Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 1 of 24

1 Debra Marley, State Bar No. 204842 Maria Iriarte, State Bar No. 150704
2 DISABILITY RIGHTS CALIFORNIA 1111 Sixth Avenue, Suite 200
3 San Diego, CA 92101 Telephone: (619) 239-7861
4 FAX: (619) 239-7906 debra.marley@disabilityrightsca.org
5 maria.iriarte@disabilityrightsca.org

6 Attorneys for Plaintiff PABLO CARRANZA (continued on following page)
7

8

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA 9

10 PABLO CARRANZA,

) Case No.:

)

11

Plaintiff,

)

v. 12

) ) COMPLAINT FOR INJUNCTIVE AND

TOBY DOUGLAS, Director of the

) DECLARATORY RELIEF

13 Department of Health Care Services, State of )

California DEPARTMENT OF HEALTH )

14 CARE SERVICES,

)

)

15

Defendants.

)

)

16

)

)

17

)

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19 ///
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27 ///
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i Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 2 of 24
1 Melinda Bird, State Bar No. 102236 Jackie Coleman, State Bar No. 105570
2 DISABILITY RIGHTS CALIFORNIA 1831 K Street
3 Sacramento, CA 95811 Telephone: (916) 504-5800
4 FAX: (916) 504-5802 melinda.bird@disabilityrightsca.org
5 jackie.coleman@disabilityrightsca.org 6 Robert D. Newman, State Bar No. 86534
Mona Tawatao, State Bar No. 128779 7 Western Center on Law & Poverty
3701 Wilshire Street, Suite 208 8 Los Angeles, California 90010
Phone No. (213) 487-7211 9 Fax No. (213) 487-0242
rnewman@wclp.org 10 mtawatao@wclp.org 11 Attorneys for Plaintiff PABLO CARRANZA 12
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1

I. INTRODUCTION

2

1. This civil rights action seeks declaratory and injunctive relief to prevent the

3 devastating reduction in Medi-Cal funded in-home nursing care to Plaintiff Pablo Carranza. This

4 young man has Muscular Dystrophy, a severe and progressive disease that has left him unable even

5 to breathe or swallow on his own. Pursuant to his doctor’s orders, he needs constant skilled

6 nursing care to monitor his ventilator, feeding tube and oxygen levels, to clear fluids from his lungs

7 and tracheotomy tube, to transfer him from bed to wheelchair and back, and to bathe and reposition

8 him. While this kind of twenty-four hour care is often provided in a hospital or Subacute medical

9 care facility, Pablo has been able to remain at home with his family. If the Medi-Cal program

10 reduces Pablo’s in-home nursing care as planned, he will be placed at risk of unnecessary

11 institutionalization, and separated from his family and community. Due to his fragile medical

12 condition, placement in an institution is also likely to result in dire health consequences and even

13 death.

14

2. Until he turned age 21, Pablo was authorized to receive, and did receive, 615 hours

15 per month of Medi-Cal funded, one-to-one nursing care in his home. This was based on Medi-

16 Cal’s determination that he would otherwise be placed in a Pediatric Subacute medical facility.

17 The cost of his care was $230,000 per year, which is far less than the amount Medi-Cal would 18 actually pay for institutional placement for an individual with Pablo’s care needs. On Pablo’s 21st

19 birthday - September 17, 2012 - Defendant Department of Health Care Services and its Director,

20 Toby Douglas (collectively “DHCS” or “Defendants”), reduced the authorization for his in-home

21 nursing by more than 200 hours per month, even though his condition has not improved. The sole

22 reason for this drastic and life-threatening reduction in Plaintiff’s in-home nursing care is that

23 Defendants have placed arbitrary cost limitations on the home care services available to adults

24 versus those for children. Specifically, Defendants capped the cost of in-home nursing care for

25 adults such as Pablo at $180,000 per year, which is at least $90,000 below the actual cost of

26 equivalent care in an Adult Subacute facility, and also significantly below the cost that Medi-Cal 27 provided for his care prior to his 21st birthday.

28

3. Defendants have the discretion and the ability to modify State Medi-Cal rules to

1
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1 increase the arbitrary cap on Plaintiff’s in-home nursing care to enable him to receive the skilled

2 nursing care he needs, and that is ordered by his doctors. They have refused to do so.

3

4. So far, Defendants have not cut Plaintiff’s in-home nursing care but may do so at

4 any time after December 16, 2012, when his current authorization from Medi-Cal expires. Plaintiff

5 obtained a delay in the planned reduction in his nursing via an administrative appeal, but because

6 Defendant Douglas has the authority to set aside any administrative decision and substitute his own

7 decision, this process offers Plaintiff no protection after December 16, 2012, when his current

8 Medi-Cal authorization for in-home nursing services ends.

9

5. Defendants’ actions violate the Americans with Disabilities Act of 1990, 42 U.S.C.

10 § 12312 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section

11 504”). Under the ADA and Section 504, a public agency such as DHCS has a duty to provide

12 services to people with disabilities in the “most integrated setting appropriate to their needs” and

13 avoid unnecessary institutionalization. The most integrated setting for Pablo is to live in the

14 community with his family, as he has for the past 21 years of his life, with adequate in-home

15 nursing to meet his significant needs. Placing him at risk of unnecessary institutionalization in

16 order to receive the care he needs violates the ADA.

17

6. Under the ADA, Defendants also have an obligation to use methods of

18 administration that do not discriminate against individuals with disabilities such as Pablo.

19 Defendants’ failure to ensure a smooth transition to adult services for Pablo and their decision to

20 set funding levels for home care services that are biased in favor of institutional care result in

21 discrimination against Plaintiff in the administration of the Medi-Cal program.

22

7. Defendants’ failure to provide Pablo adequate notice and opportunity for hearing

23 prior to the reduction in his nursing hours also violates the federal constitutional guarantee of

24 procedural due process.

25

II. JURISDICTION

26

8. This is an action for declaratory and injunctive relief for violations of Title II of the

27 Americans With Disabilities Act, 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act of

28 1973, 29 U.S.C. § 794; and the Due Process Clause of the Fourteenth Amendment to the U.S.

2 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

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1 Constitution, 42 U.S.C. § 1983.

2

9. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343. Plaintiff’s claims for

3 declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201 and 2202. At all times

4 relevant to this action, Defendants have acted under color of state law.

5

III. VENUE

6

10. Venue is proper in the Eastern District of California pursuant to 28 U.S.C.

7 § 1391(b), because the Defendants operate and perform their official duties therein and thus reside

8 therein for purposes of venue.

9

IV. PARTIES

10

11. Plaintiff Pablo Carranza is a “qualified person with a disability” within the meaning

11 of all applicable statutes, including 42 U.S.C. §12131(2) and 29 U.S.C. §705(20)(B). Plaintiff is

12 21 years old and has been and continues to be a Medi-Cal beneficiary.

13

12. At a young age, Pablo was diagnosed with Muscular Dystrophy, a disease which

14 causes the muscles of the body to atrophy and which worsens over the lifespan of the individual.

15 Pablo is an intelligent and self-aware young man, but he needs total care for every daily activity.

16 He cannot walk, and cannot move himself or even turn over in bed. He cannot feed himself and

17 has limited use of his hands. He has difficulty speaking.

18

13. Plaintiff is completely dependent on medical technologies for survival. He has a

19 gastrostomy tube (“G-tube”) for feeding and medication administration and uses a tracheal tube for

20 breathing. He is dependent on a ventilator to breathe at all times. Pablo requires one-to-one care by

21 a licensed nurse 24 hours per day.

22

14. Pablo lives with his mother and older brother, Raul (who also has Muscular

23 Dystrophy), in San Diego County, California.

24

15. Defendant California Department of Health Care Services (“DHCS”) administers

25 the California Medicaid program, called “Medi-Cal.” DHCS is the single state agency responsible

26 for supervising the administration of the Medi-Cal program. DHCS’ primary place of business is

27 in Sacramento, within Sacramento County, California.

28

16. Defendant Toby Douglas is DHCS’ current Director and is sued only in his official

3 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

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1 capacity. Director Douglas is responsible for directing, organizing, and administering the Medi-

2 Cal program, including Medi-Cal Home and Community Based Services Waivers, in accordance

3 with all applicable laws and regulations. As such, he is responsible for DHCS’ compliance with

4 state and federal laws governing the Medi-Cal program. Director Douglas’ primary place of

5 business is Sacramento, within Sacramento County, California.

