d 1051, 1062 (9th Cir. 2005)). Though acknowledging that plaintiff filed their

7 case under the Supremacy Clause as opposed to section 1983, the district court reasoned that

8 was a “distinction without a difference.” Id. The Ninth Circuit reversed and held that such

9 distinction was, in fact, dispositive. Under the Supremacy Clause, “a state or territorial law can

10 be unenforceable as preempted by federal law even when the federal law secures no individual

11 substantive rights for the party arguing preemption.” Id. at 1060.5

12

Turning to the merits, the Court finds that Plaintiffs have demonstrated a likelihood of

13 success on their claim that Defendants’ new eligibility criteria violate the reasonable standards

14 requirement. The seemingly arbitrary elimination of essentially half of the qualifying

15 impairments (i.e., ADLs and IADLs) will result in individuals who previously could show two

16 impairments now only being able to meet one of the requirements. Although these individuals’

17 need for services and risk of institutionalization are the same as before—or the same as

18 individuals who are able to meet the new requirements—they will no longer be allowed access

19 to ADHC services. Significantly, Defendants make no attempt to explain how these changes

20 are linked to the individual’s circumstances, particular need for ADHC services or their risk of

21 institutionalization. Though Defendants claim that “[t]hese criteria are especially geared

22 toward determining who is in the greatest need for services and who meets nursing facility

23

24

25

5 Defendants assert that Indep. Living is distinguishable on the ground that section

1396a(a)(30)(A) “creates specific standards that evince a Congressional intent to preempt state

26 law,” whereas section 1396a(a)(17) allegedly does not. Defs.’ Opp’n at 12. However, the

Ninth Circuit’s analysis in Indep. Living does not rest upon the purported existence of a

27 Congressional intent to preempt state law. Rather, the court predicated its decision on the basic

principle under the Supremacy Clause that state and local governments may not enact laws that

28 are inconsistent with federal law.

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1 level of care,” they provide no analysis or evidentiary support for this general assertion. See

2 Defs.’ Opp’n at 13.6

3

In addition, the new eligibility requirements impose disproportionate burdens on a

4 particular class of disabled individuals; namely, those with mental or cognitive impairments.

5 As discussed, ABx4 5 eliminates seven of the existing fifteen assessment criteria without

6 taking into account the individual’s specific need for ADHC services. In particular, the

7 remaining assessment activities relate primarily to an individual’s physical care needs, and do

8 not account for consideration of activities that require the use of judgment and cognition. See

9 Gardner Decl. ¶ 14. In effect, this means that persons with significant physical disabilities and

10 care needs are more likely to be able to establish eligibility over those with mental and

11 cognitive disabilities. Id.

12

This conundrum is exemplified by the situation facing Plaintiff Ronald Bell, who

13 suffers from dementia, seizures and a host of other conditions. Nolcox Decl. ¶ 30; Gardner

14 Decl. ¶ 16. He lives with his 78 year-old grandmother, who is barely able to care for him,

15 Dilworth Decl. ¶ 13, and requires assistance with accessing resources, housework, laundry,

16 meal preparation, money management and shopping, and is completely dependent upon others

17 for transportation, Gardner Decl. ¶ 16. Yet, his only need cognizable under the new criteria is

18 for medicine management which, standing alone, will be insufficient to qualify him for ADHC.

19 Id. As a result, it is likely that Mr. Bell’s existing benefits will be terminated, thereby

20 increasing the likelihood that he will require institutionalization. Id. Other Plaintiffs and Class

21 Members will be similarly affected. Steinke Decl. ¶ 26, 35; Gardner Decl. ¶ 18, Regalia Decl.

22 ¶ 32.

23

24

25

6 Defendants apparently base this assertion on a statement made by Phyllis Muchmore,

who was previously employed by DHCS as a Nurse Consultant III. Muchmore Decl. ¶ 1. In

26 her declaration, Ms. Muchmore states that “what is clear is that the services will be available to

those individuals with the highest medical need and at most risk of hospital or skilled nursing

27 facility admission.” Id. ¶ 18. Ms. Muchmore provides no facts or offers any analysis to

support these conclusions. In the absence of such a foundation, the Court finds her conclusory

28 statements to be unsupported and unpersuasive.

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1

Based on the foregoing, the Court is persuaded that Plaintiffs have made a sufficient

2 showing of merit as to their claim that Defendants’ new eligibility criteria violate the

3 reasonable standards requirement.

4

b) Comparability Requirement

5

The “comparability” requirement of the Medicaid Act is set forth at 42 U.S.C.

6 § 1396a(a)(10)(B), which provides that a state plan for medical assistance made available to an

7 individual “shall not be less in amount, duration, or scope than the medical assistance made

8 available to any other such individual. . . .” Id.; see also 42 C.F.R. § 440.240. “The

9 ‘comparability’ requirement of the Medicaid Act mandates comparable services for individuals

10 with comparable needs and is violated when some recipients are treated differently than others

11 where each has the same level of need.” V.L., -- F. Supp. 2d at --, 2009 WL 3486708 at *6

12 (citing cases); Conlan v. Bonta, 102 Cal.App.4th 745, 754 (2002) (“[a] state that participates in

13 Medicaid must provide comparable medical services to every participant.”).

14

As stated above, Plaintiffs contend that ABx4 5 violates the comparability requirement

15 because it fails to take into account the specific circumstances and needs of the individual, and

16 as such, will result in some persons receiving ADHC services while others will not—

17 notwithstanding that both are in critical need of such services. Defendants do not dispute

18 Plaintiffs’ contention, but instead argue that they have the right to place limits on eligibility

19 requirements. While that may be true as a general matter, that principle has no application in a

20 case, such as the present, where it has not been established that the eligibility criteria bears any

21 reasonable relation to the particular needs of the individual. See V.L., -- F. Supp. 2d at --, 2009

22 WL 3486708 at *6 (comparability requirement violated where eligibility criteria for in-home

23 services failed to measure the individual needs of the disabled or elderly persons for a

24 particular service). In addition, Defendants’ right to place limits on eligibility requirements is

25 not unfettered, but is circumscribed by the comparability requirements which Defendants have

26 chosen not to address. Thus, Plaintiffs have demonstrated a likelihood of success as to their

27 comparability claim, as well.

28

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1

2. ADA and Rehabilitation Act Claims

2

a) Integration Mandate

3

Title II of the ADA prohibits discrimination in access to public services by requiring

4 that “no qualified individual with a disability shall, by reason of such disability, be excluded

5 from participation in or be denied the benefits of the services, programs, or activities of a

6 public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.7. The

7 ADA contains an “integration mandate,” which requires that persons with disabilities receive

8 services in the most integrated setting appropriate to their needs. See Olmstead v. L.C. ex rel.

9 Zimring, 527 U.S. 581, 597 (1999) (states have an obligation “to avoid unjustified isolation of

10 individuals with disabilities”); Townsend v. Quasim, 328 F.3d 511, 516-17 (9th Cir. 2003)

11 (“the failure to provide Medicaid services in a community-based setting as a form of

12 discrimination on the basis of disability.”); 28 C.F.R. § 35.130(d) (“[a] public entity shall

13 administer services, programs, and activities in the most integrated setting appropriate to the

14 needs of qualified individuals with disabilities.”); see 42 U.S.C. § 12182(b)(1)(B).

15

Olmstead articulated a three-prong test to analyze whether a state’s actions violate the

16 integration mandate: “[U]nder Title II of the ADA, States are required to provide community-

17 based treatment for persons with mental disabilities when [1] the State’s treatment

18 professionals determine that such placement is appropriate, [2] the affected persons do not

19 oppose such treatment, and [3] the placement can be reasonably accommodated, taking into

20 account the resources available to the State and the needs of others with mental disabilities.”

21 527 U.S. at 607; Townsend, 328 F.3d at 519. Pursuant to Olmstead and its progeny, this Court

22 established in its prior preliminary injunction order that the loss of one to two days per week of

23 ADHC services is sufficient to establish violation of the integration mandate. Brantley, 656 F.

24 Supp. 2d at 1170-175; Fisher v. Okl. Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir.

25 7 Plaintiffs’ ADA and Rehabilitation Act claims may be analyzed together. See Martin
26 v. Cal. Dept. of Veterans Affairs, 560 F.3d 1042, 1047 n.7 (9th Cir. 2009) (“Because ‘[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the
27 Rehabilitation Act,’ we have consistently applied ‘the same analysis to claims brought under both statutes,’”) (quoting in part Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th
28 Cir. 1999)).

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1 2003) (imposition of cap on prescription medications placed on participants in community-

2 based program at high risk for premature entry into nursing homes in violation of the ADA).

3

In the instant case, the Court is persuaded that Plaintiffs have demonstrated a likelihood

4 of success on their integration mandate claim based on the planned implementation of the new

5 eligibility requirements. As an initial matter, there is no dispute that each of the three class

6 representatives for the “Termination and Limitation of Benefits” subclass (i.e., Harry Cota,

7 Sumi Konrai and Ronald Bell) has an IPC that documents their respective need for ADHC

8 services to avoid unnecessary institutionalization. See McCloud Decl. ¶ 51-54; Toth Decl.

9 ¶ 35; French Decl. ¶ 25; Regalia Decl. ¶¶ 25-27; Nolcox Decl. ¶¶ 30-34; Myers Purkey Decl. 10 ¶¶ 36-37. Likewise, each desires to remain in their homes, as opposed to being 11 institutionalized. See Cota Decl. ¶¶ 14-16; Burke Decl. ¶¶ 7, 12; Konrai Decl. ¶ 16; Dilworth 12 Decl. ¶¶ 22, 25; Smith Decl. ¶¶ 8-9; French Decl. ¶ 25; Nolcox Decl. ¶ 35; Myers Purkey Decl. 13 ¶ 39; Peterson Decl. ¶¶ 7-9. Thus, the first two Olmstead prongs have been satisfied, as it is 14 clear that the continuation of ADHC services is critical to their ability to avoid 15 institutionalization, and to remain in a community setting. See Steinke Decl. ¶¶ 20, 23-25, 29-

16 30, 32-34, 36; Gardner Decl. ¶¶ 11, 15-18; Chinn Decl. ¶ 15; Regalia Decl. ¶ 29; Toth Decl.

17 ¶¶ 52-53. Finally, there is no dispute as to the third Olmstead prong; namely, that Defendants

18 have an obligation to and can reasonably accommodate Plaintiffs’ needs. See Olmstead, 527

19 U.S. at 627.

20

Largely ignoring Olmstead, and without citing any authority, Defendants argue that they

21 have no obligation to maintain the same level of services as before, and are thus entitled to cut

22 services at will to accommodate the State’s budgetary constraints. Defs.’ Opp’n at 6-7. It is

23 true that “[t]he State’s responsibility, once it provides community-based treatment to qualified

24 persons with disabilities, is not boundless.” Olmstead, 527 U.S. at 603. In that regard, ADA

25 regulations provide that “[a] public entity shall make reasonable modifications in policies,

26 practices, or procedures when the modifications are necessary to avoid discrimination on the

27 basis of disability, unless the public entity can demonstrate that making the modifications

28 would fundamentally alter the nature of the service, program, or activity.” 28 U.S.C.

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1 § 35.130(d)(7). “Olmstead made clear that courts evaluating fundamental alteration defenses

2 must take into account financial and other logistical limitations on a state’s capacity to provide

3 services to the disabled[.]” Townsend, 328 F.3d at 520.

4

Defendants have not asserted any fundamental alteration defenses in response to

5 Plaintiffs’ integration mandate claim. Defs.’ Opp’n at 6-7. Rather, they merely state that “the

6 Legislature, faced with an unprecedented, severe budget crisis made a policy determination to

7 limit ADHC services to those individuals who need the services most and who are at risk of

8 admission to a skilled nursing facility.” Id. at 7.8 Though the Ninth Circuit has not yet reached

9 this issue, other federal circuits have held that a state defendant cannot rely on budgetary

10 constraints alone as the basis for a fundamental alteration defense. Frederick L. v. Dept. of

11 Public Welfare of Pa., 364 F.3d 487, 495 (3rd Cir. 2004) (“We have not previously considered

12 the extent to which states may assert a fundamental-alteration defense based on fiscal concerns

13 alone, but now hold that if the District Court’s opinion is read as focusing only on immediate

14 costs, . . . it would be inconsistent with Olmstead and the governing statutes.”); accord Fisher,

15 335 F.3d at 1183. “If every alteration in a program or service that required the outlay of funds

16 were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow

17 indeed.” Id.

18

b) Methods of Administration

19

In addition to their claim under the integration mandate, Plaintiffs also allege a

20 “methods of administration” claim under ADA and Rehabilitation Act regulations. These

21 regulations provide, inter alia, that “[a] public entity may not, directly or through contractual or

22 other arrangements, utilize criteria or methods of administration . . . [t]hat have the effect of

23 subjecting qualified individuals with disabilities to discrimination on the basis of

24 disability . . . .” 28 C.F.R. § 35.130(b)(3) (emphasis added); see also 28 C.F.R. § 41.51(b)(3)

25 (regulation under the Rehabilitation Act). This provision applies to written policies as well as

26 actual practices, and is intended to prohibit both “blatantly exclusionary policies or practices”

27 8 Defendants’ assertion that the new eligibility requirements focus on individuals who
28 “need the services most” is conclusory and unsupported. See fn.6, supra.

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1 as well as “policies and practices that are neutral on their face, but deny individuals with

2 disabilities an effective opportunity to participate.” 28 C.F.R. Pt. 35, App. A; c.f., Crowder v.

3 Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) (“Congress intended to prohibit outright

4 discrimination, as well as those forms of discrimination which deny disabled persons public

5 services disproportionately due to their disability”).

6

Defendants contend that section 35.130(b)(3) “just precludes the State from

7 administering its programs in a manner that will discriminate against individuals with

8 disabilities,” and that ABx4 5 comports with that edict because it does not single out disabled

9 individuals. Defs.’ Opp’n at 7-8. Though not entirely clear, Defendants appear to argue that

10 their administration of Medi-Cal is not discriminatory, since all applicants are subject to the

11 same eligibility criteria. However, the mere fact Defendants are imposing the same eligibility

12 requirements upon all persons seeking access to ADHC services does not insulate Defendants

13 from liability. The disparate impact occasioned by such requirements (discussed supra) on a

14 particular class of disabled persons is sufficient to demonstrate a violation of section

15 35.130(b)(3). See Smith-Berch, Inc. v. Baltimore County, Md., 68 F. Supp. 2d 602, 621-22 (D.

16 Md. 1999) (zoning policy applicable to methadone clinics imposed “disproportionate burdens

17 on a particular class of disabled individuals: opiate addicts who require methadone therapy to

18 aid in their recovery.”); Crowder, 81 F.3d at 1483. Accordingly, the Court finds that Plaintiffs

19 have demonstrated a likelihood of success on their claim that Defendants new eligibility

20 requirements violate ADA and Rehabilitation Act regulations.

21

c) Improper Eligibility Criteria

22

ADA and Rehabilitation Act regulations also prohibit the use of “[e]ligibility criteria

23 that screens out or tends to screen out an individual with a disability or any class of individuals

24 with disabilities from fully and equally enjoying any service, program, or activity, unless such

25 criteria can be shown to be necessary for the provision of the service, program, or activity

26 being offered.” 28 C.F.R. § 35.130(b)(8); see also 45 C.F.R. § 84.4(b)(4). “This concept . . .

27 makes it discriminatory to impose policies or criteria that, while not creating a direct bar to

28 individuals with disabilities, indirectly prevent or limit their ability to participate.” 28 C.F.R.

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1 Pt. 35, App. A (emphasis added). As discussed, the new eligibility criteria likely will result in 2 the termination of ADHC services for a large number of persons with disabilities, without 3 regard to the individual’s particular need for such services. While these requirements do not 4 overtly appear to target any particular group of disabled persons, in practice, they will.

5 Defendants tacitly concede Plaintiffs’ probability of success on this claim by failing to address

6 Plaintiffs’ argument in their opposition.

7

3. Due Process Claim

8

In addition to their ADA claims, Plaintiffs allege that Defendants’ new ADHC

9 eligibility requirements violate their fourteenth amendment right to due process. See U.S. 10 Const. amend. XIV, § 1. Medicaid recipients, such as Plaintiffs, are entitled to notice and an 11 opportunity to be heard at an administrative hearing before their benefits can be terminated. 12 See 42 U.S.C. § 1396a(a)(3) (“State plan for medical assistance must . . . provide for granting 13 an opportunity for a fair hearing before the State agency to any individual whose claim for 14 medical assistance under the plan is denied . . . .”); Goldberg v. Kelly, 397 U.S. 254, 267-78 15 (1970) (Medicaid recipients entitled to continued benefits pending a pre-termination hearing,

16 and a fair and impartial pre-termination hearing).

17

Likewise, Medicaid’s implementing regulations set forth requirements for notice related

18 to the right to appeal and the reasons for the termination of benefits. Title 42 of the Code of

19 Federal Regulations, section 431.206, states that at the time of any action affecting an

20 individual’s claim, he or she is entitled to receive notice of the right to a hearing or method by 21 which to obtain a hearing and that he or she may represent himself or use legal counsel, a 22 relative, a friend, or other spokesman. 42 C.F.R. §§ 431.206(b)-(c), 431.210. The notice must 23 be sent at least ten days prior to the proposed action, id. § 431.211, and must set forth, inter 24 alia, the type of action that will be taken and the reasons for the change, id., § 431.210. If a 25 timely hearing request is made, benefits must continue until the agency reaches a final

26 decision. Id. § 431.230(a).

27

Defendants do not contest Plaintiffs’ contention that no pre-termination notice will be

28 sent to current Medicaid recipients regarding the potential termination of ADHC services

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1 following the implementation of more restrictive eligibility requirements. Instead, they argue

2 that the determination of whether an individual qualifies for benefits will be made by private

3 ADHC providers, and as such, the State’s purported lack of involvement in that process renders

4 Goldberg and the above-cited regulations inapposite. See Defs.’ Opp’n at 8-9. Defendants’

5 attempt to “pass the buck” is unpersuasive. As the sole state agency administering Medi-Cal,

6 Defendants are obligated to ensure compliance with federal law. 42 U.S.C. § 1396a(a)(5);

7 AlohaCare v. Haw. Dept. of Human Servs., 572 F.3d 740, 743 (9th Cir. 2009) (“Medicaid

8 generally requires a State to conform with federal guidelines prior to receiving federal funds.”).

9 As such, Defendants cannot disclaim responsibility for compliance with federal law based on

10 its decision to rely on private entities to administer ADHC services. Catanzano by Catanzano

11 v. Dowling, 60 F.3d 113, 118 (2d Cir. 1995) (noting that it would be “patently unreasonable to

12 presume that Congress would permit a state to disclaim federal responsibilities by contracting

13 away its obligations to a private entity.”) (citation and internal quotations omitted).9

14

As an ancillary matter, Defendants contend that their role in the approval process is

15 limited to the approval, denial or modification of the TAR (submitted by ADHC providers),

16 and that such decisions are subject to secondary review, consistent with Goldberg. Defs.’

17 Opp’n at 9. This does not address Plaintiffs’ legitimate due process concerns, however.

18 ADHC providers will submit TARs only for those individuals for whom they have determined

19 meet the new, restrictive eligibility criteria. Muchmore Decl. ¶ 17. No TARs will be sent to

20 Defendants for review in those cases where the individual does not meet the new requirements.

21 As a result, potentially thousands of individuals who currently receive ADHC services will

22 never have a TAR submitted on their behalf, meaning that the termination of their services will

23 never be reviewed. Therefore, the Court finds that Plaintiffs have demonstrated a likelihood of

24 success on their due process claim.

25

26

27

9 Indeed, Defendants previously acknowledged in court that “they bear the ultimate

responsibility for ensuring compliance with federal disability laws.” Brantley, 656 F. Supp. 2d

28 at 1174.

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1

B. IRREPARABLE HARM

2

This Court has previously recognized in this case that the reduction or elimination of

3 public medical benefits is sufficient to establish irreparable harm to those likely to be affected

4 by the program cuts. See Brantley, 656 F. Supp. 2d at 1176 (citing cases). The evidence

5 presented indicates that between 8,000 to 15,000 individuals will lose their ADHC services

6 under the new criteria. Defendants do not dispute that the loss of ADHC benefits could result

7 in potentially serious and irreparable harm to Plaintiffs and Class Members. Instead, they

8 summarily dismiss Plaintiffs’ estimate of the number of persons likely to be affected as

9 “irresponsible” and unsubstantiated. Defs.’ Opp’n at 17-18. Defendants studiously avoid

10 committing to any estimate of the number of persons who will lose eligibility for ADHC

11 services, and admit only that “some individuals will no longer qualify for ADHC services as a

12 result of ABx4 5 . . . .” Muchmore Decl. ¶ 18 (emphasis added). These contentions are

13 misplaced.

14

The estimates of the number of persons who will be impacted by ABx4 5 are based on

15 information provided by DHCS in the first instance. In July 2009, Toby Douglas, Chief

16 Deputy Director of Health Care Programs at DHCS, informed Lydia Missaelides, Executive

17 Director of the California Association for Adult Day Care Services, that 40% of the ADHC

18 population will be terminated under the new eligibility requirements. Supp. Missaelides Decl.

19 ¶ 15. Forty percent of an estimated ADHC user population of 36,840 (for fiscal year 2009-

20 2010) amounts to almost 15,000. Missalaedes Decl. Ex. D at 2. Defendants object to Mr.

21 Douglas’ statement as hearsay. Defs.’ Supp. Obj. to Evid. at 5. However, his statement is an

22 admission by a party-opponent, which the Federal Rules of Evidence specifically exclude from

23 the definition of hearsay. Fed.R.Evid. 801(d)(2).

24

Similarly, a report by DHCS from November 2009, attached as Exhibit B to the

25 Supplemental Declaration of Lydia Missaelides, indicates that “[t]here are approximately

26 55,400 unduplicated ADHC users per year.” Supp. Missaelides Decl. Ex. B. DHCS estimates

27 that “20% of ADHC users will no longer be eligible for ADHC services” once the new

28 eligibility criteria take effect on March 1, 2010. Id. Twenty percent of 55,400 is 11,080.

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1 Another projection in the report anticipates that 8,014 users “will no longer be eligible for 2 ADHC services” in the 2009-2010 and 2010-2011 fiscal years. Id. Defendants object to this 3 exhibit on the ground that the document is not relevant and properly authenticated. Defs.’ 4 Supp. Obj. to Evid. at 2-3. Neither objection is compelling. The document clearly is relevant

5 to the extent that it pertains to the number of ADHC recipients who are likely to be adversely

6 impacted by the new eligibility requirements. As to Defendants’ authentication concerns, the

7 Court notes that the identical document is available on the DHCS website at

8 http://www.dhcs.ca.gov/dataandstats/reports/mcestimates/Pages/nov_2009_estimate.aspx#reg_

9 pc (last accessed February 21, 2010). The Court may properly take judicial notice of the

10 documents appearing on a governmental website. See, e.g., Paralyzed Veterans of Am. v.

11 McPherson, No. 2008 WL 4183981 at *5 (N.D. Cal. Sept. 9, 2008) (citing cases).

12

Even if the Court were to disregard the evidence presented concerning the number of

13 ADHC recipients likely to lose their benefits under the new eligibility criteria, Defendants’

14 claim that Plaintiffs cannot show irreparable harm is illogical. Defendants acknowledge that

15 ABx4 5 is a cost saving measure enacted in response to the “severe and unprecedented budget

16 crisis . . . .” Defs.’ Opp’n at 19. Given the purpose of the new law, it is axiomatic that in order

17 to have any significant impact on the State’s budget, the curtailment of ADHC services

18 arguably will be dramatic. As such, it is somewhat disingenuous for Defendants to downplay

19 the impact of the proposed changes by suggesting that only “some” individuals will lose their

20 ADHC services. Nor is the Court persuaded by Defendants’ assertion that there is no way of

21 ascertaining precisely who will lose their benefits until after ADHCs centers complete their

22 assessments under the new criteria and submit their IPCs to DHCS for review. See Defs.’

23 Opp’n at 18. As this Court recognized previously, Plaintiffs need not wait until the harm is

24 actually suffered before seeking injunctive relief. See Brantley, 656 F. Supp. 2d at 1176.

25

C. BALANCE OF HARDSHIPS AND THE PUBLIC INTEREST

26

The final two considerations on a motion for preliminary injunction, i.e., the balance of

27 hardships and the public interest, may be considered contemporaneously. See Indep. Living

28 Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 657-58 (9th Cir. 2009). Plaintiffs argue

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Case4:09-cv-03798-SBA Document171 Filed02/24/10 Page23 of 26

1 that the balance of hardships weighs in their favor because they face the loss of services that 2 are critical to avoid institutionalization. See Pls.’ Mot. at 25. Defendants respond that 3 Plaintiffs’ claim that they are at risk of losing services is unsubstantiated, and that if the new 4 eligibility criteria is not implemented, other medical and social programs will have to be cut as

5 a result of the State’s fiscal constraints. Defs.’ Opp’n at 17-18. Plaintiffs’ position is more

6 persuasive.

7

As discussed, there can be no legitimate dispute that implementation of the new

8 eligibility requirements will result in the loss of ADHC services to a significant number of

9 disabled persons. Indeed, that is the specific purpose of ABx4 5—to save money by 10 eliminating services. Similarly, the Ninth Circuit has held that financial considerations 11 attributable to state’s “fiscal crisis” are outweighed by the “robust public interest in 12 safeguarding access to healthcare for those eligible for Medicaid, whom Congress has 13 recognized as ‘the most needy in the country.’” Indep. Living Ctr. of S. Cal., 572 F.3d at 659; 14 see also Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir. 1982) (“Balancing the medical or 15 financial hardship to the plaintiffs-appellees against the financial hardship to the state resulting

16 from its inability to recover for medical services should its rules ultimately be held valid, it was

17 not an abuse of discretion for the district judge to find that the balance of hardships tipped

18 sharply in favor of plaintiffs.”). Given these considerations, the Court finds that that the

19 balance of hardships and public interest favor Plaintiffs.

20

D. SCOPE OF THE INJUNCTION AND BOND REQUIREMENT

21

Finally, Plaintiffs request that in the event the Court grants their motion that such relief

22 be afforded on a classwide basis and a waiver of their bond requirement due to the Plaintiffs’

23 indigency. The propriety of both requests was discussed in the Court’s prior order and is not

24 disputed by Defendants in their opposition to the instant motion. See Brantley, 656 F. Supp. 2d

25 at 1177-78.

26

E. OBJECTIONS TO EVIDENCE

27

Each side has filed written objections to the other’s evidence submitted in support of

28 their respective positions. (Docket Nos. 157, 159, 168.) Defendants “generally object” to the

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1 declarations of Plaintiffs’ experts, Gary Steinke, M.D., and William I. Gardner, Ph.D, on the 2 grounds that their statements and opinions do not meet the standard for admissibility under 3 Federal Rule of Evidence 702 or Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-93 4 (1993). Defs.’ Obj. to Evid. at 2.

5

Rule 702 allows for the admission of “scientific, technical, or other specialized

6 knowledge” when “(1) the testimony is based upon sufficient facts or data, (2) the testimony is

7 the product of reliable principles and methods, and (3) the witness has applied the principles

8 and methods reliably to the facts of the case.” Daubert provides guidance on the admissibility

9 of testimony under Rule 702. “A district court may rely on various factors in evaluating such 10 evidence, including (1) whether the theory can be or has been tested; (2) whether the theory has 11 been subjected to peer review; (3) whether the error rate is known and standards exist to 12 control the operation of the technique; and (4) whether the theory has gained general 13 acceptance.” United States v. McCaleb, 552 F.3d 1053, 1060 (9th Cir. 2009). The court has 14 “broad discretion” in determining the admissibility of expert testimony and is not required to 15 “mechanically apply the Daubert factors[.]” Id. (internal quotations and citation omitted).

16 Indeed, in certain cases, the Daubert factors may be inapplicable. See Boyd v. City and County

17 of San Francisco, 576 F.3d 938, 945 n.4 (9th Cir. 2009) (noting that Daubert’s list of factors

18 neither necessarily nor exclusively applies to all experts or in every case).

19

Defendants discuss none of the Daubert factors, and instead, simply assert that neither

20 individual is an expert in “eligibility criteria, which is the focus of their declarations.” Defs.’ 21 Obj. to Evid. at 3. This contention lacks merit. Neither Drs. Steinke nor Gardner were 22 proffered as experts in “eligibility criteria.” In addition, Defendants are unclear with respect to 23 what knowledge, training, skill or experience is necessary to become an expert in “eligibility 24 criteria,” to the extent such an expertise even exists. Rather, the opinions of both individuals 25 focus on the specific conditions associated with cognitive and mental disabilities and the types

26 of care necessary to support individuals with these conditions in a manner to avoid

27 institutionalization. Both individuals are well-credentialed and have extensive experience in

28 areas concerning the treatment, care and support of persons with developmental and mental

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1 disabilities as well as conditions associated with advanced age. See Gardner Decl. ¶¶ 5-10;

2 Steinke Decl. ¶¶ 5-9. For purposes of the instant motion, the Court finds Defendants have not

3 shown that these experts lack the requisite qualifications to render the opinions set forth in their

4 respective declarations.

5

Next, Defendants object to the opinions in the declarations of the various ADHC

6 providers as speculative, particularly with respect to their opinions regarding “what might

7 happen to their clients if the new eligibility criteria requirements for the ADHC program go

8 into effect.” Defs.’ Obj. to Evid. at 3. The Court overrules the objection. The ADHC

9 providers have firsthand experience with the Plaintiffs and Class Members who likely will be

10 impacted by the new eligibility criteria resulting from ABx4 5. Based on their knowledge of

11 the specific needs of these individuals, the ADHC providers are in a unique position to predict

12 the likely impact on persons in their programs in the event the services currently being

13 provided no longer are available. While these declarants may not be able to opine with

14 absolute certainty as to what impact the loss of ADHC services will have on each individual,

15 they certainly are qualified to opine about what is likely to occur in the event services to their

16 clients are terminated. Defendants’ objections to this evidence are overruled.

17 IV. CONCLUSION

18

For the reasons stated above,

19

IT IS HEREBY ORDERED THAT Plaintiffs’ Motion for a Preliminary Injunction is

20 GRANTED. Defendants David Maxwell-Jolly, in his official capacity as Director of the

21 Department of Health Care Services; the Department of Health Care Services; and their

22 successors, agents, officers, servants, employees, attorneys and representatives and all persons

23 acting in concert or participating with them are hereby:

24

1. ENJOINED and RESTRAINED from implementing or enforcing ABx4 5,

25 codified at California Welfare & Institutions Code §§ 14522.4, 14525.1 and 14526.2, or

26 engaging in the following actions until further order of this Court: reducing, terminating,

27 suspending, or denying Medi-Cal Adult Day Health Care program benefits to the Plaintiffs and

28

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1 all similarly situated individuals based on new eligibility and medical necessity criteria

2 contained in California Welfare & Institutions Code §§ 14522.4, 14525.1 and 14526.2.

3

2. ORDERED to take all actions necessary within the scope of their authority to

4 implement the above injunction.

5

3. ORDERED to provide prompt notice to all Adult Day Health Care program

6 providers of the terms of this Preliminary Injunction.

7

4. ORDERED to provide prompt notice to all recipients of Adult Day Health Care

8 program services of the terms of this Preliminary Injunction, in an understandable format.

9

The Court WAIVES the requirement for the posting of a bond as security for the entry

10 of preliminary injunctive relief on the grounds of Plaintiffs’ indigency.

11

IT IS SO ORDERED.

12 Dated: February 24, 2010 13
14

SAUNDRA BROWN ARMSTRONG United States District Judge

15

16

17

18

19

20 21 22

23

24

25

26

27

28

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 Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page1 of 12

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

OAKLAND DIVISION

8
HARRY COTA; GILDA GARCIA; ALLIE 9 JO WOODARD, by her guardian ad litem
Linda Gaspard-Berry; HARRY COTA; SUMI 10 KONRAI by her guardian ad litem Casey
Konrai; RONALD BELL by his guardian ad 11 litem Rozene Dilworth, individually and on
behalf of all other similarly situated,
12
Plaintiffs,
13
vs.
14
DAVID MAXWELL-JOLLY, Director of the 15 Department of Health Care Services, State of
California, DEPARTMENT OF HEALTH 16 CARE SERVICES,

Case No: C 09-3798 SBA ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Docket 122

17

Defenda nts.

18

19

Plaintiffs are elderly persons and adults with physical and mental disabilities who

20 bring the instant class action, individually, and on behalf of those similarly situated, against

21 Defendants California Department of Health Care Services (“DHCS”) and its Director,

22 David Maxwell-Jolly (collectively, “Defendants”), to enjoin the termination and/or

23 reduction of services in the Medi-Cal Adult Day Health Care (“ADHC”) program, as

24 mandated by ABx4 5. The parties are presently before the Court on Plaintiffs’ Motion for

25 Class Certification. Having read and considered the papers submitted and reviewed the

26 record in this action, the Court hereby GRANTS Plaintiffs’ motion.1

27
1 Pursuant to Federal Rule of Civil Procedure 78(b), the Court adjudicates the instant 28 motion without oral argument.

Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page2 of 12

1 I. BACKGROUND

2

The parties are familiar with the facts of this case, which are summarized herein as

3 they are pertinent to the issues that currently are before this Court. Plaintiffs are

4 participants in the state’s ADHC program, which provides community-based services for

5 low income seniors and younger disabled adults. ADHC services are offered under the

6 California Medical Assistance Program (better known as Medi-Cal) and are dispensed

7 through community-based ADHC centers located throughout the state. At present, there

8 are approximately 328 approved ADHC centers located in 34 of California’s 58 counties.

9 For Fiscal Year 2009-2010, over 36,000 individual are projected to be served under the

10 program.

11

As a result of the state’s ongoing fiscal crisis, Governor Arnold Schwarzenegger

12 signed ABx4 5 into law on July 28, 2009. Among other things, ABX4 5 reduces the

13 maximum number of days that an ADHC participant may be authorized for services, from

14 five days to three days. See Cal. Welf. & Inst. Code § 14132(p)(2). In addition, ABx4 5

15 specifies the implementation of new medical necessity and eligibility criteria, effective

16 March 1, 2010. See id. §§ 14522.4, 14525.1 and 14526.2. Because the new criteria are

17 more restrictive, approximately 8,000 to 15,000 individuals allegedly will no longer be

18 eligible for ADHC services.

19

Plaintiffs filed the instant suit against Defendants on August 18, 2009, seeking

20 injunctive and declaratory relief relating to the provision of ADHC services, based

21 principally on claims under the Americans with Disabilities Act (“ADA”) and Section 504

22 of the Rehabilitation Act of 1973 (“Rehabilitation Act”). On September 10, 2009, the

23 Court granted Plaintiffs’ motion for preliminary injunction and enjoined Defendants from

24 reducing the maximum number of days that ADHC services could be provided. Docket 57.

25 Absent the injunction, approximately 8,000 individual would have experienced a reduction

26 in their ADHC benefits.

27

On February 24, 2010, the Court granted Plaintiffs’ second motion for preliminary

28 injunction, and enjoined Defendants from reducing, terminating, suspending, or denying

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Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page3 of 12

1 ADHC benefits to program participants based on new eligibility and medical necessity

2 criteria. Docket 171. Defendants’ appeal from the Court’s ruling remains pending. See

3 Ninth Cir. Case No. 10-15635.

4

Plaintiffs have now filed a motion for class certification, pursuant to Federal Rule of

5 Civil Procedure 23(a) and 23(b)(2). Docket 122. Specifically, they seek to certify a class

6 defined as: “all Medi-Cal beneficiaries in the State of California for whom Adult Day

7 Health Care benefits will be reduced, suspended, denied or terminated under the provisions

8 of ABx4 5[.]” Am. Compl. ¶ 171, Docket 74; Pls.’ Mot. for Class Cert. at 1. Plaintiffs also

9 propose two subclasses, as follows:

10

“Limitation of Benefits Subclass” to be defined as “all Medi-

Cal beneficiaries who, as of August 26, 2009, have been

11

authorized to receive four or five days of Adult Day Health

Care Services by DHCS, and whose services will be reduced to

12

a maximum of three days under the provisions of ABx4 5.

13

“Termination of Benefits Subclass” to be defined as “all

present and future Medi-Cal beneficiaries who have been

14

authorized to receive any Adult Day Health Care services, and

whose ADHC services will be reduced, suspended, or

15

terminated, and otherwise qualified future ADHC applicants

who will be denied ADHC services, when the eligibility and

16

medical necessity requirements of ABx4 5 become operative.

17 Am. Compl. ¶ 172; Pls.’ Mot. for Class Cert. at 1. In addition, Plaintiffs seeks to have their

18 counsel appointed as counsel for the class, and to dispense with notice to the class. Only

19 the Termination of Benefits Subclass remains at issue for purposes of class certification.2

20

Defendants oppose class certification on two grounds. First, Defendants argue that

21 the Class is not “ascertainable” within the meaning of Rule 23(a). Specifically, they assert

22 that it is impossible to determine which ADHC recipients’ services will be terminated

23 under the new criteria because the Court’s second preliminary injunction order prevented

24 the new criteria from taking effect. Second, Defendants contend that class certification is

25 unnecessary in order for Plaintiffs to obtain the relief that they seek. Id. at 1. Defendants

26
2 The parties stipulated to the certification of the Limitation of Benefits Subclass 27 under Rule 23(a) and (b)(2), which the Court approved on May 14, 2010. Docket 190.
Thus, the instant motion is focused on certification of the class generally, and specifically 28 as to the Termination of Benefits Subclass.

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Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page4 of 12

1 do not address any of the other elements of Rule 23(a) or 23(b). Nor do Defendants contest

2 Plaintiffs’ request for appointment of lead counsel or to dispense with notice to the class.

3 II. LEGAL STANDARD

4

To obtain class certification, plaintiff must demonstrate that each of the four

5 requirements of Rule 23(a) and at least one requirement of Rule 23(b) are met. Narouz v.

6 Charter Comm’n, LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). “The four requirements of

7 Rule 23(a) are commonly referred to as ‘numerosity,’ ‘commonality,’ ‘typicality,’ and

8 ‘adequacy of representation’ (or just ‘adequacy’), respectively.” United Steel, Paper &

9 Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO v.

10 ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010). Rule 23(b) requires that the

11 plaintiff establish that: (1) there is a risk of inconsistent adjudication, or adjudication of

12 individual class member’s claims would substantially impair non-party members’ ability to

13 protect their interests; (2) the defendant acted on grounds generally applicable to the class;

14 or (3) common questions of law or fact predominate and class resolution is superior to other

15 available methods. Fed.R.Civ.P. 23(b); Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 580

16 (9th Cir. 2010) (en banc).

17

The district court has broad discretion in determining whether to certify a class.

18 Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009). For purposes

19 of class certification, the court generally accepts the substantive allegations of the

20 complaint as true. In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust

21 Litig., 691 F.2d 1335, 1342 (9th Cir. 1982). In conducting its review of a class certification

22 motion, “the trial court must conduct a ‘rigorous analysis’ to determine whether the party

23 seeking certification has met the prerequisites of Rule 23.” Zinser v. Accufix Research

24 Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.), amended, 273 F.3d 1266 (9th Cir. 2001) (citation

25 omitted); Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 161 (1982).

26

27

28

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Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page5 of 12

1 III. DISCUSSION

2

A. ASCERTAINABLE CLASS

3

“As a threshold matter, and apart from the explicit requirements of Rule 23(a), the

4 party seeking class certification must demonstrate that an identifiable and ascertainable

5 class exists.” Mazur v. eBay Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009) (Patel, J.). “A

6 class definition should be precise, objective, and presently ascertainable.” Id. (citing

7 O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998)). The class

8 definition must be “sufficiently definite” so that its members can be ascertained by

9 reference to objective criteria.” Whiteway v. FedEx Kinko’s Office and Print Servs., Inc.,

10 2006 WL 2642528, at *3 (N.D. Cal., Sept. 14, 2006) (Armstrong, J.). “[A] class will be

11 found to exist if the description of the class is definite enough so that it is administratively

12 feasible for the court to ascertain whether an individual is a member.” O’Connor, 184

13 F.R.D. at 319.

14

Plaintiffs define the proposed Termination of Benefits Subclass as:

15

[A]ll present and future Medi-Cal beneficiaries who have been

authorized to receive any Adult Day Health Care services, and

16

whose ADHC services will be reduced, suspended, or

terminated, and otherwise qualified future ADHC applicants

17

who will be denied ADHC services, when the eligibility and

medical necessity requirements of ABx4 5 become operative.

18

19 Pls.’ Mot. for Class Cert. at 1. Although the parameters defining the scope of the class are

20 clearly stated, Defendants argue that “it is impossible to determine which recipients would

21 have been denied ADHC services under the new criteria.” Defs.’ Opp’n at 4.

22

The Court finds Defendants’ position unpersuasive. Eligibility for ADHC services

23 under ABx4 5 is determined by the objective criteria in California Welfare and Institutions

24 Code sections 14522.4, 14525.1 and 14526.2. Notably, Defendants do not contend that

25 these code sections are subjective in their application. See Alliance to End Repression v.

26 Rochford, 565 F.2d 975, 978 (7th Cir. 1977) (class comprised of organizations harassed by

27 law enforcement officials was sufficiently ascertainable because the scope of a class was

28 defined by reference to the defendants’ conduct and not the state of mind of the plaintiffs or

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Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page6 of 12

1 the defendants). Moreover, the fact that the Court enjoined Defendants from actually

2 utilizing the new criteria does not ipso facto undermine the fact that objective criteria exists

3 to define the class. Under Defendants’ logic, no class would ever be ascertainable, unless

4 its members were first injured by the very conduct sought to be enjoined in the lawsuit. No

5 authority has been presented, nor is the Court aware of any, that supports such a potentially

6 sweeping proposition of law.

7

In sum, the Court finds that the class is sufficiently definite so that it is

8 administratively feasible for the court to ascertain whether an individual is a member.

9 Having so concluded, the Court now turns to whether Plaintiffs satisfy the requirements of

10 Rule 23(a) and 23(b)(2).

11

B. RULE 23(A)

12

The only element of Rule 23(a) challenged by Defendants is the typicality

13 requirement. Although Defendants offer no argument as to the other three prongs, the

14 Court briefly considers each to determine the propriety of certifying the class.

15

1. Numerosity

16

A proposed class meets the numerosity requirement of Rule 23(a)(1) if “the class is

17 so large that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). In this case,

18 the class consists of tens of thousands of individuals. Am. Compl. ¶ 173; Missaelides Decl.

19 ¶ 47, Docket 133. Based on the number of class members involved, the Court finds that

20 Plaintiffs meet the numerosity requirement. See Dukes, 603 F.3d at 599.

21

2. Commonality

22

“Commonality focuses on the relationship of common facts and legal issues among

23 class members.” Id. Rule 23(a)(2) should be construed permissively, meaning that “[a]ll

24 questions of fact and law need not be common to satisfy the rule. The existence of shared

25 legal issues with divergent factual predicates is sufficient, as is a common core of salient

26 facts coupled with disparate legal remedies within the class.” Id. (quoting Hanlon v.

27 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). “[T]he commonality requirement is

28 interpreted to require very little.” In re Paxil Litig., 212 F.R.D. 539, 549 (C.D. Cal. 2003).

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Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page7 of 12

1 A single issue common to the proposed class may suffice under Rule 23(a)(2). See

2 Cervantez v. Celestica Corp., 253 F.R.D. 562, 570 (C.D. Cal. 2008).

3

There is no dispute between the parties that the instant action involves numerous

4 questions of law and fact common to the class. Plaintiffs identify six common questions,

5 such as whether Defendants violated the integration mandate of the ADA and the

6 Rehabilitation Act by terminating, reducing or limiting access to community-based ADHC

7 services. Pls.’ Mot. for Class Cert. at 14. This and the other issues articulated by Plaintiffs

8 relate to the effect of ABx4 5 on members of the class. The Court finds that Plaintiffs’

9 uncontested showing is sufficient to satisfy their burden of establishing “commonality”

10 under Rule 23(a)(2).

11

3. Typicality

12

“Typicality” requires that “the claims or defenses of the representative parties are

13 typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). “The purpose of the

14 typicality requirement is to assure that the interest of the named representative aligns with

15 the interests of the class.” Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992).

16 “The test of typicality is whether other members have the same or similar injury, whether

17 the action is based on conduct which is not unique to the named plaintiffs, and whether

18 other class members have been injured by the same course of conduct.” Id. (internal

19 quotations omitted). “Under the rule’s permissive standards, representative claims are

20 ‘typical’ if they are reasonably co-extensive with those of absent class members; they need

21 not be substantially identical.” Hanlon, 150 F.3d at 1020.

22

Defendants argue, albeit briefly, that it “appears” that two of three the named

23 Termination of Benefits Subclass representatives (i.e., Konrai and Bell) will continue to

24 qualify for ADHC services, even under the new, more restrictive eligibility criteria. Defs.’

25 Opp’n at 6. Yet, Defendants offer no evidence to show that they, in fact, would be

26 ineligible. In contrast, Plaintiffs have proffered declarations from each of these Plaintiff’s

27 ADHC providers which confirm their intention to terminate services pursuant to ABx4 5.

28 See Toth Decl. ¶ 68, Docket 111; Burke Decl. ¶ 35, Docket 92 ; Nolcox Decl. ¶ 35, Docket

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Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page8 of 12

1 104.3 But even if Konrai and Bell are not members of the Termination of Benefits subclass,

2 Defendants acknowledge that Cota’s ADHC benefits would have been terminated but for

3 the preliminary injunction. Defs.’ Opp’n at 6. Based on the allegations of the Amended

4 Complaint and the record presented, the Court finds that the claims of the representative

5 Plaintiffs are typical of those of the class.4

6

4. Adequacy

7

The fourth and final requirement under Rule 23(a) is that the plaintiff “will fairly

8 and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). In this regard, the

9 Court considers: (1) whether the named plaintiffs and their counsel have any conflicts of

10 interest with the proposed class, and (2) whether the named plaintiffs and their counsel will

11 “prosecute the action vigorously on behalf of the class.” Hanlon, 150 F.3d at 1020.

12 Plaintiffs and their counsel aver that they have no conflicts of interest with members of the

13 class and that they will continue to prosecute this action vigorously on behalf of the class as

14 a whole. Pls.’ Mot. for Class Cert. at 17-18. As Defendants do not contend otherwise, the

15 Court concludes that Plaintiffs have met their burden under Rule 23(a)(4).

16

C. RULE 23(B)

17

As noted, in addition to the four requirements under Rule 23(a), a plaintiff seeking

18 class certification must meet one of the three criteria under Rule 23(b). Plaintiffs rely on

19 Rule 23(b)(2) which allows for certification if “the party opposing the class has acted or

20 refused to act on grounds generally applicable to the class, thereby making appropriate final

21 injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

22 Fed.R.Civ.P 23(b)(2). Here, Plaintiffs seek injunctive and declaratory relief to address

23

24

3 In addition, Plaintiffs have expressly alleged in the Amended Complaint that

Konrai, Bell and Cota’s ADHC respective providers have indicated that each will be

25 terminated from the ADHC program if the new eligibility criteria were to go into effect.

Am. Compl. ¶¶ 138, 145, 155. As noted, the Court generally accepts substantive

26 allegations in the complaint for purposes of class certification. See In re Coordinated

Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 691 F.2d at 1342.

27

4 Subsequent to the close of briefing on the instant motion, Sumi Konrai

28 unfortunately passed away. Docket 197.

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Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page9 of 12

1 Defendants’ allegedly discriminatory policies and practices under ABx4 5. As such, this

2 case falls within the purview of Rule 23(b)(2). Zinser, 253 F.3d at 1195 (“Class

3 certification under Rule 23(b)(2) is appropriate only where the primary relief sought is

4 declaratory or injunctive.”).

5

D. NEED FOR CLASS CERTIFICATION

6

Finally, Defendants argue that class certification is unnecessary because Plaintiffs, to

7 the extent they prevail on the merits, will obtain the same relief irrespective of the class is

8 certified. Defs.’ Opp’n at 6-7. However, this Court previously considered and rejected a

9 virtually identical argument in Californians for Disability Rights, Inc. v. California Dept. of

10 Transp., 249 F.R.D. 334 (N.D. Cal. 2008) (“CDR”). In that case, the defendants argued

11 that “the complexity and expense of a class action is not necessary in this case as the named

12 Plaintiffs may achieve by injunction all relief that would inure to similarly situated persons

13 without the necessity of class certification.” Id. at 349. In rejecting this contention, the

14 Court reasoned that “there is no requirement that class certification must be ‘necessary.’”

15 Id. “Indeed, such a requirement would effectively eviscerate Rule 23(b)(2), which was

16 specifically designed with the benefits of collective action in mind.” Id. Nothing in

17 Defendants’ opposition persuades the Court to reconsider its view as expressed in CDR.

18

E. APPOINTMENT OF CLASS COUNSEL

19

Plaintiffs request that their current counsel be appointed as class counsel, pursuant to

20 Rule 23(g)(1). In appointing class counsel, the court must consider (1) the work counsel

21 has done regarding the action; (2) counsel’s experience with class actions and relevant

22 complex litigation; (3) counsel’s understanding of relevant law; and (4) the resources

23 counsel will commit to representing the class. Fed R.Civ. P. 23(g)(1)(A). A certification

24 order must appoint class counsel. Id. 23(c)(1)(B).

25

Here, Plaintiffs’ lead counsel, Disability Rights California (“DRC”), has pursued

26 this action since its inception. The record show that DRC has extensive experience in

27 lawsuits such as the present and that its attorneys are well versed in the laws pertaining to

28 the disabled. Zirker Decl. ¶¶ 3-8, Docket 150. Similarly, as evidenced by counsel’s filings,

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Case4:09-cv-03798-SBA Document198 Filed08/10/10 Page10 of 12

1 the Court is aware that DRC has committed extensive resources to prosecuting this case.

2 Given this showing, coupled with Defendants’ lack of opposition, the Court grants

3 Plaintiffs’ request to appoint DRC as counsel for the class.

4

In addition to DRC, Plaintiffs also seek to have the National Health Law Program

5 (“NHLP”), National Senior Citizens Law Center (“NSCLC”), AARP Foundation Litigation

6 (“AARP”) and Howrey LLP (“Howrey”) appointed as class counsel. Plaintiffs have

7 proffered sufficient, undisputed evidence regarding the qualifications of each of these

8 organizations and their respective suitability to serve as class counsel along with DRC. See

9 Jones Decl. ¶¶ 3-5, Docket 145 (AARP); Rich Decl. ¶¶ 3-6, Docket 147 (NSCLC); Somers

10 Decl. ¶¶ 3-8; Docket 148 (NHLP); Su Decl. ¶¶ 2-5, Docket 149 (Howrey). The Court

11 therefore grants Plaintiffs’ request to appoint these attorneys as class counsel, as well.

12

F. PRECERTIFICATION CLASS NOTICE

13

Finally, Plaintiffs request that the Court dispense with notice to the class. Where a

14 class is certified under Rule 23(b)(2) class, notice is optional. Fed.R.Civ.P. 23(c)(2)(A);

15 see In re Allstate Ins. Co., 400 F.3d 505, 506 (7th Cir. 2005) (“A Rule 23(b)(2) class action

16 does not require giving class members notice of the suit and a chance to opt out of it and

17 bring their own, individual suits”). Here, Plaintiffs contend that no notice is necessary

18 because the claims of the named plaintiffs are typical of the class and they are represented

19 by experienced counsel. Elliott v. Weinberger, 564 F.2d 1219, 1229 (9th Cir. 1977) (noting

20 that notice to class would serve no purpose where absent members’ interests are adequately

21 assured of being represented there is no serious question as to competency of counsel and

22 the class is represented by competent counsel), aff’d in part and rev’d on other grounds in

23 part sub nom. Califano v. Yamasaki, 442 U.S. 682 (1979). Defendants have expressed no

24 objection dispensing with notice to the class. Therefore, the Court grants Plaintiffs’ request

25 to certify the class without notice.

26 //

27 //

28

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1 IV. CONCLUSION

2

For the reasons stated above,

3

IT IS HEREBY ORDERED THAT:

4

1. Plaintiffs’ Motion for Class Certification is GRANTED, as follows:

5

a) The Class is certified to include: “All Medi-Cal beneficiaries in the

6 State of California for whom Adult Day Health Care benefits will be reduced, suspended,

7 denied or terminated under the provisions of ABx4 5.”

8

b) The Subclass identified as the “Termination of Benefits” Subclass is

9 certified for the all Claims for Relief in Plaintiffs’ First Amended Complaint. The

10 “Termination of Benefits” Subclass is defined as: “All present and future Medi-Cal

11 beneficiaries who have been authorized to receive any ADHC services, and whose ADHC

12 services will be reduced, suspended, or terminated, and otherwise qualified future ADHC

13 applicants who will be denied ADHC services, when the eligibility and medical necessity

14 requirements of ABx4 5 become operative.”

