U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:14-cv-00567-JLR

Dunakin v. Quigley et al Assigned to: Judge James L. Robart Cause: 42:1983 Civil Rights Act
Plaintiff Adam Dunakin by and through his parent and next friend, KIMBERLEE HOLLINGER, individually, and on behalf of similarly situated individuals

Date Filed: 04/16/2014 Date Terminated: 01/10/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Susan Linn Kas DISABILITY RIGHTS WASHINGTON 315 5TH AVE S STE 850 SEATTLE, WA 98104 206-324-1521 Email: susank@dr-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Eaton DISABILITY RIGHTS WASHINGTON 315 5TH AVE S STE 850 SEATTLE, WA 98104 206-324-1521 Email: sarahe@dr-wa.org ATTORNEY TO BE NOTICED
Eleanor Hamburger SIRIANNI YOUTZ SPOONEMORE HAMBURGER 701 FIFTH AVENUE, SUITE 2560 SEATTLE, WA 98104 206-223-0303 Fax: 206-223-0246 Email: ehamburger@sylaw.com ATTORNEY TO BE NOTICED

V. Defendant Kevin W Quigley in his official capacity as Secretary of the Washington State Department of Social and Health Services
Defendant Dorothy F Teeter in her official capacity as Director of the Washington State Health Care Authority

represented by Angela D. Coats McCarthy ATTORNEY GENERAL'S OFFICE (40124-OLY) 7141 CLEANWATER DR SW PO BOX 40124 OLYMPIA, WA 98504-0124 360-586-6484 Email: AngelaC3@atg.wa.gov ATTORNEY TO BE NOTICED
Matthew S. King WASHINGTON STATE ATTORNEY GENERAL'S OFFICE 7141 CLEANWATER DR. SW OLYMPIA, WA 98504-0124 360-586-6463 Email: matthewk1@atg.wa.gov TERMINATED: 09/14/2016
Michelle Teed WASHINGTON ATTORNEY GENERAL'S OFFICE P.O. BOX 40124 OLYMPIA, WA 9850-0124 360-586-6496 Fax: 360-586-6657 Email: michellet2@atg.wa.gov TERMINATED: 04/16/2015
represented by Angela D. Coats McCarthy (See above for address) ATTORNEY TO BE NOTICED
Matthew S. King (See above for address) TERMINATED: 09/14/2016
Michelle Teed

(See above for address) TERMINATED: 04/16/2015

Date Filed 04/16/2014
04/17/2014 04/17/2014 04/25/2014 04/29/2014
04/29/2014
04/29/2014 05/08/2014 05/28/2014
05/29/2014

# Docket Text
1 COMPLAINT (Class Action) against defendant(s) All Defendants (Receipt # 0981-3573937) Attorney Eleanor Hamburger added to party Adam Dunakin(pty:pla), filed by Adam Dunakin. (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Civil Cover Sheet, # 5 Summons)(Hamburger, Eleanor) (Entered: 04/16/2014)
Judge James L. Robart added. (PM) (Entered: 04/17/2014)
2 Summons issued electronically as to defendant Kevin W Quigley (Attachments: # 1 Summons for Dorothy F Teeter)(PM) (Entered: 04/17/2014)
3 NOTICE of Appearance by attorney Angela D. Coats McCarthy on behalf of Defendants Kevin W Quigley, Dorothy F Teeter. (Coats McCarthy, Angela) (Entered: 04/25/2014)
4 AFFIDAVIT of Service of Summons and Complaint on Marie Hendershot, person authorized to accept service for Kevin W. Quigley as Secretary for Washington State DSHS on 4/21/2014, filed by Plaintiff Adam Dunakin. (Hamburger, Eleanor) (Entered: 04/29/2014)
5 AFFIDAVIT of Service of Summons and Complaint on Keren Brocha, person authorized to accept service for Dorothy F. Teeter as Director for Washington State Health Care Authority on 4/18/2014, filed by Plaintiff Adam Dunakin. (Hamburger, Eleanor) (Entered: 04/29/2014)
6 AFFIDAVIT of Service of Summons and Complaint on Charlotte Sanders, Assistant Attorney General on 4/18/2014, filed by Plaintiff Adam Dunakin. (Hamburger, Eleanor) (Entered: 04/29/2014)
7 ANSWER to 1 Complaint, by Kevin W Quigley, Dorothy F Teeter.(Coats McCarthy, Angela) (Entered: 05/08/2014)
8 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 7/28/2014, FRCP 26f Conference Deadline is 7/14/2014, Initial Disclosure Deadline is 7/28/2014, by Judge James L. Robart. (CC) (Entered: 05/28/2014)
9 Rule 16(b) and Rule 23(d)(2) Scheduling Order Regarding Class Certification Motion by Judge James L. Robart. (CC) (Entered: 05/29/2014)

06/25/2014

10 NOTICE of Appearance by attorney Michelle Teed on behalf of Defendants Kevin W Quigley, Dorothy F Teeter. (Teed, Michelle) (Entered: 06/25/2014)

07/28/2014 11 JOINT STATUS REPORT signed by all parties estimated Trial Days: 8.. (Coats McCarthy, Angela) (Entered: 07/28/2014)

07/28/2014

12 STIPULATION AND PROPOSED ORDER Adapted Model Stipulated Protective Order by parties. (Coats McCarthy, Angela) (Entered: 07/28/2014)

07/29/2014

13 ORDER re 12 Stipulation Adapted Model Stipulated Protective Order filed by Kevin W Quigley, Dorothy F Teeter by Judge James L. Robart. (MD) (Entered: 07/29/2014)

09/02/2014

14 Stipulated MOTION Extending the Close of Class Discovery by Defendants Kevin W Quigley, Dorothy F Teeter. Noting Date 9/2/2014, (Coats McCarthy, Angela) (Entered: 09/02/2014)

09/03/2014 15 ORDER granting 14 Stipulated Motion extending the close of class discovery by Judge James L. Robart.(MD) (Entered: 09/03/2014)

10/17/2014

16 MOTION to Certify Class [Plaintiff's Motion for Class Certification] by Plaintiff Adam Dunakin. Noting Date 11/14/2014, (Hamburger, Eleanor) (Entered: 10/17/2014)

10/17/2014

17 MOTION for Partial Summary Judgment Re: Pre-Admission Screening and Resident Review (PASRR) Eligibility by Plaintiff Adam Dunakin. (Attachments: # 1 Appendix 1) Noting Date 11/14/2014, (Hamburger, Eleanor) (Entered: 10/17/2014)

10/17/2014

18 DECLARATION of Kimberlee Hollinger filed by Plaintiff Adam Dunakin re 17 MOTION for Partial Summary Judgment Re: PreAdmission Screening and Resident Review (PASRR) Eligibility, 16 MOTION to Certify Class [Plaintiff's Motion for Class Certification] (Hamburger, Eleanor) (Entered: 10/17/2014)

10/17/2014

19 DECLARATION of Deborah Hill, Ph.D. filed by Plaintiff Adam Dunakin re 17 MOTION for Partial Summary Judgment Re: PreAdmission Screening and Resident Review (PASRR) Eligibility, 16 MOTION to Certify Class [Plaintiff's Motion for Class Certification] (Attachments: # 1 Exhibit A-B)(Hamburger, Eleanor) (Entered: 10/17/2014)

10/17/2014

20 DECLARATION of Susan Kas filed by Plaintiff Adam Dunakin re 17 MOTION for Partial Summary Judgment Re: Pre-Admission Screening and Resident Review (PASRR) Eligibility, 16 MOTION to

Certify Class [Plaintiff's Motion for Class Certification] (Attachments: # 1 Exhibit A-D)(Hamburger, Eleanor) (Entered: 10/17/2014)

10/17/2014

21 DECLARATION of Eleanor Hamburger filed by Plaintiff Adam Dunakin re 17 MOTION for Partial Summary Judgment Re: PreAdmission Screening and Resident Review (PASRR) Eligibility, 16 MOTION to Certify Class [Plaintiff's Motion for Class Certification] (Attachments: # 1 Exhibit A-M)(Hamburger, Eleanor) (Entered: 10/17/2014)

11/10/2014

22 RESPONSE, by Defendants Kevin W Quigley, Dorothy F Teeter, to 16 MOTION to Certify Class [Plaintiff's Motion for Class Certification]. (Attachments: # 1 Proposed Order)(Coats McCarthy, Angela) (Entered: 11/10/2014)

11/10/2014

23 RESPONSE, by Defendants Kevin W Quigley, Dorothy F Teeter, to 17 MOTION for Partial Summary Judgment Re: Pre-Admission Screening and Resident Review (PASRR) Eligibility. (Attachments: # 1 Proposed Order)(Coats McCarthy, Angela) (Entered: 11/10/2014)

11/10/2014

24 MOTION for Judgment on the Pleadings and Partial Summary Judgment by Defendants Kevin W Quigley, Dorothy F Teeter. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order) Noting Date 12/5/2014, (Coats McCarthy, Angela) (Entered: 11/10/2014)

11/10/2014

25 MOTION to Seal Declaration of Dr. Christen Kishel by Defendants Kevin W Quigley, Dorothy F Teeter. (Attachments: # 1 Proposed Order) Noting Date 11/21/2014, (Coats McCarthy, Angela) (Entered: 11/10/2014)

11/10/2014

26 SEALED DOCUMENT Declaration of Dr. Christen Kishel by Defendants Kevin W Quigley, Dorothy F Teeter re 25 MOTION to Seal Declaration of Dr. Christen Kishel(Attachments: # 1 Attachment A, # 2 Attachment B)(Coats McCarthy, Angela) (Entered: 11/10/2014)

11/10/2014

27 DECLARATION of Shannon Manion re 23 Response to Motion by Defendants Kevin W Quigley, Dorothy F Teeter (Attachments: # 1 Attachment A, # 2 Attachment B)(Coats McCarthy, Angela) (Entered: 11/10/2014)

11/10/2014

28 DECLARATION of Terry Hehemann re 23 Response to Motion, 22 Response to Motion by Defendants Kevin W Quigley, Dorothy F Teeter (Attachments: # 1 Attachment A, # 2Attachment B, # 3 Attachment C)(Coats McCarthy, Angela) (Entered: 11/10/2014)

11/10/2014 29 DECLARATION of Michelle Teed re 23 Response to Motion, 24 MOTION for Judgment on the Pleadings and Partial

Summary Judgment, 22 Response to Motion by Defendants Kevin W Quigley, Dorothy F Teeter (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D, # 5 Attachment E, # 6 Attachment F)(Coats McCarthy, Angela) (Entered: 11/10/2014)

11/10/2014

30 DECLARATION of Gail Kreiger filed by Defendants Kevin W Quigley, Dorothy F Teeter re 24 MOTION for Judgment on the Pleadings and Partial Summary Judgment (Coats McCarthy, Angela) (Entered: 11/10/2014)

11/12/2014 31 ORDER granting 25 Defendant's Motion to Seal by Judge James L. Robart.(MD) (Entered: 11/12/2014)

11/14/2014

32 PRAECIPE to attach document (insert two pages into Exhibit E) re 21 Declaration, by Plaintiff Adam Dunakin (Attachments: # 1 Errata Two pages to be inserted)(Hamburger, Eleanor) (Entered: 11/14/2014)

11/14/2014

33 REPLY, filed by Plaintiff Adam Dunakin, TO RESPONSE to 16 MOTION to Certify Class [Plaintiff's Motion for Class Certification] (Hamburger, Eleanor) (Entered: 11/14/2014)

11/14/2014

34 REPLY, filed by Plaintiff Adam Dunakin, TO RESPONSE to 17 MOTION for Partial Summary Judgment Re: Pre-Admission Screening and Resident Review (PASRR) Eligibility(Hamburger, Eleanor) (Entered: 11/14/2014)

11/14/2014

35 DECLARATION of David Carlson filed by Plaintiff Adam Dunakin re 17 MOTION for Partial Summary Judgment Re: Pre-Admission Screening and Resident Review (PASRR) Eligibility, 16 MOTION to Certify Class [Plaintiff's Motion for Class Certification] (Attachments: # 1 Exhibit A-D)(Hamburger, Eleanor) (Entered: 11/14/2014)

11/14/2014

36 Second DECLARATION of Deborah Hill, Ph.D. filed by Plaintiff Adam Dunakin re 17 MOTION for Partial Summary Judgment Re: PreAdmission Screening and Resident Review (PASRR) Eligibility, 16 MOTION to Certify Class [Plaintiff's Motion for Class Certification] (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hamburger, Eleanor) (Entered: 11/14/2014)

11/14/2014

37 DECLARATION of Eleanor Hamburger filed by Plaintiff Adam Dunakin re 17 MOTION for Partial Summary Judgment Re: PreAdmission Screening and Resident Review (PASRR) Eligibility, 16 MOTION to Certify Class [Plaintiff's Motion for Class Certification] (Attachments: # 1 Exhibit N-P)(Hamburger, Eleanor) (Entered: 11/14/2014)

11/26/2014

38 NOTICE that the following is RE-NOTED: 24 MOTION for Judgment on the Pleadings and Partial Summary Judgment. Filed by Defendants Kevin W Quigley, Dorothy F Teeter. Noting Date 12/12/2014, (Coats McCarthy, Angela) (Entered: 11/26/2014)

12/05/2014

39 NOTICE of Appearance by attorney Matthew S. King on behalf of Defendants Kevin W Quigley, Dorothy F Teeter. (King, Matthew) (Entered: 12/05/2014)

12/08/2014

40 RESPONSE, by Plaintiff Adam Dunakin, to 24 MOTION for Judgment on the Pleadings and Partial Summary Judgment. (Hamburger, Eleanor) (Entered: 12/08/2014)

12/08/2014

41 DECLARATION of Eleanor Hamburger filed by Plaintiff Adam Dunakin re 24 MOTION for Judgment on the Pleadings and Partial Summary Judgment (Attachments: # 1 Exhibit A-C)(Hamburger, Eleanor) (Entered: 12/08/2014)

12/12/2014

42 REPLY, filed by Defendants Kevin W Quigley, Dorothy F Teeter, TO RESPONSE to 24 MOTION for Judgment on the Pleadings and Partial Summary Judgment (Coats McCarthy, Angela) (Entered: 12/12/2014)

04/10/2015

43 ORDER ON MOTIONS TO DISMISS, FOR CLASS CERTIFICATION, AND FOR PARTIAL SUMMARY re: 16 Motion to Certify Class; 17 Motion for Partial Summary Judgment; 24 Motion for Judgment on the Pleadings, by Judge James L. Robart.(MD) (Entered: 04/10/2015)

04/16/2015

44 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Michelle Teed for Defendants Kevin W Quigley, Dorothy F Teeter. (Teed, Michelle) (Entered: 04/16/2015)

04/17/2015

Set/Reset Deadlines: The court directs the parties to file a Joint Status Report by May 1, 2015. The JSR should include when the parties believe discovery will be complete and the case will be ready for trial. (CC) (Entered: 04/17/2015)

04/24/2015

45 MOTION for Reconsideration by Defendants Kevin W Quigley, Dorothy F Teeter. Noting Date 4/24/2015, (King, Matthew) (Entered: 04/24/2015)

04/24/2015

46 Second DECLARATION of Terry Hehemann filed by Defendants Kevin W Quigley, Dorothy F Teeter re 45 MOTION for Reconsideration (Attachments: # 1 Attachment A)(King, Matthew) (Entered: 04/24/2015)

04/28/2015

47 ORDER directing response and RE-Noting Date 5/15/2015 - 45 MOTION for Reconsideration , by Judge James L. Robart. (MD) (Entered: 04/28/2015)

05/01/2015 48 JOINT STATUS REPORT signed by all parties estimated Trial Days: 8. (Kas, Susan) (Entered: 05/01/2015)

05/05/2015

49 Stipulated MOTION and PROPOSED ORDER FOR ADDITIONAL TIME ON DEFENDANT'S MOTION FOR RECONSIDERATION by Plaintiff Adam Dunakin. (Kas, Susan) (Entered: 05/05/2015)

05/05/2015

50 MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES, AND DESIGNATING CASE FOR MEDIATION; Length of Trial: *8 days*. Bench Trial is set for 8/8/2016 at 01:30 PM in Courtroom 14106 before Judge James L. Robart. Joinder of Parties due by 6/2/2015, Amended Pleadings due by 2/10/2016, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 2/10/2016, Motions due by 3/11/2016, Discovery completed by 4/11/2016, Dispositive motions due by 5/10/2016, Attorney settlement conference to be held by 6/9/2016, Motions in Limine due by 6/27/2016, Pretrial Order due by 7/20/2016, Pretrial Conference set for 7/25/2016 at 02:00 PM before Judge James L. Robart. Trial briefs to be submitted by 8/1/2016, Proposed Findings of Fact and Conclusions of Law to be submitted by 8/1/2016, by Judge James L. Robart. (CC) (Entered: 05/05/2015)

05/05/2015

51 ORDER granting 49 Stipulated Motion for additional time on 45 Defendant's MOTION for Reconsideration . RE- Noting Date 5/22/2015 re 45 MOTION for Reconsideration , by Judge James L. Robart.(MD) (Entered: 05/06/2015)

05/08/2015 52 AMENDED COMPLAINT against defendant(s) All Defendants, filed by Adam Dunakin.(Kas, Susan) (Entered: 05/08/2015)

05/15/2015 53 RESPONSE, by Plaintiff Adam Dunakin, to 45 MOTION for Reconsideration . (Hamburger, Eleanor) (Entered: 05/15/2015)

05/15/2015

54 DECLARATION of Eleanor Hamburger filed by Plaintiff Adam Dunakin re 45 MOTION for Reconsideration (Attachments: # 1 Exhibit A-D)(Hamburger, Eleanor) (Entered: 05/15/2015)

05/22/2015

55 REPLY, filed by Defendants Kevin W Quigley, Dorothy F Teeter, TO RESPONSE to 45 MOTION for Reconsideration (King, Matthew) (Entered: 05/22/2015)

05/22/2015

56 Third DECLARATION of Terry Hehemann filed by Defendants Kevin W Quigley, Dorothy F Teeter re 45 MOTION for Reconsideration (King, Matthew) (Entered: 05/22/2015)

05/22/2015 57 ANSWER to 52 Amended Complaint by Kevin W Quigley, Dorothy F Teeter.(Coats McCarthy, Angela) (Entered: 05/22/2015)

07/01/2015 58 ORDER denying 45 Defendants' Motion for Reconsideration by Judge James L. Robart.(MD) (Entered: 07/01/2015)

07/07/2015 59 STIPULATION AND PROPOSED ORDER Protective Order by parties (Coats McCarthy, Angela) (Entered: 07/07/2015)

07/23/2015 60 REVISED ADAPTED MODEL STIPULATED PROTECTIVE ORDER by Judge James L. Robart. (RS) (Entered: 07/23/2015)

08/10/2015

61 NOTICE(ORDER) FROM NINTH CIRCUIT COURT OF APPEALS (15-80076): The court, in its discretion, denies the petition for permission to appeal the district courts April 10, 2015 order granting class action certification. See Fed. R. Civ. P. 23(f); Chamberlan v. Ford Motor Co., 402 F.3d 952 (9th Cir. 2005) (per curiam). (RE) (Entered: 08/11/2015)

02/03/2016

62 Stipulated MOTION AND PROPOSED ORDER TO STAY TRIAL AND RELATED DATES by Plaintiff Adam Dunakin. (Kas, Susan) (Entered: 02/03/2016)

02/08/2016

63 ORDER granting in part and denying in part 62 Stipulated Motion to stay trial and case schedule; Amended Pleadings due by 2/26/2016, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 2/26/2016, Motions due by 3/18/2016, by Judge James L. Robart.(RS) (Entered: 02/08/2016)

03/10/2016 64 NOTICE of Appearance by attorney Sarah Eaton on behalf of Plaintiff Adam Dunakin. (Eaton, Sarah) (Entered: 03/10/2016)

03/30/2016

65 NOTICE from Mediator Paris K. Kallas, that on February 19, 2016 and March 17, 2016, the parties participated in a mediation. (Kallas, Paris) (Entered: 03/30/2016)

04/01/2016

66 MOTION to Stay Trial and Related Dates by Defendants Kevin W Quigley, Dorothy F Teeter. (Attachments: # 1 Exhibit) Noting Date 4/1/2016, (Coats McCarthy, Angela) (Entered: 04/01/2016)

04/04/2016

67 ORDER granting 66 Stipulated Motion to Stay Trial and Related Dates; if the stay is lifted and the parties are unable to finalize settlement, the court will assign a new trial date, by Judge James L. Robart. (AD) (Entered: 04/04/2016)

05/12/2016 68 JOINT STATUS REPORT signed by all parties estimated Trial Days: 8. (King, Matthew) (Entered: 05/12/2016)

06/30/2016 69 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. (Kas, Susan) (Entered: 06/30/2016)

07/22/2016 70 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. (Kas, Susan) (Entered: 07/22/2016)

08/15/2016

71 Unopposed MOTION Plaintiff's Unopposed Motion for: (1) Preliminary Approval of Settlement Agreement; (2) Approval of Class Notice Package; and (3) Establishment of a Settlement Approval Hearing and Process by Plaintiff Adam Dunakin. (Attachments: # 1 Exhibit Apps. 12, # 2 Proposed Order Proposed Order) Noting Date 9/2/2016, (Hamburger, Eleanor) (Entered: 08/15/2016)

08/15/2016

72 DECLARATION of SUSAN KAS filed by Plaintiff Adam Dunakin re 71 Unopposed MOTION Plaintiff's Unopposed Motion for: (1) Preliminary Approval of Settlement Agreement; (2) Approval of Class Notice Package; and (3) Establishment of a Settlement Approval Hearing and Process (Attachments: # 1 Exhibit Exhibit A)(Hamburger, Eleanor) (Entered: 08/15/2016)

08/22/2016

73 ORDER TO SHOW CAUSE by Judge James L. Robart re Plaintiff's 71 Unopposed MOTION for Preliminary Approval of Class Settlement Agreement. Parties to file a joint response by 8/29/2016. (PM) (Entered: 08/22/2016)

08/29/2016

74 RESPONSE TO ORDER TO SHOW CAUSE by Plaintiff Adam Dunakin (Attachments: # 1 Exhibit Apps. A-D)(Hamburger, Eleanor) (Entered: 08/29/2016)

08/29/2016

75 PROPOSED ORDER (Unsigned) re 74 Response to Order to Show Cause [Revised Proposed] Order: (1) Preliminarily Approving Settlement Agreement; (2) Approving Class Notice; and (3) Establishing a Final Settlement Approval Hearing and Process (Hamburger, Eleanor) (Entered: 08/29/2016)

09/12/2016

76 ORDER by Judge James L. Robart re Plaintiff's 71 Motion for Order Preliminarily Approving Settlement Agreement, Approving Class Notice, and Establishing a Final Settlement Approval Hearing and Process. In-court Hearing set for 1/9/2017 at 10:00 AM before Judge James L. Robart. (AD) (Entered: 09/12/2016)

09/14/2016

77 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Matthew S. King for Defendants Kevin W Quigley, Dorothy F Teeter. (King, Matthew) (Entered: 09/14/2016)

11/23/2016 78 DECLARATION of Angela Coats McCarthy re 76 Order on Motion for Miscellaneous Relief,, Set/Reset Hearings, by Defendants Kevin W

Quigley, Dorothy F Teeter (Coats McCarthy, Angela) (Entered: 11/23/2016)

11/28/2016

79 Unopposed MOTION for Attorney Fees and Litigation Costs by Plaintiff Adam Dunakin. Noting Date 1/9/2017, (Hamburger, Eleanor) (Entered: 11/28/2016)

11/28/2016

80 DECLARATION of Eleanor Hamburger filed by Plaintiff Adam Dunakin re 79 Unopposed MOTION for Attorney Fees and Litigation Costs (Attachments: # 1 Exhibit A-D)(Hamburger, Eleanor) (Entered: 11/28/2016)

12/28/2016

81 MOTION Class's Motion for Final Approval of Settlement Agreement, Award of Lodestar Attorneys' Fees and Litigation Costs re 76 Order on Motion for Miscellaneous Relief,, Set/Reset Hearings, by Plaintiff Adam Dunakin. (Attachments: # 1 Proposed Order) Noting Date 1/9/2017, (Hamburger, Eleanor) (Entered: 12/28/2016)

12/28/2016

82 DECLARATION of Eleanor Hamburger filed by Plaintiff Adam Dunakin re 81 MOTION Class's Motion for Final Approval of Settlement Agreement, Award of Lodestar Attorneys' Fees and Litigation Costs re 76 Order on Motion for Miscellaneous Relief,, Set/Reset Hearings, (Hamburger, Eleanor) (Entered: 12/28/2016)

12/28/2016

83 NOTICE of Change of Address/Change of Name of Attorney Eleanor Hamburger. Filed by Plaintiff Adam Dunakin. (Hamburger, Eleanor) Modified Address on 12/29/2016 (DS). (Entered: 12/28/2016)

01/09/2017

84 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Sarah Eaton, Susan Kas; Def Counsel: Angela McCarthy; CR:Nancy Bauer; Final Approval Hearing held on 1/9/2017. The court hears from counsel re: approval of the settlement agreement. The court grants Plaintiff's Motion for Attorney Fees and Litigation Costs (Dkt. # 79 ) and Plaintiff's Motion for Final Approval of Settlement Agreement (Dkt. # 81 ). (AD) (Entered: 01/10/2017)

01/10/2017

85 ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS re 79 Motion for Attorney Fees and 81 Motion for Final Approval of Settlement Agreement, by Judge James L. Robart. (PM) (Entered: 01/11/2017)

02/08/2017 86 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of the settlement agreement held on 1/9/2017 before Judge James L. Robart.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Nancy Bauer, nancy_bauer@wawd.uscourts.gov, 206-370-8506.
Release of Transcript Restriction set for 5/9/2017, (NB) (Entered: 02/08/2017)

 
 Case 2:14-cv-00567-JLR Document 1 Filed 04/16/14 Page 1 of 16

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

ADAM DUNAKIN, by and through his parent

10 and next friend, KIMBERLEE HOLLINGER individually, and on behalf of similarly situated

NO. 2:14-cv-00567

11 individuals,

COMPLAINT

12

Plaintiff,

(CLASS ACTION)

13

v.

KEVIN W. QUIGLEY, in his official capacity as 14 Secretary of the Washington State Department of
Social and Health Services; and DOROTHY F. 15 TEETER, in her official capacity as Director of
the Washington State Health Care Authority,
16 Defendants.

17 I. OVERVIEW
18 1. Defendants, and their agencies, the Health Care Authority and the Department of

19 Social and Health Services, do not have an adequate system in place for persons with

20 intellectual disabilities and related conditions living in privately-operated Medicaid-certified

21 nursing facilities to be screened, assessed and/or receive specialized services, in violation of the

22
COMPLAINT (CLASS ACTION) - 1

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 1 Filed 04/16/14 Page 2 of 16

1 Medicaid Act and the Nursing Home Reform Act (NHRA). Defendants’ systemic failures have

2 caused plaintiff and putative class members to languish in institutional facilities, segregated

3 from family and friends, without the services that they need to maximize their independence

4 and without the opportunity to live in an integrated community-based setting.

5

2. Plaintiff’s counsel, Disability Rights Washington, has raised this issue with

defendants repeatedly. After Disability Rights Washington conducted an extensive 6
investigation of Washington State’s failure to comply with NHRA requirements at just the state7
operated nursing facilities located at Lakeland Village, defendants disputed DRW’s findings. 8
Shortly thereafter, the federal government issued findings of over 40,000 violations of the
9 NHRA requirements for just 27 individuals residing at Lakeland Village. The problems found

10 at Lakeland Village are just the tip of the iceberg. Defendants’ failure to implement NHRA

11 requirements are systemic, statewide and occur in both state- and privately-operated nursing

12 facilities.

13

3. Defendants took action to address its NHRA violations in state-operated

14 Medicaid nursing homes. But they have left hundreds of Washington residents with

15 developmental disabilities languishing without NHRA screening, assessment and specialized

16 services at privately-operated nursing facilities.

17

4. This litigation seeks injunctive and declaratory relief to require defendants to

18 establish an adequate system to provide PASRR screenings, assessments, specialized services,
and, when appropriate, community-based integrated placement for plaintiff and class members, 19
all of whom reside in privately-operated Medicaid-certified Nursing facilities. Without 20
injunctive and declaratory relief, hundreds of individuals with developmental disabilities will 21

22
COMPLAINT (CLASS ACTION) - 2

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 1 Filed 04/16/14 Page 3 of 16

1 continue to languish in institutions, isolated from their home communities, without the services

2 they need to maximize their potential and live as independently as possible.

3

II. PARTIES

4

5. Plaintiff Adam Dunakin. Plaintiff Dunakin is a thirty-four (34) year old adult

with a developmental disability who resides at Everett Care and Rehabilitation Center, a 5
privately-operated, Medicaid-certified nursing facility in Everett, Washington. Mr. Dunakin is 6
eligible for Medicaid as well as for services from the Developmental Disabilities Administration 7
of the Washington State Department of Social and Health Services (DSHS). Mr. Dunakin has
8 been confined to a nursing home for nearly eight (8) years without being evaluated for the

9 specialized services he needs to maximize his health and well-being as well as independence.

10 He would prefer to live in his home community, if appropriate services to support him were

11 offered by defendants.

12

6. Defendant Kevin W. Quigley. Defendant Kevin Quigley is the Secretary of

13 DSHS, the state agency that includes the Developmental Disabilities Administration. DSHS,

14 through the Developmental Disabilities Administration, is responsible for implementing the

15 screening, evaluation and service delivery requirements under the Nursing Home Reform Act

16 (NHRA) and the Medicaid Act for developmentally disabled individuals living in privately-

17 operated Medicaid-certified nursing homes. Mr. Quigley is sued in his official capacity only.

All alleged acts by Mr. Quigley, DSHS and the Developmental Disabilities Administration were 18
taken under color of state law. 19
7. Defendant Dorothy F. Teeter. Defendant Dorothy Teeter is the Director of the 20
Washington State Health Care Authority. The Health Care Authority is the designated single
21 state agency for Washington’s Medicaid programs. Ms. Teeter is responsible for ensuring that

22
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1 the Medicaid program is administered in a manner consistent with all state and federal laws,

2 including the Medicaid Act and the NHRA. Ms. Teeter is sued in her official capacity only.

3 All alleged acts by Ms. Teeter and the Health Care Authority were taken under color of state

4 law.

5

III. JURISDICTION AND VENUE

8. Jurisdiction of this Court arises under 28 U.S.C. § 1331 because this action arises 6
under the laws of the United States, and 28 U.S.C. § 1343(3) and (4) which confer on the 7
federal district courts original jurisdiction over all claims asserted pursuant to 42 U.S.C. § 1983
8 to redress deprivations of rights, privileges or immunities guaranteed by Acts of Congress and

9 the United States Constitution.

10

9. Venue is proper pursuant to 28 U.S.C. § 1391(b). A substantial part of the

11 events or omissions giving rise to plaintiff’s claims occurred in the Western District of

12 Washington and defendants may be found here.

13

IV. LEGAL FRAMEWORK

14

10. More than twenty-five years ago, Congress passed the NHRA in order to end our

15 nation’s historical practice of inappropriately warehousing individuals with intellectual

16 disabilities and related conditions in nursing facilities. Congress concluded that thousands of

residents in nursing facilities were being abused, neglected and given inadequate care, while 17
many could live in less restrictive living situations in their home communities. The NHRA 18
mandated that Medicaid recipients with intellectual disabilities and related conditions in nursing 19
facilities be assessed to determine whether they could be served in a community-based setting,
20 and offered specialized services needed to maximize their skills, abilities and independence.

21 Around the country, passage of NHRA “opened the door” to community placement for many

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1 persons with intellectual disabilities who previously had no alternative to life in an institution.

2 For others, the NHRA meant more fulfilling, more independent lives even if they continued to

3 live in an institutional setting.

4

11. Under the NHRA, defendants are required to screen and assess individuals with

5 intellectual disabilities and related conditions seeking admission or residing in Medicaid-
certified nursing facilities, including privately-operated nursing facilities. This screening and 6
assessment process is known as the Pre-Admission Screening and Resident Review (PASRR) 7
process. 42 U.S.C § 1396r(e)(7)(A). Defendants must make two determinations: (1) whether 8
nursing home placement is appropriate to the individual’s needs; and (2) whether the individual 9
would benefit from specialized services to meet their individualized needs for skill building and
10 maintenance and/or to assist them to live in an integrated community setting. 42 U.S.C
11 § 1396r(b); (e); 42 C.F.R. §§ 483.120; .126; .130; .132. Once an individual is assessed, NHRA

12 obligates defendants to inform the individual about the availability of community based and

13 specialized services and provide and/or arrange and pay for the specialized services that the

14 individual is assessed to need. 42 U.S.C. § 1396r(e)(7)(A)-(C). In short, the NHRA provides a

15 clear pathway to integrated, community-based placement and/or to services designed to

16 maximize an individual’s physical, mental and general well-being while living in a nursing

17 facility.

18

12. In addition to the NHRA requirements, Title II of the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, and the Rehabilitation Act of 1973, 19
29 U.S.C. § 794, are designed to ensure that individuals with disabilities receive their services 20
in the least restrictive, most integrated setting appropriate. Defendants’ failure to conduct the 21
required NHRA screenings and assessments has resulted in the unnecessary and discriminatory
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1 segregation of plaintiff and the putative class in restrictive nursing facilities. Defendants’ acts

2 and omissions contravene the integration and nondiscrimination mandates of the ADA and

3 Rehabilitation Acts.

4

13. These federal laws, taken together, mandate that defendants establish a system

5 for screening and assessing current and new privately-operated Medicaid-certified nursing home

residents with intellectual disabilities and related conditions, and if needed, providing them with 6

specialized services to promote their well-being and independence and/or community-based 7

services as an alternative to nursing home placement.
8 V. CLASS ALLEGATIONS

9

14. Definition of Class. The class consists of all individuals who:

10

(a) are or will be residents of Medicaid-certified, privately-operated nursing

11 facilities in the State of Washington; and

12

(b) who are Medicaid recipients with an intellectual disability or related

13 condition(s) such that they are eligible to be screened and assessed pursuant to 42 U.S.C.

14 § 1396r(e)(7) and 42 C.F.R. § 483.112 et seq.

15

15. Size of Class. The class of Medicaid recipients who reside in privately-operated,

16 Medicaid-certified nursing facilities who are eligible for screening, assessment and services
17 under the NHRA is expected to be so numerous that joinder of all members is impracticable.
According to defendants, approximately 300 individuals have been identified as having a 18
developmental disability and residing in privately-operated, Medicaid-certified nursing 19
facilities. See DDA 2014 Supplemental Budget, RHC Medicaid Compliance report, attached as 20
Appendix A.
21

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1

16. Class Representative Dunakin. Named plaintiff Adam Dunakin is diagnosed

2 with a developmental disability and is a client of the Developmental Disabilities Administration

3 of DSHS. He has been admitted twice to privately-operated, Medicaid-certified nursing
4 facilities since May 31, 2006. At the first admission, the nursing facility identified that plaintiff
5 Dunakin had a developmental disability and required further assessment. At the second admission, the nursing home failed to identify that Dunakin had a developmental disability.
6 Despite the initial screenings, defendants failed to conduct any further evaluations to determine
7 (1) whether Mr. Dunakin could be served in a more integrated community setting; and
8 (2) whether Mr. Dunakin needed specialized services. No specialized services were ever
9 provided. No notices about the availability of specialized services or alternative community-
10 based placement were provided. For nearly eight years, Mr. Dunakin has languished in
11 privately-operated nursing facilities without the services he needs to maximize his
12 independence and, ultimately, live in the least restrictive setting in his home community. His
13 claims are typical of the claims of the other members of the class, and, through his mother and

14 next friend, he will fairly and adequately represent the interests of the class. There is no known

15 conflict of interest among class members.

16

17. Common Questions of Law and Fact. This action requires the determination of

17 whether defendants violate the requirements under the NHRA, the ADA, the Rehabilitation Act,

18 the Medicaid Act and the Fourteenth Amendment by failing to have a system in place to (1)

properly determine whether plaintiff and the proposed class can be served in an integrated, less19
restrictive community-based setting and/or need specialized services to maximize their abilities 20
and independence; (2) provide, with reasonable promptness, specialized services identified by 21
any such determinations to plaintiff and the proposed class and (3) provide adequate notice and
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1 due process to plaintiff and the proposed class of their eligibility for Medicaid services

2 (including placement in a less restrictive setting and specialized services) and their right to

3 appeal any such determinations through an administrative fair hearing.

4

18. Defendants Have Acted on Grounds Generally Applicable to the Class.

5 Defendants, by failing to establish a system for appropriately screening, assessing and
delivering specialized services to plaintiff and proposed class members in Medicaid-certified, 6
privately-operated nursing facilities has acted on grounds generally applicable to the class, 7
rendering declaratory relief appropriate respecting the whole class. Certification is therefore 8
proper under Fed. R. Civ. P. 23(b)(2). 9
19. Questions of Law and Fact Common to the Class Predominate Over Individual
10 Issues. Alternatively, the class may be certified under Fed. R. Civ. P. 23(b)(3). The claims of
11 the individual class members are more efficiently adjudicated on a class-wide basis. Any

12 interest that individual members of the class may have in individually controlling the

13 prosecution of separate actions is outweighed by the efficiency of the class action mechanism.

