(SPACE BELCU FOR FILING STAMP ONLY)

1 Francis X. Hardiman Bar #14050+
Margaret M. Cahill Bar #138231

2
HARD (MAN 4 CAHILL

A t t o r n e y s a t Law

3

1560 BrooUioUow

Suite 11-1

4

SANTA ANA. CALIFORNIA K705 (714) 556-1X33

Facsimile (714) 556-5223

-5

Attorneys tor R i c h a r d S. e t a l .

6

Richard S. v Dpnt nf n Hill Illll II IIIIIII iiiiiTinSii.«.... ®.yel°Pr
MR-CA-004-0C

ofCal.

7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R., VALDZNA )

R., and ROES 1 through 800,

12 individually and on behalf of all those similarly situated by

13

WILLIAM CA3LE, M.D. as Guardian ad Litern

14

Plaintiffs,

15

vs

16 DEPARTMENT OF DEVELOPMENTAL

)

SERVICES OF THE STATE OF

" )

17 CALIFORNIA, FAIRVIEW

)

DEVELOPMENTAL CENTER, SOUTH

)

18 COAST REGIONAL PROJECT, HAR30R ) REGIONAL CENTER, REGIONAL CENTER )

19 OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL )

20 LOS ANGELES REGIONAL CENTER,

)

WESTSIDE REGIONAL CENTER, DENNIS )

21 G. AMUNDSON, as Director of the )

DEPARTMENT OF DEVELOPMENTAL

)

22 SERVICES STATE OF CALIFORNIA, )

HUGH KOHLER, as Executive

)

23 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER, LILIA TAN )

24 FIGUEROA, M.D., as Medical

)

Director of FAIRVIEW

)

25 DEVELOPMENTAL CENTER, DAWN

)

LEMONDS as director of SOUTH

)

26 COAST REGIONAL PROJECT, and Does )

1 through 500, inclusive,

)

27

)

Defendants . ) 28

CASE NO:
EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND APPLICATION TO SHOW CAUSE RE: PRELIMINARY INJUNCTION; MEMORANDUM OF OPPOSING COUNSEL [Local RUle 7.18]
Date: March 20, 1997 Time: 10:00 a.m. Place: Federal District Court, Santa Ana, California

1

JURISDICTION

2

1. This action is brought pursuant to Title V §503 the

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12203(a)

and (b) and 42 U.S.C. § 12203(c), the Civil Rights Act of 1991,

42 U.S.C. §§ 1983, 1988, the Court's supplemental jurisdiction,

28 U.S.C. § 1367.

2. . The jurisdiction of this Court is predicated on (a)

28 U.S.C. §§ 1343(3) and (4) and 1331, the All Writs Act, 28

U.S.C. §1651(a) and, (b), F.R.Civ.P. 65.

10

VENUE

11

3. Venue is proper in the United States District Court

12 for the Central District of California because a substantial

13 part of the events or omissions giving rise to the claims herein

14 occurred in this District.

15

STANDING

16

4. William Cable, M.D. for and on behalf of P l a i n t i f f s

17 CYNTHIA R., VALDINA R. and those ROES 1 through 800, inclusive,

18 who are similarly s i t u a t e d , as their Guardian ad Litem for

19 purposes of t h i s action, asserts the right to bring a claim for

20 i n j u n c t i v e r e l i e f because of the close doctor/patient

21 r e l a t i o n s h i p between Cable and the named P l a i n t i f f s herein and

22 because of the fiduciary relationship arising out of Cable's

23 d u t i e s and obligations as Chief of the Medical Staff a t Fairview

24 Developmental Center which circumstances provide an exception to

25 t h e r u l e of jus t e r t i i as set forth in Singleton v. Wulff, 428

26 U . S .1 0 6 ,96 S . C t . 2868, 49.LEd.2d826 (1976).

27

ADMINISTRATIVE REMEDIES

28

5. Plaintiffs elected not to pursue administrative

2

remedies. Pursuant to 28 C.F.R. PART 35 "at supplementary

information" i t s t a t e s : "This regulation implements s u b t i t l e A

of t i t l e II of the ADA, which applies to State and local

governments". 28 C.F.R. PART 35, §35.172 further s t a t e s :

5

"The Act requires the Department of Justice

6

to establish administrative procedures for

7

resolution of complaints, but does not

8

require complainants to exhaust these

9

administrative remedies. The Committee

]0

Reports jnake clear that Congress intended to

11

provide a private right of action with the

12

full panoply of remedies for individual

13

victims of discrimination. Because the Act

14

does not require exhaustion of

15

administrative remedies, the complainant may

16

elect to proceed with a private suit at any

17

time."

18

NECESSITY FOR TRO

19

6. Patients at Fairview Developmental Center, Costa Mesa,

20 California are being discharged to community placement where the

21 known mortality rate, in California, is 72% higher than the

22 institution. There have been increasing reports of death and

23 injuries in the community reported to Fairview physicians within

24 the past three months believed to be the result of expedited,

25 inappropriately placed discharges. The Chief of the Medical

2 6 Staff was retaliated against and suspended for ten days without

27 pay when opposing client discharges

28

7. Regional centers, responsible for selecting clients

for discharge have been subject to the threat of financial

penalties for not meeting Coffelt exit quotas.

8. Clients without conservators nor physicians are

"authorized representatives" with standing to invoke "Fair

Hearings under California Welfare & Institutions Code §4700 et

seq.

9. . Clients, especially those without conservators, are

being denied basic due process in the exiting process.

10. Regional Centers are preferentially selecting clients

10 without parents or conservators for discharge.

11

11. Patients without adequate representation, due process,

12 or remedies to prevent inappropriate placement on medical or

13 safety grounds, are being placed at an immediate and

14 unreasonable risk of harm.

15

12. Fairviev/ has begun to accelerate FDC discharges to

16 community placement in anticipation of a large influx of

17 clients, estimated at 300 residents, being transferred from

18 Camarillo State Hospital to Fairview. The State of California

19 announced the proposed closing of Camarillo State Hospital, in

20 Ventura County, for this summer.

21

13. Three to four weeks for noticed motion may cost some

22 l i v e s .

23

I

24

REQUESTED RELIEF

25

14. A temporary restraining order and preliminary

2 6 injunction restraining the Department of Developmental Services

27 of the State of California (DDS), Fairview Developmental Center

28 (FDC), South Coast Regional Project (SCRP) and five (5) Regional

Centers (RC) from conducting any "exit conferences", at FDC or

elsewhere, regarding planned discharge of FDC developmentally

disabled clients from FDC to non-institutional placement during

the pendency of this action.

15. A temporary restraining order and preliminary

injunction restraining Defendants from discharging or

transferring from FDC to other California developmental centers

or to non-institutional placement any adult client who has no

conservator of the person, during the pendency of this action.

10

16. Defendants undertook expedited discharge of 2000

11 clients from State Developmental Centers (a.k.a. State

12 Hospitals) starting in mid 1993 pursuant to a class action

13 settlement known as COFFELT. COFFELT called for discharge of

14 these patients over five years.

15

17. Beginning in 1994 Defendants were appraised of studies

16 showing, in California, almost double the mortality in the

17 community compared to the institutions. The studies had been

18 performed at the "Life Expectancy Project" at the University of

19 California, Riverside by Dr. David Strauss, a Cambridge trained

20 statistician, under a National Institutes of Health (NIH) grant.

21

18. Increasing reports were filtering back to DDS and RC

22 physicians of disturbing cases of death and injury. Newspapers

23 reported deaths of large numbers of children in community homes.

24

19. Notwithstanding the warning signals in the published

25 scientific literature and increased anecdotal reports, or

2 6 perhaps because of them, Defendants acccelerated their already

2 7 expedited discharge plans and completed all COFFELT placements

28 in mid 1996 a full two years ahead"of schedule. Expedited

.1

discharges were facilitated by threatened imposition of

financial penalties against Regional Centers for failure to meet

COFFELT quotas.

20. Beginning in 1994 certain staff physicians at FDC,

primarily the former and present Chiefs of the Medical Staff,

opposed at "exit conferences", or by way of declaration in a

pending state court action, certain COFF2LT discharges on

medical and safety grounds.

21. Almost immediately thereafter, the present and

10 previous Chiefs of the1 Medical Staff, at FDC, were charged with

11 either incompetence, or in the case of Harvard trained and NIH

12 alumnus, Dr. Cable, with violations of California Government

13 Code §19572, disciplined pursuant to California Government Code

14 §19574, suspended without pay and transferred from COFFELT "exit

15 conference duties" and by other acts retaliated against for

16 alleged "dishonesty", "inexcusable neglect of duty" and

17 "disregard of the Department's well established goal of

18 community placement of clients".

19

22. None of these physicians are "disability rights

20 activists", iiohe. had opposed State policy and their resistance

21 to discharge was based solely on medical and safety grounds in

22 individual cases.

23

23. Most of the remaining disabled at FDC are severely or

24 profoundly retarded, with serious medical problems, dual

25 diagnosed with a coexisting mental illness, on high doses of

2 6 mutiple medications and incompetent to consent to transfer.

27

24. Most are non-judicial "voluntary" admissions and have

28 never had a judicial determination of competency.

1

25. At "exit conferences" physicians are not "authorized

21 representatives" (W&I §4701.6) to object to community placement

(W&I §4803) in cases where such objection is appropriate.

26. At "exit conferences" parents or family, who are not

conservators, are not "authorized representatives" (W&I §4701.6)

to object to community placement (W£I §4803) in cases where such

objection is indicated.

27. Many of the parents of adult "clients" have died, are

themselves too elderly or infirm to participate in exit

10 conferences and,.even if alive, receive no notice of such 11 conference.

12

28. When no objection from an authorized representative is

13 received at an exit conference a certificate of "no objection"

14 is signed and issued by a regional center representative. This

15 certificate authorizes the community home to accept transfer of

16 the client from the hospital.

17

29. The State and DDS/RC have a financial stake in

18 expediting downsizing and/or closure of State Developmental

19 Centers.

• .

20

30. Defendants have a significant conflict of interest in

21 the discharge process and can not be relied upon to act, and

22 have not acted, in the best interests of Plaintiffs.

23

31. Based upon COFFELT discharge data for this geographic

24 area it is estimated that there are approximately 150 to 200 FDC

25 clients who are without parent or guardian "involved" and who

26 have no conservator.

27

32. Clients, without guardians or conservators, are denied

28 access to State administrative remedies. In those cases where

1 such clients parents are deceased or the family has abandoned

2 them and they are indigent, which most are, they have no means

3 to initiate a civil actions even if they had been provided with

4 State remedies.

5

33. California's statutory scheme unfairly discriminates

6 against adult clients who are without conservators who have no

7 means to object to transfer.

8

34. Community placement in California represents a

9 significantly increased risk to life and liberty. Adult

13 clients, without.conservators, are denied adequate consideration

11 concerning fundamental rights at exit conferences thereby

12 violating Constitutional Due Process. This group is denied

13 State administrative remedies and Defendants have denied

14 applicability of the American with Disabilities Act thereby

15 foreclosing Federal administrative and civil remedies.

16

35. Defendants have denied the validity of the scientific

17 and anecdotal reports. In taking this position they have not

18 promulgated regulations to correct the quality assurance

19 problems in the system and in fact have delayed such action: •

20 • 36. The totality of these circumstances represents an

21 immediate threat of irreparable harm to the lives of hundreds of

22 clients at FDC and thousands throughout the system.

23

24

III

25

INADEQUATE LEGAL REMEDY

26

37. Plaintiffs can not be adequately compensated at, law

27 for loss of life or limb.

28

1

2

A.

MEMORANDUM OF POINTS AND AUTHORITIES GENERAL AUTHORITY

3

38. The power of the federal court to issue injunctions is

4 controlled by historical equitable doctrines of "irreparable

5 harm" and "inadequate remedy at law" Miller v. California

6 Pac.Med.Ctr. . 991 F.2d. 536, 540 (9th Cir. 1993).

7

39. Courts of law and equity have merged. • Since "There is

8 but one form of civil action in federal court" (F.R.Civ.P. 2)

9 Federal courts have inherent equitable jurisdiction in actions

10 properly before them.

11

40. "Absent the "clearest command to the contrary" from

12 Congress, federal courts retain equitable powers to issue

13 injunctions in any suit over which they have jurisdiction and in

14 which equitable relief is otherwise proper" Califano v. Yamasaki, 442 U.S. 682, 705, 99 S.Ct. 2545, 2559 (1979).

41. In order for an injunction to issue a party must

17 establish the court's subject matter jurisdiction F.T.C. v.

18 H.N.Singer. Inc. 668, F.2d. 1107, 1109 (9th Cir. 1982).

\J19

42. However, Federal Courts have authority to issue

20 injunctions pending resolution of jurisdictional issues United

21 States v. UMW 330 U.S. 258, 293, 67 S.Ct. 677, 695 (1947);

22 Fernandez-Rocrue v. Smith 671 F.2d. 426, 431 (11th Cir. 1982).

23

43. F.R.Civ.P. 65 is not an independent basis for

24 jurisdiction but sets forth the types and procedures for

25 obtaining injunctive relief.

26

44. F.R.Civ.P. 65(b) states: "A temporary restraining

27 order may be granted without written or oral notice only if

28

45. F.R.Civ.P. 65(a) states: "No preliminary injunction

shall issue without notice to the adverse party."

3

4

B.

AUTHORITY FOR INJUNCTION UNDER THE ADA

5

46. When an injunction sought pursuant to a federal claim

the particular statute must be examined to determine whether

injuctive relief is authorized. Religious Technology v.

8 Wollersheim 796 F.2d. 1076,1079 (9th Cir. 1986).

9

47. Title II of the ADA at 42 U.S.C. §12202 provides:

10

"A S t a t e s h a l l not be immune under the eleventh

11

amendment to 'the Constitution of the United States

12

from an action in Federal or State court of

13

competent j u r i s d i c t i o n for a violation of t h i s Act. In

14

any action against a State for a violation of the

15

requirements of t h i s Act, remedies (including

16

remedies both a t law and in equity) are available for

17

such a v i o l a t i o n to the same extent as such

18

remedies are available for such a violation in an

19

a c t i o n against any public or private e n t i t y other than

20

a State."

21

48. Therefore, i t would appear that Congress by i t s

22 express statememt providing for a remedy in equity authorized

23 t h e provision of injunctive r e l i e f under the ADA. Further,

24 Congress' i n t e n t to exclude injunctive r e l i e f must be clear as

25 "a s t r o n g presumption m i l i t a t e s against any such finding".

26 Reebok I n t ' l , Ltd. v.Marnatech Enterprises, I n c . , 970 F.2d. 552,

27 561 (9th Cir. 1992). Additionally, the express language in the 28 s t a t u t e t h a t such remedy i s available "to the same extent" aa

- 10

available in any action against any public/private entity urges

the conclusion that a temporary restraining order and

preliminary injunction are authorized.

49. All injunctions must meet the general requirements of

"irreparable injury" and "inadequate legal remedies". Arcamuzi

v. Continental Airlines, Inc., 819 F.2d. 935, 937 (9th Cir.

1987).

50. Temporary restraining orders and preliminary

injunctions require Plaintiffs, in the 9th Circuit, to satisfy

10 additional requirements articulated as the "Traditional Test" or

11 the "Alternative Test".

12

51. Both tests require a showing of a chance of success on

13 the merits, not less than a "possibilty" of irreparable injury

14 and a balancing of the hardships to the parties. The

15 traditional test also factors in whether any public interest

16 favors granting the injunction. American Motorcyclist Ass'n v.

17 Watt 714 F.2d. 962,. 965 (9th Cir.1983). The two tests have been

18 called "a continuum of equitable discretion whereby the greater

19 the relative hardship to the moving party, the less probability

20 of success must be shown". Regents of Univ.of Calif, v. ABC,

21 Inc., 747 F.2d. 511 (9th Cir. 1984).

22

52. " "The critical element in determining the test to be

23 applied is the relative hardship to the parties. If the balance

2 4 of harm tips decidely toward the Plaintiff, then the Plaintiff

25 need not show as robust a likelihood of success on the merits as

26 when the balance tips less decidely". State of Alaska v. Native

27 Village of Venetie, 856 F.2d. 1384, 1389 (9th Cir. 1988).

28

53. The "balance of harm" evaluation should precede the

11

"likelihood of success analysis ... because until the balance of

harm has been determined the court cannot know how strong and

substantial must be Plaintiff's showing of likely success on the

merits. Direx Israel, Ltd. v. Breakthrough Med. Group, 952

F.2d. 802, 813-814 (4th Cir. 1991).

6

C.

BALANCE OF HARM

7

54. There is an immediate threat to the life and safety of

clients discharged from Fairview to community placement as shown

by the studies of Dr. David Strauss demonstrating nearly twice

10 the mortality rate in adults in the community, in California, 11 compared to the institution. Clients are entitled to 12 "reasonable safety" Younabera v. Romeo 457 U.S. 307, 319 (1982).

13

55. The risk in individual cases can not be evaluated when

14 physicians are retaliated against in attempting to obtain 15 information relevant to placement such as notification and

16 attendance of relatives, training of community home care givers

17 and denial of access to records or communication with regional 18 center physicians.

19

56. Fairview physicians have provided declarations

20 regarding increased reports of deaths and injuries. Dr.

21 Copeland has addressed the serious quality assurance problems in

22 the system. There is an unreasonable risk of harm to community

23 placement. Physicians are retaliated against for advocating for 24 their patients or for attempting to secure the safety of the 25 community placement by notifying regional center doctors of 26 deleted material from medical records.

27

57. Notification to parents that exit conferences are

28 occurring are lax. Physicians are not expected to participate

12

in the decision for discharge (Doroughty Dec.)- The remaining

disabled at Fairview, subject to immediate placement, are the

profoundly retarded and the physically involved with serious

medical problems.

58. In Heller v. Doe 509 U.S. 312, 333 (1993) the Court

cited Greenholtz v. Inmates of Neb.Penal and Correctional

Complex 442 U.S. 1,13 (1979) as follows: "The function of the

legal process, as that embodied in the Constitution and in the

realm of factfinding is to minimize the risk of erroneous

10 decisions. Because of the broad spectrum of concerns to which

11 the term must apply, flexibility is necessary to gear the 12 process to the particular need; the quantum and quality of the 13 process due in a particular situation depend upon the need to 14 serve the purpose of minimizing the risk of error".

15

59. In Heller at 314 the.Court stated: The only individual

16 interest that is protected by the Due Process Clause is an '

17 accurate decision, not a favorable one".

18

60. An accurate decision making process is not being

19 protected at Fairview.

20

61. Further, a parent, who is not a conservator, nor the.

21 physician are "authorized representatives" pursuant to

22 California Welfare & Institutions Code (W&l) §4701.6.

23 Therefore, neither person has standing to object to the

24 placement at exit conferences pursuant to W&l §4803. Nor does

25 the parent, who is not a conservator, nor the physician have

2 6 standing to institute an appeal or invoke "Fair Hearing

27 Proceedings" pursuant W&I 47 00 et seq. Further, there is no

2 8 requirement to even notify parents, who are not conservators, of

13

an exit conference.

62. Additionally, DDS or regional centers have no

obligation to follow these patients up In Re Boroqna 121 Cal.

App.3d 937, 942 " i t was pointed out, however, that no statute

requires either the center or Fairview to monitor the placement,

either during the f i r s t six months-vhich are provisional (§4508)

- or afterward - when Andrew's status as an admitee of Fairview

would expire and he would have no automatic right of

readmission" id. at 942. Therefore i t is even more important

10 t h a t an accurate decision be made at an exit conference.

11

63. There is an immediate threat of irreparable harm from

12 the lack of Due Process.

13

64. The harm to the Defendants of ten to twenty one days

14 of restraining discharges from Fairview under these

15 circumstances is minimal.

16

D . LIKELIHOOD OF SUCCESS ON UNDERLYING ACTION

17

65. Plaintiffs have a reasonable success on the underlying

18 claims.

19

E. THE ADA APPLIES TO THE STATE

20

66. 28 C.F.R. PART 35 at "SUPPLEMENTARY INFORMATION" 52 •

21 states: "This regulation implements subtitle A of title II of

22 the ADA, which applies to State and local governments".

23

67. Congress reenacted the Rehabilitation Act of 1973 by

2 4 passing the ADA, in part, because "the Rehabilitation Act and

25 its regulations have been practically a dead letter as a remedy

2 6 for segragated public services" HELEN L. V. DIDARIA, 46 F.3D

27 325, 331 (3D CIR. ) CERT DENIED - U.S. -116 S.CT. 64, 133 L.ED.2D

28 26 (1995) CITING COOK, THE AMERICANS WITH DISABILITIES ACT: THE

14

MOVE TO INTEGRATION, 64 TEMP. L. REV. 393, 394-408 (1991). F. THE ADA APPLIES TO INSTITUTIONALIZATION AND TO
DISPARATE TREATMENT AMONG THE DISABLED IN SUCH INSTITUTIONS

68. "Congress has stated that "discrimination against individuals with disabilities persists in such critical areas as ... institutionalization". 42 U.S.C. §12101 (3). If Congress were only concerned about disparate treatment of the disabled as compared to their non-disabled counterparts, this statement would be a non-sequitur as only disabled persons are 10 institutionalized". Helen L. v. DiDaria. 46 F.3d 325, 335 (3d 11 Cir.) cert denied - U.S. -116 S.Ct. 64, 133 L.Ed.2d 26 (1995).

12

69.

G. 28 C.F.R. §35.130(d) states: "The

13 Integration Mandate"

14

"A public entity shall administer services,

programs and activities in the most

15

integrated setting appropriate to the needs

of qualified individuals with disabilities".
16 70. "28 C.F.R. § 130.35(d) has the force of law". Helen
17 L. v. DiDaria. 46 F.3d 325, 331 (3d Cir.) cert denied - U.S. -
18 116 S.Ct. 64, 133 L.Ed.2d 26 (1995). "the ADA and its attendant
19 regualtions clearly define unnecessary segragation as a form of

20

•

' •

'

"

illegal discrimination against the disabled." Helen L p.332.

21

71. While discrimination between the so called "able

22

bodied" and the disabled is covered under the ADA so is

23

discrimination amongst the disabled based upon the severity of

24

the disability. "Numerous Courts have recognized that both

25

Section 504 and the ADA prohibit discrimination on the basis of 26

the severity of a person's disability". Messier v. Southburv

27 Training School 916 F.Supp. 133, 141 (D.Conn. 1996). Also citing

28 Martin v.Voinovich. 840 F.Supp. 1175, 1191-92 (S.D. Ohio 1993;

15

1 Jackson v. Stanton Hospital & Training School. 757 F.Supp, 1243,

2| 1299 (D.N.M.1990); Lvnch v. Maher. 507 F.Supp. 1268, 1278-1279

n.15 (D.Conn.1931) discrimination on the basis of handicap is

actionable under Section 504.

72. At the heart of Plaintiffs, ADA complaint however, is

the denial of access to medical care. By prematurely placing

clients into the community, by denying such patients the

continued benefits of hospital care, before such clients are

well enough or stable enough to take care of themselves then

10 such clients can. not possibly integrate themselves into the

11 community. If there is anything such as a central theme to the

12 ADA it is the concept of "integration".

13

STANDING OF CABLE

14

73. The Ninth Circuit in Compassion in Dying v. Roe 9 6

15 C.D.O.S. 1507 (1995) granted stannding to physicians asserting

16 the rights of their terminally ill patients in general

17 850F.Supp. at 1467. "The physicians meet both article III and

18 jurisprudential standing requirements. See Singleton v. Wulff,

19 428 U.S. 106, 116-117 (1976) (holding that doctors had standing

201 to challange - on behalf of women in general". The court also

21 .cited Doe v. Bolton 410 U.S. 179, 188 (1973).

22

74. Here, Cable was disciplined with 10 day suspension

23 pursuant to California Government Code §19574 for advocating for

24 his patients as occured or was threatened in the above

25 referenced cases.

26

CONCLUSION

27

75. For the foregoing reasons Plaintiff respectfully

28 request the Court to grant the temporary restraining order and

16

preliminary injunction.

2

Dated: March 20, 1997,

HARDIMAN & CAKILL

3

A Professional Corporation

1

5

^FRANCIS jH. 'HAKDIMAN

Attorney for Plaintiffs

6

MEMORANDUM OF OPPOSING COUNSEL

7

...

1. I was informed on March 19, 1997 by Susan Geanacou,

8

Esq. of the Department of Developmental Services that a Deouty

9

Attorney General would be representing the Department of

10

Developmental Services, Fairview Developmental Center, South

11

Coast Regional Project to the extent of DDS's involvement with

12

I them, Defendants, Amundson, Kohler, Tan Figueroa and Lemonds.

Susan Geanacou, Esq.,Division of Legal Services Department of

14

Developmental Services, 1600 9th Street Room 340, Sacramento,

15

CA 95814, (916) 654-3233.

16

2. I was informed that Tom Nixon, Esq., Woodruff,

17

.

Spradlin & Smart, 701 S. Parker St.,Suite 7000, Orange, CA 92868

18

/

...

Tel: 714/558/7000 would be representing Regional Center of

19

Orange County.

.

20

...

. ,.

.

• 3. Bob Rubin, Esq., BRUMER, RUBIN & WESTON, 3600 Wilshire

21

Blvd., Suite 1120, Los Angeles, CA 90010, 213/487/7800, might

22

be representing San Diego Regional Center.

23

4. I contacted all Defendants at least twice on march 19,

24

1997. No others would confirm attorney representation.

25

Dated: March 20, 1997, 26

HARDIMAN & CAHILL A Professional Corpora^i

27

28

'RANCIS / . 4iARDIMAN

Attorney for Plaintiffs

17

 
 Francis X. Hardiman Bar #140504 Margaret M. CahiU Bar #138231
HARDIMAN & CAHIUL A t t o r n e y s a t Law
U6O BroothoUow Suite 114
SANTA A N A . CALIFORNIA 92705 (714) J56-2233
Facsimile (714) 556-5223
for: Richard S. et a l .

(SPACE BELOU FOR FILING STAMP ONLY)
» C.hf I S . v : D.eP.L?! Developmental Serv. of Cal. MR-CA-004-002

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R. , VALDINA )

R., and ROES 1 through 800,

)

12

individually and on behalf of all )

those similarly situated by

\

13 j

WILLIAM CABLE, M.D. as Guardian ad Litem

( (

14

Plaintiffs,

15

vs

16 DEPARTMENT OF DEVELOPMENTAL SERVICES OF THE STATE OF

17 CALIFORNIA, FAIRVIEW DEVELOPMENTAL CENTER, SOUTH

18 COAST REGIONAL.PROJECT, HARBOR REGIONAL CENTER, REGIONAL CENTER )

19 OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL )

20 LOS ANGELES REGIONAL CENTER,

)

WESTSIDE REGIONAL CENTER, DENNIS )

21 G. AMUNDSON, as Director of the )

DEPARTMENT OF DEVELOPMENTAL

)

22 SERVICES STATE OF CALIFORNIA, )

HUGH KOHLER, as Executive

)

23 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER, LILIA TAN )

24 FIGUEROA, M.D., as Medical

)

Director of FAIRVIEW

)

25 DEVELOPMENTAL CENTER, DAWN

)

LEMONDS as director of SOUTH

)

26 COAST REGIONAL PROJECT, and Does )

1 through 500, inclusive,

)

27

)

Defendants

)

28

CASE NO:
COMPLAINT FOR INJUNCTIVS RELIEF
VIOLATION OF TITLES II AND V OF THE AMERICANS WITH DISABILITIES ACT OF 1990 [42 U.S.C. §12101 et seq. ], INFRINGEMENT OF PROCEDURAL DUE PROCESS, VIOLATION OF THE CIVIL RIGHTS ACT OF 19 91 [42 U.S.C. §1983]

1. Jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1331 and 28 U.S.C. §§ 1343 (3) and (4). This suit is

authorized and instituted pursuant to Titles II and V of the Act

of Congress known as the "Americans with Disabilities Act of

1990" [42 U.S.C. §12101 et seq.]; the "Civil Rights Act of 1991"

[42 U.S.C. §§ 1981, 1983 and § 1988].

2. The jurisdiction of this Court is invoked to secure

protection of and to redress deprivation of Constitutional

guarantees and federal rights secured by the Fifth and

10 Fourteenth Amendments of the Constitution of the United States 11 denying procedural due process. For violation of §§1981 and

12 1983 of the Civil Rights Act of 1991, and for infringement of

13 Titles II and V of the Americans with Disabilities Act ("ADA")

14 providing for relief against discrimination and retaliation in

15 State institutions.

16

3. Plaintiffs elected, because of the urgency of their

17 plight, not to pursue administrative remedies. Pursuant to

18 those regulations governing subtitle A of the ADA set forth in

19 28 C.F.R. PART 35 at "supplementary information" it states:.

20

"This regulation implements subtitle A of title II -of

21

the ADA, which applies to State and local

22

governments".

23

28 C.F.R. PART 35, §35.172 further provides:

24

"The Act requires the Department of Justice to

25

establish administrative procedures for resolution of

26

complaints, but does not require complainants to

27

exhaust these administrative remedies. The Committee

28

Reports make clear that Congress intended to provide a

2

1

private right of action with the full panoply of

2

remedies for individual victims of discrimination.

3

Because the Act does not require exhaustion of

4

administrative remedies, the complainant may

5

elect to proceed with a private suit at any time."

6

4. This is an action for injunctive relief. Cynthia R.

and Valdina R. are profoundly retarded developmentally disabled

persons who in 199 6, while residents at Fairview Developmental

Center and State Hospital, Costa Mesa, California, and patients

10 under the care of William Cable, M.D., the present Chief of the

11 Medical Staff at Fairview, were discriminated against in access

121 to medical care, deprived and denied the full benefits of the

13 State programs that they were entitled to, denied the benefit of

14 parental and uncoerced medical involvement in placement

15 decisions and retaliated against in violation of their

16 constitutional rights to due process and in violation of those

17 laws of the United States and of the State of California

18 providing for .their protection. "CR" and "VR" are at an

19 immediate and substantial risk of "irreparable harm" from

20 personal injuries or death and from the denial of procedural due

21 process and the protections of the laws of the United States and

22 of the State of California. The remedies at law are inadequate

23 and can not compensate for denial of constitutional rights and

24 deprivation of the fundamental rights to life and liberty.

25

5. Plaintiff Richard S., (hereinafter "RS"), on

26 information and belief, is residing at Fairview Developmental

27 Center located in Costa Mesa, California. "RS" is a 43 year old

28 profoundly retarded person who has been a resident of Fairview

since on or about 1961. On information and belief, "RS" has no conservator of the person. MRS'" parents have not been involved

with his care and treatment for ten (10) or more years. A

special relationship exists between Dr. Cable, as Chief of the

Medical Staff at FDC and "RS" as a patient at FDC. "RS" is an

individual unable to enjoy life's major activities. "RS" is

qualified to receive the benefits of state hospital care, and is

a qualified person within the meaning of §201 of the Americans

with Disabilities Act of 1990, 42 U.S.C. §12115(2). "RS" is

10 subject to discharge and community placement at the sole

11 discretion of the Regional Center of Orange County. "RS" is at

12 an immediate and substantial risk of "irreparable harm" from

13 personal injuries or death and from the denial of procedural due

14 process and the protections of the laws of the United States and

15 of the State of California. The remedies at law are inadequate

16 and can not compensate him for denial of constitutional rights

17 and deprivation of the fundamental rights to life and liberty.

18

6. Plaintiff Cynthia R., FDC #3784-6, (hereinafter "CR"),

19 on information and belief, is residing at Fairview Developmental

20 Center (hereinafter "FDC") a State Hospital Hospital located in

21 Cpsta, Mesa, California. "CR" is a female between the ages of

22 thirty and forty and profoundly retarded. "CR" is non-verbal.

23 She has a significant seizure disorder, is on large doses of

24 anti-convulsants and wears a helmet at all times. She is

25 unsteady on her feet and has a long history of frequent falls

2 6 and has had multiple head injuries and heavy facial scarring.

27 She has a severe and aggressive behavioral disorder. "CR" is an

28 individual unable to enjoy life's major activities. "CR" on

information and belief had no conservator of the person at the

time of the incidents complained of herein. A special

relationship exists between Dr. Cable as Chief of the Medical

Staff at FDC and "CR" as a patient at FDC. A special

relationship also exists between Dr. Cable and "CR" arising out

of the doctor/patient relationship which relationship has not

been terminated by "CR" or her legally authorized

representative, if any exists. "CR" is qualified to receive the

benefits of state hospital care, and a qualified person within

10 the meaning of §201 of the Americans with Disabilities Act of 11 1990, 42 U.S.C. §12115(2).

12

7. Valdina R., FDC $0266, (hereinafter "VR"), on

13 information and belief, is residing in a community home, at an

141 unknown location, in San Diego County, California. "VR" is a

15 profoundly retarded fifty (50) year old former Fairview

16 Developmental Center (hereinafter "FDC") in-patient discharged

17 from FDC over the objection of her then attending physician Dr.

18 William Cable. "VR" suffers from a condition known as pica

19 which causes her to roam the house almost every night seeking

20 out hair brushes, tooth brushes, sheets and other objects.which,

21 she eats. She has inhaled hair and bristles and has been

22 hospitalized at U.C.I.'s ICU for aspiration pneumonia and twice 23 hospitalized at FDC for aspiration. She has been 24 institutionalized most of her life usually in a locked facility. 25 She requires close 24 hour, and awake night time, supervision. 26 She is occasionally fecally incontinent and, if left alone, has 27 been known to smear the walls with feces. She can not complete 28 the toileting cycle and can not enjoy all of life's major

information and belief had no conservator of the person at the

time of the incidents complained of herein. A special

relationship exists between Dr. Cable as Chief of the Medical

Staff at FDC and "CR" as a patient at FDC. A special

relationship also exists between Dr. Cable and "CR" arising out

of the doctor/patient relationship which relationship has not

been terminated by "CR" or her legally authorized

representative, if any exists. "CR" is qualified to receive the

benefits of state hospital care, and a qualified person within

10 the meaning of §201 of the Americans with Disabilities Act of

11 1990, 42 U.S.C. §12115(2).

12

7. Valdina R., FDC #0266, (hereinafter "VR"), on

13 information and belief, is residing in a community home, at an

14 unknown location, in San Diego County, California. "VR" is a

15 profoundly retarded fifty (50) year old former Fairview

16 Developmental Center (hereinafter "FDC") in-patient discharged

17 from FDC over the objection of her then attending physician Dr.

18 William Cable. "VR" suffers from a condition known as pica

19 which causes her to roam the house almost every night seeking

20 out hair brushes, tooth brushes, sheets and other objects which.

21 she eats. She has inhaled hair and bristles and has been

22 hospitalized at U.C.I.'s ICU for aspiration pneumonia and twice

2 3 hospitalized at FDC for aspiration. She has been

24 institutionalized most of her life usually in a locked facility.

25 She requires close 24 hour, and awake night time, supervision.

2 6 She is occasionally fecally incontinent and, if left alone, has

27 been known to smear the walls with feces. She can not complete

28 the toileting cycle and can not enjoy all of life's major

activities. A special relationship also exists between Dr.

Cable and "VR" arising out of the doctor/patient relationship

which relationship has not been terminated by "VR" or her

legally authorized representative, if any exists. "VR" is a

51 qualified disabled person within the meaning of §201 of the

6 Americans with Disabilities Act of 1990, 42 U.S.C. §12115(2) in

that she is qualified to receive the benefits of continued State

hospitalization.

8. ROES 1 through 800 are adult developmentally disabled

10 "clients" now resident at Fairview Developmental Center, Costa

11 Mesa, California, who have no conservator of the person or other

12 legally "authorized representative(s)" within the meaning of

131 California Welfare & Institutions Code §4701.6. A special

14 relationship exists between Dr. Cable and these Plaintiffs as a

15 result of his fiduciary obligations toward them as Chief of the

16 medical staff. Additionally, in some cases a doctor/patient

17 relationship may exist with some of the disabled not yet 18 identified.

19

8. William Cable, M.D. was the attending physician at .

20 Fairview State Hospital for "CR" and "VR" duringall relevant- .

21 time periods herein.

• .

22

6. Dr. Cable has filed a petition concurrently with the

23 filing of this lawsuit and is seeking standing as guardian ad

24 litem for "CR" and "VR" for purposes of this action. 25 -.,•• -7. . -Dr. Cable is a Board Certified Psychiatrist and 26 Neurologist and Board eligible in Pediatrics and Internal 27 Medicine. Dr. Cable is the elected Chief of the Medical Staff 28 and Chairman of the Medical Executive Committee ("MEC") of the

approximately twenty five (25) doctor Fairview State Hospital

Medical Staff, Costa Mesa, California. His term of office as

Chief of Staff expires on December 31, 1998. Dr. Cable was

formerly an Associate Clinical Professor of Neurology at the

Massachusetts General Hospital in Boston, Massachusetts and

presently holds an Assistant Clinical Professorship in

Neurology/Psychiatry at the University of California, Irvine.

Dr. Cable is, and at all relevant times herein was, a resident

of Orange County, California. Dr. Cable maintains a private

10 practice in Psychiatry/Neurology in Huntington Beach,

11 California. He is member of the medical staff at Hoag Memorial

12 Hospital Presbyterian, Newport Beach, California, where he was 13 formerly the Chairman of the Department of Psychiatry and

14 Neurology. He is also a member of the medical staff at

15 Huntington Beach Community Hospital where he was a former

16 Chairman of the Department of Internal Medicine.

17

8 . Defendant DEPARTMENT OF DEVELOPMENTAL SERVICES of the

18 State of California (hereinafter "DDS") is a department within

19 the California Health and Welfare Agency and an arm of the .

20 executive branch of government of the State of California. Its

21 principal place of business, on information and belief, is

22 Sacramento, California.

23

9. Defendant FAIRVIEW DEVELOPMENTAL CENTER ("FDC") is a

24 fully licensed acute care general hospital, skilled nursing

25 facility and intermediate care center for the developmentally

26 disabled licensed pursuant to California Health and Safety Code

27 §1250 and doing business as a State Hospital for the

28 developmentally disabled in Costa Mesa, California.

10. Defendant SOUTH COAST REGIONAL PROJECT (hereinafter

"SCRP") characterizes itself as an "interagency collaborative

venture" between the Department of Developmental Services,

Fairview State Hospital and five (5) local regional centers e.g.

Regional Center of Orange County, San Diego Regional Center,

Harbor Regional Center, South Central Los Angeles Regional

7J Center and Westside Regional Center. SCRP is not listed in

8 public records as a California corporation or partnership. SCRP's principal place of business is Building 20, Fairview

10 Developmental Center, 2501 Harbor Boulevard, Costa Mesa, 11 California, 92626.

12

.11. Defendant SAN DIEGO REGIONAL CENTER (a.k.a. San Diego-

13 Imperial Counties Developmental Services, Inc.) (hereinafter 14 "SDRC") is believed to be a private non-profit corporation 15 organized pursuant to California's Lanterman Act and operating 16 as one of the twenty one (21) California "Regional Centers". 17 SDRC's principal place of business is believed to be 4355 Ruffin 18 Road, Suite 204, San Diego, California 92123-1648.

19

12. Defendant HARBOR REGIONAL CENTER is believed to be a

20 private non-profit corporation organized pursuant to

• •

21 California's Lanterman Act and operating as one of the twenty 22 one (21) California "Regional Centers". Its principal place of 23 business is believed to be the Del Amo Business Plaza, 21231 24 Hawthorne Blvd. (90503), P.O. Box 2930, Torrance, California, 25 90509.

26

13. Defendant REGIONAL CENTER OF ORANGE COUNTY is believed

27 to be a private non-profit corporation organized pursuant to

28 California's Lanterman Act and operating as one of the twenty

one (21) California "Regional Centers". Its principal place of

business is believed to be the Central Tower, Union Bank Square,

530 South Main St., P.O. Box 6030 (92613-6030), Orange,

California 92668-4579.

14. Defendant SOUTH CENTRAL LOS ANGELES REGIONAL CENTER is

believed to be a private non-profit corporation organized

pursuant to California's Lanterman Act and operating as one of

the twenty one (21) California "Regional Centers". Its

principal place of business is believed to be 2160 W. Adams

10 Blvd., Los Angeles, California, 90018.

11

15. Defendant WESTSIDE REGIONAL CENTER is believed to be a

12 private non-profit corporation organized pursuant to

13 California's Lanterman Act and operating as one of the twenty-

14 one (21) California "Regional Centers". Its principal place of

15 business is believed to be 5901 Green Valley Circle, Suite 320,

16 Culver City, California, 90230-6938.

17 •:•.- •••• 16. > ; Plaintiff .is informed and believes, and thereon ;

18 alleges, that Defendant DENNIS G. AMUNDSON (hereinafter

19 "AMUNDSON"), sued herein in his official capacity, as Director

20 of the DEPARTMENT OF DEVELOPMENTAL SERVICES OF THE " STATE OF ' "

21 CALIFORNIA, was at all times herein mentioned and now is, a

22 resident of the State of California.

23

17.. Defendant HUGH KOHLER, (hereinafter "KOHLER"), sued

24 herein in his official capacity, based upon information and

25 belief, is and. at all times relevant was, a citizen of the State •

26 of California residing in Orange County, California.

27

18. Defendant KOHLER is the Executive Director and chief

28 administrative officer at Fairview Developmental Center.

19. Defendant LILIA TAN FIGUEROA, M.D., (hereinafter "TAN FIGUEROA"), sued herein in her official capacity, based upon information and belief, is and at all times relevant was, a citizen of the State of California residing in Orange County, California.

20. Defendant TAN FIGUEROA is the State appointed and administrative.Medical Director at Fairview Developmental

Center.

21. Defendant DAWN LEMONDS (hereinafter "LEMONDS"), sued 10 herein in her official capacity, As director of South Coast

11 Regional Project, based upon information and belief, is and at

12 all times relevant was, a citizen of the State of California

13 residing in Orange County, California.

14

FACTUAL ALLEGATIONS

15

22. The California Department of Developmental Services

16 ("DDS") owns and operates seven (7) state hospitals for the

17 developmentally disabled known as "developmental centers".

18

23. The developmentally disabled are persons suffering

19 from conditions such as autism, epilepsy and mental retardation.

20

24. Many suffer from birth injuries and genetic arid " •

21 chromosomal disorders and are injured by self inflicted wounds.

22

. 25. There are twenty one (21) "regional centers".

23 Regional centers are non-profit corporations and quasi-

24 governmental social service agencies that are authorized

25 pursuant to California's Lanterman Act [California Welfare &

26 Institutions Code §4500 et seq.] (hereinafter "W&I") to contract

with the California Department of Developmental Services for the

provision of hospital or "resident" care in one or in any of the

io

seven (7) California "Developmental Centers". Regional Centers

also obtain placement for the developmentally disabled into

community group homes, board and care facilities, single

apartments, skilled nursing facilities and other types of

community living arrangements.

26. On or about January, 1994, the Department of

Developmental Services ("DDS"), regional centers, owners and/or

operators of off- site homes for the developmentally disabled

and others executed a "class action" settlement agreement known

10 as the "Coffelt Agreement" ("COFFELT") which agreement was

11 approved by the California Superior Court [SFSC case #916401] in

12 San Francisco on or about January 21, 1994.

13

27. Pursuant to COFFELT the DDS and regional centers

14 agreed to expedite and discharge from the seven (7) California

15 Developmental Centers into community housing some two thousand

16 (2000) developmentally disabled patients and to close down two

17 (2) Developmental Centers over a five year period of time.

18

28. On or about June 20, 1993 the Los Angeles Times,

q reported the deaths of six (6) children within six weeks at' -

20 Mountain View Child Care Center, in San Bernardino County and' '

21 the deaths of three (3) other children in a convalescent home in

22 Gilroy, California between January and March 1993 after transfer

23 from a community home that had its license revoked.

24

29. On or about, July 1994, DDS was provided with a copy

25 of a manuscript entitled "The Prediction of Mortality in

26 Children with Severe Mental Retardation The Effect of Placement"

27 from the "Life Expectancy Project" at the University of

28 California, Riverside. The research was funded by a substantial

11

grant from the National Institutes of Health ("NIH"), in

Washington, D.C. and this and a subsequent study were based upon

DDS's own computer data base of information.

30. This study was recently published, in slightly revised

form, in the peer reviewed October, 199 6 edition of the American

Journal of Public Health. It covered the time period from

January 1, 1980 through December 31, 1992 and did not include

the nine (9) deaths in children from Mountain View or Gilroy.

31. This study asserts that 'Own home residence and

10 community care facilities have an estimated 25% higher risk-

11 adjusted odds on mortality than institutions and health 12 facilities".

13

32. That on or about January, 1995 the pre-publication

14 manuscript of the peer reviewed article "Strauss, DJ and

15 Kastner, TA (1996). "Comparative mortality of people with mental

16 retardation in institutions and the community." American Journal

17 on Mental Retardation. 101" was circulated at Fairview

18 Developmental 'Center and to DDS personnel.

19

33. In this study "Risk-adjusted mortality rates in " "

20 institutions and the community in California from i980 through

21 1992 were compared with the aim of improving our understanding

: 22 of the capacity of the community health system to support 23 ^deinstitutionalization. Risk-adjusted odds on mortality were

24 estimated to be 72% higher in the community than in

25 institutions" (in adults age forty (40) and over).

2 6

34. Despite knowledge of reasonably reliable peer reviewed

27 analyses DDS in 1995 accelerated COFFELT placements and, in some

28 cases, financially penalized regional centers that did not meet

12

COFFELT quotas.

35. In or about this time frame of mid 1993 through 1996

DDS employed physicians at FDC noticed an increase in anecdotal

41 reports concerning mortality and morbidity of clients discharged

from that facility to community placement.

6

7

36. Client "RD", on information and belief, discharged

from FDC on or about 1995 walked through a plate glass window at

his community residence and died in a San Diego Emergency Room,

10 in 1996, before his lacerations could be repaired.

11

37. Client "DB" died in or about 1993-1994 approximately

12 six (6) months after discharge from FDC. Client DB, on

13 information and belief, had been discharged from FDC with a

14 nephrotomy tube known to be leaking pus when discharged.

15

38. Client "CB" died within six months of discharge from

16 FDC, on information and belief, in 1995, of pneumonia.

17

39. Client BJB" died, December 199 6, twelve (12) days

18 after discharge from FDC's skilled nursing facility to a skilled

19 nursing facility in Long Beach. This death occurred

20 approximately three (3) weeks after the filing of a related case

21 Cable v. DDS U.S. Fed.Dist.Ct. Santa Ana, case ISACV96 1190 GLT

22 (EEX) .

23

40. Client "JW" was discharged from FDC in or about 1995,

24 on information and belief, over the strong objection of his

25 parents. JW was known to become aggressive when agitated.

26 Shortly after placement in the community JW loosened himself

27 from his seat belt and is alleged to have attacked a bus driver

28 causing the bus to crash into another vehicle killing a thirty

13

(30) year mother and injuring her three children. Tran v.

Hernandez, Orange Co. Superior. Ct. Case #752808.

41. Client "EF" was discharged from FDC on or about 1993.

Client EB was returned to FDC after becoming pregnant. 42. "RS", MCR", "VR" and ROES 1 through 800 are citizens

within the public trust and of diminished intellectual capacity

who are unable.to effectively protect themselves' when selecting

or receiving health care services.

*43. Plaintiffs, on information and belief, herein allege

10 that since the beginning of the implementation of COFFSLT the

11 DDS and the other Defendants, and each of them, have engaged in

12 a practice known as "client shopping". This involves a "walk

13 through" of the facility put on by DDS personnel whereby private

14 community home owners or agents or representatives of them are

15 provided confidential medical information and are permitted to

16 "view" patients. Those patient/clients without parents for

17 guardians i.e. where the State is acting in parens patria, the

18 most docile as" well as those whose mental or physical conditions

19 renders them the least able or least competent of the disabled

20 'to make informed decisions are targeted for community placement.

21 Once selected for discharge it is usually a fait accomplis

22 irrespective of medical contraindications or the ability to

23 weigh the risks or comprehend the consequences.

24

44. Plaintiffs allege, on information and belief, that on

25 or about April 18, 199 6, representatives of Defendants and

2 6 owners of group homes were escorted through residences and

2 7 buildings at Fairview, appraised of the medical conditions of

28 various patients and clients, advised of their potential for

14

discharge and generally engaged in the practice of "client

shopping" at Fairview.

45. On or about April 18, 1996, CABLE attended an "exit

conference" aka "treatment team meeting" concerning the

community placement of "CR". "CR" had been under CABLE'S

regular care for some time.

46. Said, conference was attended by approximately fifteen

(15) individuals including three psychologist, several social

workers, three persons from Independent Options, an owner of

10 group homes, and-numerous administrative personnel. CABLE was

11 the only physician in attendance. CABLE was provided with no

12 more than 30 minutes notice of the meeting and was not advised

131 that it was an exit conference.

14

47. CABLE objected to community placement, given "CR's"

15 multiple and serious health problems. CABLE, further, expressed

16 concern that off-site physician visits would occur only once

17 every fifty nine (59) days, the minimum required to receive

18 Federal funding.

19

48. CABLE requested information concerning attempts made

20 to notify the parents/guardians of CR who were not present at

21 the exit conference.

22

49. CABLE received non-responsive answers to his request

23 concerning the manner or number of attempts made to contact

24 relatives.

25

50. CABLE counselled those in attendance that the

26 published medical literature showed higher morbidity and

27 mortality rates in off-site community housing for individuals

28 with problems similar to CR's than those institutionalized with

15

the same or similar problems. CABLE suggested that the family

be contacted to participate in this important decision since

there was a perception in the community that the regional

centers "go after" developmentally disabled who have no parental

involvement.

51. CABLE requested that the conference be postponed until

the parents/guardians were provided with an opportunity to

attend. The request for continuance was sharply refused by

regional center personnel and ignored by Fairview Program

10 Director Karen Larson who would not act to postpone.

11

52. "CR" was a qualified disabled person being

12 discriminated against in access to information concerning the

13 risks and benefits of the proposed community placement and in

14 being denied the benefit of parental consent in violation of her

15 rights pursuant to Title II and Title III, §§202, 302 of the

16 Americans with Disabilities Act of 1990, 42 U.S.C. §§12132,

17 12182. CABLE was a member of a protected class providing "aid

18 and assistance"'to a qualified disabled person within the

19 meaning of Title V of the Americans with Disabilities Act of

20

1 9 9 0 . :. .•••'. V . " . " ,

.•'•••'•.•• .

"'."'•"•'

21

53. After it was revealed to CABLE at the meeting, and for

22 the first time, that private vendors routinely visit the FDC

23 facility prior to exit conferences CABLE asked Ms. Helgeson

24 whether Independent Options was a for profit organization.

25

54. CABLE then asked a Regional Center representative if

26 he could be provided with a list of those patients under his

27 care who were targeted for discharge. Such request was refused.

28

55. Following the exit conference representatives of

16

1 Defendants and group homes and others conferred at a "post

2 meeting" at which slanderous statements were made concerning

3 Plaintiff.

4

56. Thereafter, on or about April 22, 1996, Phil

5 Guarabascio, Associate Director of Defendant South Coast

6 Regional Project ("SCRP"), an organization created by the DDS to

7 administer COFFELT, corresponded with Dawn Lemonds, Director of

the SCRP. In such letter GUARDABASCIO complained of Plaintiff's

9 "unacceptable behavior" and stated that the "service provider"

10 had called the next day and complained to Judy Borchert the SDRC

11 (San Diego Regional Center) "Coffelt Manager".

12

57. Subsequently, on or about April 30, 1996, Rebecca

13 Helgeson, Regional Director for IPI, corresponded with and

14 complained to Defendant KOHLER, Executive Director of FAIRVIEW

15 that Plaintiff was on a "one man mission" to eliminate community

16 placements . In the last paragraph of her letter Defendant

17 HELGESON said to KOHLER that "I know you will not take this

18 correspondence lightly". Such letter was copied to Judy

19 Borchert of the "Coffelt Unit" SDRC.

• 20 . : 58. On or about August 12, 1996, CABLE was'officially :

21 •"reprimanded"- in his position as Physician and Surgeon and

i- v served with a Notice of Adverse Action, signed by Defendant TAN

22

1

•

.

•

•

*

*

•

•

•

•

'

*

"

\

FIGUEROA, charging Plaintiff with violations of 23

California Government Code §19572 (d) Inexcusable neglect of 24

duty, (m) Discourteous treatment of the public or other

, '

25

employees, (t) Other failure of good behavior either during or 26

outside of duty hours which is of such a nature that it causes 27

discredit to the agency or the employment. 28

17

59. CABLE alleges that on August 12, 1996 he suffered

retaliation by Defendants in violation of his rights pursuant to

Title V of the Americans with Disabilities Act of 1990.

60. On or about June 19, 1996, Plaintiff attended the exit

conference concerning community placement of "VR". "VR" had

been under CABLE'S regular care for more than a year.

61. CABLE objected to the discharge of "VR" based upon the

severity of her medical conditions and CABLE'S belief that the

community placement represented a "clear and present danger" to

10 "VR'-s" life or health.

U

62. On or about June 19, 1996, CABLE caused a patient

12 summary to be created concerning "VR". Cable had his nurse

13 practitioner insert the following paragraph in the summary:

14

(from the owners of the house) "we learned

that her new home is a level 3 community

15

facility. She is not in a locked facility.

The windows are glass, not plexiglass. She

16

has one caretaker, TD who has not had

special training in mental retardation

17

behavioral problems. "VR" will be one of as

many as 5 other clients in this facility

18

with one attendant. The attendant sleeps at

the home at night. There are no awake night

19

staff to observe her and prevent injuries."

20

63. Thereafter, on or about June 21, 1996, CABLE wrote a

21 memo to Defendant TAN FIGUEROA expressing his concerns about the

22 placement. CABLE received no response to this memo.

23

64. Therefore,.on June 26, 1996, shortly after arriving to

24 work, CABLE wrote another memo to Defendant TAN FIGUEROA

25 regarding "VR". Sometime later on the morning of June 26, 1996,

26 Dr. Cable received a request from the medical records department

27 to sign "VR's" discharge summary. As CABLE knew that as soon as

28 the summary was signed "VR" would be immediately discharged

18

CABLE elected to await Defendant Figueroa's response. When none

came CABLE left work at his usual time. The next morning

Plaintiff found a memo in his box from Defendant Figueroa which

^did not address his concerns but instead contained excerpts from

the Fairview Policy and Procedure manual regarding discharge

summaries.

65. Thereafter, medical records attempted to get the

patient summary signed by another Fairview physician. Dr.

Russell Steinberg, who declined to sign it.

10

66. Unable'to obtain the required signature from two

11 physicians Defendant FIGUEROA caused the paragraph dictated by

12 CABLE, and set forth hereinabove at paragraph number 59, to be

13 deleted, signed the discharge summary herself and "VR" was sent

141 to community placement.
4
15 '- 67. Some three (3) weeks later, on or about July 14, 1996,
16 and immediately upon first learning that such paragraph had been

17 intentionally deleted from the medical record by Defendant TAN

18 FIGUEROA, CABLE wrote a memo to Raymond Peterson, M.D.,

19 Executive Director of the San Diego Regional Center, informing

20 him of the deletion and expressing his concerns regarding "VR's"

medical conditions. •

22 -• • .••• 68. On or about October 1, 1996, CABLE was served another

23 Notice of Adverse Action charging CABLE with violations of

24 California Government Code §19572 subdivisions (c), (d), (f),

25 (n>)/ (r), and (t) which include charges of "dishonesty",

26 "inexcusable neglect of duty" and "using, or having access to, 27 confidential information available by virtue of state employment 28 for private gain or advantage".

19

69. On or about October 15, 1996, CABLE was suspended for .

10 days without pay. CABLE alleges that on October 1, 199 6 and

October 15, 199 6 he suffered retaliation by Defendants in

41 violation of Title V of the Americans with Disabilities Act of

1990 because he aided and assisted "VR" who was discriminated

against in access to medical care in violation of her rights

pursuant to .Title. 11 of the Americans with Disabilities Act.

70. On or about August 20, 1996, CABLE'S medical office at

FAIRVIEW was entered by personnel from Program 4, under the

10 authority and control of FDC program, director Karen Larson who,

11 without CABLE'S consent or prior knowledge, moved CABLE'S

12 belongings to another, almost deserted, building, to a window

131 less office, which was a former treatment, room, and in which, in

14 the corridor outside such office, linoleum was being torn up and

15 which contained yellow paper tape adhered to doorways stating

16 "DANGER ASBESTOS".

17

71. Since August, 1996 CABLE has been removed from any and

18 a l l duties regarding Coffelt placements and has been assigned to

19 a unit involved with acute medical conditions and no exit

"

20 conferences.

21 * 72. On or about December, 1995 or January, 1996 an

22 unscheduled pharmacy review of CABLE'S charts was undertaken, by

23 the FDC pharmacy department. .

24

73. On or about late July, 1996 CABLE learned that another

25 unscheduled FDC pharmacy review was being undertaken. CABLE

2 6 wrote a letter to the pharmacist inquiring why and was told that

27 if he wanted further information he would have to ask Defendant 28 Kohler.

20

1

74. On or about November, 1996 CABLE was removed from the

2 Pharmacy and Therapeutics Committeee without explanation.

3

75. On or about August 17, 1995, the former Chief of

4 Staff, Frederick Herzig, M.D., was "peer reviewed" at the

5 instigation of Defendant Tan Figueroa three (3) weeks after

6 Herzig had provided a deposition opposing a Coffelt community

7 placement, on medical grounds, IN THE MATTER OF RAYMOND MASAO

8 KAWAGUCHI, Orange County Superior Court Case # A-178009.

9

76. On or about October 27, 1995 Defendant Figueroa

10 instigated a unscheduled pharmacy review concerning Herzig.

77. On or about January 5, 199 6 Dr. Herzig was summarily

suspended from MOD and transferred from a regular ward to

Employee Health some (6) weeks after Herzig had made a motion at

a SEPA (Union) Board meeting and obtained a $10,000 union grantV

to assist client/patient's of Developmental Centers pay attorney

fees in cases of medically inappropriate discharge. Part of

17 this grant was also donated to the "Life Expectancy Project" at

18 the University of California', Riverside to support further '

19 research concerning mortality in the mentally retarded.

20

FEDERAL CAUSES OF ACTION

21

COUNT ONE

22

TITLE II OF THE AMERICANS WITH .DISABILITIES ACT

23

78. The allegations set forth in paragraphs 1 through 78

24 are incorporated herein by reference as though fully set forth.

25

79. This Count one is brought against all Defendants.

26

80. "Plaintiffs allege that Defendants have violated 42

27 U.S.C. §12131 and 28 C.F.R- PART 35 §35.130 (d) which requires

28 that "a public entity shall administer services, programs and

21

activities in the most integrated setting appropriate to the

needs of qualified individuals with disabilities".

81. Plaintiffs allege that by denying them uncoerced

access to physician advice, by prematurely discharging them from

the benefits of continued hospitalization, by discharging them

into the community when either the community setting to which

they are discharged to is unsafe or that they themselves have

not reached an adequate level of training or sufficient

stabilization of their medical conditions so that they can / k , ^ 10 11 integrate" into the community within the meaning of Title II of 11 the ADA then Defendants have violated the integration mandate of

12 the ADA. Plaintiffs have been damaged by this conduct.

13

COUNT TWO

14

TITLE II OF THE AMERICANS WITH DISABILITIES ACT

15

82. The allegations set forth in paragraphs 1 through 81

16 are incorporated herein by reference as though fully set forth.

17

83. This Count is brought against all Defendants.

18

85. Plaintiffs have failed to provide adequate medical

19 care, have failed to provide sufficient training to help

20 residents maintain self-care skills and to ensure a reasonably

21 safe environment free from unnecessary restraint; and have

22 failed to consider all residents for possible community

23 placement, as required by professional judgment.

24

86. Plaintiffs allege that the practice of "client . ,

25 shopping", by failing to consider, certain severely disabled

26 persons'for community placement, is discrimination amongst the

27 disabled based on severity of disability in violation of Title

28 II of the ADA. Plaintiffs have been damaged by this conduct.

22

1

COUNT THREE

2

TITLE II OF THE AMERICANS WITH DISABILITIES ACT

3

87. The allegations set forth in paragraphs 1 through 86

are incorporated herein by reference as though fully set forth.

5

88. This Count is brought against all Defendants.

6

89. Plaintiffs have selectively chosen for community

placement those.clients without conservators of the person and

have failed to consider all residents for possible community

placement/ as required by professional judgment. Plaintiffs

10 have been damaged-by this conduct.

11

COUNT FOUR

12

TITLE V OF THE AMERICANS WITH DISABILITIES ACT

13

90. The allegations set forth in paragraphs 1 through 89

14 are incorporated herein by reference as though fully set forth.

15

90. This Count is brought against all Defendants.

16

91. Plaintiffs allege that retaliation against physicians

17 responsible for their care and removing such physicians from

18 associating with the disabled has damaged the disabled at

19 Fairview and is a Violation of Titles II and V of the ADA.

20

CONSTITUTIONAL CLAIM

21 "

VIOLATION OF THE FOURTEENTH AMENDMENT

22

-;

^FAILURE TO PROVIDE PROCEDURAL DUE PROCESS

23

92. The allegations set forth in paragraphs 1 through 91

24 are incorporated herein by reference as though fully set forth.

25

93. This Count is brought against The Department of

26 Developmental Services of the State of California and the five

27 named regional centers and the South Coast regional project as

28 agents of the Department of Developmental Services.

23

94. Plaintiffs allege that inappropriate community

placement represents an unreasonable risk of harm.

95. Plaintiffs allege that they are denied and potentially

4| denied the benefits of continued hospitalization and training

and the property rights and benefits created for them and others

under the laws of the state of California and the United States.

96. Plaintiffs allege that denial of physician and or

parental input and the opportunity for an authorized

representative to object to their placement and institute appeal

10 proceedings is a-violation of their constitutional rights to due

11 process under the fourteenth amendment to the constitution of

12 the United States which process'requires that procedures leading

13 to the best accurate decision that can be reached be provided

141 concerning their placement and/or denial or reduction of their

15 benefits.

16

97. Plaintiff VR has been damaged by this conduct. CR has

17 been damaged by this conduct. ROES 1 through 800 are damaged by

18 this conduct.

19

INFRINGEMENT OF CIVIL RIGHTS

20

COUNT ONE

,

21

42 U.S.C. 1983

22

98. The allegations set forth in paragraphs 1 through 97

23 are incorporated herein by reference as though fully set forth.

24

99. This action is brought against Defendants Fairview

25 Developmental Center, Amundson, Kohler, Tan Figueroa, Lemonds,

26 and the five named regional centers.

27

100. The hereinabove described actions, omissions, policies

28 and conduct engaged in under color of state authority and/or as

24
: I

a r e s u l t of o f f i c i a l policy or custom by Defendants, regional

c e n t e r s , AMUNDSON, KOHLER, TAN FIGUEROA, and DOES 1 through 500,

31 i n c l u s i v e , and including Defendant DDS, responsible because of

t h e i r authorization, condonation, and r a t i f i c a t i o n thereof for

the acts of t h e i r agents, deprived Plaintiffs of rights secured

t o them under the Americans with Disabilities Act of 1990 and by

the Constitution of the United States,-including, but not

limited t o , P l a i n t i f f s f i r s t amendment right to the freedom of

association and t h e i r fifth and fourteenth amendment rights to

10 l i b e r t y and due process of law.

11

101. P l a i n t i f f s have been proximately damaged by

12 Defendants' conduct.

13

COUNT TWO

14

42 U.S.C. 1983

15

1 0 2 . The allegations set forth in paragraphs 1 through 101

16 are incorporated herein by reference as though fully set forth.

17

101. This action is brought against all Defendants.

181

102. Plaintiff alleges that the conduct of Defendants, and

19 each and a l l of them, violates California Business & Professions

20 Code §2056 which states in pertinent parts:

21

"(b) It is the public policy of the State of

California that a physician and surgeon be

22

encouraged to advocate for medically

appropriate health care for his or her

\

23

patients"

24

"(c) The application and rendering by any

person of a decision to terminate an

25

employment or other contractual relationship

with or otherwise penalize a physician and

26

surgeon principally for advocating for

medically appropriate health care consistent

27

with that degree of learning and skill

ordinarily possessed by reputable physicians

28

practicing according to the applicable legal

standard of care violates the public policy

1

of this state, (emphasis added)".

2

103. The hereinabove described actions, omissions, policies

3

and conduct engaged in under color of state authority and/or as

4

a result of official policy or custom by Defendants, regional

5

centers, AMUNDSON, KOHLER, TAN FIGOEROA, and DOES 1 through 500,

6

inclusive, and including Defendant DDS, responsible because of

7

.-.•-.

•

their authorization, condonation, and ratification thereof for

8

the acts of their agents, deprived Plaintifis of rights secured

9

to them under California Business S Professions Code §2056.

10

•

104. Plaintiffs have been proximately damaged by Defendants

11

conduct.

12

FOR PRELIMINARY AND PERMANENT INJUNCTION

13

105. The allegations set forth in paragraphs 1 through 104

14

are repeated and re-alleged.

15

106. As a consequence of the actions of Defendants, and

16

each of them, Plaintiffs, will continue to be damaged and suffer

17

irreparable harm until and unless Defendant's discriminatory and

18

retaliatory conduct is stopped and Plaintiffs are afforded due

19

process of law.

.• •

20

107. Defendants, have made it plain that, unless and until

21

. .

enjoined by order of this Court they intend to continue in this

22

course of conduct. Plaintiffs have no adequate remedy at law

23

. •

because the damage to their personal and life is not

24

ascertainable in money damages and because a multiplicity of

25

suits would result from the Court failing to intervene with

286 Dienfjeunndcatnitvse arnedlieeafc.h of them, and their servants, employees,

27

...

108. Therefore, equity shou2l6d intervene and enjoin

agents, and all other persons acting with, for, or under, in

concert with them from further retaliatory and discriminatory

action.

WHEREFORE, Plaintiffs, demands the following relief

jointly and severally, against all the Defendants:

A. That the Court issue a preliminary injunction

restraining .the Department of Developmental Services of the

State of California (DDS), Fairview Developmental Center (FDC),

South Coast Regional Project (SCRP) and five (5) Regional

10 Centers (RC) from'conducting any "exit conferences", at FDC or 11 elsewhere, regarding planned discharge of FDC developmentally 12 disabled clients from FDC to non-institutional placement during

13 the pendency of this action.

14

B. That the Court issue a preliminary injunction

15 restraining Defendants from discharging or transferring from FDC

16 to other California developmental centers or to non-

17 institutional placement any adult client who has no conservator

18 of the person/ during the pendency of this action.

19

C. That the Court issue an Order compelling Defendants

20 DDS, FDC, AMUNDSON, KOHLER AND TAN FIGUEROA to:

21

1. Restore William Cable, M.D. to his former

22 position as Physician and Surgeon in Program 4.

23

2. Restore William Cable, M.D. to his former patient

24 assignments.

25

3. Restore William Cable, M.D. to his former

2 6 position on the Behavior Management Committee.

27

4. Restore William Cable, M.D. to his former

28 position on the Pharmacy and Therapeutics Committee.

27

• V

5. Restore William Cable, M.D. to his former office

location on Program 4.

D. That the Court issue an Order restraining Defendant

administrator Hugh Kohler from:

1. Credentialing any physician for medical staff

privileges at FDC without such physician having first been

credentialed by .the appropriate medical staff committee.

2. Instigating or conducting any further pharmacy

audits on physicians.

10

3 - Interfering in any medical staff committee or in

11 any manner involving himself in activities traditionally.

12 reserved to licentiates practicing medicine.

13

E. That the Court issue an Order restraining the FDC

14 pharmacy and pharmacist from conducting any drug audit

15 concerning any FDC physician without the express written

16 authorization of the Medical Executive Committee.

17

F. That the Court issue an Order compelling the custodian

18 of the medical records at FDC to produce, on demand to the

19 Medical Executive Committee or it's duly authorized agent, even

20 without prior administrative authorization, the entire and

21 complete medical record concerning any DDS client whose records

22 are maintained at FDC in the normal course of business.

23

E. That the. Cpurt issue an Order compelling the custodian

24 of the guardianship/conservatorship documents at FDC to produce,

25 on demand to the Medical Executive Committee or it's duly

2 6 authorized agent, even without prior administrative

27 authorization, the entire and complete

28 guardianship/conservatorship documents concerning any DDS client

'

28

whose documents are maintained at FDC in the normal course of

business.

F. That the Court issue an Order restraining the practice

of "client shopping" at Fairview Developmental Center.

G. That the Court issue an Order compelling the DDS

Regional Centers to maintain, in the records of their ordinary

course of business, all death certificates, all 'autopsy reports,

all police and fire department reports, all hospital discharge

summaries and all emergency room visit records concerning all

10 DDS clients, living or dead, who have been in their charge.

11

H. That the Court issue an Order compelling the DDS

12 Regional Centers to release, upon demand, and without the

13 necessity of prior administrative authorization, any and all

14 death certificates, autopsy reports, police and fire department

15 reports, hospital and emergency room discharge summaries to any

16 officer of the FDC MEC upon the Regional Center's receipt of a

17 written or faxed request signed by such officer.

18

I. That the Court issue an Order compelling the DDS to

19 have a physician present at each exit conference concerning the

20 placement of a developmental center resident into community

21 housing.

.

.

22

J. That the Court issue an Order-compelling the DDS to

23 provide 10 days written notice to the physician designated to

24 attend an exit conference.

25

K. That the Court issue an Order compelling the DDS to

26 provide to the exit conference physician, at least one hour

27 prior to the commencement of such conference, the following

28 documents:

29

1

1. The complete and entire medical record.

2

2 . All guardianship/conservatorship documents.

3

3. Copies of All correspondence and documents

4 reflecting any and all telephone conversations made to the next

5 of kin attempting to notify such persons of the exit conference.

6

4. All records reflecting the morbidity and

7 mortality rates at the proposed home for the past three (3)

8 years.

9

5. All documents evidencing the training of those

10 persons at the proposed home to care for the developmentally

11 disabled.

12

L. That the Court issue an Order restraining the Medical

13 Director of FDC from having direct participation in the exit

14 conferences.

15

M. That the Court issue an order restraining the FDC from

16 releasing any client to community placement unless and until a

17 discharge summary, signed by the doctor attending the exit

18 conference has been executed.

19

0. Attorney fees and costs pursuant to 42 U.S.C. §199 8,

20 42 U.S.C. 12205.

,

21

P. Such other and further relief as this Court may deem

22 appropriate under the circumstances.

'

23 Dated: March 20, 19 97 24

HARDIMAN & CAHILL A Professional Corporation

25

26

FRANCIS A. HARDIMAN

Attorney for Plaintiffs
27

28

30

 
 Francis X. Hardiman Bar #1405CW Margaret M. Cahill Bar #138231
HARDIMAN & CAHILL
Attorneys ac Law 1560 Brookhollow
Suite 114 SANTA ANA. CALIFORNIA 92T0J
(714) J56-2Z33 Facsimile (714) 5J6-5223
Attorneys for: R i c h a r d S . eC a l .

(SPACE 8ELOU FOR FILING STAMP ONLY) Richard S. v. Dept. of Developmental Serv. of Cal.
MR-CA-004-004

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R., VALDINA )

R., and ROES 1 through 800,

)

121 individually and on behalf of all \

those similarly situated by

13

WILLIAM CA3LE, M.D. as Guardian ad Litem

CASE NO:

14

Plaintiffs,

15

vs

16 DEPARTMENT OF DEVELOPMENTAL SERVICES OF THE STATE OF

17 CALIFORNIA, FAIRVIEW DEVELOPMENTAL CENTER, SOUTH

18 COAST REGIONAL-PROJECT, HARBOR REGIONAL CENTER, REGIONAL CENTER )

19 OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL )

20 LOS ANGELES REGIONAL CENTER,

)

WESTSIDE REGIONAL CENTER, DENNIS )

21 G. AMUNDSON, as Director of the )

DEPARTMENT OF DEVELOPMENTAL

)

22 SERVICES STATE OF CALIFORNIA, )

HUGH KOHLER, as Executive

)

23 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER, LILIA TAN )

24 FIGUEROA, M.D., as Medical

)

Director of FAIRVIEW

)

25 DEVELOPMENTAL CENTER, DAWN

)

LEMONDS as director of SOUTH

)

26 COAST REGIONAL PROJECT, and Does )

1 through 500, inclusive,

)

27

)

28

Defendants

)

DECLARATION OF FREDERICK HERZIG, M.D., IN SUPPORT OF PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Date: March 20, 1997 Time: 10:00 a.m. Place: Federal District Court, Santa Ana, California

1

I, FREDERICK HERZIG, M.D., declare:

2

1. I am a physician and surgeon duly licensed to practice

Medicine and Surgery in the State of California. If called to

testify in this matter, I would and could testify to the

following facts.

2. That I was in the private practice of general surgery

in Orange County, California for more than 22 years.

3. That I was formerly a member of the surgical attending

staff at the University of California, Irvine.

10

4. That I.was formerly a member of the board of directors

11 of Tustin Community Hospital, in Tustin, California. That I was

121 on the surgical committee and Chairman of the Bylaws committee

13 at Tustin Community Hospital. That I was a member of the

14 medical and surgicl staff and a member of the Surgical Committee

15 at Western Medical Center.

16

5. That I have six and a half (6 1/2) years experience

171 working with the developmentally disabled at Fairview

18 Developmental Center, Costa Mesa, California.

19

6. That I was the Chief of the Medical Staff at Fairview

20 from January 1, 1995 through December 31, 1996 arid- was succeeded

21 in that position by William Cable, M.D.

22

7. I have read the peer reviewed article by Struass

231 demonstrating a 74% excess in mortality in the community

24 compared to the institution in California.

25

8. That is too high a figure and is not medically safe.

26

9. Strauss's report confirms my clinical impression.

27

10. That it is my opinion that this should not be allowed

28

lj to continue and urgent intervention is needed to stop the

2 inappropriate discharges to community placement that are

occuring at Fairview.

11. During the period of time I have been at the vast

51 majority of exit conferences on my patients.

12. I had reservations about the suitability of many of

those placements.

13. I was told by administration, specifically a program

director, that physicians should not be concerned where the

10 patient was placed.

11

14. I was told that the lay staff was more qualified to

12 make placement decisions and that the decision was not up to the

13 doctors as to whether the patient was to be placed into the

14 community.

15

15. I was retaliated against for involving myself with

16 COFFELT discharges.

17

16. I was transferred from duties on exit conferences.

18

17. The Medical Executive Committee, in December, 1996 was

19 unable to obtain a candidate for election to succeed Dr. Cable.

20

18. There are two vacancies on the Medical Executive

21 Committee and the Committee has been unable to find any

22 physicians willing to volunteer for this duty.

23

I declare under penalty of perjury under the laws of

24 the United States that the foregoing is true and correct.

25

Executed on: "fatcC M. /f?7

26

27

28

FREDERICK HERZIG, M.D., DECLARANT

 
 (SPACE BELOU FOR FILING STAKP ONLY)

.1 Francis X. Hardiman Bar #140504
Margaret M. Cahill Bar #138231

2

HARDIMAN 4 CAHILL

Attorneys a t Law

3

1560 BrookhoUuw

Suite 114

4

SANTA ANA. CALIFORNIA TI-OS (714) 556-^33

Facsimile (714) 356-3223
5 tor Richard S. et a l .

6

R chard S. v. Dept. of Developmental Serv. of Cal.

Illl

H

fl

Illl

HI •

MH • •

MH

m _ _»» _-

MR-CA-004-005

7

8

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R., VALDINA

R., and ROES 1 through 800,

12

individually and on behalf of all those similarly situated by

13

WILLIAM CABLE, M.D. as Guardian ad Litem

14

Plaintiffs,

15

vs

16 DEPARTMENT OF DEVELOPMENTAL

SERVICES OF THE STATE OF

17 CALIFORNIA, FAIRVIEW DEVELOPMENTAL CENTER, SOUTH

18 COAST REGIONAL PROJECT, HARBOR REGIONAL CENTER, REGIONAL CENTER

19

OF ORANGE COUNTY, SAN DIEGO REGIONAL CENTER, SOUTH CENTRAL

20 LOS ANGELES REGIONAL CENTER, WESTS IDE REGIONAL CENTER, DENNIS

21 G. AMUNDSON, as Director of the DEPARTMENT OF DEVELOPMENTAL

22

SERVICES STATE OF CALIFORNIA, HUGH KOHLER, as Executive

23

Director of FAIRVIEW DEVELOPMENTAL CENTER, LILIA TAN

24

FIGUEROA, M.D., as Medical Director of FAIRVIEW

DEVELOPMENTAL CENTER, DAWN 25 LEMONDS as director of SOUTH

26

COAST REGIONAL PROJECT, and Does 1 through 500, inclusive,

27 Defendants
28

CASE NO:
DECLARATION OF WILLIAM CABLE, M.D., IN SUPPORT OF PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Date: March 20, 1997 Time: 10:00 a.m. Place: Federal District Court, Santa Ana, California

1

I, WILLIAM CABLE, M.D., declare

2

1. I am a Neurologist/Psychiatrist, Internist and

Pediatrician and have been employed at Fairview State Hospital,

Costa Mesa, California since May, 1994.

2. I am the present elected Chief of the Medical Staff at

Fairview having assumed that position on January 1, 1997.

3. I am a 1970 medical graduate from the University of

Orago, New Zealand. I completed my internship at Rush Medical

Center, Presbyterian, St. Lukes's Hospital in Chicago. I then

10 served my residencies in Neurology, Psychiatry, Internal

11 Medicine and Pediatrics at the Massachusettes General Hospital,

12 Boston, Massachusettes. Prior to that I had obtained a grant

13 and completed a short fellowship at the National Institutes of

14 Health in Washington, D.C. and completed a second fellowship in

15 Neuro-pathology at the University of Lauzanne, Switzerland.

16

4. I am a Board Certified Neurologist and Psychiatrist

17 and Board Eligible in Internal Medicine and Pediatrics.

18

5. I have practiced in Orange County for more than

19 fifteen (15) years. I was elected and served for two years as

20 Chairman of the Department of Neurology and Psychiatry at Hoag

21 Memorial Hospital Presbyterian in Newport Beach. I was also

22 elected and served as the Chairman of the Department of Internal

23 Medicine at Huntington Beach Community Hospital. After two

24 years at FAIRVIEW I was elected as the Chief of Staff-Elect,

25 becoming Chief of Staff on January 1, 1997. I am also on the

26 courtesy staff at Fountain Valley Community Hospital and still

27 maintain a small private practice in Newport Beach, CA.

28

6. There is an immediate risk to life from premature

discharge from Fairview Developmental Center to community

placement. Clients are being discharged to unsafe environments

under the care of poorly or inadequately trained personnel.

Many recent reports of deaths appears to validate the published

peer review data.

7. The Courts intervention is need now to prevent

unnecessary deaths and injuries. There is an immediate need to

at least a temporary hold on these discharges.

8. Patients are being discharged without adequate medical

10 oversight and physicians are under threat of suspension or worse

11 for opposing discharges on medical grounds.

121

9. The community mortlaity rate is almost twice that of

13 the i n s t i t u t i o n in California for the adult developmentally

14 disabled. There has been an increase in anecdotal reports of

15 death and injury.

16

10. There is an expected increase in discharges in the

17 next few months to make room for transfers from Camarillo State

18 Hospital in Ventura which is closing this summer.

19

11. Physicians have been retaliated against including

20 myself.

21

12. I was suspended for 10 days without pay and charged

22 under California Government Code §19572 with "dishonesty" and

2 3 inexcusable neglect of duty for writing a letter to a regional

2 4 center doctor informing him that important medical information

25 had been deleted from the medical record. I had opposed the

2 6 discharge of a profoundly retarded individual with multiple and

27 serious medical problems. I was also charged with opposing

28 state policy. This is untrue.

13. Parents of clients are not informed of exit

conferences.

14. Clients without conservators are the ones most at

risk. Without a parent or physician or to assert their rights

these patients have been preferentially selected by regional

centers for discharge.

15. There is no avenue for them to appeal decisions which

are being made by non medical personnel.

16. The remaining clients at Fairview are almost all

profoundly retarded with serious medical problems. Such

10 decisions can not be allowed to remain in the hands of untrained

11 personnel.

12

17. Considerable medical judgment is needed in evaluating

13 the appropriateness of these remaining clients.

14

18. Physicians are denied access to crucail client

15 information.

16

19. The Medical Executive Committe, of which I am

17 Chairman, was recently subjected to a "cease and desist" order

18 when trying.to investigate hip fractures at Fairview.

19

20. The .recent death of young 30 year old mother and the

20 serious injuries to her three children is most disturbing.

21 Client "JW", discharged from Fairview a little over two years

22 ago over the strong protests of the parents because of his

23 history of aggressive behavior, is alleged to have freed himself

24 from his seat belt on a bus and attacked a bus driver resullting

25 in the crash of the bus. Parental and physician input is

26 ignored.

27

28

I declare under penalty of perjury under the laws of

the State of California and of the United States that the

foregoing is true and correct.

4

Executed on: MA-S^X. t?™> ' f f T.

6
I 7
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WILLIAM CABLE, M.D., DECLARANT

 
 (SPACE B6L0U FOR FILING STAMP ONLY)

1 Francis X. Hardiman Bar #l-i0504
Margaret M. Cahill Bar #138231

2

HARDIMAN & CA1ULL

Attorneys a t Law

3

1260 Brookhoiluw

Suite 114

4

SANTA ANA. CALIFORNIA 92705 (714) 55&-2233

Facsimile (714) 556-5223

5 for: Richard S. e t a l .

6

R chard & v Dept o Developmental Serv. of Cal. MR-CA-004-006

7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R., VALDINA

R., and ROES 1 through 800,

12 individually and on behalf of all those similarly situated by

13

WILLIAM CABLE, M.D. as Guardian ad Litem

CASE NO:

14

Plaintiffs,

DECLARATION OF JOCELYN

15

vs

DOROUGHTY, M.D., IN SUPPORT OF PLAINTIFFS' APPLICATION

16 DEPARTMENT OF DEVELOPMENTAL -

FOR TEMPORARY RESTRAINING

SERVICES OF THE STATE OF

ORDER AND PRELIMINARY

17 CALIFORNIA, FAIRVIEW

INJUNCTION

DEVELOPMENTAL CENTER, SOUTH

18 COAST REGIONAL PROJECT, HARBOR

REGIONAL CENTER, REGIONAL CENTER )

19 OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL )

20 LOS ANGELES REGIONAL CENTER,

)

WESTSIDE REGIONAL CENTER, DENNIS )

21 G. AMUNDSON, as Director of the )

DEPARTMENT OF DEVELOPMENTAL

)

22 SERVICES STATE OF CALIFORNIA, )

HUGH KOHLER, as Executive

)

23 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER/ LILIA TAN )

24 FIGUEROA, M.D., as Medical

)

Director of FAIRVIEW

)

25 DEVELOPMENTAL CENTER, DAWN

' )

LEMONDS as director of SOUTH

)

26 COAST REGIONAL PROJECT, and Does ) Date: March 20, 1997

1 through 500, inclusive,

) Time: 10:00 a.m.

27

) Place: Federal District

28

Defendants

) Court, Santa Ana, California

1

I, JOCELYN DOUGHERTY, M.D., declare

2

1. I am a Neurologist employed at Fairview Developmental

Center, Costa Mesa, California since April, 1975.

2. I graduated with an M.D. from the University of Kansas

in 1967. I completed my internship and Neurology residency from

1967-1972 at Presbyterian Hospital, San Francisco and the

University of California, Davis. I then completed a two (2)

year fellowship in Neuro-ophthalmology at Columbia University

Medical School, New York City. During my fellowship I was a

10 member of the clinical teaching faculty at the Bronx V.A. 11 Hospital, New York City.

12

3. I am a licensed Physician and Surgeon in the State of

13 California (Lic.# C30577).

14

4 . 1 have twenty one (21) years experience in the medical

15 care of the developmentally disabled at Fairview State Hospital.

16

5. I am a Diplomate of the American Board of Quality

17 Assurance.

18

6 . 1 am presently a member of the Medical Executive

19 Committee and Secretary of the Medical Staff at Fairview • .

2 0 Developmental Center, Costa Mesa, California. •

• "•

21

7. There is an urgent need to call a temporary halt to

22 discharges from Fairview Developmental Center to community

23 placement, skilled nursing facilities or other non institutional

2 4 settings until the community homes are established to be

25 reasonably safe. Many homes have LVNs and no RNs.

26

8. Deaths of our discharged clients are numerous enough

2 7 to indicate an alarming trend.

28

9. If the discharges continue we may expect additional

2

deaths.

10. A 1996 published peer reviewed medical article by Dr.

David Strauss shows a 74% increased mortality of the

developmentally disabled adults in the community as compared to

the institutions in California.

11. On or about December 15, 1996, and since the filing of

the Cable lawsuit, client "JB", who had been a long term

Fairview patient, and a patient of mine, was transferred from

the skilled nursing facility at Fairview to a private skilled

10 nursing facility.in Long Beach, California. Within twelve (12)

11 days of transfer "JB" died. Despite having personally contacted

12 client records at Fairview who called the coroner's office I

13 have been able to found out few of the facts concerning JBs

14 death. Fairview client records told me that it might take

15 months for me to obtain the autopsy report.

16

12. I personally reviewed the medical chart, of patient

17 "X" who was transferred from the skilled nursing facility at

18 Fairview Hospital to private community placement at one of the

19 group "soccer homes" which were built on land adjacent to

20 Fairview. Shortly after such transfer patient "X" drowned in a

21 bath tub in the home.

22

13. On or about 1994 patient "Y", who had been a long term

2 3 resident at Fairview and was under my care for a short time, and

24 had a nephrostomy tube, died within six (6) months of transfer

25 and discharge from Fairview. I believed that he should not have

26 been transferred.

27

14. I had been informed that doctors were not to give

28 their opinion about the suitability of discharges.

15. I was informed that doctors could not call the coroner

regarding the cause of death of their patients and I took this

to extend to patients discharged.

16. Part of patient care is discharge planning and we are

not allowed to participate in that aspect of patient care.

17. Therefore, Fairview patients subject to discharge are

not getting the medical input that is required to ensure that

their medical condition is stable enough for the placement that

is being offered by the State.

10

18. Physicians and staff at Fairview are justifiably

11 fearful that if they complain about the discharges they will

12 suffer retaliation. This has a deleterious effect on proper

13 placement.

14

19. The patient population at Fairview has been slashed to

15 less than one third of its peak census.

16

20. More than 90% of the clients remaining at Fairview are

17 the most severely and profoundly mentally disabled with serious

18 medical problems.

19

21. Clients whose discharge from Fairview requires

20 considerable experience and judgment are essentially being

21 discharged by social workers who do not have the training and

22 experience to gauge the suitability of the placement.

23

22. My experience in the DDS system is that follow up

24 reports from the community are not given to physicians. Most

25 reports that I hear about arrive at Fairview fairly long after

26 the event. I have never received individual case reports

27 through official channels.

28

23. I believe that I have an obligation to know what

4

becomes of my discharged patients, but I am not allowed to know what happens to my patients.
24. A temporary hale to discharges is needed to ensure quality care.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.
Executed on: P/lj.£ If I if 7
JOCE-^YN BOO'GHSRHY, M.D., DECLARANT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

 
 Francis X . Hirdiman Ba r #140504 Margaret M . CahiU Ba r #138231
HARDIMAN * CAJCL L Attorneys a t La w
lioO BrookbuUow Suite 114
SANTA ANA . OUJFORNI A 927Q3 (714) 556-22J3
Fieimile ( 7 K ) 536-522 3
Attorneys for: R i c h a r d S . e t fil •

(SPACE BELOW FOR FILING STAMP ONLY) Richard S. v. Dept. of Developmental Serv . of Cal.
MR-CA-004-007

7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R. , VALDINA

R. , and ROES 1 through 800,

1

individually and on behalf of all those similarly situated by

13

WILLIAM CABLE, M.D. as Guardian ad Litem

14

Plaintiffs,

15

vs

16 DEPARTMENT OF DEVELOPMENTAL

SERVICES OF THE STATE OF

17 CALIFORNIA, FAIRVIEW

DEVELOPMENTAL CENTER, SOUTH

18 COAST REGIONAL PROJECT, HARBOR

REGIONAL CENTER, REGIONAL CENTER )

19 OF ORANGE COUNTY, SAN DIEGO )

REGIONAL CENTER, SOUTH CENTRAL )

20 LOS ANGELES REGIONAL CENTER, )

WESTSIDE REGIONAL CENTER, DENNIS )

21 G. AMUNDSON, as Director of the )

DEPARTMENT OF DEVELOPMENTAL )

22 SERVICES STATE OF CALIFORNIA, )

HUGH KOHLER, as Executive )

23 Director of FAIRVIEW

DEVELOPMENTAL CENTER, LILIA TAN )

24 FIGUEROA, M.D., as Medical ) Director of FAIRVIEW

2! DEVELOPMENTAL CENTER, DAWN

LEMONDS as director of SOUTH

26 COAST REGIONAL PROJECT, and Does 1 through 500, inclusive,

27

Defendants )

28

)

CASE NO:
DECLARATION OF LINDA COPELAND, M.D., IN SUPPORT OI PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Date: March 20, 199 7 Time: 10:00 a.m. Place: Federal District Court, Santa Ana, California

1

I, LINDA COPELAND, M.D., declare

2

1. I am a board certified Pediatrician with a

subspeciality i n pediatric Developmental Disabilities. I am a

licensed physician and surgeon in the State of California. I f

called a s a witness in a Court of law I could and would testif y

to the following fact s which are of my own personal knowledge:

2. I am presently employed as a staff pediatrician wit h

Kaiser Permanente North in Sacramento, California. A s a staf f

pediatrician and sub-specialist in developmental disabilities at

10 Kaiser I evaluate and refer patients to the Alta Californi a

11 Regional Cente r ("Alta") .

12

3. I was formerly a clinical associate professor o f

13 pediatrics and a member of the voluntary teaching staf f a t the

14 University of California, Davis.

15

4. I have twelve years experience as a physician i n the

16 field of developmental disabilities i n children and adults.

17

5. Attache d hereto as Exhibit #1 is a true and correc t

18 copy of my curriculum vitae.

19

6. I was the Medical Director of -the Alta Californi a

20 Regional Center ("Alta" ) in Sacramento, California fro m July,.

21 1993 until ray departure in September, -.1994. "prior( to. becoming 22 Medical Director I was a staff physician at Alta fo r five (5 )

23 years

24

7. Alt a is one of the twenty one (21 ) Regional Center s

25 serving Californians with Developmental Disabilities unde r the

26 Lanterman Act.

27

8. Regiona l Centers are private non-profit agencie s tha t

28 contract with the Department of Developmental Service s (DDS ) to

provide service s within local communities for the

developmentally disabled . Regiona l centers are not hospitals

and do not operate clinics.

9. Base d upon my background, training and experience, my

six (6 ) years with Alta, and my stewardship as a Medical

Director of a regional center during the early implementation of

the "Coffelt " agreement, it is my opinion that there are seriou s Quality Assurance deficiencies endemic to the system especiall y

in the areas of communication, coordination and accountabilit y

10 whic h detrimentally impacts upon the health and safety of

11 childre n an d adult developmentally disabled persons.

12 10

. I n my experience as medical director of the Alta

13 Californi a Regional Center, I became aware of the followin g

14 disturbin g incidents:

15 A

. Clien t "V" had suffered a stage 4 decubitus•ulcer

16 (a n open sor e all the way down to her sacral bone from not being

17 turne d i n bed). Th e community care provider contracted t o care

18 fo r her had been charged with criminal felony neglect. I found

19 abou t the incident totally by accident when I heard two socia l

20 worker s talking about it in the hallway. Ther e was no

21 infrastructure , no formal procedural guidelines, to ensure that

22 th e Medical Director would be kept appropriately informe d of

23 critica l medical issues affecting the well being of clients. 24 Thereafter , I and the senior R.N. drafted proposed procedures to

25 kee p me informed of medical incidents. The y were less than

26 warml y receive d and inconsistently followed .

27 B

. I learned last summer that Client "M" , drowned a t a

28 cam p vendored by another regional center. Clien t "M " was a non-

swimmer and had a seizure disorder that was clearly state d to camp personnel. Nonetheless , Client "M " was allowed int o the pool area without a life jacket and without a 1:1 attendant . Client "M " was found floating face down in the pool and coul d not be resuscitated. Subsequently , two weeks after the drowning incident I called a staff physician, who I believe is the Medical Director, at the regional center that vendored the camp. Th e doctor told me that she had not been informed of the 9 drowning . I later learned fro m the California Healt h and

10 Welfar e Agency that there is no licensure requirement fo r camps

11 fo r the developmentally disabled.

12 C

. Th e tragic drowning of a preschool aged boy in another

13 Alta-vendore d communit y care facility is also public record.

14 Clien t Y, about age 4 or 5, had Autism Spectrum Disorder. Ther e

15 wa s a legally required fire-escape door in his bedroom. H e

16 apparentl y got out this door into the back yard, where he

17 manage d to climb into the pool and suffered a fatal drowning

18 durin g my term as medical director. Communit y Care Licensing

19 ha d suggested putting alarms on fire escape doors to detect just

20 suc h undesirable exiting of clients as had occurred i n this

21 case . Whe n I suggested to Alta administration tha t nurses could

22 b e hired for monitoring of safety features in community car e

23 home s there was no response to this suggestion. Month s after I

24 resigne d my position at Alta I was surprised to lear n that the

25 caregive r had been criminally prosecuted for child endangerment.

2 6 Administratio n at Alta did not share with me the fact that this

27 crimina l prosecution of a care provider was ensuing while I was 28 medica l director. Th e criminal case had been pursued because

the child who drowned had not been checked for an inordinat e

amount of time (1 3 hours I believe). Th e backyard gat e had been

left open and the dough-boy pool steps had been left down. Whe n

the paramedics were called to resuscitate the boy they could not

reach him in a timely manner because of the care-provider's pi t

bull preventing them from doing so right away. Thes e additiona l

safety questions had not been brought to my attention when I

initially foun d about the incident and the question arises as to

whether these care providers were over-taxed i n their ability to

10 care for clients.

11

C. Som e regional center personnel seemed to have

12 inadequate training to realize the importance of medical issue s

13 or the need to involve diagnostic staff. I found it necessary

14 to periodically go to different Unit meetings to emphasize the
15 importance of medical issues and the need to communicate with
16 diagnostic staff. I recall one such Unit meeting when a social
17 worker, close to the end of the meeting, seemed to almost 18 hesitate before asking if it was appropriate to inform me that 19 her client, Client "W" , was known to be-HIV positive and had 20 informed her that they were engaged in unprotected intercours e
21 with other clients in the community care facility they reside d
22 in. I informed this social worker that this was exactly th e 23 kind of issue that was imperative to involve medical staf f 24 because of the enormous health risks involved, liability issues, 25 and the regional center's obligation to protect the well-being 26 of all clients served. I passed on information to this socia l 27 worker s o that Client "W " could receive additional confidentia l 28 sexuality counselin g with Planned Parenthood in the Sacrament o

Valley. I also contacted ARCA AIDS office and talked to persons

regarding AIDS education services for DD clients. Additionally ,

I arranged for notification of known sexual contacts s o that they could be informed of the availability of confidential HIV testing.

11. A s my year as Medical Director unfolded, it seemed to

me that each week I was confronted with new, serious situations, affecting quality of care of clients i n the community. I became increasingly uneasy about what I would "fin d out next". Wha t

10 resource s I did have to address discovered problems I felt I had

11 t o dig and research to come up with, as there was no centralize d

12 sourc e of resource information that empowered me clinically to

13 d o what I felt my jo b to be.