6

V. STATUTORY AND REGULATORY FRAMEWORK

7

A. THE MEDICAID PROGRAM

8

17. Medicaid is a joint federal and state medical assistance program for certain groups

9 of low-income people, including children. 42 U.S.C. §§ 1396-1396v. California has elected to

10 participate in the Medicaid program, and so must comply with the requirements of the federal

11 Medicaid Act and its implementing regulations. California’s Medicaid program is known as

12 “Medi-Cal.”

13

18. The purpose of Medicaid is to furnish, as far as practicable, “medical assistance on

14 behalf of . . . aged, blind or disabled individuals, whose income and resources are insufficient to

15 meet the costs of necessary medical services” and “to help such families and individuals to attain or

16 retain capability for independence or self-care . . . .” 42 U.S.C. § 1396.

17

19. Participating States are reimbursed by the federal government for a portion of the

18 cost of providing Medicaid benefits. See 42 U.S.C. § 1396b. The remaining funding for the Medi-

19 Cal program comes from the State and from counties.

20

20. States participating in Medicaid must designate a “single state agency” to administer

21 or supervise the administration of the Medicaid program. 42 U.S.C. § 1396a(a)(5). DHCS is the

22 single state agency so designated in California.

23

21. The California Medi-Cal program provides an array of medical services, treatments,

24 and therapies that are authorized based on individuals’ meeting “medical necessity” criteria. Welf.

25 & Inst. Code §§ 14059, 14059.5, 14133.3; 22 California Code of Regulations (“C.C.R.”) §

26 51303(a).

27

22. “Private duty nursing services” means services, which are individual and continuous

28 care (in contrast to part-time or intermittent care) provided by a licensed nurse or a certified home

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1 health aide employed by a home health agency within the scope of state law. Private duty nursing

2 services are provided in a recipient’s home, home-like environment or an approved out-of-home

3 setting. 42 U.S.C. 1396d(a)(9); 42 CFR 440.90.

4

23. As required by federal Medicaid law, California provides Medi-Cal coverage for

5 private duty nursing for children under age 21 if medically necessary to treat or ameliorate a

6 condition, illness, or defect. 42 U.S.C. § 1396d(r)(5). For adults over age 21, private duty nursing

7 is provided through Medi-Cal Home and Community Based Waivers, described below.

8 Medi-Cal Home and Community-Based Services Waivers

9

24. The Centers for Medicare and Medicaid (“CMS”) is the federal agency that oversees

10 the administration of the Medicaid programs offered by each state. CMS has the authority to waive

11 certain provisions of federal Medicaid law to allow states to provide home and community-based

12 services (“HCBS”) in lieu of institutional care, for targeted groups of individuals who otherwise

13 would require care in a medical facility. 42 U.S.C. § 1396n(c)(1).

14

25. States may receive federal financial participation for such HCBS “waiver” services

15 to the same extent as provided to other Medicaid services offered by the State. CMS approves or

16 denies a state’s HCBS waiver application and must approve any amendments to an approved

17 waiver application. Id.

18

26. DHCS has been mandated by the Legislature to “seek all necessary waivers . . . in

19 order to provide in-home and community-based care.” Welf. & Inst. Code §§ 14132(t), 14137.

20 DHCS routinely seeks and secures approval to renew and amend HCBS Waivers within

21 permissible federal limitations.

22

27. HCBS Waivers in California include the Nursing Facility/Acute Hospital

23 (“NF/AH”) Waiver. Under the umbrella of the NF/AH HCBS Waiver, DHCS administers three

24 HCBS waivers which each correspond to an institutional level of care. These levels of care are:

25 Nursing Facility Level A or B (“NF-A/B”), Nursing Facility Subacute (“Subacute”), and Acute

26 Hospital. Each of the three HCBS Waivers contained in the NF/AH Waiver offers an array of

27 home and community-based services, including private duty nursing.

28

28. The level of care criteria for the NF/AH Home and Community Based Services

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1 Waivers explicitly describe the type and level (or severity) of functional limitations and/or skilled

2 nursing needs an individual must have to be admitted to an institutional setting. Upon meeting

3 those eligibility criteria, or level of care, an individual may qualify for corresponding NF/AH

4 HCBS Waiver services.

5

29. In order to meet federal cost-neutrality requirements, the NF/AH Waiver contains

6 assurances that services provided in the community pursuant to the NF/AH Waiver will not exceed

7 the cost of services in the institution designated for comparable care. Thus, the three Waivers

8 within the NF/AH HCBS Waiver correspond to an institutional level of care and have individual

9 maximum benefit levels, or cost-caps, depending on the Medi-Cal rate for their corresponding

10 facility. These “cost-caps” allow a qualifying individual to choose from a menu of available home

11 and community-based services up to the cost-cap for his or her level of care set by DHCS in the

12 applicable HCBS Waiver.

13

30. Upon information and belief, the Medi-Cal program pays $271,697 per year to

14 Subacute facilities for adults over the age of 21 who are placed in those institutions.

15

31. However, Defendants will not provide a comparable level of HCBS waiver funding

16 for home-based services for individuals such as Pablo who meet the Subacute criteria and would

17 otherwise be placed in a Subacute facility. This is because Defendants have arbitrarily set the cost-

18 cap under the NF/AH Waiver services at the adult Subacute level of care at $180,219, which is

19 more than $90,000 below the actual cost of the comparable institutional placement.

20

32. Federal cost-neutrality requirements do not prohibit Defendants from setting the

21 Waiver cost-cap at or just below the rate paid to Subacute facilities.

22

B. FEDERAL ANTI-DISCRIMINATION LAWS

23

33. Qualifying individuals with disabilities are protected from disability discrimination,

24 including segregation in institutions, by the ADA and Section 504.

25

34. In enacting the ADA, Congress found that “[i]ndividuals with disabilities

26 continually encounter various forms of discrimination, including…segregation…” 42 U.S.C.

27 § 12101(a) (5). Title II of the ADA provides that “no qualified individual with a disability shall, by

28 reason of disability, be excluded from participation in or be denied the benefits of services,

6 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

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1 programs, or activities of a public entity or be subjected to discrimination by such entity.” 42

2 U.S.C. § 12132.

3

35. Regulations implementing Title II of the ADA provide: “[a] public entity shall

4 administer services, programs, and activities in the most integrated setting appropriate to the needs

5 of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (1991); see also Section 504, 29

6 U.S.C. §§ 794-794a; 28 C.F.R. § 41.51(d). Further, “[t]he most integrated setting appropriate to

7 the needs of a qualified individual with a disability means a setting that enables individuals with

8 disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35,

9 App. A, p. 450 (1998).

10

36. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581

11 (1999) held that the unnecessary institutionalization of individuals with disabilities is a form of

12 discrimination under Title II of the ADA. In doing so, the Court interpreted the ADA’s “integration

13 mandate” as requiring persons with disabilities to be served in the community when: (1) the state

14 determines that community-based treatment is appropriate; (2) the individual does not oppose

15 community placement; and (3) community placement can be reasonably accommodated. Olmstead,

16 527 U.S. at 607.

17

37. Regulations implementing Title II of the ADA and Section 504 also provide: “A

18 public entity may not, directly or through contractual or other arrangements, utilize criteria or other

19 methods of administration: (i) that have the effect of subjecting qualified individuals with

20 disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of

21 defeating or substantially impairing accomplishment of the objectives of the entity’s program with

22 respect to individuals with disabilities…” 28 C.F.R. § 35.130(b)(3); 28 C.F.R. § 41.51(b)(3)(I); 45

23 C.F.R. § 84.4(b)(4).

24

38. ADA regulations further provide: “[a] public entity shall not impose or apply

25 eligibility criteria that screen out or tend to screen out an individual with a disability or any class of

26 individuals with disabilities from fully and equally enjoying any service, program, or activity,

27 unless such criteria can be shown to be necessary for the provision of the service, program, or

28 activity being offered.” 28 C.F.R. § 35.130(b)(8); see also parallel Section 504 regulations, 45

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1 C.F.R. § 84.4(b)(1)(iv).