14 Upon information and belief, there has been no class action suit filed against these defendants

15 for the relief requested in this action. This action can be most efficiently prosecuted as a class
16 action in the Western District of Washington, where defendants have their principal place of
17 business, do business, and where Mr. Dunakin resides. Issues as to defendants’ conduct in
18 applying standard policies and practices towards all members of the class predominate over questions, if any, unique to members of the class. Certification is therefore proper under Fed.
19 R. Civ. P. 23(b)(3).
20 20. Class Counsel. Plaintiff has retained experienced and competent class counsel.
21

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1

VI. BACKGROUND

2

21. Due to statewide budget cuts, in October 2010, the state-operated intermediate

3 care facility for persons with developmental disabilities at Lakeland Village was informed that

4 it had to cut costs by as much as $1.8 million. In response, Lakeland Village moved 27
residents from its intermediate care facility to its nursing facility, and reduced programs and 5
staffing at both types of programs. 6
22. Moving residents from an intermediate level of care to a nursing facility program 7
resulted in a significant loss of services to the 27 individuals, since intermediate care facility 8
placement requires that all residents receive “active treatment,” while residents in nursing
9 facilities only receive “specialized services” once they are screened and assessed under the

10 NHRA requirements.

11

23. Since 1989, CMS has forbidden states from making these types of cuts in

12 services. “[P]lacement by the State of individuals with [mental illness or intellectual

13 disabilities] in nursing facilities as a means of avoiding responsibility for provision of the active

14 treatment these individuals need will no longer be tolerated.” CMS, State Medicaid Manual,

15 CMS Pub. 45, Chap. 4 § 4250 at 4-244 (Rev. 42, Mar. 1989), attached as Appendix B.

16 Nonetheless, defendants proceeded with the reductions in services.

17

24. DRW conducted an extensive investigation into what happened to the 27

residents after their move. On October 31, 2012, DRW reported its findings to defendant 18
Quigley’s predecessor, Robin Arnold-Williams. DRW concluded that defendants were not 19
meeting the NHRA requirements at Lakeland Village. Defendants disagreed and hired a 20
consultant to review their implementation of NHRA. Ultimately, defendants informed the
21

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1 Center for Medicaid and Medicare Services (CMS), the federal agency overseeing Medicaid

2 programs about DRW’s concerns. CMS then conducted its own review.

3

25. The federal agency concluded that defendants had systematically failed to

4 comply with the NHRA requirements at Lakeland Village. “[W]e find that Lakeland Village

5 nursing facility is not in compliance with Section 1919 of the Act, is not in compliance with 42
CFR Part 483, that the remaining transferred Lakeland residents are not in an appropriate 6
setting, that the original transfer from the ICF/IID [Intermediate Care Facility for Individuals 7
with Intellectual Disabilities] violated federal law and that as a consequence the state has 8
received FFP [Federal Financial Participation, or the federal match for state payments for 9
Medicaid services] in error.” See Letter from Carol J.C. Peverly of CMS to defendant Teeter,
10 dated November 7, 2013, attached as Appendix C. CMS also announced that it would widen its
11 investigation to other state-operated, Medicaid-certified nursing facilities.

12

26. Since November 2013, DDA and HCA have operated under a corrective action

13 plan with CMS related to state-operated Medicaid-certified nursing facilities. See e.g., DDA

14 Pre-Admission Screening and Resident Review (PASRR) Status Report, February 26, 2014,

15 located at http://www.dshs.wa.gov/ddd (last visited March 13, 2014). The DDA correction plan

16 does not adequately address the needs of privately-operated nursing facility residents with

17 intellectual disabilities and/or related conditions to be thoroughly assessed to determine most

18 appropriate placement and provided with specialized services..

27. DDA admits as much. In its 2014 Supplemental Budget, DDA requested (and 19
the Legislature approved) funds specifically allocated to provide required PASRR assessments 20
and services in the state-operated nursing facilities. See Appendix A. DDA noted in the request 21
that its corrective action plan (and the requested budget allocation) “do[es] not address the issue
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1 of the approximately 300 people with a developmental disability who are currently in

2 community nursing facilities.”

3

28. Plaintiff Dunakin’s experience is typical of the proposal class. He has a

4 developmental disability that qualifies as an “intellectual disability or related condition” under
5 the NHRA.
29. On May 31, 2006, Mr. Dunakin was admitted to a privately-operated NF. 6
Consistent with the NHRA, a pre-admission screening was conducted. The screening properly 7
identified that Dunakin was a person with a developmental disability and that additional 8
evaluation was required. 9
30. Despite the initial screening, no further evaluation was ever conducted by
10 defendants. No specialized services were provided to Mr. Dunakin. No notice about the NHRA
11 assessment, its determination or the availability of specialized services through Medicaid was
12 ever provided to Mr. Dunakin or his mother.

13

31. On June 11, 2007, Mr. Dunakin transferred to a new nursing home. Once again,

14 Mr. Dunakin underwent a pre-admission screening. This time, the screen mistakenly presumed

15 that Mr. Dunakin’s medical condition should exempt him from further assessment and failed to
16 indicate that he has a developmental disability. Since his admission, no evaluation of Mr.
17 Dunakin’s need for specialized services has been conducted. Mr. Dunakin was never informed
18 about the specialized services he could receive at the new nursing facility or that he may be able to receive services in a community-based setting. Neither Dunakin nor his mother were
19 provided with notice about the incorrect screening, the availability of further evaluation and
20 specialized services, or the choices for community-based services.
21

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1

32. Plaintiff Dunakin would like to receive the services he needs in a less-restrictive

2 more integrated community based setting. Plaintiff lived with his mother until age 26 when his

3 nursing needs became too great for his mother to take care of at home without additional in-

4 home supports, which were never offered. Nonetheless, with access to specialized services, he

5 would like to live in a community-based setting, such as a supported living program, where he

can live and interact with people closer to his own age. In the meantime, he would like 6

specialized services in his nursing home so he can develop the independent living skills he 7

needs to live outside of a nursing home.
8 VII. CLAIMS FOR RELIEF

9

FIRST CLAIM: DECLARATORY RELIEF FOR VIOLATIONS

10

OF THE NURSING HOME REFORM ACT

33. Plaintiff re-alleges the paragraphs above. 11
34. Plaintiff and the class are entitled to declaratory relief pursuant to 42 U.S.C. 12
§1983 that defendants have violated the Nursing Home Reform Act and its implementing
13 regulations by failing to establish adequate policies, practices and procedures to ensure that

14 plaintiff and the class receive the required PASRR screening, assessment, the provision

15 specialized services and their choice of receiving services in the community rather than in

16 nursing facilities.

17

SECOND CLAIM: DECLARATORY RELIEF FOR VIOLATIONS

OF THE AMERICANS WITH DISABILITIES ACT 18
35. Plaintiff re-alleges the paragraphs above.

19 36. Plaintiff and the putative class are all “qualified individuals with a disability”

20 within the meaning of 42 U.S.C. § 12131(2). Plaintiff and class members have not been

21 assessed to determine what kinds of services they would need to live in an integrated setting in

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1 the community. They have not been given the choice of remaining in the nursing facility or

2 receiving appropriate services in the community.

3

37. Defendant’s acts and omissions effectively deny plaintiff and the proposed class

4 the community-based services that they need in order to avoid continued segregation in an
5 institution in violations of Title II of the ADA, 42 U.S.C. § 12132 and its implementing
regulations. 6
38. Defendants’ “methods of administration” further have the effect of subjecting 7
plaintiff and the class to discrimination on the basis of disability by subjecting them to 8
unnecessary and unjustified segregation, in violation of 28 C.F.R. § 35.130 (b)(3). 9
39. Defendants further discriminate against plaintiff and the class by denying them
10 access to services based upon the severity of their disabilities, in violation of 28 C.F.R § 35.130
11 (b)(1). As a result, defendants relegate plaintiff and the class to segregated facilities in violation
12 of the ADA.

13

THIRD CLAIM: DECLARATORY RELIEF FOR VIOLATIONS

OF SECTION 504 OF THE REHABILITATION ACT

14 40. Plaintiff re-alleges the paragraphs above.

15 41. Plaintiff and class members are qualified individuals with disabilities under

16 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (a). Defendants, HCA and DDA receive

17 federal financial assistance.

18

42. Defendants violate Section 504 of the Rehabilitation Act and its implementing

19 regulations by denying plaintiff and class members access to integrated community-based

20 programs appropriate to meet their needs and by requiring that plaintiff and class members be 21 confined in segregated nursing facilities in order to receive the services that they need.

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1

FOURTH CLAIM: DECLARATORY RELIEF FOR VIOLATIONS

OF TITLE XIX OF THE SOCIAL SECURITY ACT

2 43. Plaintiff re-alleges the paragraphs above.

3

44. Plaintiff and the class are entitled to declaratory relief pursuant to 42 U.S.C. §

4 1983 that defendants have violated Title XIX of the Social Security Act by failing to provide

5 Medicaid benefits to plaintiff and class members (1) with reasonable promptness, 42 U.S.C. §

6 1396a(a)(8); (a)(10)(A) and its implementing regulations; (2) in compliance with Medicaid

7 comparability requirements, 42 U.S.C. § 1396a(a)(10)(B)(i) and (ii); 42 C.F.R. § 440.240; (3)

8 with a meaningful choice of providers, including a choice between institutional and community

9 based services, 42 U.S.C. § 1396n(c)(2)(B); (C); and (4) with adequate written notice of

10 defendants’ determinations, as well as their right to appeal to defendants’ administrative hearing

11 process, pursuant to 42 C.F.R. § 431.200 et seq.

FIFTH CLAIM: DECLARATORY RELIEF FOR

12

CONSTITUTIONAL DUE PROCESS VIOLATIONS

13

45. Plaintiff re-alleges the paragraphs above.

14

46. Defendants’ actions deprive plaintiff and the class of rights, privileges and/or

15 immunities secured to them by the Constitution, in violation of 42 U.S.C. § 1983. Defendants’

16 failure to provide adequate notice and access to an administrative hearing violates federal

constitutional due process. 17

SIXTH CLAIM: INJUNCTIVE RELIEF 18
47. Plaintiff re-alleges the paragraphs above.

19

48. Plaintiff and the class are entitled to preliminary and permanent injunctive relief

20 pursuant to 42 U.S.C. § 1983 to require defendants to fully implement the NHRA, ADA,

21 Rehabilitation Act and Medicaid requirements as they apply to plaintiff and the proposed class.

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1

VIII. DEMAND FOR RELIEF

2

WHEREFORE, plaintiff requests that this Court:

3

1. Certify this case as a class action; designate the named plaintiff as class

4 representative; and designate DISABILITY RIGHTS WASHINGTON, Susan Kas, and SIRIANNI
YOUTZ SPOONEMORE HAMBURGER, Eleanor Hamburger, as class counsel; 5
2. Declare that that defendants’ failure to implement an adequate system for 6
ensuring that PASRR screening, assessments, specialized services, due process notice and the 7
choice of integrated community based services results in unnecessary segregation and 8
institutionalization of plaintiff and the class, and violates the NHRA, Title II of the ADA,
9 Section 504 of the Rehabilitation Act, the Medicaid Act and the 14th Amendment of the United

10 States Constitution;

11

3. Enjoin defendants from continued violations of the NHRA, Title II of the ADA,

12 Section 504 of the Rehabilitation Act, the Medicaid Act and the 14th Amendment of the United

13 States Constitution and require defendants to amend its policies, practices and procedures to

14 ensure that plaintiff and the class are:

15

(a) properly screened and evaluated as required by the NHRA;

16

(b) provided with appropriate services with reasonable promptness;

17

(c) informed that they may be eligible for community-based services,

and if eligible, that they have the right to choose to receive such 18
services in an institutional or integrated community setting; and 19
(d) provided, as appropriate, with long-term care services and
20 supports in the community with reasonable promptness;

21 4. Enter judgment in favor of plaintiff and the class;

22

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1

5. Award plaintiff and the class their attorney fees and costs; and

2

6. Award such other relief as is just and proper.

3

DATED: April 16, 2014.

4

5

6

7

DISABILITY RIGHTS WASHINGTON
/s/ Susan Kas Susan Kas (WSBA #36592) 315 – 5th Avenue South, Suite 850 Seattle, WA 98104 Tel. (206) 324-1521; Fax (206) 957-0729 Email: susank@dr-wa.org

8

SIRIANNI YOUTZ

9

SPOONEMORE HAMBURGER

10

/s/ Eleanor Hamburger Eleanor Hamburger (WSBA #26478)

11

999 Third Avenue, Suite 3650 Seattle, WA 98104

Tel. (206) 223-0303; Fax (206) 223-0246

12

Email: ehamburger@sylaw.com

13

Attorneys for Plaintiff

14

15

16

17

18

19

20

21

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 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 ADAM DUNAKIN,

11

Plaintiff,

12

v.

13 KEVIN W. QUIGLEY, et al.,

14

Defendants.

CASE NO. C14-0567JLR
ORDER ON MOTIONS TO DISMISS, FOR CLASS CERTIFICATION, AND FOR PARTIAL SUMMARY JUDGMENT

15

I. INTRODUCTION

16

Plaintiff Adam Dunakin is a 34-year-old man with a developmental disability, who

17 has lived in nursing facilities for more than eight years. (Compl. (Dkt. # 1) ¶ 5.) He

18 alleges that Defendants Kevin W. Quigley, in his official capacity as Secretary of the

19 Washington State Department of Social and Health Services (“DSHS”), and Dorothy F.

20 Teeter, in her official capacity as Director of the Washington State Health Care Authority

21 (“HCA”), have failed to provide him with screenings and evaluations, specialized

22 services, and notice of or planning for eventual community placement as required

ORDER- 1

1 pursuant to the Nursing Home Reform Act (“NHRA”), 42 U.S.C. § 1396r, and other

2 laws. (See generally Compl.) He further alleges that these failures have resulted in his

3 continued institutionalization and unnecessary isolation. (See id. ¶¶ 5, 12, 32.) He brings

4 his complaint on behalf of himself and a putative class of other residents of privately-

5 operated, Medicaid-certified nursing facilities in Washington State who are similarly

6 situated. (Id. ¶¶ 14-20.)

7

Before the court are three motions. Mr. Dunakin brings (1) a motion for class

8 certification (Mot. for Cert. (Dkt. # 16)) and (2) a motion for partial summary judgment

9 (PSJ Mot. (Dkt. # 17)). Defendants bring a motion for judgment on the pleadings and

10 partial summary judgment (Rule 12(c) Mot. (Dkt. # 24)). The court has reviewed the

11 parties’ motions, all submissions filed in support of and opposition thereto, the balance of

12 the record, and the applicable law. Being fully advised,1 the court GRANTS Mr.

13 Dunakin’s motions for class certification and partial summary judgment and GRANTS in

14 part and DENIES in part Defendants’ motion for dismissal on the pleadings and partial

15 summary judgment. However, with respect to the one portion of Defendants’ motion to

16 dismiss that the court grants, the court also grants Mr. Dunakin leave to amend his

17 complaint.

18 //

19 //

20

21

1 No party has requested oral argument, and the court deems oral argument to be

22 unnecessary to its disposition of all these motions.

ORDER- 2

1

II. BACKGROUND

2

A. Procedural History

3

Mr. Dunakin filed his complaint on April 16, 2014. (See generally Compl.) The

4 complaint enumerates six claims for relief. (See generally id.) Mr. Dunakin’s first claim

5 is based on Defendants’ alleged violations of certain provisions of the NHRA. (Id. ¶¶ 33-

6 34.) His second and third claims are based on alleged violations of Title II of the

7 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the

8 Rehabilitation Act, 29 U.S.C. § 794(a). (Compl. ¶¶ 35-42.) His fourth claim alleges

9 violations of certain provisions of Title XIX of the Social Security Act, 42 U.S.C.

10 §§ 1396a(a)(8), 1396a(a)(10)(B)(i), 1396n(c)(2)(B). (Compl. ¶¶ 43-44.) His fifth and

11 sixth claims seek declaratory and injunctive relief and are derivative of his first four

12 claims. (See id. ¶¶ 45-48.) Mr. Dunakin brings these claims on behalf of himself and a

13 putative class of similarly situated residents of privately-operated Medicaid-certified

14 nursing facilities in Washington State who have intellectual disabilities or related

15 conditions. (Id. ¶¶ 14-20.) Defendants filed an answer to Mr. Dunakin’s complaint on

16 May 8, 2014. (Answer (Dkt. # 8).)

17

Pursuant to the court’s scheduling order (Sched. Ord. (Dkt. # 9)), Mr. Dunakin

18 filed a motion for class certification on October 17, 2014 (see generally Mot. for Cert.),

19 as well as a motion for partial summary judgment on the issue of the proper standard for

20 PASRR screenings and evaluations (see generally PSJ Mot.). On November 10, 2014,

21 Defendants filed a motion for dismissal on the pleadings of all of Mr. Dunakin’s claims

22

ORDER- 3

1 and for partial summary judgment on two portions of his fourth claim under Title XIX of

2 the Social Security Act. (See generally Rule 12(c) Mot.)

3

B. The PASRR Process

4

In 1987, Congress passed the NHRA to end the practice of inappropriately placing

5 individuals with intellectual disabilities and related conditions in nursing facilities

6 without providing services for their unique needs. See Rolland v. Romney, 318 F.3d 42,

7 46 (1st Cir. 2003). As directed by the NHRA, the Center for Medicaid and Medicare

8 Services (“CMS”) issued regulations to screen and assess individuals with intellectual

9 disabilities and related conditions seeking admission to or residing in Medicaid-certified

10 nursing facilities, including privately-operated nursing facilities. See Rolland v. Cellucci,

11 52 F. Supp. 2d 231, 235 (D. Mass. 1999); 42 C.F.R. § 483.100, et. seq. This screening

12 and assessment process is known as the Pre-Admission Screening and Resident Review

13 (“PASRR”) process. 42 U.S.C. § 1396r(e)(7)(A). Under the PASRR process, Medicaid

14 recipients with intellectual disabilities and related conditions who are in or seek

15 admission to nursing facilities must be screened and evaluated to determine whether they

16 could be served in a community setting and require specialized services related to

17 training, therapies, or other means of accomplishing improved functioning. See Romney,

18 318 F.3d at 46.

19

The NHRA requires that states accepting federal Medicaid funds have a screening

20 plan, specifically a PASRR plan, to ensure that decisions to place individuals in nursing

21 facilities are made appropriately. 42 U.S.C. § 1396r(e)(7)(A)(i); 42 C.F.R. § 483.104.

22 The federal regulations developed under the NHRA require two levels of PASRR

ORDER- 4

1 evaluations. Level I of the PASRR process requires that the State “identify all

2 individuals who are suspected of having [an intellectual disability]” and who are being

3 referred to a nursing home. 42 C.F.R. § 483.128(a). PASRR “Level II is the function of

4 evaluating and determining whether [nursing facility] services and specialized services

5 are needed.” Id.

6

Within DSHS, the Developmental Disabilities Administration (“DDA”) has

7 responsibility for Washington State’s PASRR program. See 42 C.F.R. § 483.100 (“The

8 requirements of 42 C.F.R. §§ 483.100 through 483.138 governing the State’s

9 responsibility for . . . PASRR . . . of individuals with . . . intellectual disability are based

10 on section 1919(e)(7) of the Act”); (Hehemann Decl. (Dkt. # 28) ¶¶ 3-4.) DDA also

11 provides services to individuals with developmental disabilities under state law. See

12 RCW ch. 71A. The PASRR process and the process for determining whether an

13 individual is eligible for state services from the DDA are separate processes, although

14 both programs are administered through DDA. (See Manion Decl. (Dkt. # 27) ¶ 4.) In

15 Washington, HCA is the designated “single state agency” for Medicaid purposes, and

16 provides oversight of certain DSHS and DDA programs and functions. See RCW

17 74.04.050.

18

On September 25, 2014, DSHS described the PASRR process as it relates to

19 individuals with intellectual disabilities or related conditions in guidance it issued to all

20 Washington nursing facilities as follows:

21

PASRR is a long-standing federal requirement (42 CFR § [sic] 483.100-

138) to ensure that individuals with . . . intellectual disabilities or related

22

conditions (ID/RC) are not inappropriately placed in nursing facilities for

ORDER- 5

1

long term care. PASRR requires that all applicants to a Medicaid-certified

nursing facility:

2

1) Be evaluated for . . . ID/RC;

3

2) Be offered the most appropriate setting for their needs (in the

community, a nursing facility, or acute care settings); and

4

3) Receive the services they need in those settings.

5

The PASRR process begins with a Level I screening which is used to

identify those who may meet the criteria to be evaluated for specialized

6

services. The Level I screen must be performed prior to admission. . . .

7

The nursing facility is responsible for ensuring that the [Level I] form is

complete and accurate before admission. After admission, the NF [nursing

8

facility] must retain the Level I form as part of the resident record. In the

event the resident experiences a significant change in condition (either as a

9

major improvement or decline in condition), or if an inaccuracy in the

current Level I is discovered, the NF must complete a new PASRR Level I

10

and make referrals to the appropriate entities if a[n] . . . intellectual

disability or related condition is identified or suspected . . . .

11

If . . . ID/RC is identified or credibly suspected, a Level II evaluation is

12

required to confirm that identification, determine whether the individual

requires nursing facility level care, and determine whether specialized

13

services are required. With some exceptions, the Level II evaluation must

be completed prior to admission.

14

(Hamburger Decl. (Dkt. # 21) Ex. D at 1 (bolding in original).) Defendants also state that

15

if, upon review of a resident’s file, it becomes apparent that no Level I screening was

16

performed, or it was done incorrectly, then the nursing facility or the PASRR assessor

17

should complete a new PASRR Level I screening and refer the resident for a PASRR

18

Level II assessment, if indicated. (PSJ Resp. at 4 (citing Hehemann Decl. ¶ 6); see also

19

Hehemann Decl. ¶ 10.)

20

//

21

//

22

ORDER- 6

1

C. Recent PASRR Process Violations in Washington State

2

On November 13, 2013, CMS issued to DSHS and HCA a notice of multiple

3 PASRR violations with respect to 27 residents, whom DSHS transferred in 2011 from

4 Lakeland Village Intermediate Care Facility, a state-operated Residential Habilitation

5 Center (“RHC”) for individuals with developmental disabilities, to the Lakeland Village

6 nursing facility. (Kas Decl. (Dkt. # 20) ¶¶ 9-11, Ex. D.) Indeed, CMS found that DSHS

7 had violated federal PASRR requirements thousands of times for just the 27 individuals

8 involved in CMS’s investigation. (Id.) CMS found that the residents of Lakeland Village

9 had been transferred to the nursing facility without screening, evaluation, or the provision

10 of specialized services. (See id. Ex. D.)

11

Since November 2013, Defendants have operated under a plan of “remediation”

12 with CMS related to Defendants’ state-operated Medicaid-certified nursing facilities.

13 (See Hamburger Decl. Ex. A at 52:2-16, 146-49.) The “remediation” plan, however, does

14 not include privately-operated Medicaid-certified nursing facilities. (See id.; see also id.

15 Ex. C.) In a 2014 supplemental budget request, DSHS requested and obtained additional

16 funding to remediate its PASRR program to comply with federal Medicaid requirements

17 at state-operated DDA nursing facilities. (See generally id. Ex. C.) However, DSHS did

18 not request additional funding for PASRR at privately-operated nursing facilities, in

19 which approximately 300 people with developmental disabilities presently reside. (Id. at

20 06009150 (“These immediate steps to address the issues with the state-run RHC nursing

21 facilities do not address the issue of the approximately 300 people with a developmental

22 disability who are currently in community nursing facilities.”).) Nevertheless, the state is

ORDER- 7

1 responsible for conducting PASRR assessments upon admission or significant change in

2 medical status with respect to these individuals. (Id.)

3

During the conduct of discovery in this lawsuit, Defendants’ testimony or

4 documentary evidence otherwise provided support for the following assertions by Mr.

5 Dunakin concerning Defendants’ compliance with federal PASRR requirements for

6 residents of privately-operated nursing facilities:

7

• Defendants do not have systematic method for identifying and

screening residents of privately-operated nursing facilities for

8

intellectual disabilities and related conditions. (Praecipe to

Hamburger Decl. Ex. E (Dkt. # 32) (attaching Rule 30(b)(6)

9

Deposition of Terry Hehemann of DSHS) at 109:18-110:2 (stating

DSHS has “no clear means to absolutely identify who does and who

10

[does not] need PASRR Level II” evaluations).)

11

• Defendants have not conducted complete PASRR evaluations for all

of the individuals they have identified with intellectual disabilities or

12

related conditions living in privately-operated nursing facilities, and

although Defendants had a “goal” of completing these evaluations

13

“by the end of 2014,” they have no concrete deadline for doing so

because they “have no clear means to absolutely identify who does

14

and who [does not] need PASRR Level II.” (See id.; see also

Hamburger Decl. Ex. E (attaching Rule 30(b)(6) Deposition of Terry

15

Hehehman) at 99:18-22; id. Ex. A (attaching Rule 30(b)(6)

Deposition of Don Clintsman of DSHS) at 140:1-17 (“We’re

16

working on the community, getting those done, the 350 done.”).)2

17

• Defendants presently have no formal tracking system to monitor

whether specialized services identified as a result of a PASRR

18

evaluation are actually provided, although DSHS is moving to an

19

20

2 Defendants provide testimony that they have now reassessed approximately 270

individuals in privately-operated Medicaid-certified nursing facilities, which they also state

21 represents over 90% of the individuals who they initially contemplated might require review. (Hehemann Decl. ¶ 6.) However, as discussed below, the evidence before the court does not

22

indicate that this review was completed using the correct standard for PASRR. (See infra §§ II.F, III.C.2.)

ORDER- 8

1

electronic system that will be able to provide such tracking in the

future. (Hamburger Decl. Ex. E at 119:7-121:3.)

2

• Defendants have no quality assurance system in place to ensure the

3

proper and timely provision of PASRR screening, evaluation, and

recommended specialized services for residents of privately-

4

operated nursing facilities. (Id. Ex. F (attaching Rule 30(b)(6)

Deposition of Larita Paulsen of DSHS) at 77:21-81:13 (stating she is

5

unaware of any such quality assurance activities by DSHS).)

6

D. Evidence Concerning Mr. Dunakin’s Medical Condition and

Disability 7

According to Dr. Deborah Hill, a licensed psychologist and a member of the team 8

of clinicians who evaluated Mr. Dunakin at Seattle Children’s Hospital in 1995 and 1997, 9

Mr. Dunakin’s medical history indicates a diagnosis, prior to the age of 21, of muscular 10

dystrophy, specifically fascio-scapulo-humeral muscular dystrophy (“FSHMD”) and/or 11

myotonic dystrophy. (Hill Decl. (Dkt. # 19) ¶¶ 3-5.) Accordingly, Dr. Hill opines that 12

Mr. Dunakin has “a ‘related condition’ to intellectual disability as defined in [the federal 13

PASRR regulations].” (Id. ¶ 2; see also id. ¶ 3.) 14

Defendants, however, dispute this assessment. Dr. Christen A. Kishel, a clinical 15

psychologist who works for DDA, testifies that she does “not see any document . . . that 16

has an original diagnosing physician” indicating a diagnosis of FSHMD. (Kishel Decl. 17

(Dkt. # 26) ¶ 10 at 4-5.) Dr. Kishel has little doubt that “Mr. Dunakin does indeed suffer 18

from a congenital neuromuscular disorder as has been presumed by licensed physicians 19

and by Dr. Hill . . . .” (Id. ¶ 12.) However, Dr. Kishel believes that “without a specific 20

diagnosis from an appropriate first-hand source . . . it is impossible to conclude that Mr. 21

Dunakin’s neuromuscular condition ‘is known by reputable authorities to cause 22

ORDER- 9

1 intellectual and adaptive skills deficits’ as required by [Washington State regulations].”3

2 (Id.) She opines that “[t]he working diagnosis listed in the children’s hospital discharge

3 summary, ‘presumptive muscular dystrophy[,]’ is too broad to draw specific conclusions

4 with regard to impact on intellectual and adaptive functioning.” (Id. ¶ 10 at 5.)

5 Ultimately, Dr. Kishel also disagrees with Dr. Hill’s conclusion that Mr. Dunakin has a

6 “related condition” to intellectual disability as defined in [the federal PASRR

7 regulations].” (Id. ¶ 16.)

8

E. Mr. Dunakin’s Eligibility for DDA State Services and PASRR Reviews

9

Despite Defendants’ present misgivings concerning Mr. Dunakin’s diagnosis and

10 the causes of his intellectual disabilities, there is no dispute that they previously

11 determined that he was eligible for state services as a result of limitations in his

12 intellectual and adaptive abilities. In 1999, Washington’s Division of Developmental

13 Disabilities (“DDD”), which is now known as DDA, determined that Mr. Dunakin was

14 eligible for state services based on his diagnosis of muscular dystrophy and limitations in

15 his cognitive and adaptive functioning as assessed in an evaluation called the ICAP.

16 (Kishel Decl. ¶ 4; Hollinger Decl. (Dkt. # 18) ¶ 3; see also Hamburger Decl. Ex. J; Hill

17 Decl. ¶ 10; Manion Decl. (Dkt. # 27) ¶ 8.) Indeed, while Mr. Dunakin lived at home with

18

19

3 Dr. Kishel opines that “[w]hile state WACs have fairly definitive criteria and

requirements, federal law, specifically 42 C.F.R. § 435.1010, is much less clear.” (Kishel Decl. ¶

20 13.) She further states that while PASRR professionals are “currently directed to use the federal definition when reviewing an individual for purposes of PASRR[,] . . . they may use some of the

21 state definitions, policies and procedures to address concepts that are undefined in federal law.” (Id. ¶ 14.) The court discusses Defendants’ use of state regulations for PASRR evaluations as

22

that usage pertains to the issues presently before the court in the context of its ruling on Mr. Dunakin’s motion for partial summary judgment. See infra § III.C.2.

ORDER- 10

1 his mother, he received Medicaid Personal Care and employment-related services from

2 DDA based on this 1999 assessment of eligibility. (Hollinger Decl. ¶ 3; see Hamburger

3 Decl. Ex. I (attaching Rule 30(b)(6) deposition of DSHS employee Leslie Terpstra) at

4 43:7-44:1, 45:11-19, 46:12-47:9; Ex. J.)

5

Mr. Dunakin lived at home with his mother until he suffered a spinal injury in

6 2005. (Hollinger Decl. ¶ 2.) When he was discharged from the hospital in May 2006, he

7 was sent to a Medicaid-certified privately-operated nursing facility. (Id.) From 2007, to

8 the present, he has been a resident of Everett Care and Rehabilitation Center, which is

9 such a facility. (Id.)

10

Individuals who are residents of nursing facilities may also be clients of DDA.

11 (PSJ Resp. at 6.) However, because the nursing facility is generally in charge of

12 residents’ care, nursing facility residents generally do not receive DDA paid services and

13 accordingly are placed in DDA’s “no paid services queue.” (See Teed Decl. (Dkt. # 29)

14 Ex. B (attaching Rule 30(b)(6) Hehemann Deposition) at 60:3-25; Hamburger Decl. Ex. I

15 at 44:2-22.) When Mr. Dunakin entered a nursing facility in 2006, he was placed on

16 DDA’s “no paid services queue” because he was no longer receiving paid DDA services.

17 (See Hamburger Decl. Ex. I at 44:2-22.) Nevertheless, Mr. Dunakin continued to be

18 enrolled with DDA and was considered to be a client of DDA for nearly the entire eight

19 years that he has lived in nursing facilities, until June 1, 2014—after the start of this

20 lawsuit. (Hollinger Decl. ¶ 3.)

21

Mr. Dunakin received a PASRR Level I screen related to his initial admission to a

22 nursing facility on May 31, 2006. (Hamburger Decl. Ex. G.) His 2006 PASRR Level I

ORDER- 11

1 form is undated, but appears on its face to have been sent via facsimile to DSHS on July

2 20, 2006. (Id.) Mr. Dunakin’s PASRR Level I screen indicates that he has documented

3 evidence of a developmental disability and that he has a history of a developmental

4 disability with onset before the age of 22. (Id.) Significantly, Mr. Dunakin’s 2006

5 PASRR Level I screen expressly states that a “Level II Evaluation is required.” (Id.)

6 DSHS, however, did not have a copy of Mr. Dunakin’s 2006 Level I PASRR screen in

7 its files, and Mr. Dunakin never received a Level II evaluation at that time. (See id. Ex.

8 H at 28-29, 40 (attaching Rule 30(b)(6) Deposition of Scott Watling of DSHS).)

9

Mr. Dunakin received a second PASRR Level I screen in May 2008, a full year

10 after he was transferred from his initial nursing facility to the Everett Rehabilitation and

11 Care Center. (Id. Ex. M.) Mr. Dunakin’s 2008 PASRR Level I screen directly

12 contradicts his 2006 PASRR Level I screen. (Compare id. Ex. G with id. Ex. M.) Mr.

13 Dunakin’s 2008 PASRR Level I screen states that he does not have “documented

14 evidence of a diagnosis of a developmental disability” and he has no “history of a

15 developmental disability” in his past with onset before age 22. (Id. Ex. M.) This

16 statement would also appear to be contrary to DDD’s 1999 determination that Mr.

17 Dunakin was eligible for state services for his developmental disabilities based on his

18 diagnosis of muscular dystrophy and limitations in his cognitive and adaptive

19 functioning. (See Hamburger Decl. Ex. J.) Further, his 2008 PASRR Level I screen

20 indicates that his condition is so severe that he is unable to participate in specialized

21 services. (Id.) DDA did not have a copy of this PASRR Level I screen in its files and

22

ORDER- 12

1 only discovered it in Mr. Dunakin’s file at his nursing facility after this lawsuit was filed.

2 (Id. Ex. H at 40-41.)

3

In 2014, DDA was aware that Mr. Dunakin was one of its clients who had not

4 received a Level II PASRR evaluation because he appeared on a list or report of DDA

5 clients who were living in nursing facilities. (Hamburger Decl. Ex. H (Watling Dep.) at

6 64:9-65:7.) On April 28, 2014, after the present lawsuit was filed, DDA sent Mr. Scott

7 Watling, a regional DSHS PASRR coordinator, to meet with Mr. Dunakin and conduct a

8 PASRR Level II evaluation. (Id. at 12:10, 15:14-18:6; Teed Decl. Ex. F at PROD-

9 000013 (“Scott Watling went out to meet with Adam Dunakin to complete a PASRR

10 2.”).) At approximately the same time, DDA also directed Ms. Leslie Terpstra, a DDA

11 eligibility review worker, to conduct a review of Mr. Dunakin’s eligibility for DDA state

12 services. (Id. Ex. I (attaching Rule 30(b)(6) Deposition of Leslie Terpstra of DSHS) at

13 12-13, 16-17.)

14

Although DDA notified Mr. Dunakin’s mother of the eligibility review for DDA

15 services (Hollinger Decl. ¶ 4), DDA did not notify Mr. Dunakin’s attorneys of either the

16 eligibility review or DDA’s contact with Mr. Dunakin for purposes of conducting a

17 PASRR Level II evaluation (Hamburger Decl. ¶ 11; Kas Decl. (Dkt. # 20) ¶ 12). DDA

18 failed to contact Mr. Dunakin’s attorneys despite the fact that DDA was aware of the

19 present lawsuit involving his PASRR eligibility and also aware that Mr. Dunakin was

20 represented by counsel. (Hamburger Decl. ¶ 11; Kas Decl. ¶ 12.) DDA also did not

21 inform Mr. Dunakin’s mother that it had not notified Mr. Dunakin’s attorneys concerning

22

ORDER- 13

1 its contact with him, and it did not occur to Mr. Dunakin’s mother that DDA would not 2 so inform her son’s attorneys.4 (Hollinger Decl. ¶ 6.)

3

4

4 Mr. Dunakin’s attorneys assert that DDA’s failure to contact them prior to Mr.

Watling’s contact with Mr. Dunakin was a violation of Rule of Professional Responsibility 5 (“RPC”) 4.2, as well as RCW 71A.10.060(1)(a) and 42 C.F.R. § 483.128(c)(2). (See PSJ Mot. at

2, 6 n.3, 7 n.4; Mot. for Cert. at 7 n.1.) Although Mr. Dunakin’s attorneys make this argument,

6 they do not ask the court to take any action or make any rulings with respect to their assertions of

misconduct. Nevertheless, the parties expend a significant portion of their briefing clashing over

7 this issue. Indeed, Defendants ask the court to strike the portions of Mr. Dunakin’s memoranda

that assert that Mr. Watling’s contact with him was improper. (PSJ Resp. at 15-16.) Rule 4.2, on

8 its face, applies only to direct communications by lawyers with a represented party. Mr. Watling is not an attorney, and therefore, the Rule, strictly applied, would not prohibit his contact with

9 Mr. Dunakin. See RPC 4.2 (generally forbidding an attorney’s communication with a person the attorney knows to be represented by counsel).

10

State law requires, in relevant part, that whenever DSHS is require to give notice, it “shall give notice to the person with a developmental disability and . . . to at least one other person . . .

in the following order of priority: (a) A legal representative of the person with a developmental 11 disability; (b) A parent or a person with a developmental disability who is eighteen years of age

or older; . . . .” RCW 71A.10.060(1)(a). The federal regulations further require the involvement

12 a “legal representative” in PASRR evaluations, “if one has been designated under State law.” 42

C.F.R. § 483.128(c)(2). DDA was aware of Mr. Dunakin’s legal representation at the time of

13 Mr. Watling’s contact. Defendants’ argument that the contact at issue related only to Mr.

Dunakin’s eligibility for DDA services, which “is not within the scope of this case or the scope

14 of representation” is disingenuous as best. (See PSJ Resp. at 16.) First, Mr. Watling testified that his purpose in contacting Mr. Dunakin was to perform a Level II PASRR evaluation.

15 (Hamburger Decl. Ex. H at 12:10, 15:14-18:6; see also Teed Decl. Ex. F at PROD-000013.) Second, Defendants have made Mr. Dunakins’ eligibility for DDA services an issue in this case

16

by conflating the eligibility requirements for state services with the PASRR process. (See infra §§ II.F, III.C.2.)

Defendants, however, also assert that they were entitled to provide notice only to Mr. 17 Dunakin’s mother in this instance and not to his counsel because Mr. Dunakin signed an

“Authorization To Use or Disclose Protected Health Information” form listing “self” as his

18 “Legal Representative Name.” (See Teed Decl. Ex. E.) Mr. Duankin’s attorneys respond that

the form is suspect because it was Mr. Watling who filled out the form for Mr. Dunakin’s

19 signature. (PSJ Reply (Dkt. # 34) at 11-12.) However, it is unclear from the evidence cited

whether Mr. Watling or someone from Mr. Dunakin’s nursing facility actually filled out the

20 form. (See 2d Hambureger Decl. (Dkt. # 37) Ex. P (attaching excerpts of Mr. Watling’s Rule 30(b)(6) deposition) at 47:12-20.) In any event, the court concludes that it has insufficient

21 information to make any determination regarding whether Mr. Dunakin’s signature on the form represented a knowing and voluntary relinquishment of his right to have his counsel notified

22

under RCW 71A.10.060(1)(a) or whether the form otherwise meets the requirements for waiving notice to counsel under RCW 71A.10.060(3). However, because Mr. Dunakin and his counsel

ORDER- 14

1

When Mr. Watling reviewed Mr. Dunakin’s file at the nursing facility, he

2 discovered the May 2008 PASRR Level I screen. (Hamburger Decl. Ex. H at 31:13-21;

3 Ex. M.) Once Mr. Watling discovered this, he halted his evaluation of Mr. Dunakin and

4 did not perform a Level II PASRR evaluation. (Id. Ex. H at 57:5-10; 61:22-25; Teed

5 Decl. Ex. D at 31:13-32:3.) Instead, Mr. Watling decided to wait for an “eligibility

6 review” by Ms. Terpstra to determine if Mr. Dunakin met DDA’s eligibility criteria for

7 state services. (Hamburger Decl. Ex. H at 57:5-10, 60:21-61:25.) Mr. Watling

8 communicated his impression that Mr. Dunakin did not have a developmental disability

9 that would meet DDA’s criteria to Ms. Terpstra. (Id. Ex. I at 19:17-22.)