14 12

. Clien t X was a young retarded woman known to have been

15 previousl y sexuall y abused with subsequent development of

16 provocativ e behaviors on her part. Sh e was placed i n a care 17 hom e operated by a woman whose husband was a police officer, 18 afte r carefully describing the client's situation and

19 provocativ e behaviors. Subsequently , the care provider's

20 husban d had sex with the client, and was charged with rape. Th e

21 office r was acquitted of rape, as testimony suggested that

22 Clien t X could give informed consen t for consensual relations.

23 13

. Clien t Z, a severely retarded woman, was brought to my

24 attentio n as a suspected sexual abuse case. Th e care provider

25 i n this facility was herself i n her eighties, had Parkinson's

26 disease , had recently had surgery and had become confined to a 27 wheelchair . Sh e also required a foley catheter. Tw o of the 2 8 hire d personnel were believed to be previous Regional Cente r

clients. Clien t Z was referred to a gynecologist and

additional, qualified staff, were hired.

14. A n on-going crisis throughout my whole term as Medical

Director was the difficulty i n accessing medical care for

clients with Medi-Cal as their only form of health coverage.

15. Thi s consumed a lot of my time, as fewer and fewer

physicians in our catchment area would accept Medi-Cal, a

problem beyond my control. I did what I could to ensure health

care access in individual cases I was made aware of, frequently

10 writin g letter s of referral to departments a t UC Davis Medical

11 Center , but even UCDMC became harder to access as time went on.

12 16

. Th e Geographic Managed Care (GMC ) program fo r Medi-Cal

13 wa s initially implemented i n Sacramento during my year as

14 medica l director. Whil e this solved some problems of access fo r

15 Medi-Ca l client s (an d I would venture to guess the majority of

16 Alta' s clients are covered by Medi-Cal), it created other access

17 problems , especially access to specialists that might not be

18 panele d with a particular GMC health plan. Fo r instance, a

19 numbe r of clients with complicated metabolic disorders (suc h as

20 PKU ) who had previously been followed closely by University of

21 Californi a Davis, ("UCD") specialists and clinics were no longe r

22 abl e to go to'UCD if they chose other GMC plans (th e latter of

23 whic h typically did not have comprehensive metabolic clinics) .

24 17

. Acces s to mental health services is an on-going

25 critica l issue for Alta clients.

26 18

. Ther e were frequent mental health crises for a

27 substantia l number of Alta clients resulting in failed communit y

2 8 car e placements, sometimes local psychiatric hospitalization,

and at times a need to be placed in a State Developmenta l

Center.

19. I n my clinical opinion, the dual diagnosed client ,

with both a developmental disabilit y and a mental health illnes s

(e.g. schizophrenia, depression, sexual offender) remains a

great challenge to the whole DDS system.

20. Th e vast majority of clients remaining i n State

Developmental Centers have severe behavior problems, and the

majority are adults.

10 21

. I n my opinion the community was not prepared fo r

11 Coffelt , especially the discharges of the dual diagnosed, which

12 wa s a time bomb waiting to happen.

13 22

. I was informed that if Alta did not meet its Coffelt

14 placemen t goals that Alta would be financially penalized b y the

15 DDS .

16 " 23 . Clien t S, a 17 year old with mild mental retardatio n

17 ha d been committed to a State Developmental Cente r at age 16

18 becaus e of severe physical aggression. H e showed some .

19 improvemen t in the developmental center, - and was then placed in

20 a community home-. I On or about March,, 1994, the caregivers had;; 21 t o .cali/.the* police ^because of client. Sv'.s put" of ^contrpl^. ,r .| /,,'• 22 behavior . Tw o days late r the careproviders gav e seven (7 ) days

23 notic e to have Client S moved. I t was later rescinded but they

24 stil l requested movement of the client. A n incident occurred at

25 schoo l where he attempted to stab someone with a pencil.

26 Verball y aggressive incidents recurred on the school bus. The n

27 a t the community home he got into an altercation with anothe r

28 client , punched and bit the other client on the leg, and got a

wire from a garbage can, poking a staff person in the hand with

it. I left Alta without finding out the outcome of this case.

24. Alt a over the years has renewed Memorandums of

Understanding (MOUs ) with County Mental Health Services . Man y

social work case managers came to me as medical director when

they felt their clients were not receiving necessary mental

health services, especially fo r acute crisis, because of turf

issues in which Mental Health Agencies would simpl y indicate the

client was Alta's problem. I n other words, the mental illnes s

10 was overlooked an d only the developmental disability was focused 11 on, throwing the entire problem in Alta's lap despite that Alta 12 has no psychiatrist on staff, and is a social work agency, not a 13 hospital or clinic.

14

25. Becaus e of my background in child psychiatry and

15 psychotropic medication, and the tremendous mental health needs

16 of our clients, I offered my services to participate with Alta

17 administration i n renewing Alta's MOU with County Mental Health,

18 but my offer was declined.

19

26. Anothe r area giving rise to serious safety concern s

20 were medication errors that were made when clients were

21 transferred fro m one community care facility to another. Thi s

22 often necessitated chang e in the client's'personal physician due

23 to geographic reasons. Ther e were a number of instances where

24 vital medication orders were dropped during such transfers.

25 A client with schizophrenia became actively psychotic when their 26 anti-psychotic medication order was not renewed i n transfer, ? 'it

27 their medicine to counteract side effects of the antipsychotiw

28 medication was continued.

27. I t has been my experience that the Regional Center' s

Administration di d not effectively suppor t diagnostic staf f

(physicians, nurses and psychologists) in their roles to protect

clients and meet Lanterman mandates.

28. Th e latter fact was highlighted by a serious turnove r

and attrition of diagnostic staf f over my six-years of

employment at Regional Center. Diagnosti c staf f had 100 % turn-

over those six years.

29. Whe n I first started employment at the Regional

10 Center , I was one of three physicians on the medical staff . Th e

11 yea r I assumed Medical Directorship, I was. the only remainin g

12 physician .

13 30

. Despit e a substantial- increase in the number of

14 client s serve d by the Regional Centers as a result of Coffelt,

15 an d the horrendous complexity of problems caring for many of

16 thes e clients in the community, staffing has been decreased.

17 31

. Afte r I left there was no physician on staff at Alta

18 an d the Regional Center took ten (10 ) months to recruit and hire

19 anothe r Medical Director.

20 32

. I am informed and believe, that some Alta Regiona l

21 Cente r clients are residents at Fairview Developmental Cente r as

22 wel l as residents of other California developmental centers.

23 33

. Therefore , I believe that my experiences at Alta have

24 relevanc e to those Alta clients presently resident at Fairview

25 wh o may later be discharged fro m Fairview back to this area or

2 6 whos e parents may move to this area or to other Fairvie w

27 resident s who may be placed i n community homes or supportiv e

28 livin g arrangements within Alta's catchment area who are

10

technically clients of other regional centers.

34. O n or about late November or early December, 1996,

Mr. Hardiman, counsel for Dr. William Cable, telephoned me and

indicated that he had contacted me because of my expertise in developmental disabilities and my experience as a regional center medical director in the California developmenta l

disabilities system .

35. I was asked to review certain documents provided to me

(attached hereto as Exhibit #2) related to charges brought

10 agains t Dr. Cable by DDS pursuant to California Government Code

11 § 19572 and to provide my opinions regarding Dr. Cable's 12 professiona l conduct within the context of the DDS, the standard

13 o f care, neglect of duty, violation of policy and client

14 confidentiality .

15 36

. I t is my opinion, based upon my background, training,

16 experienc e and the documents I have reviewed and attached heret o

17 a s Exhibit #2, that:

18 a

. Dr . Cable's conduct, with regard to clients VR and CR,

19 wa s well within the standard of care for the medical communit y

20 an d for a medical member of the "interdisciplinar y team " 21 responsibl e for the development and implementation of regional 22 cente r clients' individual program plans <"IPP") .

23 b

. Ther e are no facts to support an allegation that Dr.

24 Cable' s conduct , in the context of an "exi t conference" or

25 follo w up by letter, constitutes "inexcusabl e neglect of duty"

2 6 a s I understand or experienced the duties of a physician and

27 interdisciplinar y tea m member to be in the DDS/Regional Cente r

2 8 scheme .

11

c. Dr . Cable's conduct did not "demonstrat e a disregard of the Department's well established goa l of community placemen t of clients". O n the contrary, it is my opinion that Dr. Cable's conduct i n seeking to assure that a parent or family member was informed o f the risks and benefits of the proposed communit y placement, in seeking to alert the regional center medical director that important information had been deleted fro m a client medical record, in seeking to assure client safety, wellness an d adequacy of training promoted the longer

10 establishe d policy of integrating the clients into a reasonably

11 saf e environment rather than simply "communit y placement".

12 d

. Dr . Cable's letter to Dr. Raymond Peterson, Medical

13 Directo r of the San Diego Regional Center regarding deleted

14 informatio n in a client's medical record was, in my opinion,

15 proper , appropriate and did not violate client confidentiality .

16 e

. ' A t this time the published peer reviewed and most

17 reliabl e data indicates that there is a higher mortality i n the

18 developmentall y disabled in the community, in California, as

19 compare d to the institutions.

20 • f . Ther e was no conduct by Dr. Cable that I saw in the

21 document s I reviewed that could be characterized a s "dishonest".

22 37

. I t is my opinion based upon my training, background

2 3 an d experience as a Medical Director of a Regional Center, my

24 backgroun d with the DDS/Regional Center system and my Coffelt

25 experience s that the disciplinary actions of reprimand and

2 6 suspensio n without pay resulting, from the conduct which

27 occurred , as reflected in the documents set forth in Exhibit #2,

28 i s retaliatory i n nature.

12

38. Tha t based upo n my training, background an d experienc e

it is my opinion that the Medi-Cal Geographic Managed Car e

system operates disproportionately t o deny access to medical

care to the developmentally disable d i n the community setting .

39. Tha t based upon my training, background an d

experience, the published peer reviewed medical literatur e

concerning the developmentally disabled , the serious Qualit y

Assurance problems that I encountered i n the system, i t is my

opinion that community placement, as practiced i n California a t

10 th e present time, does not provide fo r reasonably safet y t o

11 thos e clients presently being discharged fro m developmenta l

12 centers .

13 I

declare under penalty of perjury under the law s of th e

14 Stat e of California and of the United State s that the foregoin g

15 i s true and correct.

16 -.' • , •'. ' -.'Executed o n :

17 At

:

18 19 5MTND

A COPELANDV MTD^ ,• DECLARANT

20

21

22

23

24

25

26

27 28

13

tJ i / U t /

CURRICULUM VITA E UNDA ELIZABET H COPE'^AND, M.D.

PERSONAL Work Address:

3240 Arden Way Sacramento, Californi a 9582 5

Home Phone:

Birthplace:

Pittsfield, Massachusett s

Marital Status :

Married; one son and one daughter

Social Securit y Numbe r

UNDERGRADUATE EDUCATION 1970-1971

Sacramento City College

1971-1975
MEDICAL EDUCATION 1975-1979

University o f California , Davis . Bachelor o f Science-Physiology . Ph i Beta Kapp a
School o f Medicine , Universit y o f Californi a Davis. M.D . Degree. Alph a Omega Alpha. Upjoh n Award fo r Outstandin g Clinica l Proficiency .

POST GRADUATE EDUCATION 1979-1980

Internship i n Pediatrics - Raymon d Blan k Children's Hospital . Iow a Methodist Medica l Center, Des Moines, Iowa.

1980-1982

Child Psychiatr y Fellowship, Universit y of Iow a Hospital s & Clinics, Iowa City, Iowa .

1982-1984

Pediatrics Residency , U . of Iow a Hospitals & Clinics, Iow a City , Iowa .

1984-1985
EMPLOYMENT July 1985-July , 198 8

Fellowship, Developmenta l Disabilities , University of Iow a Hospital s & Clinic s Iowa City , Iowa.
General Pediatrics Practice , Mose s Lak e Clinic, Mose s Lake , Washington.

August, 1988-June , 199 3 June, 1993-Sep t 199 4 Oct. 1994-Apri l 199 5

Developmental Pediatricia n at Alt a California Regiona l Center . Medical Director , Alt a Californi a Regiona l Cente r
Pediatric Medica l Associates, Sacramento,Ca.

• 62/87/199 7 09:2 4 8= 47 235 8

PAGE 0 .

May 1995-June,199 6 Foundatio

n Health Medical Group 500 Universit y Ave. Sacramento , Ca. 9582 S and Elk Grove/Roseville satellit e office s

July, 1996-present Kaise

r Permanent e Medica l Group
3240 Arde n Way. Pediatric s Sacramento, Ca. 9 58 25

BOARD CERTIFICATION February. 198 7 Boar
HOSPITAL APPOINTMENTS 1 9 8 5 - 1 9 8 8 Staf
T 9 8 9 - 1 9 91 Assistan
1994-present Staf

d Certified i n Pediatrics wit h AAP .
f Physician , Samaritan Hospital , 801 L Wheele r Road, Moses Lake, Washington, 98837 .
t Clinica l Professo r o f Pediatric s U C Davis Medical Center.
f Physician , Sutte r Memoria l Hospita l 5301 F Street Sacramento, Ca. 9581 9

PUBLICATIONS Journal o f Developmenta l an d Behavioral Pediatrics - "Pediatricians ' Reporte d Practices in the Assessment and Treatment of Attention Deficit Disorders; Vol. 8 , No . 4, August, 1987 , pp. 191-97.

Chapter Attentio n Defici t Disorder-Hyperactivit y i n "The Practica l Assessmen t and Management of Children with Disorders of Development an d Learning", Mark Wolraich-Editcr . Yearboo k Medica l Publishers , 1987 .

GRANTS Co-Author o f Proposa l #92-227 funde d by Sierr a Health Foundatio n i n 1 993 fo r
$75,000 ove r 3 years to develop early intervention behaviora l treatment service s for youn g ' autistic childre n networking with UCL A Young Autism Projec t

UCENSURE

1985 Washingto

n

1989 Californi

a

PROFESSIONAL SOCIETIES California State Medical Association Sacrament Sacramento-El Dorado County Medical Society Societ Fellow* American Academy o f Pediatric s Societ

o Pediatric Societ y y of Adolescent Medicine y o f Behaviora l Pediatric s

R e c e i v e d <.,

> • =>• .

-. -.

- B2/B7/1997 09:2 4 847823S

8 PA'G

E 63 '

coMMUNrnr SERVICE S
Board Membe r Assistanc

e t o Pregnan t an d Parenting Teens, 1986-198 8

Board Membe r Earl

y Childhood Services Organizatio n Grant County, Washingto n 1987 .

Board Membe r Hea

d Start, Gran t County. 1986-1988 .

Medical Consultant Consultatio

n Network fo r Child Abuse/Neglect,

University o f Washington , 1986-198 8

Board Membe r Familie

s fo r Earl y Autis m Treatmen t {FEAT), Sacramento , Ca. ; 1992-Presen t

REFERENCES: Availabl e upo n reques t

 
 (S?ACE BELOU FOR FILING STAMP ONLY)

Francis X. Hardiman Bar #140504 Margaret M. Cahill Bar #138231

2

HARDLMAN ic CAHILL

A t t o r n e y s ac Law

3

1360 Brookhoilow

Suite 114

4

SANTA ANA. CALIFORNIA 92705 (714) 556-233

FacsimJe (714) 5i6-5223

5
Aiiomevs for: R i c h a r d S. e t a l .

6

llfl • ? " • V ^ l ?
MR-CA 004-009

of Ca«.

7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S. , CYNTHIA R., VALDINA )

R., and ROES 1 through 800,

)

12 individually and on behalf of all )

those similarly situated by

\

13 WILLIAM CABLE, M.D. as Guardian i

ad Litern

i

14

Plaintiffs,

>

15

vs.

)

16 DEPARTMENT OF DEVELOPMENTAL

)

SERVICES OF THE STATE OF

)

17 CALIFORNIA, FAIRVISW

)

DEVELOPMENTAL CENTER, SOUTH

)

18 COAST REGIONAL PROJECT, HARBOR )

REGIONAL CENTER, REGIONAL CENTER )

19 OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL )

20 LOS ANGELES REGIONAL CENTER,

)

WESTSIDE REGIONAL CENTER, DENNIS )

21 G. AMUNDSON, as Director of the )

DEPARTMENT OF DEVELOPMENTAL

)

22 SERVICES STATE OF CALIFORNIA, )

HUGH KOHLER, as Executive

)

23 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER, LILIA TAN )

24 FIGUEROA, M.D., as Medical

)

Director of FAIRVIEW

)

25 DEVELOPMENTAL CENTER, DAWN

)

LEMONDS as director of SOUTH

)

26 COAST REGIONAL PROJECT, and Does )

1 through 500, inclusive,

)

27

Defendants

)

28

CASE NO:
NOTICE OF APPLICATION RE: APPLICATION FOR TRO AND PRELIMINARY INJUNCTION, DECLARATION OF FRANCIS X. HARDIMAN [Local Rule 7 . 1 8 . 1 ]
Date: March 20, 1997 Time: 10:00 a.m. Place: Federal District Court, Santa Ana, California

. \ \

1

I, FRANCIS X. HARDIMAN, declare:

2

1. That I am an attorney of record for Plaintiffs in this

action.

2. That the facts asserted herein are of my own personal

knowledge and that if called upon to testify in a court of law I

would and could testify to the following:

3. That.on March 19, 1997, I made the following efforts

to contact all adverse parries and their known attorneys as

follows:

10

4. That at 10:55 a.m. I contacted Tom Scheere, Esq. of

11 the California Attorney Generals office in Los Angeles who

12 represents the Department of Developmental Services in the

13 realted of action of Cable v. DPS Case no. SACV96 1190 GLT

14 (EEX) . I advised Mr. Scheere that we were filing a related

15 action and Application for TRO on March, 20, 1997 in this Court.

16 Mr. Scheere advised me to contact the Department of

17 Developmental Services ("DDS").

18

5. At or about 11:35 I received a telephone call in

19 response to my earlier call to the DDS. I spoke with Susan "

20 Geanacou, Esq. attorney representiing the DDS. I advised her

21 that I was notifying her pursuant to Local Rule 7.18.1. that

22 Plaintiffs would seek a Temporary Restraining Order and

23 Preliminary Injunction in the Federal District Court, Santa Ana,

24 on Thursday, March, 20, 1997 at 10:00 a.m. I identified the

25 Plaintiffs and Defendants and advised her that Dr. Cable was

2 6 filing an application to be appointed as Guardian ad Litem for

27 purposes of this action. I told her that the parents of

28 "Richard S. " had been contacted and were not opposed to I

2

1 identified the Causes of Action as Violations of Title II and V 2 of the Americans with Disabilities Act ("ADA")

3

2. I was informed that Tom Nixon, Esq., Woodruff,

4 Spradlin & Smart, 701 S. Parker St.,Suite 7000, Orange, CA 92868

5 Tel: 714/558/7000 would be representing Regional Center of

6 Orange County.

7

3. Bob Rubin, Esq., BRUMER, RUBIN & WESTON, 3600 Wiishire

8 Blvd., Suite 1120, Los Angeles, CA 90010, 213/487/7800, might

9 be representing San Diego Regional Center.

10

4. I contacted all Defendants at least twice on march 19,

1997. No others would confirm attorney representation.

11

Dated: March 20, 1997,

HARDIMAN & CAHILL

12

A Professional Corporatii

13

14

FRANCIS/. HARDIMAN

Attorney for Plaintiffs

15

I declare under penalty of perjury under the laws of

16 the State of California and of the United States thatvthe

foregoing is true and corrects

17

Executed on:

/

18 FRANCIS X. HARDIJSAN, rDECLARANT
19

20

21

22

23

24

25

26

27

28

 
 (SPACE BELOU FOR FILING STAMP ONLY)

1 Francis X Hardiman Bar #140504
Margaret M. Cahill Bar #138231

2
HARDIMAN & CAHILL

A t t o r n e y s a c Law

3

1560 BrookhoUow

Suite 114

4

SANTA ANA. CALIFORNIA 92703

(714) 556-2233

FicsUnik (714) S56-S223
5 Attorneys for R i c h a r d S . e t a l .

6

HlS|a|ll^iln,,I?.M5li1?l^£°Pmenta' Serv. of Cal. MR-CA-004-010

7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R. , VALDINA )

R., and ROES 1 through 800,

)

12 individually and on behalf of all \ those similarly situated by

13

WILLIAM CABLE, M.D. as Guardian ad Litem

CASE NO:

14

Plaintiffs,

NOTICE OF RELATED CASES

15

vs

LOCAL RULE 4-3.1

16 DEPARTMENT OF DEVELOPMENTAL

)

SERVICES OF THE STATE OF

)

17 CALIFORNIA, FAIRVIEW

)

DEVELOPMENTAL CENTER, SOUTH

)

18 COAST REGIONAL PROJECT, HARBOR )

REGIONAL CENTER, REGIONAL CENTER )

19 OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL )

20 LOS ANGELES REGIONAL CENTER,

)

WESTSIDE REGIONAL CENTER, DENNIS )

21 G. AMUNDSON, as Director of the )

DEPARTMENT OF DEVELOPMENTAL

)

22 SERVICES STATE OF CALIFORNIA, )

HUGH KOHLER, as Executive

)

23 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER, LILIA TAN )

24 FIGUEROA, M.D., as Medical

)

Director of FAIRVIEW

)

25 DEVELOPMENTAL CENTER, DAWN

)

LEMONDS as director of SOUTH

)

26 COAST REGIONAL PROJECT, and Does )

1 through 500, inclusive,

)

27

)

28

Defendants

)

Date: March 20, 1997 Time: 10:00 a.m. Place: Federal District Court, Santa Ana, California

TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF

RECORD:

On December 5, 1996, counsel for WILLIAM CABLE, M.D., filed

the within action [SACV 96 1190 GLT (EEX)] in the U.S. District

Court for the Central District of California in Santa Ana,

California.

Thereafter, on January 6, 1997, counsel for WILLIAM CABLE,

M.D., filed, before any known responsive pleading was filed, a

First Amended Complaint. A Second Amended Complaint was filed

10 on March 17, 1997.

11

Pursuant to Local Rule 4.3.1 Plaintiff's counsel

12 hereby files the within NOTICE OF RELATED CASES since it appears

13 that the within action and the Cable v. DDS case are related

14 actions:

15

1. call for determination of the same or

16 substantially identical questions of law and fact; or

17

2. are likely for other reasons to entail

18 substantial duplication of labor if heard by different judges.

19 Dated: March 20, 1997 20 21

HARDIMAN & CAHILL A Professional Corporation

" •

22

FRANCIS

I

Attorney for William Cable

23)

24

25

26

27

28

 
 Francis X. Hardiman Bar # Margaret M. Cahill Bar #138231
HARDIM.V.N A C.VHILL A t t o r n e y s a t Law
1560 Brookiollow Suiie 1U
SAiNTA ANA. CALIFORNLA 9TU5 (7U) 556-22J3
Fii:sinul< ("U) 556-5113
Andean tor: R i c h a r d S. e t a l .

(SPACE 86LOU FOR FILING STAMP ONLY)
R chard S. v. Dept. of Developmental Serv. of Cal. MR-CA-004-011

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R., VALDINA )

R., and ROES 1 through 800,

)

12

individually an.c OP. behalf of all ^ those similarly situated by

13

WILLIAM CABLE, M.D. as Guardian ad Litem

CASE NO:

14

Plaintiffs,

15

vs.

16 DEPARTMENT OF DEVELOPMENTAL

)

SERVICES OF THE STATE OF

)

17 CALIFORNIA, FAIRVIEW

)

DEVELOPMENTAL CENTER, SOUTH

)

18 COAST REGIONAL PROJECT, KAR30R )

REGIONAL CENTER, REGIONAL CENTER )

19 OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL )

20 LOS ANGELES REGIONAL CENTER,

)

WESTS IDE REGIONAL CENTER, DENNIS )

21 G. AMUNDSON, as Director of the )

DEPARTMENT OF DEVELOPMENTAL

)

22 SERVICES STATE OF CALIFORNIA, )

HUGH KOHLER, as Executive

)

23 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER, LILIA TAN )

24 FIGUEROA, M.D., as Medical

)

Director of FAIRVIEW

)

25 DEVELOPMENTAL CENTER, DAWN

)

LEMONDS as director of SOUTH

)

26 COAST REGIONAL PROJECT, and Does )

1 through 500, inclusive,

)

27

)

Defendants

)

28

DECLARATION OF DAVID J. STRAUSS, Ph.D., FASA, IN SUPPORT OF PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Date: March 20, 1997 Time: 10:00 a.m. Place: Federal District Court, Santa Ana, California

I, DAVID J. STRAUSS, declare:

1. That I am a research statistician working in the area of

epidemiology and that I am professor of Statistics at the

University of California, Riverside, California. I am not a

physician and surgeon.

2. That If called as a witness in a Court of law I could and

would testify to the following facts which are of my own

personal knowledge:

I

3. That I obtained my bachelor's degree, with first class

10 honors, from Cambridge University. Thereafter, I obtained my

11 Masters and Ph.D. degrees in statistics from Sussex University

12 in the United Kingdom.

13 4. That attached hereto and incorporated herein as Exhibit #1

14 is a true and correct copy of my latest curriculum vitae.

15 5. That I have twenty five (25) years experience in research,

16 teaching, publishing and working in the fields of theoretical

17 and applied statistics. I am presently engaged in epidemiologic

18 research at the "Life expectancy Project", U.C., Riverside.

19 6. That for the past seventeen (17) years our research group

20 at the University of California, Riverside has received and

21 analyzed "client data" provided to us by the California

22 Department of Developmental Services ("DDS") regarding

23 Californians with developmental disabilities.

24 7. That for a number of years our research and analysis of the

25 California DDS client data at UCR has been supported by a

2 6 substantial grant from the National Institutes of Health in

27 Washington, • D.C. ("NIH").

28

8. That the Department of Statistics and the "Life Expectancy

Project" at UCR is recognized as one of the leading research centers, if not the leader, regarding the study of mortality and morbidity of the mentally retarded and developmentally disabled in the United States and Canada. 9. That some time shortly after its execution in February, 1994, I became aware of the class action settlement in the "Coffelt Agreement" which called for expedited deinstitutionalization of ivo thousand (2000) developmentally disabled clients from California Developmental Centers. 10 10. That I was unaware in 1994 for—s-iikis)-of any study 11 published, commissioned or performed by the California DDS 12 concerning comparative mortality between the institutions and 13 clients discharged into community placement. 14 11. That shortly thereafter, on or about July, 1994, I provided 15 a senior DDS official with a copy of our groups manuscript 16 entitled "The Prediction of Mortality in Children with Severe 17 Mental Retardation The Effect of Placement" which was recently 18 published in slightly revised form in the peer reviewed October, 19 1996 edition of the American Journal of Public Health (attached 20 hereto and incorporated herein as Exhibit #2) is a true and 21 correct copy of said article). 22 12. That this study demonstrated "Own home residence and 23 community care facilities have an estimated 25% higher risk24 adjusted odds on mortality than institutions and health 25 facilities". 26 13. That on or about January, 1995, we permitted some copies of 27 our additional study; "Strauss, DJ and Kastner, TA (1996). 28 "Comparative mortality of people with mental retardation in

1 institutions and the community." American Journal on Mental 2 Retardation. 101" to be circulated (attached hereto and 3 incorporated herein as Exhibit #3 is a true and correct copy of 4 said article). 5 14. That in this study "Risk-adjusted mortality rates in 6 institutions and the community in California from 1980 through 7 1992 were compared with the aim of improving our understanding 8 of the capacity of the community health system to support 9 deinstitutionalization. Risk-adjusted odds on mortality were 10 estimated to be 72% higher in the community than in 11 institutions". 12 15. That I have beer, informed and believe that such article, 13 prior to its July 1996 publication date, was on or about 14 January/February 1995, widely circulated in the developmental 15 centers and its results known to the DDS, regional center and 16 developmental center personnel. 17 16. That in October, 1996, our department produced a follow-up 18 report (not published) " Strauss, DJ, Kastner, TA, Shavelle, R 19 "Comparative Mortality in institutions and in the community: 20 Additional findings" which we provided to the DDS. Such study 21 used a simpler method of calcualtion, did not use "statistical 22 modelling" as used in our earlier study and is widely used in 23 the epidemiologic community; "Using the different methodology, 24 we found that community care in 1985-92 was associated with a 25 74% increase in mortality — a result strikingly close to the 26 earlier one. This is evidence that the previous result was not 27 an artifact of the statistical procedures. For 1993-94, there 28 was an 82% increase in mortality odds associated with the

community. This may be viewed as an independent confirmation of

our previous findings, since the 1993-94 data have no overlap

with the study period we used in Strauss and Kastner (1996).

Further, the 1993-94 experience i^ relatively recent and is much

more representative of the current situation" (attached hereto

and incorporated herein as Exhibit #4 is a true and correct copy

of the additional findings report).

17. That all raw data used in the above referenced studies and

in the follow up report were obtained from the DDS itself and

10 and from California public records containing vital statistics.

11 18. That I have personally spent hundreds of hours of hands on 12 work in collecting, organizing, analyzing, preparing and

13 drafting for publication the above referenced studies and

14 reports.

15 19. That the methodology used in the a r t i c l e e n t i t l e d "Strauss,

16 DJ and Kastner, TA (1996). "Comparative mortality of people with

17 mental r e t a r d a t i o n in i n s t i t u t i o n s and the community." American

18 Journal on Mental Retardation, 101* was peer reviewed by ten

19 (10) highly respected s c i e n t i s t s in the field from three (3)

20 separate s c i e n t i f i c journals prior to i t s publication in. " .

2 1 O c t o b e r , 1 9 ' 9 6 . / r " . - : •• .- ••" ; " X --'.'^

'' '"•'•' '' '•. ; :

22 20. That the methodologies used in all our publications and the

23 follow up report are widely accepted throughout the statistical

24 and epidemiological communities.

25 21. That since the preparation of the above referenced articles

2 6 I have presented our data to several university departments and

27 a t a meeting at the Centers for Disease Control ("CDC") in

28 Atlanta, Georgia.

1 22. That on or about February, 1997 I was provided with a copy 2 of a packet of purported letters (attached hereto and

3 incorporated herein as Exhibit #5 and entitled "Department of 4 Developmental Services Correspondence to and from Dr. Strauss

5 January 199 7" is said packet) which I am informed and believe

6 was publically circulated as a "hand out" at a DDS meeting.

7 23. Following conversations with NIH a^4-. a request^by the

8 California Attorney General, on May 15, 1996, (Sx.#5) to NIK

9 under the Freedom of Information Act for documents relating to

10 UCRs NIH grant.

11 23. Since providing this grant information to the California

12 Attorney General (pursuant to the DDS request) the NIK has not

13 renewed grant funding.

14

I declare under penalty of perjury under the laws of the

15 State of California and of the United States that the foregoing

16 is true and correct.

17

Dated:

18

At:

19

20 DAVID J. STRAUS'S, Ph.D. - Declarant
21

22

23

24

25

26

27

28

UNIVERSITY OF CALIFORNIA, RIVERSIDE
3£?.XELZr • DA'.-j • [RVI.VE . LOS ANGELIS • RrviSSIDE • 5AN DIECO • 5AN FRANCISCO

SANTA BARBARA • SANTA CRUZ

DEPARTMENT OF STATISTICS FAX- (909) T3T-323S

EUVERSEDE. CALIFORNIA 925210133

February 19 9 7

Curriculum Vitae: David Strauss

Current Position:

Professor, Department of Statistics, Univ. of California, Riverside, Riverside CA 92521. (909) 787-4631.
Director of the Statistical Consulting Center at UC Riverside.

Education:
Employment: Honor: Publications:

B.A., Mathematics (with First Class Honors), Cambridge University, England, 1963.
M.S., Statistics, Sussex University, England, 1969.
Ph.D., Statistics, Sussex Univ., England, 1971.
1971-present: on faculty of Statistics Department, U. C. Riverside.
Elected Fellow of the American Statistical Association, 1992.
Some 70 articles, mostly peer-reviewed. See attached bibliography.

Primary research: Epidemiological studies in mental retardation/ developmental disabilities.

Other research:

Statistics theory (probability modelling; spatial statistics) .
Statistical consulting and applications. Has published more than 25 papers on statistical applications in sociology, psychology, anthropology, geology and forestry.

Teaching:
Dr. Strauss has taught virtually all the courses offered by the statistics department. In recent years, he has specialized in large introductory undergraduate statistics, and in consulting and data analysis at the graduate level.
Was founder of the Statistical Consulting Center at UC Riverside in 1983.
Designed and implemented classes in consulting and analysis of data for statistics graduate students statistics at UCR.
Designed and implemented a graduate class in biostatistics/ epidemiology for students statistics at UCR.
Editorial consultant for the following journals:
American Antiquity American Journal on Mental Retardation American Statistician Annals of the Institute of Statistical Mathematics Applied Statistics Behavior Science Research Biometrics Biometrika Communications in Statistics International Journal of Wildland Fires Journal of Applied Probability Journal of Mathematical Psychology Journal of the American Statistical Association Journal of the Royal Statistical Society. Mathematical Geology Mathematical Sociology Mathematical Reviews Psychometrika Social Networks

Invited presentations on mental retardation/ developmental disability.

February 19S7 Department of Pediatrics, University of British Columbia. "Prognosis for survival and improvement in function of children with severe developmental disability."

February 1997 Department of Physiatry, Uiversity of British Columbia. "California research on persons with mental retardation: experiences with a large data base."

February 1597 Department of Epidemiology and Public Health, University of British Columbia. "Patterns of mortality of persons with developmental disability: comparison of institutions and the community."

February 1997 Department of Statistics, University of British Columbia. "Coping with confounding: lessons from the California mental retardation data base."

January 1997

Langley-Porter Institute, UC San Francisco, "Patterns of mortality of persons with
developmental disability."

January 1997

Department of Statistics, UC Riverside. "Coping with confounding: lessons from the California mental retardation data base."

September 1996 Ontario CA: "Tracking persons with developmental disability who left developmental centers, 199395." Presentation to joint meeting of CASHPCR, CAPT, and allied groups.

September 1996 Minneapolis MN: Poster presentation ("Prognosis for survival and improvement of children with severe developmental disability"). Annual meeting of the Child Neurological Society; with Dr. Stephen Ashwal.

April 1996

Sacramento CA: presentation at meeting of the California Association of Psychiatric Technicians, and allied groups. "Mortality studies at UC Riverside."

March 1996

Centers for Disease Control, Atlanta Georgia: "Research at UC Riverside in developmental disability."

March 1996 March 1996 August 1995 June 1995 June 1995. March 19 9 5

Chaired session on "Adulthood and Aging", and gave presentation on recent mortality research, at the annual conference on theory and research in mental retardation, Gatlinburg TN.

Plenary speaker at the annual meeting of the California Chapter of the Association for Retarded Citizens, San Francisco CA.

Presentation at meeting of the Sonoma chapter of CASHPCR (parents' association at the developmental center), Sonoma CA.

Chair of session and presenter

talk at the

annual meeting of the American Association on

Mental Retardation, San Francisco CA.

Poster presentation at the annual meeting of the American Association on Mental Retardation, San Francisco CA.

Presentation at meeting of the Fairview chapter of CASHPCR (parents' association for children in Fairview developmental center), Costa Mesa CA.

Legal Experience

1991-1993:

Statistical consultant and expert witness for Milberg Weiss et al., acting for plaintiffs in the Stringfellow acid pits litigation. The work included analysis of effect of Stringfellow on houses prices and analysis of medical effects on local residents.

1993:

Consultant for McMenamin and Bennett, San Diego. The statistical issues concerned inferences about defective construction in a large housing ccnplex, based on a snail sanrale of observations.

1991-1992: 1992: 1974:

Expert witness for defense (Morton Galane) in breach of contract suit against liqour suppliers in Las Vegas. Worked with statistical projections of lost profits.
Consultant for Milberg, Weiss in a lawsuit concerning the San Onofre Nuclear Generating Station. The statistical issues concerned the analysis of data on the station's environmental ir.pact.
Expert witness in a Riverside CA murder' trial, re. statistical issues of bias in racial composition of jury panels.

Recent s t a t i s t i c a l consulting experience.
Primary a c t i v i t y ; Key Investigator on $2,000,000 grant from the National I n s t i t u t e "of Health (1/1992 to 1/1996, with small continuation funding through 1/1997) for epidemiological studies of issues related to developmental disability.
Other recent work
US Forest Service: S t a t i s t i c a l consultant since 1974. Forest Service grant ($39,000, during period 1988-89) for s t a t i s t i c a l analysis on effects of air pollution. Recent projects concern models for attack on forest f i r e s , and a Bureau of Land Management grant ($60,000 for 199 2-93) to study the s t a t i s t i c s of lightning s t r i k e s and t h e i r relations to fires. A similar continuation grant was awarded for 1S93-94. Current work (1996-97): contract for s t a t i s t i c a l modelling/simulation of fire seasons.
1983-39: Recipient of a National Science Foundation grant for collaborative work on problems in geological s t a t i s t i c s .
1990-1992: S t a t i s t i c a l consultant for Hewlett-Packard (work on the analysis of customer satisfaction surveys) .
1992-93: Received a grant from the US Department of Agriculture, for work on s t a t i s t i c a l problems in estimation of s o i l s a l i n i t y .
1993-94: Awarded an additional National Science Foundation grant for related collaborative work in geological s t a t i s t i c s .

BI3LI0GRAPHY - David Strauss
I. Published
1. Strauss, DJ. "independence of Variables in Numerical Taxonomy." Systematic Zcolccv (1971), 12,470-471.
2. Strauss, DJ. "Analysis of Drug Effects on Eocy Temperature." Biometrics (1971), ".17, 721-724.
3. Strauss, DJ. "Classif icacicr. Techniques." Collective Phenomena. (1972) 1, 119-125.
4. Strauss, DJ. "Analyzing binary lattice data with the nearestneighbor property." Journal of Applied Probability (1975) , 12, 702-7*12.
5. Strauss, DJ. "A model for clustering." Bioinetrika (1975), 62, 467-475.
6. Strauss, DJ. and M. Orans. "Mighzy Sifts: A critical appraisal of solutions to Galton's problems and a partial solution (with reply)." Current Anthropolocv (1975), If, 573-594.
7. Strauss DJ. "Clustering on colored lattices." Journal of Applied Probability (1977), L4, 135-143.
8. Strauss DJ. "Runs of occupied cells." Biometrika (1977), 64, 170-171.
9. Strauss DJ. "Measuring endcgar.y." Social Science Research (1977), 6, 225-245.
10. Strauss DJ. "Evaluation of Classification Techniques." Trabaios de Estadistica (1977), 2J3, 167-182.
11. Ziemer RR and DJ Strauss. "A statistical approach to -instrument calibration." U.S.D.A. Forestry Service Technical Report (1978).
12. Strauss DJ and M. Orans. "Residence and descent is hyperdiffusional?" Behavior Science Research (1973), 12, 1-24.
13. Strauss DJ and M. Orans. "Reply to Commentators" and "On the Cluster Reduction Method." Behavior Science Research (1978), 11, 51-63.
14. Strauss DJ "Some results on random utility models." Journal of Mathematical Psychology C1979), 2_0, '35-52.

15. Strauss DJ "Chance in Guttinan Scaling." Social Science Research (1930) 9, 75-32.

16. Strauss DJ "Choice by Features." British Journal of Mathematical and Statistical Psychology (1931), 34. 50-61.

17. Strauss DJ "Testing Partial Correlations When the Third Variable is Measured in Error." Educational and Psychological Measurement (1931), 4JL, 349-353.

13. Robertson CA and DJ Strauss. "A Characterization Theorem for Randon Utility Variables." Journal of Mathematical Fsvcholocv (1931), 22, 134-139.

IS. Strauss, DJ and AX Romney. "Log-linear Multiplicative Models for the Analysis of Endogamy." Ethnology (1932), 21/ 79-99.

20. Strauss, DJ and DN Neal. "Biases in the Step-point Method en Bunchgrass Ranges." Journal of Range Management (1983), 36, 623-626.

21. Strauss DJ "The Ha-_-r.ersley-Clif ford Theorem." Invited contribution to the Encyclopedia of Statistical Sciences. NL Johnson and S Kotz, editors, (1983), 2, 570-572.

22. Strauss DJ "Luce's Choice Axiom and Generalizations." Invited contribution to Encyclopedia of Statistical Sciences. NL Johnson and S Kotz, editors, (1935), 5_, 167-170.

23. Frank O. and DJ Strauss. "Markov Graphs." Journal of the American Statistical Association (1986), 81/ 832-842.

24. Strauss DJ "A General Class of Models for Interaction." Society for Industrial and Applied Mathematics, Review (1986), 21, 513-527.

25. Strauss DJ "Random Utility Models." Invited contribution to Encvclooedia of Statistical Sciences, NL Johnson and S Kotz, editors, (1986), 2, 572-573.

26. 'Strauss, DJ and EC Arnold. "The Rating of Players in Racquetball Tournaments." Journal of the Roval Statistical Society, Series C. (Applied Statistics), 1987, 21, 163-73.
27. Arnold BC and DJ Strauss. "3ivariate distributions with Exponential Conditionals." Journal of the American Statistical Association (1988) , 8J., 522-527.

28. Strauss, DJ and PM Sadler. "Stochastic Models for the

Completeness of Stratigraphic Sections."

Mathematical

Geology (1939), 21/ 37-59.

29. Strauss DJ and LC Freeman (1989). "Stochastic Modeling and the Analysis of Structural Data." In Research Methods in Social Network Analysis, eds. LC Freeman, AX Rornney, and D White, pp. 135-183. George Mason University Press.
30. Strauss DJ and PM Sadler. "Classical Confidence Intervals and Bayesian Probability Estimates for Ends of Local Taxon Ranges." Mathematical Geolocrv (1989), 2_1, 411-427.
31. Strauss DJ, L Bednar, and R Mees. "Do 1% of Forest Fires Cause 99% of the Damage?" Feres:: Science. (1989) . 35. 319-328.
32. Kemple WG, Sadler PM, and DJ Strauss. "A Constrained Optimization Solution to the Stratigraphic Correlation Problem." In Statistical Application in the Earth Science, ed. F? Agtenberg & GF Bonham Carter; Geological Survey of Canada, Paper 89-9, pp. 417-425 (1939).
33. Sadler PM and DJ Strauss. "Estimating Stratigraphic Completeness from Stochastic Models and Empirical Data." Journal of the London Geological Society. (1990), 147. 471-485.
34. Strauss DJ and M Ikeda. "Pseudolikelihood Estimation for Social Networks." Journal of the American Statistical Association, (1990), S_5, pp. 204-212.
35. Bednar L, R Mees and DJ Strauss. "Fire Suppression Effectiveness For Simultaneous Fires: An Examination of Fire Histories". Western Journal of Applied Forestry, (1990), 5_, pp. 16-19.
36. Arnold BC and DJ Strauss. "3ivariate Distributions with Conditionals in Prescribed Exponential Families", Journal of the P.cval Statistical Society", B, 53, (1991), pp. 365-376.
37. Clyde MC and DJ Strauss. "Logistic Regression for Spatial Pair-potential models." In Soatial Statistics and Imaging, ed. A. Pcssolo (1991) , pp. 14-30, IMS Lecture Notes - Monograph Series. IMS: Hayvard, Calif.
33. -Arnold BC and DJ Strauss. "Pseudolikelihood Estimation: Some Examples." Sankhva. 53 (1991), 233-43.
39. Mees, RM and DJ Strauss. "Allocating Resources to Large Wildland Fires: a model with Stochastic Production Rates." Forest Science. 38. (1991), pp. 842-853.
40. Strauss DJ "The Many Faces of Logistic Regression." The American Statistician*. 4_6 (1992), p. 321-327.

41. Mees RM, DJ Strauss, and R Chase. "Modeling Wildland Fire Containment with Uncertain Flamelength and Fireline Width." International Journal of Wildland Fire, 2 (1993), 179-185.
42. Mees RM, DJ Strauss and R Chase (19S4). "Minimizing the Cost of Wildland Fires: a model with uncertainty in predicted f larr.elength and fireline width produced. " Canadian Journal of Forest Research, 24, 1253-1259.
43. Lesch S, DJ Strauss, and J Rhoades (1995). "Spatial Prediction of Soil Salinity using Electromagnetic Induction Techniques. I. Statistical Prediction Models: a Comparison of Multiple Regression and Cokriging." Water Resources Research, 31, 373386.
44. Lesch S, DJ Strauss and J Rhoades (1995). "Spatial Pediction of Soil Salinity using Electromagnetic Induction Techniques. II An efficient spacial sampling algorithm suitable for multiple linear regression* model identification and estimation." Water Resources Research. 31, 387-398.
45. Kemple, WG, PM Sadler, and DJ Strauss. (1995). "Stratigraphic Correlation as Constrained Optimization: extending graphical correlation to many dimensions." In Graphical Correlation (KO Mann, L Stein and R Lane, editors) .
46. Strauss, DJ and Eyman, RK. "Mortality of People with Mental Retardation in California, with and without Down Syndrome." American Journal en Mental Retardation, 100. no. 6.
47. Aceves R, Park SX and -Strauss DJ (1996). "Statistical Evaluation of the VAN Methodology using the Historic Earthquake Catalog in Greece." Geoohvsics Research Letters. 23, 1425-28.
48. Strauss DJ and Kastner TA. "Comparative Mortality of People with Developmental Disability in Institutions and in the Community." American Journal on Mental Retardation. 101, 2640.
49. -Park SX, Strauss, DJ, and R Aceves (1996). "Some observations about the statistical significance and physical mechanisms of the VAN method of earthquake prediction, Greece." In A Critical Review of VAN, ed. by Sir James Lighthill, World Scientific Publishing, London, pp. 267-285.
50. Strauss, DJ, Eyman, RX and HJ Grossman (1996). "The prediction of mortality in children with severe mental retardation: The effect of residential placement." American Journal of Public Health. 86, 1422-29.
10

51. Eynan RK, Strauss DJ, and Grossman HJ (1996) . Survival of children with severe developmental disability. In L Rosenbloom (ed.)/ Diagnosis and management of neurological disabilities in childhood. Series Title: Bailliere's Clinical Pediatrics. London: Bailliere Tindall Ltd., Harcourt Brace & Co. Ltd., po. 543-556.
52. Strauss, DJ and W Zigraan (1996). "Behavior Capabilities and Mortality Risk in Adults with and without Down Syndrome." American Journal on Mental Retardation, 101, 269-281.
53. Pary RJ, Strauss DJ, and White JF (1996). A population survey of suicidal behavior in persons with and without Down Syndrome. Down Syndrome Quarterly, vol. 1.
54. Pary RJ, Strauss DJ, and White JF. A population survey of bipolar disorder in persons with and without Down Syndrome. Down Syndrome Quarterly, vol 1.
55. Strauss DJ (1997). Life Expectancy of children with cerebral palsy. The Lancet, January 1997, p. 263.
11

Articles: Not refereed
1. Strauss, DJ and M. Orans. "Reply to De Leeuwe." Current Anthropology (1976), 12, 534-535.
2. Orans, M. and DJ Strauss. "On Z factors." Current Anthropology (1976) 12, 754-755.
3. Strauss, D. and M. Orar.s. "Mora on Solutions to Galton's Problen." Current Anthrooolccv (1977), 18., 113-19.
4. Strauss, DJ and M. Orans. "On Wirsing's Method for Galton's Problen." Current Anthropology (1977), 18., 341.
5. Strauss, DJ "A Generalized Virial Expansion." Technical Report #113, Department of Statistics, University of California, Riverside, 1933.
6. Strauss, DJ "Potential Models". Technical Report #111, Department of Statistics, University of California, Riverside, 1983.
7. Mees RM, L Bednar, and DJ Strauss. "The Effect of Multiplicity on Fire Suppression Efforts. I. Summary data analysis." USDA Forest Fire Laboratory Report. 27 pages, 1987.
8. Strauss, DJ. "A Rating System for Racquetball." National Raccruetball, April 1938, pp. 40-41.
9. Benoit J. and DJ Strauss. "Preliminary Development of a prediction model for Lightning-caused Forest Fires." Paper presented at the 12th Conference on Fire and Forest Meteorology, Jekyll Island, C-A, October, 1993, 8 pages.
10. Meisner B, Chase R, McCutchan M, Mees R, Benoit J, Ly, B, Albright D, Strauss D and Ferryman T. "A Lightning Fire Ignition Model." Paper presented at the 12th conference on Fire and forest Meteorology, Jekyll Island, GA, October 1993, 7 pages.
11. - Lesch S, Rhoades J, Strauss D, Lin K.(1995) . "Manual for ESAP software." 55 pages.
12. Strauss DJ, Shavelle R and JF White. "The multistate life table and its application to prognosis severely disabled children with mental retardation." Technical Report # 221, Department of Statistics, UC Riverside, 1995.
13. Strauss DJ, Shavelle R and JF White. "Demographic and_cost projections for persons with developmental disabilities." Technical Report # 231, Department of Statistics, UC Riverside, 1995.
12

II. In Press. 1. Strauss DJ, Kastner TA, Ashwal S, and White JF. "Tubefeeding
and Mortality in Severely Disabled Children with Mental Retardation." To appear in Pediatrics. 1S97.
2. Strauss DJ, Ashval S, Shavelle R, Eyman, RX (19S7). Prognosis for survival and improvement in children with severe developmental disabilities. To appear in Journal of Pediatrics. 1S97.
I I I . Submitted. 1. Shavelle RM and Strauss DJ. "Improved sample survey using past
values", 3 4 manuscript pages. Submitted February 1997. 2. Strauss DJ. "A ncte on Miettinen's multivariate confounder
s c o r e . " 16 ms pages. Submitted Janaury 1997. 3. Mees RM and DJ Strauss. A model for costs of wildland f i r e s .
Submitted April 1996. 4. Strauss DJ, and Shavelle R. An extended Kaplan-Meier estimator
and i t s a p l i c a t i o n s . Submitted August 1996. 5. Strauss DJ, Kastner TA, and Shavelle RM. Mortality in groups
of persons with developmental d i s a b i l i t i e s , 1985-94. Submitted December 199 5. 6. Strauss DJ, Eyman RK, and Grossnan KJ. Response to Durkin's American Journal of Public Health e d i t o r i a l . 8. Strauss DJ and Shavelle RM. A note on comparative mortality in i n s t i t u t i o n s and the community. Submitted January 1997. 9. Strauss DJ, Shavelle RM, and Bauineister A. Mortality of persons with developmental d i s a b i l i t i e s released from California i n s t i t u t i o n s . Submitted September 1996. 10. Strauss DJ, Shavelle RM, Anderson TW, & Baumeister A. Externally-caused • deaths to persons with developmental d i s a b i l i t y . Submitted January 1997.
13

V. In progress. 1. Strauss EXT, Anderson T, Shavelle R, Sheridan F, and Trenkle S.
Avoidable death in persons with developmental disability in instututions and community care: a comparative study. V. Book Reviews. 1. Botvinnik, M. M. Computers, Chess and Long Ranae Planningf Nature. 1971. 2. Kirk, R. E. (Editor). Statistical Issues. Biometrics. 1972. 3. Wetherill G. Elementary Statistical Methods. Biometrics. 1973. 4. Seber G. G. The Estimation of Anir.al Abundance. Biometrics. 1974. 5. Hartigan, J. A. Clustering Alcorithr.s. Biometrics. 1975. 6. Harris, R. J. A Primer of Multivariate Statistics, Biometrics. 1975.
14

American Journal on Mental Retardation, 1996. Vol. 101, No. 1, 26-40
Comparative Mortality- of People With Mental Retardation in Institutions and the Community
David Strauss University of California, Riverside
Theodore A. Kastner Morrisiown Memorial Hospital (Morristown, NJ)
The role of institutions has come into question in recent decades, and the size of the institutionalized population has been drastically reduced. Riskadjusced mortality rates in institutions and the community in California from 19S0 through 1992 were compared, with the aim of improving our understanding of the capacity of the community health system to support detnsticuttonalization. Risk-adjusted odds on morality were estimated to be 72% higher in the community than in institutions. Some problems with health care delivery in the community were reviewed; these may help account for the difference. Consumers and guardians should weigh these considerations when making choices between institutional versus community-based care.

As recently as 40 years ago, professionals and consumers believed that the idea! location for services for people with menul retardation was the congregate care seeing. Public concern over the quality of ir.sc:tutional care peaked with revelations in the 1970s of abuse and neglect in institutional settings, including the Willowbrook Center in New York City and the Pennhurst Center in Philadelphia. Ccr.gress passed certification procedures related to funding received by states through the Medicaid Program and gave civil rights protection to residents through
Editor's Note. This pipe.' is on a very imporum but controversial topic. The results and the interpretation by the authors do not represent a position taken by AJMR or by the American Association on Mer.:a! Retardation. Rather, research and commentary on mortality rates in mental retardation are invited by AJMR. In all cases, papers submitted will be peer reviewed.—S.R.S.

the Civil Rights of Institutionalized Persons Ac: of 1980.
These protections not withstanding, the belief that institutional delivery systems were fundamentally flawed gained currency among social activists. This belief reflected a reformulation of principles for building social service systems. Chief among these was the concept of normalization, defined by Wolfensberger (1972) as the "utilization of means which are as culturally normative as possible, in order to establish and/or maintain personal behaviors and characteristics which are as culturally normative as possible" (p. 28). This is closely allied to the concept of the leas; restrictive environment—that the places where people live and work should not restrict their participation in the mainstream of society. Almost all agree chat normalization and provision of services in the teas' restrictive setting are important social goals. As means to achieving these

26 ©Amencan Association on Mental Retardation

goals, hov over the c alizacion (
Norn
leas; resin cantly affe sons with 1967 ar.d tior. shrar. Smith. !99 Columbia operated I growing c th3t ncc a!
successful! set::r.gi (Si zation.s sue the Retard tarded ha' close al! s:2
of Repress Business, although s cilities for; there is 3r contracting services pn In these ir.f supervision into the qi services prc Policy and Hemp, FujiL Sundram, 1' tives Comm
Despi' bate, there pirical studi in institute has been r (1981), in President's ' lion, review deinstitutioi and found t empirical d: problems al
(3) the abse ogy and noi evaluating inadequate

Method
Instrument
The source of the study data is the Client Development Evaluation Report (California Department of Developmental Services, 19~8). The reliability of this instrument has been investigated elsewhere and considered to be satisfactory (Arias, Ito, & Takagi, 1983; Harris, Eyman. & Mayeda, 1982; Widaman. 198-t; VC'idaman. Stacy. & Borthwick, 1985). A Client Development Evaluation Report is completed annually, and additionally when a client moves to a different placement, for any person receiving services from the California Department of Developmental Services. The report includes a 66-item Evaluation Element grouped into six domains of adaptive skills and behavior: motor and selfcare skills together with social, emotional, cognitive, and communication domains.
Sample

1991; Strauss & Eyman, in press; Zigman, Seltzer, & Siiverman, 1994) and would require a separate study. Information on deaths was obtained from both Client Development Evaluation Report sources and che California Bureau of Vital Statistics.
In this study the unit of analysis was not an individual person, but rather a person-year, A person-year is taken to be the interval between two birthdays. Person-years are included only if there is evidence that the sublet was in the Department of Developmental Services system at the beg:nning of the year and either died or was still in the system at the end. Further details and theoretical justification are provided in the Appendix. The procedure resulted in a set of 105,099 personyears, drawn from 18.362 subjects. The number of years contributed range from one to a maximum of 12, with an average of 5.73. For 92% of subjects, the personyears contributed were consecutive.

The sample consisted of all adults with Variables

mental retardation, ages 40 or over, who Our primary fecus was on the relation of

h3d received services from the Depart- mortality and residence type. We con-

ment of Developmental Services between trolled for variables such as age, gender,

January 1980 and December 1992. The and levels of functioning as determined

40+ age group corresponds to one sub- from the Client Development Evaluation

group of interest, namely older adults; Report. First, however, we present some

other subgroups, not considered here, descriptive satisfies.

include high-risk children (studied in

Table 1 shows the prevalence rates

Strauss, Eyman, and Grossman, in press) and mortality rates for selected variables.

and younger adults. All persons in the Each of the original Client Development

study had been referred to one of the 21 Evaluation Report adaptive skill items has

regional centers that contract with the between four and nine levels, but all were

state to provide services to individuals in collapsed here to a 3-point scale: the

their area. Approximately 9% of this popu- highest level item (score - 2), all interme-

lation, in accordance with the Incema- diate levels (score - 1), and the lowest

tional Classification of Diseases etiology level (score - 0). This seemed appropriate

(U.S. Department of Health and Human Services, 1980), were categorized as having Down syndrome. These people were excluded from consideration, as older individuals with Down syndrome are known to have a very different aging pattern from other older persons with mental retardation (Eyman, Call, & White,

because the mortality rates (computed as the ratio of number of deaths to number of person-years) proved to be generally rather similar 3mong the intermediate levels, and the grouping substantially improved the discrimination when different variables from the same domain were additively combined. In addition, the

Mote
Amt U In Hi
Roili
Ic
in:
Hi C.'3»
U In:
Hi Ann
13 In: Hi; Hanc Lo In: Hit Self-ca Easm Loin (•
I Hi? Toil*' 1.3' Inn Hie Blade Ls% Inti HiS Bow: lo> InK Hig Ores: Lov Inte
c Hig. Mamal i Mild Mode Sever Profo: Suspi Tubs fe< Has Ic Does Placem< C-~n I ComrT Hejltr Institt
More. 0 ; numser eategen •Numcer

ss; Zigman, and would rmation on joch Clier.: ort sources Vital Stat:s-
nalysis was it rather a aken to be -.days. Perif there is in the Dervices sysanc either IC the end. :stification The proce)9 personjeers. Tun snge from in average :e perscn-
jtive.
elation of We con:, gender.
:valuacion enc some
nee races variables, eiopmenc items has t all were cale: the incermee lowest propriate puced as number generally Jiace levially imdifferent in were :on, the

Table 1 Proportions of Person-Years Classified as High. Intermediate, and Lo» by Skill Variables and Corresponding Morality Rates (in •*)

Person-

Mortality

Skill

years

rales

Motcr Amculacion (2.2S)' Law: dees nc: walk Intermediate: waiks witn susscr/walks steadily alone it leas: 2.05 m Hign: walks well alone it leas: 5.2 rr.. balances we.il Rolling and sitting (4.11) Lew: does not lift head when lying on s:amac.i Intermediate: lifts head wnen lying ; n stomach/rolls iron side t3 side or Ircnl to bacx/maintams sitting with minimal Juooort for t 5 rr-mutis Hic.i: assumes and maintains sirt:ng position inde;eneentiy Crawling and standing (3.70) Law: does net crawl, c.-eso. or sccet Intermediate: crawls, creeps, cr sc:ots: pulls to stanc^g/s:ands witn succon
at least 1 minute/or unsteadily Hone for 1 minute Hign: stands well alona. balances w«il for at least 5 minutes Arm use (4.09) Lew* no functional use of arm Intermediate: moves arm, out does not eitend/or partially eitenes Hig.v fully extends arm Hand use (4.03) Low: no functional use sf hand
Intermediate: raxing motion cr ;ras:s/uses thumo and fingers m cpcositicn Hign: uses fingers independently of each other Self-care £if.ng (4.90) Lsw does not feed self, must : e fed czmpletely Intermediate: attempts to finger feed/finger feeds/feeds self -»o ssocn and
fork with scilUge Hign: uses eating utens.-is wrtft no sziilage Toileting (3.31) Low: not tcilec trained or naCit trained Intermediate: hao<t trained/indicates need/goes by serf neecs r.elp Hign: goes to toilet by seif. carrpietes by self Bladder contrcl (4.13) Low: no control Intermediate: some ccntrol/cantrol during day only Hign: complete control Bowel control (4.13) Law: no control Intermediate: seme control/cantrol during day only Hign: complete control Dressing (4.73)
Law: does not put on any clothes sy jelf Intermediate: cooperates in putting clothes on/putt seme on self/puts on
clothes but does not do details Hign: aresset self completely including all fasteners and ether details Mental retardation (aval (1.51) Mild
Moderate Severe Profound Suspected/other Tube feeding (6.82) Has feeding tub« Does not have feeding tube Placement Own heme Community care Health facilities Institutions

12.9 13.7 73.4
1.5
8 5 90.1
6.3
16.0 77.7
1.5 10.7 87.3
2.0 16.1 81.3
4.5
39.6 55.3
7.5 26.1 66.2
7.1 18.3 74.6
6.7 12.3 81.1
6.6
42.1 51.4
33.1 24.7 17.1 18.5
6.5
.54 93.5
23.6 53.3
7.1 16.1

4.2 2.9 1.3
6.5
4.00 1.6
5.1
3.1 1.4
6.7 3.1 1.6
6.4 2.7 1.6
6.2
2.2 1.3
4.9 2.5 1.3
5.4 2.0 1.3
5.3 3.3 1.4
5.4
2.2 J.I
1.5 1.8 2.1 2.2 2.3
12.4 1.8
1.1 1.6 2.2 1.8

Note. Data are based on the full set of 105.099 person-years. The overall mortality rate (number oi deaths divided by number of person-years) was 1.88%. The crude relative risks are-tne ratios ol mortality rates for the highest and lowest
categories.
'Numbers in parentheses are crude relative risks.

Comparative Mortality 29

simple high/intermediate/low scale may be more interpretable and usable by those working with other instruments.
The first variable, ambulaticn, shows a typical pattern. A substantial majority of individuals were at the highest level, and mortality rose sharply as the levei of skill decreased. The relative risk for persons at the highest and lowest levels was 3 36 (4.23/1.26), suggesting that ambulator/ skill is an important predictor. Note, however, that this is a "crude" relative risk, unadjusted for the effect of other variables. The next variable, rolling and sitting, refers to a lower level of skill. Very few of the cases were in the lowest category, and ihese had a high mcrcalicy rate. Again the relative risk is large. Also shown in T3ble 1 are three other motor skill variables used in subsequent analysis—crawling ability, arm use. and hand use—followed by the five predictors from the self-care domain. All show a similar pattern of association with mortality.
Not shown in Table 1 are the variables from the social, emotional, cognitive, and communication domains. Nearly all of these variables were associated with mortality, but more weakly so than the variables shown in Table 1. Preliminary multivariaie modeling indicated that these domains provided little additional predictive information. Severity of mental retardation (Eyman et al., 1990; Eyman, Grossman et al., 1993; Eyman, Olmstead, Grossman, & Call, 1993) is included in Table 1, but it was not an important predictor in the presence of the other variables and, therefore, was not included in the subsequent analysis.
Tube feeding refers to use of either nasogasxric or gastrostomy tube. Overall prevalence of tube feeding was 0.5% (Table 1), although the rate was much higher within the most debilitated subgroups. For example, it was 41% in the group of people who were age 70 or over and lacked all the motor skills. Although precise figures are unavailable, it is believed that the great majority (more than 90%) of tube-fed clients are fed by gastrostomy

tube. Such clients generally suffer from cnronic difficulties with the swallowing reflex, often in combination with severe cerebral palsy or epilepsy. The crude relative risk associated with tube feeding (see Table 1) is strikingly large. A similar, though less dramauc. result had been noted in a group of children with severe disabilities (Eyman, Olmstead e: al., 1993: Kastner et al., 1994). These findings do not demonstrate that tube feeding elevates mortality; to a large extent, the necessity for tube feeding serves as a marker for the presence of serious health problems.
Residential placements were grouped in:o four categories, own home, community care, health facilities, and institutions. Parent/relative homes were counted as own home. Community care included both small group homes and larger board-andcare facilities serving seven or mere people. Health facilities provide intermediate health care. Institutions, now called Developmental Centers in California, are state operated. The most common placement was community care, and health facilities had the highest crude mortality rate (Table 1).
Table 2 stratifies the person-years into four age groups. For each age group, the table shows how the person-years break down according to selected variables. Also shown are the corresponding mortality rates. Tne first row shows the decline in the proportions by age and the increasing annual mortality rates, although these are difficult to interpret because of the confounding of age and cohort effects (Baltes, Cornelius, & Nesselroade, 1979).
Table 3 is stratified according to the four residence types instead of age groups. As expected, levels of skill are on average much lower in health facilities and institutions than in own home and small group homes. Table 3, interestingly, indicates that the lower mortality in community placement (see Table 1) largely disappeared when just one major factor, such as ambulation, was controlled.
The five mocor-skill variables were of roughly comparable predictive value

30 A/MR, Volume 101, No. 1

Table: Person-Ye:
Gender Mais Female
AmSuiaticn H:gn: wa<k o.iO m. Interned^ Low: Sees
Eating Hicn: uses soilage intirrnccu Law: OSes fed zzrr.
Foiling anc : Hic.i: assu positicn Intsrmes.i Low: Sees on s:crr.
Toileting H,sn: ;ces
ay self Intermscia Law nc: ::
Table 3 Person-Yea
Gender Male Female
Arrculaticn Higrv waik: 6.10 - . ! Intermedia Low: Soes
Eating H15.1: uses no spilla. Intermedia:Low: doss be ltd c:
Rolling and s Hign: assu? sitting pi Intermedia: Low: does tying on
Toileting Hign: go«s complete Intermedia: Low: not tc habit tra
"Sreakdown c

V- 'rom 1 ing i severe i crude feeding similar, d been i severe !.. 1993; ings do iievates scsssity • for che
.T.S.
:rcuced ommu:ut:ons. ued as ;d both -d-mdoecple. : hcaich :ve!cpt state
.cilitiss y rate
i-years
'P. . . .ars i vari;nding vs the p.d the hough use of effects 1979). to the •oups. •erage istitugroup. icates mnity Jisapsuch
were value

Table 2 Person-Years Cv - 105 , 0 9 9 ) by Age Group and .Subject Cbirjcicrijticj

Age groups

40-49

50-59

60-59

Characteristic

H" Mortality* S Mortality S Mortality

Gender Mala Female
AmBulation Hign: walks wail alone at least 6.10 m. Balances well Intermediate Low: does net walk
Eating Hign: uses eating utensils witn no

spillage Intermediate Low: does not feed self, must Sa
fad csmpietely Rolling ana sitting
Hign: assumes and maintains sitting

position independently Intermediate Low: dees not lift head when lying

on stcmach

Toileting

. .

Hign: gees to toilet ty self, completes

by self Intermediate Lew not tciet trained er naoit trained

S-t.7 45.3
77.3 12.5 9.7
53.7 35.4
4 3
90.5 7.3 1.5
63. 24. 3
7. 7

1.0

£2.5

2.0 50.7

3.5

1.0

47.4

1.7 49.4

3.0

.7

74.3

1.4 S3.7

3.5

2.5 20.1

4.5

2.9

10.2 3.9 10.3

6.7

.7

£5.7

1.3 £0.1

2.S

1.1

40.1

2.2 46.3

3.4

4.2

4.2

Si

3.7 11.3

.8

90.1

16 90.4

2.3

2.3

8.5

3.7

8.5

6.5

5.0

1.4

5.3

1.2

9.9

.7 67.3

1.2 62.1

2.4

1.3 IS. 3

2.6 31.0

4.0

2.9

6. 3

5.2

6.9

7.9

"9reaKCown of persen-yaars. 'Percentage cf annual mortality rate.

%
40.3 59.2
54.2 30.3 15.5
40.7 53.5
5.7
63. 5 15. 1
1.4
52. 9 36. 3 10. 1

70* Mortality
S.9 6.4
5.2 9.2 12.0
6.3 7.6 14.6
6.3 10.4
15.5
5. 3
7.a
13. 9

Table 3 Person-YearsCV- 105.099) Classified by Residence Type and Subject Characteristics

Ptacerr e n t

Characteristic

Ov*ni home « • Morality*

Community core % Mortality

Heaitn facility

K

Mortality

Gender Mala Female
Ambulation High: waiks well alone at least 6.10 m. balances wall Intermediate L:w: dees not walk
Eating Hign: uses eating utensils with no spillage Intermediate Low: does not 'eed self, must be fad completely
Rolling and sitting High: assumes and maintains sitting position independently Intermediate Low: does not lift had when lying on stomacrt
Toileting High: goes to toilet by self. completes by self Intermediate Low: not toilet trained or habit trained

52.3 47.2
84 5 10.7
4.8
80.2 17.7
2.1
95.0 4.3 .6
86.7 11.5
1.9

1.2 1.1
.8 2.1 4.3
.8 1.9 8.1
.9 3.7 8.7
.8 2.8 7.1

52.9

1.7

47.0

1.5

84.2

1.3

13.0

2.3

2.3 2.5

63.3

1.3

35.4 2.0

J 5.3

95.5

1.5

3.1 2.4

2 2.5

79.3

1.3

19 j 2.4

1.2

5.1

51.3

2.1

48.2

2.3

43.9

1.8

27.4

2.2

28.7

2.8

25.2

1.9

65.3

2.1

9.6

3.7

73.9

2.1

23.8

2.1

Z.3

7.1

32.9

1.9

52.6

2.2

14.5

2.8

"Breakdown of person-years. 'Percentage olf annual mortality rate

Institution % Mortality

56.4

1.9

43.5

1.7

58.3

1.1

17.3

1.7

24.4

3.5

15.8

.8

69.5

1.5

14.7

4.1

75.5

1.2

18.5

3.1

5.9

5.0

20.2

1.2

51.4

1.3

28.3

3.0

Comparative Mortality 31

and showed substantial intercorreiation. According to this, the logarithm of the

Rather than make a somewhac artificial odds on survival ir. a person-year are

selection, we preferred to combine: the expressed as a linear function of the

items by summing the five values, result- various predictor variables. In symbols,

ing in a 10-poir.t motor skills scale The

lniProb(Survive)/Prob(Die)l

mortality ra<es suggested a grouping into

- (3, * P,"Age * 3,'Mobility score + ...

four categories 0, 1 to 4, 5 to 9. and 10

For binary predictors, such as pres-

rather than a linear scale, a ps::erri con- ence or absence of tube feeding, the

firmed by subsequent multivar:::- — cdel- logistic regression coefficients give the

ing. The relative risk for the two extreme odds ratio for mortality when other vari-

categories is 8 5 Similarly, the five main ables are controlled (Hosmer & Lemeshow,

self-care variables (Table 1) were trans- 1969). Except for age. ail predictor vari-

formed to a 10-point scale, which also abies in the analysis were binary. For the

naturally grouped into the same four ho- four-category mctcr-skills variable, three

mogeneous categories. The five motor skills, not surprisingly, were all positively associated with the five seJf-csre skills. correlations ranged from .3" to 62 The correlation between the summary motor and seif-care 4-poir.t scales was 59 This was not so large as to raise ser:ous concerns over mu!t:coi!inearity in -he subse-

binary variables MOTOR1, MOTOR2. MOTOR3 were constructed, each representing a contrast or one of the three lower levels of motor skill (i.e., 0, 1 to 5. and 6 to 9) against the highest level (10). This fourth level thus serves 3S referent group.

quent modeling.

The residence types were modeled

with a binary variable for each of the

following: own home, health facilities,

Statistical Analysis

and institutions. Each variable represents

a contrast with community care, used as

In this section we offer a relatively non- referent group here because it was by far

technical outline of the statistical methods. Further details, together with issues of statistical theory, are provided in the Appendix. As explained there, the modeling procedure, based on person-years data derived from longitudinal repeated observations, is net new. For example, it h3S been routinely used in the Frsmingham

the largest (Table 1). The logistic mode! was developed using standard variable selection techniques (Hosmer & Lemeshow, 1989). The fit of the final model appeared to be satisfactory, according to the Kcsmer-Lemeshow test (Lemeshow & Hosmer, 19S2).

Heart Study (Cupples. D'Agostinc. Ander-

To provide 3 graphical comparison

son, & Kannel, 1988).

of community care and institutional mor-

Our focus in the present study was tality rates at different levels of risk, we

on the relation of the outcome variable, partitioned the person-years into eight

survival, to the predictor variables. The groups (risk octiles) that were homoge-

latter included residential placement—the neous with respect to risk. Thus, for

variable of main interest—and the example, the first group (lowest risk)

covariates, or potential confounding vari- consisted largely of person-years where

ables: for example, age, gender, motor the subject was in his or her early 40s and

skills, self-care skills, and tube feeding. It had optimal mobility and self-care skills.

was convenient to treat the data as cross- By contrast, a person-year in which the

sectional rather than longitudinal, with the subject was tube fed, immobile, and was

chance of surviving in a given perscn-year 90 years old would fall into the eighth

being modeled in terms of residence type group. This procedure allowed us to graph

and the covariates. Logistic regression two quantities across the risk octiles—(a)

(Hosmer & Lemeshow, 1989) was used. the fraction of the person-years that were

32 AJMR, Volume 101, No. 1

lived in t mortality by numb for each construct: risk octik
Result
The main densed m of Table ables mai Unlike :h odds rst:c of the ot:
Table 4 Logistic Re; Mortality Pr
Intercsst Age
Males Femaies Gencer
SeU3' Age'Seifi1 Age-S«lf2 Age"Selt3 Feed tube MotorV Motor2 Motcr3
Own home' Health /acriitie Institutions'
No re: B a s e : 2 • Some odds r text, rawer air they lack a nai interacts witr. referent sell-c (low-st level o level on all 5 s and referent y SELFl indicate level with refer with communtt
The table indie. constant, n per year fo

lived in each residence type and (b) the males. iMale mortality rates were abouc

mortality rates (number of death divided equal to female races at age 40, but were

by number of person years)—separately nearly 50% higher by age 65. (It is net

for each residence type. Details on the surprising that a simple linear age term

construction and statistical theory of the risk octiles is provided in the Appendix.

proved adequate; a mortality race whose logarithm increases linearly with age corresponds to che classical Gompertz model

[Cox & Oakes, 19841, known to fie che age

Results

range of roughly 35 to ~5 years in many

demographic applications [Keyfitz, 1985].)

The main findings of che study are con-

Tube feeding use was a strong pre-

densed into the logistic regression model dictor even when other risk factors in the

of Table 4. This shews only those vari- cable were taken into account, increasing

ables making a substantial contribution. mortality odds by 31- The firs; motor skii!

Unlike che relative risks in Table 1, the encry in Table 4, MOTOR!, compares the

odds ratios here were corrected for effects mortality odds for those scoring zero on

of the other risk factors.

the motor variable (i.e., lowest level on all

five motor items) with the odds for the

Table •• Logistic Regression Model Predicting Annual Mortality Probability

referent group (full mccor skills). The odds ratio, 3-3, indicates a strong predictive effect. The intermediate levels corre-

variable
imerceEt Age

Occs ratio'

95% confidence interval for odds ratio*
(lower, uooer)

spond to smaller, but still substantial, odds ratios. The self-care variables show a similar pattern, though an interaction with age was present. (The interaction took the

Males Females GenCsr StilV

1.37C* 1.087' .53
30 :5

(1.06,1.08) (1.07,1.10) (.33. .ti) (11.95. 75.51)

form of a tendency for che differences between the risks associated with the four self-care variables to diminish with in-

Se!f2' S-i/3Age'Sell:1 Age'SeffZ

13.04 3.:-:
.98
.97

(6.52. 26.10) (1.99. 6.39)
(.S-i. .97) (.96. .981

creasing age. Note that the odds ratios for the age and self-care interaction terms lack a simple intuitive interpretation; in

Aqe'Selta

.98

Feed tube

3.12

Motor!'

3.2S

(.97. .99) (2.30.4.24) (2.36.4.75)

recognition of this, these quantities are not boldface in Table 4.)

Motar2

1.61

Mctor3

1.«

Own home*

t.00

Health facilities'

1.04

Institutions*

Si

(1.33.1.95) (1.25.1.57)
(.87,1.16) (.87,1.25) (.49. .68)

As stated previously, we were primarily interested in the residence variables Community care (small group homes) was taken as referent group. Cdds ratios for

Note: Sased on 105.099 serson-years. 1 Some oadi ratios and confidence intervals are in plain

both own home and health facilities were estimated at 1.0. As can be seen from

test, ratner than oolo text, to acknowledge the fact tnat they lack a natural intuitive interpretation. 'Because age interacts with self-care, these figures hold only for the referent self-care grcup. ' Contrast of lowest self-care

Table 4, the 95% confidence intervals indicated no significant mortality differences between these placements and com-

(lowest level on all 5 scales) wrtn referent group (highest level on all 5 scales). 'Contrast of intermediate self-care and referent group. * Interaction term, product of Age and SELF t indicator variable. ' Contrast of lowest motor skill level with referent (highest) level. 'Contrast of placement with community care as referent.

munity care. The institution term, however, was highly significant, with che odds ratio of .58 corresponding to a 42% reduction in mortality odds compared to community care. EquivalencJy, the risk-adjusced odds

The age and gender rows of che table indicate that, other variables held constant, mortality rates increased at 7.0%

on dying in a given year were estimated to be 72% higher in the community than in institutions.

per year for females and 8.7% per year for

Figure 1 shows how the person-

Comparative Mortality 33

I •'

years were distributed among che four residence types, within each of eight homogeneous risk groups. As explained in the Appendix, these risk octiles were derived from the logistic mode! of Table 3- Institutions had disproportionately —any higher risk subjects, which explains their elevated crude mortality rate (Table 1). Figure 2 offers a graphical comparison of

mor:aiity rates in institutions and community care within the risk octiles. As explained in che Appendix, it would not be appropriate to carry out formal statistical tests ere. on the results of Figure 2. Nevertheless che lower mortality in institutions, which was expected from Table 3, seems consistent across Lie risk spectrum.

100%

I ! '

B

2 3 •» S 6 7 8
Figure 1. Breakdown of person-years by within e:g.-.i homogenous risk oc:iles

Figure 3 Morcalicy races lac community care ind tor institutions within risk octiles. (Using communtty care as reierem population, we directly standardized institution rates). Note that the finding of a 72% increase in mortality in the community refers :o the ratio of the odds of dying in a given year. Although the ratios of community to institutional rates lppear to vary across the eight groups in the figure, there Is no suggestion of any systematic tre.-.ds in these ratios. AS explained in the Appendix, it is not appropriate :o base statistical tests or confidence intervals on the results of Figure 2: such procedures ire more properiy applied to the logistic model itself (Table 4).

Discussion
Our major finding was that che risk-adjusced mortality r=:es of people with mental retardation were higher in the community than in institutions, regardless of :he level of risk. Because the ;:udy was observational rather than experimental, this result should be viewed tentatively: It is conceivable chat the difference was due to che confounding effec: of unobserved variables This, however, may appear somewhat less likely in view of our finding (noc de:aiied here) that the addition of each mortality predictor to che mode! cilced che comparison in favor of institutions. For example, the crude mortality races strongly favored the community (Table 1), but cor/.rcl for 3 single major risk variable largely canceled this out (Table 3). The findings, moreover, are consistent with those of a corresponding study of children with severe disabilities (Strauss et al., in press).
In this study we do not offer an explanation for the findings. Possible causes of increased mortality in community settings can only be inferred from other sources in the field. However, a significant body of literature exists. Health cars in the community is generally considered to be a problem for persons with mental retardation. Shortcomings have been noted regarding Medicaid reimbursement, the lack of trained practitioners, and coordination of care (Crocker & Yankauer, 1987; Garrard, 1982; Kascner & Luckhardt, 1990; Minihan. 1986; Minihan, Dean, & Lyons, 1993; Ziring et a!., 1988). Problems noted in a survey of physicians in Maine included poor quality of medical records

34 A/MR, Volume 101, No. 1

and info tions of agnosis physiciar tiple car. patients issues (:\ ies of or residing agr.csed heart cii drome a & Kascr.e & O'Br.t Kr.obce, found a: client r.
ined ca<j nity, nsa prevent: reiardac;. cccrdir.a mere frs com para care (Cr Cnscior.t 1993). E aicne or to the fi
Ins
barriers setting i: burseme assuranc ever, ma sional administ part of f an exter. tions ha<' . to provii
Wr
with tm reside ir answer, not al!o\ tutional superioi strength

:ommuAs exnot be atistical 2. Nevinscitu"able 3. ec:rum.
risk-adh msnin the ;ardless dy was mental, ive!y: It •"as due jserved rsomeng (not )f each tsd the is. For "•ongly
but
.-.fiable 5). The it with . )f chils et al.,
"Ter an ossible ommui from :ver, a Health ronsids with' . h3ve ibursers, and ik3uer, ihardt, :an, & obiems Maine ecords

and information: cognitive/verbal limita- persons with mental retardation vary

tions of these patients, which hinder di- greatly, and for some individuals care in

agnosis and treatment; difficulty for one setting may be more desirable than in

physicians in communicating wich mul- the other. These risks and benefits can

tiple caregivers; maladaptive behavior of only be understood in the context of an

pacients in office; 3nd potential liability individual person's needs and their subissues (Minihan er. al., 1993) In two Stud- jective experience of the care received.

ies of previously institutionalized persons The inability to fuiiy quantify these risks

residing in the community, rates of undi- and benefits in an objective fashion has

agnosed thyroid disease and ur.diagnosed led to a high level of confusion and

heart disease in persons with Down syndrome were- elevated (Barnett. Friedman, & Kastner, 19*38; Friedman, Kastner, Pond, & O'Brien. 19S9). In anocher such study Knobbe, Carey, Rhodes, and Homer (1995) found an 80% reduction in annual perclient medical expenditure. Kastner, Nathanson, and Friedman (1993) examined causes of 14 deaths in the community; nearly half of the deachs were judged preventable. Finally, persons with mental retardation lacking access to health care coordination services required longer and more frequent hospitalizations than did a comparable group receiving coordinated care (Criscione, Walsh, & Kastner, 1995; Criscione, Kastner, Walsh, & Nathanson, 1993). Each of these weaknesses, either alone or in combination, could contribute to the findings of" the present study.
Institutions overcome many of these barriers because they offer a centralized setting in which provider training, reimbursement, record-keeping, and quality assurance functions are in place. However, many institutions suffer from professional isolation, poor morale, and administrative and financial neglect on the part of policy makers and advocates. To an extent, the lack of support for institutions has lead to an erosion in their ability to provide high quality care.
What does this mean for persons

anxiety among consumers, guardians, and families, which, in rum, has fueled the vocal public debate over the future of institutional C3re.
On the basis of our findings, we have several recommendations. First, we recommend a policy of selective deinstitutionalization, as originally proposed in 1974 by the National Association of Superintendents of Public Residential Facilities for the Mentally Retarded and later adopted in the 19"5 Developmentally Disabled Assistance and Bill of Rights Act (?.L 94103) (Landesman & Butterfield, 1987). These policies will likely support a continuing role for institutions in the treatment of some people with mental retardation. Second, we recommend that consumers who consider relocation from institutional settings to the community be fully informed of the potential risks and benefits of this choice. Given the limited knowledge about the likelihood of specific outcomes in either setting, we believe that policy makers and advocates should defer choices of residential care to consumers and professionals. Third, the health and other service needs of institutional residents could be evaluated and alternative placement decisions made dependent on the availability of adequate access within the community.

with mental retardation who currently

Finally, and most important, we en-

reside in institutions? There is no certain courage'additional research to determine

answer. Results of the present study do whether the findings of this study are

not allow us to conclude that either insti- consistent with experiences in states other

tutional care or community-based care is than California. If so, it will be important

superior. Each service system offers to Ie3rn the causes of elevated mortality

strengths and weaknesses with poteatial rates in community settings in order to

risks and benefits. The individual needs of improve outcomes. In the meantime, con-

Comparacive Mortality 35

sumers should be allowed co weigh the Criscionc, T.. Walsh, K-, 4 ICastncr, T.

available evidence agains: their personal

(1995). An evaluation of care coordination

needs, desires, and aspirations.

in controlling inpatient hospital utilization of people with developmental disabilities.

Mer.:al Retardation, 33. 364-373.

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Comparative Mortality 37

Public Health. Sundram, C. J. (1994). Quality assurance m
an era of consumer empowerment and choic;. Mental Retardation, 32, 3~ 1-374. U.S. Department of Health and Human Services. (1980). Toe International classification of diseases, 9tb revision, Clinical modification, Vol. 1 (2nd sd.) Washington, DC. U.S. Government Printing Office. U.S. House of Representatives, Committee on Small Business. (1993). Growth of small, residential living programs for the mentally retarded and developmental!;,- disabled (Serial No. 103-3) Washington, DC U.S. Government Printing Office. Widaman, K. F. (1984. August). Interra:er reliability of adaptive behavior assessments. Item sr.d factor levels. Paper presented at the annual meeting of the American Psychological Association, Toronto, Ontario. Widoman. K. F., Stacy, A. U'., & Borthwick, S. A. (1985, May). Multitrait-multimmhod of evaluating adaptive and maladapt-.ve behavior of mentally retarded people. Paper prtser.ted at the annual meeting of :hs American Association on Mer.tal Deficiency, Philadelphia.
Wo 1/ens berger, W. (1972). ;\ormalizat:nn: Toe principle of normalization in human ser-.ices.Toronto, Canada: National Institute

of Mer.ca! Retardation. Zigman, T. B., Seltzer, G. B., 4 SUverman,
w . P. (1994). Behavioral and mental health changes associated with aging. In M. M. Se!tz;r. M. W. Krauss, St. M. P.Janicki (Eds.), life course perspectives on adulthood and oldagt'zp. 67-91). Washington, DC: American Ass:c:ation on Mental Retardation. Ziring, P., Kastner, T., Friedman, D., Pond, W., Baraert, M., 4 Sonnenberg, E. (1983). Provision oi health care for persons with developmental disabilities living in ;he community The Morrissown mods!. Journal of the American Medical Association, 26<X10).
!439-1-»-H.
Received i'.VPi. first decision ]&! 7/95, accepted 12'9/95
The present work was supported in pun by Grants No. HD21O56 and HD22955 from the National Institute of Child Health and Human Development. The authors are grateful (o the referees and consulting editor for detailed and insightful comments: Richard Eyman for helpful discussions; and Carol Adams, Thomas Call, Deborah Huston. Karen Naples, and Robert Shavclle for substantial assistance. Requests for reprints should be sent Co DaTid Strauss. Department of Statistics, University of California, Riverside, CA 92521.

APPENDIX
Statistical Issues and Procedural Protocol Related to the Person-Years Analysis
Statistical Modeling
At first sight it may appear attractive to treat the individuals in the study as a cohor; and model che survival time in terms of residence type and the covariates, perhaps with a Cox regression (Collet:, 1994). There were reasons not co adopt a cohort perspective, however. One issue is that the Client Development Evaluation Reports did not contain precise information on when the client was at risk. One should not "credit" a client for surviving time periods during which he or she may have been out of the service system, so that if death had occurred it would not have been recorded. Second, many clients entered the system after the beginning of the study period or were older than 40 in 1980. In either case there are issues of left censoring, in addition to the more customary right censoring. There were even cases of clients who left the system for several years and then returned. Finally, the focus in this study was entirely on prediction of risk rather
Note. Some of the discussion in this Appendix concerns advanced mpics in bios:i:iit:cs.

38 A/MR. Volume 101, No. 1

than of survival times, so that it was not essential to work with a cohort.

The approach taken here was the standard epidemiologica! one of analyzing

mortality rates in terms of risk factors (Breslow & Day, 1987). Mortality rates were, as

A.
),
:d

is customary, taken to be the number of deaths divided by the number of person-years at risk. One convenient approach to the analysis is through logistic regression on the

person-years. If the data had actually been derived from a cohort, this approach would

be 2 version of discrete survival analysis (Cox, 1972; Efron, 1988; Singer & Willett, 1991).

i,

As noted in the Method, this procedure is not new (Cupples et al., 1988; Prentice

).

& Gloeckler. 1978). Although we were not working with a cohort, the analysis could

alternatively have been carried out with a Cox regression; the results are generally very

similar (Prentice & Gloeckler. 1978). As noted by Cupples et al. (1988), the model is

based on three assumptions thac are important to check, as additional terms would be

needed in the model if they were violated. In the context of this study the assumptions

are:

l.The "baseline" hazard function does not depend on calendar year. 2. The relation of the risk factors to the mortality does not depend on calendar ye3r. 3- A Markov assumption: only the current risk profile is needed to predict the
outcome.

Using additional variables that allow for departures from these assumptions (Cupples et al., 1988, Kahn & Dawber, 1966), we found no suggestion of 3ny such model violations.

Details of Construction of the Person-Years Data

The ith person-year means the period between ith and (i-*-I)th birthday. The ith personyear is included only if a number of conditions are met, such as that the year does not begin in 1992 (reason: incomplete year, because the study period ended on 12/31/92).
The following are rules for deciding which Client Development Evaluation Report should be chosen to represent the ith year:

1. If the person has exactly one Client Development Evaluation Report in ith year, this report is used.
2. If none, the most recent previous Client Development Evaluation Report or the earliest subsequent one is used—whichever is closest in days to the ith year.
3- If more than one, let their times be ordered as ith birthday - t0 < t, <...< tk < tkfl - (i-rl)th birthday or death date.

For j - 1 k, let the jth SPAN s. - t.., -L.,. Rule: pick the j with the biggest span.

(Reason: it is the most representative) '

•

The Theory and Construction of the Risk-Octiles
We were interested in comparing mortality rates for the various types of residence within groups at different risk levels. It m3y be, for instance, that relative risks of living in an institution compared to the community are different among individuals who are old and infirm than among those who are young and healthy. For this purpose it was necessary to stratify the person-years into groups that were homogeneous with respect to risk. A familiar strategy for this is simply to stratify (cross-classify) the person-years according to the risk factors, such as age-group, mobility score, presence/absence of tube feeding, etc. As is common in models with many predictors, however, the difficulty here is that

Comparative Mortality 39

the result will be too many strata containing too few data (Kleinbaum, Kupper, & Morgenstern, 1982).
The procedure followed here was based on that of Miettinen (1976). (a) We computed a logistic regression function that included all the variables, including those for placement (see Table 4). (b) For each person-year, we calculated a predicted mortality probability by substitution into the logistic function, but with all placement variables set to zero. This rank-ordered the person-years according to predicted mortality risk, after adjustment for placement effects, (c) We then partitioned the personyears into eight homogeneous risk octiles. Cut-pcints were selected so that the expected number of deaths in institutions, computed on the basis of the community care mortality rates, were equal. (Miettinen often preferred five risk groups in his applications. The large data set in the present study was sufficient to support a substantially larger number or" strata, however. We judged that in this case it would not be helpful to work with more than eight strata in our application. Also, by using groups with equal numbers of deaths, we ensured that the stratum-specific standard errors were approximately equal.) (d) Finally, we plotted mortality rates for community care and institutions for each risk octile. The rate for institutions was first directly standardized (Fleiss, 1981) with respect to risk, using community care as standard population. (This corrects for bias arising from the fac: that even within an octile, the institution person-years tend to be associated with slightly higher risk covariate patterns than do the community person-years.)
It would be tempting to take advantage of the stratification to test for mortality differences between the placements, perhaps using the Mantel-Haensze! procedure (Kleinbaum et al., 1982). It is known, however, that in the present context this is not valid (Pike, Anderson, & Day, 1979). Even less appropriate would be to test the differences separately for each risk group, as this would in addition result in great loss of power. For this reason we followed accepted practice by confining our testing and computation of confidence intervals to the logistic regression modeling (Table 4). See also Breslow and Day (1980) on this point.
40 AJMR, Volume 101, No. 1

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COMPARATIVE MORTALITY IN INSTITUTIONS AND IN THE COMMUNITY! ADDITIONAL FINDINGS.
David Strauss, Ph.D., F.A.S.A.1 Theodore Kastner, MD2
Robert Shavelle, Ph.D.1
Technical Report No. 242 Department of Statistics University of California, Riverside
Riverside CA 92521. October 1996
department of Statistics, University of California, Riverside CA 92521.
2Morristown Memorial Hospital, Morristovm NJ.

SUMMARY
In previously published research we compared mortality rates of persons with developmental disabilities living in state institutions and in community settings.1 The population was persons aged 40 or over who received services in California between 1S80 and 1992. After adjusting for differences in age, mobility, ar.d other risk factors, we found that mortality was 72% higher in the community than in the institutions. It was noted that the difference may be in the quality of community medical services.
The present report is a brief account of nore recent work on the topic. The primary differences are (a) data are reported for the 10-year period 1985-1994, which is substantially more recent than the study period used in Strauss and Kastner (1996) ; (b) we use much simpler analytic methods that do not rely on statistical modelling; and (c) in the new work we stratify the data into clinically meaningful subgroups, based on the individuals' level of skill.
Using the different methodology, we found that community care in 1985-92 was associated with a 74% increase in mortality—a result strikingly close to the earlier one. This is evidence that the previous result was not an artifact of the statistical procedures. For 1993-94, there was an 82% increase in mortality odds associated with the community. This may be viewed as an independent confirmation of our previous findings, since the 1993-94 data have no overlap with the study period we used in Strauss and Kastner (1996) . Further, the 1993-94 experience is relatively recent and is much more representative of the current situation.
'Strauss, DJ and Kastner, TA (1996). "Comparative mortality of people with mental retardation in institutions and the community." American Journal on Mental Retardation. 101. pp. 26-40.

Introduction This report is intended as a brief and non-technical summary of our recent extensions to the work of Strauss and Kastner (1996) — hereafter, SK. The reader is referred to SK for full details on the subjects, variables, etc., together with the statistical theory used there. A full account of the present work will be shortly submitted for peer review.
As in SK, the unit of analysis is the person-year. Here we used a simpler definition of person-year, one that yielded about 20% more person-years. Again, person-years lived in the state institutions were compared with those lived in small group homes and other community settings. As in SK, variables taken into account were age, gender, self-care skills, and motor skills. Each of the two skills were coded on a four-point scale: None, Poor, Fair, and Good. See SK for details. The study period was taken to be the 10year period January 1985 to December 1994, which is substantially more recent than the 1980-92 period considered by SK.2
The report focusses on relative risk, as measured by the odds ratio.3 We are concerned here with the relative risks of dying in a given year in two groups. For example, an odds ratio of 1.0
2It should be noted, however, that our results for the later period are very similar to those derived from the 1980-84 period.
3The odds ratio is the standard epidemiological measure of comparative risk. See, for example, Kleinbaum, Kupper, and Morgenstern (1982). Epidemioloaical Research. Belmont, CA: Wadsworth.

indicates that the risks in two groups are equal; an odds ratio of 2.5 for group A relative to group B would indicate a 150% higher risk in A than in B.

Results Since SK had considered data only up to 1992, we stratified the data into two time periods as follows.

Period
1985-92 1993-94 1985-94

Number of . Person-years
97,387 31,133
128,520

Odds Ratio'

95% confidence

(community to institutions)

interval

1.74 1.82

(1.49, 2.05) (1.34, 2.46)

1.75

(1.52, 2.02)

The odds ratio for 1985-92, 1.74, represents a 74% increase in mortality in the community, as compared to the institutions. This is very close to the 72% increase obtained by SK. We emphasize that the present result was based on a simple odds-ratio procedure which involved no statistical modelling-. SK, by contrast, employed a more complex logistic regression model. Having carried out literally dozens of analyses on this data, we have in fact found that different models and procedures give virtually identical results.
'Technical note. It was necessary to stratify by age, gender, motor skills and self-care skills in these calculations. This was effected with the use of the Mantel-Haenszel estimator (Kleinbaum et al., p. 343). The related statistical tests and procedures that were needed in this connection will not be discussed here.

The odds ratio for the two years 1993-94, 1.82, represents an 82% increase in mortality odds in the community.3 This comparison of mortality in institutions and the community is basad on data with no overlap at all to that of SK. As such, it represents independent verification of their finding. Further, the time period 1993-94 is closer to the present day than SK's and thus better reflects current conditions.
Finally, we stratified the data into groups according to the subject's score on the most important mortality predictors—the motor-skills and the self-care skills variables. Since each scale has four levels, there are 16 possible categories. Table 1 shows the odds ratios computed separately within each group.
Consider, for example, the upper left cell, which corresponds to subjects with no motor or self-care skills at all. Most of these individuals have profound mental retardation, and some are in a persistent vegetative state. The table shows an odds ratio of 2.46. This means that the persons with no motor or self-care skills and living in the community were about 2.5 times more likely to die in a given year than similar people living in institutions. This is a 146% increase in odds on mortality.6 The range given in the table,
3This is statistically significant at the 1% level. 6It is statistically significant at the 5% level, so that just considering the data on persons with no motor and self-care skills we could conclude that-the observed difference was unlikely to be an artifact of chance.