2

39. As set forth in federal regulations: “[a] public entity shall make reasonable

3 modifications in policies, practices, or procedures when the modifications are necessary to avoid

4 discrimination on the basis of disability, unless the public entity can demonstrate that making the

5 modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.

6 § 35.130(b)(7).

7

VI. FACTUAL ALLEGATIONS

8 About Pablo Carranza

9

40. Pablo Carranza was diagnosed with Muscular Dystrophy at two years of age.

10 Muscular Dystrophy is a degenerative disease involving advancing muscle weakness and loss of

11 muscle tissue over time.

12

41. Pablo’s health care has been funded entirely by Medi-Cal.

13

42. Pablo lives at home with his mother, Leticia Martinez, and brother, Raul Carranza,

14 who also has Muscular Dystrophy. Pablo’s father, Raul Carranza, visits on a weekly basis.

15 Pablo’s mother is his primary care giver, but both his mother and father are involved in planning

16 for and providing his care.

17

43. Pablo takes community college courses online and requires assistance with

18 repositioning and equipment when doing his school work.

19

44. Pablo and his family desire that he continue living at home with appropriate nursing

20 services.

21

45. Pablo is medically fragile and technology dependent. He had a G-tube placed at age

22 12 and receives nutrition, hydration and medication through his G-tube. Pablo is non-ambulatory

23 and cannot bear weight. He uses a wheelchair and requires assistance with all activities of daily

24 living (“ADLs”).

25

46. At 14 years of age, Pablo could no longer breathe on his own due to muscle

26 weakness and he had a tracheotomy. Since that time, Pablo has been dependent on a ventilator 24

27 hours per day. Unlike many ventilator patients, Pablo is alert and oriented. Pablo has an uncuffed

28 tracheotomy, which allows for the possibility of communication/speech, but also allows fluid to go

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1 into the lungs if not timely suctioned. This is one of the reasons that Pablo requires constant

2 skilled monitoring. In addition, when Pablo is able to communicate, it is by whisper, and

3 individuals need training to understand him.

4

47. Due to Pablo’s mucous secretions and his inability to swallow due to the

5 tracheotomy, he must be orally suctioned approximately every 10-15 minutes when saliva or

6 mucus builds up in his mouth, nose and throat. Pablo also requires deep suctioning through his

7 tracheotomy tube into his lungs up to nine times per day to clear mucous that has flowed down into

8 the tracheotomy. The oral suctioning and deep suctioning help keep fluid from going into his

9 lungs. If fluid does go into his lungs, it could impair oxygen exchange, resulting in lack of oxygen

10 and permanent damage to organs (including brain injury), pneumonia, and infection.

11

48. In addition to Muscular Dystrophy, Pablo has been diagnosed with scoliosis and had

12 spinal fusion surgery in 2010.

13

49. Pablo is regularly seen by the following doctors and specialists at the University of

14 California San Diego and other hospitals: a primary care physician, neurologists, a pulmonologist,

15 a pediatric otolaryngologist, an orthopedist, a cardiologist, a pain management specialist, and a

16 gastroenterologist. In the past two years, Pablo has been in the hospital or hospitalized several

17 times, as well as seen by his doctors on numerous occasions.

18

50. For the past seven years, Pablo’s physician has ordered one-to-one nursing care 24

19 hours per day. His in-home skilled care is provided by licensed vocational nurses (“LVNs” or

20 “nurses”). LVNs are licensed to provide skilled nursing care in many settings including hospitals.

21 42 C.F.R. Sec. 409.31 (a); 22 C.C.R. §§ 70055(a)(16), §70055(a)(16) & 70217 (a). Pablo also is

22 authorized to receive two hours per month of case management by a Registered Nurse.

23

51. Upon information and belief, in 2005, DHCS authorized 720 hours per month of

24 Medi-Cal funded one-to-one in-home, or “private duty” nursing care, based on its determination

25 that he met the Pediatric Subacute level of care at all times. This provided him with 24 hour

26 coverage. On information and belief, between 2005 and 2012, DHCS reduced Pablo in-home

27 nursing hours by approximately 4 hours per day, leaving him with 615 hours of nursing care per

28 month, which is the number of monthly hours he currently receives.

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1

52. Pablo’s mother, Leticia has been trained in his care needs and provided the

2 remainder of his 24-hour per day care, with limited assistance from his father. She has also

3 provided backup care during times when Pablo’s needs are so intense that two caregivers are

4 required or when the home health agency fails to staff a shift and a nurse is not available.

5

53. Neither Pablo’s mother nor his father is available to provide additional care for

6 Pablo. His mother is a full-time caregiver for Pablo’s older brother, Raul, who also lives at home.

7 In addition, Pablo’s mother’s own health is deteriorating and could potentially affect her ability to

8 provide caregiver duties. Pablo’s father works full-time and is unavailable to provide additional

9 caregiver duties. Moreover, since Pablo is over the age of 18, neither parent has a legal obligation

10 to provide for his care.

11 Pablo’s Nursing Care Needs

12

54. The following are Pablo’s medical care needs as set forth and approved by his

13 physician in the Plan of Treatment document created by the Home Health Agency and approved by 14 DHCS and funded by Medi-Cal prior to Pablo’s 21st birthday:

15

A. Generally, skilled nurses perform/assist with personal care, Activities of

16

Daily Living (“ADLs”), incontinent care, skin care, dressing, tracheotomy

17

care, G-tube care and feedings every shift and as needed at other times.

18

B. Skilled nurses provide passive range of motion (“PROM”) exercises as

19

tolerated every shift and PRN since Pablo cannot move any part of his body

20

or use his muscles, with the exception of minimal movement of his eyes,

21

tongue, mouth and one finger.

22

C. Skilled nurses monitor his skin condition every shift and PRN to look for

23

change in status. They also reposition his body every 2 hours and PRN to

24

prevent skin breakdown and bed sores.

25

D. Skilled nurses administer medications per doctor’s order and take vital

26

signs every shift and PRN change in status. Nurses also must count

27

controlled substances on each shift. Pablo has a lengthy list of prescribed

28

and PRN medications that are administered on a daily basis.

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1

E. Skilled nurses check all equipment, including the ventilator settings and

2

suctioning machine, every shift and PRN. Ventilator settings must be

3

checked and kept constant, and can only be changed by licensed personnel.

4

Nurses may increase certain settings one point at a time every day until

5

Pablo is comfortable and able to speak, and change settings as requested

6

and as tolerated by Pablo and at his request.

7

F. Skilled nurses must monitor oxygen settings and keep his oxygen saturation

8

level greater than 93%, and utilize a heated circuit via the ventilator as

9

needed to keep oxygen saturation greater than 93%.

10

G. If the tracheotomy comes out (i.e., decannulation occurs), skilled nurses

11

must check client, replace tracheotomy (which requires two people),

12

administer oxygen, suction as necessary and use an ambu-bag, a hand-held

13

device used to manually pump air into the lungs of the individual when not

14

connected to the ventilator (which also takes two people), as necessary.

15

H. Skilled nurses or Respiratory Therapist must change tracheotomy 1 to 2

16

times each month and as needed.

17

I. Skilled nurses monitor the tracheotomy stoma every shift and as needed for

18

change in status, including changing the tracheotomy ties if they come lose

19

or as needed, and clean around the tracheotomy stoma with normal saline

20

every shift and as needed. Skilled nurses must suction as needed increased

21

secretions both orally and deep/tracheotomy suctioning. They monitor and

22

observe secretions/sputum for symptoms of infection and notify doctor.

23

J. Skilled nurses perform tracheal suctioning on average 1 to 3 times during

24

each shift, and oral suctioning 5 to 10 times per hour during each shift every

25

day.

26

K. Skilled nurses must ambu-bag Pablo as needed for shortness of breath.

27

Skilled nurses must contact the doctor or RN for any significant changes in

28

status.

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1

L. Skilled nurses need to ensure that G-tube balloon remains inflated with 5-6

2

milliliters (“ml”) water each day. Skilled nurses change the G-tube every 4-

3

5 months and as needed if it is dislodged or if it malfunctions. Skilled

4

nurses monitor the G-tube site every shift and as needed for change in

5

status. Also, G-tube must be cleansed with normal saline each shift and as

6

needed.