10

Ms. Terpstra conducted Mr. Dunakin’s DDA eligibility review by applying the

11 same process and eligibility criteria that are applied to all individuals whose DDA

12 eligibility is being assessed or reviewed. (Id. Ex. I at 91:21-93:12.) Ms. Terpstra

13 conducted a review of Mr. Dunakin’s file and spoke with Mr. Watling about Mr.

14 Dunakin’s nursing home records. (Id. at 18-22.) Based solely on a full-scale intelligence

15 quotient (“FSIQ”) score of 83 from 1997 that was in Mr. Dunakin’s files, Ms. Terpstra

16 determined that Mr. Dunakin was not eligible for DDA services. (Id. at 70:3-10.)

17

Although Ms. Terpstra concluded that Mr. Dunakin did not qualify for DDA

18 services, she did not separately evaluate whether he was eligible for federal PASRR

19

20 do not request that the court take any specific action with respect to Mr. Watling’s contact with Mr. Dunakin, the court need not decide this issue here. On the other hand, the court also declines

21 to “strike” this portion of Mr. Dunakin’s memoranda as requested by Defendants. Defendants’ mere disagreement with Mr. Dunakin’s attorneys concerning the import of Mr. Watling’s contact

22

with Mr. Dunakin without notice to counsel is not a proper basis for striking portions of Mr. Dunakin’s memoranda.

ORDER- 15

1 services. (Id. at 85:21-25.) Based on the determination that Mr. Dunakin’s 1998 FSIQ

2 score exceeded the intelligence quotient cut-off for DDA eligibility, everyone at DDA

3 assumed that Mr. Dunakin was also ineligible for services under PASRR. (See id. Ex. E

4 at 153:11-154:14 (“[W]e [DDA] believe that our state law matches federal law other than

5 the one age portion with related condition. So if our intake eligibility people decided

6 [Mr. Dunakin] was not eligible, we believe that would meet the federal definition as

7 well.”); Ex. H at 87:12-88:3; see also id Ex. H at 83:6-19; Teed Decl. Ex. F at

8 PROD_000013 (“Adam was reviewed by our Intake and Eligibility Unit and found

9 ineligible for DDA services. At this point, we have no services to offer and Adam does

10 not qualify for a PASRR 2 review.”).)

11

F. Washington State’s Recent PASRR Enhancements

12

In a declaration dated November 10, 2014, Ms. Terry Hehehman, DDA’s PASRR

13 Program Manager, testifies that as a result of CMS’s investigation into DDA’s PASRR

14 practices at Lakeland Village, DDA began working closely with CMS in approximately

15 January 2014, and has made changes to DDA’s PASRR process statewide. (See

16 Hehemann Decl. ¶ 5.) Ms. Hehemann testifies that DDA began expanding its enhanced

17 PASRR process to privately-operated Medicaid-certified nursing facilities in 18 approximately April 2014,5 with a target for completing that process by November 30,

19 2014. (Id.) She further testifies in her declaration that over 270 individuals in privately-

20 operated Medicaid-certified nursing facilities have been reassessed for PASRR purposes

21

22

5Mr. Dunakin filed the present lawsuit on April 16, 2014. (See Compl.)

ORDER- 16

1 since April 2014, representing ninety percent (90%) of those who DDA initially

2 contemplated might need review. (Id. ¶ 6.) Ms. Hehemann testifies that this means that a

3 DDA worker has reviewed a nursing facility resident’s medical records for completion of

4 a PASRR Level I screening form, completed this step if necessary, and completed a

5 PASRR Level II evaluation where required pursuant to a PASRR Level I screening form.

6 (Id.)

7

In their November 10, 2014, responsive memorandum, Defendants admit,

8 consistent with Mr. Dunakin’s position, that developmental disability eligibility

9 determinations under state law and PASRR determinations under federal law are subject

10 to different standards. (See PSJ Resp. at 1.) Although Defendants admit that “[f]or a

11 brief period of time, the state eligibility definition was being used to implement PASRR,”

12 they now contend that they no longer apply the same standard to the two determinations.

13 (Id. at 7 (citing Hehemann Decl. ¶ 8).) Indeed, in her November 10, 2014, declaration,

14 Ms. Hehemann testifies as follows:

15

The State has consistently trained and used the federal age requirements to

implement PASRR. The State PASRR program recognizes there is a

16

difference between the federal definition of intellectual disability used for

PASRR and state eligibility requirements for purposes of DDA services or

17

benefits. Then, for a brief period of time, the state eligibility definition,

with the exception of age of onset, was being used to implement PASRR,

18

but that has since changed so that only the federal definition is being used.

Using the federal standard is reinforced through constant program

19

improvements, including the forms that are currently being utilized and

training to DDA staff and community members.

20

(Hehemann Decl. ¶ 8 (italics added).)

21

22

ORDER- 17

1

Despite Ms. Hehemann’s reassurance “that only the federal definition is being

2 used” presently to determine PASRR eligibility for those with intellectual disabilities or

3 related conditions, the revised PASRR Level II form she attaches to her declaration

4 indicates otherwise. (See id. Ex. B at 3.) The PASRR Level II form that DDA recently

5 re-designed to “enhance and refine the implementation of PASRR” continues to instruct

6 DDA personnel to make determinations of “intellectual disability” or “related condition”

7 using the State’s criteria found in the Washington Administrative Code. (Id.)

8 Specifically, the form for PASRR Level II evaluations states:

9

Note: the determination of intellectual disability for PASRR purposes uses

the state criteria under WAC 388-823-0200 through 230. The

10

determination of “related condition”, [sic] uses the state criteria for

cerebral palsy, epilepsy, autism, another neurological condition or other

11

condition similar to intellectual disability in WAC 388-823-0300 through

0940, with the exception that the age of origination of the condition is

12

under 22 (not under 18).

13 (Id.) This form is dated July 14, 2014—more than four months after Defendants began

14 expanding their enhanced PASRR process to privately-operated Medicaid-certified

15 nursing facilities. (Id. ¶ 5; id. Ex. B.)

16

In addition to the foregoing, Mr. Dunakin points to additional evidence indicating

17 that, despite Ms. Hehemann’s assurances to the contrary, Defendants continued to utilize

18 the state DDA eligibility requirements for PASRR screening and evaluations long after

19 they began to apply their “enhanced PASRR process” to residents in privately-operated

20 Medicaid-certified nursing facilities. For example, according to Ms. Hehemann’s

21 September 15, 2014, Rule 30(b)(6) deposition testimony, DDA was still utilizing, as of

22

ORDER- 18

1 that date, the state standard for its PASRR reassessments that Defendants now

2 acknowledge was incorrect:

3

Q: So do you believe this definition of intellectual disability came from the

PTAC website?

4

A: No. It’s what we developed using our WAC and federal rule. And we

5

believe that our WAC mirrors what the federal rule says is an intellectual

disability. The only place we differ is in the related condition piece

6

because, the federal rule, it says if the onset is before age [22] and our state

rule says before age 18.

7

So there is that segment of the population or people in that age group

whose condition originated after 18, before [22]. Those people don’t meet

8

our state definition. But we would still do PASRR Level I with them

because we’re required by federal rule because they have that difference in

9

the rule.

10 (See Hamburger Decl. Ex. E at 82:16-83:1, 83:24; see also id. at 140:10-15 (“So then we

11 explain that the federal and the state definitions are the same except for that age period

12 for related condition, that ours is they have to have – the condition needs to have started

13 before they were 18 and the federal definition says before they were 22.”); id. at 154:5-9

14 (“[W]e believe that our state law matches federal law other than the one age portion with

15 related condition. So if our intake eligibility people decided [Mr. Dunakin] was not

16 eligible, we believe that would meet the federal definition as well.”).) Thus, as of at least

17 September 15, 2014, DDA was still operating on the understanding that the only

18 difference between DDA’s eligibility standard for state services and the federal PASRR

19 standard was the age of onset. Yet, as of November 10, 2014, Defendants acknowledge

20 that utilizing the state standard for PASRR evaluations was error. (See PSJ Resp. at 1, 7.)

21

Further, like Ms. Hehemann, Mr. Watling, the regional DSHS PASRR coordinator

22 who was sent to evaluate Mr. Dunakin’s PASRR eligibility on April 28, 2014, also

ORDER- 19

1 understood that the only difference between the federal and state definitions was the age

2 of onset. During his September 12, 2014, Rule 30(b)(6) deposition, Mr. Watling

3 engagedin the following colloguy:

4

Q: . . . Is there any formal assessment that you’re aware of for determining

whether someone is eligible under the federal definition who’s not eligible

5

under the state definition?

**********

6

A: Under my awareness, the federal definition is different in age of onset,

7

that the state definition goes to the onset age of 18 and the federal definition

goes to 21. So with supportive eligibility, in terms of determining whether

8

this would have been an issue that would qualify for developmental

disabilities, then the next question is age of onset. And that’s what makes

9

the determination.

10

Q: . . . Are there any other factors that would make a determination?

11

**********

12

A: Not under my understanding.

13 (Hamburger Decl. Ex. H at 87:12-88:3.)

14

Indeed, the form instructions to DDA staff concerning the federal PASRR

15 standards (that Ms. Hehemann attaches to her declaration to demonstrate that DDA no

16 longer utilizes the state eligibility standard for PASRR purposes) is dated October 31,

17 2014—long after DDA began expanding its enhanced PASRR process to privately-

18 operated Medicaid-certified nursing facilities in approximately April 2014, and only one

19 month prior to DDA’s target completion date for that upgrade. (Hehemann Decl. ¶ 5, Ex.

20 C.) Thus, undisputed evidence indicates that for the majority of the time that DDA was

21 expanding its revised PASRR process to privately-operated nursing facilities (from

22 approximately April 2014 to DDA’s target completion date of November 30, 2014),

ORDER- 20

1 DDA was still applying a standard to its PASRR reassessments that it now acknowledges

2 was in error.

3

The court now considers the parties’ presently pending motions.

4

III. ANALYSIS

5 A. Defendants’ Rule 12(c) Motion

6

The court considers Defendants’ Federal Rule of Civil Procedure 12(c) motion for

7 dismissal on the pleadings first because if the court were to conclude that dismissal is

8 appropriate, there would be no need for the court to consider any of the remaining

9 motions. In this instance, however, the court determines that dismissal is appropriate

10 only with respect to one part of Mr. Dunakin’s claim under Title XIX of the Social

11 Security Act. Although the court grants Defendants’ motion to dismiss with respect to a

12 portion of that claim, the court also grants Mr. Dunakin leave to amend his complaint.

13

1. Standards for Review of Defendants’ Rule 12(c) Motion

14

Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on

15 the pleadings after the pleadings are closed. Judgment on the pleadings “is properly

16 granted when, taking all the allegations in the pleadings as true, a party is entitled to

17 judgment as a matter of law.” Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th

18 Cir. 2011). The same standard governs a Rule 12(c) motion for dismissal as governs a

19 Rule 12(b)(6) motion. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir.

20 1989). Specifically, to avoid dismissal, “a complaint must contain sufficient factual

21 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

22 Iqbal, 557 U.S. 662, 678 (2009). Dismissal for failure to state a claim “is proper if there

ORDER- 21

1 is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a

2 cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.

3 2011). In ruling on a motion to dismiss, a court may consider the pleadings, documents

4 attached to the pleadings, and documents incorporated by reference in the pleadings.

5 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (citing Van Buskirk v. CNN,

6 284 F.3d 977, 980 (9th Cir. 2002)). The court has considered only these materials in

7 ruling on Defendants’ Rule 12(c) motion for dismissal on the pleadings.

8

2. Claim One – Alleged Violations of PASRR Guidelines under the NHRA

9

Mr. Dunakin brings his claim for violations of the NHRA and its accompanying

10 federal PASRR regulations under 42 U.S.C § 1983. Defendants argue that this claim

11 must be dismissed because a violation of PASRR regulations is not a cognizable claim

12 under 42 U.S.C § 1983. (Rule 12(c) Mot. at 8-14.) For the reasons stated below, the

13 court disagrees.

14

Section 1983 imposes liability on anyone who, under color of state law, deprives a

15 person “of any rights, privileges, or immunities secured by the Constitution and laws.”

16 42 U.S.C. § 1983; see also Blessing v. Freestone, 520 U.S. 329, 340 (1997). “[W]hether

17 Congress intended to create a federal right” is the touchstone for determining whether a

18 statutory violation may be enforced through 42 U.S.C. § 1983. Gonzaga Univ. v. Doe,

19 536 U.S. 273, 283 (2002) (italics in original). In Blessing, the Supreme Court identified

20 three issues to consider when deciding whether a particular statutory provision gives rise

21 to a federal right: (1) whether Congress intended for the provision in question to benefit

22 the plaintiff; (2) whether the plaintiff has demonstrated that the right protected by the

ORDER- 22

1 statute is not so vague and amorphous that its enforcement would strain judicial

2 competence; and (3) whether the statute unambiguously imposes a binding obligation on

3 the States. 520 U.S. at 340-41. The court must analyze these issues with reference to the

4 specific right at issue and not to the statute as a whole. See id. at 342.

5

In Gonzaga, the Supreme Court clarified the first prong of the Blessing test by

6 rejecting the notion that a plaintiff could enforce a statute “so long as the plaintiff [fell]

7 within the general zone of interest that the statute [was] intended to protect.” 536 U.S. at

8 283. Instead, the Gonzaga court insisted that “it is rights, not the broader or vaguer

9 ‘benefits’ or ‘interests,’ that may be enforced under the authority of [42 U.S.C. § 1983].”

10 Id. (italics in original). To create a privately enforceable right, a statute must be “phrased

11 in terms of the person benefited,” rather than “focus on the person regulated.” Id. at 284,

12 287. However, once a plaintiff “demonstrates that a statute confers an individual right,

13 the right is presumptively enforceable by § 1983.” Id. at 284.

14

Defendants assert that the statutory provision of the NHRA that contains the

15 PASRR guidelines, specifically 42 U.S.C. § 1396r(e)(7), fails the first Blessing factor as

16 clarified by the Supreme Court in Gonzaga. (Rule 12(c) Mot. at 8-14.) Defendants do

17 not challenge the remaining two Blessing factors. (Rule 12(c) Reply (Dkt. # 42) at 4 (“It

18 is only the first prong of . . . [the Blessing] test, whether Congress intended to create

19 enforceable rights, that is at issue in this case.”).) Thus, the court’s analysis is limited to

20 the first factor.

21

In Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008), advocacy groups

22 and mentally disabled individuals brought an action alleging that the state’s mental health

ORDER- 23

1 system had the effect of warehousing individuals with mental illness in highly restrictive

2 nursing homes, in violation of the NHRA and the PASRR provisions found in 42 U.S.C.

3 § 1396r(e)(7). The Joseph S. court considered the same issue presented here: whether

4 the PASRR provisions of the NHRA confer individual rights upon the plaintiffs and meet

5 the first Blessing prong in light of the refinements to that prong articulated by the

6 Supreme Court in Gonzaga. Joseph S., 561 F. Supp. 2d at 300. The court concluded that

7 the PASRR provisions do confer such individual rights. Id. “Unlike the statutes in

8 Gonzaga and Blessing, §§ 1396r(e)(7)(A) and (B) are directly concerned with ‘whether

9 the needs of any particular person have been satisfied.’” Joseph S., 561 F. Supp. 2d at

10 300 (citing Blessing, 520 U.S. at 343, as quoted in Gonzaga, 536 U.S. at 288). The court

11 finds the analysis of the Joseph S. court to be comprehensive in its consideration of the

12 first Blessing factor as refined by Gonzaga and to be persuasive as well as more fully

13 discussed below.

14

Rights-creating language “confer[s] a right directly on a class of persons that

15 include[s] the plaintiff in the case” rather than “for the benefit of the public at large.”

16 Cannon v. Univ. of Chicago, 441 U.S. 677, 690 n.13 (1979), cited with approval in

17 Gonzaga, 536 U.S. at 284 n.3. The provisions in the NHRA requiring a preadmission

18 screening program include specific language referring to the persons benefitted: “[T]he

19 state must have in effect a preadmission screening program, for making

20 determinations . . . described in subsection (b)(3)(F) of this section for . . . mentally

21 retarded individuals . . . who are admitted to nursing facilities . . . .” 42 U.S.C.

22 § 1396r(e)(7)(A)(i). Subsection 1396r(b)(3)(F)(ii) of Title 42 states, in turn, that the State

ORDER- 24

1 must determine “prior to admission that, because of the physical and mental condition of

2 the individual, the individual requires the level of services provided by the nursing

3 facility, and, if the individual requires such level services, whether the individual requires

4 specialized services for mental retardation.” 42 U.S.C. § 1396r(b)(3)(F)(ii). The

5 language in the provision requiring resident reviews also uses language that is even more

6 clearly “rights-creating”:

7

[I]n the case of each resident of a nursing facility who is mentally retarded,

the State . . . must review and determine . . . whether or not the resident,

8

because of the resident’s physical and mental condition, requires the level

of services provided by a nursing facility or requires the level of services of

9

an intermediate case facility . . . and whether or not the resident requires

specialized services for mental retardation.

10

42 U.S.C. §§ 1396r(e)(7)(B)(ii)(I), (II). Although these provisions are phrased in terms

11

of the responsibilities imposed upon the State, their purpose is to protect the rights of

12

individuals.

13

In addition to the foregoing provisions, the PASRR requirements to offer

14

specialized services, alternative placement, and notice of PASRR determinations also

15

focus on the rights of individual residents who are beneficiaries of these services. See 42

16

U.S.C. § 1396r(e)(7)(C). Like the PASRR evaluation sections quoted above, these

17

provisions also begin with a mandatory command: “[T]he State must meet the following

18

requirements. . . .” Id. The provision mandates:

19

In the case of a resident who is determined . . . to require specialized

20

services for . . . mental retardation, . . . the State must, in consultation with

the resident’s family or legal representative and care-givers--

21

(I) inform the resident of the institutional and noninstitutional alternatives

22

covered under the State plan for the resident,

ORDER- 25

1

(II) offer the resident the choice of remaining in the facility or of receiving

2

covered services in an alternative appropriate institutional or

noninstitutional setting, [and] . . .

3

(IV) . . . provide for (or arrange for the provision of) such specialized

4

services for the . . . mental retardation.

5 42 U.S.C. §§ 1396r(e)(7)(C)(i)(I), (II), (IV).

6

Unlike the statutory provisions at issue in Gonzaga, which the Supreme Court

7 found to be “two steps removed from the interests of [the individual plaintiffs], Gonzaga,

8 536 U.S. at 287, the PASRR provisions above directly impact individual nursing home

9 residents because they determine whether the resident will be placed in a nursing facility

10 and what services the individual will receive. Thus, 42 U.S.C. § 1396r(e)(7) places “an

11 unmistakeable focus on the benefited class,” which here is individuals with mental

12 disabilities who have been or will be placed in nursing facilities. See Gonzaga, 536 U.S.

13 at 284. The PASRR provisions’ mandate of individualized determinations, see 42 U.S.C.

14 §§ 1396r(e)(7)(A), (e)(7)(B), (b)(3)(F)(ii), indicates that Congress intended to create “an

15 individual entitlement to services,” see Gonzaga, 536 U.S. at 281, that would “give rise

16 to individual rights,” id. at 288.

17

Further, despite Defendants’ arguments to the contrary (see Rule 12(c) Reply at 5-

18 6), Ninth Circuit precedent indicates that the fact that the statute is phrased in terms of

19 requirements for a state plan does not foreclose a finding that the statute also gives rise to

20 individual rights. In Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006), the Ninth Circuit

21 held that the language in the Medicaid Act, 42 U.S.C. § 1396a(a)(10), which states that

22 “[a] State plan for medical assistance must . . . provide . . . for making medical assistance

ORDER- 26

1 available . . . to . . . all [eligible] individuals” creates a right enforceable under 42 U.S.C.

2 § 1983. Watson, 436 F.3d at 1160. Specifically, the Ninth Circuit held that this type of

3 statutory language has the same individual rights focus as the “[n]o person shall . . . be

4 subjected to discrimination” language that the Supreme Court in Gonzaga, 536 U.S. at

5 284, concluded was explicitly rights-creating. Watson, 436 F.3d at 1160 (“This language

6 is unmistakably focused on the specific individuals benefited . . . .”); see also Sabree ex

7 rel. Sabree v. Richman, 367 F.3d 180, 190 (3d Cir. 2004); S.D. ex rel Dickson v. Hood,

8 391 F.3d 581, 603 (5th Cir. 2004).

9

Defendants are correct that the NHRA is a spending statute and that such statutes

10 generally do not create enforceable rights. Gonzaga, 536 U.S. at 280-81. The typical

11 remedy for state noncompliance with federally imposed conditions in a spending statute

12 is not a private cause of action for noncompliance but rather action by the federal

13 government to terminate funds to the state. Ball v. Rodgers, 492 F.3d 1094, 1103-04 (9th

14 Cir. 2007). However, such statutes may create rights enforceable under § 1983 when

15 “Congress speaks with a clear voice and manifests an unambiguous intent to confer

16 individual rights.” Id. at 1104 (quoting Gonzaga, 536 U.S. at 280) (internal quotations

17 and alterations omitted). In addition, when the remedial devices specified in the statute

18 are sufficiently comprehensive, those devices may suffice to demonstrate Congressional 19 intent to preclude the remedy of suits under § 1983.6 Id.

20

21

6 Section 1396r(f) of Title 42 provides that “[i]t is the duty and responsibility of the

22

Secretary to assure that requirements which govern the provision of care in nursing facilities . . . , and the enforcement of such requirements, are adequate to protect the health, safety, welfare, and

ORDER- 27

1

In Ball, the Ninth Circuit concluded that Congress intended to create individual

2 rights enforceable via § 1983 in the free choice provisions of the Medicaid Act, 42 U.S.C.

3 § 1396n(c)(2)(C) and § 1396n(d)(2)(C), based on the provision’s repeated use of the

4 word “individuals.” The court concluded that the use of this term in conjunction with

5 language describing the right to be informed and the right to choose among alternatives

6 indicated that the statutory provisions were “‘concerned with whether the needs of any

7 particular person have been satisfied,’ and not solely with an aggregate ‘institutional

8 policy and practice.’” Ball, 492 F.3d at 1107 (quoting Gonzaga, 536 U.S. at 288).

9 “While express use of the term ‘individuals’ (or ‘persons’ or similar terms) is not

10 essential to finding a right for § 1983 purposes, usually such use is sufficient for that

11 purpose.” Id. at 1108. Thus, the same analysis that the Ninth Circuit utilized in Ball

12 would apply to the PASRR provisions of the NHRA at issue here, which specifically and

13 repeatedly refer to “residents” of a nursing facility or “individuals” who are “mentally

14 retarded.” See 42 U.S.C. §§ 1396r(e)(7)(A)(i); 1396r(b)(3)(F)(ii); 1396r(e)(7)(B)(ii)(I), (II);

15 1396r(e)(7)(C)(i)(I), (II), (IV). See also Joseph S., 561 F. Supp. 2d at 305 (“[T]he

16 NHRA’s denial of payment is based on improper individual determinations and is thus

17 distinguishable from a denial of funding under FERPA, the statue at issue in Gonzaga,

18

rights of residents and to promote the effective and efficient use of public moneys.” 42 U.S.C. §

19 1396r(f). Defendants assert that this provision “explicitly designates the secretary as the

individual with ‘the duty and responsibility’ to enforce” requirements related to nursing

20 facilities, and therefore it “forecloses private enforcement.” (Rule 12(c) Reply at 7.) The court does not find that this single sentence in the statute represents the kind of “comprehensive”

21 “remedial device” that would demonstrate a Congressional intent to preclude enforcement pursuant to a private suit under § 1983. See Joseph S., 561 F. Supp. 2d at 304 (“[F]ederal

22

oversight of a state’s compliance with NHRA . . . ha[s] been held to be insufficient to preclude a 1983 action.”).

ORDER- 28

1 which is triggered by a prohibited policy or practice.”) (italics in original). Based on the

2 foregoing analysis, the court denies Defendants’ motion to dismiss Mr. Dunakin’s § 1983

3 claim under the PASRR provisions of the NHRA.

4

3. Claims 2 and 3 – Alleged Violations of the ADA and Section 504 of the

Rehabilitation Act

5

Generally, the ADA and Section 504 of the Rehabilitation Act prohibit

6

discrimination against individuals with disabilities. There is no significant difference in

7

the analysis of rights and obligations created by Title II of the ADA and Section 504 of

8 the Rehabilitation Act,7 and therefore ordinarily they may be interpreted and applied

9

together. See, e.g., McGary v. City of Portland, 386 F.3d 1259, 1265 n.7 (9th Cir. 2004);

10

Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1136 (9th Cir. 2001). Defendants argue that

11

Mr. Dunakin’s complaint fails to state a claim under either statute. (Rule 12(c) Mot. at

12

14-16.)

13

Federal regulations implementing both the ADA and Section 504 have specific

14

provisions referred to as “integration” regulations or mandates, which require public

15

entities to treat individuals with disabilities in the “most integrated setting appropriate to

16

the[ir] needs.” 28 C.F.R. §§ 35.130(d), 41.51(d). In Olmstead v. L.C. ex rel. Zimring,

17

527 U.S. 581 (1999), the Supreme Court held that these integration mandates require a

18

state to provide services to individuals in community settings rather than institutions

19

20

21

7 Unlike Title II of the ADA, Section 504 of the Rehabilitation Act requires a plaintiff to

allege that the program at issue receives federal financial assistance. Duvall v. Cnty. of Kitsap,

22

260 F.3d 1124, 1135. (9th Cir. 2001). Here, Mr. Dunakin alleges this element of his Section 504 claim. (Compl. ¶ 41.)

ORDER- 29

1 whenever the relevant professionals conclude that the services required by the individual

2 may appropriately be rendered in a community setting, unless the expense involved

3 would fundamentally alter the state’s overall services and programs. Id. at 607.

4

In Olmstead, the Supreme Court considered the scope of the ADA’s integration

5 mandate: “Specifically, we confront the question of whether the proscription of

6 discrimination [in Title II of the ADA] may require placement of persons with mental

7 disabilities in community settings rather than in institutions. The answer, we hold, is a

8 qualified yes.” Id. at 587. The Court held that “[u]njustified isolation . . . is properly

9 regarded as discrimination based on disability.” Id. at 597. Thus, unnecessary

10 segregation of persons with mental disabilities is discrimination per se under either the

11 ADA or Section 504 of the Rehabilitation Act. See id.; see also Joseph S., 561 F. Supp.

12 2d at 290. The state is to provide community-based treatment for persons with mental

13 disabilities when such placement is appropriate, so long as “the affected person does not

14 oppose such treatment, and the placement can be reasonably accommodated, taking into

15 account the resources available to the State and the needs of others with mental 16 disabilities.” Olmstead, 527 U.S. at 607.8

17

18

8 In Olmstead, the Supreme Court stated that “under Title II of the ADA, States are

required to provide community-based treatment for persons with mental disabilities when the

19 State’s treatment professionals determine that such placement is appropriate . . . .” 527 U.S. at

607 (italics added). Here, however, Mr. Dunakin alleges that he has been denied the evaluation

20 necessary to determine whether such placement is appropriate. (See Compl. ¶¶ 16, 29-31, 36-39, 42.) The language in Olmstead concerning determinations by the state’s treatment professionals,

21 527 U.S. at 587, 607, appears to be based on the particular facts at hand and not fundamental to the Court’s holding. See Joseph S., 561 F. Supp. 2d at 291. Thus, the fact that Mr. Dunakin’s

22

complaint does not allege that a State treatment professional has made such a determination does not render his complaint insufficient.

ORDER- 30

1

In Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003), the Ninth Circuit applied

2 the Olmstead decision to individuals at risk of being confined to nursing facilities who,

3 with long-term care services, could live in alternative community-based settings. The

4 Ninth Circuit stated that to prove that a public service or program violates Title II of the

5 ADA, a plaintiff must show that (1) he is a qualified individual with a disability; (2) he

6 was either excluded from participation in or denied the benefits of a public entity’s

7 services, programs, or activities or was otherwise discriminated against by the public

8 entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his 9 disability.9 328 F.3d at 516. Plaintiff Townsend sought access to appropriate

10 community-based, long-term care service in lieu of nursing facility placement. Id. at 514.

11 The Ninth Circuit held that Washington State violated Title II of the ADA when it failed

12 to provide long-term care services to the plaintiff and other class members in community

13 settings unless the state could demonstrate that providing the services would 14 fundamentally alter its Medicaid programs.10 Id. at 518.

15

Here, Mr. Dunakin alleges that he is a qualified individual with a disability.

16 (Compl. ¶¶ 5, 16, 28.) He alleges that he is eligible for a PASRR Level II evaluation,

17

18

9 As noted above, there is no significant difference between the elements that a plaintiff

must allege with respect to a claim under the ADA and a claim under Section 504 of the

19 Rehabilitation Act. A plaintiff bringing suit under Section 504 of the Rehabilitation Act must

show that (1) he is an individual with a disability; (2) he is otherwise qualified to receive the

20 benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance. Duvall, 260 F.3d at 1135. Indeed, Title II of

21 the ADA was expressly modeled after Section 504 of the Rehabilitation Act. Id.

22

10 The Ninth Circuit remanded to the district court for development of the factual record related to this defense. Townsend, 328 F.3d at 520.

ORDER- 31

1 specialized services, and alternative community placement, but has been inhibited from

2 accessing such services because Defendants have failed to conduct the required

3 evaluation that would make such alternative community-based placement options and

4 services available to him. (Id. ¶¶ 16, 29-31, 36-39, 42.) Mr. Dunakin pleads that he

5 would like to receive his long-term care services in a less restrictive community-based

6 setting. (Id. ¶ 32.) He also pleads that, because Defendants have failed to conduct a

7 PASRR Level II evaluation, he has been denied non-institutional care or services that

8 could lead to discharge, resulting in discrimination against him on the basis of his

9 disability. (Id. ¶¶ 35-42.) Finally, he pleads the specific services, programs, or activities

10 at issue. Specifically, he alleges that he seeks a PASRR evaluation, PASRR specialized

11 services, notice pursuant to PASRR about the state’s determination and information about

12 available alternative community-based placements, and appropriate less restrictive

13 placement. (Compl. ¶ 32, § VIII, ¶ 3.)

14

These allegations are sufficient to state claims under both the ADA and Section

15 504 of the Rehabilitation Act. See Joseph S., 561 F. Supp. 2d at 292 (rejecting similar

16 arguments by state defendants in that case); see also Day v. Dist. of Columbia., 894 F.

17 Supp. 2d 1, 22-23 (D.D.C. 2012) (holding that, to state a claim under the ADA or Section

18 504 of the Rehabilitation Act, it was sufficient to allege that the District provided the

19 existing system through which the plaintiffs received long-term care services and, in so

20 doing, had utilized criteria that had caused the plaintiffs to be confined unnecessarily in

21 order to obtain long-term care services, rather than facilitate their transition to the

22 community with appropriate services and supports); State Office of Protection &

ORDER- 32

1 Advocacy for Persons with Disabilities v. Connecticut, 706 F. Supp. 2d 266, 276 (D.

2 Conn. 2010). Accordingly, the court denies Defendants’ motion to dismiss Mr.

3 Dunakin’s claims based on the ADA or Section 504 of the Rehabilitation Act.

4

4. Claim 4 – Alleged Violations of Title XIX of the Social Security Act

5

Mr. Dunakin pleads four claims under Title XIX of the Social Security Act.

6 (Compl. ¶ 44.) He pleads that Defendants violated the Act by failing to provide Medicaid

7 benefits (1) with reasonable promptness; (2) in compliance with Medicaid comparability

8 requirements; (3) with a meaningful choice of providers, including a choice between

9 institutional and community based services; and (4) with adequate written notice of

10 Defendants’ determinations, as well as the right to appeal to Defendants’ administrative

11 hearing process. (Id.) Defendants argue that these claims must be dismissed. (Rule

12 12(c) Mot. at 16-21.)

13

a. Reasonable Promptness

14

Defendants assert that the Social Security Act requires only that they promptly pay

15 for Medicaid-covered services, and not that they arrange for or provide for such services.

16 (Id. at 16-18.) Mr. Dunakin’s claim for the provision of Medicaid benefits with

17 reasonable promptness is based in part on 42 U.S.C. § 1396a(a)(8). (Compl. ¶ 44.) That

18 provision of the Medicaid Act requires that “[a] State plan for medical assistance must . .

19 . provide that all individuals wishing to make application for medical assistance under the

20 plan shall have an opportunity to do so, and that such assistance shall be furnished with

21 reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). Defendants

22 argue that Mr. Dunakin fails to state a claim under this provision because the Medicaid

ORDER- 33

1 Act defines “medical assistance” as payment of part or all of the cost of services. (See

2 Rule 12(c) Mot. at 16-17 (quoting 42 U.S.C. § 1396d(a) (2009)).) Defendants argue that

3 the statute relates to the promptness of payment for services and not the actual provision

4 of services, such as a PASRR evaluation, by the state. (See id.) Defendants assert that

5 because Mr. Dunakin does not allege that the state refused to pay for services, his claim

6 based on Defendants’ alleged failure to provide Medicaid benefits with reasonable

7 promptness under 42 U.S.C. § 1396a(a)(8) should be dismissed.

8

Defendants argument, however, appears to be based on an outdated version of 42

9 U.S.C. § 1396d(a). Until recently, the Medicaid Act defined “medical assistance” as

10 “payment of part or all of the cost of” services. Leonard v. Mackereth, No. 11-7418,

11 2014 WL 512456, at *5 (E.D. Pa. Feb. 10, 2014) (quoting 42 U.S.C. § 1396d(a) (2009)).

12 Based on that definition, some federal courts held that a state’s obligation was limited to

13 providing financial assistance only. Id. This is the argument that Defendants have

14 adopted here. (Rule 12(c) Mot. at 16-17.) As part of the Patient Protection and

15 Affordable Care Act, however, Congress amended the definition of “medical assistance”

16 under 42 U.S.C. § 1396d(a). As of March 23, 2010, “[t]he term ‘medical assistance’

17 means payment of part or all of the cost of . . . care and services or the care and services

18 themselves or both[.]” 42 U.S.C. § 1396d(a)(italics added). As one court has noted, it

19 appears that Congress intended “to clarify that where the Medicaid Act refers to the

20 provision of services, a participating State is required to provide (or ensure the provision

21 of) services, not merely to pay for them.” John B. v. Emkes, 852 F. Supp. 2d 944, 951

22 (M.D. Tenn. 2012); see also Disability Rights N.J., Inc. v. Velez, No. Civ.A.05-4723,

ORDER- 34

1 2010 WL 50555820 (D.N.J. Dec. 2, 2010) (reversing prior order granting summary

2 judgment to the defendants and reinstating the plaintiff’s claim because subsequently

3 amended definition of “medical assistance” in 42 U.S.C. § 1396d(a) included not only

4 financial assistance but also actual care and services).

5

Following Mr. Dunakin’s reference to and analysis of the amended version of 42

6 U.S.C. § 1396d(a) (see Rule 12(c) Resp. (Dkt. # 40) at 18-19), Defendants drop their

7 assertion of this argument in their reply memorandum (Rule 12(c) Reply at 10-11).

8 Accordingly, based on the amended definition of “medical assistance” in 42 U.S.C.

9 § 1396d(a), the court denies Defendants’ motion to dismiss Mr. Dunakin’s claim under 10 Title XIX of the Social Security Act on this ground.11

11 //

12 //

13

14 11 Defendants also argue that Mr. Dunakin fails to state a claim because a PASRR

15 evaluation is not a Medicaid service or benefit. (Rule 12(c) Reply at 10.) Defendants, however, raise this argument for the first time in their reply memorandum, and on this basis alone, the

16

court may decline to consider this argument. See In re Rains, 428 F.3d 893, 902 (9th Cir. 2005) (finding an issue waived where it was raised for the first time in a reply brief before the district

court). Nevertheless, the court disagrees with the substance of Defendants’ argument as well. 17 The federal government pays “an amount equal to the Federal medical assistance percentage . . .

of the total amount expended . . . as medical assistance under the State plan.” 42 U.S.C.

18 § 1396b(a)(1). The federal regulations provide that PASRR activities conducted by the State are

eligible for federal financial participation at a rate of 75 percent. 42 C.F.R. § 433.15(b)(9).

19 Thus, when it comes to paying for PASRR activities, the federal government apparently

considers the amounts expended “as medical assistance under the State plan.” Further, Mr.

20 Dunakin alleges that he has been deprived of not only an appropriate PASRR evaluation, but also the specialized services that he can access only through a PASRR evaluation, such as a supported

21 living program in a community-based setting or specialized services in his nursing home so he can develop the independent living skills he needs to live outside the nursing facility. (See

22 Compl. ¶¶ 16, 30, 32.) Thus, the court denies Defendants’ motion to dismiss on this ground.

ORDER- 35

1

b. Medicaid Comparability

2

The “comparability” requirement of the Medicaid Act is set forth in 42 U.S.C.

3 § 1396a(a)(10)(B)(i), which provides that a state plan for medical assistance made

4 available to an individual “shall not be less in amount, duration, or scope than the

5 medical assistance made available to any other such individual . . . .” Id.; see also 42 6 C.F.R. § 440.240.12 The comparability requirement “mandates comparable services for

7 individuals with comparable needs and is violated when some recipients are treated

8 differently than others where each has the same level of need.” Cota v. Maxwell-Jolly,

9 688 F. Supp. 2d 980, 993 (N.D. Cal. 2010); see Sobky v. Smoley, 855 F. Supp. 1123,

10 1140-41 (E.D. Cal. 1994) (“The present language of the statute [42 U.S.C.