15

c) Named Plaintiffs Harry Cota, Gilda Garcia, Allie Jo Woodard (by and

16 through her guardian ad litem Linda Gaspard-Berry) and Ronald Bell (by and through his

17 guardian ad litem Rozene Dilworth) are appointed as representatives of the Class defined

18 above.

19

d) Named Plaintiffs Harry Cota and Ronald Bell (by and through his

20 guardian ad litem Rozene Dilworth) are appointed as representatives of the Termination of

21 Benefits Subclass defined above.

22

e) Pursuant to Federal Rule of Civil Procedure 23(g)(1) and Rule

23 23(c)(1)(B), the law firms of Disability Rights California, National Health Law Program,

24 National Senior Citizens Law Center, AARP Foundation Litigation and Howrey LLP are

25 appointed as Class Counsel.

26

f) Plaintiffs are not required to give notice to absent Class members at

27 this stage of the litigation.

28

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1

2. The hearing on the motion for class certification, previously scheduled for

2 July 27, 2010, is VACATED.

3

3. This Order terminates Docket 122.

4

IT IS SO ORDERED.

5 Dated: August 10, 2010
6
7

SAUNDRA BROWN ARMSTRONG United States District Judge

8

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13

14

15

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 Case4:09-cv-03798-SBA Document218 Filed06/02/11 Page1 of 67

Elissa Gershon, State Bar No. 169741 1 elissa.gershon@disabilityrightsca.org
Elizabeth Zirker, State Bar No. 233487 2 elizabeth.zirker@disabilityrightsca.org
Kim Swain, State Bar No. 100340 3 kim.swain@disabilityrightsca.org
DISABILITY RIGHTS CALIFORNIA 4 1330 Broadway, Suite 500
Oakland, CA 94612 5 Telephone: (510) 267-1200
Facsimile: (510) 267-1201 6

Attorneys for Plaintiffs 7

[Complete list of counsel on following pages] 8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

ESTHER DARLING; RONALD BELL by his ) Case No.: C09-03798 SBA 11 guardian ad litem Rozene Dilworth; GILDA )

GARCIA; WENDY HELFRICH by her

) CLASS ACTION

12 guardian ad litem DENNIS ARNETT; JESSIE )

JONES; RAIF NASYROV by his guardian ad ) SECOND AMENDED COMPLAINT FOR

13 litem Sofiya Nasyrova; ALLIE JO

) INJUNCTIVE AND DECLARATORY

WOODARD, by her guardian ad litem Linda ) RELIEF 14 Gaspard-Berry; individually and on behalf of )

all others similarly situated,

)

15

)

Plaintiffs,

)

16

)

vs.

)

17

)

TOBY DOUGLAS, Director of the

)

18 Department of Health Care Services, State of )

California, DEPARTMENT OF HEALTH )

19 CARE SERVICES,

)

20

Defendants.

21

22

23

24

25

26

27

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Anna Rich, State Bar No. 230195 1 arich@nsclc.org
Kevin Prindiville, State Bar No. 235835 2 kprindiville@nsclc.org
NATIONAL SENIOR CITIZENS LAW CENTER 3 1330 Broadway, Suite 525
Oakland, CA 94612 4 Telephone: (510) 663-1055
Facsimile: (510) 663-1051 5
Eric Carlson, State Bar No. 141538 6 ecarlson@nsclc.org
NATIONAL SENIOR CITIZENS LAW CENTER 7 3435 Wilshire Boulevard, Ste 2860
Los Angeles, CA 90010-1938 8 Telephone: 213-674-2813
Facsimile: 213-639-0934 9
Barbara Jones, State Bar No. 88448 10 bjones@aarp.org
AARP FOUNDATION LITIGATION 11 200 So. Los Robles, Suite 400
Pasadena, CA 91101 12 Telephone: (626) 585-2628
Facsimile: (626) 583-8538 13
Kenneth W. Zeller, Pro Hac Vice 14 kzeller@aarp.org
Kelly Bagby, Pro Hac Vice 15 kbagby@aarp.org
AARP FOUNDATION LITIGATION 16 601 E Street NW
Washington D.C. 20049 17 Telephone: (202) 434-2060
Facsimile: (202) 434-6424 18
Sarah Somers, State Bar No. 170118 19 somers@healthlaw.org
Martha Jane Perkins, State Bar No. 104784 20 perkins@healthlaw.org
NATIONAL HEALTH LAW PROGRAM 21 211 N. Columbia Street
Chapel Hill, NC 27514 22 Telephone: (919) 968 - 6308
Facsimile: (919) 968-8855 23
Kenneth A. Kuwayti, State Bar No. 145384 24 KKuwayti@mofo.com
MORRISON & FOERSTER LLP 25 755 Page Mill Road
Palo Alto, CA 94304-1018 26 Telephone: (650) 813-5600
Facsimile 650-494-0792 27

28

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1

TABLE OF CONTENTS

2 I. INTRODUCTION................................................................................................................... 1

3 II. JURISDICTION ..................................................................................................................... 3

4 III. VENUE..................................................................................................................................... 3

5 IV. INTRADISTRICT ASSIGNMENT ...................................................................................... 3

6 V. PARTIES ................................................................................................................................. 3

7

Plaintiffs .................................................................................................................................... 3

8

Gilda Garcia — Limitation of Benefits Subclasses Representative ............................. 3

9

Allie Jo Woodard — Limitation of Benefits Subclass Representative......................... 4

10

Ronald Bell – Termination of Benefits Subclass Representative ................................. 5

11

Esther Darling ............................................................................................................... 5

12

Wendy Helfrich............................................................................................................. 6

13

Jessie Jones ................................................................................................................... 7

14

Raif Nasyrov ................................................................................................................. 7

15

Defendants ................................................................................................................................ 8

16 VI. STATUTORY AND REGULATORY FRAMEWORK ..................................................... 9

17

Federal and State Anti-Discrimination Laws............................................................................ 9

18

Medicaid and Medi-Cal Programs .......................................................................................... 10

19

Medicaid Due Process Requirements ..................................................................................... 12

20

Medi-Cal Covered Services .................................................................................................... 13

21

2009 Legislation Affecting ADHC—ABx4 5 (Chapter 5, Statutes of 2009) ......................... 16

22

2011 Legislation Affecting ADHC – AB 97 (Chapter 3, Statutes of 2011) and SB 69

23

(2011-2012 Budget) .................................................................................................... 17

24 VII. FACTUAL ALLEGATIONS............................................................................................... 19

25

Background of the ADHC Program........................................................................................ 19

26

Cuts in Days of Service from a Maximum of Five to No More than Three Under ABx4 5 ........................................................................................................................ 21

27

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New, Restrictive ADHC Eligibility Requirements Under ABx4 5 ........................................ 22 1

Implementation of New, Restrictive Eligibility Requirements Under ABx4 5 ...................... 25 2

Elimination of ADHC Pursuant to AB 97 and SB 69............................................................. 26 3

Facts Related to Plaintiff Allie Jo Woodard — Limitation of Benefits Subclass

4

Representative............................................................................................................. 28

5

Facts Related to Plaintiff Gilda Garcia—Limitation of Benefits Subclasses

Representative............................................................................................................. 30 6

Facts Related to Plaintiff Ronald Bell – Termination of Benefits Subclass

7

Representative............................................................................................................. 31

8

Facts Related to Plaintiff Esther Darling ................................................................................ 34

9

Facts Related to Plaintiff Wendy Helfrich.............................................................................. 35

10

Facts Related to Plaintiff Jessie Jones .................................................................................... 37

11

Facts Related to Plaintiff Raif Nasyrov .................................................................................. 39

12

Failure to Provide Adequate Notice and Pre-Termination Hearing........................................ 40

13

Allegations Regarding Limitations of Benefits Subclass ....................................................... 41

14

Allegations Regarding Termination of Benefits Subclass ...................................................... 42

15

Allegations Regarding Entire Certified and Amended Class ................................................. 43

16

Facts Related to Medi-Cal ADHC Participants Generally ..................................................... 43

17 VIII. CLASS DEFINITION AND ALLEGATIONS .................................................................. 45

18 IX. LEGAL CLAIMS.................................................................................................................. 48

19 X. REQUEST FOR RELIEF .................................................................................................... 55

20

21

22

23

24

25

26

27

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1

I.

INTRODUCTION

2

1. Plaintiffs, who are elderly persons and adults with disabilities, brought this class

3 action suit against the California Department of Health Care Services and its Director (Defendants)

4 to stop devastating cuts to Adult Day Health Care (ADHC) services. If implemented, these cuts will

5 place named Plaintiffs and Class Members at imminent risk of harm, including institutionalization,

6 hospitalization, injury and/or death.

7

2. ADHC is a Medi-Cal funded community-based program for low-income seniors and

8 disabled adults, which provides “a viable alternative to institutionalization for those elderly persons

9 and adults with disabilities who are capable of living at home with the aid of appropriate health care

10 or rehabilitative services.” Cal. Health & Safety Code § 1570.2(b). ADHC services are provided at

11 centers located in communities throughout California. ADHC participants live at home or in

12 licensed residential care facilities, and participate in ADHC from one to five days per week,

13 depending on their assessed needs. ADHC services include professional nursing services, personal

14 care services, social and therapeutic services, case management, medication management, meals,

15 physical therapy, occupational therapy, speech therapy and transportation to and from the ADHC

16 center.

17

3. ABx4 5 (Chapter 5, Statutes of 2009), one of a number of bills passed in response to

18 California’s budgetary difficulties, imposed two cutbacks on the ADHC program, each of which was

19 based solely on reducing State expenditures, with little or no consideration of the harm to vulnerable

20 elderly and disabled persons. The first cutback reduced the maximum weekly ADHC services from

21 five to three days per week for all Medi-Cal funded program participants, with no exceptions, and

22 regardless of existing treatment authorizations and the participant’s health condition. This cutback

23 has been enjoined by this Court through a preliminary injunction issued on September 10, 2009.

24

4. The second cutback established new and restrictive eligibility requirements for

25 participation in an ADHC program. This cutback was intended to go into effect when the Director

26 of the California Department of Health Care Services (DHCS) provided a written declaration that the

27 restrictive eligibility requirements were ready to be implemented. This declaration would have

28

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1 returned the maximum number of days allowable under the program to five per week, but would

2 have caused termination of all ADHC services for an estimated 15,000 current participants who had

3 been assessed to need those services and who currently receive them, and denial of services to

4 otherwise qualified future ADHC applicants. Defendants targeted March 1, 2010 for the second

5 cutback to go into effect; however, this cutback was enjoined by this Court on February 24, 2010

6 and the State’s appeal is currently pending before the Ninth Circuit.

7

5. On March 24, 2011, the Governor signed Assembly Bill 97 (Statutes of 2011) (“AB

8 97”), which eliminates ADHC as a Medi-Cal optional benefit as early as July 1, 2011. AB 97

9 authorizes the implementation of a “short-term program” to transition ADHC participants to other

10 Medi-Cal or other services, and includes an uncodified intent to develop a new program, called

11 Keeping Adults Free from Institutions (“KAFI”) which is to be pursued through a “federal waiver.”

12 The funding for the short-term and new KAFI programs will be no more than 50 percent of the

13 current ADHC appropriation. Moreover, AB 97 contains no assurances that appropriate replacement

14 services that participants need to avoid institutionalization will be in place upon the elimination of

15 ADHC, or that any alternative services they ultimately receive will be adequate to meet their

16 currently assessed needs.

17

6. Upon information and belief, some ADHC programs are already preparing to shut

18 their doors in anticipation of the July 1, 2011 elimination date. To date, at least two centers have

19 announced that they are closing due to AB 97.

20

7. Without vital community-based ADHC services, or in the alternative, provision of

21 alternative services to which Plaintiffs and Class Members are entitled, without interruption, under

22 California’s Medi-Cal program, Plaintiffs will experience immediate and irreparable harm.

23 Plaintiffs and other Class Members are at risk of physical and/or mental deterioration in health and

24 functioning, and will be forced into hospitals and nursing facilities due to Defendants’ actions and

25 inactions in violation of the Americans with Disabilities Act of 1990 (ADA), (42 U.S.C. §§ 12101-

26 12213), Section 504 of the Rehabilitation Act of 1973 (Section 504), (29 U.S.C. §§ 794-794a ), Title

27

28

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1 XIX of the Social Security Act (Medicaid Act), (42 U.S.C. § 1396a – 1396w-5) and California

2 Government Code section 11135 (Cal. Gov’t. Code § 11135).

3

II. JURISDICTION

4

8. This is an action for declaratory and injunctive relief for violation of the Due Process

5 Clause of the Fourteenth Amendment to the U.S. Constitution; Title XIX of the Social Security Act,

6 (the Medicaid Act), (42 U.S.C. §§ 1396a-1396w-5); Title II of the Americans With Disabilities Act

7 of 1990 (ADA), (42 U.S.C. § 12132); and Section 504 of the Rehabilitation Act of 1973 (Section

8 504), (29 U.S.C. § 794).

9

9. Jurisdiction is based 28 U.S.C. §§ 1331 and 1343; Title II of the ADA, and Section

10 504. Plaintiffs’ claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201 -

11 2202. At all times relevant to this action, Defendants have acted under color of state law.

12

10. The Court has Supplemental Jurisdiction over Plaintiffs’ state claim pursuant to

13 28 U.S.C. § 1367 and California Government Code section 11139.

14

III. VENUE

15

11. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

16 § 1391(b), because the Defendants operate and perform their official duties therein and thus reside

17 therein for purposes of venue, and because a substantial part of the events and omissions giving rise

18 to the claims herein occur in counties that are part of the Northern District of California.

19

IV. INTRADISTRICT ASSIGNMENT

20

12. Pursuant to Civil Local Rule 3-2(c) this action should be assigned to the San

21 Francisco or Oakland Division of the Northern District of California, because a substantial part of

22 the events and omissions giving rise to the claims herein occur in counties in the Northern District of

23 California and certain Plaintiffs are residents of the City and County of San Francisco.

24

V. PARTIES

25 Plaintiffs

26

Gilda Garcia — Limitation of Benefits Subclasses Representative

27

13. Named Plaintiff Gilda Garcia is a 78–year-old woman with unstable diabetes,

28

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1 hypertension, Bells’ Palsy, depression, and kidney problems. She is Medi-Cal eligible and currently

2 receives five days a week of ADHC.

3

14. Ms. Garcia needs supervision with bathing, dressing, medication management,

4 ambulation, and money management. She needs assistance with toileting, ambulation, transferring,

5 accessing resources, hygiene, meal preparation, shopping, and transportation. She is dependent on

6 others for housework and laundry. She uses a cane and/or a walker for ambulation.

7

15. In order to remain in her own home in the community, Ms. Garcia requires the

8 frequent daily medical monitoring she receives with her current level of ADHC services, and she is

9 at imminent risk of hospitalization due to her unstable diabetes if her services are reduced or

10 terminated.

11

Allie Jo Woodard — Limitation of Benefits Subclass Representative

12

16. Plaintiff Allie Jo Woodard is an 81 year-old woman who is diagnosed with bipolar

13 affective disorder, depression, diabetes, glaucoma, a seizure disorder, hypertension, and

14 osteoarthritis. Ms. Woodard receives Medi-Cal and is currently attending ADHC five days per

15 week.

16

17. Ms. Woodard needs supervision with ambulation, and transferring; and assistance

17 with bathing and dressing, and toileting. She is totally dependent on others for housework, hygiene,

18 laundry, shopping, transportation, medication management, money management, accessing

19 resources, and meal preparation.

20

18. Ms. Woodard is proceeding in this litigation through her Guardian ad Litem Linda

21 Gaspard-Berry as she is not able to proceed on her own behalf. Ms. Gaspard-Berry, who is Ms.

22 Woodard’s daughter, has agreed to act as her Guardian ad Litem, and is qualified to do so. She will

23 competently proceed on Ms. Woodard’s behalf. An application to appoint Ms. Gaspard-Berry to act

24 as a Guardian ad Litem in this action has been granted by this Court.

25

19. Ms. Woodard and her family want her to remain in her own home with her current

26 level of ADHC services, and she is at imminent risk of institutionalization if these services are

27 reduced to three days per week or terminated entirely.

28

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1

Ronald Bell – Termination of Benefits Subclass Representative

2

20. Named Plaintiff Ronald Bell is a 46-year-old man with unstable diabetes, a seizure

3 disorder, organic brain syndrome, hypertension, diabetic neuropathy, hyperlipidemia, and a cataract

4 in one eye. He is Medi-Cal eligible and has been approved by Medi-Cal for and receives ADHC

5 services three days per week at the Graceful Senescence Adult Day Health Care Program in Los

6 Angeles, California.

7

21. Mr. Bell lives with his 80-year-old grandmother and caretaker Rozene Dilworth, who

8 also has diabetes. Because Mr. Bell is subject to seizures at any time, and because of his cognitive

9 impairments, his grandmother can never leave him alone.

10

22. Due to his cognitive impairments, Mr. Bell needs assistance with accessing resources,

11 housework, laundry, meal preparation, money management, and shopping, and is totally dependent

12 on others for transportation and medication management.

13

23. In order to remain in his own home, Mr. Bell relies upon the skilled care and medical

14 monitoring he receives with his current level of ADHC services, and he is at risk of emergency room

15 visits and hospitalizations, and eventual out-of-home placement due to his unstable diabetes, his

16 seizure disorder, and his cognitive impairments.

17

24. Ronald Bell is proceeding in this litigation through his Guardian ad Litem Rozene

18 Dilworth, as he is not able to proceed on his own behalf. Ms. Dilworth has agreed to act as his

19 Guardian ad Litem and is qualified to do so. She will competently proceed on Mr. Bell’s behalf. An

20 application to appoint Rozene Dilworth as Ronald Bell’s Guardian ad Litem in this action has been

21 granted by this Court.

22

25. Mr. Bell and his family want him to remain in his own home with his current level of

23 ADHC services, and he is at imminent risk of institutionalization if these services are reduced or

24 terminated.

25

Esther Darling

26

26. Plaintiff Esther Darling is a 74-year-old woman who is diagnosed with diabetes, post-

27 stroke with with paralysis affecting her left side, atrial fibrillation, incontinence of urine, edema,

28

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1 depression, hearing loss, hemorrhoids, and gout. Ms. Darling receives Medi-Cal and is currently

2 attending ADHC five days per week.

3

27. Ms. Darling needs supervision with self-feeding, medication management, and

4 shopping. She requires assistance with ambulation, toileting, transferring, accessing resources,

5 hygiene, meal preparation, money management, and shopping. She is totally dependent on others

6 for bathing, dressing, housework, and laundry. She uses a wheelchair and walker for mobility.

7

28. Ms. Darling wants to continue to live in her own home with her current level of

8 ADHC services.

9

29. In order to remain in her own home in the community, Ms. Darling requires the daily

10 skilled nursing, medical monitoring and social and therapeutic activities she receives at ADHC five

11 days per week. Ms. Darling is at imminent risk of institutionalization if her current level of ADHC

12 services are reduced, modified, or terminated, and adequate long-term alternative services are not

13 provided without interruption in care.

14

Wendy Helfrich

15

30. Plaintiff Wendy Helfrich is a 40-year-old woman who is diagnosed with anoxic brain

16 damage due to cardiac arrest. Ms. Helfrich receives Medi-Cal and is currently attending ADHC

17 three days per week.

18

31. Ms. Helfrich needs assistance with ambulation, bathing, dressing, self-feeding,

19 toileting and transferring. She is totally dependent on others for accessing resources, housework,

20 hygiene, laundry, meal preparation, medication management, money management, shopping and

21 transportation. She requires one-on one, handhold assistance for ambulation.

22

32. Ms. Helfrich is proceeding in this litigation through her Guardian ad Litem Dennis

23 Arnett as she is not able to proceed on her own behalf. Mr. Arnett, who is Ms. Helfrich’s father and

24 conservator, has agreed to act as her Guardian ad Litem, and is qualified to do so. He will

25 competently proceed on Ms. Helfrich’s behalf. An application to appoint Mr. Arnett to act as a

26 Guardian ad Litem in this action has been filed with this court.

27

28

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1

33. Ms. Helfrich and her family want her to remain at home with her current level of

2 ADHC services.

3

34. In order to remain in her own home in the community, Ms. Helfrich requires the

4 medical monitoring, social and therapeutic activities, and the physical, occupational, and speech

5 therapy services she receives at ADHC three days per week. Ms. Helfrich is at imminent risk of

6 institutionalization if her current level of ADHC services are reduced, modified, or terminated, and

7 adequate long-term alternative services are not provided without interruption in care.

8

Jessie Jones

9

35. Plaintiff Jessie Jones is a 67-year-old woman who has been disabled since 1990,

10 when she had a severe stroke. She has diabetes, convulsions, hypertension, and congestive heart

11 failure. Ms. Jones receives Medi-Cal and is currently attending ADHC five days per week.

12

36. Ms. Jones needs assistance with ambulation, self-feeding, toileting and transferring.

13 She is totally dependent on others for bathing, dressing, housework, hygiene, laundry, shopping,

14 transportation, medication management, money management, accessing resources, and meal

15 preparation. She uses a wheelchair and walker for mobility, and she wears a brace on her lower right

16 leg.

17

37. Ms. Jones wants to remain in her home in the community, where she lives with her

18 daughter, with her current level of ADHC services.

19

38. In order to remain at home with her family, Ms. Jones requires the daily skilled

20 nursing, medical monitoring, and social and therapeutic activities she receives at ADHC five days

21 per week. Ms. Jones is at imminent risk of institutionalization if her current level of ADHC services

22 are reduced, modified, or terminated, and adequate long-term alternative services are not provided

23 without interruption.

24

Raif Nasyrov

25

39. Plaintiff Raif Nasyrov is an 88-year-old monolingual Russian speaking man who is

26 diagnosed with hypertension, arthritis, pulmonary vascular disease, cataracts, depression, dementia,

27

28

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1 hearing loss, urinary and fecal incontinence, Alzheimer’s disease, ulcer, and anxiety. Mr. Nasyrov

2 receives Medi-Cal and is currently attending ADHC five days per week.

3

40. Mr. Nasyrov needs supervision with bathing, self feeding, and medication

4 management and he needs assistance with hygiene, and ambulation. He is totally dependent on

5 others for accessing resources, housework, laundry, shopping, transportation, money management,

6 and meal preparation.

7

41. Mr. Nasyrov is proceeding in this litigation through his Guardian ad Litem, Sofia

8 Nasyrova, as he is not able to proceed on his own behalf. Ms. Nasyrova, who is Mr. Nasyrov’s

9 daughter, has agreed to act as his Guardian ad Litem, and is qualified to do so. She will competently

10 proceed on Mr. Nasyrov’s behalf. An application to appoint Ms. Nasyrova to act as a Guardian ad

11 Litem in this action has been filed with this Court.

12

42. Mr. Nasyrov and his family want him to remain in his own home with his current

13 level of ADHC services.

14

43. In order to remain in his own home in the community, Mr. Nasyrov requires the daily

15 skilled nursing, medical monitoring and social and therapeutic activities he receives at ADHC five

16 days per week. Mr. Nasyrov is at imminent risk of institutionalization if his current level of ADHC

17 services are reduced, modified, or terminated, and adequate long-term alternative services are not

18 provided without interruption.

19 Defendants

20

44. Defendant California Department of Health Care Services (DHCS) is a state agency

21 which receives federal funds and is responsible for administering the federal Medicaid program,

22 entitled, “Medi-Cal” in California. Defendant DHCS is sued only under the Second Claim for Relief

23 (Section 504 of the Rehabilitation Act) and the Seventh Claim for Relief (Cal. Gov’t. Code

24 § 11135).

25

45. Defendant Toby Douglas is the Director of the California Department of Health Care

26 Services, a state agency which receives federal funds. Defendant Douglas is a public agency

27 director responsible for operation of a public entity, pursuant to 42 U.S.C. §§ 12131(1)(A) and (B).

28

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1 Defendant Douglas is sued in his official capacity.

2

VI. STATUTORY AND REGULATORY FRAMEWORK

3 Federal and State Anti-Discrimination Laws

4

46. In enacting the Americans With Disabilities Act, Congress found that “[i]ndividuals

5 with disabilities continually encounter various forms of discrimination, including…segregation…”

6 42 U.S.C. § 12101(a)(5). Title II of the Americans with Disabilities Act provides that “no qualified

7 individual with a disability shall, by reason of disability, be excluded from participation in or be

8 denied the benefits of services, programs, or activities of a public entity or be subjected to

9 discrimination by such entity.” 42 U.S.C. § 12132.

10

47. Regulations implementing Title II of the ADA provide: “A public entity shall

11 administer services, programs, and activities in the most integrated setting appropriate to the needs

12 of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (1991).

13

48. Section 504 of the Rehabilitation Act of 1973, on which the ADA is modeled, sets

14 forth similar protections against discrimination by recipients of federal funds, such as Defendant

15 herein. 29 U.S.C. §§ 794-794a. These protections include the prohibition against unnecessary

16 segregation. Regulations implementing Section 504 require that a public entity administer its

17 services, programs and activities in “the most integrated setting appropriate” to the needs of

18 qualified individuals with disabilities. 28 C.F.R. § 41.51(d).

19

49. Regulations implementing Title II of the ADA and Section 504 also provide: “A

20 public entity may not, directly or through contractual or other arrangements, utilize criteria or other

21 methods of administration: (i) that have the effect of subjecting qualified individuals with

22 disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of

23 defeating or substantially impairing accomplishment of the objectives of the entity’s program with

24 respect to individuals with disabilities. . . .” 28 C.F.R. § 35.130(b)(3); 28 C.F.R. § 41.51(b)(3)(i);

25 45 C.F.R. § 84.4(b)(4).

26

50. ADA regulations further provide: “A public entity shall not impose or apply

27 eligibility criteria that screen out or tend to screen out an individual with a disability or any class of

28

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1 individuals with disabilities from fully and equally enjoying any service, program, or activity, unless

2 such criteria can be shown to be necessary for the provision of the service, program, or activity being

3 offered.” 28 C.F.R. § 35.130(b)(8).

4

51. ADA regulations further provide: “A public entity shall make reasonable

5 modifications in policies, practices, or procedures when the modifications are necessary to avoid

6 discrimination on the basis of disability, unless the public entity can demonstrate that making the

7 modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.

8 § 35.130(b)(7).

9

52. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581

10 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of

11 discrimination under Title II of the ADA. In doing so, the Court interpreted the ADA’s “integration

12 mandate” as requiring persons with disabilities to be served in the community when: (1) the state

13 determines that community-based treatment is appropriate; (2) the individual does not oppose

14 community placement; and, (3) community placement can be reasonably accommodated. 527 U.S.

15 at 607.

16

53. Similar to the ADA, California’s anti-discrimination statute prohibits discriminatory

17 actions by the state and state-funded agencies or departments, and provides civil enforcement rights

18 for violations. Cal. Gov’t. Code §§ 11135-11139.

19 Medicaid and Medi-Cal Programs

20

54. Medicaid is a cooperative, jointly-funded program between the federal and state

21 governments that provides medical assistance to, inter alia, low-income elderly persons and persons

22 with disabilities. 42 U.S.C. §§ 1396-1396w-5. The purpose of Medicaid is to furnish, as far as

23 practicable, “medical assistance on behalf of …aged, blind or disabled individuals, whose income

24 and resources are insufficient to meet the costs of necessary medical services” and “to help such

25 families and individuals to attain or retain capability for independence or self-care…” 42 U.S.C.

26 § 1396-1.

27

55. On the federal level, Medicaid is administered by the Centers for Medicare and

28

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1 Medicaid Services (CMS), an agency within the United States Department of Health and Human

2 Services (DHHS).

3

56. California has elected to participate in Medicaid, and, therefore, must comply with

4 the requirements of the federal Medicaid Act, and its implementing regulations. 42 U.S.C. § 1396-

5 1396v. California’s Medicaid program is known as “Medi-Cal,” and is set forth in the Welfare and

6 Institutions Code. Cal. Welf. & Inst. Code §§ 14000-14685.

7

57. States participating in Medicaid must designate a “single State agency” to administer

8 or supervise the administration of the plan. The California Department of Health Care Services

9 (DHCS) is the single state agency and administers the California Medicaid program.

10

58. States participate in Medicaid by submitting a State Medicaid Plan to CMS for

11 approval. 42 U.S.C. § 1396; 42 C.F.R. § 430.12 (2009). States can make changes to their Medicaid

12 programs by submitting state plan amendments to CMS for approval. Id. Coverage of certain

13 services is mandatory under Medicaid. For one, States that elect to participate in the Medicaid

14 program must cover nursing facility services for individuals over 21 years of age. 42 U.S.C.

15 § 1396d(a)(4)(A). States must also offer: home health agency services, including skilled nursing

16 services; other rehabilitative services; and, at state option, physical therapy, occupational therapy,

17 and speech pathology. 42 U.S.C. § 1396d(a)(xiii)(7), (13); 42 C.F.R.§ 440.70 (2009). California

18 offers physical and occupational therapy and speech pathology as part of its home health agency

19 service. 22 C.C.R. § 51337(a)(3).

20

59. California’s Medi-Cal plan provides payments for a variety of services, including but

21 not limited to: Adult Day Health Care, personal care services, home health agency services, skilled

22 nursing facility services, hospital services, specialty mental health services, targeted case

23 management, and medical and non-medical transportation.

24

60. “Categorically needy” Medicaid beneficiaries are beneficiaries who fit into a

25 particular category and have incomes below specified levels. “Medically needy” Medicaid

26 beneficiaries are those who meet categorical requirements for such assistance, e.g., they are over age

27 65, blind, or disabled, and whose incomes exceed categorically needy levels, but have medical

28

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1 expenses which are high enough to reduce their available monthly income to a specified low level.

2

61. Under federal Medicaid requirements, states must provide comparable benefits, i.e.,

3 benefits that are equal in “amount, duration and scope,” to all categorically needy Medicaid

4 beneficiaries. 42 U.S.C. § 1396a(a)(10)(B)(i); 42 C.F.R. §§ 440.240(a), (b)(1). States must also

5 provide comparable benefits to all medically needy Medicaid beneficiaries. States can provide

6 benefits to the medically needy that are less in amount, duration and scope than benefits to the

7 categorically needy, but California has not elected to do so. Therefore (with certain exceptions for

8 some groups such as pregnant women, certain aliens and services provided pursuant to waiver of

9 federal requirements) California must provide benefits under its Medicaid program that are equal in

10 amount, duration and scope to all eligible beneficiaries.

11

62. A State Medicaid program must use “reasonable standards (which shall be

12 comparable for all groups …) for determining eligibility for and the extent of medical assistance

13 under the plan which … are consistent with the objectives” of the program. 42 U.S.C.

14 § 1396a(a)(17).

15

63. The federal Medicaid Act requires that states provide individuals with the opportunity

16 to make application for medical assistance and that such assistance shall be furnished, as an

17 entitlement, with reasonable promptness to all eligible individuals. 42 U.S.C. § 1396a(a)(8).

18 Medicaid Due Process Requirements

19

64. Recipients and applicants for Medicaid services have rights to written notice and an

20 opportunity for a hearing before coverage of services can be denied, suspended, reduced or

21 terminated. Goldberg v. Kelly, 397 U.S. 254 (1970); 42 U.S.C. § 1396a(a)(3); 42 C.F.R.

22 §§ 431.200-250.

23

65. At least ten days before termination, suspension, or reduction of Medicaid eligibility

24 or covered services, written notice must be mailed to Medicaid beneficiaries. 42 C.F.R. §§ 431. 201,

25 .206(b), .211.

26

66. Such notice must include:

27

(a) a statement of the action the State intends to take;

28

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1

(b) the reasons for the intended action;

2

(c) the specific regulations that support, or the change in federal or state law that

3

requires, the action;

4

(d) an explanation of the individual’s right to request an evidentiary hearing or a

5

state agency hearing; and in cases of an action based on a change in law, the

6

circumstances under which a hearing will be granted; and

7

(e) an explanation of the circumstances under which Medicaid is continued if a

8

hearing is requested. 42 C.F.R. § 431.210.

9

67. The state agency must grant an opportunity for a hearing when a recipient requests it

10 because he or she believes that services have been denied, reduced, suspended, or terminated

11 erroneously. The agency need not grant a hearing if the sole issue is a Federal or State law requiring

12 an automatic change adversely affecting some or all recipients. 42 C.F.R. §§ 431.220(a)(2), (b)

13 (emphasis added).

14

68. If, after notice of reduction, suspension, or termination of covered services is

15 provided, a recipient requests a hearing before the action takes place, services must be continued at

16 the same level until a decision is rendered after the hearing. 42 C.F.R. § 431.230.

17

69. Medi-Cal recipients are entitled to notice of their right to a fair hearing when there is

18 any action by the Department to deny, terminate, defer, or reduce any medical service. Cal. Code

19 Regs. tit. 22 § 51014.1(a).

20 Medi-Cal Covered Services

21

70. ADHC: Under Medi-Cal, each adult day health care center shall provide, directly on

22 the premises, at least the following services: 1) rehabilitation services, including physical therapy,

23 occupational therapy, and speech therapy; 2) medical services supervised by either the participant's

24 personal physician or a staff physician or both; 3) nursing services, including: (a) skilled nursing

25 care rendered by professional nursing staff, who evaluate the particular nursing needs of each

26 participant and provide the care and treatment indicated, and (b) self-care training and services

27 oriented toward activities of daily living and personal hygiene, such as toileting, bathing and

28

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1 grooming; 4) nutrition services, including (a) a minimum of one meal per day and (b) dietary

2 counseling and nutrition education for participants and their families; 5) psychiatric and

3 psychological services including:(a) consultation, (b) individual assessment, (c) supervision of

4 treatment by a psychiatrist, psychologist, psychiatric social worker or psychiatric nurse, when

5 indicated; 6) medical social services to participants and their families to help with personal, family

6 and adjustment problems that interfere with the effectiveness of treatment; 7) recreational and social

7 activities suited to the needs of the participants and designed to encourage physical exercise to

8 prevent deterioration and to stimulate social interaction; and 8) non-medical and medical

9 transportation service for participants, if necessary, to and from their homes, including the use of

10 specially equipped vehicles when medically necessary to accommodate participants with severe

11 physical disabilities that limit mobility. Cal. Code Regs. tit. 22 (2009) § 54309(a) (1995); Cal. Welf.

12 & Inst. Code § 14520, et seq.; Cal. Health & Safety Code § 1570, et seq..

13

71. IHSS: Under Medi-Cal, Plaintiffs and class members are entitled to the following

14 personal care services in their own homes through the In-Home Supportive Services (IHSS)

15 program, depending on individual need, up to a statutory cap of 283 hours per month: meal

16 preparation and cleanup, feeding, transportation to and from medical appointments, ambulation,

17 bowel and bladder care, paramedical services, protective supervision, and other personal care

18 services. Cal. Welf. & Inst. Code §§ 12300, 14132.95, 14132.951.

19

72. Home Health: Under Medi-Cal, Plaintiffs and class members are entitled to the

20 following home health agency services depending on individual need and when prescribed by a

21 physician: part-time or intermittent skilled nursing services by licensed nursing personnel; in-home

22 medical care services as defined in California Welfare and Institutions Code section 14132(s);

23 physical, occupational or speech therapy; medical social services; home health aide services, which

24 include assisting with personal care, bathroom needs and ambulation, and performing medically

25 necessary household services to facilitate self-care such as changing the bed and light cleaning;

26 medical supplies other than drugs and biologicals; and the use of medical appliances, provided for

27 under an approved treatment plan. Cal. Code. Regs. tit. 22 §§ 51003, 51146, 51217, 51337, 51455,

28

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1 51523; Cal. Health & Safety Code §§ 1725 et seq. ; Chapter 9.1., Medi-Cal Manual of Criteria R-15-

2 98E.

3

73. Nursing Facilities: Under Medi-Cal, Plaintiffs and class members are entitled to

4 skilled nursing facility services to provide skilled nursing care and supportive care to individuals,

5 depending on individual need. Cal. Health & Safety Code § 1250(c).

6

74. Acute Hospitals: Under Medi-Cal, Plaintiffs and class members are entitled to 24-

7 hour inpatient acute hospital care, including the following basic services: medical, nursing, surgical,

8 anesthesia, laboratory, radiology, pharmacy, and dietary services, depending on individual need.

9 Cal. Health & Safety Code § 1250(a).

10

75. Specialty Mental Health: Under Medi-Cal, Plaintiffs and Class members are entitled

11 to receive Specialty Mental Health services in the community, which include rehabilitation services

12 and medication management, depending on individual need. Cal. Welf. & Inst. Code §§ 14021(a),

13 14021.4, 14681, 14683, 14684; Cal. Code Regs. tit. 9 §§ 1810.100; 1810.247.

14

76. Targeted Case Management: Under Medi-Cal, Plaintiffs and Class members are

15 entitled to receive Targeted Case Management (TCM) to assist them, depending on individual need,

16 in gaining access to needed medical, social, educational and other services, including assistance in

17 obtaining services covered under the Medi-Cal State Plan, assessment, service/support planning, and

18 monitoring services and supports to ensure their needs are met. Cal. Welf. & Inst. Code § 14132.44.

19

77. Transportation: Under Medi-Cal, Plaintiffs and Class members are entitled to receive

20 medical and non-medical transportation, depending on individual need. 42 C.F.R. § 431.53; Cal.

21 Welf. & Inst. Code §§ 14132(i), 14133.6, 14133.65, 14136 et seq.; Cal. Code Regs tit. 22

22 §§ 51151.7, 51151 et seq.

23

78. In addition to Medi-Cal State Plan services, federal law allows the federal

24 government to waive certain provisions of federal Medicaid law in order to allow states to provide

25 home and community-based services in lieu of institutional care, for qualifying individuals.

26 42 U.S.C. § 1396n(c) and (d). These programs are known as “Home and Community-Based

27 Waivers” and they offer a broad range of community-based long-term care services, such as personal

28

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1 care assistance, nursing care, home modifications, and habilitation. CAL. CODE REGS. tit. 22

2 §§ 51173.1, 51176.

3

79. California currently has six (6) Home and Community-Based Services (HCBS)

4 waivers for adults, including:

5

a) The “Nursing Facility Acute Hospital Waiver,” or “NF/AH Waiver” which

6

provides people with disabilities a variety of in-home long-term care services,

7

rather than receive these services in an institution. Cal. Welf. & Inst. Code

8

§§14137; 14132.99(a-f).

9

b) The Multipurpose Senior Services Program (MSSP), which provides case

10

management to frail elderly individuals 65 years of age and older who are

11

certifiable for placement in a nursing facility. Cal. Welf. & Inst. Code §§

12

9560-9568.

13

80. In addition, federal law allows states to apply for a Medicaid State Plan Amendment

14 to provide home and community-based services for individuals who meet specific needs-based

15 criteria. 42 U.S.C. § 1396n(i). These are commonly known as “1915(i) Waivers” or “State Plan

16 Amendments.”

17

81. Upon information and belief, California has one 1915(i) State Plan Amendment

18 which serves only individuals with developmental disabilities and does not offer Adult Day Health

19 Care services.

20 2009 Legislation Affecting ADHC—ABx4 5 (Chapter 5, Statutes of 2009)

21

82. ABx4 5 was passed by the Legislature on July 28, 2009 and was scheduled to go into

22 effect on August 27, 2009. The new law would have made two significant cutbacks to the ADHC

23 program.

24

83. First, effective August 27, 2009, ABx4 5 would have reduced Medi-Cal funding for

25 ADHC to a maximum of three days per week for all Medi-Cal beneficiaries, with no exceptions.

26 Cal. Welf. & Inst. Code § 14132(p)(2). This provision of ABx4 5 was enjoined by this Court on

27 September 10, 2009. In addition to this cut, new arbitrary and restrictive eligibility requirements

28

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1 limiting who will receive ADHC services were to go into effect when the Director of DHCS

2 provided a written declaration that the restrictive eligibility requirements were ready to be

3 implemented. Cal. Welf. & Inst. Code § 14521.1. These restrictive eligibility requirements would

4 have terminated or denied ADHC services to individuals based on their need for assistance with

5 eight specified activities of daily living and need for a certain institutional level of care. Defendants

6 targeted March 1, 2010 as the date that the restrictive eligibility requirements would have gone into

7 effect. This provision was enjoined by this Court on February 24, 2010.

8

84. ABx4 5 provided that upon the declaration by the Director, Medi-Cal would again

9 cover the ADHC benefit up to a maximum of five days per week for the participants who remained

10 eligible.

11

85. The new requirements created arbitrary and ambiguous eligibility standards, which

12 would have resulted in termination of ADHC for approximately 15,000 individuals who received

13 ADHC services — 40 % of the participants, according to Defendants. These individuals would have

14 been terminated entirely from the program, and otherwise qualified future applicants would have

15 been denied ADHC services, leaving them at risk of institutionalization, hospitalization, or physical

16 and/or mental deterioration resulting in hospitalization and/or institutionalization. The legislation

17 contains no exceptions for individuals who would be at risk of institutionalization without ADHC

18 services or for whom adequate alternatives are not available. Cal. Welf. & Inst. Code §§ 14525.1,

19 14526.2, 14522.4.

20 2011 Legislation Affecting ADHC – AB 97 (Chapter 3, Statutes of 2011) and SB 69 (2011-2012

21 Budget)

22

86. AB 97 was passed by the Legislature on March 17, 2011, and signed into law on

23 March 24, 2011. AB 97 eliminates ADHC as a Medi-Cal optional benefit as early as July 1, 2011,

24 or 60 days after federal approval, whichever is later. Cal. Welf. & Inst. Code § 14589.5.

25

87. AB 97 authorizes Defendant DHCS to implement a “short-term program” to fund

26 organizations to transition ADHC participants to other Medi-Cal, social or respite services, or to

27 provide “social activities and respite assistance” for such individuals. Cal. Welf. & Inst. Code

28

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1 § 14590(a). These short-term programs may be implemented via contracts with DHCS, pursuant to

2 a competitive bidding process established by DHCS. Cal. Welf. & Inst. Code § 14590(c).

3 Implementation of the short-term program is subject to appropriation in the Budget Act. Cal. Welf.

4 & Inst. Code § 14590(e).

5

88. AB 97 contains no assurances that the short-term program will be in effect when

6 ADHC is eliminated, or even that ADHC participants will receive, without interruption in care,

7 adequate alternative services that they have been assessed to need to avoid unnecessary

8 institutionalization.

9

89. AB 97 also states that “legislation will be adopted to create a new program called the

10 Keeping Adults Free from Institutions (KAFI) program.” KAFI, if developed as indicated, will be

11 more limited than the current ADHC program, as its stated purpose is to “provide a well-defined

12 scope of services to eligible beneficiaries who meet a high medical acuity standard and are at

13 significant risk of institutionalization in the absence of such community services.” If such

14 legislation is passed, Defendant DHCS will be authorized to pursue a “federal waiver” to draw down

15 federal reimbursement for KAFI.

16

90. AB 97 contains no provisions for long-term alternative services for individuals who

17 do not qualify for KAFI or for whom KAFI may not be available due to funding or eligibility

18 limitations.

19

91. The 2010-2011 budget for ADHC was $369.8 million, of which $176.6 million came

20 from state general funds. In the budget bill passed by the Legislature, SB 69 (Budget Act of 2011),

21 this appropriation has been essentially reduced by at least 50% for 2011-2012, replaced by an $85

22 million general fund appropriation, with unspecified federal matching funds, for transition of current

23 ADHC enrollees and future waiver services.

24

92. To date, SB 69 has not been signed by the Governor and thus, there is currently no

25 appropriation for the short-term program or KAFI to replace ADHC when it is eliminated.

26

27

28

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1

VII. FACTUAL ALLEGATIONS

2 Background of the ADHC Program

3

93. Adult Day Health Care is a community-based day program for low- income elderly

4 persons and younger disabled adults. ADHC programs provide comprehensive health and social

5 services centered on a multi-disciplinary team approach with skilled professionals providing

6 individualized care, treatment, and services to frail elderly and disabled persons, in order to

7 maintain their ability to reside in the community.

8

94. The California legislature specifically intended ADHC as an alternative to

9 institutional care. Cal. Health & Safety Code § 1570.2. The ADHC program includes as an

10 eligibility criteria for receipt of services that: “A high potential exists for the deterioration of the

11 participant’s medical, cognitive, or mental health condition or conditions in a manner likely to

12 result in emergency department visits, hospitalization, or other institutionalization if adult day

13 health care services are not provided.” Cal. Welf. & Inst. Code § 14526.1(d)(4). The goal of the

14 ADHC program is to prevent avoidable hospitalizations, emergency department use and nursing

15 facility placement by improving and stabilizing an individual’s daily functioning, medical

16 conditions and mental status. Cal. Health & Safety Code § 1570.2.

17

95. Adult Day Health Care services are typically provided at a community based center.

18 Participants live at home or in a residential care facility, and are transported to and from the

19 program center on a daily basis. In order to attend ADHC, each participant’s conditions must

20 “require adult day health care services … on each day of attendance, that are individualized and

21 designed to maintain the ability of the participant to remain in the community and avoid emergency

22 department visits, hospitalizations, or other institutionalization.” Cal. Welf. & Inst. Code

23 § 14526.1(d)(5).

24

96. For one daily all-inclusive Medi-Cal reimbursement rate of $76.22, ADHCs are

25 required to provide skilled nursing, skilled social work, therapeutic activities, dietician and

26 nutritionally customized meal services, skilled physical therapy, skilled occupational therapy, skilled

27 speech and language pathology services, skilled mental health services and non-emergency

28

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1 transportation to and from the center. The number of days of service per week are based on the

2 participant’s needs and Medi-Cal authorizations.

3

97. Statewide, participants funded through Medi-Cal comprise approximately 90% of

4 the 37,235 individuals who were projected to be served in ADHC centers in Fiscal Year 2009-10.

5 ADHCs serve a disproportionate number of Medi-Cal beneficiaries because the program was

6 designed, as a matter of public policy, to be a community-based alternative to nursing facilities for

7 low-income adults with disabling physical, mental, or cognitive conditions.

8

98. Based on the most recent available information provided by the California

9 Department of Aging, 61.8% of those served in ADHC are 75 years of age or older. Of that group,

10 21% are over the age of 85, the most rapidly growing segment of California’s population. There

11 are few options comparable to ADHC services for those older adults who choose to live out their

12 lives with dignity and independence in their own homes or in community-based settings.

13

99. While many persons served are elderly and physically frail, ADHCs also serve

14 elderly and younger adults with chronic and disabling mental health, cognitive or physical

15 conditions: for example, chronic schizophrenia, mental retardation, Parkinson’s disease,

16 Alzheimer’s disease, stroke, or head injury.

17

100. Individuals wishing to receive ADHC services must have a physician submit

18 historical and physical information and participate in a three-day assessment performed by a multi-

19 disciplinary team of clinicians including a registered nurse, social worker, and therapist, at a

20 minimum. An Individual Plan of Care (IPC) is designed and submitted to Medi-Cal along with the

21 Treatment Authorization Request (TAR). All individuals with Medi-Cal insurance must be prior-

22 authorized by the DHCS through a local Medi-Cal field office to attend the ADHC center for a

23 certain number of days per week.

24

101. This approval to receive services is re-authorized every six months. The State

25 adjudicates the number of days of attendance based on the documented need of each beneficiary.

26 Medi-Cal funds up to five days per week of attendance, depending on the individual need of the

27 participant.

28

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1

102. The State of California pays significantly more to institutionalize disabled individuals

2 in nursing facilities or other institutions than it does to cover their care in community-based settings,

3 e.g., ADHC services. The average daily rate for nursing facility services is approximately $161.81,

4 or $4,854.30 per month.

5

103. The ADHC program helps prevent costly and unnecessary institutionalization, saving

6 the State significant funds, and, at the same time, improving the quality of life for the individuals

7 served.

8 Cuts in Days of Service from a Maximum of Five to No More than Three Under ABx4 5

9

104. The Governor signed ABx4 5 on July 28, 2009. The bill provided that, effective 30

10 days after the law was signed by the Governor, the maximum number of days that any ADHC

11 participant may be authorized for Medi-Cal funding to attend ADHC is cut from five to three,

12 regardless of current authorizations or the health condition of the individual. Cal. Welf. & Inst.

13 Code § 14132 (p)(2),. These cuts were preliminarily enjoined by this Court on September 10, 2009

14 and have not taken effect.

15

105. Defendants have estimated that the reduction in the ADHC benefit from four or five

16 days to three days would have affected approximately 8,000 individuals.

17

106. Upon information and belief, Defendants did not arrange for provision of alternative,

18 community-based Medi-Cal services to be provided to ADHC participants affected by ABx4 5.

19 Defendants have represented that they do not intend to secure the alternative services that, pursuant

20 to this Court’s Preliminary Injunction Order, would allow them to cut ADHC to no more than three

21 days per week and thus, Welfare and Institutions Code section 14132(p)(2) has not been

22 implemented.

23

107. The group of individuals affected by the five-to-three day cut are members of the

24 “Limitation of Benefits Subclass” discussed below.

25

108. On April 20, 2010, the parties stipulated that section 14132(p)(2) “will be

26 permanently inoperative” and the parties agreed that they would not conduct further litigation as to

27

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1 the claims previously alleged by the Limitation of Benefits subclass, except for litigation regarding

2 attorneys’ fees and costs and enforcement of the stipulation. (Docket No. 187).

3 New, Restrictive ADHC Eligibility Requirements Under ABx4 5

4

109. New, restrictive eligibility requirements limiting who would receive ADHC services

5 were scheduled to go into effect when the Director of DHCS provided a written declaration that the

6 requirements are ready to be implemented. The State targeted March 1, 2010 as the date that these

7 restrictive eligibility requirements would have gone into effect. This declaration was intended to

8 trigger reinstatement of the maximum number of days allowable under the ADHC program to five

9 per week, while at the same time triggering the new eligibility restrictions, resulting in termination

10 of all services for many current beneficiaries who need and receive them, and denial of eligibility for

11 otherwise qualified future applicants to ADHC. There was no exception process for individuals who

12 were determined to be at risk of institutionalization without ADHC services or for whom adequate

13 alternatives are not available. Cal. Welf. & Inst. Code § 14525.1.

14

110. The new and restrictive eligibility criteria would require that in order to receive

15 ADHC services, individuals without any cognitive impairment had to: (1) meet the Nursing

16 Facility- level A (Intermediate Care Facility) level of care set forth in Title 22 Section 51120 of the

17 California Code of Regulations; and (2) due to functional impairments, require “substantial human

18 assistance” to perform two or more specified activities: ambulation, bathing, dressing, self-feeding,

19 toileting, transferring, medication management, and hygiene. Cal. Welf. & Inst. Code § 14525.1.

20

111. The new requirements defined “substantial human assistance” as direct, hands-on

21 assistance provided by a qualified caregiver, which entails physically helping the participant perform

22 the activity. It entails more than cueing, supervision, or stand-by assistance and includes the

23 performance of the entire activity for participants totally dependent on human assistance. Cal. Welf.

24 & Inst. Code § 14522.4(a)(10).

25

112. The new level of care criteria that individuals without cognitive impairments would

26 be required to meet, contained in Title 22, Section 51120 of the California Code of Regulations

27 states that individuals must require “intermediate care services” which means that they, inter alia,

28

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1 “require protective and supportive care, because of mental or physical conditions or both, above the

2 level of board and care.” (emphasis added). While “board and care” is not a term of art, and was not

3 defined by ABx4 5 or the Defendants, the term loosely refers to licensed residential care facilities

4 whose services vary widely — some offer simply meals and housing, while others offer supportive

5 services. Upon information and belief, many current recipients would have been terminated from,

6 and otherwise qualified future applicants would be denied access to, ADHC simply because of their

7 living arrangement.

8

113. Different eligibility requirements would apply for certain individuals with cognitive

9 impairments – specifically, those individuals who: (1) are residents of an Intermediate Care Facility

10 for Persons with Developmental Disabilities (ICF-DD H), and have disabilities and a level of

11 functioning that are of such a nature that, without supplemental intervention through Adult Day

12 Health Care, placement to a more costly institutional level of care would be likely to occur; (2) have

13 chronic mental illness; (3) have moderate to severe Alzheimer's disease; or (4) have other “cognitive

14 impairments.” These individuals would be required to show a need for “assistance” with the eight

15 specified activities: ambulation, bathing, dressing, self-feeding, toileting, transferring, medication

16 management, and hygiene.

17

114. The new eligibility requirements define “assistance” as “verbal or physical prompting

18 or aid, including cueing, supervision, stand-by assistance, or hands-on support to complete the task

19 correctly.” Cal. Welf. & Inst. Code § 14522.4(a)(9).

20

115. The new requirements define “cognitive impairment” as “the loss or deterioration of

21 intellectual capacity characterized by impairments in short- or long-term memory, language,

22 concentration and attention, orientation to people, place or time, visual-spatial abilities or executive

23 functions, or both, including, but not limited to, judgment, reasoning, or the ability to inhibit

24 behaviors that interfere with social, occupational, or everyday functioning due to conditions,

25 including, but not limited to, mile cognitive impairment, Alzheimer’s disease or other form of

26 dementia, or brain injury.” Cal. Welf. & Inst. Code § 14522.4(a)(11).