7

M. For nutrition, skilled nurses prepare and administer G-tube feedings of a

8

specialized formula that is made with water and is administered via pump at

9

75 ml per hr continuously. Pablo may have 120 ml of water 4 times per day

10

via G-tube in addition to current feeding regimen and as needed, as well as

11

20ml of Pedialite via G-tube for extra fluids.

12

N. Skilled nurses flush the G-tube with 10-60ml of water both before and after

13

medications are given. Nurses may increase water consumption above 500

14

ml per day, may mix more with feedings, or give small doses of 100 ml via

15

G-tube throughout day as tolerated and as needed per Pablo’s request.

16

O. Skilled nurses assist Pablo to cough with an inexsuflator machine as needed

17

to clear the mucous, followed by suction. Settings for the inexsuflator

18

machine are very specific. Skilled nurses give nebulizer (breathing)

19

treatments as needed and at client’s request.

20

P. Skilled nurses apply stockings up to thighs as needed for restless leg

21

syndrome, as needed, or at client’s request, and use Transcutaneous

22

Electrical Nerve Stimulation (“TENS”) Unit as needed at specified

23

frequencies. This unit must be turned off for 1 hour two times daily to let

24

the skin breath.

25

Q. Skilled nurses use a straight catheterization method (this is a method that

26

requires one time insertion to relieve the bladder, as opposed to a catheter

27

that is left in the site over time) as needed for bladder distention and may

28

use urinary straight catheter every 8 hours as needed if client is not

12 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 15 of 24

1

urinating spontaneously; they notify the doctor or RN if there is a foul odor

2

or change in color of urine; they notify the doctor if client has no bowel

3

movement for 5 days, or sooner if there is abdominal pain or distress.

4

R. Skilled nurses to observe and monitor for symptoms of complications to

5

pulmonary status and gastrointestinal status. Skilled nurses monitor

6

musculoskeletal and neurological systems every shift and PRN. Skilled

7

nurses report to the doctor any abnormal findings and contact the registered

8

nurse or doctor if there are any unusual occurrences and/or any significant

9

changes in client’s status. Safety measures practiced by skilled nurses

10

include aspiration precaution and universal precaution/infection control.

11

S. Skilled nurses monitor Pablo’s back pain related to past spinal fusion

12

surgery and provide pain medication every 4 hours, as well as other over

13

the counter pain medications as needed.

14

T. Pablo’s mother has to assume all care for Pablo when skilled nurses are not

15

present, which under the Plan of Care was for a total of 2 hours per day

16

between LVN shifts.

17

55. The skilled nursing services Pablo currently receives cannot safely be provided by

18 untrained or unskilled individuals. One-on-one skilled nursing services are ordered by Pablo’s

19 physician 24 hours per day, and have been found to be medically necessary by DHCS since at least

20 2005.

21 In-Home Nursing Authorization

22

56. At and before Pablo’s 21st birthday, the cost to the Medi-Cal program for Pablo’s

23 home care, including 615 hours per month of private duty nursing and his medical equipment and

24 supplies, was approximately$230,000 per year.

25

57. On July 24, 2012, DHCS conducted a home visit to reassess Pablo to determine the

26 appropriate amount of care needed upon reaching his 21st birthday. The DHCS reviewer told Pablo

27 and his mother that a notice would be forthcoming with DHCS’ decision. However, Pablo and

28 family did not receive a written notice. Pablo’s mother called the DHCS reviewer on several

13 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 16 of 24

1 occasions, but no one returned her calls.

2

58. On August 29, 2012, a high-level DHCS employee called Pablo’s mother on the

3 telephone. This DHCS employee informed his mother that, upon turning age 21, Pablo’s nursing

4 care would be authorized through the NF/AH Home and Community Based Services Waiver at the

5 Subacute level of care. The DHCS employee stated that because the cost-cap for the Subacute

6 level of care under the NF/AH Waiver is $180,219, Pablo would no longer be authorized for 615

7 hours per month of private duty nursing, and that his nursing hours would be reduced. DHCS did

8 not offer any exception to the cost-cap to Pablo.

9

59. During the conversation with DHCS on August 29th, 2012, Pablo’s mother asked

10 whether she could appeal that decision, and how to do so. On August 30, 2012, DHCS sent her

11 information on how to ask for state hearing, along with a number of different combinations of care,

12 called a Menu of Health Services (“MOHS”), up to the cost-cap of $180,219. Included in the cost-

13 cap in these various combinations are: private duty nursing (including shared nursing with his

14 brother), two hours per month of case management by a Registered Nurse, payment for Pablo’s

15 county-authorized unskilled personal care services. Yet each of these combinations offered by

16 DHCS would require Pablo to accept far fewer hours of nursing care (between 100 and 225 fewer

17 hours per month). Most scenarios would require him to share nursing care with his brother, which

18 his doctors and the home health agency that employs his nurses reject as dangerous to both

19 brothers. All scenarios would leave him without any care for five to 10 hours per day.

20

60. On September 6, 2012, Pablo appealed DHCS’ verbal decision to reduce nursing

21 services by certified receipt mail and requested “aid paid pending” or, continuation of 615 hours

22 per month of in-home nursing pending his hearing decision.

23

61. DHCS refused to authorize aid paid pending.

24

62. On October 22, 2012, an administrative law judge issued an order for aid paid

25 pending. As of this date, Pablo continues to receive 615 hours of private duty nursing. DHCS has,

26 however, challenged the aid paid pending order, which may be reversed at any time.

27 Defendants’ Actions Place Pablo at Risk of Institutionalization

28

63. According to Pablo’s medical professionals, home is the safest place for Pablo to

14 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 17 of 24

1 maximize his health condition and prolong his life. Placement in an institution, however, will

2 almost certainly cause health deterioration and possible death within a short period of time.

3

64. Defendants have cut Pablo’s nursing hours solely due to the fact that Pablo turned

4 21 years of age and are without medical justification. Pablo’s medical condition has not improved;

5 his need for in-home nursing has not decreased.

6

65. Defendants have placed an arbitrary cost-cap on home and community based

7 services at the Subacute level of care under the NF/AH Waiver, which is far less than the actual

8 institutional rate for a Subacute facility.

9

66. Defendants have great flexibility and discretion in their administration of the

10 NF/AH waiver. They have the authority to make modifications to ensure that Medi-Cal recipients

11 such as Pablo receive sufficient and medically necessary in-home care to avoid institutional

12 placement and are not subjected to abrupt reductions in their home care services.

13

67. Pablo’s needs can be reasonably accommodated by Defendants continuing to

14 provide Pablo with in-home nursing up to the rate that Defendants would actually pay if Pablo

15 were to be admitted to a Subacute facility; and/or modifying any of its Home and Community

16 Based Waivers to permit Pablo to receive the nursing care hours that he requires and that are

17 physician ordered.

18

68. Defendants have many options to administer the NF/AH waiver so as not to create a

19 bias towards institutional placements. One option would be to increase the cost-cap for the

20 Subacute level of care of the NF/AH Waiver to a level that is equal to amount actually paid to

21 Subacute facilities. Alternatively, Defendants could also create a provision in the waiver to allow

22 youth such as Pablo who turn age 21 to continue with the same number of nursing hours, Instead,

23 Defendants have chosen to administer the waiver in such a way as to discriminate against Pablo

24 and to place him at risk of institutional placement, with life threatening consequences.

25

69. Without the appropriate level of in-home nursing hours to remain in his home, Pablo

26 will have no choice but institutional placement, which will separate him from his family and

27 community and also poses significant risks to his health.

28 ///

15 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 18 of 24

1

VII. LEGAL CLAIMS

2

FIRST CLAIM FOR RELIEF

3

(Defendant Director Toby Douglas)

4

Americans with Disabilities Act, 42 U.S.C. § 12134-35 et seq.

5

70. Plaintiff realleges and incorporates herein by reference each and every allegation

6 and paragraph set forth previously.

7

71. Plaintiff is a “qualified individual with a disability” within the meaning of the ADA

8 in that he (1) has a physical impairment that substantially limits one or more major life activities;

9 and (2) meets the essential eligibility requirements for community-based long-term care under

10 California’s Medicaid program.

11

72. Defendant Toby Douglas is the Director of Defendant DHCS, which has

12 responsibility for providing Medi-Cal and state-funded home and community based and

13 institutional services, and is therefore a government entity subject to Title II of the ADA. 42 USC

14 §12131(1)(A) and (B).