11 § 1396a(a)(10)(B)(i)] . . . expressly requires that any categorically needy individual

12 receive medical assistance not less in amount, duration, and scope than that received ‘by

13 any other such individual.’”).

14

Mr. Dunakin asserts that he has pleaded that he and other individuals with

15 intellectual disabilities and related conditions do not have the specialized services that

16 constitute “active treatment,” and that those services are provided to other similarly

17 needy individuals placed in Defendants’ intermediate care facilities for individuals with

18 intellectual disabilities (“ICF-IIDs”). (Rule 12(c) Resp. at 19.) Mr. Dunakin argues that

19

20

12 Defendants devote considerable briefing space to an argument that the federal

regulations cited by Mr. Dunakin in his complaint do not relate to comparability but rather to

21 topics such as outpatient hospital services and rural health clinics, which were not pleaded. (Rule 12(c) Mot. at 18-19.) However, Defendants are apparently analyzing the wrong citation—

22

42 C.F.R. § 440.20 instead of 42 C.F.R. § 440.240—when they make this argument. (See id.); compare 42 C.F.R. § 440.240 with 42 C.F.R. § 440.20.

ORDER- 36

1 Defendants efforts to reform the State’s PASRR program did not include the

2 approximately 300 people with developmental disabilities and related conditions who

3 were living in privately-operated nursing facilities. (Id. at 20 (citing Appendix A to the

4 complaint (Dkt. # 1-1) (attaching a copy of DDA’s 2014 Supplemental Budget stating

5 that DDA’s “immediate steps” to reform the PASRR program “do not address the issue

6 of the approximately 300 people with developmental disabilities who are currently in

7 community nursing facilities.”)).) He further argues that “[e]ven five months after the

8 lawsuit was filed, [D]efendants’ Rule 30(b)(6) witness testified that only a few [of these

9 individuals] were actually receiving specialized services.” (Rule 12(c) Resp. at 20.)

10

Although pleading such a claim may be feasible, Mr. Dunakin has failed to do so

11 here. The facts he describes in his response may have been developed in discovery, but

12 they are not adequately pleaded in his complaint. In his response to Defendants’ motion

13 to dismiss, Mr. Dunakin cites several provisions of his complaint (see Rule 12(c) Resp. at

14 19 (citing Compl. ¶¶ 22-23, 26,-32)), but the claim described above is not to be found

15 within them. Accordingly, the court grants Defendants’ motion to dismiss Mr. Dunakin’s

16 claim based on Medicaid comparability. However, as discussed below, the court also

17 grants Mr. Dunakin leave to amend his complaint with respect to this claim.

18

c. Meaningful Choice of Provider Provision

19

Mr. Dunakin bases his third claim under Title XIX of the Social Security Act on

20 one of the “free choice” provisions of the Medicaid Act. (See Compl. ¶ 44 (citing 42

21 U.S.C. §§ 1396n(c)(2)(B) and (C)).) The portion of the Medicaid Act at issue relates to

22 the federal home- and community-based services (“HCBS”) waiver program, which

ORDER- 37

1 allows states to be reimbursed for providing beneficiaries with noninstitutional care, so

2 long as the cost of providing this care is less than or equal to the cost of caring for the

3 same beneficiaries in more traditional long-term institutions. See Ball v. Rodgers, 492

4 F.3d 1094, 1107 (9th Cir. 2007). HCBS waivers, however, are only available if a state

5 provides certain “assurances” to the Secretary of Health and Human Services. Id. (citing

6 42 U.S.C. § 1396n(c)(2), (d)(2)). Section 1396n(c)(2)(C), upon which Mr. Dunakin

7 relies, provides that certain individuals, as defined in § 1396n(c)(2)(B),

8

who are determined to be likely to require the level of care provided in a

hospital, nursing facility, or intermediate care facility for the mentally

9

retarded are informed of the feasible alternatives, if available under the

waiver, at the choice of such individuals, to the provision of inpatient

10

hospital services, nursing facility services, or services in an intermediate

care facility for the mentally retarded.

11

42 U.S.C. § 1396n(c)(2)(C).

12

Defendants assert without citation to legal authority that 42 U.S.C. § 1396n(c)(2)

13

“cannot form a basis for relief” because it “relates only to waivers” for state Medicaid

14

plans. (Rule 12(c) Mot. at 20.) The Ninth Circuit, however, has expressly held that

15

Medicaid beneficiaries “enjoy individual rights under [42 U.S.C. § 1396n(c)(2)(C)] that

16

can be enforced under § 1983.” Ball, 492 F.3d at 1103; see also id. at 1107. The Ninth

17

Circuit has described § 1396n(c)(2) as conferring to eligible individuals “two explicitly

18

identified rights—(a) the right to be informed of alternatives to traditional long-term

19

institutional care, and (b) the right to choose among those alternatives.” Id. at 1107

20

(italics in original). Mr. Dunakin has alleged that Defendants never informed him of his

21

feasible alternative placements as required by the Medicaid meaningful choice of

22

ORDER- 38

1 provider provisions. (See Compl. ¶¶ 16-17, 28-31, 44.) Accordingly, the court denies

2 Defendants’ motion to dismiss Mr. Dunakin’s claim under Title XIX of the Social

3 Security Act on this ground. See, e.g., Rolland v. Cellucci, 52 F. Supp. 2d 231, 241 (D.

4 Mass. 1999) (ruling that, although issues remained concerning the breadth of 42 U.S.C. §

5 1396n(c)(2)(C) and whether alleged alternatives were, in fact, feasible, the plaintiffs had

6 stated a claim where they alleged that the defendants denied them their freedom of choice

7 by failing to inform them of feasible alternatives to nursing facilities).

8

d. Adequate Notice of Defendants’ Determinations

9

Mr. Dunakin alleges that Defendants violated Title XIX of the Social Security Act

10 by failing to provide Medicaid benefits “with adequate written notice of [D]efendants’

11 determinations, as well as the[] right to appeal to [D]efendants’ administrative hearing

12 process, pursuant to 42 C.F.R. § 431.200 et seq.” (Compl. ¶ 44.) Defendants argue that

13 Mr. Dunakin has not identified any action on their part that entitled him to notice or the

14 notice to which he was entitled but that they failed to provide or provided improperly.

15 (Rule 12(c) Mot. at 21.) Yet, Mr. Dunakin alleges that Defendants never provided him

16 with notice about the results of his initial PASRR Level I screening, his entitlement to a

17 PASRR Level II evaluation, the availability of specialized services, or the possibility of

18 alternative community-based placement. (Compl. ¶¶ 16, 30-31.) He also alleges that

19 Defendants’ PASRR system as a whole failed to provide “adequate notice and due

20 process” regarding his and the proposed class’s “eligibility for Medicaid services

21 (including placement in a less restrictive setting and specialized services) and their rights

22

ORDER- 39

1 to appeal any determination through an administrative hearing.” (Id. ¶ 17; see also id.

2 ¶¶ 31, 44.) These factual allegations are sufficient.

3

Defendants also complain that Mr. Dunakin’s reference to “42 C.F.R. § 431.200 et

4 seq.” is too vague and forces them to guess which specific provisions are at issue. A

5 plaintiff, however, is not required to plead the law, only facts. “To survive a motion to

6 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

7 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

8 550 U.S. at 570). Indeed, although the court must accept well-pleaded facts as true when 9 considering a Rule 12(c) motion,13 it is not required to accept conclusions of law. See id.

10 at 678-79. Thus, Mr. Dunakin’s reference to “42 C.F.R. § 431.200 et seq.” does not

11 undermine the adequacy of his allegations. The court denies Defendants’ motion to

12 dismiss this portion of Mr. Dunakin’s complaint.14

13

5. Leave to Amend the Complaint

14

The court granted Defendants’ Rule 12(c) motion with respect to Mr. Dunakin’s

15 claim based on the “comparability” requirement of the Medicaid Act as set forth in 42

16 U.S.C. § 1396a(a)(10)(B)(i). (See Compl. ¶ 44(2).) When the court grants a motion to

17 dismiss, it must also decide whether to grant leave to amend. Mora v. Countrywide

18 13 The applicable standard on a Rule 12(c) motion is essentially identical to the standard
19 for a motion to dismiss under Rule 12(b)(6). United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011).

20

14 Defendants’ only basis for seeking dismissal of Mr. Dunakin’s fifth and sixth claims

21 for declaratory and injunctive relief was the assumption that the court would grant its motion to dismiss claims one through four. (See Rule 12(c) Mot. at 1-2, 23.) Because the court has

22

granted dismissal of only one portion of Mr. Dunakin’s fourth claim (and with leave to amend), the court denies Defendants’ motion to dismiss Mr. Dunakin’s fifth and sixth claims.

ORDER- 40

1 Mortg.. No. 2:11-cv-00899-GMN-RJJ, 2012 WL 254056, at *2 (D. Nev. Jan. 26, 2012).

2 Ordinarily, leave to amend a complaint should be freely given following an order of

3 dismissal. See Fed. R. Civ. P. 15(a)(2). Generally, leave to amend is only denied when it

4 is clear that the deficiencies of the complaint cannot be cured by amendment. See DeSoto

5 v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (“A district court does not

6 err in denying leave to amend where the amendment would be futile.”). It is not clear

7 that the deficiencies of Mr. Dunakins’ claim based on the “comparability” requirement of

8 the Medicaid Act cannot be cured by amendment. Accordingly, the court grants Mr.

9 Dunakin leave to amend his complaint with respect to this claim within 30 days of the

10 date of this order. If Mr. Dunakin does not timely file an amended complaint addressing

11 this claim, the court will dismiss it.

12 B. Plaintiff’s Motion for Class Certification

13

The court next considers Mr. Dunakin’s motion for class certification. (See

14 generally Mot. for Cert.) Mr. Dunakin brings his motion under Federal Rule of Civil

15 Procedure 23(b)(2). Specifically, Mr. Dunakin seeks certification of a class that consists

16 of all individuals who:

17

(a) are or will be residents of Medicaid-certified, privately-operated nursing

facilities in the State of Washington; and

18

(b) who [sic] are Medicaid recipients with an intellectual disability or

related condition(s) such that they are eligible to be screened and

19

assessed pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R. § 483.122 et

seq.

20 (Compl. ¶ 14.) The court finds that Mr. Dunakin has met the criteria for class

21 certification under Rule 23(b)(2) and accordingly grants his motion as discussed below.

22

ORDER- 41

1

1. Standards

2

A district court may certify a class only if all of the requirements of Federal Rule

3 of Civil Procedure 23(a) are met, including: “(1) the class is so numerous that joinder of

4 all members is impracticable; (2) there are questions of law or fact common to the class;

5 (3) the claims or defenses of the representative parties are typical of the claims or

6 defenses of the class; and (4) the representative parties will fairly and adequately protect

7 the interests of the class.” Fed. R. Civ. P. 23(a); see also Wal-Mart Stores, Inc. v. Dukes,

8 --- U.S. ---, 131 S. Ct. 2541, 2548 (2011); Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th

9 Cir. 2010). These Rule 23(a) prerequisites are often referred to in shorthand as

10 numerosity, commonality, typicality, and adequacy.

11

In addition to meeting the Rule 23(a) prerequisites, the party seeking class

12 certification must also fall into one of three categories under Rule 23(b). Dukes, 131 S.

13 Ct. at 2548; see also Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). Mr.

14 Dunakin seeks certification pursuant to Rule 23(b)(2) only. (See Mot. for Cert. at 3, 14-

15 15.) Certification is appropriate under Rule 23(b)(2) where the defendant has “acted on

16 grounds generally applicable to the class, thereby making appropriate final injunctive

17 relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R.

18 Civ. P. 23(b)(2).

19

Rule 23 “does not set forth a mere pleading standard.” Dukes, 131 S.Ct. at 2551.

20 Rather, certification is proper “only if ‘the trial court is satisfied, after a rigorous analysis,

21 that the prerequisites of Rule 23(a) have been satisfied.’” Id. (quoting Gen. Tel. Co. of

22 Sw. v. Falcon, 457 U.S. 147, 161 (1982)). Indeed, in conducting the class certification

ORDER- 42

1 analysis, “it may be necessary for the court to probe behind the pleadings before coming

2 to rest on the certification question.” Id. at 2551 (quoting Falcon, 457 U.S. at 160)

3 (internal quotation marks omitted). This is because “the class determination generally

4 involves considerations that are enmeshed in the factual and legal issues comprising the

5 plaintiff’s cause of action.” Id. (internal quotation omitted). Nonetheless, the ultimate

6 decision regarding class certification “involve[s] a significant element of discretion.”

7 Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1090 (9th Cir. 2010).

8

2. Ascertainability

9

Although not specifically mentioned in Rule 23, Defendants argue that Mr.

10 Dunakin must, in addition to showing numerosity, commonality, typicality, and

11 adequacy, demonstrate that the members of the proposed class are “ascertainable.” (See

12 Resp. to Cert. (Dkt. # 22) at 4 (“A class definition must be precise, objective, and the

13 class must be presently ascertainable.”) Under the ascertainability doctrine, the class

14 must be sufficiently definite so that it is feasible for the court to determine membership

15 by reference to objective criteria. See Williams v. Oberon Media, Inc., 468 F. App’x 768,

16 770 (9th Cir. 2012) (citing O’Connor v. Boeing N. Am. Inc., 184 F.R.D. 311, 319 (C.D.

17 Cal. 1998) (holding that the district court did not abuse its discretion in denying the class

18 motion because the proposed members were not “precise, objective or presently

19 ascertainable”)). A class is sufficiently defined and ascertainable if it is “administratively

20 feasible for the court to determine whether a particular individual is a member.”

21 O’Connor, 184 F.R.D. at 319; accord Davoll v. Webb, 160 F.R.D. 142, 143 (D. Colo.

22 1995).

ORDER- 43

1

Although ascertainability may be applicable when considering certification of a

2 class under Rule 23(b)(3), many courts have determined that it is of less importance or

3 not applicable at all when considering certification under Rule 23(b)(2). See, e.g.,

4 Shelton v. Bledsoe, 775 F.3d 554, 561 (3d Cir. 2015) (“[I]t does not follow . . . that

5 ascertainability is always a prerequisite to class certification. In the context of a (b)(3)

6 class, the requirement that the class be defined in a manner that allows for ready

7 identification of class members serves several important objectives that either do not exist

8 or are not compelling in (b)(2) classes.”). Courts have applied the ascertainability

9 doctrine differently in the two contexts due to the distinctions between a Rule 23(b)(2)

10 class and a Rule 23(b)(3) class. See Shelton, 775 F.3d at 562. Rule 23(b)(3) requires

11 finding that common questions of law or fact predominate over questions affecting only

12 individual members, and that a class action is superior to other methods of adjudication.

13 Fed. R. Civ. P. 23(b)(3). Certification under Rule 23(b)(3) proceeds in a much wider set

14 of circumstances than certification under Rule 23(b)(1) or (b)(2), and accordingly

15 Congress included additional safeguards for (b)(3) class members, such as the

16 opportunity to opt out. See id.; see also Shelton, 775 F.3d at 560.

17

On the other hand, “[t]he key to the (b)(2) class is the indivisible nature of the

18 injunctive or declaratory remedy warranted—the notion that the conduct is such that it

19 can be enjoined or declared unlawful only as to all of the class members or as to none of

20 them.” Wal-Mart, 131 S. Ct. at 2557 (internal quotations and citation omitted). Indeed,

21 an Advisory Committee note to Rule 23 states that “illustrative” examples of a Rule

22 23(b)(2) class include “various actions in the civil-rights field where a party is charged

ORDER- 44

1 with discriminating unlawfully against a class, usually one whose members are incapable

2 of specific enumeration.” Fed. R. Civ. P. 23 advisory committee’s note (1966).

3 Moreover, enforcement often does not require identification of individual members in a

4 Rule 23(b)(2) class because if relief is granted the defendants are legally obligated to

5 comply. Shelton, 775 F.3d at 561.

6

Although the Ninth Circuit has not ruled on this issue, several other circuit courts

7 have held that, due to the unique characteristics of a Rule 23(b)(2) class, it is improper to

8 require ascertainability for a Rule 23(b)(2) class. See, e.g., id. at 559-63

9 (“[A]scertainability is not a requirement for certification of a (b)(2) class seeking only

10 injunctive and declaratory relief . . . .”); Shook v. El Paso, 386 F.3d 963, 972 (10th Cir.

11 2004) (“[M]any courts have found Rule 23(b)(2) well suited for cases where the

12 composition of the class is not readily ascertainable.”); Yaffe v. Powers, 454 F.2d 1362,

13 1366 (1st Cir. 1972) (holding that, because “notice to the members of a (b)(2) class is not

14 required . . . the actual membership of the class need not . . . be precisely delimited”).

15 The court finds the reasoning of these decisions to be persuasive and adopts it here.

16

Other courts have certified very broadly defined Rule 23(b)(2) classes in which

17 members are defined by their eligibility for certain types of services or by a qualifying

18 condition. See, e.g., Lane v. Kitzhaber, 283 F.R.D. 587, 594 (D. Or. 2012) (certifying

19 Rule 23(b)(2) class of “[i]ndividuals with intellectual or developmental disabilities . . .

20 who qualified for supported employment services”); Rosie D. v. Romney, 410 F. Supp. 2d

21 18, 22 (D. Mass. 2006) (certifying Rule 23(b)(2) class of children “who were (or might

22 become) eligible to receive, but were not receiving, what Plaintiffs described as

ORDER- 45

1 ‘intensive home-based services’”); Katie A. v. Diana Bonta, 433 F. Supp. 2d 1065, 1067

2 (C.D. Cal. 2006) (certifying class of foster children who “have a mental illness or

3 condition that has been documented or, had an assessment already been conducted, would

4 have been documented; and . . . who need individualized mental health services”),

5 overruled on other grounds, 481 F.3d 1150 (9th Cir. 2007); K.M. Regence BlueShiled,

6 No. C13-1214 RAJ, 2014 WL 801204, at *12 (W.D. Wash. Feb. 27, 2014) (certifying

7 Rule 23(b)(2) class of beneficiaries who “require neurodevelopmental therapy for the

8 treatment of a qualified mental health condition”). Indeed, Mr. Dunakin’s proposed class

9 definition is similar to the one approved in another PASRR class action. See Van Meter

10 v. Harvey, 272 F.R.D. 274, 276 (D. Me. 2011). The court discerns no bar to certification

11 of the proposed class under Rule 23(b)(2) based on ascertainability here.

12

3. Numerosity

13

The numerosity requirement is satisfied when “the class is so numerous that

14 joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). There is no threshold

15 number of class members that automatically satisfies this requirement. General Tel. Co.

16 Nw. v. EEOC, 446 U.S. 318, 330 (1980). “Generally, 40 or more members will satisfy

17 the numerosity requirement.” Garrison v. Asotin Cnty., 251 F.R.D. 566, 569 (E.D. Wash.

18 2008); see Wamboldt v. Safety–Kleen Sys., Inc., No. C 07-0884 PJH, 2007 WL 2409200,

19 at *11 (N.D. Cal. Aug. 21, 2007) (“[N]umerosity is satisfied if the class comprises 40 or

20 more members.”); see also Jordan v. L.A. Cnty., 669 F.2d 1311, 1319 (9th Cir.1982)

21 (class sizes of 39, 64, and 71 sufficient to satisfy numerosity requirement), vacated on

22 other grounds, 459 U.S. 810 (1982).

ORDER- 46

1

The question is whether joinder of all potential plaintiffs would be impracticable.

2 See McCluskey v. Trs. of Red Dot Corp. Emp. Stock Ownership Plan & Trust, 268 F.R.D.

3 670, 674 (W.D. Wash. 2010). It is a long-standing rule that “impracticability” does not

4 mean “impossibility”; rather, impracticability means only “the difficulty or

5 inconvenience of joining all members of the class.” Harris v. Palm Springs Alpine

6 Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964) (internal citations omitted). In

7 assessing impracticability of joinder when the class size is not great, courts consider

8 factors such as “the geographical diversity of class members, the ability of individual

9 claimants to institute separate suits, and whether injunctive or declaratory relief is

10 sought.” Jordan, 669 F.2d at 1319; see also McCluskey, 268 F.R.D. at 674 (citing

11 Newberg and Conte, 1 Newberg on Class Actions § 3.6 (4th ed. 2002) (“[F]actors

12 relevant to the joinder impracticability issue include judicial economy arising from

13 avoidance of a multiplicity of actions, geographic dispersement of class members, size of

14 individual claims, financial resources of class members, the ability of claimants to

15 institute individual suits, and requests for prospective injunctive relief which would

16 involve future class members.”)).

17

Based on DDA’s data, Mr. Dunakin asserts that the projected size of the class is

18 approximately 300 people. (Hamburger Decl. Ex. C at 2; id. Ex. E; Teed Decl. Ex. B at

19 100.) This number, although not enormous, qualifies under the standards described

20 above. If, as alleged, Defendants have failed to institute a PASRR system that complies

21 with the requirements of federal law, then many, if not all, of these individuals, and

22 perhaps more, have been or will be injured by Defendants’ failure to provide proper

ORDER- 47

1 PASRR screening and evaluation. Further, all of the proposed class members suffer from

2 disabilities, are residents of privately-operated nursing facilities spread across the state,

3 and are low-income Medicaid recipients. Defendants have not disputed the

4 impracticability of joinder in these factual circumstances (see Resp. to Cert. at 12-13),

5 and the court finds that these circumstances render individual suits by the putative class

6 members here to be impracticable. See Van Meter, 272 F.R.D. at 282 (“[D]isability,

7 confinement and financial difficulty, and the inability of class members to bring their

8 own separate actions have been found to be factors strongly weighing against the

9 practicability of joinder.”).

10

Defendants nevertheless argue that Mr. Dunakin has not proven numerosity

11 because Defendants’ own data is imprecise and therefore the exact number of PASRR-

12 eligible nursing home residents is impossible to determine. (See Resp. to Cert. at 13

13 (“DDA has compiled a list of individuals who are either DDA clients, or whose minimum

14 data sets suggest they might be eligible for PASRR.”) (italics in original).) However,

15 because he seeks only declaratory and injunctive relief, Mr. Dunakin does not need to

16 establish the precise number of class members to demonstrate numerosity. Kenneth R. ex

17 rel. Tri-County CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 265 (D.N.H. 2013) (“The exact

18 number of class members need not be established, particularly where only declaratory

19 and injunctive relief is sought.”) (internal quotations and alterations omitted); see also

20 Jordan, 669 F.2d at 1319 n.9. The court finds that Mr. Dunakin has met his burden of

21 demonstrating numerosity.

22 //

ORDER- 48

1

4. Commonality

2

To satisfy commonality, the plaintiff must demonstrate that “there are common

3 questions of law or fact to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality” is met

4 through the existence of a “common contention” that is of “such a nature that it is capable

5 of classwide resolution.” Dukes, 131 S. Ct. at 2551. A contention is capable of

6 classwide resolution if “the determination of its truth or falsity will resolve an issue that

7 is central to the validity of each one of the claims in one stroke.” Id. Accordingly, “what

8 matters to class certification . . . is not the raising of common questions—even in

9 droves—but, rather the capacity of a classwide proceeding to generate common answers

10 apt to drive the resolution of the litigation.” Id. This requirement is “construed

11 permissively.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

12 Accordingly, “[a]ll questions of fact and law need not be common to satisfy the rule.”

13 Id.; see also Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010). Indeed,

14 commonality poses a “limited burden” because it “only requires a single significant

15 question of law or fact.” Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th

16 Cir. 2012).

17

Mr. Dunakin asserts the following “overarching” common question of law and

18 fact: Do defendants have a PASRR program in place for Medicaid-certified privately-

19 operated nursing facilities that meets all relevant federal requirements? (Reply for Cert.

20 (Dkt. # 33) at 4.) He asserts several additional common questions regarding putative

21 class members’ access to appropriate and adequate services: (1) Do Defendants have a

22 PASRR program in place to properly screen and assess individuals with intellectual

ORDER- 49

1 disabilities or related conditions residing in Medicaid-certified, privately-operated

2 nursing facilities, consistent with federal law and regulations? (2) Do defendants

3 provide, with reasonable promptness, all specialized services identified by the PASRR

4 process to proposed class members? (3) Do Defendants properly determine whether

5 individuals with intellectual disabilities and related conditions residing in Medicaid-

6 certified, privately-operated nursing facilities want to live in less restrictive, community-

7 based settings and, if so, provide for class members to access those less restrictive

8 community-based settings? (4) Do Defendants provide adequate notice and the

9 opportunity to appeal adverse decisions to individuals with intellectual disabilities or

10 related conditions residing in Medicaid-certified, privately operated nursing facilities

11 regarding their eligibility for Medicaid services (including PASRR screening,

12 assessment, specialized services and placement in a less restrictive community-based

13 setting)? (Id.; see also Mot. for Cert. at 10.)

14

In response, Defendants do not challenge Mr. Dunakin’s common questions

15 directly. Rather, Defendants assert that the foregoing questions “presume[] that every

16 member of the class has already been identified as an individual with an intellectual

17 disability or related condition.” (Resp. to Cert. at 10.) Defendants assert that because

18 there is uncertainty concerning the existence of an intellectual disability in each class

19 member, “[t]he issues presented as ‘common’ to the class are completely hypothetical.”

20 (Id.) Mr. Dunakin’s proposed class, however, is based on the number of individuals who

21 Defendants themselves have identified as having an intellectual disability or as being a

22 DDA client and who are currently residing in community-based nursing facilities. (See

ORDER- 50

1 Hamburger Decl. Ex. C at 2; id. Ex. E at 100.) Thus, while some number of these

2 individuals may have been misidentified by Defendants, there is no basis for assuming

3 that number is significant. Indeed, Defendants represented in DDA’s 2014 Supplemental

4 Budget that the number of individuals at issue was “approximately 300.” (See id. Ex. C

5 at 2.) If DDA felt confident enough to place this figure in its 2014 Supplemental Budget,

6 then the court is satisfied that Mr. Dunakin’s common questions are not “hypothetical,”

7 and he has demonstrated commonality.

8

5. Typicality

9

“[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with

10 those of absent class members; they need not be substantially identical.” Hanlon, 150

11 F.3d at 1020. “Typicality refers to the nature of the claim or defense of the class 12 representative, and not to the specific facts from which it arose or the relief sought.”15

13 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). In determining

14 typicality, courts consider “whether other members have the same or similar injury,

15 whether the action is based on conduct which is not unique to the named plaintiffs, and

16 whether other class members have been injured by the same course of conduct.” Id. at

17 508. “Under the rule’s permissive standards, representative claims are ‘typical’ if they

18 are reasonably co-extensive with those of absent class members; they need not be

19

20

15 The “commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon,

21 457 U.S. at 158 n.13. “Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s

22

claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Id.

ORDER- 51

1 substantially identical.” Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014) (quotation

2 marks and citations omitted).

3

The Ninth Circuit has provided guidance on how to analyze typicality in a case

4 involving challenged policies or practices:

5

Where the challenged conduct is a policy or practice that affects all class

members, the underlying issue presented with respect to typicality is similar

6

to that presented with respect to commonality, although the emphasis may

be different. In such a case, because the cause of the injury is the same—

7

here, the [defendant’s] discriminatory policy and practice—the typicality

inquiry involves comparing the injury asserted in the claims raised by the

8

named plaintiffs with those of the rest of the class. We do not insist that the

named plaintiffs’ injuries be identical with those of the other class

9

members, only that the unnamed class members have injuries similar to

those of the named plaintiffs and that the injuries result from the same,

10

injurious course of conduct.

11 Parsons, 754 F.3d at 687. The Ninth Circuit has also cautioned, however, that “a named

12 plaintiff’s motion for class certification should not be granted if there is a danger that

13 absent class members will suffer if their representative is preoccupied with defenses

14 unique to it.” Id.

15

Defendants’ strongest argument against certification of the class lies in the

16 typicality requirement. (Resp. to Cert. at 7-9.) Defendants found a 2008 PASRR Level I

17 assessment in Mr. Dunakin’s medical records after this lawsuit was filed, which indicates

18 that Mr. Dunakin does not qualify for a PASRR Level II assessment. (See Hamburger

19 Decl. Ex. M.) Defendants argue that this fact renders Mr. Dunakin not typical of the

20 putative class. (Resp. to Cert. at 8-9.) Indeed, they are essentially arguing the merits of

21 the case—that Mr. Dunakin is not typical because, based on his 2008 PASRR Level I

22

ORDER- 52

1 assessment, he is not entitled to any PASRR assessment, evaluation, or services. (See

2 generally Kishel Decl. (Dkt. # 26).)

3

Defendants, however, ignore the larger picture surrounding Mr. Dunakin’s alleged

4 experience with Defendants’ PASRR policies and procedures. Mr. Dunakin has

5 presented evidence of a 2006 PASRR I evaluation, which identified him as having

6 “Developmental Disability Indicators.” (Hamburger Decl. Ex. G.) Yet, Mr. Dunakin

7 never received a PASRR Level II evaluation at that time. Years later, in 2014, DDA

8 placed Mr. Dunakin on a list or report of DDA clients who were living in nursing homes.

9 (Hamburger Decl. Ex. H (Watling Rule 30(b)(6) Dep.) at 64:21-65:7.) DDA has

10 acknowledged that the people on the report are individuals that it knows should receive a

11 Level II PASRR evaluation. (See Teed Decl. Ex. B (Hehemann Rule 30(b)(6) Dep.) at

12 242:15-22.) Yet, again, Mr. Dunakin did not receive such an evaluation.

13

Furthermore, Mr. Dunakin asserts that the 2008 PASRR Level I assessment, which

14 denied his eligibility for a PASRR Level II evaluation, was in error.16 Indeed,

15 Defendants have acknowledged that until recently they were applying the wrong standard

16 for PASRR eligibility. (See PSJ Resp. at 1, 7.) Thus, similar to Mr. Duankin’s alleged

17 experience, there may be numerous inaccurate PASRR Level I or Level II evaluations in

18

19

20

21

16 Defendants have acknowledged that, if a PASRR Level I evaluation is in error, a new

Level I should be completed and the resident referred for a Level II evaluation, if indicated. (See

22 PSJ Resp. at 4; Hehemann Decl. ¶ 10; Hamburger Decl. Ex. D at 1.)

ORDER- 53

1 the medical records of residents of privately-operated nursing facilities.17 (See id. at 1

2 (acknowledging that developmental disability eligibility under state law and PASRR

3 determinations under federal law have different standards).)

4

Although the facts surrounding Mr. Dunakin’s claims have grown more complex

5 as a result of discovery, the court concludes that his claims are nonetheless typical of the

6 putative class. First, there is no dispute that Mr. Dunakin is a resident of a Medicaid-

7 certified, privately-operated nursing facility. Although not uncontroverted, Mr. Dunakin

8 also has put forth substantial evidence that he suffers from a “related condition” to 9 intellectual disability.18 He also credibly asserts that he is entitled to PASRR screening

10 and assessment that Defendants have denied. He argues that the 2008 PASRR Level I

11 assessment indicating that he is not entitled to a PASRR Level II assessment was

12 completed in error, contradicted by two separate determinations by Defendants indicating

13 he is entitled to a Level II assessment, and never corrected. (Reply for Cert. at 6-7.) He

14

15

17 Defendants assert that “the State PASRR program is unaware of any individual that

was wrongfully excluded during the time period that the state eligibility standard was being used

16

in implementation of the PASRR program.” (PSJ Resp. at 7 (citing Hehemann Decl. ¶ 8).) This is not, however, confirmation that such individuals do not exist. Indeed, Mr. Dunakin presents

evidence, albeit disputed, that he is a qualifying individual who was wrongfully excluded. 17 (Compare Hill Decl. (opining that Mr. Dunakin qualifies as a person with a “related condition”

under PASRR regulation 42 C.F.R. § 435.1010) with Kishel Decl. (opining that Mr. Dunakin

18 does not so qualify).

19

18 (Compare Hill Decl. (concluding that Mr. Dunakin is a person with a “related

condition” to intellectual disability) and 2d Hill Decl. (Dkt. # 36) (concluding that there is no

20 basis for thinking that his lower cognitive functioning and other limitations were caused by anything other than his congenital neuromuscular condition) with Kishel Decl. (concluding that

21 “it is impossible to conclude that Mr. Dunakin’s neuromuscular condition ‘is known by reputable authorities to cause intellectual and adaptive skills deficits’ as required by WAC 388-823-0600”

22

or determine whether his “adaptive deficits are due to the neuromuscular disorder, physical injury, and/or mental illness”).)

ORDER- 54

1 also claims that he is entitled to a PASRR Level II assessment based on Defendants’

2 other evaluations. (Id.) Thus, like other putative class members, Mr. Dunakin claims

3 that he is eligible for screening, assessment, and services under PASRR, which

4 Defendants have failed to provide due to flawed PASRR policies and procedures.

5 Although Mr. Dunakin’s injuries may not be identical to those of other class members,

6 his injuries are similar and “result from the same, injurious course of conduct” in which

7 Mr. Dunakin has alleged that Defendants are engaged. Parsons, 754 F.3d at 687.

8

Defendants’ arguments to the contrary essentially go to the merits of Mr.

9 Dunakin’s claims. Although “a court’s class-certification analysis must be rigorous and

10 may entail some overlap with the merits of the plaintiff’s underlying claim,” Dukes, 131

11 S. Ct. at 2551 (internal quotation marks omitted), “Rule 23 grants courts no license to

12 engage in free ranging merits inquiries at the certification stage,” Amgen Inc. v. Conn.

13 Ret. Plans and Trust Funds, --- U.S. ---, 133 S. Ct. 1184, 1194-95 (2013). See also id. at

14 1195 (“Merits questions may be considered to the extent—but only to the extent—that

15 they are relevant to determining whether the Rule 23 prerequisites for class certification

16 are satisfied.”); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (“In determining

17 the propriety of a class action, the question is not whether the plaintiff or plaintiffs have

18 stated a cause of action or will prevail on the merits, but rather whether the requirements

19 of Rule 23 are met.”) (quoting with approval Miller v. Mackey Int’l, 452 F.2d 424, 427

20 (5th Cir. 1971); Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003) (“Although some

21 inquiry into the substance of a case may be necessary to ascertain satisfaction of the

22 commonality and typicality requirements of Rule 23(a), it is improper to advance a

ORDER- 55

1 decision on the merits to the class certification stage.”). Thus, the court need not and

2 should not determine whether Mr. Dunakin will ultimately prevail on his claims in the

3 context of this Rule 23 motion; rather, the court should determine whether Mr. Dunakin

4 has sufficiently demonstrated the requirements of Rule 23. Based on the pleadings and

5 evidence submitted by the parties, the court concludes that Mr. Dunakin has met his

6 burden under Rule 23 of demonstrating that his claims are typical of the putative class.

7

6. Adequacy

8

“To determine whether named plaintiffs will adequately represent a class, courts

9 must resolve two questions: ‘(1) do the named plaintiffs and their counsel have any

10 conflicts of interest with other class members and (2) will the named plaintiffs and their

11 counsel prosecute the action vigorously on behalf of the class?’” Ellis v. Costco

12 Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (quoting Hanlon, 150 F.3d at 1020).

13

Defendants challenge Mr. Dunakin’s adequacy as a class representative on the

14 same grounds on which they challenge typicality and commonality. (See Resp. to Cert. at

15 14 (“Plaintiff does not appear to be a member of the putative class and has not suffered

16 the same injuries he alleges are common to the class.”).) The court relies on its reasoning

17 stated above addressing Defendants’ arguments concerning those issues. (See infra §§

18 III.B.4, III.B.5.) Defendants do not identify any conflict of interest between proposed

19 class representatives and the class members, and the court is aware of none. (See Resp.

20 to Cert. at 13-14.) Furthermore, Mr. Dunakin’s mother and next friend, Kimberlee

21 Hollinger, testifies that she and Mr. Dunakin are aware of and willing to fulfill the duties

22

ORDER- 56

1 and responsibilities associated with serving as a class representative. (Hollinger Decl. ¶

2 8.) The court, therefore, finds that Mr. Dunakin is an adequate class representative.

3

The competency of counsel has been largely subsumed under Rule 23(g) and the

4 requirement that the court appoint adequate class counsel. Fed. R. Civ. P. 23(g)(1)(A)(i)-

5 (iv). When appointing class counsel, the court considers the work Plaintiff’s counsel has

6 done in identifying and investigating potential claims, counsel’s experience with class

7 litigation and the types of claims at issue, counsel’s knowledge of the applicable law, and

8 the resources that counsel will commit to representing the class. Id. The court may also

9 consider any other pertinent matter relevant to counsel’s ability to adequately represent

10 the class. Fed. R. Civ. P. 23(g)(1)(B).

11

Defendants “do not dispute the experience of Plaintiff’s counsel.” (Resp. to Cert.

12 at 14.) However, they challenge the adequacy of Plaintiff’s counsel by asserting that

13 Plaintiff’s memoranda in support of partial summary judgment and class certification

14 “demonstrates a fundamental misunderstanding of both DDA’s actions and process, and

15 of the relevant law.” (Id.) The court agrees with Mr. Dunakin that the parties’

16 disagreement over the law or how their dispute should be resolved is not a valid basis for

17 challenging the adequacy of counsel. (See Reply to Cert. at 8 (citing Fed. R. Civ. P.

18 23(g)(1)(A)(i)-(iv)).) Based on the evidence of their qualifications, prior experience in

19 class litigation, and specifically Medicaid and disability-related class litigation, and

20 willingness to commit the time and resources necessary to vigorously pursue this

21 litigation (see generally Kas Decl.; Hamburger Decl. ¶¶ 1-10), the court finds that

22 Plaintiff’s counsel satisfies the requisite criteria for adequacy of representation.

ORDER- 57

1

7. Rule 23(b)(2) Certification

2

As noted above, in addition to the Rule 23(a) requirements of numerosity,

3 commonality, typicality, and adequacy, Mr. Dunakin must demonstrate that class

4 certification is appropriate under one of three categories in Rule 23(b). Dukes, 131 S. Ct.