27

28

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1

116. Upon information and belief, the definition of “cognitive impairment” does not

2 include people with mental retardation or other developmental disabilities who have not experienced

3 a “loss or deterioration of intellectual capacity” but rather, who were born with such impairments.

4 This means that such individuals, unless they reside in an ICF-DD H facility, would be subject to the

5 same stringent criteria as individuals without any cognitive impairment, rather than the less

6 restrictive requirements that would apply to others with cognitive impairments or mental illness.

7

117. Upon information and belief, Defendants interpreted eligibility requirements under

8 ABx4 5 as requiring that individuals demonstrate that they would require assistance or substantial

9 human assistance with the eight specified activities at the ADHC center. Since participants do not

10 typically bathe, dress, or maintain hygiene at the center, individuals who require assistance or

11 substantial human assistance with those activities would not be allowed to count a need for such

12 assistance towards ADHC eligibility.

13

118. The new ADHC eligibility requirements are not a reasonable measure of need for

14 ADHC services. The new ADHC eligibility requirements are a particularly poor measure of need

15 for certain groups of ADHC recipients, such as those who are medically fragile or those who have a

16 high level of need in one area but not others, or those with cognitive impairments that affect their

17 judgment but not their ability to perform the eight specified activities.

18

119. Individuals who did not meet the new eligibility requirements would have had their

19 services terminated, and future, otherwise-qualified applicants would be denied ADHC services.

20 Upon information and belief, those individuals most likely to be affected by the new, restrictive

21 eligibility requirements would have included those with unstable diabetes or other unstable medical

22 conditions, and medically frail elders who do not meet the test of requiring “substantial human

23 assistance” in performing two of eight activities of daily living because they are ambulatory and can

24 move their limbs, but are dependent on the medical monitoring, nursing treatments, medication

25 management, structured environment and social work to maintain stability, and avoid

26 hospitalization, deterioration, or nursing facility placement. In addition, individuals harmed by the

27 new eligibility requirements would likely have been those with cognitive impairments such as mild

28

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1 Alzheimer’s disease, mental illness, developmental disabilities or brain injury who are physically

2 able to care for themselves but who may forget to take medications or eat when alone, and require

3 the structure, stability, socialization, frequent assessment, and medication management offered by

4 ADHC.

5

120. The group of individuals who would have been terminated from or denied ADHC

6 based on the new, restrictive eligibility requirements are members of the “Termination of Benefits

7 Subclass”, discussed below.

8 Implementation of New, Restrictive Eligibility Requirements Under ABx4 5

9

121. ABx4 5 required that prior to issuing the declaration that would have implemented

10 the new, restrictive eligibility requirements, Defendants had to meet and confer with stakeholders for

11 determining the methods and procedures necessary to implement the new requirements. Cal. Welf.

12 & Inst. Code §§ 14525.1(f) and (g). Defendants held two two-hour meetings, on November 17,

13 2009 and December 1, 2009, during which they reviewed the new eligibility requirements and draft

14 participant plan of care with attendees.

15

122. The ADHC providers in attendance at these meetings raised significant issues with

16 respect to definition and interpretation of terms; asked questions about the State’s expectation of the

17 role of ADHC providers — including provision of notice, hearings, and obligation to secure

18 alternative services; and requested training on the implementation of the new requirements. The

19 California Association of Adult Day Services (CAADS), provided a written list of questions and

20 concerns to the State.

21

123. Defendants failed to provide clarification as to essential definitional and procedural

22 aspects of implementation of the new eligibility requirements, and declined to offer training to the

23 ADHC providers who would have been required to conduct assessments and make eligibility

24 determinations, despite repeated requests by providers. Defendants failed to respond adequately to

25 the questions raised by CAADS. Thus, there was, prior to the Court’s Order enjoining

26 implementation of ABx4 5, a virtual certainty of overly broad, improper and inconsistent application

27 of the new requirements.

28

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124. Prior to the Court’s February 24, 2010 Order enjoining implementation of the new

2 eligibility criteria, Defendants failed to arrange for or provide information about securing alternative

3 community services, steps to take to avoid institutionalization, or procedures for requesting

4 reasonable accommodations.

5

125. On March 3, 2010, Defendants issued the Declaration pursuant to Welfare and

6 Institutions Code section 14525.1(g).

7

126. On April 20, 2010, the parties entered into a stipulation in which Defendants agreed

8 that issuance of the March 3 Declaration “is not intended to, nor has the effect of, modifying,

9 voiding, or otherwise altering any terms of the February 24, 2010 Injunction.” (Docket No. 187).

10 Elimination of ADHC Pursuant to AB 97 and SB 69

11

127. On March 24, 2011, the Governor signed Assembly Bill 97 (Chapter 3, Statutes of

12 2011) which eliminates ADHC as an optional Medicaid benefit as soon as July 1, 2011. Cal. Welf.

13 & Inst. Code § 14589(b).

14

128. AB 97 references alternative services to which ADHC participants can be transitioned

15 upon the elimination of ADHC; however there are numerous barriers to these individuals’ receipt of

16 such services, including eligibility restrictions, enrollment caps, geographic limitations, and

17 limitations on coverage and scope of services for those who do qualify. Cal. Welf. & Inst. Code

18 §§ 14589(a)(3) and (4).

19

129. AB 97 mandates the creation of a “short term program” to fund organizations to assist

20 former ADHC participants to transition to other Medi-Cal services and/or to provide social or respite

21 services to those participants. Cal. Welf. & Inst. Code § 14590(a).

22

130. There is no requirement in AB 97 that such “short-term programs” be fully in place

23 before the elimination of ADHC, nor assurances that ADHC participants will not experience gaps in

24 services when ADHC is eliminated. Cal. Welf. & Inst. Code § 14590(a).

25

131. Upon information and belief, Defendants do not have a plan to ensure that upon the

26 elimination of ADHC, the alternative services that have been assessed to be necessary to avoid

27

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1 institutionalization will be identified and in place to ensure that Plaintiffs will not suffer any gap in

2 the services required by their ADHC plans of care.

3

132. AB 97 also indicates that “[d]uring the 2011–12 Regular Session of the Legislature,

4 legislation will be adopted to create a new program called the Keeping Adults Free from Institutions

5 (KAFI) program… [a]s prescribed by subsequent statute, the Department of Health Care Services

6 shall develop a federal waiver to maximize federal reimbursement for the KAFI program to the

7 extent permitted by federal law.” AB 97, Sec. 105.

8

133. Upon information and belief, the KAFI program will narrow the scope of ADHC

9 services and eligibility requirements for receipt of ADHC services: “This program will provide a

10 well-defined scope of services to eligible beneficiaries who meet a high medical acuity standard and

11 are at significant risk of institutionalization in the absence of such community-based services.” AB

12 97 Sec. 105.

13

134. Upon information and belief, the KAFI program will not be in place when ADHC is

14 eliminated, nor is there any certainty that the Legislature will pass and the Governor will sign

15 legislation to authorize the KAFI program.

16

135. Upon information and belief, Defendant DHCS has not applied for a federal waiver to

17 provide KAFI services.

18

136. For those Class Members who will not qualify for the KAFI program, or who exceed

19 expected enrollment or funding caps, AB 97 contains no provisions for long-term community-based

20 alternatives to ensure they are not unnecessarily institutionalized.

21

137. Upon information and belief, Defendants have no plan to ensure that uninterrupted

22 long-term alternative services are in place for Class Members who will not receive KAFI services.

23

138. ADHC’s 2010-2011 budget was $369.8 in total, of which $176.6 came from state

24 general funds. In the budget bill passed by the Legislature, SB 69 (Budget Act of 2011), this

25 appropriation has been reduced by at least 50%, replaced by an $85 million general fund

26 appropriation, with unspecified federal matching funds, for transition of current ADHC enrollees and

27 future waiver services.

28

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139. To date, SB 69 has not been signed by the Governor and thus, there is currently no

2 appropriation to provide short-term transition and/or KAFI services.

3

140. Upon information and belief, over 37,000 individuals currently receive Medi-Cal

4 funded ADHC services and thus will be affected by AB 97.

5

141. The group of individuals affected by the elimination of ADHC are members of the

6 amended Class discussed below.

7

142. Upon information and belief, some ADHC centers are already planning to close in

8 anticipation of the July 1, 2011 elimination date. To date, at least two centers have announced

9 plans to close prior due to AB 97.

10 Facts Related to Plaintiff Allie Jo Woodard — Limitation of Benefits Subclass Representative

11

143. Allie Jo Woodard attends the Bayview Hunter’s Point ADHC program in San

12 Francisco California. She has been attending the program for eleven years. She is authorized to

13 receive and does receive Medi-Cal funded ADHC services five days a week. Her most current IPC

14 is approved through June 30, 2011.

15

144. In accordance with her most recent IPC at the Bayview Hunter’s Point ADHC

16 program, Ms. Woodard receives:

17

a) professional nursing services every day to monitor her for fall risk, for her

18

hypertension, for her pain and mobility related to her arthritis, and for orthostasis due

19

to cardiac and psychiatric medications;

20

b) personal care services daily to monitor her exertion level to prevent cardiac

21

compromise and to prevent injuries due to her impaired cognition;

22

c) social services intended to prevent psychiatric hospitalization in the form of group

23

activities, weekly psychological counseling, daily check in with the program social

24

worker to reorient her to reality, and assistance in interactions due to altered

25

communication related to her psychiatric disorder;

26

27

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d) therapeutic activities to decrease her feelings of isolation, and improve her

2

interactions with peers, including through skilled observation of her socializations

3

and peer interaction, group therapies, and music and art activities; and

4

e) physical therapy maintenance program to address her decreased functional mobility

5

and impaired mobility requiring assistance for transfers and ambulation during

6

episodes of emotional and mental decompensation, two days per week.

7

f) registered dietician services to address her weight and hypertension, as well as history

8

of diabetes.

9

145. Mrs. Woodard’s current IPC states that she is at a high risk of institutionalization if

10 she does not receive ADHC services five days per week, based on her two or more chronic medical

11 conditions, poor judgment, frailty, isolation, risk for falls, self neglect, periodic acute psychotic

12 symptoms, inappropriate affect, appearance, or behavior, and dementia-related behavioral problems.

13

146. Ms. Woodard lives alone, however she is never able to actually be alone because she

14 is at risk of wandering. A few years ago she was missing for two full days.

15

147. Ms. Woodard has the maximum hours of IHSS allowable, 283 hours per month. In

16 addition, her daughter and son rotate spending the night with her. On the weekends her daughter

17 Linda Gaspard-Berry brings her to Ms. Gaspard-Berry’s home in Fremont.

18

148. Ms. Woodard’s disability causes her to be very fragile emotionally, and she has had

19 frequent psychiatric hospitalizations as a result. She is also at risk of falling, and sometimes needs

20 constant physical and verbal cueing to use her walker.

21

149. Her daughter believes that Ms. Woodard’s attendance and services at the ADHC five

22 days per week are essential to support her, and that without the program’s services, Ms. Woodard

23 would have been hospitalized more frequently than she has been.

24

150. Both Ms. Gaspard-Berry and her brother work full-time and cannot afford to quit

25 their jobs to care for their mother. If her ADHC services are cut she will not be safe alone, and her

26 children will have to place her in an institution.

27

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151. Plaintiff Allie Jo Woodard would be irreparably harmed by a reduction in ADHC to

2 three days per week or termination of ADHC. Ms. Woodard lives in her own home with family

3 alternating caring for her, and she receives the maximum amount of attendant care through the

4 IHSS program. Given her complex medical and mental health conditions, she cannot be left alone

5 safely and there would be no one to care for her on the days that she would no longer be able to

6 attend ADHC. Ms. Woodard relies on ADHC services for pain and medication management, and

7 the socialization provided at ADHC assists her mental health condition. Without five days per

8 week of ADHC, Ms. Woodard would need to be placed in a nursing facility. Most likely, she

9 would deteriorate physically and mentally if that were to occur.

10 Facts Related to Plaintiff Gilda Garcia—Limitation of Benefits Subclasses Representative

11

152. Gilda Garcia attends the Institute on Aging ADHC program in San Francisco

12 California. She has been attending the program since 2005. She is authorized to receive and does

13 receive Medi-Cal funded ADHC services five days a week. Her most current IPC is approved

14 through April 30, 2011. A new IPC will be submitted for approval for the period of May 1, 2011

15 through October 31, 2011.

16

153. In accordance with her current IPC at the Institute on Aging ADHC program, Ms.

17 Garcia receives:

18

a) professional nursing services: five days a week to monitor her for hypoglycemic

19

reactions; once per month to monitor her blood pressure and weight; and as needed

20

to order her medications as Ms. Garcia is unable to do so herself;

21

b) personal care services five days a week to assist her with ambulation, toileting, and

22

transfers and prevent falls due to her poor vision and impulse control;

23

c) social services five days a week to increase her opportunities for socialization, twice

24

per month to encourage continued attendance and monitor for increased anxiety, and

25

on an as needed basis help her coordinate her IHSS and MSSP services;

26

d) therapeutic activities five days a week to increase her physical activity, leisure and

27

cognitive opportunities,

28

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e) registered dietician services to ensure she understands the importance of maintaining

2

a diabetic diet.

3

154. Ms. Garcia’s most recent IPC states that she is at a high risk of institutionalization if

4 she does not receive ADHC services five days per week, based on her two or more chronic medical

5 conditions, frailty, hyper/hypoglycemia, inappropriate affect/appearance or behavior, poor judgment,

6 risk for falls, isolation, lack of safety awareness, and medication mismanagement. In addition Ms.

7 Garcia is at risk because she gets anxious easily, and is not able to self modulate her emotional

8 reactions, which in turn can exacerbate her blood sugar fluctuations.

9

155. Ms. Garcia lives alone, and receives 102 hours of IHSS services, and case

10 management through the Multipurpose Senior Services Program (MSSP). In January of 2011, Ms.

11 Garcia was hospitalized for approximately one week for sepsis, and five days because of

12 hyperglycemia. In February she was hospitalized again following a fall in the community.

13

156. Ms. Garcia fears she will face hospitalization due to her unstable diabetes, and the

14 risks that this condition poses, including a heightened risk of falls.

15

157. Ms. Garcia is also highly dependent on the socialization that the ADHC program

16 offers her.

17

158. Ms. Garcia would be irreparably harmed by termination of her ADHC services, or

18 reduction in ADHC to three days per week. Ms. Garcia has unstable diabetes such that the frequent

19 medical monitoring by ADHC nursing cannot be replicated by periodic primary care visits. Ms.

20 Garcia relies on ADHC for medical stabilization.

21

159. Without five days per week of ADHC, she is at high risk for acute hospitalization

22 and/or institutionalization. In addition, Ms. Garcia is protected from isolation and depression by

23 attending ADHC five days per week. If she were to remain at home every day she would likely see

24 a rapid decrease in her mental state and thus, her physical state, which would likely result in acute

25 hospitalization and institutionalization.

26 Facts Related to Plaintiff Ronald Bell – Termination of Benefits Subclass Representative

27

28

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160. Ronald Bell has been attending the Graceful Senescence ADHC program since

2 January 2009. He lives with his grandmother and Guardian ad Litem, Rozene Dilworth, who raised

3 him, and who provides him with 101 hours per month of IHSS services. He receives home health

4 nursing services two to three times per week in addition to ADHC services to address his diabetic

5 regimen at home. He is authorized to receive and does receive Medi-Cal funded ADHC services

6 three days a week. His most current IPC is approved through July 31, 2011.

7

161. In accordance with his current IPC at the Graceful Senescence ADHC program, Mr.

8 Bell receives:

9

a) professional nursing services three days a week to coordinate his care with ADHC,

10

primary care physician, diabetic clinic, and home health agency; monitor: his

11

diabetes, including pain and numbness due to diabetic neuropathy; any changes in

12

cognitive or visual status; for seizures; his diabetic diet; for wounds and boils; for

13

adverse effects of medications; shortness of breath, edema; and monitor his blood

14

pressure;

15

b) personal care services three days a week to observe for changes with his self-care

16

abilities and promote self-care, as well as to monitor him for falls due to seizures;

17

c) social services on an as needed basis to maintain cognitive functioning, and support

18

his remaining in the community, including group counseling twice per week.

19

d) therapeutic activities three days a week to assist with his interactions with peers;

20

e) physical therapy services three days a week to maintain and/or increase his functional

21

mobility, strength, and endurance, and prevent physical decline;

22

f) occupational therapy services three days a week to maintain or improve his strength,

23

endurance, and range of motion;

24

g) registered dietician services to support compliance with a modified diet related to his

25

diabetes and high cholesterol, including through providing him a modified diabetic

26

diet for both breakfast and lunch three days a week;

27

28

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h) mental health services, on a one-on-one basis, twice a month and as needed to assist

2

him with coping skills and decrease his depression and social isolation;

3

162. Mr. Bell’s most current IPC states that he is at risk of institutionalization due to his

4 poor judgment, medication mismanagement, two or more chronic conditions, fall risk and isolation,

5 and behavior problems.

6

163. Prior to receiving ADHC services, Mr. Bell’s blood sugar levels fluctuated wildly,

7 and he was taken to the emergency room on average more than once per month.

8

164. Mr. Bell began receiving ADHC services in January 2009, and since then his blood

9 sugar levels have stabilized and his trips to the emergency room have been reduced significantly.

10 However, over the past year, Mr. Bell has had an increase in episodes of hyperglycemia which have

11 required more interventions, as well as emergency room visits. In addition, Mr. Bell has had falls

12 due to seizures in November of 2010 and January of 2011.

13

165. Mr. Bell’s grandmother believes that ADHC services are critical for Mr. Bell to

14 continue to be able to remain in the community in part due to his difficulty complying with a

15 diabetic diet, as well as his inability to administer his own insulin. The ADHC arranged for a lock

16 box at the house so that Mr. Bell cannot access the insulin, and his blood sugar levels, though still

17 elevated, are now generally under control.

18

166. Mr. Bell would be irreparably harmed by the loss of ADHC services. If Mr. Bell

19 were to lose ADHC services, he would use increased emergency services, require more

20 hospitalizations, and would face out-of-home placement.

21

167. According to Graceful Senescence, Mr. Bell will be terminated from the program by

22 the new, restrictive eligibility requirements of California Welfare and Institutions Code section

23 14521.1 contained in AB x4 5, because although he has a cognitive impairment, he is only

24 dependent in one of the eight specified activities, medication management.

25

168. Mr. Bell’s need for skilled medical and therapeutic ADHC services is as high or

26 higher than the needs of others who, under the new eligibility criteria contained in ABx4 5 will not

27 be terminated from or denied ADHC.

28

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1 Facts Related to Plaintiff Esther Darling

2

169. Esther Darling attends Yolo Adult Day Health Center program in Woodland,

3 California. She has been attending the program for 14 years. She is authorized to receive and does

4 receive Medi-Cal funded ADHC services five days a week. Her most current IPC is approved

5 through June 30, 2011.

6

170. In accordance with her most recent IPC at Yolo ADHC program, Ms. Darling

7 receives:

8

a) professional nursing services to: monitor her diabetes through bimonthly blood sugar

9

checks and daily observation for hypo or hyperglycemia, manage her lower body

10

edema weekly, monitor her atrial fibrillation and observe for signs and symptoms of

11

heart failure, monitor for increased pain and fall risk associated with gout, monitor

12

her mood for depression or anxiety, and administer laxatives to help her hemorrhoids;

13

b) personal care services daily to fully assist with toileting due to her inability to

14

independently address self care such as skin cleaning and clothing;

15

c) social services to monitor her mood, prevent depression by increasing her feelings of

16

self-worth, and encouraging her to participate in activities and social interaction, and

17

financial assistance by helping her retain her programs and services;

18

d) therapeutic activities to encourage participation in group exercise activities and

19

provide opportunities for social interaction with peers;

20

e) physical therapy maintenance program to address her decreased strength and

21

coordination and reduced range of motion on her left side twice a week;

22

f) occupational therapy maintenance program to maintain and improve range of motion

23

and maintain skin integrity in her left arm twice a week, and maintain and improve

24

the functionality of her left hand;

25

g) specialized physical therapy services treatment once times a week to improve her gait

26

and reduce her risk of falls, and to increase range of motion.

27

28

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1

171. Ms. Darling’s current IPC states that she is at a high risk of institutionalization if she

2 does not receive ADHC services five days per week, based on her two or more chronic medical

3 conditions, frailty, isolation, risk for falls, and inappropriate affect, appearance, or behavior.

4

172. Ms Darling lives alone in her own home in Woodland, California. Ms. Darling

5 receives 114 hours of IHSS per month.

6

173. IHSS is unable to assist Ms. Darling with her medication management, medical

7 monitoring and therapy needs. She is on the waitlist for Multipurpose Senior Services Program

8 (MSSP) services, which offers case management but would not provide the necessary therapies,

9 skilled care or socialization she receives at ADHC.

10

174. In December of 2010, Ms. Darling was hospitalized due to dehydration and acute

11 renal failure and was subsequently admitted into a skilled nursing facility for several days before she

12 was able to return to ADHC.

13

175. Ms. Darling wants to be able to stay at home and to continue to receive services at

14 Yolo ADHC. Ms. Darling has a history of depression due to isolation; however, she does not qualify

15 for county mental health services. Without ADHC, Ms. Darling would be irreparably harmed; her

16 medical, physical, and emotional conditions would decline, placing her at risk of nursing facility

17 placement.

18 Facts Related to Plaintiff Wendy Helfrich

19

176. Wendy Helfrich attends the Napa Valley Hospice and Adult Day Services program in

20 Napa, California. She has been attending the program for five and a half years. She is authorized to

21 receive and does receive Medi-Cal funded ADHC services three days a week. Her most current IPC

22 is approved through July 31, 2011.

23

177. In accordance with her most recent IPC at her ADHC program, Ms. Helfrich receives:

24

a) professional nursing services to: monitor her weight and blood pressure once a

25

month, and for each day she attends: provide specialized diet to meet her nutritional

26

needs, administer medication and monitor side effects from her medication regimen,

27

and monitor her for seizure activity;

28

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1

b) personal care services each day assist her to with toileting;

2

c) social services to: address her anxiety and prevent overstimulation, to provide respite,

3

education, and support to her caregivers and minimize caregiver stress, daily

4

monitoring of her cognitive status and monthly monitoring of her mood to address her

5

poor judgment, lack of safety awareness and prevent depression, and increase her

6

opportunities for socialization to prevent isolation;

7

d) therapeutic activities three days a week to decrease agitation from visual and auditory

8

stimuli due to her anoxic brain injury, and minimize her cognitive deficits due to her

9

brain injury through mentally stimulating activities;

10

e) physical therapy maintenance program once a week to improve her motor control and

11

range of motion to improve her mobility skills;

12

f) occupational therapy maintenance program three days a week to maximize self-

13

feeding independence and improve upper extremity range of motion and motor skills;

14

g) specialized physical therapy services treatment once a week to address decreased

15

strength and functional mobility;

16

h) specialized occupational therapy services once a week to address diminished strength,

17

range of motion, and motor control, and once a month to improve self-feeding;

18

i) speech and language pathology services twice a month to address profound deficit in

19

cognitive-linguistic function, including reduced attention, inability to express wants

20

and needs, and need for supervision for safety.

21

178. Mrs. Helfrich’s current IPC states that she is at a high risk of institutionalization if she

22 does not receive ADHC services three days per week, based on her two or more chronic medical

23 conditions, frailty, isolation, risk for falls, self neglect, poor judgment, and inappropriate affect,

24 appearance, or behavior.

25

179. Ms. Helfrich lives at home with her parents and her grandmother in Napa, California.

26 She also has partial custody of her three minor children, who stay at her home several days a week.

27

28

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1

180. Ms. Helfrich receives the maximum allowable number of IHSS hours per month, 283

2 hours. IHSS does not provide Ms. Helfrich with the skilled care and therapies she needs. Prior to

3 receiving Medi-Cal funded ADHC, Ms. Helfrich did not receive physical or occupational therapy for

4 several months. During this time, Ms. Helfrich started to lose much of her strength and range of

5 motion, and she started to “draw up” and “spent hours curled into a fetal position.” The skilled

6 physical and occupational therapy allows Ms. Helfrich to maintain mobility and maximizes her

7 functional independence.

8

181. Ms. Helfrich’s father, Mr. Arnett, works part-time. Mr. Arnett and his wife also take

9 care of Ms. Helfrich’s 82-year-old grandmother and Ms. Helfrich’s minor children. Due to the

10 severity of her cognitive and linguistic deficits, Ms. Helfrich requires round-the-clock supervision

11 to remain in her home. ADHC provides much-needed respite and support for Ms. Helfrich’s

12 parents.

13

182. Without the services she receives at ADHC, Ms. Helfrich would be irreparably

14 harmed; without the skilled therapeutic services she receives at ADHC, her physical and cognitive

15 condition would decline, placing her at risk for institutional placement.

16 Facts Related to Plaintiff Jessie Jones

17

183. Jessie Jones attends Guardian ADHC program in El Sobrante, California. She has

18 been attending the program since 1997. She is authorized to receive and does receive Medi-Cal

19 funded ADHC services five days a week. Her most current IPC is approved through August 31,

20 2011.

21

184. In accordance with her most recent IPC at Guardian ADHC program, Ms. Jones

22 receives:

23

a) professional nursing services five days per week to monitor her for: seizure activity,

24

for risk of falls, her blood pressure related to hypertension, and her weight;

25

supervision during meal time to monitor her diabetic diet; and monitoring of her

26

diabetes through monthly blood sugar checks and on an as needed basis;

27

b) personal care services five days per week to assist her with toileting;

28

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1

c) social services five days per week to provide supervision and prevent cognitive

2

decline;

3

d) therapeutic activities five days per week to stimulate and motivate her for cognitive

4

stimulation, socialization and maintain her functional abilities by participating in

5

group activities;

6

e) physical therapy maintenance program five days per week to address her decreased

7

strength and functional mobility;

8

f) occupational therapy maintenance program five days per week to maintain and

9

improve functional abilities with her upper extremities;

10

g) specialized physical therapy services treatment 1-2 days a week to address decreased

11

strength and functional mobility;

12

h) specialized occupational therapy services 1 – 2 times a week to increase her physical

13

functioning, including ambulation, transfers, expressive aphasia, and independent

14

feeding;

15

i) speech and language pathology services twice per month to address her aphasia and

16

prevent deterioration of cognitive-linguistic skills;

17

j) registered dietician services to address her diabetes.

18

185. Mrs. Jones’s current IPC states that she is at a high risk of institutionalization if she

19 does not receive ADHC services five days per week, based on her two or more chronic medical

20 conditions, frailty, isolation, risk for falls, self neglect, medication mismanagement, and

21 inappropriate affect, appearance, or behavior.

22

186. Ms. Jones lives at home with her daughter, and her daughter’s family in Richmond,

23 California. Ms. Jones receives 99 hours of IHSS per month.

24

187. Ms. Jones’s daughter, who is also her caregiver, works and is raising children. If Ms.

25 Jones were unable to attend ADHC, she would be at home alone, and would not receive needed

26 therapies, including speech therapy to address her significant aphasia. Ms. Jones and her family

27 fear she would be isolated alone at home, in addition to being at risk of medical and physical decline,

28

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1 if she were to lose ADHC services. Without ADHC she is at risk for placement in a nursing facility,

2 which she and her family believe would be terrible for her.

3

188. Plaintiff Jessie Jones would be irreparably harmed by a reduction in ADHC services,

4 or an interruption, modification, or termination, of ADHC services without adequate long-term

5 alternative services in place.

6 Facts Related to Plaintiff Raif Nasyrov

7

189. Raif Nasyrov attends the Mt. Diablo Center for Adult Day Health Care program in

8 Pleasant Hill California. He has been attending the program since June 2006. He is authorized to

9 receive and does receive Medi-Cal funded ADHC services five days a week. His most current IPC

10 is approved through May 31, 2011.

11

190. In accordance with his most recent IPC at the Mt. Diablo Center for Adult Day Health

12 Care, Mr. Nasyrov receives:

13

a) professional nursing services five days per week to monitor him for: pain, including

14

providing pain medication as needed; skin integrity for rashes related to his urinary

15

and bowel incontinence; maintain his participation in program activities, and notify

16

his family of any behavioral changes;

17

b) personal care services five days per week to monitor him for incontinence and assist

18

with toileting;

19

c) social services five days per week to address his isolation, and supervision due to his

20

increasing cognitive deficits;

21

d) therapeutic activities five days per week to address his language barrier which

22

prevents socialization activities, through participation in the Adult Day Health

23

Russian Program run by the center;

24

e) physical therapy maintenance program five days a week to address his potential for

25

decline in functional mobility;

26

f) occupational therapy maintenance program five days a week to address his potential

27

for decreased upper extremity range of motion and strength;

28

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1

g) registered dietician services to supervise his low sodium diet and address his

2

hypertension;

3

h) mental health services five times per week to address his increasing depression.

4

191. Mr. Nasyrov’s current IPC states that he is at a high risk of institutionalization if he

5 does not receive ADHC services five days per week, based on his two or more chronic medical

6 conditions, frailty, isolation, medication mismanagement, cognitive decline and depression.

7

192. Mr. Nasyrov lives with his daughter in Martinez, California. He receives 99.2 hours

8 per month in IHSS; his daughter Sofia Nasyrova is his IHSS care provider. He and his wife

9 previously lived with Ms. Nasyrova, however, Mr. Nasyrov and his daughter were forced to place

10 his wife into a nursing facility in 2007 due to her unstable diabetes and advanced Alzheimer’s

11 disease. Mr. Nasyrov’s wife died last year. The ADHC’s Russian Program helps him avoid

12 depression and isolation, particularly since the loss of companionship of his wife.

13

193. Mr. Nasyrov’s receipt of language-appropriate skilled services and socialization from

14 the ADHC program are essential to support him living in the community with his daughter. He

15 relies on the skilled ADHC services, particularly the therapeutic activities provided in Russian, his

16 sole language, at ADHC, which assist in reducing the negative impacts of Alzheimer’s disease, and

17 his increasing depression.

18

194. Ms. Nasryova is increasingly unable to leave her father alone because of his risk for

19 wandering. Ms. Nasyrova believes that without ADHC she would be forced to seek out of home

20 placement for him, which she would hate to have to do, and which she believes would be terrible for

21 her father.

22

195. Plaintiff Raif Nasyrov would be irreparably harmed by a reduction in ADHC

23 services, or an interruption, modification, or termination, of ADHC services without adequate long-

24 term alternative services in place.

25 Failure to Provide Adequate Notice and Pre-Termination Hearing

26

196. Plaintiffs have all been found eligible for and currently receive ADHC services on an

27 individualized basis as set forth in their Individual Plans of Care. As part of their ADHC Individual

28

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1 Plan of Care (IPC), Plaintiffs have each been found eligible for specific ADHC services on each day

2 of attendance authorized by Medi-Cal. Plaintiff Allie Jo Woodard has a Medi-Cal approved IPC

3 through June 30, 2011 for five days a week of services through ADHC. Plaintiff Gilda Garcia has a

4 Medi-Cal approved IPC through April 30, 2011 for five days a week of services through ADHC.

5 Plaintiff Ronald Bell has a Medi-Cal approved IPC through July 31, 2011 for three days a week of

6 services through ADHC. Plaintiff Esther Darling has a Medi-Cal approved IPC through June 30,

7 2011 for five days a week of services through ADHC. Plaintiff Wendy Helfrich has a Medi-Cal

8 approved IPC for three days a week of services through ADHC. Plaintiff Jessie Jones has a Medi-

9 Cal approved IPC through August 31, 2011 for five days a week of services through ADHC.

10 Plaintiff Raif Nasyrov has a Medi-Cal approved IPC through May 31, 2011 for five days a week of

11 services through ADHC.

12 Allegations Regarding Limitations of Benefits Subclass

13

197. On July 30, 2009, Defendant sent a fax to ADHC providers, stating that:

14

“Effective August 27, 2009. . . ..and until the State law is amended or

becomes inoperative, Medi-Cal will no longer approve or pay for a

15

beneficiary to attend an ADHC center for more than three days per week. If

your ADHC center currently has participants attending the ADHC center more

16

than three days per week pursuant to a currently approved Treatment

Authorization Request (TAR), DHCS will send those beneficiaries a notice

17

informing them that their authorized ADHC services will be reduced to a

maximum of three days of ADHC per week, effective 30 days after signing of

18

the Trailer Bill. In addition, DHCS will notify all Medi-Cal beneficiaries who

receive ADHC services of the reduction to this ADHC benefit. Copies of all

19

notices released regarding ADHC benefit changes will be provided on the

DHCS website at www.dhcs.ca.gov and on the Medi-Cal website at

20

www.medi-cal.ca.gov. Please feel free to print, post, and/or distribute these

notices for your ADHC participants.” 21

22

198. Following this communication, Defendant posted a two-page notice on the DHCS

23 website. The first page, addressed to Medi-Cal beneficiaries, states that the “ADHC benefit is

24 reduced to a maximum of three days of ADHC per week.” The second page is directed at ADHC

25 participants affected by the cut and states:

26

“Dear Medi-Cal Beneficiary:

27

28

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This is to notify you that a recent change in California law will reduce the

1

Adult Day Health Care benefit to a maximum of three days per week for any

beneficiary. This change will occur 30 days after signing of the law that

2

accompanies the State Fiscal Year 2009-2010 Budget. The Department of

Health Care Services records show that you are currently authorized to receive

3

four or more days per week of Adult Day Health Care. Effective August 27,

2009, Medi-Cal will only authorize and pay for a maximum of three days per

4

week of Adult Day Health Care. Due to this change of State law, carry-over

days and make-up days will not be allowed. If you have any questions, please

5

contact the Medi-Cal beneficiary Services line at 1-888-284-0623 or speak

with your ADHC provider.” 6

199. Upon information and belief, Plaintiffs Gilda Garcia and Allie Jo Woodard have not

7

received individualized written notice of the cuts to their services nor have they been informed of

8

their right to hearing before services are denied, suspended, reduced or terminated, nor about

9

whether and how to assert their rights to alternative services offered through Medi-Cal.

10

200. The above-described notice to Medi-Cal beneficiaries does not comply with federal

11

and state requirements governing notice and hearing because, among other reasons, it was not mailed

12

to beneficiaries and, moreover, fails to advise Plaintiffs of (a) their right to a fair hearing if they are

13

disagree with the reductions or terminations in services, (b) the manner in which they can request a

14

hearing, (c) their right to continuation of benefits pending a hearing.

15

201. Plaintiffs Woodard and Garcia are representative of the broader population of ADHC

16

participants throughout the state who would be affected by the cuts contained in ABx4 5 and who

17

have not received required notice and hearing rights.

18

Allegations Regarding Termination of Benefits Subclass

19

202. With respect to the Termination of Benefits subclass, upon information and belief,

20

Defendant does not intend to issue notice to the vast majority of potentially affected individuals.

21

Rather, individuals who are assessed by their ADHC provider and determined not to meet the new

22

eligibility requirements are supposed to receive a termination or denial notice from the ADHC

23

provider. For current participants, such notice will not offer them a pre-termination Medi-Cal

24

hearing nor will they be entitled to continuation of benefits pending the hearing. For the small

25

number of individuals whose ADHC provider determines meet the new eligibility requirements, the

26

ADHC provider will submit a Treatment Authorization Request (TAR) to the Medi-Cal field office

27

28

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1 for approval. If the field office determines that the individual does not meet the new requirements,

2 then the field office will issue a Medi-Cal notice, offer a pre-termination hearing, and the

3 opportunity to have services continued pending the hearing.

4 Allegations Regarding Entire Certified and Amended Class

5

203. Plaintiffs Woodard, Garcia, Bell, Darling, Helfrich, Jones, and Nasyrov, are

6 representative of the broader population of ADHC participants throughout the state who would be

7 affected by the cuts contained in ABx4 5 and AB 97 who have not received required notice and

8 hearing rights.

9

204. Defendants have asserted, in this Court and in the Ninth Circuit, that they are not

10 obligated to provide adequate notice and hearing rights when ADHC benefits are denied, reduced,

11 suspended or terminated.

12

205. In this Court and in the Ninth Circuit, Defendants have represented that private

13 ADHC providers, not Defendants, are responsible for issuance of notice of denial, reduction,

14 suspension or termination of ADHC services.

15

206. In this Court and in the Ninth Circuit, Defendants have asserted that Class Members

16 have no right to a hearing challenging the reduction or termination of their underlying Medi-Cal

17 benefits when ADHC services are reduced or terminated.

18

207. Defendants have given no indication of a plan to, nor have they provided sufficient

19 time to, provide notice and hearing rights as to the elimination of ADHC pursuant to AB 97.

20

208. Upon information and belief, Defendants do not intend to issue adequate notice and

21 the opportunity for a fair hearing upon elimination of the ADHC program.

22 Facts Related to Medi-Cal ADHC Participants Generally

23

209. All ADHC participants have been authorized to receive and do receive Medi-Cal

24 funded ADHC services in accordance with physician recommendations and an Individual Plan of

25 Care (IPC) submitted to and approved by Defendants.

26

27

28

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1

210. Upon information and belief, virtually all ADHC participants are receiving services

2 between one and five days per week and have approved treatment authorizations approved by Medi-

3 Cal.

4

211. Upon information and belief, ADHC participants have not received individualized

5 notification of the cuts or changes in services, nor have Defendants ensured that they are informed of

6 the availability of alternative services available under the Medi-Cal State Plan, such as home health

7 agency services, IHSS, rehabilitation services, specialty mental health services, targeted case

8 management, and transportation, nor have Defendants ensured that they have access to these

9 alternative services.

10

212. Upon information and belief, Defendants do not intend to provide such information or

11 secure adequate alternative services needed to prevent unnecessary institutionalization, without

12 interruption, to replace those eliminated by ABx4 5 and/or AB 97.

13

213. Denials, suspensions or termination of, or reductions to ADHC services will cause

14 Class Members to suffer decline in physical functioning, will lead to increased preventable

15 emergency room visits, and will lead to institutionalization.

16

214. Significantly, for many participants, such as people whose physical or cognitive

17 impairments are such that they cannot be left alone, or whose health conditions are extremely

18 unstable, or those whose families rely on the individual being out of home in order to work, sleep, or

19 care for other family members, the loss of one or two days, or complete termination of ADHC, will

20 mean imminent and irreparable harm, including hospitalization, out-of-home placement in a nursing

21 facility, or physical and/or mental deterioration resulting in hospitalization or institutionalization.

22

215. To the extent there are any applicable administrative remedies, exhaustion on the part

23 of Plaintiffs would be futile. On August 10, 2009, Plaintiffs sent a demand letter to Defendants

24 requesting that the reduction, elimination or termination of services pursuant to ABx4 5 be halted

25 until Defendants provided Plaintiffs with due process, continued services and/or replacement

26 services needed to maintain them in the community in accordance with the law. On August 13,

27 2009, Defendants responded by letter, refusing to do so.

28

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1

216. Regarding the elimination of ADHC pursuant to AB 97, Plaintiffs sent a letter to

2 Defendants on April 1, 2011, outlining their concerns and requesting specific assurances regarding

3 the timing and process for elimination of ADHC and planned conversion to a federal waiver.

4 Defendants responded by letter on April 8, 2011, stating generally a goal to “facilitate the transition

5 of current ADHC beneficiaries to appropriate services that address their needs” but failing to provide

6 any specific assurances regarding timing, process or conversion to a waiver without interruption in

7 care or adequacy of replacement services to prevent unnecessary institutionalization.

8

VIII. CLASS DEFINITION AND ALLEGATIONS

9

217. On August 10, 2010, this Court issued an Order pursuant to Rules 23(a) and (b)(2) of

10 the Federal Rules of Civil Procedure certifying a class to include: “All Medi-Cal beneficiaries in the

11 State of California for whom Adult Day Health Care benefits will be reduced, suspended, denied or

12 terminated under the provisions of ABx4 5.” (Docket No. 198).

13

218. The August 10, 2010 Order further certified a subclass, the “Termination of Benefits”

14 subclass, defined as: “All present and future Medi-Cal beneficiaries who have been authorized to

15 receive any ADHC services, and whose ADHC services will be reduced, suspended, or terminated,

16 and otherwise qualified future ADHC applicants who will be denied ADHC services, when the

17 eligibility and medical necessity requirements of ABx4 5 become operative.” (Docket No. 198).

18

219. On May 14, 2010, the Court certified a subclass, the “Limitation of Benefits”

19 subclass, defined as: “All Medi-Cal beneficiaries who, as of August 26, 2009, have been authorized

20 to receive four or five days of Adult Day Health Care Services by DHCS, and whose services will be

21 reduced to a maximum of three days under the provisions of ABx4 5.” (Docket No. 190).

22

220. The Court found that the Class certified on August 10, 2010 meets the requirements

23 of Federal Rules of Civil Procedure 23(a) and 23(b)(2). (Docket No. 198).

24

221. Pursuant to Rule 23(a) and Rule (b)(2) of the Federal Rules of Civil Procedure,

25 Plaintiffs Woodard, Garcia, Bell, Darling, Helfrich, Jones, and Nasyrov bring this action on behalf of

26 themselves and all other persons similarly situated. Plaintiffs bring this action on behalf of the

27 certified class and an amended class consisting of “all Medi-Cal beneficiaries in the State of

28

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1 California for whom Adult Day Health Care benefits will be reduced, suspended, denied or

2 terminated under the provisions of ABx4 5 and/or AB 97” (hereinafter the “Class”). Fed. R. Civ. P.

3 23(a), (b)(2).

4

222. Plaintiffs Woodard and Garcia also plead a subclass of individuals as follows:

5

a. “Limitation of Benefits Subclass” to be defined as “all Medi-Cal

6

beneficiaries who, as of August 26, 2009, have been authorized to receive four

7

or five days of Adult Day Health Care Services by DHCS, and whose services

8

will be reduced to a maximum of three days under the provisions of ABx4 5.”

9

Plaintiffs Garcia and Woodard are typical of this subclass.

10

b. “Termination of Benefits Subclass” to be defined as “all present and future

11

Medi-Cal beneficiaries who have been authorized to receive any Adult Day

12

Heath Care services, and whose ADHC services will be reduced, suspended,

13

or terminated, and otherwise qualified future ADHC applicants who will be

14

denied ADHC services, when the eligibility and medical necessity

15

requirements of ABx4 5 become operative.” Plaintiff Bell is typical of this

16

subclass.

17

223. Numerosity: The Plaintiff class is so numerous that joinder of all its members is

18 impracticable. Upon information and belief, there are in excess of 37,000 persons in the amended

19 class. Upon information and belief, the “Limitation of Benefits subclass” consists of more than

20 8,000 people. Upon information and belief the “Termination of Benefits subclass” will consist of

21 approximately 15,000 people who will be terminated from ADHC. Joinder of individuals in the

22 subclasses is also impracticable because of the size of the subclasses, and because Class Members

23 lack the knowledge and financial means to maintain individual actions and are geographically

24 disbursed throughout the state.

25

224. Commonality: Common questions of law and fact predominate over questions

26 affecting individual Class Members. Questions of law and fact common to members of the class

27 include, but are not limited to: the fact that all Plaintiffs and Class Members have been determined

28

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1 by Defendants to have a high potential for, and to need the ADHC services they receive on each day

2 of attendance in order to avoid, emergency room visits, hospitalization or other institutionalization

3 (Cal. Welf. & Inst. Code §§ 14526.1(d)(4) and (5)); the fact that Plaintiffs and Class Members have

4 been determined to need Medi-Cal funded ADHC services that will be suspended, reduced, or

5 terminated, or they will otherwise be denied access to ADHC services, due to the common policies

6 and actions of Defendants that apply to all of the Class Members; the determination of whether

7 Defendants’ policies and actions violate federal and/or state law; the determination of whether

8 Defendant’s new, restrictive eligibility requirements are reasonable; and the determination of

9 whether Defendants have failed to give adequate notice and the opportunity for a pre-termination

10 hearing to all affected Class Members. The prosecution of separate actions by individual members

11 of the class would create a risk of inconsistent or varying adjudication, establishing incompatible

12 rules of law for the provision of services to people with disabilities served by the ADHC program.

13

225. Typicality: The claims of the Plaintiffs are typical of the claims of the class as a

14 whole and are typical of the claims of the subclasses in that the Plaintiffs and Class members

15 currently are Medi-Cal eligible ADHC participants and qualified individuals with disabilities, who

16 face the risk of institutionalization, hospitalization, and/or mental or physical deterioration resulting

17 in hospitalization and/or institutionalization, when subjected to the termination, suspension,

18 reduction or denial of ADHC services. The claims arise from the same unlawful and discriminatory

19 policies and practices of Defendants.

20

226. Adequate representation: The Plaintiffs will fairly represent and adequately protect

21 the interests of members of the class as a whole. The Plaintiffs do not have any interests

22 antagonistic to those of other Class Members. By filing this action, the Plaintiffs have displayed an

23 interest in vindicating their rights, as well as the claims of others who are similarly situated. The

24 relief sought by the Plaintiffs will inure to the benefit of members of the class generally. The

25 Plaintiffs are represented by counsel who are skilled and knowledgeable about civil rights litigation,

26 disability discrimination, Medicaid law, practice and procedure in the federal courts and the

27 prosecution and management of class action litigation.

28

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1

227. Defendants have acted, refused to act, or will act on grounds generally applicable to

2 the class, thereby making final injunctive and declaratory relief appropriate with respect to the class

3 as a whole under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Class Members share a

4 common need for ADHC services and/or replacement services and Defendants’ policies and actions

5 in reducing, suspending, denying or terminating ADHC services are applicable to the entire class. A

6 class action is superior to individual lawsuits for resolving this controversy.

7

228. Defendants’ actions, as alleged herein, have resulted in, and will continue to result in

8 irreparable injury to Plaintiffs and Class Members for which they have no plain, speedy, or adequate

9 remedy at law. Plaintiffs and Class Members will suffer irreparable injury in that they will be placed

10 at risk of institutionalization, hospitalization, or deterioration resulting in hospitalization and/or

11 institutionalization.

12

229. An actual controversy exists between Plaintiffs and Class Members and Defendants

13 in that Defendants are seeking to implement denials, suspensions, reductions and terminations of

14 Medi-Cal services to which Plaintiffs and Class Members are entitled, and which, if implemented

15 will place Plaintiffs and Class Members at risk of unnecessary institutionalization and that such

16 denial will violate the rights of Plaintiffs and Class Members under the Due Process Clause of the

17 Fourteenth Amendment to the United States Constitution, the Americans With Disabilities Act,

18 Section 504, the Medicaid Act, and California Government Code section 11135. Plaintiffs and Class

19 Members therefore seek a declaration as to their rights and Defendants’ corresponding duties with

20 respect to the matters alleged herein.

21

IX. LEGAL CLAIMS

22

FIRST CLAIM FOR RELIEF

23

(Defendant Director Douglas)

24

(Claim by Entire Certified and Amended Class)

25

Violation of Title II of the Americans with Disabilities Act

26

230. Plaintiffs reallege and incorporate herein by reference each and every allegation and

27 paragraph set forth previously.

28

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1

231. Each named Plaintiff and Class Member is a “qualified individual with a disability”

2 within the meaning of the ADA in that they (1) have a physical impairment that substantially limits

3 one or more major life activities; and (2) meet the essential eligibility requirements for community-

4 based long-term care under California’s Medicaid program.

5

232. Defendant Douglas is the Director of the Department of Health Care Services and is

6 therefore a public entity under the ADA.

7

233. As to the Limitations of Benefits Subclass, Defendant has required that ADHC

8 services to Plaintiffs and Class Members arbitrarily be reduced from five days per week to no more

9 than three days per week without reassessment of need or the provision of alternative services they

10 need to avoid institutionalization, thereby placing Plaintiffs and Class Members at risk of

11 institutionalization in violation of the ADA’s integration mandate.

12

234. As to the Termination of Benefits Subclass, Defendant has imposed new, restrictive

13 eligibility requirements on Plaintiffs and Class Members which will result in complete termination

14 or denial of ADHC services regardless of their need for ADHC to remain safely in their own homes

15 or in community settings, and without securing alternative services they need to avoid unnecessary

16 institutionalization, thereby placing Plaintiffs and Class Members at risk of institutionalization in

17 violation of the ADA’s integration mandate.

18

235. As to the Termination of Benefits Subclass, Defendant has imposed arbitrary

19 eligibility requirements which unlawfully screen out or tend to screen out equally needy and

20 qualified classes of individuals with disabilities from fully and equally enjoying ADHC services,

21 based on their need for assistance with activities of daily living and/or level of care.

22

236. Pursuant to AB 97, Defendant will eliminate ADHC services to Plaintiffs and Class

23 Members without ensuring that upon the elimination of ADHC, alternative services which are

24 needed to avoid institutionalization are in place to ensure that Plaintiffs and Class Members will not

25 suffer any gap in the services required by their ADHC plans of care, thereby placing Plaintiffs and

26 Class Members at risk of institutionalization in violation of the ADA’s integration mandate.

27

28

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1

237. Defendant has discriminated against all Plaintiffs and Class Members in ways that

2 include, but are not limited to failing to provide reasonable modifications to programs and services.

3

238. Defendant has utilized criteria and methods of administration that subject Plaintiffs

4 and Class Members to discrimination on the basis of disability, including risk of unnecessary

5 institutionalization, by, including but not limited to the following: (1) failing to properly assess for

6 replacement services and supports that would enable Plaintiffs and Class Members to remain in the

7 community; (2) failing to provide ADHC or replacement services needed to enable Plaintiffs and

8 Class Members to remain in the community; (3) basing their decision on levels of service solely on

9 economic considerations not taking into account the assessed needs of the participants; and

10 (4) allocating resources for institutional versus community long-term care contrary to the desires and

11 needs of people with disabilities.

12

239. Defendant’s actions are in violation of Title II of the ADA.

13

SECOND CLAIM FOR RELIEF

14

(Defendants DHCS and Director Douglas)

15

(Claim by Entire Certified and Amended Class )

16

Violation of Section 504 of the Rehabilitation Act

17

240. Plaintiffs reallege and incorporate herein by reference each and every allegation and

18 paragraph set forth previously.

19

241. Each Plaintiff and Class Member is a “qualified person with a disability” within the

20 meaning of Section 504, because they (1) have physical and/or mental impairments that

21 substantially limit one or more major life activities; and (2) meet the essential eligibility

22 requirements for community-based services under California’s Medicaid programs.

23

242. Defendants conduct, operate or administer the state Medicaid program, entitled

24 Medi-Cal, and are recipients of federal funds and are therefore subject to the requirements of

25 Section 504.

26

243. As to the Limitations of Benefits Subclass, Defendants have required that ADHC

27 services to Plaintiffs and Class Members arbitrarily be reduced from five days per week to no more

28

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1 than three days per week without reassessment of need or the provision of alternative services they

2 need to avoid institutionalization, thereby placing Plaintiffs and Class Members at risk of

3 institutionalization in violation of Section 504’s integration mandate.

4

244. As to the Termination of Benefits Subclass, Defendants have imposed new, restrictive

5 eligibility requirements on Plaintiffs and Class Members which will result in complete termination

6 or denial of ADHC services regardless of their need for ADHC to remain safely in their own homes

7 or in community settings, and without securing alternative services they need to avoid unnecessary

8 institutionalization, thereby placing Plaintiffs and Class Members at risk of institutionalization in

9 violation of Section 504’s integration mandate.

10

245. As to the Termination of Benefits Subclass, Defendants have imposed arbitrary

11 eligibility requirements which unlawfully screen out or tend to screen out equally needy and

12 qualified classes of individuals with disabilities from fully and equally enjoying ADHC services,

13 based on their need for assistance with activities of daily living and/or level of care.

14

246. Pursuant to AB 97, Defendants will eliminate ADHC services to Plaintiffs and Class

15 Members without ensuring that upon the elimination of ADHC, alternative services which are

16 needed to avoid institutionalization are in place to ensure that Plaintiffs and Class Members will not

17 suffer any gap in the services required by their ADHC plans of care, thereby placing Plaintiffs and

18 Class Members at risk of institutionalization in violation of Section 504’s integration mandate.

19

247. Defendants have discriminated against all Plaintiffs and Class Members in ways that

20 include, but are not limited to, failing to provide reasonable modifications to programs and services.

21

248. Defendants have utilized criteria and methods of administration that subject all

22 Plaintiffs and Class Members to discrimination on the basis of disability, including risk of

23 unnecessary institutionalization, by, including but not limited to the following: (1) failing to

24 properly assess for replacement services and supports that would enable Plaintiffs and Class

25 Members to remain in the community; (2) failing to provide ADHC or replacement services needed

26 to enable Plaintiffs and Class Members to remain in the community; (3) basing their decision on

27 levels of service solely on economic considerations not taking into account the assessed needs of the

28

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1 participants; and (4) allocating resources for institutional versus community long-term care contrary

2 to the desires and needs of people with disabilities.