1.05 to 5.76, is a 95% confidence interval. The blanks in the table indicate uncommon combinations where there was insufficient data to warrant the computation of an odds ratio.7 For example, there were of course no individuals at all with good self-care skills but lacking all motor skills. In all 10 cases where an odds ratio could reasonably be computed the community death rate was higher, sometimes by a factor of 2. Conclusion Using a very different methodology from that of SK and working with a more recent time period, we obtained strikingly similar results to those of the previous study.
7 Specifically, we only worked with cells where there were at least three deaths in each residential setting.

Table 1. Odds ratios for the community care relative to
institutions, controlling for motor and self-care skills; n=128/520 person-years.

Motor none
poor fair good

Self-Care skill level

none

poor

fair

2. 4 6 " (1 .05, 5.7 6 ) b

good

1. 43
Co .88, 2. 32)
l. 64 (0 .42, 6. 36)
__

2.24** (1.56, 3.22)
2.04" (1.50, 2.77)
1.77* (1.06, 2.94)

1.06 (0.42, 2.64)
1.59" (1.13,2.23)
1.71" (1-25, 2.35)

1.24 (0.64,2.41)

"Odds ratio, community relative to institutions, computed with stratification by age and gender groups. Note: * —significantly different from 1.0 at P < 0.05; ** — P < 0.01.
b95% confidence interval for the odds ratio.
eOdds ratios and confidence intervals are not computed unless there are at least three deaths in both groups, as otherwise the results are highly unstable.

Acknowledgements The present work.was supported in part by Grant Nos. HD21056 and HD22953 from the National Institute of Child Health and Human Development. Provision of data from the California Department of Developmental Services and the California Bureau of Vital Statistics (Department of Health Services) is gratefully acknowledged. Authors also wish to thank Albert Baumeister and Richard Eyman for helpful suggestions.

The Prediction of Mortality in Children with Severe Mental Retardation: The Effect of Placement

David Strauss, Ph.D.

Richard K. Eyman, Ph.D.

Department of Statistics

School cf Education

University of California, Riverside

University of California, Riverside

Herbert J. Grossman, M.D.

University of Michigan Medical Center

Correspondence and requests for reprints should be sent to David Strauss, Department of Statistics, University of California, Riverside, CA 92521.

4,351 words in text

' '

2 Figures

3 Tables

Keywords: Mental retardation, mortality, residence type, logistic regression

Running Head: MORTALITY IN CHILDREN WITH MENTAL RETARDATION

Prediction of Mortality 1
The Prediction of Mcrtaiity in Children with Severe Mental Retardation: The Effect of Residential Placement

Objectives.

ABSTRACT

Prediction of Mortality 2

To assess the predictors of mortality in severely disabled children with mental retardation, and to compare risk adjusted mortality rates for those living in institutions and in the community.

Methods.

Statistical analysis of a set of 24,469 person-years, derived from a population of all children with severe mental retardation and fragile medical condition who are registered with the California Department of Developmental Services. Variables considered included age, several measures of mobility, presence or absence of tube-feeding, level of retardation, and certain adaptive skills.

Results.

Reduced mobility and the use of tubefeeding were associated with a large increase in mortality risk. Own home residence and community care facilities have an estimated 25% higher risk-adjusted odds on mortality than institutions and health facilities.

Conclusions.

Prediction of Mortality 3

Tne differential mcrtality in the placements points to a possible effect of quality of care. One consequence of the currer.: trend tcwards deinstitutionalization may be an increased mortality rate in children with severe developmental disability.

INTRODUCTION

Prediction of Mortality 4

Numerous studies of people with mental retardation have shown that immobility, in combination with either feeding and toileting difficulties or severe cerebral palsy, is associated with higher mortality.1'9 These in a persistent vegetative state, which includes immobility, are subject to an especially high mcna.'iry rate.'0 Although all of these studies have identified mobility and other risk factors as important in predicting survival, no study to date has attempted to compare mortality rates in different residential placements while controlling for such factors simultaneously. In a previous study that controlled for ambulation alone, similar mortality rates in institutions versus the community had been reported."

Our interest in comparative mortality among different placements derives from studies that report problems with the delivery of medical care to people with developmental disabilities in community settings (primary own home and small group homes).ia"23 For example, difficulties noted in a survey of physicians in Maine included poor quality of medical records, problems with communicating with multiple caregivers, maladaptive behavior of patients in the office, and potential liability issues.17 A New Jersey study of the causes of 14 deaths in the community judged that nearly half the deaths were preventable.21 Such studies raise the question of whether mortality rates in the community are greater than in facilities such as state institutions, which have the

Prediction of Mortality 5
resources to provide a higher level of medical care. This would have implications for the current trends towards deinstitutionalization, which have resulted in a 60% reduction in the number of clients residing in large institutions in the United States since 1967.24
This paper addresses three questions: 1) What are the most sensitive predictors of mortality, from a large number cf potential candidates based on previous research? 2) Dees residential placement make a difference in mortality after these risk factors are4 controlled? 3) If there is such a difference, is it the same for the most medically disabled individuals (at highest risk) compared to those with fewer disabilities?
METHODS AND MATERfALS
Data source.— The subjects were children with severe developmental disabilities who have received services from the California Department of Developmental Services (DDS) between January 1, 1980 and December 31,1992. All were referred to one of the 21 regional centers contracted by the state to provide services to clients in their geographic area. The regional centers, which are privately owned corporations, coordinate all services including the choice of residential placement.
The data source was the Client Development Evaluation Report (CDER).25 A CDER is completed once per year, and additionally on moving to a new placement, for anyone

Prediction of Mortality

6 receiving services from DDS. The CDER consists of a 1C0-item Diagnostic Element and

a 66-item adaptive behavior Evaluation Element, providing demographic, health, and

behavioral data. Information is collected by case workers or psychiatric technicians who

have been trained in the use of the instrument. Evaluations are based on personal

observations, supplemented where appropriate with interviews with parents. Mortality

information was obtained from DDS sources, supplemented by annual computer tapes

issued by the California Bureau of Vital Statistics.

+

The inter-rater reliability of the CDER items employed has been investigated elsewhere,29"27 and in recent unpublished work. Reliability, as assessed by Cohen's kappa, exceeded .8 for the motor skills variables and .7 for all the variables used in the analysis here, with the exception of interaction with peers (it = .60). The concurrent validity of the CDER adaptive skills items, relative to a shortened version of th= American Association on Mental Retardation's Adaptive Behavior Scale, has been judged satisfactory, correlations between the factor scores ranging from .50 to .88.2s"a In addition DDS periodically evaluates the CDER information, since it is used to reimburse service providers.
Sample.— As in Eyman et a l . , u we focused on the severely disabled, medically fragile younger clients. Mortality for this group is much higher than for the more ambulatory robust children, and the patterns of causes of death are very different. In

Prediction of Mortality 7
addition, this target group included virtually ail children with profound and severe mental retardation known to regional centers throughout the state. Hence there is no issue of selection bias.

An operational definition of severely disabled and fragile for this study was based

on four variables reported in the CDER:

(1) Crawling or Standing: Cannot pull to a standing position.

-

(2) Ambulation: Does not walk.

(3) Eating: Does not feed self, must be fed completely.

(4) Toileting: Not toilet trained or habit trained.

We shall refer to these collectively as Condition A. Of the more than 150,000 clients

known to DDS and represented by at least one CDER, some 11,000 were children with

one or more CDERs meeting Condition A.

" A distinctive feature of the study was that the unit of analysis was not an individual person, but instead a person-year. A year was taken to be the interval between two birthdays. To avoid bias, a given person-year was included in the sample only if it was complete: roughly speaking, the conditions are that (1) it meets Condition A, (2) the age is between 2 and 14 inclusive, and (3) there was evidence that the child was in the system from the beginning of the year, and either died or was still in the system at the • end. More complete details are available from the first author. Such a procedure was

Prediction of Mortality 8
necessary to exclude time intervals fcr which the individual was net known to be in the system throughout. An example may clarify the procedure: suppose a child enters the system at age 4 years 6 months and stays in Condition A throughout until death at ace 7 years 4 months. Three person-years would be contributed: the complete year between fifth and sixth birthdays, the complete year between sixth and seventh birthdays, and the year beginning at the seventh birthday. The incomplete year preceding the fifth birthday would not be included.
The procedure yielded a set of 24,469 person-years, arising from 7,241 children; not all of the 11,000 children who had one or more CDER's meeting Condition A contributed a complete person-year. Table 1 classifies the subjects by age at first contributed person-year, and by the number of years he or she contributed. The first contributed person-year was at age 2 fcr about half the children. The majority of the children contributed three or fewer person-years, though a maximum number of 12 is possible. There were in all 1,330 deaths in the 24,469 person-years, for an overall annual mortality rate of 5.44%.
Description of Variables.—Table 2 gives percentage composition and mortality rates for a number of variables reported in the CDER's. The first eight of these were ultimately selected for use in our modeling.

Prediction of Mortality g
1. Rolling and Sitting. This is a nine-point scale, ranging from "Does not lift head when lying on stomach" to "Assumes and mantans sitting position independently." Coders report the highes: level of skill attained. As the table shows, the group at highest risk has a relative risk cf about six (10.19/1.73), compared to the group at lowest risk. The importance cf mobility as a predictor of mortality has been documented1-110
On the basis of the mortality rates shewn in Table 2 for the rolling-and-sitting variable, we chose to collapse it to a new variable MOBIL with four levels as follows: MOBIL1 = first level of rclling-and-sitting (Cannot lift head) MOBIL2 = second level (Lifts head when lying on stomach) MOBIL3 = levels 3-5 (Lifts head and chest when lying on stomach, rolls from
side to side, or rolls from front to back) MOBIL4 = levels 6-9 (Rolls both back to front and front to back, or sits with at
most minimal support for at least 5 minutes). 2. Hand Use. We used a simple dichotomy of 'No functional use of hand" versus
"Uses fingers independently." 3. Crawling and Standing. According to Condition A, only two groups were included
in this study. These are "Does not creep, crawl, or scoot" and "Creeps, crawls or scoots without the ability to stand." The crawling variable is thus dichotomous.

Prediction of Mortality 10
4. Tubefeedinq. This is an incicatcr of whether the subject was tubefed; the CDER currently does not distinguish between nasogastric or gastrostomy tubefeeding, but gastrostomy feeding is kr.ov/n tc account for the great majority of the instances in this population. Tubefeec'ing is associated with a markedly higher mortality risk (9.48 to 4.21), with a crude relative risk cf 2.25; it was thus an important mortality predictor, as previously noted by Eyman et al.1-3
5. Placement. Placements were grouped into four categories: Own Home, Community* Care, Health Facilities, and Institutions. Parent/relative homes were counted as Own Home. Community Care included small homes such as foster care as well as larger board-and-care facilities which serve seven cr more people. Health facilities provide intermediate health care. Institutions, new called Developmental Centers in California, are operated by the state. Table 2 shews that the crude mortality rate for institutions (8.74%) was almost double that of the other placements. Skilled nursing facilities were excluded from this study because of complexities involved with time spent in the facility: children are referred to this placement during a serious illness but return to their former placement when improvement is noted. Nearly all the those who remain are chronically ill, with medical conditions that preclude other placement.
In addition, we screened all the remaining variables from the 66-item Evaluative Element of the CDER for mortality prediction. The following three variables emerged as

Prediction of Mortality 11
having some predictive value; all showed the expected rise in mortality rates with increasing disability. 6. Interaction with Peers. Tnis four-point scale was dichotomized according to
whether or not the child enters into social interactions. Once again the main contrast in mortality rates was between the lowest level cf the scale and the other three. The rate for the former (6.55%) was mere than double the rate for the latter. 7. Auditory Perception. Tnis is a seven-point scale that we ultimately dichotomized according to whether the child appeared to distinguish vcices from other sounds. Again the relative mortality at the lower level was more than double that at the higher level. 8. Expressive Language. This is a seven-point scale, dichotomized according to whether the child expresses words. The relative risk for this variable also exceeded 2.
-Two other variables that were eventually excluded from the multivariate modelling nevertheless deserve comment:
(a) Mental Retardation Level.3"' Categories are mild (IQ between 50-55 to 70-75), moderate (35-40 to 50-55), severe (20-25 to 35-40) and profound (less than 20-25). California uses an additional category, suspected MR, for those whose level of disability has not been established. It might be expected that the level of

Prediction of Mortality 12
retardation would be an important mortality predictor; as Table 2 suggests and some preliminary modeling confirmed, however, the variable contributed rather little when the others were taken into account.
(b) Table 2 shows the decline in frequencies (proportion of person-years) with Ace. This is partly due to mortality, but mostly to the children whose condition improved enough for them to graduate cut of Condition A. As Table 2 shows, the age-v specific mortality rate is fairly constant: there was no hint here of the usual decline with age. This suggests that fcr those who remain in a fragile condition, survival prospects do not improve over time.
Statistical Analysis. It. may seem at first sight that a cohort survival analysis, such as a Cox regression,31 should be employed here. In fact, however, a cohort perspective •* would be somewhat inappropriate for a number of reasons: (1) Our observations do not yield-survival times in any natural way: subjects are observed only during a 1980-92 window (giving rise to left censoring as well as the usual right censoring), and may move in and out of the "severely disabled" state (Condition A); (2). Speciai rules were required to determine when the subject is actually in the system, and thus at risk; (3) because the study focussed on the effect of the predictor variables (mobility etc., plus residence) on the hazard rate38 rather than on the duration of survival times, an analysis of hazards was sufficient.

Prediction of Mortality 13
Instead, it was convenient to model the hazards directly in terms of the predictor variables, using Icgistic regression.53 Note that if we actually were working with a cchcrt study, the Icgistic regression approach here would be a version of discrete survival analysis.1^38 The units of the analysis were the 24,463 person-years (reduced to 24,465 because four contained missing values on one or mere variables). This logistic modelling of person-year data is closely related to Poisson regression.37 Note that, just as in Poisson regression, no assumption is made regarding independence of the severak person-years contributed by a single individual; technically, the individual's contribution to the likelihood function is the product over the person-years of the conditional survival probabilities, the conditioning events being that he is alive at the start of the year.
In general the baseline hazard function (i.e., the mortality probability corresponding to a reference covariate pattern as a function of ace, or other "time" variable) depends on both the subject's age and the calendar year. In this instance, however, the hazard analysis showed that: (a) There were no discernable trends in the age-specific baseline hazard rates. (b) When the age range (2-14) was partitioned into age-groups there were no
significant differences between the age group-specific baseline hazard rates. (c) There was no evidence of interactions (effect modification) between age-groups
and other major predictors. (d) No substantial temporal dependencies (i.e., effects associated with the calendar

Prediction of Mortality 14
year) were observed. In view cf this, age and calendar were excluded from the analysis; this implies a constant baseline hazard function.
All covariates used in the models considered were binary. The rclling-and-sitting variable, which had been reduced to four categories as described above, was ceded with three binary variables M0BIL1, MOBIL2, and MOBIL3; these are contrasts of the firsf three categories against the fourth. In this way edds ratios and related quantities are easily obtained (Hosmer DW, Lemeshcw S. 1SSS;38-81). For residence, binary contrasts for each of Community Care, health facilities, and institutions were defined. Own home was taken as the reference group because it was the largest.
Model building and diagnostic analyses were carried out using standard procedures (Hosmer, DW, Lemeshow S. 1S89;82-175), including stepwise logistic regression and likelihood ratio testing for groups of two-way and higher interactions. An overall test of the model presented in Table 3 showed no evidence of lack of fit (Hosmer and Lemeshow test,34 x2 = 3.5, 8 df; P = .9).
In order to compare mortality rates for the different placements within strata that are homogeneous with respect to risk, we adapted the "multivariate confounder score" procedure of Miettinen.38 The logistic regression equation defined by Table 3, but with al!

Prediction of Mortality 15
placement variables set to zero, was used to generate a predicted probability of death for each person-year. Tnese probabilities were estimates of risk, adjusted for placement effects. They were then used to rank order all the 24,465 person-years from highest to lowest risk. Next, the perscn-years were partitioned into eight homogeneous "risk octiles", the boundaries chosen in order to give equal expected numbers of deaths in each. This choice results in approximately equal variances fcr the octile-specific mortality rates. Finally, we computed and plotted mortality rates fcr (a) own home and community care," and (b) health facilities and institutions. The latter rate was directly standardized"10 to adjust for the tendency within each cctile for institutions and health facilities to have relatively more person-years with higher risk. (The own home and community group was selected as the standard population because it was the larger of the two.)

RESULTS

The main results are condensed into Table 3, which summarizes a series of logistic regression analyses. Thirteen binary variables were ultimately retained. These fall into three groups: five binary variables for the main effects and interactions of rolling-andsitting and use of tubefeeding, five for other predictors, and the last three for contrasts between the residence types.

The joint relationship of tubefeeding and rolling-and-sitting to mortality is expressed

j

Prediction of Mortality 16
in Table 3 by five contrasts against a reference croup. The reference group consists of person-years for subjects at lowest risk, i.e., these not tubefed and with the highest level of mobility (MOBIL4, indicating at least full rolling ability and including those with ability to sit). The first variable (TF & M0BIL1) contrasts these who are tubefed and unable to lift their head when lying en their stomach with the reference group. The odds ratio of 4.02 indicates the former group to have about four times higher odds of dying in a given year than the reference croup, other variables held constant. This odds ratios may be interpreted as being roughly equal to the relative risk for the two groups." Those who are tubefed but possess more mobility (TF & MOBIL2,3,4) had 2.S4 times the mortality odds of the reference group; this ratio was substantially the same for subjects at all three of the higher levels of the rolling-and-sitting scale.
For those not tubefed, the odds ratio was 2.76 for those who could not lift head , (Not TF & MOBIL1); this declined to 1.80 for those who could lift their heads but no mce (Not TF & MOBIL2), and to 1.4 for those at the next level (Not TF & MOBIL3). This last group still had significantly higher risk than the reference group. The Hand Use variable was significant; those v/ith no functional use of their hands had an estimated odds ratio of 1.19 compared to those with some hand use. Table 3 shows that those who could not creep, crawl, or scoot had about 40% higher mortality odds than those who could, again underscoring the importance of mobility to survival. The three "adaptive" variables, Interaction with Peers, Auditory Perception, and Expressive Language, also contributed

Prediction of Mortality 17
appreciably to the prediction; absence of any cf these skills is accompanied by an increase in odds on mortality of some 20-30%.
The final three rows of the table refer to the placement variables, a major focus of the study. The own home group was used as the reference. The Community Care variable contrasts the mortality cf community care with that cf own home. Although the odds ratio (1.09) is in the direction of a higher mortality rate than Own Home, it is nof significantly different from 1. Both of the other two contrasts, those of health facilities and institutions with own home, are in the direction of a reduced, mortality risk. The odds ratios for both of these placements compared to own home, .81, correspond to a 19% reduction in mortality odds. Equivalently, own home is associated with a 23% increase in mortality odds, relative to either heaith facilities or institutions. Thus the apparently superior mortality rate of own home over institutions observed in Table 2 is actually reversed when the confounding variables are controlled. It may be noted that when own home and community care are combined and the logistic analysis re-computed, the odds on mortality for the combined group exceed those for institutions and health facilities by 25%.
Table 3 shows that the health facilities-own home comparison is on the borderline of statistical significance (odds ratio = .81; P = 5.6%), while the institution-own home comparison results in the same odds ratio, with a P-value of 2.4%. For seme purposes we have combined institutions and health facilities since they both represent the higher .

Prediction of Mortality 18
levels of medical care, have very similar mortality patterns, and are represented by relatively small sample sizes (see Table 2). The contrast of own home and the combined group is significant at the 1% level (ail p-values quoted are two-tailed). This result gees beyond earlier studies which have shown that the lower mortality in own home can be accounted for by controlling for certain predictor variables.4''1 In the present study we also compared mortality in the lower level of care placements (own home and community care) with the higher level of care placements (health facilities and institutions), controlling* just for the two variables rolling-snd-sitting and tubefeeding. This resulted in a set of eight 2x2 placement-mortality tables, not shown here. Even when only these two variables were controlled, health facilities and institutions showed slightly lower mortality (P =4.5%, Cochran-Mantel-Haenszel test).
It was of interest to compare mortality rates by placement at different levels of risk. As described above, we partitioned the person-years into eight risk-homogeneous groups or "risk octiies." Figure 1 shows the breakdown of the person-years by residential type within the octiies. For clarity, and for reasons discussed earlier, own home and community care have been grouped. In this group the proportions in the octiies decline steadily as the risk increases. As may have been expected, health facilities tend to cater to the higher risk groups, though not the very highest ones. Tnese highest-risk person-years are concentrated in the institutions, which explains the high (unadjusted) mortality rate for institutions noted previously.

Predict/on of Mortality 19
Mortality rates are plotted against octiles of risk in Figure 2. For reasons noted above, health facilities and institutions have been combined. Figure 2 shows, for each octile, the mortality rates for the own home and community group, and the health facility and institution group. The pattern of a lower mortality rate for institutions and health facilities appears to be rather consistent across the risk octiles, with no suggestion of a trend.
DISCUSSION
We have identified the functional disabilities that are most predictive of an unfavorable prognosis in a large population of severely disabled and nonambulatory children with mental retardation. All the disabilities are a consequence of devastating neurological deficits. Tne most important predictors are mobility and the use of a feeding tube. The importance of tubefeeding and mobility had been recognized previously,1"3 but the multivariate analysis resulted in greater refinement of the mobility variables, together with a quantitative assessment of predictive power. For example, Table 3 shows that subjects unable to lift their heads are subject to markedly greater risk than those with this ability. The predictive value of the can/cannot lift head distinction is a new finding that results in substantially improved discrimination.
We have seen that four distinct .levels of rolfing-and-sitting are associated with

Prediction of Mortality 20
importantly different mortality rates. Other predictors making a contribution are hand use and the abilities to creep, crawl, or sccot, speak intelligible words, recognize voices, and interact with peers. The predic:ive utility of these variables had also not previously been assessed.
The results of the study can be used in a number of ways. For a given individual with a specific profile of mobility, hand vse, tubefeecing, and so on, the logistic regression" model presented in Table 3 provides an immediate estimate of the annual mortality rate. Table 3 also identifies some major variables that should be considered for stratification (subdivision) of the population of younger persons with mental retardation before one undertakes lifetable or survival analyses. A further use of the model is to identify combinations of covariate values that are similar with respect to their associated hazard levels; in this way one can identity a group of subjects who are at similar risk to a target individual and then, for example, construct a life table for him or her. Finally, the variables identified, together with their odds-ratios, provide an informal guide to the survival prospects of a given individual.
The differential mortality rates among the various placements is noteworthy. Tne odds on dying for those in their own home or in small group homes are estimated to be 25% higher than the odds for institutions and health facilities, other factors held constant. We have seen that consideration of the crude mortality rates (Table 2), without controlling

Prediction of Mortality 21
for any predictors, would incorrectly pcint to the opposite conclusion. The issue appears to be a case of spurious association resulting from the excess of higher-risk patients in institutions and health facilities.
The analysis here is based en an observational study net a controlled experiment, and as such yields results that must be judged as tentative. A definitive judgment en whether institutions are "safer" than cwn homes would require a properly randomized4 experiment, and this would be ethically infeasibie. In the absence of such an experiment it is conceivable that there are confounding factors, net measured here, that somehew favor institutions and health facilities; controlling for these might then change the result. As pointed out by a referee, one way this could happen is through "overcontrolling": if community care resulted in better outcomes for mobility or other functioning than institutional care, then controlling for such factors would introduce a bias against the community placements. We are not aware of any evidence of such placement differences, however. Further, it seems likely that own home placements, for example, vary substantially in quality and quantity of care. To identify the causes of the differences, and to measure their relationship to mortality, are important issues for future work.
On the other hand we have seen that as mere variables in the study are statistically controlled, the more the comparison favors the placements with higher level of care. Thus Table 2 showed institutions and health facilities to have the highest mortality rate when

Prediction of Mortality 22
no variables were controlled; when the two major predictors (tube feeding and mobility) were controlled, the comparison slightly favored the institutions and health facilities, being in fact marginally significant; and these placements appeared substantially better in the fully controlled model of Table 3. We have also seen that the institutions were disproportionately represented in the highest risk groups. Variables such as mobility and tubefeeding serve as markers for health risk, and :f one could control for health risk precisely by including all relevant variables the comparison might be expected to tilt stiik further towards the higher-care placements.
One explanation for the difference is that the greater access to medical care, and especially emergency care, in these placements is being expressed in a reduced mortality rate. Further study on the causes of deaths, based on examination of medical records, would be helpful here. It would also be of interest to carry out similar studies in states other than California.
Mortality is, of course, only one of a number of outcome measures relevant to the current debate over deinstitutionalization. Other criteria include cost," issues of family cohesion, and the desirability of the least restrictive environment.4' Nevertheless, the results here raise the possibility that the trend towards deinstitutionalization is accompanied by increased mortality in children with severe developmental disabilities, as in recent years even highly debilitated children have been moved out into the community.

Prediction of Mortality 23
Parents, guardians, and others concerned with placement decisions may wish to take this into account.

Acknowledgements

Prediction of Mortality 24

Authors are grateful to the referees and the Consulting Statistical Editor for helpful and detailed comments on earlier versions of this article. Tney also wish to thank Deborah Huston, Thomas Call, Michael Jenkins, Gene Justin, Karen Naples, and Carol Adams for substantial assistance. Tine present work was supported by Grant No. HD-21056 from the National Institute of Child Health and Human Development to the second author.

REFERENCES

Prediction of Mortality 25

1. Eyman RK, Grossman HJ, Chaney RH, Call TL Survival of profoundly disabled people with severe mental retardation. AJDC. 1993 March; 147:329-336.

2. Eyman RK, Olmstead CE, Grossman HJ, Call TL Mortality and the acquisition of basic skills by children and adults with severe disabilities. AJDC. 1993* February; 147:216-222.

3. Eyman RK, Grossman HJ, Chaney RH, Call TL The life expectancy of profoundly handicapped people with mental retardation. N Engl J of Med. 1990 August;323(9):584-589.

4. Eyman RK, Borthwick SA, Call TL, White JF. Prediction of mortality in community and institutional settings. J of Meat Defic Res. 1988;32:203-213.

5. Eyman RK, Grossman HJ, Tarjan G, Miller CR. Life expectancy and mental retardation. Washington DC: American Association on Mental Deficiency; 1987:7. Monographs of the American Association on Mental Deficiency.

I.,
v :••

Prediction of Mortality

26 6. Roboz P. Mortality rate in institutionalized mentally retarded children. MedJAust.

1972; 1:218-221.

7. Evans PM, Evans SJW, Alberman E. Cerebral palsy: why we must plan for survival. Arch Dis Child. 1990;65:1329-1333.

8. McGrath SJ, Splaingard ML, Alba HM, Kaufman BH, Glicklick M. Survival and, functional outcome of children with severe cerebral palsy following gastrostomy. Arch Phys Med Rehabil. 1SS2 May;73:133-137.

9. Kudrjavcev T, Schoenberg BS, Kurland LT, Groover RV. Cerebral palsy: survival rates associated handicaps, and distribution by clinical subtype (Rochester, MN, 1950-1976). Neurology. 1985;35:900-903.

i d Ashwal S, Eyman RK, Call TL Life expectancy of children in a persistent vegetative state. Pediatr Neurol. 1994; 10:27-33.

11. Miller CP, Eyman RK. Hospital and community mortality rates among the retarded. J Ment Defic Res. 1978;22:137-145.

Prediction of Mortality 27
12. Growth of Small, Residential Living Programs for the Mentally Retarded and Developmentally Disabled. Washington, DC: U.S. Government Printing Office; 1993. U.S. House of Representatives Committee on Small Business publication 103-8.
13. Crocker A, Yankauer A. Basic issues. Ment Retard. 1987;25:227-232. 35.
14. Garrard S. Health services for mentally retarded people in community residences; problems and answers. Am J Public Health. 1982;72:122S-1228.
15. Kastner T, Luckhardt J. Health care services for persons with developmental disabilities living in the community in New Jersey. NJ Med. 1990;87:819-822.
16. Minihan P. Planning for community physician services prior to deinstitutionalization of mentally retarded persons. Am J Public Health. 1986:76; 1201-1205.
17. Minihan P, Dean P, Lyons C. Managing the care of patients with mental retardation: a survey of physicians. Ment Retard. 1993;31:239-246.

MO

Y
Prediction of Mortality 29
23. Criscione T, Kastner T, Wslsh K, Nathanscn R. Managed health care services for people with mental retardation: statewide impact on inpatient parameters. Ment Retard. 1993 ;31:297-306.
• 24. Lakin C, Braddock D, Smith G. Trends and milestones: state institution closures. Ment Retard. 1994; 32:77.
25. California Department of Developmental Services. Client development evaluation report (CDER). Sacramento: Author; 1978.
26. Arias M, Ito E, Takagi N. Concurrent validity of the client development and evaluation report. In: Silverstein AB, Ruharty AL, eds. Pacific State Archives VIII. Pomona, Calif: University of California at Los Angeles Developmental Disabilities Immersion Program; 1983:28-33.
27. Harris CW, Eyman RK, Mayeda T. An Interrater Reliability Study of the Client Development Evaluation Report: Final Report to the California Department of Developmental Services. Pomona, Calif: UCLA, Mental Retardation Research Center, Lanterman State Hospital; 1982.

Prediction of Mortality 30
28. Widaman KF. Interrater reliability of adaptive behavior assessments: item and factor levels. Presented at the 92nd annual meeting of the American Psychological Association; August 25, 1984; Toronto, Ontario.
29. Widaman KF, Stacy AW, Borthwick SA. Multitrait-multimethod of evaluating adaptive and maladaptive behavior of mentally retarded people. Presented at the 109th annual meeting of the American Association on Mental Deficiency; May 29r 19S5; Philadelphia, Pa.
30. Grossman HJ, editor. Manual of Classification in Mental Retardation. Washington DC: American Association on Mental Deficiency; 1977.
31. Collett D. Modelling Survival Data in Medical Research. London: Chapman and Hall; 1994.
32. Cox DR, Oakes D. Analysis of Survival Data. London: Chapman and Hall; 1984:14.
33. Hosmer DW, Lemeshow S. Applied Logistic Regression. New York: Wiley;1989.

Prediction of Mortality 31
34. Singer JD, Willett JB. Modeling the days of our lives: using survival analysis when designing and analyzing longitudinal studies of duration and the timing of events. Psycho! Bull. 1991 ;110:268-280.
35. Cox D. Regression models and life tables. J of the Royal Statistical Society. 1972;34 (Series E): 187-220.
36. E-fron B. Logistic regression, survival analysis, and the Kaplan-Meier curve. J Am Statistical Assoc. 1S3S;83:4-!4-425.
37. Breslow NE, Day NE. The Design and Analysis of Cohort Studies. Lyon, France: International Agency for Cancer Research; 1987:135-143.
38. Lemeshow S, Hosrner DW. The use of goodness-of-fit statistics in the development of logistic regression models. Am J Epidemiology. 1982; 115:92-106.
39. Miettinen O. Stratification by a multivariate confounder score. Am J Epidemiology. 1976;104:609-620.
40. Fleiss JL Statistical Methods for Rates and Proportions., 2nd ed. New York:Wiley; 1981:65,78,95,244.

\ ...
Prediction of Mortality 32
41. Campbell EM, Heal, LW. Prediction of cost, rates, and staffing by provider and client characteristics. Am J Ment Retard. 1995; 100:17-35.
42. Wolfensberger W. Normalization: the Principle of Normalization in Human Services. Toronto, Canada: National Institute of Mental Retardation; 1972.

Prediction of Mortality 33

Table 1- 7,241 Children, classified by age at first contributed person-year and by number of person-years contributed.

Age at first person-year

Percent

2 yrs

51.1

3 yrs

10.9

4 yrs

7.2

5 yrs

5.0

6 yrs

4.0

7 yrs

3.7

8 yrs

2.8

9 yrs

2.8

10 yrs

2.6

11 yrs

2.6

12 yrs

2.5

13 yrs

2.5

14 yrs

2.4

Number of person-years Contributed

Percent of children contributing that number of person-years

1yr

30.1

2 yrs

20.4

3 yrs

13.5

4 yrs

9.1

5 yrs

7.2

6 yrs

5.5

7 yrs

4.5

8 yrs

3.5

9 yrs

2.7

10 yrs

2.1

11 yrs

1.2

12 yrs

0.3

v , •••

Prediction of Mortality 34

Table 2-Percentages of client-years and mortality rates for some CDER variables (n = 24.465)

Client Years %

[ROLLING AND SITTING

Does net lift head when lying on stomach

25.1

Lifts head when lying on stomach

22.2

Lifts head and chest using arm support when

7.1

lying on stomach

Rolls from side to side

9.0

Rolls from front to back only

6^5

Rolls from front to back and back to front

14.3

Maintains sitting position with minimal support for

8.4

at least five minutes

Sits without support for at least five minutes

3.1

Assumes and maintains sitting position

3.3

independently

HAND USE

No functional use of hands

45.0

Has use of hands

55.0

CRAWUNG

Does not Creep, Crawl or Scoot

83.3

Creep, Crawls, or Scoots

16.7

TUBE FED

No Feeding Tube

23.2

Has Feeding Tube

76.8

RESIDENCE TYPE

Own Home

56.5

Community Care

14.2

Health Facility

8.7

Institution

10.9

Mortality %
10.19 5.37 3.80
4.25 3.42 2.40 2.62
2.89 1.73
7.85 3.46
6.87 2.28
9.48 4.21
4.78 5.35 4.67 8.74

Table 2: Continued
INTERACTION WITH PEERS Does not have interaction with peers Has interaction with peers
AUDITORY PERCEPTION Does not react, demonstrates startle, or turns head or eyes to sound source. Responds differently to voices
EXPRESSIVE LANGUAGE Does not have expressive language Has expressive language
MENTAL RETARDATION Mild Moderate Severe Profound Not/Suspected
AGE 2 yrs. 3 yrs. 4 yrs. 5 yrs. 6 yrs. 7 yrs. 8 yrs. 9 yrs. 10 yrs. 11 yrs. 12 yrs. 13 yrs. 14 yrs.

Prediction of Mortality 35

Client-Years

Mortalitv

65.2 34.8
48.9
51.2
36.8 63.2
2.4 5.2
21.3 48.7 22.1
15.1 ' 12.7
10.8
9.1 8.0
7.3
6.6 6.1
5.5
5.1 4.8 4.4 4.1

6.66 3.15
7.30
3.66
8.12 3.88
4.10 3.63 4.00 6.31 5.77
4.68 5.85 5.94 5.85 5.08 4.62 5.78 4.57 5.47 5.51 6.34 6.28 5.46

Prediction of Mortality 36

TABLE 3-Logistic Regression Model for Mortality Probability, Based on 24,465 Client-Years.

Variable

DF

Odds Ratio1

95% Confidence

Interval

Intercept TF& M0BIL1* TF & MOBIL2,3,4e NotTF & MOBILid

1

0.01

1

4.02

1

2.64

1

2.76

(3.12,5.19) (2.08,3.35) (2.17,3.51)

NotTF & M0BIL2*

1

1.80

(1.42,2.28)

NotTF & M0BIL3'

1

1.40

(1.11,1.73)

Hand Use Crawling Interaction w/Peers Auditory Language

1

1.19

1

1.35

1

1.29'

1

1.21'

1

1.23'

(1.03.1.38) (1.07.1.71) (1.10,1.50) (1.06,1.39) (1.08,1.40)

Community Care8 Health Facility* Institution9

1.09" 0.81" 0.81'

(0.92,1.29) (0.65,1.01) (0.70,0.94)

p < .05: p < .01. ns • not significant.

* Odds Ratios refer to odds on dying in a given year for each designated variable relative to those children in the reference category.
b Binary variable contrasting those tubefed and unable to lift head when lying on stomach (i.e. MOBIL1) with the reference group. The reference group consists of those not tubefed and at the highest of the (our mobility levels, MOBIL4 (i.e., with full rolling ability; see text for complete definition).

e Contrasts those tubefed but with the- ability to lift head when lying on stomach (i.e, MO8IL2, MO8IL3. or MC3IL-S) with the reference group.

Contrasts those not tubefed and MOBIL1 with the reference group. * Contrasts those not tubefed and MOBIL2 with the reference group.

Contrasts those not tubefed and MOB1L3 with trie reference group. 9 Contrasts with Own Home as reference group.

Prediction of Mortality 37
Figure Captions Rgure 1: Composition by residence type of eight ordered risk groups. Figure 2: Mortality Rates by Placement.

Figure 1
100%
1 2 lowest risk

Home/Community Health Fac Institutions
OctilesofRisk 7 8 highest risk

Mortality Rate (%) 16 14 12 10
8 6 4 2

Figure 2

T

n

2

3

1

1—

4

5

6

7

0

Octilesof Risk

Own Home/ Comm. Care Institution/Health Fac.

Department of Developmental Services Sit: Correspondence to and from Dr. Strauss
January 1997
#S
' h i •:--.•• •:..

S T A T ; OF CAUPCHNIA-HHAITH ASZ WHL.-A3; AG=NCY
DEPARTMENT OF DEVELOPMENTAL SERVICES
1 600 STH STn££T SACX.AME.NTO. CA 9S314 TTV 65J-205-1 (316) S5J-3663

FzTz WiLSSN. Gev-.-c

David Strauss, Ph.D. Department of Statistics, Room 2638 University of California Riverside, California 92521-0138

Eeca-rier 14, TS95

Dear Dr. Strauss:

I a.— writing regarding your manuscript, "Comparative Mortality of People with Develcpmenrai DiszbiUdcs in Institutions and the Conununiry," co-authored with Dr. Kastner, and submitted to the American Journal on Mental Retardation. As you and Dr. Kastner note, the results of your analysis raise potential policy implications for our system.

In order to develop a course of action for our system relative to your findings, and in keeping with your recommendation to perform additional research, I have asked that an independent consultant replicate your study, and perform additional analyses. To GO SO, I am requesting that your data be sent to this consultant as follows. Please provide the records for ail 105,099 person-years, and for zzzh record, please provide the following Seles, with the CDER sdaDtive skill items represented in their oric'nai levels fie., nrior to collassine):

1. Moraiiy (0,1) 2. Ase 3. Gender 4. Motor Skills
a. Ambulation b. Roiling and sirring c. Crawling and sitting d. Arm use e. Hand use . 5. Self care a. Eating b. Toileting c. Bladder control d. Bowei control e. Dressing 6. Mental Retardation Ieve! 7. Tube feeding S. Placement

"Building Partnerships, Supporting Choices'

David Strauss, PhD. Page Two.
Please provide these data, preferably by December 26, 1995, via floppy disc in Locus or Ascii, to:
Dr. Stan Taylor School of Business California State University, Sacramento 6000 J Street Sacramento, California 95S19-60SS
.(Or via electronic mail: SATAYLOR @ CSUS.EDU)
Thank you for your assistant in further analyzing these important data. Should you have specific questions regarding the data or format, feel free to call Dr. Taylor at (916) 278-5439.
Skicereiy,

cc: Stan Tayior, PhD.
bcc: Greg Wagner, Ph.D. Doug Van Meter Jim White Harold Pitchford Eileen Cassidy Delores Murrey/files
• Bonnie Banks

Manager,

( J

Quality Assurance anc?riogram

SuoDon Branch

'Building Partnerships, Supporting Choices'

UhTvERSlTf OF CALIFORNIA, RIVERSIDE

ATTACHMENT 2

TAX: (SC9)T3T-C^S
January 4 iSSS. Dear Dr. Jfurrey, Tiajix: ycu f sr ycur l e t t a r . I have passed i t en to Professar Hi chard Zysan, vho i s Director cf the UC Riverside Life Expectancy Project and Principal Investigator en cur current NIH grant.
Sincerely Ycurs,
David Strauss Professor cf S t a t i s t i c s Fell o*. cf the American S t a t i s t i c a l Association-

UNIVERSITY OF CALIFORNIA, RIVERSIDE
LCS ANC

ATTACHMENT 3
:JA:V 2 S.1SSS
".'«£v31] SA.V7A iAJUA/U • SA.V7AC.--T

January 12, 1996

Schooi oi'Zsuciiion ?J»tr3ic«. Ciiifanua 9CSU (SCSI TST^^S ?AX; :2C9) 7S7-C342

Dr. Deicres Murrey Department of Developmental Services 1600 Sin Sires: Sscrsse.-.ro, CA 95S14

Dear Dr. Murrey:

•

I received your lecter J c s Dr. David Strauss. The policy of the UC Rive—ide Life Expectancy Project is, and has alw'ays bees, to provide copies of published articles when requested and to assist interested correspondents in cbtaLiing any pubiicaiiy available data sources that our work ~.ay be based upon. Li the present instance the CDER. data is, of course, already available to you.

I «-as leased to hear ofyour interest in extending the research results obtained bv our erouo. Our sroun would haoov to woric Trizh vou cirectiv on this. Please do net hesitate to contact us.

Yours Sincerely,

Richard K. Eyman/PaJ). Professor Emcntus Princpa! Investigator, UC Bdversidz life Expectancy Project
c=: Dr. David Strauss

" STATc Or CALlfOHNIA-HgALTr: AND Wc'-fA"* ASSNCY

•

.

DEPARTMENT OF DEVELOPMENTAL SERVICES

1 SCO STH S7n££T

SACSAMiNTG. CA 2Ss1-i

. •

TTY Ss-i-ZS54.

(SIS) SS-^-'SSj

P ~ £ V.-LSCN. Ge

120:2.729, 1996

David Sc^uss, ?h_D. Department of Statistics, Room 2532 University cf California ' Riverside^ California =2521-013 S

Dear Dr. Strauss:

Thank ycu for calling Greg Wagner, ?JLD., of.—y st2r"iast Friday. He enjoyed the opportunity tc taik ra ycu rsgardir.g'ycur srjcy, uCc»—pa.—uvs MonaL?r/ cfPtopis «-f±

Dr/e:op-2r.:ai Disabi!:-'ss L- irszzi'dczs ar.c *>.; Cc-jr.urJr/." As I ciscusstd in my le^er to ycu.

cz'Decs—ber 14, 1995, cur c252-":~er.: rlans to dr/jlco ar. ascrccnats'ccurse of actior. for our

r.'stsm based upon ycur fi.-dinzs. To do so, we are reque5ti-.g your original caa, as specif ed is

—y December letter to ycu. Aiier —y discussion wi:h Dr. Ev—an, and his subsequent ler^er to ~e

cf January 12, 1956, and Dr. Wagner's recent discussion with ycu, I appreciate your -willingness

to work v,ith us.

• •

Li rSs letter tc me, Dr. H}~an stated that the policy of the Life Expecuncy Project, u...:s, and always has been,... tc assist interested ecrrespenden^ h obtaining any pubiiciy a'/aiiable data sources that cur work .-ay be based upon." Scth you and Dr. EyEan have indicared that in the present case, these data (e.g.," CDE3.) are available to us internally. Although ihar is true, we continue tc recuest your orfsinzi data. Otherwise, anv octential "ouirks" that mav have ejected the data in initial trans—Jssicn from DDS to you would cause di5erences in the data set beT&czz .your original data and these that we would access internally. Also, ycu have already done initial matching of UCI numbers, and acquired mortality data, which would otherwise present us with additional workload issues.

Because the avaiiabuiry of our consultants is very limited, I am requesting that these data be made avsiiabie by February 9, 1996. Dr. Eyisan informed me that competing demands and Errit ed stair resources would impede the provision cf the data until after March, so I would like to arrange for one of our staff to directly assist you. Please let me know which day(s), January 31 to February 9, 1996, wculd be best for you with regard to our sending a staf person to assist you.

"Building Partnerships, Supporting Choicss1

David Strauss, ?h.D. P2gc Two
Again, thanx ycu fcr ycur hzlp. We respect your research, and appreciate the opportunity to conduct additional analyses of the data. Also, Dr. Waener asked me to thank you for the additional studies en mortality in persons v»ith developmental disabilities.
Sincerely,

cc: Dr. Richard Evn".an

ssurance and Program SuoDort Branch

A7TACEMINT 5
ON FEBRUARY 2,1996, INA TELEPHONE CALL WITHSTAFF, DR. STRAUSS STATED THAT UC RIVERSIDE WAS NOT GOING TO SEND THE DATA TO THE DEPARTMENT OF DEVELOPMENTAL SERVICES.
4/8/96dm

S T A T ; C= CAi

DEPARTMENT OF DEVELOPMENTAL SERVICES
1 SCC S7H ZTnzzT TC. G£ 35c1-i

2S7

•

v

5-cn-v6, 1996

David Scsuss, ?i_D.

•

Dera—-e-r of Scadsecs, Rocc 2e3 8

University of Ciiifcr-ii

Riverside, CA 52521-0138 _

I Z— shczkzd z~d dis~zyzd ih=: ycu iavs zzr^szd to ccccerEK "»v~"ih ~:y ^5"Ir. z-O'yidir.z dz'^. U5:c k vc-r r---u5C7iri "Ccsziranvs Mcnalir/ of Ptocie

w-I± you azd i e Uziversir/, azc rts h=vc ~c±:e:y p-cvi'dsd you with ca^ for ycur ressarrh e-ds2vc—. Vv~± -J^5 ~ ~ n c , I an vcr-- 3uczi:c bv your -zr^szl :c srzn: cur rscuss: for ccrfss

in ~rs*<'icc5 cc~vc*^£ifoii5 "'••i^h i^v y^"^7 vou s:—zi?t\szcd list ccin^ctin^ f**.»'*' ~?~r**--' your'tizis and iiziitsc r^f^sourrrs ;•:—••-«>•• yoiz zzi'dzy to assis: us. When "we onersd :c ss our ovrz s ^ r to a^rls: "r.i± can rs—"=Vci. you sdli rrrused to provide ±e dst= rrcutsisd.
"yvlthcut cussdez. your fadings cculd hEvc rrcfourd iz^plicidcrs for th: ptcclc ser/ed bv cur Dzzsr~zzz- Ycu arc so ccub: iw-zr: ±2: ± - Ccfei: la^Tuir ssderrcc; asr::r r^cuirrs us to cccinuc dowTsiif^s our Sczrs irsdrudo^s through £cc::;rai2d ccimuniry piacs—sets.. w"» nctc ycur crfgi^zi c^u so that we caz vsrir/ your facings 2cd dsvcicp c^ srcrouriaie ccirsc of acdo:

"Building Partnerships, Supporting Choices'

Because ofyour steadfast refusals to cooperate. I am asking Um'vcrsiry omciais to intervene ca our behalf By virtue of'this letter, I a s also fcrr:ally requesrhg this dau £-c~i you uacfsr uie provisoes of the Public Records Ac: (see Goverier.: Code Secc'ocs 6252, 6253, 6256 and 6257). Tnis requires you to recced within 10 days. Arched please nnd a espy of our letter to you dared December 14,1995, which describes thz specific data requested.
Sccerely,

cz: Dr. Richard E;.—an Rzymczd I . Orbach. Chanceilcr •

DENMS G. AMLTNDSON Director

"Building Partnerships, Supporting Choices'

DEPARTMENT OF DEVELOPMENTAL SERVICES
1 SOC STH S " £ = T SACRAMENTO. CA 5 : 3 : i T7Y 53-2CS-:
Raytrcnc L. Orbach, Cbasceiior University of California 4148 Kindernker Hail Riverside, CA 9252! Dezr Ch=sceilor Orbach:
I am a-ceniisg to you to is::"rd: cz our be-aif is cb^izizz da3 used in a research sr^cy by Dr. .David Strauss, a Professor is i s Departs::-: of Statistics at Usiversi: cf Cziiforsia, Riverside.
The Derirss;-: of Deveicrsteztai Ser%-i::s cir:c^v c-cra:es six S^ie is5t:nidoc;

csrtd for in Stats issdruticss. Sisce •-: are cosdsuisg to cow^rize cur State issdtudess by acoritrassg corss-usiry piacesoests. Dr. Scrauss' 5zidlz.zs obviously have profcusc policy irspiicarioss for us to conrider.

Sines our Deparrsesi has cossirtesdy assisted Dr. Stratus' research everts, we are dusibfousded by his rtf-sai to r^ppiy us vr-ii core da*a to vzzify asd analyze 'nis fsdisgs.

I v.-ouic acoreriate your prompt respesse to this appeoi. Our request is cie^iy warnr.ted rom a poiicy susdpeist. ar.c is Iegaily sribrceabie under the Public Records Aci.

L sssLic you for your assistance.

Cordiaily,

C. h,/^t.,
. •

/k*^U><Z U^^<^^
DENNIS G. AMUNDSON Dirrctor

UNIVERSITY OF CALIFORNIA, RIVtRSIDE

^rx^"
TKi iXrcirrivr v;cr CKANCIL^O?

Denr.is G. Arnur.dscr. 15CC S c h ' s - r e e .

^ D^T*"S — CCrTiS'^CH." S " *~V"" C ~ c

2e=r Mr. Amur.cscr.:

se_ z'r.a.z ycu have requested frc- Prcfesscr David Scrauss cf ch= UC?. Deparz~sr.c cf £ta~iscics.'
This i s zz advise ycu cha; I have referred chis rr.ac~er cc che

—Tcecuziv's Vice Chance Her

c=: Chaj^csilcr Orbach ?"£=sscr Strauss Ccuz.se! Takeniva

THE REGENTS. 0 ? TrIZ UNIVERSITY 0 ? C41IF0RNLA
OFFICE Or THE
It:

ATTACHMENT ?

Ji-r.e £. Hoiit
CZMS.VU. CSl^OE
Harrh 20, 1SS6
/I -
Michael jfcur.t, Chief Counsel Department cf Devaicpaer.tal Services 2600 Ninth Street Sacranentc, C-. 55314
Department cf Development: i S=rvicas C'iifcmla P.sccrds Act P.equest ts ?r: fesscr David Strauss; U.-.jversitv cf California .
Dear Kr. Kour.t: Professor.David Strauss cf the

-Althcuch t h e corraspcncenca betveen the Department and Professor Srrauss dates back, as far as I kncv, to sid-Dece=±:er 12SS, the Deppartsent's'rscaest vas first put ia the fcru cf a rsfqfuest under t h e California Public Reccrds Ac- en February 6, -1556, in tva l e t t e r s frca the Director, cne tc Chancellor ?.ayaond L. Orbach, a.nc the ether t s Prcfesscr Strauss, raspended to by Executive^ Vice Chancellor David H. Warran en February IS, I2S6, indicating" t h a t the n a t t e r had been referred t s ay office-
2Ir. Director i=ur.dscn's letter cf February 6, 1596 t s Professor Strauss, he characterizes i t as "data fcr your research endeavors, " and as "ycur original data." See also l e t t e r cf

y.ichael Haunt, Chief Counsel ifarch 20, 1SS51Pace 2
I recognize that sore cf the data upon 'which the "Comparative .Mortality11 manuscript is based was provided by the Department 'to Professor Strauss, and is otherwise publicly available from the IDepartmer.t. In addition, Professor Strauss obtained additional s t a t i s t i c a l information from ether public resources (e.g., Vital S t a t i s t i c s records) . However, i t is clear to me t h a t Professor Strauss has, by the application cf his expertise and s"chcl=rship, and in fulfilling- his responsibilities to the University to perform academic resaaroh, combined a_nd analyzed the data pursuant: tz 'specific algorithms he creazad for purposes cf t h i s study. His results, methodology and analysis are contained in the ~are~* that vill be Published *'n CTu'v 2.SSS **~
""•" o 1 —7e••-" r-T> T-> T ( " l " ~ ' s 1 i"*"l V a » - j " 1 o — -3— — -j J- ••' — — — > e- v-(~T-' 3 "~ a 3 - - p — =
acceptance cf a manuscript for publication in a peer-reviewed scholarly journal reprssants a determination, by 'Che revievers zhat the explication cf the methodology, analysis and results i s sufficiently thorough .and aoouraia as ~o permit replication by cthers in the field..
Based en the foragoing, en behalf cf Professor Strauss and tthhe University cf California, I musr respectfully deny Director Amundsen's recuest. The California Public P.ecords Act exempts from disoicsure, amc-c ether things, "records the.
provisions cf federal or state lav, including, but net limited t o , provisions cf. the lvicer.ee Czce relating to privilege" (Gc\~. Code, § £254 (l<)), is veil as records as to which "zhe public i n t e r e s t served by not maJcing the record public clearly cutveighs t h e public interest served by disolcs'cre cf the record-" (Gov. Cade, S 6253.) Net enly are these records protected by j u d i c i a l l y recognized privileges, i t is also my opinion that a request sucb. as by Director Amundsen's must yield "to the compelling-nature" cf .Professor Strauss I. and tihe University's legitimate interests in maintaining the integrity cf academicians ' research ar.d preserving academic freedom from cr.varrar.ted encroachment-
*Cf course, immediately upon publication cf the manuscript, vs v i l l be oleased ~o mais i t available to vcu. As indicated above,
January 2S, 1296, from Deloras Hurrey, Manager, Quality Assurance arid Prccraa Supper- Brancb, t= Professor Strauss, in viich she
t hhe term "ycur original data" repeatedly.
3:.A, s Z believe vcu are avaire, ?r:*sssor Strs'-ss has a collaborator ind co-authcr cf the manuscript, Dr. Tzc. Xastner, Medical Director, Hcrristovr. Hencrial Hospital, Nev Jersey.

Kichzel Kcur.t, Chief Ccur.sai Karch 20, 15S6 Pace 3
the manuscript should be sufficient to enable ycur depa: replicate Professor Strauss1 vcri.4 Please feel free to call se if 2c:- hsve any questions.
/.

cz: P.. L. Criach D. J . Strauss
• D. H- Warren '

Jrsc ? y Ur-ivsrsitv Couizsal

4 ZZ an r.ct cersuaced that the fact that i t r i c h t be "very t i s e ccnsuaing and expensive to replicate the wcrk [Professor. Strauss has] already -cone" (letter of"Feb. 6, 1S96, fron Director Aaundscn t o Professor Strauss) constitutes sufficient

. S7A-7= 0? CAL.'fOSN'IA~*£AI.7H AN'O WSL'An; AGENCY
DEPARTMENT OF DEVELOPMENTAL SERVICES
7 SCO 97H STnS£7 SACSA.Vtg.N70. CA SS3TA
(SI Si S=4-;SS7

ATTACHMINI '
F - T = WilSCN. Governor

a

*

me Honorable Mike l u p California Stszt Szzziz ' S^te Capirol Rccni 5056 Sacnaaento, CA 95314
Dear Ser.2:or Thon-pson:
TharJc ycu for offering :c ir::r--;r.e -^vJ: u-iv rsfr/ of Csiifcrzia of5c:ais to recuir disclosure of V:L=I di:a :J^CC b a —cniiiry sr^cy ccnc ciec by Professor David Scsuss, an e~plcyee of U.C. Riverside.
As vcu recuested. 11.— cnc:osfz£ ccries cf ccrres^ondenc: on this issus dadne back to December of 1995. Fcr TZZSCZS oriy !cc«r. ;o Dr. Scrauss. he has ccndzuousiy stocswailed ail eifcns by —y Depamcnc to cbui-'rdscor; da:a and STJGV —e±cdoiogy. Finally, in frustranon. I officfaily requested the informadcr: ur.it: the Caiifoniia Public Records A.cz.
/-Sicrishi-giy; Fred Takeriiyc. Legal Cotnse: re U.C, dzrsed my request wiih. the following adzzonishncn
"Not only 2re these records protected by judicially recognized privileges, it is my opinion that a request such 2s by Director Ainundson's must yield to the compelling nature of Professor Scrcuss' aad the University's legitimate interests in maintaining the integriry of academicians' research and preserving academic freedom from unwarranted encroachment"
Obviously, we are very troubled by £is response, pardcuiariy since it comes from another agency of Suire Cover-men!. Mow can academic freedom be more irnporsmt xh2n the public's right to know about mortaiity ra:es of oersocs wi± cevcloprnenmi disabiiiues?

For your inforsEaiion, I am also enclosing correspondence from ocher scic.idsa questioning Dr. Strauss' research methodology. Perhaps he's concerned iha: his fadings won": 5:2nd up to acceptable scientific standards.
Thank'voc again for vour oner ;o heis. P'ecsc le: me know if you nerd additional iaforranon,
• Cordially,

'*'• Encicr^res

DENNIS G. AMUNDSON Dir:c:or

Sz^ic Lerrer Ser:: re:

The Henorabie K:r_-e± Maddy The Hcncrabis Diar.e vv'i^cn • The Honorable Ross Johnson

be: Douglas .~moic Pad Cariercn Dcug Van Merer Eileen Czssicy
iVEce Mourn Karoic Pizchfard Deiores Murrey Ken Buono •

S:a":a d California
Memorandum
: Michael Mcur.:, Chief Counsel Depart-ent cf Developmental Services 1=00 ? S t r e e t Sacrar.er.:o, CA 55514
B ZVZ7.LZY ?.. MZYZ7.S E s c u t v A t t c m e v Ger H e a l t h , Educaticn = Welfare Offlcs of the Artcmsy General - San rrzr.clszs
•-Strauss

Department- Justice
sO .-rs.-7-.cn: S:.-esu Sv.::e 2CO
Can : M £ y 1 5 , 1 3 = = Teiephcne: C-H.NET ( 3 ) 5 2 1 - ; 3 4 4
25=-£257
— —o v _:_

Develcp-.er.ral S=r"-"ic = s (Deparzr.er.c) I-£r_r.is G. .---ur.dscn's recuss: Cc cbcain ~he crr= dara ar.d szudy ~ischccclccy undsrlyinc

I-sci:u-icr.£ ar.d che C--.-2ur.i-y'1. y:y ur.derszar.dir.g i s tha- if "he Deparz~er.r wished cc file a lawsuit tc cbcaiz z'-.is Lr.fcrrr.aricn, we vcuid have cc receive the apprcval cf the C-:v;—.cr' s Office as well as the A::crr.ey G=-eral's Office. At chis ti.-s, bs.sad urcn he resea h that I havs c=n.ddudcced sc ffar, I dc r.c: r=cc~r.er.d filing a lawsuit, hut ir.sread pursuing a
p-ii^-— Q— T — -»~£-• ^— .let {~CZ-} recuest and ^cst~~uiiicatic~

auzhcr d i r e c - l y . Acccrdinc tc the March 20, 1 = 5= l e t t e r f r : s

University cf Califc—ia czi^r.sal representing Prcfesscr Strauss,

the .---series^ Jcumal en Mental Retardation will publish, the

c-rcicle in. i t s July lS?o editicn.

.

.

i
T!-tZ DZ?A?.7MZ>r7 C^y G S T A I N MUCX I ? NO? ALL C? THZ iy?CHM.-.T~Gy SOUGHT sY MZANS OTT-IZ?. THAN' .-. L.->*S~"T.

I s p e k e w i r h Dr. Jchn Krueger {(3C1) 442-5230) a t t h e . Nacicnai I n s t i t u t e cf Health (NIK! , Division cf r.esearchZn.vestiga-icns, Office cf Research Incegriry, who in.forr.ed -.e tl~2.z i t was advisable t3 contact the "•cumal that wculd be

CONFIDENTIAL
AATTORNEY-CLIENT PRIVILEGE

Michael Mount May 15, .12 2 S Pace 2

publishing Dr. Strauss' article, and £==> Dr. Strauss'

underlying data and -ethcdelcgy that way because rnar.y journals

require Chat certain information be available for disclosure as

pare cf t h e i r pre-publicaticr. criteria. I vas inferred by beeb

Dr. Krueger and attorney, Barbara Hcvr.an, NIK, Division cf

; < • * • »-" r s -"- Z " ' ; i ^ ' - r ~ " ' r - - '

p - s " r ' " ' 3 r ? " o — = 1 •—,' "5 s •>' c p - = — - - - /——— — —

i s funded, Chen such iter.s as the crane a p p l i c a t i o n , the crane '

i e s e i f , c r c e c c o l s , and orcgress reccrts vculc be a v a i l a b l e rrursuane" t o ehe 7CIA.1' "(See SI7A Ul!C-c:-:, I - c , v. Suffices

"(1S51J- 101 N.C.Apo. 232, 33= S.I.2d 340, 341, c i t i n g 5 uSC §

532, ee s e c . ) I spoke d i r e c t l y with Carol Florence a s e h e NIK

whe a c t u a l l y handles the FCIA requests, and confirmed that we

s h o u l d ask f o r these iter.s and direct the request ec h e r . (Her

^'r.cpe n u - i e r i s (3C1) 43S-S122, and fax nu~ber i s (2Cl).43c-

7.101) .) Wi-h the Derar:r.er.:' s cerr.issicr., I would l i k e to send

.the enclosed l e t t e r , raking the FOIA request en behalf cf the

j3s3ciir~rrtS""^

" * a = s 5 ~ d " * ^ 2 w ^ i * " U S ' * u"— i T S 3 & i r t i m o ~ 3 v * ^ ™ ~ ^ t** — *™ ~

sand ehe letter.

.

Concerning p-ublication in the July 1 = 3= .-_~=rican Jcumal CT. Mental ?.e~a~da~"'o~ Z contacted the editor Professor-St^ve Schrceder, LTniversity cf Kansas ((312) H?4-4233). Me indicated chat the Journal bas no pr='-publication disclosure requir=-=nts a s a condition cf cublicacicr.. Ke did read ~.e his .-.~ril 4, 153£

p u b l i s h Dr. SCrsuss' a r t i c l e en schedule, but with a footnote disclai.T.er inviting research and alternative views en this Cc3~'o. ir.3 -*-»£*-'£z~3/- a"co that he "^ead tne Deoartrnencf s r e v i e w e r s ' ccrr-.er.es with interest, and wculd encourage eher. to suJorr.it e i t h e r a regular researoh article en an updated data set from ehe CDZ?. database cr to recast thsir remarks ineo a

t o ho eh Dr. SCrauss and his coliabcraeor, Dr. Xasener regarding ehe D i r e c t o r ' s March 25, 133s .letter, and that Dr. Kastnsr i n d i c a e e d he would cisclcse ehe raw data and protocol, but Dr. S t r a u s s wculd not agree eo do so. Dr. Schrceder said ehae ie i s cusrc-.arv i n ehe csvcholoc-y- field Co disdesa ehe ccrrolets data

1- (See aisc, Fczs'r.=sr. v. C=lif=nc ID.C. 1375) 537 ?.2c 123, 1127 ("Scientists engaged in researoh cr. federal grants usz cccspc ehe fact ehae any documents filed with ehe federal cvsrnrr.ene, wheeher en ehe scientists' cvn inieiaeive cr an u d i t c r ceher lawful demand, ars subject tc ehe ?CIA.)
2 .
CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE

Michael Mount ' Mav 15, 15S6
Pace 3
set, i.e., rav data and protocol after publication, but that t: Journal did r.c: have this requirement.
T:-:E LAW r o E S NC? su??Qr.r AN' A = S O L ~ E R~G:-:~ TO rr-:z r^TO=yATTON~
SOUGHT•
A. Should We Pursue a Lawsuit'. *'e '"'culc Do So Under the California Public Records Act.
• The f i r s t question is which vehicle would we use tc seek thj raw data, methodology, analysis, and results cf Dr. Strauss'
3d^ici'v • T**"^2 c * * c * c e s cCw£ = --" Cc i s c*is ^ a c i s ~ = * ~ 0 * ^ c^" C= * * ^* —.*—>• —
Public P.scords Act. We -use i n i t i a l l y rule cut the 70IA because • we are ~cz seeking infcrr.aticn frcm a federal agency, but
inszsad f ror^ a state agency, UC ?.iverside. Pursuant tp the FOIA, 5 USC § 532, requests are directed cc an "agency" of the Federal Government. Specifically, agency i s defined in 5 USC § 552(1) as "any executive depar-r.enc, - i l i t a r y ceparzTiene,
ccher es~ablishr.ent in the executive branch cf the Govemnient (including the Executive Cffice cf z'r.e President) , or -any independent reculatcrv acer.c*'"". Sines cur current recuesc i s to
z~.^r. i r i s nor subject tc the FCIA. (See ?~c~zsssz.ve .--zzsis.1 A'elfasrs Scciezy v. Ur.iversizy cf Washizc-zcr. (1SS4) 125 w*ash.2d 242, £54 ?.2d 5=2, =05.) Cr. the ccher hand, if the NIH did not honor cur request, the NI>:, a Federal agency, wculd be subject . to s u i t ur.der the 7CZA. (See Fc~s'r.a^i v. C=li£ar.c (D.C. 1373) 557 F.2d 112S, 1131, 1125.)
Cur a b i l i t v tc sue then is ccvemed by the California Public F-.eoords Act. I wculc agree with the University's coun.se! that t h e inquiry i s based upon C-rvem-ent Cede section c254, et sz-z. , the Public P.eoords Act. Secticn £254 (k) e:cer.ots frc~4 disclosure "records the disclosure cf which i s exemptsd cr prohibited pursuant to provisions cf federal, cr state law, including but not linuited to,, provisions cf the Evidence Code r e l a t i n g to p r i v i l e g e " . Secticn S253 exempts from disclosure records to vhich "the public interest served by net making the record zz'^blLc c l e a r l y cutweichs the public interest served by d i s c l o s u r e cf the record." I have beer, unable to find any California case Isw specifically interpreting these code • s e c t i o n s in the context cf academic integrity, the prir-cips.1 reason r a i s e d bv the Universitv fcr non-disclosure.
CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE

Michael Mount: ' May 15, 155S
5. I t is Unclear whether "-*=' Could l*lti-a:elv Prevail in'a Lawsuit.
In construing tr.e "mer.cra.-cum exemption wmcn projects deliberative materials produced in the process cf making agency decisions but not factual —ateria_s pursuant to.Government Coce S £254(a), an exemption not at issue here, a California Court cf Arceal construed the California Public Records Act here as havinc essentially the same purpose ct tne FOIA. regarding deliberative memoranda. (Czliz=zzziz fcr a -Bszzsr Zz.'sir=.—e-z v. '.Derarc.-ne.--c cf Feed i Acrio-lcure (15=5) 171 Cal.App . 2d_ 704, 711.) The Court said a reviewing ccurt may lock, to the reasoning cf the analogous federal czs* law in construing this - a r t i c u l a r subsection." (Id. at zz. 712-12.) . Sir.ca there i s r.o California case law directly on point, i t would appear that a California court would look tc federal law to ccr.st.rue the claim cf academic integrity as a bar tc disclosure. I note also t.tac usinc C=iirc:rt:ia"fcr"a barter JLtvirci-s-tc, we could certainly argue that the University should be recuired to disclose the raw data i t used underlvinc Z'.t article. The problem m citing tnis documentation -efleciir.c ~r. Strauss' "deliberative process11 should not h= disclosed.r
s - e c i a l i s t s in the treatment cf diabetes sought to cbtam tne
"z" ai~- * ~~s c*cst*' zT.^d the validitv cf the studv. 'Z'r.s findings had be-=r. o-ubi'ished in the Journal cf che American Diabetes
raw data throuch the federal agencies sponsoring the grants. The Ccurt held"thai "the cublio at large does not have a r i g . " ur.der the 7reedom cf Infcrmation Act to the underlying raw daca L— the hands cf the invescicatrrs and university groups who
2. (Cf. Tiaes'iVfirrcr Co. v. Superior Ccn~z (15S1) 52 Cal.2d 1225,' 1222-42 (Under zhe "deliberative process." exemption t o cisclcsur-e~cf 'public records (G=v. Code § 6254 (a) ) ', the 3c=y cuestion i s whether the disclosure cf materials weld expose an
. CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE

Kichael Mount • .Mav 15, 15 5 5
Pace 5

C3~duc:=c the UGD? study prcrra." cr ci=be:es under crar.ts frees the f e d e r a l government." (Id. a: p . i i j j . ) Sir.ce the federal agencies d i d not: have the raw 'data, z'r.ey were net recuired to a c q u i r e i t from the i n v e s t i g a t o r s . Cr.z helpful pcinc cads by the Ccurt was "the Jreedca cf Ir.ic—aiicr. Art does net csper.d cr. a shewing cf need cr'inheres;: by the p a r t i c u l a r a r c l i c a n c fcr ths r e c c r d s AJIV shc<"'i~c cf ~eed i s i r r e l e v a ~ c . n (""" a~

In =rrc-re55ivs .-_-i.-£i Wslfzrs Scciezy v. Ur.z.vsrsizy cf Wzs'-ir.c-zzr. (IS=5 wash.Sup.Ct.) SS4 ?.2d 532, the Washir.ctcr. Supre.-s Ccurt ccr.strued Washir.ctc-'s Puhlic Disclosure 'Act. U-li>e Califcrr.ia's Act, Wasr.ir.czz- h=d a prcv-isicr. exempting; -av_ data, and_ similar tc Caiifrmia, had a subsection e.xe-ptinc infc-rrraticn that f e l l within the "deliberative "recess" cf an _agency. _ (?.cw s 42.17.210 (i) (h) « ( l ) ( i ) J At issue was whether i n f e m a t i e n in a universitv's researcher's unfunded crant p r c p c s a l involving use cf ani.r.als in scientific research -use be

d i s c l o s e d r.aterial which -.ight reveal valuable fc—ulae,

designs, drawings and research" cara, crade s e c r e t s , cr. ether

c o n f i d e n t i a l inforr.ation. The apparent basis cf the c o u r t ' s

decision was the orovisicn exernctinc raw data fro~. disclosure.^'

(-O.. =.z p . 53=.) As to the deliberative orccess exer.Owicn, the

court concluded that:

• •

"unless disclosure wculd reveal and e:-n:cse the- deliberative process, as cisrinoo fro~ the faoos upon which a decision i s

•=_y en tnis ex=-pci=n,

e •

subordinates expressed as part cf the deliberative process, that disclosure wculd inhibit the flew cf reoorr.-encatiens, cbse—.-ations, and opinions; and finally, chat the - a t e r i a i s covered bv the execr.otion reflect oclirv recorrjr.sndations anc cpinions and ncc the raw factual data en which a decision i s . - based. [Citation.] Subjective evaluations are not ex=-pi under t h i s provision if they are treated as raw factual data

2 . .. The court said the purpose cf this orovisicn. was- to prevenz private persons frcrs using the Aco to appropriate pecentiaily valuable intellectual, oroperty for private gain. (Id. a: p.£5 5.)
CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE

Michael (Mount May IS, 1556 Pace 6
cc.-.siceraticr.. [Citation.] Cr.ce the policies cr recommendations are implemented, z'r.e records c^zsa to be protected under this exemption." (Id. at p.500.)
Although the University in cur case has net articulated the deliberative process privilege so far, I would expect them tc do so in any future litigation. And, it would appear that should a California court lock to the analysis cf this Washington case, i t could be inclined to- find the deliberative process • exemrticn in California Government Code § £254 (a) applicable. Therefore, the court could rule that pricr to publication, the protocols cr extrapolation cf the raw data wculd not be discoverable.
As to raw data, i t would appear that we wculd be entitled to t h a t pre-publicaticn. (Cf. Ur.iversizy cr W=slzir.=-zz~i, supra, _p.=00, - . 5 (merely raw data contained in NI>! peer review written evaluations ("pink sheets")', net ccvered by any ether exempticn, are discoverable even where the grant proposal remains
the raw data, has already been available to us, since in iarce p a r t , we generated i t . It appears that what is c r i t i c a l to us i s obtaining Drs. Strauss' and Kastner's protocols. This case, uciversi ry cf'<is.sr.Lr.ozzr-,does not provide authority- to advocate c_i.sc_csure cr tnis mzormation.
C. .—.cademic ~~aecc~ is a Cu ssticr.abls rasis for wit*~*"oldinc Documents. Nevertheless. = Lack cf a Qualified Privilege Dees Net ~.ecuire Disclosure.
The various courts seem reluctant to acknowledge an actual o r i v i l s c e fo~ academic freedom cr a "researcher's oriviiece" Nonetheless, even if a privilege is ac'".cwi edged, i t i s a
cf S'CZ'T. a privilege, per sa, in California (cr elsewhere;, courts cay s t i l l deny disclosure. And, i t seems, in cur case,the -deliberative privilege would s t i l l deny disclosure cf protocols, e t c . prs-publicaticn cf Dr. Strauss' a r t i c l e .
Concerning the University cf Washington's claim cf academic freedom, in Uiid.vsrsi~y.cf Wa.ss.ir.ozzr., supra, the Washington Supreme Court found ncn= in this context. The Court said:
•• 'a' ven '• ~ • ^ t did a~olv wg are not convinced the extension cf freedom cf soeeoh doctrine advocated by the University i s
CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE

May 1 5 , 15 3 5 Pace 7
e i t h e r recuired cr acvisar.a. As the United Scares Su~re~: Court r=-ar>:=d ir. i t s cr.ly case cr. pcir.t:
In cur view, r e . i t i c r . e r ' s reiiar.ee en the so-called acader.: freeccrr. cases is scr.evhat -isplacsd. I - these cases ccverr.r.er.c vas att2.~rci.~c ce ccntrel cr direct the ccr.ter.t cf z'r.e s^eez'r. engaged ir. by the university cr these a f f i l i a t e d with i t . (university cf Fa. v. ZZCC, 4S2 U.S. 132, 157, 1C7 L.Zd.2d =71, 110 S.Ct. £77 (15 = 0 ) . The =uiii P.ecerds Act dees r.et ir.rese ar.y center."-based r e s t r i c z i e n s en sceech. '^'e car_r:ec bui arree with the Supre.r.e Ccurr when

Ir. essence, pstiticr.sr as.«:s us te reeecr.ire an expane.ee

rr.a~ — "*• a"s fre~ diseiesure. .-—Lthcucn we are senstt*

effects that cer.cer.r-neutral ceverr.~ent a c t i e n r.ay

: s-zeec'r., and believe that burden that are l e s s than

Q2.^/

£y c c — — c cca

^c AmendrTienc c e r c e e wd t

che Firsz'.-.-.er.dr.snt car.r.et be ~:<Zi-ded t e e r i r a c s

r e i i z i c n e r ' s clai.-. (Cit = ; i e n s c.-itred.) 452 U.S. az IBS.

c^s^^'^ £^ s--»*^V;£^ c~ whs "~*v£r3-Zv i s nee serr.s'^cw
assuming rhere were pl = usible creunds fer ceinc se, i r vcul be d i f f i c u l t re granr seeeiai 7irsr A.T.endn;£nc prececrien t: pub-lie u - i v s r s i r y er.elcyees while denying i t t e e t h e r srar= e.r.rlevees I t is crue rhar eeurzs t r a d i r i e n a l i y have beer. r e l u e r a ~ r ^"~ "~r=rf2~2 unneeessarilv in che inrema.1
Hcwev— *" !"~o ~~sce~t situatien is different. The ~"*~ * * c
a.T.ended r.-.~;ercus rir.es by the Legislature.- Neirher the peeple n e r rhs Legislature created a general exerr.pcicn frer. t.hs Ace ~'^v- ~ub""'e u r ' v e r s i r i e s cr fer aeadenuLcs.- *^e see

4. J c r a diseussicn cf the pre-lSrO u-ivsr-siLV cf J:snn'S'v'2v5_-i = < sucra, cases, see the feiicwinc: (But sae, centra, Dow Cter:ic=2 Ce.'v. Allen £ Killer (7th Cir. 15S2) €12 7.2c. 12 = 2, 1274 - 12 77 (.-.eade~ie freede~ ueheld as a r-asis r e r af f i—iing c r d e r net .t= ciscicse decu~ee.es underlying scucy zy

CONFIDENTIAL . ATTORNEY-CLIENT PRIVILEGE

Michael Mount May 1 5 , 1S5S Pace £
- c c o n s t i t u t i o n a l l y compelling reason to do s c . " (Id. a t p.=C2. )
Accordingly, this logic,- although net binding, could he p e r s u a s i v e i n cur case. I would not expect a c c u r : to find an a c t u a l academic freedom privilege in cur case. Hcwevsr, a ccur: could s t i l l I ir.it disclosure until after publication using the deliberative srivlscs.
In the cnly California case re-cteiy en point, Scr.zzf v. •Hegc.-cs cf t.ts Ur.ivessizy cf Cs.lifcrr.is. (1551) 224 Cal.App.2d 12 53, petitioners challenged the zzzcess cf acaderr.i.c peer reviev for tenure e.-ployed by the University of California, which in 3er~i.ne""t "w£.r™ i"*c*u^~°d consz.d£~"at"'cn c^ ocr"*"*de*""'*-:^ ir.fcrr.aricn a'r.=.Z vas r.ct cade available to the p r o f e s s o r a p p l i c a n t . The court upheld the s t a t u t e s at issue based upen

SLr-s.L Sc~.cc' c~ ^-dLcis** v*. .-_~sr*'can Zzzs-ccz C~. ( 2 r d C " ~ . " = = =

- i s z r i c z Ccur:' s order recuirin- disclosure cf redacted

infcrr.a^icn in szudies d=t=rr.ininc chat cigarette srr.c/rinc ~av

cause cancer and s-o'<ing in co-juncrion virh exposure :c

asbestos increase z'r.z ris:< cf causinc cancer ceo^etricallv

rarher than ari-h.~erically. 7'r.e £a;--.r.z.r. Circuit has recognised

a qualified privilege to procecz schclars fro- the prerr.azure

disclosure cf th=ir research, cr prior to publication. (Id. at

p.1522.) (3ut see, Wilkizscr. v. F3I (C.D.Cai. 152c} 111 T.7..Z.

422, 44 0 - 442 (This Central California District Court discussed

the "researc— e""'c oriv* s oe*"c*"a t ~ ° ^—""^T "* a^ unr*acocsar"»" to detertT;—'"0 vnetner

z.he researcher's privilege cr acade-ic freedom privilege should

be recognized- in this case. Plaintiffs were seeking t c assert an

"archival privilege*, i . e . , whether placing records in CJ:

archive car. exempt thea fr=z disclosure. The court concluded

that i t did net.)

'

Indeed, in S.I.T.A. CXC.-Oi., IXC. v. .V-rfi..es (15 = 2)

420 £.Z.2d 674, 4-.5-44 = , the court concluded that i t was r.cz

c l e a r in 15 = 5, when rzs-zcr.dzr.~ asserted "acadenr^c freedes" as a

j u s t i f i c a t i o n for nondisclosure that this was unreasonable.

f—r'rinss then citas Ur.Lsezsizy cf ?szs.syl"ZJC.iz, supra, for the

proposition that no such privilege, exists now.

£.

CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE

Mav 13, 1555 • Pace 5
process tO prevail ever Che interest i~ cisciosure cf information"pertaining ~o a single individual. (Id. at p.1405.) Reaching t h i s conclusion, the court cited A'aim v. Superior Ccur-z (IS SI) 1 = S Cal.App.Jc 752, 7 = 3 - 770 in which Chat ccur: s t a t e d :
"Even though 'acader.ic freedom' may be used tc shield r.cr.academic and ir.sidicus -.ctives for denying tenure [,] . . . in California the festerinc cf academic excellence finds support in the constitutional right cf privacy." (Id.)
I t does net appear that these cases are en pcint cr helpful in it =—s cf arguing that California case law co-pels pre-" p u b l i c a t i o n disclosure cf such deliberative processes as p r o t o c o l s . If anything, they co-pel the opposite conclusion.
The c c u r : did quote the U.S. Supreme Court case cf Unisersizy cf ?szz.syL%-zs.iz. v. HOC, supra, s t a t i n g :
"Finding that there is.neither a qualified common law privilege against disclosure cf confidential peer review
against disclosure cf such documents, the Suorerr.e .Court held thai a university does not enjey a special privilege req-uiring a judicial finding cf particvilarired necessity cf z.cz = s5 beyond a shewing cf -ere relevar.ee, before peer review -arerials pertinent to charges cf discrimination in tenure decisions are disclosed to the government agency charged v i r i enforcing t i t l e VTI. In the course cf reaching
the claim ehat confidentiality is essential to the
simply expressed the view cf the ecu— thao the disclosure cf .-aterials relevant to charges cf racial cr se:cual discrimination will net lixely be as harmful to academic inzeresos as had been claimed. • (Id. at pp. I41G-141I.}
~t thus appears that a California court has rsoogniosd the absence cf an academic privilege in the tenure review context. "«e could argue, by analogy, that no such p r i v i l e g e should sxisz
In a 13=1 Ncr-h Carolina Court cf Appeals case, p l a i n t i f f s ^ sought applications for aoorovai for four experiments submitted for" review zc the Inscitucic-al Animal Cars and Use Ccmiai.~oee fro-, the University cf North Carolina. {SETA UNC-CI-I, Inc., v.
CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE

. Michael Mount May 15, l = 3o Pace 10
.VL-ffi-es (1551) 101 N'.C.App. 252, 355 S.Z.2d 340, 341.] The Court concluded that since the information ir. the abdications p e r t a i n i n g to the p a r t i c u l a r type cf research p r c j e c t , whether s u r g e r y would be performed, pre and p e s t operative procedures, whether the animals would experience pain c r to he euthar.ised did r.ct contain trade secrets. Sir.cs t h e information did net c o n s t i t u t e trade secrets under the Ncrth Carolina s t a t u t e , the information should be disclosed.
The Ncrth Carolina Court also dis-pcsez cf the academic freedom claim as did the Washington c o u r t : the Court-found t h a t i t was bound by the Universizy cf Ps~isyl"aszSs. d e c i s i o n , supra, and t ~a~*°*~"~* t*"*°*~e vas nc ac=<^*i3r™"c ^•*-'* v* ^•»'— ^ (~*~ a~ ^" "•-"• — 344.)
VTe could conceivably use t h i s czse. es a u t h o r i t y to argue t h a t p r o t o c o l s are discoverable. (See a l s o , SZ~.-. UXC-C?:, I~.c. '-'. sz—ff-Sies (1332) 107 N.C.Aoo. 440, 420 S.Z.2d c 7 - . } Hcweve~~ s i n c e the decision aooears ~zc rscuire d i s c l o s u r e cf information
d a t a , t h e coinion dczs not address the d e l i b e r a t i v e crocess ercerr,~cion t o cur d i s c l o s u r e ac~ . Therefore the C~* v—"~* tv cou.ld ciscing-uish t h i s case cr. char b a s i s .
l i t i g a t i o n a : r h i s junozura. Znscead, I recommend pursuing a ?OZA r e c u e s r , and pose-publication recusszs to the Journal and t o t h e author ( s ) . I maxa t h i s recemmsndazien p a r c i c u i a r l y since Zr. S t r a u s s ' a r t i c l e i s scheduled for publication in less than 1 1/2 months, J u l y 133=, and because z'r.s c o u r t s seem t o uphold the
'— o~ocess cr1.vLj.5ce "*~~ * *
we nave any d i f f i c u l t y obtaining tne p r o t o c o l s , p r o g r e s s anc f i n a l r e o o r t s , e t c . , a f t e r publication, we car. sue t h e FOI.-. a n d / c r author a t that time. Should ycu have any questions cr wish t o d i s c u s s t h i s rr.emc, please feel free t o c a l l nr.e.
Zncl.
c c : Charlton G. Holland, Sr.AAG Sterhanie *alc, Supv. DAG
10 .
' CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE

. DANTEL E. LUNG REN A::orr.ey Cer.erzi
May 15, 1c c ;
National I n s t i t u t e cf Health I-uil'ding 3 1 , ?.cca 2A32 Seihesda, Maryland 208S2

Scc:e of CslifarrJ.a ENT OF JUSTICE
50 FZZ

. Sl~7~ ;-00 . CA ?-£i(J5

FACSIMILE: (41;) jS€- = I£7 .(415) 3S£-=344

This l e t t e r serves to confirm cur telephone conversation cf April 23, 133s, and as a formal request for documents under the

University cf California, Riverside, Professor David Strauss

sz~-=d as the lead author cf an a r t i c l e entitled "Comparative '

Mcrts.li~v cf Peccls with. Develccmentai Disabilities i n

I n s t i t u t i o n s and Community" which i s scheduled for publication in

the July 1S3€ American Journal cr. Mental Retar'daticn. Dr.

S t r a u s s ' cc-auchcr is Dr. Tzd Kastner, Medical Director,

Mcrrisccvn Memorial Hospital, New Jersey. From cur

\

correspondence, i t would appear that the principal investigator • \

• en the c u r r e n t NIK grant i s Professor Richard Zyman, Director cf ;

the Universitv cf California, Riverside, Life Expectancy Project. ./'.

C- behalf cf cy client, Dennis G. Amundsen, Director cf the California Department cf Developmental Services (Department) , I request copies of any and all information in "the-possession cf the NTH p e r t a i n i n g to this funded grant that resulted in the above-referenced a r t i c l e , including but not limited to che fcliowi-g: che grant application, the grant's derivative funded nencempeting supplemental grant applications, protocols, progress r e p c r t s , and f i n a l repcrts cf any review cr evaluation of grantee performance conducted cr caused to be conducted by the Department of Health & Human Services, competing grant applications ( i n i t i a l , competing continuation, and supplemental) for which awards have noc been mace, evaluative portions cf. s i t e v i s i t r e p c r t s , and summary statements of findings and recommendations

Carol Flcrer.ce May 15, 159S Pace 2

or peer review creeps. Apparently, "ur.cin.c rcr tne a r t i c l e , was at l e a s t in part:, granted by the National I n s t i t u t e of Child Health and Human Development.
You had indicated that from the data, cf the request, your Office ordinarily taxes aicu- £ t- 10 weeks to provide the information requested.

I thank-you for your ti.T.e and attention. Shoulldd yyou have anv cuesticns or recuire additional information, .'olease feel fra .a to call me.

"*

-

•

Sincerelv,

D.-_N"IL E. LCNGREN"

Deoucv AAtt tome v Genera'

' '"'

DEP.4LK7.MZ.VT OF HEALTH &. HUMAN SZRV1CZS

July 19, 1996

Public Health S»rvic»
National Institutes of Ksaltf Bethescia, Maryland 2C392

Ms. Beverley R_ Meyers Deputy Attorney General State of California Department of Justice 50 Fremont Street, Suit: 300 San Francisco, California 94105-2259
Dear Ms. Meyers:
Please excuse my tardy response tc your Freedcrr. cf Irifo—a::cr. request.
I hav- er.cicsad the most cjrren: (yzzrs 01 and QS) fjr.c'sd gra--t years: awards summary statsrr.er.ts, progress revie'-s.-'repcrts) for Dr. Richard K. EvTr.an's grant entitled, "Life Expectancy of Mentaiiy Retarded ?zople." If you --ouid like earlier years, please let me know.
Dr. Davnc Sirauss has been named the new ?.I. fcr this grant. Iris is rejected en the current ye^r, 09, which has no: been funded at the present time. I will know more about whether the 09 year wiU be funded after our October Council meets. You may wish to make inquiry at that time.
If I can be of further assistance to you. piease contact me at your convenience.
Sincereiy yours,

Enclosure

Carol M. Fiorznce Freedom of Information Coordinator National Institute of Child Health
and Human Development

UNIVERSITY OF CALIFORNIA, PJV±.RSIDi

FAX- (209) 7ST-:2SS

FORMA »2:::

Hr. Dennis Amundsen Depar-meirt of Developmental Services 15G0 Sth Street Sacranento CA 93S14

-Dear Mr. Anundscn,

September 5, ISS6

I refer to ycur l a t t e r cf February 6, requesting copies cf the original data \:sad in the article hy £r. Kastner and nyself. The a r t i c l e vas recently published in the Ar-.ericsrs Journal on Merita! Petardation.
As ycu xncv, the original data en v'r.ich cur c a l c u l a t i o n s were based are public information frcm ycur C^T. department. I enclose a coov cf z'r.is c- a magnetic tape. I t i s in rhe form cf a SAS data file"
w'e regard the derived calculations as vcrx product and hence net in "he public dor.ain. Nevertheless, r.cw thar the a r t i c l e has been published va are viiling, in the interests cf open c.is~.zs5iz~, to saJcs zhis vcr!c product available to qualified persons. Specifically, if an impartial stazis~ici=n or biostatiszician vith solid credentials vished tc visit cur computer canter, va vculd be "willing to conduct and display any analyses that interested the v i s i t o r . Any senior faculty member cf UC Berkeley or UCLA vcuid be a suitably qualified expert. A member cf your staff vculd be welcome at the seetine.

We t r u s t t h a t this process viil allay any concerns ycu nay have recardinc cur research.

Yours Sincerslv,

D W\iJ.Ai ^
David Scraess, Ph.D., J.A.S.A.

/cent.

( l e t t e r t o -Mr. Dennis Asundson, page 2)

Dr. F. De La Cruz, NICHHD Dr. Richard Zy-an, VCR
Dr. Ted Kastner J o s e p h P r e s t o n , CA£E?C3 . Dr. Steven Sciroeder, ajJQ
Ronald S a i t a , A?.C P c l l y Spare, VOH Fred Taiceniva, UC Counsel's Dr. David Warren, UC3 Dan Western, Ci_?T

Office

Notes from Voice Mail from Dr. .Strauss:

. ••.
*.' * -

David Strauss called Saturday, October 13, 1996 to relay his terms for the proposed statistics lab site visit. Before the visits takes place, Dr. Strauss asked that:

1. Since the visit is a "public interest service," neither he nor the visiting expert be paid.

2.

Dept must agree that the report by the visiting expen be "immediately available" to UCR.

3. For the sake of "closure" Dr. Strauss is requesting "written assurance" that the Dept will "stand by" the findings of the expert visitor.

' 4. .

Lastly, Dr. Strauss, reflecting the thinking of his "group"*, suggested that because the Strauss and Kastner article was reviewed by 10 unpaid, independent, and neutral peer reviewers, representing three separate journals, who all agreed on the methodological soundness of the study, there really is no "reasonable issue"' to debate. Can't we so forward?

STATE Of CAL!?OSNIA-K£AI.T:-: A.VS W£L?AS5 AG-.VCY •
DEPARTMENT OF DEVELOPMENTAL SERVICES
1 SCO 3Tri S7?.z~ TTY 65—2Cr — (SIS) 65—1297
October 16, lS?c
Da—'d Scrsuss, Decarr^c-: of Suzsucs, Roon 2638 Ucive^fr/ of California Riverside, CA 92521-0138
"De=r Dr. Scauss:

P£7- WlXS0,Vj c v^"

the ^r= b^c;use ac e:gh:-z£IIinc::r tap; Is incospanbis w f i ctr equinms^ I have bssn. liable :c access the cenrezis of i e ^pe. therefore, ±e bfor—anon confined en the tape has not
.•iJier we have received 2 iseabie for-: of the dzzz. Depanment stanand a qualified stadsu'eian of ihs Depar—:enr?s choice will be in touch wi± you :o decide a convenien: time to
. member will be in con^c: v,-fai you to arrange for the transfer of the data and establishment of a visit to UCR to review your procedures.
If you have any questions, piesse contac: Deiores Murrey, Ph.D. at (916) 654-3662. ' Cordially,
DENNIS G. AMUNDSON Director
"Building Partnerships, Supporting Choices1

STA'i Or CA'-.'rO=NlA-r:£ALT:-: ANC wr_-Anc AGH.NCY
DEPARTMENT OF DEVELOPMENTAL SERVICES
: SCO 9TK STnSHT :• -1MSNT0. CJ. 2£S;-t

=—£ ::rjSC!-. Govt..-0

No ve=bsr 22, 199
David Strauss. ?h_D. Department of 5:adsdcs, Room 252S University of California Riverside', CA 92521-0158
The Derailment of Dcveiccmentai Services (Decarnnent) received i e ccmcurer tares which, according to your assistant. Robert Shaveile. ?h.D.. contain CDER dam used in i e analysis for ycur ardcie "Ccmparadve Mortality af?tcclc w i i Mental Retardadcn in Insdrrncns and i e Ccmmuniry." Tzs invoice for 5575 was received en October 22, 1996, and payment was -ailed en November 18, 1996.
It is nenriy a year since we begin our attempt to collaborate with you to understand i e specific derails of deaths reported in ycur arn'cie. I would liSt: to set i e record straight regarding i e Department's vie'.v of your research. Although we are frustrated by your resistance to share infor—izdon with us regarding i e deaths reported in your ardcie. we in no way quesden i e integrity- of ycur research or credennais. Specifically, we are perplexed by your assertions, both puhiiciy, and privately to our stifL that you are willing to cooperate while a: i e same dme i e Department's efforts to iridate coOabcradcn are condnuaily ±warted.
In your letter of September 5, 1996, regarding i e Department's request for assistance in understanding the calcuiadons reported in i ; above ardcie. ycu indicated a willingness "to ' conduct and display any analysis'"' i a : interested i e Deparnnsn- In a letter cared October 16, _ 1996, the Department accepted your invimdon and agreed to visit your stsiisdcs laboratory. rreparadecs included finding a sui:zbie conrdtant, establishing a 5mdmg mechanism, and preparing quesdons for discussion.
When I learned i a : you amended ycur invitadon to include several prerequisite conditions, I and my staff, were baffied. As I understand icse conditions, you insist i a : aciier you nor i e Department's epicemiological consultant be paid, thai you have "immediate access" to i e consultant's findings and that you be given, in advance, a "written assurance"' that i e Depamnen: "standby"' i e consultant's findings regarding i e culculanons used in ycur study. These prerequisites are not congruous wii i e Department's piirzcsz and interest in visidng i e University of California. Riverside stadstics laboratory. For cne thing, it is unrealistic to e.-cpect i a : an ercpert epidemiologist would work for i s Dcpartmer:: for free. Demanding "wriner. assurance7' from i e Department regarding its acnens in this -4a2er fosters ah atmosphere of distrust and is a h12b.lv unusual csrr4and in i e ccnte.tt of crsfesrlona! coliabcradoo. I repeat i a t
'Building Partnerships, Supporting Choices"

-•7-
the sole nurscse of our visit is tc understand the rezi imoiiccrions of vour study and. to discover the tsngibic sizes the Department cedd take. If indicated, to reduce consumer risk.
The Denartnient is committed :o finding ways to improve the quality of life for its cons:s!ers. In that regard, we are interested in s.xarnining the specificcircumstances of the consumers' deaths reported in your artfe-e. ^-Se." you revered your invitation for a visit to UCR, Derarznent stiff, on October 30, 1S95, asked you if you wodd share the UCI numbers for czzh. dzzzzsed consumer in vour srjdy. They have subsequently informed me that you declined to supply the Depanacnt *iih a !isr of the UCI numbers. Your refusal to supply the UCI numbers is paradoxical beccuse of your recent comment tc one of our stiff that you wanted to work coccent-ve-v with the Decarm:er.t. Your *v±izz2Z£S to share the UCI numbers, which are crucial to rhz Deparzrszt's eiior: to identify the specifc ai^z(s) zr.d circumstances of consumer deaths. would sie^ai a senuias willinsness to wane cooperativeiy with the Deparnuent on thfs problem. The Department is eager to move forward in determining where and how suspected risk factors operate. Are you interested in elaborating with the Department? If so, I wouid appreciate a timeiy response to our request fcr informan'an.
If you have any aiiesdczs, piaiss ccntac: Deicres Murrey, Ph.D., at (916) 654-5 662.
Sincereiy,

DENNIS G. AMUNDSON' Director

"

\

 
 if d

» developmental Serv. of Cal.

MR-CA-004-012

DANIEL E. LUNGRKN, Attorney General of the State of California
JOHN H. SANDERS, Supervising Deputy Attorney General
KAREN L. FRIED, State Bar No. 74420 Deputy Attorney General
300 S. Spring Street, 9th Floor-North Tower L O B Angeles, California 90013 Telephone: (213) 897-2438
Attorney for State Defendant, DEPARTMENT OF DEVELOPMENTAL SERVICES AND FAIRVIEW DEVELOPMENTAL CENTER

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R., VALDINA )

R., and ROES 1 through 300,

)

12 individually and on behalf of a l l ) those similarly situated by
13 WILLIAM CABLE, M.D. as Guardian Ad Litem,
14

Plaintiffs, 15

vs. 16

DEPARTMENT OF DEVELOPMENTAL

17 SERVICES OP THB STATE 0?

CALIFORNIA, FAIRVTEW

13 DEVELOPMENTAL CENTER, SOUTH COAST )

REGIONAL PROJECT, HARBOR REGIONAL )

19 CENTER, SAN DIEGO REGIONAL

)

CENTER, SOUTH CENTRAL LOS ANGELES )

20 REGIONAL CENTER, WESTSIDE

)

RBGIONAL CENTER, DENNIS G.