5 at 2548. Mr. Dunakin seeks certification only under Rule 23(b)(2). (Mot. for Cert at 14-

6 15; Reply to Cert. at 9-10.) Certification of a class is appropriate under Rule 23(b)(2)

7 where “the party opposing the class has acted or refused to act on grounds that apply

8 generally to the class, so that final injunctive relief or corresponding declaratory relief is

9 appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b). In Dukes, the

10 Supreme Court explained that Rule 23(b)(2) certification is appropriate where injunctive

11 or declaratory relief can be provided to the members of the class without engaging in a

12 case-by-case analysis of the individual circumstances of each class member:

13

The key to the (b)(2) class is the indivisible nature of the injunctive or

declaratory remedy warranted—the notion that the conduct is such that it

14

can be enjoined or declared unlawful only as to all of the class members or

as to none of them. . . . In other words, Rule 23(b)(2) applies only when a

15

single injunction or declaratory judgment would provide relief to each

member of the class. It does not authorize class certification when each

16

individual class member would be entitled to a different injunction or

declaratory judgment against the defendant.

17

131 S. Ct. at 2557 (internal quotations and citations omitted).

18

Defendants assert that rule 23(b) certification is not appropriate here because Mr.

19

Dunakin “has not established that . . . Defendants have taken, or refused to take, any

20

actions “that apply generally to the class” or that any relief would be “appropriate

21

respecting the class as a whole.” (Resp. to Cert. at 15 (quoting Fed. R. Civ. P. 23(b)(2)).)

22

ORDER- 58

1 Defendants argue that “determining what relief is available for a given individual in the

2 class would necessarily require evidentiary hearings on both whether that individual is a

3 member of the class at all, and what specific injury that individual may have incurred.”

4 (Id.)

5

The court disagrees. Mr. Dunakin is not asking the court to make separate

6 determinations concerning the individual services that are appropriate for each class

7 member. Rather, class members seek relief from systemic barriers to proper treatment

8 and services. Specifically, Mr. Dunakin seeks implementation of appropriate policies,

9 practices, and procedures by Defendants to ensure that putative class members are

10 screened and evaluated as required by the NHRA and the PASRR regualtions, informed

11 that they may be eligible for community-based services, and provided with appropriate

12 services by Defendants with reasonable promptness. (See Compl. at 15.) In other words,

13 he does not ask the court to order individualized remedies for the various class members;

14 instead, he asks the court for an order requiring Defendants “to develop a system of

15 evaluation and implementation of corresponding services that complies with federal

16 standards.” See Van Meter v. Harvey, 272 F.R.D. 274, 282 (D. Me. 2011).

17

Van Meter involves similar facts and is instructive here. In Van Meter, Medicaid

18 recipients who were suffering from defined chronic disabilities brought a putative class

19 action alleging that the Maine Department of Health and Human Services (“DHHS”)

20 violated the NHRA, Title II of the ADA, and the Rehabilitation Act by failing to ensure

21 that Plaintiffs received appropriate treatment in the most integrated setting possible. See

22

ORDER- 59

1 id. at 275. The court found class certification under Rule 23(b)(2) to be appropriate,

2 stating:

3

Plaintiffs allege a systemic problem with DHHS’s procedures, and they

seek injunctive and declaratory relief to change DHHS’s conduct on an

4

agency-wide basis. Such relief is appropriate respecting the whole class

because if Plaintiffs’ allegations prove correct, every putative class member

5

will be entitled to the relief.

6

. . . If the putative class members were to proceed on an individual basis,

they might obtain the individual services they seek without obtaining

7

systemic changes to DHHS’s conduct that would benefit the class as a

whole, a result that could lead to countless individual claims seeking the

8

exact same relief. Obtaining relief on a class-wide basis ensures an

efficient judicial remedy to any deficiency in DHHS’s conduct.

9

Id. at 283-84. The same is true here. The court finds that Mr. Dunakin has demonstrated

10

that his action falls within the parameters of Rule 23(b)(2).

11

In sum, the court finds that Mr. Dunakin has demonstrated all of the prerequisites

12

of Rule 23(a) and (b)(2). Accordingly, the court grants Mr. Dunakin’s motion for class

13

certification and appoints him as class representative. Consistent with its analysis above

14

concerning Mr. Dunakin’s counsel’s qualifications (see supra § III.B.6), the court also

15

appoints Susan Kas of Disability Rights Washington and Eleanor Hamburger of Sirianni

16

Youtz Spoonemore Hamburger as class counsel.

17

C. The Parties’ Motions for Partial Summary Judgment

18

Mr. Dunakin moves for partial summary judgment seeking a declaration that

19

Defendants violate the NHRA when, in conducting PASRR screenings and evaluations,

20

Defendants use the definition of “developmental disability” found in state regulations,

21

rather than the definition of “intellectual disability and related conditions” found in

22

ORDER- 60

1 federal regulations. (See generally PSJ Mot.) Mr. Dunakin argues that Defendants’

2 misapplication of the state definition for “developmental disability” has resulted in the

3 improper denial of PASRR services to himself and other class members. (Id.)

4

Defendants also move for partial summary judgment on two of Mr. Dunakin’s

5 claims under Title XIX of the Social Security Act. (See Rule 12(c) Mot. at 22-23.)

6 Defendants ask the court to enter summary judgment on Mr. Dunakin’s claims that

7 Defendants failed to provide Medicaid benefits to him and class members with

8 reasonable promptness (Compl. ¶ 44(1)) and that they failed to provide adequate written

9 notice of Defendants’ determinations, as well as the right to administratively appeal any

10 such determination (id. ¶ 44(4)). (See Rule 12(c) Mot. at 22-23.) The court now

11 considers these motions.

12

1. Standards for Review of a Motion for Summary Judgment

13

Federal Rule of Civil Procedure 56 permits a court to grant summary judgment

14 where the moving party demonstrates (1) the absence of a genuine issue of material fact

15 and (2) entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.

16 v. Catrett, 477 U.S. 317, 322 (1986); see also Galen v. Cnty. of L.A., 477 F.3d 652, 658

17 (9th Cir. 2007). The moving party bears the initial burden of production to show the

18 absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

19

If the moving party does not bear the ultimate burden of persuasion at trial, it can

20 show the absence of an issue of fact in two ways: (1) by producing evidence negating an

21 essential element of the nonmoving party’s case, or, (2) by showing that the nonmoving

22 party lacks evidence of an essential element of its claim or defense. Nissan Fire &

ORDER- 61

1 Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000). If the

2 moving party will bear the ultimate burden of persuasion at trial, it must establish a prima

3 facie showing in support of its position on that issue. UA Local 343 v. Nor-Cal

4 Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must

5 present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue.

6 Id. at 1473.

7

If the moving party meets its burden of production, the burden then shifts to the

8 non-moving party to designate specific facts demonstrating the existence of genuine

9 issues for trial. Celotex, 477 U.S. at 324. The non-moving party “may not rest upon the

10 mere allegations or denials of the [nonmoving] party’s pleading,” but must provide

11 affidavits or other sources of evidence that “set forth specific facts showing that there is a

12 genuine issue for trial”—that is, facts from which a factfinder could reasonably find in

13 the non-moving party’s favor. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477

14 U.S. 242, 252 (1986). In determining whether the factfinder could reasonably find in the

15 non-moving party’s favor, “the court must draw all reasonable inferences in favor of the

16 nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150

17 (2000).

18

2. Mr. Dunakin’s Motion for Partial Summary Judgment Regarding

Defendants’ Use of State Rather Than Federal Definitions for PASRR

19

Eligibility

20

Mr. Dunakin asserts that in conducting PASRR screenings and evaluations

21 Defendants improperly utilize the definition of “developmental disability” found in the

22 Washington Administrative Code, WAC §§ 388-823-0200, 388-823-0210, rather than the

ORDER- 62

1 definition of “intellectual disability and related conditions” found in the Code of Federal

2 Regulations, 42 C.F.R. §§ 483.102(b)(3), 435.1010. (See generally PSJ Mot.) In their

3 response, Defendants admit that, for an unspecified period of time, they applied the state

4 eligibility standard for the provision of state DDA services to implement the federal

5 PASRR program and that their use of the state eligibility standard for federal PASRR

6 purposes was in error. (PSJ Resp. at 1 (“Defendants do not dispute that the [state]

7 developmental disability eligibility determinations and PASRR determinations have

8 different standards.”); id. at 7; Heheman Decl. ¶ 8 (“[F]or a brief period of time, the state

9 eligibility definition, with the exception of age of onset, was being used to implement

10 PASRR, but that has since changed so that only the federal definition is being used.”).)

11 They claim, however, that they have now corrected this problem—which would

12 essentially render Mr. Dunakin’s motion for partial summary judgment moot. (See PSJ

13 Resp. at 1 (“The contention that . . . Defendants currently apply the same standard [to

14 both state and PASRR eligibility determinations] is wrong.”) The court, however, is

15 unconvinced that the State’s prior practice has been corrected with respect to Mr.

16 Dunakin and the other class members.

17

As an initial matter, it is important to take a close look at how the state and federal

18 eligibility standards compare with one another. Under the federal PASRR program, CMS

19 considers a person to have intellectual disability if he or she has (1) “[a] level of

20 retardation (mild, moderate, severe or profound) described in the American Association

21 on Intellectual Disability’s Manual on Classification in Intellectual Disability (1983),” or

22 (2) “[a] related condition as defined by [42 C.F.R.] § 435.1010.” See 42 C.F.R.

ORDER- 63

1 § 483.102(b)(3). On the surface, these PASRR requirements seem similar to DDA’s

2 requirements because to qualify for DDA services based on developmental disability, the

3 individual “must have [1] a diagnosis of intellectual disability . . . or [2] other condition

4 found by DDA to be closely related to intellectual disability or requiring treatment

5 similar to that required for individuals with intellectual disability.” WAC § 388-823-

6 0015 (in relevant part). Thus, both programs require either (1) retardation (as it is

7 phrased in the federal regulations) or intellectual disability (as it is phrased in the state

8 regulations), or (2) a “related condition” (as it is phrased in the federal regulations) or a

9 “closely related” condition (as it is phrased in the state regulations). The “similarity”

10 between the federal and state provisions, however, begins to break down when one

11 compares how the federal PASRR program defines “retardation” and “related condition”

12 to how the State defines “intellectual disability” and “closely related” condition. The

13 devil, as they say, is in the details.

14

a. The Federal PASRR Regulations

15

The critical issue underlying Mr. Dunakin’s motion for partial summary judgment

16 centers on how the PASRR regulations define a “related condition” under 42 C.F.R.

17 § 435.1010. The federal PASRR regulations define “[p]ersons with related conditions” to

18 mean individuals who have “a severe, chronic disability” that is attributable to cerebral

19 palsy, epilepsy, or any other condition, other than mental illness, that is “closely related

20 to [i]ntellectual [d]isability.” 42 C.F.R. § 435.1010. A condition is “closely related to

21 intellectual disability” if it “results in impairment of general intellectual functioning or

22 adaptive behavior similar to that of mentally retarded persons, and requires treatment or

ORDER- 64

1 services similar to those required for these persons.” Id. (italics added). It is not

2 necessary that a person exhibit both impairment of “general intellectual functioning” and

3 “adaptive behavior similar to that of mentally retarded persons.” Id. Only one of these

4 types of impairments is required. Id. In addition, the condition must manifest before the

5 individual reaches the age of 22 and be likely to continue indefinitely. Id. Finally, the

6 condition must result in “substantial functional limitations” in three or more “major life

7 activit[ies],” including: (1) self-care, (2) understanding and use of language, (3) learning,

8 (4) mobility, (5) self-direction, and (6) capacity for independent living. Id.

9

In addition, the federal regulations also set forth specific requirements regarding

10 the “minimum data” and “process requirements” necessary for the state intellectual

11 disability authority to determine whether or not a resident with intellectual disability

12 needs PASRR services. 42 C.F.R. § 483.136(a). Using the data that the state is required

13 to compile, the state “must validate that the individual has [an intellectual disability] or is

14 a person with a related condition and must determine whether specialized services for

15 intellectual disability are needed.” 42 C.F.R. § 483.136(c)(2). The federal regulations

16 specify that “[i]n making this determination,” the State “must make a qualitative

17 judgment on the extent to which the person’s status reflects . . . the characteristics

18 commonly associated with the need for specialized services.” Id. (italics added).

19 Further, the regulations contain an exhaustive list of the specific characteristics that the

20 state must consider in making its “qualitative judgment,” including: (1) demonstration of

21 the “[i]nability to-- (A) [t]ake care of the most personal care needs; (B) [u]nderstand

22 simple commands; (C) [c]ommunicate basic needs and wants; (D) [b]e employed at a

ORDER- 65

1 productive wage without systematic long term supervision or support; (E) [l]earn new

2 skills without aggressive and consistent training; (F) [a]pply skills learned in a training

3 situation to other environments or settings without aggressive and consistent training;

4 (G) [d]emonstrate behavior appropriate to the time, situation or place without direct

5 supervision; and (H) [m]ake decisions requiring informed consent without extreme

6 difficulty;” (2) “[d]emonstration of severe maladaptive behavior(s) that place the person

7 or others in jeopardy to health and safety;” and (3) “[p]resence of other skill deficits or

8 specialized training needs that necessitate the availability of trained [intellectual

9 disability] personnel 24 hours per day, to teach the person functional skills.” 42 C.F.R.

10 § 483.136(c)(2)(i)-(iii).

11

b. The State’s Regulations and Distinctions with PASRR

12

As noted above, under the state system, to qualify for DDA services based on

13 developmental disability, the individual “must have a diagnosis of [1] intellectual

14 disability . . . or [2] other condition found by DDA to be closely related to intellectual

15 disability or requiring treatment similar to that required for individuals with intellectual

16 disability.” WAC § 388-823-0015 (in relevant part). In addition, the condition must

17 originate prior to age 18, be expected to continue indefinitely, and result in substantial

18 limitations. Id. Already, there is a distinction between the federal PASRR and the state

19 regulations because the state requires the condition to manifest prior to age 18 whereas

20 under PASRR the condition must manifest prior to age 22. Compare WAC § 388-823-

21 0015 with 42 C.F.R. § 435.1010. No one disputes, however, that Defendants were

22

ORDER- 66

1 always aware of the age distinction between the state and federal regulations and

2 correctly applied it.

3

It is the distinction between the PASRR regulations concerning “related condition”

4 and the state regulations concerning “closely related” condition that is at issue in this

5 motion. To be considered eligible in Washington for state services under the category of

6 “other condition similar to intellectual disability,” an individual must have “a diagnosis

7 by a licensed physician of a neurological or chromosomal disorder that is known by

8 reputable authorities to cause intellectual and adaptive skills deficits.” WAC § 388-823-

9 0600 (italics added). In addition, the condition must, in part, originate before age 18, be

10 expected to continue indefinitely without improvement, not be attributable to mental

11 illness or emotional, social or behavioral disorder, and result in substantial functional 12 limitations.19 WAC § 388-823-0600(1). In order to meet the definition of “substantial

13 functional limitations,” the individual again “must have impairments in both intellectual

14 abilities and adaptive skills which are separate from any impairment due to unrelated

15 mental illness, or emotional, social or behavioral disorder.” WAC § 388-823-0610

16 (italics added). Further, “evidence of substantial functional limitation requires

17 documentation of both: (1) “[f]or impairment in intellectual abilities . . . [a] FSIQ score of

18

19

20

21

19 In addition to the foregoing criteria, there are two other subsets of criteria, not at issue

here, that meet the State’s definition of “neurological or other condition similar to intellectual

22 disability.” See WAC § 388-823-0600(2), (3).

ORDER- 67

1 more than 1.5 standard deviations below the mean,”20 WAC § 388-823-0610(1)(a)(i), and

2 (2) “[f]or impairment in adaptive skills, a score of more than two standard deviations

3 below the mean,” WAC § 388-823-0610(1)(b).

4

The PASRR requirements with respect to “related condition” are substantially

5 different from the foregoing state regulations. Although the state regulations require

6 impairment in both intellectual and adaptive skills, the PASRR regulations require

7 impairment in only one of these categories. Compare WAC § 388-823-0600 and WAC

8 § 388-823-0610 with 42 C.F.R. § 435.1010 (defining “[p]ersons with related

9 conditions”). As noted above, Defendants have acknowledged that their prior failure to

10 recognize this difference was error. (PSJ Resp. at 1, 7; Hehemann Decl. ¶ 8.) Indeed, a

11 new form that Defendants use to train staff indicates that for a related condition under

12 PASRR a person need only demonstrate impairment in general intellectual functioning or

13 adaptive functioning, but not both. (See Hehemann Decl. Ex. C.) This form, however, is

14 dated October 31, 2014, which is only one month prior to Defendant’s target date of

15 completing its implementation of PASRR enhancements in privately-operated nursing

16 facilities. (See Hehemann Decl. ¶ 5.) Further, there is no evidence that Defendants

17 understood this distinction between the state and federal regulations at any of the times

18 when they evaluated Mr. Dunakin for PASRR eligibility. Indeed, all of Defendants’

19 testimony indicates that, until at least September 2014, they believed that the only

20 distinction between the state and federal regulations was the required age of onset. (See

21

22

20 In addition, there are two other ways an individual may demonstrate impairment of intellectual disabilities, but neither is relevant here. See WAC §§ 388-823-0610(1)(a)(ii), (iii).

ORDER- 68

1 Hamburger Decl. Ex. E at 82:16-83:1, 83:24; id. at 140:10-15; id. at 154:5-9; id. Ex. H at

2 87:12-88:3.)

3

The fact that Defendants acknowledged their error so late in the process is pivotal

4 with respect to Mr. Dunakin’s motion. The State contends that, beginning in April 2014,

5 it has revisited PASRR evaluations for at least 270 people in the class or approximately

6 90 percent of the class. (See Hehemann Decl. ¶ 6 (“I can report that approximately 270

7 individuals in privately-operated Medicaid certified nursing facilities have been

8 reassessed for PASRR purposes since April 2014 using the current PASRR process and

9 systems. This is over 90% of the individuals who we initially contemplated might

10 require review.”).) Indeed, Defendants expressed the goal of completing that process by

11 November 2014. (See Hehemann Decl. ¶ 5.) Yet, the undisputed evidence before the

12 court is that during most of this period of time—until at least September 2014—

13 Defendants were still applying what they now admit was the wrong standard for PASRR

14 evaluations. (See Hamburger Decl. Ex. E at 82:16-83:1, 83:24; id. at 140:10-15; id. at

15 154:5-9; id. Ex. H at 87:12-88:3.) Thus, despite Defendants’ reassurance that they have

16 reassessed most of the class for PASRR eligibility, there is no evidence that these

17 reassessments were completed using the correct standard.

18

Second, there is no dispute that even in Defendants’ revised PASRR materials,

19 they are still applying the wrong standard for PASRR assessments. In their form for

20 PASRR Level II evaluations, Defendants instruct DDA staff and others who may be

21 completing the form to use state criteria for determining both intellectual disability as

22

ORDER- 69

1 well as a related condition under PASRR. (See Hehemann Decl. Ex. B at 3.)

2 Specifically, the form instructs:

3

[T]he determination of intellectual disability for PASRR purposes uses the

state criteria under WAC 388-823-0200 through 230. The determination of

4

“related condition”, [sic] uses the state criteria for cerebral palsy,

epilepsy, autism, another neurological condition or other condition similar

5

to intellectual disability in WAC 388-823-0300 through 0940, with the

exception that the age of origination of the condition is under 22 (not under

6

18).

7 (Id. (italics in original).) Thus, this “revised” form reiterates the very error concerning a

8 “related condition”—that the only distinction between the federal and state definitions is

9 age of onset—that Defendants claimed to have abandoned in their recent PASRR

10 enhancements.

11

Finally, the federal PASRR regulations expressly direct that in determining

12 whether an individual has an intellectual disability or related condition, the evaluator

13 must make “a qualitative judgment” based on a variety of factors that are explicitly

14 enumerated. 42 C.F.R. § 483.136(c)(2)(i)-(iii). There is no such requirement for making

15 a “qualitative judgment” in the State’s regulations. Indeed, the assessment of intellectual

16 disability or “closely related” condition under the State’s regulations is much more

17 quantitative in nature—requiring specific FSIQ and adaptive skills test scores to qualify.

18 See WAC § 388-823-0210; WAC § 388-823-0610. In addition, there is no evidence

19 before the court or indication in any legal source cited by the parties or that the court

20 could independently find that the state regulations mandate consideration of the

21 numerous characteristics required under the federal regulations to be a part of the

22 evaluator’s “qualitative judgment.” See 42 C.F.R. § 483.136(c)(2). Thus, it was also

ORDER- 70

1 error for the State to rely upon its own regulations for PASRR eligibility assessments

2 when these specific factors mandated in the federal regulations were not incorporated into

3 the state regulations.

4

Based on the foregoing, the court concludes that, despite Defendants’ assurances

5 that they has revised and enhanced their PASRR program to correct the deficiencies that

6 Mr. Dunakin alleges, some of which Defendants acknowledge were in error, there is no

7 evidence that Defendants were employing the correct PASRR standards at any time that

8 they evaluated Mr. Dunakin for PASRR eligibility. Further, there is no evidence that

9 Defendants employed the correct PASRR standards when they reassessed various class

10 members for PASRR purposes beginning in April 2014. Accordingly, the court grants

11 Mr. Dunakin’s motion for partial summary judgment that (1) Defendants violated the

12 NHRA and implementing regulations when they used state regulations as described

13 above to evaluate Mr. Dunakin’s and other class members’ eligibility under PASRR, and

14 (2) Defendants must employ the standards contained in the federal regulations when

15 evaluating Mr. Dunakin and members of the class for PASRR purposes.

16

3. Defendants’ Motion for Partial Summary Judgment on Subsections One

and Four of Claim Four

17

Defendants move for partial summary judgment with respect to subsections one

18

and four of claim four in the complaint. (Rule 12(c) Mot. at 22-23.) Subsection one

19

contains Mr. Dunakin’s claim under Title XIX of the Social Security Act that Defendants

20

failed to provide him with Medicaid benefits with reasonable promptness. (Compl.

21

¶ 44(1) (citing 42 U.S.C. §§ 1396(a)(8), 1396(a)(10)(A)).) Subsection four contains Mr.

22

ORDER- 71

1 Dunakin’s claim under the same statute that Defendants failed to provide him with

2 adequate written notice of their determinations and/or his right to an administrative

3 appeal. (Id. ¶ 44(4) (citing 42 C.F.R. § 431.200, et seq.).)

4

Defendants argues that because Mr. Dunakin received a PASRR Level I screen in

5 2008 that determined he did not need a PASRR Level II evaluation, they are entitled to

6 summary judgment with respect to his claims that he was denied Medicaid services with

7 reasonable promptness and that they failed to provide him with adequate notice of their

8 determinations and his right to appeal. (Rule 12(c) Mot. at 22-23.) They argue that they

9 have no duty to provide Medicaid services in the event of a PASRR Level I screen that

10 determines an individual does not have an intellectual disability. (Id. at 23 (citing 42

11 C.F.R. § 483.120(b)).) They also argue that they have no duty to provide notice or

12 specialized services under PASRR because he did not receive a PASRR Level II

13 evaluation. (Id. at 22-23 (citing 42 C.F.R. §§ 431.200, 431.201, 483.120(b)).)

14

Even assuming that Defendants’ analysis of the law is correct, there are serious

15 factual flaws with their argument. First, there is evidence indicating that Mr. Dunakin

16 received a PASRR Level I screen in 2006 that called for Defendants to conduct to a

17 PASRR Level II evaluation. (Hamburger Decl. Ex. G.) Defendants may criticize the

18 validity of the 2006 PASRR Level I screen (see Rule 12(c) Reply (Dkt. # 42) at 2

19 (asserting that it was created by a chiropractor)), but it nevertheless raises an issue of fact

20 regarding Mr. Dunakin’s claim for lack of inadequate notice under subsection four of

21 claim four. Specifically, there is no evidence that Defendants provided Mr. Dunakin

22 notice that he was “suspected” of having an intellectual disability or related condition

ORDER- 72

1 following his 2006 PASRR Level I screen. Such notification is required. See 42 C.F.R.

2 § 483.128(a) (“The State’s performance of the Level I identification function must

3 provide at least . . . for the issuance of written notice to the individual or resident and his

4 or her legal representative that the individual or resident is suspected of having . . . [an

5 intellectual disability] and is being referred to the State . . . intellectual disability

6 authority for Level II screening.”).

7

Further, Defendants’ motion is premised on the notion that there is no question of

8 fact that Mr. Dunakin is not entitled to a PASRR Level II examination or Medicaid

9 services due to his 2008 PASRR Level I screen that stated no Level II evaluation was

10 required. Defendants’ motion ignores evidence presented by Mr. Dunakin that raises

11 issues of fact with respect to his entitlement to both a PASRR Level II evaluation and

12 resulting Medicaid services. First, Defendants ignore Mr. Dunakin’s 2006 PASRR Level

13 I screen indicating that Mr. Dunakin should receive a PASRR Level II evaluation and

14 that it was sent to Defendants via facsimile. (Hamburger Decl. Ex. G.) Second,

15 Defendants ignore evidence that Mr. Dunakin was a DDA client through the date on

16 which this lawsuit was filed and that Defendants have a policy that DDA clients are

17 presumptively “PASRR eligible.” (Hehemann Decl. Ex. C at 1 (“If the person is a DDA

18 client, you may assume that he or she is PASRR eligible.”).) Third, Defendants ignore

19 evidence that they had placed Mr. Dunakin on a list of individuals who were DDA

20 clients, who were living in nursing homes, and who they believed needed to have PASRR

21 Level II evaluations. (See Hamburger Decl. Ex. H at 64:9-65:7.) Fourth, Defendants

22 ignore evidence that, since 1999, they had considered Mr. Dunakin to have a “related

ORDER- 73

1 condition” to intellectual disability due to his muscular dystrophy and his severe adaptive

2 behaviors (id. Ex. J (attaching letter from DSHS to Mr. Dunakin dated April 12, 1999,

3 stating that he is eligible for state services “based on the scores you received on the

4 assessment tool Inventory for Client and Agency Planning (ICAP)”)), and they had

5 provided corresponding services, including supported employment and personal care

6 services (id. Ex. I at 43, 45). Finally, in contravention to Dr. Kishel’s declaration, Mr.

7 Dunakin submits declarations from Dr. Hill in which she opines that Mr. Dunakin has a

8 “related condition” to intellectual disability as defined in 42 C.F.R. § 435.1010. (Hill

9 Decl. ¶ 2; see also 2d Hill Decl.) All of the foregoing evidence creates issues of fact with

10 respect to Mr. Dunakin’s Title XIX claims. Accordingly, the court denies Defendants’

11 motion for partial summary judgment with respect to subparts one and four of claim four

12 in the complaint.

13

IV. CONCLUSION

14

Based on the foregoing, the court GRANTS in part and DENIES in part

15 Defendants’ motion for judgment on the pleadings and for partial summary judgment

16 (Dkt. # 24). Specifically, the court grants dismissal with respect to Mr. Dunakin’s claim

17 based on the “comparability” requirement of the Medicaid Act as set forth in 42 U.S.C.

18 § 1396(a)(10)(B)(i), but the court also grants Mr. Dunakin leave to amend his complaint

19 with respect to this claim within 30 days of the date of this order as described above. In

20 all other respects, the court denies Defendants’ motion. The court GRANTS Mr.

21 //

22 //

ORDER- 74

1 Dunakin’s motions for class certification (Dkt. # 16) and for partial summary judgment

2 (Dkt. # 17) as described in detail above.

3

Dated this 10th day of April, 2015.

4

5

A

6

JAMES L. ROBART

7

United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

ORDER- 75

 
 Case 2:14-cv-00567-JLR Document 52 Filed 05/08/15 Page 1 of 18

1

THE HONORABLE JAMES L. ROBART

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 ADAM DUNAKIN by and through his parent and next friend, KIMBERLEE HOLLINGER
8 individually, and on behalf of similarly situated individuals,
9 Plaintiff,
10 v.
11 KEVIN W. QUIGLEY, in his official capacity as
12 Secretary of the Washington State Department of Social and Health Services, and DOROTHY F.
13 TEETER, in her official capacity as Director of the Washington State Health Care Authority,
14 Defendants.
15

NO. 2:14-CV-00567 JLR
FIRST AMENDED COMPLAINT FOR DECLARTORY AND INJUNCTIVE RELIEF
CLASS ACTION

16

I. OVERVIEW

17

1. Defendants, and their agencies, the Health Care Authority and the Department of

18 Social and Health Services, do not have an adequate system in place for persons with intellectual

19 disabilities and related conditions living in privately-operated Medicaid-certified nursing

20 facilities to be screened, assessed and/or receive specialized services, in violation of the

21 Medicaid Act and the Nursing Home Reform Act (NHRA). Defendants’ systemic failures have

22 caused plaintiff and putative class members to languish in institutional facilities, segregated from

23

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1 family and friends, without the services that they need to maximize their independence and

2 without the opportunity to live in an integrated community-based setting.

3

2. Plaintiff’s counsel, Disability Rights Washington, has raised this issue with

4 defendants repeatedly. After Disability Rights Washington conducted an extensive investigation

5 of Washington State’s failure to comply with NHRA requirements at just the state-operated

6 nursing facilities located at Lakeland Village, defendants disputed DRW’s findings. Shortly

7 thereafter, the federal government issued findings of over 40,000 violations of the NHRA

8 requirements for just 27 individuals residing at Lakeland Village. The problems found at

9 Lakeland Village are just the tip of the iceberg. Defendants’ failure to implement NHRA

10 requirements are systemic, statewide and occur in both state- and privately-operated nursing

11 facilities.

12

3. Defendants took action to address its NHRA violations in state-operated Medicaid

13 nursing homes. But they have left hundreds of Washington residents with developmental

14 disabilities languishing without NHRA screening, assessment and specialized services at

15 privately-operated nursing facilities.

16

4. This litigation seeks injunctive and declaratory relief to require defendants to

17 establish an adequate system to provide PASRR screenings, assessments, specialized services,

18 and, when appropriate, community-based integrated placement for plaintiff and class members,

19 all of whom reside in privately-operated Medicaid-certified Nursing facilities. Without

20 injunctive and declaratory relief, hundreds of individuals with developmental disabilities will

21 continue to languish in institutions, isolated from their home communities, without the services

22 they need to maximize their potential and live as independently as possible.

23

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1

II. PARTIES

2

5. Plaintiff Adam Dunakin. Plaintiff Dunakin is a thirty-four (34) year old adult

3 with a developmental disability who resides at Everett Care and Rehabilitation Center, a

4 privately-operated, Medicaid-certified nursing facility in Everett, Washington. Mr. Dunakin is

5 eligible for Medicaid as well as for services from the Developmental Disabilities Administration

6 of the Washington State Department of Social and Health Services (DSHS). Mr. Dunakin has

7 been confined to a nursing home for nearly eight (8) years without being evaluated for the

8 specialized services he needs to maximize his health and well-being as well as independence. He

9 would prefer to live in his home community, if appropriate services to support him were offered

10 by defendants.

11

6. Defendant Kevin W. Quigley. Defendant Kevin Quigley is the Secretary of

12 DSHS, the state agency that includes the Developmental Disabilities Administration. DSHS,

13 through the Developmental Disabilities Administration, is responsible for implementing the

14 screening, evaluation and service delivery requirements under the Nursing Home Reform Act

15 (NHRA) and the Medicaid Act for developmentally disabled individuals living in privately-

16 operated Medicaid-certified nursing homes. Mr. Quigley is sued in his official capacity only.

17 All alleged acts by Mr. Quigley, DSHS and the Developmental Disabilities Administration were

18 taken under color of state law.

19

7. Defendant Dorothy F. Teeter. Defendant Dorothy Teeter is the Director of the

20 Washington State Health Care Authority. The Health Care Authority is the designated single

21 state agency for Washington’s Medicaid programs. Ms. Teeter is responsible for ensuring that

22 the Medicaid program is administered in a manner consistent with all state and federal laws,

23

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1 including the Medicaid Act and the NHRA. Ms. Teeter is sued in her official capacity only. All

2 alleged acts by Ms. Teeter and the Health Care Authority were taken under color of state law.

3

III. JURISDICTION AND VENUE

4

8. Jurisdiction of this Court arises under 28 U.S.C. § 1331 because this action arises

5 under the laws of the United States, and 28 U.S.C. § 1343(3) and (4) which confer on the federal

6 district courts original jurisdiction over all claims asserted pursuant to 42 U.S.C. § 1983 to

7 redress deprivations of rights, privileges or immunities guaranteed by Acts of Congress and the

8 United States Constitution.

9

9. Venue is proper pursuant to 28 U.S.C. § 1391(b). A substantial part of the events

10 or omissions giving rise to plaintiff’s claims occurred in the Western District of

11 Washington and defendants may be found here.

12

IV. LEGAL FRAMEWORK

13

10. More than twenty-five years ago, Congress passed the NHRA in order to end our

14 nation’s historical practice of inappropriately warehousing individuals with intellectual

15 disabilities and related conditions in nursing facilities. Congress concluded that thousands of

16 residents in nursing facilities were being abused, neglected and given inadequate care, while

17 many could live in less restrictive living situations in their home communities. The NHRA

18 mandated that Medicaid recipients with intellectual disabilities and related conditions in nursing

19 facilities be assessed to determine whether they could be served in a community-based setting,

20 and offered specialized services needed to maximize their skills, abilities and independence.

21 Around the country, passage of NHRA “opened the door” to community placement for many

22 persons with intellectual disabilities who previously had no alternative to life in an institution.

23

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Case 2:14-cv-00567-JLR Document 52 Filed 05/08/15 Page 5 of 18

1 For others, the NHRA meant more fulfilling, more independent lives even if they continued to

2 live in an institutional setting.

3

11. Under the NHRA, defendants are required to screen and assess individuals with

4 intellectual disabilities and related conditions seeking admission or residing in Medicaid-

5 certified nursing facilities, including privately-operated nursing facilities. This screening and

6 assessment process is known as the Pre-Admission Screening and Resident Review (PASRR)

7 process. 42 U.S.C § 1396r(e)(7)(A). Defendants must make two determinations: (1) whether

8 nursing home placement is appropriate to the individual’s needs; and (2) whether the individual

9 would benefit from specialized services to meet their individualized needs for skill building and

10 maintenance and/or to assist them to live in an integrated community setting. 42 U.S.C. §

11 1396r(b); (e); 42 C.F.R. §§ 483.120; .126; .130; .132. Once an individual is assessed, NHRA

12 obligates defendants to inform the individual about the availability of community based and

13 specialized services and provide and/or arrange and pay for the specialized services that the

14 individual is assessed to need. 42 U.S.C. § 1396r(e)(7)(A)-(C). In short, the NHRA provides a

15 clear pathway to integrated, community-based placement and/or to services designed to

16 maximize an individual’s physical, mental and general well-being while living in a nursing

17 facility.

18

12. In addition to the NHRA requirements, Title II of the Americans with Disabilities

19 Act (ADA), 42 U.S.C. §§ 12131-12134, and the Rehabilitation Act of 1973, 29 U.S.C. § 794,

20 are designed to ensure that individuals with disabilities receive their services in the least

21 restrictive, most integrated setting appropriate. Defendants’ failure to conduct the required

22 NHRA screenings and assessments has resulted in the unnecessary and discriminatory

23 segregation of plaintiff and the putative class in restrictive nursing facilities. Defendants’ acts

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1 and omissions contravene the integration and nondiscrimination mandates of the ADA and

2 Rehabilitation Acts.

3

13. These federal laws, taken together, mandate that defendants establish a system for

4 screening and assessing current and new privately-operated Medicaid-certified nursing home

5 residents with intellectual disabilities and related conditions, and if needed, providing them with

6 specialized services to promote their well-being and independence and/or community-based

7 services as an alternative to nursing home placement.

8

V. CLASS ALLEGATIONS

9

14. Definition of Class. The class consists of all individuals who:

10

(a) are or will be residents of Medicaid-certified, privately-operated nursing

11

facilities in the State of Washington; and

12

(b) who are Medicaid recipients with an intellectual disability or related

13

condition(s) such that they are eligible to be screened and assessed pursuant to 42

14

U.S.C. § 1396r(e)(7) and 42 C.F.R. § 483.112 et seq.

15

15. Size of Class. The class of Medicaid recipients who reside in privately-operated,

16 Medicaid-certified nursing facilities who are eligible for screening, assessment and services

17 under the NHRA is expected to be so numerous that joinder of all members is impracticable.

18 According to defendants, approximately 300 individuals have been identified as having a

19 developmental disability and residing in privately-operated, Medicaid-certified nursing

20 facilities. See DDA 2014 Supplemental Budget, RHC Medicaid Compliance report, attached as

21 Appendix A.

22

16. Class Representative Dunakin. Named plaintiff Adam Dunakin is diagnosed

23 with a developmental disability and is a client of the Developmental Disabilities Administration

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Case 2:14-cv-00567-JLR Document 52 Filed 05/08/15 Page 7 of 18

1 of DSHS. He has been admitted twice to privately-operated, Medicaid-certified nursing facilities

2 since May 31, 2006. At the first admission, the nursing facility identified that plaintiff Dunakin

3 had a developmental disability and required further assessment. At the second admission, the

4 nursing home failed to identify that Dunakin had a developmental disability. Despite the initial

5 screenings, defendants failed to conduct any further evaluations to determine (1) whether Mr.

6 Dunakin could be served in a more integrated community setting; and (2) whether Mr. Dunakin

7 needed specialized services. No specialized services were ever provided. No notices about the

8 availability of specialized services or alternative community- based placement were provided.

9 For nearly eight years, Mr. Dunakin has languished in privately-operated nursing facilities

10 without the services he needs to maximize his independence and, ultimately, live in the least

11 restrictive setting in his home community. His claims are typical of the claims of the other

12 members of the class, and, through his mother and next friend, he will fairly and adequately

13 represent the interests of the class. There is no known conflict of interest among class members.

14

17. Common Questions of Law and Fact. This action requires the determination of

15 whether defendants violate the requirements under the NHRA, the ADA, the Rehabilitation Act,

16 the Medicaid Act and the Fourteenth Amendment by failing to have a system in place to (1)

17 properly determine whether plaintiff and the proposed class can be served in an integrated, less-

18 restrictive community-based setting and/or need specialized services to maximize their abilities

19 and independence; (2) provide, with reasonable promptness, specialized services identified by

20 any such determinations to plaintiff and the proposed class and (3) provide adequate notice and

21 due process to plaintiff and the proposed class of their eligibility for Medicaid services

22 (including placement in a less restrictive setting and specialized services) and their right to

23 appeal any such determinations through an administrative fair hearing.