3

249. Defendants’ actions are in violation of Section 504 of the Rehabilitation Act.

4

THIRD CLAIM FOR RELIEF

5

(Defendant Director Douglas)

6

(Claim by Entire Certified and Amended Class)

7

Claim under 42 U.S.C. § 1983, Deprivation of Federal Constitutional Rights –

8

Violation of Procedural Due Process Rights

9

250. Plaintiffs reallege and incorporate herein by reference each and every allegation and

10 paragraph set forth previously.

11

251. Defendant Douglas, as the Director of the Medicaid single state agency, is ultimately

12 responsible for administration of the Medi-Cal program, including ensuring the provision of

13 adequate notice and pre-termination hearing rights.

14

252. Plaintiffs receive ADHC services which are being cut to three days per week and/or

15 are being terminated by application of new eligibility and medical necessity criteria. Plaintiffs have

16 not received notice informing them of their rights to a pre-termination or pre-reduction hearing or

17 been informed of their right to alternative services available through Medi-Cal.

18

253. Defendant’s practices and procedures alleged herein violate the Due Process clause of

19 the Fourteenth Amendment to the U.S. Constitution by, among other things, denying Plaintiffs and

20 Class Members adequate notice and the opportunity for a fair hearing prior to reduction, suspension

21 or termination of services previously authorized by the State.

22

254. In all of this, Defendant has, under color of state law, deprived Plaintiffs and Class

23 Members of rights, privileges or immunities secured to them by the Constitution of the United

24 States, in violation of 42 U.S.C. § 1983.

25

26

27

28

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1

FOURTH CLAIM FOR RELIEF

2

(Defendant Director Douglas)

3

(Claim by Entire Certified and Amended Class)

4

Violation of Medicaid Act, Failure to provide Opportunity for Hearing

5

255. Plaintiffs reallege and incorporate herein by reference each and every allegation and

6 paragraph set forth previously.

7

256. Defendant Douglas, as the Director of the Medicaid single state agency, is ultimately

8 responsible for administration of the Medi-Cal program, including ensuring the provision of

9 adequate notice and pre-termination hearing rights.

10

257. Pursuant to the Medicaid Act, the state of California has established a procedure to

11 provide a fair hearing to any Medi-Cal beneficiary whose services are denied, reduced, suspended,

12 or terminated. In denying, reducing, suspending, or terminating services to Plaintiffs and Class

13 Members as set forth above, Defendant has deprived Plaintiffs and Class Members of an opportunity

14 for a fair hearing in violation of 42 U.S.C. § 1396a(a)(3).

15

258. Defendant’s practices and procedures alleged herein violate 42 U.S.C § 1396a(a)(3)

16 by among other things, failing to ensure that individuals whose ADHC services will be denied,

17 suspended, terminated or reduced have access to a fair hearing.

18

259. Defendant has under color of state law, deprived Plaintiffs and Class members of

19 rights or privileges and immunities secured to them by the Constitution and laws of the United States

20 in violation of 42 U.S.C. § 1983.

21

FIFTH CLAIM FOR RELIEF

22

(Defendant Director Douglas)

23

(Claim by Termination of Benefits Subclass Only)

24

Violation of Medicaid Comparability Requirement

25

260. Plaintiffs reallege and incorporate herein by reference each and every allegation and

26 paragraph set forth previously.

27

28

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1

261. The California Legislature has enacted a statute that will reduce, suspend, deny or

2 terminate coverage of ADHC services for many eligible Medicaid beneficiaries based solely on their

3 ability to perform eight specified activities and their institutional level of care. Defendant, by

4 creating one eligibility standard for individuals with certain conditions or types of disabilities while

5 applying a separate standard for all other individuals, establishes Medi-Cal eligibility criteria in

6 contravention of the comparability provisions of the Medicaid Act. 42 U.S.C. § 1396a(a)(10)(B).

7

262. Defendant has, under color of state law, deprived Plaintiffs and Class members of

8 rights, privileges, or immunities secured to them by the Constitution and laws of the United States in

9 violation of 42 U.S.C. § 1983. In addition, ABx4 5 is in conflict with and inconsistent with

10 42 U.S.C. § 1396a(a)(10)(B) and therefore preempted by the Supremacy Clause of the United States

11 Constitution art. IV.

12

SIXTH CLAIM FOR RELIEF

13

(Defendant Director Douglas)

14

(Claim by Termination of Benefits Subclass Only)

15

Violation of Medicaid Reasonable Standards Requirement

16

263. Plaintiffs reallege and incorporate herein by reference each and every allegation and

17 paragraph set forth previously.

18

264. Federal Medicaid law requires participating states to establish reasonable standards,

19 consistent with the objectives of the Medicaid Act, for determining the extent of covered services.

20 42 U.S.C. § 1396a(a)(17).

21

265. Pursuant to ABx4 5 and subsequent amendments, Defendant will provide ADHC

22 services for some Medi-Cal recipients, while denying the same services to other ADHC recipients

23 who have comparable needs, and will use eligibility criteria that do not provide a reasonable measure

24 of need for ADHC services.

25

266. ABx4 5 is inconsistent and in conflict with the reasonable standards requirements of

26 the federal Medicaid Act, 42 U.S.C. § 1396a(a)(17), and interpretive federal guidelines, and is thus

27 preempted by the Supremacy Clause of the United States Constitution, art. IV.

28

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1

SEVENTH CLAIM FOR RELIEF

2

(Defendants DHCS and Director Douglas)

3

(Claim by Entire Certified and Amended Class )

4

Violation of Government Code Sections 11135 and 11139

5

267. Plaintiffs reallege and incorporate herein by reference each and every allegation and

6 paragraph set forth previously.

7

268. Plaintiffs and Class Members are persons with disabilities within the meaning of

8 California Government Code section 11135(c) et seq. and its implementing regulations.

9

269. Plaintiffs and Class Members meet the essential eligibility requirements for Medi-Cal

10 services, including services necessary to maintain them in their homes in the community.

11

270. Defendants DHCS and Director Douglas conduct, operate or administer the state

12 Medicaid program, entitled Medi-Cal, which is directly funded, in part, by state financial assistance

13 within the meaning of California Government Code section 11135(a) and implementing regulations.

14

271. Defendants’ actions, in denying, reducing, suspending or terminating community-

15 based Medi-Cal services and not assessing for or providing replacement services and placing

16 plaintiffs and Class Members at risk of institutionalization have discriminated against Plaintiffs and

17 Class Members, thereby excluding them from participation in, denying them the benefits of, and

18 otherwise subjecting them to discrimination in violation of California Government Code section

19 11135 et seq. and implementing regulations.

20

272. Plaintiffs and Class Members further allege that violations of their rights under the

21 Americans with Disabilities Act and implementing regulations contained in the First Claim for

22 Relief are incorporated herein and constitute a violation of California Government Code section

23 11135 et seq. as well, as set forth in section 11135(b).

24

X. REQUEST FOR RELIEF

25

WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies on

26 behalf of themselves and all others similarly situated:

27

28

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1

A. Assume jurisdiction over this action and maintain continuing jurisdiction until

2 Defendants are in full compliance with every order of this court;

3

B. Certify an amended class consisting of: “all Medi-Cal beneficiaries in the State of

4 California for whom Adult Day Health Care benefits will be reduced, suspended, denied or

5 terminated under the provisions of ABx4 5 and/or AB 97”;

6

C. As to all Defendants, declare that Defendants’ policies, practices, acts and omissions,

7 in implementing and enforcing ABx4 5 and AB 97, as set forth above, violate Plaintiffs’ and Class

8 Members’ rights under the American with Disabilities Act, Section 504 of the Rehabilitation Act, the

9 Medicaid Act, the United States Constitution, and California Government Code section 11135 by,

10 inter alia:

11

1) Denying Plaintiffs and Class Members their entitlement to services in the

12

most integrated setting;

13

2) Discriminating against Plaintiffs and Class Members on the basis of disability,

14

and on the basis of severity of disability, by utilizing methods of

15

administration, adopting and applying policies, failing to make reasonable

16

modifications to programs and policies, and engaging in practices that result

17

in unnecessary segregation and institutionalization; and

18

3) Failing to provide Medi-Cal covered services without interruption and without

19

adequate notice or opportunity for a fair hearing.

20

D. Declare that Defendant Douglas’ denial, termination, reduction or suspension of

21 Plaintiffs’ and Class Members’ Medi-Cal-covered services to which they are entitled, without

22 adequate notice or opportunity for a fair hearing, and failure to provide adequate Medi-Cal-covered

23 alternative services to which they are entitled, without interruption of services, constitutes a denial of

24 due process of law guaranteed to them under:

25

1) The Fourteenth Amendment to the Constitution of the United States;

26

2) The Medicaid program, Title XIX of the Social Security Act, Title 42 U.S.C.

27

§ 1396a – 1369w-5.

28

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1

E. Declare that Defendants’ elimination of Plaintiffs’ Medicaid skilled nursing and

2 rehabilitation services provided through the ADHC program, without the provision of alternative

3 services in community-based settings which are the most integrated setting appropriate to the needs

4 of Plaintiffs and Class Members, and conditioning the receipt of medically necessary Medicaid

5 services on segregation in an institutional or non-community setting, violate laws which prohibit

6 discrimination on the basis of disability and unjustified institutionalization and which require

7 Defendants to administer their services and programs in the most integrated setting appropriate to the

8 needs of the individuals with disabilities, including:

9

1) The Americans with Disabilities Act (“ADA”), (42 U.S.C.A. §§ 12101-

10

12213)

11

2) Section 504 of the Rehabilitation Act (“Section 504”), (29 U.S.C.A. §§ 794-

12

794a),

13

3) California Government Code section 11135. (Cal. Gov’t. Code § 11135).

14

F. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

15 agents, employees, attorneys, and all persons who are in active concert or participation with them

16 from implementing or enforcing ABx4 5 or AB 97 in violation of Plaintiffs’ and Class Members’

17 rights under the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid

18 Act, the United States Constitution, and California Government Code section 11135.

19 For the “Limitation of Benefits Subclass” only:

20

G. As to all Defendants, declare that Defendants’ policies, practices, acts and omissions,

21 in implementing and enforcing ABx4 5, as set forth above, violate Plaintiffs’ and Class Members’

22 rights under the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid

23 Act, the United States Constitution, and California Government Code section 11135 by, inter alia:

24

1) Denying Plaintiffs and Class Members their entitlement to services in the

25

most integrated setting;

26

2) Discriminating against Plaintiffs and Class Members on the basis of disability,

27

and on the basis of severity of disability, by utilizing methods of

28

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1

administration, adopting and applying policies, failing to make reasonable

2

modifications to programs and policies, and engaging in practices that result

3

in unnecessary segregation and institutionalization; and

4

3) Failing to provide Medi-Cal covered services without interruption and without

5

adequate notice or opportunity for a fair hearing.

6

H. Declare that Defendant Douglas’ denial, termination, reduction or suspension of

7 Plaintiffs’ and Class Members’ Medi-Cal-covered services to which they are entitled, without

8 adequate notice or opportunity for a fair hearing, and failure to provide adequate Medi-Cal-covered

9 alternative services to which they are entitled, without interruption of services, constitutes a denial of

10 due process of law guaranteed to them under:

11

1) The Fourteenth Amendment to the Constitution of the United States;

12

2) The Medicaid program, Title XIX of the Social Security Act, Title 42 U.S.C.

13

§ 1396a – 1369w-5.

14

I. Declare that Defendants’ elimination of Plaintiffs’ Medicaid skilled nursing and

15 rehabilitation services provided through the ADHC program, without the provision of alternative

16 services in community-based settings which are the most integrated setting appropriate to the needs

17 of Plaintiffs and Class Members, and conditioning the receipt of medically necessary Medicaid

18 services on segregation in an institutional or non-community setting, violate laws which prohibit

19 discrimination on the basis of disability and unjustified institutionalization and which require

20 Defendants to administer their services and programs in the most integrated setting appropriate to the

21 needs of the individuals with disabilities, including:

22

1) The Americans with Disabilities Act (“ADA”), (42 U.S.C.A. §§ 12101-

23

12213)

24

2) Section 504 of the Rehabilitation Act (“Section 504”), (29 U.S.C.A. §§ 794-

25

794a),

26

3) California Government Code section 11135. (Cal. Gov’t. Code § 11135).

27

28

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1

J. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

2 agents, employees, attorneys, and all persons who are in active concert or participation with them

3 from implementing or enforcing ABx4 5 in violation of Plaintiffs’ and Class Members’ rights under

4 the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid Act, the

5 United States Constitution, and California Government Code section 11135;

6

K. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

7 agents, employees, attorneys, and all persons who are in active concert or participation with them

8 from reducing ADHC program benefits from five or four days to a maximum of three days to the

9 Plaintiffs and Class Members and reinstate full ADHC program benefits until such time as

10 Defendants provide Plaintiffs and Class Members the Medi-Cal skilled nursing, physical and

11 occupational therapy, and other Medi-Cal-covered alternative services Plaintiffs and Class Members

12 are entitled to in the most integrated and least restrictive setting appropriate to their needs.

13

L. Grant a preliminary and permanent injunction enjoining Defendant Douglas, his

14 officers, agents, employees, attorneys, and all persons who are in active concert or participation with

15 him from denying, terminating, reducing or suspending Plaintiffs’ and Class Members’ Medi-Cal

16 skilled nursing, physical and occupational therapy, and other services to which they are entitled,

17 until such time as alternative community-based services are provided by Defendant for each Plaintiff

18 and Class Member; and until Defendant provides Plaintiffs and Class Members full notice and due

19 process appeal rights from any denials, terminations, reductions or suspensions of their Medi-Cal

20 benefits, as required under the U.S. Constitution and the Medicaid Act.

21

M. Maintain the injunctions above until such time as skilled nursing, physical and

22 occupational rehabilitation therapy, and other services are provided to the extent required under

23 federal law and so as to ensure each Plaintiff and Class Member receives the services which meet

24 their needs in the most integrated setting appropriate to their needs.

25 For the “Termination of Benefits Subclass” only:

26

N. As to all Defendants, declare that Defendants’ policies, practices, acts and omissions,

27 in implementing and enforcing ABx4 5, as set forth above, violate Plaintiffs’ and Class Members’

28

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1 rights under the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid

2 Act, the United States Constitution, and California Government Code section 11135, by, inter alia:

3

1) Denying Plaintiffs and Class Members their entitlement to services in the

4

most integrated setting;

5

2) Discriminating against Plaintiffs and Class Members on the basis of disability,

6

and on the basis of severity of disability, by utilizing methods of

7

administration, adopting and applying policies, failing to make reasonable

8

modifications in programs and policies, imposing arbitrary and illegal

9

eligibility criteria, and engaging in practices that result in unnecessary

10

segregation and institutionalization; and

11

3) Failing to provide Medi-Cal covered services without interruption and without

12

adequate notice or opportunity for a fair hearing.

13

O. Declare that Defendant Douglas’ denial, termination, reduction or suspension of

14 Plaintiffs’ and Class Members’ Medi-Cal-covered services to which they are entitled, without

15 adequate notice or opportunity for a fair hearing, and failure to provide Plaintiffs and Class Members

16 to adequate Medi-Cal-covered alternative services to which they are entitled, without interruption of

17 services, constitutes a denial of due process of law guaranteed under:

18

1) The Fourteenth Amendment to the Constitution of the United States;

19

2) The Medicaid program, Title XIX of the Social Security Act, Title 42 U.S.C.

20

§ 1396a – 1396w-5.

21

P. Declare that Defendants’ elimination of Plaintiffs’ Medicaid skilled nursing and

22 rehabilitation services provided through the ADHC program, without the provision of alternative

23 services in community-based settings which are the most integrated setting appropriate to the needs

24 of Plaintiffs and Class Members, and conditioning the receipt of medically necessary Medicaid

25 services on segregation in an institutional or non-community setting, violate laws which prohibit

26 discrimination on the basis of disability and unjustified institutionalization and which require

27

28

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Case4:09-cv-03798-SBA Document218 Filed06/02/11 Page65 of 67

1 Defendants to administer their services and programs in the most integrated setting appropriate to the

2 needs of the individuals with disabilities, including:

3

1) The Americans with Disabilities Act (“ADA”), (42 U.S.C.A. §§ 12101-

4

12213)

5

2) Section 504 of the Rehabilitation Act (“Section 504”), (29 U.S.C.A. §§ 794-

6

794a),

7

3) California Government Code section 11135. (Cal. Gov’t. Code § 11135).

8

Q. As to Defendant Douglas, declare that Defendant’s new, restrictive eligibility

9 requirements violate the comparability and reasonable standards requirements of the Medicaid Act,

10 Title XIX of the Social Security Act, 42 U.S.C. §§ 1396a(a)(10)(B) and (17) and are preempted by

11 the Supremacy Clause;

12

R. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

13 agents, employees, attorneys, and all persons who are in active concert or participation with them

14 from implementing or enforcing ABx4 5 in violation of Plaintiffs’ and Class Members’ rights under

15 the American with Disabilities Act, Section 504 of the Rehabilitation Act, the Medicaid Act, the

16 United States Constitution, and California Government Code section 11135.

17

S. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

18 agents, employees, attorneys, and all persons who are in active concert or participation with them

19 from denying, terminating, reducing, or suspending ADHC program benefits to Plaintiffs and Class

20 Members and reinstate full ADHC program benefits until such time as Defendants provide Plaintiffs

21 and Class Members the Medi-Cal skilled nursing, physical and occupational therapy, and other

22 Medi-Cal-covered alternative services Plaintiffs and Class Members are entitled to in the most

23 integrated and least restrictive setting appropriate to their needs.

24

T. Grant a preliminary and permanent injunction enjoining Defendant Douglas, his

25 officers, agents, employees, attorneys, and all persons who are in active concert or participation with

26 him from denying, terminating, reducing or suspending Plaintiffs’ and Class Members’ Medi-Cal

27 skilled nursing, physical and occupational therapy, and other services to which they are entitled,

28

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Case4:09-cv-03798-SBA Document218 Filed06/02/11 Page66 of 67

1 until such time as alternative community-based services are provided by Defendant for each Plaintiff

2 and Class Member; and until Defendant provides Plaintiffs and Class Members full notice and due

3 process appeal rights from any denials, terminations, reductions or suspensions of their Medi-Cal

4 benefits, as required under the U.S. Constitution and the Medicaid Act.

5

U. Grant a preliminary and permanent injunction enjoining Defendants, their officers,

6 agents, employees, attorneys, and all persons who are in active concert or participation with them

7 from implementing the restrictive eligibility requirements on ADHC participants provided for in

8 ABx4 5.

9

V. Maintain the injunctions above until such time as skilled nursing, physical and

10 occupational rehabilitation therapy, and other services are provided to the extent required under

11 federal law and so as to ensure each Plaintiff and Class Member receives the services which meet

12 their needs in the most integrated setting appropriate to their needs.

13 For All Class Members:

14

W. Grant a preliminary and permanent injunction compelling Defendants, their officers,

15 agents, employees, attorneys, and all persons who are in active concert or participation with them to

16 take all actions necessary within the scope of their authority to implement the above injunctions.

17

X. Maintain the injunctions above until such time as skilled nursing, physical and

18 occupational rehabilitation therapy, and other services are provided to the extent required under

19 federal law and so as to ensure each Plaintiff and Class Member receives the services which meet

20 their needs in the most integrated setting appropriate to their needs.

21

Y. Waive the requirement for the posting of a bond as security for the entry of

22 preliminary relief, on the grounds of Plaintiffs’ indigency.

23

Z. Award the Plaintiffs the costs of this action and reasonable attorneys’ fees pursuant to

24 20 U.S.C. § 794a; 42 U.S.C. §§ 1988, 12133, 12205; California Code of Civil Procedure section

25 1021.5; and as otherwise may be allowed by law.

26

AA. Order such other and further relief as the Court deems just.

27

28

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Case4:09-cv-03798-SBA Document218 Filed06/02/11 Page67 of 67

Dated: June 2, 2011 1 2 3 4

Respectfully Submitted,
DISABILITY RIGHTS CALIFORNIA NATIONAL SENIOR CITIZENS LAW CENTER AARP FOUNDATION LITIGATION NATIONAL HEALTH LAW PROGRAM MORRISON & FOERSTER LLP

5

By:

/s/

6

7

Elissa Gershon

8

Attorneys for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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 Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page1 of 70

Elissa Gershon, State Bar No. 169741 1 elissa.gershon@disabilityrightsca.org

2 Elizabeth Zirker, State Bar No. 233487 elizabeth.zirker@disabilityrightsca.org

3 Kim Swain, State Bar No. 100340
kim.swain@disabilityrightsca.org 4 DISABILITY RIGHTS CALIFORNIA

5

1330 Broadway, Suite 500 Oakland, CA 94612

6 Telephone: 510.267.1200 Facsimile: 510.267.1201

7

8

IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF CALIFORNIA

9 ESTHER DARLING; RONALD BELL by his

) Case No.: C-09-03798 SBA

guardian ad litem Rozene Dilworth; GILDA

)

10 GARCIA; WENDY HELFRICH by her guardian ) CLASS ACTION

ad litem Dennis Arnett; JESSIE JONES; RAIF 11 NASYROV by his guardian ad litem Sofiya

) ) [PROPOSED] ORDER GRANTING

Nasyrova; ALLIE JO WOODARD, by her 12 guardian ad litem Linda Gaspard-Berry;
individually and on behalf of all others similarly 13 situated,

14

Plaintiffs,

) PRELIMINARY APPROVAL OF

) ) )

SETTLEMENT AGREEMENT, DIRECTING NOTICE TO THE CLASS,

) SETTING A SCHEDULING ORDER

) AND FAIRNESS HEARING

15

v.

) ) Hearing Date:

) Time: 16 TOBY DOUGLAS, Director of the Department of ) Judge:

Hon. Saundra Armstrong

Health Care Services, State of California, 17 DEPARTMENT OF HEALTH CARE
SERVICES, 18

) Address:
) ) Courtroom:
)

1301 Clay Street Oakland, CA 94102 1, 4th Floor

Defendants.

)

19

)

20

21

22

23

24

25

26

27

28

i

DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; [PROPOSED] ORDER GRANTING PRELIMINARY

APPROVAL OF SETTLEMENT AGREEMENT, DIRECTING NOTICE TO THE CLASS, SETTING A SCHEDULING

ORDER AND FAIRNESS HEARING

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page2 of 70

Kenneth A. Kuwayti, State Bar No. 145384 1 Kkuwayti@mofo.com
Benjamin A. Petersen, State Bar No. 267120 2 Bpetersen@mofo.com
Morrison & Foerster LLP 3 755 Page Mill Road
Palo Alto, California 94304-1018 4 Telephone: 650.813.5600
Facsimile: 650.494.0792 5
6
Eric Carlson, State Bar No. 141538 7 Ecarlson@nsclc.org
NATIONAL SENIOR CITIZENS LAW CENTER 8 3435 Wilshire Boulevard, Suite 2860
Los Angeles, CA 90010 9 Telephone: 213.674.2813
Facsimile: 213.639.0934 10

Anna Rich, State Bar No. 230195 arich@nsclc.org Kevin Prindiville, State Bar No. 235835 kprindiville@nsclc.org NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525 Oakland, California 94612 Telephone: 510.663.1055 Facsimile: 510.663.1051
Barbara Jones, State Bar No. 88448 bjones@aarp.org AARP FOUNDATION LITIGATION 200 So. Los Robles, Suite 400 Pasadena, California 91101 Telephone: 626.585.2628 Facsimile: 626.583.8538

11 Kenneth W. Zeller, Pro Hac Vice kzeller@aarp.org
12 Kelly Bagby, Pro Hac Vice kbagby@aarp.org
13 AARP FOUNDATION LITIGATION
601 E Street N.W. 14 Washington, D.C. 20049
Telephone: 202.434.2060 15 Facsimile: 202.434.6424

16 17 Attorneys for Defendants

18 KAMALA D. HARRIS Attorney General of California

19 Kamala.Harris@doj.ca.gov

SUSAN M. CARSON (CA SBN 135875) 20 Supervising Deputy Attorney General

21

Susan.Carson@doj.ca.gov 455 Golden Gate Avenue, Suite 1100

22 San Francisco, California 94102-7004 Telephone: 415.703.5615

23 Facsimile: 415.703.5480

Sarah Somers, State Bar No. 170118 somers@healthlaw.org Martha Jane Perkins, State Bar No. 104784 perkins@healthlaw.org NATIONAL HEALTH LAW PROGRAM 101 East Weaver Street, Suite G-7 Carrboro, North Carolina 27510 Telephone: 919.968.6308 Facsimile: 919.968.8855

24

25

26

27

28

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DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; [PROPOSED] ORDER GRANTING PRELIMINARY

APPROVAL OF SETTLEMENT AGREEMENT, DIRECTING NOTICE TO THE CLASS, SETTING A SCHEDULING

ORDER AND FAIRNESS HEARING

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page3 of 70

1

Plaintiffs Esther Darling, Ronald Bell by his Guardian ad Litem, Rozene Dilworth, Gilda

2 Garcia,Wendy Helfrich by her Guardian ad Litem, Dennis Arnett, Jessie Jones, Raif Nasyrov by his

3 Guardian ad Litem, Sofiya Nasyrova, and Allie Jo Woodard by her Guardian ad Litem, Linda

4 Gaspard-Berry, (“Plaintiffs”), and Defendants Toby Douglas and the Department of Health Care

5 Services (DHCS), (“Defendants”) have filed a Joint Request for Preliminary Approval of Settlement

6 Agreement, Directing Notice to the Class, Setting a Scheduling Order and Fairness Hearing.

7

The Court, having considered the joint moving papers of the Parties and the Settlement

8 Agreement and proposed notice to the class submitted therewith, for good cause appearing,1

9

IT IS HEREBY ORDERED THAT:

10

1. The parties’ joint motion for preliminary approval (Dkt. 414) is GRANTED. The

11 proposed settlement set forth in the Settlement Agreement attached as Exhibit 1 to the declaration of

12 Elissa Gershon and attached hereto, and the proposed modification of the class definition set forth

13 therein, are preliminarily approved as being within the range of reasonableness such that notice

14 should be given to the Settlement Class.

15

2. For settlement purposes only, pursuant to Federal Rule of Civil Procedure 23(a) and

16 23(b)(2), the Court conditionally certifies the following Settlement Class: “All Medi-Cal

17 beneficiaries in the State of California for whom Adult Day Health Care benefits will be eliminated

18 under the provisions of AB 97 including those who met or will meet the current eligibility and

19 medical necessity criteria for ADHC at any point prior to the Effective Date of this Settlement; or

20 who will meet the eligibility and medical necessity criteria for CBAS at any point prior to

21 Termination of this Agreement.”

22

3. For settlement purposes only, the Court appoints Wendy Helfrich, Jessie Jones, Raif

23 Nasyrov, Esther Darling, Ronald Bell, Gilda Garcia, and Allie Jo Woodard are Class Representatives

24 for the Settlement Class.

25 1 The Court, in its discretion, finds this matter suitable for resolution without a hearing. See
26 Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

27

28

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DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL

OF SETTLEMENT AGREEMENT, DIRECTING NOTICE TO THE CLASS, SETTING A SCHEDULING ORDER AND FAIRNESS

HEARING

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page4 of 70

1

4. For settlement purposes only, the Court appoints Disability Rights California,

2 National Health Law Program, National Senior Citizens Law Center, AARP Foundation Litigation,

3 and Morrison & Foerster LLP as Class Counsel for the Settlement Class.

4

5. The contents of the class notice, attached as Exhibit 2 to the declaration of Elissa

5 Gershon (as subsequently modified) and attached hereto, is adequate under Rule 23 of the Federal

6 Rules of Civil Procedure and approved as to form. The parties shall provide class members with

7 notice in the form and in the manner specified in the Settlement Agreement and Joint Motion.

8

6. The parties shall adhere to the following general time schedule:

9

a. Notice to the class shall be mailed, posted and/or published in the manner

10 specified in the Settlement Agreement and Joint Motion by December 14, 2011 or as soon as

11 reasonably practicable thereafter;

12

b. Each class member shall have until January 10, 2012, in order to file an

13 objection and/or provide notice of intent to appear, as the case may be, under the procedures

14 specified in the Settlement Agreement, Joint Motion, and Notice to Class. Such date shall be

15 determined by the postmark of the document filed;

16

7. The Court finds that the forms of notice to Plaintiff Settlement Class Members

17 regarding the pendency of the litigation and of this settlement, including the methods of

18 dissemination to the proposed Plaintiff Settlement Class Members in accordance with the terms of

19 this order, constitute the best notice practicable under the circumstances.

20

8. Plaintiffs shall file a Notice of Motion and Motion, and Points and Authorities in

21 Support of the Parties' Agreement re Attorneys' Fees and Costs ("Fee Motion") no later than

22 December 14, 2011. Defendants shall file a Notice of Non-Opposition to Plaintiffs' Fee Motion no

23 later than December 28, 2011.

24

9. The Parties shall file a Joint Motion for Final Approval of the Settlement, including

25 Certification of the Settlement Class no later than January 17, 2012. The filing shall include all

26 papers in support of the Joint Motion for Final Approval of the Settlement and/or response(s) to any

27

28

2

DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL

OF SETTLEMENT AGREEMENT, DIRECTING NOTICE TO THE CLASS, SETTING A SCHEDULING ORDER AND FAIRNESS

HEARING

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page5 of 70

1 valid and timely objection with the Court. The Parties shall serve copies of such papers upon any

2 objector who has complied with the provisions of Paragraph 6.b. of this Order.

3

10. The Court shall conduct a Fairness Hearing regarding final approval of the Settlement

4 Agreement and Plaintiffs’ Fee Motion on January 24, 2012 at 1:00 p.m. to hear any objections to the

5 Settlement, and to consider and determine whether the proposed settlement of the litigation on the

6 terms set forth in the Settlement Agreement should be approved as fair, just, reasonable, adequate

7 and in the best interests of the Plaintiff Settlement Class; whether Plaintiffs’ Counsels’ attorneys’

8 fees and reimbursement of expenses should be approved; and whether the Order approving the

9 settlement should be entered.

10

IT IS SO ORDERED.

11

12 Dated: 12-13-11 13 14

Honorable Saundra Brown Armstrong United States District Judge

15

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DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; [PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL

OF SETTLEMENT AGREEMENT, DIRECTING NOTICE TO THE CLASS, SETTING A SCHEDULING ORDER AND FAIRNESS

HEARING

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CCasaes4e:40:90-9c-vc-v0-30739789-8S-SBBAA DDocoucmumenetn4t1441-51 FFileilde1d21/21/40/11/11 PPagaeg5e853ofo7f 056

CCasaes4e:40:90-9c-vc-v0-30739789-8S-SBBAA DDocoucmumenetn4t1441-51 FFileilde1d21/21/40/11/11 PPagaeg5e954ofo7f 056

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CCasaes4e:40:90-9c-vc-v0-30739789-8S-SBBAA DDocoucmumenetn4t1441-51 FFileilde1d21/21/40/11/11 PPagaeg6e156ofo7f 056

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Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page63 of 70

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

If you are in Medi-Cal and receive (or recently received) Adult Day Health Care (ADHC), this is a Notice of a Class Action Settlement Which May Affect You.

A federal court authorized this notice. This is not a solicitation from a lawyer.

A lawsuit was filed asking the Court to stop California from ending the Medi-Cal ADHC program unless other services were in place for people receiving ADHC services. The parties to the lawsuit have reached a settlement of the lawsuit. If the settlement is approved by the Court, the ADHC program will end on February 29, 2012. Beginning March 1, 2012, you will receive other services depending on your situation. A full description of services which will be available and who will qualify for which services is set forth below. Also listed below is information about the Settlement Agreement that should answer the questions you have about it and a place to contact if you have more questions.
This Settlement will not affect your ability to continue to see your primary care provider if you are currently in Medicare. The services that are available under the settlement agreement will be in addition to the services you currently receive through Medicare.
This case is not one for money damages.
The Court still has to decide whether to approve the Settlement Agreement.
This Notice explains your rights and your options – and the deadlines to act on them. READ THIS NOTICE CAREFULLY.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

DO NOTHING

If you do nothing, the court will evaluate the Settlement

without your comments. You will give up the right to

challenge the end of the ADHC program in another

lawsuit. If you receive ADHC services now, you do not

have to respond to this Notice to get the services

created by this Settlement.

OBJECT IN WRITING BY

Write to the Court about why you don’t like the

JANUARY 10, 2012

Settlement. In addition, you may ask to speak in Court

about your objections. Your objection must be sent to

the Court by January 10, 2012 to be considered.

GO TO THE FAIRNESS

If you want to speak at the Fairness Hearing, make sure

HEARING ON JANUARY 24, to say that in your letter to the Court. However, you do

2012.

not have to appear at the Fairness Hearing for your

objection to be considered.

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page64 of 70
NOTICE OF CLASS ACTION SETTLEMENT AGREEMENT Darling et al. v. Douglas et al., C09-03798 SBA
1. Why am I getting this Notice?
You are getting this notice because you are now receiving or, at some point since July 1, 2011, have received Medi-Cal Adult Day Health Care (AHDC) services and are considered a Class Member in this lawsuit.
You have a right to know about a proposed settlement of a class action lawsuit, and about your options, before the Court decides whether to approve the Settlement. This Notice explains the lawsuit, what Class Members will get if the Court approves the Settlement, and your legal rights regarding the Settlement.
The Court in charge of the case is the United States District Court for the Northern District of California. The case is named Darling et al. v Douglas et al. The Case Number is C:09-03798 SBA. The seven ADHC participants who sued are called named Plaintiffs, and the Defendants are the Department of Health Care Services (DHCS) and its Director Toby Douglas. All other individuals who receive ADHC services are called Class Members.
2. What is this lawsuit about?
In 2009, people receiving Medi-Cal Adult Day Health Care (ADHC) (the Plaintiffs) sued the Defendants. They asked the Court to stop Defendants from reducing ADHC services, which it did. In 2011, the Plaintiffs asked the Court to stop the Defendants from ending the ADHC benefit. They argued that, unless Defendants provided services to replace ADHC, ending the program would violate the Americans with Disabilities Act (ADA) and other laws. The State Defendants deny these arguments.
3. Why is this a class action?
In a class action, one or more people, called Class Representatives or named plaintiffs, sue on behalf of people who have similar claims. All of these people are Class Members. One court resolves the issues for all Class Members. In this case, Esther Darling and the other named Plaintiffs sued on behalf of everyone receiving the Medi-Cal ADHC benefit. Any decision by the Court in this case will affect all Class Members.
4. Why is there a settlement?
The Plaintiffs and Defendants have agreed to a settlement in which they have worked together to design new programs to replace the ADHC program. The Class Representatives and the Plaintiffs’ attorneys think the Settlement is fair. A Fairness Hearing to approve the final settlement will be held in the U.S.
2

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page65 of 70
NOTICE OF CLASS ACTION SETTLEMENT AGREEMENT Darling et al. v. Douglas et al., C09-03798 SBA
District Court in Oakland on January 24, 2012 at 1:00 p.m. See questions 14-17 below for more information about the Court hearing.
5. How do I know if I am part of the settlement?
You are a class member and are part of the Settlement if you fit this description:
“All Medi-Cal beneficiaries in the State of California for whom Adult Day Health Care benefits will be eliminated under the provisions of AB 97 including those who met or will meet the current eligibility and medical necessity criteria for ADHC at any point prior to the Effective Date of this Settlement; or who will meet the eligibility and medical necessity criteria for CBAS at any point prior to Termination of this Agreement.”
This means you are covered by the Settlement if you would have had your MediCal ADHC benefit eliminated by Assembly Bill 97 (AB 97) or you will qualify for ADHC before March 1, 2012. It also means that people who qualify for the new program, Community Based Adult Services (CBAS), will be covered by the Settlement. “AB 97” (Assembly Bill 97) is a new law that eliminated ADHC as a Medi-Cal benefit.
6. What does the Settlement provide?
Under the Settlement Agreement, DHCS will set up a new Medi-Cal program called Community Based Adult Services (“CBAS”).
 CBAS allows eligible people in Medi-Cal to get skilled nursing care, social services, therapies, personal care, family/caregiver training and support, meals, transportation, and case management in one central location.
 CBAS will be available at some former ADHC centers that are approved by DHCS as CBAS providers.
 CBAS will start on March 1, 2012.
The Settlement will set up “Enhanced Case Management” for those who were in ADHC, but who do not qualify for CBAS.
 Enhanced Case Management will help eligible people get the medical and social services they need once ADHC ends. You will have a say in what services they get and how they get them.
ADHC services will continue until February 29, 2012 to give people time to change from getting their services from ADHC providers to getting their services
3

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NOTICE OF CLASS ACTION SETTLEMENT AGREEMENT Darling et al. v. Douglas et al., C09-03798 SBA
from CBAS providers or to begin receiving Enhanced Case Management. All class members will receive either CBAS or Enhanced Case Management.
This is not a case for money damages, so no Plaintiffs or Class Members will receive payment for being part of the lawsuit.
7. What happens to me under the Settlement?
 If you have Medi-Cal and are in ADHC now:
o You will be assessed for CBAS sometime between December 2011 and February 2012. Your ADHC provider will give you more information about the assessment process.
o If you qualify for CBAS, you will receive these services as soon as ADHC services end, March 1, 2012.
o If you do not qualify for CBAS, February 29, 2012 will be your last day of ADHC services. You will get Enhanced Case Management services to help you transition to other services that you need.
 If you have Medi-Cal but are not in ADHC now:
o You may still apply for ADHC until February 29, 2012.
o You may ask to be assessed for CBAS. 8. How do I know if I qualify for CBAS?
You can receive CBAS if you are in Medi-Cal AND currently qualify for ADHC, AND:
 Need enough nursing to meet “Nursing Facility Level of Care A” (NF-A) or above; OR
 Have a moderate to severe cognitive impairment, including moderate to severe Alzheimer’s Disease or other dementia; OR
 Have a developmental disability; OR
 Have a mild to moderate cognitive disability, including Alzheimer’s or dementia AND need assistance or supervision with two of the following: bathing, dressing, self-feeding, toileting, ambulation, transferring, medication management, or hygiene; OR
 Have a chronic mental illness or a brain injury AND need assistance or supervision with two of the following: bathing, dressing, self-feeding,
4

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page67 of 70
NOTICE OF CLASS ACTION SETTLEMENT AGREEMENT Darling et al. v. Douglas et al., C09-03798 SBA
toileting, ambulation, transferring, medication management, and hygiene; OR one need from the above list and one of the following: money management, accessing resources, meal preparation, and transportation.
9. If I am assessed and I qualify, do I automatically get CBAS?
Yes. Once you are found eligible for CBAS, you will get instructions on how to enroll if there is a CBAS center where you live. If there is no CBAS center where you live, you will be able to get the services that are offered at CBAS centers, but from other providers.
 Between March 1, 2012 and approximately July 1, 2012, CBAS will be available through regular Medi-Cal. Eventually, CBAS will mostly be available through Medi-Cal managed care.
 Once CBAS is mostly available only through Medi-Cal managed care, if you live in a county that offers Medi-Cal managed care, and you qualify to enroll in a managed care plan, you may ONLY get CBAS through managed care.
o If you enroll in Medi-Cal managed care any time before July 1, 2012, or if you are already enrolled in Medi-Cal managed care, your managed care plan will pay for CBAS when it becomes a managed care option. You will not need to make any changes to continue to get CBAS.
o If you could be enrolled in Medi-Cal managed care but are not now, you will have to enroll to continue to get CBAS when it becomes available through Medi-Cal managed care.
o If you get Medicare, enrollment into Medi-Cal managed care WILL NOT affect your ability to choose your Medicare doctors.
 If you live in a county that does not have Medi-Cal managed care or you cannot get managed care, you do not need to make any changes to continue to get CBAS. You may continue to receive CBAS as a regular Medi-Cal benefit.
10. Will I Be Able to Go to the Same Center to Get CBAS?
It depends. Many ADHC centers will be able to offer CBAS. ADHC centers can apply to the state to become CBAS providers. If you qualify for CBAS and your ADHC center is approved to be a CBAS provider by February 29, 2012, you will be able to keep receiving services at the same center once ADHC ends. If your
5

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page68 of 70
NOTICE OF CLASS ACTION SETTLEMENT AGREEMENT Darling et al. v. Douglas et al., C09-03798 SBA
ADHC center does not become a CBAS provider, you will be given information about other CBAS providers.
11. What if I don’t qualify for CBAS?
If you are in ADHC, but don’t qualify for CBAS, you will get “Enhanced Case Management” to help you get the medical and social services you need after ADHC ends. Case managers in this program will work with you so that you have a say as to what services you get and how you get them.
You will have the choice to receive Enhanced Case Management as a regular Medi-Cal service or through Medi-Cal managed care.
12. Do I have a lawyer in the case?
Yes. Disability Rights California, the National Senior Citizens Law Center, the National Health Law Program, AARP Foundation Litigation, and the law firm of Morrison & Foerster LLP were approved by the Court to represent you and other Class Members. Together, the lawyers are called Class Counsel. You will not be charged for these lawyers.
13. How will the lawyers be paid?
If the Settlement is approved, the Defendants will pay attorneys’ fees to plaintiffs’ attorneys for their work on this case. The Court must approve the amount of fees. Plaintiffs and Defendants will ask the court to approve fees of $2.2 million for the work done over the last 2-1/2 years. They will also ask the Court to approve up to $400,000 for Plaintiffs’ lawyers to monitor the settlement over the next 2-1/2 years. You do not need to pay the attorneys.
14. What are my options about the Settlement?
You may do nothing, and you will remain a Class Member. You may write a letter to the Court stating the reasons why you do not like the Settlement, and mail it by January 10, 2012. If you want to speak at the Fairness Hearing on January 24, 2012, you MUST say that in your letter. It is up to the Court whether you will be permitted to speak at the hearing. However, you do not have to appear in Court on January 24, 2012 in order for your objection to be considered.
15. If the Settlement is approved, what does that mean?
If this Settlement is approved, you will be able to get either CBAS or Enhanced Case Management depending on your situation. You will not be able to be part of another lawsuit about whether California can end the Medi-Cal ADHC benefit.
6

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page69 of 70
NOTICE OF CLASS ACTION SETTLEMENT AGREEMENT Darling et al. v. Douglas et al., C09-03798 SBA
16. How do I tell the court if I don’t like the Settlement?
If you’re a Class Member, you can tell the Court that you do not agree with the Settlement or with any part of it by sending a letter with your objections by January 10, 2012. You may write the letter yourself or through an attorney at your own expense.
To object, you must send a letter to the Court saying that you object and explain the reasons for your objection. At the top of the letter, be sure to include your name, address, telephone number, and write “Darling v. Douglas, C 09-3798 SBA.” Be sure to sign your letter.
Mail the original letter to the Clerk of the Court and copies of the letter to the attorneys for the parties. The objection must be mailed to these three different places postmarked no later than January 10, 2012:

Clerk of the Court: U.S. District Court 1301 Clay Street Oakland, CA 94612
Reference: Darling et al. v. Douglas et al., Case No. C0907398 SBA

Attorneys for Class Members: Elissa Gershon Disability Rights California. 1330 Broadway, Suite 500, Oakland, CA 94612
ATTN: Darling v. Douglas

Attorneys for DHCS:
Susan M. Carson
Office of the Attorney General
455 Golden Gate Avenue,
Suite 11000
San Francisco, CA
94102-7004

17. When and where will the Court decide whether to approve the Settlement?
The Court will hold a “Fairness Hearing” to decide whether to approve the settlement on January 24, 2012 at 1:00 p.m. The Court will consider whether the settlement is fair, reasonable, and adequate. The Judge will listen to Class Members who have asked to speak at the hearing. You may attend even if you do not wish to speak. The hearing will take place at:
United States District Court Northern District of California
1301 Clay Street Courtroom 1, 4th Floor
Oakland, CA 94612

7

Case4:09-cv-03798-SBA Document415 Filed12/14/11 Page70 of 70
NOTICE OF CLASS ACTION SETTLEMENT AGREEMENT Darling et al. v. Douglas et al., C09-03798 SBA

18. What happens if I do nothing at all?

If you do nothing, you will remain a class member. If this Settlement is approved, you will be able to get CBAS or Enhanced Case Management depending on your situation. You will not be able to be part of another lawsuit about whether California can end the Medi-Cal ADHC benefit.

GETTING MORE INFORMATION

19. How do I get more details about the Settlement?

To get more information, a copy of the Settlement Agreement, or help in making an objection to the Court, you may contact Disability Rights California:

darling@disabilityrightsca.org

(888) 599-3921

20. How do I get more information about the case?
You can get more information about the case by looking at the case file located in the office of the Clerk of the U.S. District Court located at the address listed in question 17. You can also look at the full settlement and get other information at:
 http://www.disabilityrightsca.org/advocacy/Darling-v-Douglas/index.html OR
 http://www.dhcs.ca.gov/services/medi-cal/Pages/ADHC/ADHC.aspx
21. How do I get copies of this notice in other languages or in formats that accommodate people with disabilities?
If you need a copy of this notice in another language, have a disability and need an accommodation such as an alternate format for notice (for example, Braille, or large print), or an alternate way to ask questions about the notice (for example, a sign language interpreter), you can:
 Contact Plaintiffs’ attorney Disability Rights California at (888) 599-3921; OR

 Visit the Disability Right California or DHCS websites listed in Question 20.

8

 
 1

2

UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

OAKLAND DIVISION

5
ESTHER DARLING, et al.,
6
Plaintiffs,
7
vs.
8
TOBY DOUGLAS, Director of the 9 Department of Health Care Services, et al.,

Case No: C 09-3798 SBA ORDER ACCEPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE Dkt. 522, 583

10

Defenda nts.

11

12

13

The Court previously referred Plaintiffs’ Motion for Enforcement of Stipulated

14 Judgment and for Appointment of Special Master (Dkt. 522) to Magistrate Judge

15 Jacqueline Corley (“the Magistrate”) for findings and recommendations. Dkt. 460. On

16 November 20, 2012, the Magistrate issued her report and recommendation in which she

17 recommended denying Plaintiffs’ motion. Dkt. 583, 584.

18

Any objections to a report and recommendation must be filed within fourteen days

19 of receipt thereof. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); Civ. L.R. 72-2, 72-3. The

20 district court must “make a de novo determination of those portions of the report to which

21 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or

22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Civ. L.R.

23 72-3(a) (requiring that any objections be accompanied by a motion for de novo

24 determination).

25

The deadline to file an objection to the report and recommendation was December 4,

26 2012. See Fed. R. Civ. P. 6(a)(1), 72(b). To date, no objections have been filed in this

27 case. In the absence of a timely objection, the Court “need only satisfy itself that there is

28 no clear error on the face of the record in order to accept the recommendation.” Fed. R.

1 Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501

2 F.2d 196, 206 (9th Cir. 1974)); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121

3 (9th Cir. 2003) (“The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district

4 judge must review the magistrate judge’s findings and recommendations de novo if [an]

5 objection is made, but not otherwise.”) (en banc). The Court has reviewed the record on its

6 face and finds no clear error. Accordingly,

7

IT IS HEREBY ORDERED THAT the Magistrate’s report and recommendation is

8 ACCEPTED and shall become the Order of this Court. Plaintiffs’ Motion for Enforcement

9 of Stipulated Judgment and for Appointment of Special Master to Magistrate Judge is

10 therefore DENIED. This Order terminates Docket 522 and 583.

11

IT IS SO ORDERED.

12 Dated: March 8, 2013
13 14

_____________ __________________ SAUNDRA BROWN ARMSTRONG United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 2 -

 
 Case4:09-cv-03798-SBA Document482 Filed04/16/12 Page1 of 3

1 KAMALA D. HARRIS Attorney General of California
2 SUSAN M. CARSON Supervising Deputy Attorney General
3 State Bar No. 135875 JOSHUA N. SONDHEIMER
4 Deputy Attorney General State Bar No. 152000
5 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
6 Telephone: (415) 703-5580 Fax: (415) 703-5480
7 E-mail: susan.carson@doj.ca.gov

8 Attorneys for Defendants

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11 OAKLAND DIVISION
12

13

14 ESTHER DARLING; RONALD BELL by C09-03798 SBA (NC/JSC) his guardian ad litem Rozene Dilworth;
15 GILDA GARCIA; WENDY HELFRICH by CLASS ACTION her guardian ad litem Dennis Arnett;
16 JESSIE JONES; RAIF NASSYROV by his STIPULATION AND ORDER RE guardian ad litem Sofiya Nasyrova; ALLIE ADDENDUM TO SETTLEMENT
17 JO WOODARD, by her guardian ad litem AGREEMENT Linda Gaspard-Berry; individually and on
18 behalf of all others similarly situated,

19

Plaintiffs,

20

v.

21 TOBY DOUGLAS, Director of the
22 Department of Health Care Services, State of California, DEPARTMENT OF
23 HEALTH CARE SERVICES,

24

Defendants.

25

26

27

28
1
Stipulation and [Proposed] Order Re Addendum to Settlement Agreement (C09-03798 SBA (NC/JSC)

Case4:09-cv-03798-SBA Document482 Filed04/16/12 Page2 of 3

1 Elissa Gershon, State Bar No. 169741 elissa.gershon@disabilityrightsca.org
2 Elizabeth Zirker, State Bar No. 233487 elizabeth.zirker@disabilityrightsca.org
3 Kim Swain, State Bar No. 100340 kim.swain@disabilityrightsca.org
4 DISABILITY RIGHTS CALIFORNIA 1330 Broadway, Suite 500
5 Oakland, CA 94612 Telephone: 510.267.1200
6 Facsimile: 510.267.1201 Attorneys for Plaintiffs
7
Eric Carlson, State Bar No. 141538 8 Ecarlson@nsclc.org
NATIONAL SENIOR CITIZENS LAW CENTER 9 3435 Wilshire Boulevard, Suite 2860
Los Angeles, CA 90010 10 Telephone: 213.674.2813
Facsimile: 213.639.0934 11

Anna Rich, State Bar No. 230195 arich@nsclc.org Kevin Prindiville, State Bar No. 235835 kprindiville@nsclc.org NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525 Oakland, California 94612 Telephone: 510.663.1055 Facsimile: 510.663.1051
Barbara Jones, State Bar No. 88448 bjones@aarp.org AARP FOUNDATION LITIGATION 200 So. Los Robles, Suite 400 Pasadena, California 91101 Telephone: 626.585.2628 Facsimile: 626.583.8538

12 Kenneth W. Zeller, Pro Hac Vice kzeller@aarp.org
13 Kelly Bagby, Pro Hac Vice kbagby@aarp.org
14 AARP FOUNDATION LITIGATION 601 E Street N.W.
15 Washington, D.C. 20049 Telephone: 202.434.2060
16 Facsimile: 202.434.6424

Sarah Somers, State Bar No. 170118 somers@healthlaw.org Martha Jane Perkins, State Bar No. 104784 perkins@healthlaw.org NATIONAL HEALTH LAW PROGRAM 101 East Weaver Street, Suite G-7 Carrboro, North Carolina 27510 Telephone: 919.968.6308 Facsimile: 919.968.8855

17 Kenneth A. Kuwayti, State Bar No. 145384
18 Kkuwayti@mofo.com Benjamin A. Petersen, State Bar No. 267120
19 Bpetersen@mofo.com Morrison & Foerster LLP
20 755 Page Mill Road Palo Alto, California 94304-1018
21 Telephone: 650.813.5600 Facsimile: 650.494.0792
22

23

24

25

26

27

28
2
Stipulation and [Proposed] Order Re Addendum to Settlement Agreement (C09-03798 SBA (NC/JSC)

Case4:09-cv-03798-SBA Document482 Filed04/16/12 Page3 of 3

1

In order to resolve all issues raised by plaintiffs’ Motion for Enforcement of Stipulated

2 Judgment and for Civil Contempt Sanctions [Docket No. 448], the parties hereby stipulate that

3 Exhibit A attached hereto shall be an Addendum to the Settlement Agreement approved by this

4 Court on January 25, 2012 [Docket No. No. 438-1].

5 6 7 8 9 10 Dated: April 3, 2012 11 12 13 14 15

Respectfully submitted,
DISABILITY RIGHTS CALIFORNIA AARP FOUNDATION LITIGATION NATIONAL SENIOR CITIZENS LAW CENTER NATIONAL HEALTH LAW PROGRAM MORRISON & FOERSTER LLP
By: /s/ Elissa Gershon Attorneys for Plaintiffs
KAMALA D. HARRIS Attorney General of California SUSAN M. CARSON Supervising Deputy Attorney General

16 Dated: April 3, 2012 17

By: /s/ Susan M. Carson
Attorneys for Defendants

18 Filer’s Attestation: Pursuant to General Order No. 45, § X(B), I attest under penalty of

19 perjury that concurrence in the filing of the document has been obtained from each of its

20 signatories.