15

73. Defendant’s reduction in adequate and necessary in-home nursing, and failure to

16 provide Plaintiff with sufficient medically necessary in-home nursing, has denied Plaintiff the

17 services he needs to remain safely in the community, thereby placing him at risk of

18 institutionalization in violation of the ADA’s integration mandate.

19

74. Defendant has discriminated against Plaintiff in ways that include arbitrarily setting

20 a cost-cap for the Subacute level of care of the NF/AH Waiver far below the actual rate paid for

21 institutional services in a Subacute facility, thus denying Plaintiff funds for home and community-

22 based services that would otherwise be available for institutional services.

23

75. Defendant has discriminated against Plaintiff by failing to provide reasonable

24 modifications to programs and services in ways that include: failing to increase the Subacute level

25 of care cost-cap, within federal cost neutrality limitations, to enable Plaintiff to fund necessary in-

26 home nursing, and failing to offer an exception to the Subacute level of care cost-cap that would

27 enable Plaintiff to fund in-home nursing at a level adequate to meet his undisputed need.

28

76. By denying Plaintiff adequate and necessary in-home nursing commensurate with

16 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 19 of 24

1 his actual need, as opposed to arbitrary service limitations, Defendant has imposed eligibility

2 requirements which unlawfully screen him out from fully and equally enjoying in-home nursing

3 services, and from receiving adequate care to remain safely at home.

4

77. Defendant has utilized criteria and methods of administration that subject Plaintiff

5 to discrimination on the basis of disability, including risk of unnecessary institutionalization, in

6 ways that include: (1) designing and implementing Home and Community Based Waivers which

7 set arbitrarily low cost-caps for in-home nursing services, while paying significantly higher rates

8 for the institutional Subacute facility alternative; and (2) imposing eligibility criteria, cost

9 limitations and other criteria not required by federal limitations, which restrict in-home care in

10 favor of institutional care, and (3) refusing to continue Plaintiff’s current hours of nursing care

11 during his transition to the NF/AH Home and Community Based Services Waiver so that his

12 appropriate level of care can be determined and the risk of institutionalization minimized.

13

78. Defendant’s actions are in violation of Title II of the ADA.

14

79. Pursuant to 42 U.S.C. § 12133, Plaintiff is entitled to declaratory and injunctive

15 relief, as well as reasonable attorneys’ fees and costs incurred in bringing this action.

16

SECOND CLAIM FOR RELIEF

17

(Defendant DHCS)

18

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.

19

80. Plaintiff realleges and incorporates herein by reference each and every allegation

20 and paragraph set forth previously.

21

81. Plaintiff is a “qualified individual with a disability” within the meaning of Section

22 504 in that his physical impairments substantially limits one or more major life activities; and he

23 meets the essential eligibility requirements in that he is capable of living independently in his

24 family home and/or in the most integrated community setting possible, with assistance.

25

82. Defendant DHCS is a recipient of federal monies that provide Medi-Cal home and

26 community-based and institutional services and other Medi-Cal services and is therefore a

27 government entity subject to Section 504. 29 USC 794(b).

28

83. Defendant’s reduction in adequate and necessary in-home nursing has denied

17 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 20 of 24

1 Plaintiff the services he needs to continue to live in the community, thereby placing him at

2 imminent risk of institutionalization in violation of Section 504’s integration mandate.

3

84. Defendant DHCS discriminates against Plaintiff in ways that include setting a cost-

4 cap for the Subacute level of care of the NF/AH Waiver far below the actual rate paid for

5 institutional services in a Subacute facility, thus denying Plaintiff funds for home and community-

6 based services that would otherwise be available for institutional services.

7

85. Defendant has discriminated against Plaintiff by failing to provide reasonable

8 modifications to programs and services in ways that include: failing to increase the Subacute level

9 of care cost-cap, within federal cost neutrality limitations, to enable Plaintiff to fund necessary in-

10 home nursing, and failing to offer an exception to the Subacute level of care cost-cap that would

11 enable Plaintiff to fund in-home nursing at a level adequate to meet his undisputed need.

12

86. By denying Plaintiff adequate and necessary in-home nursing commensurate with

13 his actual need, as opposed to arbitrary service limitations, Defendant has imposed eligibility

14 requirements which unlawfully screen him out from fully and equally enjoying in-home nursing

15 services, and from receiving adequate care to remain safely at home.

16

87. Defendant has utilized criteria and methods of administration that subject Plaintiff

17 to discrimination on the basis of disability, including risk of unnecessary institutionalization, by,

18 including but not limited to the following: (1) designing and implementing Home and Community

19 Based Waivers which set arbitrarily low cost-caps for in-home nursing services, while paying

20 significantly higher rates for the institutional Subacute facility alternative; and (2) imposing

21 eligibility criteria, cost limitations and other criteria not required by federal limitations, which

22 restrict in-home care in favor of institutional care; and (3) refusing to continue Plaintiff’s current

23 hours of nursing care during his transition to the NF/AH Home and Community Based Services

24 Waiver so that his appropriate level of care can be determined and the risk of institutionalization

25 minimized.

26

88. Defendant’s actions violate Section 504.

27 ///

28 ///

18 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 21 of 24

1

THIRD CLAIM FOR RELIEF

2

(Defendant Director Toby Douglas)

3

Claim Under 42 U.S.C. §1983, Deprivation of Federal Constitutional Rights -

4

Violation of Procedural Due Process

5

89. Plaintiff realleges and incorporates herein by reference each and every allegation

6 and paragraph set forth previously.

7

90. Under the due process clause of United States Constitution, when recipients of

8 needs-based public benefits such as Medicaid are facing a reduction or termination of benefits, they

9 are entitled to advance written notice explaining the basis for the adverse government action and an

10 opportunity for a hearing prior to reduction or termination of their benefits. U.S. Const. Amend.

11 XIV.

12

91. Defendant has a policy and practice of failing to provide written notice of the

13 proposed reduction of shift nursing hours to Medi-Cal recipients such as Pablo when they turn age

14 21. Defendant fails to provide notice that explains their right to a hearing, and if a hearing is

15 requested, refuses to continue benefits pending the hearing.

16

92. Defendant’s practices and procedures alleged herein violate the Due Process clause

17 of the Fourteenth Amendment to the U.S. Constitution by, among other things, denying Plaintiff

18 adequate notice and the opportunity for a hearing prior to reduction, suspension or termination of

19 essential health care benefits. .

20

93. In all of the above-mentioned actions, Defendant has, acting under color of state

21 law, deprived Plaintiff of rights, privileges or immunities secured to him by the Constitution of the

22 United States, in violation of 42 U.S.C. § 1983.

23 VIII. ALLEGATIONS CONCERNING INJUNCTIVE AND DECLARATORY RELIEF

24

94. Defendants’ actions, as alleged herein, have resulted in, and will continue to result

25 in irreparable injury to Plaintiff caused by the denial of necessary in-home nursing to which he is

26 entitled and which he needs to remain at home with his family and avoid unnecessary institutional

27 placement. Plaintiff has no plain, speedy or adequate remedy at law.

28

95. An actual controversy exists between Plaintiff and Defendants, in that Plaintiff

19 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 22 of 24

1 claims that Defendants have violated his rights under the ADA, other federal anti-discrimination

2 laws, and the Federal Constitution, and Defendants deny all such contentions.

3

96. Defendant Douglas can either adopt or “alternate” (reject in whole or part) any

4 administrative decision arising out of claims against DHCS. California Manual of Policies and

5 Procedures, Sections 22-061 and 22-062. Therefore, the administrative appeal process offers no

6 remedy or protection to Pablo, as the Defendant in this action is the very person who will make a

7 determination of what level of care under DHCS’ NF/AH Waiver will be provided to Pablo.

8

IX. REQUEST FOR RELIEF

9

WHEREFORE, Plaintiff prays that the Court order the following relief and remedies on

10 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. Declare that Defendants' failure to provide Plaintiff with sufficient Medi-Cal

14 funded in-home nursing hours to meet his undisputed need for 24-hour per day nursing care and

15 Defendants’ policies, practices, acts and omissions as set forth above violate the American with

16 Disabilities Act, and Section 504 of the Rehabilitation Act.

17

C. Declare that Defendants' failure to continue Plaintiff’s current nursing hours during

18 his transition to adult services, and prior to a determination of his current needs and level of care

19 and the provision of written notice of the basis of the reduction in his nursing hours and an

20 opportunity for a hearing, prior to any reduction, and Defendants’ policies, practices, acts and

21 omissions as set forth above violate the American with Disabilities Act, the Due Process Clause of

22 the United States Constitution and 42 U.S.C. § 1983.