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1

18. Defendants Have Acted on Grounds Generally Applicable to the Class.

2 Defendants, by failing to establish a system for appropriately screening, assessing and

3 delivering specialized services to plaintiff and proposed class members in Medicaid-certified,

4 privately-operated nursing facilities has acted on grounds generally applicable to the class,

5 rendering declaratory relief appropriate respecting the whole class. Certification is therefore

6 proper under Fed. R. Civ. P. 23(b)(2).

7

19. Questions of Law and Fact Common to the Class Predominate Over Individual

8 Issues. Alternatively, the class may be certified under Fed. R. Civ. P. 23(b)(3). The claims of

9 the individual class members are more efficiently adjudicated on a class-wide basis. Any interest

10 that individual members of the class may have in individually controlling the prosecution

11 of separate actions is outweighed by the efficiency of the class action mechanism. Upon

12 information and belief, there has been no class action suit filed against these defendants for the

13 relief requested in this action. This action can be most efficiently prosecuted as a class action in

14 the Western District of Washington, where defendants have their principal place of business, do

15 business, and where Mr. Dunakin resides. Issues as to defendants’ conduct in applying standard

16 policies and practices towards all members of the class predominate over questions, if any,

17 unique to members of the class. Certification is therefore proper under Fed. R. Civ. P. 23(b)(3).

18

20. Class Counsel. Plaintiff has retained experienced and competent class counsel.

19

VI. BACKGROUND

20

21. Due to statewide budget cuts, in October 2010, the state-operated intermediate

21 care facility for persons with developmental disabilities at Lakeland Village was informed that it

22 had to cut costs by as much as $1.8 million. In response, Lakeland Village moved 27 residents

23

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1 from its intermediate care facility to its nursing facility, and reduced programs and staffing at

2 both types of programs.

3

22. Moving residents from an intermediate level of care to a nursing facility program

4 resulted in a significant loss of services to the 27 individuals, since intermediate care facility

5 placement requires that all residents receive “active treatment,” while residents in nursing

6 facilities only receive “specialized services” once they are screened and assessed under the

7 NHRA requirements.

8

23. Since 1989, CMS has forbidden states from making these types of cuts in

9 services. “[P]lacement by the State of individuals with [mental illness or intellectual

10 disabilities] in nursing facilities as a means of avoiding responsibility for provision of the active

11 treatment these individuals need will no longer be tolerated.” CMS, State Medicaid Manual,

12 CMS Pub. 45, Chap. 4 § 4250 at 4-244 (Rev. 42, Mar. 1989), attached as Appendix B.

13 Nonetheless, defendants proceeded with the reductions in services.

14

24. DRW conducted an extensive investigation into what happened to the 27

15 residents after their move. On October 31, 2012, DRW reported its findings to defendant

16 Quigley’s predecessor, Robin Arnold-Williams. DRW concluded that defendants were not

17 meeting the NHRA requirements at Lakeland Village. Defendants disagreed and hired a

18 consultant to review their implementation of NHRA. Ultimately, Defendants informed the

19 Center for Medicaid and Medicare Services (CMS), the federal agency overseeing Medicaid

20 programs about DRW’s concerns. CMS then conducted its own review.

21

25. The federal agency concluded that defendants had systematically failed to comply

22 with the NHRA requirements at Lakeland Village. “[W]e find that Lakeland Village nursing

23 facility is not in compliance with Section 1919 of the Act, is not in compliance with 42 CFR Part

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1 483, that the remaining transferred Lakeland residents are not in an appropriate setting, that the

2 original transfer from the ICF/IID [Intermediate Care Facility for Individuals with Intellectual

3 Disabilities] violated federal law and that as a consequence the state has received FFP [Federal

4 Financial Participation, or the federal match for state payments for Medicaid services] in error.”

5 See Letter from Carol J.C. Peverly of CMS to defendant Teeter, dated November 7, 2013,

6 attached as Appendix C. CMS also announced that it would widen its investigation to other

7 state-operated, Medicaid-certified nursing facilities.

8

26. Since November 2013, DDA and HCA have operated under a corrective action

9 plan with CMS related to state-operated Medicaid-certified nursing facilities. See e.g., DDA

10 Pre-Admission Screening and Resident Review (PASRR) Status Report, February 26, 2014,

11 located at http://www.dshs.wa.gov/ddd (last visited March 13, 2014). The DDA correction plan

12 does not adequately address the needs of privately-operated nursing facility residents with

13 intellectual disabilities and/or related conditions to be thoroughly assessed to determine most

14 appropriate placement and provided with specialized services.

15

27. DDA admits as much. In its 2014 Supplemental Budget, DDA requested (and the

16 Legislature approved) funds specifically allocated to provide required PASRR assessments and

17 services in the state-operated nursing facilities. See Appendix A. DDA noted in the request that

18 its corrective action plan (and the requested budget allocation) “do[es] not address the issue of

19 the approximately 300 people with a developmental disability who are currently in

20 community nursing facilities.”

21

28. Defendant’s efforts to establish a functional PASRR program did not include the

22 approximately 300 people with intellectual disabilities and related conditions living in privately-

23 operated nursing facilities. Instead, Defendant’s reform efforts focused on the state-operated

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1 nursing facilities. This failure denied Plaintiff Dunakin and other Medicaid-eligible residents of

2 private nursing facilities access to the screening, evaluation, specialized services, and

3 community-based alternatives to nursing facility services that state-operated nursing facility

4 residents would be able to obtain under the PASRR program reforms. By September, 2014, only

5 a few private nursing facility residents were receiving any specialized services.

6

29. Nursing facility residents can only access specialized services that constitute

7 “active treatment” provided to other similarly needy individuals placed in Defendants’

8 intermediate care facilities through a PASRR evaluation. Therefore, Defendants’ failure to have

9 in effect a functioning PASRR program for private nursing facility residents has denied Plaintiff

10 Dunakin and other Medicaid-eligible private nursing facility residents with intellectual

11 disabilities and related conditions the specialized services that constitute “active treatment,”

12 which are provided to similarly needy intermediate care facility residents.

13

30. Plaintiff Dunakin’s experience is typical of the proposal class. He has a

14 developmental disability that qualifies as an “intellectual disability or related condition” under

15 the NHRA.

16

31. On May 31, 2006, Mr. Dunakin was admitted to a privately-operated NF.

17 Consistent with the NHRA, a pre-admission screening was conducted. The screening properly

18 identified that Dunakin was a person with a developmental disability and that additional

19 evaluation was required.

20

32. Despite the initial screening, no further evaluation was ever conducted by

21 defendants. No specialized services were provided to Mr. Dunakin. No notice about the NHRA

22 assessment, its determination or the availability of specialized services through Medicaid was

23 ever provided to Mr. Dunakin or his mother.

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1

33. On June 11, 2007, Mr. Dunakin transferred to a new nursing home. Once again,

2 Mr. Dunakin underwent a pre-admission screening. This time, the screen mistakenly presumed

3 that Mr. Dunakin’s medical condition should exempt him from further assessment and failed to

4 indicate that he has a developmental disability. Since his admission, no evaluation of Mr.

5 Dunakin’s need for specialized services has been conducted. Mr. Dunakin was never informed

6 about the specialized services he could receive at the new nursing facility or that he may be able

7 to receive services in a community-based setting. Neither Dunakin nor his mother were provided

8 with notice about the incorrect screening, the availability of further evaluation and specialized

9 services, or the choices for community-based services.

10

34. Plaintiff Dunakin would like to receive the services he needs in a less-restrictive

11 more integrated community-based setting. Plaintiff lived with his mother until age 26 when his

12 nursing needs became too great for his mother to take care of at home without additional in-

13 home supports, which were never offered. Nonetheless, with access to specialized services, he

14 would like to live in a community-based setting, such as a supported living program, where he

15 can live and interact with people closer to his own age. In the meantime, he would like

16 specialized services in his nursing home so he can develop the independent living skills he needs

17 to live outside of a nursing home.

18 VII. CLAIMS FOR RELIEF

19 FIRST CLAIM: DECLARATORY RELIEF FOR VIOLATIONS OF

20

THE NURSING HOME REFORM ACT

21

35. Plaintiff re-alleges the paragraphs above.

22

36. Plaintiff and the class are entitled to declaratory relief pursuant to 42 U.S.C. §

23 1983 that defendants have violated the Nursing Home Reform Act and its implementing

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1 regulations by failing to establish adequate policies, practices and procedures to ensure that

2 plaintiff and the class receive the required PASRR screening, assessment, the provision

3 specialized services and their choice of receiving services in the community rather than in

4 nursing facilities.

5

SECOND CLAIM: DECLARATORY RELIEF FOR VIOLATIONS OF THE

AMERICANS WITH DISABILITIES ACT

6

37. Plaintiff re-alleges the paragraphs above.

7

38. Plaintiff and the putative class are all “qualified individuals with a disability”

8

within the meaning of 42 U.S.C. § 12131(2). Plaintiff and class members have not been assessed

9

to determine what kinds of services they would need to live in an integrated setting in the

10

community. They have not been given the choice of remaining in the nursing facility or

11

receiving appropriate services in the community.

12

39. Defendant’s acts and omissions effectively deny plaintiff and the proposed class

13

the community-based services that they need in order to avoid continued segregation in an

14

institution in violations of Title II of the ADA, 42 U.S.C. § 12132 and its implementing

15

regulations.

16

40. Defendants’ “methods of administration” further have the effect of subjecting

17

plaintiff and the class to discrimination on the basis of disability by subjecting them to

18

unnecessary and unjustified segregation, in violation of 28 C.F.R. § 35.130 (b)(3).

19

41. Defendants further discriminate against plaintiff and the class by denying them

20

access to services based upon the severity of their disabilities, in violation of 28 C.F.R §

21

35.130(b)(1). As a result, defendants relegate plaintiff and the class to segregated facilities in

22

violation of the ADA.

23

FIRST AMENDED COMPLAINT - 13 2:14-CV-00567

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Case 2:14-cv-00567-JLR Document 52 Filed 05/08/15 Page 14 of 18

1

THIRD CLAIM: DECLARATORY RELIEF FOR VIOLATIONS OF

SECTION 504 OF THE REHABILITATION ACT

2

42. Plaintiff re-alleges the paragraphs above.

3

43. Plaintiff and class members are qualified individuals with disabilities under

4

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (a). Defendants, HCA and DDA receive

5

federal financial assistance.

6

44. Defendants violate Section 504 of the Rehabilitation Act and its implementing

7

regulations by denying plaintiff and class members access to integrated community-based

8

programs appropriate to meet their needs and by requiring that plaintiff and class members be

9

confined in segregated nursing facilities in order to receive the services that they need.

10

FOURTH CLAIM: DECLARATORY RELIEF FOR VIOLATIONS OF

11

TITLE XIX OF THE SOCIAL SECURITY ACT

12

45. Plaintiff re-alleges the paragraphs above.

13

46. Plaintiff and the class are entitled to declaratory relief pursuant to 42 U.S.C. §

14 1983 that defendants have violated Title XIX of the Social Security Act by failing to provide

15 Medicaid benefits to plaintiff and class members (1) with reasonable promptness, 42 U.S.C. §

16

1396a(a)(8); (a)(10)(A) and its implementing regulations; (2) in compliance with

17 Medicaid comparability requirements, 42 U.S.C. § 1396a(a)(10)(B)(i) and (ii); 42 C.F.R. §

18 440.240; (3) with a meaningful choice of providers, including a choice between institutional and

19 community based services, 42 U.S.C. § 1396n(c)(2)(B); (C); and (4) with adequate written

20 notice of defendants’ determinations, as well as their right to appeal to defendants’

21 administrative hearing process, pursuant to 42 C.F.R. § 431.200 et seq.

22

23

FIRST AMENDED COMPLAINT - 14 2:14-CV-00567

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Case 2:14-cv-00567-JLR Document 52 Filed 05/08/15 Page 15 of 18

1

FIFTH CLAIM: DECLARATORY RELIEF FOR

CONSTITUTIONAL DUE PROCESS VIOLATIONS

2

47. Plaintiff re-alleges the paragraphs above.

3

48. Defendants’ actions deprive plaintiff and the class of rights, privileges and/or

4

immunities secured to them by the Constitution, in violation of 42 U.S.C. § 1983. Defendants’

5

failure to provide adequate notice and access to an administrative hearing violates federal

6

constitutional due process.

7

SIXTH CLAIM: INJUNCTIVE RELIEF

8

49. Plaintiff re-alleges the paragraphs above.

9

50. Plaintiff and the class are entitled to preliminary and permanent injunctive relief

10

pursuant to 42 U.S.C. § 1983 to require defendants to fully implement the NHRA, ADA,

11

Rehabilitation Act and Medicaid requirements as they apply to plaintiff and the proposed class.

12

13

VIII. DEMAND FOR RELIEF

14

WHEREFORE, plaintiff requests that this Court:

15

1. Certify this case as a class action; designate the named plaintiff as class

16 representative; and designate DISABILITY RIGHTS WASHINGTON, Susan Kas, and

17 SIRIANNI YOUTZ SPOONEMORE HAMBURGER, Eleanor Hamburger, as class counsel;

18

2. Declare that that defendants’ failure to implement an adequate system for

19 ensuring that PASRR screening, assessments, specialized services, due process notice and the

20 choice of integrated community based services results in unnecessary segregation and

21 institutionalization of plaintiff and the class, and violates the NHRA, Title II of the ADA,

22 Section 504 of the Rehabilitation Act, the Medicaid Act and the 14th Amendment of the United

23

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1

3. Enjoin defendants from continued violations of the NHRA, Title II of the ADA,

2 Section 504 of the Rehabilitation Act, the Medicaid Act and the 14th Amendment of the United

3 States Constitution and require defendants to amend its policies, practices and procedures to

4 ensure that plaintiff and the class are:

5

(a) properly screened and evaluated as required by the NHRA;

6

(b) provided with appropriate services with reasonable promptness;

7

(c) informed that they may be eligible for community-based services, and if

8

eligible, that they have the right to choose to receive such services in an

9

institutional or integrated community setting; and

10

(d) provided, as appropriate, with long-term care services and

11

supports in the community with reasonable promptness;

12

4. Enter judgment in favor of plaintiff and the class;

13

5. Award plaintiff and the class their attorney fees and costs; and

14

6. Award such other relief as is just and proper.

15

DATED: May 8, 2015.

16

17

DISABILITY RIGHTS WASHINGTON

18

/s/ Susan Kas

19

Susan Kas (WSBA #36592)

315 – 5th Avenue South, Suite 850

20

Seattle, WA 98104

Tel. (206) 324-1521/ Fax (206) 957-0729

21

22

23

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Disability Rights Washington 315 5th Avenue South, Suite 850
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
FIRST AMENDED COMPLAINT - 17 2:14-CV-00567

SIRIANNI YOUTZ SPOONEMORE HAMBURGER
/s/ Eleanor Hamburger Eleanor Hamburger (WSBA #26478) 999 Third Avenue, Suite 3650 Seattle, WA 98104 Tel. (206) 223-0303; Fax (206) 223-0246 Email: ehamburger@sylaw.com Attorneys for Plaintiff
Disability Rights Washington 315 5th Avenue South, Suite 850
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Case 2:14-cv-00567-JLR Document 52 Filed 05/08/15 Page 18 of 18

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 8, 2015, I electronically filed the foregoing with the Clerk of

3 Court using the CM/ECF system which will send notification of such filing to the following:

4

Angela D. Coats McCarthy

AngelaC3@atg.wa.gov

5

Matthew S. King

6

MatthewK1@atg.wa.gov

7 I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true

8 and correct.

9

DATED this 8th day of May, 2015.

10

11 Mona Rennie, Legal Assistant
12

13

14

15

16

17

18

19

20

21

22

23

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Disability Rights Washington 315 5th Avenue South, Suite 850
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 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 ADAM DUNAKIN,

11

Plaintiff,

12

v.

CASE NO. C14-0567JLR
ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION

13 KEVIN W. QUIGLEY, et al,,

14

Defendants.

15

I. INTRODUCTION

16

Before the court is Defendants’ motion for reconsideration (Mot. (Dkt. # 45)) of

17 two aspects of the court’s April 10, 2015, order (4/10/15 Order (Dkt. # 43)). First,

18 Defendants ask the court to reconsider its denial of their motion to dismiss or to grant

19 partial summary judgment on the fourth claim in Plaintiff Adam Dunakin’s complaint,

20 which alleges violations of certain provisions of Title XIX of the Social Security Act.

21 (Mot. at 1, 2-4.) Second, Defendants ask the court to reconsider its ruling granting partial

22 summary judgment to Mr. Dunakin. (Mot. at 1, 5-6.) The court has reviewed the

ORDER- 1

1 motion, all submissions filed in support thereof and opposition thereto, the balance of the

2 record, and the applicable law. Being fully advised, the court DENIES Defendants’

3 motion.

4

II. DISCUSSION

5

A. Standards for Reconsideration

6

Motions for reconsideration are disfavored. Local Rule W.D. Wash. LCR 7(h)(1).

7 The court will ordinarily deny such motions unless the moving party demonstrates (1)

8 manifest error in the prior ruling, or (2) new facts or legal authority which could not have

9 been brought to the attention of the court earlier with due diligence. Id. As discussed

10 below, the court concludes that Defendants have made neither showing and no other

11 extraordinary considerations warrant reconsideration of the court’s prior order.

12

B. The Court’s Order Denying Defendants’ Motion to Dismiss or Grant

Partial Summary Judgment on Claim Four

13

Defendants’ motion for reconsideration concerning claim four of Mr. Dunakin’s

14

complaint relates solely to footnote 11 in the court’s order. (See Mot. at 2-3 (citing

15

4/10/15 Order at 35, n.11).) In his complaint, Mr. Dunakin asserts that Defendants

16

violated Title XIX of the Social Security Act by failing to provide Medicaid benefits with

17

reasonable promptness. (Compl. (Dkt. # 1) ¶ 44.) In their motion, Defendants argued

18

that the court should dismiss this claim because the Social Security Act requires only that

19

Defendants promptly pay for Medicaid-covered services and not that they arrange for or

20

provide such services. (Rule 12(c) Mot. (Dkt. # 24) at 16-17 (citing 42 U.S.C.

21

§ 1396a(a)(8) and 42 U.S.C. § 1396d(a).) Defendants argued that the Medicaid Act

22

ORDER- 2

1 required “prompt processing of applications and prompt payment for services,” and Mr.

2 Dunakin “improper[ly] . . . conflate[d] the provision of services with how they are paid

3 for . . . .” (Id. at 17.)

4

In the alternative, Defendants also argued that the court should grant partial

5 summary judgment on this issue because Mr. Dunakin’s complaint did “not identify any

6 such benefits that were untimely, or that he was denied.” (Id. at 22.) Specifically,

7 Defendants argued that there were no genuine issues of fact remaining because Mr.

8 Dunakin did “not identif[y] Medicaid services that he was denied, and he was not in fact

9 denied services as related to this case.” (Id.)

10

In response, Mr. Dunakin pointed out that Defendants were relying on a defunct

11 version of 42 U.S.C. § 1396d(a) and that the revised provision clarifies that “medical

12 assistance” includes both payment of services and “the care and services themselves.”

13 (Rule 12(c) Resp. (Dkt. # 40) at 26 (quoting 42 U.S.C. § 1396d(a)).) Defendants then

14 dropped this argument entirely in their reply memorandum, instead asserting that Mr.

15 Dunakin “confuses PASRR [Pre-Admission Screening and Resident Review] with

16 Medicaid,” and that “PASRR is not a Medicaid service.” (Rule 12(c) Reply (Dkt. # 42)

17 at 10.)

18

The court agreed with Mr. Dunakin that Defendants relied on an outdated version

19 of 42 U.S.C. § 1396d(a). (4/10/15 Order at 34.) The court held that by amending the

20 definition of “medical assistance” Congress “intended ‘to clarify that where the Medicaid

21 Act refers to the provision of services, a participating State is required to provide (or

22 ensure the provision of ) services, not merely pay for them.’” (Id. (quoting John B. v.

ORDER- 3

1 Emkes, 852 F. Supp. 2d 944, 951 (M.D. Tenn. 2012).) Accordingly, the court denied

2 Defendants’ motion to dismiss Mr. Dunakin’s claim for failure to provide Medicaid

3 services with reasonable promptness.

4

The court also stated in a footnote that it would not consider Defendants’

5 argument that the court should dismiss Mr. Dunakin’s claim because PASRR is not a

6 Medicaid service or benefit. (4/10/15 Order at 35, n.11.) The court first noted that it was

7 not obligated to consider the argument because Defendants did not raise it until their

8 reply memorandum. (See id. (citing In re Rains, 428 F.3d 893, 902 (9th Cir. 2005).)

9 Nevertheless, the court also concluded that PASRR was “medical assistance” under the

10 Medicaid Act. (Id.) Defendants now challenge both of those rulings. (See Mot. at 2-4.)

11

First, Defendants assert that “foundational to [the] argument” in their motion that

12 Mr. Dunakin failed to identify any services he was denied under the Medicaid program

13 “is the understanding that PASRR screening is not medical assistance.” (Mot. at 2.)

14 Thus, Defendants essentially assert that the argument they expressly set forth in their

15 reply memorandum was implicit in their original motion. (See Mot. at 2-3.) The court

16 disagrees. The argument is simply not in their opening memorandum, implicit or

17 otherwise. Indeed, one might argue that Defendants implicitly acknowledged that

18 PASRR was medical assistance or services under the Medicaid Act when they asserted

19 that the Medicaid Act required “prompt processing of applications and prompt payment

20 for services,” and Mr. Dunakin “improper[ly] . . . conflate[d] the provision of services

21 with how they are paid for . . . .” (Rule 12(c) Mot. at 17.)

22

ORDER- 4

1

Nevertheless, even if the court was required to reach the issue, it would come to

2 the same conclusion. Instead of disposing of the issue in a footnote, however, the court

3 will provide more extensive reasoning in response to Defendants’ motion to reconsider.

4 First, the Nursing Home Reform Act (“NHRA”) was enacted as an amendment to the

5 Medicaid Act of 1987. See Grammer v. John J. Kane Reg’l Centers-Glen Hazel, 570

6 F.3d 520, 523 (3d Cir. 2009). Congress passed the NHRA, in part, to ensure that

7 Medicaid-eligible nursing home residents with intellectual disabilities and related

8 conditions received the active treatment they needed. See Rolland v. Romney, 318 F.3d

9 42, 46 (1st Cir. 2003).

10

The NHRA mandates that all State Medicaid Plans provide for PASRR. See 42

11 U.S.C. § 1396r(e)(7)(A)(i); 42 U.S.C. § 1396a(a)(28)(D)(i). Washington State’s

12 Medicaid plan includes PASRR as one of its Medicaid programs. (5/15/15 Hamburger

13 Decl. (Dkt. # 54) ¶ 3, Ex. A (“Medicaid (Title XIX) State Plan”) ¶ 4.39.) The State

14 Medicaid Plan states that “[t]he State does not claim as ‘medical assistance under the

15 State Plan’ the cost of services to individual [sic] who should receive preadmission

16 screening or annual resident review until such individuals are screened or reviewed.” (Id.

17 ¶ 4.39(c) (italics added).) Indeed, PASRR specialized services are specifically defined in

18 the State Plan so that claims for “medical assistance” may be submitted for them. (See id.

19 ¶ 4.39(e); id. at “Attachment 4.39”) Indeed, one of Defendants’ Federal Rule of Civil

20 Procedure 30(b)(6) deponents has testified that PASRR is a Medicaid program.

21 (10/17/14 Hamburger Decl. (Dkt. # 21) Ex. E (Hehemann Rule 30(b)(6) deposition) at

22 13:8-12 (“PASRR is a Medicaid program.”).) This same deponent has acknowledged

ORDER- 5

1 that, although the State presently funds PASRR services, federal financial participation is

2 available, and the State presently is “in the process” of applying for a State Medicaid Plan

3 amendment that would provide federal matching funds for PASRR services. (5/15/15

4 Hamburger Decl. Ex. B at 183:23-185:6.)

5

The Ninth Circuit has stated that the definition of “medical assistance” under the

6 Medicaid Act has four key elements: (1) federal funds; (2) to be spent in “payment of

7 part or all of the cost”; (3) of certain services; (4) for or to “[p]atients meeting the

8 statutory requirements for Medicaid.” Univ. of Wash. Med. Ctr. v. Sebelius, 634 F.3d

9 1029, 1034-35 (9th Cir. 2011). Mr. Dunakin propones the court’s use of this test. (Resp.

10 (Dkt. # 53) at 5.) Defendants do not dispute the test’s applicability—only the outcome of

11 its application. (See Reply (Dkt. # 55) at 4). The court considers each factor.

12

The fourth factor is met. Mr. Dunakin and all class members are Medicaid

13 recipients and PASRR applies to them to meet statutory requirements. (See Kreiger Decl.

14 (Dkt. # 30) ¶ 5 (“Adam Dunakin has been enrolled in Medicaid . . . since at least January

15 1, 2010.”); Compl. (Dkt. # 1) ¶ 14 (defining the class in part as “Medicaid recipients with

16 an intellectual disability or related condition(s) such that they are eligible to be screened

17 and assessed pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R. § 483.122 et seq.”).)

18 Defendants argue that the fourth factor is not met because PASRR is not restricted solely

19 to Medicaid-eligible individuals but can also result in the provision of services to non-

20 Medicaid-eligible individuals residing in Medicaid-certified nursing facilities. (Mot. at 4

21 (citing 42 U.S.C. § 1396r(e)(7)(A)); Reply at 4.) Defendants, however, do not explain

22 why factor four is not satisfied simply because PASRR may also encompass or benefit

ORDER- 6

1 non-Medicaid-eligible individuals in addition to Medicaid-eligible patients. The court

2 agrees with Mr. Dunakin that this factor is met.

3

The court also concludes that factors one and two are met in the context of

4 Defendants’ motions here. Mr. Dunakin has submitted evidence to the court that,

5 although Defendants presently pay for PASRR services out of state funds, they are in the

6 process of applying for federal matching funds for their provision of PASRR services.

7 (5/15/15 Hamburger Decl. Ex. B at 183:23-185:6.) Thus, federal funds are apparently

8 available “to be spent in ‘payment of part or all of the cost,’” see id. at 1034 (quoting 42

9 U.S.C. § 1396d(a)), for PASRR services, and Defendants are actively seeking those

10 funds. This statutory authority and evidence are sufficient with respect to these factors in

11 the context of the court’s order denying Defendants’ motion to dismiss or for partial

12 summary judgment.

13

Finally, the court concludes that the third element—“of certain services”—also is

14 met. The Medicaid Act defines “medical assistance” by delineating a list of services.

15 See 42 U.S.C. § 1396d(a)(1)-(29). The list includes “(13) other diagnostic, screening,

16 preventive and rehabilitative services, including -- . . . (C) any medical or remedial

17 services (provided in a facility, a home, or other setting) recommended by a physician or

18 other licensed practitioner of the healing arts . . . , for the maximum reduction of physical

19 or mental disability and restoration of an individual to the best possible functional level.”

20 42 U.S.C. § 1396d(a)(13)(C). Defendants never explain why PASRR screening and

21

22

ORDER- 7

1 specialized services do not fall within the category of “other diagnostic, screening, 2 preventive and rehabilitative services.”1 The court can find no reason why they do not.

3

Indeed, the State Medicaid Manual confirms that Medicaid can be used to fund

4 particular specialized services:

5

Although Medicaid payment may not be made for active treatment services

as NF [nursing facility] services, States may use other Medicaid benefits to

6

fund aspects of active treatment programs for individuals with MI [mental

illness] or MR [mental retardation] who are in a NF. For example, services

7

provided in the context of rehabilitation services, clinic services, or

physical, occupational, or speech therapy services optional benefits might

8

be used to meet some of the more discrete services required by the

resident’s active treatment program if these optional services are available

9

under the State plan or the State wishes to add them . . . .

10 (5/15/15 Hamburger Decl. Ex. C (excerpts of State Medicaid Manual) at 22 (§ 4240.2).)

11

1 At best, in a footnote, Defendants declare, without citation to either legal or evidentiary 12 authority: “To be clear, a Level I or Level II [PASRR screening] does not constitute “medical or

remedial services . . . recommended by a physician or other licensed practitioner.” (Reply (Dkt.

13 # 55) at 3, n.1.) Defendants’ statement, no matter how definitive, does not make it so without

some basis in factual or legal authority. Moreover, “[m]edical or remedial services . . .

14 recommended by a physician or other licensed practitioner” is only one of three examples of “other diagnostic, screening, preventive and rehabilitative services,” that are listed following the

15 provision’s use of the term “including” and that may constitute “other diagnostic, screening, preventive, and rehabilitative services” under the statute. See 42 U.S.C. § 1396d(a)(13). The

16

statue’s use of the term “including” “impl[ies] that the [items] listed immediately afterwards are an inexhaustive list of examples, rather than a bounded set of applicable [items].” In re Mark

Anthony Constr., Inc., 886 F.2d 1101, 1106 (9th Cir. 1989) (citing Puerto Rico Maritime 17 Shipping Authority v. I.C.C., 645 F.2d 1102, 1112 n.5 (D.C. Cir. 1981) (stating that it is

“hornbook law” that a list following the word “including” is “illustrative, not exclusive”)); see 18 also West v. Gibson, 527 U.S. 212, 217 (1999) (“[T]he preceding word ‘including’ makes clear

that the authorization is not limited to the specified remedies there mentioned.”); United States v.

19 Canada, 110 F.3d 260, 263 (5th Cir. 1997) (stating that the term “includes” indicates a non-

exhaustive list); Matter of Cash Currency Exchange, Inc., 762 F.2d 542, 552 (7th Cir. 1985)

20 (stating that “includes” or “including” demonstrates that Congress “intended to make the list . . . illustrative rather than exhaustive.”). Thus, even if Defendants are correct, and PASRR

21 screening or services do not constitute “medical or remedial services . . . recommended by a physician or other licensed practioner,” one cannot necessarily conclude that PASRR screening

22

and services do not fall within the broader category of “other diagnostic, screening, preventive, and rehabilitative services.” See 42 U.S.C. § 1396d(a)(13).

ORDER- 8

1 In addition, the Manual states that “States could use other optional Medicaid services

2 such as case management or personal care services to coordinate some components of an

3 active treatment program or to provide the support services needed for community

4 placement.” (Id.)

5

The list for “medical assistance” also includes “case-management services.” 42

6 U.S.C. § 1396d(a)(19). “Case management services” means “services which will assist

7 individuals eligible under the plan in gaining access to needed medical, social,

8 educational, and other services.” 42 U.S.C. § 1396n(g)(2). Mr. Duankin argues that

9 PASRR screening falls within this provision. (Resp. at 6.) Defendants never address this

10 argument. (See generally Reply.) The court agrees that PASRR screening fits within this

11 description of “case management services.”

12

Finally, Defendants assert that the court should have granted partial summary

13 judgment on Mr. Dunakin’s fourth claim because Defendants have paid or approved all

14 of his Medicaid claims since he was enrolled in 2010. (See Mot. at 4 (citing Kreiger

15 Decl. ¶ 5).) Although Defendants acknowledge that Mr. Dunakin complains that

16 “Defendants have not provided ‘specialized services’ under PASRR,” they argue that he

17 has not identified the services he would like or ever asked for them. (Id.) On this basis,

18 Defendants argue that they are entitled to partial summary judgment on this claim. (Id.)

19

Mr. Dunakin responds that PASRR mandates that Defendants identify and

20 evaluate individuals for services made available through a PASRR screening and

21 evaluation. (Resp. at 7 (citing 42 C.F.R. § 483.128(a)).) Indeed, 42 C.F.R. § 483.128(a)

22 states in pertinent part:

ORDER- 9

1

Level I: Identification of individuals with MI or IID. The State’s PASARR

program must identify all individuals who are suspected of having MI or

2

IID as defined in § 483.102. This identification function is termed Level I.

Level II is the function of evaluating and determining whether NF services

3

and specialized services are needed.

4 Id. The court agrees that this regulation places the obligation on Defendants to “identify”

5 individuals suspected of having mental illness or intellectual disability, and then evaluate

6 and determine whether specialized services are needed. Accordingly, the court denies

7 Defendants’ motion for reconsideration of the court’s denial of partial summary judgment

8 on this issue.

9

C. The Court’s Order Granting Partial Summary Judgment in Mr.

Dunakin’s Favor

10

The court’s ruling granting partial summary judgment to Mr. Dunakin was narrow.

11

The court granted partial summary judgment only as follows: (1) Defendants violated the

12

NHRA and implementing regulations when they used state regulations (as described in

13

the order) to evaluate Mr. Dunakin’s and other class members’ eligibility under PASRR,

14

and (2) Defendants must employ the standards contained in the federal regulations when

15

evaluating Mr. Dunakin and members of the class for PASRR purposes. (4/10/15 Order

16

at 71.) That is the extent of the court’s ruling on partial summary judgment.

17

Nevertheless, Defendants ask the court to reconsider rulings that individuals were harmed

18

by the use of the wrong standard and that the violation is ongoing such that declaratory

19

and injunctive relief is appropriate. (See Mot. at 5.) The court has made no such rulings.

20

No party asked for any such rulings or presented argument or evidence on these issues.

21

No such rulings on partial summary judgment appear in the court’s order. (See generally

22

ORDER- 10

1 4/10/15 Order.) Defendants essentially ask the court to reconsider rulings on partial

2 summary judgment that it did not make. The court declines to reconsider rulings that it

3 did not make.

4

With respect to the rulings the court did make, Defendants acknowledge that there

5 is a difference between the federal definition under PASRR of intellectual disability and

6 state eligibility requirements. (PSJ Resp. (Dkt. # 23) at 7.) They further acknowledge

7 that they previously conflated the two standards and erroneously applied the state

8 standard to implement PASRR. (See id.; see also 11/10/14 Hehemann Decl. (Dkt. # 28)

9 ¶ 7; Mot. at 4-5 (“The sole issue presented by Plaintiff’s motion . . . is whether . . .

10 Defendants violate the [NHRA] if they do not use the federal definition of ‘intellectual

11 disability and related conditions.’ The Defendants agree that the answer is yes.”).)

12 Indeed, Defendants’ Federal Rule of Civil Procedure 30(b)(6) testimony indicates that

13 until at least September 2014, Defendants believed that the only distinction between the

14 state and federal regulations was the required age of onset. (See id. Ex. E (Hehemann

15 Rule 30(b)(6) deposition) at 82:16-83:1, 83:24; id. at 140:10-15; id. at 154:5-9; id. Ex. H

16 at 87:12-88:3.) Thus, Defendants’ admission or acknowledgment of a distinction

17 between the federal definition of intellectual disability and the state eligibility

18 requirements must have come sometime after September 2014. Mr. Dunakin received

19 PASRR Level I screenings in 2006 and 2008. (10/17/14 Hamburger Decl. (Dkt. # 21)

20 Exs. G, M.) In addition, Defendants had contact with Mr. Dunakin with the intent of

21 conducting a PASRR evaluation in April 2014. (See 10/17/14 Hamburger Decl. (Dkt. #

22 21) Ex. H (Watling Rule 30(b)(6) deposition) at 15:14-18:6.) Defendants do not dispute

ORDER- 11

1 this evidence. Thus, at all of the times that Mr. Dunakin was screened or evaluated for

2 PASRR purposes, Defendants had not yet acknowledged the distinction between state

3 and federal eligibility standards with regard to the definition of intellectual disability.

4 Based on the foregoing, the court declines to reconsider the narrow rulings described

5 above granting partial summary judgment to Mr. Dunakin. Accordingly, the court denies

6 Defendants’ motion.

7

III. CONCLUSION

8

For the reasons stated above, the court DENIES Defendants’ motion for

9 reconsideration (Dkt. # 45).

10

Dated this 1st day of July, 2015.

11

12

A

13

JAMES L. ROBART

14

United States District Judge

15

16

17

18

19

20

21

22

ORDER- 12

 
 Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 1 of 12

1

HON. JAMES L. ROBART

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 ADAM DUNAKIN, by and through his parent and next friend, KIMBERLEE
11 HOLLINGER individually, and on behalf of similarly situated individuals,

12

Plaintiff,

13

v.

14 KEVIN W. QUIGLEY, in his official capacity as Secretary of the Washington State
15 Department of Social and Health Services; and DOROTHY F. TEETER, in her official
16 capacity as Director of the Washington State Health Care Authority,

17

Defendants.

NO. 2:14-cv-00567-JLR
CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT, AWARD OF LODESTAR ATTORNEYS’ FEES AND LITIGATION COSTS
Noted for Consideration: January 9, 2017 at 10:00 a.m.