21

Dated: April 3, 2012

By: /s/

22

Susan M. Carson

23

24 PURSUANT TO STIPULATION, IT IS SO ORDERED.

25

26 Dated: _4/13/12___ 27 28

_________________________________________ HONORABLE SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
3

Stipulation and [Proposed] Order Re Addendum to Settlement Agreement (C09-03798 SBA (NC/JSC)

 
 Case4:09-cv-03798-SBA Document583 Filed11/20/12 Page1 of 19

United States District Court Northern District of California

1

2

3

4

5

6

7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

10

11

12 ESTHER DARLING, et al.,

Case No.: C-09-03798 SBA (JSC)

13 Plaintiffs,
14 v.
15
16 TOBY DOUGLAS, Director of the Department of Health Care Services,
17 State of California, DEPARTMENT OF HEALTH CARE SERVICES,
18

REPORT AND RECOMMENDATION RE PLAINTIFFS’ MOTION FOR ENFORCEMENT OF STIPULATED JUDGMENT AND FOR APPOINTMENT OF SPECIAL MASTER

19

Defendants.

20

21

Presently before the Court is a Motion for Enforcement of Stipulated Judgment and for

22 Appointment of Special Master (―Motion‖) brought by Plaintiffs Esther Darling, Ronald Bell by his

23 Guardian ad Litem, Rozene Dilworth, Gilda Garcia, Wendy Helfrich by her Guardian ad Litem,

24 Dennis Arnett, Jessie Jones, Raif Nasyrov by his Guardian ad Litem, Sofiya Nasyrova, and Allie Jo

25 Woodard by her Guardian ad Litem, Linda Gaspard-Berry (collectively, ―Plaintiffs‖) against

26 Defendants Toby Douglas and the Department of Health Care Services (―DHCS‖) (collectively,

27

28

Case4:09-cv-03798-SBA Document583 Filed11/20/12 Page2 of 19

United States District Court Northern District of California

1 ―Defendants‖).1 (Dkt. No. 522.) After carefully considering the pleadings submitted by the parties,

2 including the parties‘ supplemental submissions (Dkt. Nos. 579-582), and with the benefit of oral

3 argument on November 8, 2012, the Court RECOMMENDS that the Motion be DENIED.

4

BACKGROUND

5

On August 18, 2009, Plaintiffs, who are elderly persons and adults with disabilities, brought

6 a class action suit against Defendants to enjoin changes being made to Adult Day Health Care

7 (―ADHC‖), asserting that the changes to the program, as enacted by the California Legislature,

8 would place them at risk of unnecessary institutionalization. (Dkt. No. 438, Ex. A.) Plaintiffs also

9 alleged that their due process rights were violated and that restrictive new eligibility criteria violated

10 Medicaid requirements. Id. Ultimately, the parties settled the case, with the Court entering a

11 Stipulated Judgment on January 25, 2012. (Dkt. No. 444.) The Court retained jurisdiction over the

12 action until 30 months after the Effective Date of settlement. Id.

13

At issue in the parties‘ current dispute are two portions of their Settlement Agreement

14 (―Agreement‖). First, the Agreement sets forth the procedures and requirements for the elimination

15 of ADHC and the implementation of a new Medi-Cal benefit program called Community Based 16 Adult Services (―CBAS‖).2 Forty thousand Class Members potentially could be eligible for CBAS.

17 (Dkt. No. 532, 1.) A defining feature of CBAS is that the program is administered through ―managed

18 care plans,‖ rather than the previous ―fee-for-service‖ model used under ADHC. Managed care

19 provides Medi-Cal services through contracts between DHCS and managed care organizations or

20 health plans; fee-for-service is a payment model for Medi-Cal benefits where health care providers

21 receive a fee from DHCS for each service provided to a beneficiary. (Dkt. No. 438, Ex. A, Sec.

22 VI.13 & 15.) The Agreement provides that ―n[]o sooner than July 1, 2012, for all CBAS-eligible

23 Class Members who reside in counties where Medi-Cal managed care is available and are eligible

24 for Medi-Cal managed care enrollment, CBAS will be available only as a Medi-Cal managed care

25

1 The presiding judge in this matter, the Honorable Sandra Brown Armstrong, referred all 26 motions filed pertaining to the parties‘ settlement to the undersigned for preparation of a report and

27

recommendation. (Dkt. No. 460.) 2 CBAS ―erfers to an outpatient, facility based service program that delivers skilled nursing

28 care, social services, therapies, personal care, family/caregiver training and support, meals and

transportation to eligible Medi-Cal beneficiaries.‖ (Dkt. No. 438, Ex. A, Sec. VI.6.)

2

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1 benefit.‖ (Id. at Sec. XII.D.3.) The Agreement further states that Defendants shall ―psasively enroll‖

2 all CBAS-eligible Class Members receiving CBAS services under the fee-for-service model into the

3 new managed care plans no sooner than 30 days prior to the date CBAS replaces ADHC. (Id. at Sec.

4 XII.F.2.a.) Those Class Members would receive notice of this passive enrollment and be given an

5 opportunity to opt-out of the new managed care plan. (Id. at Sec. XII.F.2.b.) If a Class Member

6 opted-out, however, that Class Member would lose access to CBAS services. (Id. at Sec. XII.F.2.c.i.)

7 The Agreement notes that ―e[]nrollment into [managed care] shall not impede Class Members‘

8 access to Medicare providers and services.‖ (Id. at Sec. XII.F.2.k.)

9

The second area of dispute is the assessment process for CBAS eligibility. In addition to

10 setting out the criteria for CBAS eligibility, the Agreement describes the process by which Class

11 Members will be deemed eligible or ineligible for CBAS. To begin, the Agreement contemplates

12 three categories in which Class Members will be assigned based on an initial DHCS review:

13 categorically eligible for CBAS; presumptively eligible for CBAS; and non-presumptively eligible

14 for CBAS. (Id. at Sec. XI.A & B.) Categorically eligible Class Members would transition from 15 ADHC to CBAS automatically.3 (Id. at Sec. XI.B.1.)

16

For the remaining Class Members, the Agreement requires a more involved process. First,

17 ADHC centers, using a ―screening tool,‖ conduct their own in-house determination of whether Class

18 Members meet the CBAS eligibility criteria contained in the Agreement, and send their

19 recommendations to DHCS. (Id. at Sec. XI.A.2.a.) Second, the Agreement requires a ―face-to-face‖

20 assessment for all Class Members who ADHC centers recommend as CBAS eligible, or as needing a 21 face-to-face assessment in order to determine initial eligibility.4 (Id. at Sec. XI.A.3.b.) The parties

22 are required to agree upon a tool and protocol for conducting these face-to-face assessments. (Id. at

23 Sec. XI.A.3.c.) Next, the Agreement requires ―second-level reviews‖ of eligibility determinations

24 ―[i]n all cases in which the outcome of the face-to-face assessment is that a Class Member is not

25 3 Presumptively eligible class members would transition to CBAS and remain there ―at least
26 until a face-to-face assessment by DHCS.‖ (Id. at Sec. XI.B.2.a.)

27

4 Face-to-face assessments are also required upon request by the Class Member if the ADHC center does not recommend him or her as CBAS eligible, and when the ADHC center does

28 not complete a CBAS screening tool and the individual has not been determined to be categorically

or presumptively eligible. (Id. at Sec. XI.A.3.b.)

3

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1 eligible for CBAS.‖5 (Id. at Sec. XI.A.4.a.) Finally, Class members who receive a final

2 determination of ineligibility can appeal the decision and receive an administrative hearing. (Id. at

3 Sec. XIV.B.1.)

4

Plaintiffs allege that Defendants have violated the Agreement on the following four grounds:

5 1) Defendants have failed to take necessary steps to prevent managed care opt-outs; 2) some Class

6 Members have had long-delayed hearing decisions; 3) Defendants have subjected Class Members to

7 illegal Quality Assurance reviews in determining CBAS eligibility; and 4) Defendants have not 8 acted to support access to CBAS and prevent loss of CBAS services due to center closures.6 (Dkt.

9 Nos. 522 & 555.) Plaintiffs also seek specific relief for each of the above alleged violations, as well

10 as an appointment of a Special Master to assist the parties in reaching resolution of the ongoing

11 disputes. (Id.)

12

ANALYSIS

13 A. Legal Standard

14

―A consent decree, which has attributes of a contract and a judicial act, is construed with

15 reference to ordinary contract principles.‖ City of Las Vegas v. Clark County, 755 F.2d 697, 702 (9th

16 Cir. 1985); see also United States v. Asarco Inc., 430 F.3d 972, 980 (9th Cir. 2005) ( ―[C]ourts treat

17 consent decrees as contracts for enforcement purposes.‖). ―A consent decree, like a contract, must be

18 discerned within its four corners, extrinsic evidence being relevant only to resolve ambiguity in the

19 decree.‖ Asarco, 430 F.3d at 980; see also United States v. Armour & Co., 402 U.S. 673, 681 (1971)

20 (―[T]he scope of a consent decree must be discerned within its four corners, and not by reference to

21 what might satisfy the purposes of one of the parties to it.‖). Therefore, the consent decree is

22 construed as it is written, ―not as it might have been written had the plaintiff established his factual

23 claims and legal theories in litigation.‖ Armour, 402 U.S. at 681.

24

25

5 However, if the Class Member was identified by the ADHC center as not meeting CBAS

eligibility criteria, a second-level review is required only upon the request of the Class Member or

26 the Class Member‘s family. (Id. at Sec. XI.A.4.a.)

27

6 Plaintiffs‘ Motion also includes two additional issues—the parties‘ failure to reach an agreement on a post-transition assessment tool, and Defendants‘ alleged failure to provide adequate

28 notices to Class Members—that Plaintiffs have informed the Court are ―deferred‖ and thus should

not be considered at this time. (Dkt. No. 529.)

4

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1 B. 2

Whether Defendants’ Alleged Failure to Respond to the Opt-Out Issue Violates the Agreement

3

Plaintiffs contend that Defendants have not adequately responded to the high number of

4 Class Members who have opted-out of managed care plans. This issue has arisen because, as noted

5 above, the Agreement requires Class Members to forgo fee-for-service Medi-Cal in favor of

6 managed care in order to receive CBAS. This is a change for Class Members who are dually eligible

7 for Medi-Cal and Medicare. (Dkt. No. 522, 7.) In the past, these so-called ―dual eligibles‖ have

8 generally been exempted from requirements to enroll in managed care plans, which may require

9 members to seek treatment from Medi-Cal providers within the plan‘s network, as opposed to the

10 fee-for-service‘s network. (Id.) But now, with the conversion to managed care looming, up to 5,000

11 Class Members have exercised their right to opt-out and remain in fee-for-service Medi-Cal, with

12 some number of these Class Members doing so out of a fear of losing their Medicare doctor. (Id.)

13 This fear exists despite reassurances from Defendants that managed care participants can keep their

14 Medicare doctor. Plaintiffs blame this ―mass confusion and concern‖ on misleading information 15 from a variety of sources. 7 (Dkt. No. 522, 7.) Plaintiffs acknowledge Defendants‘ attempts to

16 remedy the opt-out problem, but contend the efforts are ―too little, too late.‖ (Id.) Specifically,

17 Plaintiffs assert that Defendants should have begun to properly educate providers and beneficiaries

18 in June 2012, rather than in August 2012. (Dkt. No. 555, 5.) They argue that Defendants‘ inadequate

19 response violates the Agreement, ―which requires that Defendants monitor and address barriers to

20 access to CBAS, enable managed care plans to be responsible for provisions of CBAS, and which

21

22

23

7 Much of this confusion seems to be coming from discussions Class Members are having

24

with their doctors or Medicare providers. As explained by the parties at the hearing on this Motion, while some doctors and providers may be misinformed and advising Class Members that they

25 cannot accept managed care coverage, other doctors and providers may be aware they can accept

such coverage and are simply refusing to accept Class Members as a matter of choice. Generally, a 26 dual eligible‘s medical bill is divided between Medicare and Medi-Cal. Under the fee-for-service

27

model, the state would pay the Medi-Cal portion; but under managed care, the managed care plans now pay that cost. Some doctors and providers, for reasons unknown to the Court, may not want to

28 rely on payments from managed care plans and are thus advising patients that they will be dropped

if they transition to managed care.

5

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1 prohibits impediments to ‗access to Medicare providers or services‘ due to enrollment in Medi-Cal

2 managed care.‖ (Dkt. No.555, 2.)

3

Plaintiffs ask the Court to resolve the issue by ordering Defendants to allow those Class

4 Members who have opted-out of managed care to remain in fee-for-service CBAS until the

5 implementation of a larger program administered by the state to transfer Medi-Cal recipients from 6 fee-for-service to managed care.8 (Dkt. No. 555, 6.) Alternatively, Plaintiffs suggest that opt-out

7 Class Members be reinstated to CBAS ―untisl uch time as Defendants have completed an effective

8 transition process that meets specified bench marks.‖ (Id. at 7.) Finally, Plaintiffs note that opt-out

9 Class Members could be given Medical Exemption Requests, which ensures continuity of care and is

10 contemplated by the Agreement. (Id.)

11

In order for the Court to grant Plaintiffs‘ requested relief, Plaintiffs must first establish that

12 Defendants‘ actions or inactions related to the opt-out issue violate a specific provision of the

13 Agreement. Plaintiffs have failed to make such a showing. They cite to three provisions in the

14 Agreement—Sections XII.F.1, XII.F.2.k, and XII.B.5—that they believe Defendants have violated.

15 The first, Section XII.F.1 provides, ―Managed Care Coverage of CBAS: Medi-Cal managed care

16 plans shall be responsible for the provision of CBAS services to CBAS-eligible Class Members

17 subject to the limitations set forth in Section XII.D. of this Agreement.‖ (Dkt. No. 438, Ex. A.) The

18 Court does not see how this provision is even relevant to the opt-out dispute; there is no dispute over

19 whether Medi-Cal managed care plans are providing CBAS services to CBAS-eligible Class 20 Members who choose not to opt-out of the program.9

21

The second, Section XII.F.2.k states,

22

Enrollment into Medi-Cal managed care plans and care management activities

23

conducted by the plans shall not impede Class Members‘ access to Medicare providers or services. Class Members accessing Medicare services through another plan or through

24

Fee-for-Service Medicare maintain the right to see any Medicare provider that will

accept them as a patient and to choose their own primary care physician. 25

26

8 This larger program administered by Defendants is called Coordinated Care Initiative

27

(―CCI‖) and is slated to begin in June 2013, transitioning some 560,000 Californians into managed care. (Dkt. No. 555, 3, 6.)

28

9 The limitations in Section XII.D relate to the details of the CBAS transition from fee-for-

service to managed care and do not concern the opt-out issue.

6

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1 (Id.) Plaintiffs appear to argue that enrollment into the managed care plans is impeding Class

2 Members‘ access to Medicare providers or services because some Class Members‘ physicians are

3 telling their patients that they will drop them if they do not opt-out. Defendants, however, do not

4 violate the Agreement if some physicians choose not to accept Class Members as patients or to

5 terminate their relationship with Class Members. The Agreement contemplates as much by

6 providing that Class Members ―miantain the right to see any Medicare provider that will accept them

7 as a patient.‖ (Id. (emphasis added).) The Agreement does not guarantee that Class Members are

8 able to keep their preferred provider. That some Medicare providers may discriminate based on

9 whether a patient is in a managed care Medi-Cal plan or a fee-for-service Medi-Cal plan, or that

10 some Class Members mistakenly believe that they will, is outside the scope of this provision of the

11 Agreement. It is not disputed that Class Members ―maintain the right to see any Medicare provider

12 that will accept them as a patient and to choose their own primary care physician,‖ in compliance

13 with the Agreement.

14

Finally, the Court is also not persuaded that Defendants‘ actions have violated Section XII.B.

15 Section XII.B addresses access and capacity, in relevant part, as follows:

16

The Department shall take all necessary and timely steps to ensure adequate provider

17

capacity including:

. . .

18

19

4. Using due diligence to: provide for sufficient CBAS capacity in geographic areas where ADHC services exist at the time of the execution of this Settlement

20

Agreement, including an adequate number of providers so that Class Members

can transition seamlessly from ADHC to CBAS without interruption in services

21

due to waitlists; language and cultural competence to meet the needs of the

22

CBAS eligible population; and program specialization to meet the specific health needs of the CBAS eligible population. In the event that there is no

23

sufficient CBAS provider capacity, Class Members shall receive unbundled

CBAS component services based on assessed need. 24

25

5. The Department shall monitor CBAS provider capacity to ensure sufficient

access in geographic areas where ADHC is provided at the time of execution of

26

this Agreement and use diligence to address access issues. This shall include

consulting with CBAS providers and Plaintiffs‘ counsel regarding access

27

barriers and possible solutions.

28

7

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1 (Id. at Sec. XII.B.) Plaintiffs assert, through declarations from administrators or other employees at

2 CBAS provider centers in Los Angeles, that the financial strain put upon CBAS centers from some

3 Class Members‘ decisions to opt-out will inevitably lead to center closures and a resulting lack of

4 CBAS capacity. (Dkt. No. 500, Eychis Decl., ¶ 15; Dkt. No. 509, Liberman Decl., ¶ 4; Dkt. No. 520,

5 Toth Decl. ¶ 44.)

6

Even if these centers‘ financial situation is as dire as they claim, however, the record is

7 insufficient to support a finding that Defendants have breached this section. First, according to

8 Defendants, statewide CBAS capacity is only at 65%. (Dkt. No. 532, 8.) In other words, the Court

9 cannot find insufficient CBAS access or even that insufficient CBAS access is imminent. On this

10 record such insufficiency is only speculative.

11

Second, the Agreement requires Defendants to ―use due diligence‖ and to ―monitor CBAS

12 provider capacity to ensure sufficient access.‖ The record does not support a finding that Defendants

13 have failed to do either. It is undisputed that Defendants voluntarily pushed back the transition to

14 managed care by three months—from July 1, 2012 to October 1, 2012—to address questions about

15 what managed care would entail. (Dkt. No. 532, 1, 4.) In mid-August 2012, Defendants began to

16 receive data of an atypically high number of opt-outs (approximately 5,000). (Id. at 4.) Defendants

17 again attempted to resolve the problem by delaying the transition an additional month, to November

18 1, 2012, to ―ufrther educate providers, participants, and managed care plans about the opt-outs, why

19 it was occurring, and to confirm whether the choice to opt-out was in fact a deliberate and informed

20 one.‖ (Id.) Defendants have specifically identified that some physicians are inaccurately informing

21 some Class Members that they will be unable to accept them as patients if they transition to managed

22 care. (Id. at 5.) To ensure that all the relevant stakeholders have accurate information, Defendants

23 have undertaken the following measures: contact with individual physicians and medical centers;

24 contact with California Medical Association; communications with CBAS centers; visits to CBAS

25 centers; communications with managed care organizations; communications with CBAS provider

26 organizations; meeting with the Health Insurance Counseling & Advocacy Program. (Id.)

27 Additionally, starting on October 19, 2012, Defendants initiated the ―Easy Way Back‖ program,

28

8

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1 which allows opt-out Class Members until the end of the year to immediately re-enroll in managed

2 care CBAS without having to undergo an eligibility assessment. (Id.)

3

Further, nothing in the Agreement necessarily prevents center closures; rather, the

4 Agreement provides Defendants flexibility in assuring eligible Class Members receive CBAS. In

5 their Opposition to the Motion, Defendants detail the procedures involved and outcome obtained in

6 transitioning CBAS members from a closing center. Southwest Adult Day Services, the only CBAS

7 center for Sonoma County, decided to cease operations and close as a CBAS center in mid-August

8 2012. (Dkt. No. 532, 6.) Working with the center‘s staff, Defendants state that they accomplished the

9 transition of the 25 members as follows:

10

•

Nine members were able to receive services at another CBAS center, where the

11

plan arranged for the transportation to this other center.

12

•

Thirteen members receive a variety of unbundled services, as specifically

13

permitted by the settlement agreement, through the plan. The various unbundled

services include home physical therapy, occupational therapy, respite therapy,

14

and services through the Plans Home Visiting Program.

15

•

One member was disenrolled from the CBAS center even before closure due to

16

her worsening medical condition. The decision to disenroll from the center was a

mutual one among the family, the center, and the plan. The member was then

17

provided complex case management services and was found to not be at risk for

18

a skilled nursing facility at that time.

19

•

One member was provided necessary services through a Regional Center.

20

•

At the time of the closure, one member‘s precise arrangements were still being

21

arranged by the plan, in consultation with family members.

22 (Id. at 7.) Plaintiffs do not disagree with this account, but simply state that it ―only confirms the need

23 for careful planning and sufficient lead time to protect the health and safety of displaced Class

24 Members.‖ (Dkt. No. 555, 14.) Defendants are not in breach, however, merely because more Class

25 Members have opted-out than the parties expected and therefore CBAS centers may be experiencing

26 anxiety about their financial viability. The parties could have structured the Agreement such that if

27 more than a certain number of Class Members opted-out, Defendants would keep them enrolled in

28 fee-for-service Medi-Cal; however, that was not part of the bargain. Instead, the parties agreed that

9

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1 Defendants would use due diligence to ensure sufficient access and monitor the capacity situation.

2 They have done so.

3

Accordingly, the undersigned recommends that the Court find that Defendants‘ response to

4 the opt-out issue has not violated the Agreement.

5 C. Whether the Delay in Hearings Violates the Agreement

6

Plaintiffs next assert that of the approximately 2,000 Class Members who requested a fair

7 hearing following a determination of ineligibility (the majority of the requests being made in

8 February and March 2012), 1,000 Class Members have not yet received their hearing or Defendants‘ 9 decision regarding their appeal.10 (Dkt. No. 555, 8.) Plaintiffs contend that this delay violates state

10 and federal law, which require a hearing decision within 90 days of a request for a hearing. (Id.; Dkt.

11 No. 522, 22). These delays create anxiety and health risks for Class Members, and place financial

12 strain on CBAS providers, which, in some cases, are continuing to provide uncompensated services

13 to Class Members awaiting a determination. (Id. at 10.) As a remedy, Plaintiffs request that the Court

14

15

10 At the hearing, the Court requested that Defendants provide the Court with updated

16 figures reflecting the number of Class Members awaiting a hearing and the number of written decisions still pending. Defendants submitted the Supplemental Declaration of Jane Ogle, dated

17 November 13, 2012, which lists several data points collected by Defendants. (See Dkt. No. 580.)

18

From what the Court can best gather, it appears that there have been 2,552 fair hearing requests as of November 9, 2012, 269 of which were not ripe for review. (Id. at ¶ 4.) Of the remaining 2,283,

19 1,237 hearings have been conducted, 698 hearing requests were withdrawn, and 81 applicants did not appear at the hearing. (Id.) This leaves 267 hearings waiting to be scheduled and/or conducted.

20 Defendants state that they are ―on track to have all of the fair hearing requests received as of early

21

September heard by December 1, 2012, assuming that there is not a large number of requests for postponements.‖ (Id. at ¶ 5.)

22

Regarding outstanding hearing decisions, Defendants represent that of the 1,237 hearings

conducted, 517 written decisions have been issued. (Id. at ¶ 4.) Subtracting the 81 applicants who

23 did not attend their hearing, 639 decisions remain to be issued. Defendants state that ―DHCS

24

anticipates being able to issue Final Decisions for all cases heard by December 1st, 2012, for publication by DSS within the first two weeks of December, 2012.‖ (Id. at ¶ 6.) Although Plaintiffs

25 are skeptical that Defendants can accomplish their stated goals, Plaintiffs provide no salient reason

why Defendants are not up to the task. In fact, Plaintiffs note in their supplemental briefing that the 26 most recent figures show that as of November 15, 550 written decisions have been issued. (See Dkt.

27

No. 582, 2.) That likely means Defendants issued 33 written decisions in the span of two days. Especially given that written decisions will not likely need to be issued in every remaining case—

28 because applicants do not appear or because they withdraw their request—the Court does not find

that Defendants are incapable of meeting their stated goals.

10

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1 order CBAS for all Class Members with decisions pending over 90 days ―until the time of final

2 determination.‖ (Id.)

3

While the delays no doubt cause hardships, Plaintiffs have not shown how Defendants‘

4 actions have violated any provision of the Agreement. Plaintiffs‘ Motion cites to Section XV.A of

5 the Agreement, but that section merely concerns the ―Notice Plan‖ devised by the parties and says

6 nothing about the timing of hearings. In their Notice of Motion to Enforce Stipulated Judgment and

7 in their supplemental briefing filed after the hearing, Plaintiffs additionally cite to Section XIV,

8 entitled ―Due Process/Appeals,‖ which provides in relevant part, ―Class members shall receive those

9 notices of adverse actions and opportunity for hearings and to file appeals and grievances they are

10 entitled to under federal and state law.‖ (Dkt. No. 438, Ex. A, Sec. XIV.A.) However, nothing in

11 Section XIV provides for a violation of the settlement if the 90-day requirement is violated.

12

While federal and state law may require this 90-day timeframe, this Court‘s jurisdiction does

13 not extend beyond enforcing the Agreement. Indeed, Section XXI specifically provides that non-

14 class based remedies exist for, inter alia, ―due process grievance and hearing procedures, available

15 to individual plaintiffs and Class Members for resolution of their individual disputes regarding

16 eligibility and/for [sic] appropriateness of services and benefits based on need.‖ (Dkt. No. 438, Ex.

17 A, Sec. XXI.B (emphasis added).) Just as Class Members must appeal adverse eligibility

18 determinations through the appeals process and not the Court, Class Members must present

19 individual due process issues, such as alleged violations of the 90-day rule, through the

20 administrative and judicial review procedures already established under state and federal law.

21

In any event, it is undisputed that, at the direction of the Chief Administrative Law Judge at

22 DHCS, the parties agreed in late-April 2012 to schedule 125 attorney-represented ―test cases‖ that

23 were designed to iron out legal issues that were expected to recur throughout the hearing process.

24 (Dkt. No. 532, 8; Dkt. No. 555, 9.) The test cases began at the end of May 2012 and lasted until the

25 end of August 2012, though some non-test cases may have been heard prior to the completion of all

26 the test cases. (Id.) As noted above, Defendants have indicated that all of the hearing requests

27 received as of early September will be heard by the beginning of December, assuming that there is

28 not a large number of postponements. (Dkt. No. 580, Ogle Suppl. Decl. ¶ 5.)

11

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1

While the parties spend considerable effort in their briefs attempting to assign blame for

2 delays at various stages in this hearing process, it appears futile to attempt to parse out which side is

3 responsible for the delay of each of the hundreds of hearings. Delays are not a welcome part of the

4 process—particularly for Class Members—but the parties‘ submissions to the Court show that both

5 sides have worked, and continue to work, diligently and in good faith in creating and executing a

6 system for hearings that is efficient and fair.

7

The undersigned therefore recommends that the Court find that the alleged delays in hearings

8 do not constitute a violation of the Agreement.

9 D. 10

Whether Defendants Violated the Settlement by Administering Quality Assurance Reviews

11

Plaintiffs next contend that Defendants‘ process of reviewing all eligibility determinations

12 made by DHCS assessors conducting face-to-face assessments, a process known as Quality

13 Assurance (―QA‖) review, violates the Agreement. (Dkt. No. 522, 18-20.) Their argument rests on

14 their belief that the Agreement allows for administrative review only of determinations of

15 ineligibility by the face-to-face assessor—not determinations of eligibility. Rather, ―[f]or Class

16 Members found eligible at a face-to-face assessment, the Settlement provided that they were to

17 transition to CBAS without interruption and at their current level of service.‖ (Dkt. No. 522, 18

18 (citing Dkt. No. 438, Ex. A, XI.B.3).) Plaintiffs represent that the QA review process has affected

19 500-600 Class Members, and request that this Court immediately restore those Class Members‘

20 CBAS benefits. (Id.; Dkt. No. 555, 13.)

21

Defendants do not address whether the Agreement forbids administrative review of initial

22 eligibility determinations;11 instead, Defendants contend that they made it clear during the

23 development of the CBAS Eligibility Assessment Tool (CEDT) that there would be ―multiple levels

24 of review‖ to verify ―that its nursing staff had followed the correct procedures and had accurately

25

26

11 Although Defendants‘ Opposition is silent on their interpretation of the Agreement, the

27

parties note that in administrative hearings challenging a denial of CBAS, DHCS has taken the position that the Agreement does not prevent review of an assessor‘s opinion following a face-to-

28 face assessment—even when the assessor concludes the participant is eligible. (See Dkt. No. 522,

19; Dkt. No. 532, 16.)

12

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1 assessed each participant for CBAS eligibility.‖ (Dkt. No. 532, 14 (citing King-Broomfield Decl., ¶

2 6).) Defendants also contend that they sent the final version of the CEDT—which includes separate

3 signature lines for the Assessor, QA Reviewer, and the 2nd Level Reviewer—to Plaintiffs‘ counsel

4 on December 15, 2011, before face-to-face assessments commenced, and Plaintiffs‘ counsel did not

5 object to the CEDT in any way. (Id. at 14-15.) Defendants also assert that earlier versions of the

6 CEDT included a signature line not just for the assessor, but also for ―NE III/QA Reviewer.‖ (Id. at

7 15 n.3 (citing Puckett Decl., Exs. A & B).)

8

Nothing in the Agreement necessarily prohibits Defendants from engaging in quality

9 assurance oversight of an assessor‘s initial favorable eligibility determination. Plaintiffs‘ argument to

10 the contrary—that Class Members ―found eligible at a face-to-face assessment‖ automatically

11 transition uninterrupted into CBAS—is not supported by the Agreement. The relevant Agreement

12 provisions do not require the assessor to make an eligibility determination ―at‖ the face-to-face

13 assessment, let alone require Defendants to abide by the assessor‘s judgment. The Agreement simply

14 states that ―a[]fter a face-to-face assessment, presumptively eligible Class Members who are found

15 eligible for CBAS shall [continue receiving CBAS],‖ and, regarding non-presumptively eligible

16 Class Members, ―[i]f, after a face-to-face assessment, a Class Member is determined to be eligible

17 for CBAS, the Class Member will transition from ADHC to CBAS . . . without interruption.‖ (Dkt.

18 No. 438, Ex. A, Sec. XI.B.2.b & 3.a.) The Agreement does not make binding a single assessor‘s

19 opinion regarding an eligibility determination.

20

The existence of the QA process appears to derive from Section XVI.B of the Agreement,

21 titled ―Quality Assurance.‖ That provision states:

22

It is the responsibility of Defendants to provide quality assurance monitoring and oversight to

23

all Class Members. In carrying out this obligation, the following general standards shall apply:

24 1. Quality assurance activities performed by Defendants shall include:

25

monitoring the quality and accuracy of the screening and assessment of

26

Class Members for CBAS services and actual provision of services to Class Members by providers, managed care plans and APS, and shall

27

include reviews of data, random sampling of files and in person reviews

with individuals whose files are examined.

28

13

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United States District Court Northern District of California

1

2. Quality assurance activities shall be focused on measuring whether services are provided to Class Members‘ [sic] in accordance with this

2

Agreement.

3 (Dkt. No. 438, Ex. A, Sec. XVI.B (emphasis added).) This section does not exempt an assessor‘s

4 initial determination of eligibility from quality assurance review; rather, it requires Defendants to

5 actively monitor the quality and accuracy of the assessment process.

6

Such oversight was explicitly discussed during the development of the CEDT tool. As

7 Plaintiffs‘ own declarant, Diane Puckett, states:

8

We were told by DHCS that assessment teams would be headed by a DHCS

9

nurse supervisor, which they (DHCS) felt to be a critical element of ensuring quality

and consistency. Since DHCS planned to have over 200 nurses participating in CBAS

10

assessments at ADHC centers, including both contract nurses and others from various

divisions of DHCS, the nurse supervisor‘s role was to make sure that the procedures we

11

developed were followed.

12 The nurse supervisor‘s job with respect to reviewing findings made by the

13

assessors included ensuring that all qualifying factors for CBAS were considered. This

14

point was discussed at length at several meetings, including the need to provide training to assist assessors with some of the specialized CBAS criteria, such as the two

15

dementia-related criteria, since many nurses do not have a background in distinguishing

levels of dementia.

16

. . . 17

18

The QA Review was different from the second level reviews, as DHCS

explained, and was included because not every assessment team would be able to have

19

a nurse supervisor with them in the field; therefore an additional step was needed

20

wherein the supervisor in the DHCS office would ensure that the eligibility standards had been correctly applied and that participants had the benefit of a sufficient and

21

comprehensive assessment to determine whether they are eligible for CBAS. In other

words, we had every reason to believe that this process would comport with the

22

Settlement, given that the Settlement requires Quality Assurance activities and contains

23

specific requirements for such activities.

24 (Dkt. No. 516, Puckett Decl. ¶¶ 8-9, 13.) Ms. Puckett goes on to explain that she believed implicit in

25 this agreement of quality assurance oversight was the expectation that favorable eligibility

26 determinations made by nurses on site could not be overturned. (Id. at ¶¶ 13, 16.) The Court,

27 however, sees no basis for this assumption in the language of the Agreement. It appears incongruous

28 to acknowledge the need for close supervision of face-to-face assessors but at the same time insist

14

Case4:09-cv-03798-SBA Document583 Filed11/20/12 Page15 of 19

United States District Court Northern District of California

1 such supervision is forbidden if the assessor makes a determination, however inaccurate, in favor of

2 a Class Member.

3

What seems obvious from the parties‘ dispute over the QA review issue is that the parties did

4 not finalize the QA review process and understand exactly what it would entail. That Plaintiffs now

5 disagree with aspects of Defendants‘ QA review does not empower the Court to opine on the merits 6 of Defendants‘ oversight procedures.12 The Agreement specifically provides that the parties are

7 required to agree upon a tool and protocol for conducting these face-to-face assessments. (Dkt. No.

8 438, Ex. A, Sec. XI.A.3.c.) Thus the details of QA reviews of face-to-face assessments are left to the

9 parties to develop, not the Court. For this reason, the Court declines Plaintiffs‘ invitation to examine

10 the QA review process and determine whether it comports with generally accepted practices for such 11 reviews or undermines the purpose of a face-to-face assessment.13 (Dkt. No. 522, 21.) The Court is

12 not in a position to instruct Defendants on what is a proper QA review.

13

Accordingly, the undersigned recommends that the Court find that Defendants‘ QA review

14 process does not violate the Agreement.

15

16

12 Among other things, Plaintiffs argue that the QA review process is inappropriate because

17 in some instances the signature on the QA Reviewer line appears to match the signature on the 2nd

18

Level Reviewer line on the CEDT form. At the hearing, however, Defendants‘ counsel represented that Defendants‘ assessment policy does not allow the person who conducts the QA review to also

19 conduct the second-level review for the same applicant. Further, no second-level review is

conducted if the Class Member is found eligible.

20

13 The Court notes that, while it is not clear why the QA reviewer overturned the decision

21

of the nurse assessor in each instance, it appears many QA reviews disagreed with the assessor‘s evaluation of the eligibility criteria; specifically, QA reviewers have disagreed with an assessor‘s

22 determination on the grounds that there was an ―insufficient showing of nursing interventions.‖ (Dkt. No. 516, Puckett Decl. ¶ 17.) In other words, at the time of those QA reviews, Defendants
23 took the position that such intervention was required to satisfy the Agreement‘s eligibility

24

requirements for CBAS. However, following fair hearings on this issue, Defendants have since published a ―Decision of the Director‖ making clear that the ―substantial nursing intervention‖

25 standard is not required for eligibility under the Agreement. (Dkt. No. 508, Leiner Decl., Ex. B, 16-

17.) Notwithstanding this apparently erroneous earlier interpretation of the eligibility requirements, 26 nothing in the Agreement authorizes this Court to intervene in the eligibility determination process

27

if Defendants‘ determinations, made in good faith, prove incorrect. Rather, the procedure envisioned by the Agreement is exactly what is occurring now—fair hearings challenging

28 individual eligibility determinations. While the Court understands why Plaintiffs are not satisfied

with the process, the Agreement does not allow for Court intervention under these circumstances.

15

Case4:09-cv-03798-SBA Document583 Filed11/20/12 Page16 of 19

United States District Court Northern District of California

1 E. Remaining Access and Capacity Issues

2

Plaintiffs also allege that a combination of factors are placing increasing financial strain on

3 CBAS centers state-wide, leading to the threat of center closures and lack of access and capacity for

4 Class Members. (Dkt. No. 522, 12; Dkt. No. 555, 13-14.) While Plaintiffs‘ concerns about access

5 and capacity relate to some of the issues discussed above, including delays in eligibility

6 determinations, their criticisms also address high ineligibility rates and delays in payments to

7 providers. (Id.)

8

Plaintiffs‘ allegations regarding lack of access and capacity do not constitute a violation of

9 the Agreement. As noted above, to the extent there is disagreement about an eligibility

10 determination, the Agreement provides a process by which a Class Member may challenge that

11 determination. Regarding the alleged delay in Treatment Authorization Requests (―TARs‖), which

12 are required to receive payment for the provision of CBAS services, Plaintiffs appear to base their

13 argument on a state law requirement that the TARs be processed within 30 days. (Dkt. No. 522, 12)

14 Plaintiffs, however, do not point to a provision in the Agreement requiring Defendants to process

15 TARs timely. As discussed above, the Court did not retain jurisdiction to litigate claims of

16 Defendants‘ failure to follow California law.

17

Section XII.B, quoted above, does require Defendants to act diligently to ensure sufficient

18 CBAS access and capacity for Class Members. The Court, however, is unpersuaded that Defendants

19 have failed to meet the requirements of Section XII.B. When Plaintiffs brought their concerns

20 regarding the TARs to Defendants in late July, Defendants sent Plaintiffs‘ counsel a letter informing

21 them that the vast majority of TARS were being processed in a timely manner. (Dkt. No. 539, Press

22 Decl., Ex. B.) Specifically, Defendants‘ data showed ―that nearly 97% of the approximately 7000

23 TARs currently in our system are aged at 60 or fewer days. And 83.4% are aged at 30 or fewer

24 days.‖ (Id.) Defendants‘ letter goes on to ask Plaintiffs‘ counsel to provide them information on

25 specific TARs or specific centers that are having delay issues. (Id.) While the transition to a new

26 process of administering TARs has proved difficult for at least some CBAS providers, one of

27 Plaintiffs‘ own declarants, an administrator at a CBAS center in Sacramento, states that she spoke

28 with Debra Ferreira from DHCS on September 7, 2012 and was assured ―that they would get all

16

Case4:09-cv-03798-SBA Document583 Filed11/20/12 Page17 of 19

United States District Court Northern District of California

1 TARs 30 days old and older [] processed within the next week.‖ (Dkt. No. 497, Canterbury Decl. ¶

2 20.) Given this undisputed information and evidence of Defendants‘ diligent efforts to process

3 TARs, the Court does not see how Defendants‘ actions can be construed as violating Section XII.B,

4 or any other provision of the Agreement.

5

The undersigned therefore recommends that the Court find that Defendants have not violated

6 the Agreement by allegedly failing to address access and capacity issues.

7 F. Whether Defendants Have Violated the Purpose of the Agreement

8

At the hearing, and through their supplemental briefing after the hearing, Plaintiffs

9 presented an overarching argument that even if Defendants have not violated a particular provision

10 of the Agreement, Defendants‘ actions and inactions have violated the purpose of the Agreement.

11 (See Dkt. No. 579.) To identify the supposed purpose of the Agreement, Plaintiffs point to the two

12 preliminary injunctions issued against Defendants prior to the settlement, as well as Section IV of

13 the Agreement, which states in part:

14

WHEREAS, the Parties enter into this Settlement Agreement (―Agreement‖) in

15

mutual recognition and support of Class Members‘ rights to live in the most integrated

setting appropriate and be free of unnecessary institutionalization;

16

17

WHEREAS, it is the Parties‘ intent to provide a seamless transition to Settlement Class Members from current ADHC services to other services for eligible individuals,

18

including the new Community Based Adult Services (CBAS) program, and to provide case

management and other services based on assessed need;

19

20 (Dkt. No. 438, Ex. A.) Plaintiffs further contend that the ―circumstances surrounding the formation

21 of the consent order‖ may be taken in account when determining the Agreement‘s purpose and

22 whether that purpose has been thwarted. (Dkt. No. 579, 2 (quoting United States v. ITT Cont’l

23 Baking Co., 420 U.S. 223, 238 (1975).)

24

The Supreme Court has held that ―because consent decrees are normally compromises in

25 which the parties give up something they might have won in litigation and waive their rights to

26 litigation, it is inappropriate to search for the ‗purpose‘ of a consent decree and construe it on that

27 basis.‖ United States v. ITT Cont’l Baking Co., 420 U.S. 223, 235 (1975) (examining, inter alia,

28 Armour, 402 U.S. 673). Accordingly, the Court declines to order certain remedies based on alleged

17

Case4:09-cv-03798-SBA Document583 Filed11/20/12 Page18 of 19

United States District Court Northern District of California

1 violations of the Agreement‘s supposed purpose. Even if the recitals in Section IV could be seen as

2 an agreement to the purpose of the settlement, the undisputed facts show that Defendants have

3 operated in good faith and executed their duties to the extent required by the Agreement.

4 Additionally, as discussed above, the Court has not identified any ambiguity in the Agreement‘s

5 provisions that could be aided by reference to the recitals in Section IV or to the circumstances 6 surrounding the Agreement‘s formation.14

7

Although Plaintiffs cite to several lower court cases in their supplemental briefing, none is

8 helpful to Plaintiffs. In Equal Employment Opportunity Commission v. Local Union No. 3, the

9 district court did not rule out its ability to issue orders based on the alleged failure of one party to

10 comply with the supposed purpose of the consent decree where the decree included a provision

11 granting the court jurisdiction to ―order any further relief which may be necessary or appropriate.‖

12 416 F. Supp. 728, 731-32 (N.D. Cal. 1975). The court, however, specifically distinguished Armour

13 on the basis that a provision allowing the court to grant ―ufrther relief‖ was not present in Armour.

14 Id. at 732. As in Armour, such a provision is not present here, and thus Local Union does not apply.

15

In Massachusetts Association for Retarded Citizens, Inc. v. King, the First Circuit cites ITT

16 Cont’l Baking when noting that interpretation of a consent decree ―depends in part upon language,

17 in part upon the circumstances surrounding their formation, and in part upon the basic purposes of

18 the decree.‖ 668 F. 2d 602, 607 (1st Cir. 1981) (citing ITT Cont’l Baking, 420 U.S. 223). This stray

19 sentence, however, does not mean that this Court can order the sought-after remedies even if it finds

20 no violation based on the language of the Agreement. The Supreme Court in ITT Cont’l Baking,

21 while holding that the agreement‘s purpose could be used to assign penalties after a violation of the

22 agreement was found, affirmed the rule in Armour, forbidding use of the agreement‘s supposed

23 purpose to determine whether the agreement was violated. 420 U.S. at 237. Finally, in N.Y. State

24

14 To the extent Plaintiffs imply that the Court should use the ―circumstance‖ of the two

25 injunctions issued against Defendants in enforcing and interpreting the Agreement, the Court

disagrees. Reliance on such information would presumably be based on the notion that the Court 26 should take into account which side was apparently winning the litigation prior to settlement.

27

However, as the Supreme Court has noted, settlement agreements represent compromises and the parties have given up their right to proceed on the claims and determine their final merits. (See

28 Armour, 402 U.S. at 681.) It is thus improper to treat the Agreement as Defendants‘ surrender rather

than as a neutral document representing the parties‘ bargain.

18

Case4:09-cv-03798-SBA Document583 Filed11/20/12 Page19 of 19

United States District Court Northern District of California

1 Ass’n for Retarded Children v. Carey, the Second Circuit broadly interpreted a provision in a

2 settlement agreement based on the circumstances surrounding formation of the agreement. 596 F.2d

3 27, 37-38 (2d Cir. 1979). But such a particularized interpretation is unhelpful here with a different 4 agreement and a different set of circumstances.15

5

The undersigned recommends that the Court find that Defendants have not violated the

6 Agreement by allegedly failing to act in accordance with the supposed purpose of the Agreement. 16

7

CONCLUSION

8

For the reasons stated above, the undersigned RECOMMENDS that Plaintiffs‘ Motion be

9 DENIED. Any party may file objections to this report and recommendation with the district court

10 judge within ten days after being served with a copy. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.

11 72(b); Civil L.R. 72–3. Failure to file objections within the specified time may waive the right to

12 appeal the district court‘s ultimate Order.

13

14 Dated: November 20, 2012 15 16

_________________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge

17

18

19

20

21

22

23

15 To the extent Plaintiffs believe that changed conditions warrant relief from Defendants‘

24

actions, the Court notes that Plaintiffs have not sought modification of the Agreement. On a motion to enforce a settlement agreement, the Court cannot construe the agreement such that the

25 construction modifies the agreement. See Hughes v. United States, 342 U.S. 353, 357-58 (1952) (holding that while modification could be had after a proper hearing proving the need for such
26 modification under applicable standards, such modification in the guise of construing a consent

27

decree is inappropriate); see also United States v. Atl. Ref. Co., 360 U.S. 19, 23 (1959) (same). 16 Because the undersigned does not find that Defendants are in violation of the Agreement,

28 the undersigned also recommends that the Court decline Plaintiffs‘ request to appoint a Special

Master.

19

 
 Case4:09-cv-03798-SBA Document444 Filed01/25/12 Page1 of 3

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF CALIFORNIA

9 ESTHER DARLING; RONALD BELL by his

) Case No.: C-09-03798 SBA

10

guardian ad litem Rozene Dilworth; GILDA GARCIA; WENDY HELFRICH by her guardian

) ) CLASS ACTION

11

ad litem Dennis Arnett; JESSIE JONES; RAIF NASYROV by his guardian ad litem Sofiya

) ) STIPULATED JUDGMENT PURSUANT

12

Nasyrova; ALLIE JO WOODARD, by her guardian ad litem Linda Gaspard-Berry;

individually and on behalf of all others similarly

) TO CLASS ACTION SETTLEMENT

) )

AGREEMENT

13 14 15 16

situated, Plaintiffs,
v. TOBY DOUGLAS, Director of the Department of

) ) ) ) )

Hearing Date: Time: 1:00 Judge: Address:

) )

Courtroom:

January 24, 2012 P.M.
Hon. Saundra Armstrong 1301 Clay Street Oakland, CA 94102 1, 4th Floor

17

Health Care Services, State of California, DEPARTMENT OF HEALTH CARE

) )

18 SERVICES,

) )

19

Defendants.

)

)

20

21

22

23

24

25

26

27

28
i
DARLING, ET AL.V. DOUGLAS, ET AL., C09-03798 SBA; [PROPOSED] STIPULATED JUDGMENT PURSUANT TO CLASS ACTION SETTLEMENT AGREEMENT

Case4:09-cv-03798-SBA Document444 Filed01/25/12 Page2 of 3

1

Plaintiffs Esther Darling, Ronald Bell by his Guardian ad Litem, Rozene Dilworth, Gilda

2 Garcia,Wendy Helfrich by her Guardian ad Litem, Dennis Arnett, Jessie Jones, Raif Nasyrov by his

3 Guardian ad Litem, Sofiya Nasyrova, and Allie Jo Woodard by her Guardian ad Litem, Linda

4 Gaspard-Berry, (“Plaintiffs”), and Defendants Toby Douglas and the Department of Health Care

5 Services (DHCS), (“Defendants”) have entered into a Settlement Agreement for resolution of this

6 class action matter. Plaintiffs and Defendants (the Parties) have submitted the proposed Settlement

7 Agreement to the Court for final approval pursuant to, and in compliance with Federal Rules of Civil

8 Procedure, Rule 23, subdivision (e).

9

The Court found that the Parties gave notice of the proposed Settlement Agreement to Class

10 Members in a reasonable manner. Fed. R. Civ. P. 23(e)(1). On January 24, 2012, this Court

11 conducted a Fairness Hearing pursuant to Federal Rule of Civil Procedure 23(e)(2), affording the

12 parties and Class Members the opportunity to be heard in support of and in opposition to the

13 proposed settlement agreement. After reviewing and considering the joint papers of the Parties filed

14 in support of the Settlement Agreement, the Settlement Agreement preliminarily approved by this

15 Court on December 14, 2011 (ECF No. 415), objections by Class Members and the Parties’

16 Responses thereof, evidence, argument, comments and objections submitted, the Court has made a

17 finding that the Settlement Agreement is fair, reasonable, and adequate to bind Class Members; has

18 approved the Settlement; and has certified a Settlement Class pursuant to Federal Rules of Civil

19 Procedure 23(a) and (b)(2), appointed named Plaintiffs as Class Representatives, and appointed

20 Plaintiffs’ counsel as Class Counsel.

21

The Court having fully considered the matter and good cause appearing, hereby ORDERS,

22 ADJUDGES AND DECREES as follows:

23

1. The Court has jurisdiction over the claims for injunctive and declaratory relief against

24 Defendants pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. Venue is proper in the Northern District

25 of California pursuant to 28 U.S.C. § 1391(b).

26

2. This case is certified as a class action for purposes of Settlement. The Settlement

27 Class is defined as: “All Medi-Cal beneficiaries in the State of California for whom Adult Day

28
1
DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; [PROPOSED] STIPULATED JUDGMENT PURSUANT TO CLASS ACTION SETTLEMENT AGREEMENT

Case4:09-cv-03798-SBA Document444 Filed01/25/12 Page3 of 3

1 Health Care benefits will be eliminated under the provisions of AB 97 including those who met or

2 will meet the current eligibility and medical necessity criteria for ADHC at any point prior to the

3 Effective Date of the Settlement Agreement; or who will meet the eligibility and medical necessity

4 criteria for CBAS at any point prior to Termination of the Settlement Agreement.”

5

3. Judgment is entered pursuant to the terms of the Settlement Agreement incorporated

6 herein, as though fully set forth, and attached as Exhibit A to this Stipulated Judgment.

7

4. The Court orders the parties to the Settlement Agreement to perform all of their

8 obligations thereunder.

9

5. The Court will retain jurisdiction over this lawsuit until 30 months after the Effective

10 Date of the Settlement Agreement.

11

6. The Court finds that no just reason exists for delay in entering this Stipulated

12 Judgment pursuant to the Settlement Agreement. Accordingly, the Clerk is hereby directed to

13 immediately enter this Stipulated Judgment.

14

7. This Stipulated Judgment is binding against Defendants, their successors in office,

15 and their respective officers, agents and employees, and all others acting in concert with them.