)

21 AMUNDSON, as Director of the

)

DEPARTMENT OF DEVELOPMENTAL

)

22 SERVICES STATE OF CALIFORNIA,

)

HUGH KOHLER, as Executive

)

23 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER, LILIA TAN- )

24 FIGUEROA, M. D., as Medical

)

Director of FAIRVIEW

)

25 DEVELOPMENTAL CENTER, DAWN

)

LEMONDS as Director of SOUTH

)

26 COAST REGIONAL PROJECT, and DOES )

1 through 500, inclusive,

)

27

0

Defendants.

)

28

Case No. SACV97-219 GLT (EEX)
STATB DEFENDANT DEPARTMENT OF DEVELOPMENTAL SERVICES AND FAIRVIEW DEVELOPMENTAL CENTER'S OPPOSITION TO PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION AND DECLARATIONS OF MICHAEL B. MOUNT, DAWN LEMONDS, LOIS A. CISSELL, JEFFREY HELFER, AND ROBERTA A. MARLOWE
Date: March 31, 1997 Time: 3:30 p.m. Courtroom: 2

l.

SW

-.Aq

TABLE 07 CONTENTS

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

#

PRELIMINARY STATEMENT

ARGUMBNT

I PLAINTIFFS' APPLICATION FOR A PRELIMINARY INJUNCTION MUST BE DENIED A. Plaintiffs Demonstrate No Risk of Irreparable Harm
B. There is Little If No Likelihood That Plaintiffs Will Prevail On The Merits
CONCLUSION

Pago No. 2 2 2 8
8 8
13 15

oz/R

TABLE OP AUTHORITIES

Page No.(s)

Association forRetarded Citizens v. Dept. of Developmental Services
(1995) 38 Cal.3d 384

3,4,5

Baldwin Metals Co., Inc. v. Donovan

642 F.2d 768. 775 n. 17 (5th Cir. 1981)

9

Beascn Theatres Inc. v. Westover

359 U.S. 500, 79 S.Ct. 948

9

Benda v. Grand Lodge of International

Association of Machinists & Aerosoace Workers

584 F.2d308, 314-31S (9th Cir. 1978)

10

Carribean Marine Services Company, Inc. v. Baldridge

844 F.2d 668, 674 (9th Cir. 1988)

9

Chalk v.-United States District Court

840 P.2d701, 704 (9th Cir. 1988)

10

Goldie's Bookstore, Inc. v. Superior Court

of the State of California

739 P.2d 466, 474 (9th Cir. 1984)

9

Hill v. Nelson

272 F.Supp. 790, 800-802 (N.D. Cal. 1967)

10

In Re Hop

(1981) 29 Cal.3d 82

5

International Assoc. of Firefighters v.

City of Sylacauga

436 P.Supp. 482, 492 (N.D. Ala. E.D. 1977)

9

Los Angeles Memorial Coliseum Commission

v. National Football League

634 F.2d 1197, 1200 (9th Cir. 1980)

9

Loya v. Immigration and Naturalization Service

583 F.2d 1110. 1114 (9th Cir. 1978)

9

Miller v. County of Santa Cruz (1994) 39 F.3d1030

' *"

4

Swift & Co. v . United States

276 U . S . 311, 314, 72 L.Ed. 587, 597 (1928)

9

United S t a t e s v . W.T. Grant Co. 345 U . S . 629, 633

9,10

ii

crj xe-uar :Xq

. STATUTES

FEDERAL Federal Rule of Civil Procedure
5 17 § 17(c)

6 Federal Procedures & Practice

S 1570

26 Fed. Proc. L.Ed.

5 59:68

S 59:69

STATE

Welfare and Institutions Code

"S 4500

§ 4514

§ 4846

S 6500

-

MISCELLANEOUS

Senate Bill (SB) 1383, enacted September 28, 1992 which amended § 4502(a) (Stats. 1992, C.lOil

13 13,14
14
14 14
3,4,8 14 4,8 6
4

iii :Xa

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

This action was filed by Richard S,, Cynthia R., and

4 Valdina R. (developmentally disabled consumers) individually and

5 on behalf of all those similarly situated by William Cable, M.D.

6 as guardian ad litem. The action is against the California

7 Department of Developmental Services (DDS) , Fairview Developmental

8 Center (Fairview), South Coast Regional Project and several

9 regional centers located in Southern California. The Complaint

10 and Ex Parte Application For Temporary Restraining Order were

11 filed on March 20, 1997. The Temporary Restraining Order was

12 denied by Judge Gary L. Taylor on March 20, 1997 and this hearing

13 on the request for Preliminary Injunction was set for March 31, 14 1997.

IS

PRELIMINARY STATEKBNT

16

DDS, a department in the Health and Welfare Agency of

17 the State of California, provides services and support to persons

18 with developmental disabilities. DDS operates six developmental

19 centers in California, including defendant Fairview Developmental

20 Center (Fairview) in Costa Meaa. DDS also contracts with twenty-

21 one regional centers to provide services to people with

22 developmental disabilities in the community. The five named

23 defendant regional centers (all private non-profit_corporations)

24 provide such services pursuant to contracts with DDS. Defendant

25 South Coast Regional Project facilitates the identification of

26 people who might appropriately reside in a community setting, and

27 seeks to locate placements for these individuals in cooperation

2

SH

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Michael

1 similarly situated developmentally disabled consumers.2'

2

Plaintiffs are apparently laboring under the

3 misitnpresaion that the defendants have the goal of moving hundreds

4 of developmentally disabled consumers out of Fairview to make room

5 for consumers from Camarillo needing placements by the end of June

6 due to Camarillo's closure. Plaintiffs further mistakenly assume

7 that any actions of defendants are to save money and would place

B plaintiffs in jeopardy. As will be shown herein and in the

9 attached declarations, nothing could be further from the truth.

10 The following is a brief summary of the protections afforded

11 developmentally disabled consumers at Fairview.

12

In the Association for Retarded Citizens v. Deot. of

13 Developmental Services, supra. the California Supreme Court

14 construed the Lantertnan Developmental Disabilities Services Act

15 (Welf. & last. Code, SS 4500 - 4846)- (Lanterman Act) to grant a

16 right to developmentally disabled persons to be provided with

services that enable them to live in the least restrictive

environment, and imposes an obligation on the Department to

provide such services. {Id. at p. 392.) Developmentally disabled

20 3. Although irrelevant, Cabla alleges that he has been
21 retaliated against for opposing client discharges. The disciplinary action was not in retaliation for opposing client
22 discharges. Rather, his discipline was due to his hostile and offensive manner (among other Government Code violations) in the
23 course of his performance of duties at Fairview. Dr. Cable did not appeal either his letter of reprimand or his lo" day
24 suspension. Those decisions are now final. Miller v. Co-untv of Santa Cruz (1994) 39 F.3d 1030. A copy of both adverse actions
25 are attached hereto as Exhibit A to the Declaration of Michael B. Mount.
26 4. All references are to the Welfare and Institutions Code
27 unless stated otherwise.

I n afio

xeuaru

>?icn

persons or consumers have an entitlement to those services

established in their IPPs. (Id. at p. 390.) Thus, California law

requires that developmentally disabled individuals must be placed

in the least restrictive environment as determined by

interdisciplinary teams preparing a client's IPP. (See alsc

g Senate Bill (SB) 1383, enacted September 28, 1992 which amended §

7 4502(a) (Stats. 1992, C.1011.)

3

The California Supreme Court has construed the Lanterman

9 Act as an entitlement, and specifically stated the State's

10 obligations in implementing the entitlement:

11

"The purpose of the statutory scheme is twofold: to prevent

or minimize the instituticnalization of developmentally

12

disabled persons and their dislocation from family and

community, and to enable them to approximate the pattern of

13

everyday living of nondisabled persons of the same age and to

lead more independent and productive lives in the

14

community.... It is through the IPP process that the right

the Act grants to each developmentally disabled person and

15

the obligation it imposes on the state are implemented;

through it, the developmentally disabled person on an

16

individual basis receives, as an entitlement, services that

enable him to live a more independent and productive life in

17

the community." (Association of Retarded Citizens v.

Department of Developmental Services, supra. at pp. 388, &

13

392.)

19

In 1981, in In re H O P (1981) 29 Cal.3d 82, to further

20 protect developmentally disabled consumers, the California Supreme

21 Court decided every person who was not a true voluntary admission

22 to a Developmental Center, be entitled to a judicial hearing as to 23 whether, because of a developmental disability, being gravely

24 disabled, or a danger to self or others, placement in a state

25 developmental center was warranted.

26

Each county where a developmental center was located

27 decided how to implement this decision. Concurrently with and

5

•'CIS

SH

1 independent of other processes and protections, the Orange County

2 Superior Court requires any new admission to Fairview

3 Developmental Center be placed only after a court review, under £rj

4 Re H O P (HOP) (1981) 29 Cal.3d 82 (unless a § 6500 commitment,

5 danger to self or others, is needed).

6

As set forth in the attached Declarations of Michael B.

7 Mount, Dawn Leraonds, Lois A. Ciasell and Jeffrey Heifer, the

8 following is a sequential order of events to help understand the

• 9 HOP proceedings:

10

.

l. Regional center case worker identifies resident to

11

the attorney, (Each regional center hires an attorney to

12

file HOP petitions.)

13

2. Regional centar reviews the resident's file, gathers

14

information, and provides this information to attorney.

15

3. The attorney prepares the declaration for ca.se

16

worker to sign.

17

4. Declaration becomes part of the petition for HOE.

18

5. A HOP HOLD order is obtained/ allowing Fairview to

19

retain the resident until the hearing.

20

6. A delegation form ia prepared by the attorney, and

21

given to the regional center.

22

7. Regional center forwards this delegation to the

23

parent or conservator for signature.

?

24

8. Parent or conservator must'sign this delegation and

25

return it to the regional center, which, in turn forwards it

26

to the attorney prior to the hearing.

27

9. Parents or conservators are not required to attend

6

SN

...... i rase

1

the hearing, but if they wish to attend, can contact either

2

the regional center or Fairview for the hearing date and

3

time.

4

10. Public Defender investigators interview the

5

resident, review the file, and make reconiinendat ions to the

6

Public Defender.

7

11. The hearing is held on the specified date.

8

12. The judge reads all materials prior to the hearing

9

and makes his decision. Judge signs the HOP order which is

lO

good for one year.

11

Placements of persons out of developmental centers,

12 including Fairview, have increased since 1994. This pattern

13 follows DDS' settlement of the Coffelt. et al. v. The Department

14 of Developmental Services, et al.. San Francisco Superior Case No.

15 91641 lawsuit that same year. Pursuant to the settlement

16 agreement reached in San Francisco Superior Court, DDS was

17 required, within five years, to reduce the population of persons

18 residing in developmental centers by one third, or by about 2,000

19 people. DDS has complied with that mandate. Included in the

20 settlement agreement were provisions for placement, assessment,

21 case management, increased availability of flexible living

22 options, emergency and crisis intervention services, quality

23 assurance, and monitoring. (See Declaration of Michael B. Mount.)

24

Fairview, using the IPP process, has been involved in

25 evaluating placement options for its residents. The paramount

26 objective in making placement decisions has been determining the

27 most appropriate; least restrictive living option for the person.

7

OZ/ll

cw xe-uar :Ag auas

This decision-making process has been carried out in compliance

2 with the Lanterman Act, and no decision to place an individual in

3 the community is made over a family'a objections. (See Declaration

4 of Lois A. Cissell)

5

Further, placement decisions are subject to the fair

6 hearing provisions at the Welfare and Institutions Code 4700 et

7 seq. This provides an additional administrative protection

8 against an improper decision to place a person in the community.

9

ARGUMENT

10

I

11

PLAINTIFFS' APPLICATION ?OR A PRELIMINARY

INJUNCTION KCTST BE DENISD 12

A. Plaintiffs Deffionatrate Riafc

13

of Irreparable Karat

14

Despite rushing to this Court for a temporary

15 restraining order without understanding the inadequacies of their

16 prima facie case, the plaintiffs fail to establish the requisite

17 irreparable harm to support the issuance of the broad restraining

18 order which they seek, that is, the Defendants being restrained

19 from "Discharging or transferring from Fairview Developmental

20 Center to other California developmental centers or to non-

21 institutional placement any adult client who has no conservator of

22 the person, during the pendency of this action".*

23

Based upon the few but incorrect facts alleged by the

24 plaintiffs and their complete lack of knowledge and comprehension

25 of the laws and requirements under the Lanterman Developmental

26

27

5. Plaintiffs' Proposed Order {p. 2)

8

SH

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1 Disability Services Act (Welf." & Inst. Code, §§ 4500-4846)

2 (Lanterman Act), the Court must deny plaintiffs' application for a

3 preliminary injunction.

4

In order to be entitled to a preliminary injunction, a

5 party roust show either a likelihood of prevailing on the merits

6 with the balance of hardships tipping in favor of the moving party

7 or by demonstrating that the balance of hardships tips decidedly

8 to the plaintiffs and "serious questions" on the merits are

9 raised. Both tests also require the Court to weigh the public

10 interest when considering the hardships. (Carribean Marine

11 Services Company, Inc. v. Saldridqe. 844 F.2d 668, 674 (9th Cir.

12 19&8) {reversing imposition of preliminary injunction on grounds

13 that no irreparable harm was established).-

14

"Speculative injury does not constitute

irreparable injury sufficient to warrant

15

granting a preliminary injunction. [Citation

omitted]. A plaintiff must do more than

16

merely allege imminent harm sufficient to

establish standing; a plaintiff must

17

demonstrate immediate threatened injury as a

prerequisite to preliminary injunctive

18

relief." (Emphasis in original) (Baldridqe,

844 P.3d at 674.)

19

Sea also. Goldie'a Bookstore. Inc. v. Superior Court of tha State 20

of California. 739 P.2d 466, 474 (9th Cir. 1984) (reversing 21

injunction because of, inter alia, plaintiff's failure to prove 22

irreparable harm). 23

24

6. la view of the fact that plaintiffs have not addressed

(let alone established) that the public interests involved favor

25 the plaintiffs, this issue is not separately dealt with in this

opposition. However it will be shown that public interest is

26 actually best served by denying plaintiffs' application in that

there ia already in place appropriate protections and safeguards

27 for the consumers.

1

Xnjunctive relief is unavailable, however, unless a

2 plaintiff can demonstrate both irreparable injury and lack of an 3 adequate remedy at law. International Assoc. og Firefighters v.

4 Citv of Svlacauaa. 43S P.Supp. 482, 492 (N.D. Ala. E.D. 1977),

5 citing Beaaon Theatres Inc. v. Westover, 359 U.S. 500, 79 S.Ct.

6 948, 3 L.Ed.2d 988 (1959); see also Baldwin Metals Co., Inc. v.

7 Donovan. €42 F.2d 768, 775 n. 17 (5th Cir. 1981), cert, denied,

8 454 U.S. 893, 102 S.Ct. 389, 70 L.Bd.2d 207 (1981).

9

The primary purpose of an injunction is to preserve the

10 status quo pending a determination of the action on the merits and 11 to prevent future violations, not punish for past conduct. L03

12 Angeles Memorial Coliseum Commission v. National Football League.

13 634 F.2d 1197, 1200 (9th Cir. 1980); United States v. W.T. Grant

14 Co. . 345 U.S. 629, 633, 73 S.Ct.. 894, 898, 97 L.Ed. 1303, 1309

15 (1953); Swift 6 Co. v. United States. 276 U.S. 311, 314, 72 L.Ed.

16 587, 597 (1928) ; Loya. v. Immigration and Naturalization Service,

17 583 P.2d 1110. 1114 (9th Cir. 1978). It is the moving party's

18 burden to allege and to demonstrate that injunctive relief is

19 necessary to avert some cognizable danger of recurrent violation.

20 United States v. W.T. Grant Co., 345 U.S. at 633; Hill v. Nelson.

21 272 F.Supp. 790, 800-802 (N.D. Cal. 1967).

22

The Ninth Circuit has held:

•The moving party may meet its burden by

23

demonstrating either (1) a combination of probable cause

success on the merits and the possibility o f irreparable

24

injury, or (2) that serious questions are raised and the

balance of hardships tips sharply in its favor.* Cha,lk

25

v. United States District Court. 840 F.2d 701, 704 (9th

Cir. 1988), citing Benda, v. Grand Lodge of International

26

Association of Machinists & Aerospace Workers. 584 F.2d

308, 314-315 (9th Cir. 1978), cert, denied, 441 U.S. 937

27

(1979).

10

SH

1

with regard to the first prang of this test, plaintiffs

2 have failed to make even the most minimal showing that there is

3 irreparable injury which will result if the injunction is not

4 granted.

5

With regard to the three named plaintiffs, there is no

6 showing that irreparable harm will cccur to either Richard S.,

7 Cynthia R. or Valdina R. (See attached Declarations of Jeffrey

8 Heifer and Dawn Lemonds.) Plaintiff Cynthia R. is an unconserved

9 adult living at Fairview with no family involvement. She was the

10 subject of a therapeutic treatment planning meeting initiated by

11 San Diego Regional Center. The regional center was concerned by

12 the extensive use of restrictive intervention for Cynthia R. and 13 wanted to explore two ideas: How could these restrictive 14 interventions be reduced, as well as what type of services and

15 supports would Cynthia R. need if she ever moved to the community.

16 This meeting included a psychologist from the regional center, a 17 provider with known expertise about community services, the 18 regional center service coordinator, SCRP staff, as well as the

19 other interdisciplinary (ID) team members. This meeting was not a 20 placement planning meeting and was not represented as such. 21 Cynthia R. is not a candidate for placement at this time and there

22 are no imminent plans for her to move.

23

As set forth in the attached Declarations of Jeffrey

24 Heifer and Dawn Lemonds, Valdina R. is an adult who moved to the

25 community last year and is successfully residing in a community

26 care home in San Diego. DDS serves as the limited conservator of

27 her person. Valdina R. hag very challenging needs which were

11

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1 discussed extensively by her ID team. The home that she initially

2 moved to had a critical staffing change, losing the services of

3 their behavioral specialist. This less waa serious as the SCRP

4 staff felt that Valdina'a success was contingent on the

5 involvement of that specific person with whom Valdina had

6 established a relationship. As soon as this change was

7 discovered, the regional center identified a more appropriate

8 horae. Valdina was immediately moved to the new home with a higher

9 staffing ratio, as well as the needed behavioral supports. She is

10 currently served by a psychologist who worked with her at Fairview

11 and was chosen as "worker of the month" recently at her day

12 program. This was a profound and positive change for Valdina R.

13 Valdina R. has been seen several times in the past year by SCR?

14 staff and she is healthy and doing well in her transition.

15

Richard S. is an unconserved adult with involved

16 parents. He resides at Fairview. The SCRJ? has identified Richard

17 as a good candidate for placement for community living. His

18 family is adamantly opposed tc such a placement and, accordingly,

19 there is no current plan to move him to the community because of

20 his parents' objection. (See Declarations of Dawn Lemonds and

21 Jeffrey Heifer.)

22

Plaintiffs have also failed to show that, with the many

23 and extensive protections afforded the development ally disabled

24 consumers at Fairview (as outlined in this pleading, including

25 exhibits and declarations), any other "Roe" is at serious or

26 imminent risk of serious injury by possible placement in the

27 community.

12

SH

1

Contrary to plaintiffs' assertions, there are adequate

2 and appropriate safeguards for the persona Cable purports to

3 protect. These variouB safeguards and procedures are described in

4 detail in the attached declarations of Jeffrey Heifer, Dawn

5 Lemonds, Lois A. Cissell and Michael B. Mount. There is simply no

€ need for the injunction Cable seeks.

7

The purported support for plaintiffs' position is the

8 Declaration of Oavid J. Strauss. This declaration purports to

9 contain information showing a statistically significant greater

10 incidence of tnortality/tnorbidity of individuals in the program

11 sought to be enjoined by plaintiffs' application. However, as

12 shown by the attached Declaration of Roberta A. Marlowe, the

13 studies and statistics upon which Strauss' declaration relies are

14 misleading, not supported by the statistical data and, in fact,

15 misstate the statistical data. For example, the studies

16 specifically excluded approximately fifty percent (50%) of the

17 involved patient population, only speculated without supporting

18 data that the lack of quality medical care was a possible reason

19 for the higher community mortality and did not provide any

20 information about the causes of death. These reasons alone would

21 render his studies (and therefore his declaration and conclusions)

22 questionable at best and wholly incorrect at worst.

23

The plaintiffs are unable to meet this minimum

24 requirement of irreparable harm.

25

26

27

13

OZIL\ SH

1

B. Th«re is Littlft If No Likelihood That

Plaintiffs Will Prevail On The Merita

2

Because the plaintiffs have no likelihood of prevailing

on the merits, the preliminary injunction should not issue.

4

Firstly, Cable cannot be anpointed guardian ad litem and, thus,

5

has no standinc to bring this action in Federal District Court.

6

Federal Rule of Civil Procedure (FRCP) 17(c) provides as

7

follows:

8

"Whenever an infant or incomppetent pperson has a

9

representative, s.uch as. gener-al gua-rdian,. commi.ttee,

conservator, or other like fiduciary, the representative

10

may sue or defend on behalf of the infant or incompetent

person. An infant or incompetent person who does not

11

have a duly appointed representative may Bue by a next

friend or by a guardian ad litetn. The court shall

12

appoint a guardian ad litera for an infant or incompetent

person not otherwise represented in an action or shall

13

make such other order as it deems proper for the

protectiion off thhe iinffant or incomipettent person."

14

The first sentence of FRCP Rule 17 has been construed as

15

generally prohibiting the court from appointing a guardian ad

16

litem where there is already a "representative" for the party {6

17

Fed. Procedures & Practice § 1570, p. 497) . Therefore, with

18

reference to any of the 800 ROES referred to in plaintiffs'

19

action, Cable cannot be appointed the guardian ad litem for those

20

consumers residing at Fairview who have representatives.

21

Furthermore, the fact that an individual appears to fall within

22

one of the categories listed in FRCP 17 (c) does not automatically

23

compel his/her appointment as a guardian ad litem:*" (26 Fed. Proc.

24

L.Ed. § 59;68, p. 66.) Rather, his/her capacity to sue is

25

determined by applying the law of the forum state. {Ibid.) with

26

reference to the remaining developmentally disabled consumers, it

27

14

:/g

1 is the stats defendants' position that Cable cannot be appointed

2 aa guardian ad litem because of hia conflicts of interest.

3

Cable claims to have a "special relationship" with the

4 three named plaintiffs. However, in the furtherance cf Cable's

5 lawsuit, he violates doctor/patient privilege as well as the

6 confidentiality provisions of Welfare & Institutions Code section

7 4514 for state employees. An incompetent party cannot be

a represented by cne who has a personal interest however remote or

9 indirect in the lawsuit in question- {26 Fed. Proc. L.Ed. § 59:69

10 p. 66.) Cable specifically has an interest in this lawsuit

11 because of alleged retaliation by Fairview which is the subject of

12 another Federal District Court action entitled William Cable, etc.

13 v. Department of Developmental, Services, et al.. Case No. SACV96-

14 1190 GLT (BBx). Therefore, he cannot be appointed the guardian ad

15 litem for all of the above reasons.

16

Even assuming arguendo, that thia Court determines Cable

17 can be appointed as guardian ad litem for at least seme of the

18 developmentally disabled consumers at Fairview, the Preliminary

19 Injunction cannot be issued because plaintiffs have little or no

20 likelihood of success on the merits.

21

As set forth above, there are adequate and appropriate

22 safeguards for the persons Cable purports to protect. These

23 various safeguards and procedures are described in detail in the

24 attached declarations of Jeffrey Heifer, Dawn Lemonds, Lois A.

25 Ciasell and Michael B. Mount. There is simply no need for the

26 injunction Cable seeks.

27

As set forth above, the Declaration of David J. Strauss,

15

1 upon which plaintiffs principally rely ia replete with 2 misstateraents of the statistical data, misleading statements and

3 questionable-, if not outright Incorrect, conclusions (see attached

4 Declaration of Roberta A. Marlowe). Plaintiffs' arguments are

5 made of whole cloth and do not warrant (let alone support) the

6 granting of the requested preliminary injunction.

7

CONCLUSION •

8

For the foregoing reascna, the plaintiffs' request for

9 Preliminary Injunction must be denied.

10

Dated: March 26, 1997

11

Respectfully submitted,

12

DANIEL £. LUNGREN, Attorney General

of the State of California

13

JOHN H. SANDBRS, Supervising

Deputy Attorney General

14

KAREN L. FRIED,

Deputy Attorney General

15

16

17

KAREN L. FRIED

ia

Attorney for State Defendant. DEPARTMENT

OP DEVELOPMENTAL SERVICES AMD FAIRVIEW

19

DEVELOPMENTAL CENTER

20 e:\friad\fafrview.ocp

21

22

23

24

25

26

27

16

nz/n* 86B^SPPS

JR17

 
 DANIEL E. LUNGREN, Attorney General of the State of California
JOHN E. SANDERS, Supervising Deputy Attorney General
KAREN L. FRIED, State Bar No. 74420 Deputy Attorney General
300 S. Spring Street, 9th Floor-North Tower Los Angeles, California 90013 Telephone: (213) 897-2438

Attorney for Defendants, DEPARTMENT OF DEVELOPMENTAL SERVICES AND FAIRVIEW DEVELOPMENTAL CENTER

8 COPY
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 RICHARD S., CYNTHIA R. ,

No.: •SACV97-219GLT(EEx)

VALDINA R., and ROES 1 through

13 800, individually and on behalf

DECLARATION OF

of all those similarly situated

DAWN LEMONDS

14 by WILLIAM CABLE, M.D., as

Guardian At Litem,

)

15

)

Plaintiffs, )

16

v.

Richard S. v. Dept. of Developmental Serv. of Cal.

17 DEPARTMENT OF DEVELOPMENTAL ||

SERVICES OF THE STATE OF

11

18 CALIFORNIA, FAIRVIEW

Hill

DEVELOPMENTAL CENTER, SOUTH

MR-CA-004-013

19 COAST REGIONAL PROJECT, HARBOR )

REGIONAL CENTER, REGIONAL CENTER)

20 OF ORANGE COUNTY, SAN DIEGO

REGIONAL CENTER, SOUTH CENTRAL

21 LOS ANGELES REGIONAL CENTER,

WESTSIDE REGIONAL CENTER,

22 DENNIS G. AMUNDSON, as Director

Of the DEPARTMENT OF DEVELOP-

23 MENTAL SERVICES, STATE OF

CALIFORNIA, HUGH KOHLER, as

DATE: March 31, 1997

24 Executive Director of FAIRVIEW

TIME: 3:30 p.m.

DEVELOPMENTAL CENTER, LILIA

DEPT: 2

25 TAN-FIGUEROA, M.D., as Medical

Director of FAIRVIEW DEVELOP-

26 MENTAL CENTER, DAWN LEMONDS,

as Director of SOUTH COAST

)

27 REGIONAL PROJECT, and DOES 1 )

through 500, inclusive,

)

28

)

Defendants._)

1.

1

I, Dawn Lemonds, declare:

2

1. I am employed by the State of California, Fairview

3 Developmental Center (Fairview), as the Executive Director of the

4 South Coast Regional Project (SCRP). If called to testify in 5 this matter, I could and would testify to the facts as set forth 6 in this declaration.

7

2. SCRP opened at Fairview in August 1992 as the last of

8 seven Regional Resource Development Projects (RRDPs) in the

9 state. The RRDPs link the regional centers, the state
10 developmental centers, and community service providers. They 11 effect safe, appropriate, well-supported residential community 12 placements for persons leaving the developmental centers. SCRP 13 is governed by its Steering Committee which includes personnel 14 from regional centers (Westside, Orange^ Harbor, South Central, 15 and San Diego) , the executive director of Fairview, a 16 representative of Area Board XI and parent group members from 17 Fairview Family and Friends. Area boards were created under the 18 Lanterman Act to serve as oversight agencies for all services and 19 programs for persons meeting the federal definition of 20 developmental disability.

21

3. Procedures and objectives are individually developed by

22 each RRDP for their specific geographic area. All RRDPs develop

23 a transition process to be used, a training plan, and services

24 and supports that can be shared with the other RRDPs. This

25 collaborative effort has increased successful placement for

26 persons into the community through identification and provision

27 of the critical services and supports needed for each person.

28 SCRP is locally managed with guidance from Hugh Kohler,

2.

1 Fairview's Executive Director, and from the Community Services

2 Division of the Department of Developmental Services.

3

4. Quarterly reports are prepared for the SCRP Steering

4 Committee to discuss at their meetings. The parent group,

5 Fairview Family and Friends, meets with me periodically to

6 address issues from the reports or to get clarification on other

7 issues. Over the years, the Steering Committee has developed the

8 most conservative transition process of any RRDP in the state.

9 Each person's plan is designed uniquely to him or her.

10 Appropriate placement planning is a continuous process through

11 the person's time at Fairview. The more planning that is done

12 before community placement, the more likely it is that the person

13 will successfully transition into community living.

14

5. All SCRP staff work with the SCRP team, persons and

15 their families, Fairview, the regional centers, service providers

16

r and other people from the region to provide services to our

17 regional partners. SCRP provides clinical assessment, planning,

18 communication, interdisciplinary team (IDT) membership, training,

19 observations, site visitations, post-placement activities,

20 participation in community forums/ working with families and

21 persons, staff orientation, crisis services, and event

22 coordination.

23

6. The coffelt Settlement Agreement signed in January 1994

24 created new mandates for the RRDPs in reporting and process.

25 Additionally, regional centers were given direction and funding

26 to develop an array of new services and supports that would be

27 needed by persons who move from a state developmental center to

28 the community. The regional centers serving the SCRP region met

3.

1 frequently with our staff to assess the needs of persons in order

2 that the regional centers would be able to provide adequate

3 community options. From 1993, each regional center was given a

4 target number of people to be placed from the developmental

5 center and corresponding funding to effect those numbers. The

6 RRDPs were mandated to assist in facilitating this placement

7 process through their various transition systems. The Coffelt

8 Settlement Agreement included many additional protections. These

9 included a requirement for person centered planning conferences

10 for all persons, a requirement for each regional center to have a

11 crisis services system in place, and a requirement for regional

12 center participation in the IPP process for their persons.

13

7. The following represents the events that occur during

14 the transition for each individual moving into the community.

15 Contrary to the assertions of Dr. Cable, Fairview residents f
16 without involved parents or conservators are not "targeted for

17 community placement".

18

a. Screening. SCRP screens persons identified by

19

themselves, their families, regional centers, public

20

defender staff or by other means to assess their needs,

21

health status, skill proficiency, day/work/school

22

program needs, behavioral issues, communication skills,

23

likes, dislikes, nutritional needs, parental wishes and

24

involvexaent, adaptive equipment used, etc. SCRP meets

25

their level of care staff at Fairview, and at times the

26

families and other Fairview service providers to

27

determine the level of services and supports the

28

persons would need if they moved to the community.

4.

1

Regional Center Tdentification. SCRP staff discusses

2

their findings with the regional center and other IDT

3

members to determine the services and supports that the

4

person would conceivably benefit from. The IDT is

5

composed of professionals reflecting a person's

6

individual needs. These may include: psychologists,

7

nursing staff, physicians, physical therapists,

8

education staff, dietetics staff, and any other staff

9

as needed to serve the person's needs. The IDT also

10

includes the person with developmental disabilities,

11

the person's family, conservator, or other legal

12

representative and any other persons chosen by the

13

resident. The regional center reviews information from

14

the IDT meetings, and talks with the program social

15

worker to further clarify the person's and family's

16

wishes. The Regional Center Service Coordinator will

17

discuss these issues with the family and, as requested,

18

show the .family various living arrangements that they

19

might consider. If there is no family or if the family

20

chooses not to visit, the initial provider

21

identification process may begin.

22

Site Visitation. SCRP will visit the sites that are

23

identified to determine the type of services the

24

provider will offer, their staffing and staff

25

proficiency, the needs of persons that they would like

26

to serve the available day programs in the area, the

27

training needed by the staff, the medical resources

28

available to the provider, etc. Following this review,

5.

1

the SCRP staff report any concerns to the appropriate

2

regional center immediately.

3

d. Person packet given to prospective service providers.

4

A packet of current information is sent to the regional

5

center to distribute to the prospective provider for

6

him or her to review prior to the visit with the

7

person. This enables the provider to be prepared and

8

knowledgeable about the person's needs and

9

proficiencies prior to his or her visit. Providers are

10

scheduled to see specific persons at specific times at

11

Fairview.

12

e. Services Provider Visits. Service provider visits are

13

arranged several days in advance for the care provider,

14

the regional center worker, and SCRP worker to meet

15

with the person in a private location at his or her

16

residence or day program.. Families that choose to be

17

at this event are welcomed to attend. This meeting

18

gives an initial sense of service provider

19

compatibility with the person and whether they can meet

20

the needs of the person. Many Fairview staff are also

21

notified of these events to be a working part of this

22

visit. Fairview staff are encouraged to ask questions

23

about the prospective homes in order that they have an

24

idea of future service availability. The visits are

25

not held in a public place and, therefore, a provider

2 6

is not exposed to any other residents for more than a

27

few moments. The providers do not "shop" for people as

28

Dr. Cable alleges. Any questions asked by the provider

6.

1

about any other residents are diverted by both the

2

regional center and SCRP staff, as the visits are

3

intended for only the one identified resident. SCRP

4

does not allow any unescorted visits by regional center

5

staff with providers or by providers alone.

6

f. Pre-placement Process. Following the service provider

7

visits, pre-placement visit(s) by the person, staff,

8

and family (as desired) to the prospective home(s) are

9

scheduled. This process is developed and coordinated

10

through a collaborative process with the SCRP

11

transition worker and regional centers service

12

coordinator. Persons may go to the home and have a few

13

lunch visits or the provider may initially come to

14

Fairview to get to know the person. Generally, the

15

persons have at least one weekend visit, although it is

16

not unusual for us to schedule a week or longer visit

17

prior to placement to make sure that everybody is

18

comfortable with the new living arrangement. During

19

the pre-placement events, the person is customarily

20

evaluated for his or her day or work program. During

21

all pre-placement events, SCRP staff along with

22

Fairview residence staff, accompany the person for at

23

least the delivery and pick up. SCRP staff are on 24-

24

hour call during pre-placements.

25

g. Service and Supports Prior to Placement. Part of the

26

placement planning includes determination of health

27

services needed before and after leaving Fairview,

28

transportation issues, adaptive equipment needs,

7.

1

assessments, clothing and property movement, and types

2

of training staff needed to work with the person. It

3

is not unusual for staff from the home or day program

4

to come to Fairview prior to placement to get hands-on

5

training. Fairview staff have also gone to the

6

community home or school after the placement to give

7

staff training. Additionally, a standard practice for

8

all individuals who use behavior management medications

9

is the completion of a therapeutic drug review prior to

10

leaving, for use by future providers.

11

h. Exit Process. Fairview conducts comprehensive IDT

12

conferences for all individuals who leave Fairview.

13

Notification to parents of the exit conference is the

14

responsibility of regional center staff with follow-up

15

by the Fairview social worker. Most regional center

16

staff start the notification process prior to care

17

providers visiting the person. The notification is

18

made by telephone, in person, and, if no response, by

19

mail. The Fairview social worker notifies the family

20

of the planned exit conference at least two to three

21

weeks in advance of the anticipated placement date.

22

The exit conferences include the person and his or her

23

family, the new provider, the regional center, SCRP,

24

all currant providers, and other as designated. This

25

IDT conference identifies critical information relevant

26

to the person's needs and program, as well as telephone

27

numbers and emergency practices, if needed. In

28

addition to the report sent by the IDT to the provider,

8.

1

SCRP documents the critical issues that surface and

2

sends this to the provider and the regional center.

3

This document helps SCRP conduct their post- placement

4

review relating to necessary health and behavior

5

management follow-up. This process also identifies

6

needed supplies, medications, personal belongings, etc.

7

that must be ready for placement.

8

i. Placement. SCRP escorts the person to their new home

9

usually with a Fairview staff member. All required

10

documentation, including explanation of the placement

11

packet, medications, treatments and inventories are

12

completed.

13

j . Post-Placement Process. Using the Post-Placement

14

Tracking Form, SCRP conducts a minimum of four

15

monitoring events for every person who moves from

16

Fairview. Initial Review. SCRP contacts the person

17

and his or her provider with two days of placement to

18

determine comfort and transition success. Sometimes

19

the person is called daily for the first month. The

20

person is visited at the time of the 30-day review with

21

a report following. At this time, health status,

22

dental services, behavioral issues and proposed

23

medication changes, and needs for follow-up services

24

are particularly scrutinized. Issues of medication

25

changes are immediately brought to the attention of the

26

regional center, and where possible, services requested

27

from Fairview to avert unnecessary medication changes.

28

Mid Review. Within four months of placement, each

9.

1

person is visited by SCRP staff once again to determine

2

the success of the transition. Any issues observed are

3

reported immediately to the regional centers and

4

additional SCRP follow-up systems are then put into

5

place. All follow-up activity is tracked and

6

monitored, as well as shared publicly with other SCRP

7

staff, so that information and communication is known

8

to all possible service providers. Six-Month Review.

9

Six months following placement, providers are sent a

10

Post-Placement Tracking Form and asked to respond. If

11

they do not, they are interviewed by the SCRP staff and

12

visits are planned as needed. If any issues surface

13

during any part of this process, Fairview resources are

14

used as needed through our established services and

15

supports system.

16

8. Fairview and SCRP have developed a services and supports

17 system known to the regional centers that provides services to

18 persons in the community after they have moved from Fairview. On

19 some occasions, persons have returned to Fairview for

20 evaluations, treatment and specific services that were pre-

21 planned at the exit conference. Fairview is available to provide

22 services as requested by the provider and the regional center.

23 SCRP services are generally directed toward assisting providers

24 in finding resources in the community with help from the regional

25 center.

26

9. Placement data for persons moving from Fairview to the

27 community is as follows: In fiscal year 1992-93, 24 persons

28 moved. In fiscal year 1993-94, 49 persons moved; 1994-95, 100

10.

1 persons moved; 1995-96, 86 persons moved; 1996-97, 36 persons

2 have moved as of February 28, 1997. Since 1993, eight persons

3 have returned to Fairview from the .community. Five of those

4 eight have subsequently moved successfully back to the community.

5 SCRP attributes this success rate to multiple factors: better

6 community resources, better transition services during and

7 following placement and good communication between SCRP, regional

8 centers and many of the providers. We track and continue to

9 follow persons after their six months is over and have provided

10 services for many persons well after their first year in 11 placement is over.

12

10. SCRP anticipates moving 25 to 35 persons into the

13 community by June 30. The rate of placement is slower this year

14 for two major reasons: Persons living at- Fairview have more

15 complex needs and their transition process is considerably slower

16 in order to adequately prepare. Secondly,' the closure of

17 Camarillo Developmental Center (Camarillo) has delegated many

18 resources of the regional centers toward placement of Camarillo

19 residents rather than relocating them to another state

20 developmental center. Contrary to the assertions of Dr. Cable,

21 the transfer of Camarillo residents will result in fewer current

22 Fairview residents moving into the community.

23

11. Plaintiff Cynthia R. is an unconserved adult living at

24 Fairview, with no family involvement. She was the subject of a

25 therapeutic treatment planning meeting initiated by San Diego

26 Regional Center. The regional center was concerned by the

27 extensive use of restrictive intervention for Cynthia R. and

28 wanted to explore two ideas: How could these restrictive

11.

rand supports

1

13. Richard S. is an unconserved adult with involved

2 parents. He resides at Fairview. The SCRP has identified

3 Richard as a good candidate for community living. His family is

4 adamantly opposed to such a placement and, accordingly, there is

5 no current plan to move him to the community.

6

I declare under penalty of perjury under the laws of the

7 State of California that the foregoing is true and correct.

8

Executed on this

day of March 1997, at

9 Costa Mesa, California.

10

11

Dawn Lemonds

12

Executive Director

South Coast Regional Project

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13.

 
 Richard S. v. Dept. of Developmental Serv. of Cal.

••••• •

!••*

HH

HH

•

•

MR-CA-004-014

DANIEL E. LUNGREN, Attorney General

of the State of California

JOHN E. SANDERS,

Supervising Deputy Attorney General

KAREN L. FRIED, State Bar No. 74420

Deputy Attorney General

3 00 S. Spring Street, 9th Floor-North Tower

Los Angeles, California 90013

Telephone: (213) 897-2438

Attorney for Defendants, DEPARTMENT OF DEVELOPMENTAL SERVICES AND FAIRVIEW DEVELOPMENTAL CENTER

8 COPY
. 9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 RICHARD S., CYNTHIA R.,

)

VALDINA R., and ROES 1 through )

13 800, individually and on behalf )

of all those similarly situated )

14 by WILLIAM CABLE, M.D., as

)

Guardian At Litem,

)

15

Plaintiffs, )

16

v.

)

17 DEPARTMENT OF DEVELOPMENTAL

)

SERVICES OF THE STATE OF

)

18 CALIFORNIA, FAIRVIEW

)

DEVELOPMENTAL CENTER, SOUTH

)

19 COAST REGIONAL PROJECT, HARBOR )

REGIONAL CENTER, REGIONAL CENTER)

20 OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL ) 21 LOS ANGELES REGIONAL CENTER, • )

WESTSIDE REGIONAL CENTER,

)

22 DENNIS G. AMUNDSON, as Director )

of the DEPARTMENT OF DEVELOP- )

23 MENTAL SERVICES, STATE OF

)

CALIFORNIA, HUGH KOHLER, as 24 Executive Director of FAIRVIEW

DEVELOPMENTAL CENTER, LILIA 25 TAN-FIGUEROA, M.D., as Medical

Director Of FAIRVIEW DEVELOP26 MENTAL CENTER, DAWN LEMONDS,

as Director of SOUTH COAST 27 REGIONAL PROJECT, and DOES 1

through 500, inclusive,

28

Defendants,

No.: SACV97-219GLT(EEX) DECLARATION OF JEFFREY HELFER
DATE: March 31, 1997 TIME: 3:30 p.m. DEPT: 2

1.

1

I, JEFFREY HELFER, declare:

2

1. I am employed by the State of California, Fairview

3 Developmental Center (Fairview) as the Clients Rights Advocate.

4 If called to testify in this matter, I could and would testify to

5 the facts as set forth in this declaration. As Clients Rights 6 Advocate, I am responsible for assuring Fairview1s compliance
7 with laws and policies relative to residents1 rights,

8 investigating all allegations of denial of such rights, serving

9 as advocate to individual residents in any matter relating to

10 their rights, and serving as a consultant to facility staff on

11 rights issues. I may intervene in any situation where there is

12 concern of a violation of a resident's rights which is brought by

13 or on behalf of any resident. To my knowledge, no resident, or

14 person acting on his or her behalf, has-requested referral to an 15 independent advocate.

16

2. Residents, their families, legal representatives and

17 Fairview staff (including physicians) have all been advised of

18 options regarding the assertion and preservation of residents1

19 rights. They have also received information from Fairview on how

20 to contact independent advocacy organizations, such as the local

21 Area Board (an oversight body), Protection and Advocacy, Inc.

22 and/or court appointed or independent legal representatives. I

23 believe that all of the staff physicians, including Dr. Cable,

24 are aware of my job duties and of my legally imposed obligation 25 to protect residents1 rights. Nonetheless, to my knowledge, Dr.

26 Cable has not consulted with me on any alleged violation of

27 residents' rights, nor has he requested the referral of any of

28 his alleged concerns to an independent advocacy organization for

2.

1 persons with developmental disabilities.

2

3. Pursuant to Title 17, California Code of Regulations,

3 section 50510(a)(12)(C), a person with developmental disabilities

4 has a right of access to the courts to inquire into the terms and

5 conditions of placement in any community care or health facility,

6 or state hospital, by way of a Writ of Habeas Corpus. As Clients

7 Rights Advocate at Fairview, pursuant to Title 17, California

8 Code of Regulations, section 50550(a)(5), I have the obligation

9 to assist residents in the pursuit of administrative and legal

10 remedies. If the complaint is against a employee, a policy, or

11 the operations of the state hospital, I may, as discussed above,

12 refer the resident to an agency such as Protection and Advocacy,

13 Inc. which can provide independent representation. Title 17,

14 California Code of Regulations, sections. 50510(a) (12) (C) and

15 50550(a)(5) are attached as Exhibit "B".

16

4. In 1981, the California Supreme Court decided every

17 person whowas not a true voluntary admission to a developmental

18 center, be entitled to a judicial hearing as to whether, because

19 of a developmental disability, being gravely disabled, or a

20 danger to self or others, placement in a state developmental

21 center was warranted. In re Hopf 29 Cal.3d 82, 171 Cal.Rptr. 721 22 (1981). Each county where a developmental center was located

23 decided how to implement this decision. The Orange County

24 Superior Court requires any new admission to Fairview be placed,

25 only after a court review, under Tn re Hop. (This is true unless

26 there is a Welfare and Institutions Code section 6500 civil

27 commitment, wherein the court has found that the person poses a

28 danger to self or others. Pending the hearing on a Section 6500

3.

1 commitment, the court may order the person placed in a state

2 developmental center pursuant to Welfare and Institutions Code

3 section 6506.)

4

5. Plaintiff Cynthia R. has a H2£ hold and no conservator

5 or family involvement. Plaintiff Richard S. has a Hop hold and

6 parents who oppose community placement. I am informed and

7 believe that DDS will not place a developmental center resident

8 in the community against a family's wishes, unless court ordered

9 to do so. Plaintiff Valdina R., who moved to the community on

10 June 26, 1996, has DDS serving as limited conservator of her

11 person.

12

6. In January 1992, the Orange County Superior Court

13 decided it was necessary to ensure that all of Fairview's

14 residents be afforded their right to a judicial hearing on the

15 appropriateness of placement. Therefore, since 1992, each

16 regional center responsible for Fairview residents has been

17 pursuing the appropriate judicial reviews. Currently, Fairview

18 has 738 residents. Of that number, 705 persons are adults, with

19 281 persons having conservators. Forty-four persons are

20 conserved by the Department of Developmental Services (DDS) via a

21 regional center nomination, 16 persons are conserved by a

22 regional center, 220 persons by family/other, and one by the

23 public guardian. Of the persons living at Fairview: 523 persons

24 have Hag placements; 100 consumers have Uas. holds pending their

25 ESS- review hearing, 78 persons are placed pursuant to Welfare and

26 Institutions Code section 6500, two persons are held pursuant to

27 Welfare and Institutions Code section 6506, and only two have not

28 had a judicial review. The anticipated population of Fairview,

4.

1 once the persons from Camarillo Developmental Center arrive, is

2 850. Fairview has a licensed bed capacity of 1,228. The new

3 arriving residents from Camarillo will not require an

4 acceleration of placements out of Fairview, contrary to Dr.

5 Cable's allegation.

6

7. The following is a sequential order of events in the

7 ongoing Hop review proceedings for Fairview residents.

8

a. The regional center case worker identifies the

9

person to the attorney. (Each regional center hires an

10

attorney to file Hop petitions.)

11

b. The regional center reviews the person's file,

12

gathers information, and provides this information to the

13

attorney.

14

c. The attorney prepares the declaration for the case

15

worker to sign.

16

d. The declaration becomes part of the HPP petition.

17

e. The attorney files the petition with the court and

18

a date is set for the hearing.

19

f. A Hop hold order is obtained, allowing Fairview to

20

retain the person until the hearing.

21

g. A delegation form is prepared by the attorney, and

22

given to the regional center.

23

h. The regional center forwards this delegation to

24

the parent or conservator for signature.

25

i. The parent or conservator must sign this

26

delegation and return it to the regional center, who in turn

27

forwards it to the attorney prior to the hearing.

28

j. The parents or conservators are not required to

5.

1

attend the hearing, but if they wish to attend, they can

2

contact either the regional center or Fairview, for the

3

hearing date and time.

4

k. The Public Defender investigators interview the

5

person at Fairview, review the file, and make

6

recommendations to the Public Defender.

7

1. The hearing is held on the specified date,

8

m. The judge reads all materials prior to the

. 9

hearing, and makes his or her decision. The judge signs the

10

H2B order, which is good for one year.

11

8. The following statistical information describes some of

12 the characteristics of the individuals residing at Fairview:

13 Ages range from 5 years to 77 years of age; 88% of the ages fall

14 between 22 and 54 years; 41% are female? 59% are male; 95% have

15 an intellectual handicap to at least a severe degree; 46% have a

16 visual impairment; 20% have a hearing impairment; 63% experience

17 seizures; 49% exhibit behaviors that interfere with their

18 participation in structured programs; 5% participate in Special

19 Education; 1% attend community school program; and 31%

20 participate in paid vocational training.

21

I declare under penalty of perjury under the laws of the

22 State of California that the foregoing is true and correct.

23

Executed on this

day of March 1997, at Costa Mesa,

24 California.

25

26

JEFFREY HELFER 27

Clients Rights Advocate

28

Fairview Developmental Center

6.

 
 Richard S. v. Dept. of Developmental Serv. of Cal.

™ • BV • • • • • •• •

MR-CA-004-015

1 DANIEL E. LUNGREN, Attorney General

\

of the State of California

2 JOHN E. SANDERS,

Supervising Deputy Attorney General

3 KAREN L. FRIED, State Bar No. 74420

Deputy Attorney General

300 S. Spring Street, 9th Floor-North Tower

Los Angeles, California 90013

Telephone: (213) 897-2438

O

Attorney for Defendants, DEPARTMENT OF

DEVELOPMENTAL SERVICES AND FAIRVIEW

DEVELOPMENTAL CENTER

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 RICHARD S., CYNTHIA R.,

)

VALDINA R., and ROES 1 through )

13 800, individually and on behalf )

of all those similarly situated )

14 by WILLIAM CABLE, M.D., as

)

Guardian Ad Litetn,

)

15

16

v.

Plaintiffs, ) )

17 DEPARTMENT OF DEVELOPMENTAL

)

SERVICES OF THE STATE OF

)

18 CALIFORNIA, FAIRVIEW

)

DEVELOPMENTAL CENTER, SOUTH

)

19 COAST REGIONAL PROJECT, HARBOR )

REGIONAL CENTER, REGIONAL CENTER)

20 OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL ) 21 LOS ANGELES REGIONAL CENTER, )

WESTSIDE REGIONAL CENTER,

)

22 DENNIS G. AMUNDSON, as Director )

of the DEPARTMENT OF DEVELOP- )

23 MENTAL SERVICES, STATE OF

)

CALIFORNIA, HUGH KOHLER, as

)

24 Executive Director of FAIRVIEW )

DEVELOPMENTAL CENTER, LILIA

)

25 TAN-FIGUEROA, M.D., as Medical )

Director of FAIRVIEW DEVELOP- )

26 MENTAL CENTER, DAWN LEMONDS, )

as Director of SOUTH COAST

)

27 REGIONAL PROJECT, and DOES 1 )

through 500, inclusive,

)

28

)

Defendants. )

No.: SACV97-219GLT(EEx) DECLARATION OF LOTS A. CISSELL
DATE: March 31, 1997 TIME: 3:30 p.m. DEPT: 2

1

I, LOIS A. CISSELL declare and say as follows:

2

1. The facts set forth in this declaration are from my own

personal knowledge. If called as a witness I could and would

competently testify thereto.

2. I am a Clinical Consultant in the Quality Assurance

Section of the Department of Developmental Services. Prior to

that, I was the assistant to the Executive Director at Agnews

Developmental Center. I was the Client's Rights Advocate for

seven years at Agnews. I have four years experience providing

10 direct services to consumers as a Rehabilitation Therapist. I

11 have been employed by the California Department of Developmental

12 Services, since September 1976. In my present position, I am

13 responsible for coordinating the entire Individual Program Plan

14 (IPP) process for Developmental Centers in the Department.

15

3. The basic concept of the Lanteiman Act (Welfare and

16 Institutions code sections 4500 et seq.) is that the program is

17 driven by the needs of the Developmentally Disabled individual

18 (DD). The DD individual or person(s) who has an interest in the

19 well being of the individual may participate in the program

20 planning process. When an individual comes into the system,

21 their needs are evaluated and a plan to meet those needs is

22 prepared (IPP). If at any time anyone believes that they have

23 legitimate concerns regarding any part of the treatment plan

24 (IPP) or lack thereof, he or she may raise those issues and be

25 heard.

26

a. An IPP is a document which is prepared jointly by

27

representatives of the Regional Center and/or

28

Developmental Center, the DD individual and/or the DD

1

individual's parents, guardian or conservator, and

2

other persons who have an important role in evaluating,

3

representing or serving the individual. The planning

4

effort is not a single even: or meeting, but a series

5

of discussions or interactions among a team of people

6

to decide what needs to be done, by whom, when, and how

7

to help the DD individual continue to build their

8

capacities and capabilities. In the normal course of

9

events, Regional Center planning meetings are held at

10

least every three years. Developmental Centers are

11

required to convene the IPP at least every year.

12

Individual Habilitation Plan, (IHP) is the Federal name

13

for the process with differences regarding team

14

composition. See 24 CFR 486.440].

15

b. The Interdisciplinary Team (ID,Team) is composed of

16

those individuals who are charged with the

17

responsibility of providing the services set forth in

18

the IPP.

19

c. The decision to place an individual in the

20

community is driven by the basic directives of the

21

Lanterman Act. The DD individual must receive services

22

' in order to help them reach the goals of the IPP in the

23

least restrictive environment available. A request to

24

move an individual into the community can be made by

25

anyone at any time. This concept is reinforced by

26

Welfare and Institutions code section 4800. Any

27

individual or person acting on their behalf may inform

28

any staff person of the facility in which the person

1

is, at the time, or any Regional Center employee of the

2

individual's desire to be released through a Writ of

3

Habeas Corpus. This will then move the process into

4

the judicial system.

5

d. When the request or decision to move an individual

6

into the community is made, it would necessarily be a

7

major change of the IPP. The IPP team would then be

8

convened to discuss this request or decision. The

9

policy of the Department is that these requests will be

10

responded to within 30 days. (The actual meeting of the

11

team may take place at a later date, depending on

12

notice and scheduling.) The Fairview procedure on the

13

regularly scheduled annual meetings of the IPP team

14

calls for 60 days notice to all concerned parties of

15

the date of the meeting.

i

16

e. In response to the decision of the IPP team to move

17

an individual into the community, several actions take

18

place. One of those is the exit conference which is

19

held to decide who will do what by when regarding the

20

provision of services to the individual in order to

21

assure a smooth transition into community placement.

22

' f. At any time, any person who has a legitimate

23

interest in the well being of any DD individual, may

24

question any action or lack thereof regarding the

25

individual in the process. Sections 4803 and 4700 et.

26

seq. of the Welfare and Institutions code contain

27

procedures whereby a DD individual or person on their

28 ///

///

1

behalf may raise these concerns. Since at the outset,

2

this is an informal process the issue of "standing" to

3

be an authorized representative is not in question.

4

Further, section 4710.8 (b) of the Welfare and

5

Institutions code makes it clear that it is the duty of

6

all parties who form the opinion that the individual

7

who has not designated an authorized representative,

8

will not be protected or advocated, to notify the local

9

area board and the service agency's client's rights

10

advocate to appoint an authorized representative for

11

the individual.

12

4. I declare under penalty of perjury that the foregoing is

13. true and correct.

14

Executed on March 26, 1997, at Sacramento, California.

15

16 LOIS A. CISSELL
17

18

19

20

21

22

23

24

25

26

27

28

 
 Richard S. v. Dept. of Developmental Sen/, of Cal.

MR-CA-004-016
DANIEL E. LUNGREN, Attorney General of the State of California
JOHN E. SANDERS, Supervising Deputy Attorney General
KAREN L. FRIED, State Bar No. 74420 Deputy Attorney General
300 S. Spring Street, 9th Floor-North Tower Los Angeles, California 90013 Telephone: (213) 897-2438
Attorney for Defendants, DEPARTMENT OF DEVELOPMENTAL SERVICES AND FAIRVIEW DEVELOPMENTAL CENTER

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 RICHARD S., CYNTHIA R.,

VALDINA R.( and ROES 1 through

13 800, individually and on behalf

of all those similarly situated

14 by WILLIAM CABLE, M.D., as

Guardian At Litem,

)

15

16

v.

Plaintiffs, ) )

17

)

DEPARTMENT OF DEVELOPMENTAL )

18 SERVICES OF THE STATE OF

)

CALIFORNIA, FAIRVIEW

)

19 DEVELOPMENTAL CENTER, SOUTH

)

COAST REGIONAL PROJECT, HARBOR )

20 REGIONAL CENTER, REGIONAL CENTER) OF ORANGE COUNTY, SAN DIEGO )

21 REGIONAL CENTER, SOUTH CENTRAL ) LOS ANGELES REGIONAL CENTER, )

22

WESTSIDE REGIONAL CENTER,

)

DENNIS G. AMUNDSON, as Director )

23

Of the DEPARTMENT OF DEVELOPMENTAL SERVICES, STATE OF

) )

24

CALIFORNIA, HUGH KOHLER, as Executive Director of FAIRVIEW

) )

25

DEVELOPMENTAL CENTER, LILIA TAN-FIGUEROA, M.D., as Medical

) )

26

Director of FAIRVIEW DEVELOPMENTAL CENTER, DAWN LEMONDS,

) )

27

as Director of SOUTH COAST REGIONAL PROJECT, and DOES 1

) )

28 through 500, inclusive,

)

Defendants. )

No.: SACV97-219GLT(EEx) DECLARATION OF ROBERTA A. MARLOWE. Ph.D.
DATE: March 31, 1997 TIME: 3:30 p.m. DEPT: 2

1

I, Roberta A. Marlowe, Ph.D., declare:

2

1. I am a sociologist currently employed by the State of

3 California, and if called to testify in this matter, I could and

4 would testify to the facts as set forth in this declaration.

5

2. I am Assistant Director of the Department of

6 Developmental Services, State of California, with responsibility

7 for strategic planning. A major portion of my responsibilities

8 is to manage the mortality studies for which the Department has

9 contracted and in other ways keep abreast of literature and

10 actions related to mortality among persons with developmental

11 disabilities in California.

12

3. I have worked for the State of California for more than

13 25 years, 18 of these years as an employee of this Department. I

14 have held a variety of positions for the State, all in the areas

15 of research, evaluation, and planning. I have designed and

16 conducted research or evaluation studies in the areas of aging,

17 mental illness, substance abuse, and developmental disabilities.

18 For eight years I headed the Office of Planning and Policy

19 Development in this Department, during which time I not only

20 conducted and supervised research but also directed the efforts

21 of those staff who abstracted and analyzed data from the

22 Department's various client databases, including the Client

23 Development Evaluation Report (CDER) and the Client Master File.

24

4. I received a bachelor's degree in Literature in 1960

25 from Reed College in Portland, Oregon and a doctorate in 26 Sociology in 1969 from Washington University in St. Louis, 27 Missouri. 28

2.

1

5. As manager for the Department's mortality studies, I am

2 aware of the controversy engendered by the publication or

3 dissemination of articles on mortality by Dr. David Strauss and

4 various colleagues. In essence the Strauss studies indicate that

5 mortality rates among persons with developmental disabilities who 6 are or have been served by this Department are higher for certain

7 persons who live in the community than for those who live in the

8 state institutions known as developmental centers. Furthermore,
9 the Strauss articles state that a major factor in these increased
10 chances of death in the community is likely to be inadequate 11 medical and other kinds of health care in the community.

12

6. As manager of the Department's mortality studies, and

13 as a sociologist with many years of experience conducting and

14 reviewing research in human services areas, I had occasion to

15 review the articles written by Dr. Strauss and his various

16 colleagues. Several things are clear to even an educated lay

17 reader of the Strauss articles on mortality:

18

(a) The two published articles present the results of

19

analyzing data stemming from the period 1980-1992, which may

20

not reflect current conditions.

21

(b) . The two published articles deal with mortality among

22

• severely disabled children age 0-14 and the whole population

23

of adults age 40 or more excluding those who have Down

24

Syndrome; the studies do not examine mortality among

25

children who are not categorized as "severely disabled" or

26

among people who are between the ages of 14 and 40. Both of

27

these are sizeable groups. To obtain an estimate of the

28

size of the population that was not included in the Strauss

3.

1

analyses, one can look at the current population. Among the

2

117, 539 persons served by the Department on January 7, 1997

3

for whom CDER data were available, some 56,250 people (48%

4

of the population) were between the ages of 15 and 39. This

5

means that, using age alone, nearly half of the population

6

of persons with developmental disabilities were not included

7

in the Strauss mortality studies. These people appear to be

8

less impaired than the older group that was studied by

9

Strauss: 97 percent were not technology dependent,

10

90 percent had something other than profound mental

11

retardation, and 80 percent had no discernable medical

12

problems. Similar results are found when one looks at the

13

children. Of 32,213 children age 13 or less, 96 percent

14

were not profoundly retarded, 94 percent were not classified

15

as technology dependent, and 79 percent had no medical

16

problems of any description. Using the most conservative

17

figure of people having no medical problems, it is likely

18

that at least 25,000 children without severe disabilities

19

were excluded from Strauss' analyses. Taken together, these

20

two groups -- persons aged 1 5 - 3 9 and children who are not

21

severely disabled -- comprise about 70 percent of the

22

i current population. There is no reason to believe that such

23

a proportion would have changed much over time. Therefore,

24

one can conclude that Strauss' mortality studies were based

25

on about 30 percent of the population served by this

26

Department. To the extent that these excluded groups were

27

less severely disabled than the groups studied by Strauss,

28

one would expect lower mortality rates. This could have

4.

1

dramatically changed the overall findings of Dr. Strauss'

2

mortality studies.

3

(c) While Dr. Strauss' articles state that the lack of

4

quality medical care in the community was a likely reason

5

for the higher community mortality, none of the articles,

6

published or unpublished, present any data to support this

7

hypothesis. Inadequate medical care may be related to the

8

mortality findings, but the Strauss studies can only

9

speculate about this factor.

10

(d) The Strauss studies do not provide any information

11

about the causes of deaths of the individuals included in

12

the studies, nor about whatever factors -- medical,

13

personal, environmental -- might have been associated with

14

or contributed to those deaths. The articles and the data

15

analyzed by Dr. Strauss and his colleagues are unable to

16

answer the all-important question of why the deaths

17

occurred.

18

7. In my capacity as manager of the mortality studies for

19 the Department, I have reviewed articles prepared by other

20 researchers pertaining to the Strauss studies. Several other

21 researchers have expressed reservations about various aspects of

22 the'Strauss mortality studies. Drs. Zaharia and O'Brien, in a

23 Readers' Reaction article responding to the Strauss study of

24 persons over 40 in the American Journal on Mental Retardation,

25 question whether the statistical model used by Strauss was the

26 correct one, given the kind of data that were available. They

27 also note that previous research has shown conflicting findings

28 on the issue of mortality and point out that "mortality rates may

5.

1 be so susceptible to many other factors, in addition to health

2 care, that conclusions drawn from aggregate or grouped data

3 cannot be easily extrapolated across settings." [See Exhibit C ]

4

8. Dr. Jane R. Mercer, Professor of Sociology Emerita from

5 the University of California at Riverside, testified at the

6 February 25, 1997, hearing held by the Senate Select Committee on

7 Developmental Disabilities and Mental Health. Dr. Strauss was

8 also present and provided testimony regarding his research. 9 Dr. Mercer has conducted research in the field of developmental 10 disabilities since the early 1960s and, as a long-time teacher of 11 research methods courses to both undergraduate and graduate 12 students, has a very down-to-earth, straight-forward way of 13 presenting complicated statistical and other concepts. At the 14 hearing, Dr. Mercer summarized the Strauss studies in language 15 that could be understood by non-statisticians, and made several IS important points. Dr. Mercer questions the way Strauss chose to 17 present and interpret his findings. She states, in the study of 18 adults, that one way of reporting the major finding:

19

" [I] s to say that the odds of dying in the community in any

given year are 72% higher than in an institution. At first

20

glance, these percentages appear large and ominous.

However, a percentage in the abstract has no meaning for

21

social policy. It must be translated into the terms of the

real world. . .. The above findings could just as well be

22 ' presented more positively. We could speak of the odds of

surviving in any given year. Based on Strauss' findings, if

23

the odds of surviving in an institution in any given year

are 99 in 100, the odds of surviving for the entire year in

24

a community care facility would be 98.3 in a 100."

25 Dr. Mercer does a similar analysis of the findings of the study

26 of severely disabled children, then points out that:

27

" [T] he purpose of this discussion is to emphasize the fact

that the actual, substantive differences in the risks for

28

persons with developmental disabilities living in

institutions compared to those living in their own homes or

6.

1

in community care facilities are very small...Thus is it

critical that we not over react or over interpret their

2

importance. They do not indicate a serious problem."

3 [Dr. Mercer's testimony and a follow-up letter containing

4 information she provided verbally at the hearing are included as

5 Exhibit D.]

6

9. Dr. Maureen S. Durkin, in an editorial in the edition

7 of the American Journal of Public Health that published the

8 Strauss study of children, makes several points about the study

9 and cautions against public policy changes based on studies such

10 as those of Dr. Strauss, which focus only on the narrow outcome

11 of mortality and neglect social integration and quality of life

12 outcomes. She states that:

13

"No advocate for children or for public health in general

would recommend institutionalization as a strategy for

14

reducing mortality in children without mental

deficiencies... [even if such a strategy would reduce

15

mortality by as much as 25%] ... We /would not recommend such

a course because the costs in terms of quality of life and

16

human rights would outweigh any reductions in mortality.

Should these considerations be any different for children

17

with mental retardation?" [See Exhibit E.]

18

10. Because the health and well-being of persons with

19 developmental disabilities is of paramount importance to the

2Q Department, the Department has taken several actions to emphasize

21 the importance of health care for the persons whom we serve.

22 First, stemming not only from the implications of the Strauss 23 studies but from information received from other sources over the 24 years, the Department has launched a "Wellness Initiative." In

25 conjunction with regional centers, other state departments, and 26 universities and colleges, this Initiative is designed to 27 increase access to high quality medical, dental and mental health 28 care for persons with developmental disabilities throughout

7.

1 California. [A summary of components of this initiative is

2 contained in Exhibit F.]

3

11. Second, because it is impossible to solve a problem

4 until it has been defined, the Department has contracted for a

5 study that will determine why people with developmental

6 disabilities were dying, whether any of those deaths were the

7 result of poor health care or other factors that could have been

8 remedied to avoid the death, and what kinds of individuals are at

9 greatest risk for death. The "Causes and Contributing Factors"

10 study is being conducted by the Department of Health and Human

11 Services at California State University - Sacramento. This study

12 will investigate mortality among all persons with developmental

13 disabilities who died during 1994, not just the young and the

14 older parts of the population. The study has two parts. In

15 part I, causes of death as reported on tjhe individuals' death

16 certificates will be examined to determine the most prevalent

17 causes of death for individuals of different ages, attributes and

18 living arrangements, and to identify whether mortality rates

19 differ for various sub-groups. Part II will involve collecting

20 additional data on each death from the records of regional

21 centers and other agencies. Once complete case files have been

22 obtained on all individuals, a panel of expert physicians and

23 epidemiologists will examine the death records and rate whether

24 any of the deaths were preventable or avoidable. Data from this

25 study will be used to identify any areas in which the service

26 delivery system could be improved to enhance the health and

27

28

8.

1 well-being of persons who are served by the Department, and to

2 identify risk factors which can be used in future social policy.

3

I declare under penalty of perjury under the laws of the

4 State of California that the foregoing is true and correct.

5

Executed on this #&

day of March 1997, at

6

, California.

7

8

Roberta A. Marlowe, Ph.D.

9

Assistant Director

Strategic Planning 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9.

EXfflBIT C

READERS' REACTIONS

Mortality: An Individual or Aggregate Variable?
E. S. Zaharia
Park Cicy, UT
Kevin O'Brien
East Carolina University

Because of our own research in the area (O'Brien, Tate, & Zaharia, 1991). we are particularly appreciative of the effort that went into the Strauss and Kastner (1996) study on the comparative mortality of individuals with mental retardation living in institutional and community seaings. However, we would like to raise some issues because of the volatility of feeling in this area and the tendency to polarize rapidly without adequate information or data.
As the authors suggested, this research must be replicated. Their findings of a 72% higher likelihood of mortality in California community settings than in institutional settings for those individuals with mental retardation over age 40 during the. period 1980 through 1992 should not automatically lead to a conclusion that we should return to a public policy of selective deinsiitutionalization. Additional support should be established for these findings before major policy changes are contemplated. Although we concur that the choice of the consumers and professional judgments should drive decision-making inthis arena wherever appropriate, we amplify Strauss and Kastner's (1996) cautionary note by suggesting that many more indicators than this one study in this one area of mortality should be considered (e.g., Conroy, Efthimiou, & Lemanowicz, 1982; Heller, 1934; Utzinger, Duvall, & Little, 1993)
All research published prior to Strauss and Kastner's (1996) study has indicated

that institutional mortality rates are higher than those found in community settings, even when severity of disability has been controlled (Eyman & Borthwick-Duffy, 1987; McCurley, MacKay, & Sally, 1972; Miller & Eyman, 1978). Results of some previous research has suggested comparable mortality rates in community and institutional placements (Eyman, Grossman, Tarjan, & Miller, 1987), but Strauss and Kastner are the first to suggest higher mortality rates among people with severs disabilities in community placements than in institutional placements.
There is an extensive and long-standing body of literature relative to mortality among people with mental retardation. A review of published studies in this area can be summarized by noting that the conclusion of most researchers in this area relative to community versus institutional death rateshas been that it is unlikely that placement plays a dominant role in survival, although access to services may have an impact (Eyman et al., 1987).
dearly, people with mental retardation seem to generally have a higher mortality rate than do individuals without mental retardation, and this differential rises with the increasing severity and incidence of disabling conditions no matter where they live (Eyman, Chaney, Lopez, & Lee, 1986; Eyman, Grossman, Chaney, & Call, 1990; Eyman, Grossman, Chancy, & Call, 1993). However, Kastner et al. (1993) and O'Brien « al. (1991) have suggested that mortality

424 ©American Association on Mental Retardation

rates among people with mental rearda- lion maintains that the only set of risk

tion could be.'ou/cr than chat among people factors or variables of import for predicting

in the general population. There is also the event are those most recently mea-

some suggestion that mortality rates in this sured st the last period anniversary. All

group have betn (and can be) modified prior life-event history is irrelevant, par-

and improved over time (Carter & Jancar, ticularly cumulative exposures that affec:

1983; O'Brien et ai., 1991). The ne: result, risk over time. The assumption that a

for those interesced in this area as public person's previous life history (previous

policy, is that morality rates may be so placements, health a r e events, abuse or

susceptible to many other factors, in addi- neglect, quality of life) is irrelevant is a

tion to health a r e , that conclusions drawn strong one that needs to be closely exam-

from aggregate or grouped daca cannot be ined. If this assumption does not com-

easily extrapolated across sellings.

pletely hold, then there may be less

information for modeling risk than that

Methodological Concerns

indicated by the number of person years. In addition, this assumption places a heavy

burden on the covariate set to be complete

Our addicional caveats center around the and unchanging over time, in the sense of

methodological and statistical aspects of including or removing variables. The fact

this srudy. The pooled observations method that individuals changed living situations

used by Scrauss and Kastner (1990 was possibly several times during the interval,

described in Cupples. D'Agostino, Ander- dropped from being at risk by leaving the

son, and Kannei (1988). The method was system, and possibly returned to again be

initially used to investigate risk or heart disease in the Frsmingham study, which had special data requirements due to biennial examinations. Covariate or risk factor profiles (e.g., blood pressure, cholesterol) often change over time in a longitudinal cohort study. Incorporating the changes in these covariates within an analysis was an obvious need because the updated vaiues might be more predictive of the event of interest. The method employs person-time exposure units, which are used in most studies of rates. The periodic evaluations are assumed to take place essentially at the same time for each period. Information on each individual under study contributes to a data file, a number of person-time units equivalent to.the number of periods they are followed. For example, 10 subjects each followed for 5 yearly periods contribute 50 person years to a file. The logistic regression analysis based on person-time units, as used by Strauss and Kastner(1996), requires some fairly strong assumptions for its validity.
The first of these is a Markov assumption regarding the periodic covariates and the outcome being studied. This assump-

at risk adds to the uncertainty of what results apply to which living conditions. Yet the Markov assumption states that only the final placement before a death matters.
The second assumption of the pooled riskobservation method is that the process governing the occurrence of the events is time homogeneous. This assumption implies that the risk of an event has not changed over time. For example, a 20year-oid individual with a certain risk profile in 1990 would have the same chance of dying as would a 20-year-oid with thesame risk profile in 1980. The assumption that the period from 1980 to 1992 was an undisturbed era of continuous and unvarying treatment, monitoring, and system capacity is one that can be challenged by those familiar with the world of mental retardation. The failure of this assumption would result in a masking of changes in risk (effect attenuation through averaging over periods) brought about by interventions or changes in care during the interval under study, unless, of course, these changes were recorded in the covariate profile.

Readers' Reactions 425

The third assumption states that the assumptions require dose examination.

relations between the risk factors and the The implementation of the method by

mortality process have remained constant Strauss and Kastner (1996) is not well-

over the time interval examined. This latter documented and leaves several important

assumption is plausible because icrypicaily questions unanswered. The authors did

relates to biological/physiological relations. provide ample references and explained

The pooled risk observation tech- the relation of the method to other statisti-

nique combines the person-time observa- cal approaches. However, they did not

tions into an analysis of mortality risk for describe information regarding the spe-

an interval of time equal co the length of cific application to the data.

the periodic examination interval. In the Strauss and Kastner study (1996), this period is 1 year. It may well be that the higher adjusted mortality in community settings holds for each of the 12 years in the study interval or that higher adjusted mortality holds for some years and not others. Did the authors look at any period effeca, for example, by dividing the study period into two or three segments? These concerns relate to the second assumption delineated previously.

There was no discussion as to how the recoding of the many ordinal variables related to function and mobility might impact the statistical adjustment of the four groups. For example, would recoding the highest function/mobility levels to lower, more moderate levels on the scale have no impac? The percentage distributions of Tables 2 and 3 in the Strauss and Kastner (1996) article indicate that individuals in the community and home placements tended to score at the higher (highest)

The question of long-term mortality was not addressed. Movement from institutional care to placement in the community may be stressful and riskier over a short period of adjustment, but the longterm survival might acually be improved. This possibility was not considered by Strauss and Kastner (1996).
The analysis method employed by Strauss and Kastner was a specific case of model strategies proposed by Wu and Ware (1979). The m«hod is, within this class of models, the model with the least parameters and the model requiring the strangest assumptions about the data. There are intermediate models within this class that would not have required all of the previously stated assumptions and would actually serve as a means of examining the assumptions. These intermediate models would have greatly added to an understanding of the mortality dynamics for the population studied. Furthermore, the added information would have been especially helpful for public policymakers given the volatility of this issue.
Although the pooled risk observations strategy is an accepted analytic approach for longitudinal cohort data, its

leveis on these variables. Collapsing or combining categories under these conditions could remove important differences among the groups, especially when covariate adjustment is to be employed in making the groups statistically comparable.
In lieu of the fact that the crude rates for institutions and community placements were virtually identical (1.8 vs. 1.6 per 100 in Strauss and Kastner's, 1996, Table 2). it is not surprising that 'adjustment* for differences for several medical and functional variables would lead to an adjusted rate favorable to institutions. The most pertinent question is whether the rates for institutions were lower than those for the community placements under all conditions. Are there situations where equality of rates existed or where community rates were lower? The model offered by Strauss and Kastner makes no allowances for such possibilities. The formulation of cheir model allows only for the institutional rates to be lower in all conditions. This result may well be the case, but no relevant information is provided because the authors omitted important modeling strategies that would have clarified this issue. Statements defining an "initial" mode! were never given. Whatlevel

426 AJMR. Volume 101. No. 4

cf interactions were considered, especially used is that they do net match the format

interactions with piaccmer.c? Indicationsor* for which the pooled risk observacions was

how well che final mode!, noced in Strauss developed. The method, as oudined by Wu

and Kastner's Table 3. fie to the data were and Ware (1979) and Cupples et ai. (1988),

not provided. The authors reported that was designed for longitudinal data col-

this model fit the data and that they exam- lected from a cohort of individuals on a

ined a goodness or fit test, but they did not periodic basis. Scrauss and Kastner (1996)

reveal the value or degrees of freedom. stated that their data do not meet this

Why did they not provide a deviance able format. Their description of their data dees

(see, for example, Frome & Checkoway, not fit any particular epidemiological de-

1985) for the set of hierarchical models sign. Some individuals were followed lon-

they fie' Such a able would have provided gitudinally, some were not; some were in

a great deal of information on the models che risk set during one interval, out during

and how well they fit. Had the authors another, and then back again later. We

categorized age in che modeling, as in wonder whether chere was a subset of che

Table 2, assessment of fit would have been database (like che 92% who contributed

improved (Breslow & Day, 1987). This consecutive person years) chat would have

information would have been useful to more doseiy met the data strucure for

readers wanting to issass not only how which chese models were developed. In

accurately the tncdeis fit, but also how addition, chose records with consecutive

model dependent the primary result years of foilow-up could have been used to

might be.

study intervals of survival longer than a

single year. Reporting chat standard variable se-

lection methods were used is somewhat

We dislike questioning what Strauss

vague, when in che same number of words and Kastner (1996) did and why they did it,

the exact technique could have been stated. but unless specific statements describing

The initial pool of variables is never de- che procedures are provided, readers must

scribed with regard to this issue. Cohen be encouraged to question what was done.

(1991) has demonstrated that unless a Although no one of the aforementioned

separate dummy variable is coded for each concerns necessarily invalidates their find-

level of a categorical variable, problems ings, the incomplete reporting does re-

can arise in forward stepwise variable se- quire that we suggest these caveats

lection methods. Strauss and Kastner (1996) regarding che results and che conclusions.

were aiso vague with regard to examina-

The California database on which che

tion of the time homogeneity and che Strauss and Kastner (1996) study is based

Markov assumptions.

is complex. The information it contains

As a final comment on Strauss and was gathered outside che format of any

Kastner's (1996) incomplete reporting, we particular epidemiological design. There is

note that they never stated the number of possible clustering due to the various place-

deaths nor why chere were two age coeffi- ments as well as movement among the

cients in Table 3. one for males and a several placements. The statistical analysis

second for females. Was the age effect offered by Strauss and Kastner is just one

stratified in the modeling and. if so. why? of several possible analyses, and it requires

Further, what did they mean by noting that strong assumptions about che dynamics of

che odds ratios had a 'nonintuitive' mean- mortality. There is a compelling need, there-

ing? Why, for example, did they not stratify fore, to examine chese same data with

,on che age or self-help variable and pro- different models and methods that would

duce models in which the interaction and address issues regarding che Markov as-

che nonincuitive odds would have been sumption, short-term as well as long-term

eliminated?

survival, and other trends in mortaiicy that

A problematic feature of the data might have existed.

Re=det3' Resctionj 427

Conclusion

survival and general health care (e.g., community hospital bioechics committees are

Additional studies nesd to be conducted more likely/less likely to authorize Do Not

noc only from the California data, which Resuscitate orders than are corresponding

has received extensive examination over committees in institutions.)

the past few decades, but in other sure

As a maner of good public policy,

service-delivery systems. We hope that state service delivery systems, whose gov-

these additional studies can be conduced erning bodies have been scrutinizing the

by the epidemiological establishment, as deaths of people living in institutions in

weil as those in the mental retardation order to improve the quality of health care

field, in order to ensure cbjecuvity. If there by focusing on learning from preventable

are emerging trends in survival rates for deaths, should be doing no less in publicly

those now living in community sellings, as funded out-of-home community place-

a matter of public policy, we need to know ments. Results of a recent survey of all SO

for certain who is (and is not) susceptible state directors of mental retardation ser-

to the effects. For example, by omission vices in which they were queried about

one might assume from Strauss and their mortality review policies (Zaharia,

Kastner's (1996) study that those individu- 1996) suggest that only a third of the sates

als under age 40 but over 14 (Strauss, have formalized mortality revieworreport-

Eyman, & Grossman, 1996) in the Califor- ing requirements of their community resi-

nia database are not dying at extraordinar- dences. AJl have, in one form or another,

ily high rates in community settings.

formalized reporting or reviewing proce-

Given the strong assumptions associated with the pooled risk observation method and the fact that the data did not exacdy match the format required for this method, the rationale behind the authors' choice to use this technique is unclear, particularly because it is somewhat uncommon. It is puzzling that for such a critical investigation the authors employed this method without confirmation from more widely used analyses. We wonder

dures for their state-operated facilities. Further, this has not substantially unproved over the past decade from previous similar surveys (Parker, 1987). Every state should be monitoring deaths and reviewing preventable deaths in order to preemptively intervene with potential trends, such as those suggested by Strauss and Kastner's (1996) study. Even if this trend is not there, public policymakers need to be vigilant against its potential emergence.

why a subse: of the database chat would

have me: the requirements of a longitudi- References
nal analysis or some intermediate Wu-

Ware model was not identified and used to Breslow, N. £ . &Day, N. E. (1987% Statistical

confirm or clarify the results. We urge

methods in cancer research: Volume 11—

Strauss and Kastner to revisit the same

The design and analysis of cohort studies.

database and do so.

lyon, France: International Agency on Can-

The access to services and/or quality ofiservices issues that may be contributing factors to survival will need to be identified in order to suggest appropriate public policy (e.g., managed care services do/do not support people with disaoilities well). Public bioethic debates about the value of

cer Research. Carter, C * Jancar, J, (1983). Mortality in the
mentally handicapped: A 50 year survey si the Stokes Park Hospitals. 1920-1980. Journal of Mental Deficiency Research, 27,143-156. Cohen, E. B. (1991). Dummy variables in jtepwise-regression. TheAmerican Statistician. 45. 226-228.

heroic medial interventions for people Conroy, J., Efthimiou, J., 4 Lcmaaowicz. J.

with mental retardation (Post, 1985; Loewy,

(1982). A matched comparison of the devel-

1987; Lusthaus, 1985) ne-d to be probed to determine the contributions they make to

opmental growth of institutionalized and deinstituiionalized clients. American Jour-

•<23 A/MX. Volume 101. No. 4

nal ofMental Deficiency. 36. 581-50*7.

mental retardation as less than human.

Cuppics. L A.. D'Agostino, R. B- Anderson.

Mental Xeturdutuui. ^J, NH-15-t.

K.. &. Kanncl, W. a. (1988). Comparison of Locivy, E. H. (1987). Treatment decisions in

baseline and repeated measures covanate

the mentally impaired. Setu EnglandJournal

techniques in the Framingham heart study.

of Medicine, 317. 1465-M68.

Statistics in Medicine, 7, 205-218. ' • McCurley, R.. MacKay, D. N., 4 Scally, B. G.

Eyman, R. K.. 4 Borthwick-Duffy, 5. A. (1987).Prediction of morality in community

(1972). The life e.tpeciation of the mentally subnormal under community and hospital

and institutional settings. Journal of Mental Deficiency Research. 32. 203-213Eyrnan, R. IC, Chancy, C A-. Lopez. E. G.. 4 Lee. C X. (1986)..Medical conditions underlying increasing mortality of institutionalized persons with mental retardation. MentalRe' tardatton, 24. 301—306. Eyman. R. JT_ Grossman. H. J- Chancy, R. H.. 4 Call. T. L, (1990). The life especuncy of profoundly handicapped people with mental retardation. Hew EnglandJournal of Medicine. 9. 534-539.

care. Journal of Mental Deficiency Research, 76". 57-56.
Miller. C 4 Eyman. R. K. (1978). Hospital and community mortality rates among the retarded. Journal of Mental Deficiency Research. 22. 137-145.
O'Brien, IC F., Tate, JO, 4 Zaharia. E. S. (1991)- Mortality in a large southeastern facility for persons with mental retardation. American Journal of Mental Retardation, 95.397-403.
Parker, S. (1987). Recommendations for a

Eyman, R- I C Grossman. H. J - Chancy, R. H.. 4 Call. T. U (1993). Survival of profoundly disabled people with severe mental retardation. American Journal of Diseases of Children. 147. 329-336.
Eymaru S. K., Grossman. H. J- Tarjan. G.. A Miller. C R. (1987). life espec:ancy and mental retardation. Washington. OC Amenczn Association on Mental Retardation.
Fost. X. C (1985). Ethical issues in the care of handicapped, chronically ill. and dying children. PediatnainRevtew. 6. 291-296.
Frorae, E. 1_. 4 Chedtoway, H. (1985). Epidemiologicai programs for computer and caI culators. A mencan Journal ofEpidemiology. 121.309-319.
Heiler. T. (1984). Issues in adjustment of mentally retarded individuals to residential relocation. International ReviewofResearch in Mental Retardation. 12. 123-147.
Kascner. T., .Vathaasoa, R_ St Friedman. D. (1993). Moruiity in persons with mental retardation living in the community. Amencan Journal of Mental Retardation, 98, 285-

statewide mortality revtew system (Report to the Conr*ecticut Department of Mental Retardation). King of Prussia, PA.- Columbus Medical Services. Strauss, D-, Eyman. R. if_ 4 Grossman. H. J. (1996). Taeprediction of mortality in cbildim tttth severe mental retardation; The e/fec: of placement. Unpublished manuscript. University of California, Riverside. Strauss. D - 4 Kastner, T. A. (1996). Com* parative momliry of people with mental retardation in institutions and the community. American Journal of Mental Retardation. 101.26-40... Wu. M- & Ware, J.'H. (1979). On the use of repeated measurements in regression analysis with dichotomous response. Biometrics, 35. 513-521. Zaharia, E. S. (1996). Literature review and national report on mortality review processes (Report to the California Department of Developmental Services). King of Prussia, PA; Columbus Medical Services.

292. Ltainger, M.J^OmiL B^ 4 little. P. (1993).
Movernent or" individuals with epilepsy from an institution into the communiry./tnuncan Journal on Mental Retardation, i?5(SuppL),

Bothauthors haveaconraimive relationship with che California Department o/Devetopmeatai Services and Columbus Medical Jerries. This article, however, does not represent the opinion or the position of either ageacv. Opinions ex-

52-57.

pressed herein are those of the authors alone.

Luathaua, E. W. (1985). Involuntary euthana- Requestsfarreprints shouldbeicatto EricZaharia, sia and current attempts to define persons 8010 Juniper Dr.,Park Cry, UTS4098.

Readers' Reactions 429

EXfflBIT D

Testirnorry of Jane R. Mercer, Ph.D., Professor of Sociology, Emerita
. University of California, Riverside Before the
California Senate Special Committee on Developmental Disabilities and Mental Health Senator Mike Thompson, Chair Tuesday, February 25, 1997 Sacramento, California
There are two recent articles written by David Strauss and his colleagues published in • recognized journals that examine mortality rates for persons with developmental disabilities living in institutions as compared with similar persons living in their own homes or in community care facilities (Strauss and Kastner, 1996; Strauss, Eyman, and Grossman, 1996). I have been asked to comment oa the scesrific merit of the research reported in those articles and the implications of the reported findings for public policy in the State of California.
Both research projects use similar research designs and statistical procedures. Both use similar scales for measuring functional deficits. Both are based on th"e same massive data set, the Client Development Evaluation Report (CDER) maintained by the California Department of ' ' Developmental Services (DDS) on each. cHeat served. Both utilize sophisticated statistical procedures that are widely recognized in the scientific community. Both reach similar conclusions. Both projects represent tremendous effoa and ingenuity and, in my opinion, merit our careful consideration.
One project examines differential mortality rates for 13,362 adults over 40 years of age who received services from the DDS bcween January 1980 and December 1992. The other examines differential mortality rates for 7241 children with severe developmental disabilities between 2 and 14 years of age who were served by DDS between January 1,1980 and December 31,1992. However, the unit of analysis in these studies is not the individual client It is individual "person-year," defined as each complete year in which each of these clients was served by DDS for which a complete record of that year appears in the CDER. Hence, findings for the study of adults are based on 105,099 person-years of DDS experience. Those for children are based on 24,465 person-years of DDS experience.

These huge samples of person-years make it possible to control statistically for more characteristics of individual clients than was possible in earlier studies based on smaller samples. These gargantuan samples greatly enhance the power of the analysis. Just as the Hubble telescope makes it possible to reliably detec: ever more distant galaxies, large samples make it possible to reliably detect ever smaller distincions between groups.

Earlier studies controlling for fewer client characteristics either found no differences

between monaiity rates for clients living in the community and those living in insuturions (Eyman,

Grossman, Tarjan, & Miller, 1987) or found differences favoring the community (Eyman &

Borthwick-Duffy, 1987). The studies by Strauss and bis colleagues have attracted widespread

attention because they, for the first time, detect small differences in mortality rates that favor

institutional placement.

: _

We turn now to a summary of the findings. For adults 40jnd-over, the investigators report that the odds ratio of dying in any given year for ciieats4iving in, institutions when compared with community care is .53. This ratio means that the odds of dying in an institution in any given person-year are 42% lower than in the community (1.00 - .58). Another way of reporting the same finding is to say that the odds of dying in the community in any given year are 72% higher than in an institution (.42A58).

Ax first glance, these percentages appear large and ominous. However, a percentage in the abstract has no meaning for social policy. It must be translated into the terms of the real world. To interpret the social significance of these percentages, we must deal with actual mortality rates. In terms of actual mortality rates, if the probability of dying in an institution in any given person year is 1 per 100, the probability of dying in community care would be 1.72 per 100. If the risk of dying in an institution is 2 per 100, then the risk in the community would be 3.44 per 100. The actual size of the increase depends upon the size of the base mortality rate. Since the base mortality rates are quite low, the increase in risk is, substantively, quite small.

The above findings could jus: as well be presented more positively. We could speak of the odds of surviving in any given year. Based on Strauss' findings, if the odds of surviving in an institution in any given year are 99 in 100, the odds of surviving for the entire year in a community care facility would be 98.58 in a 100.
Figure 2 in their article provides us with specific information that presents the same findings graphically. The authors have divided the 105,099 person years into eight groups containing equal numbers of deaths and ranked by level of risk from low to high. They present the mortality rates for clients living in community care and in institutions for each of the eight risk groups. Although it is difficult to read precise rates from the chart, it appears that community
i.'
mortality rates average about 1.3 points higher than those in institutions. This difference is constant even for the high risk groups which have, overall, a mortality rate that is 4 to 6 times higher than that for lower risk groups.
We turn now to the study of children with severe mental retardation. The investigators used the rates for children living with their own families as the reference group and compared them with other placements. They found no difference in mortality rates comparing children living with their own families and those living in community care or in health facilities. They did find that children in institutions had a lower mortality rare than those living with their own families. The odds ratio of .81 corresponded with a 19% reducaon in mortality odds for those living in an institution as compared with those living at home (1.0 -.81). Stated in another way, there is an increase of 23% in the probability of dying in any given year for those living at home as compared to those in an institution (.19/.S1).

Again, we must ask, "Whir is the ££2£l size of this difference?" If chances of dyina in an institution are 1 per 100 in any given year, the chances of dying for similar persons living a: home are 1.23 per 100; if they are 2 per 100 in an institution they are 2.46 per 100 in own home. Or, stated in terms of survival, if chances of surviving through any given year are 99 in 100 in an institution then chances of surviving whiie living at home would be 98.81 per 100; if they are 98 in 100 in an institution, they would be estimated as 97.54 per 100 living at home, and so forth..
The purpose of this discussion is to emphasize the fee: that the aerial, differences in risks for persons with developmental disabilities living in institutions compared to those living their own homes or in community care facilines are very smalL They are so small thai they could not eves be detected in earlier, less powerful studies. Thus, it is critical that we not over react or over interpret their importance. They do not indicate a serious problem.
In both articles, Strauss and his colleagues speculate that less access to medical care may be a factor explaining the slightly higher rates of deathfor personsjiving in their own homes and in community care facilities. However, their studies present ncyinformation on access to medical care and no measures of quality of medical care. They present no evidence that differential access to medical care is "causing" the differences in mortality rates. At this point, differential access to medical care is simply a hypothesis, not a finding — a hypothesis worthy of further research but not worthy of precipitate social acaon.
There are many factors that could be producing somewhat elevated mortality rates in the community. Each time we drive on a freeway, visit the maQ, eat in a restaurant, fly on an airplane, attend a ball game, go to school, or attend church we are increasing our risk of dying on that particular day over what it would have been if we had remained cloistered in our homes. We know we are risking accidental death, exposure to infectious disease, the possibility of homicide and all the other hazards of living when we participate b the community. We do not know the exact size of the risks we are taking but we know the/ are real. Nevertheless, we continue to drive on freeways, fly in airplanes, and visit the mall because we judge that the pleasure and

benefits we derive from participating in sociscy are worth the risk. We are unwilling to live in a bubble or to live, like Howard Huehes, sequestered in a hospital room. Is it any different for persons with developmental disabilities?
Maureen S. Duxkin wrote an editorial comment published by the Journal of Public TrTeaith. in response to the Strauss article published in that journal (Durkin, 1996). I conclude my remarks by quoting from her editorial:
The (Strauss) study negleca social integration and quality of life, outcomes more difficult to measure and hard to came by, but perhaps no less important (than mortality). No advocate for child or for public health in general would recommend instnutionalizarion as a strategy for reducing mortality in children 'without mental deSciencies. Yes it is not implausible that a strategy invorvmgrestricnon of environment and opportunity as ^ ... severe as institutional placement could reduce mortality by as much as 25% * or more in all children. We would not recommend such a course because the costs in terms of quality of life and human rigbs§ "would outweigh any reducaonin mortality. Should these considerations be^any different for children whh mental retardation?
References
Durkin, M. S. (1996) Editorial: Beyond mortality—Residential placeent and quality of life among children with mental retardarioa American Journal ofPuhlic Health, vol. 86, No. 10,1359-1360.
Eyman, R. K., & Borthwick-DuSy, S. A. (1937) Prediction of mortality in community and institutional settings. Jpumal ofMental Deflcfency Research 32,203-213.
Eyman, R. K,, Grossman, H. J.t Tarjan, G., & Miller, C. R. (1987) I-ifc expectancy and mental retardation. Washington, D.C.; American Association on Mental Retardation.
Strauss, D. & Kastner, T.A (1996) Comparative mortality of people whh mental retardation in insthutians and the community. Ajnerican roumal ofMental Retardation. VoL 101, No. 1,26-40.
Strauss, D., Eyman R., & Grossman, H. J. (1966) Predictors of mortality in children with severe mental retardation: The effect of placement. Ajnerican Journal of P'.IMTC T4«?alth. Vol. 86, No. 10, October, 1422-1429.
5

Comm. C-ITB
Insstution

Lowes

3 4 5 6. 7 8
Highest Risk
Ociiles of Risk

Figure 2. Mortality rates for community care and for institutions within risk octiles. (Using community care as referent population, we directly standardized institution rstes). Note that the finding of a 72% increase in mortality in the community refers to the ratio of the odds of dying in a given year. Although the ratios of community to institutional rates appear to vary across the eight groups in the figure, there is no suggestion of any systematic trends in these ratios. As explained in the Appendix, it is not appropriate to base statistical tests or confidence intervals on the results of Figure 2; such procedures are more properly applied to the logistic model itself (Table 4).