18

19

20

21

22

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 2 of 12

1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................................................... 1 3 II. EVIDENCE RELIED UPON .............................................................................................. 2 4 III. FACTS................................................................................................................................... 2

5 IV. OVERVIEW OF THE SETTLEMENT AGREEMENT .................................................... 3

6

A. Defendants Shall Implement Comprehensive Reforms to their

PASRR System ............................................................................................................ 3

7

B. The Agreement Provides for Transition to Community

8

Placement .................................................................................................................... 3

C. Class Release ............................................................................................................... 4 9

D. Termination of Settlement Agreement ................................................................... 4 10
E. Attorneys’ Fees and Litigation Costs ...................................................................... 5 11
V. LAW AND ARGUMENT .................................................................................................. 5

12 A. Legal Standards for the Approval of a Class Action Settlement

13

Agreement................................................................................................................... 5

14

B. All of the Factors Support Final Approval of the Settlement Agreement................................................................................................................... 6

15

C. No Objections to the Reasonableness of the Settlement

Agreement Were Filed .............................................................................................. 7 16

D. The Lodestar Attorneys’ Fees and Litigation Costs Sought by

17

Class Counsel Are Reasonable. ................................................................................ 7

18 VI. CONCLUSION .................................................................................................................... 8

19

20

21

22

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - ii

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 3 of 12

1

2

TABLE OF AUTHORITIES

Cases 3
Churchill Vill., L.L.C. v. GE, 4 361 F.3d 566 (9th Cir. 2004) ..................................................................................................... 7

5 Davis v. City and County of San Francisco, 890 F.2d 1438 (9th Cir. 1989) ................................................................................................... 5
6 Evans v. Williams,
7 340 U.S. App. D.C. 500, 206 F.3d 1292 (2000) ....................................................................... 7

8

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ................................................................................................... 5

9 In re Omnivision Techs., 559 F. Supp. 2d 1036 (N.D. Cal. 2007) ............................................................................... 6, 7
10
Nat’l Rural Telecom. Coop., v. DIRECTV, Inc., 11 221 F.R.D. 523 (C.D. Cal. 2004) ........................................................................................... 6, 7

12 Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615 (9th Cir. 1982) ..................................................................................................... 5
13 Rodriguez v. West Publ. Corp.,
14 2007 U.S. Dist. LEXIS 74767 (C.D. Cal. Sept. 10, 2007)........................................................ 7

15

Rolland v. Patrick, 946 F. Supp. 2d 226 (D. Mass. 2013)....................................................................................... 6

16

Rules

17 Fed. R. Civ. P. 23(e)(2) ................................................................................................................. 5

18

Treatises

19 4 A. Conte & H. Newberg, NEWBERG ON CLASS ACTIONS, § 11:50 (4th ed. 2002) ................ 6

20

21

22

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - iii

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 4 of 12

1

I. INTRODUCTION

2

This groundbreaking Settlement reforms defendants’ Pre-Admission Screening

3 and Resident Referral (PASRR) system in order to protect Plaintiff and others with

4 intellectual disabilities or related conditions from languishing in nursing facilities

5 without needed services, in violation of the Nursing Home Reform Act, the Medicaid Act,

6 Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA). If

7 finally approved, the Settlement Agreement will require the Department of Social and

8 Health Services to implement significant and comprehensive reforms to all aspects of its

9 PASRR system. These changes will enable hundreds of individuals who have lived in

10 institutions for many years, like Mr. Dunakin, to receive the specialized services they

11 need to gain skills for greater independence, or to live in a community-based homes close

12 to or with their families and friends.

13

Class notice was sent to every identified class member living in a Medicaid-

14 funded, state certified nursing facility. See Dkt. No. 78, ¶4. No objections or comments

15 to the settlement agreement were received. Hamburger Decl., ¶2. This is significant. No

16 one objected to (1) the comprehensive reforms to the PASRR system proposed; (2) the

17 protections put in place to ensure community placement when a class member is willing

18 and able to live outside of a nursing facility; (3) the attorneys’ fees sought; (4) the

19 requested litigation costs; or (5) any other aspect of the settlement agreement. The lack

20 of objectors to the merits of the Settlement Agreement confirms that it is a good resolution

21 for all involved. Importantly, this resolution was reached without years of contentious

22 litigation, as has occurred in other states.

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - 1

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 5 of 12

1

This is a complete victory. Through the Court’s partial summary judgment

2 decision, the Class and class counsel obtained an unambiguous judicial determination

3 that defendants had not been implementing PASRR as required by law. That decision

4 opened the door to meaningful negotiations that gave rise to the comprehensive reforms

5 of the PASRR program required under the Settlement Agreement.

6

The Court should conclude that the proposed Settlement Agreement is fair,

7 reasonable and adequate. The Agreement provides all of the relief that Plaintiff sought

8 in his Complaint, without the risks, expense and delay that further litigation would bring.

9 It also allows class counsel to continue to track implementation of the PASRR changes

10 over time, and establishes clear metrics for determining when the goals of the Agreement

11 are met. Very few cases achieve such stellar results. For these and other reasons, the

12 Settlement Agreement should be approved, and the attorneys’ fees and litigation costs

13 sought by class counsel awarded.

14

II. EVIDENCE RELIED UPON

15

The parties rely upon the Declaration of Eleanor Hamburger submitted with this

16 Motion as well as the records and pleadings in this case. While defendants do not oppose

17 this motion, they do not agree with the facts or legal conclusions alleged herein.

18

III. FACTS

Consistent with the Court’s Order preliminarily approving the Settlement 19

Agreement, class notices were sent out to class members on or before November 11, 2016. 20

Dkt. No. 78, ¶4. 21

22

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - 2

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 6 of 12

1

The notice informed class members about the provisions of the Settlement

2 Agreement and the opportunity to submit objections or comments for the Court’s

3 consideration. See Dkt. No. 71-1, Appendix 2. The notice also explained how class

4 members could request to attend the hearing in person. Id. The deadline for submitting

5 objections, comments or requests to appear was December 12, 2016. Dkt. No. 76, pp. 3-4.

6 Neither party nor parties’ counsel received any comments, objections or requests to

7 appear from class members. Hamburger Decl., ¶2.

8 9 10 A. 11

IV. OVERVIEW OF THE SETTLEMENT AGREEMENT This section revisits the summary of the key terms of the Settlement Agreement.
Defendants Shall Implement Comprehensive Reforms to their PASRR System The Settlement Agreement requires defendants to put in place new procedures for

12 ensuring timely PASRR Level I screenings, Level II Evaluations and Post-PASRR Level II

13 Meetings and systems for monitoring the ultimate provision of specialized services and

14 community-based discharge planning. Id., ¶¶ 6.2; 6.3. The new system anticipates that a

15 written plan for PASRR services, developed at a meeting with the class member and his

16 or her family members/guardians, if appropriate, is the key to ensuring that the

17 individual’s rights under the Medicaid Act, the Nursing Home Reform Act and the ADA

18 are protected. See App. 1, ¶¶6.4.2, 6.4.3.

19 B. The Agreement Provides for Transition to Community Placement

20

The Agreement ensures that all class members are able to make an informed choice

21 about where they are able and would like to live. See App. 1, ¶6.5. The Settlement

22 Agreement incorporates the existing Roads to Community Living (RCL) federal

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - 3

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 7 of 12

1 Medicaid program to assist with community placement for individuals who choose to

2 and are able to live in the community. Id. For those are undecided or unwilling to live

3 in a community based setting, the Agreement provides for a process to ensure that they

4 are regularly updated about their community based options. Id., ¶6.6. For those who are

5 medically unable to live in the community, the Agreement ensures that they are provided

6 with specialized services to maximize independence with “reasonable promptness.” Id.

7 ¶6.7.

8 C. Class Release

9

If approved (and in return for the benefits under the Settlement Agreement), the

10 Class will release defendants from any and all claims for injunctive and declaratory relief

11 related to the claims brought in the litigation pursuant to the Nursing Home Reform Act,

12 Medicaid Act, Section 504 of the Rehabilitation Act or Americans with Disabilities Act.

13 App. 1, ¶1.5.

14 D. Termination of Settlement Agreement The Settlement Agreement includes an anticipated termination date of
15 September 30, 2020, if the quarterly and biannual reports demonstrate that defendants
16 have substantially complied with the metrics described in Section 6 of the Settlement
17 Agreement. See id., ¶8. If defendants achieve full compliance with each and every
18 compliance metric in advance of September 30, 2020, the parties will jointly move the
19 Court for an order asking for early termination of the Agreement and dismissal of the
20 case. Id., ¶8.2.
21

22

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - 4

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 8 of 12

1 E. Attorneys’ Fees and Litigation Costs

2

The Settlement Agreement provides that Defendants will pay class counsel their

3 actual lodestar attorneys’ fees without a multiplier and its actual litigation costs

4 (“Option 1”). Id., ¶¶ 9.1.1; 9.1.2. Plaintiffs submitted an unopposed motion to for the

5 Court to approve an award of attorneys’ fees of $590,345.00 and litigation costs of

6 $65,026.59, to be paid by Defendants. Dkt. 79. No class members will be responsible for

7 payment of any attorneys’ fees or costs. No class member objected to the amount of the

8 fees or expenses. Hamburger Decl., ¶2.

9

V. LAW AND ARGUMENT

A. 10

Legal Standards for the Approval of a Class Action Settlement Agreement

Before a settlement on behalf of a certified class may be finalized, the court must

11

find that the proposed agreement is “fair, reasonable, and adequate.” Fed.

12

R. Civ. P. 23(e)(2). In analyzing the fairness, reasonableness, and adequacy of an

13

agreement, courts weigh a number of factors, the weight of which will vary depending

14

on the unique circumstances of each case. Officers for Justice v. Civil Serv. Comm’n, 688

15

F.2d 615, 625 (9th Cir. 1982). These factors include:

16

the strength of the plaintiffs’ case; the risk, expense, complexity, and likely

17

duration of further litigation; the risk of maintaining class action status

throughout the trial; the amount offered in settlement; the extent of

18

discovery completed and the stage of the proceedings; the experience and

views of counsel; the presence of a governmental participant; and the

19

reaction of the class members to the proposed settlement.

20 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (citation omitted). This process

21 protects absent class members who did not have a direct hand in crafting the settlement.

22 Davis v. City and County of San Francisco, 890 F.2d 1438, 1444, n.5 (9th Cir. 1989).

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - 5

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 9 of 12

1

Some of these factors, such as the reaction of class members, can only be gauged

2 after preliminary approval and notice is provided to class members. “[T]he absence of a

3 large number of objections to a proposed class action settlement raises a strong

4 presumption that the terms … are favorable to class members.” In re Omnivision Techs.,

5 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2007). “In most situations, unless the settlement is

6 clearly inadequate, its acceptance and approval are preferable to lengthy and expensive

7 litigation with uncertain results.’” Nat’l Rural Telecom. Coop., v. DIRECTV, Inc., 221 F.R.D.

8 523, 526 (C.D. Cal. 2004) (quoting 4 A. Conte & H. Newberg, NEWBERG ON CLASS ACTIONS,

9 § 11:50 at 155 (4th ed. 2002)). Here, every factor weighs strongly in favor of approval.

10 B. All of the Factors Support Final Approval of the Settlement Agreement

11

Under the Settlement Agreement, class members have obtained significant,

12 comprehensive reform of the PASRR system, which should result in additional services

13 while residing in nursing facilities and the development of community-based residential

14 programs for those ready and willing to leave. Class members did not compromise to

15 obtain this outcome, which may provide relief sooner for class members than had the

16 case been litigated to judgment. The Class reached this agreement after extensive written

17 discovery and depositions, motions practice, an interlocutory appeal to the Ninth Circuit,

18 and an exhaustive sampling of class members’ PASRR records by class counsel’s expert.

19

Similar litigation in other states took many years to reach the same sort of

20 agreement. Some resulted in consent decrees and the establishment of court monitors,

21 only to be followed by extensive post-judgment litigation. See e.g., Rolland v. Patrick, 946

22 F. Supp. 2d 226, 226 (D. Mass. 2013) (detailing the extensive post-settlement litigation

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - 6

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 10 of 12

1 history of a similar PASRR case filed in 1998 in Massachusetts was finally dismissed in

2 2013); Evans v. Williams, 340 U.S. App. D.C. 500, 206 F.3d 1292, 1293 (2000) (consent

3 judgment in de-institutionalization consent decree resulted in post-judgment litigation

4 from 1978 to at least 2000). Class counsel sought to establish a settlement agreement and

5 monitoring process that would rapidly and efficiently bring the defendants and the

6 Washington Department of Social and Health Services into compliance with PASRR, and

7 that would avoid the pitfalls of past litigation.

8 C. 9

No Objections to the Reasonableness of the Settlement Agreement Were Filed
The absence of reasonable objections establishes a strong presumption in favor of

10 approval. Nat’l Rural Telecom. Coop., 221 F.R.D. at 529. Where, as here, the class is “nearly

11 silent” regarding the terms of the settlement agreement, “the lack of objection of the Class

12 Members favors approval of the Settlement Agreement.” In re Omnivision Techs., 559 F.

13 Supp. 2d at 1043 (3 objectors appeared out of 57,630 potential class members); see, e.g.,

14 Churchill Vill., L.L.C. v. GE, 361 F.3d 566, 577 (9th Cir. 2004) (45 objections out of 90,000

15 notices sent); Rodriguez v. West Publ. Corp., 2007 U.S. Dist. LEXIS 74767, at *33 (C.D. Cal.

16 Sept. 10, 2007) (54 objections out of 376,000 notices).

17

Here, no objections were received. The Court should presume that the silence of

18 the class members on this issue reflects their support for the settlement.

19 D. The Lodestar Attorneys’ Fees and Litigation Costs Sought by Class Counsel Are Reasonable.
20
Class counsel has filed an unopposed motion for the court to approve its lodestar 21
fees and litigation costs. Dkt. No. 79. They have also posted the Motion on the settlement 22

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - 7

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 11 of 12

1 webpage, and provided notice to the Class of the amount requested. Dkt. 76, ¶ 7; Dkt.

2 79. Not a single class member objects to the payment of attorneys’ fees and costs by

3 defendants. Defendants do not object to the payment. Given the extraordinary outcome

4 in the Settlement Agreement, the attorneys’ fees and litigation costs are reasonable, and

5 should be awarded.

6

VI. CONCLUSION

7

For the foregoing reasons, the parties respectfully urge this Court to enter the

8 accompanying Proposed Order granting final approval of the Settlement Agreement and

9 providing for continuing jurisdiction to enforce its terms.

10

DATED: December 28, 2016.

11

DISABILITY RIGHTS WASHINGTON

12

/s/ Susan Kas

Susan Kas (WSBA #36592)

13

Sarah Eaton (WSBA #46854)

315 – 5th Avenue South, Suite 850

14

Seattle, WA 98104 Tel. (206) 324-1521; Fax (206) 957-0729

15

Email: susank@dr-wa.org; sarahe@dr-wa.org

16

SIRIANNI YOUTZ SPOONEMORE HAMBURGER

17

/s/ Eleanor Hamburger

Eleanor Hamburger (WSBA #26478)

18

701 Fifth Avenue, Suite 2560

Seattle, WA 98104

19

Tel. (206) 223-0303; Fax (206) 223-0246

Email: ehamburger@sylaw.com

20 Attorneys for Plaintiff Class

21

22

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - 8

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81 Filed 12/28/16 Page 12 of 12

1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 28, 2016, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification of

3 such filing to the following:

4

 Angela D. Coats McCarthy AngelaC3@atg.wa.gov, HilaryS@atg.wa.gov, ChristineH1@atg.wa.gov,

5

NicoleB3@atg.wa.gov

 Sarah Eaton

6

sarahe@dr-wa.org, monar@dr-wa.org

7

 Eleanor Hamburger

ehamburger@sylaw.com, matt@sylaw.com, theresa@sylaw.com

8  Susan Linn Kas

9

susank@dr-wa.org, monar@dr-wa.org

10

and I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants:

11

• (no manual recipients)

12

DATED: December 28, 2016, at Seattle, Washington.

13

/s/ Eleanor Hamburger

14

Eleanor Hamburger (WSBA #26478)

15

16

17

18

19

20

21

22

23

CLASS’S MOTION FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT - 9

[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

 
 Case 2:14-cv-00567-JLR Document 81-1 Filed 12/28/16 Page 1 of 8

1 HON. JAMES L. ROBART
2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

10 ADAM DUNAKIN, by and through his

11

parent and next friend, KIMBERLEE HOLLINGER individually, and on behalf of

12 similarly sihtated individuals,

13
v.

Plaintiff,

14 KEVIN W. QUIGLEY, in his official capacity 15 as Secretary of the Washington State
Deparhnent of Social and Health Services; 16 and DOROTHY F. TEETER, in her official
capacity as Director of the Washington State 17 Health Care Authority,

18

Defendants.

1--------------------------------~

NO. 2:14-cv-00567-JLR
~i"'O~E~
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS
Noted for Hearing: January 9, 2017 at 10:00 a.m.

19

I. BACKGROUND

20

On September 12, 2016, this Court preliminarily approved a proposed Settlement

21 Agreement, attached as Appendix 1 to the Motion for Preliminary Approval 22 ("Agreement"), between the Class and defendants Lashway and Teeter ("Defendants").
23

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS - 1 [Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 51" Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521 · Fax: (206) 957·0729

Case 2:14-cv-00567-JLR Document 81-1 Filed 12/28/16 Page 2 of 8

Dkt. No. 76. In conjunction with that Order, the Court directed notice to be provided by

2 direct mail to all class members by defendants. The Court approved a form of notice.

3

The Order also provided that class members who wished to comment on or object

4 to the proposed Agreement were required to do so by December 12, 2016. Class members

5
were informed of their rights, and of this deadline, in the notices that were mailed to
6 them.
7 The Order further scheduled a final settlement hearing, which was held on
8
January 9, 2017, at 10:00 a.m., to consider objections and comments by class members and 9
to determine whether the proposed Agreement is fair, reasonable, adequate, and should
10

11 be approved by the Court.

12

II. FINDINGS

1. The parties have reached a Settlement Agreement that provides for a
13

14 comprehensive reform of defendants' Pre-Admission Screening and Resident Referral

15 (PASRR) system, required under the Nursing Home Reform Act. The Settlement

16 Agreement establishes procedures for ensuring timely PASRR Level I screenings, Level

17 II evaluations, Post-PASRR Level II meetings and, ultimately, the provision of specialized
18 services to increase class members' independence and/ or discharge planning for class
19 members who are medically able and willing to live in an alternative placement in the
20 community.
21
2. The Agreement also establishes metrics for monitoring the implementation
22
of the new PASRR system, with various reporting to class counsel on a quarterly basis. 23

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS- 2 [Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5'h Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521 · Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81-1 Filed 12/28/16 Page 3 of 8

1 During this time, the Agreement anticipates that the Court will retain jurisdiction over

2 the case and the Settlement Agreement.

3

3. The Agreement also provides that Defendants will pay class counsel their

4 actual their actual lodestar attorneys' fees without a multiplier and its actual litigation

5 costs ("Option 1"). Id., ~~ 9.1.1; 9.1.2. Plaintiffs submitted an unopposed motion to for
6 the Court to approve an award of attorneys' fees of $590,345.00 and litigation costs of
7 $65,026.59, to be paid by Defendants. Dkt. 79. No class members will be responsible for
8
payment of any attorneys' fees or costs. No class member objected to the amount of the 9
fees or expenses. Hamburger Decl., ~2. 10

11

4. The Agreement also releases defendants from any and all claims for

12 injunctive relief related to the claims brought in the litigation pursuant to the Nursing

13 Home Reform Act, Medicaid Act, Section 504 of the Rehabilitation Act or Americans with

14 Disabilities Act. Agreement, ~1.5.

15

5. The Court's Order Granting Preliminary Approval of the Settlement

16 Agreement required the Defendants to mail court-approved notices to class members by

17 direct mail. The notices informed class members that they had an opportunity to object
18 or submit comments to the Court regarding the proposed Agreement and that they must
19 do so in writing by December 12, 2016. The Order also required defendants to post the
20 class notice on its website.
21 6. Defendants reported that they mailed and posted the required class notices.
22
Class counsel also posted the class notice on the Disability Rights Washington website. 23

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS- 3 ]Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 51h Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521 · Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81-1 Filed 12/28/16 Page 4 of 8

No objections to or comments on the Settlement Agreement were received by either the

2 parties or their counsel.

3

Ill. CONCLUSIONS

4

7. Federal Rule of Civil Procedure 23(e) provides that" a class action shall not

5 be dismissed or compromised without the approval of the court.. .." Compromise and

6 arbitration of complex litigation is encouraged and favored by public policy. See Simula,
7 Inc. v. Autoliv, Inc., 175 F.3d 716, 719 (9th Cir. 1999).
8 8. A presumption of fairness and adequacy attaches to a class action
9 settlement reached in arm's-length negotiations by experienced class counsel after
10 meaningful discovery. See, e.g., Officers for Justice v. Civil Service Com., 688 F.2d 615, 625
ll
(9th Cir. 1982); Pickett v. Holland Am. Line-Westours, Inc., 145 Wn.2d 178, 209, 35 P.3d 351 12
13 (2001).

14

9. The following factors are generally considered when determining whether

15 a settlement is fair, adequate and reasonable: the likelihood of success by plaintiffs; the

16 amount of discovery or evidence; tl1e settlement terms and conditions; recommendation

17 and experience of counsel; future expense and likely duration of litigation;

18 recommendation of neutral parties, if any; number of objectors and nature of objections;

19 and the presence of good faith and absence of collusion. Officers for Justice, 688 F.2d at
20 625.
21 10. Based upon these factors, the Court finds that the Agreement is fair,
22 reasonable, and in the best interests of the Class. The requirement of FRCP 23 and due
23 process have been satisfied.

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS- 4 [Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 51h Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521 · Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81-1 Filed 12/28/16 Page 5 of 8

1

11. Specifically, the Court concludes that the Agreement was the result of

2 arm's-length bargaining. It was reached after extensive discovery and motions practice,

3 including a decision by this Court granting partial summary judgment on whether
4 defendants had properly implemented the PASRR program. Although the Class had a
5 strong likelihood of success, a settlement that results in systemic reform of the PASRR
6 system to bring it in compliance witl1 legal requirements, achieves the goals of the
7 litigation. There is no evidence of collusion between the parties, and the agreement was
8 reached in good faith with the assistance of a neutral mediator.
9
12. The Class was provided with adequate notice, and due process has been 10
11 satisfied in connection with the distribution of the notice. There were no objections to or

12 comments on the proposed Agreement.

13

IV. ATTORNEYS' FEES AND LITIGATION COSTS

14

13. As permitted by the Agreement, class counsel have sought an award of

15 their actual lodestar attorneys' fees without a multiplier or reduction. That request is

16 granted, and tl1e Court awards $590,345.00 as attorneys' fees to be paid by defendants.

17

14. No objections were received to class counsel's fee request,

18

15. Class counsel is also entitled to reimbursement of its actual litigation costs.

19 Class cmmsel seeks reimbursement in the sum of $65,026.59, reflecting its unreimbursed

20 actual out-of-pocket litigation costs and expenses. This request is supported, is
21 reasonable, and is approved.
22 16. No objections were received to class counsel's request for an award of
23 litigation costs.

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS- 5 [Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 51h Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521 · Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81-1 Filed 12/28116 Page 6 of 8

1

17. Upon the occurrence of the conditions set forth in Section 2 of the

2 Settlement Agreement, and by 35 days from entry of this Order if no appeal is taken,

3 defendants shall pay the award of attorneys' fees and costs to class counsel.

4

V. ORDER

5

It is hereby ORDERED that:

6

1. The Settlement Agreement, Dkt. No. 71-1, Appendix 1 and Dkt. No. 74-1,

7 Appendix A, is approved as fair, reasonable and adequate under FRCP 23, and its terms

8
shall bind class members.
9 2. Class counsel is awarded fees and litigation costs as set forth above.
10 3. The parties to the Settlement Agreement shall perform all of their
11
obligations thereunder. The Court shall retain jurisdiction over this matter until the
12

13 Settlement Agreement is terminated, pursuant to Section 8 of the Settlement Agreement.

14

15

16 James L. Ro art

17

U ited States District Judge

18

19

20

21

22

23

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS- 6 [Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521 · Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81-1 Filed 12/28/16 Page 7 of 8

1 Presented by:

2 DISABILITY RIGHTS WASHINGTON

3 Is/ Susan Kas
Susan Kas (WSBA #36592) 4 Sarah Eaton (WSBA #46854)

5 SIRIANNI YOUTZ 6 SPOONEMORE HAMBURGER

7

Is/Eleanor Hamburger Eleanor Hamburger (WSBA #26478)

8 Attorneys for Plaintiff Class

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS- 7 [Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5'" Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521 · Fax: (206) 957-0729

Case 2:14-cv-00567-JLR Document 81-1 Filed 12/28/16 Page 8 of 8

1

CERTIFICATE OF SERVICE

2

I hereby certify that on December 28, 2016, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification of

3 such filing to the following:

4

• Angela D. Coats McCarthy

Ang-elaC3@atg-.wa.gov, HilarvS@atg-.wa.gov, Christi:neHl@atg.wa.gov,

5

NicoleB3@atg.wa.gov

6

• Sarah Eaton

sarahe@dr-wa.org, monar@dr-wa.org

7

• Eleanor Hamburger

8

ehamburger@sylaw.com, matt@sylaw.com, theresa@sylaw.com

9

• Susan Linn Kas

susank@dr-wa.org, monar@dr-wa.org

10

and I hereby certify that I have mailed by United States Postal Service the document to

11 the following non-CM/ECF participants:

12

• (no manual recipients)

13

DATED: December 28,2016, at Seattle, Washington.

14

/sl Eleanor Hamburger

15

Eleanor Hamburger (WSBA #26478)

16

17

18

19

20

21

22

23

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT AND AWARDING ATTORNEYS' FEES AND LITIGATION COSTS- 8
[Case No. 2:14-cv-00567-JLR]

Disability Rights Washington 315 5'" Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521 · Fax: (206) 957-0729

 
 Case 2:14-cv-00567-JLR Document 71-1 Filed 08/15/16 Page 1 of 33

PLAINTIFF'S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, ETC. - 18 [Case No. 2:14-cv-00567-JLR]

Appendix 1

Case 2:14-cv-00567-JLR Document 71-1 Filed 08/15/16 Page 2 of 33
Final Settlement Agreement
Dunakin v. Lashway and Teeter, NO. 2:14-cv-00567-JLR
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
This Settlement Agreement (Agreement) is between Plaintiff Adam Dunakin, by his next friend and mother, Kimberlee Hollinger (Plaintiff) and Defendants, Patricia Lashway, in her official capacity as Secretary of the Washington State Department of Social and Health Services (DSHS) and Dorothy F. Teeter, in her official capacity as Director of the Washington State Health Care Authority (HCA). The Plaintiff and the State are hereinafter referred to collectively as "the Parties." This Agreement is a full expression of the agreements between the Parties.
RECITALS
On April 16, 2014, Plaintiff filed a lawsuit (Lawsuit) on behalf of himself and a class of similarly situated individuals against Defendants Dorothy Teeter and Patricia Lashway, in their official capacities as the directors of Washington state Health Care Authority and Depai1ment of Social and Health Services respectively. The Lawsuit asserted claims under the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq. (ADA), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and several sections of Title XIX of the Social Security Act, 42 U.S.C. § 1396a, et seq. (Medicaid Act), including the Preadmission Screening and Resident Review (PASRR) provisions of the 1987 Nursing Home Reform Act, 42 U.S.C. § 1396r, et seq. (NHRA). Defendants denied these allegations. The U.S. District Court Western District of Washington at Seattle certified a class of Medicaid recipients with intellectual disabilities and related conditions (ID/RC) who are or will be residents of privately-operated nursing facilities in Washington and who are eligible to receive PASRR screening and evaluations, with Plaintiff appointed to represent the class. By this Agreement, the Pai1ies wish to resolve all claims for the plaintiff and the class.
AGREEMENT
1. Definitions
I.I "Action" shall mean: Dunakin v. Lashway and Teeter, No. 2:14-cv-00567-JLR, a class action pending in the U.S. District Court Western District of Washington at Seattle.
1.2 "Agreement Execution Date" shall mean: the date on which this Agreement is fully executed.
1.3 "Class Counsel" shall mean: Eleanor Hamburger of SIRIANNI YOUT/. SPOONEMORE HAMBURGER and Susan Kas of DISABILITY RIGHTS WASlllNGTON.
1.4 "Class Members" shall mean: those individuals who comprise the class as ce11ified by the Court, specifically:
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Case 2:14-cv-00567-JLR Document 71-1 Filed 08/15/16 Page 3 of 33
All individuals who:
a. are or will be residents of Medicaid-certified, privately-operated nursing facilities in the State of Washington; and
b. are Medicaid recipients with an intellectual disability or related condition(s) such that they are eligible to be screened and assessed pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R. § 483.122 et seq.
1.5 "Class Released Claims" shall mean: any and all claims, demands, debts, liabilities, and causes of action, known or unknown, for injunctive and declaratory relief arising out of or relating Defendant's PASRR system for the class that were brought, or that could have been brought, by the Named Plaintiff against Defendants in the Action on behalf of a class, including but not limited to claims for injunctive and declaratory relief under the NHRA, Medicaid Act, Section 504 of the Rehabilitation Act or ADA, attorneys fees and costs, expenses. Class Released Claims shall not include a release of claims for damages. This Release shall be binding on Plaintiffs, the class and all their lawful guardians, heirs, beneficiaries, representatives, assigns, attorneys and agents.
1.6 "Continuous active treatment program" shall mean: a combination of specialized services as defined in paragraph 1.18 and services provided by a nursing facility to satisfy the requirements of 42 C.F.R. § 483.440.
1.7 "Court" shall mean: U.S. District Com1 Western District of Washington at Seattle.
1.8 "Defendants" shall mean: Patricia Lashway, in her official capacity as Secretary of the Washington State Department of Social and Health Services (DSHS) and Dorothy F. Teeter, in her official capacity as Director of the Washington State Health Care Authority (HCA).
1.9 "Effective Date o.fSettlement" shall mean: the date on which all of the conditions to settlement set forth in Section 2 have been fully satisfied or waived.
1.10 "Jntel!ectual disability or related condition" (ID/RC) shall have the same meaning as those terms are described in 42 C.F.R. § 483.102 (3)(i) and (ii), and 42 C.F.R. § 435.1010.
1.11 "Legal Guardian" shall mean: the guardian of an adult individual or a surrogate decision maker under Wash. Rev. Code 11.88.
1.12 "Named Plaintiff' shall mean: Adam Dunakin, by his next friend and mother, Kimberlee Hollinger.
I .13 "Parties'" sh al I mean: Named Plaintiff, Plaintiff Class and Defendants.
2 PLAINTIFF'S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, ETC. - 20 [Case No. 2:14-cv-00567-JLR]

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1.14 "PASRR Level I"or "PASRR Level I screening" means the process of identifying individuals who are suspected of having ID/RC and therefore require a PASRR Level II evaluation. A PASRR Level I screening is further described and defined in 42 C.F.R. §§ 483.l 12(a) and 483.128.

1.15 "PASRR Level IF' means a face-to-face evaluation performed to assess: (1) whether the individual's needs could be met in the community through alternate placement options; (2) the individual's need for inpatient care, whether in a nursing facility or other setting such as an ICF/IID; and (3) the individual's need for specialized services. A PASRR Level II evaluation is further described and defined in 42 C.F.R. §§ 483.112, 483.132, and 483.136.

1.16 "Releasees" shall mean: Defendants, their subsidiaries, its successors, predecessors, officers, directors, representatives, employees, agents, assigns, attorneys, and any and all other entities and persons in privity with them which could be ostensibly liable for the claims being released.

1.17 "Roads to Community Living" (RCL) shall mean the demonstration project described in Wash. Adm in. Code§ 388-106-0250.

1.18 "Specialized services" shall mean: services for the class to be provided in nursing facilities, which are identified by the PASRR Level II. Specialized services are further described and defined in 42 C.F.R. §§ 483.116, 483.120(a)(2), 483.136, 483.440(a)(I )), 42 U.S.C. § 1396r(e)(7)(G)(iii) and the State Plan Amendment for PASRR Specialized Services.

1.19 "Settlement" shall mean: the settlement to be consummated under this Agreement.

2. Conditions to Effectiveness ofthe Settlement

2.1 General. The Settlement provided for in this Agreement shall not become binding unless and until each and every one of the conditions in Section 2.2 have been satisfied or waived.

2.2 Court Approval.

2.2.1

Motion for Preliminary Approval and Notice. The Cou11 shall have preliminarily approved the Agreement (Preliminary Approval Order) and authorized the issuance of notice to the Class. Class Counsel shall make a motion for preliminary approval and authorization to send notice (Preliminary Motion). The Court must conclude that the notice to be sent fairly and adequately describes the terms of the Agreement, gives notice of the time and place of the hearing for final approval of the Settlement, describes how a Class Member may comment on, object to, or support the Settlement. The Cou11 must also conclude that the manner of providing the notice to Class Members is the best notice practicable under the circumstances.

3
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2.2.2 Issuance of Class Notice. By the date set by the Court in its Preliminary
Approval Order, Defendants shall cause Class notice to be issued as follows:

2.2.2.1 U.S. Mail. By the date set fo1ih by the Court in its Preliminary Approval Order, Defendants shall cause Class Notice to be mailed to a list of all Class Members and their parents/guardians/next friends, in their identified primary language. The cost of mailing shall be paid by Defendants.

2.2.2.2 Webpage. Defendants shall prominently post, electronically, a link to the settlement agreement and notice. Defendants shall also post translated versions of the court-approved Notice.

2.2.2.3 Language Translations. Defendants shall provide to Class Counsel a de-identified version of any translated notice to post on the Class Counsel webpage in Section 2.2.3 below.

2.2.3 Class Counsel Webpage. Class Counsel shall create a webpage which contains the following material:

2.2.3.1 A description of Dunakin v. Lashway, including a summary of the litigation to date;

2.2.3.2 A description of the Class definition;

2.2.3.3 A summary of the proposed settlement derived from the Class notice;

2.2.3.4 A timeline and schedule of events, including deadlines for submitting comments, objecting to or supporting the Settlement Agreement, and the date of the Final Approval Hearing;

2.2.3.5 How to contact Class Counsel for additional information;

2.2.3.6 Key litigation and settlement documents;

2.2.3.7 A link to the translated notices as described in Section 2.2.2.3 above.

2.2.4

Final Approval Hearing. On the date set by the Court in its Preliminary Approval Order, the Parties shall pa11icipate in the hearing (Final Approval Hearing) during or after which the Cou1i will determine by order (the Final Order) whether: (i) the proposed Settlement Agreement between the parties is fair, reasonable and adequate and should be approved by the Court; and (ii) the requirements of CR 23 and due process have been satisfied in connection with the distribution of the notice.

4
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2.2.5

Motion for Final Approval. On the date set by the Court in its Preliminary Approval Order, Plaintiffs shall have filed a motion (Final Approval Motion) for an order giving final approval to this settlement (Approval Order).

2.2.6 No Termination. The Settlement shall not have terminated pursuant to Section 8.

3. Releases <~f the Releasees. Upon the Effective Date of Settlement, as defined in paragraph 1.10 and Section 7 herein, Plaintiff and the class that he represents, absolutely and unconditionally release and forever discharge Releasees from any and all Class Released Claims that Plaintiff or the class have directly, indirectly, derivatively, or in any other capacity ever had or now have. This Release shall be binding on Plaintiff, the Class Members, and all their lawful guardians, heirs, beneficiaries, representatives, assigns, attorneys and agents. The Court retains jurisdiction to enforce the terms of the release.

4. Representations and Warranties. The Parties, and each of them, represent and warrant that they are voluntarily entering into this Agreement as a result of arm's-length negotiations; in executing this Agreement they are relying upon their own judgment, belief and knowledge, and the advice and recommendations of their own counsel, concerning the nature, extent and duration of their rights and claims hereunder and regarding all matters which relate in any way to the subject matter hereof. The Parties, and each of them, represent and warrant that they have carefully read the contents of this Agreement; they have made such investigation of the facts pertaining to the Settlement, this Agreement and all of the matters pertaining thereto as they deem necessary; and this Agreement is signed freely by each person executing this Agreement on behalf of each paiiy. Each individual executing this Agreement on behalf of any other Person does hereby represent and warrant to the other Parties that he or she has the authority to do so.

5. No Admission of Liability. The Parties understand and agree that this Agreement embodies a compromise and settlement of disputed claims, and that nothing herein shall be deemed to constitute an admission of any wrongdoing by Defendants or any of the Releasees. Neither the fact nor the terms of this Agreement shall be offered or received in evidence in any action or proceeding for any purpose as an admission on the part of the patties.