16

17 Dated: 1/24/12
18
19

Honorable Saundra Brown Armstrong United States District Judge

20

21

22

23

24

25

26

27

28
2
DARLING, ET AL. V. DOUGLAS, ET AL., C09-03798 SBA; [PROPOSED] STIPULATED JUDGMENT PURSUANT TO CLASS ACTION SETTLEMENT AGREEMENT

 
 Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 1 of 73
ADRMOP,CLOSED,E−Filing,REFDIS,REFRAN >REFSET−NC
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:09−cv−03798−SBA

Darling, et al v. Douglas, et al

Date Filed: 08/18/2009

Assigned to: Hon. Saundra Brown Armstrong

Date Terminated: 01/25/2012

Referred to: Magistrate Judge Jacqueline Scott Corley

Jury Demand: None

Magistrate Judge Nathanael M. Cousins (Settlement) Nature of Suit: 440 Civil Rights: Other

Case in other court: Ninth Circuit Court of Appeals, 10−15635 Jurisdiction: Federal Question

Cause: 28:1331 Fed. Question

Plaintiff

Lillie Brantley by her guardian ad litem Chauncey McLorin TERMINATED: 06/02/2011

represented by Anna Margaret Rich National Senior Citizens Law Center 1330 Broadway, Suite 525 Oakland, CA 94612 510−663−1055 x303 Email: arich@nsclc.org ATTORNEY TO BE NOTICED

Barbara Anne Jones AARP Foundation Litigation 200 South Los Robles Suite 400, Pasadena, CA 91101 626−585−2628 Fax: 626−583−8538 Email: bjones@aarp.org ATTORNEY TO BE NOTICED

Daniel Paul Brzovic Disability Rights California (formerly Protection &Advocacy 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1200 Fax: 510−267−1201 Email: dan.brzovic@disabilityrightsca.org TERMINATED: 04/21/2011

Dara Lynn Schur Disability Rights California 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1200 Email: dara.schur@disabilityrightsca.org ATTORNEY TO BE NOTICED

Elissa Staci Gershon Disability Rights California Oakland 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1200 Fax: 510−267−1201 Email: elissa.gershon@disabilityrightsca.org ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker Disability Rights California Oakland 1330 Broadway Suite 500

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 2 of 73
Oakland, CA 94612 510−267−1263 Fax: 510−267−1201 Email: elizabeth.zirker@disabilityrightsca.org ATTORNEY TO BE NOTICED
Eric Matthew Carlson Natl Senior Citizens Law Center 3435 Wilshire Blvd Suite 2860 Los Angeles, CA 90010−1938 213−639−0930 Fax: 213−639−0934 Email: ecarlson@nsclc.org ATTORNEY TO BE NOTICED
Henry C. Su Federal Trade Commission 600 Pennsylvania Avenue, N.W. Mail Drop H−524 Washington, DC 20580−0002 202/326−3659 Fax: 202/326−3446 Email: hsu@ftc.gov TERMINATED: 05/26/2011
Jane Perkins National Health Law Program, Inc. 101 East Weaver Street Suite G−7 Carrboro, NC 27510 919−968−6308 ext. 103 Fax: 919−968−8855 Email: perkins@healthlaw.org ATTORNEY TO BE NOTICED
Jay B. Koslofsky Disability Rights California 100 Howe Ave Suite 235N Sacramento, CA 95825 916−488−9950 Fax: 916−488−9960 Email: jay.koslofsky@disabilityrightsca.org TERMINATED: 04/21/2011
Kelly R Bagby AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 202−434−2060 Fax: 202−434−2060 Email: kbagby@aarp.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Alexander Kuwayti Morrison &Foerster LLP 755 Page Mill Road Palo Alto, CA 94304 650−813−5600 Email: KKuwayti@mofo.com ATTORNEY TO BE NOTICED
Kenneth Wayne Zeller AARP Foundation Litigation

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 3 of 73

601 E St NW Washington, DC 20049 202−434−2138 Email: kzeller@aarp.org PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Edward Prindiville 1330 Broadway Suite 525 Oakland, CA 94612 510−663−1055 x307 Fax: 510−663−1051 Email: kprindiville@nsclc.org ATTORNEY TO BE NOTICED

Kimberly Carol Swain Disability Rights California Oakland 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1200 Email: kim.swain@disabilityrightsca.org ATTORNEY TO BE NOTICED

Lindsay M. White Paul Hastings 1117 S. California Avenue Palo Alto, CA 94304 650−320−1800 Email: lindsaywhite@paulhastings.com TERMINATED: 05/26/2011

Sarah Jane Somers National Health Law Program, Inc. 101 East Weaver Street Suite G−7 Carrobro, NC 27510 919−968−6308 ext. 102 Fax: 919−968−8855 Email: somers@healthlaw.org ATTORNEY TO BE NOTICED

Plaintiff Gilda Garcia

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED

Daniel Paul Brzovic (See above for address) TERMINATED: 04/21/2011

Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 4 of 73

Plaintiff
Allie Jo Woodard by her guardian ad litem Linda Gaspard−Berry

Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED
Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED
Farah Shirin Anthony Howrey 525 Market St Suite 3600 San Francisco, CA 94105 415−848−3251 Email: anthonyf@howrey.com TERMINATED: 05/26/2011
Henry C. Su (See above for address) TERMINATED: 05/26/2011
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Jay B. Koslofsky (See above for address) TERMINATED: 04/21/2011
Kelly R Bagby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED
Kenneth Wayne Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED
Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. White (See above for address) TERMINATED: 05/26/2011
Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED
represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 5 of 73
Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED
Daniel Paul Brzovic (See above for address) TERMINATED: 04/21/2011
Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED
Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED
Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED
Farah Shirin Anthony (See above for address) TERMINATED: 05/26/2011
Henry C. Su (See above for address) TERMINATED: 05/26/2011
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Jay B. Koslofsky (See above for address) TERMINATED: 04/21/2011
Kelly R Bagby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED
Kenneth Wayne Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED
Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. White (See above for address) TERMINATED: 05/26/2011

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 6 of 73

Plaintiff
Chauncey McLorin Guardian Ad Litem TERMINATED: 06/02/2011

Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED
represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED
Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED
Daniel Paul Brzovic (See above for address) TERMINATED: 04/21/2011
Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED
Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED
Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED
Farah Shirin Anthony (See above for address) TERMINATED: 05/26/2011
Henry C. Su (See above for address) TERMINATED: 05/26/2011
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Jay B. Koslofsky (See above for address) TERMINATED: 04/21/2011
Kelly R Bagby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED
Kenneth Wayne Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 7 of 73

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED

Lindsay M. White (See above for address) TERMINATED: 05/26/2011

Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Linda Gaspard−Berry Guardian Ad Litem

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED

Daniel Paul Brzovic (See above for address) TERMINATED: 04/21/2011

Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED

Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED

Farah Shirin Anthony (See above for address) TERMINATED: 05/26/2011

Henry C. Su (See above for address) TERMINATED: 05/26/2011

Jane Perkins (See above for address) ATTORNEY TO BE NOTICED

Jay B. Koslofsky (See above for address) TERMINATED: 04/21/2011

Kelly R Bagby (See above for address) PRO HAC VICE

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ATTORNEY TO BE NOTICED

Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED

Kenneth Wayne Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED

Lindsay M. White (See above for address) TERMINATED: 05/26/2011

Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Harry Cota Lead Plaintiff TERMINATED: 06/02/2011

represented by Daniel Paul Brzovic (See above for address) TERMINATED: 04/21/2011

Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED

Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED

Henry C. Su (See above for address) TERMINATED: 05/26/2011

Jay B. Koslofsky (See above for address) TERMINATED: 04/21/2011

Kelly R Bagby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 9 of 73

Plaintiff
Casey Konrai Guardian Ad Litem for Sumi Konrai TERMINATED: 06/02/2011

Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. White (See above for address) TERMINATED: 05/26/2011
Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Paul Brzovic (See above for address) TERMINATED: 04/21/2011
Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED
Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED
Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED
Farah Shirin Anthony (See above for address) TERMINATED: 05/26/2011
Henry C. Su (See above for address) TERMINATED: 05/26/2011
Jay B. Koslofsky (See above for address) TERMINATED: 04/21/2011
Kelly R Bagby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED
Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. White (See above for address) TERMINATED: 05/26/2011
Sarah Jane Somers

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 10 of 73

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rozene Dilworth Guardian Ad Litem for Ronald Bell

represented by Elissa Staci Gershon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED

Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED

Farah Shirin Anthony (See above for address) TERMINATED: 05/26/2011

Henry C. Su (See above for address) TERMINATED: 05/26/2011

Kelly R Bagby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED

Lindsay M. White (See above for address) TERMINATED: 05/26/2011

Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Esther Darling

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED

Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED

Jane Perkins

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 11 of 73

(See above for address) ATTORNEY TO BE NOTICED

Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED

Kenneth Wayne Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED

Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Wendy Helfrich by her guardian ad litem Dennis Arnett

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED

Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED

Jane Perkins (See above for address) ATTORNEY TO BE NOTICED

Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED

Kenneth Wayne Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address)

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 12 of 73

ATTORNEY TO BE NOTICED

Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jessie Jones

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED

Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED

Jane Perkins (See above for address) ATTORNEY TO BE NOTICED

Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED

Kenneth Wayne Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED

Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Raif Nasyrova also known as Raif Nasyrov

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 13 of 73

Plaintiff
Dennis Arnett Guardian Ad Litem for Wendy Helfrich

Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED
Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED
Kenneth Wayne Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED
Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED
Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED
represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED
Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED
Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED
Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED
Kenneth Wayne Zeller

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 14 of 73

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED

Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sofia Nasyrova Guardian Ad Litem for Raif Nasyrova

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Barbara Anne Jones (See above for address) ATTORNEY TO BE NOTICED

Elissa Staci Gershon (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Anna Zirker (See above for address) ATTORNEY TO BE NOTICED

Eric Matthew Carlson (See above for address) ATTORNEY TO BE NOTICED

Jane Perkins (See above for address) ATTORNEY TO BE NOTICED

Kenneth Alexander Kuwayti (See above for address) ATTORNEY TO BE NOTICED

Kenneth Wayne Zeller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Kimberly Carol Swain (See above for address) ATTORNEY TO BE NOTICED

Sarah Jane Somers (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Absent Class Members

represented by

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 15 of 73
Rocky C. Tsai Ropes &Gray LLP Three Embarcadero Center, Suite 300 San Francisco, CA 94111−4006 (415) 315−6358 Fax: (415) 315−6350 Email: rocky.tsai@ropesgray.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thad Alan Davis Gibson, Dunn &Crutcher LLP 555 Mission St. Ste. 3000 San Francisco, CA 94105 415−393−8251 Email: TADavis@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Ho Ropes &Gray LLP Three Embarcadero Center Suite 300 San Francisco, CA 94111−4006 415−315−6300 Fax: 415−315−6350 ATTORNEY TO BE NOTICED
Lorraine M. Casto Morgan, Lewis &Bockius LLP 2 Palo Alto Square 3000 El Camino Real Suite 700 Palo Alto, CA 94306 650.843.7505 Fax: 650.843.4001 Email: lcasto@morganlewis.com ATTORNEY TO BE NOTICED
Michael Keys Bay Area Legal Aid 50 Fell Street San Francisco, CA 94102 415−982−1300, ext.314 Fax: 415−982−4243 ATTORNEY TO BE NOTICED
Robert P. Capistrano Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 663−4755 x5212 Fax: (510) 663−4711 Email: bcapistrano@baylegal.org ATTORNEY TO BE NOTICED

V.
Defendant
David Maxwell−Jolly TERMINATED: 06/02/2011

represented by Joshua Nathan Sondheimer California Department of Justice Office of the Attorney General 455 Golden Gate St., Suite 11000

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 16 of 73

San Francisco, CA 94102 415−703−5615 Fax: (415)703−5480 Email: joshua.sondheimer@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Carson Deputy Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−703−5580 Fax: 415−703−5480 Email: susan.carson@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer A. Bunshoft Department of Justice Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−703−5085 Fax: 415−703−5480 Email: jennifer.bunshoft@doj.ca.gov ATTORNEY TO BE NOTICED

Defendant Department of Health Care Services

represented by Joshua Nathan Sondheimer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Carson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer A. Bunshoft (See above for address) ATTORNEY TO BE NOTICED

Defendant Director, DHCS Toby Douglas

represented by Joshua Nathan Sondheimer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Carson (See above for address) ATTORNEY TO BE NOTICED

V. Movant California Primary Care Association

represented by Kathryn Ellen Doi Murphy Austin Adams Schoenfeld LLP 304 S Street Sacramento, CA 95811 (916) 446−2300 Fax: (916) 329−3058

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 17 of 73

Email: kdoi@murphyaustin.com TERMINATED: 03/08/2013

Movant Gardner Family Health Network, Inc.

represented by Kathryn Ellen Doi (See above for address) TERMINATED: 03/08/2013

Movant LifeLong Medical Care

represented by Kathryn Ellen Doi (See above for address) TERMINATED: 03/08/2013

Movant
Santa Rosa Community Health Centers

represented by Kathryn Ellen Doi (See above for address) TERMINATED: 03/08/2013

Interested Party United States of America

represented by Ila Casy Deiss United States Attorney's Office Northern District of California 450 Golden Gate Avenue P. O. Box 36055 San Francisco, CA 94102 415−436−7124 Fax: 415−436−7169 Email: ila.deiss@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 08/18/2009
08/18/2009 08/18/2009
08/18/2009 08/18/2009 08/18/2009 08/18/2009 08/18/2009

# Docket Text
1 COMPLAINT /issued summons against Department of Health Care Services, David Maxwell−Jolly ( Filing fee $ 350, receipt number 44611004007.). Filed byGilda Garcia, Lillie Brantley, Allie Jo Woodward. (ga, COURT STAFF) (Filed on 8/18/2009) (Additional attachment(s) added on 9/3/2009: # 1 Civil Cover Sheet) (kc, COURT STAFF). (Entered: 08/21/2009)
2 MOTION for Leave to Proceed in forma pauperis filed by Gilda Garcia, Allie Jo Woodward. (ga, COURT STAFF) (Filed on 8/18/2009) (kc, COURT STAFF). (Entered: 08/21/2009)
3 MOTION for leave to appear in Pro Hac Vice for Kenneth Zeller ( Filing fee $ 210, receipt number 44611004008.) filed by Gilda Garcia, Allie Jo Woodward. (Attachments: # 1 Proposed Order)(ga, COURT STAFF) (Filed on 8/18/2009) Modified on 8/25/2009 (jlm, COURT STAFF). (Entered: 08/21/2009)
4 MOTION to Appoint Guardian Ad Litem ad Litem filed by Lillie Brantley. (ga, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/21/2009)
5 Declaration of Catherine Davis in Support of 4 MOTION to Appoint Guardian Ad Litem ad Litem filed byLillie Brantley. (ga, COURT STAFF) (Filed on 8/18/2009) (kc, COURT STAFF). (Entered: 08/21/2009)
6 MOTION to Appoint Guardian Ad Litem ad Litem filed by Allie Jo Woodward. (ga, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/21/2009)
7 Declaration of Catherine Davis in Support of 6 MOTION to Appoint Guardian Ad Litem ad Litem filed byAllie Jo Woodward. (ga, COURT STAFF) (Filed on 8/18/2009) (kc, COURT STAFF). (Entered: 08/21/2009)
8 MEMORANDUM in Support re 6 MOTION to Appoint Guardian Ad Litem ad Litem, 4 MOTION to Appoint Guardian Ad Litem ad Litem filed byLillie

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 18 of 73

08/18/2009 08/18/2009 08/18/2009 08/18/2009 08/24/2009
08/24/2009
08/24/2009
08/24/2009
08/24/2009 08/24/2009

Brantley, Allie Jo Woodward. (ga, COURT STAFF) (Filed on 8/21/2009) (Entered: 08/21/2009)
9 Proposed Order re 4 MOTION to Appoint Guardian Ad Litem ad Litem by Lillie Brantley. (ga, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/21/2009)
10 Proposed Order re 6 MOTION to Appoint Guardian Ad Litem ad Litem by Allie Jo Woodward. (ga, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/21/2009)
11 ADR SCHEDULING ORDER: Case Management Statement due by 11/26/2009. Case Management Conference set for 12/3/2009 10:00 AM.. Signed by Judge Maria−Elena James on 8/18/09. (Attachments: # 1 Standing Order)(ga, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/21/2009)
CASE DESIGNATED for Electronic Filing. (ga, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/21/2009)
12 *** FILED IN ERROR. PLEASE SEE DOCKET # 18 . *** CERTIFICATE OF SERVICE as to Department of Health Care Services re 1 Complaint, 2 Motion for Leave to Proceed in forma Pauperis, 3 Motion for Leave to Appear in Pro Hac Vice for Kenneth Zeller 4 Motion to Appoint Guardian Ad Litem 5 Declaration of Catherine Davis in Support 6 Motion to Appoint Guardian Ad Litem 7 Declaration of Catherine Davis in Support 8 Memorandum in Support 9 Proposed Order 10 Proposed Order 11 ADR Scheduling Order, filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward (Zirker, Elizabeth) (Filed on 8/24/2009) Modified on 8/25/2009 (jlm, COURT STAFF). Modified on 8/25/2009 (jlm, COURT STAFF). Modified on 8/25/2009 (jlm, COURT STAFF). Modified on 8/26/2009 (ewn, COURT STAFF). (Entered: 08/24/2009)
13 *** FILED IN ERROR. PLEASE SEE DOCKET # 19 . *** CERTIFICATE OF SERVICE as to Maxwell−Jolly re re 1 Complaint, 2 Motion for Leave to Proceed in forma Pauperis, 3 Motion for Leave to Appear in Pro Hac Vice for Kenneth Zeller 4 Motion to Appoint Guardian Ad Litem 5 Declaration of Catherine Davis in Support 6 Motion to Appoint Guardian Ad Litem 7 Declaration of Catherine Davis in Support 8 Memorandum in Support 9 Proposed Order 10 Proposed Order 11 ADR Scheduling Order, by Lillie Brantley, Gilda Garcia, Allie Jo Woodward (Zirker, Elizabeth) (Filed on 8/24/2009) Modified on 8/25/2009 (jlm, COURT STAFF). Modified on 8/26/2009 (ewn, COURT STAFF). (Entered: 08/24/2009)
14 Emergency MOTION for Temporary Restraining Order and Hearing and Order to Show Cause, filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Attachments: # 1 Exhibit DECLARATION RE: NOTICE TO DEFS RE: TEMPORARY RESTRAINING ORDER, # 2 Exhibit Declarations ISO Plaintiffs' Motion for TRO, # 3 Exhibit Declarations ISO Plaintiffs Motion for TRO, # 4 Exhibit Declarations ISO Plaintiffs' Motion for TRO, # 5 Exhibit Declarations ISO Plaintiffs' Motion for TRO, # 6 Proposed Order Proposed Order and Order to show Cause re Preliminary Injunction)(Zirker, Elizabeth) (Filed on 8/24/2009) Modified on 8/25/2009 (jlm, COURT STAFF). (Entered: 08/24/2009)
15 Emergency MOTION to Certify Class Certification, filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Attachments: # 1 Exhibit Declarations of Class Counsel in support of Plaintiffs' Motion for Class Certification, # 2 Exhibit Index of Declarations in support of Class Certification, # 3 Exhibit Declarations in support of Class Certification, # 4 Exhibit Declarations in support of Class Certification, # 5 Exhibit Declarations in support of Class Certification, # 6 Exhibit Declarations in support of Class Certification)(Zirker, Elizabeth) (Filed on 8/24/2009) Modified on 8/25/2009 (jlm, COURT STAFF). (Entered: 08/24/2009)
16 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (bjt, COURT STAFF) (Filed on 8/24/2009) (Entered: 08/24/2009)
17 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Saundra Brown Armstrong for all further proceedings. Judge Magistrate Judge Maria−Elena James no longer assigned to the case. Signed by J Executive Committee on 8/24/09. (mab, COURT STAFF) (Filed on 8/24/2009) (Entered: 08/24/2009)

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08/25/2009
08/25/2009
08/25/2009 08/26/2009 08/26/2009 08/26/2009 08/26/2009 08/26/2009 08/26/2009 08/27/2009

18 CERTIFICATE OF SERVICE as to Department of Health Care Services re 1 Complaint, 2 Motion for Leave to Proceed in forma Pauperis, 3 Motion for Leave to Appear in Pro Hac Vice for Kenneth Zeller 4 Motion to Appoint Guardian Ad Litem 5 Declaration of Catherine Davis in Support 6 Motion to Appoint Guardian Ad Litem 7 Declaration of Catherine Davis in Support 8 Memorandum in Support 9 Proposed Order 10 Proposed Order 11 ADR Scheduling Order, by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. CORRECTION of DOCKET # 12 . (Zirker, Elizabeth) (Filed on 8/25/2009) Modified on 8/26/2009 (jlm, COURT STAFF). (Entered: 08/25/2009)
19 CERTIFICATE OF SERVICE as to David Maxwell−Jolly re 1 Complaint, 2 Motion for Leave to Proceed in forma Pauperis, 3 Motion for Leave to Appear in Pro Hac Vice for Kenneth Zeller 4 Motion to Appoint Guardian Ad Litem 5 Declaration of Catherine Davis in Support 6 Motion to Appoint Guardian Ad Litem 7 Declaration of Catherine Davis in Support 8 Memorandum in Support 9 Proposed Order 10 Proposed Order 11 ADR Scheduling Order, filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. CORRECTION OF DOCKET # 13 . (Zirker, Elizabeth) (Filed on 8/25/2009) Modified on 8/26/2009 (jlm, COURT STAFF). (Entered: 08/25/2009)
20 NOTICE OF REPRESENTATION, filed by Department of Health Care Services, David Maxwell−Jolly (Attachments: # 1 Proof of Service)(Carson, Susan) (Filed on 8/25/2009) Modified on 8/26/2009 (jlm, COURT STAFF). (Entered: 08/25/2009)
21 CERTIFICATE OF SERVICE 14 Emergency Motion for Temporary Restraining Order and Hearing and Order to Show Cause, 15 Emergency Motion to Certify Class Certification filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward (Zirker, Elizabeth) (Filed on 8/26/2009) Modified on 8/27/2009 (jlm, COURT STAFF). (Entered: 08/26/2009)
22 CERTIFICATE OF SERVICE re 14 Emergency Motion for Temporary Restraining Order and Hearing and Order to Show Cause, 15 Emergency Motion to Certify Class Certification, filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward for Personal Service to David Maxwell−Jolly, dir. of the Deptartment of Health Care Services (Zirker, Elizabeth) (Filed on 8/26/2009) Modified on 8/27/2009 (jlm, COURT STAFF). (Entered: 08/26/2009)
23 MOTION to Shorten Time re 15 Emergency Motion for Class Certification filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Attachments: # 1 Exhibit)(Zirker, Elizabeth) (Filed on 8/26/2009) Modified on 8/27/2009 (jlm, COURT STAFF). (Entered: 08/26/2009)
24 Proposed Order re 23 Motion to Shorten Time on Plaintiffs' Motion for Class Certification filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Zirker, Elizabeth) (Filed on 8/26/2009) Modified on 8/27/2009 (jlm, COURT STAFF). (Entered: 08/26/2009)
25 MOTION for Preliminary Injunction; Memorandum of Points and Authorities in support, filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. Motion Hearing set for 9/8/2009 01:00 PM in Courtroom 3, 3rd Floor, Oakland. (Zirker, Elizabeth) (Filed on 8/26/2009) Modified on 8/27/2009 (jlm, COURT STAFF). (Entered: 08/26/2009)
26 Declaration of Elizabeth Zirker in Support 25 Motion for Preliminary Injunction filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Attachments: # 1 Exhibit Comparison of Statutes and Regulations Relating to Provision of Service)(Zirker, Elizabeth) (Filed on 8/26/2009) Modified on 8/27/2009 (jlm, COURT STAFF). (Entered: 08/26/2009)
27 CERTIFICATE OF SERVICE by Lillie Brantley, Gilda Garcia, Allie Jo Woodward re 14 Emergency Motion for Temporary Restraining Order and Hearing and Order to Show Cause, 15 Emergency Motion to Certify Class Certification, filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward Personal Service on David Maxwell−Jolly 8−24−09 (Zirker, Elizabeth) (Filed on 8/27/2009) Modified on 8/28/2009 (jlm, COURT STAFF). (Entered: 08/27/2009)

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08/27/2009 08/28/2009 08/28/2009 09/01/2009 09/01/2009 09/01/2009 09/01/2009 09/01/2009 09/01/2009 09/01/2009 09/01/2009 09/01/2009 09/01/2009 09/02/2009 09/02/2009

Set/Reset Deadlines as to 25 MOTION for Preliminary Injunction. Responses due by 9/1/2009. Replies due by 9/3/2009. Motion Hearing set for 9/8/2009 01:00 PM in Courtroom 1, 4th Floor, Oakland.. Signed by Judge Armstrong on 8/27/09. (lrc, COURT STAFF) (Filed on 8/27/2009) (Entered: 08/27/2009)
28 Memorandum in Opposition re 23 Motion to Shorten Time on Plaintiffs' Motion for Class Certification filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 8/28/2009) Modified on 8/31/2009 (kc, COURT STAFF). (Entered: 08/28/2009)
29 Proposed Order Granting 25 Motion for Preliminary Injunction filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Zirker, Elizabeth) (Filed on 8/28/2009) Modified on 8/31/2009 (kc, COURT STAFF). Modified on 4/1/2010 (jlm, COURT STAFF). (Entered: 08/28/2009)
30 ORDER by Judge ARMSTRONG denying 23 Motion to Shorten Time (lrc, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/01/2009)
31 STIPULATION AND PROPOSED ORDER TO FILE DECLARATION OF ROSEMARY LAMB UNDER SEAL by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 9/1/2009) Modified on 9/2/2009 (kc, COURT STAFF). (Entered: 09/01/2009)
32 MEMORANDUM in Opposition re 25 MOTION for Preliminary Injunction filed by Department of Health Care Services, David Maxwell−Jolly. (Related document(s) 25 ) (Carson, Susan) (Filed on 9/1/2009) Modified on 9/2/2009 (kc, COURT STAFF). (Entered: 09/01/2009)
33 Declaration of BARBARA BAILEY IN OPPOSITION TO 25 MOTION FOR PRELIMINARY INJUNCTION w/ exhibits A−H filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 9/1/2009) Modified on 9/2/2009 (kc, COURT STAFF). (Entered: 09/01/2009)
34 DECLARATION of Mark Hutchinson IN OPPOSITION TO 25 MOTION FOR PRELIMINARY INJUNCTION filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 9/1/2009) Modified on 9/2/2009 (kc, COURT STAFF). (Entered: 09/01/2009)
35 DECLARATION of PHYLLIS MUCHMORE IN OPPOSITION TO 25 MOTION FOR PRELIMINARY INJUNCTION w/ exhibit A filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 9/1/2009) Modified on 9/2/2009 (kc, COURT STAFF). (Entered: 09/01/2009)
36 DECLARATION of DENISE PEACH IN OPPOSITION TO 25 MOTION FOR PRELIMINARY INJUNCTION w/ exhibits A−B filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 9/1/2009) Modified on 9/2/2009 (kc, COURT STAFF). (Entered: 09/01/2009)
37 Request for Judicial Notice re 32 Memorandum in Opposition, w/ exhibits A−C filed by Department of Health Care Services, David Maxwell−Jolly. (Related document(s) 32 ) (Carson, Susan) (Filed on 9/1/2009) Modified on 9/2/2009 (kc, COURT STAFF). (Entered: 09/01/2009)
40 ORDER by Judge Saundra Brown Armstrong granting 3 Motion for Pro Hac Vice for Kenneth Zeller (cp, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/03/2009)
41 ORDER by Judge Saundra Brown Armstrong granting 2 Motion for Leave to Proceed in forma pauperis (cp, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/03/2009)
38 ORDER Setting Hearing on Motion 25 MOTION for Preliminary Injunction Motion Hearing set for 9/9/2009 01:00 PM in Courtroom 1, 4th Floor, Oakland.. Signed by Judge ARMSTRONG on 9/2/09. (lrc, COURT STAFF) (Filed on 9/2/2009) (Entered: 09/02/2009)
39 AMENDED DECLARATION of Barbara Bailey IN OPPOSITION TO 25 MOTION FOR PRELIMINARY INJUNCTION filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 9/2/2009) Modified on

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09/03/2009 09/03/2009 09/03/2009 09/03/2009
09/03/2009 09/04/2009 09/08/2009 09/08/2009 09/09/2009 09/09/2009 09/09/2009 09/10/2009 09/10/2009

9/3/2009 (kc, COURT STAFF). (Entered: 09/02/2009)
42 OBJECTIONS to Evidence re 35 Declaration Phyllis Muchmore in Support of Defendants' Opposition to Plaintiffs' Preliminary Injunction Motion filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Zirker, Elizabeth) (Filed on 9/3/2009) Modified on 9/4/2009 (kc, COURT STAFF). Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 09/03/2009)
43 MOTION to Seal Document and PROPOSED ORDER TO FILE PLAINTIFFS' OBJECTIONS TO THE DECLARATION OF ROSEMARY LAMB UNDER SEAL filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Zirker, Elizabeth) (Filed on 9/3/2009) Modified on 9/4/2009 (kc, COURT STAFF). (Entered: 09/03/2009)
44 OBJECTIONS to DECLARATION ROSEMARY LAMB IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' PRELIMINARY INJUNCTION MOTION [REDACTED] by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Zirker, Elizabeth) (Filed on 9/3/2009) (Entered: 09/03/2009)
45 *** FILED IN ERROR. REFER TO DOCUMENT 46 . *** Reply to Opposition of Defendants to Plaintiffs' Motion for Preliminary Injunction filed byLillie Brantley, Gilda Garcia, Allie Jo Woodward. (Attachments: # 1 Exhibit Missaelides Supplemental Declaration, # 2 Exhibit Steinke Supplemental Declaration)(Zirker, Elizabeth) (Filed on 9/3/2009) Modified on 9/4/2009 (feriab, COURT STAFF). (Entered: 09/03/2009)
46 Reply to Opposition re 25 Motion for Preliminary Injunction CORRECTION OF DOCKET # 45 filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Attachments: # 1 Exhibit Missaellides Supp. Declaration, # 2 Exhibit Steinke Supp. Declaration)(Zirker, Elizabeth) (Filed on 9/3/2009) Modified on 9/4/2009 (kc, COURT STAFF). (Entered: 09/03/2009)
47 CERTIFICATE OF SERVICE by Department of Health Care Services, David Maxwell−Jolly Declaration of Service by Electronic Mail (Carson, Susan) (Filed on 9/4/2009) (Entered: 09/04/2009)
55 ORDER by Judge Saundra Brown Armstrong GRANTING 4 Motion to Appoint Chauncey McLorin as Guardian Ad Litem for Lillie Brantley. (jlm, COURT STAFF) (Filed on 9/8/2009) (Entered: 09/10/2009)
56 ORDER by Judge Saundra Brown Armstrong GRANTING 6 Motion to Appoint Linda Gaspard−Berry as Guardian Ad Litem ad Litem for Allie Jo Woodard. (jlm, COURT STAFF) (Filed on 9/8/2009) (Entered: 09/10/2009)
48 Letter to Judge Saundra Brown Armstrong re the Court's request to Plaintiff, by Elizabeth Zirker, dated 09/09/09 (Attachments: # 1 Exhibit, # 2 Exhibit)(Zirker, Elizabeth) (Filed on 9/9/2009) Modified on 9/10/2009 (jlm, COURT STAFF). (Entered: 09/09/2009)
49 Brief: Supplemental Submission re 25 Motion for Preliminary Injunction filed by Department of Health Care Services, David Maxwell−Jolly, Gilda Garcia. (Carson, Susan) (Filed on 9/9/2009) Modified on 9/10/2009 (jlm, COURT STAFF). Modified on 9/10/2009 (jlm, COURT STAFF). (Entered: 09/09/2009)
54 Minute Entry: Motion Hearing held on 9/9/2009 before Judge Saundra Brown Armstong (Date Filed: 9/9/2009). (Court Reporter: Raynee Mercado) (lrc, COURT STAFF) (Date Filed: 9/9/2009) Modified on 9/11/2009 (jlm, COURT STAFF). (Entered: 09/10/2009)
50 ORDER by Judge Saundra Brown Armstrong DENYING 43 Motion to Seal. If parties desires these documents to become part of the record, they shall electronically file them FORTHWITH (lrc, COURT STAFF) (Filed on 9/10/2009) Modified on 9/11/2009 (jlm, COURT STAFF). (Entered: 09/10/2009)
51 OBJECTIONS to evidence (previously filed redacted) through the Declaration of Rosemary Lamb filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Zirker, Elizabeth) (Filed on 9/10/2009) Modified on 9/11/2009 (jlm, COURT STAFF). (Entered: 09/10/2009)

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09/10/2009 09/10/2009 09/10/2009 09/16/2009 09/16/2009 09/23/2009 09/30/2009 11/05/2009 11/06/2009 11/12/2009 11/12/2009 11/12/2009 11/12/2009

52 DECLARATION of Rosemary Lamb in Opposition to 25 Motion for Preliminary Injunction; Memorandum of Points and Authorities in support filed by Department of Health Care Services, David Maxwell−Jolly. (Related document(s) 25 ) (Carson, Susan) (Filed on 9/10/2009) Modified on 9/11/2009 (jlm, COURT STAFF). (Entered: 09/10/2009)
53 CASE MANAGEMENT SCHEDULING ORDER FOR REASSIGNED CIVIL CASES: Case Management Conference set for 12/3/2009 02:30 PM., via telephone. Signed by Judge Saundra Brown Armstrong, on 9/10/09. (lrc, COURT STAFF) (Filed on 9/10/2009) Modified on 9/11/2009 (jlm, COURT STAFF). (Entered: 09/10/2009)
57 ORDER by Judge Saundra Brown Armstrong GRANTING 25 Motion for Preliminary Injunction, and FINDING AS MOOT 14 Motion for Temporary Restraining Order (lrc, COURT STAFF) (Filed on 9/10/2009) Modified on 9/11/2009 (jlm, COURT STAFF). (Entered: 09/10/2009)
58 CERTIFICATE OF SERVICE as to Department of Health Care Services re 57 Order Granting Preliminary Injunction filed by Lillie Brantley, Gilda Garcia, Linda Gaspard−Berry, Chauncey McLorin, Allie Jo Woodward (Schur, Dara) (Filed on 9/16/2009) Modified on 9/17/2009 (jlm, COURT STAFF). (Entered: 09/16/2009)
59 CERTIFICATE OF SERVICE as to David Maxwell−Jolly re 57 Order Granting Preliminary Injunction filed by Lillie Brantley, Gilda Garcia, Linda Gaspard−Berry, Chauncey McLorin, Allie Jo Woodward (Schur, Dara) (Filed on 9/16/2009) Modified on 9/17/2009 (jlm, COURT STAFF). (Entered: 09/16/2009)
60 ANSWER to Complaint for Injunctive and Declaratory Relief, filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 9/23/2009) Modified on 9/24/2009 (jlm, COURT STAFF). (Entered: 09/23/2009)
61 NOTICE of Appearance of Sarah J. Somers and Martha Jane Perkins, filed by Linda Gaspard−Berry, Chauncey McLorin, Allie Jo Woodward, Lillie Brantley, Gilda Garcia (Zirker, Elizabeth) (Filed on 9/30/2009) Modified on 10/1/2009 (jlm, COURT STAFF). (Entered: 09/30/2009)
62 STIPULATION REGARDING MODIFICATION TO THE PRELIMINARY INJUNCTION and Proposed Order, filed by Department of Health Care Services, David Maxwell−Jolly, Lillie Brantley, Gilda Garcia, Allie Jo Woodward. (Carson, Susan) (Filed on 11/5/2009) Modified on 11/6/2009 (jlm, COURT STAFF). (Entered: 11/05/2009)
63 STIPULATION AND ORDER REGARDING MODIFICATION TO THE PRELIMINARY INJUNCTION re 62 Stipulation, filed by Department of Health Care Services, David Maxwell−Jolly, Allie Jo Woodward, Gilda Garcia, Lillie Brantley.. Signed by Judge Saundra Brown Armstrong on 11/6/09. (fs, COURT STAFF) (Filed on 11/6/2009) (Entered: 11/10/2009)
64 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options, filed by Chauncey McLorin (Zirker, Elizabeth) (Filed on 11/12/2009) Modified on 11/13/2009 (jlm, COURT STAFF). Modified on 11/13/2009 (jlm, COURT STAFF). (Entered: 11/12/2009)
65 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options, filed by Linda Gaspard−Berry (Zirker, Elizabeth) (Filed on 11/12/2009) Modified on 11/13/2009 (jlm, COURT STAFF). (Entered: 11/12/2009)
66 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options, filed by Gilda Garcia (Zirker, Elizabeth) (Filed on 11/12/2009) Modified on 11/13/2009 (jlm, COURT STAFF). (Entered: 11/12/2009)
67 Joint NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d), filed by Lillie Brantley, Department of Health Care Services, Gilda Garcia, Linda Gaspard−Berry, David Maxwell−Jolly, Chauncey McLorin, Allie Jo Woodward (Zirker, Elizabeth) (Filed on 11/12/2009) Modified on 11/13/2009 (jlm, COURT STAFF). (Entered: 11/12/2009)

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 23 of 73

11/12/2009 11/12/2009 11/16/2009 11/17/2009 11/23/2009
12/02/2009 12/03/2009 12/07/2009 12/08/2009 12/18/2009
12/18/2009
12/18/2009
12/18/2009

68 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options, filed by Department of Health Care Services, David Maxwell−Jolly (Carson, Susan) (Filed on 11/12/2009) Modified on 11/13/2009 (jlm, COURT STAFF). (Entered: 11/12/2009)
69 Certificate of Interested Entities by Lillie Brantley, Gilda Garcia, Linda Gaspard−Berry, Chauncey McLorin, Allie Jo Woodward (Gershon, Elissa) (Filed on 11/12/2009) (Entered: 11/12/2009)
70 ADR Clerks Notice Setting ADR Phone Conference on 11/30/09 at 1:30 p.m. Please take note that plaintiff's counsel initiates the call to all parties. (sgd, COURT STAFF) (Filed on 11/16/2009) (Entered: 11/16/2009)
ADR Remark: The ADR Phone Conference scheduled for 11/30/09 has been rescheduled to 12/1/09 at 3:00 p.m. Please note that plaintiff's counsel initiates the call to all parties, then call the ADR Office at 415−522−4603. (sgd, COURT STAFF) (Filed on 11/17/2009) (Entered: 11/17/2009)
71 JOINT CASE MANAGEMENT STATEMENT and Proposed Order, filed by Lillie Brantley, Gilda Garcia, Linda Gaspard−Berry, Chauncey McLorin, Allie Jo Woodward, Department of Health Care Services, David Maxwell−Jolly. (Attachments: # 1 Exhibit Exhibit A, Plaintiffs'Initial Disclosures, # 2 Exhibit Attachment A to Exhibit A, Plaintiffs' Initial Disclosures, # 3 Exhibit Exhibit B, Parties' Discovery Plan)(Gershon, Elissa) (Filed on 11/23/2009) Modified on 11/24/2009 (jlm, COURT STAFF). (Entered: 11/23/2009)
ADR Remark: ADR Phone Conference held by DB on 12/1/09. (sgd, COURT STAFF) (Filed on 12/2/2009) (Entered: 12/02/2009)
72 Minute Entry: Initial Case Management Conference held on 12/3/2009 before JUDGE ARMSTRONG (Date Filed: 12/3/2009). () (lrc, COURT STAFF) (Date Filed: 12/3/2009) (Entered: 12/07/2009)
73 CASE MANAGEMENT SCHEDULING ORDER: Bench Trial set for 9/19/2011 08:30 AM. Discovery due by 2/1/2011. Motions due by 6/7/2011. Pretrial Conference set for 9/6/2011 01:00 PM.. Signed by Judge ARMSTRONG on 12/7/09. (lrc, COURT STAFF) (Filed on 12/7/2009) (Entered: 12/07/2009)
CASE REFERRED to Magistrate Judge Magistrate Judge Edward M. Chen for Settlement (wh, COURT STAFF) (Filed on 12/8/2009) (Entered: 12/08/2009)
74 AMENDED COMPLAINT against Department of Health Care Services, David Maxwell−Jolly. Filed by Gilda Garcia, Lillie Brantley, Allie Jo Woodward, Harry Cota, Ronald Bell, Sumi Konrai. (Gershon, Elissa) (Filed on 12/18/2009) Modified on 12/22/2009 (jlm, COURT STAFF). Modified on 12/22/2009 (jlm, COURT STAFF). (Entered: 12/18/2009)
75 *** FILED IN ERROR. PLEASE SEE DOCKET # 79 . *** STIPULATION and Proposed Order to File Amended Complaint, filed by Lillie Brantley, Gilda Garcia, Allie Jo Woodward, Department of Health Care Services, David Maxwell−Jolly. (Gershon, Elissa) (Filed on 12/18/2009) Modified on 12/22/2009 (jlm, COURT STAFF). Modified on 12/28/2009 (ewn, COURT STAFF). (Entered: 12/18/2009)
76 MOTION for Leave to Proceed in forma pauperis and Declaration of Elizabeth Zirker, filed by Ronald Bell, Harry Cota, Sumi Konrai (Attachments: # 1 Proposed Order Granting Request to Proceed In Forma Pauperis)(Zirker, Elizabeth) (Filed on 12/18/2009) Modified on 12/22/2009 (jlm, COURT STAFF). (Entered: 12/18/2009)
77 Ex Parte MOTION for Appointment of Guardian ad Litem for Ronald Bell, filed by Lillie Brantley, Gilda Garcia, Linda Gaspard−Berry, Chauncey McLorin, Allie Jo Woodward. (Attachments: # 1 Memorandum of Points and Authorities in Support of Plaintiffs Application for Appointment of Guardian ad Litem, # 2 Declaration Rozene Dilworth in Support of Plaintiffs Application for Appointment of Guardian ad Litem, # 3 Declaration Nina M. Nolcox in Support of Plaintiffs Application for Appointment of Guardian ad Litem, # 4 Proposed Order Appointing Rozene Dilworth Guardian ad Litem for Ronald Bell)(Zirker,

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 24 of 73

12/18/2009
12/24/2009 12/28/2009 12/30/2009 01/04/2010 01/12/2010 01/12/2010 01/12/2010 01/12/2010 01/15/2010 01/19/2010

Elizabeth) (Filed on 12/18/2009) Modified on 12/22/2009 (jlm, COURT STAFF). (Entered: 12/18/2009)
78 Ex Parte MOTION to appoint Casey Konrai Guardian ad Litem for Sumi Konrai, filed by Lillie Brantley, Gilda Garcia, Linda Gaspard−Berry, Chauncey McLorin, Allie Jo Woodward. (Attachments: # 1 Memorandum of Points and Authorities in Support of Plaintiffs Application for Appointment of Guardian ad Litem, # 2 Declaration Casey Konrai in Support of Plaintiffs Application for Appointment of Guardian ad Litem, # 3 Declaration of Debbie Toth in support of Plaintiffs Application for Appointment of Guardian ad Litem, # 4 Proposed Order Appointing Casey Konrai Guardian ad Litem for Sumi Konrai)(Zirker, Elizabeth) (Filed on 12/18/2009) Modified on 12/22/2009 (jlm, COURT STAFF). (Entered: 12/18/2009)
79 STIPULATION and Proposed Order to File Amended Complaint CORRECTION OF DOCUMENT 75 by Ronald Bell, Lillie Brantley, Harry Cota, Gilda Garcia, Linda Gaspard−Berry, Sumi Konrai, Chauncey McLorin, Allie Jo Woodard, Department of Health Care Services, David Maxwell−Jolly. (Gershon, Elissa) (Filed on 12/24/2009) Modified on 12/28/2009 (jlm, COURT STAFF). (Entered: 12/24/2009)
80 MOTION for leave to appear in Pro Hac Vice for Kelly Bagby ( Filing fee $ 210, receipt number 44611004643.) filed by Ronald Bell, Lillie Brantley, Harry Cota, Gilda Garcia, Linda Gaspard−Berry, Sumi Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Proposed Order)(jlm, COURT STAFF) (Filed on 12/28/2009) (Entered: 12/29/2009)
81 STIPULATION AND ORDER: That Leave to Amend the Complaint is GRANTED. Signed by Judge Saundra Brown Armstrong, on 12/30/09. (lrc, COURT STAFF) (Filed on 12/30/2009) Modified on 1/4/2010 (jlm, COURT STAFF). (Entered: 12/30/2009)
82 STIPULATION and Proposed Scheduling Order re Motion for Preliminary Injunction, by Ronald Bell, Lillie Brantley, Harry Cota, Gilda Garcia, Linda Gaspard−Berry, Sumi Konrai, Chauncey McLorin, Allie Jo Woodard, Department of Health Care Services, David Maxwell−Jolly. (Gershon, Elissa) (Filed on 1/4/2010) Modified on 1/5/2010 (jlm, COURT STAFF). (Entered: 01/04/2010)
83 ORDER by Judge Saundra Brown Armstrong GRANTING 78 Ex Parte Motion for Appointment of Casey Konrai as guardian ad litem for Sumi Konrai (lrc, COURT STAFF) (Filed on 1/12/2010) Modified on 1/13/2010 (jlm, COURT STAFF). (Entered: 01/12/2010)
84 ORDER by Judge Saundra Brown Armstrong GRANTING 77 Ex Parte Motion for Appointment of Rozene Dilworth as Guardian Ad Litem for Ronald Bell (lrc, COURT STAFF) (Filed on 1/12/2010) Modified on 1/13/2010 (jlm, COURT STAFF). (Entered: 01/12/2010)
85 ORDER by Judge Saundra Brown Armstrong GRANTING 76 Motion for Leave to Proceed in forma pauperis (lrc, COURT STAFF) (Filed on 1/12/2010) Modified on 1/13/2010 (jlm, COURT STAFF). (Entered: 01/12/2010)
86 STIPULATION AND ORDER: Setting Hearing on Motion to 2/23/2010 at 01:00 PM. Motions due by 01/19/10; Opposition due by 02/02/10; Replies due 02/09/10. Signed by Judge Saundra Brown Armstrong, on 1/11/10. (lrc, COURT STAFF) (Filed on 1/12/2010) Modified on 1/13/2010 (jlm, COURT STAFF). (Entered: 01/12/2010)
87 NOTICE of Appearance of Attorneys H. Su, F. Anthony, and L. White, filed by Lindsay M. White (White, Lindsay) (Filed on 1/15/2010) Modified on 1/19/2010 (jlm, COURT STAFF). (Entered: 01/15/2010)
88 *** FILED IN ERROR. REFER TO DOCUMENT 122 . *** MOTION to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Gershon, Elissa) (Filed on 1/19/2010) Modified on 1/21/2010 (feriab, COURT STAFF). (Entered: 01/19/2010)

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01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010
01/19/2010 01/19/2010 01/19/2010 01/19/2010

89 Proposed Order re 88 Granting Motion for Class Certification by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Gershon, Elissa) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
90 MOTION for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. Motion Hearing set for 2/23/2010 01:00 PM in Courtroom 1, 4th Floor, Oakland. (Gershon, Elissa) (Filed on 1/19/2010) (Entered: 01/19/2010)
91 Proposed Order re 90 Granting Motion for Preliminary Injunction by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Gershon, Elissa) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
92 Declaration of Michele Burke in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
93 Declaration of Courtney Chinn in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
94 Declaration of Harry Cota in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
95 Declaration of Catherine Davis in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration Cathy Davis, # 2 Exhibit B−to Declaration Cathy Davis)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
96 Declaration of Cordula Dick−Muehlke in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Cordula Dick−Muehlke Declaration)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
97 Declaration of Rozene Dilworth in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
98 Declaration of Anne French in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Anne French Declaration)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
99 Declaration of William I. Gardner in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to William Gardner Declaration)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)

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01/19/2010 01/19/2010 01/19/2010
01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010

100 Declaration of Casey Konrai in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
101 Declaration of Tracy McCloud in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Tracy McCloud Declaration, # 2 Exhibit B to Tracy McCloud Declaration, # 3 Exhibit C to Tracy McCloud Declaration, # 4 Exhibit D to Tracy McCloud Declaration, # 5 Exhibit E to Tracy McCloud Declaration)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
102 Declaration of Lydia Missaelides in Support of 90 Motion for Preliminary Injunction, 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Lydia Missaelides Declaration, # 2 Exhibit B to Lydia Missaelides Declaration, # 3 Exhibit C to Lydia Missaelides Declaration, # 4 Exhibit D to Lydia Missaelides Declaration, # 5 Exhibit E to Lydia Missaelides Declaration, # 6 Exhibit F to Lydia Missaelides Declaration, # 7 Exhibit G to Lydia Missaelides Declaration, # 8 Exhibit H to Lydia Missaelides Declaration, # 9 Exhibit I to Lydia Missaelides Declaration, # 10 Exhibit J to Lydia Missaelides Declaration, # 11 Exhibit K to Lydia Missaelides Declaration, # 12 Exhibit L to Lydia Missaelides Declaration)(Related document(s) 90 , 88 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
103 Declaration of Dawn Myers Purkey in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Dawn Myers Purkey)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
104 Declaration of Nina M. Nolcox in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Nina M. Nolcox Declaration)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
105 Declaration of Vitta Perelman in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
106 Declaration of Chuck Peterson in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
107 Declaration of Diane Puckett in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
108 Declaration of Celine Regalia in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction iled by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Celine Regalia Declaration)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)

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01/19/2010 01/19/2010 01/19/2010
01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010

109 Declaration of Ron Smith in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
110 Declaration of Gary Steinke in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration Gary Steinke)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
111 Declaration of Debbie Toth in Support of 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Debbie Toth Declaration, # 2 Exhibit B to Debbie Toth Declaration, # 3 Exhibit C to Debbie Toth Declaration)(Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
112 Appendix: Index of Declarations in Support of Class Certification and Preliminary Injunction re 88 Motion to Certify Class, 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 , 90 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
113 Declaration of Gilda Garcia in Support of 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
114 Declaration of Linda Gaspard−Berry in Support of 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
115 Declaration of Barbara A. Jones in Support of 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
116 Declaration of Chauncey McLorin in Support of 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit to Declaration Chauncey McLorin)(Related document(s) 88 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
117 Declaration of Anna Rich in Support of 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
118 Declaration of Sarah Somers in Support of 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
119 Declaration of Henry Su in Support of 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 )

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01/19/2010 01/19/2010 01/20/2010 01/21/2010 01/21/2010 01/21/2010 01/21/2010 01/21/2010 01/21/2010 01/21/2010

(Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
120 Declaration of Elizabeth Zirker in Support of 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
121 Appendix: Index of Additional Declarations in Support of Class Certification re 88 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 88 ) (Zirker, Elizabeth) (Filed on 1/19/2010) Modified on 1/20/2010 (jlm, COURT STAFF). (Entered: 01/19/2010)
122 MOTION to Certify Class CORRECTION OF DOCKET # 88 filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. Motion Hearing set for 3/16/2010 01:00 PM in Courtroom 1, 4th Floor, Oakland. (Gershon, Elissa) (Filed on 1/20/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/20/2010)
123 Declaration of Michele Burke in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
124 Declaration of Courtney Chinn, M.D. in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
125 Declaration of Harry Cota in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
126 Declaration of Catherine Davis in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Davis Declaration, # 2 Exhibit B to Davis Declaration)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
127 Declaration of Cordula Dick−Muehlke in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Dick Muehlke)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
128 Declaration of Rozene Dilworth in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
129 Declaration of Anne French in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to French Declaration)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)

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01/21/2010 01/21/2010 01/21/2010 01/21/2010 01/21/2010 01/21/2010

130 Declaration of William I. Gardner, M.D. in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Gardner Declaration)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
131 Declaration of Casey Konrai in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
132 Declaration of Tracy McCloud in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to McCloud Declaration, # 2 Exhibit B to McCloud Declaration, # 3 Exhibit C to McCloud Declaration, # 4 Exhibit D to McCloud Declaration, # 5 Exhibit E to McCloud Declaration)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
133 Declaration of Lydia Missaelides in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Missaelides Declaration, # 2 Exhibit B to Missaelides Declaration, # 3 Exhibit C to Missaelides Declaration, # 4 Exhibit D to Missaelides Declaration, # 5 Exhibit E to Missaelides Declaration, # 6 Exhibit F to Missaelides Declaration, # 7 Exhibit G to Missaelides Declaration, # 8 Exhibit H to Missaelides Declaration, # 9 Exhibit I to Missaelides Declaration, # 10 Exhibit J to Missaelides Declaration, # 11 Exhibit K to Missaelides Declaration, # 12 Exhibit L to Misseaelides Declaration)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
134 Declaration of Dawn Myers Purkey in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Myers Purkey)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
135 Declaration of Nina Nolcox in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
136 Declaration of Vitta Perelman in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
137 Declaration of Chuck Peterson in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
138 Declaration of Diane Puckett in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
139 Declaration of Celine Regalia in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry,

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Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Regalia Declaration)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
140 Declaration of Ron Smith in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
141 Declaration of Gary Steinke, M.D. in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Steinke Declaration)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
142 Declaration of Debbie Toth in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Toth Declaration, # 2 Exhibit B to Toth Declaration, # 3 Exhibit C to Toth Declaration)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
143 Declaration of Gilda Garcia in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
144 Declaration of Linda Gaspard−Berry in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
145 Declaration of Barbara A. Jones in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
146 Declaration of Chauncey McLorin in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit Attachment to McLorin Declaration)(Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
147 Declaration of Anna Rich in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
148 Declaration of Sarah Somers in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
149 Declaration of Henry Su in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)

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01/21/2010 01/22/2010 02/02/2010 02/02/2010 02/02/2010 02/02/2010 02/02/2010
02/02/2010 02/09/2010 02/09/2010 02/09/2010 02/09/2010
02/09/2010