23

D. Grant a temporary restraining order and preliminary injunction enjoining

24 Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert

25 or participation with them from reducing medically necessary Medi-Cal funded in-home nursing

26 below his current level of 615 hours per month until such time as this matter may be finally

27 decided.

28

E. Grant a permanent injunction enjoining Defendants, their officers, agents,

20 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 23 of 24

1 employees, attorneys, and all persons who are in active concert or participation with them from

2 discriminating against Plaintiff and thereby placing him at risk of unnecessary institutionalization

3 by:

4

i. Failing to offer reasonable modifications to their programs and policies to

5

enable Plaintiff to receive medically necessary in-home nursing as ordered

6

by his physicians;

7

ii. Imposing eligibility requirements which unlawfully screen Plaintiff out of

8

the NF/AH Waiver program and prevent him from fully and equally

9

enjoying in-home nursing services, and from receiving adequate care to

10

remain safely at home;

11

iii. Utilizing criteria and methods of administration that subject Plaintiff to

12

discrimination on the basis of disability, including placing him at risk of

13

unnecessary institutionalization.

14

F. Grant a temporary restraining order, preliminary and permanent injunction

15 enjoining Defendants, their officers, agents, employees, attorneys, and all persons who are in active

16 concert or participation with them from reducing medically necessary Medi-Cal funded in-home

17 nursing below his current level of 615 hours per month to Plaintiff without first providing adequate

18 and effective written notice of the proposed termination and reduction of Medi-Cal funded health

19 services, notice of the right to appeal these actions and of the right to continued benefits pending an

20 appeal hearing.

21

G. Issue an order requiring Defendants to provide Plaintiff with Medi-Cal funded in-

22 home nursing through the Nursing Facility/Acute Hospital Waiver or other appropriate Home and

23 Community Based Waivers, subject to federal cost neutrality requirements, to enable him to

24 receive in-home nursing commensurate with his needs identified by his treating physicians, and as

25 medically necessary.

26

H. Retain jurisdiction over the Defendants until such time as the Court is satisfied that

27 defendants’ unlawful policies, practices, and acts complained of herein cannot recur;

28 ///

21 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

Case 2:12-cv-02928-WBS-GGH Document 1 Filed 12/04/12 Page 24 of 24

1

I. Award the Plaintiff the costs of this action and reasonable attorneys’ fees pursuant

2 to 20 U.S.C. § 794a; 42 U.S.C. §§ 1988, 12133, 12205; and as otherwise may be allowed by law.

3

J. Grant such other and further relief as the Court deems to be just and equitable.

4

5 Dated: _12/4/2012_______ 6 7 8 9

Respectfully Submitted, DISABILITY RIGHTS CALIFORNIA WESTERN CENTER ON LAW & POVERTY
By: _/s/ Debra Marley_____________ Debra Marley
Attorneys for Plaintiff

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22 Carranza v. Douglas: Complaint for Injunctive and Declaratory Relief

 
 1 Debra Marley, State Bar No. 204842 Maria Iriarte, State Bar No. 150704
2 DISABILITY RIGHTS CALIFORNIA 1111 Sixth Avenue, Suite 200
3 San Diego, CA 92101 Telephone: (619) 239-7861
4 FAX: (619) 239-7906 debra.marley@disabilityrightsca.org
5 maria.iriarte@disabilityrightsca.org

6 Melinda Bird, State Bar No. 102236 Jackie Coleman, State Bar No. 105570
7 DISABILITY RIGHTS CALIFORNIA 1831 K Street
8 Sacramento, CA 95811 Telephone: (916) 504-5800
9 FAX: (916) 504-5802 melinda.bird@disabilityrightsca.org
10 jackie.coleman@disabilityrightsca.org

11 Robert D. Newman, State Bar No. 86534 Mona Tawatao, State Bar No. 128779
12 Western Center on Law & Poverty 3701 Wilshire Street, Suite 208
13 Los Angeles, California 90010 Phone No. (213_ 487-7211
14 Fax No. (213) 487-0242 rnewman@wclp.org
15 mtawatao@wclp.org

16 Attorneys for Plaintiff PABLO CARRANZA

17

UNITED STATES DISTRICT COURT

18

FOR THE EASTERN DISTRICT OF CALIFORNIA

19

PABLO CARRANZA,
20

) Case No.: 2:12-cv-02928-WBS-GGH )

Plaintiff,

21

v.

22 TOBY DOUGLAS, Director of the

)

) )

ORDER FOR DISMISSAL

)

23

Department of Health Care Services, ) State of California DEPARTMENT OF )

Courtroom:

5

HEALTH CARE SERVICES,

) Judge: The Hon. William B. Shubb

24

)

Defendants.

)

25

) Action Filed: December 4, 2012

)

26

)

)
27

28 i
Carranza v. Douglas et al: [PROPOSED] Order for Dismissal

1

IT IS HEREBY ORDERED pursuant to the stipulation of the parties, that the

2 Complaint in Pablo v Douglas et al Case No. 2:12-cv-02928-WBS-GGH is

3 dismissed in its entirety. The Parties shall each bear its or his own costs and fees,

4 except as otherwise set forth in the Settlement Agreement.

5

6 Dated: August 1, 2013

7

8

9

10

11

12

13

14

15

16

17

18

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21

22

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24

25

26

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1
[PROPOSED] Order for Dismissal (2:12-cv-02928-WBS-GGH)

 
 Case 2:12-cv-02928-WBS-CKD Document 21-1 Filed 07/31/13 Page 1 of 6

1 KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California
2 NIROMI W. PFEIFFER, State Bar No. 154216 Supervising Deputy Attorney General
3 KARA READ-SPANGLER, State Bar No. 167532 Deputy Attorney General
4 1300 I Street, Suite 125 P.O. Box 944255
5 Sacramento, CA 94244-2550 Telephone: (916) 327-0356
6 Fax: (916) 324-5567 E-mail: Kara.ReadSpangler@doj.ca.gov
7 Attorneys for Defendants Toby Douglas, Director of the Department of Health Care Services, State of
8 California Department of Health Care Services

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11

12

13 PABLO CARRANZA,

2:12-cv-02928-WBS-GGH

14

Plaintiff, SETTLEMENT AGREEMENT

15

v.

Courtroom: 5

Judge:

The Hon. William B. Shubb

16

TOBY DOUGLAS, Director of the

Action Filed: December 4, 2012

17 Department of Health Care Services, State

of California DEPARTMENT OF HEALTH

18 CARE SERVICES,

19

Defendants.

20

21

22

Plaintiff Pablo Carranza (Carranza) and Defendants Toby Douglas, Director of the

23 Department of Health Care Services and the State of California Department of Health Care

24 Services (collectively, the Department), through their attorneys of record, enter into this

25 Settlement Agreement.

26

RECITALS & SETTLEMENT AGREEMENT

27

A. Carranza has been enrolled in the Medi-Cal Home and Community-Based Services

28 Nursing Facility and Acute Hospital (NF/AH) waiver, which is administered by the 1
SETTLEMENT AGREEMENT (2:12-cv-02928-WBS-GGH)

Case 2:12-cv-02928-WBS-CKD Document 21-1 Filed 07/31/13 Page 2 of 6

1 Department/In Home Operations (IHO), since November 1, 2005. He has muscular dystrophy,

2 tracheostomy, gastrostomy, and scoliosis. Before he turned 21-years old on September 17, 2012,

3 Carranza received in-home nursing services at the pediatric sub-acute level of care (LOC) through

4 the Early Periodic Screening, Diagnosis, and Treatment program.

5

B. On August 29, 2012, IHO staff informed Carranza that when he turned 21, he would

6 be eligible for services at the sub-acute LOC for adults 21 and over through the NF/AH waiver.

7

C. On September 6, 2012, Carranza requested a state fair hearing with the Department of

8 Social Services State Hearing Division to appeal the sub-acute LOC determination. The

9 administrative hearing, Hearing No. 2012275358, was held on October 22, 2012. At the hearing,

10 the administrative law judge (ALJ) ordered the Department to provide Carranza with aid paid

11 pending.