University of California, Riverside Department of Sociology Riverside. CA 9252 f
MarchZ. 1997
Dennis G. Amundson, Director Department of Developmental Services 1600 9th Street Sacramento, CA 95314
Dear Mr. Amundson:
This letter is in response to a request that I received from your staff asking me to review the manuscript "Mortality in Persons with Developmental Disabilities After Release Into Community Care" co-authored by David Strauss, Robert Shavelle, and Alfred Baumeister. This manuscript is currently being reviewed for publication by the American Journal of Public Health. It is highly irregular for papers undergoing peer review to be circulated to the public and, under ordinary circumstances, it would be inappropriate for me to comment on such a draft manuscript. However, the highly inflammatory article in the San Francisco Chronicle on February 25, 1997 authored by Edward W. Lempinen cited findings reported in this manuscript. Hence, the manuscript is already a public document which frees me to provide you with my independent evaluation. The Research Question
The research question as stated by the authors is, "Has the release of persons with developmental disabilities from state institutions into the community since April, 1993 been accompanied by a change in mortality rates?" Research Methods
Although the authors convey the impression that their study compares the mortality rate for "mover's" with that for "stayers" by presenting a detailed comparison of the characteristics of "movers" vs "stayers" in Table 2, this is not.the comparison they make in their analysis. Rather the authors compare the mortality rate for "movers" (the outplaced group of 1,878 clients released from state developmental centers between April 1993 and December 1995) with the mortality rate for 9,572 clients in institutions 1987 through 1993.
There is one serious problem with this design — the samples are not independent.. The "movers" were still in institutions during the base period and comprised about 20% of the

population on which the institutional mortality rates were calculated. They, of course, were survivors or they would not have been available for placement. To complicate matters funher, the 7 year baseline period overlaps the period during which releases were being made by about 9 months. Approximately 530 individuals were released during the 9 months of overlap. The authors do not tell us how they handled this anomaly. It is hard to know what effect, if any, this cross-contamination of the samples may have had on the outcome. The analysis would have been much cleaner if the authors had directly compared mortality rates for "movers" with that for "stayers" during the 32 month period following the Coffeit decision.
The authors state that roughly equal numbers were released each month during the 32 month period, i.e. approximately 59 persons per month. Length of exposure to risk of dying in the community was based on the time from release until the end of the study or until death. The 59 persons released the first month would have 32 months of exposure to risk while the 59 persons released in the last month would have only one month of exposure to risk. These are verv short term predictions for an event as infrequent as death. The authors do not explain how they treated fractions of person-years.
The authors present two sets of findings, with and without cancer patients in the sample. They argue that cancer patients should be excluded because clients with diagnosed cancer are typically not placed in the community and this selective placement artificially decreases the community mortality rate compared to the institutional rate. One difficulty with this line of reasoning is that there are many factors taken into consideration when clients are selected for placement, faaors which may also influence mortality. The impossibility of controlling for such factors, one-by-one, is precisely why statistical controls for tube feeding, motor skills, and selfhelp skills are used as unbiased indicators of physical status. It is a questionable practice for investigators, after looking at the data, to selectively eliminate variables in order to modify their findings in a pre-determined direction. It is my opinion that the findings based on the entire sample arethe most valid. Statistical Procedures
To estimate the "expected number of deaths" in the mover population, the authors developed a statistical model based on mortality rates for persons living in developmental centers ' between January 1, 1987 and December 31, 1993. During these 7 years there were 760 deaths. The 9,572 clients yielded 47,307 person-years of data., defined as each complete year in which

each of these clients was served by DDS. The model selected for calculating "expected" mortality rates included controls for age. gender, tube feeding, motor skills, and self-help skills. The rates yielded by this model "were then applied to the exposure time for the community group, resulting in an expected number of community deaths on the basis of institution rates." In this analysis the authors use statistical models and procedures that are standard in the field of epidemiological studies. Findings
1. Have mortality rates changed ? Their answer is "Yes" and my answer is "No." It depends upon what you mean by "change." The authors conclude that mortality rates "changed" because community rates after the Coflfelt decision are higher than institutional rates. The authors assume that the institutional mortality rate for the 7 year period represents the rate the "movers" would have experienced if they had remained in an institution. That institutional mortality rate was 11.7 per 1000 (Table 3). There were 45 movers who died during the 32 months (2552 person-years) following placement in the community, a mortality rate of 17.6 per 1000 per person-year C45/2552). This means the community rate is 50% higher (17.6/11.7) than the institutional mortality rate (p<.05). The authors interpret the 50% higher rate as a "change" in rate.
Looked at from a different perspective, the mortality rate in the community did not change. In his two earlier papers, Strauss reported that community mortality rates for some types of placements were 23% higher for children and 72% higher for adults over 40 th?n institutional rates. These differences are based on data going back as far as 1980. The 50% increase in mortality rates over institutional rates found for the Coffelt sample falls mid-way between the two historic rates. The ratio between community and institutional rates has been surprisingly stable. There is no evidence of catastrophic increases following the Coflfelt decision.
Table 3 in their paper provides a more detailed look at their findings. When "movers" are grouped by year of release, the 1993 releases have a mortality rate 26% higher and the 1994 releases have a mortality rate 48% higher than the institutional rate for comparable persons but neither of these differences are statistically significant. The 1995 releases have a mortality rate 112% higher than the institutional rate and that is significantly higher, p <.O5. In short, the mortality rate for the approximately 700 persons who had been in the community less than a year,

many of them for only a couple months, was significantly higher than the institutional rate but rates for those who had been in the community longer were not significantly higher. It appears that the significantly higher rate for the entire sample may be an artifact of the higher rates in the 1995 cohort which contains persons who have been in the community less than one year.
2. Are short-term mortality risks for "movers" greater than long-term mortality risks?
Their answer is uYes." In Table 4, the authors group the 45 observed deaths according to the length of time between placement and death. They found that 10 persons had died within 60 days of placement. Only 4 persons would have been expected to die such a short time after placement if the deaths had been equally spaced across the 32 months. They conclude that the risk of death for movers is significantly higher immediately following placement than it is after the first 60 days in the community.
This is probably the most interesting and useful finding in their study. It replicates the findings of Dingman, Eyman, Tarjan and other researchers at Pacific State Hospital in the 1970's who found increased mortality among mentally retarded patients immediately after they had been moved from one hospital to another in order to alleviate overcrowding. The authors refer to it as the "relocation syndrome." It is possible that reduction in the trauma of relocation might reduce short-term mortality rates. This finding does have implications for social policy.
3. Are mortality risks greater for lower functioning than higher functioning persons?
Their answer is, uNo." Using their statistical model, Strauss and his colleagues calculate the number of deaths that would have been "expected" in the "mover" group if they had remained in an institution. They conclude that 30 deaths would have been "expected" while 45 deaths were, in fact, observed — a difference of 15 deaths.fTable 5). Unfortunately, they do not present similar predictions for the 5437 persons who stayed in an institution. There were 384 deaths among the "stayers." If the author had included the other half of Table 5, it would have placed their findings in a broader context and perhaps prevented the wild misinterpretation of their findings which appeared in the Chronicle.
The authors grouped the 45 deaths into four categories by level of functioning and calculated the expected number of deaths in each category based on institutional rates for comparable subjects. They found no significant differences. Persons with poor motor and self-

help skills did not have higher rates of monality than persons in relatively good physical condirion. This rinding seems to contradict Strauss' hypothesis that poorer medical care in the community than in institutions is probably the major factor causing higher monality rates in the community. If such were the case, we would expect persons with the greatest need for medical care to suffer the most from inadequate medical care and to have significantly higher mortality rates. That did not happen. Critique:
The statistical procedures used in the paper are standard epidemiological models widely used in similar studies. The date file is the CDER collected by the Department of Developmental Services. I have no quarrel with either. I believe the design is flawed by the non-independence of the samples but doubt that this irregularity had any major effect on the findings.
I have three major criticisms of the paper. The first has to do with the adversarial tone of this article as well as the other two articles. The authors keep pushing their hypothesis that monality rate differences reflect poorer access to medical care in the community. Unfortunately, naive readers, such as Lempinen, are lead to believe that their hypothesis is a "finding" when, in fact, they present absolutely no data on medical care. I believe that the adversarial stance they assume partially explains mis-interpretations of their findings by the general public.
The second criticism has to do with the wisdom of predicting a specific number of deaths over such a short period of time when the numbers are so small. Epidemiological studies provide rates for populations not for individuals. Those rates tend to be more stable when populations are large and predictions are long-term. The predictions made in this study are for a relatively small population (2552 person years), a very short period of time, and yield very small numbers.. Mortality rates for approximately 700 persons (those released in 1995) must have been based on less than one year in the community. Not surprisingly, the 95% confidence interval for the standardized mortality rates for 1995 releases is much larger (indicating more variability) for this sub-group than that for the 1993 and 1994 subgroups. Furthermore, Strauss found higher mortality rates immediately following placement, a finding that would tend to inflate rates in a short-term study. Hence, I think the findings should be treated cautiously until confirmed over a longer period of time.

My third criticism is related to the second. "Death", especially the death of a family member, is a highly emotional event. Tables 4 and 5 compare "expected" deaths (30) with "observed" deaths (45) without error terms, without explaining that the predictions are for populations and not individuals, and without cautionary comments about the hazards of shortterm, statistical prediction.. They do not present comparable data for the "stayers." It was inevitable that lay persons would not comprehend that the authors are talking about probabilities, not actual, identified persons. It was inevitable that families would conclude that out there, somewhere, there were 15 persons with developmental disabilities who "should not have died." It was inevitable that they would ask, "Who died that shouldn't have died? Who was responsible for their death?" Worse yet, the author of the article in the San Francisco Chronicle completely misunderstood - he thought that none of the 45 clients who died should have died! If the tables had contained data on the 385 institutional deaths and there had been appropriate cautionary statements, I think most of these misunderstandings could have been avoided.
I hope you find my comments helpful.
Sincerely yours,

cc David Strauss, Ph.D.

Jane R. Mercer, Ph.D. Professor of Sociology, Emerita

R_ JacS end Jane R. M i r c s r

7750 Bolero Drive Rlvarsica. CA 52509
Phsr.t 9CWaS-«5<7 FAX 9flS-S*1-72C2

1027 Riverfront Drive Bullhead City, AZ
Pfta.-.e 520.762.7483
Dacsmto116,1SS6

Fax ToAcaAlWnacn Developmental Dis-abilrttes Area Beard #12 FaxSCS-781-CSSe

After cur phone csnvarsaicn about tha artlcla 'Comparative Mortality cf Pacp!ev

with Mental Retardation In InstlftiUcna and the Community" authored by Strauss and" •

Kaar.er in tha currant Issue cf AJMR, I reread their article ftr a second time focusing '

on the issues we discussed.

'

•

So far as I can see, thair methodology is sound and their conclusions would be difficult, if not impossible, tc assail on statistical or methodological grounds. However, they are dealing with huge samples. Consacuantiy, even tubstantively minor drffarencas can attain jtstisical 'significance" The question for policy makers, however, is whether those differences are 'substantivaly* different WTwther, In the real world, they are something to b« concamed about

To answer that question. I locked deseiy at Figure 2. In Figure 2 ths authors present the morality rates as a % cf person-years by placement (community v« institution) for each of tha risk categories. The Mortality Rstaa In th« LcwflTt Risk group ara apprcximateiy tna same for both types cf placement and ere very lew - aocut half a percent. In Risk Category two, the rate for Instituticns rises to 1 % while t^at in the community rises to 2%. In Risk category three, ths rate is 1 % fcr institutions and slightly over 2% fcr tha community. In category four, the institutional rate jumps tc slightly over 2% while the community rata is 2%. In category five, the. institutional rats remains around 2% while the csmmunity rate moves to 4%. In category 6, tha Institutional rate moves up to just under 4% while the community rats move* to just over 6%. In category 7, the Institutional rata Is just under 6% and the community r«te is 7%. In category 8 which contain* individuate at very high risk, both rate* move up crarnatlcaily-th* institutional rate is just undar 11%whllB the community rate it just ever 12%.
What impresses me atsut the«« figures It how very dose they era to each cthar. sutstantively. One chanca in a hundred of dying vs two cMancas in a hundred, 2 chancas in a hundred vs tnree cnoncas In a hundred, and so forth. And these O!ffaranc«« ara consistently small acrcis all risk categories. Them 18 only a 1% drfforonca in «von tht highest risk category.

It seems toma ffst tha nggligible.incraeaea intha risk cfdying that =ra ' 3«c=:a:a<i with living Inthe csmnunily SMITI reasonable, S|v8n tha incraaaa**
! ! f ^ 8 ^ C U I ?Mai<Wl t0 ^'5iantS' and tc th8 crtinary h a ^ * of lvmcin
an even rattsr tftan a dcistirsd environment. Inshort auch small dWarsncas can ha viewjd aathe prfca that e«ch cfus pay fcr living In the csmmunity rather than in a bubble. M d {hat prica Isaurprliincly amilll
I think itwpuld b« a mistaka taaxi;s«rata the Impcrtanca ofthese dtfTarencaa and c.c ssanrin; fcr a.smckins gun. It wema toma thet thcaa cfua wno have adyscatad deae^ragttad aettings should be delight*: toIesrn that the prlca isso small fcr imprcvBmana inthe quality cflife that are 8agreat
SIncsraly ycurs,
£ Mercsr

EXHIBIT E

:"-.•?.•••-•-••< ~f ~ -~v »Y:>-

Editorials and CouLnents

.fcuy E NorthrWgeVPhD, MPH, MX_£. •.;_.-;
iSSOCIATE EDITORSV ^ ' V - A - ^ - V - *"•• -FeinzW. Beren'des, MD, MHS i ^ S : . i ' f .fanning Feinlero.NCD.DrPH F ^ C - ' " .-•jwreDccJ.Fuie,.JvIS,MD,NtPH,DrPH •"/ lichard Ncugebauer.PhD '*.• ':•*'. >£'£•/:* £:;." \r£eSchuchat,\lI>:'-:: ^ " . - v ^ . " \ ••• • LtrjA.Stein.MA.MB.BCh . • . '-I'
XiNSULTTNG EDfTOR FOR STATISTICS

yrvsfGfAraI,Ph%.MS ( 1 9 9 S J ^ i ^ C ^ . 2iir!eyrA7£Be^cr^P^.^ LswreasBcrgner.MD, MPH (1996) . - : con G:BnihnJPliP (1997) "-""'v.V ?:."-" •. Beatrice
labineJ.BesIer - linear ofPubtkaiions »Cna NL Chung'- •_•;-; -;
Uiaxiene Bright,MarilynButler^/ ••7^"T^~

Editorial: Beyond Mortality—Residential Placement and Qualit}' of Life among Children with Mental Retardation

The idea that sociery at large hasa responsibility to provide care and protection to persons with mental retardation is not very controversial inthe United States today, where public funds of dose to 520 billion are spent annually on residential services for this population.1 What is controversial—and hasbeen in the field of mental retardation for decades—Is whether this care is best provided in large institutional settings or in smaller community-based facilities and homes.1 Thofs in favor of large institutions include some parents and professionals who feel that these settings are better equipped to provide the health support required to sustain individuals with multiple and severe disabilities.1There isalso aperception that these facilities are more likely to provide long-terra security and continuity of care (which is especially important as children with severe developmental disabilities increasingly are outliving their parents). On the other hand, advocatesof community placement (who also include a broad range of parents and professionals) argue that insritudonalization is an unnecessary restriction on the person's quality of life, social integration, and basic human rights.4
What is lacking in the debate about institutional' vscommunity placement isa body of research based on controlled comparisons with dearly conceived and measured outcomes and with adequate statistical power.2 Notwithstanding the controversy and lack of scientific evidence, in the past 25 years, the Untied States and the developed world ingeneral have experienced a sea change in the way residential services and health care are provided to persons with mental retarda-

tion. The shift has entailed a steady process of deinstirutionalization, along with the rapid proliferation of group homes and other community-based residential facilities. In the United States between 1970 and 1993, the prevalence of residence in suic-funded facilities among persons with mental retardation remained relatively stable, at 12 to 1.3 per 1000 population. In the same period, the average number of residents per stateoperated facility dropped by 96% (from neariy,1000 to 59 per facility), andthe total number of facilities receiving state and federal funding (including private, usually smaller facilities) increased by more than sixfold.1 Ideologically speaking, this paradigm shift was facilitated by normalization, the idea that the social environments of people with intellectual disabilities should beasmuch as possible, like those oftheir nonretarded peers.1On a practical level, theshift was facilitated by theestablishment of programs such as Medicaid and Medicare inthe mid-1960s. These programs allowed parents tokeep a mentally retarded child at home or in a community facility and sull have access to medical support.* Finally, legally, the shift was facilitated by Public Law 94-142 (enacted in 1975), which mandated states to provide toail children with developmental disabilities andspecial needs, a free public school education in the least restricted environment possible.7
Today there is no going back tothe model of institutional care forthe majority of children with mental retardation. Yet it may still be worth asking whether
Editor's Note. See related article by Strauss et aL (p 1422) in this issue.

American Journal of Public Health 1359

the large institution should have a pla. A a I] in the range of current and future residential choices to be made available to mentally retarded persons and their families. In this context, the study by Strauss and colleagues in this issue of the Journal has a profound policy implication and is a welcome contribution for its sound research methodology.1 In their research of mortality among more than 7000 severely disabled children with mental retardation in the state of California over a 12-year period, Strauss et al. found that children in institutional care, as expected, were both more severely disabled and at greater risk of death than children in smaller community facilities and homes. The authors then developed a way to control statistically for indicators of level of disability. In previous landmark work* as well as in the present study, they have shown these indicators to be strong predictors of mortality in dcvelopmcatally disabled children. The indicators include immobility, tube-feeding, and paucity of interaction with peers. In the controlled analysis, the adjusted mortality differen-' tial is reversed, and the rate of death is actually 25?& higher for residents of less restrxrjve environments (community facilities and homes) than for residents of institutions. The implication is that children with severe developmental disabilities may be safer in institutions than in community settings.
This is a provocative finding. For two reasons I will discuss, I believe that it calls for further research rather than direct translation into policy. Cne reason is that the adjusted analysis does not distinguish between impairment and disability. This omission may have resulted in overcontrol for level of impairment, thus producing a mortality disadvantage for children in community settings that is apparent but not real.
The distinction between impairment, disab&N, and handicap originated in medical sociology10-}1 and later was developed into a system of classifying health outcomes by the World Health Organization in its International Classification ofImpairments. Disabilities and Handicaps.I: Impairment refers to a loss of function at the level of the organ or body part (e.g., spasticity, brain disorder); disability refers to funaional limitation at the level of the individual (e.g., inability to walk or learn language); and handicap refers to limitation in social roles and activities such as school, work, recreation, and family life. Others13-14 have used different terminology to distinguish similar levels of func-

tioning to make the point that distinct often do not contain indicators of the

prevention strategies are needed to target distinct dimensions of impairment and

each of the three levels. For example, disability, not to mention handicap.

given an impairment resulting in a person's inability to walk, handicap may be prevented and disability minimized by assistive devices, such as ramps, curb cuts, elevators, and other environmental modifications, and by legal and educational interventions, thereby allowing fuller access and mobility.
How might the distinction ber*-een impairment and disabiliry affect the finding of Strauss et al? Severity of disabiliry, as indicated by variables such as mobility, tube feeding, and frequency of peer interactions, is a strong predictor of mortality. It is nonetheless possible that severity of brain impairment leading to mental retardation has an erlect on morality that persists after one controls far the level of disabiliry. If, among children with aH degrees of impairment, residence in community settings promotes better mobility, peer intsraciens. and

Another limitation of the study by Strauss et aL is the narrowness of its outcome (mortality). The study thus neglects social integration and quality of life, outcomes more difficult to measure and hard to come by, but perhaps no less important. No advocate for children or for public health in general would recommend insritutionalizarion as a strategy for reducing mortality in children without mental deficiencies. Yet it is not implausible that a strategy involving restrictions of environment and opportunity as severe as institutional placement could reduce mortality by as much as 25% or more in all children. We would not recommend such a course because the costs in terms of quality -ouluVand human rights would ourweight any reductions in mortality. Should these considerations be any different for children with mental retardation?

language skills than do institutions, then ' children in community settings with a eiven level of disability may actually be more severely impaired and at higher risk of death than individuals with comparable disabiliry ratines in institutions.

The large institution may still have a place in the range of residential services for persons with mental retardation. However, we cannot determine that place from studies that look only at effects on mortality. Badly needed are scientific

Thefindingreported by Strauss et aL studies and cost-benefit analyses that

that "as more variables... are statistically consider a fuller range of outcomes,

controlled, the more the comparison including mortality; measures of physical,

favors placements with higher Jcveis of cognitive, and social f "ioning; and

care" is consistent with the possibility that individual and family > .facrion (i.e.,

controlling for each additional disabiliry indicator results in a comparison that spuriously favors children in institutions. Studies have suggested, if not unequivocally shown, that the change from institutional to community residence can enhance the functioning (e.j , communication, social interaction, employment opportunities) of individuals with developmental disabilities.13-16 If this is true, it follows that chijdren in community settings with high levels of functioning may actually be more severely impaired and at higher risk of mortality than children with comparable functional scores residing in institutions.
Thus, controlling for level of disabiliry in the analysis to isolate the effect of residential placement may spuriously inflate the adjusted mortality rate in community settings relative to that in institutions. If the researchers had controlled for level

quality of life). The International Classification of
Impairments, Disabilities and Handicaps, in conjunction with the International Classification of Diseases, provides a framework and draft classification system for use in routine data systems, allowing systematic monitoring of these out• comes.CJ7 The onus is oh public health researchers and practitioners to use this system, to criticize and improve it. and to attend to the multiple ways in which disabiliry affecs peoples' lives and the multiple dimensions to be targeted by prevention programs and services. O
Maurtai 5. Dur&n Serpevshf Center
Columbia University and the New York State
Psychiatric Institute New York, NY

of impairment rather than, or in addition
to, disability, they might have found the References

advantage of institutional care to be reduced. Unfortunately, routine data systems such as that available to Strauss et ai.

1. SutisacalAbstraa of the United States, 199S. U5th ed. The National Daia Boot Washington. DC- Bureau of ihe Census; 1995.

1360 American Journal of Public Health

October 1996. Vol. 86. No. 10

Editorials and Locimemj

2. Landesman S.Butterfteld EC Normalization and deinstitutionalization of mentally retarded individuals: controversy and facts.
' Am PnxhaL 1937:42:309-16. 3. Zigler E. Hodapp R.M. Undemanding
Menial Retardanon. New York, NY: Cambridge University Press; 19S6. 4. Ljicin KC Bruininks RH. e-&.Strategies for Achieving Community Integration of Developmentally Disabled Citizens. Baltimore. Md: Paul H! Brookes: 1985. 5. Wolfensbtf rger W. The Principal of Normalization in Human Services. Toronto. Canada: National Institute on Menial Retardation: 1971 6. Bradley V. Deinstirutionalizurion of Developmentally Disabled Persons. Baltimore. Mil: University Park Press; 1978. 7. Braddock D. Mitchell O. Residential Services and Developmental Disabilities in the United States. Washington, D C American Association on Mental Retardation; 1991

8. Strauss D, Eytnan RK, Grossman RJ. Predictors of mortality in children with severe mental retardation: the effect of placement. Am ! PiMc Health, 1996^6: U2-1429.
9. Eyman RK. Grossman HI. Chaney RH. Call TL The life expectancy of profoundly handicapped people with mental retardation. New EnpJ Ment Retard. 199O-J23: 5W-589.
10. Susser MW, Watson W. Sociolog in Mrclcine. London, EntJand: Oxford University Press: 1970.
11. Susser MW. Disease, illness, sickness, impairment, disability and handicap. PzychoiMtd. I99fc20:47f-473.
11 World Health Organization. International Cassincaaon of Impavmena. Disabilities and Handicaps. Geneva. Switzerland: World Health Organization: 1980.
13. Nagi SZ. HaJler RI. Limitations in Func-

tion: Indicators and Measures. Columbus. Ohio: Ohio State University. 1981
14. Tope AM,Tit\a*AlL Disability in America: Toward a National Agenda for Prevention. Washington, D C National Academv Press: 1991.
15. Knoboe CA. Carey SP. Rhodes L Homer RH. Benefit-cost analysis of community residential versus institutional services for adults with severe mental retardation and challenging behaviors. Am J Ment Retard, 1995:99:533-541.
16. Hatton C. Emerson E, Robertson J. Henderson D. Cooper J. The quality and costs of residential services for adults with multiple disabilities: a comparative evaluation. Res Dev DisabiL 1995:16:4 J9460.
17. International Statistical Classification of Diseases and Related Health Problems. iOthrev. Geneva. Switzerland: World Health Organization; 1991

iditorial: Social Class and Asthma—Distinguishing between the Disease ind the Diagnosis

Recent work has identified inner ities as areas of high asthma morbidity nd mortality.1 Much interest has.centred arourv whether these areas also ave high r: . . of asthma prevalence. At •ast one inr.ir-city area, the Bronx in ew York City, has been identified as an re3 with an extraordinarily high level of sihma—ILSfc—among children less un 18 years ofage.: More recent work as discovered that high asthma preva:nce is not limited to inner cities. Los Jamos. NM. a predominantly White liddle/upper-dass community, wasreoned to have ahasthma rate of IJTO mong 12- to 14-year-oIds.J Prevalence inferences tend to be more consistent ross racial groups. In both^US, national :alth surveys, the National Health' and utrition Examination Survey (NHANES) nd the National Health Interview Survey "fHIS). African-American childrenreorted higher rates of asthma than White iildren.°
In this issue of the Journal, Cunningam and colleagues4 report the results of school-based survey among 9- to 11-yeards in Philadelphia, Pa. Diagnosed active uhma was more common among Africanjnerican children than among White tildren. However, there was no racial fference in the presence of persistent heeze. Seventy-two percent of African/nerican children with wheezing had ;en given the diagnosis of asthma, as jmpared with only 57% of White chilren. Potential confounders, including

social position, did not "explain" these differences.
From these data, it appear that, at least in Philadelphia, a racial difference costs in the acquisition of the diagnosis of asthma, given that a child has persistent whetr'ng. In the United States, race is a surrogate for social position. Disparities in social position play a large role in the racial differences in many forms of morbidity and mortality/ What is the potential role of social position in this difference in the diagnosis but not in the symptoms of disease?
A number of studies have obtained results similar to those of Cunningham et aL* among children 6months to 11 yean old from the 1976-1980 NHANES. diagnosed asthma and wheezing were more frequent among Blacks than among Whites, but in the final logistic models, wheezing was not associated with social position although diagnosed asthma increased with decreasing family income and inner-dry residence.' In the Bronx, among children younger than 18 years, wheezing for those without the diagnosis of asthma was not related to family income.: Again, the frequency of the diagnosis of asthma increased with decreasing family income. In East Boston. Mass, among predominantly ItalianAmerican children 4 to 10 years old. persistent wheezing did not relate to density of persons per room.' In rural Pennsylvania, by contrast, among children 5 to 14 years old, social position had no

influence on either wheezing or diagnosed asthma.10 Thus, in urban settings and among the US population as a whole, the prevalence of wheszing seems to be independent of social position, but that of diagnosed asthma is not.
An early national British snidy yielded somewhat different results. The 1958 British Birth Cohort study found that, among children aged 11 years, wheezy bronchitis without the diagnosis of asthma had no relation to social position, but diagnosed asthma increased with increasing social position." More recent work in Great Britain found that among 5- to 17-year-olds, diagnosed asthma was not related to social position.i: Similarly, in Montreal, Canada, a school-based survey of 5- to 13-year-old children found that social position was not related toeither wheezing or diagnosed asthma.13
The absence of an excess of diagnosed asthma among the lower social classes in Canada and Great Britain and its presence in urban United States possibly could bea reflection of differences in health care systems. St. Peter « al.M evaluated access to care among children less than 18 years ofage. using data from the 1988 Child Health Supplement of the NHIS. Children receiving Medicaid were less likely than children living above the poverty line to identify a physician's office as their site for routine
Editor's .Not*. See related article by Cunningham et aL (p 1406) in this issue.

•cto6erl996.Vol.86.No. 10

Xmrrvnn Trmrm!/^f P..MT,- U»-1fh I 1*1

EXfflBIT F

Attachment- 5--

DDS WELLNESS INITIATIVE

Mission:

To promote the health and well-being of all Californians with developmental disabilities.

Track I: Weilneas Focua of the Department of Developmental Services:

Focus of responsibility:

•

Policy direction

•

Public Awareness

•

Training and technical assistance

•

Research and evaluation

. Current Activities and Projects:

(1) Managed Care Policy Development and Problem Resolution

This project is a collaborative effort with the Department of Health Services to ensure that persons with developmental disabilities receive needed medical services within managed care systems.

Time frame: Current year and on-going

""

Resources: Existing DDS staff resources

/

(2) Task Fores on Mental Health Services for Persons with Developmental Disabilities

DDS, the Department of Mental Health (DMH), the Association of Regional Center Agencies (ARCA), and the County Mental Heallh Directors Association (CMHDA) are collaborating on guidelines for improving the provision of local mental health services to regional center consumers.

Time Frame: Current year, to be completed June, 1997. Resources: Existing operations resources.

(3) Developmental Center/ Regional Center Teiehealth Project"
This pilot project will utilize teiecommunications technology to allow regional centers to access the uniquely experienced medical and clinical staff at developmental centers. Time frame: FY 96-97: planning and start-up
FY 97-98: full implementation

2/20/97:jj

1

Resources: Current year DC and RC operations resources

(4) Quarterly "Wellness Letter*

DDS wiil publish a quarterly "Weilness Letter' to provide the best information available on medical, dental and mental health issues. The letter will be distributed statewide to consumers, families, providers and practitioners. The first edition will focus on dental health and will be published in spring, 1997.

Time frame: Current year and on-going Resources: Current year DDS operations

(5) DDS Web Page for Wellness and Assistive Technology

DDS will add new components to its existing Web Page to expand on the Wellness Letter and to provide information on ways to obtain Assistive Technology (resources, funding, eligibility, etc.).

Time frame: March 1,1997 and on-going

Resources: Current year DDS operations

i

(6) £raansion of Psychology Internship Program

Three psychology internship programs have been developed with the graduate programs of the University of the Pacific (1987), UCLA (1996) and the University of Judaism (1997). Behavioral supports and services are provided by graduate students under the supervision and guidance of developmental center staff to persons who are in jeopardy of losing their community placement due to their challenging behavior.

Time frame: Current year and on-going Resources:. Existing DC resources

(7) Conferences The Department is sponsoring the following conferences:

National Developmental Disabilities Nursing Conference — March 3-5, 1997, San Diego, CA. (In collaboration with Columbus Medical Services)
National Physicians' Conference on Developmental Disabilities Medicine — March 3-5, 1997, San Diego, CA. (In collaboration with Columbus Medical Services)

"Partners in Prevention V" - February, 1998

2/20/97:jj

2

Resource: DDS operations resources/federal Eariy intervention resources

(8) FY 96-97 trainings

The following trainings have been planned for consumers, family members, service providers, regional and developmental center staff, and other professionals. The trainings are delivered in multiple locations, with a combined attendance of over 3,000.

•

Whole Person Assessment and Treatment — A two-day workshop about

appropriate diagnosis and treatment on mental health and medical needs of people

with developmental disabilities. Emphasis on transdisciplinary assessment,

interagency collaboration and specific interventions that produce positive

outcomes.

•

Positive Behavioral Supports— A one-day overview of the process for supporting

change in individuals with challenging behaviors.

•

Psychophannacologicai Medications: Safety Precautions for Persons with

Developmental Disabilities- A one-day workshop conducted by clinical experts

who have direct and extensive experience with people with developmental^

disabilities. Focus in on drug interactions, dosages, identifying over/under

medication, ere.

Time frame: Current year (FY 96-97)

>

Resources: DDS operations resources

Track TIr WeHneas Focna of Regional Centers

Focus of responsibility:

„

•

Outreach to and liaison with local medical, dental and menial health communities.

•

Monitoring of consumer health outcomes.

•

Program and resource development

•

Provider training and technical assistance.

•

Resource information for consumers and families.

Current Activities and Project:

The Department issued a Request for Idea Statements from regional centers for wellness projects to be funded during FY 96-97. 52 idea statements have been received from 16 regional centers , totalling approximately S3.2 million. The projects all address medical, dental or mental health needs.

2/20/97:jj

The Department will continue to refine and expand these partnerships during FY 96-97 and FY 97-98. It is hoped that several partnership projects wiil secure grant funding during this time period. (Initial contacts with charitable foundations have been encouraging.) Summary
The DDS "Wellness Initiative" represents a planned, comprehensive and multidimensional strategy designed to enlist the support of all segments of the developmental services system in pursuit of a common goal: the health and well-being of ail Caiifomians with developmental disabilities.
s
2/20/97:jj

 
 Richard S. v. Dept. of Developmental Serv. of Cal.

MR-CA-004-017
DANIEL E. LUNGREN, Attorney General of the State of California
2 JOHN E. SANDERS, Supervising Deputy Attorney General
3 KAREN L. FRIED, State Bar No. 74420 Deputy Attorney General
4 300 S. Spring Street, 9th Floor-North Tower Los Angeles, California 90013
5 Telephone: (213) 897-2438

6 Attorney for Defendants, DEPARTMENT OF DEVELOPMENTAL SERVICES AND FAIRVIEW
7 DEVELOPMENTAL CENTER

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 RICHARD S., CYNTHIA R. ,

VALDINA R., and ROES 1 through 13 800, individually and on behalf

of all those similarly situated 14 by WILLIAM CABLE, M.D., as

Guardian At Litem,

)

15

16

v.

Plaintiffs, ) )

17 DEPARTMENT OF DEVELOPMENTAL

)

SERVICES OF THE STATE OF

)

18 CALIFORNIA, FAIRVIEW

)

DEVELOPMENTAL CENTER, SOUTH

)

19 COAST REGIONAL PROJECT, HARBOR )

REGIONAL CENTER, REGIONAL CENTER)

20. OF ORANGE COUNTY, SAN DIEGO

)

REGIONAL CENTER, SOUTH CENTRAL )

21 LOS ANGELES REGIONAL CENTER, )

WESTS IDE REGIONAL CENTER,

).

22 DENNIS G. AMUNDSON, as Director )

of the DEPARTMENT OF DEVELOP- )

23 MENTAL SERVICES, STATE OF

)

CALIFORNIA, HUGH KOHLER, as

)

24 Executive Director of FAIRVIEW )

DEVELOPMENTAL CENTER, LILIA

)

25 TAN-FIGUEROA, M.D., as Medical )

Director of FAIRVIEW DEVELOP- )

26 MENTAL CENTER, DAWN LEMONDS, )

as Director of SOUTH COAST

)

27 REGIONAL PROJECT, and DOES 1 )

through 500, inclusive,

)

28

)

Defendants. )

No.: SACV97-219GLT(EEx) DECLARATION OF MICHAEL B. MOUNT
DATE: March 31, 1997 TIME: 3:30 p.m. DEPT: 2

1

I, Michael B. Mount, declare:

2

1. I am an attorney licensed to practice law in the State

of California, and if called to testify in this matter, I could

and would testify to the facts as set forth in this declaration.

2. I am currently employed by the Department of

Developmental Services, State of California, and serve as the

Department's Chief Counsel. I have held that position since May

1992. I have been a practicing attorney for almost 21 years,

with 15 of those years as an employee of the Department.

10

3. The statutory scheme for provision of services to

11 individuals who are developmentally disabled, whether in the

12 community or residing in a developmental center, is focused on

13 consumer choice and the rights of the individual. Services and 14 supports are to be provided in a way that assists consumers in

15 maximizing their opportunities and choices (Welf. & Inst. Code 16 section 4640.7). The services and supports necessary to meet an 17 individual consumer's needs, including the person's residential 18 placement, are matters discussed and decided by the 19 interdisciplinary team, as part of the individual program plan 20 (IPP) process (Welf. & Inst. Code sections 4646 and 4646.5). The 21 interdisciplinary team consists of the consumer, regional center

22 representatives, including the service coordinator, the person's

23 parents, legal guardian or conservator, and other individuals

24 invited to participate. In the present case, this could include

25 staff at the developmental center, including the treating

26 physician. If the consumer, or his or her parent, guardian, or

27 conservator object to the recommended placement, including, 28 placement in a community living arrangement, then placement may

2.

1 not occur (Welf. & Inst. Cede section 4803). The process for

2 resolving placement objections is through the fair hearing

3 procedure specified in Welfare & Institutions Code section 4700

4 et seq. (Id.).

5

4. The fair hearing process specifies the notice

requirements and the procedural rights and protections afforded

7 to the developmentally disabled consumer. This includes the

8 appointment of an authorized representative. Welfare and

9 Institution Code sections 4701.6 and 4703 identify the

10 individuals who may be appointed as authorized representatives. 11 In addition, section 4710.8 authorizes the appointment of a 12 representative by the local area board if, in the opinion of any 13 person, a consumer is not being adequately represented, and a 14 representative needs to be appointed in order to protect and 15 advocate the individual's rights. Under/ this process, family 16 members and other individuals, including friends, service 17 providers, and treating physicians, could seek appointment to 18 represent the interests of the individual. Pursuant to the 19 statutory procedures, both an informal hearing, and formal 20 hearing before the Office of Administrative Hearings is provided 21 for the individual. (Welf. & Inst. Code sections 4712 through 22 4712.5.) During the pendency of the hearing, services will 23 continue to be provided. Thus, the person is not in jeopardy of 24 losing services until the dispute has been resolved. (Welf. & 25 Inst. Code section 4715.) Finally, should the consumer or his or 26 her authorized representative still disagree with the final 27 administrative decision, they may pursue the matter through a 28 Writ of Administrative Mandamus under Calif. Code of Civ. Proc.

3.

1 section 1094.5 and seek a stay of enforcement pending the outcome

2 of the court's ruling.

3

5. In addition to the fair hearing process described above,

4 the statutory scheme also provides for local advocacy services in

5 both the developmental centers and the community. These services

6 are provided by either the local clients' rights advocate or the

7 Area Board. (See Title 17, Calif. Code of Reg. section 50500 et 8 seq., Welf. & Inst. Code section 4590.)

9

6. Included on top of these statutory protections is the

10 judicial review procedure identified in the Supreme Court

11 decision of In re Hop 29 Cal.3d 82 (1981). In that case, the

12 California Supreme Court looked at the process for admission of

13 persons to a developmental center who are incompetent and non-

14 protesting,and concluded that absent a knowing and intelligent

15 request for admission, an incompetent and non-protesting

16 developtnentally disabled individual could not be admitted without

17 judicial review of the appropriateness of that admission. As

18 part of the rights afforded to the individual, the court required

19 proof beyond a reasonable doubt, court-appointed counsel, and a

20 right to jury trial. In addition, only if it was determined that

21 the person was developmentally disabled, as well as gravely

22 disabled or a danger to self or others, and that state

23 developmental'center placement was warranted, would admission be

24 appropriate. Subsequent to the Hop decision, some courts in

25 California have also used this process in reviewing the person's

26 continued placement.

27

7. In 1989, two appellate courts further clarified who was

28 authorized to apply for admission for placement in a state

1 developmental center (North Bay Regional Center v. Sherrv S. 207 2 Cal.App.3d 449 (1989), and In re Violet C. 213 Cal.App.3d 86

3 (1989) ) .

4

8. In North Bay Regional Center v. Sherrv s.. the court

5 indicated that admission to a developmental center could be made

6 on the application of a parent or conservator, or if no parent or

7 conservator was available, through appointment of the Director of

8 Developmental Services as conservator for that purpose. Under

9 Health and Safety Code section 416.1 et seq., the Director of 10 Developmental Services is authorized to be appointed conservator 11 of any individual eligible for regional center services or 12 currently residing in a state developmental center.1 The process 13 for nomination and the responsibilities of the Director are 14 spelled out in these sections, and it is important to note that 15 the means for obtaining appointment of the Director as guardian 16 or conservator is through the state courts (superior court, 17 probate department). In reviewing and accepting nominations, it 18 is the policy of the Director to serve as conservator of last 19 resort. As such, if any parent, family member, or other 20 interested person or agency is willing, able, and appropriate, 21 then the Director will decline acceptance. I am personally aware 22 of 'the application of that policy, inasmuch as the responsibility 23 for acceptance or rejection of nominations has been delegated to

24 the Department's legal office.

25
26 xThe propriety of these provisions as they apply to individuals residing in developmental centers and the
27 potential conflict of interest has been upheld by the 28 appellate courts (see In re Guardi anship of Raymond C. 72
Cal.App.3d 417(1977)).

5.

1

9. In the case of In re Violet C.. the appellate court held

2 that only a conservator of an adult developmentally disabled

3 individual could seek the placement and admission of a non-

4 violent legally incompetent developmentally disabled person.

5

10. The practical application of these decisions, including

6 the requests for various conservatorship nominations for

7 individuals residing at Fairview Developmental Center, have been

8 and are continuing to take place in the probate department of

9 Orange County Superior Court. I am informed and believe that

10 except for two current residents at Fairview, every adult has

11 received, or is scheduled to receive, a judicial review pursuant

12 to In re Hop regarding the appropriateness of their continued

13 placement at a developmental center. As part of the procedural

14 protection, court-appointed counsel is provided and the placement

15 is reviewed on a routine basis.

j

16

11. As a result of the individual program plan process, the

17 interdisciplinary team, the fair hearing procedures, and judicial

18 review of the appropriateness of the continued placement, it is

19 my opinion that substantial due process protections exist to

20 ensure that residents are not discharged, or retained in the

21 facility unless that placement is appropriate.

22

' 12. In my role as Chief Counsel, I was the principal

23 attorney assigned by the Department to Coffelt. et al. v. The

24 Department of Development Services, et al.. San Francisco

25 Superior Court Case No. 916401. In that capacity, I negotiated, 26 along with the Deputy Attorney General assigned to the case,

27 Beverly Meyer, and other Department staff, the settlement

28 agreement and judgment in that case.

6.

1

13. The Coffelt lawsuit was filed in February 1990 by 14

2 named individuals and six representative organizations. The

3 principal defendants were the Department and four regional

4 centers serving individuals in the bay area (San Andreas, Golden

5 Gate, East Bay, and North Bay). That suit, which was a class

6 action, was brought on behalf of persons with developmental

7 disabilities residing in developmental centers and the community,

8 who were seeking a different living arrangement. In that suit,

9 plaintiffs alleged that the placements identified in their

10 individual program plans (IPP) were not being provided and that

11 under the provisions of the Lanterman Act (Wei. & Inst. Code

12 section 4500 et seq., and Association of Retarded Citizens v. The

13 Department of Developmental Services 38 Ca1.App.3d 384 (1985))

14 they were entitled to the services and supports identified.

15 Consequently, persons both in the developmental centers and in

16 the community were not being placed in the least restrictive

17 placement appropriate for their needs. For persons in the

18 developmental centers, that meant that a less-restrictive 19 community placement was more appropriate. Thus plaintiffs were 20 not only seeking new placements for individuals, but a change in 21 the overall implementation of the Lanterman Act.

22

' 14. Following extensive discovery and almost two years of

23 negotiations, the parties agreed to a settlement of the case.

24 Implementation was to take place over a five-year period. During

25 that time, the State would reduce the state developmental center

26 population by approximately 2,000 individuals and provide

27 alternative community living arrangements for 300 individuals

28 currently residing in the community, receiving services from the

7.

1 four named defendant regional centers. Because the Department's 2 own data indicated that over 2,000 current developmental center 3 residents had IPPs which identified placement in the community as 4 the future goal, the State agreed to the net reduction of 2,000 5 individuals. This goal was state-wide, and with placement 6 milestones (specifying the number of individuals to be placed 7 out) established for each year. The settlement agreement 8 specifically recognized that residents initially identified for 9 placement may ultimately not be placed, either because the 10 individual or, where appropriate, the person's parent, guardian, 11 or conservator, decided that the person should remain in the 12 developmental center or because the individual's service needs 13 had changed and state developmental center placement was still 14 warranted. Thus the selection and placement of individuals was 15 recognized as a fluid process and drive^ by the individual's 16 choices and needs. This includes the right of parental 17 objection. More importantly, the settlement agreement 18 specifically states that the Department was to not place out of 19 the state developmental center any individual whose IPP indicated 20 that developmental center placement was appropriate. The only 21 caveat to that provision was where a court order required 22 otherwise (e.g., writ of habeas corpus under Welf. & Inst. Code 23 section 4800 et seq., or pursuant to judicial review under In re 24 Violet C. 213 Cal.App.3d 86 (1989), and In re Hop 29 Cal.3d 82 25 (1981) ) . In addition, the parties also agreed to develop and 26 implement a new assessment/placement planning process, provide 27 additional funding for case management services, increase the 28 availability of flexible living options in the community, enhance
8.

1 the availability of crisis intervention emergency services, and

2 develop and implement a statewide quality assurance system for

3 residential services and supports.

4

15. Although the Department has reached its placement

5 milestones approximately a year and a half early (January 1997),

6 the remaining aspects of the settlement are still ongoing and

7 additional placements will be pursued in accordance with the IPP

8 process. I am informed and believe that these placements, as 9 well as those which occurred as part of the 2,000 reduction in 10 developmental center population, were the result of a thorough 11 evaluation of the individual resident's needs and the development 12 of an alternative community living arrangement designed to meet 13 those needs, and that the residents placed included individuals 14 with varying levels and degrees of disability. The express 15 provisions of the settlement precluded ^he Department from 16 discriminating against individuals on that basis when placement 17 decisions were made.

18

16. In order to fund the placements and other activities

19 specified in the settlement agreement, the State relied on

20 substantial amounts of federal funds. The total amount of funds

21 estimated over the five-year period of the agreement, in order to

22 ensure the placements and fund the other aspects of the

23 settlement, including the new living arrangements, crisis

24 services, and quality assurance, was $334,023,000. Thus it is

25 clear that the scope and purpose of the settlement was to not

26 only develop new, less restrictive, placements for individuals,

27 but to increase the number of quality, stable, integrated

28 community living options available statewide.

9.

17. In carrying out the other major components of the settlement agreement, the Department was required to develop a new assessment/placement planning process. The materials, once developed, were to be used, along with person-centered planning, to determine class membership for the purposes of placement and to identify the services and supports needed and preferred by individuals in order to live in an appropriate living arrangement of their choice. The development of this planning process included input from a variety of developmentally-disabled 10 individuals, their representatives and constituents. Also, the 11 Department was required to fund additional case management 12 personnel at regional centers in order to enable them to enhance 13 community services. Likewise, new and different living options 14 were to be developed and implemented. One of the major goals of 15 the settlement agreement was to increase the variety of such 16 options in the community by developing new policies for the 17 purchase of services, obtaining the resources and startup funding 18 to provide different types of supported living services, and 19 increasing services for children through foster family agencies 20 and residential services for children with specialized health 21 care needs. As a part of this process, additional training to 22 regional center staff, developmentally-disabled individuals, 23 their representatives and providers, was also contemplated. To 24 help ensure that individuals placed in the community would remain 25 without being reinstitutionalized, emergency and crisis 26 intervention services were also to be developed. The obvious 27 purpose was to permit individuals currently residing in the 28 community to remain there, and to receive the necessary services
10.

locally so that once the crisis had been eliminated, the individual could return to his or her community placement. This

process included various interagency collaboration, development of housing and other after-hours response systems. Finally, the

settlement agreement proposed the development of a new quality assurance system for residential services, which was to include quality of life assessment for each individual and a study,

conducted by an independent consultant, regarding the ultimate satisfaction and appropriateness of community placement versus

10 placement in the developmental center. The quality assurance

11 system was to include outcome and value-based standards, quality

12 of life indicators and assessment of consumer and family .

13 satisfaction, program quality enhancement, and procedures which

14 address corrective actions and sanctions. Once again, an

15 advisory group of developmentally-disabfl.ed individuals, and other

16 constituents, was included in this process.

17

18. Attached as Exhibit "A" are copies of two adverse

18 actions taken by Fairview Developmental Center against Dr.

19 William Cable in 1996.

20

I declare under penalty of perjury under the laws of the

21 State of California that the foregoing is true and correct.

22

Executed this

'21'^ day of March 1997, at Sacramento,

23 California.

24

25 MICHAEL B. MOUNT
26 27 28
11.

 
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1 Kraocw X. Hinlmxa Bar 4140501
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2
HAJtfilMAN * CAH1LL

3

A t t o r n e y s a t Law

Suite 114

4

SANTA ANA. CAUfOkNU *7(H

(714) 336-233

5

f takaUe (714) 3:6-320

Richard S. v. Dept. of Developmental Serv. ofCal.

• •

M •• ••

VH

^^

MR-CA-004-018

6 Attorneys for: RICHARD S., et.al

7 UNITED STATES DISTRICT COURT
8 FOR CENTRAL DISTRICT
9

10

11 RICHARD S., CYJJTHIA R., VALOINA )

R., end ROES 1 through 800,

)

12 individually andon behalf of )

ail these similarly situated by )

13 WILLIAM CABLE, M.D., as guardian)

ad Litem 14

) Plaintiffs, )

15

)

v.

)

16

)

)

17

)

DEPARTMENT OP DEVELOPMENTAL

)

18 SERVICES CF THE STATE OP

)

CALIFORNIA, FAIRVIEW ,-v

)

19 DEVELOPMENTAL CENTER,^fiOUTH

)

-COAST REGIONAL PROJECT£)HAR8OR )

REGIONAL CENTER OF ORANGE COUNTY)

jfcAN DIEGO REGIONAL CENTERjgjBOUTH)

21

CENTRAL LOS ANGELES REGIONAL ) CENTER, WESTSIDE REGIONAL CENTER)

22

DENNIS G. AMUNDSON, as Director Of the DEPARTMENT OF

23

DEVELOPMENTAL SERVICES STATS OF CALIFORNIA, HUGH KOHLER, as

24

executive Director of FAIRVIEW DEVELOPMENTAL CENTER, LILIA TAH

25 FIGUEROA, M.D., as Medical Director of FAIRVIEW

26 DEVELOPMENTAL CENTER, DAWN LBMONDS as director of South

27 Coast Regional Project andDoes 1 through 500, inclusive

28

Defendants.

CASE NO: SACV97-219 GLT "JA

(EEX)

I^

SUPPLEMENTAL POINTS AND AUTHORITIES IN SUPPORT OF RSQUEST FOR PRELIMINARY INJUNCTION

UNDER SUBMISSXOB [HEARING DATE: 3/31/97]

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1 . 1. 1VTW3B0CIIOH
2 1A. SUHXAKT OF ARGOMUT
3 The named Plaintiffs, and a class of developmentally
4 disabled adults without conservators, confined at Fairview
5 Developmental Center, argue that they are at an immediate and
6 substantial risk of death and injury from unsafe and
1 inappropriate community placement and are inneed of immediate
e
injunctive relief to prevent their exposure to such unacceptable
9 risks.
10 Plaintiffs assert that Defendants have baen emptying and
11 closing the developmental centers *t an unsafe and accelerated
12 rate which the community has not adapted to and is presently
13 unable to safely accommodate.
14 Comprehensive statutory and judicial hearing procedures
15 exist toprevent and curtail inappropriate admittance to stat*
16 hospitals but, it iaPlaintiffs view, that the same can not be
17 said for the existence of such safeguards upon discharge from
18
state hospitals to community placement. 19
95% ormore of clients discharge during Coffelt were 20
members of the Plaintiffs' clasB [CableDec.£x.4], whereas the 21
proportion of clients without conservators, presently residing 22
in Fairview, is closer to60%. (Heifer Dec]. 23
Plaintiffs urge that this disparate impact on the class 24
does not survive Equal Protection analysis under any standard of 25
review as marc fully discussed below. 26
Should the Court find that the Plaintiffs can not meat 27
28 their burden of challenging the constitutionality of the
California statutory scheme on Equal Protection grounds the
viii

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facts and circumstances of this case raise addi

questions, hitherto not: fully addressed by the

One of these threshold questions is "is th

Constitutional, substantive due process right tc

safety* in conuiunity placement?"

Incarcerated prisoners and the mentally retarded have

substantive due process rights to "reasonable safety" while in

custody but dothe developmentally disabled retain such rights

upon and during community placement?

10

If such right does exist, andPlaintiffs believe that it

11 does, at least as tothe developmentally disabled in California,

12 then Plaintiffs assart that Defendants have violated the class'

13 substantive due process rights according to 'professional

14 judgment* asmore fully discussed below.

IS

A second threshold question, is "are there procedural due

16 process right6 atdischarge arising oat of state law and

17 applicable to the developmentally disabled, ifsowhat

18 procedures are due anddo I really want them?"

19

We do not provide incarcerated inmates a hearing upon

20 release from prison. Itis doubtful that they would want one as

21 euch proceedings could be viewed as anobstruction to liberty.

22

Does notthesame rational apply to the developmentally

23 disabled? Ifnot, why not?

24

Plaintiffs assert that the California statutory scheme

25 gives rise toprocedural due process rights and that theState

26 of California has deprived Plaintiffs ofthese rights without 27 due process of law.

28

Few state or federal court cases directly address the

ix

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1 issues.

2

Y«c these issues need axiavers because of recently published

3 and re-liable medical peer reviewed reports showing, in

4 California, death ratee in, the community at least twice that of

5 the institutions. Further, there have been increasing anecdotal

6 reports of deaths occurring soon after discharge from Fairview,

7 pregnancy, and injuries and death associated with the conduct of.

a a Fairview client, discharged over the strong objections of his

9 parents, with known dangerous propensities. Doctors exercising

10 •professional judgment" and objecting tocertain discharges have

11 been inappropriately retaliated against and disciplined. There

12 is a high degree of probability that published death rates

13 substantially understate the problem.

14

Various parent groups and the California Medical

15 Association, after conducting its own hearings, have all called

16 for a moratorium on California developmental center discharges.

17

It is rumored that the DD8 has imposed a moratorium on

18 discharges from Agnews developmental center within the last few

19 d a y s . •:'..•

20

In failing to equally consider for community placement all

21 the clients resident atFairview and in discriminating against

22 them on the basis of the aeverities of their disabilities

23 Defendants have violated the Hahabilitatlon J^rt af 1970. $504,

24 29 U.S.C. 794 and its implementing regulations at 4S C.r.R.

25 S84 .4 fb)f 1) and the American^ tfVfch nf^ffft**4^-a* * g t°* 1990. $2

25 e t s e q . , 42 U.S.C. $12101 e t seq. and i t s implementing

27 r e g u l a t i o n s a t 2B C.r.R.

23

S c h o o l . 91fiF.Supp. 133, 141 (D.Cona. 1 9 9 6 ) .

Sent oy:

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Finally, the action may need to converted from its present multi-party suit status to that of a class action.
The uncertainty of Dr. Cable being able to maintain status 4 as guardian ad l i t - , or to *«ert the class' right, in another 5 capacity, at this stage of the litigation, does not appear fatal
under California law to the progress of the suit, at least for purposes of a ruling on a preliminary injunction. .
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
aci

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1

or POXSTS AJTD AUTHORSTIES

2

2. rZDBAAX, COtfSSXTOTXOWIX. CLAIMS

3

2A. EQUAL PROTECTION

4

The Fourteenth Amendment provides that: "No State shall

c make or enforce any law vhich shall deny to any p«rson within

6 its jurisdiction the equal protection of the laws."

7

Tick Wo v. ffopklns, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Sd.

e 220 (1866) was 'concerned with a lav that required a permit to

s operate a laundry unless the laundry was located in a brick or

10 atone building.

n

Tick Wo, a Chinese aliea, was convicted of operating his

12 laundry without a permit.

13

Statistics had shown that permits were being to granted to

14 non-Chinese applicants but disproportionately denied to Chinese

15 applicants.

16

In reversing his conviction the Court said: "Though the

17. law itself be fair on the face yet, if it ia applied and

18 administered by public authorities with an evil eye and unequal

19 hand, the denial of equal justice is still within the

20 prohibition of the Constitution".

21

"The State stay not, of course, selectively deny its

22 protective services to certain disfavored minorities without

23 violating the Equal Protection Clause." See tick Wo v. Hopkins.

24 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1B86).

25

While the discriminatory impact effect or impact of a law

26 or administrative action nay be evidence of discriminatory

27 intent "a purpose to discriminate must be present. Standing
2a alone, disproportionate impact does not trigger the rule that

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1 racial classifications are to be sub]acted to the strictest 2 scrutiny and axe justifiable only by the weightiest of 3 considerations." Washington v. Davis. 426 U.S. 229, 96 S.Ct. 4 2040, 48 L.2d.2d S97 (1976).

5

Statistical impact may provide useful evidence of

6 discriminatory intent, but absent a stark pattern of impact,

7 unexplainahle on other grounds, "impact alone is not 8 determinative and the Court must look to other evidence." 9 Villaoo of Arlington Heights v. Metropolitan Houalnc Day. Corp. 10 425 C'.S. 252, 97 S.Ct. 555, 50 L.Bd. 450 (1377).

11

Similarly, foreseeability or knowledge of discriminatory

12 impact can provide evidence of covert prejudice, yer^opnel Ada.

13 of Massachusetts v. roenay. 442 U.S. 256, 99S.Ct. 2282, 60

14 L.Ed.2d 870 (1979).

15

If the challenger proves diacrimination was a factor

16 motivating the governments action, the burden shifts to the

17 government. Tae state nay s«ak "to rebut the presumption of

18 unconstitutional action" by showing that discriminatory purpose

19 vaa cot the baaia for discriminatory impact. Washington v.

20 BftXia/ 426 U.S. 229, 96 S. Ct. 2040, 48 L.Ed.2d 597 (1976).

21

It may also be possible for the state to avoid strict

22 scrutiny by proving that it would (not could) hav« reached the

23 same result even if discrimination had not been involved.

24 Village of Xrllncrfcon Hoighta.

25

Discrimination n««d not be the sole or even primary basis

26 for the law, bat it must be one of its objectives. v j H » g « of

27 Xrl i got DP Heiyh'fca.

28

The fact that the government adopts a policy knowing

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1 discrimination will result does not satisfy this requirement of

2 indent. In p«rsorim|ft^aOf Massachusetts v. Fe»ney, a state

3 law granting a preference far vetsranB in state employment was

4 challenged as discriminating against women sine* veterans are

5 overwhelmingly malea. In rejecting the equal protection

6 challenge, the Coart seated: " 'Discriminatory purpose' implies

7 more than intent as volition or intent as awareness of

8 consequences. is implies that the decision-maker selected or

9 reaffirmed a particular course of action at least in part

10 'because, o f , not merely 'in spite of', its adverse effects upen

11 an identifiable group."

12

If the discriminatory intent is not overt, the challenger

13 seeking stricter scrutiny must prove that the facially nautral

14 government action is, in fact, covert discrimination.

IS

What is the standard of review?

16

In clabuyn, decided before enactment of the ADA, the Sup.

17 Cz. used a rationality standard in striking down, on Equal

IB Protection'grounds, a zening ordinance discriminating against

19 the building of group homes for the developmentally disabled.

20

However, this decision did not involve fundamental rights,

21 involved in the action herein, and did not consider Congress's

22 later finding that the disabled are a "discrete and insular

23 minority-.

24

In rejecting mental retardation as a suspect classification

25 in City of Clwbnrn v. Cl»burn Living Center. 473 U.S. 432, 105

26 S.Ct. 3249, 87 L.Sd.2d 313 (1985) Che Court stated:

27

-Where Individuals ia the group alfected by a law have

28 distinguishing characteristics relevant to interests the state

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has authority co implement, the Courts have bean very reluctant,

as they should be in our federal syetcm and with our respect for

separation of powers, to closely scrutinize legislative choices

as to whether, how and to what extent those interests shouldbe

pursued. Insuch cases, the Equal Protection Clause requires

only a rational means to serve a legitimate end*.

Using a rational basis standard, the Court held that the

application of a zoning law to exclude a group nome for the

mentally retarded was not rationally related to a legitimate

10 government purpose.

11

In W l l e r ».' Bo*. 509 U.S. 312, 113 S.Ct. 2637, 125 L.Bd.

12 2S7 (1993) at336 Justice Souter in dissent says 'While the

13 court cites Claburn once, end does not purport to overrule it,

14 neither does the Court apply it, and, at the end of the day,

IS Claburn'a status isleft uncertain."

16

In Martin v. Volnovleh. B40 F.Supp. 1175, 1191-92 (S.D.

17 Ohio 1993 the court observed: "Defendants contend that the

IS rational basis teat applies to the subject classification, and

19 that Plaintiffs can not maintain an equal protection claim

20 because a distinction between different groups of mentally

21 handicapped people is rational.

22

In support .of this proposition, Defendants rely on

23 v- Po«. 509 U.S. 312, 113 S.Ct. 2837, 125 L.Ed. 257 (1993).

24 Defendants also cite city Clebarn v. Clebura

25 473 U.S. 432, 105 S.Ct. 3249, 87 L.£d.2d 313 (1985)/ lower

26 federal court decisions, and refer to the arguments and

27 authorities presented in connection with Plaintiffs

28 Rehabilitation Act claim.

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1

involved an equal projection challenge ta certain

2 aspects of Kentucky's involuntary coamut.Tient proceedings.

3 Kentucky allowed guardians and immediate family members to

4 participate as parties in involuntary commitment proceedingsof

5 mentally retarded persons, but not in the involuntary commitment

6 proceedinga of mentally ill persons.

7

"The Court in ffallT held that a rational basis existed for

8 the distinctions between mentally retarded and mentally ill

9 persons id at 113 S.Ct.at 2647. It ia important to nct9,

10 however, that the Court in ttollar did not hold that the rational

11 basis test was the correct legal standard. Rather, it applied

12 the rational basis test because that test had been argued and

13 applied in all the proceedings below. Id at 113 S.Ct. at 2642."

14

'Heller ia not dispositive of the equal protection claim

IS asserted in the instant case, first peller cannot properly be

16 Bald to stand for the proposition that the rational basis test

17 applies to the inatant case. Moreover, the factual similarities

18 between H » ^ 1 T and the instant case are chimerical at best. The 19 plaintiffs in jfaH^ay were mentally retarded persons. Plaintiffs 20 in the instant action also happen to be mentally retarded 21 persons. Unlike Plaintiffs io the instant case, however, the 22 Plaintiffs in Heller- brought their equal protection claim based 23 on discrimination they suffered on the basis of their statusas 24 mentally retarded persons. In the instant case in contrast. 25 Plaintiffs do not contend that they have been discriminated 26 against because they are mentally retarded persons. Rather, 27 they assert that they have suffered discrimination on the basis 23 of their other disabilities or because of the severity of their

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mental retardation. Inehort, the Court does not find m e

distinction between mentally retarded persona and mentally ill

persons tobeanalogous to distinctions made between persons on

the basis of disabilities." Martin v. Voincrich.

"Both Bides in this conflict purport to rely on Cleburn.

In Clehurnf a city/ acting pursuant to a municipal zoning ordinance! denied a special use permit for the operation of a

group home for the mentally retarded. The ?i£th Circuir in

Cleburn concluded that mental retardation was a 'quasi suspect*

10 classification, and that the ordinance violated the Equal 11 Protection clause because itcould not withstand intermediate 12 scrutiny, i.e. itdid not substantially further an important 13 government interest. The U.S. Supreme Court in Clehurn, 14 however, held that classifications based on mental retardation IS are subject to rational basis standard of review. 473 U.S. at 16 446, 105 S.Ct. at 3257. The Court, nonetheless further held 17 that the ordinance was invalid because itrested on irrational
ia prejudice against mentally retarded persons. Idat 450, 105

19 S.Ct* at 3259." Martin » ,

20

•Cleburn like Hellerf is instructive but not dispositive,

21 anlike the instant case, Clftbtt" involved discrimination onthe

22 basis ofcental retardation.

is helpful, however,

23 because it reiterates some basic principles about Equal 24 Protection analysis. "The Equal Protection Clause oCthe 25 Fourteenth Amendment commands that no State shall 'deny to .any

26 person the equal protection of the laws' which is essentially a

27 direction that all persona similarly situated should betreated

28 alike." Cleburn. 473 U.S. at439, 105 S.Ct. at 32S3. AS &

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1 general rule a state law ia presumed valid and will be upheld if 2 its classification is rationally related to a legitimate state 3 interest. Id at 440, 105 S.Ct. at 3254.

4

The apparent Legislative rational behind the limiting

5 provisioos of Mil 54803 may have been set forth in in re violet

6 J««n cf 213 Cai-App.3d 86 at n.4 (1989) "Requiring a parent to

7 seek appointment as conservator of an adult developmentally
a disabled child insures greater scrutiny of the request for

9 hospital placement and offers the proposed admittee greater

10 procedural protection."

ii

When looked at from the perspective of the onerous

12 deprivation of liberty that state institutionalization presents

13 on admission the statute appears rationally related to a

14 legitimate state interest in protecting such individuals.

However, looked at from the opposite perspective, is it

16 legitimate for the stats to discriminate against the

17 developmentally disabled who, through no fault of their own,

18 have no parents and who have no control aver whether a parent

19 seeks conservatorship status on their behalf or not thereby

20 leaving the* to fend for themselves when an administrative

21 agency acts unlawfully or unconstitutionally?

22

Plaintiffs assert that once the state has custody of them

23 it can not leave them without adequate remedies to defend

24 themselves against abuses in the discharge process.

25

Therefore, while the statutes in question may serve a

26 legitimate interest on one o£ the scale the potential and 27 foreseeable abuses on the other end of the seal*, which were 28 realized, does not serve a legitimate government interest and

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1 can not be defend«d even onrationality grounds.

2

The general rule does not apply if thestate classifies by

3 race, alienage, or national origin. Id. Such classifications

4 are seldom, i f ever, relevant to the achievement of any

5 legitimate state interest, and are subject to strict scrutiny:

6 in order to b« upheld, theclassification oust be •suitably

7 tailored to serve a compelling stats interest.* Id. for

8 similar reasons, state classifications based on gender or

9 illegitimacy are subject to a somewhat heightened standard cf

10 review, also referred to as 'intermediate scrutiny": to be

11 sustained such classification must be substantially related to a

12 legitimate state interest. Id. at 441, 105 S.Ct. at 3255."

13

w. Voj.30vi.ch.

14

In contrast intermediate scrutiny i s not applied to age-

15 based classification because the aged *have not experienced a

16 "history of unequal treatment* or been subjected to unique

17 disabilities onthe basis of stereotyped characteristics .not

18 truly indicative of their disabilities.* Id. (quoting

19

•

•

' m

20 96 S.Ct.-2562, 49 L.Ed.2d'52^0 <197«}.

21

A classification, is suspect if it applies to "discreteand

22 insular minorities", ffnlfd Stftep », ^rolenw Product* Co.. 304

23 U.S. 144/152 n.4 (1938). "prejudice against discrete and

24 insular minorities may be a special condition, which tends

25 seriously to curtail the"operation of those political processes

26 ordinarily to be relied upon to protect minorities, and may call

27 for a more searching judicial scrutiny".

28

•With regard to the history of unequal treatment of persons

8

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1 with disabilities, Plaintiffs cite 42 U.S.C. 512101(a)(7), which

2 provides as follows:

3

(•) Findings

4

The Congress finds that-

S

6

(7) individuals with disabilities are a discrete insular

7 Minority (emphasis added) who have been faced with restrictions

8 and limitations, subjected to a history of purposeful unequal

S treatment, and relegated to a position of powerlessness in our

10 society, based on characteristics that are beyond the control of

11 such individual* and resulting from stereotypic assumptions rot

12 truly indicative of the individual ability ot such individuals

13 to participate in, and contribute to, society." H*rt*° V-

14

15

"Defendants suggest in their reply memorandum that Congress

16 cannot overrule the U.S. Supreme Court on the issue of the

17 proper level of scrutiny to apply to a classification. Tha

IB Court disagrees. First, Congress' findings do not overrule the

19 U.S. Supreme Court on on issue of law; rather Congress has made

20 purely factual findings. Moreover, it occurs to this Court that

21 Congress is far better equipped than tha courts accurately to

22 make such findings. The Court cannot ignore Congress' finding.

23

Defendants also argue that under f ^ U f rationally-based

24 distinctions between .different groups of neat ally handicapped

25 persona are proper. As a general principle, the Court agrees.

26 Nevertheless, the state could not for example, permissibly use

27 race or gender to distinguish between groups of mentally

28 handicapped persons. Likewise, under Congress' findings in

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Sl21Gl(a), a state naynotpermissibly distinguish between

mentally handicapped persons on the basis of their disabilities

when thedistinction prevents otherwise qualified disabled

persons from participating in an existing state program.

The Court acknowledges that classifications the state makes

among mentally handicapped persons might frequently involve

"distinguishing characteristics relevant to interests the State

haa authority to implement." miryia, 427 D.S. at 440, 96 S.Ct.

at 270$. Nevertheless, classification for purposes of providing

community residential services through existing state programs

11 do not appear to this Court to involve such state interests,and 12 *rm therefore subject at least to intermediate heightened 13 scrutiny based on Congress' findings ia 412101 (emphasis added). 14 Hence, to be sustained the classifications at issue must be at
least substantially related to a legitimate stata interest.

IS Whether the subject classifications meet this standard cannot 17 properly be determined in addressing Defendants' motion to 18 dismiss.* Martiq y. Voinovlch.

19

In 1994, Defendants EDS regional centers and others

20 executed the Coffelt agreement calling for expedited discharge

21 of 2000 developmeatally disabled clients from the seven (7)

22 California developmental centers over a five (5) year period of

23 time.

la implementing Coffelt,^ Defendants threatened financial

2 S penalties to some regional centers for not meeting certain

26 "placement quotas" [CopelandOec]. Additionally, Defendants 27 engaged in a practice known as "client shopping- [CableDecl 28 whereby they selected for placement those individuals who were

10

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without conservators orauthorized representatives to object and

were the more severely mentally retarded and physically involved

3 for whom community placement was compensated at the highest

4 reimbursement ratea.

S

Defendants were facilitated inthese practices not only by

6 the financial rewards promised to community home owners by

7 Coffelt but by the California statutory, scheme concerning
a release from the hospital to community placement which

9 foreclosed any ability toobject or prevent discharge in

10 inappropriate circumstances.

li

Defendant DDS announced, in1935, that they completed the

12 outplacement of the 2000 clients a year and a half ahead of

13 schedule.

The class herein, as a whole, but more particularly, the

15 sub-group who have nofamily and no conservator, are the ones

16 least able to protect themselves inanenvironment where the

17 death rate isat least twice that of the institution [Strauss

18 and.Cable Decs.. ] .

19

These persons were nevertheless preferentially selected for

20 expedited community placement.

2i "• 99%.of clients discharged from Fairview in fiscal year

22 1995-199 6 were without conservators while only 60% of those

23 remaining inthe institution had no conservator.

.

•

t

24 [CableSupp.Dec.Ex4J.

29

Additionally, neatly 25t of those seat to community

24 placement were without anyparent, family or conservator.

27

95% of the clients remaining at Fairview are severely or

28 profoundly intellectually compromised with l.Q.s of 30 or lees.

11

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Most are also significantly medically involved, non-ambulatory,

many with breathing or feeding tub«« and many who are unable to

speak or rationally communicate.

The California statutory scheme discriminates against those

within the public trust and who are the least able to assert or

defend their rights to avoid inappropriate placement.

Plaintiffs assert that these statutes, California Wolf»r« &

institutions <& 4803 and 4701.6 and $4703 (hereinafter "Hil*),

affecting fundamental rights, are constitutionally infirm and a

10 denial of Equal Protection under the holdings of Tick We v.

11 Hopklna. 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); City

12 of Cle-burn v. Clwburn ^Winq Canter. 473 U.S. 432, 105 S.Ct.

13 3249, 87 L.Ed.2d 313 (1985); In

V. De». 509 U.S. 312, 113

14 S.Ct.- 2637, 125 L.Ed. 257 (1993); 42 U.S.C Sa2101(a)<7)

IS (Americans with Disabilities Act of 1930} and Martin v.
16 Voinovich. 840 P.Supp. 1175, 1191-92 (S.D. Ohio 1993 [holding

17 intermediate heightened scrutiny AS the standard of review].

16

Given the enactment of the ADA since the Supreme Court's

19 decision in Cleburn. Congressional factual findings that the

20 mentally retarded are a "distinct insular minority", the 21 involvement of, and the substantial risk, in California, to the
fundamental right to life'and the Heeler Court's application of

23 rationality review, only because the litigants below had failed 24 to properly present: a higher* standard of review, Plaintiffs urge 25 this Court to adopt, under these facts'*and circumstances, the 25 southern District of Ohio's application in fiartln v. Voinovich 27 of intermediate heightened scrutiny as the proper standard.

12

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3. 0VE88SEAOTB

Although typically asserted in First Amendment litigation,

which is implicated here in Mil SS47Q6.1 and 4303, Plaintiffs

would argue, that even if the Court finds that the California

statutory scheme, limiting those authorized to object to

placement, meets the heightened scrutiny standard under

or declines to apply that standard instead applying

Cleburn. and holds that under rationality review Equal Protection

i s not violated, that such lavs are, nevertheless, over

10 inclusive in that they sveep too broadly for their intended 11 purpose to include those individuals who have no family as well 12 as no conservator.

13

4. DOS PROCZSS

14

"Substantive due process rights ara rights such as chose

15 listed in the Bill of Rignts and those rights held so

16 fundamental that a state may not take them away." Taylor ex

17

Waljter r. Eedbetter. 818 P.2d 791, 794 (CA11 1987)(en

ia bane).

19

Whereas "Procedural Due Process.claims involve those ..

20 expectations created by state law. As to these rights tae state

21 may take them away by affording predeprivation bearings, post

22 deprivation hearings or by providing other safeguards. Taylor

23

at 794 citing CleveJlB*! pcard of education ye. 1AT\T"V\

24 414 U.S. £32, 94^3.Ct. 791, 39 L.Ed.2d 52 (1974) and Parrat v.

25 Taylor, 451 U.S. 527, 101 S.Ct..l908, 68 L.Ed.2d 420 (1981).

26

There are no U.S. Supreme court: decisions, to my knowledge,

27 that address the issue of whether substantive or procedural due 28 process applies to the discharge bx developmentslly disabled

13

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patient9 from the institution to community placement,

5. 808STAXTXVX DUB PROCESS

where the Scat* has custody of an individual the due

proc«ss clause has been found to impose a duty o£ "reasonable

safety" within the institution, ypungberq v. Roneo,, 457 CJ.S.

307, 102 S.Ct. 2452, 73 L.Ed.2d 28 {1982).

'When a person is institutionalized-and wholly dependent on

tha State, ... a duty to provide certain services and care does

exist". Yonagbera •• Jtomco at 317.

10

"Respondent has constitutionally protected liberty

11 interests under the Due Process Clause of the Fourteenth

12 Amendment to reasonably Bafe conditions of confinement, freedom

13 from unreasonable bodily restraints, and such minimally adequate

14 training as reasonably may be required by these interests.

15 Whether respondent'a constitutional rights have been violated

16 must be determined by balancing these liberty interests against

17 the relevant state interests. The proper standard for

IB determining whether the State has adequately protected such

19 rights is whether

ional

(emphasis added) in fact

20 was exercised. And in determining what is "reasonable" courts

21

•. ', . .. must show deference to the judgment exercised by a qualified

. •* • . •» •

•( *

22

* • . • •.* •. •

professional, whose decision is presumptively valid."

33

Fniao at 323 "By "professional"'decisionmaker, we mean a person

24

competent, whether by education, training or experience/ to Malta

25

the particular decision at issue, (eaphasia added). Long-term

26 treatment decisions normally should b« made by persons with

27 degrees in medicine or nursing, or with appropriate training in

29
areas such as psychology/ physical therapy, or the cara and

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training of thm retarded."

"Professional judgment must be based on vhat is

appropriate, not upon what resources are available. Deference

to professional judgment requires "ths decision be one based on

medical or psychological criteria and not on exigency,

administrative convenience, or ocber nonmedical criteria".

Jaelcqon v. Kotrfc Btaafcon ftoap. t Training School. 757 F.Supp.

1243 (D.N.M. 1990) citing Clark •. Cohen. 613 F.Supp. 684, 704

and n.13 (S.D.Pa.l9a5) aff'd 794 F.2d 79 {3rd Cir. 1986), cert

10 denied, 479 U.S. *962r 107 S.Ct. 459, 93 L.Ed.2ct 404 {1986).

LI

Thus, the Court's have acknowledged that Cable's

12 professional judgment regarding client cars while the patient is

13 in custody and within the institution and the decision that the

14 patient's condition requires continued hospitallzation can only

15 be circumvented when there is a showing of "substantial

departure from accepted professional judgment".

17

While Cable is a member of an "interdisciplinary team" and

• '* • 13 the team has an obligation to reach a decision the teas can not

19 reach this deciaion by majority vote.

20

' Each team member can only act and reader his/her

21 •professional judgment" within the scope of his/her respective

•

." " • . - - .

'..-I1.

22 licenae. A social worker is not competent by training,

"

.

'

.

.

-

.

!

•

:

•

•"

-'

•

.

••••*:*'*'

.

•

'

•

*

•

•

23 experience or licensure, to pyernile a medical decision in the

24 interest of reaching a team consensus. Such conduct vould

25 amount to the unlawful practice of medicine.

26

Hor could another doctor overrule Cable's "professional

27 judgment" unless it could be found that Cable acted so outaide 28 the scope of ordinary medical praccics ctv&L each decision did

IS

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1 not constitute "professional judgment:".

2

The teams remedy is toaddress the medical concerns raised

3 by Cable and to provide those services, medical orotherwise,

4 necessary to overcome the objection raised. Th» remedy is not

S majority vote which appears tobe the practice at Pairviev.

6

"... the decisions have to made on an individual baaia,

7 weighing the strengths and needs of a resident and whether a

8 particular placement can accommodate those strengths aad needs."

9 Jackson v. Port Btanton Heap, t Training School at p.1311.

10

Courts have recognized the tendency ofprofessionals and

II IDTs to conform their recommendations totne availability and/or

12 unavailability of State reaourcea. "The court recogni2ed a

13 tendency astong hunan service professionals inthe institutions

14 to conform their recommendationa for treatment or habilitacion

15 of class members to the constraints imposed by the state's

16 "inadequate service delivery system, rather than to exercise

17 true professional judgment."

18 Training School at p.1320 citing The is s. v

699

19 F.Supp. 1178 (W.D.N.C.1988) aff'd 902 *.2d 250 (4th Cir.May 9,

20 1990) cert denied - U.S. -, 111 S.Ct. 373, 112 L.Ed.2d 335

21 (1990).

22

"Tha residents are entitled to treatment recommended by

23 qualified professionals whose judgment is unsullied by

24 consideration of the fact that the state does not provide

2 5 funding for appropriate service incommunity settings."

26

at p.1312.

27

Here, Regional Centers operated under threat of financial

28 penaiities for not meeting Coff»lt= quotas. Regional Centersaxe

16

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1 subject to contract renewal from the DDS every five (5) years.

2 How can regional center employees, claim that they are exercising

3 "professional judgment" vhea such obvious conflicts of interest

4 exist?

5

In Tnomaa •. Pliberty, "a group of mentally retarded adults

6 filed a class action alleging that they were being

7 inappropriately housed in public psychiatric institutions in

8 North Carolina under conditions violative of their

9 constitutional rights.

10

"... the Court found that the Secretary's decision "to

11 ignore the community placement recommendations of the State's

12 treating professionals 'substantially departed from accepted

13 professional standards.' Jackson y. Fort stanton Heap. &

14 Trfljp*,fa School at p.1310 citing Thoaaa • • Flaherty (supra).

IS

Plaintiffs assert that Defendants have violated their

16 constitutional rights to be accorded "professional judgment".

17 Plaintiffs are entitled not only to a recommendation of

18 placement pursuant to California's Lanterman Act fwelfara s.

19 institutions $4500 et seq.] but, moreover, are entitled,

20 Constitutionally/ to be accorded 'professional judgment" which

21 recommendations concerning placement or retention within the

22 institution are not to be. ignored, raunahmra •• Bostao. 457 U.S.

23 307, 102 S.Ct. 2452, 73 l/.Bd'.2d 28 (1982); »Mfll«> v « = n H T

24 429 D.S. 97; Thoias q. •. Flaherty. 699 F-Supp. 1178

25 <W.p.H.C.198a) aff 'd 902 ?-2d 250 <4th Cir.May 9, 1990) cert

26 denied - U.S. -, 111 S,Ct. 373, 112 L.Ed.2d 335 (1990).

27

In DwShaaay v. Winaebaqo County pept. of poelal S«r7ieofl.

28 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1S89) the Court

17

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1 considered the substantive dus process rights of a child who had

2 been taken into temporary custody bya states child protective 3 services because afbeatings inflicted by its father. After

4 receiving stipulations with regard to counselling and monitoring

5 tlie child was released to the father. Thereafter, more than 20

visits by a social worlcar indicated continuing injuries to the

7 child. Social services did nothing and the child was finally

8 brought into the emergency room suffering severe brain injuries

9 which resulted in permanent mental retardation.

10

Citing Youngbgry v. B"ffl*° at 317 the U.S. Supreme Court

11 said: "As a general matter, a State Is under no constitutional

12 duty toprovide substantive services for those within its

13 border*. The Court also noted: "Consistent with these

14 principals, our cases have recognized that the Due Process

15 Clauses generally confer no affirmative right to governmental

16 aid, even where such aid may be necessary to secure, life,

17 liberty, or property interests of which government itself may

18 not deprive the individual. See, e.g. ffarrls T . McRae. 448 U.S.

19 297, 317-31S (1980) [no obligation to fund abortions or other

20 medical services] ... t.i.*a*mj -w. toatat.. 405 U.S. 56, 74 (1972)

21 [no obligation to provide.adequate housing]'.

22

The Court heldi

' ;'"!•

23

"(a) A State's failure to'protect an individual against

24 private violence generally does not constitute a violation of

25 the Due Process Clause, b«cause the Clause imposes noduty on

26 the State to provide members of the general public with adequate

27 protective services. The Clause is phrased as a limitation on

28 the State's power to act, notas a guarantee of certain minimal

18

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1 levels of safety and security; while it forbids the State itself

2 to deprive individuals* oflife, liberty and property without due

3 process of law, its language' cannot fairly be read to imposean

4 affirmative obligation'on theState to ensure that those

£ interests do not conve to'harm through other mains."

€

However, the Court distinguished these facts from those

7 applicable to the institutionali2ed retarded and reaffirmed its

8 holding in Youngbeyg saying; "While certain "special

. 9 relationships? created or assumed by the State with respect to

10 particular individuals maygive rise to an affirmative duty,

11 enforceable through theDueProcess Clause, to provide adequate 12 adequate protection, seeBstslle » 9 T H W I A^q U.S. 97;

13 Younaberf v. Romeof 457 U.S. 307, theaffirmative duty to

14 protect arises not from theState's knowledge of the individuals

15 predicament or front its expression of intent to help him, bub

16 from the limitations which it has iaposed on bis freedom to act

17 an his own behalf, through imprisonment, inatitutionalization,

18 or other similar restraint on personal liberty."

19

"An inmate must rely on prison authorities totreat his

20 medical needs; if theauthorities fail to do so, those needs

2 1 will notbe met."

i.. • ,

22

' "In the substantive, due process analysis, i t i s the State's

23 affirmative act of restraining the individuals freedom to acton

24 his own behalf

triggering (emphasis added) the

25 protections of the Due Process Clause, sot i t s failure to act to

26 protect his liberty interests against harms inflicted by other

27 means."

28

It i s the s»t«lla-Toun<yb«rtr analysis and not the p«Sh«a«y

19

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analysis which is applicable to the facts of this caa<

ciie Court said: "The

simply has no applicability in the present case

concede that the haras Joshua suffered occurred not while he was

in the State's custody, but while he was ia the custody of his

natural father, who wag in no aenae a state actor (emphasis

added).*

•

'

V~'

In DeShaney id at footnote 9 the Court says: "Had the

State by affirmative exercise of its power removed Joshua from

10 free society and 'placed him in a foster home operated by its

11 agents, we might have a situation sufficiently analogous to

12 incarceration or institutionalization to give rise to an 13 affirmative duty to protect.

14

While discharge from a state hospital to community

15 placement is viewed by the Defendants as a "release from

16 confinement" the reality for these patients, still in the

17 custody and/or control of the State after discharge, is that

18 Such release constitutes a transfer from one type of confinement

to' another.

». .

20

indeed, several Courts of Appeal have held, by analogy to

21

and Tounybrg. that'the State may be held liable under

22 the Due Process Clause for failing to protect children in foster

23 hones from mistreatment at the hands of their foster parents.

See Poe v. »e«f ^ork City Pepte. ef Social Sarvicaa, 649 P.2d 134,

25 141-142(CA2 1981), after remand, 709 F.2d 782, cert denied sub

26 nom. Cafcholip Kama Bar«au r. Po«. 464 U.S. 864 (1983); Taylcur mx

27 r«l. Wallcer v. I^edbetter. 818 F.2d 791, 794-797 (CA11 1987)(en

28 bane), curt, pending T.^»»»»--te»T- y. ttytor. N O . 87-521. We

20

1 express no view on the validity of this analogy, however, as it 2 is not before us in the present case."

3

In Taylor eac rel. Walker v. Ledbetter a foster child sued

4 Georgia state and county officials for injuries received while

5 the child was in custody of foster parents. The Court held:

6 "We hold that a child involuntarily placed in a foster home is

7 in a situation so analogous to a prisoner in a penal institution 8 and a child confined in a mental health facility that the foster 9 child may bring a section 1983 action for violation of 10 Fourteenth Amendment rights."

11

The Taylor Court at 797 cited Bowers v. DeVito. 686 P.2d

12 616 (7th Cir.1982) at 618: "the Bowers court held that an

13 affirmative duty obligating the state to protect private

14 citizens' safety and health could arise from special custodial

15 or other relationships-where the state is responsible for

16 placing such a person in a "position of danger" or potential

17 harm." "The court in Bowers stated: "If the state puts a man

18 in a position of danger from private persons and than fails to

19 protect him, it will not be heard to say that its role was

20 merely passive; it is as much an active tortfeasor as if it had

thx-own hia into a snakepit."

22

This argument, however, might not stand up to a PeShanev

23 analysis depending on the custodial circumstances and whether or

24 not the private person could fairly be characterised as a state

25 actor and therefore the conduct "state action".

26

The Taylor Court citing Yoanabero and Inqraham v. Wright.

27 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977)

28 [school corporal punishment] noted that the Supreme Court in

21

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found 'that the right to personal security constitutes a historic 'liberty interest" protectad substantively by the due; process clause".
Taylor found that its footer care case was analogous to is that in boch cases the state involuntarily placed
the person in a custodial environment, and in. both cases the

person is unable to seek alternative living arrangements.

The Taylor Court went on to say that "The state's action in

assuming the responsibility of finding and keeping; the child in

10 a 6afe environment placed an obligation on the state to insure

11 the continuing safety of that environment."

12

In both Taylor "

Do« v. yaw york City Dept.

13 of Social sarr^e»a the Courts looked at the state statutory

14 schemes regulating foster care and determined that they were

15 comprehensive aa to Imply liability.

16

The Court in Doc said: "The.yardstick as hitherto been

17 applied to the supervision of wardens, police chiefs and

18 hospital administrators over subordinate officials within their

19 institution", fifis at 142. / • '

20

"There is a closer and firmer line of authority running

21 from superiors and subordinates within an institution than

. .
22

•',.•••

• \

•

exists in the foster care context." 23

"Catholic Home Bureau '... was less unequivocally hierarchal 24

than is the case with prison guards and a warden". SS£ at 142. 25

Taylor in following Efla said at 786: "Is a foster child 26

involuntarily placed in o ioster home in a situation «o similar 27
to that of a prisoner involuntarily placed in an institution

28 that similar rules of law should be applied? We believe so. We

22

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recognize that the situations ara not parallel." After

analyzing th« contacts in prisons ix held: "Although the

contacts between actors in. the foster home situation are not as

close as in the penal situations the situations are close enough

be analogous."

Both Courts found aa Bateiie relationship.

California- has a comprehensive statutory scheme under ftfri

S4500 et seq. "to provide a pattern of facilities and services

... sufficiently complete to neat the needs of each person with

10 developmental disabilities"

11

The DOS, a department wishic the California Health and

12 Welfare agency, operates the six (6) California Developmental

13 Centers including Fairview Developmental Center.

Trie complexities of providing services and supports to

15 persons with developmental disabilities requires the 16 coordination of services cf many state departments and community 17 agencies to ensure that no gaps occur in communication or

18 provision of services and supports.* (Kfcl S430L).

19

The DOS, a state agency "has jurisdiction over the

20 execution of the law© relating to the care, custody, (emphasis

21 added) and treatment of developmental ly disabled persons.* Wfci

22 S4416.

23

Regional Centers operated by private nonprofit community

24 agencies under contract with the DDS, are charged with providing

25 developmentally disabled persons with •access to the facilities 26 and services best suited to them throughout their lifetime." 27 54620. Association tar Retard ad Cifeisens. 38 Cal.3d 384 at 28 p.389 (1985).

23

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"Under the statutory scheme it ia the regional centers, not DOS, that provide services to developmentally disabled persona and determine the manner in which those services are to be

rendered." Association for **tarded Citizens at p. 399.

"Regional Centers are statutorily created entities to be

operated by private nonprofit community agencies as aoenrs of

the state (emphasis added) to provide community contacts for 8 developmentalLy disabled persons and their families. (Si620).

The statute regulates them extensively (SS4620-4637) . They are

10 charged with responsibility for both new admiaaions and present 11 state hospital adntiteea who are developmentally disabled and in 12 both cases must consider and recommend placement alternatives. 13 (SSSS 4509, 4646, 4548, 4653). Jn rm Boroqna. 121 Cal.App.3d
937 (1981).

IS

"The rights of developmentaliy disabled persons and the

16 corresponding obligations of the state toward then under the

17 Lanterman Act are implemented in the Individual Program Plan

18 (IPP) procedure. Regional center* are required to develop an

19 IPP for each client. (S4647J.; Th« IPPmust be prepared and

20 reviewed and, if necessary, modified at least annually/ and muse

21 include the following: an assessment of the client's

22 capabilities and problems; a'statement of tine-limited

23 objectives for improving his" aituation; a schedule of the type

24 and amount of services necessary to achieve these objectives; 25 and a schedule of periodic review to insure that the services 26 have been provided and the objectives have been reached, 27 (S4646). ... (regional centers) "have no discretion at all in 26 determining whether to implement it: they must do so (54648).

24

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Association for ttatart^d Cltixens at p.390

California pervasively regulates, licenses and monitors

community home placement through Hi! S4689.1, Cali*oral«

Safety Coda S1500 et aeq, [Californi "—WB*frT

Act! and Title XVII regulations

"... th« departaent shall promulgate regulations for family

home agencies and family homes that shall include, but net be

limit.ad to, standards and requirements related to all at the

following:

10

(d)(l)(D) The capability of the regional center to monitor

11 and evaluate the vendor.

12

(d)(2)(c) Qualifications, training and monitoring of family

13 home providers"

14

Additionally it regulates program and consumer records.

15

It is clear from any reading of these statutes that the

16 DDS, regional centers, regional projects, v«ndari2ed family

17 agencies and homes that there is a coordinated network of state

16 acrora who are- in continuous control of clients once discharged

19 from Fairview.

".\.

.=#>£ 6

Although the fact that the State licenses and pervasively

c

21 regulates a private aceor is not alone sufficient for a finding

22 of State action Moo«« u Wa- 1°7 *•Trvls. 407 U.S. 163/ 92
,23 S.Ct. 1965, 32 L.Sd.2d 627 (1972) factors that are looked at

include the state being a partner or joint venture or that the

State has so insinuated itself into a position of

26 interdependence ... that it must be recognized aa a joint

27 participant in the challenged activity." Burton y, Tfi iTt

28 Parking

f 365 ET.S. 715, 91 S.Ct. BSfi, 6 Z..£d.2d 45 (1961).

25

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Defendant SOUTH COAST R2GI0NAL PROJECT, in its promotional

literatura, characterizes itself as an "interagency

collaborative venture" between the Department of Developmental

Services, Fairviev State Hospital and five <S) local regional

cen-ers e.g. Regional Center at Orange County, San Diego

Regional Center, Harbor Regional Center/ South Central Los

Angelea Regional Center and Westside Regional Center.

All parties involved from tee DDS to the regional centers

to the family home providers all "mutually benefited" from the

Coffelt agreement and were clearly in a "symbiotic

11 relationship.*

12

It is clear from the statutes that the day to day

13 operations of fanily and group hones is significantly controlled

14 by the various intercollaborative agencies that even the very

15 lowest worker in the system has been trained and is monitored by

16 these agencies so that actions or inactions in group homes can

17 be fairly characterized as "state action."

18

Regional cwitera discharge mentally retarded patients from

19 Pairview to homea selected, by.the regional centers. The

20 personnel'in these hones hav« been screened, fingerprinted and

21 tr«in«d by regional centers wbp are required to monitor the

22 programs of the develcpmeiitally.disabled in these hones.

23

The analogy' between the' situation herein and those in

24 Estell»f Doe and Taylor is inescapable.

25

When inappropriately jalaced, as many Coffelt discharges

26 havefc>««nin order to see a doubling of the death rates these

27 clients are placed in situation* where they are incapable of

2S obtaining assistance when in trouble and are totally dependent

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1 on their caregivera.

2

They are still "restrained" and it is this restraint which

3 triggers the substantive due process right.

t,'

4

Plaintiffs, still within the custody and control of the

5 State upon and after discharge from Fairview are entitled,

6 Constitutionally, to"reasonable safety" in their placement.

7

rq v. Kongo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28

8 (1982); Kstalla v. Gambia. 4.29 U.S. 97; Taylor ex rel. Walker v.

9 t^dbetter. 816 F.2d 791, 794 (CA11 1987)(en bane); Do* •• W»w

10 York City Sept. of Social S^rrjcaB, 649 F.2d 134, 141~142(CA2

11 1981), after remand, 709 y.2d 782, cert denied sub nom.

12

Plaintiffs assert that Defendants have ignored, intimidated

13 and retaliated against the "professional judgment' of their own

14 medical personnel on Inter Disciplinary Teams and have not

15 provided the Constitutionally mandated Substantive Due Process

16 requirement of "reasonable safety" under the Estelle-Younqberg

17 analysis.

18

Moreover, Plaintiffs allege that Defendants,in

19 implementing the Coffelt Jtgraaaant, have acted with "deliberate

20 indifference' Doe v. »wr Yqrk qity Dept. ofSocial Servlcea. $49

21 P.2d 134 (1981) to the safety of_former Fairview residents, to

22 the safety of the formerly institutionalized developmentally

23 disabled throughout the 8tete ql .California and to those at

24 imminent threat of institutional discharge to inappropriate

25 placement.

' :

26

Defendants had knowledge, prior to the full implementation

27 of Coffelt, of these unacceptable high mortality and morbidity
/••
28 rates. (StraussDec.] further, Defendants in intentionally

27

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delaying and failing to promulgate and implement adequate

quality assurance regulations addressing these oafety concerns

[ARC letter] as mandated by the tantermar. Act, in accelerating

Coffelt discharges when arned with this knowledge andin

ignoring and retaliating against the "professional judgment* of

ita own medical personnel (Cable and Copeland Decs.and attached

exhibits] Youngb«rg v. ltemeo. 457 U.S. 307, 102 S.Ct. 2452,73

L.Ed.2d 28 (1982); Thomas S. •. Flahertyr 699 F.Supp. X178

(W.D.N.C.1988) aff'd 902 F.2d 250 (4th Cir.Hay 9, 1990) cert

10 denied - U.S. -, -111 S.Ct. 373, 112 L.Sd.2d 335 (1990); Jack a on 11 •• Fort ^tanton Hoap. t Trailing School. 757 F.Supp. 1243 12 (D.N.M- 1990) citing Clark •• Cohen. 613 F.Supp. 684/ 704 and 13 n.13 (E.D.Pa.1985) aff'd 794 P.2d 79 (3rd Cir. 1986), cert
denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986) have

15 acted with gross negligence and a wanton disregard for the 16 safety and security of Fairview residents already placed and
17 those threatened to be placed under these conditions.