150 Declaration of Elizabeth Zirker in Support of 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/21/2010) Modified on 1/22/2010 (jlm, COURT STAFF). (Entered: 01/21/2010)
151 Appendix: Amended Index re 122 Motion to Certify Class filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 122 ) (Zirker, Elizabeth) (Filed on 1/22/2010) Modified on 1/25/2010 (jlm, COURT STAFF). (Entered: 01/22/2010)
152 Memorandum in Opposition re 90 Motion for Preliminary Injunction filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 2/2/2010) Modified on 2/3/2010 (jlm, COURT STAFF). (Entered: 02/02/2010)
153 Declaration of Anne Heard, M.D. in Support of 152 Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Department of Health Care Services, David Maxwell−Jolly. (Related document(s) 152 ) (Carson, Susan) (Filed on 2/2/2010) Modified on 2/3/2010 (jlm, COURT STAFF). (Entered: 02/02/2010)
154 Declaration of Barbara Bailey in Support of 152 Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Department of Health Care Services, David Maxwell−Jolly. (Related document(s) 152 ) (Carson, Susan) (Filed on 2/2/2010) Modified on 2/3/2010 (jlm, COURT STAFF). (Entered: 02/02/2010)
155 Declaration of Debra Ferreria in Support of 152 Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Department of Health Care Services, David Maxwell−Jolly. (Related document(s) 152 ) (Carson, Susan) (Filed on 2/2/2010) Modified on 2/3/2010 (jlm, COURT STAFF). (Entered: 02/02/2010)
156 Declaration of Phyllis Muchmore in Support of 152 Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Department of Health Care Services, David Maxwell−Jolly. (Attachments: # 1 Exhibit A to Muchmore Decl., # 2 Exhibit B to Muchmore Decl.)(Related document(s) 152 ) (Carson, Susan) (Filed on 2/2/2010) Modified on 2/3/2010 (jlm, COURT STAFF). (Entered: 02/02/2010)
157 OBJECTIONS to 90 Motion for Preliminary Injunction filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 2/2/2010) Modified on 2/3/2010 (jlm, COURT STAFF). (Entered: 02/02/2010)
158 RESPONSE to 157 Objection to Evidence Filed By Plaintiffs In Support of Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (White, Lindsay) (Filed on 2/9/2010) Modified on 2/10/2010 (jlm, COURT STAFF). (Entered: 02/09/2010)
159 OBJECTIONS to 152 Memorandum in Opposition filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (White, Lindsay) (Filed on 2/9/2010) Modified on 2/10/2010 (jlm, COURT STAFF). (Entered: 02/09/2010)
160 Reply to Opposition re 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Gershon, Elissa) (Filed on 2/9/2010) Modified on 2/10/2010 (jlm, COURT STAFF). (Entered: 02/09/2010)
161 Supplemental Declaration of Lydia Missaelides in Support of 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Missaelides Suppl. Dec., # 2 Exhibit Exhibit B to Missaelides Suppl. Dec.)(Related document(s) 90 ) (Gershon, Elissa) (Filed on 2/9/2010) Modified on 2/10/2010 (jlm, COURT STAFF). (Entered: 02/09/2010)
162 Declaration of Elissa Gershon in Support of 90 Motion for Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda

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02/12/2010
02/17/2010
02/17/2010 02/18/2010 02/19/2010
02/19/2010 02/23/2010
02/23/2010 02/24/2010 02/24/2010 03/05/2010 03/08/2010 03/17/2010

Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Gershon Declaration)(Related document(s)) (Gershon, Elissa) (Filed on 2/9/2010) Modified on 2/10/2010 (jlm, COURT STAFF). Modified on 2/10/2010 (jlm, COURT STAFF). (Entered: 02/09/2010)
163 STIPULATION and Proposed Order Continuing Hearing Date and Setting Briefing Schedule for Motion for Class Certification, filed by Department of Health Care Services, David Maxwell−Jolly, Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Carson, Susan) (Filed on 2/12/2010) Modified on 2/16/2010 (jlm, COURT STAFF). (Entered: 02/12/2010)
164 STIPULATION AND ORDER: re 122 Motion to Certify Class. Opposition due by 3/23/2010. Replies due by 4/13/2010. Motion Hearing set for 4/27/2010 01:00 PM. Signed by Judge Saundra Brown Armstrong, on 2/16/10. (lrc, COURT STAFF) (Filed on 2/17/2010) Modified on 2/18/2010 (jlm, COURT STAFF). (Entered: 02/17/2010)
165 NOTICE of Appearance of Counsel Jennifer A. Bunshoft, filed by Department of Health Care Services, David Maxwell−Jolly(Bunshoft, Jennifer) (Filed on 2/17/2010) Modified on 2/18/2010 (jlm, COURT STAFF). (Entered: 02/17/2010)
166 SUGGESTION OF DEATH Upon the Record as to Lillie Brantley by Gilda Garcia, Allie Jo Woodard, Chauncey McLorin, Harry Cota, Linda Gaspard−Berry, Rozene Dilworth, Casey Konrai. (Zirker, Elizabeth) (Filed on 2/18/2010) (Entered: 02/18/2010)
167 STIPULATION and Proposed Order to Substitute Lead Plaintiff, filed by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard, Department of Health Care Services, David Maxwell−Jolly. (Zirker, Elizabeth) (Filed on 2/19/2010) Modified on 2/22/2010 (jlm, COURT STAFF). (Entered: 02/19/2010)
168 SUPPLEMENTAL OBJECTIONS to 90 Motion for Preliminary Injunction filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 2/19/2010) Modified on 2/22/2010 (jlm, COURT STAFF). (Entered: 02/19/2010)
169 RESPONSE to 157 Objection, 168 Supplemental Objections, filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (White, Lindsay) (Filed on 2/23/2010) Modified on 2/24/2010 (jlm, COURT STAFF). Modified on 2/24/2010 (jlm, COURT STAFF). (Entered: 02/23/2010)
***Deadlines terminated. (jlm, COURT STAFF) (Filed on 2/23/2010) (Entered: 02/24/2010)
170 STIPULATION AND ORDER: Substituting Harry Cota as Lead Plaintiff in place of Lillie Brantley. Signed by Judge Saundra Brown Armstrong on 02/22/10. (jlm, COURT STAFF) (Filed on 2/24/2010) (Entered: 02/24/2010)
171 ORDER by Judge Saundra Brown Armstrong GRANTING 90 Motion for Preliminary Injunction. The requirement for posting bond is WAIVED. Signed by Judge Saundra Brown Armstrong, on 2/24/10. (sbalc2, COURT STAFF) (Filed on 2/24/2010) Modified on 2/25/2010 (jlm, COURT STAFF). (Entered: 02/24/2010)
172 ANSWER to Amended Complaint, filed by Department of Health Care Services, David Maxwell−Jolly. (Carson, Susan) (Filed on 3/5/2010) Modified on 3/8/2010 (jlm, COURT STAFF). (Entered: 03/05/2010)
173 ORDER by Judge Saundra Brown Armstrong GRANTING 80 Motion for Pro Hac Vice for Kelly Bagby (jlm, COURT STAFF) (Filed on 3/8/2010) (Entered: 03/10/2010)
174 MOTION to Set Further Case Management Conference and for Extension of Time re Briefing and Hearing on Motion for Class Certification filed by Department of Health Care Services, David Maxwell−Jolly. (Attachments: # 1 Decl. of Susan M. Carson ISO Defendants' Administrative Motion (w/ Exhibits A−D), # 2 Proposed

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03/18/2010 03/18/2010 03/18/2010
03/18/2010
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03/22/2010 03/23/2010 03/23/2010 03/23/2010 03/24/2010 03/25/2010

Order)(Carson, Susan) (Filed on 3/17/2010) Modified on 3/18/2010 (jlm, COURT STAFF). (Entered: 03/17/2010)
175 Memorandum in Opposition re 174 Motion for Extension of Time filed by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Gershon, Elissa) (Filed on 3/18/2010) Modified on 3/19/2010 (jlm, COURT STAFF). (Entered: 03/18/2010)
176 Declaration of Elissa Gershon in Opposition to 174 Motion for Extension of Time filed by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Related document(s) 174 ) (Gershon, Elissa) (Filed on 3/18/2010) Modified on 3/19/2010 (jlm, COURT STAFF). (Entered: 03/18/2010)
177 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt Or In the Alternative For A Further Preliminary Injunction, filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. Motion Hearing set for 4/27/2010 01:00 PM in Courtroom 1, 4th Floor, Oakland. (White, Lindsay) (Filed on 3/18/2010) Modified on 3/19/2010 (jlm, COURT STAFF). (Entered: 03/18/2010)
178 Declaration of Elissa Gershon in Support re 177 Motion for Order to Show Cause Why Defendants Should Not Be Held In Contempt Or In the Alternative For A Further Preliminary Injunction filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(White, Lindsay) (Filed on 3/18/2010) Modified on 3/19/2010 (jlm, COURT STAFF). (Entered: 03/18/2010)
179 Proposed Order re 177 Motion for Order to Show Cause Why Defendants Should Not Be Held In Contempt Or In the Alternative For A Further Preliminary Injunction and Enjoining Defendants from Implementing or Enforcing Cal. Welf. and Inst. Code Sec. 14525.1(g) by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (White, Lindsay) (Filed on 3/18/2010) Modified on 3/19/2010 (jlm, COURT STAFF). (Entered: 03/18/2010)
180 BRIEFING ORDER: Holding in temporary ABEYANCE the 174 Motion for Class Certification. Signed by Judge Saundra Brown Armstrong, on 3/22/10. (lrc, COURT STAFF) (Filed on 3/22/2010) Modified on 3/23/2010 (jlm, COURT STAFF). Modified on 3/23/2010 (jlm, COURT STAFF). (Entered: 03/22/2010)
181 NOTICE OF APPEAL as to 171 Order, by Department of Health Care Services, David Maxwell−Jolly. Filing fee $ 455.00. Receipt no. 44611004967. Appeal Record due by 4/22/2010. (Attachments: # 1 Representation Statement)(jlm, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
182 USCA Appeal Fees received $ 455 receipt number 44611004967 re 181 Notice of Appeal, filed by Department of Health Care Services, David Maxwell−Jolly (jlm, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
***Deadlines terminated. (jlm, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/24/2010)
183 USCA Case Number 10−15635 Ninth Circuit Court of Appeals for 181 Notice of Appeal, filed by Department of Health Care Services, David Maxwell−Jolly. (kk, COURT STAFF) (Filed on 3/24/2010) (Entered: 03/24/2010)
184 ORDER by Judge Saundra Brown Armstrong GRANTING IN PART AND DENYING IN PART 174 Motion to Set Further Case Management Conference and for Extension of Time re Briefing and Hearing re Motion for Class Certification; and DENYING 177 Motion for Order to Show Cause. The Hearing on Plaintiff's Motion for Class Certification is CONTINUED to 05/25/10 at 1:00 PM. (lrc, COURT STAFF) (Filed on 3/25/2010) Modified on 3/26/2010 (jlm, COURT STAFF). (Entered: 03/25/2010)

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 34 of 73

03/25/2010 04/02/2010
04/05/2010 04/13/2010 04/20/2010 04/23/2010
04/23/2010 04/23/2010 05/14/2010 05/21/2010 06/18/2010 06/18/2010 06/23/2010 07/07/2010 07/12/2010 07/23/2010

Set/Reset Deadlines as to 122 Motion to Certify Class. Motion Hearing set for 5/25/2010 01:00 PM in Courtroom 1, 4th Floor, Oakland. (jlm, COURT STAFF) (Filed on 3/25/2010) (Entered: 03/26/2010)
185 Memorandum in Opposition 122 Motion to Certify Class filed by Department of Health Care Services, David Maxwell−Jolly. (Attachments: # 1 Bailey Decl. In Support of Defendants' Opposition to Class Certification (w/ Exhibit A))(Carson, Susan) (Filed on 4/2/2010) Modified on 4/5/2010 (jlm, COURT STAFF). (Entered: 04/02/2010)
186 NOTICE of Change of Address, filed by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard (Somers, Sarah) (Filed on 4/5/2010) Modified on 4/6/2010 (jlm, COURT STAFF). (Entered: 04/05/2010)
***Deadlines terminated re Reply Deadline as to 122 Motion to Certify Class (jlm, COURT STAFF) (Filed on 4/13/2010) (Entered: 04/21/2010)
187 STIPULATION and Proposed Order re Limitation of Benefits Subclass, filed by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Gershon, Elissa) (Filed on 4/20/2010) Modified on 4/21/2010 (jlm, COURT STAFF). (Entered: 04/20/2010)
188 *** FILED IN ERROR. PLEASE SEE DOCKET # 189 . *** Reply to Opposition Pltfs.' Reply to Defs.' Opp'n to Pltfs.' Motion for Class Certification filed byHarry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Gershon, Elissa) (Filed on 4/23/2010) Modified on 4/23/2010 (ewn, COURT STAFF). (Entered: 04/23/2010)
189 Reply to Opposition re 122 Motion for Class Certificatieon filed by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Allie Jo Woodard. (Gershon, Elissa) (Filed on 4/23/2010) Modified on 4/26/2010 (jlm, COURT STAFF). (Entered: 04/23/2010)
***Deadlines terminated re Appeal Record Deadline as to 181 Notice of Appeal. (jlm, COURT STAFF) (Filed on 4/23/2010) (Entered: 04/26/2010)
190 STIPULATION AND ORDER re Limitation of Benefits Subclass. Signed by Judge Saundra Brown Armstrong, on 5/14/10. (lrc, COURT STAFF) (Filed on 5/14/2010) Modified on 5/17/2010 (jlm, COURT STAFF). (Entered: 05/14/2010)
191 ORDER Setting Hearing on Motion 122 MOTION to Certify Class : Motion Hearing set for 6/29/2010 01:00 PM.. Signed by Judge ARMSTRONG on 5/21/10. (lrc, COURT STAFF) (Filed on 5/21/2010) (Entered: 05/21/2010)
192 Amended Proposed Order re 122 Motion to Certify Class by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 6/18/2010) Modified on 6/21/2010 (jlm, COURT STAFF). (Entered: 06/18/2010)
193 Letter to Judge Saundra Brown Armstrong re Amended Proposed Order 192 , from Elizabeth Zirker, dated 06/17/10 (Zirker, Elizabeth) (Filed on 6/18/2010) Modified on 6/21/2010 (jlm, COURT STAFF). (Entered: 06/18/2010)
194 CLERKS NOTICE: Continuing Motion Hearing 88 to 7/14/2010 at 01:00 PM in Courtroom 1, 4th Floor, Oakland. (lrc, COURT STAFF) (Filed on 6/23/2010) Modified on 6/24/2010 (jlm, COURT STAFF). Modified on 6/28/2010 (kk, COURT STAFF). (Entered: 06/23/2010)
195 CLERKS NOTICE: Continuing Motion Hearing to 7/27/2010 at 01:00 PM in Courtroom 1, 4th Floor, Oakland. (lrc, COURT STAFF) (Filed on 7/7/2010) Modified on 7/8/2010 (jlm, COURT STAFF). (Entered: 07/07/2010)
196 NOTICE of Appearance by Eric Matthew Carlson (Carlson, Eric) (Filed on 7/12/2010) (Entered: 07/12/2010)
197 SUGGESTION OF DEATH Upon the Record of Sumi Konrai by Gilda Garcia, Allie Jo Woodard, Harry Cota, Linda Gaspard−Berry, Rozene Dilworth, Casey

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08/10/2010 11/08/2010 11/08/2010 11/22/2010 11/22/2010 03/14/2011
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04/21/2011 04/21/2011 04/21/2011
04/21/2011

Konrai. (Gershon, Elissa) (Filed on 7/23/2010) (Entered: 07/23/2010)
198 ORDER by Judge Saundra Brown Armstrong GRANTING 122 Motion to Certify Class. (kc, COURT STAFF) (Filed on 8/10/2010) (Entered: 08/10/2010)
199 NOTICE of Appearance of Joshua Nathan Sondheimer as Counsel, filed by Department of Health Care Services, David Maxwell−Jolly (Sondheimer, Joshua) (Filed on 11/8/2010) Modified on 11/9/2010 (jlm, COURT STAFF). (Entered: 11/08/2010)
200 STIPULATION and Proposed Order to Stay Litigation Pending Appeal, filed by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Allie Jo Woodard, Department of Health Care Services, David Maxwell−Jolly. (Attachments: # 1 Declaration of Elissa Gershon)(Gershon, Elissa) (Filed on 11/8/2010) Modified on 11/9/2010 (jlm, COURT STAFF). (Entered: 11/08/2010)
201 STIPULATION AND ORDER STAYING CASE, Case stayed.. Signed by Judge ARMSTRONG on 11/22/10. (lrc, COURT STAFF) (Filed on 11/22/2010) (Entered: 11/22/2010)
***Deadlines terminated. 201 Stipulation and Order, Order Staying Case, Case Stayed. (lrc, COURT STAFF) (Filed on 11/22/2010) (Entered: 12/09/2010)
202 MOTION to Withdraw as Attorney Lindsay White, Henry C. Su, and Farah Anthony as Counsel of Record for Plaintiffs, filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Affidavit of Lindsay White in Support of Unopposed Motion to Withdraw Lindsay White, Henry C. Su, and Farah Anthony as Counsel of Record for Plaintiffs, # 2 Proposed Order)(White, Lindsay) (Filed on 3/14/2011) Modified on 3/15/2011 (jlm, COURT STAFF). (Entered: 03/14/2011)
203 NOTICE of Appearance of Kenneth Alexander Kuwayti as Counsel, filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard (Kuwayti, Kenneth) (Filed on 4/21/2011) Modified on 4/22/2011 (jlm, COURT STAFF). (Entered: 04/21/2011)
204 STIPULATION and Proposed Order for Partial Lift of Stay and Order Shortening Time re 171 Order, 57 Order on Motion for Preliminary Injunction, Order on Motion for TRO, 201 Stipulation and Order, Order Staying Case, Case Stayed, filed by Lillie Brantley, Harry Cota, Department of Health Care Services, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, David Maxwell−Jolly, Chauncey McLorin, Allie Jo Woodard. (Kuwayti, Kenneth) (Filed on 4/21/2011) Modified on 4/22/2011 (jlm, COURT STAFF). (Entered: 04/21/2011)
205 NOTICE of Change In Counsel, filed by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Allie Jo Woodard (Zirker, Elizabeth) (Filed on 4/21/2011) Modified on 4/22/2011 (jlm, COURT STAFF). (Entered: 04/21/2011)
206 SUGGESTION OF DEATH Upon the Record as to Harry Cota by Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 4/21/2011) (Entered: 04/21/2011)
207 MOTION for Leave to Supplement Complaint, filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. Motion Hearing set for 5/10/2011 01:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Saundra Brown Armstrong. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion for Leave to Supplement Complaint)(Kuwayti, Kenneth) (Filed on 4/21/2011) Modified on 4/22/2011 (jlm, COURT STAFF). (Entered: 04/21/2011)
208 Declaration of Elissa Gershon in Support of 207 Motion for Leave to Supplement and Amend Complaint filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 207 ) (Kuwayti, Kenneth) (Filed

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on 4/21/2011) Modified on 4/22/2011 (jlm, COURT STAFF). (Entered: 04/21/2011)
209 CLERKS NOTICE Continuing Motion Hearing re 207 Motion for Leave to Supplement Complaint. Motion Hearing set for 7/26/2011 01:00 PM before Hon. Saundra Brown Armstrong. (lrc, COURT STAFF) (Filed on 4/22/2011) Modified on 4/25/2011 (jlm, COURT STAFF). (Entered: 04/22/2011)
210 SUPERSEDING STIPULATION and Proposed Order for Partial Lift of Stay and to Shorten Time re 207 Motion for Leave to Supplement Complaint, 171 Order, 57 Order on Motion for Preliminary Injunction, Order on Motion for TRO, 201 Stipulation and Order Staying Case, 204 filed by Lillie Brantley, Harry Cota, Department of Health Care Services, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, David Maxwell−Jolly, Chauncey McLorin, Allie Jo Woodard. (Kuwayti, Kenneth) (Filed on 4/25/2011) Modified on 4/26/2011 (jlm, COURT STAFF). (Entered: 04/25/2011)
211 STIPULATION AND ORDER: Setting Hearing re 207 Motion for Leave to Supplement Complaint. Motion Hearing set for 5/17/2011 01:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Saundra Brown Armstrong. Signed by Judge Saundra Brown Armstrong, on 4/26/11. (lrc, COURT STAFF) (Filed on 4/27/2011) Modified on 4/28/2011 (jlm, COURT STAFF). (Entered: 04/27/2011)
212 Memorandum in Opposition re 207 Motion for Leave to Supplement Complaint filed by Department of Health Care Services, Toby Douglas. (Sondheimer, Joshua) (Filed on 5/4/2011) Modified on 5/5/2011 (jlm, COURT STAFF). (Entered: 05/04/2011)
213 Request for Judicial Notice re 212 Memoraum in Opposition filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Related document(s) 212 ) (Sondheimer, Joshua) (Filed on 5/4/2011) Modified on 5/5/2011 (jlm, COURT STAFF). (Entered: 05/04/2011)
214 Reply Memorandum re 207 Motion for Leave to Supplement Complaint, filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Kuwayti, Kenneth) (Filed on 5/10/2011) Modified on 5/11/2011 (jlm, COURT STAFF). (Entered: 05/10/2011)
215 Declaration of Kenneth A. Kuwayti in Support of 214 Reply Memorandum re Motion to Supplement Complaint filed by Lillie Brantley, Harry Cota, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Casey Konrai, Chauncey McLorin, Allie Jo Woodard. (Attachments: # 1 Exhibit A)(Related document(s) 214 ) (Kuwayti, Kenneth) (Filed on 5/10/2011) Modified on 5/11/2011 (jlm, COURT STAFF). (Entered: 05/10/2011)
Due to Judge Chen's elevation to Article III status, this case is re−referred to Magistrate Judge Nathanael M. Cousins for settlement. All matters scheduled before, and deadlines set by, Judge Chen are hereby vacated. All future settlement matters should be addressed to Judge Cousins unless otherwise ordered by the presiding judge. Until Judge Cousins takes the bench on July 5, 2011, any urgent settlement issues requiring immediate judicial attention should be addressed to Magistrate Judge Joseph C. Spero by contacting his courtroom deputy, Karen Hom, at (415) 522−2035. ; Judge Hon. Edward M. Chen no longer assigned to case. (far, COURT STAFF) (Filed on 5/25/2011) (Entered: 05/25/2011)
216 ORDER by Judge Saundra Brown Armstrong GRANTING 202 Motion to Withdraw as AttorneyS Lindsay White, Henry C. Su, and Farah Anthony as Counsel of Record for Plaintiffs. Attorney Lindsay M. White; Farah Shirin Anthony and Henry C. Su, terminated (jlm, COURT STAFF) (Filed on 5/26/2011) (Entered: 05/31/2011)
217 ORDER by Judge Saundra Brown Armstrong GRANTING 207 Motion for Leave to File Supplement to Complaint. Plaintiff shall file Supplemental Pleading within (2) two−days of this Order. Signed by Judge Saundra Brown Armstrong, on 06/02/11. (lrc, COURT STAFF) (Filed on 6/2/2011) Modified on 6/3/2011 (jlm,

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COURT STAFF). (Entered: 06/02/2011)
218 SECOND AMENDED COMPLAINT against Department of Health Care Services, Toby Douglas. Filed by Gilda Garcia, Allie Jo Woodard, Linda Gaspard−Berry, Rozene Dilworth, Esther Darling, Ronald Bell, Wendy Helfrich, Dennis Arnett, Jessie Jones, Raif Nasyrov, . (Gershon, Elissa) (Filed on 6/2/2011) Modified on 6/3/2011 (jlm, COURT STAFF). (Entered: 06/02/2011)
219 MOTION for Leave to Proceed in forma pauperis filed by Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Allie Jo Woodard. (Attachments: # 1 Exhibit Attachments to Declaration of Elizabeth Zirker, # 2 Proposed Order Proposed Order Granting IFP Application)(Zirker, Elizabeth) (Filed on 6/2/2011) (Entered: 06/02/2011)
220 MOTION to Appoint Guardian Ad Litem ad Litem for Wendy Helfrich filed by Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Allie Jo Woodard. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Dennis Arnett ISO GAL Application for Wendy Helfrich, # 3 Exhibit Exhibit A to Declaration of Dennis Arnett, # 4 Declaration of Celine Regalia ISO GAL Appointment for Wendy Helfrich, # 5 Exhibit Exhibit A to Declaration of Celine Regalia, # 6 Proposed Order Proposed Order Appointing GAL)(Zirker, Elizabeth) (Filed on 6/2/2011) (Entered: 06/02/2011)
221 MOTION to Appoint Guardian Ad Litem ad Litem for Raif Nasyrov filed by Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Allie Jo Woodard. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Sofiya Nasyrova ISO Guardian Ad Litem Appointment for Raif Nasyrov, # 3 Declaration of Debbie Toth ISO GAL Appointment for Raif Nasyrov, # 4 Exhibit Exhibit A to Declaration of Debbie Toth, # 5 Proposed Order Proposed Order for Appointment of GAL for Raif Nasyrov)(Zirker, Elizabeth) (Filed on 6/2/2011) (Entered: 06/02/2011)
222 STIPULATION and Proposed Order Shortening Time for Motion to Stay, filed by Toby Douglas, Department of Health Care Services. (Sondheimer, Joshua) (Filed on 6/7/2011) Modified on 6/8/2011 (jlm, COURT STAFF). (Entered: 06/07/2011)
223 STIPULATION and Proposed Order for Preliminary Injunction Briefing Schedule and Hearing Date, filed by Lillie Brantley, Harry Cota, Esther Darling, Department of Health Care Services, Rozene Dilworth, Toby Douglas, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, David Maxwell−Jolly, Chauncey McLorin, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Affidavit Declaration of Kenneth A. Kuwayti in Support of Stipulation for Preliminary Injunction Briefing Schedule and Hearing Date)(Kuwayti, Kenneth) (Filed on 6/7/2011) Modified on 6/8/2011 (jlm, COURT STAFF). (Entered: 06/07/2011)
224 MOTION to Stay, filed by Toby Douglas, Department of Health Care Services. (Attachments: # 1 Affidavit Declaration of Joshua Sondheimer in Support of Defendants Motion to Stay, # 2 Proposed Order [Proposed] Order Staying Proceedings)(Sondheimer, Joshua) (Filed on 6/8/2011) Modified on 6/9/2011 (jlm, COURT STAFF). (Entered: 06/08/2011)
225 MOTION for Preliminary Injunction, filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. Motion Hearing set for 7/26/2011 01:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Saundra Brown Armstrong. (Gershon, Elissa) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
226 Proposed Order re 225 MOTION for Preliminary Injunction Plaintiffs' Notice of Motion and Motion for Preliminary Injunction by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Gershon, Elissa) (Filed on 6/9/2011) (Entered: 06/09/2011)
227 Declaration of Dennis Arnett in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry,

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Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
228 Declaration of Roger Auerbach in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Roger Auerbach, # 2 Exhibit Exhibit B to Declaration of Roger Auerbach)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
229 Declaration of Peter Behr in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Delcaration of Peter Behr, # 2 Exhibit Exhibit B to Declaration of Peter Behr)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
230 Declaration of Tyler Cook in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
231 Declaration of Esther Darling in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
232 Declaration of Catherine Davis in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Catherine Davis)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
233 Declaration of Cordula Dick−Muehlke in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Cordula Dick−Muehlke)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
234 Declaration of Rozene Dilworth in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
235 Declaration of Megan Elliott in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Megan Elliott)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
236 Declaration of Margaret Fedele in Support of 225 Motion for Preliminary Injunction filed byEsther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
237 Declaration of Gilda Garcia in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related

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document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
238 Declaration of William I. Gardner in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Dr. William I. Gardner)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
239 Declaration of Linda Gaspard−Berry in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
240 Declaration of Joseph Hafkenschiel in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Joseph Hafkenschiel, # 2 Exhibit Exhibit B to Declaration of Joseph Hafkenschiel)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
241 Declaration of Denise Houghton in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
242 Declaration of Ben Jaworski in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
243 Declaration of Jessie Jones in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
244 Declaration of Tracy McCloud in Support of 225 MOTION for Preliminary Injunction Plaintiffs' Notice of Motion and Motion for Preliminary Injunction filed byEsther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration of Tracy McCloud, # 2 Exhibit B to Declaration of Tracy McCloud)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) (Entered: 06/09/2011)
245 Declaration of Lydia Missaelides in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration Lydia Missaelides, # 2 Exhibit B to Declaration Lydia Missaelides, # 3 Exhibit C to Declaration Lydia Missaelides, # 4 Exhibit D to Declaration Lydia Missaelides, # 5 Exhibit E to Declaration Lydia Missaelides, # 6 Exhibit F to Declaration Lydia Missaelides, # 7 Exhibit G to Declaration Lydia Missaelides, # 8 Exhibit H to Declaration Lydia Missaelides, # 9 Exhibit I to Declaration Lydia Missaelides, # 10 Exhibit J to Declaration Lydia Missaelides, # 11 Exhibit K to Declaration Lydia Missaelides, # 12 Exhibit L to Declaration Lydia Missaelides, # 13 Exhibit M to Declaration Lydia Missaelides, # 14 Exhibit N to Declaration Lydia Missaelides, # 15 Exhibit O to Declaration Lydia Missaelides)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
246 Declaration of Dawn Myers Purkey in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda

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Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration Dawn Myers Purkey)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
247 Declaration of Sofiya Nasyrova in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
248 Declaration of Nina Nolcox in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration of Nina Nolcox)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
249 Declaration of Vitta Perelman in Support of 225 Motion for Preliminary Injunction filed byEsther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
250 Declaration of Helene Philips in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
251 Declaration of Diane Puckett in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration of Diane Puckett)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
252 Declaration of Celine Regalia in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration of Celine Regalia, # 2 Exhibit B to Declaration of Celine Regalia, # 3 Exhibit C to Declaration of Celine Regalia)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
253 Declaration of Ron Smith in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
254 Declaration of Gary Steinke in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration of Gary Steinke)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
255 Declaration of Thomas Swenson in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
256 Declaration of Debbie Toth in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1

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Exhibit A to Declaration of Debbie Toth, # 2 Exhibit B to Declaration of Debbie Toth, # 3 Exhibit C to Declaration of Debbie Toth, # 4 Exhibit D to Declaration of Debbie Toth)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
257 Declaration of Kathleen Wilber in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration of Kathleen Wilber)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
258 Declaration of Jeffrey Yee, M.D. in Support of 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration of Jeffrey Yee)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
259 Appendix: Index of Declarations re 225 Motion for Preliminary Injunction filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 6/9/2011) Modified on 6/10/2011 (jlm, COURT STAFF). (Entered: 06/09/2011)
260 NOTICE of Appearance of Kenneth Alexander Kuwayti as Counsel, filed by Lillie Brantley, Harry Cota, Esther Darling, Rozene Dilworth, Gida Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Chauncey McLorin, Raif Nasyrov, Allie Jo Woodard (Kuwayti, Kenneth) (Filed on 6/14/2011) Modified on 6/15/2011 (jlm, COURT STAFF). (Entered: 06/14/2011)
261 Memorandum in Opposition re 224 Motion to Stay, filed by Lillie Brantley, Harry Cota, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Chauncey McLorin, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Proposed Order)(Kuwayti, Kenneth) (Filed on 6/14/2011) Modified on 6/15/2011 (jlm, COURT STAFF). (Entered: 06/14/2011)
262 Declaration of Kenneth A. Kuwayti in Support of 261 Memorandum in Opposition filed by Lillie Brantley, Harry Cota, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Chauncey McLorin, Raif Nasyrov, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Kuwayti Decl.)(Related document(s) 261 ) (Kuwayti, Kenneth) (Filed on 6/14/2011) Modified on 6/15/2011 (jlm, COURT STAFF). (Entered: 06/14/2011)
263 STIPULATION AND ORDER re 222 Stipulation. Signed by Judge Saundra Brown Armstrong, on 6/21/11. (lrc, COURT STAFF) (Filed on 6/22/2011) Modified on 6/23/2011 (jlm, COURT STAFF). (Entered: 06/22/2011)
264 STIPULATION AND ORDER: That the hearing re 225 Motion for Preliminary Injunction shall be set for 07/26/11 at 1:00 PM. Responses due by 6/29/2011. Replies due by 7/12/2011. Motion Hearing set for 7/26/2011 01:00 PM before Hon. Saundra Brown Armstrong.. Signed by Judge Saundra Brown Armstrong, on 6/21/11. (lrc, COURT STAFF) (Filed on 6/22/2011) Modified on 6/23/2011 (jlm, COURT STAFF). (Entered: 06/22/2011)
265 STIPULATION and Proposed Order re Disclosure of ADHC Records and Filing of Information Subject to Claim of Confidentiality in Opposition to Plaintiffs Motion for Preliminary Injunction, filed by Department of Health Care Services, Toby Douglas, Esther Darling, Department of Health Care Services, Rozene Dilworth, Toby Douglas, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrov, Allie Jo Woodard . (Sondheimer, Joshua) (Filed on 6/23/2011) Modified on 6/24/2011 (jlm, COURT STAFF). (Entered: 06/23/2011)
266 STIPULATION AND ORDER re Disclosure of ADHC Records and Filing of Information Subject to Claim of Confidentiality in Opposition to Plaintiffs Motion for Preliminary Injunction re 265 Stipulation. Signed by Judge Saundra Brown

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Armstrong, on 06/24/2011. (jlm, COURT STAFF) (Filed on 6/27/2011) (Entered: 06/27/2011)
267 Memorandum in Opposition re 225 Motion for Preliminary Injunction filed by Department of Health Care Services, Toby Douglas. (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
268 Declaration of Geraldine Baucom in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
269 Declaration of Eileen Carroll in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
270 Declaration of Debra Ferreria in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
271 Declaration of Dina Kokkos−Gonzales in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
272 Declaration of Mark Mimnaugh in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A)(Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
273 Declaration of Phyllis Muchmore in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
274 Declaration of Jane Ogle in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
275 Declaration of Vickie Orlich in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
276 Declaration of Dennis Owen in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
277 Declaration of Javier Portela in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
278 Declaration of Jim Watkins in Support of 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
279 OBJECTIONS to 225 Motion for Preliminary Injunction filed by Department of Health Care Services, Toby Douglas. (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)

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280 Appendix: Index of Declarations in Support re 267 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas. (Related document(s) 267 ) (Sondheimer, Joshua) (Filed on 7/1/2011) Modified on 7/5/2011 (jlm, COURT STAFF). (Entered: 07/01/2011)
281 ORDER by Judge Saundra Brown Armstrong GRANTING 219 Motion for Leave to Proceed in forma pauperis. Signed by Judge Saundra Brown Armstrong, on 7/6/11. (lrc, COURT STAFF) (Filed on 7/6/2011) Modified on 7/7/2011 (jlm, COURT STAFF). (Entered: 07/06/2011)
282 ORDER by Judge Saundra Brown Armstrong GRANTING 220 Motion to Appoint Guardian Ad Litem ad Litem. Dennis Arnett appointed for Wendy Helfrich. Signed by Judge Saundra Brown Armstrong, on 06/24/11 (jlm, COURT STAFF) (Filed on 7/6/2011) (Entered: 07/07/2011)
283 ORDER by Judge Saundra Brown Armstrong GRANTING 221 Motion to Appoint Guardian Ad Litem ad Litem. Sofia Nasyrova appointed. Signed by Judge Saundra Brown Armstrong, on 06/24/11 (jlm, COURT STAFF) (Filed on 7/6/2011) Modified on 7/11/2011 (jlm, COURT STAFF). (Entered: 07/08/2011)
284 Reply to Opposition re 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
285 Declaration of Elissa Gershon in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Gershon Declaration, # 2 Exhibit B to Gershon Declaration, # 3 Exhibit C to Gershon Declaration, # 4 Exhibit D to Gershon Declaration)(Related document(s) 225 ) (Gershon, Elissa) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
286 Declaration of Peter Behr in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
287 Declaration of Leslie Hendrickson, Ph.D. in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Hendrickson Declaration, # 2 Exhibit B to Hendrickson Declaration, # 3 Exhibit C to Hendrickson Declaration, # 4 Exhibit D to Hendrickson Declaration, # 5 Exhibit E to Hendrickson Declaration, # 6 Exhibit F to Hendrickson Declaration, # 7 Exhibit G to Hendrickson Declaration, # 8 Exhibit H to Hendrickson Declaration, # 9 Exhibit I to Hendrickson Declaration, # 10 Exhibit J to Hendrickson Declaration, # 11 Exhibit K to Hendrickson Declaration, # 12 Exhibit L to Hendrickson Declaration)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
288 Declaration of Marty Lynch in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Lynch Declaration)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
289 Declaration of Tracy McCloud in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered:

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290 Supplemental Declaration of Lydia Missaelides in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Missaelides Declaration, # 2 Exhibit B to Missaelides Declaration, # 3 Exhibit C to Missaelides Declaration, # 4 Exhibit D to Missaelides Declaration, # 5 Exhibit E to Missaelides Declaration, # 6 Exhibit F to Missaelides Declaration, # 7 Exhibit G to Missaelides Declaration, # 8 Exhibit H to Missaelides Declaration)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
291 Supplemental Declaration of Dawn Myers Purkey in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Myers Purkey Declaration, # 2 Exhibit B to Myers Purkey Declaration)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). Modified on 7/13/2011 (jlm, COURT STAFF). Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
292 Supplemental Declaration of Nina M. Nolcox in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
293 Supplemental Declaration of Celine Regalia in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Regalia Supplemental Declaration)(Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
294 Supplemental Declaration of Kathleen Wilber, Ph.D. in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
295 Appendix: Index of Declarations in Support re 284 Reply to Opposition, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 284 ) (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
296 OBJECTIONS to Evidence re 284 Reply to Opposition, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
297 RESPONSE to Objections re 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
298 Statement of Interest of the United States of America, filed by United States of America. (Deiss, Ila) (Filed on 7/12/2011) Modified on 7/13/2011 (jlm, COURT STAFF). Modified on 7/13/2011 (jlm, COURT STAFF). (Entered: 07/12/2011)
299 Letter to Hon. Judge Saundra Brown Armstrong re request to continue hearing currently scheduled for 7/26/11, on plaintiffs motion for preliminary injunction by

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07/22/2011 07/22/2011 07/22/2011 08/24/2011
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(90) ninety−days, from Susan Carson, dated 07/22/11 (Carson, Susan) (Filed on 7/22/2011) Modified on 7/25/2011 (jlm, COURT STAFF). (Entered: 07/22/2011)
300 Declaration of Vickie Orlich in Support of 299 Letter re request to continue hearing currently scheduled for 7/26/11, on plaintiffs motion for preliminary injunction by (90) ninety−days filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 299 ) (Carson, Susan) (Filed on 7/22/2011) Modified on 7/25/2011 (jlm, COURT STAFF). Modified on 7/25/2011 (jlm, COURT STAFF). (Entered: 07/22/2011)
301 Letter to Judge Saundra Brown Armstrong in Opposition to Request for Continuance, from Elissa Gershon, dated 07/22/11 (Attachments: # 1 Declaration of Elissa Gershon ISO Opposition to Request for Continuance, # 2 Declaration of Lydia Missaelides ISO Opposition to Request for Continuance)(Gershon, Elissa) (Filed on 7/22/2011) Modified on 7/25/2011 (jlm, COURT STAFF). (Entered: 07/22/2011)
302 ORDER CONTINUING HEARING re 225 Motion for Preliminary Injunction. Plaintiffs' supplemental brief due by 10/14/2011. Defendants' supplemental brief due by 10/21/2011. Motion Hearing set for 11/1/2011 01:00 PM before Hon. Saundra Brown Armstrong. Signed by Judge Saundra Brown Armstrong, on 7/22/11. (sbalc2, COURT STAFF) (Filed on 7/22/2011) Modified on 7/25/2011 (jlm, COURT STAFF). (Entered: 07/22/2011)
303 MOTION for Relief to Reverse Briefing Schedule, filed by Dennis Arnett, Lillie Brantley, Harry Cota, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. Motion Hearing set for 11/1/2011 01:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Saundra Brown Armstrong. Responses due by 8/29/2011. Replies due by 8/29/2011. (Attachments: # 1 Proposed Order)(Kuwayti, Kenneth) (Filed on 8/24/2011) Modified on 8/25/2011 (jlm, COURT STAFF). Modified on 8/25/2011 (jlm, COURT STAFF). (Entered: 08/24/2011)
304 Declaration of Elissa Gershon in Support of 303 Motion for Relief to Reverse Briefing Schedule, filed by Dennis Arnett, Lillie Brantley, Harry Cota, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Related document(s) 303 ) (Kuwayti, Kenneth) (Filed on 8/24/2011) Modified on 8/25/2011 (jlm, COURT STAFF). (Entered: 08/24/2011)
305 Memorandum in Opposition re 303 Motion for Relief to Reverse Briefing Schedule, filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Affidavit Declaration of Jane Ogle, # 2 Affidavit Declaration of Joshua Sondheimer, # 3 Proposed Order Proposed Order Denying Administrative Motion to Reverse Briefing Schedule)(Sondheimer, Joshua) (Filed on 8/29/2011) Modified on 8/30/2011 (jlm, COURT STAFF). (Entered: 08/29/2011)
306 ORDER by Judge Saundra Brown Armstrong DENYING 303 Motion for Relief to Reverse Briefing Schedule and Setting Hearing re 303 Motion for Relief to Reverse Briefing Schedule and 225 Motion for Preliminary Injunction. Motion Hearing set for 11/8/2011 01:00 PM before Hon. Saundra Brown Armstrong.. Signed by Judge Saundra Brown Armstrong, on 8/30/11. (lrc, COURT STAFF) (Filed on 8/31/2011) Modified on 9/1/2011 (jlm, COURT STAFF). (Entered: 08/31/2011)
307 NOTICE OF SETTLEMENT CONFERENCE AND ORDER − Settlement Conference set for 10/6/2011 09:30 AM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Nathanael Cousins on 9/6/2011. (lmh, COURT STAFF) (Filed on 9/6/2011) (Entered: 09/06/2011)
308 ORDER of USCA: That the petition for writ of mandamus raises issues that warrant response. Response due within (14) fourteen−days of this Order. Petitioner may file a reply within (5) five−days after service of response, as to 181 Notice of Appeal, USCA No. 11−71801. (jlm, COURT STAFF) (Filed on 9/13/2011)

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09/16/2011 09/16/2011 09/16/2011
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(Entered: 09/14/2011)
309 MOTION to Compel Deposition filed by Dennis Arnett, Lillie Brantley, Harry Cota, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. Responses due by 9/30/2011. Replies due by 10/7/2011. (Attachments: # 1 Proposed Order)(Kuwayti, Kenneth) (Filed on 9/16/2011) (Entered: 09/16/2011)
310 MOTION to Shorten Time re 309 Motion to Compel Deposition filed by Dennis Arnett, Lillie Brantley, Harry Cota, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Proposed Order)(Kuwayti, Kenneth) (Filed on 9/16/2011) Modified on 9/19/2011 (jlm, COURT STAFF). (Entered: 09/16/2011)
311 Declaration of Elissa Gershon in Support of 310 Motion to Shorten Time on Motion to Compel Deposition, 309 Motion to Compel Deposition filed by Dennis Arnett, Lillie Brantley, Harry Cota, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S)(Related document(s) 310 , 309 ) (Kuwayti, Kenneth) (Filed on 9/16/2011) Modified on 9/19/2011 (jlm, COURT STAFF). (Entered: 09/16/2011)
312 NOTICE AND ORDER RESETTING Settlement Conference for 9/30/2011 09:30 AM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Nathanael Cousins on 9/19/2011. (lmh, COURT STAFF) (Filed on 9/19/2011) (Entered: 09/19/2011)
313 ORDER REFERRING CASE to Magistrate Judge for ALL Discovery purposes. Signed by Judge ARMSTRONG on 9/20/11. (lrc, COURT STAFF) (Filed on 9/20/2011) (Entered: 09/20/2011)
314 Memorandum in Opposition re 310 Motion to Shorten Time, filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Affidavit Declaration of Joshua Sondheimer in Support of Plaintiffs' Motion to Shorten Time, # 2 Proposed Order)(Sondheimer, Joshua) (Filed on 9/20/2011) Modified on 9/21/2011 (jlm, COURT STAFF). (Entered: 09/20/2011)
315 Minute Entry: Telephonic Discovery Hearing held on 9/23/2011 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 9/23/2011). (Court Reporter: Not Reported) (ahm, COURT STAFF) (Date Filed: 9/23/2011) Modified on 9/27/2011 (jlm, COURT STAFF). (Entered: 09/26/2011)
Set/Reset Deadlines as to 309 MOTION to Compel Deposition. Motion Hearing set for 9/29/2011 03:00 PM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 9/26/2011) (Entered: 09/26/2011)
316 Statement re 309 Motion to Compel Deposition filed by Department of Health Care Services, Toby Douglas. (Sondheimer, Joshua) (Filed on 9/27/2011) Modified on 9/28/2011 (jlm, COURT STAFF). (Entered: 09/27/2011)
317 Minute Entry: Motion Hearing held on 9/30/2011 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 9/30/2011) re 309 Motion to Compel Deposition. (Court Reporter: Jim Yeomans) (ahm, COURT STAFF) (Date Filed: 9/30/2011) Modified on 10/3/2011 (jlm, COURT STAFF). (Entered: 09/30/2011)
318 ORDER RE: MOTION TO COMPEL (Dkt. No. 309) AND DEFENDANTS REQUEST FOR DISCOVERY (Dkt. No. 316). Signed by Magistrate Judge Jacqueline Scott Corley on 9/30/2011. (ahm, COURT STAFF) (Filed on 9/30/2011) (Entered: 09/30/2011)

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319 Minute Entry: Settlement Conference held with Judge Cousins on 9/30/2011. Case did not settle. (lmh, COURT STAFF) (Date Filed: 10/4/2011) (Entered: 10/04/2011)
320 Second Supplemental Declaration of Peter Behr in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Behr Decl., # 2 Exhibit Exhibit A to Behr Decl.)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
321 Declaration of Jed Brazier in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
322 Declaration of Kaye Bunch in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
323 Declaration of Judy Canterbury in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
324 Supplemental Declaration of Catherine Davis in Support 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Supplemental Decl. Davis, # 2 Exhibit B to Supplemental Decl. Davis, # 3 Exhibit C to Supplemental Decl. Davis, # 4 Exhibit D to Supplemental Decl. Davis)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
325 Declaration of Russell Foster in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Foster Decl.)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
326 Supplemental Declaration of Les Hendrickson in Support 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
327 Declaration of Paul Heyn in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
328 Declaration of Anne Hinton in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
329 Declaration of Margaret Huffer in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified

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on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
330 Declaration of Corinne Jan in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Jan Decl.)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
331 Declaration of Jane Kunkel in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
332 Third Supplemental Declaration of Lydia Missaelides in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Third Supp. Decl. Missaelides)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
333 Second Supplemental Declaration of Dawn Myers Purkey in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Second Supplemental Decl. Myers Purkey, # 2 Exhibit B to Second Supplemental Decl. Myers Purkey, # 3 Exhibit C to Second Supplemental Decl. Myers Purkey)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
334 Second Supplemental Declaration of Nina Nolcox in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Second Supplemental Decl. Nolcox, # 2 Exhibit Exhibit B to Second Supplemental Declaration Nolcox)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
335 Supplemental Declaration of Diane Puckett in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Supplemental Decl. Puckett)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
336 Second Supplemental Declaration of Celine Regalia in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Second Supplemental Dec. Regalia, # 2 Exhibit B to Second Supplemental Dec. Regalia, # 3 Exhibit C to Second Supplemental Dec. Regalia)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
337 Second Supplemental Declaration of Debbie Toth in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Second Supplemental Dec. Toth, # 2 Exhibit B to Second Supplemental Dec. Toth, # 3 Exhibit C to Second Supplemental Dec. Toth, # 4 Exhibit D to Second Supplemental Dec. Toth, # 5 Exhibit E to Second Supplemental Dec. Toth)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)

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338 Declaration of Sandra Tronnes in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
339 Declaration of Benny Wong in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
340 Declaration of Elizabeth Zirker in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Zirker Decl., # 2 Exhibit B to Zirker Decl., # 3 Exhibit C to Zirker Decl., # 4 Exhibit D to Zirker Decl., # 5 Exhibit E to Zirker Decl.)(Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
341 EXHIBITS F to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
342 EXHIBIT G to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit G to Zirker Decl., # 2 Exhibit G to Zirker Decl., # 3 Exhibit G to Zirker Decl., # 4 Exhibit G to Zirker Decl.)(Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
343 EXHIBIT H to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
344 EXHIBIT I to 340 Declarationof Elizabeth Zirker in Support, filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
345 EXHIBIT J to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
346 EXHIBIT K re 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
347 EXHIBIT L to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
348 EXHIBIT M to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on

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10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
349 EXHIBIT N to 340 Declaration of Elizabeth Zirker in Support, filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
350 EXHIBIT O to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
351 EXHIBIT P to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
352 EXHIBIT Q to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
353 EXHIBIT R to 340 Declaration of Elizabeth Zirker in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 340 ) (Zirker, Elizabeth) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
354 Supplemental Brief in Support re 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
355 Appendix: Index of Declarations in Support of Supplemenal Brief re 354 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 354 ) (Gershon, Elissa) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF). (Entered: 10/14/2011)
356 Minute Entry: Settlement Conference Held. Parties Unable to Settle. Case referred to Judge Saundra Brown Armstrong (Date Filed: 10/18/2011). (bjtS, COURT STAFF) (Date Filed: 10/18/2011) Modified on 10/20/2011 (jlm, COURT STAFF). (Entered: 10/19/2011)
357 STIPULATION and Proposed Order re Supplemental Briefing Schedule for Plaintiffs' Third Motion for Preliminary Injunction, filed by Department of Health Care Services, Toby Douglas, Allie Jo Woodard, Raif Nasyrova, Jessie Jones, Wendy Helfrich, Gilda Garcia, Esther Darling. (Carson, Susan) (Filed on 10/20/2011) Modified on 10/21/2011 (jlm, COURT STAFF). (Entered: 10/20/2011)
358 Minute Entry: Telephonic Discovery Conference held on 10/21/2011 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 10/21/2011). (Court Reporter: Not Reported) (ahm, COURT STAFF) (Date Filed: 10/21/2011) Modified on 10/25/2011 (jlm, COURT STAFF). (Entered: 10/24/2011)
359 STIPULATION AND ORDER: That Defendant's Supplemental Briefing due by 10/25/11 at 5:00 PM; Plaintiffs' Reply due by 10/31/11 at 9:00 AM. Hearing on the motion set for 11/8/11 at 1:00 PM. Signed by Judge Saundra Brown Armstrong, on 10/20/11. (lrc, COURT STAFF) (Filed on 10/24/2011) Modified on 10/25/2011

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(jlm, COURT STAFF). (Entered: 10/24/2011)
360 Supplemental Memorandum in Opposition re 225 Motion for Preliminary Injunction filed by Department of Health Care Services, Toby Douglas. (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
361 Declaration of Maya Altman in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
362 Declaration of Thomas Bone in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A)(Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
363 Supplemental Declaration of Eileen Carroll in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
364 Supplemental Declaration of Debra Ferreria in Support of 360 Memorandum in Opposition filed byDepartment of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
365 Declaration of David Friedman in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
366 Declaration of Mark Hutchinson in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
367 OBJECTIONS to 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
368 Declaration of Ingrid Lamirault in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
369 Supplemental Declaration of Mark Mimnaugh in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A)(Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
370 Supplemental Declaration of Jane Ogle in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
371 Supplemental Declaration of Dennis Owen in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
372 Declaration of Louis Rico in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm,

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COURT STAFF). (Entered: 10/25/2011)
373 Declaration of John K. Shen in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
374 Supplemental Declaration of Jim Watkins in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Related document(s) 360 ) (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
375 Appendix: Index of Declarations in Support of 360 Memorandum in Opposition, filed by Department of Health Care Services, Toby Douglas. (Sondheimer, Joshua) (Filed on 10/25/2011) Modified on 10/26/2011 (jlm, COURT STAFF). (Entered: 10/25/2011)
376 ORDER RE: PLAINTIFF'S MOTION TO STRIKE AND DEPOSITION DISPUTE. Discovery Hearing set for 11/3/2011 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Signed by Magistrate Judge Jacqueline Scott Corley on 10/28/2011. (ahm, COURT STAFF) (Filed on 10/28/2011) (Entered: 10/28/2011)
377 Supplemental Reply Memorandum re 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
378 Third Supplemental Declaration of Peter H. Behr, Jr. in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
379 Second Supplemental Declaration of Catherine Davis in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
380 Declaration of Elissa Gershon in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Elissa Gershon)(Related document(s) 225 ) (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
381 Declaration of Jennifer Hurlow−Paonessa in Support of 225 Motion for Preliminary Injunction, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
382 Second Supplemental Declaration of Dianne Puckett in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)

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383 Third Supplemental Declaration of Celine Regalia in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
384 Second Supplemental Declaration of Kathleen Wilber, Ph.D. in Support of 225 Motion for Preliminary Injunction filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 225 ) (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
385 Appendix: Index of Declarations in Support re 377 Reply Memorandum filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 377 ) (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
386 Response to Objections to Evidence re 377 Reply Memorandum, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
387 ***DUPLICATE ENTRY, SAME AS DOCUMENT NO. 386 ***

10/31/2011 10/31/2011 10/31/2011 10/31/2011 10/31/2011
10/31/2011

Response to Objections to Evidence re 377 Reply Memorandum, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 10/30/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/30/2011)
388 Supplemental Statement of Interest of the United States of America, filed by United States of America. (Deiss, Ila) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
389 Objection to Evidence in Support of Supplemental Brief in Opposition re 225 Reply to Opposition/Response, [Replacement to Docket No. 387], filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
390 Letter to Magistrate Judge Jacqueline Scott Corley re Request to Schedule and Order re: Plaintiff's Motion to Strike, from Joshua N. Sondheimer, dated 10/31/11. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Sondheimer, Joshua) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
391 Letter to Magistrate Judge Jacqueline Scott Corley re Motion for Further Proceedings and Motion to Strike, from Elissa Gershon, dated 10/31/11. (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
392 Declaration of Elissa Gershon in Support of 391 Letter in Support of Motion for Further Proceedings and Motion to Strike filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Attachment A, # 2 Exhibit Attachment B, # 3 Exhibit Attachment C, # 4 Exhibit Attachment D, # 5 Exhibit Attachment E)(Related document(s) 391 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
393 EXHIBITS: Attachment H to 392 Declaration of Elissa Gershon in Support filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova,

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Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 392 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
394 EXHIBITS: Attachment I to 392 Declaration of Elissa Gershon in Support filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 392 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
395 EXHIBITS: Attachment J to 392 Declaration of Elissa Gershon in Support filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 392 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
396 EXHIBITS: Attachment K to 392 Declaration of Elissa Gershon in Support filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 392 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
397 EXHIBITS: Attachment L to 392 Declaration of Elissa Gershon in Support filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 392 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
398 EXHIBITS: Attachment M to 392 Declaration of Elissa Gershon in Support filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 392 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
399 EXHIBITS: Attachment N to 392 Declaration of Elissa Gershon in Support filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 392 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
400 EXHIBITS: Attachment F to 392 Declaration of Elissa Gershon in Support filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 392 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
401 EXHIBITS: Attachment G to 392 Declaration of Elissa Gershon in Support filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Chauncey McLorin, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 392 ) (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
402 Letter to Magistrate Judge Jacqueline Scott Corley re Response to Defendants' Letter dated 10/31/11, from Elissa Gershon, dated 10/31/11. (Gershon, Elissa) (Filed on 10/31/2011) Modified on 11/1/2011 (jlm, COURT STAFF). (Entered: 10/31/2011)
Set/Reset Deadlines as to 225 MOTION for Preliminary Injunction. Motion Hearing set for 11/15/2011 01:00 PM before Hon. Saundra Brown Armstrong..