12

D. On December 4, 2012, Carranza filed a complaint for injunctive and declaratory relief

13 (Complaint) alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12134-35 et

14 seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.; and deprivation of the

15 Federal Constitutional right to procedural due process under 42 U.S.C. § 1983. (Case No. 2:12-

16 cv-02928-WBS-GGH, Dkt. No. 1.)

17

E. On December 27, 2012, the Department issued to Carranza the Director’s Alternate

18 Decision on Carranza’s administrative appeal, Hearing No. 2012275358. The Director’s

19 Alternate Decision ordered the Department to find Carranza eligible for NF/AH Waiver services

20 at the Acute Hospital LOC.

21

F. In order to avoid the uncertainty of litigation and to resolve all matters between them,

22 Carranza and the Department (collectively, the parties) agree to settle all actual and potential

23 claims between them related to the facts giving rise to the Complaint.

24

THEREFORE, and in consideration of the mutual terms, covenants and conditions set

25 forth in this Settlement Agreement, the parties agree and stipulate as follows:

26

1. The terms, conditions, and covenants of this Settlement Agreement shall be

27 interpreted under the laws of the State of California.

28 \ \ \

2
SETTLEMENT AGREEMENT (2:12-cv-02928-WBS-GGH)

Case 2:12-cv-02928-WBS-CKD Document 21-1 Filed 07/31/13 Page 3 of 6

1

2. The Department agrees not to seek recoupment of any monies paid to Western Home

2 Health Agency pursuant to the ALJ’s order for aid paid pending the final administrative decision.

3

3. To address his medically necessary health care needs, Carranza may select any

4 combination of the services available under both the Medi-Cal State Plan and the list of services

5 specified in the NF/AH Waiver that are available to waiver participants at the Acute Hospital

6 LOC.

7

4. In addition to the Department’s annual in-person assessment of Carranza’s LOC,

8 Carranza may, as medically necessary, submit a request, and be reassessed, for additional Medi-

9 Cal State Plan and NF/AH waiver services not to exceed those services allowed under the

10 designated Acute Hospital LOC cost neutrality expenditure cap.

11

5. This Settlement Agreement shall be effective as of the date the last party or counsel

12 executes the Settlement Agreement.

13

6. The Department shall pay to Carranza’s attorneys reasonable attorneys’ fees and costs

14 in a total amount of $69,500. The Department shall make payment to Debra Marley at Disability

15 Rights California, Federal Tax Id. No. 94-2505916.

16

7. The total payment in the amount of $69,500 constitutes full and final satisfaction of

17 all claims for attorneys’ fees and costs related to and stemming from this action.

18

8. By signing below, the parties affirm that they understand that the Department must

19 seek a legislative appropriation for the attorneys’ fees and cost set out in paragraph 6 and,

20 accordingly, that the payment date of the attorneys’ fees and costs depends on the date that the

21 parties have a fully-executed Settlement Agreement. If the parties have a fully-executed

22 Settlement Agreement on or before approximately March 25, 2013, such that the attorneys’ fees

23 and costs payment can be included in the May 2013 budget estimate, the Department shall pay the

24 attorneys’ fees and costs by July 1, 2013. If the parties have a fully-executed Settlement

25 Agreement after March 25, 2013, the Department shall pay the attorneys’ fees and costs by March

26 1, 2014.

27

9. Post-judgment interest shall begin to accrue at the rate of seven percent (7%) if

28 payment is not tendered by the date established in paragraph 8. 3
SETTLEMENT AGREEMENT (2:12-cv-02928-WBS-GGH)

Case 2:12-cv-02928-WBS-CKD Document 21-1 Filed 07/31/13 Page 4 of 6

1

10. Within 30 days of the tendering of the $69,500 payment for attorneys’ fees and costs,

2 the parties shall execute and file a stipulation for dismissal and a proposed order of dismissal.

3

11. This Settlement Agreement may be signed in counterparts, each of which will be

4 deemed to be an original and all of which together shall constitute a single instrument. A

5 signature made on a faxed or electronically mailed copy of the Settlement Agreement or a

6 signature transmitted by facsimile or electronic mail shall have the same force and effect as the

7 original signature.

8

12. By signing below, each party affirms that it has read the Settlement Agreement, had it

9 fully explained by counsel, and fully understands and appreciates the words and terms used in this

10 Settlement Agreement.

11

13. This Settlement Agreement is the product of joint draftsmanship and negotiation, and

12 should any of its terms be determined by a court to be vague, ambiguous, or unintelligible, the

13 words, phrases, sentences or other verbiage shall not be construed against the drafting party and

14 all words and phrases shall be interpreted according to their customary usage.

15

14. The parties agree that this Settlement Agreement is binding upon its heirs, personal

16 representatives, executors, administrators, assigns, agents and successors and shall inure to the

17 benefit of their agents, employees, servants, and successors.

18

15. Both parties understand and agree that this Settlement Agreement sets forth the

19 parties’ complete agreement and that no statements or representations, other than those contained

20 in this Settlement Agreement, have been made or relied upon by the parties as an inducement for

21 executing this Settlement Agreement.

22 \ \ \

23 \ \ \

24 \ \ \

25 \ \ \

26 \ \ \

27 \ \ \

28 4
SETTLEMENT AGREEMENT (2:12-cv-02928-WBS-GGH)

Case 2:12-cv-02928-WBS-CKD Document 21-1 Filed 07/31/13 Page 5 of 6

1

16. By entering into this Settlement Agreement, no party makes any admission of

2 wrongdoing or liability. This Settlement Agreement applies to this matter only and is solely for

3 the purposes of settling this matter, Case No. 2:12-cv-02928-WBS-GGH. The Settlement

4 Agreement has no bearing on and shall not be used for any purpose in any other proceeding.

5

6 Plaintiff:

7 Dated: March 25, 2013

8

By: ________________________________

9

PABLO CARRANZA

10

Plaintiff

11 12 Approved as to form: 13 Dated: March 25, 2013

DISABILITY RIGHTS CALIFORNIA

14

By: ________________________________

15

DEBRA MARLEY

16

Attorneys for Plaintiff Pablo Carranza

17 Dated: March 25, 2013
18

WESTERN CENTER ON LAW AND POVERTY

19 By: ________________________________

20

ROBERT NEWMAN

Attorneys for Plaintiff Pablo Carranza 21

22 Defendants:
23 Dated: March 25, 2013
24
25
26
27

By: ________________________________ DOUGLAS M. PRESS Defendants Toby Douglas, Director of the Department of Health Care Services, State of California Department of Health Care Services

28 5
SETTLEMENT AGREEMENT (2:12-cv-02928-WBS-GGH)

Case 2:12-cv-02928-WBS-CKD Document 21-1 Filed 07/31/13 Page 6 of 6

1 Approved as to form: 2 Dated: March 25, 2013 3 4 5 6 7 8 9 10 11
SA2012108985
12 11039637.doc 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

KAMALA D. HARRIS Attorney General of California NIROMI W. PFEIFFER Supervising Deputy Attorney General KARA READ-SPANGLER Deputy Attorney General Attorneys for Defendants Toby Douglas, Director of the Department of Health Care Services, State of California Department of Health Care Services
6
SETTLEMENT AGREEMENT (2:12-cv-02928-WBS-GGH)

 
 Case: 2:12-cv-2928 As of: 11/02/2018 12:35 PM PDT 1 of 4
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:12−cv−02928−WBS−CKD

Carranza v. Douglas, et al., Assigned to: Senior Judge William B. Shubb Referred to: Magistrate Judge Carolyn K. Delaney Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 12/04/2012 Date Terminated: 08/02/2013 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Pablo Carranza

represented by Debra Back Marley Disability Rights California 1111 Sixth Avenue Suite 200 San Diego, CA 92101 619−239−7861 Fax: 619−239−7906 Email: debra.marley@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacquline Yvonne Coleman Disability Rights California 1831 K Street Sacramento, CA 95811 916−504−5800 Fax: 916−504−5801 Email: jackie.coleman@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria Iriarte Disability Rights California 1111 Sixth Avenue Suite 200 San Diego, CA 92101 619−239−7861−8505 Fax: 619−239−7906 Email: maria.iriarte@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melinda R. Bird Disability Rights California 350 South Bixel Street Suite 290 Los Angeles, CA 90017 (213) 213−8000 Fax: (213) 213−8001 Email: melinda.bird@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rau Mona Tawatao Western Center On Law & Poverty 1107 9th St., Suite 700 Sacramento, CA 95814 916−282−5104 Email: mtawatao@wclp.org LEAD ATTORNEY