18

Furthermore, Defendants ignored the prescient statement of

19 the California Supreme Court: 'We reaffirm our cautionary

20 observation in Roger S.; iupfa* that "A precipitous release of

21 these Iadults] to families and community facilities unprepared

•

• •

22

to care for than could be both disruptive to the treatanent 23

program and po-centially harmful "to ch« [patient] and the 24

community." (In r« Koqer S.(1977) 19 Cal.3d at p. 940). Ifi_ffl» 25

H2£, 29 Cal.3d 82 at 94. 26

Inappropriate placement, either because of medicalor 2?

safety or other reasons, under the aegis of the State and by
28

State actors> andover theobjection of "professional judgm»nt*

28

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i s more confining and more at a deprivation of liberty interests than retention in the State institution until suitable placement can b« found. "Mere residence at an institution, without wore, does not v i o l a t e due process*. Stanton Hospital &Tra^nintj School. 757 F.Supp, 1243 at 1310 cizing Society for Good Will to

Retarded Childraz Tae.

1984).

. .

Cuooo, 737 F.2d 1239, 1247 (2nd Cir.

8

6. PROCEDURAL OUT PROCESS

9

"Procedural due process imposes constraints on governmental

10 decisions which deprive individuals of 'liberty or property

11 interests ...." Xafr-fcfrawa v. Bldridg«. 424 U.S. 319/ 335, 96

12 S.CC. 893, 903, 47 L.Ed.2d 18 (1976). Property interests are

13 not created by federal constitutional law, but "are created and

If their dimensions are defined by existing rules or understandings

15 that stta from an independent source such as state law .... *

16 Board of Regent* v. Roth/ 408 U.S. 554, 577, 92 S.Ct. 2701, 33

17 L.Bd.2d 548 (1972). Federal'constitutional law/ however,

18 determines whether the interest rises to the level of a

legitimate claim of. entitiejnp'ni protected by the Due Process

20 Clause.* tm^p r.iohfe

Water Div,

ft. 436 U.S

21

22

"In procedixral due process claims, the deprivation by state

23 action of a constitutionally protected interest in "life,

24 liberty, or property is not itself unconstitutional: what is

2S unconstitutional ia the deprivation of aueh an interest without

26 du* process of law." iiaeraon v

, 494 U.S. 113, 12S,

27 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990)

28

In due process cases, once the Plaintiff has established a

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deprivation of lira liberty or property, "the question remains

what process ifi due*

•*. Volnovich. citing Morrj,3»fY

B » w e r . 403 U.S. 471, 92S.Ct. 2593, 33 L.Ed.2d 484 (1972).

•The constitutional violation actionable under S1983 is not

complete when the deprivation occurs; itis not complete unless

and until the Stace fails to provide dueprocess. Therefore,to

determine whether a constitutional violation has-occurred, it is

necessary to ask what process the State provided, and whether it

was constitutionally adequate. This inquiry would examine the

10 procedural safeguards built into the statutory or administrative
u procedure ofeffecting the deprivation, and any remedies for

12 erroneous deprivation provided bystate or tort law." Martin

13 v. voinovlqhf citing

v. Bu.ych.ld at 12S, 110 S.ct. at

14 983.

15

"A court must weigh several factors to determine what

16 process iaduet

17

First, tha private interest that will be affected by their

18 official action; second, the risk of an erroneous deprivation of

19 such interest through the procedures used, and the probable
?o value, ic. any, of additional orsubstitute procedural

21 safeguards; and finally, the Government• a interest, including

22 the function involved and the fiscal and administrative burdens

23 that the additional orsubstitute procedural requirement would

2 4, • n t a i l . " Kar-fclti v. Voittoxrlqfrr c i t i n g

v. eidridaw. 424

25 U.S. 319,335, 96S.Ct. 893, 903, 47 L.Bd.2d 10 <1976).

26

In H«H«»r- v. n o f . 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993),

27 decided onEqual Protection grounds, the Court recognized the

important part. LhdU pareuCs, wich legal standing or not, haveto

30

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contribute also held: "Allowing close relatives and legal

guardians to participate as parties does not violate due

process. Consideration of the factors sec out in

Ildrjdga, 424 U.S. 319, 335 - tie private interest that willbe

affected, the risk of erroneous deprivation of such interest,

and the government interest - compels this conclusion. Rather

than increasing the risk of erroneous deprivation, allowing

close relatives and guardians to participate ae parties actually

increases a proceedings accuracy by putting valuable information

10 before the court.- It also implements the State's interest in

11 providing family members a voice in such proceedings. And even 12 if they favor commitment, their participation does not undermine 13 the interest of the individual facing commitment. The only 14 individual interest that is protected by the Due Process Clause 15 is anaccurate decision, not a favorable oast." Heller at 509 16 U.S. 312, 313, 314.

17

.Here, California'sw Lanterman Act provides extensive

18 benefits to Plaintiffs.

19

(The Lantermafl Act) "further declares that developmentally

• ' • " •" '' -T-'.' i • .• . 2 0 disabled persons .shall have'.rights to, among other things,

;

.

• " . -.

•

•

* t .-•!

'

'

.

$

•

•

21 treatment, humane care, prompt medical care and treatment, and

22 freedom from harm, Including'neglect (Vtx S4502, subds.(a),

23 (b), (d)»"(h)J» HTfcft P^Y *atif^a'*Til C**r'fc*3r y- fifa*gyy *»•• 207.
24 Cal.App.3d 449 (198?)

2S

The ianterman Act at.jsii 5*741 provides that aclient has a

26 right tochoose his residence. If such an unconserved resident

27 were to choose to remain ar Fairviaw or to b« placed in a home

28 with a mortality rate comparable to the institution dot* he have

31

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such choice?

Plaintiffs assert that S4741 creates a property right which Plaintiffs have been deprived of.
Plaintiffs assert zhat they have been deprived of those property rights set forth in S4502 and other provisions of the Laatennaa Act as sec forth above.

They are entitled to freedom from harm and neglect as well

d3 assurances of freedom from harm and neglect.

Plaintiffs assert that these rights are so fundamental that

10 Due Process requires procedures at exit conferences to ensure

11 that such rights are act arbitrarily deprived.

12

Defendants have arbitrarily denied Plaintiffs adequate

13 procedures to secure these rights.

14

7. FEDERAL STATUTOM CXAXXS

15

7A. AMERICAMS WITH DISABILIXIZS ACT OF 1990

16

Congress reeaacted the Rehabilitation Act o£ 1973 by

17 passing -the ADA, in part, because "the Rehabilitation Act and

18 its regulation's have been practically a dead letter as a remedy

19 for segregated public services" pclen L. v. PiDaria, 46 7.3d

20 325, 331 (3d Cir.) cert denied - U . S . -116 S.Ct. 64, 133 L.Bd.2d

21 26 (199S) citing Cook, The Americans with Disabilities Act: The

22 Move to Integration, 64 Temp;'L. Rev. 393, 394-408 (1991).

23

•

•

•."••'•*

'••• }• * •

' . Congress has stated'that 'discrimination against

24 individuals with disabilities persists in such critical areas as

25 ... inatitutionalization".' 42 U.S.C. S12101 (3). If Congress

26 were only concerned about disparate treatment o< the disabled aa 27 compared to their non-disabled counterparts, this statement

28 would be a non-sequitur as only disabled persons are

32

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1 institutionalized*. Helen L. v. DiDaria. 4,6 F.3d 325, 335. (3d 2 Cir.) cert.denied - U.S. -116 S.Ct. 64, 133 L.£d'.2.<i 26 (1995)..

3

28 C.F.R. S33-13O(d) states: *tbi Int-cqration . :

4 Mandate-

5

"A public entity shall administer services, •

program* and activities in the most

6

integrated setting appropriate to the. needs

of qualified individuals with disabilities".
7

"23 C.P.R. S.130.35(d) has the force of law". Helen 1. •*.
8

PiDaria. 46 F.3d 325, 331 (3d Cir.) cert denied - U.S. -116
9

s.ct. 64, 133 L.Bd.2d 26 (1995). "the ADA and its attendant

10

regulations clearly define unnecessary segregation, as a form of

11

illegal discrimination against the disabled." Helen L p.332.

12

WhiLe discrimination between the so called "able bodied" and
13

the disabled is covered under the ADA to is discrimination
14

amongsr the disabled based upon the severity of the disability.
IS

"Numerous Courts have recognized that both Section 504 and tha
IS

ADA prohibit discrimination on the basis of the severity of a

17
person's disability11. Itossier v. aonthbury training School. $16

13

F.Supp. 133, 141 (D.Conn.. 1996). Also eitina Martin v.

19

•

•

•

.

'

•

•

•

.

• •• •

'.

^

840 F.Supp'. 1175 ."'1191-92 (3.D. Ohio 1993; Jackson ••

20

Hoapltal « TrmltxtnarSchool. 757 F.Supp, 1243, 1299

21

y • (D.N.J4.1990); Eynch v. ^"ff- 507 F.Supp. 1268, 1278-1279 n.15

22 1 (0.Conn.1981) discrimination on the basis of handicap is

23 actionable under Section 504.

24

The practice of "client shopping" as set forth above, the

25 failure to equally consider all institutionalized clients at

26 Pairview, is a violation of the ADA as set forth H<?

27

Plaintiffs allege that by denying them uncoerced access to

28 physician advice, by prematurely discharging them from the

33

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1 benefits of continued ho6pitalizationt bydischarging them into 2 the community when either the community setting to which they

3 are discharged to la unsafe orthat they themselves have not

4 reached an adequate level oftraining or sufficient

5 stabilization of their medical conditions so that they can 6 "integrate* into the coaaunity within the meaning of Title II of

7 the ADA then Defendants have violated the integration mandate of

8 the ADA.

9

8. Availability oi Writ of Habeas Corpus

10

W*I S4800 provides:

11

"(a.)Every adult who isorhas been admitted or committed

12 to a state hospital/ community care facility asdefined in

13 Section 1504 of the Health and Safety Code, or health facility

14 aa defined in Section 1250 of the Health and Safety Code, as a

15 developmentally disabled patient shall have a right to a hearing

16 by writ of habeas corpus for his orher release (emphasis Added)

17 from the hospital ... ... ',..-

16

BA. Standing and role of Public Defender

19

."We conclude

r^att *&a public defender has standing

20

'•:

-1? '• ••'

under Penal' Code* section 1474'and Welfare and Institutions Code

21 section 4800 tobring this habeas corpus petition", in ry Hop at

22

• .•
p.86.

• i'

23

The public defender bas no standing and no role under w*x

24 S4803 in objecting to the transfer of a client and no role in

25 recommending or authorizing such transfer which function is that

26 of the regional center pursuant to H&X S4803.

27

While the public defenders visit Fairview they do so at the

28 request of regional centers seeking the r«leas« of such clients.

34

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1

Generally, they are provided with a list of clients

2 recoauoended by regional center for discharge, which ia given to

3 them when they attend Hop reviews in the Orange County Superior

4 Court, Fanily Law (Mental Health) of Judge Frederic* Horn,

5 currently held each Tuesday afternoon.

6

Each client has an annual gog raviev, on or about the

7 anniversary date of his/her admission, "on the question of

8 whether, because of developmental disability she is gravely

9 disabled or a danger to herself or others and whether placeaent

10 in a state hospital is warranted", yn y Hop at p.93.

11

"Authorized representatives" i.e. parents who are

12 conservators are provided with notice of the hearings.

13 While ac Fairview they review charts of clients recommended by

14 regional centers for transfer. They are not members of the

15 Inter Disciplinary Team (IDT) and they do not attend exist

16 conferences. Th«y do not bring a writ of habeas corpus until

17 after an •authori2«d representative" objects to release from the

IB hospital (such as a parent who is a conservator).

..

•

:

• •

•

•

•

'.

<

'

•

They have no authority'to act until after the damage is

'

•

'

•

•

•

'

*

"

•

"

•

'

'

'

.

"

'•*

•'.

•

20 done i.e. the patient is already, transferred.

:

'a

. •• . • '

.

I.•.•••-..I•••

21

99% transfer of clients without conservators leaves a big

22 question mark as to the effectiveness of representation by the

23 public defender as to these'clients.

9. GOARDIA* *D LXTBC
25 The uncertainty of Dr. Cable being abl« to maintain status
26 as guardian ad litem, or to assert the class' rights in another
27 capacity, at this stage of the litigation, does not appear fatal
28 under California law to the progress of the suit, at least for

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purposes of a ruling on a preliminary injunction.

Under California law appointment of a guardian ad litem is

controlled by California Civil Code 542/ California Code of

§372 and as to disabled persons California code of Civil yroeadaya S375.

A minor 14 years old or more may apply to the Court

directly for-appointment of a guardian ad litem. For other

minors or incompetents f any relative or friend may apply for such appointment [CC? $373

10

Local Rule 20 is silent on appointment of guardian ad

11 litero.

12

Fed.R.Civ.P. 17(c) authorizes the Court to appoint a

13 guardian ad litem.

14

Failure to appoint a guardian ad litera is not a

15 jurisdiction 1 defect. A judgment by or against a minor ia not

15 void. Medical I^gal, Consulting Services, inc. v. Covarrubia* 234

17 C&l.App.3d 80, 87.

ia

Plaintiffs believe they have more than adequately complied

19 with the rules/ statutes and cases in submitting a petition to

20 have Dr. Cable appointed as Guardian ad litem.

2i

1 0 . CCMCUJSIOH

22

Plaintiffs believe that there is a.sufficient ehowing that

23 Defendants have violated the Bqual Protection Clause, have

24 violated Plaintiffs Due Process rights and violated the ADA.

25

Plaintiffs are entitled to Injunctive relief.

26 Dated: April 10, 1997 27

HASDXMAtf &

28

WU

HARDIMAN

Attorney for Plaintiffs

36

 
 Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 1 of 19

" .212000

1
2
3 Joocketed
Copies / NTC Sent
JS·5 f JS - 6 JS ~ ~21 JS· 3 - 'elSO
7

:-x.~ Priority Send Cisd Enter
-- JS·5/JS·6
- JS·21JS-3

CLERK. US DISTRIcT COURT , CENmAL DISTRIcT OF CALIFORN.A
SOUTHERN DMSION Ii. S AtJlf'lSfY
BY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

8
9 RICHARD S., et al.,

SOUTHERN DIVISION Case No. SA CV 97-219 GLT(ANx)

10

Plaintiffs,

11

vs.

12 DEPARTMENT OF DEVELOPMENTAL SERVICES OF THE STATE OF
13 CALIFORNIA, et al.,

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

14

Defendants,

15

vs.

16 BARBARA BELL, et al.,

17

Intervenors.

18

19

After the briefing on these motions, and shortly before oral

20 argument, R~chard S. d~ed. Although h~s death was d~scussed br~efly

21 at oral argument, the part~es have not had full opportun~ty to br~ef

22 and argue the legal effect of h1s absence from the case. Therefore,

23 the Court w~ll rule on these motions w~thout regard to the death of 24 R1chard S., and any party may later ra1se any appropr~ate ~ssue 25 concerning his absence from the case. lI

26

27

11 If, as one party urged at oral argument, the rema~n~ng

plaintiffs are not truly "aggrieved persons," Richard 8. 's death

28 may leave no case or controversy.

/~q,? MAR 28 2000

H \DOCS\GLTALL\LCIICIVl1l97\97·219\97·0219 mSJten

tNI 1/ ~F~"'\"L ')(",,", L.

- ---V;-'-~

Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 2 of 19

1

Plalntlffs' Motlon for Summary Judgment is DENIED.

2

Intervenors' Motlon for Partlal Summary Judgment lS GRANTED as to

3 the flrst ADA count of the SAC. The motlon lS also GRANTED as to the

4 second clalm for rellef of the FACI and an approprlate injunctlon wlll

5 lssue. The motion lS DENIED as to all other parts.

6

Defendants' Motlon for Partlal Summary Judgment lS GRANTED as to

7 the thlrd and fourth § 1983 counts of the SAC. The motlon is DENIED

8 as to In] unctl ve rellef. 2/

9

I. BACKGROUND

10

ThlS case concerns the release of developmentally dlsabled adults

11 from state developmental centers (DCs) lnto communlty placements.

12 Communlty placements are typically less restrlctive than the

13 developmental centers, but are often less equlpped to deal wlth

14 dlfflcult patlents. It is the leglslative pollcy of the state to

15 "mainstream" the developmentally dlsabled out of hospltals and into

16 "natural communl ty settlngs." See Cal. Welf. & Inst. Code § 4500 et

17 ~ (the Lanterman Act). The 1994 settlement In Coffelt v.

18 Department of Developmental SerYlces (S.F. Superlor Court, Case No.

19 91641), required the Callfornla Department of Developmental Services

20 (DDS) to reduce by one thlrd the populatlon of persons residlng ln

21 developmental centers wlthln flve years.

22

Plalntlffs clalm the communlty care provlders were not prepared

23 to deal wlth the rapld lnflux of patlents. Plalntiffs Rlchard S.,

24 Cynthla R. and Va1dlna R. are patlents at FalrVlew Developmental

25

26

21 The State Defendants and Intervenors have filed

evidentiary objections to various documents offered by

27 Plaintiffs. These Ob]ectlons are SUSTAINED. The documents at

lssue are irrelevant to this motion and there was no need for the

28 Court to consider them in making its decision.

HIDOCSIGLTALL\LCIIClVdI97197·219197·0219 mlJten

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 3 of 19

1 Center (Fa~rv~ew). W~ll~am Cable, M.D. (guard~an ad l~tem for R~chard

2 S.) was the Ch~ef of the Med~cal Staff at Fa~rv~ew. The State

3 Defendants ~nclude the DDS, Fa~rv~ew, the South Coast Reg~onal

4 ProJect, and four individual d~rectors of these agencies.)1 Also

5 named as Defendants are f~ve Reg~onal Centers (RC Defendants) .41

6

Intervenors are three ind~v~duals w~th developmental d~sabllltles

7 and three organlzatlons, all of whom seek to uphold the Coffelt

8 settlement and ensure contlnued access to communlty homes. They argue

9 Plalntlffs In thlS case are opposed to communlty placement and are

10 lmproperly trYlng to limit such access. Plalntlffs and Intervenors

11 both sought to represent a class of slmllarly sltuated dlsabled

12 persons. The Court denled both of the confllctlng requests for class

13 certlflcatlon.

14

Plalntlffs' Second Amended Complalnt (SAC) alleges SlX counts

15 under the Amerlcans wlth Dl$abll~t~es Act (ADA), 42 U.S_C. § 12101 ~

16 ~, four counts under 42 U.S.C. § 1983, and seeks declaratory and

17 injunctlve rel~ef. In 1997 the Court lssued a prellmlnary lnJunct~on

18 enJolnlng Defendants from releaslng or transferring Falrvlew resldents

19 unless they elther have capaclty to obJect or are "represented" by a

20 faml1y member or conservator. Intervenors' Flrst Amended Complalnt In

21 Interventlon (FACI) alleges a § 1983 clalffi agalnst Plalnt~ffs, a

22 § 1983 c1alm agalnst Defendants, an ADA claim aga~nst Plalntlffs, an

23 31 The four lndlvldual State Defendants are Clifford Allenby
24 (Director of the DDS), Hugh Kohler (Executlve Dlrector of Fairview), Lllla Tan Flgueroa (Medical Director of Falrview), and
25 Dawn Lemonds (Director of the South Coast Regional Project) .

26

41 The five RC Defendants are the Harbor Regional Center,

Regional Center of Orange County, San Diego Regional Center,

27 South Central Los Angeles Regional Center, Westslde Regional

Center. Intervenors have dismlssed their claims against these

28 Defendants.

H IDOCSIGLTALLILC IICIVJ1\97\97-219\97-0219 mSJten

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 4 of 19

1 ADA claim aga~nst Defendants, and seeks ~nJunctLve relLef.

2

Plaint~ffs move for summary Judgment on all cla~ms Ln the SAC.

3 Intervenors move for part~al summary Judgment on the fLrst ADA count

4 of the SAC, the fLrst and th~rd § 1983 counts of the SAC, and the

5 second and fourth § 1983 counts of the FACI. The State Defendants,

6 Jo~ned by the San D~ego RegLonal Center,51 move for partLal summary

7 Judgment on the thlrd and fourth § 1983 counts of the SAC and on the

8 lssue of ~nJunctlve rel~ef. The Reglonal Center of Orange County

9 jOLns wLth the State D~fendants' mot~on as to the issue of LnJunctlve

10 rellef, and Joins with the Intervenors' motlon as to the flrst ADA

11 count of the SAC.

12

II. DISCUSSION

13

Summary Judgment LS proper Lf "there ~s no genu~ne lssue as to

14 any materlal fact and the movLng party LS entLtled to a Judgment as a

15 matter of law." Fed. R. CLV. Proc. 56(c). A fact LS materLal Lf ~t

16 "Inlght affect the outcome of the su~ t under the governing law."

17 Anderson v. LLberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,

18 2509 (1986). A factual d~spute is genu~ne ''If the eVldence lS such

19 that a reasonable Jury could return a verdlct for the nonmoving

20 party." Id.

21

The movlng party In a summary Judgment motLon bears the in~tlal

22 burden of showlng the absence of a genuLne lssue of mater~al fact.

23 Celotex CorQ. y. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553

24 (1986). If the movlng party makes this init~al show~ng, the burden

25
51 The San Diego Regional Center has moved for summary
26 judgment on all counts of the SAC, but has offered no significant argument or eVldence in support its motion other than its joinder
27 with the State Defendants. The San D~ego Reglonal Center's motion is DENIED as to all counts not addressed in the State
28 Defendants' motion.

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4

Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 5 of 19

1 sh~fts to the nonmov~ng party to "des~gnate spec~f~c facts show~ng

2 that there ~s a genu~ne ~ssue for tr~al." Id., 477 U.S. at 324, 106

3 S.Ct. at 2553 (c~tat~on om~tted). In other words, the non-mov~ng

4 party must produce ev~dence that could cause reasonable jurors to

5 d~sagree as to whether the facts cla~med by the mov~ng party are true.

6

In mak~ng a summary Judgment deter~nat~on, the Court must view

7 the ev~dence presented ~n the light most favorable to the non-moving

8 party, drawing "all Just~flable ~nferences . . . ~n his favor."

9 Anderson, 477 U.S. at 255, 106 S.ct. at 2513. If the non-mov~ng party

10 fa~ls to present a genUlne issue of material fact, the Court must

11 grant summary Judgment. Celotex, 477 U.S. at 323-24, 106 S.Ct. at

12 2553. If, however, the evidence of a genuine issue of material fact 13 is "merely colorable" or of insignificant probat~ve value, summary

14 judgment is appropriate. See Anderson, su~ra, 477 U.S. at 249-50, 106

15 S.Ct. at 2511.

16 A.

P1aint~ffs' ADA Cla~ms

17

1. Vlolat~on of Integrat~on Mandate

18

The f~rst ADA count of the SAC alleges Defendants have vlolated

19 the communlty "lntegratlon mandate" of the ADA. Pla~nt~ffs contend

20 they were prematurely dlscharged ~nto the commun~ty when lt was unsafe

21 for them, and were ~n the process den~ed adequate med~cal advlce and

22 supervis~on. SAC ~~ 158-60. That may be actlonable under other

23 theor~es, but not under the ~ntegration mandate.

24

Discr~m~nation against d~sabled ~nd~v~duals by public ent~t~es ~s

25 prohlblted. 42 U.S.C. § 12132. The ~mplement~ng regulatlons, wh~ch

26 expand on th~s proh~bltion, ~nclude the fol1owlng prov~s~on: "A publ~c

27 ent~ty shall a~nlster serv~ces, programs, and act~vlt~es In the most

28 ~ntegrated sett~ng appropr~ate to tbe needs of quallf~ed ind~v~dua1s

H IDOCSIGLTALLILCI Ie" t1197197·219197·0219 msJten

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 6 of 19

1 wlth dlsabliltles." 28 C.F.R. § 35.l30(d).

2

In Olmstead v. L.C. ex reI. Zlmrlng, 527 u.s. 581, 119 S.Ct. 2176

3 (1999), the Supreme Court addressed thlS lntegration regulatlon. The

4 plalntlffs In Olmstead were mentally dlsabled lndlvlduals who sought

5 communlty placement. The Supreme Court held the denlal of communlty

6 placement could vlolate Tltle II by hlnderlng lntegratlon. The Court

7 stated "unJustlfled instltutlonal lsolatlon of persons wlth

8 dlsabllltles lS a form of dlscrlmlnatlon" because "lnstltutlonal

9 placement of persons who can handle and beneflt from community

10 settlngs perpetuates unwarranted assumptlons that persons so lsolated

11 are lncapable or unworthy of partlclpatlng In communlty llfe" and

12 because "conflnement In an lnstltutlon severely dlmlnlshes [thelr]

13 everyday hfe actlvltles." Id...., 119 S.Ct. at 2187.

14

It does not follow from Olmstead that the conVerSEL1S true: there

15 lS no basls for saylng a premature dlscharge lnto the communlty lS an

16 ADA dlscrlmlnatlon based on dlsabllity. There lS no ADA provision

17 that provldlng communlty placement lS a dlscrlmlnatlon. It may be a

18 bad medlcal declslon, or poor policy, but lt lS not dlscrimlnatlon

19 based on dlsablilty.

20

The first ADA count of the SAC falls as a matter of law.

21 Plaintiffs' motlon lS DENIED as to this count. Intervenors' motlon lS

22 GRANTED as to thlS count. Partlal summary Judgment lS GRANTED for the

23 Reglonal Center of Orange County on thlS count.

24

2. Failure to Provide Conservators

25

The second and thlrd ADA counts of the SAC allege Defendants

26 vlolated the ADA by faillng to properly care for Plalntlffs and

27 dlscrlmlnatlng among dlsabled persons by only conslderlng some for

28 communlty placement, and by only chooslng people w~thout conservators

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 7 of 19

1 for commun~ty placement. SAC ~~ 162-67. Pla~nt1££s' mot1on does not

2 address most of these clalms. Instead, they now argue Defendants

3 v10lated the ADA by £a1l1ng to provlde conservators for all res~dents

4 of DCs. 6/

5

Plalntlf£s argue the fallure to provide conservators for Rlchard

6 S. and other dlsabled persons 1S dlscrlmlnatory because lt denles

7 those without conservators adequate representation ln the procedures

B surrounding communlty placement.

9

The language of § 12132 prohlblts denying beneilts or

10 dlscrimlnatlng "by reason of" a dlsablilty. Plalntlffs' eVldence does

11 not show that any resldents of DCs are denled conservators "by reason

12 of" the~r d~sabll1tleS. All of the DC resldents, whether or not they

13 have conservators, are dlsabled. There has been no showlng

14 conservatorshlp lS only denied to lndlvlduals wlth partlcular

15 disabillt~es, or any other showlng that would brlng the challenged

16 policles wlthln the scope of § 12132.

17

Pla~nt~ffs argue there lS a generallzed prohlblt~on on

1B dlscnmlnahon "amongst the d15abled." Nothlng In the ADA, the

19 regulat~ons, or the Olmstead decls~on creates such a generallzed cause

20 of action for "dlscrlmlnatlon amongst the dlsabled." The fact some

21 dlsabled persons have conservators whlle others do not does not

22 constltute d~scrimination under the ADA. Plalntlffs' argument falls

23 as a matter of law.

24

Plalntiffs' own statement of uncontroverted facts does not

25 necessarlly support thelr clalm of dlscrlmlnatl0n "amongst the

26 6/ Plaintiffs have not abandoned their "professlonal
27 judgment" arguments, which were originally ralsed in these counts. They now raise these arguments in the context _of thelr
2B § 19B3 claims, discussed below.

HIDOCS\GLTALL\LC I\C'vd\97\97-2 I9\97-0219 mS)t.ll

7

Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 8 of 19

1 d~sabled." They concede "[e]ven those [DC] res~dents who have

2 conservators are often under-represented dur~ng . . ~mportant

3 decision-mak~ng processes." PSUF ~ 59. A material question ex~sts as

4 to whether the absence of conservatorsh~ps for some DC res~dents

5 actually den~es them any benef~t or has any d~scr~minatory effect.

6

P1a~nt~ffs are not ent~tled to summary Judgment on the~r argument

7 den~al of conservatorsh~ps v~olates the ADA. They have brought no

8 other arguments in support of the~I second and th~rd ADA counts.

9 Pla~nt~ffs' mot~on ~s DENIED as to these counts.

10

3. Retal~at~on Under 42 U.S.C. § 12203

11

Pla~nt~ffs contend Defendants v~olated the retal~at~on prov~s~on

12 of the ADA by tak~ng retal~atory act~ons against Cable for his efforts

13 on P1a~nt~ffs' behalf to oppose the~r commun~ty placement. Defendants

14 argue this Court, ~n Cable's related action, already cons~dered and

15 reJected such contentions when ~t den~ed Cable's request for a

16 prel~m~nary ~nJunct~on barr~ng h~s term~nat~on.

17

Pla~nt~ffs have not suffered d~scr~m~nat~on or coercion under

18 § 12203 and so are not "aggr~eved persons" under th~s statute. They

19 have offered no ev~dence show~ng any actual harm to themselves

20 result~ng from the adverse actions against Cable, nOr do they have

21 stand~ng to assert Cable's r~ghts ~n th~s act~On.

22

A pla~nt~ff "generally must assert h~s own legal r~ghts and

23 interests, and cannot rest h~s cla~m to relief On the legal r~ghts or

24 ~nterests of th~rd part1es," espec1ally where those th1rd part1es are

25 capable of "assert~ng the~r own r~ght ~n a proper case." Warth v.

26 Seldin, 422 U.S. 490, 499, 510 (1975). Here Cable has already

27 asserted h~s r~ghts ~n a separate act~on, and 1t would be

28

H\DOCS\GLTALLILCI\CIYII\97\97·219\97·0219 mSJten

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 9 of 19

1 inappropr~ate to allow Pla~nt~ffs to l~t~gate those r~ghts here. 71

2

Pla~nt~ffs' mot~on ~s DENIED as to the fourth ADA count of the

3 SAC.

4

4. Consp~racy to V~olate the ADA

5

Pla~nt~ffs have presented no arguments or ev~dence ~n support of

6 the f~fth and s~xth ADA counts of the ADA, wh~ch allege consplracy to 7 violate the ADA.sl In add~t~on, these counts rely on elements of the

8 counts dlscussed above. Plalnt~ffs' flfth ADA count depends ln part

9 on the theory of dlscr~minat10n "amongst the d~sabled" Wh1Ch was

10 reJected above. SAC ~ 175. Pla1nt1ffs' slxth ADA count is dependent

11 on their § 12203 retal1at~on cla~m, also dlscus5ed above. Summary

12 Judgment 15 ~nappropriate and Pla~ntiffs' motion 15 DENIED on these

13 two counts.

14 B. Pla~ntiffs' Sect~on 1983 Clalms

15

1. Due Process--"PrQfess~ona1 Judgment"

16

Pla~Qt~ffs contend Defendants fa~led to exerC1se "profess1onal

17 Judgment" when dec1dlng to transfer them to community placements.

18 Pla1nt1ffs argue this was an 1nfringement of the~r r1ght to due

19 process of the law under the Fourteenth Amendment and 1S act~onable 20 under 42 U.S.C. § 1983. 91 Defendants contend professlonal Judgment

21

22

11 Even if standing were not a problem, litigating this

claim in this action would create problems of res judicata and/or

23 collateral estoppel in Cable's action.

24

81 Because Plaintiffs have moved for summary judgment on all

the claims ~n the SAC, the Court reaches these counts even though

25 they are not expressly addressed in the br~efs.

26

91 Plaintiffs also allege their due process rights are

infr~nged by the failure of the DDS to prov1de conservators. As

27 stated above ~ the d1Scuss10n of the related ADA argument,

genuine issues exist as to whether Plaintiffs were actually

28

(cont1nued... )

H \DOCSIGLTALL\LClICIYII\97\97-219197-0219 mSJten

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 10 of 19

1 was exerc1sed by a number of employees, and, wh1le Cable may have

2 d1ssented, they were not obligated to follow his v1ewpo1nt.

3

In Youngberg v. Romeo, 457 U.S. 307, 324 (1982) the Supreme Court

4 held an involuntarily co~tted mentally d1sabled man had

5 ~const1tut1onally protected 1nterests 1n cond1t1ons of reasonable care

6 and safety, reasonably nonrestr1ct1ve conf1nement cond1tions, and such

7 tra1n1ng as may be requ1red by these 1nterests." In reach1ng th1S

8 hold1ng, the Court cons1dered the standard to be appl1ed 1n rev1ew1ng

9 dec1S1ons made by state mental health 1nst1tut1ons.

10

The Court f1rst noted W1nterference by the federal Jud1ciary w1th

11 the 1nternal operat1ons of these 1nstitutions should be m1n1mlzed" and

12 ~there certalnly lS no reason to th1nk Judges or jur1es are better

13 qual1f1ed than appropr1ate professlonals 1n mak1ng such deC1Slons."

14 ~ at 322-23. It then concluded ~[fJor these reasons, the dec1sl0n,

15 1f made by a profeSS1onal, lS presumpt1vely val1d; llab1llty may be

16 1mposed only when the dec1s1on by the profess1onal lS such a

17 substant1al departure from accepted profess1onal Judgment, pract1ce,

18 or standards as to demonstrate that the person responslble actually

19 d1d not base the dec1s1on on such a judgment. "101 Id. at 323.

20

Other courts have appl1ed th1S profess1onal Judgment due process

21 standard to commun1ty placement 1ssues. See, e.g., Soc1ety for Good

22 Wl11 to Retarded ChIldren v. Cuomo, 737 F.2d 1239 (2nd C1r. 1984); and

23

24

9/( •• •continued)

deprived of any benefits or rights. See PSUF ~ 59. Summary

25 Judgment is lnappropriate as to this issue.

26

101 The Court defined "professlonals" as those with medical,

nursing degrees, or other appropr1ate training, whIle also

27 recognlzlng that some day-to-day care dec1s1ons necessarily must

be made by less-trained employees under the superv1sion of

28 professlonals. ~ at 323 n.30.

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 11 of 19

1 Mess~er v. Southbury Tra~n~ng Sch., 183 F.R.D. 350, 357 (D.Conn.

2 1998). In those cases, unl~ke th~s one, the plaintlffs challenged

3 state dec~sions refusing commun~ty placement. The Youngberg

4 professional judgment standard would apparently apply equally here,

5 however, even though Pla~nt~ffs challenge dec~s~ons favor~ng commun~ty

6 placement.

7

Pla~nt~ffs have not shown the profess~onal judgment standard was

8 v~olated. They have offered ev~dence show~ng Cable obJected to

9 community placement of Pla~nt~ffs, and evidence of some factors wh~ch

10 they contend weighed against the commun~ty placements. They have not,

11 however, offered ev~dence show~ng the decisions about Pla~nt~ffs'

12 placements were not made by profess~onals or ev~dence the

13 dec~s~onmakers made a "substant~al departure from profess~onal

14 Judgment, pract~ce, or standards."

15

The ev~dence demonstrates that a substant~al d~fference of

16 opln~on ex~sted between Cable and h~s colleagues. Those colleagues,

17 however, are also "professLonals." Youngberg does not authorLze

18 courts to ~ntervene to resolve disputes among the professLonal staff

19 of state mental Lnst~tutLons.

20

Plalnt~ffs are asklng th~s Court to subst~tute ~ts Judgment for

21 the instltut~ons' professlonal decislonmaking procedures. The Supreme

22 Court has held such lnterference ~s to be minimized, and decLs~ons

23 should be left to appropr~ate profess~onals. Youngberg, supra, at

24 322-23. Here, Pla~ntlffs argue th~s Court should hold Cable's

25 profess~onal judgment to be superlor to that of the other

26 profess~onals at Falrv~ew who reached d~fferent conclus~ons. Ne~ther

27 Youngberg nor any other dec~slon provldes author~ty for such a

28 holdlng.

H IDOCS\GLTALLILCI\C,v,/\97\97-219\97-0219 DlSjten

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 12 of 19

1

Plalntlffs crltlclze the lnterdlsclpllnary team declslonmaklng

2 procedure at Falrvlew. They do not, however, offer evidence showlng

3 how thls procedure (in w~ch several professionals ex~ne every case)

4 provldes lnsufflclent professlonal Judgment, or how any such fallure

5 rlses to the level of a denlal of due process under Youngberg.

6

Moreover, Defendants have offered eVldence to the contrary.

7 Thelr eVldence suggests the lnterdlsclpllnary team procedure provldes

8 Falrview resldents wlth a broad-based range of professlonal oplnlons

9 from varlOUS dlSClpllnes, the teams usually are able to reach

10 consensus declsions, and adequate remedles eXlst for dlssentlng team

11 members. Larsen Dec. ~~ 2, 4, 5.

12

Genulne trlable lssues eXlst whether professlonal Judgment was

13 exerclsed In Defendants' placement declslons, and summary Judgment lS

14 lnapproprlate on thls lssue. Plalntlffs' motlon lS DENIED as to the

15 flrst § 1983 count of the SAC.

16

2. Violatlon of Soclal Securlty Act

17

plalntlffs argue Defendants have deprlved them of rlghts

18 conferred by the Soclal Securlty Act. Speclfically, they argue

19 Defendants have not glven them notice of thelr rlght to a fair hearlng

20 before thelr transfers to community placements.

21

None of the partles challenge the appilcablilty of the Medicald

22 portlons of the SOClal Securlty Act to the programs at lssue In thlS

23 actlon. Defendants argue, however, that none o£ them are lnvolved in

24 admlnlstering Callfornla's Medlcald program and are not responslble

25 for the prOV1Slon of falr hearlngs. The Court agrees.

26

Under the "single state agency· requlrement of 42 C.F.R.

27 § 431.10(d) (2)-(3), a state's Medlcald program must deslgnate a slngle

28 agency to admlnister and supervlse the program, and any other agencles

H IDOCSIGLTALL\LCl\C1V~197\97·219197·0219 mSJten

12

Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 13 of 19

1 collaboratlng wlth that agency must not be able to "Substltute their

2 Judgment for that of the Medlcaid agency" in any Medicald-related

3 decislons.

4

Callfornla's "slngle state agency" lS the Department of Health

5 Servlces (DRS). See Pla1ntlff's Memo of P & A (Plalntlff's Mot1on)

6 22. DHS lS not a Defendant In this action. If Pla1nt1ffs wish to

7 challenge any den1al of hearlngs under the Med1cald provls1ons of the

8 Soclal Secur1ty Act, they must br1ng an actlon agalnst the proper

9 agency.

10

The third § 1983 count of the SAC falls as a matter of law, Slnce

11 no cla1m can be stated aga1nst any Defendant In th1S act1on.

12 Pla1ntlffs' motlon.ls DENIED as to thlS count. State Defendants'

13 motlon lS GRANTED as to thlS count.

14

3. Intervenors' Arguments--Falr Hearlng

15

Based on d1fferent lssues than those d1scussed In the prev10us

16 two sectlons, Intervenors move for partlal summary Judgment on the

17 flrst and thlrd § 1983 counts of the SAC. They argue determlnatlon of

18 the need for 1nvoluntary lnstltutlonalization can be made only In a

19 court of law, and Pla1ntlffs' requested rellef would confllct with

20 thlS requlrement. Intervenors wlsh to secure due process protect1ons

21 agalnst belng retalned In a DC, whlle Plalntlffs wlsh to secure due

22 process protectlons agalnst belng discharged from a DC.

23

Due process protectlons eXlst In both sltuatlons. As dlscussed

24 above, Plalntlffs' concerns about dlscharges In vlolatlon of due

25 process rlghts are addressed by the professlonal Judgment standard of

26 Youngberg. Appllcable statutes also provlde procedural protectlons

27 that may satlsfy due process requlrements, though the Court need not

28 resolve thlS questlon here.

HIDOCSIGLTALLILC 1ICiVII197\97-219197-0219 msJten

13

Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 14 of 19

1

Intervenors' concerns are valLd, but as dLscussed below, they

2 need not be reached Ln thlS case. In Callfornia, Lnvoluntary

3 commltment to a DC requlres a Judlcial hearlng wLth due process

4 protectlons simllar to those In a crImInal trial. In re Hop, 29

5 Cal.3d 82, 94 (1981); Conservatorshlp of Roulet, 23 Cal.3d 219

6 (1979).111

7

The procedures Involved in CIVIl commItment to a DC, however, are

8 not at Issue ln thIS actIon. Only the procedures Involved In

9 retentIon at a DC are at Issue here, and the due process concerns are

10 not necessarily the same. See Cramer v. Gillermina R., 125 Cal.App.3d

11 380, 393 (1981) (holding a full Judicial adversarial hearIng was not

12 requIred before ISSUIng an lnterim order to hold retarded indIvlduals

13 pendIng a judICIal recommltment hearIng). The Gillermlna R. deCISIon

14 expressly pOInts out that ftprocedures relevant to due process

15 involVIng recommltment were not at Issue In [In re Hop].N Gillermina

16 ~, addItIonally, dealt WIth a dIfferent statutory commItment scheme

17 than In re Hop.

18

Though the ~ decision IndIcated the petItioner was entItled to

19 a ftprompt hearing" to determIne whether contInued confInement was

20 warranted, It dId not dISCUSS whether ItS holdIng would extend to

21 recommItment. Hop, supra, at 94. The lIteral holdIng of Hop applies

22 only to InItIal commItments and petItIons for a wrIt of habeas corpus.

23

Intervenors appear to argue developmentally dIsabled persons In

24

25

111 ThIS is a stricter standard than the minimum ftcl ear and

26 conVInCIng evidence" standard set out by the UnIted States Supreme Court In AddIngton v. Texas, 441 U.S. 418, 431-32 (1979).

27 As the Court recognIzed In AddIngton, however, states are free to Impose stricter due process safeguards agaInst CIVIl commItment.

28 l.!i.... at 430-31.

H IDOCSIGLTALLILC J\C,vO/I97\97·219197-0219 mSJten

14

Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 15 of 19

1 DCs are entltled to regular full judlclal hearlngs as to whether they

2 should contlnue to be housed there, and should be dlscharged to

3 communlty placements absent Judlclal flndlngs supportlng contlnued

4 lnstltutlonallzatlon. The Court decllnes to rule on the valldlty of

5 thls argument. It lS not necessary to declde here to what extent the

6 procedural requlrements of ~ apply to the retentlon of

7 developmentally dlsabled persons In DCs.

8

Plalntlffs here contend they are entltled to admlnlstratlve

9 hearlngs whlch would ensure their r1ghts to profess1onal Judgment and

10 any other due process safeguards against 1mproper community placement

11 are not 1nfringed. Such hear1ngs would serve ent1rely d1fferent goals

12 than the Jud1clal hearlngs d1scussed by Intervenors, WhlCh are

13 deslgned to protect due process rlghts agalnst lmproper lnvoluntary

14 conflnement.

15

The ava1labllity of one type of hear1ng does not necessarlly

16 foreclose the avallabil1ty of the other--the due process rights at

17 lssue here do not cancel each other out. The Court need not declde at

18 this tlme whether elther sort of hear1ng 1S necessary or proper under

19 state or federal law.

20

Intervenors have not shown Plalntlffs' requested rel1ef to be

21 lnval1d as a matter of law, nor have they shown any need for thlS

22 Court to declde the matter. Intervenors' mot1on lS DENIED as to the

23 flrst and thlrd § 1983 counts of the SAC.

24

4. Other § 1983 Counts

25

Plalntlffs have not at thls tlme offered arguments or eVldence

26 support1ng the second § 1983 count (equal protectlon) and fourth

27 § 1983 count (denlal of r1ghts under the Developmental Dlsabl1ltles

28 Act (DDA)) of the SAC. Plalntlffs' motion 1S DENIED as to these

H IDOCSIGLTALLILCIIClVI1197197·219197·0219 mSJten

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 16 of 19

1 counts.

2

State Defendants move for Judgment as a matter of law on the

3 fourth § 1983 count of the SAC, argulng the SAC falls to allege facts

4 and law tYlng the four Indlvldual State Defendants to any speclflc

5 vlolatlons of the DDA.12/ Plalntiff has offered no argument or

6 eVldence in Opposltlon to thlS portlon of State Defendants' motlon.

7 State Defendants' motlon lS GRANTED as to the fourth § 1983 count of

8 the SAC.

9 C. In)Unctlve Rellef

10

As dlscussed above 1n th1S Order, Plalntlffs' motlon 1S denled as

11 to all counts of the SAC. Plaintiffs have not achleved the ~actual

12 success" on the mer1ts which would be requlred to support a permanent

13 lnJunctlon. Slerra Club v. Penfold, 857 F.2d 1307, 1318 (9th Clr.

14 1988). Plalntlffs' motlon 1S DENIED as to InJunctlve rellef.

15

State Defendants move for Judgment 1n theIr favor on the lssue of

16 InJunct1ve rellef. They contend there IS no lmmlnent threat of lnjury

17 to any of the Plalntlffs because none of them are currently belng

18 consldered for communlty placements.

19

The threat of lrreparable injury IS not a signIfIcant

20 conSlderat1on when determ1nlng whether a permanent lnJunctlon should

21 lssue. As the Nlnth Clrcult observed 1n SIerra Club: ~[Wlhen actual

22 success on the merlts lS shown, the Inqulry lS over and a party IS

23 entltled to rellef as a matter of law Irrespectlve of the amount of

24 Irreparable InJury which may be shown." l.!;L. at 1318 n. 16.

25

Though Defendants may not now be seeklng communIty placements for

26
121 As discussed in the Court's July 15, 1997 Order, the
27 Eleventh Amendment bars Plalntlff from assertlng § 1983 clalms
against state agencies. Only the four individual State 28 Defendants are at issue here.

HIDOCSIGLTALLILC lIClv!l197197·219\97·0219 mSjten

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Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 17 of 19

1 Plaintlffs, there lS no way to be certaln thlS wlII not change In the

2 future. If Plalntiffs prevail on any of thelr survlvlng clalms,

3 lnjunctive rellef protectlng them against such a change may be

4 approprlate. Judgment for State Defendants on the lssue of permanent

5 lnJunctlve relief lS not approprlate at thls tlme, and thelr motlon lS

6 DENIED as to thls lssue.

7 D. Intervenors' Clalms

8

Intervenors move for partlal summary Judgment agalnst State

9 Defendants on the second .clalffi for rehef (violatlon of § 1983 based

10 on denlal of due process) and fourth clalm for rellef (vlolatlon of

11 ADA lntegratlon mandate) of the FACI. Both clalms challenge State

12 Defendants' pollcy of refuslng to place DC residents in the communlty

13 If a famlly member, conservator, or legal representatlve obJects.

14 State Defendants concede In their papers and at oral argument that

15 such a "veto" practice eXlsts. State Defendants' Opp. (Intervenors'

16 Motlon) 2. They argue, however, that the practlce is supported by

17 Callfornla law and sound pollcy ]ustlflcatlons.

18

State Defendants contend thelr POllCy lS Justlfled by language In

19 the Lanterman Act, Gal. Welf. & Inst. Code § 4500 et seq. For

20 example, Cal. Welf. & Inst. Code § 4502.1 provides agencles provldlng

21 serVlces to developmentally dlsabled people "shall respect the cholces

22 made by consumers or, where approprlate, thelr parents, legal

23 guardlan, or conservator." Other sectlons, such as Cal. Welf. & Inst.

24 Code § 4500.5, demonstrate some Legislatlve lntent to lnclude famllles

25 In the declslonmaklng process.

26

These provlslons, however, are not a sufficient legal

27 Justlflcatlon for State Defendants' apparent veto polley. The above-

28 clted prOV1Slons and some other provlslons of the Lanterman Act allow

H IDOCSIGLTALLILCl\C1VI1197197-219197-0219 m'Jten

17

Case 8:97-cv-00219-GLT-AN Document 393 Filed 03/27/2000 Page 18 of 19

1 cla~m. The rights conferred by the "~ntegrat~on mandate" of the ADA

2 are more spec~f~c and fact-based, and Intervenors have made no factual

3 show~ng.

4

The integrat~on regulat~on of the ADA prov~des for "the most

5 ~ntegrated sett~ng approprlate to the needs of qual~f~ed ~nd~vlduals

6 w~th dlsablht1es." 28 C.F.R. § 35.130(d) (emphas1s added).

7 Intervenors have argued the1r mot1on solely as a matter of law and

8 have not offered any ev~dence of the needs of the ~nd~v~duals at ~ssue

9 here. The ~ntegrat~on regulat~on cannot be v~olated unless a den~al

10 of commun1ty placement has occurred Wh1Ch lS lnappropr~ate to the

11 needs of the ~ndlv1dual involved. Absent some eV1dence th~s has

12 occurred, the Court cannot f1nd a v~olation of the ADA.

13

Summary Judgment 1S 1nappropr~ate as to the fourth cla1m for

14 rel1ef of the FAGI and Intervenors' motion lS DENIED as to th~s cla~m.

15

16 DATED: March 24, 2000.

17

18

G L. TAYLOR

19

UNITED STATES DISTRICT JUDGE

20

21

22

23

24

25

26

27

28

HIDOCS\GLTALLILCI\ClVIl\97\97-219197-0219 mSJten

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Case 8:97-cv-00219-GLT-AN

o.!lU
Document 393

1_ Uo.Vt:: ,LLLClUt::: llU .LC1L.-LUCl..L.
Filed 03/27/2000 Page 19 of 19

1 the l.nyolvement of faml.ly members or conservators "where approprl.ate."

2 The Lanterman Act, however, provl.des very few concrete rights to

3 faml.ly members and conservators. 13/ Moreover, l. t reaffl.rms a

4 fundamental prl.nciple whl.ch the courts have also repeatedly reaffl.rmed

5 l.n decl.Sl.ons ll.ke Tn re HOJ;!: "[p]ersons wl.th developmental

6 dl.sabl.ll.tl.es have the same legal rl.ghts and responsl.bl.ll.tl.es

7 guaranteed all other l.ndl.vl.duals by the Unl.ted States Constl.tutl.on and

8 laws and the Constl.tutl.on and laws of the State of Call.fornl.a." Cal.

9 Welf. & Tnst. Code § 4502.

10

By gl.vl.ng parents, conservators, and other legal representatl.ves

11 veto authorl.ty to overrule DC resl.dents' preferences and/or best

12 l.nterests, the State Defendants' poll.cy allows such resl.dents' rl.ghts

13 to be, l.n effect, waived by thl.rd partl.es. No matter how well-meanl.ng

14 these thl.rd partl.es may be, such an automatl.C veto poll.cy l.S not

15 appropnate.

16

Summary Judgment l.S approprl.ate on Intervenors' § 1983 due

17 process c1al.m enJoining any such veto poll.cy. Vl.ews of thl.rd partl.es

18 may be taken into consl.deratl.on l.n a wel.ghing process to reach an

19 approprl.ate decl.sl.on, but such Vl.ews must not be conclusl.ve.

20

Partl.al Summary Judgment is approprl.ate as a matter of law on

21 thl.s aspect of the second clal.m for rell.ef of the FACI, and

22 Intervenors' motl.on l.S GRANTED as to thl.s portl.on of the clal.m. The

23 Court wl.ll l.ssue an approprl.ate inJunctl.on conforml.ng to thl.s Order.

24

Summary Judgment is inapproprl.ate, however, on Intervenors' ADA

25
13/ Their consent is required for provl.sional placement in a
26 regional center under § 4508 and for electroconvulsive therapy or behavl.or modl.fl.cation under § 4505. They are also entitled to
27 certal.n l.nformatl.on about a resl.dent's status under § 4514.5.
These are the only express rights conferred on family members, 28 guardians, and conservators under the Lanternman Act.

H \DOCS\GLTALL\LCI\Clv~197197-219\97-0219 mSJten

18

 
 \

Case 8:97-cv-00219-GLT-AN Document 398 Filed 04/24/2000 Page 1 of 2

1

.2 ., .

• 3

4

, I

=XV~pennordity
=x Clsd Enter
-- JS-5IJS-6 JS-2IJS-3

FILED

ft.PR 2 4 2f1QO

CLERK, U S DISTRICT COURT

CENTRAL DISTRICT OF CAUFORNIA

SOUTHERN DIVISION AT SANTA ANA

BY

DEPUTY

5 ,!

L....

6

CL~<,(,
CENTR-"AL •N•."""

-""d"""'r

at: . ' .::.

SANTAANA \ld'I

. -.\_-"~ ,'" -

'••
C"

,~,

UNITED STATES DISTRICT COURT

~~~____------------~~NTRAL DISTRICT OF CALIFORNIA

8

SOUTHERN DIVISION

9 RICHARD S., et al.,

)

)

10

Plaint~ffs,

)

)

11

vs.

)

)

12 DEPARTMENT OF DEVELOPMENTAL )

SERVICES OF THE STATE OF

)

13 CALIFORNIA, et al.,

)

)

14

Defendants,

)

)

15

vs.

)

)

16 BARBARA BELL, et al.,

)

)

17

Intervenors.

)

18 ------------------------)

Case No. SA CV 97-219-GLT(ANx)
PERMANENT INJUNCTION
""2 ,~ Docketed
Copies I NTC Sent _ JS - 5 IJS-6 _ JS - 2 I JS-3
_CLSD

19

The parties' respective mot~ons for summary judgment in this

20 matter were heard before this Court on March 20, 2000. Among these

21 motions was intervenors' motion for summary adjud~cation of the~r

22 claims against State Defendants challenging State Defendants' policy

23 of refusing to place adult developmental center residents ~n the

24 community if a family member, conservator, or legal representative

25 objects, absent a court order for placement. The Second claim for

26 Relief of intervenors' First Amended Complaint in Intervention alleged

27 that the policy violated 42 U.S.C. section 1983 based on a den~al of

28 due process.
H IDOCS\GLTALLILCI \ClVd'97\97·219197"()219 pm)

3ct
tNTER£D ON IC~J.S _ __ APR 25 2000

Case 8:97-cv-00219-GLT-AN Document 398 Filed 04/24/2000 Page 2 of 2

1

By Order on Motions for Summary Judgment, dated Ma-rch 24, 2000

2 and flIed March 27, 2000, this Court granted intervenors' motion

3 challenging the policy based on intervenors' section 1983 due process

4 claim. The Court held summary Judgment on this aspect of lntervenors'

5 claim is appropriate as a matter of law.

6

IT IS ORDERED, therefore, that State Defendants, Department of

7 Developmental services of the State of California (DDS), Fairview

8 Developmental Center (FDC) , South Coast Regional Project (SCRP),

9 Clifford Allenby, as Dlrector of DDS, Hugh Kohler, as Executive

10 Director of FDC, Lilla Tan Figueroa, M.D., as Medical Director of FDC,

11 and Dawn Lemonds, as Director of SCRP, their officials, employees and

12 agents, as well as successors, are permanently enjoined from

13 implementing or continuing any policy, practice or procedure of, as a

14 matter of course, refusing to place adult developmental center

15 residents in the community absent a court order for placement if a

16 family member, conservator, or legal representative obJects. Views of

17 such third parties may be taken into conslderatlon in a weighing

18 process to reach an appropriate decision, but such Vlews must not be

19 treated as conclusive. The State Defendants must exercise their

20 discretion, and not abandon It to third parties or the courts.

21

State Defendants shall issue such written notlce as is necessary

22 to inform their officials, employees and agents of the requlrements of

23 thls inJunction.

24
25 DATED: April ~, 2000.

26

27

G Y TAYLOR

28

UNITED STATES DISTRICT JUDGE

H IDOCSIGLTALLILCI ICJvrJ\97\97-219\97-0219 pm)

2

 
 • Case 8:97-cv-00219-GLT-AN

Document 431

•Filed 08/08/2000

Page 1 of 4

LODGED
1

2

3 ENTERED

~Uufl AUG - 4 P1112: 5I

4

5

AUG - 9 2000

6

CLERK, U S DISTRICT COURT

7

TRAL DISTRICT OF CALIFORNIA ANTA ANA OFFICE

,:: ~R ~, tl S. (!"i F'CT COURT'

CENTRAoL

DIS T Or CALIF. NtZLES

f

!

.

.

y

-

+

-

I

t

-

+

-

-

-

-

+ CLERK. U S. DISTRI CENTRAL DISTRICT OF BYSOUTHERN DIVISION Pi

T COURT
CSAALNIFToAntNIA~

DEPUTY

8 9

UNITED STATES DISTRICT COURT

~ Pno Ity
Sen

FOR THE CENTRAL DISTRICT OF CALIFORNIA

Fnt r

10

Clo ed _

IS- /JS-6 _

11 RICHARD S., eLaL

) CASE NO SACV97-219-GLT (ANx) -'S- /JS-3 -
:,ca Only-

12

Plamtiffs,

[Ue!' j~tl"'l

13

v.

14 'DEPARTMENT OF DEVELOPMENTAL SERVICES OF THE STATE
15 OF CALIFORNIA, et al. ,

16

Defendants,

v

17

BARBARA BELL, et aI.,

18

Intervenors,

19

ORDER GRANTING STATE DEFENDANTS' MOTION FOR ORDER DISSOLVING AMENDED PRELIMINARY INJUNCTION AND EXONERATING BOND
)
1 Courtroom ofHon Gary L. Taylor
) ) )

20

Defendants DEPARTMENT OF DEVELOPMENTAL SERVICES OF THE

21 STATE OF CALIFORNIA, FAIRVIEWDEVELOI>MENTAL CENTER, SOUTH COAST

22 REGIONAL PROJECT, CLIFFORD ALLENBY, as Director of the DEPARTMENT OF

23 DEVELOPMENTAL SERVICES OF THE STATE OF CALIFORNIA, HUGH KOHLER, as

24 Executive Director ofFAIRVIEW DEVELOPMENTAL CENTER, LILIA TAN FIGUEROA,

25 M.D., as Medical Director ofFAIRVIEW DEVELOPMENTAL CENTER, and DAWN

26 LEMONDS as DIrector of SOUTH COAST REGIONAL PROJECT (heremafter, "State

27 Defendants") haVIng filed their motion for an order dissolving the amended prehminary

28 mJunction which was Issued III tlus case on or about July 16, 1997 and pxiJc1lf:J:Jat:w.:gJhle bond _.

~Docketed

-1-

E~NT-E~R -O~--lC-MS

ilCOPies
JL.J;1

I NTC JS • 6

Sent

_JS-2/JS·3

_ CLSD~

. . !~';11'-
, ,

Al -; .11 1il 1
rvm-, Z+51

• Case 8:97-cv-00219-GLT-AN

Document 431

•Filed 08/08/2000

Page 2 of 4

1 whtch was posted by the plaIntiffs on or about July 25, 1997 In support thereof, and

2

Good cause appeanng therefor,

3

IT IS ORDERED that:

4

1 The amended prelirnmary injunction whtch was Issued In this case on or about

5 July 25, 1997 be, and hereby is, dissolved, and

6

2. The bond whtch was posted by the plamtlffs on or about July 25, 1997 In

support of the amended preliminary InJunction be, and hereby IS, exonerated A-I/ad l'ltUJ()6 Iieflnfll) J~ ~ (f..fF- cxltM1fir. , ,. a IT IS SO ORDERED.

HO. YL. TAYLOR

11

United States Dlsmct Judge

12

13
14 Presented By:
15 BILL LOCKYER, Attorney General of the State ofCahfornla
16 JOHNH. SANDERS Lead Supemsing Deputy Attorney General
17 TAMMY CHUNG RYU, State BarNo. 131385 SuperviSIng Deputy Attorney General
18 RICHARD T. WALDOW, State BarNo. 108650 SUZANNE L. SALZWEDEL, State Bar No 167538
19 Deputy Attorneys General 300 South Spring Street, Suite 900N
20 Los Angeles, CalIfOrnia 90013 (213) 897-2456 (TelqJhone)
21 (213) 897-2805 (Facsimile)
22 Attorneys for State Defendants

23 24 25

26 27

28

-2-

• Case 8:97-cv-00219-GLT-AN

Document 431

•Filed 08/08/2000

Page 3 of 4

1

DECLARATION OF SERVICE

2 CASE CAPTION: RICHARD S. , et al. v DEPARTMENT OF DEVELOPMENTAL

SERVICES OF THE STATE OF CALIFORNIA, et al.

3

CASE NO.:

SACV 97-219 GLT (ANx)

4

I am emplo)'~d)O the CounJY ofLos Angeles, Caltfornia I am 18 years of age or older and

5 not a party to the Wlthlll entitled cause, my busllless address IS 300 S. Spnng Street, Los Angeles,

Cahforma 90013

6

On August 3, 2000, I served th_e foregolllg document descnbed as [PROPOSED] ORDER

7 GRANTING STATE DEFENDANTS' MOTION FOR ORDER DISSOLVING AMENDED

PRELIMINARY INJUNCTION AND EXONERATING BOND on the parties m this actlOn as

8 follows.

9 SEE ATTACHED SERVICE LIST
10

11 METHOD OF SERVICE:

12 [ ] 13 14
15

(BY MAIL) I caused such envelope(s) fully prepaid to be placed III the United States Mall
at Los Angeles, Cahfornla I am "read!ly famlliar" with the fum's practice ofcollectIOn and processlllg correspondence of maIllllg. Under that practICe It would be deposited with the U.S. Postal Service on that same day WIth postage thereon fully prepaId at Los Angeles, Cahforma mthe ordinary course ofbusmess I aJll aware that on motion ofthe party served, service IS presumed InvalId Ifthe postal cancellatIOn date or postage meter date IS more than
one day after date of deposit for maIlmg 10 affidavit

16 [ ] 17

(BY U.P.S.!OVERNIGHT DELIVERY [CCP §1005]) I caused such envelope(s) to be dehvered to an overnight delIvery (U.P S ) fees prOVided for, addressed to the person(s) on whom It IS to be served

18 [X] (BY FAX) I caused such documents to be translllItted by facsimile to the offices of the

addressee(s) The facsimile machine used complied WIth Callforma Rules of Court, Rule

19

2003, and no error was reported by the machme.

20 []
21

(BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand to the offices of the addressee(s) [ORIGINAL PROOF OF PERSONAL SERVICE TO BE FILED UNDER SEPARATE COVER].

22 [ J
23
[ ]
24

STATE - I declare under penalty ofpeIJury under the laws ofthe State ofCaltforma that the foregolllg is true and correct.
FEDERAL - I declare that I am employed III the office of a member ofthe bar ofthis Court at whose directIOn the service was made.

25

Executed this 3rd day of August, 2000, at Los Angeles, Califorma.

26

27

28

3

• Case 8:97-cv-00219-GLT-AN

Document 431

•Filed 08/08/2000

Page 4 of 4

SERVICE LIST

(949) 548-5885

(909) 625-7772

(858) 576-2873 (916) 488-9962 (510) 839-5780

23 24 25 26 27 28
4

 
 • Case 8:97-cv-00219-GLT-AN

Document 450

••Filed 01/18/2001 •

Page 1 of 4

1 r"

2

3 4

f frtOrity
Send

l.LERK US DISTRICT COUK I

nter

5

CE'H'", '01:: IRI:;'I OF CALIFORNIA. losed

-"""'",,, ANA OFFICE DEPUTY. 5 •5! J 5 . 6 -

6 1J2..4:,&""ii"=====~=':-":l S·21J 5-3 -

5can Only-

7

8

9

10

SOUTHERN DIVISION

11 ,RlCHAEJ) S., et al.,

)

12

;;.::> ':, 1

Plamtiffs,~'

_.

."'" '-0'

)

'p
13 L,

~'2. ;~';"YIJ,;;~;l

)

~:

1.:'_': ~

)

14 ;r5~PARTMENt iF~DEVELOPMENTAL)

'S.t:.RVIG,g§ OF,'r STATE OF

)

15 CALIFORNI1,1':t ,

)

,

_~_~

I .)

"':

)

16 '

Defendants, )

)

17

vs.

)

)

18 BARBARA BELL, et al ,

)

)

19

Intervenors. )

20 ~~----------------~)

Case No. SA CV 97-219-GLT (Anx) AMENDED PERMANENT INJUNCTION

21

22

The parties' respective motions for summary judgment in this matter were heard before

23 this Court on March 20,2000. Among these motions was mtervenors' motion for summary

24 adjudication of their claims agamst State Defendants challenging State Defendants' policy of

25 refusmg to place adult developmental center residents in the conununity if a family member,

26 conservator, or legal representative objects, absent a court order for placement. The Second

27 Claim for Relief of mtervenors' First Amended Complaint in Intervention alleged that the policy
28 vlolated42U.S.C. section 1983 based ona demal of due process. ENTER ON leMS

•• Case 8:97-cv-00219-GLT-AN

Document 450

•Filed 01/18/2001

Page 2 of 4

1
By order on Motions for Summary Judgment, dated March 24,2000, and filed March 27,

2 2000, tins Court granted intervenors' motion challenging the policy based on intervenors' section

3
1983 due process claim. The Court held summary judgment on this aspect of mtervenors' claim IS

4 appropriate as a matter of law.

5

IT IS~ORDERED, therefore, that State Defendants, Department of Developmental Services

6 of the State of California (DDS), Fairview Developmental Center (FDC), South Coast Regional

7 Project (SCRP), Clifford Allenby, as Director of DDS, Hugh Kohler, as Executive Director of

8 FDC, lilIa Tan Figueroa, M.D , as Medical Director of FDC, and Dawn Lemonds, as Drrector

9 of SCRP, their officials, employees and agents, as well as successors, are permanently enJomed

10 from tmplementmg or continuing any policy, practice or procedure of, as a matter of course,

11 refusmg to place adult developmental center residents in the communIty absent a court order for

12 placement if a farruly member, conservator, or legal representative objects Views of such third

13 parties may be taken into consideratIOn m a weighing process to reach an appropriate decision, but

14 sucli views must not be treated as conclusive. The State Defendants must exerCIse their discretIOn

15 in making placement recommendations and Identifying appropriate placements and not abandon It

16 to third parties or the courts.

17

State Defendants shall issue such written notice as is necessary to inform their officials,

18 employees and agents of the requirements of this injunction.

19 20 Dated:

!"~{>b\

21

22

23

24

25

26

27

28

• Case 8:97-cv-00219-GLT-AN

Document 450

'.Filed 01/18/2001

Page 3 of 4

1

DECLARATION OF SERVICE

2 CASE CAPTION: RICHARD S., et al. v. DEPARTMENT OF DEVELOPMENTAL

SERVICES OF THE STATE OF CALIFORNIA, et al. v. BARBARA

3

BELL, etal

CASE NO.:

SACV 97-219 GLT (ANx)

4

I am employed in the County ofLos Angeles, California. I am 18 years ofage or older and

S not a party to the withm entitled cause; my business address is 300 S. Spnng Street, Los Angeles,

California 90013

6

On November 13, 2000, I served the foregomg document descnbed as: AMENDED

7 PERMANENT INJUNCTION on the parties In this action as follows.

8 SEE ATTACHED SERVICE LIST
9

10 METHOD OF SERVICE:

11 [Xl 12 13 14

(BY MAIL) I caused such envelope(s) fully prepaid to be placed in the United States Mall
at Los Angeles, CalIforrua. I am ''readIly famtlIar" with the finn's practice ofcollection and processing correspondence of mailmg. Under that pracllce It would be depOSited With the
U.S. Postal ServIce on that same day with postage thereon fully prepatd at Los Angeles, California in the ordinary course ofbusiness. I am aware that on motion ofthe party served,
servIce is presumed Invahd ifthe postal cancellatIOn date or postage meter date IS more than one day after date of depOSit for matlmg m affidaVIt.

15 [1 (BY U.P.S.!OVERNIGHT DELIVERY ICCP §1005]) I caused such envelope(s) to be

delIvered to atl oventlght delivery (U.P S.) fees proVided for, addressed to the person(s) on

16

whom It is to be served.

17 [] 18

(BY FAX) I caused such documents to be tratlsmitted by facsimile to the offices ofthe addressee(s). The facsunile maclune used complIed with California Rules ofCourt, Rule 2003, atld no error was reported by the maclune.

19 [1 (BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hatld to the

offices of the addressee(s). [ORIGINAL PROOF OF PERSONAL SERVICE TO BE

20

FILED UNDER SEPARATE COVER).

21 []
22 [X]
23

STATE· I declare under penalty ofpeIjury under the laws ofthe State ofCalifontla that the foregoing is true atld correct.
FEDERAL - I declare t1tat I am employed m the office ofa member ofthe bar oftlus Court at whose direction the service was made.

24

Executed this 13th day ofNov er, 2000, at Los Angeles, CalIfornia.

2S

~~~~~

26

27
DoeketNo 13402140LAI997CV0583
28

Case 8:97-cv-00219-GLT-AN

Document 450

••Filed 01/18/2001

Page 4 of 4

1

SERVICE LIST

2

3 Ronald R. House, Esq.
SAN DffiGO REGIONAL CENTER 4 4355 Ruffin Road, #204
San Diego, CA 92123-1648
5 (858) 576-2873

6 Enc Gelber Esq
PROTECTION & ADVOCACY 7 100 Howe Avenue, #235 North
Sacramento, CA 95824-8202
8 (916) 488-9960

9 Ellen Goldblatt, ~ PROTECTION ADVOCACY
10 449 - 15TH Street, #401 Oakland, CA 94614
11 (510) 839-5780

12 Francis X. Hardiman, Esq. Margaret Calull, Esq.
13 HARDIMAN & CAHILL 2482 Newport Blvd, #5
14 Costa Mesa, CA 92626
(949) 548-5885
15 Herbert Hafif, Esq.
16 Patricia M. L~e, Esq. LAW OFFIC S OF HERBERT HAFIF
17 269 W. Bonita Ave
Claremont, CA 91711-4784 18 (909) 625-7772

19

20

21

22

23

24

25

26

27

28

 
 Case 8:97-cv-00219-GLT-AN

Document 451

•Fil.e-d 01/18/2001

Page 1 of 6

1

i ' 2

ENTERED 3

4

~~~~rpnOrlty -L

5
6

JAN 22 2001

~~~~~~~ ~~;~JOnlY=

7

\~CNL~ERIKS. TuRsIDCITSTORFICCTACLOIFUORRTNIA

FILED
. L-- I JAN I 8 2001
CLERK. U ~ (JlsTRtC-r-CO"'-!URT

IlA..., ANTA ANA OFFICE

BY

DEPUTY

C~NT AAL

DISTHtCT OF.
Q No

CALI
Q A

'AHANNIAA

8

UNITED STATES DISTRICT COI ¥f>UT"HE.R.N O-IVlvl ,I "." j~DE~ ? ~'

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

12 RICHARD S., CYNTHIA R.,

) Case No.: SACV97-219 OLT (AlIX)

VALDINA,R., and ROES 1 through 2500, )

13 individually,and on behalf of all those

) [PR,61@!lEfj'J JUDGMENT

smtilarly situated by WILLIAM CABLE, )

14 1'''

MTliI~tSeb,~fDteaLbsE~GY~Jbu'ayirsdadinaadn1teAh,rdoRuLAgithYemhMe,OrMgNuEDaLrdIMSiaSAnASaAdO

) ) )

G. KA Vi!.AGUC;I{l, by and through Ins

)

PIIP 16'" consID'ato!,;,Margaret Reade, SHEILA )

;: WILLIAMS,;:By and through her conservator )

iT::: EssierR-ogers;

WILSON, by and )

tbrougfLhis ~ns tor, Betty Gray, and )

ROES..2501.tIlrou 5000, DEBBIE

)

18 TISDALE, individually, and on behalf of the·)

19' CALIFORNIA ASSOCIATION OF STATE )

HOSPITAL PARENT COUNCILS FOR )

20 THE RETARDED, aka (CASH/PCR),

)

ASSOCIATION FOR RETARDED

)

CITIZENS - CALIFORNIA, aka (ARC- )

21 CAL), SACRAMENTO ASSOCIATION )

22 FOR THE RETARDED, INC., aka (ARC- )

SACRAMENTO)

)

23

)
Plaintiffs, )

24

vs

) )

)

25 DEPARTMENT OF DEVELOPMENTAL )

SERVICES OF THE STATE OF

)

26 CALIFORNIA, DONNA E SHALALA, m )

27 her capacity as Secretary of the

)

DEPARTMENT OF HEALTH AND HUMAN SERVICES, FAIRVIEW 28 DEVELOPMENTAL CENTER, SOUTH COAST REGIONAL PROJECT, HARBOR REGIONAL CENTER,

)

1:)
) )

)

Docketed

REGIONAL CENTER OF ORANGE COUNTY, SAN DIEGO REGIONAL

)

COPje~~ent

) ~ JS-~ 5 J .6

CENTER, SOUTH CENTRAL LOS

) _ JS . 2/ .3

[Proposed] Judgment - Case No. SCV97-219 GLT (Anx) - CLSD

1

Case 8:97-cv-00219-GLT-AN Document 451

1

2 ANGELES REGIONAL CENTER,

)

WESTSIDE REGIONAL CENTER,

)

3

CLIFFORD ALLENBY, as Director of the DEPARTMENT OF DEVELOPMENTAL

) )

SERVICES STATE OF

)

4 CALIFORNIA, HUGH KOHLER, as

)

ExecutIve Director of FAIRVIEW

)

5 DEVELOPMENTAL CENTER, LILIA TAN)

6 FIGUEROA, M D., as Medical Director of )

FAIRVIEW DEVELOPMENTAL CENTER)

7 DAWN LEMONDS, as Director of SOUTH )

COAST REGIONAL PROJECT,

)

8

)
Defendants )

9

vs

) )

)

10 BARBARA BELL, DONNA PLOUFFE )

JEFFREY CASON, individually and on )

11 behalf of all others similarly situated; SELF- )

ADYOCACY BOARD OF LOS ANGELES )

12 COUNTY; AUTISM SOCIETY OF LOS )

13 ANGELES,

)

14

~ Intervenors.

•Filed 01/18/2001

Page 2 of 6

15

16

The parties' respectIve motions for summary judgment/summarj adjudication were heard

17 by this Court on March 20,2000. On March 28,2000, this Court entered its Order on Motions

18 for Summary Judgment, denying plaintiffs' motion and granting in part and denying in part

19 intervenors' and defendants' motIons. Intervenors' motion for summary adjudication was

20 GRANTED as to the fIrst count of plaintiffs' Second Amended Complaint (SAC) pertaining to the

21 Americans with DIsabilities Act. Defendant Regional Center of Orange County's partIal summary

22 Judgment motion was also GRANTED on this count. Intervenors' summary adjudication motIon

23 was also GRANTED as to the second claim for relief of the First Amended Complaint m

24 Intervention, allegmg violation of 42 U.S.C. section 1983 based on denial of due process and a 25 permanent injunction was entered thereon on Apri125, 2000. State defendants' motIon for partial

26 summary judgment was GRANTED as to the third and fourth counts of the SAC pertaining to 42

27 U.S.C. section 1983.

28 11/

[Proposed] Judgment - Case No. SCV97·219 GLT (Anx)

2

Case 8:97-cv-00219-GLT-AN Document 451 Filed 01/18/2001 Page 3 of 6

1

2

Based upon the above, IT IS HEREBY ORDERED, ADJUDGED AND DECREED·

3

L

4

That the Older on Motions for Summary Judgment, entered on March 28,2000, and the

5 permanent injunction issued pursuant thereto, entered on April 25, 2000, shall become final, shall

6 remain in full force and effect, and shall be incorporated in tIus Judgment.

7

a

8

Plaintiffs' and intervenors' remaining clauns-whlch were not resolved by this Court in Its

9 Order on Motions for Summary Judgment-are as follows: Counts two through six pertammg to I

10 the Amencans With DisabIlitIes Act, and counts one and two pertammg to 42 U.S.C. section 1983 .

11 of plaintiffs' Second Amended Complaint, and the first, thlfd and fourth clarms for rellef of

12 intervenors' Flfst Amended Complamt m Intervention. The parties have settled these remainmg

13 claims and a settlement agreement was filed with the Court on August 29,2000 Unless otherwise

14 agreed to by the parties and approved by the Court, the partIes' time for filing and serving their

15 respective motions for attorneys' fees and costs shall be deemed to commence from the date thiS

16 Judgment is entered and shall be calculated m accordance With applicable statutes and federal and

17 local rules.
18 DATED:
19
20

\- ~(Vl
I

L. United States District Judge

21

22

23

24

25

26

27

28

[Proposed] Judgment - Case No. SCV97·219 GLT (Anx)

3

Case 8:97-cv-00219-GLT-AN Document 451 Filed 01/18/2001 Page 4 of 6

1
Approved as to content and form: 2
DATED: }htltmk-- 'It jlI1l)
3
4
5
6
7
8
9
10 DATED~7t~
11
12
13
14
15 DATED' ~ ?, wv-v
16
17
18
19
20 DATED: ~ 9, J.-tni:>
21
22
23
I
22451I DATE'-D.II~. (J, ~
I
26 i
.1
27 i'
I
28 I
,
\,
I

BILL LOCKYER, Attorney General of the State of California JOHN H. SANDERS Lead Supervising Deputy Attorney General TAMMY CHUNG RYU Supervising Deputy Attorney General RICHARD T. WALDOW SUZANNE L. SALZWEDEL Deputy Attorneys General

13Y: ?~~RYlT

Attorneys for State Defendants

HARDIMAN & CAHILL

~ ~ ~

~ !",-~..

~. ~

It-1-(/ll

By: =--;:M-;-/;"'G;-:'A-;::'RE~T""'M""'-:.C"'"'A~HI:";;L"L-,""'ES"'Q'.-

Attorneys for Plaintiffs

LAW OFFICES OF HERBERT HAFIF f) ..

fi& By, rj~ k.

t.,~' .
ct:t;:::,

PATRICIA M. LTLE: ESQ.

Attorneys for Plaintiffs

I!.! PROTECTION & ADVOCACY, INC. h.... ~ tltri..
. 13y· ~ ;:/!", ,~ //1" ~f;~ 7 ' .'
ELLEN S. GOLDBLATT, ESQ. 1'__, -va
..A. ttorneys for Intervenors
AbU,. RONALD R. HOUSE
~ _By: RON~H~O~US=E~,=ES~Q~.--------
Attorney for Defendant San Diego RegIOnal Center

[Proposed] Judgmtnt - Case No. SCV97-219 GLT (Anx)

4

• Case 8:97-cv-00219-GLT-AN

Document 451

•Filed 01/18/2001

Page 5 of 6

1

DECLARATION OF SERVICE

2 CASE CAPTION: RICHARD S., et al. v. DEPARTMENT OF DEVELOPMENTAL

SERVICES OF THE STATE OF CALIFORNIA, et aI. v. BARBARA

3

BELL, etal

CASE NO.:

SACV 97-219 GLT (ANx)

4

I am employed in the County of Los Angeles, California. I am 18 years of age or older and

5 not a party to the within entitled cause; my business address IS 300 S Spring Street, Los Angeles,

Califorrua 90013

6

On November 13, 2000, I served the foregoing document described as [PROPOSED)

7 JUDGMENT on the partIes In thIs actIOn as follows

8
SEE ATTACHED SERVICE LIST 9

10 METHOD OF SERVICE:

11 [Xl 12 13 14
15 [1
16

(BY MAIL) I caused such envelope(s) fully prepaId to be placed in the Umted States MaIl at Los Angeles, CalIforma Iam "readily faIniliar" with the firm's practice ofcollectIon and processing correspondence of mallmg. Under that practice it would be deposited with the U S. Postal Semce on that same day with postage thereon fully prepaId at Los Angeles, Califorma in the ordmary course ofbusiness I am aware that on motion ofthe party served, semce IS presumed invalid Ifthe postal cancellation date or postage meter date is more than one day after date ofdeposit for mailmg In affidaVIt.
(BY U.P.S.!OVERNIGHT DELIVERY [CCP §1005]) I caused such envelope(s) to'be delivered to an overrught delivery (U.P.S.) fees provided for, addressed to the person(s) on whom It is to be served.

17 [1
18
19 [ 1
20

(BY FAX) I caused such documents to be transmitted by facsimile to the offices of the addressee(s). The facsimile machine used complied with California Rules of Court, Rule 2003, and no error was reported by the machIne
(BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand to the offices of the addressee(s). [ORIGINAL PROOF OF PERSONAL SERVICE TO BE FILED UNDER SEPARATE COVER].

21 [1
22 [Xl
23

STATE - I declare under penalty ofpeQury under the laws ofthe State ofCaliforrua that the foregomg is true and correct
FEDERAL - I declare that I am employed in the office ofa member ofthe bar ofthis Court at whose direction the ServIce was made.

24

Executed this 13th day ofNo

25

26
27
DocketNo 13402140LA1997CV0583
28

Declarant

•• Case 8:97-cv-00219-GLT-AN

Document 451

•Filed 01/18/2001

Page 6 of 6

1

SERVICE LIST

2

3 Ronald R. House, Esq.
SAN DIEGO REGIONAL CENTER 4 4355 Ruffin Road, #204
San Diego, CA 92123-1648 5 (858) 576-2873

6 Eric Gelber Esq
PROTECTION & ADVOCACY 7 100 Howe Avenue, #235 North
Sacramento, CA 95824-8202
8 (916) 488-9960

9 Ellen Goldblatt, Esq PROTECTION AND ADVOCACY
10 449 - 15TH Street, #401
Oakland, CA 94614 11 (510) 839-5780

12 Francis X. Hardiman, Esq. Margaret Cahill, Esq.
13 HARDIMAN & CAHILL
2482 Newport Blvd., #5 14 Costa Mesa, CA 92626
(949) 548-5885 15
Herbert Hafif: Esq 16 Patricia M. Lytle, Esq.
LAW OFFICES OF HERBERT HAFIF 17 269 W. Bonita Ave.
Claremont, CA 91711-4784 18 (909) 625-7772

19

20

21

22

23

24

25

26

27

28

 
 • Case 8:97-cv-00219-GLT-AN

Document 453

•Filed 01/24/2001

Page 1 of 6

1 Francls X. Hardiman, Bar No. 140504 HARDIMAN & CAHILL
2 2482 Newport Blvd., sUlte 5 Costa Mesa, Callfornia 92627
3 (949) 548-5522; Fax (949) 548-5885

4 Herbert Haflf, Bar No. 27311

Patrlcla M. Lytle, Bar No. 101712 5 LAW OFFICES OF HERBERT HAFIF

JAN 24 :2001

269 West Bonlta Avenue

6 Claremont, Callfornla 91711-4784

(909) 624-1671

7
J 8 Attorneys for :1~;:~::R:I:CHARD~~~S~'______

_~iontY

OGED

E N J J ; R E B I COURT IFORNIA

=~dd Enter

JAN 13 2COi

_JS-5/JS-6 _JS-2/JS-3

2500,

-----.I, and on behalf of

15

those Slmllarly sltuated by WILLIAM CABLE, M.D. as Guardlan

16

ad Lltem, MELISSA TISFA.LE, by and through her Guardlan ad

17

Litem, Debby Tlsdale, RAYMOND MASAO KAWAGUCHI, by and through

18

hlS conservator, Margaret Reade, SHEILA WILLIAMS, by and

19

through her conservator, Essle Rogers, PHILIP WILSON, by and

20

through his conservator, Betty Gray, and ROES 2501 through

21

5000, DEBBIE TISDALE, lndlvldually, and on behalf of

22

the CALIFORNIA ASSOCIATION OF STATE HOSPITAL PARENT COUNCILS

23

FOR THE RETARDED, aka (CASH/PCR), ASSOCIATION FOR

24

RETARDED CITIZENS - CALIFORNIA, aka (ARC-CAL), SACRAMENTO

25

ASSOCIATION FOR THE RETARDEDD, INC., aka (ARC-SACRAMENTO)

Docketed

Plaintlffs,

2~'JCoOtes / NTC Sent

2

• SACV97~219 GLT (ANx) JUDGE: GARY L. TAYLOR STIPULATION FOR DISMISSAL AND
ORDER THEREON
[F.R.C1V.P. 41 (a) (1) 1
courtroom of the Hon. Gary Taylor
J: " ..J if ';:Ii 'tc ,,~~ ...." -. '" • +
EN1JR ON lGMS

1.aw Offices Of
------HERBERT HAFIF
"9~Wmcn80\nJCU~A9v\e1n\u1e

- 1S'nPUlATION FOR MODIFICATION OF PERMANENT INJUNCTION AN

ER THER)WN

• Case 8:97-cv-00219-GLT-AN

Document 453

•Filed 01/24/2001

Page 2 of 6

1 DEPARTMENT OF DEVELOPMENTAL

2

SERVICES OF THE STATE OF CALIFORNIA, DONNA E. SHALALA,

3

In her capaclty~as Secretary of the DEPARTMENT OF HEALTH AND

4

HUMAN SERVICES, FAIRVIEW DEVELOPMENTAL CENTER, SOUTH

5

COAST REGIONAL PROJECT, HARBOR REGIONAL CENTER, REGIONAL

6

CENTER OF ORANGE COUNTY, SAN DIEGO REGIONAL CENTER, SOUTH

7

CENTRAL LOS ANGELES REGIONAL CENTER, WESTSIDE REGIONAL

8

CENTER, CLIFFORD ALLENBY, as Director of the DEPARTMENT OF

9

DEVELOPMENTAL SERVICES STATE OF CALIFORNIA, HUGH KOHLER, as

10

Executlve Dlrector of FAIRVIEW DEVELOPMENTAL CENTER, LILIA TAN

11

FIGUEROA, M.D., as Medlcal Dlrector of FAIRVIEW

12

DEVELOPMENTAL CENTER, DAWN LEMONDS as Dlrector of SOUTH

13

COAST REGIONAL PROJECT, Defendants.

14 BARBARA BELL AND DANNY WARREN,

15

Intervenors.

16

17 TO: THE COURT, ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF

18 RECORD:

19

IT IS HEREBY STIPULATED by and between the partles to

20 thls actlon through their deslgnated counsel that the followlng

21 clalms and the requested rellef for these clalms of Plalntlffs In

22 the above entltled actlon:

23 (1)

Counts Two through SlX of the Second Amended Complaint,

24
25
26 (2)

for violatlon of T~tle II of the Amerlcans wlth Disabllltles Act; Count One, for vlolatlon of Due Process, 42 U.S.C. §1983,

27 28 (3)

and Count Two, for violatlon of Equal Protectlon, 42 U.S.C.

- 2-

uwOffit;e5 of HERBERT HAFIF 69 W BoMa Avenue laremont, CA 91711

STIPULATION FOR MODIFICATION OF PERMANENT INJUNCTION AND ORDER THEREON

""""IIQM'lf:III~IJ
... _ _ "" ,.~-",r"".~ _--"~~~~~~~_~~""""""""",,,,,,""",_,,_,,""",,~_~

"~"~""

• Case 8:97-cv-00219-GLT-AN

Document 453

•Filed 01/24/2001

Page 3 of 6

1

§1983 be and are hereby ~smlssed wlth pre]udlce pursuant

2

to a written executed Settlement Agreement between the

3

partles, a copy of which has been prevlously led WIth

4

thIS Court, and WhICh prImary terms were placed on the

5

record _befo~e MagIstrate Judge, Honorable Arthur

6

Nakazato on March 30, 2000_ and~hereafter on June 15,

7

2000.

8 IT IS SO STIPULATED.

9 Dated: '''"",-01 10

HARDIMAN & CAHILL, APC
.By, M*"1:fr.~~/~¢/ Attorney for PlaIntIff

BILL LOCKYER, Attorney General of the State of CalIfornIa, JOHN H. SANDERS, Lead SupervISIng Deputy Attorney_General, TAMMY CHUNG RYU, SupervlsIng Deputy Attorney General, RICHARD T. WALDOW, SUZANNE L. SALZWEDEL, Deputy Attorneys
General

By: -"-;~

U
g Deputy Attorney General
for State Defendants

PROTECTION & ADVOCACY, INC.

Law Offices of HERBERT HAFIF
'59 W Bonl!a Avenue
',,,,mont. CA 91711 ~~~ oortC)deap. . .

- 3-
STIl?ULATION FOR MODIFICATION OF PERMANENT INJUNCTION AND ORDER THEREON

• Case 8:97-cv-00219-GLT-AN

Document 453

•Filed 01/24/2001

Page 4 of 6

1 Dated: 1~;"J-t:>1

RONALD R. HOUSE, ESQ.

2 3

By ~;£,f &'ql&; 4 ;1+~1f

'RONALD R. HOUSE,

'-11

4

Attorney for San Dlego Reglonal center

5

6
7 DATE, j:;.i~ J
8
9 III
10 III
11 III
12 III l3 III

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Law Offices of HERBERT HAFJF
/:$'$''W.moB"O~r'uCtaAA9\l1en71u1e
0rJQi1~\\rlt~~~
onfllCyd""fI4!I'

- 4-
STIPULATION FOR MODIFICATION OF PERMANENT INJUNCTION AND ORDER THEREON

• Case 8:97-cv-00219-GLT-AN

Document 453

•Filed 01/24/2001

Page 5 of 6

1

PROOF OF SERVICE

2 STATE OF CALIFORNIA

ss.

COUNTY OF LOS ANGELES

3

I am employed in the County of Los Angeles, State of

4 Californla. I am over the age of 18 and not a party to the

wlthin action. My bUSlness address lS 269 W. Bonlta Avenue,

5 Claremont, Callfornla 91711.

6

On January,.3, 2001 I served the foregolng

document(s) descrlbed-as: PROPOSED STIPULATION AND ORDER OF

7 DISMISSAL on lnterested partY(les) ln thlS actlon by /placlng

the true coples thereof enclosed ln sealed envelopes addressed

8 as stated on the attached malllng llSt /placlng the orlglnal

/placlng a true copy thereof enclosed ln sealed envelope(s) as

9 follows:

10 SEE ATTACHED SERVICE LIST 11 ~(BY MAIL) I deposlted such envelope(s) In the mall at
Santa Ana, Callfornia. The envelope (s)_ V{as malled wlth postage 12 thereon fully prepald. I am "readlly famlllar" wlth the brm's
practlce of collectlon and processlng correspondence for 13 malilng. It lS deposited wlth the u.S. Postal SerVlce on that
same date in the ordlnary course of buslness. I am aware that 14 on motlon of party se~ved, serVlce ls-presumed lnva1ld,lf
postal canc~llation date ocpostage meter date lS more than one 15 day after date of deposlt for malilng ln affldavlt.

16

(BY PERSONAL SERVICE) I caused such envelope(s) to be

dellvered by hand to the offlces of the addressee(s).

17

XX (BY ELECTRONIC TRANSFER) I caused all of the pages of

18 the above-entitled document to be sent to the reclplents noted

above/on the attached serVlce 11St via electronic transfer

19 (FAX) at the respective FAX numbers lndlcated above/on the

attached service list. and by -E-Mall

20

Executed on January ~, 2001 at Claremont,

21 Callfornla.

22

I declare that I am a member of or employed ln the

offlce of a member of the bar to thlS court at whose dlrectlon

23 the serVlce was made.

24

I declare under penalty

the Un1ted States and the State 0

25 true and correct.

laws of above 1S

26

27

28

Law Offl{.:es of HERBERT HAFIF '1:19 W Bomta Avenue '".",on~ CA 91711
O/1r:>'I=<dllM1tt'l~td
...........

- 5-
STIPULATION FOR MODIFICATION OF PERMANENT INJUNCTION AND ORDER THEREON
".- .. .....~~~~~~~" " .... " ..." ......,.." .. """.."""........." ..",.." ....~------~--~--.. . .... ...

. .. .

• Case 8:97-cv-00219-GLT-AN

Document 453

J •• ____ ••
•Filed 01/24/2001

................................... II
Page 6 of 6

1

SERVICE LIST

(Riohard S. V DDS)

2

BILL LOCKYER, Attorney General

3 Tammy Chung Ryu, Esq.

Richard T. Waldow, Esq.

4 Suzanne Salzwedel, Esq.

Deputy Attorney Generals

5 300 South Spring Street, Fifth Floor

Los Angeles, California 90013-1204

6 TEL: (213) 897-2456

FAX: (213) 897-2805

7 Representing: DEPARTMENT OF DEVELOPMENTAL SERVICES OF THE STATE

OF CALIFORNIA, FAIRVIEW DEVELOPMENTAL CENTER, AND INDIVIDUAL

8 STATE DEFENDANTS

9 Ellen S. Goldblatt, Esq. PROTECTION & ADVOCACY, INC.
10 449 - 15th street, ste. 401 Oakland, California 94612
11 TEL: (510) 839-0811 FAX: (510) 839-5780
12 Representing: INTERVENORS

13 Ron House, Esq. 4355 Ruffin Road, Suite 204
14 San Diego, Ca.- 92123-1648 TEL: (858) 576-2996
15 FAX: (858) 576-2873 Representing: SAN DIEGO
16 REGIONAL CENTER

17

18 19 20 21 22 23 24 25 26 27

28

Law Offioes Qf HSRSERT HAFIF
"-; W Somta Avenue Jaremont, CA g1711
~~P!\l(lliI:t~ ",~a~1IPtI'
-------

- 6STlPULATION FOR MODIFlCATION OF PERMANENT INJUNCTION AND ORDER THEREON

 
 " ,I,'
Case 8:97-cv-00219-GLT-AN Document 606 Filed 04/22/2005 Page 1 of 4

;j,

ENJ8mBID 1

r rioritYr' T

:cnd

A

2

I:ntcr

-y-

losed ..::.l-

3

ARR 22i52r2l1JJl5

S-5IJS-6 S-2IJS-3 ~can Only_

4

7

8

THIS CONSTITUTES NOTICE OF ENTRY

AS REQUIRED BY FRCP, RULE 71(d).

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

SOUTHERN DIVISION

12 RICHARD S., et al.,

Case No. SA CV 97-219 GLT (ANx)

13

Plaintiffs,

14

vs.

15 DEPARTMENT OF DEVELOPMENTAL SERVICES, et al.,
16
Defendants.
17

18

ORDER ON ATTORNEYS' FEES AND COSTS
DOCKETED ON CM
APR 252005
BY A / 040 v

19

After extensive proceedings on the recovery of attorneys' fees and

20 costs, the report of the Special Master, and a full hearing and

21 briefing, the Court makes the following orders:

22

Defendant's objection to the report of the Special Master is

23 overruled. The Court approves and adopts the report of the Special

24 Master filed February 25, 2005. In accordance with the Special Master's

25 report, the Court finds the accurate and appropriate fees incurred in

26 this matter and potentially recoverable by each of Plaintiffs' attorneys

27 is as follows:

28 II

S:IGLTlLCI ICivilI1997\97-219\97;0219-atty feesandcosts,wpd

Case 8:97-cv-00219-GLT-AN Document 606 Filed 04/22/2005 Page 2 of 4

1

Francis Hardiman

$228,687.50

2

Margaret Cahill

3

H. Hafif

96,675.00

1,950.00

"

4

Patricia Lytle

227,075.00

5

Greg Hafif

24,600.00

-'

6

M. Dawson

9,200.00

7

Plaintiffs were prevailing parties to a limited degree because

8 they entered into a legally enforceable settlement agreement with

9 Defendant that materially altered the legal relationship between the

10 parties by modifying Defendant's behavior in a way that directly

11 benefits Plaintiffs. Plaintiffs also obtained a preliminary injunction

12 preventing release of Fairview residents into community placements

13 unless certain conditions are met. Although the results achieved are

14 significantly less then the relief Plaintiffs originally sought, they

15 achieved greater safeguards against inappropriate transfers to

16 community placements and greater input from various health care

17 professionals into transfer decisions and Superior court review.

18

It is appropriate for the court to allocate the portion of

19 attorneys fees to be awarded Plaintiffs' attorneys based on the degree

20 of Plaintiffs' success. The degree of Plaintiffs' success was not

21 nominal or illusory, but was significant. It was less then Plaintiffs

22 sought, but it was substantial.

23

The Court finds it is inappropriate in this case to attempt

24 apportion a recoverable fee by dividing the hours expended on a claim-

25 by-claim basis dependant on the success of that claim. The nature of

26 the success here -- a preliminary injunction followed by a settlement

27 is particularly not susceptible to that form of analysis. The

28

S:IGLTlLCI ICiYiI11997197-219197-0219-atty feesandeDsts. wpd 2

Case 8:97-cv-00219-GLT-AN Document 606 Filed 04/22/2005 Page 3 of 4

1 settlement was an over-all result, not necessarily traceable to a

2 particular claim or cause of action.

3

The Court finds instead, it is appropriate for the Court to assess

4 the over-all result, in light of the nature and course of the

5 litigation. This Court fully participated in this case from its

6 beginning in 1997, and is specifically knowledgeable of all the steps

7 taken in the case, the nature of the legal work performed, the victories

8 and defeats, and the nature of the limited success achieved in light of

9 what was sought. The Court finds it is reasonable and appropriate for

10 the Court to determine a percentage figure that represents the degree

11 of Plaintiffs' success.