6. PASRR and ADA -Related Services.for Class Members

6.1 PASRR Policy: The Intellectual Disability Authority will establish a Developmental Disabilities Administration (ODA) PASRR Policy by no later than January 1, 2017, or within 90 days of final settlement approval, whichever is later, and continue to develop DDA's PASRR Manual and its PASRR Communication Protocol. Defendants will provide draft policies to Class Counsel for review and comment. Defendants will invite nursing facility representatives, community providers, self-advocates who have left the nursing facility, and Class Counsel to provide input and feedback during development of the PASRR Policy.

s
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6.2 Goal - Level I: Defendants will continue to implement statewide PASRR Level I screening policies and procedures that result in timely and adequate PASRR Level I screening.
6.2.1 Policy Outcomes
6.2.1.1 Defendants will track non-compliant PASRR Level I screeners and/or facilities and refer those screeners/facilities to the appropriate regulator and/or for additional training.
6.2.1.2 The state survey agency will survey nursing facilities in accordance with federal and state requirements, and as a pa11 of the survey process will monitor and enforce compliance with PASRR requirements.
6.2.1.3 During surveys, the state survey agency will review a sample of records to determine if a Level I and Level II, if required, were completed in accordance with federal and state requirements.
6.2.1.4 Defendants will use existing data systems to identify enrolled DOA clients in nursing facilities who were erroneously screened negative through an inaccurate PASRR Level I screen, and ensure those individuals receive a PASRR Level II evaluation pursuant to the PASRR Communication Protocol.
6.2.2 Training Outcomes
6.2.1 Defendants will continue to provide annual PASRR training to PASRR Level I screeners, including but not limited to employees of hospitals and nursing facilities.
6.2.3 A1etrics
6.2.3.1 Defendants will provide Class Counsel with quai1erly reports on compliance with each of the four Policy Outcomes in Section 6.2.1 above during the Settlement Period.
6.2.3.2 Defendants will provide Class Counsel with quarterly reports showing the percentage of PASRR Level I records reviewed that were completed in compliance with federal and state PASRR requirements. An instance will not be considered non-compliant for Class Members admitted to a nursing facility before April 1, 2015, if the only noncompliance with federal and state PASRR requirements is the failure to complete the Level I screen prior to admission. An instance also will not be considered non-compliant if the only non-compliance is the failure to complete the Level I screen prior to admission and the error was addressed following a previous citation of the facility. This outcome shall be considered met when three (3) consecutive quarterly reports demonstrate compliance at 90% or greater.
6
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6.2.3.3 The same quarterly reports must also show the number of enrolled DDA clients in nursing facilities who were erroneously screened negative through an inaccurate PASRR Level I screen, and the number of instances where an erroneous screen was corrected within 60 days of DSHS receiving the erroneous Level I. In instances where there is an erroneously negative Level I screen, the instance shall not count against compliance so long as it is corrected within 60 days of DSHS receiving the erroneous Level I. This outcome shall be considered met when three (3) consecutive quarterly reports demonstrate compliance at 98% or greater.
6.3 Goal - Level II: Defendants will continue to implement statewide PASRR Level II evaluation policies and procedures that ensure timely, adequate and appropriate PASRR Level II evaluations of all Class Members.
6.3.1 Policy Outcomes
6.3.1.1 Defendants will continue to implement, and if necessary update, its PASRR Communication Protocol to ensure timely and adequate PASRR Level II evaluations.
6.3.1.2 Defendants will continue to monitor and track the timely provision of PASRR Level II evaluations, through at least (but not limited to) its case management system (DPMS) and Regional PASRR Monthly Meetings.
6.3.1.3 Defendants will continue to ensure that PASRR Level II evaluators have access to medical support and/or review of Level II evaluations:
6.3.1.3.1 Defendants will ensure that all PASRR program staff have access to DDA regional nursing care consultants as a resource to address medical questions when reviewing documentation, when performing Level IIs, when recommending professional evaluations or specialized services, or when questions arise during PASRR Regional Monthly Meetings.
6.3.1.3.2 Defendants will develop guidelines for when PASRR staff should utilize nursing care consultants or other medical resources to address medical concerns and needs for Class Members.
6.3.1.4 Defendants will continue to provide completed PASRR Level II evaluations to all evaluated individuals and their family members/ guardians if appropriate, and will ensure that PASRR Level II evaluations clearly indicate whether the evaluated individuals are eligible for PASRR Specialized Services and, if so, the full range of specialized services recommended for that individual at the time of the Level II evaluation.
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6.3.1.5 Defendants will continue to ensure that all individuals who receive a PASRR Level II evaluation are provided with a timely Planned Action Notice and notice of their right to appeal Defendants' PASRR determinations.
6.3.1.6 Defendants will continue to ensure that the PASRR Level II evaluations are updated with PASRR Addendums, when there are additional evaluations and/or recommendations for specialized services or new information is obtained, and addendums are provided to individuals with a timely Planned Action Notice.
6.3 .2 Training Outcomes
6.3.2.1 PASRR Assessors will be trained on guidelines for when to seek additional medical guidance from hospital staff, nursing facility staff, or ODA regional nursing care consultants when reviewing documentation, when performing Level Ils, when recommending professional evaluations or specialized services, or when questions arise during PASRR Regional Monthly Meetings.
6.3.2.2 PASRR Assessors will be trained to identify on the Level II form the sources of evidence and/or key documents relied upon for their determination that the individual does not have ID/RC.
6.3.2.3 PASRR Assessors will be trained to identify on the Level II form the sources of evidence and/or key documents reviewed that limit the recommendations for specialized services and/or discharge planning.
6.3.2.4 PASRR Assessors will be trained on how to resolve discrepancies in documentation that could impact whether the individual has an ID/RC, the provision of specialized services and/or discharge planning.
6.3.2.5 Defendants will continue to revise its "PASRR Indicators and Approaches" to include more detailed guidance for when referrals for specialized evaluation and various specialized services should be made, and will use the PASRR Indicators and Approaches document as part of training for PASRR Assessors.
6.3.3 111etrics
6.3.3.1 Defendants will include in quarterly repo11s information about the percentage of Level II evaluations completed within fourteen (14) working days of receiving a Level I screen that indicates a Level II is necessary. When determinations are initially made verbally pursuant to 42 C.F.R. § 483.112, the date of completion shall be the date of the verbal determinations. For categorical determinations and exempted hospital discharges, the fact that a Level II is not completed within this timeframe
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shall not count against compliance. This outcome shall be considered met when three (3) consecutive quarterly repo1is demonstrate compliance at 90% or greater.
6.3.3.2 Defendants will include in quarterly repo1is information about the percentage of Level II evaluations completed prior to nursing facility admission when the Defendants receive the Level I prior to admission. When determinations are initially made verbally pursuant to 42 C.F.R. § 483.112, the date of completion shall be the date of the verbal determinations. For categorical determinations and exempted hospital discharges, the fact that a Level II is not completed within this timeframe shall not count against compliance. This outcome shall be considered met when three (3) consecutive quarterly reports demonstrate compliance at 90% or greater.
6.3.3.3 Defendants will include in quarterly reports information about the percentage of Level II evaluations that identify that the individual may be served in a community-based alternative placement and if not, the specific barriers to community-based alternative placement. This outcome shall be considered met when three (3) consecutive quarterly repo1is demonstrate compliance at 95% or greater.
6.3.3.4 Defendants will include in quarterly reports information about the percentage of Level II evaluations that recommend clinical evaluations. If no clinical evaluations are identified, Depaiiment staff will identify on the assessment the reasons that evaluations were not considered necessary for the individual. This outcome shall be considered met when three (3) consecutive quarterly repo1is demonstrate that 98% PASRR assessments either recommend evaluations or identify that no such evaluations were necessary. The Defendants will utilize a dropdown menu to document reasons why evaluations were not considered necessary and will provide the options to Class Counsel for review and comment prior to implementation.
6.3.3.5 Defendants will include in quarterly reports information about the percentage of Level ll evaluations that identify why additional specialized services were not considered necessary for the individual. This outcome shall be met when three (3) consecutive quarterly repo1is demonstrate compliance at 98%. The Defendants will utilize a dropdown menu to document reasons why further services were not considered necessary and will provide the options to Class Counsel for review and comment prior to implementation.
6.3.3.6 Defendants will include in quarterly reports information about the percentage of individuals recommended for professional evaluations who receive evaluations within 30 days of recommendation, and the percentage of instances in which the evaluation is not performed within
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30 days of recommendation, but the Defendants document the reason for the delay and/or follow-up steps within 60 days of the recommendation. If a recommendation is not performed within 30 days, the instance shall be considered compliant if it is provided within 90 days and the Defendants document the reason for delay and/or follow-up steps. This outcome shall be considered met when three (3) consecutive quarterly repo11s demonstrate compliance at 90%. For Informational purposes, the Defendants will provide Class Counsel with information about the number of instances in which the evaluation is performed more than 30 days, but less than 90 days, after the recommendation.
6.3.3.7 Defendants will include in quarterly repo11s information about the percentage of individuals recommended for specialized services who receive recommended services within 90 days of recommendation. An instance will not be considered non-compliant if 1) inaction or resistance from the individual and/or his or her family or guardian is the reason for the delay, 2) within 120 days, Defendants provide recommended specialized services and document the reasons for delay, and/or 3) Defendants provide alternative services that have been identified through a person-centered planning process to meet the individual's needs. This outcome shall be considered met when three (3) consecutive quarterly reports demonstrate compliance at 90%.
6.3.3.8 Defendants will include in quarterly reports information about the number of Class Members who were provided written information and verbal explanation about the family mentor. For the purpose of compliance, this outcome shall be considered met when three (3) consecutive quai1erly reports demonstrate 90% of Class Members were provided written information and verbal explanation about the family mentor program.
6.3.3.9 Defendants will include in quarterly reports information about the number of Class Members who met at least one time with a family mentor, and the number of Class Members who both met at least one time with a family mentor and who after the meeting went on a visit to a residential program or had residential program provider visit them. If the percentage of individuals who utilize mentorship services is less than 10% for three (3) consecutive quarterly reports, the Defendants will meet with available mentors to discuss ways to better convey the availability of mentorship services to Class Members and develop training for PASRR Assessors. Class Counsel shall have the option of pa11icipating in this process and commenting on the training. For purposes of compliance, this outcome shall be considered met when either (I) three (3) consecutive quai1erly reports demonstrate that 10% of individuals met at least one time with a family mentor or (2) the Defendants meet with available mentors and develop training for PASRR Assessors as described above.
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6.4 Goal - Post-PASRR Level II Meeting and Monitoring: Defendants will implement meetings and procedures to take place after the completion of a Level II.
6.4.1 Policy Outcomes
6.4.1.1 Defendants will provide Post-PASRR Level II service planning consistent with Appendix A to this agreement, reflecting the Post-PASRR Level II Meetings and procedures agreed upon by the parties on March 17, 2016.
6.4.2 Training Outcomes
6.4.2.1 All PASRR staff will receive training on Appendix A and person-centered planning.
6.4.3 lvfetrics
6.4.3.1 Defendants will include in quarterly reports information about the percentage of Post-PASRR Level II meetings occurring within 90 days of the Level II evaluation. If a meeting does not occur within 90 days, the instance shall not count against compliance if the PASRR Assessor determines the meeting is impossible or inappropriate in the individual's case. If an individual discharges within 90 days of admission, the fact that a Post-PASRR meeting has not occurred will not count against compliance. This outcome shall be considered met when three (3) consecutive quai1erly reports demonstrate compliance at 90% or greater.
6.4.3.2 Defendants will include in quarterly reports information about the percentage of Post-PASRR Level II documentation provided with planned action notices within thi11y calendar days of Post PASRR Level II meeting. If the documentation is mailed, the date it is provided will be the date it is placed in the mail. This outcome shall be considered met when three (3) consecutive quarterly repo11s demonstrate compliance at 90% or higher.
6.5 Goal - An individual's choice to transition, or not transition, to the community should be an informed one, and that choice will impact the level of transition planning provided. For Class Members who are able to and choose to live in a community-based alternative setting, Defendants will meet the following policy outcomes:
6.5.1 Po!iGy Outcomes:
6.5.1.1 Each Class Member in this category should be assigned to a PASRR Assessor and/or a DOA or HCS Case Manager who will work with nursing facilities and service providers to develop and implement each Class Member's transition plan.
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6.5.1.2 Based upon the PASRR Level 11 evaluation, and the PostPASRR Level 11 Meeting(s), and taking into account the individual's expressed preferences, the PASRR Assessor and/or a DOA or HCS Case Manager will:
6.5.1.2.1 Consistent with the Money Follows the Person grant, individuals who are admitted for 90 days and are likely to be discharged within one year should be offered a referral to a Roads to Community Living (RCL) Case Manager to work with the individual, family members/guardian and other service providers to identify all residential, day, and medical support needs, types of providers and settings available and which of these will be pursued. For individuals who enroll in RCL:
6.5.1.2.1.1 RCL Case Manager should meet on a regular (at least quarterly) basis with the individual and family members/guardians, if available, to provide updated information about discharge planning.
6.5.1.2.1.2 As part of discharge planning, the RCL Case Manager will offer visits to, or meetings with, appropriate residential, day and medical supp01i providers.
6.5.1.2.1.3 Discharge planning will be conducted consistent with person-centered planning practices.
6.5.1.2.1.4 Family mentor/peer mentor services will be offered to all individuals in this category.
6.5.1.2.2 For individuals who are likely to require more than one year to prepare for discharge, the PASRR Assessor will work with the individual, family members/guardian and other service providers to identify the skills the individual may need for community placement and how specialized services will be provided to develop these skills, and to address any barriers to community placement.
6.5.1.2.2.1 The PASRR Assessor will meet with the individual and family members/guardian at least annually to identify ifthe individual is likely to be discharged within one year.
6.5.1.2.2.2 Family mentor/peer mentor services will be offered to all individuals in this category.
6.5.1.2.2.3 Visits to, or meetings with, residential, day and employment providers will be offered.
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6.5.1.2.2.4 Discharge planning will be conducted consistent with person-centered planning practices.
6.5.2 Training Outcomes
6.5.2.1 Defendants will provide training to PASRR Assessors on person-centered planning.
6.5.3 Metrics
6.5.3.1 Defendants will include in quarterly reports information about Class Members who have not been discharged from a nursing facility within 180 days of the initial Post-PASRR Level II meeting, whether the individual has been identified as being able to be placed in an community based alternative, whether the individual is willing to be placed in a community based alternative, and, if the individual is able to be placed in the community and wants to be placed in the community, the next steps to ensure placement, and anticipated transition timeline.
6.5.3.2 This outcome will have been met for current Class Members when placement in an alternative community based alternative occurs for 95% of current Class Members who are identified as (1) able to be placed in a community based alternative and (2) willing to be placed in a community based alternative. An individual shall not count against compliance if they are no longer able to be placed in a community based alternative or no longer desire to be placed in a community based alternative. An individual also shall not count against compliance if he or she is offered a viable placement that meets his or her needs, but the individual or his or her guardian does not accept the placement. If this metric is met, but the percentage is not 100%, the Defendants will disclose the circumstances of those individuals to Class Counsel.
6.5.3.3 This outcome will have been met for new Class Members (admitted to facilities after the effective date of the Settlement Agreement) when, starting in July 2017, and for four consecutive quarterly reports, 95% of new Class Members who are able to be placed in a community based alternative placement and are willing to be placed in a community based alternative placement discharge from the nursing facility within one year of the date the individual enters the facility or from the date the individual is both able to be placed in a community based alternative placement and willing to be placed in a community based alternative placement. An individual shall not count against compliance if they are no longer able to be placed in a community based alternative or no longer desire to be placed in a community based alternative. An individual also shall not count against compliance if he or she is offered a viable placement that meets his or her needs, but the individual or his or her guardian docs not accept the placement. If this metric is met, but the percentage is not 100%, the Defendants will disclose the circumstances of those individuals to Class Counsel.
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6.6 Goal - An individual's choice to transition, or not transition, to the community should be an informed one, and that choice will impact the level of transition planning provided. For Class Members who are able to live in the community but who have rejected or whose family members/guardians have rejected alternative community placement, Defendants will meet the following policy objectives:
6.6.1 Policy Outcomes:
6.6.1.1 The PASRR Assessor will describe mentor services to all individuals in this category, and if the individual and/or guardian agrees, will arrange for a family or peer mentor to contact the individual and/or guardian to further discuss and/or offer mentorship services. If the individual accepts mentorship services, the PASRR Assessor will offer to invite the mentor to pai1icipate in Post-PASRR Level II or follow-up meetings.
6.6.1.2 After the Post-PASRR Level II Meeting(s), the PASRR Assessor and/or the RCL Case Manager will contact the individual and, if appropriate, their family members/guardians, at least annually, to update them regarding the range of options for community placement.
6.6.1.3 Defendants will provide guidance to Community Access providers that service goals and activities may include exposure to community-based alternatives.
6.6.2 Training Outcomes
6.6.2.1 Defendants will provide training to PASRR Assessors on personcentered planning.
6.6.3 Metrics
6.6.3.1 Defendants will include in biannual reports information about the number of Class Members who have refused community placement who have met with a peer mentor or their family members have met with a family mentor and later expressed a willingness to consider community placement.
6.6.3.2 Defendants will include in quarterly reports information about the number of Class Members offered mentorship services and the number of Class Members who participate in mentorship.
6.7 Goal - An individual's choice to transition, or not transition, to the community should be an informed one, and that choice will impact the level of transition planning provided. For Class Members who are not able to live in the community presently Defendants will meet the following policy objectives:
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6.7.1 Policy Outcomes
6.7.1.1 At the Post PASRR Level II Meeting(s), the PASRR Assessor will document the reasons why the individual is not able to live in the community.
6.7.1.2 The PASRR Assessor shall ensure recommended specialized services are provided to each individual with reasonable promptness. If a specialized service is not provided within 90 days, and the individual has not refused the service, the Assessor shall document the reasons for delay and the appropriate steps that will be taken to address the delay. If the individual refuses one or more specialized services, the Assessor shall document the refusal and any steps taken to offer alternatives to address the individual's concerns.
6.7.1.3 The PASRR Assessor shall contact the individual and family members/guardian, if appropriate, every six months to determine whether the individual's condition has changed such that a new Level II evaluation is appropriate to assist with determining whether the individual will be able to pa11icipate in transition and/or discharge planning.
6.7.2 Training Outcomes
6.7.2.1 Defendants will provide training to PASRR Assessors on personcentered planning.
6.8 Goal - The Defendants will take steps to ensure adequate community provider capacity for individuals who are able to and desire community transition.
6.8.1 Policy Outcome
6.8.1.1 At PASRR Regional Monthly Meetings, Defendants will identify and take steps to address discharge barriers for any individuals who have requested community transition that is delayed over 90 days by providers declining referrals, inadequate housing resources, or other indicators of insufficient network capacity.
6.8.2 Metrics
6.8.2.1 Defendants will include in quarterly repo11s information about the percentage of individuals desiring discharge and whose total needs can be met in an appropriate community setting whose case managers identify potential community based providers within 90 days of the individual being assigned to a case manager.
6.8.2.2 Defendants will include in quarterly repo11s information about the percentage of individuals who have been assigned a case manager who
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have packets sent to potential providers within 120 days of the individual being assigned to the case manager.
6.8.2.3 Defendants will include in quarterly reports information about the percentage of individuals who have been assigned a DDA RCL case manager to develop and implement a transition plan who discharge by the move target date. If the move target date is amended based on an individual's circumstances the instance shall be compliant ifthe individual discharges by the amended move target date.
6.10 Services for Adam Dunakin
6.10.1 The Defendants agree to not contest Dr. Hill's determination that Adam Dunakin has a condition or conditions related to an intellectual disability and that he will benefit from the provision of services similar to those provided to individuals with an intellectual disability.
6.10.2 Defendants will conduct a PASRR Level II evaluation of Mr. Dunakin with Class Counsel present, taking into account the information and recommendations of declarations of Dr. Deborah Hill as described in her two declarations in this matter.
6. I 0.3 Defendants will ensure recommended occupational, respiratory, and speech therapy evaluations are conducted regarding Mr. Dunakin's needs.
6. I0.4 Defendants will ensure recommended assessments will be conducted of Mr. Dunakin's needs for assistive technology that would help him prepare for community-based alternative living placement at some point in the future or reach the highest practicable level of functioning in his current setting.
6. I 0.5 Defendants will refer Mr. Dunakin to the appropriate program to explore community-based alternatives that will meet all assessed needs.
6. I 0.6 While the settlement agreement is in effect:
6. I0.6. I Defendants will notify Class Counsel in advance of the Level II evaluation described in Section 8(b).
6. I 0.6.2 Defendants will instruct Mr. Dunakin's nursing facility to provide the Defendants with advance notice of PASRR-related evaluations, including the evaluations described in Sections 8(c) and 8(d). When Defendants receive notice, they will notify Class Counsel.
6.10.6.3 Defendants will notify Class Counsel in advance of other PASRR-related meetings with Mr. Dunakin and DDA or HCS staff, such as the Post-PASRR Level II Meetings and follow-ups contemplated by Appendix A.
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6.10.6.4 Defendants will copy Class Counsel on all correspondence with Mr. Dunakin.
6.11 Nursing Facility Maintains Legal Obligations: Nothing in this Agreement is intended to reduce, limit, expand or enhance a nursing facility's existing legal obi igations.
6.12 Federal Requirements: Nothing in this Agreement is intended to reduce, limit, expand or enhance existing federal legal requirements.

7. Monitoring Implementation and Outcomes

7.1 Defendants will provide Class Counsel with quarterly and biannual reports as established above in Section 6.

7.2 The parties agree to discuss quarterly and biannual reports by teleconference or in-person meetings if either paity requests a teleconference or meeting within thirty (30) days of Class Counsel receiving Defendants' outcome reports. The purpose of these communications is to ensure a common understanding of the data and provide for informal discussion regarding implementation of this Agreement. Any dispute regarding Defendants' compliance with the Agreement will be addressed pursuant to Section 10 below.

8.

Duration of the Agreement. The Parties anticipate Defendants will complete

implementation of this Agreement on or about September 30, 2020, and that the Paities'

obligations herein will terminate, if at that time Defendants demonstrate they have

substantially complied with the metrics described in Section 6. At that time, the metrics

set forth Section 6 will be the sole objective measures that, when accomplished, will

indicate the State of Washington is in substantial compliance with the terms of this

Agreement such that the lawsuit herein will be dismissed.

8.1 The Defendants shall achieve full compliance with any specific metric listed in Section 6 by satisfying the terms of that metrics. If the Defendants achieve the full compliance measure for a specific outcome at any time prior to the end of this Agreement, that outcome will no longer be monitored by or enforceable by the Plaintiff.

8.2 At any time prior to the expiration of this Agreement, if the Defendants have achieved the full compliance measure for each and every outcome listed in Section 7 of this Agreement, the paities shall jointly seek a cou11 order asking for termination of this Agreement and dismissal of the case.
9. Attorneys Fees and Litigation Costs. The parties agree that for the purposes of attorneys
fees and litigation costs only, the Class is the prevailing patty in this matter.
9.1 Within ten business days after the Agreement is finally approved by the Cou11, Class Counsel shall provide Defendants with a copy of Class Counsel's time entries (with redactions, where appropriate) and cost ledger. No later than

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10 business days after receipt of Class Counsel's time entries, Defendants must elect either Option I or Option 2. Defendants' election must be in writing. If Defendants fail to elect either Option, the Settlement Agreement presumes that Defendants elect Option 1. The entries will be sufficiently detailed for a reasonable person to determine the exact nature of work performed and how it relates to the hours claimed. Within the ten day period prior to electing an option, Defendants are permitted to make one request for clarification or additional information regarding Class Counsel's time entries and supporting documentation. The period Defendants have for making their election will toll while awaiting Class Counsel's response to its request for clarification, and may continue to toll at Class Counsel's discretion.

9.1.1.

Option 1: Payment ofLodestar without Multiplier. Defendants shall pay Class Counsel its fees, based on the lodestar method without a multiplier, as reflected in the time entries provided in Section 9.1 above Defendants shall also pay Class Counsel's actual litigation costs as reflected in the cost ledger provided in Section 9.1 above.

9.1.2.

Option 2: Trial Court Resolution of Fees and Costs. Pursuant to Rules 23(h) and 54 (d), Class Counsel will file a motion for attorneys fees and allowable litigation costs along with documentation supporting the request. Consistent with existing law, Class Counsel may seek a multiplier or enhancement of their attorneys fees. Defendants will respond in the time called for under the rules, and may seek a reduction of the attorneys fees sought. The trial court shall award reasonable fees and costs to Class Counsel to be paid by Defendants. Either party reserves the right to appeal the amount of the award.

10. Di~pute Resolution

10.1. Any claim, dispute, or other matter in controversy (dispute) arising out of or related to this Agreement, or the breach, implementation or performance thereof, shall be resolved according to the procedure set forth below.

10.2.

The parties agree to convene, at a mutually agreeable time and place, and use their good-faith, best effo1is to discuss and resolve the dispute. This initial meeting will be a direct negotiation between the paities without the assistance of a mediator or other non-party.

10.3 If the paities are unable to resolve the dispute within 30 days, or such other time frame upon which the parties mutually agree, they may engage the mediation services of a mutually agreeable mediator for the purpose of mediating a resolution to the dispute.

I0.4 Either party may file an appropriate motion with the United States District Court in this matter after participating in the meeting described in Section 10.2. The moving parties' counsel shall provide the appropriate notice to the opposing paity' s counsel of such action.

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11. Other Provisions
11.1 This Agreement contains all the terms and conditions agreed upon by the Parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto.
11.2 The parties have participated and had an equal opportunity to pa11icipate in the drafting and approval of drafting of this Agreement. No ambiguity shall be construed against any party based upon a claim that the pat1y drafted the ambiguous language.
11.3 Governing Law. This Agreement shall be governed by the laws of State of Washington without regard to conflict of law principles except to the extent such law may be pre-empted by federal law.
11.4 Venue. If any action is necessary to enforce the provisions of this Agreement, venue shall be had in the Western District of Washington.
11.5 Principles of Interpretation. The following principles of interpretation apply to this Agreement:
11.5.1 Headings. The headings herein are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement.
11.5.2 Singular and Plural. Definitions apply to the singular and plural forms of each term defined.
11.5.3 References to a Person. References to a person include references to an entity, and include successors and assigns.
11.6 Signors of this Agreement represent and warrant they have full power and authority to enter into this Agreement and to carry out all actions required of them to the extent allowed by law. Each of the signors warrants that he/she has fully read and agrees to all the terms and conditions contained herein. Each of the Parties agree, without fm1her consideration and as part of finalizing the Settlement hereunder, that they will in good faith promptly execute and deliver such documents and take such other actions as may be necessary to consummate the subject matter and purpose of this Agreement.
I I. 7 Survival. All representations, warranties and covenants set forth in herein shal 1 be deemed continuing and shall survive the Effective Date of Settlement.
11.8 Entire Agreement. This Agreement contains the entire agreement among the Parties relating to this Settlement.
11.9 Modifications. This Agreement may be amended by mutual agreement of the parties and approval of the Court. In order to be binding, such amendments must
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be in wntmg, signed by persons authorized to bind each of the parties, and approved by the Court. The pai1ies further agree to work in good faith to obtain Court approval of necessary amendments or modifications.
11.10 FrustraNon ofpurpose/force majeure. If the Defendants are unable to accomplish any of their obligations or meet timeframes under this Agreement due to events beyond their reasonable control (such as natural disaster, labor disputes, war, acts of God or governmental action beyond state control), Defendants shall notify Class Counsel with ten (10) business days of the date upon which Defendants become aware of the event and describe the event and its effect on performance. If performance is expected to be delayed or the event frustrates the purpose of the Agreement, the parties shall negotiate in good faith to amend the Agreement and seek approval of the Court for such amendment. If the Class does not agree to the amendment of the Agreement, the Class has the option of either litigating Defendants' breach of the Settlement Agreement or resuming this litigation as of April 4, 2016. To the extent Defendants have caused the payment of attorneys fees, litigation costs and incentive awards under this Agreement prior to the time of notification under this paragraph, neither Class Counsel, Plaintiff Dunakin nor the Class shall be responsible to repay any of those payments.
11.11 Severability. The provisions of this Agreement are not severable.
11.12 This Agreement shall inure to the benefit of and be binding upon the legal representatives and any successor(s) of Plaintiffs and Defendants.
11.13 If, for any reason, the Court does not approve this Agreement and the Stipulated Judgment as a fair, reasonable, and adequate settlement of this litigation as between the Plaintiffs and Defendants, this Agreement shall be null and void.
11.14 This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which taken together shall constitute a single instrument. This Agreement may be executed by signature via facsimile transmission or electronic mail which shall be deemed the same as an original signature.
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SIGNATURES:

WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES,
By~~~~~~~~~~~~~~~~-
PATRICJA LASHWAY, Director, m her official capacity

DATED: _ _ _ _ _ _ __

WASHINGTON STATE HEALTH CARE AUTHORITY,
By _ _ _ _ _ _ _ _ _ _ _ _ _ __
DOROTHY F. TEETER, Director, m her official capacity

DATED:

ADAM DUNAKIN

DATED:

KIMBERLEE HOLLINGER
By~~~~~~~~~~~~~~~~-
Next Friend and Mother of Adam Dunakin

21
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APPROVED:
DISABILITY RIGHTS WASHINGTON
-.USA'N KAi,WSBANo. 36592
SIRIANNI YOUTZ POONEMORE HAMBURGER
WSBA No.J647
;_
Attorneys for the Plaintiff and the Class ROBERT W. FERGUSON ATTORNEY GENERAL OF WASHINGTON
ANGELA COATS MCCARTHY, WSBA No. 35547 MATTHEW KING, WSBA No. 43186 Assistant Attorneys General Attorneys for Defendants
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APPROVED:
DISABILITY RIGHTS WASHINGTON

SUSAN KAS, WSBA No. 36592
SIRIANNI YOUTZ SPOONEMORE HAMBURGER

ELEANOR HAMBURGER, WSBA No. 36478 Attorneys for the Plaintiff and the Class

ROBERT W. FERGUSON ATTORNEY GENERAL OF WASHINGTON

C1,,vv do~(~af, 1 ?Yi c \/ · la_/~

ANGE A COATS MCCARTHY, WSBA MATTHEW KING, WSBA No. 43186 Assistant Attorneys General Attorneys for Defendants

. 35547

22
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APPENDIX A
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1. Consistent with person-centered practices, the Defendants agree to conduct a Post-PASRR Level II Meeting following the Level II for individuals who are confirmed to have an intellectual disability or related condition and who continue to reside in a nursing facility, and create a PASRR Follow-Up Meeting form to memorialize the meeting.
2. Post-PASRR Level II
a. Timing
1. The Post-PASRR Level II Meeting will occur within 90 days of the completion of a Level II, including a Level II completed after a significant change in condition, unless the PASRR Assessor determines that the meeting is impossible or inappropriate in the individual's case. Examples of circumstances that would make a meeting impossible or inappropriate include, but are not limited to:
1. The individual refuses to participate; 2. The individual's medical condition is so severe that he or she is unable
to participate in such a meeting; 3. The individual or guardian asks for postponement of the meeting until
a future date.
IL If the Post-PASRR Level II Meeting is not held within 90 days of the completion of a Level II, notification of the fact that the meeting will not be held and the basis for that decision will be sent to the individual and any applicable legal guardian or Necessary Supplemental Accommodation representative (NSA).
Ill. Examples of situations that would indicate the Post-PASRR Level II Meeting should occur earlier include:
1. The individual's medical condition is expected to change significantly over a period of less than 90 days, in a way that might affect the individual's ability to participate in specialized services or transition to a community setting; or
2. The individual requests that the Post-PASRR Level II Meeting be held sooner.
IV. These meetings are in addition to the Level 11, and any other follow-up that the Assessor may conduct with other involved persons, such as nursing facility staff, specialized services providers, or case managers.
b. Post-PASRR Level II Meeting Participation
1. Participants at the Post-PASRR Level II Meeting will include the PASRR Assessor, the individual, the individual's guardian or family members if

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1 Appendix A

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appropriate, nursing facility staff if available, service providers if available, the Family Mentor and/or Peer Mentor if available and appropriate, and the individual's case manager if one exists.
c. Post-PASRR Level II Meeting Content
1. Prior to the Post-PASRR Level II Meeting, the PASRR Assessor will compile service plans or other relevant documents, including Level Ils, any completed professional evaluations, the nursing facility care plan, and any service plans created by specialized service providers.
11. At the Post-PASRR Level II Meeting, the PASRR Assessors and participants will discuss the service plans, the individual's specialized services as defined by 42 C.F.R. § 483.120, transition, and/or discharge goals and objectives, whether the service plans are advancing those goals and objectives, and whether any additional services are necessary.
111. The content of the meeting will be summarized in the PASRR Follow-Up Meeting form and sent to the individual and guardian or NSA if applicable.
d. PASRR Follow-Up Meeting Form
1. The Defendants will create a PASRR Follow-Up Meeting form to guide the PASRR Assessor through the topics of the follow-up meetings, as discussed above, to record the content of the discussion, to record the participants, to outline next steps, and to advise the individual, guardian, meeting participants, service providers, and nursing facility staff of the outcomes of the meeting and the planned interval until the next follow-up. The Defendants will provide a copy of the draft form to Class Counsel and provide 30 days for review and comments. The Follow-Up Meeting form will be provided to the client along with documentation reviewed at the meeting.
3. Follow-Up Contact
a. After the Post-PASRR Level II Meeting, the PASRR Assessor will contact the individual and/or any applicable guardian or NSA at least every six months (unless the PASRR Assessor determines that the contact would be impossible or inappropriate), or more frequently as necessary depending on the individual's specific circumstances. This will also occur if the individual has refused the Post-PASRR Level II. The PASRR Assessor will determine based on an individual's circumstances whether the meeting should occur in-person, but it will be held inperson if requested. There will be at least one face-to-face contact each year, unless the PASRR Assessor determines that it would be impossible or inappropriate. In that situation the PASRR Assessor will provide written notice to the individual and guardian or NSA about the availability of a face to face meeting. The content of the follow-up contact would include at a minimum the status of any specialized services

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2 Appendix A

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and/or discharge plan, regardless of whether the individual previously received specialized services or expressed interest in community transition. The follow-up contact will be documented in a service episode record.
1. Participation during Follow-Up Contacts will include the PASRR Assessor, the individual and the individual's guardian or family members. Others may be invited at the individual's request or the PASRR Assessor's professional discretion.

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3
Appendix A

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Appendix 2

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Proposed Notice of Settlement Agreement and Fairness Hearing for Dunakin v. Lashway No. NO. 2:14-cv-00567-JLR, a Case about Services for Private Nursing Facility Residents with Intellectual Disabilities and Related Conditions.
Dunakin. v. Patricia Lashway and Dorothy Teeter, NO. 2:14-cv-00567-JLR, involves Preadmission Screening and Resident Review (PASRR) screening, evaluation, and services for private nursing facility residents with intellectual disabilities and related conditions (ID/RC) in Washington State.
PASRR is a special set of requirements to make sure individuals with ID/RC are not put in nursing facilities against their preferences if they can safely live with supports somewhere else in the community. PASRR also ensures that individuals with ID/RC who live in nursing facilities receive the "specialized services" they need to learn skills and increase their independence. PASRR includes a "Level I screen" to find the people going into nursing facilities who may have an ID/RC. PASRR also includes a "Level II evaluation" to decide what services and settings are appropriate.
The parties have reached an agreement in this case to improve PASRR Level I screening and Level II evaluations, as well as to make sure residents can get recommended services in the right settings. The parties filed this agreement with the Court, which preliminarily approved the agreement. Before the agreement is final, you have an opportunity to review the agreement for yourself and let the court know what you think. The Court will hold a fairness hearing. In this hearing, the Court will consider the comments it receives from people who are interested in the agreement. The Court will then make a final decision about whether the agreement is fair, reasonable, and adequate.
Background About the Lawsuit
The Dunakin lawsuit is a class action. In a class action, one individual represents many more people (referred to as the "class") who have the same legal issues. The case was filed in 2014 against the Secretary of the Washington State Department of Social and Health Services (DSHS) and the Director of the Washington State Health Care Authority (HCA) by one individual (referred to as the "class representative"). He is a resident at a privately-operated nursing facility who has a condition related to an intellectual disability.
In April 2015, the Court ruled the outcome of the case will apply to him and others who:
(a) are or will be residents of Medicaid-certified, privately-operated nursing facilities in the State of Washington; and
(b) are Medicaid recipients with an intellectual disability or related condition(s) such that they are eligible to be screened and assessed pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R. § 483.122 et seq..
Attorneys from Disability Rights Washington (DRW) and the law firm of Sirianni Youtz Spoonemore Hamburger represent the class.
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Summary of the Settlement Agreement
PASRR Services
The Settlement Agreement lists seven goals for improving the PASRR screening, evaluations, and services. The goals of the agreement include:
1. Timely and adequate PASRR Level I Screening 2. Timely, adequate and appropriate PASRR Level II evaluations 3. Post-PASRR Level II Meetings and Monitoring 4. Informed Choice and Transition Planning for Class Members Who Could and
Would Prefer to Live in Community-Based Settings 5. Informed Choice and Transition Planning for Class Members Who Could but
Would Prefer Not to Live in Community-Based Settings 6. Informed Choice and Transition Planning for Class Members Not Able to Live in
Community-Based Settings 7. Ensuring Adequate Community Capacity
For each goal, the agreement includes policy outcomes, training outcomes, and metrics.
The policy outcomes describe the procedures DSHS will use to achieve each goal. The policy outcomes include these key elements:
• Checking Level I screens at Nursing Facilities to ensure these correctly identify individuals with ID/RC who need further evaluations
• Ensuring Level 11 evaluations clearly indicate whether the individual needs Specialized Services and if so, the full range of specialized services that are recommended
• Establishing a Post-Level II planning and monitoring process to track implementation of Level II recommendations
• Assigning case managers or assessors to develop and implement transition plans for class members who are willing and able to discharge
• Offering Family Mentor Services to residents and their families • Providing Specialized Services with reasonable promptness
The training outcomes for each goal describe what screeners, evaluators, and case managers will be taught to do in order to correctly follow the procedures in the policy outcomes. The training outcomes include these key topics:
• Level I Screening for hospital and nursing facility employees • Identification of evidence and documents to make Level II determinations • Guidance for when Level II evaluations should refer for further specialized
evaluations • Post-PASRR Level II planning and monitoring processes • Person-Centered Planning for PASRR Assessors
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Finally, the metrics for each goal include data that will be reported every three to six months to show whether the policy and training outcomes are being effectively implemented. Key metrics include:
• Percentage of Level I screens that were completed correctly • Percentage of Level II evaluations that were completed on time • Percentage of Level II evaluations that document reasons for determinations • Percentage of class members who receive recommended evaluations and/or
specialized services within 90 days • Percentage of current class members willing and able to discharge who have
been placed in a community-based alternative • Percentage of future class members preferring a community-based alternative
who do not remain in a nursing facility for more than one year
The parties anticipate Defendants will complete implementation of the Settlement Agreement on or about September 30, 2020. All obligations under the agreement will end if Defendants meet the agreed standards for all metrics. The metrics are the only measures that can show the state of Washington has met its obligations, and allow the Court to dismiss the case. If the state of Washington is in substantial compliance, the lawsuit will be dismissed.
Attorneys Fees and Costs
The defendants have agreed to pay the class's attorney fees and costs for the time and money Class Counsel has spent on this case. The amount of fees and costs will be negotiated in the future and approved by the Court, or will be decided by Court if the parties cannot agree on the amount.
Additional Information
This is just a summary of the Settlement Agreement. If you want to learn more about the Settlement Agreement, you have these options:
Read the entire Settlement Agreement. If you or someone you know may be a class member, learn more about your rights at:
[website]
There, you will find additional information. The site includes a copy of the full proposed Settlement Agreement. It also includes documents that describe PASRR evaluations and specialized services.
Ask questions. The Settlement Agreement is long and full of detailed information. Disability Rights Washington (DRW) is available to answer your questions. DRW is one of the organizations serving as the attorneys for class members. Talking to DRW does not cost you any money. You can call them toll-free at 1-800-562-2702.
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How to Submit Your Comments Anyone who wishes to comment on the Settlement Agreement, either for or against it, may do so by submitting their comments in writing or by attending the fairness hearing. To submit your comments to DRW or to the Court: You may submit written comments via mail, e-mail or other means. Submit comments to Disability Rights of Washington at: Disability Rights Washington 315 5th Ave. S., Suite 850 Seattle, WA 98104 [address]@dr-wa.org Any comments received by DRW, or any listed class counsel in this case, will be provided to the Court. Statements may also be provided directly to the Honorable Judge, James L. Robart. Written comments must be received by the Judge no later than _ _ _ _ _ __ Submit comments to the court at: United States District Court for the Western District of Washington, Seattle 700 Stewart St., Ste. 15229, Seattle, WA 98101 To attend the fairness hearing: Oral comments may be made at the fairness hearing to be held in Seattle on
The address to appear for the hearing is: United States District Court for the Western District of Washington, Seattle 700 Stewart St., Suite. 15229, Seattle, WA 98101
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