Case: 2:12-cv-2928 As of: 11/02/2018 12:35 PM PDT 2 of 4
ATTORNEY TO BE NOTICED
Robert Dexter Newman Western Center On Law And Poverty 3701 Wilshire Boulevard Suite 208 Los Angeles, CA 90010 213−487−7211−2619 Fax: 213−487−0242 Email: rnewman@wclp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Toby Douglas
Defendant Department of Health Care Services

represented by Rebecca M. Armstrong Attorney General's Office for the State of California Department of Justice 1300 I Street P.O. Box 944255 Sacramento, CA 94244−2550 916−327−5686 Fax: (916) 324−5567 Email: Rebecca.Armstrong@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kara Kathleen Read−Spangler Attorney General's Office for the State of California Department of Justice 1300 I Street P.O. Box 944255 Sacramento, CA 94244−2550 (916) 440−7729 Fax: (916) 440−7711 Email: Kara.Read−Spangler@dhcs.ca.gov TERMINATED: 07/09/2013
represented by Rebecca M. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kara Kathleen Read−Spangler (See above for address) TERMINATED: 07/09/2013

Date Filed 12/04/2012 12/04/2012 12/04/2012

# Docket Text
1 COMPLAINT for Injunctive and declarotory relief against All Defendants by Pablo Carranza. (Attachments: # 1 Civil Cover Sheet)(Marley, Debra) (Entered: 12/04/2012)
2 MOTION to PROCEED IN FORMA PAUPERIS by Pablo Carranza. (Attachments: # 1 Proposed Order)(Marley, Debra) (Entered: 12/04/2012)
APPLICATION TO PROCEED IFP filed − Action Required. (Kastilahn, A) (Entered: 12/04/2012)

Case: 2:12-cv-2928 As of: 11/02/2018 12:35 PM PDT 3 of 4

12/06/2012
12/06/2012 12/07/2012
12/07/2012 12/13/2012 12/18/2012 12/20/2012 01/18/2013 02/15/2013 02/21/2013 02/21/2013 03/12/2013 03/18/2013 03/19/2013 03/29/2013 04/01/2013

3 ORDER signed by Senior Judge William B. Shubb on 12/5/12 GRANTING 2 Motion to Proceed IFP. The Clerk is DIRECTED to file the complaint. IT IS FURTHER ORDERED that the clerk issue summons and the U.S. Marshal serve a copy of the complaint, summons and this order upon the defendant(s) as directed by the plaintiff. All costs of service shall be advanced by the United States. (cc: USM). (Meuleman, A) (Entered: 12/06/2012)
4 SUMMONS ISSUED as to *Department of Health Care Services, Toby Douglas* with answer to complaint due within *21* days. Attorney *Melinda R. Bird* *Disability Rights California* *350 South Bixel Street, Suite 290* *Los Angeles, CA 90017*. (Meuleman, A) (Entered: 12/06/2012)
5 AMENDED ORDER signed by Chief Judge Morrison C. England, Jr. on 12/7/2012 GRANTING 2 plaintiffs application to proceed without prepayment of fees; the Clerk is directed to file the complaint; IT IS FURTHER ORDERED that the Clerk issue summons and the plaintiff serve a copy of the complaint, summons and this order upon defendants. (cc: USM)(Reader, L) (Entered: 12/07/2012)
6 CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference set for 4/1/2013 at 02:00 PM in Courtroom 5 (WBS) before Senior Judge William B. Shubb. (Attachments: # 1 Consent Form, # 2 VDRP Form) (Reader, L) (Entered: 12/07/2012)
7 SUMMONS RETURNED EXECUTED: All Defendants. (Marley, Debra) (Entered: 12/13/2012)
8 DECLINE to PROCEED BEFORE US MAGISTRATE JUDGE by Department of Health Care Services, Toby Douglas. Attorney Read−Spangler, Kara Kathleen added. (Read−Spangler, Kara) (Entered: 12/18/2012)
9 CERTIFICATE of SERVICE by Pablo Carranza re 6 Civil New Case Documents for WBS. (Marley, Debra) (Entered: 12/20/2012)
10 JOINT STIPULATION AND PROPOSED ORDER for Extension of Time to File Responsive Pleading by Department of Health Care Services, Toby Douglas. (Read−Spangler, Kara) Modified on 1/22/2013 (Kastilahn, A). (Entered: 01/18/2013)
11 STIPULATION and ORDER 10 for Extension of Time to File Responsive Pleading by Department of Health Care Services no later than 3/1/2013, signed by Senior Judge William B. Shubb on 2/15/2013. (Kirksey Smith, K) (Entered: 02/15/2013)
12 STIPULATION and PROPOSED ORDER for Joint Stipulation for Further Extension of Time to File Responsive Pleading and Order by Department of Health Care Services, Toby Douglas. (Read−Spangler, Kara) (Entered: 02/21/2013)
13 STIPULATION and ORDER 12 signed by Senior Judge William B. Shubb on 2/21/2013 extending time for the Department's responsive pleading to 3/29/2013. (Kirksey Smith, K) (Entered: 02/21/2013)
14 ORDER by Chief Judge Morrison C. England, Jr.: Due to the recalled appointment of Magistrate Judge * Gregory G. Hollows* to the bench of the Eastern District, this action is reassigned to *Magistrate Judge Carolyn K. Delaney* for all further proceedings. (Waggoner, D) (Entered: 03/12/2013)
15 STIPULATION and PROPOSED ORDER for Continue Status Conference by Department of Health Care Services, Toby Douglas. (Read−Spangler, Kara) (Entered: 03/18/2013)
16 STIPULATION and ORDER for continuance 15 signed by Senior Judge William B. Shubb on 3/18/2013 resetting the Scheduling Conference for 4/29/2013 at 02:00 PM in Courtroom 5 (WBS) before Senior Judge William B. Shubb. A Joint Status Report shall be filed no later than 4/15/2013. (Kirksey Smith, K) (Entered: 03/19/2013)
17 STIPULATION and PROPOSED ORDER for to Stay Case Pending Implementation of the Settlement Agreement by Department of Health Care Services, Toby Douglas. (Read−Spangler, Kara) (Entered: 03/29/2013)
18 STIPULATION and ORDER 17 staying action until 8/1/2013. The Scheduling Conference is continued to 8/19/2013 at 02:00 PM in Courtroom 5 (WBS) before Senior Judge William B. Shubb. A joint status report shall be filed no later than

Case: 2:12-cv-2928 As of: 11/02/2018 12:35 PM PDT 4 of 4

07/09/2013 07/31/2013 07/31/2013 08/02/2013

8/5/2013. (Kirksey Smith, K) (Entered: 04/01/2013)
19 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Rebecca M. Armstrong for Department of Health Care Services,Rebecca M. Armstrong for Toby Douglas, attorney Kara Kathleen Read−Spangler terminated (Armstrong, Rebecca) (Entered: 07/09/2013)
20 [DISREGARD − FILED IN ERROR − REFER TO 21 AS ORIGINAL] MOTION to DISMISS by Pablo Carranza. (Attachments: # 1 Proposed Order for Dismissal, # 2 Proof of Service for Joint Stipulation of Dismissal & Proposed Order) (Marley, Debra) Modified on 7/31/2013 (Marciel, M) (Entered: 07/31/2013)
21 STIPULATION and PROPOSED ORDER for Dismissal by Pablo Carranza. (Attachments: # 1 Attachment 1 − Settlement Agreement, # 2 Proposed Order for Dismissal, # 3 Proof of Service) (Marley, Debra) Modified on 7/31/2013 (Marciel, M) (Entered: 07/31/2013)
22 ORDER DISMISSING CASE signed by Senior Judge William B. Shubb on 8/1/13. The parties shall each bear its or his own costs and fees except as otherwise set forth in the settlement agreement. CASE CLOSED. (Manzer, C) (Entered: 08/02/2013)