12

After consideration of all the relevant factors in this case, the

13 Court finds Plaintiffs' degree of success is 80%, and a fair and

14 appropriate apportionment of both attorneys fees and costs may be made

15 on that basis.

16

Based on this finding, Plaintiffs' attorneys are entitled to an

17 award of attorney fees, before any credit, payable by Defendant in the

18 following amounts:

19

Francis Hardiman

$182,950.00

20

Margaret Cahill

77,340.00

21

H. HafH

1,560.00

22

Patricia Lytle

181,660.00

23

Greg HafH

19,680.00

24

M. Dawson

7,360.00

25

The fees expended on the special master proceedings are charged to

26 Hardiman and Cahill. At the Court's order, Defendant deposited $20,000

27 to underwrite these fees. A total of $18,899.86 was expended on the

28 Special Master's fees, and $1,100.14 remains undisbursed. The Court

S:IGLTlLC IIClvillI997197-219197-0219-atty feesandcosts.wpd 3

Case 8:97-cv-00219-GLT-AN Document 606 Filed 04/22/2005 Page 4 of 4

1 will direct the Clerk to pay the remaining $1,100.14 to the firm of

2 Hardiman and Cahill as partial payment of their attorneys fee award.

3 Having advanced the funds for the Special Master, Defendant is entitled

4 to credit for the advance. Therefore, payment by Defendant to Hardiman 5 shall be $172,950.00, and payment to Cahill shall be $67,340.00. 11

6

Total costs have been determined to be $38,165.57. Defendants are

7 liable to Plaintiffs for 80% of costs, or $30,532.46.

8

Defendant is ORDERED to pay the awards stated above, with the

9 credits stated above.

10
11 DATED: April ~~, 2005

12

ARY TAYLOR

13

UNITED STATES DISTRICT JUDGE

14

15

16

17

18

19

20

21

22

23

24

25

26

27

1/ In the event Hardiman or Cahill contend the allocation of the Special Master's fee liability between them should be

28 something different than equal, they are directed to resolve the matter between themselves.

S:IGL1\LCIICivIlI] 997v)7-219197-0219-atty feesandcosts.wpd 4

 
 (SPACE BELOU FOR F I L I N G STAMP ONLY)

1 Francis X. Hardiman Bar #14O5W
Margaret M. Cahill Bar #138231

2

HARDIMAN & CAHILL

A t t o r n e y s a t Law

3

15oU Breolchollow

Suite 114

4

SANTA ANA. CALIFORNIA 92705

(714) 556-1233

Facsimile (714) 556-5223
5

Aitomeys for: R i c h a r d S. e t a l .

6

HI WIard|m ". D,ep,l ?. I 6 ™ L ° P ™ n t e l Serv-
MR-CA-004-003

7

8

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 RICHARD S., CYNTHIA R., VALDINA )

R., and ROES 1 through 800,

12 indiviiddulallly and on behalf of all \

those similarly situated by

\

13

WILLIAM CABLE, M.D. as Guardian ad Litem

,

CASE NO:

14

Plaintiffs,

)

) PROPOSED ORDER

15

vs.

16

SERVICES OF THE STATE OF

17 CALIFORNIA, FAIRVIEW

DEVELOPMENTAL CENTER, SOUTH

18 COAST REGIONAL PROJECT, HARBOR

REGIONAL CENTER, REGIONAL CENTER

19 OF ORANGE COUNTY, SAN DIEGO

REGIONAL CENTER," SOUTH CENTRAL

20 LOS ANGELES REGIONAL CENTER,

WESTS IDE REGIONAL CENTER, DENNIS

21 G. AMUNDSON, as Director of the

DEPARTMENT OF DEVELOPMENTAL

22 SERVICES STATE OF CALIFORNIA, j

HUGH KOHLER, as Executive

)

23 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER, LILIA TAN )

24 FIGUEROA, M.D., as Medical

)

Director of FAIRVIEW

)

25 DEVELOPMENTAL CENTER, DAWN

)

LEMONDS as director of SOUTH

)

26 COAST REGIONAL PROJECT, and Does )

1 through 500, inclusive,

)

27

Defendants

)

28

Date: March 20, 1997 Time: 10:00 a.m. Place: Federal District Court, Santa Ana, California

1

TO DEFENDANTS

2

YOU (AND EACH OF YOU) ARE HEREBY ORDERED TO SHOW CAUSE at

3

on,

or as soon thereafter as

counsel may be heard in the courtroom of the Honorable

located at

why you, your

(officers) agents, servants, employees and attorneys and those

in active concert or participation with you or them, should not

be restrained and enjoined pending trial of this action from:

Discharging or transferring from Fairview Developmental

10 Center to other California developmental centers or to non-

11 institutional placement any adult client who has no conservator

12 of the person, during the pendency of this action.

13

PENDING HEARING on the above Order to Show Cause, you, your

14 (officers) agents, servants, employees and attorneys and all

15 those in active concert or participation with you or them ARE

16 HEREBY RESTRAINED AND ENJOINED from:

17

Discharging or transferring from Fairview Developmental

18 Center to other California developmental centers or to non-

19 institutional placement any adult client who has no conservator

20 of the person, during the pendency of this action.

21

The above Temporary Restraining Order is effective on

22 Plaintiff's filing an undertaking in the sum of $ ... This

2 3 Order to Show Cause and supporting papers must be served on

2 4 Defendants no later than

before the date set for

25 hearing, and proof of service shall be filed no later than

2 6

court days before the hearing. Any

27 response or opposition to this Order to Show Cause must be filed

28 and personally served before the date set for hearing, and proof

2

of service shall be filed no later than

court days before the hearing.

DATED: March

, 1997

4

5

6

71

*

UNITED STATES DISTRICT JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 
 (SPACE 8EL0U FOR FILING STAMP ONLY)

1 Fraucis X. Hardinian Bar #140504

Margaret M. CahOJ Bar #138231

2

HARDIMAN & CAHILL

3

Attorneys at Law

1560 Brookhollow

Suite 114

SANTA ANA. CAUFORNIA 92705 (714} 556-2233
Facsimile (714) 556-5220

R chard S v pept o Developmental Serv. of Cal. MR-CA-004-008

Attorneys for: RICHARD S., et.al

7

8

UNITED STATES DISTRICT COURT

9

FOR CENTRAL DISTRICT

10

11 RICHARD S., CYNTHIA R., VALDINA )

R., and ROES 1 through 800,

)

12 individually and on behalf of )

all those similarly situated by )

13 WILLIAM CABLE, M.D., as guardian)

ad Litem

)

14 I

Plaintiffs, )

15

)

CASE NO:
PETITION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

16

17 DEPARTMENT OF DEVELOPMENTAL

)

SERVICES OF THE STATE OF

)

18 CALIFORNIA, FAIRVIEW

)

DEVELOPMENTAL CENTER, SOUTH

)

19 COAST REGIONAL PROJECT, HARBOR )

REGIONAL CENTER OF ORANGE COUNTY)

20 SAN DIEGO REGIONAL CENTER, SOUTH)

CENTRAL LOS ANGELES REGIONAL )

21 CENTER, WESTSIDE REGIONAL CENTER)

DENNIS G. AMUNDSON, as Director )

22 Of the DEPARTMENT OF

)

DEVELOPMENTAL SERVICES STATE OF )

23 CALIFORNIA, HUGH KOHLER, as

)

executive Director of FAIRVIEW )

24 DEVELOPMENTAL CENTER, LILIA TAN )

FIGUEROA, M.D., as Medical

)

25 Director of FAIRVIEW

)

DEVELOPMENTAL CENTER,DAWN

)

26 LEMONDS as director of South )

Coast Regional Project and Does )

27 1 through 500, inclusive

)

)

28

Defendants. )

DATE: MARCH 20, 1997 TIME: 10:00 A.M. PLACE: FEDERAL DISTRICT COURT- CENTRAL.DISTRICT SANTA ANA, CALIFORNIA

1

Petitioner states as follows:

2

1. Petitioner is a licensed physician who makes this

petition on behalf of the named incompetent adults.

2. Said incompetent adults are about to commence an

action by and through Dr. William Cable, M.D., their treating

physician at Fairview in order to seek an injunction preventing

the discharge of us and other like patients to community homes

without a fair hearing addressing the issue of our safety upon

discharge from Fairview.

10

3. The incompetent adults have no general guardian and

11 no previous petition fo appointment of guardian has been filed in

12 this matter.

13

4. Petitioner William Cable, M.D., whose address is

14 3962 Mistral Drive, Huntington Beach, CA 92646, is a competent and

15 responsible person and fully competent to act as guardian ad

161 litem.

17

5. Said William Cable is willing to act as guardian ad

18 litem for petitioner, as appears by his consent attached hereto.

19

WHEREFORE, Petitioner moves this Court for an order

20 appointing Dr. William Cable as guardian ad ' litem of said

21 incompetent adults and other similarly situated adult patients at

22 Fairview for the purposes of bringing action against the named

2 3 Defendants herein.

24 DATED: MARCH 19, 1997

25
26 27 //

FRANCIS X / HARDIMAN, ESQ., ATTORNEY FOR PETITIONER

28 //

A

CONSENT OF NOMINEE

I, WILLIAM CABLE, M.D., the nominee of the Petitioner, consent to

act as guardian ad litem for the incompetent adult patients of

mine in the above action.

DATED: MARCH 19, 1997

6

7

.

WILLIAM CABLE, M.D.

8

9 ORDER
10 The petition for an order appointing WILLIAM CA3LE,
11 M.D., as guardian ad litem for the petitioners is GRANTED.

12

IT IS SO ORDERED.

13 DATED: MARCH 19, 199 7

14

15

UNITED STATES DISTRICT COURT JUDGE

16

17

18 19 20

21

22

23

24

25

26

27 28

•...»..

B3-19-97

28 89 _ ID 714 _8S7 4255. .

«ii: s-S

STATEMENT OK NON-OPPOSITION We. rh« );:iri>arsigned/ are parents o : sjchaf- >•* i.."- cui-rently 4> yeura o l d . C_r aOn is profwu::i; y s fccftn a pi-::*.-:: i t Fairvisv^ Sci::^ Dri'slop;:;;;::::' aptirc-Xi.T3T.ciy i ' j c i : Tc t h e besc o_r r e c c i i e c t i .•. fepol L=o f i r nor berin appoir.t.ec! rar-ssrvaw-rr c-f c...'
Gi-ars £d ii-cir. for che pvirpases oi" L!;« pe::ci.-.._.
D A.T E r.': :-: s :^.c H '. si, I y i 7

s. v

 
 Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 1 of 54 (ANx), CLOSED
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Southern Division − Santa Ana)
CIVIL DOCKET FOR CASE #: 8:97−cv−00219−GLT−AN

Richard S, et al v. Dept of Develop Srv, et al Assigned to: Judge Gary L. Taylor Referred to: Discovery Arthur Nakazato Demand: $0 Case in other court: sa, 8:96−cv−01190 Cause: 42:1983 Civil Rights Act Plaintiff Richard S individually and behalf of all those similarly situated by William Cable M D Guardian at Litem
Plaintiff Cynthia R individually and on behalf of all those similarly situated by William Cable M D Guardian ad litem
Plaintiff Valdina R individually and on behalf of all those similarly situated by William Cable

Date Filed: 03/20/1997 Date Terminated: 01/18/2001 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Francis X Hardiman Hardiman &Cahill 2041 Tustin Ave, Unit A Costa Mesa, CA 92627 949−548−5522 Email: hardiman@prodigy.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Herbert Hafif Herbert Hafif Law Offices 269 W Bonita Avenue Claremont, CA 91711−4784 909−624−1671 Email: jayna−cpb@hafif.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret M Cahill Hardiman &Cahill 2041 Tustin Ave, Unit A Costa Mesa, CA 92627 949−548−5522 Email: cahillm5522@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis X Hardiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Herbert Hafif (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret M Cahill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis X Hardiman (See above for address) LEAD ATTORNEY

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 2 of 54

Guardian ad Litem

ATTORNEY TO BE NOTICED

Herbert Hafif (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret M Cahill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
MD William Cable Guardian ad Litem

represented by Francis X Hardiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Herbert Hafif (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret M Cahill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Roes 1 through 800

V.
Defendant
Department of Developmental Services of the State of California

represented by John H Sanders CAAG − Office of Attorney General of California 300 S Spring St, Ste 5000 Los Angeles, CA 90013−1230 213−897−2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L Fried CAAG − Office of the Attorney General California Department of Justice 300 South Spring Street Suite 5000 Los Angeles, CA 90013−1230 213−897−2438 Email: karen.fried@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T Waldow CAAG − Office of Attorney General California Department of Justice 300 South Spring Street Suite 5000 Los Angeles, CA 90013−1230 213−897−2000 Email: richard.waldow@doj.ca.gov LEAD ATTORNEY

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 3 of 54

ATTORNEY TO BE NOTICED

Defendant Fairview Developmental Center

represented by John H Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L Fried (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard T Waldow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant South Coast Regional Project

represented by John H Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L Fried (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard T Waldow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Harbor Regional Center TERMINATED: 03/06/2000

represented by Judith Addison Enright Enright &Ocheltree West Twr 9100 Wilshire Blvd 7th Fl Beverly Hills, CA 90212 310−274−1830 Fax: 310−273−7635 TERMINATED: 03/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie A Ocheltree Enright &Ocheltree West Twr 9100 Wilshire Blvd 7th Fl Beverly Hills, CA 90212 310−274−1830 Fax: 310−273−7635 TERMINATED: 03/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard O Schwartz Richard O Schwartz Law Offices 3780 Kilroy Airport Way Ste 200

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 4 of 54

Long Beach, CA 90806 562−988−6533 TERMINATED: 01/03/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Regional Center of Orange County TERMINATED: 03/06/2000

represented by M Lois Bobak Woodruff Spradlin and Smart APC 555 Anton Boulevard Suite 1200 Costa Mesa, CA 92626−7670 714−558−7000 Fax: 714−835−7787 Email: lbobak@wss−law.com TERMINATED: 03/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas F Nixon Woodruff Spradlin &Smart 701 S Parker St, Ste 8000 Orange, CA 92868−4760 714−558−7000 TERMINATED: 03/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
San Diego Regional Center TERMINATED: 03/06/2000

represented by Ronald R House Ronald R House Law Offices 4355 Ruffin Rd Suite 205 San Diego, CA 92123 858−576−2947 Email: rhouse@sdrc.org TERMINATED: 03/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
South Central Los Angeles Regional Center TERMINATED: 03/06/2000

represented by Julie A Ocheltree (See above for address) TERMINATED: 03/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard O Schwartz (See above for address) TERMINATED: 12/15/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard O Schwartz (See above for address) TERMINATED: 03/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Westside Regional Center TERMINATED: 03/06/2000

represented by Judith Addison Enright (See above for address)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 5 of 54

TERMINATED: 07/26/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie A Ocheltree (See above for address) TERMINATED: 03/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dennis G Amundson as Director of the Department of Developmental Services State of California TERMINATED: 05/13/1998

represented by John H Sanders (See above for address) TERMINATED: 05/13/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L Fried (See above for address) TERMINATED: 05/13/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Harry Kohler as Executive Director of Fairview Developmental Center TERMINATED: 05/13/1998

represented by John H Sanders (See above for address) TERMINATED: 05/13/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L Fried (See above for address) TERMINATED: 05/13/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
MD Lilia Tan Figueroa as Medical Director of Fairview Developmental Center

represented by John H Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L Fried (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard T Waldow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dawn Lemonds as Director of South Coast Regional Project

represented by John H Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L Fried (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 6 of 54

Defendant
Does 1 through 500 inclusive TERMINATED: 05/13/1998
Amicus
Protection &Advocacy Inc TERMINATED: 05/13/1998

Richard T Waldow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Juarez Protection &Advocacy 3580 Wilshire Blvd, Ste 902 Los Angeles, CA 90010−2512 213−427−8747 Fax: 213−427−8767 TERMINATED: 05/13/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melinda Ruth Bird Disability Rights California 3580 Wilshire Boulevard Suite 902 Los Angeles, CA 90010 213−427−8747 Fax: 213−427−8767 Email: melinda.bird@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Melissa Tisdale by and through her guardian ad litem Debby Tisdale
Intervenor Raymond Masao Kawaguchi by and through his conservator Margaret Reade
Intervenor Sheila Williams by and through her conservator Essie Williams

represented by Francis X Hardiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret M Cahill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis X Hardiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret M Cahill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis X Hardiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 7 of 54

Intervenor Phillip Wilson by and through his conservator Betty Gray
Intervenor California Association of State Hospital Parent Councils for the Retarded TERMINATED: 05/13/1998 doing business as Cash/PCR
Intervenor Sacramento Association for the Retarded Inc TERMINATED: 05/13/1998 doing business as ARC Sacramento
Intervenor Mary Cason guardian ad litem for Jeffrey Cason

Margaret M Cahill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis X Hardiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret M Cahill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis X Hardiman (See above for address) TERMINATED: 05/13/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret M Cahill (See above for address) TERMINATED: 05/13/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis X Hardiman (See above for address) TERMINATED: 05/13/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret M Cahill (See above for address) TERMINATED: 05/13/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen S Goldblatt Protection &Advocacy Inc Air Pk Plz 433 Hegenberger Rd, Ste 220 Oakland, CA 94612 510−430−8033 LEAD ATTORNEY
Eric Richard Gelber Protection &Advocacy Inc Air Pk Plz 433 Hegenberger Rd, Ste 220 Oakland, CA 94612 510−430−8033 Email: eric@pai−ca.org LEAD ATTORNEY
Monica Galvan Villafana

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 8 of 54

Protection &Advocacy Inc Air Pk Plz 433 Hegenberger Rd, Ste 220 Oakland, CA 94612 510−430−8033 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra B Pettit Protection &Advocacy 3580 Wilshire Blvd, Ste 902 Los Angeles, CA 90010−2512 213−427−8747 LEAD ATTORNEY

Stephen A Rosenbaum Protection &Advocacy Inc Oakland Legal Office 1330 Broadway, Suite 500 Oakland, CA 94612−2509 510−267−1200 Fax: 510−267−1201 LEAD ATTORNEY

Intervenor Barbara Bell

represented by Daniel Juarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen S Goldblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Richard Gelber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra B Pettit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor
Danny Warren TERMINATED: 10/23/1998

represented by Daniel Juarez (See above for address) TERMINATED: 10/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen S Goldblatt (See above for address) TERMINATED: 10/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Richard Gelber (See above for address) TERMINATED: 10/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 9 of 54

Sandra B Pettit (See above for address) TERMINATED: 10/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Debbie Tisdale individually and on behalf of the California Association of State Hospital Parent Councils For The Retarded also known as CASH/PCR

represented by Francis X Hardiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Herbert Hafif (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret M Cahill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Association for Retarded Citizens−California also known as ARC−CAL

represented by Francis X Hardiman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Herbert Hafif (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret M Cahill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Donna E Shalala in her capacity as Secretary of the Department of Health any Human Services TERMINATED: 01/26/2000

represented by Leon W Weidman AUSA − Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213−894−2408 Fax: 213 894 7819 Email: USACAC.Civil@usdoj.gov TERMINATED: 01/26/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanne L Bell AUSA − Office of US Attorney Civil Division 300 N Los Angeles St, Ste 7516 Los Angeles, CA 90012 213−894−2434 TERMINATED: 01/26/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 10 of 54

Defendant Clifford Allenby as Director of the Department of Developmental services State of California
Defendant Hugh Kohler as Executive Director of Fairview Developmental Center
Intervenor Barbara Bell
Intervenor Jeffrey Cason

represented by John H Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L Fried (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T Waldow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John H Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L Fried (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T Waldow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen S Goldblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Richard Gelber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra B Pettit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen S Goldblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Richard Gelber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra B Pettit (See above for address) LEAD ATTORNEY

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 11 of 54

ATTORNEY TO BE NOTICED

Intervenor Donna Plouffe

represented by Ellen S Goldblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Richard Gelber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra B Pettit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Self−Advocacy Board of Los Angeles

represented by Ellen S Goldblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Richard Gelber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra B Pettit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Autism Society of Los Angeles

represented by Ellen S Goldblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Richard Gelber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra B Pettit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Area IV Board

represented by Ellen S Goldblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Richard Gelber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra B Pettit

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 12 of 54
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/20/1997 03/20/1997 03/20/1997 03/20/1997 03/20/1997 03/20/1997 03/20/1997 03/20/1997 03/20/1997 03/20/1997
03/21/1997
03/21/1997 03/26/1997 03/26/1997 03/26/1997 03/26/1997 03/26/1997 03/26/1997
03/27/1997

# Docket Text
1 COMPLAINT (Summons(es) not issued) (referred to Discovery Arthur Nakazato ) (jk) (Entered: 03/21/1997)
2 NOTICE by plaintiff of related case(s) SA CV96−1190−GLT(EEx) (jk) (Entered: 03/21/1997)
4 EX PARTE APPLICATION by plaintiff for temporary restraining order (jk) (Entered: 03/21/1997)
3 NOTICE of TRO aplic by plaintiff (jk) (Entered: 03/21/1997)
5 DECLARATION of Frederick Herzig, MD by plaintiff re [4−1] (jk) (Entered: 03/21/1997)
6 DECLARATION of Jocelyn Dougherty MD by plaintiff re [4−1] (jk) (Entered: 03/21/1997)
7 DECLARATION of Linda Copeland MD by plaintiff re [4−1] (jk) (Entered: 03/21/1997)
8 DECLARATION of William Cable MD by plaintiff re [4−1] (jk) (Entered: 03/21/1997)
9 DECLARATION of David Strauss PhD by plaintiff re [4−1] (jk) (Entered: 03/21/1997)
11 MINUTES: Crt does not iss a TRO; ;IN CRT HRG: mtn for prelim inj set on 3:30 3/31/97 ; dfts' opp to mtn for prelim inj shall be srvd by either pers svc or fax nlt close of bus 3−26−97; any rply shall be due by the srvc method nlt 3−28−97 noon; any fi by pers svc or fax shall be followed by a hard copy fi w/ the clrk's office by Judge Gary L. Taylor CR: none (krpa) (Entered: 03/21/1997)
10 NOTICE of corr to assngmt of discov mag from Magistrate Judge Nakazato to Magistrate Judge Edwards due to prev−fld related case SA CV96−1190−GLT(EEx) (jk) (Entered: 03/21/1997)
CASE REFERRED to Discovery Elgin Edwards (jk) (Entered: 03/21/1997)
12 P/A's by defendant Regional Ctr Orange in opposition to appl for prelim inj [4−1]; dec of Paula Fiebert (krpa) (Entered: 04/01/1997)
13 OBJECTIONS by defendant Regional Ctr Orange to the dec of Linda Copeland MD in suppt of pla's appl for TRO &Prelim inj [7−1] (krpa) (Entered: 04/01/1997)
14 OBJECTIONS by defendant Regional Ctr Orange to the dec of William Cable MD in suppt of pla's appl for TRO &Prelim inj [8−1] (krpa) (Entered: 04/01/1997)
15 OBJECTIONS by defendant Regional Ctr Orange to the dec of Jocelyn Doroughty MD in suppt of pla's appl for TRO &Prelim inj [6−1] (krpa) (Entered: 04/01/1997)
16 OBJECTIONS by defendant Regional Ctr Orange to to dec of Frederick Herzig MD in suppt of pla's appl for TRO &Prelim inj [5−1] (krpa) (Entered: 04/01/1997)
17 Defendant Dept of Devlp Serv, defendant Fairview Develop Ctr's Opposition to pla's exparte motion for temporary restraining order &Prelim inj &decls of Michael B Mount, Dawn Lemonds, Lois A Cissell, Jeffrey Helfer &Roberta A Larlowe [4−1] (krpa) (Entered: 04/01/1997)
18 JOINDER by defendant Westside Regional Ct joining St Dept of Dev Svcs' Opp to plas' appl for osc re: prelim inj [17−1]; Westside's opp to pla's appl; memo of P/A in suppt thereof Joinder (krpa) (Entered: 04/01/1997)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 13 of 54

03/27/1997 03/28/1997
03/28/1997
03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997 03/31/1997

19 DECLARATION of Debra Ray by defendant Westside Regional Ct in suppt of opp to plas' appl for prelim inj (fld in the JOINDER fld 3−27−97) [18−1] (krpa) (Entered: 04/01/1997)
20 JOINDER by defendant Harbor Regional Ctr joining the dft Dept of Dev Svc &Fairview Dev Ctr's opp to pla's appl for prelim inj &dec of Michael B Mount, D Lemonds, Lois A Cissell, J Helfer, &RobertA A Marlowe [17−1] Joinder (krpa) (Entered: 04/02/1997)
21 JOINDER by defendant South Central LA Ctr joining dft Dept of Dev Svc &Fairview Dev Ctr's opp to pla's appl for prelim inj &decs of M Mount, D Lemonds, L Cissell, J Helfer, R Marlowe [17−1] Joinder (krpa) (Entered: 04/02/1997)
22 DECLARATION of Raymond M Peterson MD by defendant San Diego Region Ctr in opp to plas' appl for TRO &Prelim inj [4−1] (krpa) (Entered: 04/03/1997)
23 DECLARATION of Judy Steeg Borchert MSW by defendant San Diego Region Ctr in opp to plas' appl for TRO &Prelim inj [4−1] (krpa) (Entered: 04/03/1997)
24 SUPPLEMENT by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable re declaration of David A Strauss PhD in suppt of plas appl for prelim &perm inj [9−1] (krpa) (Entered: 04/03/1997)
25 SUPPLEMENT by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable re declaration of William Cable MD in suppt of plas' appl for prelim inj [8−1] (krpa) (Entered: 04/03/1997)
26 AMENDMENT by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable P/S of rply to dfts opp to plas appl for prelim inj (krpa) (Entered: 04/03/1997)
27 AMENDMENT by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable to the svc list by Harbor Reg ctr, So Cent LA Reg Ctr &Westside Reg Ctr (krpa) (Entered: 04/03/1997)
28 OBJECTIONS by defendant Regional Ctr Orange to suppl dec of William Cable MD in suppt of plas' appl for a prelim inj [25−1] (krpa) (Entered: 04/03/1997)
29 OBJECTIONS by defendant Regional Ctr Orange to suppl dec of David A Strauss in suppt of plas' appl for a prelim &perm inj [24−1] (krpa) (Entered: 04/03/1997)
30 DECLARATION of Lois A Cissell by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr (krpa) (Entered: 04/03/1997)
31 DECLARATION of Michael B Mount by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr (krpa) (Entered: 04/03/1997)
32 DECLARATION of Dawn Lemonds by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr (krpa) (Entered: 04/03/1997)
33 DECLARATION of Jeffrey Helfer by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr (krpa) (Entered: 04/03/1997)
34 DECLARATION of Roberta A Marlowe PhD by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr (krpa) (Entered: 04/03/1997)
35 REPLY by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable to Reg ctr of OC's opp to plas' appl for prelim inj [12−1] (krpa) (Entered: 04/03/1997)
36 REPLY by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable to Dept of Dev Svcs &Fairview Dev Ctr's opp to plas' appl for prelim inj [17−1] (krpa) (Entered: 04/03/1997)
37 REPLY by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable to Westside Reg Ctr's opp to plas' appl for prelim inj (krpa) (Entered: 04/03/1997)

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03/31/1997 03/31/1997 04/03/1997
04/09/1997 04/10/1997 04/11/1997 04/14/1997 04/17/1997 04/18/1997 04/22/1997 04/23/1997 04/28/1997 04/29/1997
04/30/1997 04/30/1997 05/01/1997 05/06/1997 05/06/1997

38 OBJECTIONS by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable to decs of Mount, Lemonds, Cissell, Helfer, &Marlowe [34−1], [33−1], [32−1], [31−1], [30−1] (krpa) (Entered: 04/03/1997)
39 MINUTES: Crt taking under submission the pla's exparte motion for prelim inj [4−1] by Judge Gary L. Taylor CR: S Marshall (krpa) (Entered: 04/03/1997)
40 ORDER for add br: Ord that the ptys are ord to submit add br on pla's Fed Const Clms; pla's Americans w/ Disabilities Act Clms; &any other iss raised dur oral argument which bear on pla's fed clms; plas may fi &srv an add argument on these iss on or before 4−10−97; dfts shall fi their opp on or before 4−17−97; plas may fi &srv their resp on or before 4−22−97; srv shall be by pers svc or fax; if the Crt requires a hrg it will notify the ptys by Judge Gary L. Taylor (krpa) (Entered: 04/08/1997)
41 PROOF OF SERVICE by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable of decl of Margaret M Cahill re; P/S (krpa) (Entered: 04/14/1997)
43 SUPPLEMENT by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable P/A in suppt of req for prelim inj (krpa) (Entered: 04/15/1997)
42 Correctable Table of Contents &Table of Auths &pg 21 of memo which may have been inadvertantly ommitted (krpa) (Entered: 04/14/1997)
44 Continuance or br sched &State dfts' resp to cmp (krpa) (Entered: 04/15/1997)
45 SUPPLEMENT by defendant Regional Ctr Orange re opp to plas' appl for prelim inj; dec of Stacey Reilly [12−1] (krpa) (Entered: 04/21/1997)
46 JOINDER by defendant Westside Regional Ct joining Reg Ctr of OC suppl opp to plas' appl for prelim inj &in dft Dept Dev Svcs suppl opp [45−1] Joinder (krpa) (Entered: 04/21/1997)
47 SUPPLEMENT by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable P/A in suppt of req for prelim inj (set 2) in resp to dft Reg ctr of OC &jndr by Westside Reg Ctr (krpa) (Entered: 04/23/1997)
48 Corrected Table of Contents re suppl P/A [47−1] (krpa) (Entered: 04/24/1997)
49 JOINDER by defendant Harbor Regional Ctr joining dft Dept of Dev Srvcs' suppl opp &in dft Reg Ctr of OC's suppl opp to plas' appl for prelim inj; &dec of Colleen Mock Joinder (krpa) (Entered: 04/29/1997)
50 SUPPLEMENT by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr, defendant South Coast Regional, defendant Harbor Regional Ctr, defendant Regional Ctr Orange, defendant San Diego Region Ctr, defendant South Central LA Ctr, defendant Westside Regional Ct re opp to plas' appl for prelim inj; decl of Hugh Kohler, Dawn Lemonds &Judy Steeg Borchert [17−1] (krpa) (Entered: 04/30/1997)
51 JOINDER by defendant Regional Ctr Orange joining State's suppl opp to plas' appl for prelim inj [50−1] Joinder (krpa) (Entered: 05/01/1997)
52 JOINDER by defendant San Diego Region Ctr joining in dfts Reg Ctr of OC &Dept of Develop Svcs opp &suppl opp to pla's appl for a prelim inj[51−1] Joinder (krpa) (Entered: 05/01/1997)
53 JOINDER by defendant South Coast Regional joining suppl memorandum in oppstn [17−1], suppl memorandum in oppstn [12−1] Joinder (jd) (Entered: 05/09/1997)
54 APPLICATION AND ORDER by Judge Gary L. Taylor granting leave to file amicus curiae brief of Protection &Advocacy Inc (jd) (Entered: 05/12/1997)
55 DECLARATION of James W. Conroy in supprt by amicus Protection &Advocac re [54−1], re [54−2] (jd) (Entered: 05/12/1997)

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05/06/1997 05/06/1997 05/06/1997 05/06/1997 05/07/1997 05/09/1997 05/09/1997 05/12/1997 05/13/1997 05/19/1997 05/19/1997 05/21/1997 05/22/1997 05/30/1997 05/30/1997
06/05/1997
06/16/1997 06/16/1997

56 DECLARATION of Daniel Juarez in supprt by amicus Protection &Advocac re [54−1], re [54−2] (jd) (Entered: 05/12/1997)
57 Joinder by defendant Regional Ctr Orange to state dfts mtn to dism for inj relief (jd) (Entered: 05/12/1997)
58 NOTICE OF MOTION AND MOTION by defendant Dept of Devlp Serv, defendant Dennis G Amundson to dismiss for injunctive relief ; motion hearing set for 10:00 6/30/97 (jd) (Entered: 05/12/1997)
59 SUPPLEMENT by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable re exparte motion for Preliminary Injunction (set two) in response to state dft &joinder by all other dfts (jd) (Entered: 05/12/1997)
60 SUPPLEMENT by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable in supprt of application for preliminary injunction (jd) (Entered: 05/12/1997)
61 JOINDER by defendant Westside Regional Ct joining dft Dept of Developmental Svcs' motion to dismiss for injunctive relief [58−1] Joinder (krpa) (Entered: 05/19/1997)
62 RESPONSE by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable to amicus brief by Protection &Advocacy Inc (krpa) (Entered: 05/19/1997)
64 AMENDMENDED Citations, Table of Contents &Authorities re exhbit 1 by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable to [62−1] (jd) (Entered: 05/20/1997)
63 NOTICE of cont by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr of hearing cont hearing on motion to for injunctive relief [58−1] 10:00 7/7/97 (krpa) (Entered: 05/20/1997)
65 JOINDER by defendant Harbor Regional Ctr joining State dfts' motion to dismiss for injunctive relief [58−1] Joinder (krpa) (Entered: 05/22/1997)
66 JOINDER by defendant South Central LA Ctr joining State dfts' motion to dismiss for injunctive relief [58−1] Joinder (krpa) (Entered: 05/22/1997)
67 Ntc of ERRATA by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr re mtn to dism cmp for inj relief [58−1] (krpa) (Entered: 05/22/1997)
68 DECLARATION of Daniel Juarez in rply to pla's resp to Amicus Br by protect &advocacy Inc (krpa) (Entered: 05/27/1997)
69 MINUTES: crt sets hrg ; IN COURT HEARING RE: the approp of prelim inj terms set on 1:30 6/5/97 ; cnsl shall appear in person for this hrg by Judge Gary L. Taylor CR: none (krpa) (Entered: 06/04/1997)
70 ORDER granting mtn for prelim inj; first, Dr William Cable is aptd guardian ad litme for Richard S for purp of this lawsuit; 2nd, the Crt will iss a prelim inj enjn comm placement of unrep Fairview patients, under such terms as the Crt shall set in a formal prelim inj ord; the Crt's law clrk will immed contact the ptys to sched a Crt conf to discuss approp inj terms by Judge Gary L. Taylor (krpa) (Entered: 06/04/1997)
71 MINUTES: ; hearing on the approp of terms of prelim inj held Crt will not iss a prelim inj at pres; Crt sched a further hrg ; IN COURT HEARING RE: to determine a definition of representative &how best to handle the placement matter−set on 4:30 6/9/97 by Judge Gary L. Taylor CR: S Marshall (krpa) (Entered: 06/11/1997)
72 NOTICE OF MOTION AND MOTION to intervene ; LDGD PROP CMP &ORD ; motion hearing set for 10:00 7/7/97 (krpa) (Entered: 06/23/1997)
73 MEMORANDUM of P/A by intervenor Barbara Bell, intervenor Danny Warren in support of motion to intervene [72−1] (krpa) (Entered: 06/23/1997)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 16 of 54

06/23/1997 06/23/1997 06/30/1997 07/01/1997 07/01/1997 07/09/1997 07/09/1997 07/09/1997 07/09/1997 07/09/1997 07/10/1997
07/15/1997
07/15/1997
07/16/1997
07/25/1997

74 OPPOSITION by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable to motion to dismiss for injunctive relief [58−1] &jndr by Reg Ctr of OC, Harbor Reg Ctr &So Cent LA Reg Ctr; memo of P/A in suppt thereof (krpa) (Entered: 06/26/1997)
75 OPPOSITION by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable to motion to intervene by prop intvr's Barbara Bell &Danny Warren [72−1]; memo of P/A in suppt thereof (krpa) (Entered: 06/26/1997)
76 REPLY by intervenor Barbara Bell, intervenor Danny Warren to pla's opp to mtn to intervene [75−1] (krpa) (Entered: 07/03/1997)
77 MINUTES: Ord granting Bell &Warren's motion to intervene [72−1]; The cmp in intervention will be fld on the dt of this M/O; Ord taking under submission the state dfts' motion to dismiss for injunctive relief [58−1] by Judge Gary L. Taylor CR: none (krpa) (Entered: 07/03/1997)
78 INTERVENOR'S COMPLAINT by intervenor Barbara Bell, intervenor Danny Warren (krpa) (Entered: 07/03/1997)
79 BRIEF FILED Re: 2nd hearing on terms of inj relief by plaintiffs. (th) (Entered: 07/11/1997)
80 DECLARATION of Jocelyn Doughterty MD by plaintiff re brief on second hearing [79−1] (th) (Entered: 07/11/1997)
81 Proposal for Issuance of Injunction/Consent Decree (th) (Entered: 07/11/1997)
83 MINUTES: ; in court hearing held re appropriatness of Terms of Prelim Inj Cnsl prsnt &conf held in chmbrs w/crt. Ptys stip that agreemnt rchd previously will remain in effect til the crt iss and ord. Crt will iss ord shortly by Judge Gary L. Taylor CR: Sally Marshall (jd) (Entered: 07/15/1997)
84 Suppl P/A in oppstn to Plntfs Prelim Inj. (jd) (Entered: 07/15/1997)
82 MINUTES: Following the ptys' mtng ion chambs on 7−9−97 the Crt indicated &the ptys agrd that the ptys' prev agrmnt temp restrained their activities w/ re to resident of Fairview Dev Ctr will remain in effect until the Crt iss a prelim inj in this matter; Crt will iss an inj shortly; by Judge Gary L. Taylor CR: none (krpa) (Entered: 07/15/1997)
85 ORDER by Judge Gary L. Taylor for preliminary injunction ; The court finds that inj relief is appropriate before class cert; it is apparent that class cert will be granted; second, the nature of potential irreparable inj in this case weighs heavily in favor of granting relief on expedited basis; pla shall post a bond in amt of $1,500 within 10 days of this order (th) (Entered: 07/18/1997)
86 ORDER by Judge Gary L. Taylor GRANT in part DENY in part motion to dismiss for injunctive relief [58−1] ; mot to dism is denied as to pla's ADA clam, Section 1983 procedural due process clms &Sec 1983 clms against dfts Amundson, Kohler &Figueroa; mot is granted as to pla Sec 1983 clms against dfts DDS &Fairview &Sec 1983 clms based on Calif BP2056 without lv to amend (th) (Entered: 07/18/1997)
87 ORDER for Amended Preliminary Injunction: pending trial the dfts Dept of Dev Services &Fairview Dev Ctr are enjoined from releasing or transferring adult resident of Fairview unless the individual has capacity to object; has authorized a rep in writing or is "represented" during course of releae decision making process; "represented" means he/she has a conservator or an involved family member ; this order does not prevent transfer under a lawful order; Court finds combination of factors for class cert and nature of potential irreparable injury weigh in favor of a prelim inj; pla to post a bond for $1,500 within 10 days of this order by Judge Gary L. Taylor (th) (Entered: 07/24/1997)
88 NOTICE of posting injunction bond/cashiers check in lieu of bond , posted $1500, by plaintiffs. (th) (Entered: 07/29/1997)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 17 of 54

08/04/1997 08/06/1997 08/12/1997
08/14/1997 08/15/1997 08/15/1997 08/29/1997
08/29/1997
08/29/1997 08/29/1997 09/08/1997 09/09/1997 09/09/1997
09/11/1997 09/12/1997 09/16/1997 09/16/1997 09/18/1997 09/18/1997 09/18/1997

89 ANSWER to by defendant Westside Regional Ct complaint for injunctive relief [1−1] (th) (Entered: 08/05/1997)
90 ANSWER to by defendant Regional Ctr Orange complaint [1−1] (krpa) (Entered: 08/07/1997)
91 ANSWER to by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr, defendant South Coast Regional, defendant Dennis G Amundson, defendant Harry Kohler, defendant Lilia Tan Figueroa, defendant Dawn Lemonds complaint [1−1] (krpa) (Entered: 08/13/1997)
94 ORDER re mtng of cnsl by Judge Gary L. Taylor ; mandatory status conference set on 9:00 11/10/97 (krpa) (Entered: 08/21/1997)
92 ANSWER to by defendant South Central LA Ctr complaint [1−1] (th) (Entered: 08/18/1997)
93 ANSWER to by defendant Harbor Regional Ctr complaint [1−1] (th) (Entered: 08/18/1997)
95 NOTICE OF MOTION AND MOTION by intervenor Melissa Tisdale, intervenor Raymond Masao Kawaguchi, intervenor Sheila Williams, intervenor Phillip Wilson, intervenor CA Assn State Hosp, intervenor Sacramento Assoc Ret to intervene ; motion hearing set for 10:00 9/22/97 (jd) (Entered: 09/03/1997)
LODGED Complaint−in−Intervention submitted by intervenor Melissa Tisdale, intervenor Raymond Masao Kawaguchi, intervenor Sheila Williams, intervenor Phillip Wilson, intervenor CA Assn State Hosp, intervenor Sacramento Assoc Ret (FWD TO CRD) (jd) (Entered: 09/03/1997)
96 NOTICE OF MOTION AND MOTION by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable for leave to file amend cmplnt ; motion hearing set for 10:00 9/22/97 (jd) (Entered: 09/03/1997)
LODGED Propsd lst amend cmplnt submitted by plaintiff Richard S, plaintiff Cynthia R, plaintiff Valdina R, plaintiff William Cable (FWD TO CRD) (jd) (Entered: 09/03/1997)
97 PROOF OF SERVICE by defendant South Coast Regional of answer by dft So Central on service list by mail 9/2/97 (th) (Entered: 09/10/1997)
98 Response by intervenor Barbara Bell, intervenor Danny Warren to motion to intervene [95−1] (th) (Entered: 09/11/1997)
99 Opposition by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr, defendant South Coast Regional, defendant Dennis G Amundson, defendant Harry Kohler, defendant Lilia Tan Figueroa, defendant Dawn Lemonds to pla's motion for leave to file amend cmplnt [96−1] (krpa) (Entered: 09/12/1997)
100 Stmt of Non Opposition by intervenor Barbara Bell, intervenor Danny Warren to motion for leave to file amend cmplnt [96−1] (th) (Entered: 09/15/1997)
101 PROOF OF SERVICE by defendant Harbor Regional Ctr of answer on attached service list by mail on 9/11/97 (th) (Entered: 09/15/1997)
102 ATTORNEY SUBSTITUTION: terminating Pivo &Halbreich and substituting attorney Richard O Schwartz by Judge Gary L. Taylor (th) (Entered: 09/18/1997)
103 JOINT REPORT OF EARLY MEETING OF COUNSEL Length of trial 21−28 days (th) (Entered: 09/22/1997)
104 EX PARTE APPLICATION filed by plaintiff for order deeming plas' late filing re Reply to Opposition to Amend timely ; (th) (Entered: 09/23/1997)
LODGED/PROPOSED (5) ORDER submitted by plaintiff for exparte motion for order deeming plas' late filing re Reply to Opposition to Amend timely [104−1] .(FWD TO CRD) (th) (Entered: 09/23/1997)
105 Reply to Opposition by plaintiff to motion for leave to file amend cmplnt [96−1], motion to intervene [95−1] (th) (Entered: 09/23/1997)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 18 of 54

09/18/1997 09/18/1997 09/23/1997
09/25/1997 11/12/1997 11/12/1997
11/12/1997 12/30/1997
01/12/1998 01/12/1998 03/16/1998 03/16/1998 03/16/1998 03/16/1998 03/16/1998 03/16/1998

106 Reply to Response of Intervenors Bell &Warren to proposed intervenors by plaintiff to motion to intervene [95−1] (th) (Entered: 09/23/1997)
107 Decl of Betty Warren by plaintiff in support of motion for leave to file amend cmplnt [96−1] (th) (Entered: 09/23/1997)
108 ORDER by Judge Gary L. Taylor granting pla's exparte motion for order deeming plas' late filing re Reply to Opposition to Amend timely [104−1]; Ord that plas' rply to opp of State dfts to mtn of plas for lv to fi an amd cmp in ord to add class act allegs only &plas' rply to resp of intv Bell &Warren to prop intvs Tisdale Etc et al's mtn to intervene &decof Betty Warren is hereby fld. (krpa) (Entered: 09/25/1997)
109 Statement of Issues &Proposed Schedule for Settlement Negotiations − STATUS REPORT by plaintiffs (th) (Entered: 09/26/1997)
110 Ptn by Debby Tisdale for apptmnt as Guardian Ad Litem for Melissa Tisdale &ORDER by Judge Gary L. Taylor. The ptn is granted (twdb) (Entered: 11/19/1997)
111 MINUTES: Granting motion for leave to file amend cmplnt adding class allegations [96−1]. Accordingly, plf's mot for lv to file amnd cmp is taken off calendar. In addition, the has signed ord appointing Debby tisdale as guardian ad litem for Melissa Tisdale. by Judge Gary L. Taylor CR: n/a (twdb) (Entered: 11/19/1997)
113 1st AMENDED COMPLAINT [1−1] by plaintiff Roes, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S . Summons not issd (krpa) (Entered: 01/16/1998)
112 STIPULATION and ORDER by Judge Gary L. Taylor that further proceedings in above act shall be stayed until 1−12−98 includ a stay of all discov; cont hearing on motion to intervene [95−1] 10:00 1/12/98 and that the ti frame for which mtns for class cert must be brought shall be ext by the ti dur which further proceeds are stayed; status conf is cont'd ; mandatory status conference set on 9:00 1/12/98 (krpa) (Entered: 01/07/1998)
114 MINUTES: Ord granting pla's motion for leave to file amend cmplnt [96−1], Ord denying plas' motion to intervene [95−1] by Judge Gary L. Taylor CR: S Marshall (krpa) (Entered: 01/20/1998)
115 MINUTES: ; mandatory status conference held , ; mandatory status conference cont'd to 9:00 3/16/98 ; these matters are stayed until 3−16−98 w/ 2 exceptions: Intvs Bell &Warren may fi A/C &hrg on 1−12−98 at SACV 97−219 GLT will go forward; by Judge Gary L. Taylor CR: none' (krpa) (Entered: 01/20/1998)
116 STATUS RCONF EPORT by plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S (krpa) (Entered: 03/20/1998)
117 SUPPLEMENT by plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to jnt stat conf report [116−1]; dec of William cable MD &Francis X Hardiman fld concurrently (krpa) (Entered: 03/20/1998)
118 DECLARATION of Francis X Hardiman by plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of stmts md in suppl status conf rpt [117−1] (krpa) (Entered: 03/20/1998)
119 DECLARATION of William cable MD by plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of stms md in suppl status conf rpt [117−1] (krpa) (Entered: 03/20/1998)
120 MINUTES: ; mandatory status conference held ; dco−12−31−98; ptc−3−5−99 at 1:30pm; trl to be may 1999; stay on discov is deemed removed on 4−20−98; discov is jnd w/ discov at SACV 96−1190−GLT by Judge Gary L. Taylor CR: none (krpa) (Entered: 03/20/1998)
121 TRL PREP ORDER for C/Tby Judge Gary L. Taylor ; discovery ddl set on 12/31/98 ; motion filing ddl set on 1:30 3/5/99 (krpa) (Entered: 03/20/1998)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 19 of 54

05/11/1998 05/13/1998 05/13/1998
05/22/1998 05/22/1998 06/08/1998
06/08/1998 06/08/1998
06/08/1998 06/15/1998 06/15/1998 06/15/1998
06/15/1998 06/15/1998 06/16/1998
06/25/1998 07/20/1998 07/27/1998

124 NOTICE by plaintiff Richard S of change of address (mrgo) (Entered: 05/14/1998)
122 ORDER to sub as a pty Clifford Allenby for Dennis Amundson as Director of the Dept of Developmental Svcs &for clarification re: crt's ord on 1st A/C by Judge Gary L. Taylor (krpa) (Entered: 05/14/1998)
123 2nd AMENDED COMPLAINT [113−1] by plaintiff Roes, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S terminating defendant Dennis G Amundson, defendant Harry Kohler, defendant Does, amicus Protection &Advocac, intervenor CA Assn State Hosp, intervenor Sacramento Assoc Ret; adding Debbie Tisdale, Association for Ret, Donna E Shalala, Clifford Allenby, Hugh Kohler . Summons not issd (krpa) (Entered: 05/14/1998)
125 STIPULATION and ORDER to ext ti in which dfts &intvs resp to 2nd A/C to &includ 6−8−98 by Judge Gary L. Taylor (krpa) (Entered: 05/29/1998)
126 NOTICE OF CHANGE Of Address filed by atty Ellen S Goldblatt for intervenor Danny Warren (krpa) (Entered: 05/29/1998)
127 NOTICE OF MOTION AND MOTION by Intervenors Phillip Wilson, Sheila Williams, Raymond Masao Kawaguchi, Melissa Tisdale, Barbara Bell, Danny Warren to strike ; motion hearing set for 10:00 8/3/98 (mrgo) (Entered: 06/09/1998)
128 MEMORANDUM of P/A by Intervenors Phillip Wilson, Sheila Williams, Raymond Masao Kawaguchi, Melissa Tisdale, Barbara Bell, Danny Warren in support of intervenor's motion to strike [127−1] (mrgo) (Entered: 06/09/1998)
SUMMONS issued on 2nd A/C as to Dawn Lemonds, Lilia Tan Figueroa, Westside Regional Ct, South Central LA Ctr, San Diego Ctr, Regional Ctr Orange, Harbor Regional Ctr, South Coast Regional, Fairview Develop Ctr, Dept of Devlp Serv, Donna E Shalala, Clifford Allenby, Hugh Kohler (mrgo) (Entered: 06/09/1998)
129 STIPULATION and ORDER to ext ti for dft fi resp to plf's 2nd A/C from 6/8/98 to 6/15/98 by Judge Gary L. Taylor (mrgo) (Entered: 06/09/1998)
130 ANSWER filed by defendant Westside Regional Ct to 2nd amended complaint [123−1] (krpa) (Entered: 06/16/1998)
131 ANSWER filed by defendant Regional Ctr Orange to 2nd amended complaint [123−1] (krpa) (Entered: 06/16/1998)
132 ANSWER filed by defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv, defendant Clifford Allenby, defendant Hugh Kohler to 2nd amended complaint [123−1] (krpa) (Entered: 06/17/1998)
133 ANSWER filed by defendant South Central LA Ctr to 2nd amended complaint [123−1] (krpa) (Entered: 06/17/1998)
134 ANSWER filed by defendant Harbor Regional Ctr to 2nd amended complaint [123−1] (krpa) (Entered: 06/17/1998)
SPLIT SUMMONS on 2nd A/C issued as to defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Harry Kohler, defendant Westside Regional Ct, defendant South Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv, defendant Donna E Shalala, defendant Clifford Allenby (krpa) (Entered: 06/17/1998)
135 NOTICE OF DISCREPANCY AND ORDER by Judge Gary L. Taylor that answer rcvd 6/22/98 is ord not fld but instead rejected &rtnd (mrgo) (Entered: 06/29/1998)
136 OPPOSITION by plaintiff to motion to strike [127−1] (rm) (Entered: 07/22/1998)
137 MINUTES: Re Intervenor's mtn to str: denying intervenor's motion to strike [127−1]; hrg sched for 8/3/98 is taken off calendar by Judge Gary L. Taylor CR: n/a (mrgo) (Entered: 07/31/1998)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 20 of 54

07/27/1998 07/30/1998 08/04/1998 08/24/1998 10/14/1998 10/19/1998 10/23/1998
10/27/1998 11/10/1998
11/10/1998 11/13/1998 11/20/1998
11/23/1998
11/23/1998
11/30/1998 12/01/1998 12/03/1998

138 STIPULATION and ORDER for ext of ti for dft to ans or otherwise resp to cmp to &incl 10/16/98 by Judge Gary L. Taylor (mrgo) (Entered: 07/31/1998)
139 REPLY by intervenors Phillip Wilson, Sheila Williams, Raymond Masao Kawaguchi, Melissa Tisdale, Barbara Bell, Danny Warren to opp to intervenor's to motion to strike [127−1] (mrgo) (Entered: 08/05/1998)
140 ANSWER filed by defendant San Diego Region Ctr to 2nd amended complaint [123−1] (krpa) (Entered: 08/06/1998)
141 PROOF OF SERVICE by defendant Donna E Shalala on 8/24/98 of stip for ext of ti for dft to ans or otherwise resp to cmp (mrgo) (Entered: 08/27/1998)
142 DECLARATION in support to proceed in forma pauperis by plaintiff Richard S (mrgo) (Entered: 10/19/1998)
143 ANSWER filed by defendant Donna E Shalala to 2nd amended complaint [123−1] (mrgo) (Entered: 10/21/1998)
144 1ST AMENDED COMPLAINT IN INTERVENTION [78−1] terminating intervenor Danny Warren; adding Barbara Bell, Jeffrey Cason, Donna Plouffe, Self−Advocacy Board, Autism Society of LA, Area IV Board . Summons not issd (mrgo) (Entered: 10/27/1998)
145 ORDER by Judge Gary L. Taylor granting plf's declaration motion to proceed in forma pauperis [142−1] (mrgo) (Entered: 10/29/1998)
146 NOTICE OF MOTION AND MOTION by plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S, plaintiff Debbie Tisdale, plaintiff Association for Ret to dismiss 1st A/C in intervention ; memo of P/A in suppt; decl of Francis X Hardiman; motion hearing set for 10:00 11/30/98 (mrgo) (Entered: 11/17/1998)
147 DECLARATION of Francis X Hardiman by plfs William Cable, Valdina R, Cynthia R, Richard S, Debbie Tisdale, Association for in suppt of plf's motion to dismiss 1st A/C in intervention [146−1] (mrgo) (Entered: 11/17/1998)
148 Amend Notice by plf Richard S of mtn on plf's mtn to dism 1st A/C in intervention [146−1] 10:00 12/7/98 (rmi) (Entered: 11/18/1998)
149 STIPULATION and ORDER re sched of class certif mtn(s) apprvd by Judge Gary L. Taylor. Class certif mtn(s) are to be srvd &fld by 12/10/98; opp to any class certif mtn is to be srvd &fld by 12/28/98; rply brs to any class certif mtn is to be srvd &fld by 1/4/99; the hrg dt on all class certif mtns will be 1/11/99. (mrgo) (Entered: 11/24/1998)
150 OPPOSITION by intervenors Phillip Wilson, Sheila Williams, Raymond Masao Kawaguchi, Melissa Tisdale, Barbara Bell, Barbara Bell, Jeffrey Cason, Donna Plouffe, Self−Advocacy Board, Autism Society of LA, Area IV Board to plf's motion to dismiss 1st A/C in intervention [146−1] (mrgo) (Entered: 12/01/1998)
151 DECLARATION of Ellen S Goldblatt by intervenors Phillip Wilson, Sheila Williams, Raymond Masao Kawaguchi, Melissa Tisdale, Barbara Bell, Barbara Bell, Jeffrey Cason, Donna Plouffe, Self−Advocacy Board, Autism Society of LA, Area IV Board in suppt of intervenor's opp to plf's motion to dismiss 1st A/C in intervention [146−1] (mrgo) (Entered: 12/01/1998)
152 DECLARATION of Francis X Hardiman by plaintiff Richard S re jnt status rpt of 2nd early mtg of cnsl (mrgo) (Entered: 12/03/1998)
153 PROOF OF SERVICE by plaintiff Richard S on 11/30/98 of crt ord re sched of class cert mtn (mrgo) (Entered: 12/07/1998)
154 REPLY by plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S, plaintiff Debbie Tisdale, plaintiff Association for Ret to intv's opp to motion to dismiss 1st A/C in intervention [146−1] (krpa) (Entered: 12/08/1998)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 21 of 54

12/07/1998 12/07/1998 12/10/1998
12/10/1998 12/10/1998
12/10/1998
12/11/1998 12/11/1998 12/14/1998 12/15/1998 12/15/1998 12/17/1998 12/17/1998 12/17/1998 12/17/1998 12/17/1998

155 ORDER by Judge Gary L. Taylor denying plas' motion to dismiss 1st A/C in intervention [146−1] (krpa) (Entered: 12/14/1998)
156 MINUTES: Crt denying plas' motion to dismiss 1st A/C in intervention [146−1] by Judge Gary L. Taylor CR: S Marshall (krpa) (Entered: 12/14/1998)
157 NOTICE OF MOTION by plaintiff Richard S, plaintiff Roes, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Debbie Tisdale, plaintiff Association for Ret for certification of class act ; decs of F Hardiman, W Cable MD &D Tisdale ; motion hearing set for 10:00 1/11/99 (krpa) (Entered: 12/16/1998)
158 MEMORANDUM of P/A IN SUPPORT by plaintiff Richard S, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Debbie Tisdale, plaintiff Association for Ret of motion for certification of class act [157−1] (krpa) (Entered: 12/16/1998)
159 NOTICE OF MOTION by intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Barbara Bell, intervenor Jeffrey Cason, intervenor Donna Plouffe, intervenor Self−Advocacy Board, intervenor Autism Society of LA, intervenor Area IV Board to certify a class act ; motion hearing set for 10:00 1/11/99 prop ord (krpa) (Entered: 12/16/1998)
160 MEMORANDUM of P/A IN SUPPORT by intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Barbara Bell, intervenor Jeffrey Cason, intervenor Donna Plouffe, intervenor Self−Advocacy Board, intervenor Autism Society of LA, intervenor Area IV Board of motion to certify a class act [159−1] (krpa) (Entered: 12/16/1998)
161 NOTICE OF DISCREPANCY AND ORDER by Judge Gary L. Taylor that decl &exh rcvd 12/11/98 are ord to be fld &processed; prf of svc to be fld w/in 3 days (mrgo) (Entered: 12/17/1998)
162 DECL &EXH by intervenors Phillip Wilson, Sheila Williams, Raymond Masao Kawaguchi, Melissa Tisdale, Barbara Bell, Barbara Bell, Jeffrey Cason, Donna Plouffe, Self−Advocacy Board, Autism Society of LA, Area IV Board in suppt of their motion to certify a class act [159−1] (mrgo) (Entered: 12/17/1998)
163 PROOF OF SERVICE by intervenors interventor's ntc of mtn &mtn to certify a class actn, memo of PA in supp, decls &exhibits in supp &prop ord gr mtn to certify executed upon various ptys (see lengthy svc list) by mail on 12/10/98 (rmi) (Entered: 12/17/1998)
165 AMENDED by plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S, plaintiff Debbie Tisdale, plaintiff Association for Ret NTC OF MOTION re plf's mtn for certif of class actn [157−1] (mrgo) (Entered: 12/21/1998)
166 AMENDED TABLE OF AUTH by plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S, plaintiff Debbie Tisdale, plaintiff Association for Ret to plfs' memo of P/A in suppt of plf's motion for certification of class act [157−1] (mrgo) (Entered: 12/21/1998)
167 APPLICATION for TRO &Prelim inj by plaintiff Richard S; memo of P/A; decl of William Cable MD &Francis X Hardiman; ldgd prop TRO &OSC (mrgo) (Entered: 12/22/1998)
168 NOTICE of appl re appl for TRO &prelim inj by plaintiff Richard S; decl of Francis X Hardiman (mrgo) (Entered: 12/22/1998)
169 DECLARATION of William Cable MD by plaintiff Richard S in suppt of plf's application for TRO &prelim inj [167−1] (mrgo) (Entered: 12/22/1998)
170 DECLARATION of Francis X Hardiman by plaintiff Richard S in suppt of plf's application for TRO &prelim inj [167−1] (mrgo) (Entered: 12/22/1998)
171 ORDER by Discovery Elgin Edwards denying plf's application for TRO &prelim inj [167−1] (see doc for specifics) (mrgo) (Entered: 12/22/1998)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 22 of 54

12/18/1998 12/28/1998 12/28/1998 12/28/1998 12/28/1998 12/28/1998
12/28/1998 12/28/1998 01/04/1999
01/04/1999 01/04/1999 01/04/1999 01/04/1999 01/04/1999 01/04/1999

164 ANSWER filed by defendant Regional Ctr Orange to 1st amended complaint [144−1] (mrgo) (Entered: 12/21/1998)
172 ANSWER filed by defendant Westside Regional Ct to 1st amended complaint in intervention [144−1] (mrgo) (Entered: 01/05/1999)
173 OPPOSITION by dfts Hugh Kohler, Clifford Allenby, Dawn Lemonds, Lilia Tan Figueroa, South Coast Regional, Fairview Develop Ctr, Dept of Devlp Serv to intervenor's motion to certify a class act [159−1]; memo of P/A (mrgo) (Entered: 01/07/1999)
174 OPPOSITION by dfts Hugh Kohler, Clifford Allenby, Dawn Lemonds, Lilia Tan Figueroa, South Coast Regional, Fairview Develop Ctr, Dept of Devlp Serv to plfs motion for certification of class act [157−1]; memo of P/A (mrgo) (Entered: 01/07/1999)
175 OPPOSITION by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to intervenor's motion to certify a class act [159−1]; decl of Francis X Hardiman (mrgo) (Entered: 01/07/1999)
176 OPPOSITION by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell to plf's motion for certification of class act [157−1] (mrgo) (Entered: 01/07/1999)
177 JOINDER by defendant Westside Regional Ct joining intervenor's opp to plf's motion for certification of class act [157−1] (mrgo) (Entered: 01/07/1999)
178 NOTICE by defendant Donna E Shalala of no position re intervenor's motion to certify a class act [159−1] (mrgo) (Entered: 01/07/1999)
180 REPLY by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell to plf's &State dft's opp to intervenor's motion to certify a class act [159−1] (mrgo) (Entered: 01/11/1999)
181 DECLARATION of Richard K Eyman PhD by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re plf's motion for certification of class act [157−1] (mrgo) (Entered: 01/11/1999)
182 DECLARATION of Francis X Hardiman by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of plf's motion for certification of class act [157−1] (mrgo) (Entered: 01/11/1999)
183 DECLARATION No. 2 of William Cable MD by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of plf's motion for certification of class act [157−1] (mrgo) (Entered: 01/11/1999)
184 REPLY by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to State dft's opp to plf's motion for certification of class act [157−1] (mrgo) (Entered: 01/11/1999)
185 REPLY by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Richard S to intervenor's opp to plf's motion for certification of class act [157−1] and joinder by dft Westside Regional Center (mrgo) (Entered: 01/11/1999)
186 JOINDER by defendant Regional Ctr Orange joining in opp of State dfts to intervenor's motion to certify a class act [159−1] (mrgo) (Entered: 01/11/1999)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 23 of 54

01/04/1999 01/07/1999 01/08/1999 01/11/1999
01/21/1999 01/27/1999 01/28/1999 02/17/1999
02/24/1999
04/14/1999 04/16/1999 04/22/1999 05/19/1999 05/19/1999 05/26/1999 07/06/1999

187 JOINDER by defendant Regional Ctr Orange joining in opp of State dfts to plf's motion for certification of class act [157−1] (mrgo) (Entered: 01/11/1999)
188 JNT STATUS REPORT by defendant Donna E Shalala (krpa) (Entered: 01/12/1999)
179 ANSWER filed by defendant San Diego Region Ctr to 1st amended complaint in intervention [144−1] (mrgo) (Entered: 01/11/1999)
189 MINUTES: Hrg on intvr's mtn to certify a class actn &plf's mtn to certify a class actn &discussion re stip/prop ord to cont: denying intvr's motion to certify a class act [159−1], denying plf's motion for certification of class act [157−1] ; discovery ddl vac; motion filing ddl vac ; the crt ord the ptys to sched &participate in a sttlmt conf; the crt ord the intvr's designation of experts to be due at the same ti as dft's designation of expert by Judge Gary L. CR: S Marshall (mrgo) (Entered: 01/14/1999)
PLACED IN FILE − NOT USED stip to cont dco, ptc *trl dts (krpa) (Entered: 01/28/1999)
191 NOTICE &REQUEST by defendant Dept of Devlp Serv of sttlmt procedure selection (rmi) (Entered: 02/10/1999)
190 ORDER for sttlmt conf by Magistrate Judge Elgin C. Edwards sttlmt conf sched for 9:00 2/17/99 ; NLT 2/10/99 ea pty shall deliver, fax or make avail to other pty a non−confidential stmt addressed to th other pty; (rmi) (Entered: 02/03/1999)
192 MINUTES: MSC held ; to fur the sttlmt process, plfs will fax to all cnsl NLT 5:00 p.m. 2/18/99 a detailed stmt of propsd stmt of propsd sttlmt terms; dfts will fax rply to plfs' cnls NLT noon, 2/23/99 &ptys will confer again w/the Magistrate Judge on 2/24/99 at 11:00 a.m.; any dft who agrees to be bound by any sttlmt agreed to by plfs &the state of CA is execused frm attending, but is welcome to attend; by Magistrate Judge Elgin C. Edwards; CR: n/a (rmi) (Entered: 02/23/1999)
193 MINUTES: MSC held; fol sched for fur negotiations: all ptys must meet w/out Magistrate Judge on 3/15/99 at 9:30 a.m. &on 3/25/99 at 9:30 a.m.; ptys ldg paper for Magistrate Judge Ewards on 4/13/99; for fur negotiations all ptys meet w/Magistrate Judge Edwards on 9:00 4/14/99 ; by Magistrate Judge Elgin C. Edwards; CR: n/a (rmi) (Entered: 03/02/1999)
194 MINUTES: sttlmt conf held ; the Magistrate Judge conferred w/the ptys &cnsl; the ptys are negotiating in good fatih; substantial negotiations remain bef the prospects of sttlmt can be reached; another settlement conference well be held at 9:30 5/26/99 by Magistrate Judge Elgin C. Edwards CR: n/a (rmi) (Entered: 04/23/1999)
196 PETITION/ORDER for appoint of guardian ad litem for interv Jeffrey Cason by Judge Gary L. Taylor; decls &memo fo PA in suppt thereof; ord that Mary Cason be appoint as guardian ad litem for Jeffrey Cason (rmi) (Entered: 04/29/1999)
195 MINUTES: (in chambs) The ptys are urged to defer or minimize discov to the maximum extent consistent w/completing prep for trial unless sttlmt discussions break down &make trial inveitable by Discovery Elgin Edwards CR: n/a (see doc for specifics) (mrgo) (Entered: 04/29/1999)
197 STIPULATION and ORDER to ext dco, ptc by Judge Gary L. Taylor ; discovery ddl set on 11/18/99 ; pretrial conference on 4/7/00 (krpa) (Entered: 05/21/1999)
198 (stip &or to ext dco &PTC) This doc was inadvertently dktd to SACV 97−219 &should have been dktd to SACV 96−1190−there is no document for item #198. (mrgo) (Entered: 06/14/1999)
199 MINUTES: ; settlement conference held ; the case was not stld; no further confs are planned &the mag jdg recommend that the ptys srv but not fi a mtn for S/J on a key iss &then renew negotiations; if stlmnt is not poss the ptys may then fi S/J mtns by Discovery Elgin Edwards CR: none (krpa) (Entered: 06/08/1999)
200 RECEIPT OF TRANSCRIPT of proceedings for the following date(s): 1/11/99 (Re: ) CR: S Marshall (krpa) (Entered: 07/08/1999)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 24 of 54

07/06/1999 07/26/1999 08/17/1999
08/17/1999
09/09/1999
09/17/1999 09/20/1999 09/20/1999 09/20/1999
11/01/1999 11/04/1999 11/24/1999

TRANSCRIPT filed for proceedings held on 1/11/99 by C/R: S Marshall (krpa) (Entered: 07/08/1999)
201 ATTORNEY SUBSTITUTION: terminating attorney Judith A Enright for Westside Regional Ct by defendant Westside Regional Ct and substituting Julie Ocheltree attorney by Judge Gary L. Taylor (krpa) (Entered: 07/28/1999)
202 NOTICE OF JNT MOTION AND JNT MOTION by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, plaintiff plaintiff Debbie Tisdale, intervenor Sacramento Assoc Ret, intervenor CA Assn State Hosp, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Danny Warren, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S, intervenor Mary Cason to extend dco &for order shortening ti &wvr of oral argument ; motion hearing set for 10:00 9/13/99 Lodged prop ord (krpa) (Entered: 08/18/1999)
203 MEMORANDUM of P/A IN SUPPORT by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, defendant Hugh Kohler, plaintiff Debbie Tisdale, intervenor Sacramento Assoc Ret, intervenor CA Assn State Hosp, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Danny Warren, amicus Protection &Advocac, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S, intervenor Mary Cason of their motion to extend dco [202−1], motion for order shortening ti &wvr of oral argument [202−2]; dec in suppt thereof (krpa) (Entered: 08/18/1999)
204 MINUTES: The hrg sched for Monday 9/13/99 on Plf's &Intervenors' Joint Mot for Extension of Discov Cut−off is taken off calendar &resets the hrg on mot to extend dco [202−1] to 11:30 9/20/99, &resets hrg on mot for order shortening ti &wvr of oral argument [202−2] to 11:30 9/20/99. The Crt will consider the mot in conjunction w/the hrg on the OCS re: P/I. The Hrg on these mot(s) is sched for Monday 9/20/99 at 11:30; by Judge Gary L. Taylor CR: n/a; (cc: cnsl) (lb) (Entered: 09/16/1999)
205 NOTICE OF NON−OPPOSITION by dfts Donna E Shalala, Dept of Devlp Serv of motion to extend dco [202−1] (lb) (Entered: 09/24/1999)
206 NOTICE of Reassignment of Case w/in Ofc of Cnsl for the State Dfts effective 9/17/99 when Karen L Fried is no longer assigned to this case by defendant Dept of Devlp Serv (lb) (Entered: 09/27/1999)
207 NOTICE of Payment frm the Transcript Reimbursement Fund (see doc for details) by intervenor Barbara Bell (lb) (Entered: 09/27/1999)
208 MINUTES: The Crt GRANTS plfs' &intervenors' joint mot for extension and RESETS hearing on motion to extend dco [202−1] to 1/30/00, &RESETS hearing on motion for order shortening &wvr of oral argument [202−2] to 1/30/00 finding the motion extend dco [202−1] MOOT, finding the motion for order shortening ti &wvr of oral argument [202−2] MOOT; The Crt takes hrg re: OSC re: P/I under submission and ORDERS the TRO remians in effect until the Crt makes the ruling on the P/I, sched for hrg 10/4/99 in case SACV 96−1190, is MOOT, as the 10/4/99 hrg is subsumed by this current hrg. The Crt ORDERS the ptys to fax to the Crt this afternoon, the fol: 1. plf shall fax a cpy of the ltr written to Mr. O'Neill to the Crt &def cnsl &2. def shall fax a cpy or citation, of authority pertaining to the length of ti re: Ntc &the Provision re: effective date; by Judge Gary L. Taylor; CR: Sally Marshall (lb) (Entered: 09/27/1999)
209 OBJECTIONS by dft Dept of Devlp Serv to Plfs' Ntc of Deposition of Lilia Tan Figueroa,MD (lb) (Entered: 11/08/1999)
210 ORDER by Discovery Elgin Edwards recusing himself , to reassign to Discovery Arthur Nakazato (dr) (Entered: 11/10/1999)
211 NOTICE OF ASSOCIATION of Counsel for Association for plfs, Ret, Debbie Tisdale, William Cable, Valdina R, Cynthia R, S by attorney Herbert Hafif (rmi) (Entered: 12/07/1999)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 25 of 54

12/13/1999 12/15/1999 12/27/1999 01/03/2000
01/03/2000 01/06/2000 01/07/2000
01/10/2000 01/10/2000
01/10/2000
01/10/2000 01/11/2000 01/11/2000 01/19/2000 01/24/2000
01/24/2000

212 RESPONSE by defendant Harbor Regional Ctr to 1st set of interrog by intv to dfts Harbor Regional Ctr, Westside Regional Ctr, Center of OC, San Diego Regional Center &So Central LA Regional Center (mrgo) (Entered: 12/21/1999)
213 ATTORNEY SUBSTITUTION: terminating attorney Richard O Schwartz for South Central LA Ctr by defendant South Central LA Ctr and substituting attorney Julie A Ocheltree by Judge Gary L. Taylor (jd) (Entered: 12/27/1999)
214 State dfts' disclosure of expert wits (mrgo) (Entered: 01/03/2000)
215 ATTORNEY SUBSTITUTION: terminating attorney Richard O Schwartz for Harbor Regional Ctr by defendant Harbor Regional Ctr and substituting attorney Judith A Enright, Julie A Ocheltree by Judge Gary L. Taylor (krpa) (Entered: 01/05/2000)
216 Addendum to state dfts' disclosure of expert wits [214−1] (krpa) (Entered: 01/05/2000)
217 EX PARTE APPLICATION filed by defendant Donna E Shalala to fi mot for jgm on the pldgs exceeding 25 page limitation Lodged prop ord (mrgo) (Entered: 01/10/2000)
218 NOTICE OF DISCREPANCY AND ORDER by Judge Gary L. Taylor that mtn to ext, decl of P. Lytte, decl of F. Hardiman, decl of G. Gallupp, prop ord is not to be filed, but instead rejected &is ord ret to cnsl (cc: all counsel) (rmi) (Entered: 01/10/2000)
219 EX PARTE APPLICATION filed by plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S for order shortening ti for hrg on mtn to ext dco &prop ord (krpa) (Entered: 01/11/2000)
220 DECLARATION of Francis X Hardiman by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re exparte motion for order shortening ti for hrg on mtn to ext dco &prop ord [219−1] (krpa) (Entered: 01/11/2000)
221 DECLARATION of Patricia M Lytle, atty at law, law offices of Herbert Hafif by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re exparte motion for order shortening ti for hrg on mtn to ext dco &prop ord [219−1] (krpa) (Entered: 01/11/2000)
222 MINUTES: (in chambs) Ord denying exparte motion for order shortening ti for hrg on mtn to ext dco &prop ord [219−1] by Judge Gary L. Taylor CR: none (krpa) (Entered: 01/11/2000)
223 NOTICE OF MOTION AND MOTION by defendant Donna E Shalala for judgment on the pleadings ; memo of P/A in suppt thereof ; motion hearing set for 10:00 1/31/00 (krpa) (Entered: 01/13/2000)
224 ORDER by Judge Gary L. Taylor granting dft motion for judgment on the pleadings ext 25 pgs in length &consisting of 44 pgs herein[223−1] (krpa) (Entered: 01/13/2000)
225 STATEMENT non−opp by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re dft's motion for judgment on the pleadings [223−1] (krpa) (Entered: 01/20/2000)
226 NOTICE OF MOTION AND MOTION by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to extend dco dts &pt cut−off dts ; motion hearing set for 10:00 2/14/00 Lodged prop ord (krpa) (Entered: 01/26/2000)
227 DECLARATION of Margaret M Cahill by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of their motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 01/26/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 26 of 54

01/24/2000 01/24/2000 01/24/2000 01/24/2000 01/24/2000 01/24/2000 01/26/2000 01/27/2000 01/28/2000
01/31/2000 01/31/2000
01/31/2000
01/31/2000

228 DECLARATION of Dana Gallupi by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 01/26/2000)
229 DECLARATION of Francis X Hardiman Esq by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 01/26/2000)
230 DECLARATION of Patricia Lytle Esq by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 01/26/2000)
231 Suppl dec of Francis X Hardiman by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 01/26/2000)
232 Suppl Dec of Patricia Lytle Esq by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 01/26/2000)
233 REPLY by defendant Donna E Shalala in suppt of the motion for judgment on the pleadings [223−1] (krpa) (Entered: 01/26/2000)
234 STIPULATION and ORDER for dism of dft D Shalala purs to FRCP 41a1 w/ prej; each pty to this stip agrs to bear its own costs; the mtn on cal for 1−31−00 is off cal by Judge Gary L. Taylor dismissing party Donna E Shalala (krpa) (Entered: 02/01/2000)
PLACED IN FILE − NOT USED stip of dism of dft, Donna E Shalala (rmi) (Entered: 01/31/2000)
235 OBJECTIONS by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Westside Regional Ct, defendant South Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv to plas' purp updtd expert rpts (krpa) (Entered: 02/01/2000)
236 MEMORANDUM of P/A by defendant Regional Ctr Orange in opposition to pla's motion to extend dco dts &pt cut−off dts [226−1]; dec of Thomas F NIxon (krpa) (Entered: 02/02/2000)
237 MEMORANDUM of P/A by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Westside Regional Ct, defendant South Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv in opposition to plas' motion to extend dco dts &pt cut−off dts [226−1]; decs of T Chung Ryu, S Salzwedel, K Fried &R Waldow (krpa) (Entered: 02/02/2000)
238 OPPOSITION by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason to plas' motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 02/02/2000)
239 DECLARATION of Ellen S Goldblatt by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason in suppt of intv's opp to plas' motion to extend dco dts &pt cut−off dts [226−1] (krpa)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 27 of 54

02/03/2000
02/07/2000 02/07/2000 02/07/2000 02/07/2000 02/07/2000 02/09/2000
02/09/2000
02/09/2000
02/09/2000 02/09/2000 02/09/2000

(Entered: 02/02/2000)
240 DECLARATION of Ellen S Goldblatt by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason in suppt of intvr's opp to plas' motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 02/08/2000)
241 Dmd to Dft Dept of Develop Svcs Protect &Advocacy to ldg orig depos &exhts to Dawn Lemonds, Jeffrey Helfer &Lou Sarrao (krpa) (Entered: 02/09/2000)
242 DECLARATION of Patricia Lytle, Esq by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in rply to opp to motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 02/09/2000)
243 DECLARATION of Margaret M Cahill Esq by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in rply to opp to motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 02/09/2000)
244 REPLY DECL of Francis X Hardiman to decl of Jerald Mosley Esq &Martin Milas Esq by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 02/09/2000)
245 REPLY DECL of Francis X Hardiman by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 02/09/2000)
246 NOTICE OF MOTION AND MOTION by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason to compel dfts to permit entry upon land for inspection of Fairview Developmental Center ; motion hearing set for 10:00 3/2/00 (krpa) (Entered: 02/15/2000)
247 DECLARATION of Robert M Day by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason re motion to compel dfts to permit entry upon land for inspection of Fairview Developmental Center [246−1] (krpa) (Entered: 02/15/2000)
248 DECLARATION of Ellen S Goldblatt by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason re motion to compel dfts to permit entry upon land for inspection of Fairview Developmental Center [246−1] (krpa) (Entered: 02/15/2000)
249 JNT STIPULATION filed on mtn of intvs to compel dfts to permit entry upon land for inspection of Fairview Developmental Center (krpa) (Entered: 02/15/2000)
250 NOTICE OF MOTION AND MOTION by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to compel prod of docs from the Department of Developmental Services ; motion hearing set for 10:00 3/2/00 (krpa) (Entered: 02/15/2000)
251 DECLARATION of Hugh Kohler, Eric Zahyaria PhD , &Richard Waldow in opp by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Westside Regional Ct, defendant South

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 28 of 54

02/10/2000
02/10/2000 02/10/2000 02/10/2000 02/10/2000 02/11/2000
02/11/2000
02/14/2000 02/16/2000 02/17/2000
02/18/2000

Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp to intv's motion to compel dfts to permit entry upon land for inspection of Fairview Developmental Center [246−1] (krpa) (Entered: 02/15/2000)
252 EX PARTE APPLICATION filed by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason for order to exceed pg length on memo in suppt of S/Adjud &memo &dec in suppt thereof Lodged prop ord (krpa) (Entered: 02/15/2000)
253 ORDER by Judge Gary L. Taylor granting ntv's exparte motion for order to exceed pg length of 35 pgs on memo in suppt of S/Adjud &&dec in suppt thereof [252−1] (krpa) (Entered: 02/15/2000)
254 NOTICE of cont by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S of hearing resetting hearing on motion to compel prod of docs from the Department of Developmental Services [250−1] 10:00 3/2/00 (krpa) (Entered: 02/15/2000)
255 DECLARATION of Margaret M Cahill &NTC OF ERRATA in attchmnts of exhts by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to the orig motion to compel prod of docs from the Department of Developmental Services [250−1] (krpa) (Entered: 02/15/2000)
256 AMENDED PROOF OF SERVICE by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S on 2/10/00 of ntc mtn &mtn to comp prod of docs from the Dept of Devel Svcs (krpa) (Entered: 02/15/2000)
257 Suppl dec of Karen L Fried in by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Westside Regional Ct, defendant South Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv to plas' motion to extend dco dts &pt cut−off dts [226−1] (krpa) (Entered: 02/15/2000)
258 NOTICE of ldgmnt of orig depo transcripts by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason; LDGD 5 TRANSCRIPTS W/CRD (krpa) (Entered: 02/15/2000)
259 MINUTES: Crt denying plas' motion to extend dco dts &pt cut−off dts [226−1] by Judge Gary L. Taylor CR: S Marshall (krpa) (Entered: 02/16/2000)
PLACED IN FILE − NOT USED prop ord on mtn etc (krpa) (Entered: 02/17/2000)
260 MEMORANDUM of P/A by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Westside Regional Ct, defendant South Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv in opposition to plas' motion to compel prod of docs from the Department of Developmental Services [250−1]; dec of Tammy Chung Ryu; exhts (krpa) (Entered: 02/22/2000)
261 EX PARTE APPLICATION filed by plaintiff Richard S for order to exceed pg length on memo in suppt of mtn for S/J ; memo &dec in suppt thereof &Lodged prop ord (krpa) (Entered: 02/22/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 29 of 54

02/18/2000 02/18/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000
02/22/2000
02/22/2000
02/22/2000
02/22/2000

262 ORDER by Judge Gary L. Taylor granting pla Richard S's exparte motion for order to exceed pg length on memo in suppt of mtn for S/J 35 pgs in length[261−1] (krpa) (Entered: 02/22/2000)
263 EX PARTE APPLICATION filed by defendant Westside Regional Ct, defendant South Central LA Ctr, defendant Harbor Regional Ctr for order , to extend 2 weeks of ti for filing any mtns for S/J ; dec of J Ocheltree &memo of P/A in suppt thereof; Lodged prop ord (krpa) (Entered: 02/23/2000)
264 NOTICE OF MOTION AND MOTION by defendant San Diego Region Ctr for summary judgment agst plas ; memno of P/A; stmt of uncont facts &concl of law; decs of J Steeg Borechert, W Werwage, B Lord &R House in suppt ; motion hearing set for 10:00 3/20/00 Lodged ord, stmt (krpa) (Entered: 02/23/2000)
265 MEMORANDUM of P/A IN SUPPORT by defendant San Diego Region Ctr of motion for summary judgment agst plas [264−1] (krpa) (Entered: 02/23/2000)
266 DECLARATION of Judy Steeg Borchert MSW by defendant San Diego Region Ctr's motion for summary judgment agst plas [264−1] (krpa) (Entered: 02/23/2000)
267 DECLARATION of Warren Werwage by defendant San Diego Region Ctr re motion for summary judgment agst plas [264−1] (krpa) (Entered: 02/23/2000)
268 DECLARATION of Barry Lord by defendant San Diego Region Ctr in suppt dfts' motion for summary judgment agst plas [264−1] (krpa) (Entered: 02/23/2000)
269 DECLARATION of Ronald R House by defendant San Diego Region Ctr re motion for summary judgment agst plas [264−1] (krpa) (Entered: 02/23/2000)
270 RE−NOTICE OF MOTION AND MOTION by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason to compel dfts to permit entry upon land for inspection of Fairview Dev Ctr ; motion hearing set for 10:00 3/2/00 (krpa) (Entered: 02/24/2000)
271 NOTICE of ord permit fi of intvs' memo of law in excess of 25 pgs in legnth by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason (krpa) (Entered: 02/24/2000)
272 NOTICE OF MOTION AND MOTION by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Westside Regional Ct, defendant South Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv for summary adjudication or altern to dismiss as to certain plas, &for S/Adjud of issues ; motion hearing set for 10:00 3/20/00 Lodged stmt/prop jgm (krpa) (Entered: 02/24/2000)
273 MEMORANDUM of P/A IN SUPPORT by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Westside Regional Ct, defendant South Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv of motion for summary adjudication [272−1], motion to dismiss as to certain plas, &for S/Adjud of issues [272−2] (krpa) (Entered: 02/24/2000)
274 DECLARATION of state dfts' by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Westside Regional Ct, defendant South Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv re motion for summary adjudication [272−1], motion to dismiss as to certain plas, &for S/Adjud of issues [272−2] (krpa) (Entered: 02/24/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 30 of 54

02/22/2000 02/22/2000
02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000

275 ORDER by Judge Gary L. Taylor granting exparte motion for order [263−1], granting exparte motion to extend 2 weeks ti for filing any mtns for S/J [263−2]; Ord that the ext to fi any mtn for S/J agst plas or intvs in this matter shall be fld by 2−28−00 (krpa) (Entered: 02/24/2000)
277 NOTICE OF MOTION AND MOTION by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason for summary adjudication ; motion hearing set for 10:00 3/20/00 (krpa) (Entered: 02/29/2000)
278 MEMORANDUM of P/A IN SUPPORT by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason of motion for summary adjudication [277−1] (krpa) (Entered: 02/29/2000)
279 DECLARATION of Kristy A Michel by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason re motion for summary adjudication [277−1] (krpa) (Entered: 02/29/2000)
280 DECLARATION of Ellen S Goldblatt by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason re motion for summary adjudication [277−1] (krpa) (Entered: 02/29/2000)
282 NOTICE OF MOTION by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr ; motion hearing set for 10:00 3/20/00 (krpa) (Entered: 02/29/2000)
283 REQUEST by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S for judicial notice (krpa) (Entered: 02/29/2000)
284 DECLARATION of Wm Cable MD by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
285 REQUEST by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S for judicial notice re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
286 REQUEST by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S for judicial notice re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
287 DECLARATION of Rhys Burchill by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 31 of 54

02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/22/2000 02/23/2000 02/23/2000
02/24/2000 02/24/2000

288 REQUEST by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S for judicial notice re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
289 REQUEST by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S for judicial notice re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
290 REQUEST by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S for judicial notice re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
291 DECLARATION of Kathleen Fannin by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
292 DECLARATION of Richard Sancho by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
293 DECLARATION of David J Strauss Ph.D by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
294 DECLARATION of Beverly Lozano Ph.D by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
295 DECLARATION of Francis X Hardiman by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 02/29/2000)
281 NOTICE OF DISCREPANCY AND ORDER to fi &process the mtn for S/J; stmt; req for jud ntc; dec in suppt ldgd on 2−22−00 by Judge Gary L. Taylor (cc: all counsel) (krpa) (Entered: 02/29/2000)
296 NOTICE of stlmnt conf by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Westside Regional Ct, defendant South Central LA Ctr, defendant San Diego Region Ctr, defendant Regional Ctr Orange, defendant Harbor Regional Ctr, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv (krpa) (Entered: 02/29/2000)
276 NOTICE OF DISCREPANCY AND ORDER to fi &process the mtn, memo of P/A; prop ord; statement of uncont facts; &dec of S goldblath; dec of K Michel by Judge Gary L. Taylor (cc: all counsel) (krpa) (Entered: 02/29/2000)
297 JOINDER by defendant Regional Ctr Orange joining in portions of state dfts' motion for summary adjudication [272−1], &joining intv's motion for summary adjudication [277−1] (krpa) (Entered: 02/29/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 32 of 54

02/25/2000 02/25/2000 02/25/2000
02/25/2000
02/25/2000
02/29/2000 03/03/2000 03/03/2000 03/03/2000 03/03/2000 03/06/2000 03/06/2000 03/06/2000

298 NOTICE OF ERRATA by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S dec of Kathleen Fannin in suppt of plas mtn for S/J−exhts were not attchd [291−1] (krpa) (Entered: 03/06/2000)
299 Corrected table of contents &Table of auths by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to plas motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 03/06/2000)
300 OBJECTIONS to plas' updtd expert rpts by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason (krpa) (Entered: 03/06/2000)
301 Suppl memo by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason to motion to compel dfts to permit entry upon land for inspection of Fairview Dev Ctr [270−1] (krpa) (Entered: 03/06/2000)
302 Suppl dec of Robert M Day by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason to motion to compel dfts to permit entry upon land for inspection of Fairview Dev Ctr [270−1] (krpa) (Entered: 03/06/2000)
304 NOTICE OF WITHDRAWAL by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S withdrawing pla's motion to compel prod of docs from the Department of Developmental Services [250−1] (cc: all counsel) (krpa) (Entered: 03/07/2000)
337 MEMO OF PA IN OPPOSITION by defendant San Diego Region Ctr to plf's motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (mrgo) (Entered: 03/13/2000)
338 STATEMENT OF GENUINE ISSUES by defendant San Diego Region Ctr in opp to plf's motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (mrgo) (Entered: 03/13/2000)
339 NOTICE OF ERRATA by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S correcting exh in declaration of Lozano re mot for S/J [294−1] (mrgo) (Entered: 03/13/2000)
363 MINUTES: (in chambs) based on the ntc of wd of pla's mtn to compel prod of docs by the DDS set for hrg on 3−2−00 is off cal [250−1] by Discovery Arthur Nakazato CR: none (krpa) (Entered: 03/16/2000)
303 STIPULATION and ORDER for dism by intvrs of these dfts w/o prej purs to FRCP 41a1 by Judge Gary L. Taylor dismissing party Harbor Regional Ctr, party Regional Ctr Orange, party San Diego Region Ctr, party South Central LA Ctr, party Westside Regional Ct (krpa) (Entered: 03/07/2000)
307 JOINDER by intervenors joining State dfts motion for summary adjudication [272−1] or, in the alt, to dismiss as to certain plas, &for S/Adjud of issues [272−2], as to certain plfs, &for summary adjudication [277−1] (jp) (Entered: 03/09/2000)
308 OPPOSITION by intervenors to motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (jp) (Entered: 03/09/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 33 of 54

03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/06/2000

309 STATEMENT OF GENUINE ISSUES by intervenor in opp to motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (jp) (Entered: 03/09/2000)
310 DECLARATION of ELLEN S. GOLDBLATT by intervenors in opp to motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (jp) (Entered: 03/09/2000)
311 REQUEST by intervenors for judicial notice in suppt of opp to motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (jp) (Entered: 03/09/2000)
312 DECLARATION of JAMES W. CONROY by intervenors in suppt of opp to motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (jp) (Entered: 03/09/2000)
313 MEMORANDUM OF POINTS &AUTH IN OPPOSITION by defendant to plaintiff motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (jp) (Entered: 03/09/2000)
314 MEMORANDUM OF POINTS &AUTH IN OPPOSITION by defendants to intervenors motion for summary adjudication [277−1] (jp) (Entered: 03/09/2000)
315 OPPOSITION by plaintiffs Association for Ret, Debbie Tisdale to motion for summary adjudication [272−1] (jp) (Entered: 03/09/2000)
316 OPPOSITION by plaintiffs Association for Ret, Debbie Tisdale to intervenor's motion for summary adjudication [277−1] (jp) (Entered: 03/09/2000)
317 OPPOSITION by plaintiffs Association for Ret, Debbie Tisdale to San Diego Reginoal Center's motion for summary judgment agst plas [264−1]; Memo of P/A's (jp) (Entered: 03/09/2000)
318 DECLARATION of CAROL TEZAK FASULO by plaintiffs Association for Ret, Debbie Tisdale in opposition to intervenor's motion for summary adjudication [277−1] (jp) (Entered: 03/09/2000)
319 DECLARATION of ROBERT L. CROSS by plaintiffs Association for Ret, Debbie Tisdale in opposition to intervenor's motion for summary adjudication [277−1] (jp) (Entered: 03/09/2000)
320 DECLARATION of FREDERICK HERZIG, MD by plaintiffs Association for Ret, Debbie Tisdale in opposition to intervenor's motion for summary adjudication [277−1] (jp) (Entered: 03/09/2000)
321 EVIDENTIARY OBJECTIONS by defendants to motion for summary judgment [282−1] (jp) (Entered: 03/09/2000)
322 DECLARATION of SUZANNE L. SALZWEDEL by defendants in suppt of State defendants oppositon to motion for summary judgment [264−1] (jp) (Entered: 03/09/2000)
323 REQUEST by plaintiffs Association for Ret, Debbie Tisdale for judicial notice of suppl decl of William Cable Md in suppt of plf's opposition to motion for summary judgment [282−1] (jp) (Entered: 03/09/2000)
324 DECLARATION of PATRICIA LYTLE by plaintiffs Association for Ret, Debbie Tisdale in suppt of plfs opposition to motion for summary judgment [282−1] (jp) (Entered: 03/09/2000)
325 STATEMENT OF GENUINE ISSUES by plaintiffs Association for Ret, Debbie Tisdale in opposition to intervenor's statement of uncontroverted facts re motion for summary adjudication [277−1] (jp) (Entered: 03/09/2000)
326 DECLARATION of MARGARET M. CAHILL by plaintiffs Association for Ret, Debbie Tisdale in suppt of plfs opposition to motion for summary judgment [282−1] by PAI Inc (jp) (Entered: 03/09/2000)
327 DECLARATION of FRANCIS X. HARDIMAN by plaintiffs Assoc for Ret, Debbie Tisdale in suppt of plfs opposition to motion for summary judgment

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 34 of 54

03/06/2000 03/06/2000 03/06/2000
03/06/2000 03/06/2000 03/06/2000 03/06/2000 03/07/2000
03/07/2000 03/08/2000 03/08/2000 03/10/2000 03/13/2000 03/13/2000 03/13/2000

[282−1] by PAI Inc (jp) (Entered: 03/09/2000)
328 STATEMENT OF GENUINE MATERIAL ISSUES by defendants in opp to plfs motion for summary judgment [282−1] (jp) (Entered: 03/09/2000)
329 REQUEST by plaintiffs Association for Ret, Debbie Tisdale for judicial notice of Declarations of William Cable MD in suppt of plf's opposition to motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (jp) (Entered: 03/09/2000)
330 DECLARATIONS of DAWN LEMONDS, WALTER KEALY, KAREN LARSON, MICHAEL MOUNT, JIMMY DONG, PETER RICHTER &ROBERTA MARLOWE by defendants in opposition to plfs motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (jp) (Entered: 03/09/2000)
331 DECLARATION of WILLIAM CABLE MD by plaintiffs Association for Ret, Debbie Tisdale in opposition to State dfts motion for summary adjudication [272−1] (jp) (Entered: 03/09/2000)
332 DECLARATION of HUGH KOHLER by State defendants in opp to plfs motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (jp) (Entered: 03/09/2000)
333 STATEMENT OF GENUINE ISSUES by plaintiffs Association for Ret, Debbie Tisdale in opposition to motion for summary judgment agst plas [264−1] (jp) (Entered: 03/09/2000)
334 STATEMENT OF GENUINE ISSUES by plaintiffs Association for Ret, Debbie Tisdale in opposition to motion for summary adjudication [272−1] by the State defendants (jp) (Entered: 03/09/2000)
305 EX PARTE APPLICATION filed by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv for protective order prohibiting depo of Jackie Lincer ; memo of PA; decl of Richard T Waldow; Lodged prop ord (mrgo) (Entered: 03/09/2000)
336 MINUTES (In Chambers): denying intervenors' motion to compel dfts to permit entry upon land for inspection of Fairview Dev Ctr [270−1] (see doc for specifics); by Discovery Arthur Nakazato CR: none (rmi) (Entered: 03/10/2000)
306 ORDER by Discovery Arthur Nakazato granting State dfts' exparte motion for protective order prohibiting depo of Jackie Lincer [305−1] because the dco dt was 1/30/00 (mrgo) (Entered: 03/09/2000)
335 MINUTES (In Chambers): ord that ptys shall appear for a sttlmt conf on 3/30/00 at 1:30 p.m. bef Magistratge Judge Arthur Nakazato (see doc for specifics); by Discovery Arthur Nakazato CR: none (rmi) (Entered: 03/10/2000)
340 NOTICE of lodging original depo's &exh's of Raymond M. Peterson, M.D. &Barry Lord pursuant to demand of SDRC by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S. Lodged 2 transc (ca) (Entered: 03/14/2000)
341 REPLY by defendant San Diego Region Ctr to opp to dft San Diego Reg Ctr's motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 03/14/2000)
342 DECLARATION of Ronald R House by defendant San Diego Region Ctr re motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 03/14/2000)
344 EX PARTE APPLICATION filed by defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Harry Kohler, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv for protective order prohibiting the depo of Mary Clarkson ; memo of PA; decl of Richard T Waldow &Suzanne L Salzwedel; Lodged prop ord (mrgo) (Entered: 03/15/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 35 of 54