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Signed by Judge ARMSTRONG on 11/2/11. (lrc, COURT STAFF) (Filed on 11/2/2011) (Entered: 11/02/2011)
403 Letter to Magistrate Judge Jacqueline Scott Corley re Opposition to Plaintiffs' Motion to Strike, from Joshua N. Sondheimer, dated 11/02/11 (Sondheimer, Joshua) (Filed on 11/2/2011) Modified on 11/3/2011 (jlm, COURT STAFF). (Entered: 11/02/2011)
404 DECLARATION of Joshua Sondheimer In Support of 403 Letter, filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sondheimer, Joshua) (Filed on 11/2/2011) Modified on 11/3/2011 (jlm, COURT STAFF). (Entered: 11/02/2011)
405 Minute Entry: Discovery Hearing held on 11/3/2011 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 11/3/2011). (Court Reporter: Belle Ball) (ahm, COURT STAFF) (Date Filed: 11/3/2011) (Entered: 11/03/2011)
406 ORDER by Magistrate Judge Jacqueline Scott Corley re Plaintiffs Motion to Strike Portions of Declarations (Dkt. No. 391). Signed by Magistrate Judge Jacqueline Scott Corley, on 11/3/2011. (ahm, COURT STAFF) (Filed on 11/3/2011) Modified on 11/4/2011 (jlm, COURT STAFF). (Entered: 11/03/2011)
408 ORDER of USCA: That the petition is denied. The motion to expedite the petition for writ of mandamus is denied as moot, as to 181 Notice of Appeal, USCA No. 11−71801. (jlm, COURT STAFF) (Filed on 11/15/2011) (Entered: 11/16/2011)
407 ORDER CONTINUING HEARING as to 225 Motion for Preliminary Injunction. Motion Hearing set for 11/17/2011 02:15 PM before Hon. Saundra Brown Armstrong. Signed by Judge Saundra Brown Armstrong, on 11/15/11. (lrc, COURT STAFF) (Filed on 11/16/2011) Modified on 11/17/2011 (jlm, COURT STAFF). (Entered: 11/16/2011)
409 ORDER: That the hearings on Plaintiffs' Motion for Preliminary Injunction scheduled for 11/17/11 is VACATED. Motions terminated: 225 Motion for Preliminary Injunction, 224 Motion to Stay. Signed by Judge Saundra Brown Armstrong, on 11/17/11. (lrc, COURT STAFF) (Filed on 11/17/2011) Modified on 11/18/2011 (jlm, COURT STAFF). (Entered: 11/17/2011)
410 STIPULATION and Proposed Order For Briefing Schedule and Hearing Date for Approval of Settlement and Class Certification, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard, Toby Douglas, Department of Health Care Services. (Gershon, Elissa) (Filed on 11/18/2011) Modified on 11/21/2011 (jlm, COURT STAFF). (Entered: 11/18/2011)
411 STIPULATION AND ORDER Fairness Hearing set for 1/24/2012 01:00 PM. PRELIMINARY APPROVAL HEARING set for 12/13/2011 01:00 PM before Hon. Saundra Brown Armstrong. Signed by Judge Saundra Brown Armstrong, on 11/28/11. (lrc, COURT STAFF) (Filed on 11/29/2011) Modified on 11/30/2011 (jlm, COURT STAFF). (Entered: 11/29/2011)
412 Joint MOTION for Preliminary Approval of Class Settlement Agreement and for Order Directing Notice to Class and Scheduling Fairness Hearing filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. Motion Hearing set for 12/13/2011 01:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Saundra Brown Armstrong. Responses due by 1/10/2012. Replies due by 1/17/2012. (Gershon, Elissa) (Filed on 12/1/2011) Modified on 12/2/2011 (jlm, COURT STAFF). (Entered: 12/01/2011)
413 Declaration of Elissa Gershon in Support of 412 Joint Motion for Preliminary Approval of Class Settlement Agreement and for Order Directing Notice to Class and Scheduling Fairness Hearing, filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit 1 to Declaration of Elissa Gershon, # 2 Exhibit Exhibit 2 to Declaration of Elissa Gershon)(Related document(s) 412 ) (Gershon, Elissa) (Filed

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on 12/1/2011) Modified on 12/2/2011 (jlm, COURT STAFF). (Entered: 12/01/2011)
414 Proposed Order re 412 Joint Motion for Preliminary Approval of Class Settlement Agreement and for Order Directing Notice to Class and Scheduling Fairness Hearing filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Casey Konrai, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit 1 to Proposed Order, # 2 Exhibit Exhibit 2 to Proposed Order)(Gershon, Elissa) (Filed on 12/1/2011) Modified on 12/2/2011 (jlm, COURT STAFF). (Entered: 12/01/2011)
415 ORDER by Judge Saundra Brown Armstrong GRANTING 412 Motion for Preliminary Approval of Settlement Agreement, Directing Notice to Class Setting a Scheduling Order and Fairness Hearing. Farness Hearing set for 01/24/12 at 1:00 PM. Signed by Judge Saundra Brown Armstrong, on 12/13/11 (lrc, COURT STAFF) (Filed on 12/14/2011) Modified on 12/15/2011 (jlm, COURT STAFF). (Entered: 12/14/2011)
Set Deadlines/Hearings: (lrc, COURT STAFF) (Filed on 12/14/2011) (Entered: 12/14/2011)
416 MOTION for Approval of Attorneys' Fees As Part of Class Action Settlement filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. Motion Hearing set for 1/24/2012 01:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Saundra Brown Armstrong. Responses due by 12/28/2011. Replies due by 1/4/2012. (Gershon, Elissa) (Filed on 12/14/2011) Modified on 12/15/2011 (jlm, COURT STAFF). (Entered: 12/14/2011)
417 Proposed Order re 416 Motion for Approval of Attorneys' Fees As Part of Class Action Settlement by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 12/14/2011) Modified on 12/15/2011 (jlm, COURT STAFF). (Entered: 12/14/2011)
418 Declaration of Kelly Bagby in Support of 416 Motion for Approval of Attorneys' Fees As Part of Class Action Settlement, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Bagby Declaration, # 2 Exhibit B to Bagby Declaration, # 3 Exhibit C to Bagby Declaration)(Related document(s) 416 ) (Gershon, Elissa) (Filed on 12/14/2011) Modified on 12/15/2011 (jlm, COURT STAFF). (Entered: 12/14/2011)
419 Declaration of Elissa Gerson in Support of 416 Motion for Approval of Attorneys' Fees As Part of Class Action Settlement, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Gershon Declaration, # 2 Exhibit B to Gershon Declaration, # 3 Exhibit C to Gershon Declaration, # 4 Exhibit D to Gershon Declaration, # 5 Exhibit E to Gershon Declaration, # 6 Exhibit F to Gershon Declaration, # 7 Exhibit G to Gershon Declaration, # 8 Exhibit H to Gershon Declaration, # 9 Exhibit I to Gershon Declaration, # 10 Exhibit J to Gershon Declaration, # 11 Exhibit K to Gershon Declaration, # 12 Exhibit L to Gershon Declaration)(Related document(s) 416 ) (Gershon, Elissa) (Filed on 12/14/2011) Modified on 12/15/2011 (jlm, COURT STAFF). (Entered: 12/14/2011)
420 Declaration of KENNETH KUWAYTI in Support of 416 MOTION for Attorney Fees Notice of Motion and Motion for Approval of Attorneys' Fees As Part of Class Action Settlement filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to KUWAYTI Declaration, # 2 Exhibit B to KUWAYTI Declaration, # 3 Exhibit C to KUWAYTI Declaration, # 4 Exhibit D to KUWAYTI Declaration, # 5 Exhibit E to KUWAYTI Declaration, # 6 Exhibit F to KUWAYTI Declaration)(Related document(s) 416 ) (Gershon, Elissa) (Filed on 12/14/2011) (Entered: 12/14/2011)

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 57 of 73

12/14/2011
12/14/2011
12/14/2011
12/14/2011
12/15/2011
12/22/2011 12/23/2011 12/23/2011 12/27/2011 12/28/2011 12/29/2011 01/10/2012

421 Declaration of Richard Pearl in Support of 416 Motion for Approval of Attorneys' Fees As Part of Class Action Settlement filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Pearl Declaration, # 2 Exhibit B to Pearl Declaration, # 3 Exhibit C to Pearl Declaration)(Related document(s) 416 ) (Gershon, Elissa) (Filed on 12/14/2011) Modified on 12/15/2011 (jlm, COURT STAFF). (Entered: 12/14/2011)
422 Declaration of Kevin Prindiville in Support of 416 Motion for Approval of Attorneys' Fees As Part of Class Action Settlement, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Prindiville Declaration, # 2 Exhibit B to Prindiville Declaration, # 3 Exhibit C to Prindiville Declaration, # 4 Exhibit D to Prindiville Declaration)(Related document(s) 416 ) (Gershon, Elissa) (Filed on 12/14/2011) Modified on 12/15/2011 (jlm, COURT STAFF). (Entered: 12/14/2011)
423 Declaration of Dara Schur in Support of 416 Motion for Approval of Attorneys' Fees As Part of Class Action Settlement, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Schur Declaration, # 2 Exhibit B to Schur Declaration, # 3 Exhibit C to Schur Declaration)(Related document(s) 416 ) (Gershon, Elissa) (Filed on 12/14/2011) Modified on 12/15/2011 (jlm, COURT STAFF). (Entered: 12/14/2011)
424 Declaration of Sarah Somers in Support of 416 Motion for Approval of Attorneys' Fees As Part of Class Action Settlement, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Somers Declaration, # 2 Exhibit B to Somers Declaration)(Related document(s) 416 ) (Gershon, Elissa) (Filed on 12/14/2011) Modified on 12/15/2011 (jlm, COURT STAFF). (Entered: 12/14/2011)
425 ERRATA re 417 Proposed Order, 422 Declaration in Support, 416 Motion for Approval of Attorneys' Fees As Part of Class Action Settlement, 421 Declaration in Support, 418 Declaration in Support, 419 Declaration in Support, 424 Declaration in Support, 420 Declaration in Support, 423 Declaration in Support, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Zirker, Elizabeth) (Filed on 12/15/2011) Modified on 12/16/2011 (jlm, COURT STAFF). (Entered: 12/15/2011)
427 CERTIFICATE OF SERVICE, filed by Stephen R. Focosi (Attachments: # 1 Envelope)(jlm, COURT STAFF) (Filed on 12/22/2011) (Entered: 12/29/2011)
426 Statement of Non−Opposition to 416 Motion for Approval of Attorneys' Fees As Part of Class Action Settlement, filed by Department of Health Care Services, Toby Douglas. (Sondheimer, Joshua) (Filed on 12/23/2011) Modified on 12/27/2011 (jlm, COURT STAFF). (Entered: 12/23/2011)
428 Letter dated 12/20/2011 from Joseph DeCarlo re Settlement. (kc, COURT STAFF) (Filed on 12/23/2011) (Entered: 12/30/2011)
429 Letter dated 12/21/2011 from Gloria Alvis re Settlement. (Attachments: # 1 Envelope)(kc, COURT STAFF) (Filed on 12/27/2011) (Entered: 12/30/2011)
430 Letter dated 12/27/2011 from Barbara Bonneau re Settlement. (Attachments: # 1 Envelope)(kc, COURT STAFF) (Filed on 12/28/2011) (Entered: 12/30/2011)
431 Letter dated 12/27/2011 from Brett Adams re Settlement. (Attachments: # 1 Envelope)(kc, COURT STAFF) (Filed on 12/29/2011) (Entered: 12/30/2011)
432 Statement: Comments of the United States of America in Support of Approval of the Proposed Settlement Agreement, filed by United States of America. (Deiss, Ila) (Filed on 1/10/2012) Modified on 1/11/2012 (jlm, COURT STAFF). (Entered: 01/10/2012)

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 58 of 73

01/11/2012
01/12/2012 01/13/2012 01/17/2012
01/17/2012 01/17/2012
01/17/2012 01/17/2012
01/20/2012 01/23/2012

433 CLERKS NOTICE RE CLASS LETTERS (Attachments: # 1 Class Letters: Part 1 of 14, # 2 Class Letters: Part 2 of 14, # 3 Class Letters: Part 3 of 14, # 4 Class Letters: Part 4 of 14, # 5 Class Letters: Part 5 of 14, # 6 Class Letters: Part 6 of 14, # 7 Class Letters: Part 7 of 14, # 8 Class Letters: Part 8 of 14, # 9 Class Letters: Part 9 of 14, # 10 Class Letters: Part 10 of 14, # 11 Class Letters: Part 11 of 14, # 12 Class Letters: Part 12 of 14, # 13 Class Letters: Part 13 of 14, # 14 Class Letters: Part 14 of 14) (jlm, COURT STAFF) (Filed on 1/11/2012) (Entered: 01/11/2012)
434 CLERKS NOTICE RE CLASS LETTERS (Attachments: # 1 Class Letters Received 1/12/12) (jlm, COURT STAFF) (Filed on 1/12/2012) (Entered: 01/12/2012)
435 CLERKS NOTICE RE CLASS LETTERS (Attachments: # 1 Class Letters Received 1/13/12) (jlm, COURT STAFF) (Filed on 1/13/2012) (Entered: 01/13/2012)
436 Joint MOTION for Final Approval of Class Action Settlement Agreement and Certification of Settlement Class, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard, Department of Health Care Services, Toby Douglas. Motion Hearing set for 1/24/2012 01:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Saundra Brown Armstrong. Responses due by 1/31/2012. Replies due by 2/7/2012. (Gershon, Elissa) (Filed on 1/17/2012) Modified on 1/18/2012 (jlm, COURT STAFF). (Entered: 01/17/2012)
437 Proposed Order re 436 Joint Motion for Final Approval of Class Action Settlement Agreement and Certification of Settlement Class, by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 1/17/2012) Modified on 1/18/2012 (jlm, COURT STAFF). (Entered: 01/17/2012)
438 STIPULATION AND JUDGMENT: Pursuant to Class Action Settlement Agreement re 436 Joint Motion for Final Approval of Class Action Settlement Agreement and Certification of Settlement Class, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard, Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A to Proposed Stipulated Judgment)(Gershon, Elissa) (Filed on 1/17/2012) Modified on 1/18/2012 (jlm, COURT STAFF). (Entered: 01/17/2012)
439 RESPONSE to Objection re 436 Joint Motion for Final Approval of Class Action Settlement Agreement and Certification of Settlement Class, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard, Department of Health Care Services, Toby Douglas. (Gershon, Elissa) (Filed on 1/17/2012) Modified on 1/18/2012 (jlm, COURT STAFF). (Entered: 01/17/2012)
440 Declaration of Elizabeth Zirker in Support of 436 Joint Motion for Final Approval of Class Action Settlement Agreement and Certification of Settlement Class, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A−1 to Zirker Declaration, # 2 Exhibit A−2 to Zirker Declaration, # 3 Exhibit A−3−1 to Zirker Declaration, # 4 Exhibit A−3−2 to Zirker Declaration, # 5 Exhibit B to Zirker Declaration)(Related document(s) 436 ) (Zirker, Elizabeth) (Filed on 1/17/2012) Modified on 1/18/2012 (jlm, COURT STAFF). (Entered: 01/17/2012)
441 CLERKS NOTICE RE CLASS LETTERS (Attachments: # 1 Class Letters Received 1/17/12) (jlm, COURT STAFF) (Filed on 1/20/2012) (Entered: 01/20/2012)
442 Supplemental RESPONSE to Objections to 436 Joint Motion for Final Approval of Class Action Settlement Agreement and Certification of Settlement Class, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova,

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 59 of 73

01/24/2012
01/25/2012 03/09/2012 03/21/2012 03/22/2012 03/22/2012
03/22/2012 03/22/2012 03/22/2012

Allie Jo Woodard. (Attachments: # 1 Declaration Gershon, # 2 Exhibit A to Gershon Declaration)(Gershon, Elissa) (Filed on 1/23/2012) Modified on 1/24/2012 (jlm, COURT STAFF). (Entered: 01/23/2012)
443 Minute Entry: Motion Hearing held on 1/24/2012 before JUDGE ARMSTRONG (Date Filed: 1/24/2012) re 436 Joint MOTION for Settlement Final Approval of Class Action Settlement Agreement and Certification of Settlement Class filed by Allie Jo Woodard, Linda Gaspard−Berry, Department of Health Care Services, Rozene Dilworth, Jessie Jones, Esther Darling, Toby Douglas, Raif Nasyrova, Dennis Arnett, Sofia Nasyrova, Gilda Garcia, Wendy Helfrich, 416 MOTION for Approval of Attorneys' Fees As Part of Class Action Settlement filed by Allie Jo Woodard, Linda Gaspard−Berry, Rozene Dilworth, Jessie Jones, Esther Darling, Raif Nasyrova, Dennis Arnett, Sofia Nasyrova, Gilda Garcia, Wendy Helfrich. (Court Reporter RAYNEE MERCADO.) (lrc, COURT STAFF) (Date Filed: 1/24/2012) (Entered: 01/24/2012)
444 STIPULATED JUDGMENT. Signed by Judge ARMSTRONG on 1/24/12. (lrc, COURT STAFF) (Filed on 1/25/2012) (Entered: 01/25/2012)
445 ORDER REFERRING CASE to Magistrate Judge Nathanial Cousins for Report and Recommendation. Signed by Judge Saundra Brown Armstrong, on 3/9/12. (lrc, COURT STAFF) (Filed on 3/9/2012) Modified on 3/12/2012 (jlm, COURT STAFF). (Entered: 03/09/2012)
446 STIPULATION WITH PROPOSED ORDER Shortening Time, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard, Department of Health Care Services, Toby Douglas. (Gershon, Elissa) (Filed on 3/21/2012) Modified on 3/22/2012 (jlm, COURT STAFF). (Entered: 03/21/2012)
447 ORDER by Magistrate Judge Jacqueline Scott Corley granting 446 Stipulation Shortening Time (ahm, COURT STAFF) (Filed on 3/22/2012) (Entered: 03/22/2012)
448 MOTION to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. Motion Hearing set for 3/29/2012 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Responses due by 3/26/2012. Replies due by 3/27/2012. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion for Enforcement of Stipulated Judgment and Civil Contempt Sanctions)(Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
449 Declaration of Sarah Chan in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration of Chan, # 2 Exhibit B to Declaration of Chan)(Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
450 Declaration of Daly Chin in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
451 Declaration of Elissa Gershon in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Gershon Declaration, # 2 Exhibit B to Gershon Declaration, # 3 Exhibit C to Gershon Declaration, # 4 Exhibit D to Gershon Declaration, # 5 Exhibit E to Gershon Declaration, # 6 Exhibit F to Gershon Declaration, # 7 Exhibit G to Gershon Declaration, # 8 Exhibit H to Gershon Declaration, # 9 Exhibit I to

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 60 of 73

03/22/2012 03/22/2012 03/22/2012 03/22/2012 03/22/2012 03/22/2012 03/22/2012 03/22/2012 03/26/2012

Gershon Declaration, # 10 Exhibit J to Gershon Declaration)(Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
452 Declaration of Michael Nolan Grimes in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Grimes Declaration, # 2 Exhibit B to Grimes Declaration)(Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
453 Declaration of Sheila Hembury in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Hembury Declaration, # 2 Exhibit B to Hembury Declaration)(Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). Modified on 3/26/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
454 Declaration of Corinne Jan in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Jan Declaration, # 2 Exhibit B to Jan Declaration, # 3 Exhibit C to Jan Declaration)(Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
455 Declaration of Karina Markosian in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
456 Declaration of Suzanne Pouransari in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
457 Declaration of Diane Puckett in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Puckett Declaration, # 2 Exhibit B to Puckett Declaration)(Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
458 Declaration of Debbie Toth in Support of 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
459 Appendix: Index of Declarations re 448 Motion to Enforce Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 448 ) (Gershon, Elissa) (Filed on 3/22/2012) Modified on 3/23/2012 (jlm, COURT STAFF). (Entered: 03/22/2012)
460 ORDER REFERRING CASE to Magistrate Judge Jacqueline Scott Corley for Report and Recommendation and VACATING 445 Order of Reference. Magistrate Judge Nathanael Cousins shall continue as mediator in this action. Signed by Judge

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03/26/2012 03/26/2012 03/26/2012 03/26/2012 03/26/2012
03/26/2012 03/26/2012 03/26/2012 03/26/2012 03/26/2012 03/26/2012 03/26/2012
03/27/2012

Saundra Brown Armstrong, on 03/21/12. (jlm, COURT STAFF) (Filed on 3/26/2012) (Entered: 03/26/2012)
***ERRONEOUS ENTRY, PLEASE IGNORE***
CASE REFERRED to Mediation. (jlm, COURT STAFF) (Filed on 3/26/2012) Modified on 3/26/2012 (jlm, COURT STAFF). (Entered: 03/26/2012)
CASE REFERRED to Magistrate Judge Nathanael M. Cousins for Settlement (jlm, COURT STAFF) (Filed on 3/26/2012) (Entered: 03/26/2012)
461 Memorandum in Opposition re 448 Motion to Enforce Judgment and for Civil Contempt Sanctions filed by Department of Health Care Services, Toby Douglas. (Carson, Susan) (Filed on 3/26/2012) Modified on 3/28/2012 (jlm, COURT STAFF). (Entered: 03/26/2012)
462 Declaration of Douglas Press in Support of 461 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A−D)(Related document(s) 461 ) (Carson, Susan) (Filed on 3/26/2012) (Entered: 03/26/2012)
463 INCOMPLETE ATTACHMENT. SEE DOCKET ENTRY 470 FOR CORRECTED ENTRY
Declaration of Christine King−Broomfield in Support of 461 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A)(Related document(s) 461 ) (Carson, Susan) (Filed on 3/26/2012) Modified on 3/27/2012 (kc, COURT STAFF). (Entered: 03/26/2012)
464 Declaration of JAVIER PORTELA in Support of 461 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 461 ) (Carson, Susan) (Filed on 3/26/2012) (Entered: 03/26/2012)
465 Declaration of WILLIE ANDERSON in Support of 461 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Related document(s) 461 ) (Carson, Susan) (Filed on 3/26/2012) (Entered: 03/26/2012)
466 Declaration of DAVID TEMME in Support of 461 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Related document(s) 461 ) (Carson, Susan) (Filed on 3/26/2012) (Entered: 03/26/2012)
467 Declaration of DENISE PEACH in Support of 461 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A)(Related document(s) 461 ) (Carson, Susan) (Filed on 3/26/2012) (Entered: 03/26/2012)
468 Declaration of JANE OGLE in Support of 461 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Related document(s) 461 ) (Carson, Susan) (Filed on 3/26/2012) (Entered: 03/26/2012)
469 Declaration of SUSAN M. CARSON in Support of 461 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Related document(s) 461 ) (Carson, Susan) (Filed on 3/26/2012) (Entered: 03/26/2012)
470 [CORRECTED] Declaration of Christine King−Broomfield in Support of 461 OPPOSITION TO PLAINTIFFS MOTION FOR ENFORCEMENT OF STIPULATED JUDGMENT AND FOR CIVIL CONTEMPT SANCTIONS filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Sondheimer, Joshua) (Filed on 3/26/2012) Modified on 3/27/2012 (kc, COURT STAFF). (Entered: 03/26/2012)
471 Declaration of Angela Fazio−Landrum in Support re 448 Motion for Enforcement of Stipulated Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A to Declaration Fazio−Landrum, # 2 Exhibit B to Declaration Fazio−Landrum)(Gershon, Elissa) (Filed on 3/27/2012) Modified on

Case: 4:09-cv-3798 As of: 05/10/2013 07:22 AM PDT 62 of 73

03/27/2012 03/27/2012 03/27/2012 03/27/2012
03/27/2012 03/27/2012 03/28/2012 03/29/2012 03/29/2012 04/03/2012

3/28/2012 (jlm, COURT STAFF). (Entered: 03/27/2012)
472 Declaration of Leslie Hendrickson, Ph.D., in Support re 448 Motion for Enforcement of Stipulated Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 3/27/2012) Modified on 3/28/2012 (jlm, COURT STAFF). Modified on 3/28/2012 (jlm, COURT STAFF). (Entered: 03/27/2012)
473 Declaration of Corinne Jan in Support re 448 Motion for Enforcement of Stipulated Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 3/27/2012) Modified on 3/28/2012 (jlm, COURT STAFF). (Entered: 03/27/2012)
474 Supplemental Declaration of Diane Puckett in Support re 448 Motion for Enforcement of Stipulated Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 3/27/2012) Modified on 3/28/2012 (jlm, COURT STAFF). (Entered: 03/27/2012)
475 Declaration of Benny Wong in Support re 448 Motion for Enforcement of Stipulated Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit A Part One to Wong Declaration, # 2 Exhibit A Part Two to Wong Declaration, # 3 Exhibit A Part Three to Wong Declaration, # 4 Exhibit A Part Four to Wong Declaration, # 5 Exhibit B to Wong Declaration)(Gershon, Elissa) (Filed on 3/27/2012) Modified on 3/28/2012 (jlm, COURT STAFF). (Entered: 03/27/2012)
476 OBJECTIONS to Evidence re 461 Memorandum in Opposition to Plaintiffs' Motion for Enforcement, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 3/27/2012) Modified on 3/28/2012 (jlm, COURT STAFF). (Entered: 03/27/2012)
477 Reply Memorandum re 448 Motion to Enforce Judgment and for Civil Contempt Sanctions filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 3/27/2012) Modified on 3/28/2012 (jlm, COURT STAFF). (Entered: 03/27/2012)
478 MOTION to Strike, filed by Department of Health Care Services, Toby Douglas. Motion Hearing set for 3/29/2012 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Responses due by 4/11/2012. Replies due by 4/18/2012. (Carson, Susan) (Filed on 3/28/2012) Modified on 3/29/2012 (jlm, COURT STAFF). (Entered: 03/28/2012)
479 Minute Entry: Motion Hearing NOT HELD on 3/29/2012 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 3/29/2012) re 448 Motion to Enforce Judgment and for Civil Contempt Sanctions and 478 Motion to Strike. Hearing set for 04/27/12 at 9:00 AM as a holding date (Court Reporter: Kathy Wyatt) (ahm, COURT STAFF) (Date Filed: 3/29/2012) Modified on 3/30/2012 (jlm, COURT STAFF). (Entered: 03/29/2012)
Set/Reset Deadlines as to 478 MOTION to Strike, and 448 MOTION to Enforce Judgment and for Civil Contempt Sanctions. Motion Hearing set for 4/27/2012 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 3/29/2012) (Entered: 03/29/2012)
480 STIPULATION WITH PROPOSED ORDER re Addendum to Settlement Agreement filed by Department of Health Care Services, Toby Douglas, Esther

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04/11/2012 04/16/2012 04/16/2012 04/16/2012 04/17/2012 04/17/2012 04/17/2012 04/18/2012 04/18/2012 04/26/2012
04/26/2012
07/02/2012 09/14/2012

Darling, Gilda Garcia, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Allie Jo Woodard . (Attachments: # 1 Exhibit A)(Carson, Susan) (Filed on 4/3/2012) Modified on 4/4/2012 (jlm, COURT STAFF). (Entered: 04/03/2012)
481 MOTION to Relate Case: C−12−1708−JW, filed by California Primary Care Association, Gardner Family Health Network, Inc., LifeLong Medical Care, Santa Rosa Community Health Centers. (Attachments: # 1 Declaration, # 2 Proposed Order)(Doi, Kathryn) (Filed on 4/11/2012) Modified on 4/12/2012 (jlm, COURT STAFF). (Entered: 04/11/2012)
482 STIPULATION AND ORDER RE ADDENDUM TO SETTLEMENT AGREEMENT. Signed by Judge Saundra Brown Armstrong, on 4/13/12. (lrc, COURT STAFF) (Filed on 4/16/2012) Modified on 4/17/2012 (jlm, COURT STAFF). (Entered: 04/16/2012)
483 NOTICE of Appearance of Nicole A. Diller, Lorraine M. Casto and Karin Krattli Salameh, filed by Absent Class Members (Casto, Lorraine) (Filed on 4/16/2012) Modified on 4/17/2012 (jlm, COURT STAFF). (Entered: 04/16/2012)
484 OBJECTIONS to Stipulation and Proposed Order re Addendum to Class Settlement Agreement, filed by Absent Class Members. (Attachments: # 1 Declaration ISO Objections to Proposed Addendum to Class Settlement Agreement)(Casto, Lorraine) (Filed on 4/16/2012) Modified on 4/17/2012 (jlm, COURT STAFF). (Entered: 04/16/2012)
485 NOTICE of Appearance of Rocky C. Tsai, Thad A. Davis and Alice M. Ho, filed by Absent Class Members (Tsai, Rocky) (Filed on 4/17/2012) Modified on 4/18/2012 (jlm, COURT STAFF). (Entered: 04/17/2012)
486 Joinder re 484 Objection, filed by Absent Class Members. (Tsai, Rocky) (Filed on 4/17/2012) Modified on 4/18/2012 (jlm, COURT STAFF). (Entered: 04/17/2012)
487 CLERKS NOTICE RE MOTION TO RELATE CASES (lrc, COURT STAFF) (Filed on 4/17/2012) (Entered: 04/17/2012)
488 NOTICE OF APPEARANCE of Michael Keys and Robert Capistrano, filed by Absent Class Members. (Capistrano, Robert) (Filed on 4/18/2012) Modified on 4/19/2012 (jlm, COURT STAFF). (Entered: 04/18/2012)
489 JOINDER to Stipulation re Addendum to Settlement Agreement, filed by Absent Class Members. (Capistrano, Robert) (Filed on 4/18/2012) Modified on 4/19/2012 (jlm, COURT STAFF). (Entered: 04/18/2012)
490 *** FILED IN ERROR. REFER TO DOCUMENT 491 . *** MOTION to Withdraw Motion for Enforcement of Stipulated Judgment and for Civil Contempt Standards filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. Motion Hearing set for 4/27/2012 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Responses due by 3/26/2012. Replies due by 3/27/2012. (Zirker, Elizabeth) (Filed on 4/26/2012) Modified on 4/26/2012 (fff, COURT STAFF). (Entered: 04/26/2012)
491 NOTICE of Withdrawal of 448 Motion for Enforcement of Stipulated Judgment and for Civil Contempt Sanctions, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 4/26/2012) Modified on 4/27/2012 (jlm, COURT STAFF). Modified on 4/27/2012 (jlm, COURT STAFF). (Entered: 04/26/2012)
492 MANDATE of USCA: That the appeal is dismissed pursuant to FRAP 42(b); 9th Cir. R.27−9.1, as to 181 Notice of Appeal, filed by Department of Health Care Services, David Maxwell−Jolly (jlm, COURT STAFF) (Filed on 7/2/2012) (Entered: 07/05/2012)
493 MOTION to Shorten Time re Motion for Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif

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09/14/2012
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Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/14/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/14/2012)
494 Declaration of Elissa Gershon in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Esther Darling, Rozene Dilworth, Gilda Garcia, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exh A to Gershon Dec, # 2 Exhibit Exh B to Gershon Dec, # 3 Exhibit Exh C to Gershon Dec, # 4 Exhibit Exh D to Gershon Dec, # 5 Exhibit Exh E to Gershon Dec, # 6 Exhibit Exh F to Gershon Dec, # 7 Exhibit Exh G to Gershon Dec, # 8 Exhibit Exh H to Gershon Dec, # 9 Exhibit Exh I to Gershon Dec, # 10 Exhibit Exh J to Gershon Dec, # 11 Exhibit Exh K to Gershon Dec, # 12 Exhibit Exh L to Gershon Dec, # 13 Exhibit Exh M to Gershon Dec, # 14 Exhibit Exh N to Gershon Dec)(Related document(s) 493 ) (Gershon, Elissa) (Filed on 9/14/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/14/2012)
495 Proposed Order re 493 Motion to Shorten Time on Motion for Enforcement of Stipulated Judgment and for Appointment of Special Master, by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/14/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/14/2012)
496 Declaration of Sheri Anselmi in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/14/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/14/2012)
497 Declaration of Judy Canterbury in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Canterbury Dec − Exh A)(Gershon, Elissa) (Filed on 9/14/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
523 Minute Entry: Telephonic Settlement Conference held on 9/14/2012 with Judge Cousins. Further Settlement Conference set for 9/19/2012 11:30 AM in Judge Cousins' Chambers. This is a text−ony entry. There is no document associated with this notice. (lmh, COURT STAFF) (Date Filed: 9/14/2012) (Entered: 09/17/2012)
498 Declaration of Sarah Chan in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Chan Dec Exh A, # 2 Exhibit Chan Dec Exh B, # 3 Exhibit Chan Dec Exh C)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
499 Declaration of Joanne Conzelmann in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
500 Declaration of Alex Eychis in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
501 Declaration of Angela Fazio−Landrum in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett,

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Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Fazio−Landrum Exh A, # 2 Exhibit Fazio−Landrum Exh B, # 3 Exhibit Fazio−Landrum Exh C, # 4 Exhibit Fazio−Landrum Exh D, # 5 Exhibit Fazio−Landrum Exh E)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
502 Declaration of Rochelle Harris in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
503 Declaration of Sheila Hembury in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Hembury Dec Exh A, # 2 Exhibit Hembury Dec Exh B)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
504 Declaration of Leslie Hendrickson, Ph.D., in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Hendrickson Dec Exh A)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
505 Declaration of Corinne Jan in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Jan Dec Exh A, # 2 Exhibit Jan Dec Exh B, # 3 Exhibit Jan Dec Exh C, # 4 Exhibit Jan Dec Exh D)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
506 Declaration of Becky Kim in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
507 Declaration of Oleg Kinder in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
508 Declaration of William Leiner in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Leiner Dec Exh A, # 2 Exhibit Leiner Dec Exh B)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
509 Declaration of Natalie Liberman in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Liberman Dec Exh A, # 2 Exhibit Liberman Dec Exh

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B)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
510 Declaration of Alla Lisitsa in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
511 Declaration of Lydia Missaelides in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Missaelides Dec Exh A, # 2 Exhibit Missaelides Dec Exh B, # 3 Exhibit Missaelides Dec Exh C, # 4 Exhibit Missaelides Dec Exh D, # 5 Exhibit Missaelides Dec Exh E)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
512 Declaration of Anu Mohan in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Errata Mohan Dec Exh A)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
513 Declaration of Armine Oroudjian in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Oroudjian Dec Exh A)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
514 Declaration of Michael Pope in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
515 Declaration of Manooch Pouransari in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
516 Declaration of Diane Puckett in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Puckett Dec Exh A, # 2 Exhibit Puckett Dec Exh B, # 3 Exhibit Puckett Dec Exh C, # 4 Exhibit Puckett Dec Exh D, # 5 Exhibit Puckett Dec Exh E, # 6 Exhibit Puckett Dec Exh F)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
517 Declaration of Christine Sarch in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Sarch Dec Exh A, # 2 Exhibit Sarch Dec Exh B)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
518 Declaration of Kathryn Stambaugh in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry,

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Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
519 Declaration of Moli Steinert in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Steinert Dec Exh A)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
520 Declaration of Debbie Toth in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Toth Dec Exh A, # 2 Exhibit Toth Dec Exh B)(Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
521 Appendix: Index of Declarations in Support of Motion For Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
522 MOTION to Enforce Judgment and for Appointment of Special Master and PAin Support, filed by Esther Darling, Gilda Garcia, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Allie Jo Woodard. Motion Hearing set for 9/17/2012 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Responses due by 10/1/2012. Replies due by 10/9/2012. (Gershon, Elissa) (Filed on 9/15/2012) Modified on 9/17/2012 (jlm, COURT STAFF). (Entered: 09/15/2012)
524 Proposed Order re 522 Motion to Enforce Judgment and for Appointment of Special Master and PAin Support, by Dennis Arnett, Esther Darling, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 9/17/2012) Modified on 9/18/2012 (jlm, COURT STAFF). (Entered: 09/17/2012)
525 Memorandum in Opposition re 493 Motion to Shorten Time re Motion for Enforcement of Stipulated Judgment and for Appointment of Special Master, filed by Department of Health Care Services, Toby Douglas, David Maxwell−Jolly. (Attachments: # 1 Declaration Declaration of Douglas Press in Support of Defendants' Opposition to Plaintiffs' Motion to Shorten Time on Plaintiffs' Motion for Enforcement of Stipulated Judgment and for Appointment of Special Master, # 2 Exhibit)(Carson, Susan) (Filed on 9/19/2012) Modified on 9/20/2012 (jlm, COURT STAFF). (Entered: 09/19/2012)
526 CERTIFICATE OF SERVICE re Memorandum in Opposition, Declaration of Douglas Press in Support Thereof and Exhibit A, filed by Department of Health Care Services, Toby Douglas, David Maxwell−Jolly (Carson, Susan) (Filed on 9/19/2012) Modified on 9/20/2012 (jlm, COURT STAFF). (Entered: 09/19/2012)
527 ORDER RE: MEET AND CONFER ON PLAINTIFFS MOTION TO ENFORCE JUDGMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 9/20/2012. (ahm, COURT STAFF) (Filed on 9/20/2012) (Entered: 09/20/2012)
528 Letter to Magistrate Judge Jacqueline Scott Corely re Meet and Confer Update, from Elissa Gershon. (Gershon, Elissa) (Filed on 9/25/2012) Modified on 9/26/2012 (jlm, COURT STAFF). (Entered: 09/25/2012)
529 Letter to Magistrate Judge Jacqueline Scott Corley re Court's Order of 09/20/12, from Elissa Gershon, dated 10/11/12. (Gershon, Elissa) (Filed on 10/11/2012) Modified on 10/12/2012 (jlm, COURT STAFF). (Entered: 10/11/2012)
530 Letter to Magistrate Judge Jacqueline Scott Corley re Defendants' Opposition to Plaintiffs' Request to have Motion to Enforce Stipulated Judgment heard on

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10/17/2012
10/29/2012 10/29/2012 10/29/2012 10/29/2012 10/29/2012 10/29/2012
10/29/2012 10/31/2012
11/02/2012 11/02/2012

Shorten Time, from Susan M. Carson, dated 10/16/12. (Carson, Susan) (Filed on 10/16/2012) Modified on 10/17/2012 (jlm, COURT STAFF). (Entered: 10/16/2012)
531 ORDER RE PLAINTIFFS' OCTOBER 11, 2012 LETTER. Set/Reset Deadlines as to 522 MOTION to Enforce Judgment and for Appointment of Special Master. Responses due by 10/29/2012. Replies due by 11/2/2012. Motion Hearing set for 11/8/2012 at 9:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Signed by Judge Jacqueline Scott Corley on October 17, 2012. (wsn, COURT STAFF) (Filed on 10/17/2012) Modified on 10/17/2012 (wsn, COURT STAFF). (Entered: 10/17/2012)
532 Memorandum in Opposition re 522 Motion to Enforce Judgment and for Appointment of Special Master, filed by Department of Health Care Services, Toby Douglas. (Carson, Susan) (Filed on 10/29/2012) Modified on 10/30/2012 (jlm, COURT STAFF). (Entered: 10/29/2012)
533 Declaration of DEBRA FERRERIA in Support of 532 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Related document(s) 532 ) (Carson, Susan) (Filed on 10/29/2012) (Entered: 10/29/2012)
534 Declaration of JAVIER PORTELA in Support of 532 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Related document(s) 532 ) (Carson, Susan) (Filed on 10/29/2012) (Entered: 10/29/2012)
535 Declaration of CHARLES DECUIR in Support of 532 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Related document(s) 532 ) (Carson, Susan) (Filed on 10/29/2012) (Entered: 10/29/2012)
536 Declaration of DENISE PEACH in Support of 532 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 532 ) (Carson, Susan) (Filed on 10/29/2012) (Entered: 10/29/2012)
537 Declaration of DOUGLAS PRESS in Support of 532 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Related document(s) 532 ) (Carson, Susan) (Filed on 10/29/2012) (Entered: 10/29/2012)
538 Declaration of JANE OGLE in Support of 532 Opposition/Response to Motion, filed byDepartment of Health Care Services, Toby Douglas. (Related document(s) 532 ) (Carson, Susan) (Filed on 10/29/2012) (Entered: 10/29/2012)
539 Declaration of Douglas Press in Support of 532 Memorandum in Opposition to Motion to Enforce Stipulated Judgment and Appointment of Special Master filed by Department of Health Care Services, Toby Douglas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Related document(s) 532 ) (Carson, Susan) (Filed on 10/31/2012) Modified on 11/1/2012 (jlm, COURT STAFF). (Entered: 10/31/2012)
540 Request for Judicial Notice of Precendential CBAS Decision filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
541 Declaration of Elissa Gershon in Support of 540 Request for Judicial Notice, Precendential CBAS Decision filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Ex. A to Gershon Decl. ISO RJN, # 2 Exhibit Ex. B to Gershon Decl. ISO RJN)(Related document(s) 540 ) (Gershon, Elissa) (Filed on 11/2/2012) (Entered: 11/02/2012)

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542 OBJECTIONS to EVIDENCE FILED BY DEFENDANTS IN SUPPORT OF 532 OPPOSITION TO PLAINTIFFS MOTION FOR ENFORCEMENT OF STIPULATED JUDGMENT AND FOR APPOINTMENT OF SPECIAL MASTER by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
543 Supplemental Declaration of Sheri Anselmi ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Ex. A to Supplemental Declaration of Sheri Anselmi, # 2 Exhibit Ex. B to Supplemental Declaration of Sheri Anselmi)(Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
544 Declaration of Esfandiar Asbagh ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Ex. A to Declaration of Esfandiar Asbagh)(Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
545 Declaration of Reynaldo Baculanta ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
546 Declaration of Ruth Hilda Baculanta ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
547 Declaration of Lorraine Casto ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Ex. A to Declaration of Lorraine Casto, # 2 Exhibit Ex. B to Declaration of Lorraine Casto, # 3 Exhibit Ex. C to Declaration of Lorraine Casto)(Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
548 Supplemental Declaration of Sarah Chan ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
549 Declaration of Constance Dinsmore ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
550 Declaration of David Emanuelson ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
551 Supplemental Declaration of Alex Eychis ISO 522 Motion for Enforcement of Stipulated Judgment filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)

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11/02/2012 11/02/2012 11/02/2012 11/02/2012 11/02/2012

552 Declaration of Simona Galynsky ISO 522 Motion for Enforcement of Stipulated Judgment filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
553 Supplemental Declaration of Elissa Gershon ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Ex. A to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 2 Exhibit Ex. B to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 3 Exhibit Ex. C to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 4 Exhibit Ex. D to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 5 Exhibit Ex. E to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 6 Exhibit Ex. F to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 7 Exhibit Ex. G to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 8 Exhibit Ex. H to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 9 Exhibit Ex. I to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 10 Exhibit Ex. J to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment, # 11 Exhibit Ex. K to Supplemental Declaration of Elissa Gershon ISO Plaintiffs' Motion for Enforcement of Stipulated Judgment)(Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
554 Declaration of Robert Gough ISO 522 Motion for Enforcement of Stipulated Judgment filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Ex. A to Declaration of Robert Gough)(Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
555 REPLY (re 522 MOTION to Enforce Judgment and for Appointment of Special Master ) filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) (Entered: 11/02/2012)
556 Declaration of Emilia Gurevich in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
557 Supplemental Declaration of Leslie Hendrickson, Ph.D. in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Hendrickson Supp. Dec)(Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
558 Declaration of Marion Hicks in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)

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11/02/2012

559 Declaration of Kathryn Holt in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
560 Supplemental Declaration of Corinne Jan in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
561 Declaration of Valentia Krugliak in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed byDennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
562 Declaration of Suge Lee in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Suge Lee, # 2 Exhibit Exhibit B to Declaration of Suge Lee)(Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
563 Supplemental Declaration of Natalie Liberman in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
564 Supplemental Declaration of Anu Mohan in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
565 Declaration of Michael Praus in Support of 522 Reply MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
566 Declaration of Kevin Prindiville in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Kevin Prindiville, # 2 Exhibit Exhibit B to Declaration of Kevin Prindiville, # 3 Exhibit Exhibit C to Declaration of Kevin Prindiville, # 4 Exhibit Exhibit D to Declaration of Kevin Prindiville)(Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
567 Declaration of Michael Pryor in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)

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568 Declaration of Inna Sark in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
569 Declaration of Mahboubeh Sefidi in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Mahboubeh Sefidi, # 2 Exhibit Exhibit B to Declaration of Mahboubeh Sefidi)(Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
570 Declaration of Menella Spivak in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Attachments: # 1 Exhibit Exhibit A to Declaration of Menella Spivak, # 2 Exhibit Exhibit B to Declaration of Menella Spivak)(Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
571 Supplemental Declaration of Kathryn Stambaugh in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
572 Declaration of Bela Starobinets in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
573 Declaration of Bella Svridiuk in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
574 Declaration of Leonid Tselner in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
575 Index of Declarations in Support of 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Dennis Arnett, Esther Darling, Rozene Dilworth, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Related document(s) 522 ) (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
576 Revised Proposed Order re 522 MOTION to Enforce Judgment and for Appointment of Special Master by Dennis Arnett, Esther Darling, Rozene Dilworth, Gilda Garcia, Linda Gaspard−Berry, Wendy Helfrich, Jessie Jones, Raif Nasyrova, Sofia Nasyrova, Allie Jo Woodard. (Gershon, Elissa) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)
577 OBJECTIONS to 553 Supplemental Declaration of Elissa Gershon in Support of Motion to Enforce Stipulated Judgment, filed by Department of Health Care Services, Toby Douglas. (Carson, Susan) (Filed on 11/7/2012) Modified on 11/8/2012 (jlm, COURT STAFF). Modified on 11/8/2012 (jlm, COURT STAFF).

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11/08/2012
11/13/2012 11/14/2012 11/16/2012 11/16/2012 11/20/2012
11/26/2012 03/08/2013 03/08/2013

(Entered: 11/07/2012)
578 Minute Entry: Motion Hearing held on 11/8/2012 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 11/8/2012) re 522 MOTION to Enforce Judgment and for Appointment of Special Master filed by Allie Jo Woodard, Jessie Jones, Esther Darling, Raif Nasyrova, Gilda Garcia, Wendy Helfrich. (Court Reporter Belle Ball.) (wsn, COURT STAFF) (Date Filed: 11/8/2012) (Entered: 11/08/2012)
579 Letter re 11−8−12 Hearing Follow Up, from Elissa Gershon, dated 11/13/12. (Gershon, Elissa) (Filed on 11/13/2012) Modified on 11/14/2012 (jlm, COURT STAFF). (Entered: 11/13/2012)
580 Supplemental Declaration of Jane Ogle in Support of 532 Memorandum in Opposition filed by Department of Health Care Services, Toby Douglas, David Maxwell−Jolly. (Related document(s) 532 ) (Carson, Susan) (Filed on 11/14/2012) Modified on 11/15/2012 (jlm, COURT STAFF). Modified on 11/15/2012 (jlm, COURT STAFF). (Entered: 11/14/2012)
581 Letter to Magistrate Judge Jacqueline Scott Corley re Response to Plaintiff's Letter, dated 11/13/12, from Susan M. Carson, dated 11/16/12 (with Proof of Service attached). (Carson, Susan) (Filed on 11/16/2012) Modified on 11/19/2012 (jlm, COURT STAFF). (Entered: 11/16/2012)
582 Letter to Magistrate Judge Jacqueline Scott Corley Re Response to Ogle Supplemental Declaration, from Elissa Gershon, dated 11/16/12. (Gershon, Elissa) (Filed on 11/16/2012) Modified on 11/19/2012 (jlm, COURT STAFF). (Entered: 11/16/2012)
583 REPORT AND RECOMMENDATION RE PLAINTIFFS' MOTION FOR ENFORCEMENT OF STIPULATED JUDGMENT AND FOR APPOINTMENT OF SPECIAL MASTER re 522 MOTION to Enforce Judgment and for Appointment of Special Master. Signed by Judge Jacqueline Scott Corley on November 20, 2012. (wsn, COURT STAFF) (Filed on 11/20/2012) (Entered: 11/20/2012)
584 ORDER RE NOVEMBER 23, 2012 REPORT AND RECOMMENDATION re 583 REPORT AND RECOMMENDATION. Signed by Judge Jacqueline Scott Corley on November 26, 2012. (wsn, COURT STAFF) (Filed on 11/26/2012) (Entered: 11/26/2012)
585 ORDER by Judge ARMSTRONG denying 522 Motion to Enforce Judgment; adopting Report and Recommendations as to 583 Report and Recommendations. (lrc, COURT STAFF) (Filed on 3/8/2013) (Entered: 03/08/2013)
586 NOTICE to Remove Attorney From Receiving E−Mail Notifications, filed by California Primary Care Association, Gardner Family Health Network, Inc., LifeLong Medical Care, Santa Rosa Community Health Centers (Doi, Kathryn) (Filed on 3/8/2013) Modified on 3/11/2013 (jlm, COURT STAFF). (Entered: 03/08/2013)

 
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FOR IMMEDIATE RELEASE
Disability Rights California: Elizabeth Zirker 510.267.1200 AARP Foundation Litigation: Barbara Jones 626.585.2628 National Senior Citizens Law Center: Anna Rich 510.663.1055 National Health Law Program: Sarah Somers 919.968.6771 ext. 103

Judge Halts Cuts to Adult Day Health Care (ADHC): Victory for 8000 elderly Californians with disabilities
OAKLAND, September 11—“I am so happy and grateful to Judge [Saundra Brown] Armstrong… this means the world to my aunt and me,” cried Chauncey McLorin, when she heard on Thursday afternoon that her aunt, Lillie Brantley, 84, can continue to attend her Adult Day Health Care program Mondays through Fridays. The September 10 order of the U.S. District Court for the Northern District of California granted an injunction bringing to a halt the ADHC funding cuts slated to take effect this week.
The motion was brought as a class action case on behalf of Californians who are elderly and have disabilities (Brantley, et al v. Maxwell-Jolly, Director, California Department of Health Care Services, et al.) by attorneys with Disability Rights California, AARP Foundation Litigation, the National Senior Citizens Law Center, and supported by the National Health Law Program.
Adult Day Health Care provides skilled nursing, personal care, social services, therapy, and nutritional counseling.

The injunction states that reducing these services from a maximum of 5 to no more than 3 days per week will increase the likelihood of nursing home placement and hospitalization of the 8000 program participants attending four and five days per week. These people have complex medical needs which are being met only through ADHC.
“This is a huge victory for the thousands and thousands of frail and elderly Californians who had been told that their therapy and specialized services were being cut this week,” noted Sarah Somers of the National Health Law Program.
“We applaud this ruling recognizing that these Californians with disabilities could suffer irreparable harm from the reduction of critical services,” said Attorney Elizabeth Zirker of Disability Rights California.
Barbara Jones of AARP Foundation Litigation continued, “The judge also noted that the defendants had taken a… cavalier approach to ensuring continuing compliance with the Americans with Disabilities Act and the Rehabilitation Act… … Defendants have failed to ensure that there are any measures in place so that the transition from ADHC service to alternatives services is seamless.”
Anna Rich of National Senior Citizens Law Center stated that “this critical program serves over 37,000 Californians facing significant disabilities resulting from conditions such as Alzheimers’ disease, unstable diabetes and post-stroke, and keeps frail seniors and younger disabled individuals at home and with their families.”
More details are posted on the following website: www.DisabilityRightsCa.org