03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000

345 MEMO OF PA IN OPPOSITION by defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Harry Kohler, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv to plfs' req for jud ntc of decls of William Cable &of suppl decl of William Cable in suppt of plf's opp to dfts' motion for summary adjudication [272−1] (mrgo) (Entered: 03/15/2000)
346 MEMO OF PA IN REPLY by defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Harry Kohler, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv to plfs' opp to dfts' motion summary adjudication [272−1] (mrgo) (Entered: 03/15/2000)
347 EVID OBJECTIONS by defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Harry Kohler, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv to the decl of William Cable subm by plfs' in opp to dfts' mot for sum adj [272−1] (mrgo) (Entered: 03/15/2000)
348 RESPONSE by defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Harry Kohler, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv to stmt of gen iss subm by plfs in opp to state dfts' motion for summary adjudication [272−1] (mrgo) (Entered: 03/15/2000)
349 DECLARATION of William Cable MD by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of plfs' rply to the opp by the State dfts to plfs' motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (mrgo) (Entered: 03/15/2000)
350 DECLARATION of Jocelyn Dougherty by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of rply on plf's motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (mrgo) (Entered: 03/15/2000)
351 DECLARATION of Margaret M Cahill by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of plfs' rply to dft San Diego Regional Ctr's opp to plfs' motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (mrgo) (Entered: 03/15/2000)
352 DECLARATION of Francis X Hardiman by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in rply to opp by state dfts' to plfs' motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (mrgo) (Entered: 03/15/2000)
353 DECLARATION of Kathleen Fanin by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of plfs' rply to state dfts' opp to plfs' motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (mrgo) (Entered: 03/15/2000)
354 REPLY by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to opp by Pai Inc to plf's motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr motion for summary adjudication [272−1]; &object to the joinder to State dfts' mot by Pai Inc (mrgo) (Entered: 03/15/2000)
355 REPLY by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to opp by San Diego Regional Center to plfs' motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (mrgo) (Entered: 03/15/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 36 of 54

03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000 03/14/2000
03/14/2000 03/14/2000 03/14/2000 03/15/2000
03/15/2000
03/15/2000 03/15/2000 03/16/2000

356 REPLY by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to State dfts' opp to plfs' motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (mrgo) (Entered: 03/15/2000)
357 DECLARATION of Carol Risley by intervenor in suppt of intvr's rply re intvr's motion for summary adjudication [277−1] (mrgo) (Entered: 03/15/2000)
358 DECLARATION of Chas Abate by intervenor in suppt of intvr's rply re intvr's motion for summary adjudication [277−1] (mrgo) (Entered: 03/15/2000)
359 DECLARATION of Ellen Goldblatt by intervenor in suppt of intvr's rply re intvr's motion for summary adjudication [277−1] (mrgo) (Entered: 03/15/2000)
360 REPLY by intervenor to State dfts' opp to intvr's motion for summary adjudication [277−1] (mrgo) (Entered: 03/15/2000)
361 REPLY by intervenor to plf's opp to intvr's motion for summary adjudication [277−1] (mrgo) (Entered: 03/15/2000)
362 EVID OBJECTIONS by intervenor to plf's opp to intvr's mot for sum adj [277−1] (mrgo) (Entered: 03/15/2000)
343 MINUTES: (in chambs) Ord granting dfts' exparte motion for protective order prohibiting depo of Jackie Lincer [305−1] pla's cnsl are ord to appear before crt in person in crtrm 6B to show cause why each of them should not be sanctioned in amt of $1,000.00 purs to crt's inherent powers for repeatedly &persistently attempting to conduct discov beyond the discov cut off dt expressly set by this crt ; IN COURT HEARING RE: to show cause set on 10:00 3/16/00 by Discovery Arthur Nakazato CR: none (krpa) (Entered: 03/15/2000)
PLACED IN FILE − NOT USED ord gr stat dfts' ex parte appl (krpa) (Entered: 03/15/2000)
364 NOTICE of ldg cert cpys of depos &exhts of Dennis G Amundson &Shelton Dent purs to dmd of Pai by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S; LDGD 3 DEPOS W/CRD (krpa) (Entered: 03/20/2000)
365 NOTICE of ldg orig depo transcript by defendant Dept of Devlp Serv; LDGD 1 ENVELOPE (krpa) (Entered: 03/20/2000)
366 SUPPL DECLARATION of Ellen S Goldblatt by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason in suppt of intv's motion for summary adjudication [272−1] (krpa) (Entered: 03/20/2000)
367 NOTICE of ldgmnt of orig depo trnascripts by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason; LDGD 5 DEPOS W/CRD (krpa) (Entered: 03/20/2000)
368 MEMORANDUM of P/A &DECL of Francis X Hardiman by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in resp to crt's osc re ex parte re depo [343−2] (krpa) (Entered: 03/20/2000)
369 DECLARATION of Margaret M Cahill by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in resp to the crt's iss of an ord to show cause re ex parte by DDS re depos [343−2] (krpa) (Entered: 03/20/2000)
370 MEMORANDUM by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant South Coast

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 37 of 54

03/16/2000
03/16/2000
03/16/2000 03/16/2000
03/16/2000
03/16/2000 03/17/2000 03/17/2000 03/17/2000 03/17/2000 03/17/2000 03/17/2000 03/17/2000 03/17/2000

Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv re OSC re sanctions agst plas' cnsl; dec of Suzanne L Salwedel minutes [343−2] (krpa) (Entered: 03/20/2000)
371 ORIGINAL SIGNATURE PAGE for decs submit by state dfts in opp to plas' motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv (krpa) (Entered: 03/20/2000)
372 ORIGINAL SIGNATURE PAGE for decs submit in suppt of state dfts' motion for summary adjudication [272−1] by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv (krpa) (Entered: 03/20/2000)
373 NOTICE OF ERRATA by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S on dec of Francis X Hardiman &exhts submit in plas; rply to state dfts opp to plas' mtn for S/Adjud of issues (krpa) (Entered: 03/20/2000)
374 PROP A/DECLARATION of Francis X Hardiman &attchd inadvert omitted, exhts numbered 10, 11 &pg 16 of Gonzales depo in rply to opp by state dfts by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to plas motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1] (krpa) (Entered: 03/20/2000)
375 NOTICE OF ERRATA &dec of Francis X Hardiman by intervenor Barbara Bell, defendant Hugh Kohler, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S on plas' rply to state dfts opp to plas' mtn for S/Adjud of iss; req to amd typographical &other mistakes (krpa) (Entered: 03/20/2000)
376 NOTICE OF ERRATA by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to rply to plas rply to opp to plas SJM by the DDS (krpa) (Entered: 03/20/2000)
377 NOTICE OF ERRATA by defendant San Diego Region Ctr in SD Reg Ctr's memo of P/A fld in opp to plas' mtn for S/J (krpa) (Entered: 03/20/2000)
378 MEMO OF CONTENTIONS OF FACT and LAW by defendant San Diego Region Ctr (krpa) (Entered: 03/20/2000)
379 TRIAL WITNESS list submitted by defendant San Diego Region Ctr (krpa) (Entered: 03/20/2000)
380 MEMO OF CONTENTIONS OF FACT and LAW by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv (krpa) (Entered: 03/21/2000)
381 WITNESS list for trl submitted by defendant Hugh Kohler, defendant Clifford Allenby, plaintiff Association for Ret, plaintiff Debbie Tisdale, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv (krpa) (Entered: 03/21/2000)
382 MEMO OF CONTENTIONS OF FACT and LAW by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S (krpa) (Entered: 03/21/2000)
383 WITNESS list submitted by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S (krpa) (Entered: 03/21/2000)
384 MEMO OF CONTENTIONS OF FACT and LAW by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 38 of 54

03/17/2000
03/17/2000 03/17/2000 03/20/2000 03/20/2000 03/20/2000 03/20/2000 03/20/2000 03/20/2000 03/20/2000 03/20/2000
03/20/2000
03/21/2000
03/21/2000 03/24/2000 03/24/2000 03/27/2000

Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason (krpa) (Entered: 03/21/2000)
385 WITNESS list submitted by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Phillip Wilson, intervenor Sheila Williams, intervenor Raymond Masao Kawaguchi, intervenor Melissa Tisdale, intervenor Barbara Bell, intervenor Mary Cason (krpa) (Entered: 03/21/2000)
387 JNT EXHIBIT list (krpa) (Entered: 03/21/2000)
388 MINUTES: Crt vacating the osc [343−2]; no sanctions shall be imposed by Discovery Arthur Nakazato CR: none (krpa) (Entered: 03/22/2000)
386 NOTICE OF DISCREPANCY AND ORDER to fi &process the jnt exht lst ldg on 3−7−00 by Judge Gary L. Taylor (cc: all counsel) (krpa) (Entered: 03/21/2000)
PLACED IN FILE − NOT USED prop stmt dfts stmt of uncont facts etc (krpa) (Entered: 03/21/2000)
PLACED IN FILE − NOT USED prop stmt of uncont facts etc (krpa) (Entered: 03/21/2000)
PLACED IN FILE − NOT USED prop ord gr intv's S/Adj clm (krpa) (Entered: 03/21/2000)
PLACED IN FILE − NOT USED prop sep stmt of uncont mat etc (krpa) (Entered: 03/21/2000)
PLACED IN FILE − NOT USED prop ord gr S/J etc (krpa) (Entered: 03/21/2000)
PLACED IN FILE − NOT USED prop jgm &iss of perm inj (krpa) (Entered: 03/21/2000)
389 MINUTES: Crt taking under submission the intvs' motion for summary adjudication [272−1], taking under submission the State dfts' motion to dismiss as to certain plas, &for S/Adjud of issues [272−2], taking under submission the plas' motion to compel dfts to permit entry upon land for inspection of Fairview Dev Ctr [270−1], taking under submission the dft State dfts' motion for summary judgment agst dfts Dept of Dev Svcs of the State of CA Fairview Dev Ctr, San Diego Reg Ctr [282−1], taking submission the dft SD Reg Ctr's motion for summary judgment agst plas [264−1] by Judge Gary L. Taylor CR: S Marshall (krpa) (Entered: 03/22/2000)
390 MOTION by Intervenors, Area IV Board, Autism Society of LA, Self−Advocacy Board, Donna Plouffe, Jeffrey Cason, Barbara Bell, Phillip Wilson, Sheila Williams, Raymond Masao Kawaguchi, Melissa Tisdale, Barbara Bell &Mary Cason for reconsideration of denial of intervenors' mot to compel dfts to permit ent upn land for inspection of fairview develop center (rmi) (Entered: 03/24/2000)
391 MINUTES (In Chambers): granting intervenors' motion for reconsideration of denial of intervenors' mot to compel dfts to permit ent upn land for inspection of fairview develop center [390−1]; however, denying intervenor's motion to compel dfts to permit entry upon land for inspection of Fairview Dev Ctr [270−1], (see doc for specifics); by Discovery Nakazato CR: none (rmi) (Entered: 03/24/2000)
392 NOTICE OF DISCREPANCY AND ORDER by Discovery Arthur Nakazato that mot for reconsideration is ord to be filed &processed (rmi) (Entered: 03/24/2000)
PLACED IN FILE − NOT USED prop jgm on state dfts' mtn for S/Adjud etc (krpa) (Entered: 03/29/2000)
PLACED IN FILE − NOT USED prop ord for gr dft SD reg mtn for S/J (krpa) (Entered: 03/29/2000)
393 ORDER by Judge Gary L. Taylor denying plas' motion for summary judgment [282−1]; &GRANT in part intvr's mtn for part S/J as to the 1st ADA cnt of the

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 39 of 54

03/30/2000
03/31/2000 04/14/2000 04/18/2000 04/21/2000 04/24/2000 04/24/2000 04/24/2000 04/28/2000
05/01/2000
05/04/2000 05/04/2000 05/08/2000 05/23/2000 05/23/2000
05/23/2000
05/23/2000

SAC &as to the 2nd clm for rel of the FACI &an approp inj will issue; &DENY in part intvr's motion as to all other prts [277−1]; &GRANT in part dfts' mtn for part S/J as to the 3rd &4th 1983 cnts of the SAC; &DENY as to the inj relief (krpa) (Entered: 03/28/2000)
394 MINUTES: settlement conference held &resuled in sttlmt agreement; cnsl shall have til 5/1/00 to finalize the sttlmt &file the appropriate dism of the actn w/the crt; (see doc for specifics); by Discovery Arthur Nakazato; CR: tape SA00−10 (rmi) (Entered: 04/03/2000)
395 STIPULATION and ORDER dism these ptys only by Judge Gary L. Taylor dismissing party Harbor Regional Ctr party Regional Ctr Orange party South Central LA Ctr party Westside Regional Ct (krpa) (Entered: 04/04/2000)
396 OBJECTIONS by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff Roes, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to intervenor's prop inj (mrgo) (Entered: 04/20/2000)
397 OBJECTIONS filed by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to intervenor's prop injunction−amended (mrgo) (Entered: 04/24/2000)
399 OBJECTIONS filed by plaintiff Association for Ret, plaintiff Debbie Tisdale to the intvr's prop jgm (krpa) (Entered: 04/25/2000)
398 PERMANENT INJUNCTION (see doc for specifics) by Judge Gary L. Taylor (cc: all counsel); (ENT−4−25−00) (krpa) (Entered: 04/25/2000)
PLACED IN FILE − NOT USED prop petm inj (krpa) (Entered: 04/27/2000)
PLACED IN FILE − NOT USED prop perm inj (krpa) (Entered: 04/27/2000)
401 JOINT STATEMENT of disputed language in proposed settlment agreement [proposed agreement w/disputed areas underlined, attached as exhibit 1] by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S (ca) (Entered: 05/03/2000)
400 MINUTES: Non−publication of crt ruling: crt has rcvr sev inquiries whether the crt's recent ruling will be submitted for publication; the ord was not written for publ &will not be submitted for publication by Judge Gary L. Taylor CR: none (krpa) (Entered: 05/02/2000)
402 RECEIPT OF TRANSCRIPT of proceedings for the following date(s): 3/30/00 (Re: ) CR: Briggs Reporting (pjap) (Entered: 05/09/2000)
TRANSCRIPT filed for proceedings held on 3/30/00 (pjap) (Entered: 05/09/2000)
PLACED IN FILE − NOT USED dism of pla (krpa) (Entered: 05/11/2000)
403 NOTICE OF MOTION AND MOTION by defendant Dept of Devlp Serv, intervenor Barbara Bell for order modifying perm inj ; motion hearing set for 9:00 6/19/00 (krpa) (Entered: 05/24/2000)
404 MEMORANDUM of P/A IN SUPPORT by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S of motion for order modifying perm inj [403−1] (krpa) (Entered: 05/24/2000)
405 DECLARATION of Bettie Gray by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for order modifying perm inj [403−1] (krpa) (Entered: 05/24/2000)
406 DECLARATION of Deby Tisdale by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for order modifying perm inj [403−1] (krpa) (Entered: 05/24/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 40 of 54

05/23/2000
05/23/2000
05/26/2000
06/01/2000 06/02/2000 06/02/2000 06/05/2000 06/05/2000
06/05/2000
06/06/2000 06/07/2000 06/08/2000 06/12/2000 06/12/2000
06/12/2000 06/13/2000 06/13/2000

407 DECLARATION of Francis X Hardiman by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S re motion for order modifying perm inj [403−1] (krpa) (Entered: 05/24/2000)
408 NOTICE OF APPEAL by plaintiff Debbie Tisdale, intervenor CA Assn State Hosp, intervenor Phillip Wilson, intervenor Melissa Tisdale to 9th C/A from Dist. Court ord fld 4/24/00, ent 4/25/00. [398−1] (cc: Francis X. Hardiman, Hardiman &Cahil; St Att Gen, Bill Lockyer, Dpty Atty Gen(s), Richard Waldrow, Tammy Chung Ryu; Ellen S. Goldblatt; Ron House ) Fee: Billed. (fvap) (Entered: 05/25/2000)
409 Corrected table of contents &auths on MEMORANDUM of P/A IN SUPPORT by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S of motion for order modifying perm inj [403−1] (krpa) (Entered: 05/31/2000)
410 NOTICE OF ERRATA by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S correcting (krpa) (Entered: 06/01/2000)
412 Desig of Record on appeal [408−1] (fvap) (Entered: 06/06/2000)
413 TRANSCRIPT DESIGNATION and ordering form for dates: 3/20/00 CR: S. Marshall (fvap) (Entered: 06/06/2000)
Appeal Fee Paid re [408−1] fee in amount of $ 105.00 () (pjap) (Entered: 06/05/2000)
411 Memo of P/A in resp by defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant Harry Kohler, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv to pla's motion for order modifying perm inj [403−1] (krpa) (Entered: 06/06/2000)
417 OPPOSITION by intervenor Area IV Board, intervenor Autism Society of LA, intervenor Self−Advocacy Board, intervenor Donna Plouffe, intervenor Jeffrey Cason, intervenor Barbara Bell, intervenor Barbara Bell, intervenor Danny Warren, intervenor Mary Cason to motion for order modifying perm inj [403−1] (ca) (Entered: 06/09/2000)
414 REPRESENTATION STATEMENT re appeal [408−1] (wdc) (Entered: 06/06/2000)
415 Tables of contents &authorities in suppt of Intervenor's oppos to pltfs motn for ord modifying permanent injunction by Intervenors (ca) (Entered: 06/08/2000)
416 NOTICE OF DISCREPANCY AND ORDER by Judge Gary L. Taylor tht the intervenors' opposition is to be filed &processed (cc: all counsel) (ca) (Entered: 06/09/2000)
421 REPLY by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to state dfts opp to pla's motion for order modifying perm inj [403−1] (krpa) (Entered: 06/14/2000)
422 Dec of F Hardiman fld in rply by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to motion for order modifying perm inj [403−1] (krpa) (Entered: 06/14/2000)
423 Rply to intv opp by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to motion for order modifying perm inj [403−1] (krpa) (Entered: 06/14/2000)
418 NOTIFICATION by Circuit Court of Appellate Docket Number appeal [408−1] 00−55917 (pjap) (Entered: 06/13/2000)
419 STATE DFTS' NOTICE OF RPTR'S Transc Desgntn &Req for Stmt of Issues re appeal [408−1] (pjap) (Entered: 06/14/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 41 of 54

06/13/2000
06/15/2000 06/15/2000 06/15/2000 06/15/2000 06/27/2000 06/27/2000 07/03/2000 07/14/2000 07/20/2000
07/24/2000 08/03/2000
08/08/2000
08/22/2000 08/29/2000 09/29/2000
10/16/2000

420 MINUTES: (in chambs) Crt ords status conf concern pty's dispute concern certain terms for stlmnt agrmn ; mandatory status conference set on 10:00 6/15/00 ; cnsl for pla (speciof M Cahill &F Hardiman at the very least) &State dfts must appear in person; cnsl for intervenors may appear in person or by telephone; by Discovery Arthur Nakazato CR: none (krpa) (Entered: 06/14/2000)
424 MINUTES (In Chambers): denying plf's motion for order modifying perm inj [403−1], the 6/19/00 hrg on this mot is taken off cal; (see doc for specifics); by Judge Gary L. Taylor CR: none present (rmi) (Entered: 06/16/2000)
425 MINUTES: status conference held re finalization of sttlmnt agreement by Discovery Arthur Nakazato (see doc for specifics) CR: Tape #SA00−18 (kh) (Entered: 06/19/2000)
PLACED IN FILE − NOT USED prop ord on req for hrg ruling on pla';s mtn to mod (krpa) (Entered: 06/20/2000)
PLACED IN FILE − NOT USED prop ord (krpa) (Entered: 06/20/2000)
426 RECEIPT for reporter's transcript hrg held on 3/20/00 (ca) (Entered: 07/06/2000)
REPORTER'S TRANSCRIPT filed for proceedings held on 3/20/00 (ca) (Entered: 07/06/2000)
428 9th CCA Order:Sttlmnt assessment conf will be held by telephone on 7/27/2000, at 10:30 a.m. Pacific (San Francisco) Time. Brief sched prev set by crt remains in effect. CA #00−55917 (dlu) (Entered: 07/17/2000)
427 CERTIFICATE of Record Transmitted to USCA−00−55917 (cc: all parties) (wdc) (Entered: 07/14/2000)
429 NOTICE OF MOTION AND MOTION by defendant Hugh Kohler, defendant Clifford Allenby, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv for order dissolving amended preliminary injunction , and exonerating bond ; motion hearing set for 10:00 a.m., on 8/14/00 (ca) (Entered: 07/24/2000)
430 9th cca ord purs to the req of cnsl, the assessment conf previously sched for 7/27/00, is cont to 9/7/00,at 2:30 p.m. Pacific Time. (00−55917) (ghap) (Entered: 08/03/2000)
432 STATEMENT of non−opp by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to dft's motion for order dissolving amended preliminary injunction [429−1], &dft's motion exonerating bond [429−2] (mt) (Entered: 08/14/2000)
431 ORDER by Judge Gary L. Taylor granting State dfts' motion for order dissolving amended preliminary injunction [429−1], granting State dfts' motion exonerating bond [429−2]; the amd prelim inj which was issd in this cs on or about 7/25/97 hereby is dissolved &the bond which was posted by the plfs on or about 7/25/97 in supt of the amd prelim inj be exonerated; the 8/14/00 hrg is taken off cal; (ENT 8/9/00) Ntc of ent sent to ptys/cnsl (mrgo) (Entered: 08/09/2000)
434 ORDER FROM USCA: Dept of Dev Svcs' unopposed motn to amd crt's caption &docket gr. Clerk shll revise crt's records to comport w/ Ms. Ryu's July 14, 2000 letter (00−55917) (wdc) (Entered: 09/20/2000)
433 SETTLEMENT AGREEMENT fld by State dfts (mrgo) (Entered: 09/05/2000)
435 MINUTES: OSC RE: DISM − Ptys shall show cause in writing NLT 10/23/00 why this case should not be dism for failure to file appropriate dism doc. Crt will consider the filing of (1) dism doc or (2) stip &prop ord ext time for filing of dism doc as appropriate resp to this OSC by Judge Gary L. Taylor CR: none present (kh) (Entered: 10/02/2000)
436 STIPULATION and ORDER by Judge Gary L. Taylor extending time for filing dism until 11/11/00 (am) (Entered: 10/18/2000)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 42 of 54

11/13/2000
11/13/2000 11/13/2000 11/21/2000 11/27/2000 11/27/2000 11/27/2000 11/30/2000
11/30/2000 12/04/2000 12/04/2000 12/04/2000 12/07/2000
01/12/2001 01/18/2001
01/18/2001

437 NOTICE OF MOTION AND MOTION by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S for determ of dism stip language ; motion hearing set for 10:00 12/11/00 (rmi) (Entered: 11/15/2000)
438 DECLARATION of plfs' cnsl by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of stipulated dismissal (rmi) (Entered: 11/15/2000)
439 STIPULATION of voluntary dism of intervenors' clms filed by Intervenors Barbara Bell, et al. (rmi) (Entered: 11/15/2000)
LODGED CC 9thcca Ord: The app is dism without prjudice. (00−55917) (FWD TO CRD) (weap) (wdc) Modified on 11/22/2000 (Entered: 11/22/2000)
443 DECLARATION of Ellen S Goldblatt by intervenors in suppt of Intervenors' opp to plfs' motion for determ of dism stip language [437−1] (mt) (Entered: 12/09/2000)
444 OPPOSITION by intervenors to plfs' motion for determ of dism stip language [437−1] (mt) (Entered: 12/09/2000)
445 MEMO OF PAIN OPPOSITION by state defendants to plfs' motion for determ of dism stip language [437−1]; decl of Tammy Chung Ryu (mt) (Entered: 12/09/2000)
440 MINUTES: (Filing &Spreading Mandate of the 9th CCA − IN CHAMBERS): THE COURT ORDERS that the Ord of the 9th CCA: Dismissing Appeal w/o prej subject to reinstatement is hereby fld &spread upon the mins of this USDC; by Judge Gary L. Taylor; CR: Not present (ad) (Entered: 12/01/2000)
441 CERTIFIED COPY of judgment from USCA dismissing the appeal [408−1] (cc: all counsel) (ad) (Entered: 12/01/2000)
446 REPLY by plaintiff to sState Defendants points and authorities and opposition to plaintiffs motion for determ of dism stip language [437−1] (csb) (Entered: 12/13/2000)
447 DECLARATION of Margaret M Cahill by plaintiff re: motion for determ of dism stip language [437−1] (csb) (Entered: 12/13/2000)
448 DECLARATION of Francisx X Hardeman by plaintiff re: motion for determ of dism stip language [437−1] (csb) (Entered: 12/13/2000)
442 MINUTES: (In Chambers): The crt declines to rule on plf's motion for determ of dism stip language [437−1]; the lang of the ptys dism ord is a mtr of their own sttltmt negotiations. Crt will not impose terms of sttlmnt on ptys w/o consent of all ptys; the hrg for this mtr is taken off calendar by Judge Gary L. Taylor CR: none present (kh) (Entered: 12/08/2000)
449 NOTICE OF CHANGE Of Address filed by atty Margaret M Cahill for plaintiff Richard S (mt) (Entered: 01/16/2001)
450 AMENDED PERMANENT INJUNCTION by Judge Gary L. Taylor that State Dfts, Department of Developmental Services of the State of California, Fairview Developmental Center, South Coast Regional Project, Clifford Allenby, as Director of DDS, Hugh Kohler, as Executive Director of FDC, Lilia Tan Fiegueroa, M.D., as Medical Director of FDC, and Dawn Lemonds, as Director of SCRP, their officials, employees &agents, as well as successors, are perm enj frm (see doc for specifics) (ENT 1/22/01) (mt) Modified on 01/22/2001 (Entered: 01/22/2001)
451 JUDGMENT AND ORDER: by Judge Gary L. Taylor that the ord on motns for S/J, ent on 3/28/00, &the perm inj issd purs thereto, ent on 4/25/00, shall become final, shall remain in full force &effect, &shall be incorporated in this jgm. Plfss &intvs' remaining claims−which were not resolved by this crt in its ord on motns for S/J−are as follows: Counts 2−6 pertaining to the Americans w/Disabilities Act, &counts 1 &2 pertaining to 42:1983 of plfs' 2nd A/C; &the 1st, 3rd &4th claims for relief of intv's 1st A/C in Intervention. The ptys have settled these remaining claims &a sttlmt agreement was fld w/the crt on 8/29/00. Unless otherwise agreed

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 43 of 54

01/18/2001 01/24/2001 02/05/2001
02/05/2001
02/05/2001 02/05/2001 02/05/2001 02/05/2001 02/05/2001 02/05/2001 02/06/2001 02/06/2001 02/06/2001 02/12/2001 02/12/2001 02/14/2001
02/14/2001 02/16/2001
02/16/2001

to by the ptys &approved by the crt, the ptys' time for flg &srvg their respective motns for attys' fees &costs shall be deemed to commence frm the date this jgm is ent &shall be calculated in accordance w/applicable statutes &federal &LR. terminating case (MD JS−6) (ENT 1/22/01) (mt) (Entered: 01/22/2001)
452 STIPULATION and ORDER by Judge Gary L. Taylor for modificaitn of perm inj (see doc for specifics) (kh) (Entered: 01/25/2001)
453 STIPULATION and ORDER by Judge Gary L. Taylor for dismissal (see doc for specifics) (ENT 1/26/01) (NTC SENT) (kh) (Entered: 01/26/2001)
454 NOTICE OF MOTION AND MOTION by plaintiffs for determ of prevailing party , for attorney fees, for costs, &reimbursement of expenses ; motion hearing set for 10:00 3/5/01 (mt) Modified on 02/06/2001 (Entered: 02/06/2001)
455 MOTION by plaintiffs for determ of prevailing party , for attorney fees, &appl for reimbursement of costs &expenses ; memo of PAin suppt thereof; motion hearing set for 10:00 3/5/01 (mt) (Entered: 02/06/2001)
456 DECLARATION of Michael Dawson &appended time records by plaintiffs in suppt of motion for attorney fees [455−2] (mt) (Entered: 02/06/2001)
457 DECLARATION of Gregory Hafif and appended time records by plaintiffs in suppt of motion for attorney fees [455−2] (mt) (Entered: 02/06/2001)
458 DECLARATION of Herbert Hafif and appended time records by plaintiff in suppt of motion for attorney fees [455−2] (mt) (Entered: 02/06/2001)
459 DECLARATION of Patricia Lytle and appended time records by plaintiffs in suppt of motion for attorney fees [455−2] (mt) (Entered: 02/06/2001)
460 DECLARATION of Margaret M Cahill and appended time records by plaintiffs in suppt of motion for attorney fees [455−2] (mt) (Entered: 02/06/2001)
461 DECLARATION of Francis X Hardiman and appended time records by plaintiffs in suppt of motion for attorney fees [455−2] (mt) (Entered: 02/06/2001)
462 NOTICE OF AND APPLICATION TO TAX COSTS submitted by plaintiffs re [451−2] bill of cost hearing set on 11:00 2/23/01 (mt) (Entered: 02/13/2001)
463 DECLARATION of Margaret M Cahill &appended records by plaintiffs in suppt of application for costs [462−1] (mt) (Entered: 02/13/2001)
464 DECLARATION of Patricia M Lytle by plaintiff Richard S in suppt of bill of costs [462−1] (mt) (Entered: 02/13/2001)
465 MAIL Returned [451−2] addressed to Monica Galvan Villafana (rmi) (Entered: 02/20/2001)
466 MAIL Returned [450−1] addressed to Monica Galvan Villafana (rmi) (Entered: 02/20/2001)
467 EX PARTE APPLICATION filed by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv for ord cont hrg on plf's mot for determ of prevail pty &for attys' fees ; memo of PA; decl of Richard T. Waldow w/exh (rmi) (Entered: 02/21/2001)
468 MAIL Returned [453−1] addressed to Monica Galvan Villafana (rmi) (Entered: 02/21/2001)
469 DECLARATION of Margaret M Cahill Esq. by plaintiff Association for Ret, plaintiff Debbie Tisdale in opp to exparte motion for ord cont hrg on plf's mot for determ of prevail pty &for attys' fees [467−1] (kh) (Entered: 02/22/2001)
470 ORDER by Judge Gary L. Taylor granting exparte motion for ord cont hrg on plf's mot for determ of prevail pty &for attys' fees [467−1], cont hearing on motion for determ of prevailing party [455−1] 10:00 3/26/01, cont hearing on motion for attorney fees, &appl for reimbursement of costs &expenses [455−2] 10:00 3/26/01, cont hearing on motion for determ of prevailing party [454−1] 10:00 3/26/01, cont

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 44 of 54

03/12/2001 03/12/2001 03/12/2001 03/12/2001 03/12/2001 03/12/2001 03/13/2001
03/15/2001 03/15/2001 03/15/2001 03/15/2001 03/16/2001 03/16/2001 03/16/2001 03/19/2001

hearing on motion for attorney fees, for costs, &reimbursement of expenses [454−2] 10:00 3/26/01; dfts' papers in opp to said mot are due on or before 3/12/01 (kh) (Entered: 02/22/2001)
471 DECLARATION of Kay Haralson by defendant Fairview Develop Ctr, defendant Dept of Devlp Serv in opp to plfs' exparte motion for ord cont hrg on plf's mot for determ of prevail pty &for fees [467−1] (rmi) (Entered: 03/15/2001)
472 MEMO OF PA IN OPPOSITION by defendant Fairview Develop Ctr, defendant Dept of Devlp Serv to exparte motion for ord cont hrg on plf's mot for determ of prevail pty &for attys' fees [467−1] (rmi) (Entered: 03/15/2001)
473 Evidentiary Ojbections by defendant Fairview Develop Ctr, defendant Dept of Devlp Serv to plfs' exparte motion for ord cont hrg on plf's mot for determ of prevail pty &for attys' fees [467−1] (rmi) (Entered: 03/15/2001)
474 DECLARATION of Hugh Kohler by defendant Fairview Develop Ctr, defendant Dept of Devlp Serv in opp to plfs' exparte motion for ord cont hrg on plf's mot for determ of prevail pty &for attys' fees [467−1] (rmi) (Entered: 03/15/2001)
475 DECLARATION of Mary Lee Pennington by defendant Fairview Develop Ctr, defendant Dept of Devlp Serv in opp to plfs' exparte motion for ord cont hrg on plf's mot for determ of prevail pty &for attys' fees [467−1] (rmi) (Entered: 03/15/2001)
476 DECLARATION of Gary Greenfield by defendant Fairview Develop Ctr, defendant Dept of Devlp Serv in opp to plfs' exparte motion for ord cont hrg on plf's mot for determ of prevail pty &for attys' fees [467−1] (rmi) (Entered: 03/15/2001)
477 EX PARTE APPLICATION filed by defendant Hugh Kohler, defendant Clifford Allenby, defendant Dawn Lemonds, defendant Lilia Tan Figueroa, defendant South Coast Regional, defendant Fairview Develop Ctr, defendant Dept of Devlp Serv for order permitting 34−pg memo of PA in opp to plfs' mot for determ of prevail pty &for attys' fees ; memo of PA; decl of Richard Waldow; Lodged ord (rmi) (Entered: 03/15/2001)
478 EX PARTE APPLICATION filed by plaintiff Richard S to continue hrg date on Mot for determination of prevailing pty &for Attys' fees to 4/9/01 or 4/16/01 at the same time &place ; Lodged Ord; Decls in suppt (ad) (Entered: 03/19/2001)
479 DECLARATION of Margaret M Cahill by plaintiff Richard S in suppt of exparte appl to continue hrg date on Mot for determination of prevailing pty &for Attys' fees to 4/9/01 or 4/16/01 at the same time &place [478−1] (ad) (Entered: 03/19/2001)
480 MEMORANDUM OF P/A IN OPPOSITION by defendants to exparte appl to continue hrg date on Mot for determination of prevailing pty &for Attys' fees to 4/9/01 or 4/16/01 at the same time &place [478−1] (ad) (Entered: 03/19/2001)
482 ORDER by Judge Gary L. Taylor granting exparte motion for order permitting 34−pg memo of PA in opp to plfs' mot for determ of prevail pty &for attys' fees [477−1] (kh) (Entered: 03/22/2001)
481 MINUTES: (In Chambers): Plf's exparte appl to continue hrg date on Mot for determination of prevailing pty &for Attys' fees to 4/9/01 or 4/16/01 at the same time &place [478−1] is DENIED; by Judge Gary L. Taylor; CR: None Present (ad) (Entered: 03/19/2001)
484 DECLARATION of Francis X Hardiman by plaintiffs in suppt of plfs' exparte appl for ext of time to file rply to State dfts memo of PAfor determ of prevailing pty &for Attys' fees [478−1] (mt) (Entered: 03/23/2001)
PLACED IN FILE − NOT USED Ord gr plfs' ex parte appl for ord cont hrg on motn for determ of prevailing pty &for attys' fees (mt) (Entered: 03/23/2001)
483 OBJECTION filed by plaintiff Richard S to declaration of Greenfield [476−1] (mt) (Entered: 03/22/2001)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 45 of 54

03/19/2001 03/19/2001 03/19/2001 03/19/2001 03/21/2001 03/26/2001
03/26/2001 03/28/2001
03/28/2001 04/06/2001 04/06/2001 04/06/2001 04/07/2001 04/09/2001
04/16/2001 04/16/2001

485 REPLY by plaintiff Richard S to state dfts' memo of PAin opp to plfs' appl for attorney fees, &reimbursement of expenses [455−2]; filed conc w/decls of Tisdale, Lytle, &Cahill (mt) (Entered: 03/23/2001)
486 DECLARATION of Margaret M Cahill by plaintiffsin suppt of resp to opp to plfs motn for determ of prevailing party [455−1] &attorney fees [455−2] (mt) (Entered: 03/23/2001)
487 DECLARATION of Patricia M Lytle by plaintiff Richard S in rply to opp to motion for determ of prevailing party [455−1] &motion for attorneys' fees [455−2] (mt) (Entered: 03/23/2001)
488 JOINDER by defendant San Diego Region Ctr joining w/state dts' opp to plfs' motion for determ of prevailing party [455−1], motion for attorney fees, &appl for reimbursement of costs &expenses [455−2] (rmi) (Entered: 03/24/2001)
489 NOTICE OF DISCREPANCY AND ORDER by Judge Gary L. Taylor that joinder of opp is ord to be filed &processed; (proof of service to be filed w/in 5 days) (rmi) (Entered: 03/24/2001)
491 OBJECTIONS TO EVIDENCE by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr, defendant South Coast Regional subm by plfs in suppt of plfs' reply memo re motion for determ of prevailing party [455−1], motion for attorney fees, &appl for reimbursement of costs &expenses [455−2] (kh) (Entered: 04/02/2001)
492 MINUTES: Hearing on motion for attorney fees, &appl for reimbursement of costs &expenses [455−2], [454−2]: cnsl are present &the crt &cnsl discuss the written tentative ord, a copy of which is attached; crt takes the mtr under subm by Judge Gary L. Taylor CR: Sally Marshall (kh) (Entered: 04/02/2001)
490 ORDER by Judge Gary L. Taylor on motion for determ of prevailing party [455−1], [454−1]; crt determines that plf may be considered a prevailing pty; crt will receive final briefing from the ptys on the amt of fees to be awarded; plf's opening brief is due 4/23/01; dft's opp brief is due 5/7/01; plf's reply brief is due 5/21/01; svc on opp cnsl shall be by fax or personal delivery; after is briefing is completed, the crt will take the mtr under subm &advise the ptys if fur hrg is necessary (kh) (Entered: 03/29/2001)
493 MAIL Returned civil minute ord dtd 3/16/01 [481−1] addressed to Monica Galvan Villafana (rmi) (Entered: 04/03/2001)
515 EX PARTE APPLICATION filed by defendant for order continuing hrg on plas application to tax costs; memorandum of pts and authorities; declaration of Richard T Waldow Lodged proposed order (csb) (Entered: 07/13/2001)
516 DECLARATION of Margaret M Cahill by plaintiff in opp to dfts exparte motion for order continuing hrg on plas application to tax costs; [515−1] (csb) (Entered: 07/13/2001)
517 BILL OF COSTS RETURNABLE submitted by plaintiff re [451−2] ; bill of cost hearing set on 10:00 4/20/01 (csb) (Entered: 07/13/2001)
507 SUPPL DECLARATION of Gary Greenfield &exhibits by Dept of Devlp Serv, Fairview Develop Ctr, South Coast Regional, Clifford Allenby, Hugh Kohler, Lilia Tan Figueroa, Dawn Lemonds in opp to plfs' suppl brief for allocaiton of attys' fees [496−1] (kh) (Entered: 05/14/2001)
494 ORDER by Judge Gary L. Taylor gr state dfts' exparte appl for ord cont hrg on plfs' mot for determ of prevail pty &for attys' fees; (exparte appl not on docket); ord that the hrg on plfs' appl to tax costs is cont, frm 4/20/01 at 10:00 a.m. to 7/20/01 &that purs to L.R. 16.5, the state dfts' papers in opp to said mot are due on or bef 7/13/01; (see doc for specifics) (rmi) (Entered: 04/10/2001)
TRANSCRIPT filed for proceedings held on 3/26/01 (kh) (Entered: 04/21/2001)
495 RECEIPT OF TRANSCRIPT of proceedings for the following date(s): 3/26/01 CR: Sally Marshall (kh) (Entered: 04/21/2001)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 46 of 54

04/23/2001 04/23/2001 04/23/2001 04/23/2001 04/23/2001 04/23/2001 04/26/2001 05/07/2001
05/07/2001
05/07/2001
05/07/2001
05/21/2001 05/21/2001
05/21/2001
06/01/2001
06/04/2001

496 SUPPL BRIEF FILED by plaintiff Richard S for allocation of atty fees (rmi) (Entered: 04/27/2001)
497 DECLARATION of Patricia M. Lytle by plaintiff Richard S in suppt of suppl br re req for reasonable attys' fees &resp to comments of atty Gary Greenfield (rmi) (Entered: 04/27/2001)
498 DECLARATION of William Cable, M.D. by plaintiff Richard S in suppt of plfs' motion for attorney fees [455−2] (rmi) (Entered: 04/27/2001)
499 DECLARATION of Margaret A. Cahill, Esq. by plaintiff Richard S in suppt of plf's mot for attys' fees [455−2] (rmi) (Entered: 04/27/2001)
500 DECLARATION of Cynthia Schaffer by plaintiff Richard S in suppt of plfs' mot for determ of prevail pty &attys' fees [455−2] (rmi) (Entered: 04/27/2001)
501 DECLARATION of Ronald Talmo by plaintiff Richard S in suppt of plfs' mot for attys' fees [455−2] (rmi) (Entered: 04/27/2001)
502 SUPPL PROOF OF SERVICE list by plaintiff Richard S on 4/23/01 of suppl br for allocation of atty fees, etc. (see doc for specifics) (rmi) (Entered: 05/01/2001)
503 SUPPL MEMORANDUM filed by defendants Dept of Devlp Serv, Fairview Develop Ctr, South Coast Regional, Clifford Allenby, Hugh Kohler, Lilia Tan Figueroa, Dawn Lemonds in opposition to plfs' suppl brief [496−1] (kh) (Entered: 05/14/2001)
504 OBJECTIONS filed by defendants Dept of Devlp Serv, Fairview Develop Ctr, South Coast Regional, Clifford Allenby, Hugh Kohler, Lilia Tan Figueroa, Dawn Lemonds to evid subm by plfs in suppt of plfs' suppl brief for allocation of attys' fees [496−1] (kh) (Entered: 05/14/2001)
505 DECLARATION of Hugh Kohler &exhibits by defendants Dept of Devlp Serv, Fairview Develop Ctr, South Coast Regional, Clifford Allenby, Hugh Kohler, Lilia Tan Figueroa, Dawn Lemonds in opp to plfs' suppl brief for allocation of attys' fees [496−1] (kh) (Entered: 05/14/2001)
506 DECLARATION of Carol Risley &exhibits by defendants Dept of Devlp Serv, Fairview Develop Ctr, South Coast Regional, Clifford Allenby, Hugh Kohler, Lilia Tan Figueroa, Dawn Lemonds in opp to plfs' suppl brief for allocation of attys' fees [496−1] (kh) (Entered: 05/14/2001)
508 REPLY by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S to opp to plf's suppl br re attys' fees (rmi) (Entered: 05/29/2001)
509 DECLARATION of Franics X. Hardiman by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of rply to dfts' opp to plf's suppl br re attys' fees (rmi) (Entered: 05/29/2001)
510 SUPPLEMENTAL DECLARATION of Margaret M. Cahill, Esq. by plaintiff Association for Ret, plaintiff Debbie Tisdale, plaintiff William Cable, plaintiff Valdina R, plaintiff Cynthia R, plaintiff Richard S in suppt of suppl br re extent of prevail pty stat &req for reasonable atty fees &resp to comments of greenfield, Esq (rmi) (Entered: 05/29/2001)
511 OBJECTIONS filed by defendant Dept of Devlp Serv, defendant Fairview Develop Ctr, defendant South Coast Regional, defendant Clifford Allenby, defendant Hugh Kohler, defendant Lilia Tan Figueroa, defendant Dawn Lemonds to the new evid (suppl decls of Francis X. Hardiman &Margaret Cahill) subm by plfs w/their rply to sate dfts' opp to pfls' suppl br re attys' fees (rmi) (Entered: 06/08/2001)
512 EX PARTE APPLICATION filed by defendants Dept of Devlp Serv, Fairview Develop Ctr, South Coast Regional, Harry Kohler, Lilia Tan Figueroa, Dawn Lemonds for reconsideration of ord on determination of prevailing pty ; memo of P/A; decl of Richard T Waldow; Lodged Order (kh) (Entered: 06/11/2001)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 47 of 54

06/04/2001 06/25/2001
07/24/2001
07/24/2001 07/27/2001 07/30/2001 08/20/2001 08/22/2001 11/01/2001 04/09/2002 04/09/2002 04/21/2003 04/28/2003 05/02/2003 05/07/2003 05/28/2003
05/28/2003 05/29/2003
06/02/2003

513 REPLY IN OPP by plaintiffs to dfts' exparte motion for reconsideration of ord on determination of prevailing pty [512−1] (kh) (Entered: 06/11/2001)
514 ORDER by Judge Gary L. Taylor granting dfts' exparte motion for reconsideration of ord on determination of prevailing pty [512−1] and this crt's 3/28/01 is ordered vacated [490−1]; denying plfs' motion for determ prevailing party [455−1], denying motion for attorney fees, &appl for reimbursement of costs &expenses [455−2]; (see doc for specifics) (rmi) (Entered: 06/26/2001)
518 NOTICE OF APPEAL by intervenor Melissa Tisdale, intervenor CA Assn State Hosp to 9th C/A from Dist. Court ord fld 06/25/01 [514−1]. (cc: Francis X. Hardiman, Margaret M. Cahill, Hardiman &Cahill; Herbert Hafif, Patricia M. Lytle; Bill Lockyer, Tammy C. Ryu, Richard T. Waldow, St/Atty Gen; Ron House) Fee: Billed. (cbr) (Entered: 07/26/2001)
519 REPRESENTATION STATEMENT re appeal. [518−1] (cbr) (Entered: 07/26/2001)
Appeal Fee Paid re [518−1] fee in amount of $ 105.00 (cbr) (Entered: 07/27/2001)
520 Notice Re Desig of Transcripts &Statement of Issues on appeal [518−1] (fvap) (Entered: 08/01/2001)
521 NOTIFICATION by Circuit Court of Appellate Docket Number appeal [518−1] 01−56370. (ghap) (Entered: 08/20/2001)
522 TRANSCRIPT DESIGNATION and ordering form for dates: 3/26/01 re transcript [495−1] CR: Sally Marshall. (ghap) (Entered: 08/24/2001)
523 CERTIFICATE of Record Transmitted to USCA (cc: all parties) (weap) (Entered: 11/01/2001)
524 RECEIPT OF TRANSCRIPT of proceedings for the following date(s): 3/17/00 (Re: [518−1]) CR: Lutz &Company. (ghap) (Entered: 04/10/2002)
TRANSCRIPT filed for proceedings held on 3/17/00. (ghap) (Entered: 04/10/2002)
526 ORDER FROM USCA: Petition for rehearing is denied and suggestion for rehearing en banc is rejected. (01−56370) (cbr) (Entered: 05/14/2003)
REMARK − Lodged CC 9th CCA Judgment, judgment of District Court is affirmed in part, reversed in part and remanded. (01−56370) (pjap) (Entered: 05/01/2003)
FINANCIAL ENTRY Disb $1,500 to Margaret Cahill per order dated 8/8/00 (mt) (Entered: 05/07/2003)
525 NOTICE of hearing on filing and spreading judgment of Court of Appeals set on 5/28/03 at 2:00pm (mt) (Entered: 05/08/2003)
527 MINUTES of filing and spreading mandate (In Court) held by Judge Gary L. Taylor: Court orders that the mandate of the Ninth Circuit of appeals: Reversing in part and remanding appeal is hereby filed and spread upon the minutes of this US District Court. The Court will issue a minute order re: the brief schedule on the attorneys' fees motion at a later date. CR: Kathy Haaland (mt) (Entered: 05/29/2003)
528 CERTIFIED COPY of judgment from USCA reversing in part and remanding decision of the District Court [Appeal [518−1] (mt) (Entered: 05/29/2003)
529 MINUTES (in chambers): Court is satisfied it has jurisdiction to set matter for further proceedings; Court hereby sets following dates for additional briefing on attorneys fee issue: 06/23/03 Plaintiff's opening brief; 07/21/03 defendant's opposition brief; 08/04/03 plaintiff's reply brief; Court will hold IN COURT HEARING RE: attorneys fee issue set on 10:00 8/18/03 by Judge Gary L. Taylor CR: none present (see document for details) (ln) (Entered: 05/30/2003)
530 NOTICE of bill of costs hearing and copy of application by plaintiffs to tax costs filed on 2/6/01 with declarations of Margaret M Cahill and Patricia M Lytle filed 2/6/01 in support of cost bill by plaintiff Richard S, et al (mt) (Entered:

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 48 of 54

06/13/2003 06/17/2003
06/18/2003 06/19/2003 06/19/2003
06/23/2003
06/23/2003 06/23/2003 06/23/2003 06/23/2003 07/17/2003 07/25/2003 07/29/2003
08/08/2003 08/13/2003 08/15/2003

06/05/2003)
531 OBJECTIONS filed by State Defendants to plaintiffs' bill of costs and opposition to plaintiffs' application to tax costs [530−1]; declaration of Richard T Waldow in support thereof (mt) (Entered: 06/16/2003)
532 EX PARTE APPLICATION filed by plaintiffs for order to exceed page length on supplement to application for attorneys' fees and costs and memorandum and declaration in support thereof and Lodged proposed order (mt) (Entered: 06/21/2003)
533 RESPONSE by State defendants to plaintiffs' ex parte application for order to exceed page length on supplement to application for attorneys' fees and costs [532−1] (mt) (Entered: 06/21/2003)
534 SUPPLEMENTAL DECLARATION of Patricia M Lytle by plaintiff Richard S in support of cost bill [530−1] (mt) (Entered: 06/21/2003)
535 MINUTES (In Chambers) by Judge Gary L. Taylor: Order denying plaintiffs' ex parte application for order to exceed page length [532−1] and modifying briefing schedule. Plaintiffs must file and serve opening brief by 6/23/03. Defendants must file and serve opposition brief by 8/4/03. Plaintiffs must file and serve reply brief by 8/18/03. The 8/18/03 hearing on the attorney's fees issue is CONTINUED to 10:00am on 9/8/03. CR: None Present (mt) (Entered: 06/23/2003)
536 SUPPLEMENTAL BRIEF AND AMENDED APPLICATION filed by plaintiffs Richard S, et al for attorney fees, costs, and expenses, after remand from the Ninth Circuit Court of Appeals ; memorandum of points and authorities and declarations in support thereof (mt) (Entered: 06/24/2003)
537 DECLARATION of Patricia M Lytle by plaintiff Richard S, et al in support of supplemental brief re plaintiffs' motion for attorney fees and supplemental records pursuant to Clerk's taxing of costs [536−1] (mt) (Entered: 06/24/2003)
538 DECLARATION of Margaret M Cahill by plaintiffs in support of supplemental brief re plaintiff's motion for attorney fees (#1) [536−1] (mt) (Entered: 06/24/2003)
539 DECLARATION of Margaret M Cahill by plaintiffs in support of supplemental brief re plaintiff's motion for attorney fees and supplemental time records pursuant to Clerk's taxing of costs (#2) [536−1] (mt) (Entered: 06/24/2003)
540 DECLARATION of Margaret M Cahill by plaintiffs in support of supplemental brief re plaintiff's motion for attorney fees and time records pursuant to Clerk's taxing of costs (#3) [536−1] (mt) (Entered: 06/24/2003)
541 STIPULATION filed to continue hearing ofn plaintiff bill of costs and state defendants objection (yc) (Entered: 07/18/2003)
542 EX PARTE APPLICATION filed by State Defendants to extending briefing dates and continuing hearing on Plaintiffs' motion for attorney fees Lodged proposed order (pj) (Entered: 07/25/2003)
543 ORDER by Judge Gary L. Taylor Granting ex parte application to extending briefing dates and continuing hearing on Plaintiffs' motion for attorney fees [542−1] hearing on application for attorney fees, costs, and expenses, after remand from the Ninth Circuit Court of Appeals [536−1] 10:00 9/22/03; state defendants opposition August 18, 2003; Reply September 2, 2003 (pj) (Entered: 07/29/2003)
544 DECLARATION of Patricia M Lytle by plaintiff Richard S in support of second amended cost bill (mt) (Entered: 08/15/2003)
PLACED IN FILE − NOT USED lodged bill of costs (mt) (Entered: 12/03/2003)
545 MINUTES: COST BILL HEARING (In Clerk's Office). Hearing held and counsel are present. Upon request of defense counsel, Cost Bill Hearing is continued to 9/5/03 at 10:00am pending further briefing as follows : (see document for specifics). CR: N/A (mt) (Entered: 08/18/2003)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 49 of 54

08/15/2003 08/18/2003
08/18/2003 08/20/2003 08/25/2003
09/02/2003 09/02/2003 09/02/2003 09/02/2003 09/02/2003 09/02/2003 09/19/2003
09/19/2003 09/22/2003 12/05/2003 12/05/2003

548 SUPPLEMENTAL AMENDED DECLARATION of MARGARET M. CAHILL [537−1] in support of revised cost bill after initial hearing by clerk (jp) (Entered: 08/21/2003)
546 SECOND SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES by State defendants in opposition to plaintiffs' counsel's motion for attorneys' on remand from Ninth Circuit Court of Appeals [536−1]; second supplemental declaration of Gary Greenfield and declaration of Kay Haralson in support thereof (mt) (Entered: 08/20/2003)
547 OBJECTIONS filed by State defendants to declarations submitted by plaintiffs' counsel in support of their supplemental brief and amended application for attorneys' fees on remand from Ninth Circuit Court of Appeals [536−1] (mt) (Entered: 08/20/2003)
549 NOTICE OF ERRATA by plaintiff Richard S to the declaration of Patricia M. Lytle in support of second amended cost bill [544−1] (mt) (Entered: 08/22/2003)
550 SUPPLEMENTAL RESPONSE by defendants pursuant to minute order of 8/15/03 [545−2] in opposition to supplemental declarations of Patricia M Lytle Esq and Margaret Cahill Esq, and amended costs bills relating thereto, re: plaintiffs' bill of costs and application to tax costs; declaration of Suzanne L. Salzwedel in support thereof (mt) (Entered: 08/27/2003)
551 DECLARATION of Francis X Hardiman by plaintiffs in support of supplemental brief re plaintiff's motion for attorney fees and costs supplemental time records pursuant to clerk's taxing of costs [536−1] (mt) (Entered: 09/03/2003)
552 REPLY by plaintiffs to state defendants second supplemental memorandum of points and authorities in opposition to plaintiffs' counsel's motion for attorney fees on remand from the Ninth Circuit Court of Appeals [536−1] (mt) (Entered: 09/03/2003)
553 OBJECTIONS AND NOTICE OF MOTION AND MOTION by plaintiffs to strike, declarations submitted by state defendants' expert Gary Greenfield ; motion hearing set for 10:00 9/22/03 (mt) (Entered: 09/03/2003)
554 DECLARATION of Ronald Talmo by plaintiffs in support of plaintiffs' reply to state defendants second supplemental memorandum of points and authorities in opposition to plaintiffs' counsel's motion for attorney fees on remand from the Ninth Circuit Court of Appeals [536−1] (mt) (Entered: 09/03/2003)
555 DECLARATION of Francis X Hardiman by plaintiffs in support of plaintiffs' reply to state defendants second supplemental memorandum of points and authorities in opposition to plaintiffs' counsel's motion for attorney fees on remand from the Ninth Circuit Court of Appeals [536−1] (mt) (Entered: 09/03/2003)
556 DECLARATION of Ellen Matheson by plaintiffs re time ledgers in support of plaintiff's motion for attorney fees [536−1] (mt) (Entered: 09/03/2003)
557 OBJECTIONS AND RESPONSE filed by State defendants to plaintiffs' objections and motion to strike declarations submitted by state defendants' expert Gary Greenfield [553−1] and to declaration of Francis X Hardiman in support of plaintiffs' reply to state defendants' second supplemental memorandum (mt) (Entered: 09/29/2003)
558 OBJECTIONS filed by State defendants to declaration of Francis X Hardiman in support of supplemental brief re: plaintiffs' motion for attorney fees; declaration of Ronald Talmo, and declaration of Ellen Matheson (mt) (Entered: 09/29/2003)
559 MINUTES by Judge Gary L. Taylor: Proceedings: Hearing re attorneys' fees issues [536−1]. Matter is argued and taken under submission; CR: Hope Goldsmith (mg) (Entered: 09/30/2003)
PLACED IN FILE − NOT USED lodged amended bill of costs (mt) (Entered: 12/08/2003)
PLACED IN FILE − NOT USED lodged second amended bill of costs (mt) (Entered: 12/08/2003)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 50 of 54

12/05/2003 12/12/2003 01/12/2004 01/13/2004 01/20/2004 01/26/2004
01/26/2004 03/10/2004
03/16/2004
03/26/2004 03/26/2004 03/29/2004
03/29/2004
03/29/2004

COSTS taxed for plaintiff Richard S, et al in the amount of $ 46,950.81 against DDS, et al; bill of cost hearing held (mt) (Entered: 12/08/2003)
560 NOTICE OF MOTION AND MOTION by State defendants to retax costs ; memorandum of points and authorities; declaration of Richard T Waldow in support thereof; motion hearing set for 10:00 1/26/04 (mt) (Entered: 12/15/2003)
561 OPPOSITION by Plaintiffs to State Defendants' Motion to Retax Costs 560 ; Memorandum of Points and Authorities. (kks) (Entered: 01/22/2004)
562 COPY OF DECLARATION of Suzanne L Salzwedel submitted as exhibit 'B' to declaration of Richard Waldow in support of State defendants' motion to retax costs filed by State Defendants (mt, ) (Entered: 01/25/2004)
565 STATE DEFENDANTS' REPLY to response to Motion for Costs 560 filed by Defendants Clifford Allenby, Department of Developmental Services of the State of California, Fairview Developmental Center, Lilia Tan Figueroa, Harry Kohler, Dawn Lemonds, South Coast Regional Project. (th) (Entered: 01/29/2004)
563 MINUTES OF Motion Hearing held before Judge Gary L. Taylor: State defendants' Motion to retax Costs upon discovery consolidation 560 is continued to 5/10/2004 at 10:00 AM. Defendants shall file their supplemental brief on or before 3/15/04. Plaintiff's shall file their responsive brief on or before 4/25/04. Defendants shall file their reply brief on or before 5/3/04. The portion of the motion based on plaintiff's degree of success is STAYED. Court Reporter: Leslie King. (mt, ) (Entered: 01/28/2004)
564 ORDER by Judge Gary L. Taylor on State Defendants Motion to retax Costs 560 based on plaintiff's degree of succes is STAYED. The State defendants' motion to retax costs based upon discovery consolidation is CONTINUED(mt, ) (Entered: 01/28/2004)
566 EX PARTE APPLICATION for Order extending briefing dates and continuing hearings on motion to retax costs, memorandum, declaration of counsel filed by State defendants Clifford Allenby, Department of Developmental Services of the State of California, Fairview Developmental Center, Lilia Tan Figueroa, Hugh Kohler, Dawn Lemonds, South Coast Regional Project. Lodged order. (dmjr, ) (Entered: 03/16/2004)
567 Order by Judge Gary L. Taylor: GRANTING State Defendants EX PARTE APPLICATION for Order 566 Extending Briefing Dates and Continuing Hearing on State Defendants Motion for Costs 560 ; 560 State Defendants Motion to Retax Costsis re−set for hearing on 5/24/2004 at 10:00 AM before Honorable Gary L. Taylor (see document for further details)(ln, ) (Entered: 03/16/2004)
568 RULING ON STATE'S OBJECTIONS TO PLAINTIFFS' DECLARATIONS by Judge Gary L. Taylor 547 (see document for specifics)(mt, ) (Entered: 03/26/2004)
569 ORDER by Judge Gary L. Taylor appointing Special Master: Pursuant to Rule 53 FRCP, the Court hereby appoints Eugen C Andres as Special Master in this case. (See document for specifics). (mt, ) (Entered: 03/26/2004)
570 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES in support of their re Motion for Retax Costs 560 filed by State Defendants Clifford Allenby, Department of Developmental Services of the State of California, Fairview Developmental Center, Lilia Tan Figueroa, Hugh Kohler, Dawn Lemonds, South Coast Regional Project. (mt, ) (Entered: 03/30/2004)
571 DECLARATION of Richard T Waldow re supplemental memorandum of points and authorities in support of State defendants' Motion to Retax Costs 560 filed by State Defendants Clifford Allenby, Department of Developmental Services of the State of California, Fairview Developmental Center, Lilia Tan Figueroa, Hugh Kohler, Dawn Lemonds, South Coast Regional Project. (mt, ) (Entered: 03/30/2004)
572 VOLUME I OF APPENDIX OF DEPOSITION TRANSCRIPTS in support of State Defendants' re Motion to Retax Costs 560 filed by State Defendants Clifford Allenby, Department of Developmental Services of the State of California,

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 51 of 54

03/29/2004
04/05/2004 04/06/2004 04/07/2004 04/14/2004 04/20/2004 04/22/2004 05/07/2004 05/07/2004
05/07/2004 05/10/2004 05/10/2004 05/13/2004 05/17/2004 05/18/2004 05/27/2004

Fairview Developmental Center, Lilia Tan Figueroa, Hugh Kohler, Dawn Lemonds, South Coast Regional Project. (mt, ) (Entered: 03/30/2004)
573 VOLUME II OF APPENDIX OF DEPOSITION TRANSCRIPTS in support of State Defendants' Motion to Retax Costs 560 filed by State Defendants Clifford Allenby, Department of Developmental Services of the State of California, Fairview Developmental Center, Lilia Tan Figueroa, Hugh Kohler, Dawn Lemonds, South Coast Regional Project. (mt, ) (Entered: 03/30/2004)
574 NOTICE OF ERRATA correcting Volume II of Appendix Filed in Support of Motion to Retax Costs 573 filed by State Defendants (ln, ) (Entered: 04/07/2004)
576 NOTICE OF DEPOSIT OF FUNDS filed by State defendants in compliance with order appointing Special Master. Deposit check #198817 $20,000.00 (mt, ) (Entered: 04/15/2004)
575 MINUTES OF (In Chambers) Conference held before Judge Gary L. Taylor: Clerk of Court is Ordered to pay Special Masters invoice totaling $1,852.50 from funds held on deposit for that purpose (see document for details) Court Reporter: none present. (ln, ) (Entered: 04/08/2004)
FINANCIAL ENTRY − Opened M/M acct with US Bank for $18,147.50 (mt, ) (Entered: 05/13/2004)
FINANCIAL ENTRY Disb $1,852.50 to Andres &Andres per order dtd 4/7/04 Re: 575 (mt, ) (Entered: 05/13/2004)
577 MINUTES OF In Chambers before Judge Gary L. Taylor: Plaintiff's production of attorneys fees information (see document for specifics) Court Reporter: None Present. (mt, ) (Entered: 04/23/2004)
578 MINUTES OF In Chambers before Judge Gary L. Taylor: Order to pay Special Master's Invoice: The Clerk of Court is ordered to pay the attached Special Master's invoice from the funds held on deposit for that purpose. Court Reporter: None Present. (mt, ) (Entered: 05/10/2004)
579 NOTICE of Change of Attorney Information by attorney Herbert Hafif for Plaintiffs Association for Retarded Citizens−California, William Cable, Cynthia R, Richard S, Debbie Tisdale, Valdina R, changing address to 269 West Bonita Avenue, Claremont, CA 91711; telephone 909−624−1671; FAX 909−625−7772. Filed by plaintiffs Association for Retarded Citizens−California, William Cable, Cynthia R, Richard S, Debbie Tisdale, Valdina R (ln, ) (Entered: 05/11/2004)
FAX number for Attorney Herbert Hafif is 909−625−7772. (ln, ) (Entered: 05/21/2004)
580 OPPOSITION to state defendants supplemental memorandum of points and authorities in support of state defendants' Motion to Retax Costs 560 filed by plaintiff Richard S. (mt, ) (Entered: 05/13/2004)
581 DECLARATION of Francis X Hardiman in support of plaintiffs' opposition to state defendants supplemental memorandum of points and authorities in support of state defendants' Motion to Retax Costs 560 filed by plaintiff Richard S. (mt, ) (Entered: 05/13/2004)
582 NOTICE OF ERRATA filed by Plaintiff Richard S. correcting Response in Opposition to Motion 580 (dmjr, ) (Entered: 05/19/2004)
584 REPLY to plaintiffs' opposition to defendants' supplemental memorandum of points and authorities in support of Motion to retax costs 560 filed by State defendants (mt, ) (Entered: 05/21/2004)
583 MINUTES OF In Chambers before Judge Gary L. Taylor: Order taking under submission State Defendant's Motion to retax costs 560 . The 5/24/04 hearing is ordered off−calendar. The Court will notify the parties if an oral hearing is necessary. Court Reporter: None Present. (mt, ) (Entered: 05/19/2004)
585 Order by Judge Gary L. Taylor on the State defendants' Motion to Retax Costs 560 : The State defendants' motion to retax costs based on discovery consolidation is

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 52 of 54

05/28/2004 06/21/2004
07/12/2004
08/02/2004 08/02/2004 08/11/2004
08/26/2004 09/09/2004 09/10/2004 09/10/2004 01/14/2005
01/14/2005 01/14/2005 01/14/2005
02/07/2005

DENIED as to the deposition transcripts for: (1) Rebecca Helgeson; (2) Philip Guardabascio; (3) Raymond Peterson; and (4) the 1/5/00 deposition of Hugh Kohler. The motion is GRANTED as to all other challenged depositions (mt, ) (Entered: 05/27/2004)
FINANCIAL ENTRY Re: 578 − Disb $1,055.06 prin to Andres &Andres per Order dated 5/7/04 (mt, ) (Entered: 06/07/2004)
586 MINUTES OF In Chambers before Judge Gary L. Taylor: Order to Pay Special Master's Invoice. The Clerk of Court is ordered to pay the attached Special Master's invoice from the funds held on deposit for that purpose. Balance currently held $17,092.44 Less current payment to Special Master $1,695.50. New balance $15,396.94. Court Reporter: None Present. (mt, ) (Entered: 06/22/2004)
587 MINUTES OF In Chambers before Judge Gary L. Taylor: Order to Pay Special Master's Invoice. The Clerk of Court is ordered to pay the attached Special Master's invoice from the funds held on deposit for that purpose. Balance currently held $15,396.94 Less current payment to Special Master $7,151.15. New balance $8,245.79. Court Reporter: None Present. (mt, ) (Entered: 07/14/2004)
FINANCIAL ENTRY Re: Disbursed $1,695.50 to Andres &Andres per civil minutes dated 6/21/04 586 (mt, ) (Entered: 08/04/2004)
FINANCIAL ENTRY Re: Disbursed $7,151.15 to Andres &Andres per civil minutes dated 7/12/04 587 (mt, ) (Entered: 08/04/2004)
588 MINUTES OF In Chambers before Judge Gary L. Taylor: Order to Pay Special Master's Invoice. The Clerk of Court is ordered to pay the attached Special Master's invoice from the funds held on deposit for that purpose. Balance currently held $8,245.79 Less current payment to Special Master $27.85. New balance $8,217.94.Court Reporter: None Present. (mt, ) (Entered: 08/13/2004)
FINANCIAL ENTRY Re: Disb $27.85 to Andres &Andres per civil minutes dated 8/11/04 588 (mt, ) (Entered: 09/09/2004)
589 MINUTES OF In Chambers before Judge Gary L. Taylor: Order vacating as moot Motion to Strike declarations submitted by State Defendants' expert Gary Greenfield 553 Court Reporter: Not Present. (mt, ) (Entered: 09/10/2004)
590 DECLARATION of Margaret Cahill in Support of Plaintiffs Application for Attorney Fees filed by Plaintiff Richard S. (ln, ) (Entered: 09/17/2004)
591 DECLARATION of Francis X Hardiman Re Supplemental Billing Records After Hearing Before Special Master filed by Plaintiff Richard S. (ln, ) (Entered: 09/17/2004)
592 THIRD SUPPLEMENTAL DECLARATION of Gary Greenfield in support of State Defendants' Third Supplemental Memorandum of Points and Authorities in Opposition to Plaintiffs' Counsel's motion for Attorneys' Fees, on Remand from Ninth Circuit Court of Appeals filed by defendants. (esa, ) (Entered: 01/20/2005)
593 MEMORANDUM OF POINTS AND AUTHORITIES in Opposition to Plaintiffs' Counsel's Motion for Attorneys' Fees, on Remand from Ninth Circuit Court of Appeals (esa, ) (Entered: 01/20/2005)
594 STATE DEFENDANTS' OBJECTIONS to Declarations submitted by Plaintiffs' Counsel re: Supplemental Billing Records after Hearing Before Special Master (esa, ) (Entered: 01/20/2005)
595 NOTICE OF LODGING of Reporter's Transcript of Hearing Held on 6/7/04, in support of State Defendants' Third Supplemental Memorandum of Points and Authorities in Opposition to Plaintiffs' Counsel's Motion for Attorneys' Fees, on Remand from Ninth Circuit Court of Appeals (esa, ) (Entered: 01/20/2005)
596 MINUTES OF IN CHAMBERS ORDER by Judge Gary L. Taylor: Clerk of Court is Ordered to Pay Special Masters Invoice (see document for details) Court Reporter: none present. (ln, ) (Entered: 02/09/2005)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 53 of 54

02/17/2005 02/18/2005
02/25/2005 03/02/2005 03/09/2005 03/30/2005
04/13/2005
04/15/2005 04/19/2005 04/19/2005
04/20/2005 04/20/2005 04/22/2005

FINANCIAL ENTRY Re: Disb prin, $1,301.50 to Andres &Andres per civil minutes dated 2/7/05 596 (mt, ) (Entered: 03/04/2005)
597 ATTORNEYS REPLY and Declarations of Francis X. Hardman and Margaret M. Cahill, to state defendants third supplemental memorandum of points and authorities in opposition to plaintiffs counsel Motion for attorneys fees on remand from the Ninth Circuit Court of Appeals 455 filed by plaintiffs Richard S, Debbie Tisdale, Association for Retarded Citizens−California, Cynthia R, Valdina R, William Cable. (ca, ) (Entered: 03/01/2005)
599 REPORT OF SPECIAL MASTER Eugen C Andres (ln, ) (Entered: 03/03/2005)
598 MINUTES OF IN CHAMBERS ORDER by Judge Gary L. Taylor: Court sets hearing on 4/4/2005 at 11:00 AM before Honorable Gary L. Taylor to consider Special Masters recommendations and final Order as to attorneys fees (see document for details)Court Reporter: not present. (ln, ) (Entered: 03/03/2005)
600 MINUTES OF IN CHAMBERS ORDER by Judge Gary L. Taylor: Clerk of Court is Ordered to pay attached Special Masters Invoice Number 13834 of $4,480.80 from funds held on deposit for that purpose;Court Reporter: none present. (ln, ) (Entered: 03/11/2005)
601 MINUTES OF IN CHAMBERS ORDER by Judge Gary L. Taylor: on Courts own motion, hearing to consider special masters recommendations and to issue final Order as to attorneys fees is continued to 4/20/2005 at 01:00 PM; briefs previously Ordered by the Court are due on or before 04/18/05;Court Reporter: none present. (ln, ) (Entered: 03/31/2005)
609 MINUTES OF IN CHAMBERS ORDER by Judge Gary L. Taylor: The Clerk of the Court is ordered to pay the attached Special Master's invoice from the funds held on deposit for that purpose. Balance currently held $2,435.64. Less current payment to Special Master $1,335.50. New balance $1,100.14. Court Reporter: None Present. (mu, ) (Entered: 05/16/2005)
602 SUPPLEMENTAL MEMORANDUM of Points and Authorities After Determination on Attorney Fees by the Special Master; Declaration of Margaret M Cahill; filed by Plaintiffs Richard S. et al (ln, ) (Entered: 04/20/2005)
604 MEMORANDUM of Points and Authorities filed Pursuant to Courts Order of 03/02/05 in Opposition to Plaintiffs Counsels Motion for Attorneys fees and Costs Re: Report 599 ; Exhibits (ln, ) (Entered: 04/21/2005)
605 NOTICE OF LODGING of Reporters Transcript of Hearing Held by Special Master on 06/07/04 in Support of State Defendants MEMORANDUM of Points and Authorities filed Pursuant to Courts Order of 03/02/05 in Opposition to Plaintiffs Counsels Motion for Attorneys fees and Costs Re: Report 599 ; (ln, ) (Entered: 04/21/2005)
603 MINUTES OF Conference held before Judge Gary L. Taylor: hearing to consider Special Masters Recommendations re Report 599 and issue final Order as to Attorneys Fees; matter is argued and taken under submission;Court Reporter: Deborah Parker. (ln, ) (Entered: 04/21/2005)
***Terminated all deadlines and hearings pursuant to Minute Order (603) filed 04/20/05 (ln, ) (Entered: 04/21/2005)
606 ORDER on Attorneys Fees and Costs by Judge Gary L. Taylor: Defendants Objection to Report of the Special Master is overruled; Court approves and adopts Report of Special Master 599 ; plaintiffs attorneys are entitled to award of attorney fees before any credit payable by Defendant in the following amounts(see document for details); fees expended on Special Master proceedings are charged to Hardiman and Cahill; At Courts Order, Defendant deposited $20,000 to underwrite these fees; total of $18,899.86 was expended on Special Masters Fees and $1,100.14 remains undisbursed; Court will direct Clerk to pay remaining $1,100.14 to firm of Hardiman and Cahill as partial payment of their attorneys fee award; Defendant is ORDERED to pay awards stated above, with credits stated above;(ln, ) (Entered: 04/25/2005)

Case: 8:97-cv-00219-GLT-AN As of: 11/28/2010 07:58 AM PST 54 of 54

04/25/2005 04/25/2005 04/25/2005 06/09/2005
07/28/2005 07/28/2005

607 MINUTES OF IN CHAMBERS ORDER by Judge Gary L. Taylor: Clerk of Court is Ordered to pay remaining funds of $1,100.14 held on deposit to law firm of Hardiman and Cahill; Court Reporter: none present. (ln, ) (Entered: 04/26/2005)
608 MINUTES OF IN CHAMBERS ORDER by Judge Gary L. Taylor: duties of Special Master, Mr Andres, having been completed, Court hereby relieves Special Master; Court Reporter: none present. (ln, ) (Entered: 04/26/2005)
FINANCIAL ENTRY Re: Disb $4,480.80 principal to Andres and Andres per Order dtd 03/09/05 EN re In Chambers Order 600 ; (ln, ) (Entered: 05/04/2005)
610 MINUTES OF IN CHAMBERS ORDER by Judge Gary L. Taylor: Court Orders accrued interest in Special Masters Fund disbursed to firm of Hardiman and Cahill as partial payment of their attorneys fees award;Court Reporter: none. (ln, ) (Entered: 06/09/2005)
FINANCIAL ENTRY: Disbursed prin plus int of $1,232.66 to Hardiman and Cahill per In Chambers Order 610 (ln, ) (Entered: 08/08/2005)
FINANCIAL ENTRY: Disbursed $1,335.50 to Andres and Andres per In Chambers Order 609 NP (ln, ) (Entered: 08/08/2005)

 
 \-\
South Coast Hegiona! Project

April 22, 1996

• .

TO: FROM:

Davo Marie Lemonds, SCKP Director Phi1 Guarcabascio, SCR? Associate Director

SUBJECT: Treatment Team Meeting Regarding Cy-tbia ?.

I would lie to praxes this mezno by r.ztks iha: i; is DO: my habit to writ? kners of complaint regarding members of the Fzim'ew co=unfry. While SCRFs mission is definitely not always perceived by members of this corzr:unir\- ES beba aliscd ^•^iul :; that of rii--Ir^Js, I was wt!scz:-d 2s a ne«- s e s b e r of the Fairv-'evv comrr'j^iry sr.-era] \re£." ago isd have £!v>-s}'S fair thit I was treated v,ri; reject a^d \^dzrsizzdhz. I: is vv-hh regret, then, that J feel the z^zd to riforsc you of v-.hst I "ocv2i uza;;eptab:e beha-»"ior by Dr. Csblz at zz April 29, ;9?6 rr£^tir:=: tea.— r:o:±:E or Program: 4.
The rnee'iag v^-ss called by Barry Lord, Cynthia's sockl -.vorksr £-0:2 San Diego Regr-onaJ Center. The intrst of the seetisg was to gather izfc—naticn frcin Fsiro'ev/ r>a5"reg£rdbg Cjsthis's resdiiiess for --'— 'ry p^»^—:»-•:; wheihsr i: -A-as ad\is3b]c to p*^rse coz^nniirj'placezstst at this ti3e. voethsr st a fature d2le if scserssry sen-Ices and supports could be pro-ocsd, and'or how Fairvicw and SDRC sight work toicether to prepare her for pkceaant «t sc~:e Later dais. Other persons VTSSZZI at the '_:nesti3g included Dr. Sharon McGiK'er\:, Ph.D., SDRC's Psrviologist, Rtbtcca Helgeson, Regiozal Director of Independent Optior.s, Ircorporated, Independent Options' Psychologist, Karen Larson. Program A Director and Terry Eakh, Program 4 Psychologist.
Mr. Eainn provided an excellent and inibm^atr.-e profile of Cynthia's current bshr.icrel status. The ne>3 questions v-srz to be medical hi n^rore and the meeting then sHficd focus to Dr. C2ble. At ihzt point he began a s^nes of statcnacnts and accusations 2£aiast Cynthia's social worker and the service provider that can be best described zs re3ect7\'e of a personal, rather than consumer- oriented, agenda. At worst, the statements were unprofessional, mean spirited and not reflective of the Fairview coa^siahys cdnire with respect to trestment of other human bebgs. The foDo^-bg 'are some hishlishts of Dr. Cable remarks. I would like 10 commend Karen Larson for

'• / . • ! ! i ••.>

rj:!-u;:g ever)1 cfTon to redirect Dr. dbk during this mccthis 2s wc-U 2s 3arrv Lore for rz—iitlzz calm ihrougbout.
]. Dr. Cable's fist remark was to ask Mr. Lord why l i e mother was not present. Ke subsequently attempted ;o cancel the meeting, despite reminders f-cm yiirzz Larson thai lie mother had not attended ?-y meetbgs at FaL-.iew recarebs he daughter in several years. Dr. Cable then asked Mr. Lord to teU him how many times be had =nempted :c contact the mother and whether sibii-gs (who to anyone's knowledge bad never bees b \ o h e d »-itb Cyijuijs) had been contacted. 5Ciren re=bd:d Doc"or Cib!: ^ 2 ! 2£ 2 rsprssszisrK's of CyrJiis's csss — " . ; g » ^ ^ ; assucy. Mr. Lord had every risi: to request hzfomarioi: wrii regard to his client, zzd ± 2 : the meetbg \vodd sot be cz-ztlti.
2. Dr. Cable zsktc Mr. Lore if be knew that the p-rcrotioa here is that rtpcraJ centers go airer cezsuzaers who have ao pareuta] isvoh'eneat. Mr. Lord r.zted th:t was rot true. Dr. Cable the; asked hln for a list of all consumers he W2S cc-2sdcr>§ for cornmurity -shctznz: so that he codd review it. Kirea Larson hfor-jsd hi— this v.is az inappropnate request. I prodded Dr. Cable v,itb infor—alien "hit there is. in fart,: high Icr/d of parents] i-voK'ement with consumers mo">i-:S to the community azd izSc~-:c!:: him that this v<zs track ad by SCK? mcnthJy.
3. Regarding C)-thia's medical issues, Dr. Czblt stated that shz hzd mecicil iir^es and that he wanted to go on rzzori as orposcd to any placemen* for her outsiis Fsirview as shz was safer here. That is to say. he -.vent on record as opposed to placement for usspeciStd —.;edica] reasons. These were never discussed.
4. Rebtcc2 Helseson of Independent Options provided 2 very thorough and . _a_ccurate summary of the kinds of services lhat their organization zzn. and caniiot provide. DT. Cable the= is^td her if fie was aware that the mortality rate for our
consumers was higher in the community than it is at Fairview. Ke Subsequently ztkzd her if she had the C2tz 02 that, and also asked if Independent Oprions is 2 for-prcnt orsaniration.
el'rv'e this is suScient to provide you ^i<h z feei for Dr. Csbie's impact on l i e etsg. Most of the persons in 2nendance 2ppearec to nse to be appiUed at his beha^'or. A subsequent "post" naeetbg v>r.b the s"2fFcr. Sac Diego Region2l Center 2nd Independent Optioas revealed thsi they were highJy upset. Ms. Helgeson, unsolicited^ siz'.cd that Dr. Cable was the most unprofessional person that she h2d met in her career and lh2t be bad actusUy impb'sd lhat we are killing people by moving

\
ill era Jo ibe c o s m d l y . 3y Lbe follou-bg rnorriig, the SDRC social wor-ker, psychologist and tie service provider had called and compteiaed \o Judy Bcrcbcn. SDKC'% Coffeh Manager. I fouad cyself is Lbe position of 2s5-ana Judy 3orchc:i no: to file 2 Jerter of ccisplaint v.i± Mr. KobJer, 22c let her b o w :his was atypical behavior st FsirvirA'cud that I -»vas certain the izaner would be handled irsiemaUy.
I fnnJy beb'eve that b LHid-jals should sever be subjected to the treatment liar ^ ane2d£3c* ST tie see:lbs were subjectsd to a^d, therefore, I fee! ii cecsssa- to rssperJuUy b r i g ihis carter to N'OUT snrciion.

Memo
To: Mr. Lou Sarrao Clinical Director, Fairview Developmental Center
From: William Cable, M.D. Physician, Program 4
Re: Cynthia Reinseth Treatment Team Meeting
In attendance: Phil. Gu2rdibasio and Karen Hudson from SCRP, Barry Lord and Sharon McGilroy from San Diego Regional Center, Rebecca H^lgunson and Dr Peterson (a consulting psychologist) for Independent Options, a community placement organization. Fairview staff included the Program Director, Ms Karen Larson, the recorder, Susan Peters, the social worker, Gloria Limon, psychologist Dr. Terry Eakin, psych tech, Manila Knapik, unit supervisor, Bethel Reeves, and myself.
Date: April 24, 1996
I received from Karen Larson a copy of the memo she forwarded to you 4/22/96 about the above meeting on 4/18/96. I hope you will accept my response.
Karen has indicated to me that her memo was written in response to "SCRP concerns", which I have not seen, and consequently cannot address.
Approximately 30 min. before Cynthia Reinseth's meeting on 4/18/96, I was informed there would be a meeting on Cynthia, and my presence was requested. I was given no background on who was to be there, why the meeting was to be held, or what input was required of me. The meeting was opened by Barry Lord (San Diego RC) who indicated it was arranged to discuss Cynthia being transferred to a community home. He announced that no family was present. It was clear from his response that no major effort had been taken to involve the family at this meeting. At that point I suggested the family be contacted to participate in this important decision - this was declined.

page 2
The Program Director, Karen Larson, then spoke about Cynthia, and raised concerns about the transfer. This was not surprising as the treatment team was of the unanimous decision that Cynthia situation was inappropriate for the community living. I was asked to speak next and I expressed my concerns about Cynthia health if she placed in a community home. The representative from Independent Options, Rebecca Halgunson, indicated that Cynthia would be seen by a physician about once every 59 days, in contrast to daily visits now. I was concerned that this did not represent adequate care for an individual with Cynthia's multiple health problems. After further discussion with the Fairview psych tech, psychologist, and unit supervisor it was clear no-one supported her community placement and questioned why she was selected. The Regional Center and SCRP staff accepted the recommendation and the meeting was terminated.
In reflection several conclusions can be drawn from this meeting that can be beneScial to all concerned. 1. Perhaps the proeram director should meet with the Fairview residence staff and develop a consensus before the meeting with SCRP and Regional Center staff. 2. With better communication with SCRP and Regional Center personnel, the concerns of the treating staff could have been transmitted by the program director, by phone or letter, thus negating the need to tie up so many state workers - some of whom had travelled a considerable distance to attend. 3. At the meeting it was revealed that clients are being visited by, and selected by, the for-profit community home stafi This raises serious issues of client coiiJQdenliallity. The Regional Center staff that are charged by law as the conservators of her care appeared unfamiliar with her needs.. To my knowledge they had not visited her at any time recently before the meeting and had not sought my advise on her health needs.
In summary, there are serious deficits in the current system of identifying the needs of clients' by the staff at SCRP and Regional Center. What is required of them is greater involvement in their clients' lives, and better communication with the Fairview staff. Hopefully this case will identify and lead to correction of these deficiencies. Our clients deserve better.

' I

• \

NS-INC.- f ^ c ^ c ^ . V^ .,„,
• - - - • - i i : .- u zZ!X ::57 COSJNA. i-A :

Hugh KohJcr. Executive Director Fsirvicw Develop—eritz! Center 2501 South Harbor Blvd. • Costa Mesa, California 92626

.April 30, 1996

Deai Mr. KohJer:
I a— writing you in rtftTZ^.ce ;o £ '-rtatrrien; lean: meeting that one cf our Ac—i:i:s:ra:o:s. our Psychologist arjd n-yselfatte.-dsd at Fain'icw on April i S, 1996. The purpose of this .—seii.-s was io discuss ihe possible ccnvnur;i:y p]3cemer;i cf z.~ :nd:^•idus] residing there and the barriers ic this placernenL This panicular individual had been referred to our agency for oJsccms.nt ir. the comir.urJiy by San Diego Regional Cenier and I \-isittd her at her residence on January 22, 1995.
I have been employed by Independent Options inc. :or 12 years and have participated iz: —oving many indi%-iduals into the community since n:y emr'oy— eni in i9S4. I realize that Fairvic-v justifiably has concent about all movement from the developmental center and has a vested interest in the success of each and every communiry placement. I want :o firstly acknowledge ~.y respect and support for this concern and dedication. However, the behavior of Dr. Cable during this meeting, needs to be brought so your anention.
Throughout the meeting it wzs apparent thai Dr. Cable was not only opposed '.o Cynthia's possible placement Li the community but ALL corrirnunity p.'--cemt-is. He was noi hostile to ;:"!e as an individual or z representative cf Independent Options, Inc.; but was hostile 10 —e as a private residential provider. He specifically asked if] -zz:zszr,\zd a "for profit" organization, leavinc the insinuation that making money was the sole purpose of cur organization. He also asked me if I was zware that the mortality rate was higher in the community then in the Developmental Centers.
DT. Cable also directly stated that Regional Cenier(s) were specifically targeting individuals in the Developmental Centers that had no family involvement and were not capable of expressing residential preferences for placement in the community. He wanted the meeting adjourned because no family was present, even though there had been NO family involvement for approxirr.aielj' seven years.

It was evident 'c mc: thai Dr. Cable is very upset abcu; the community providing services ;o individuals thai have developmental disabilities, questioning ou.r ab5:ir>' to -rovide medical services, adequate physician care and basic provisions for individual safety. J do need ;o say that 1 ten the mealing fee .'ing that Dr. Cable was on a "c:ie rr.a.n': mission tc eliminate co-j-,v^.itv placements. Let me also slale that all other Fai-ie-.v staff seemed as shocked bv his statements as we were (and also embarrassed). The feeling of team zlzsirlng was arparer.t with the exce-ticn of Dr. Cable.
I kr.o-vv you will not take this co-:s?ondcnce lightly, a^c I appreciiie your concern in this maner if you have any specific questions regajding Independent Options, Inc.'s trarticipaticn in this meeting, please dc not hesitate to call me.
Sincerely,
Rebecca A. Htlgeson Redonil Director
cc: Dawn Lemonds. South Coast Regional Project Judy 3orchen, Coffch Unit, San Diegc Regional Centcr Dc-Lnis Mar.scn. Executive Director. IndcDendent Orticr.s. Inc.

FAIRVIEW DEVELOPMENTAL CENTER
2501 Harbor Blvd. Ccs'.z l.'.sss, CA 92S2S
(7:4) 957-5000

NOTICE OF ADVERSE ACTION

Will-am Cable, M. D. Physician 2nd Surgeon Fairrie-.v Developmental Center 2501 Harbor Boulevard Costa Mesa, CA 92626
Home Address:

SS=
Original sent by certified me: Copy sent by regular ms.1

NATURE OF ACTION
YOU ARE HEREBY NOTIFIED :hst pursua-:! :o Govcrrjncm Code sectior; '• 9574.. .you zit re-rimandid in your position of ?h} siciin zr,6 S;irgson v/j-j; ihe Depaj-ment of Devslop-cr.^l Ssr\-ices, FsL-vicw De\1siop=ieaa] Ce.-iisr: effective a; ihs beginning of your shin on August ]9; 1996.
II STATEMENT OF CAUSES
Tnis action is being uken against you for lie fbllo^-ing csuses specified in the following subsections of Government Code Section 19572:
(d) Inexcusable neglect of duty

William Csbie, M. D. Adverse Action Notice Page!
(m) Discourteous irealmsju of Lhe public or other employees
(:) Other failure of good behavior either during or cu'-side of cur-' hours v.'hi ch is cf sue!
a nature thai it causes discredit 10 ihe agency o: :he employment

in STATEMENT OF FACTS
You "«e:e appointed as Physician and Surgeon at Fairview Developmental Cf.'r.t: or 9. ': 99-. You 2-"i currsr'Jv asiigncd ;o ?rcg-2~r, 2 ZTid 6 at Fairvisv/ De\e;cp.-ner.i3J Cer.tcr.

•;e ca-jses se: fenh :*n paragraph II above zzt based on the following facts:

QT. Apr.) iS, 1996, z\ 2pp:o.\i.~£iely 2:50 p.m. a: ?a:r%-ie\v Develcpn^cniai C:r;:er;

while you were attending a treatment le.vn n2£i:ing for client Cynth:2 R., TDC =3"S'4-6. you attempted to cancel the meeting afier accusing B2rr>: Lord, rrom the

San Diego Regional Center, of failing to contact Cynthia's family. You die this

despite reminders from Kzszr. Larson, Program Director, that Cynthia's mother had

no; anendwf such meetings on her daughter's behalf for severaJ years.

2.

At this same meeting, you lold Mr. Lord that the perception at Fairvrw

Developmental Center is thai regional centers go afier clients who have little farruly

involvement, targeting these individuals who are incapable of expressing rcsiden.ia]

preferences for community placement.

William Cable, M. D. Adverse Action Noricc Page 3
* L2ter, curing the meeting, you stated you were oppostc to Cynthia's placement ::

the com.-ur.iry. However, your opposition was based on unspecified mcdica

reasons. A Asain during ihe meeting, you were hostile towards Rebecca Hegelscn o:

Independent Options, Inc., and insinuated that nuking money was ihs sole purpose

of the organization.

,

5 Finally, you staled that the mortality rate for Fairview clients was higher in the

community than at Fairview Developmental Center.

You knew, or should have known, that on April 18, 1996, it was not your role as a member of the Interdisciplinary Team to question the comre:=nce: or attempt to demean, regional cen'er staff, care providers, or regional project stall.
ID addition, you knew, or should have known, that the regional center is responsible for identifying an appropriate facility to provide residential services for individuals who leave Fairview Developmental Center. Your conduct demonstrates your disregard of the Department's wellestablished goal of community placement of clients.
Additionally, your behavior on April ] 8, 1996, is indicative of your failure to give the public proper service, and is considered discourteous treatment of the public.

William Cable. M. D. Adverse Action Norice Page 4

Finally, you: actions en April 1S: 1996 brough; ciscnih to FaL-visw Development Q-ncr,

and art considt-id other fiibres of good behavior.

' '

Basse upon ail of the above facts. r:;ar,agernen; h^s deierrnintd i; necessary io like ."_'s acricn for an official reprimand.
IV RIGHT TO RESPOND TO APPOINTING AUTHORITY
As an z—.dlcysi »vJ" pcrmir.sn: civil sen-'ice 5^:-^: you arc c;jii-Jid io five (5) ^ c r k b g c!*ys v.Vuhin which -C rs?oc-nd io "Jrs notice. YCJ —sy respond either oraj'y or in writing io Hugh KchJsr, Exscuti%e Dirs-:or: Fai.~-itw D:vf]cpm;r.'.2J Ccnisr. Ycu are e.vJi'sc to £ ri^sonabls anjouj:: of 5121e t i n : to Drssare voir response to the chxzzs. You. art not entiiJed io 2 fomia! htarlng with txamii-ation of v^tnesses at ihis stige of the proceedings. However, you —zy be represented by another iz presenring you: response. This appointing power may amend, modify, or revoke any or all of the foregoing charges, inducing the adverse action.

RIGHT TO APPEAL TO THE STATE PERSONNEL BOARD
Regardless of whether you respond to these charges to the appointing power, you are advised that you r,2ve the riaht to file a wrincn answer 10 this notice with the Slate Personnel Board, 801

William Cable, M. D. Adverse Acrion Notice
5 Capitol Mall. Sacramento, California 95S14, not later than thirty (30) days aner service of this notice. If this notice was personally ser\--eo or. you, the effective date of service is ihe cay tha: it was "iven to vca if service on you was .~ade through the —ail, service was erTeciive on the di:t of —ai!ir>£ as ascertained by the postmark.
An answer shall be deemed to be a request for a bearing or investigation as provided in Section ]?5~5 of ihe Government Code. If you file as answer as pro\-ided. the Board cr its aurioriiid representative shaJl. within a reasonable time, hold a hearing a-jd snail no'iiy the paniss of the time and place thereof. If you faii 'o answer within the time specified, the adverse sc':on taJ<en by \r,t appoin'dng power shall be final.
VI RIGHT TO INSPECT RELEVANT DOCUMENTATION
If vou desire to inspect any documentation that is on file relevant 1o the above charges, you may do so by ccntactinE Karen Stamp, Persorune! Onicer. Please note thai your right to respond in wnt-ng to your appointing power authority is separate and distinct from your forma) Stale Personnel Board appeal rights which are explained in paragraph V above. You .-ay exercise both rights as long as you do so within the limits provided.

William Cable, M. D. Adverse Action Notice
Documentation: 1. Un-r dz\iz April 22: 1996 (3 pages) 2. Lcnsr dated April 50, 1995 (2 pages)
Dr. Ta.n-r:gus^4/ ^ .Medical Dirscjdf Fcin!is">v Dsve'opmer.ic! Csntsr
L.Vbl cc: Slate Pcrjc-jd Beard Hiring Office
DDS/ Labor R;:2-Jor.s Branch Linda As.dzrsz-n, Labor Relsticr.s Cocrdinaior

Memo

T*--
IV.

T ;i;_ T

T?:

\M r\

i_JHU lilU-I'iUUClUU, LVL.U.

Medical Director, Fairview Developmental Center

From: William Cable, M.D. Physician, Program 4

Re: Placement of Valdina Robinette into a community residence

Date: June 21, 1996

On June 19th the exit conference concerning the above client was held with , the interdisciplinary team on Program 4. Others present included a representative
San Diego Regional Center, "Todd", SCRP, Mr. Chuck Neal, and members of the Velasco Homes, Louis and Kathy Terados into which Valdina is scheduled to be placed. Many medical issues came up at the meeting which were of concern to me. Others at the meeting also expressed concern. These concerns had previously been discussed at the pre-exit meeting and with Program 4 administration. Valdina has a history of behavioral problems for which she has been living on the Behavioral Unit at Fairview. These include chronic pica with brush bristles, rocks, strips of sheets, etc., which has resulted in serious medical problems in the past. This year alone she has been admitted to the FDC Infirmary twice and has been transferred to the UCI Medical Center. She has a history of compulsive behaviors, smearing feces. and getting up at night wandering and stripping other beds. She has been aggressive and can hit and kick al times and has suffered broken bones. There is a history of an intracardiac conduction block. She has needed a jump-suit in the past. She has spent most of her life in an institution, from 1954 -1959 she lived at the Porterville Developmental Center, and from 1959 to the present she has lived at Fairview. In recent years she has lived in a locked facility. Her conservators, San Diego Regional Center staf£ visit infrequently, and do not appear familiar with her problems.

The following information about her new home was provided by Louis and Kathy Terrados representing Velasco Homes. The level 3 communty home to which she is going is not a locked facility. The windows are glass, not plexiglass. She has one caretaker, Thclma Domingo who has not had special training in mental retardation behavioral problems. There may be as many as 5 other clients in this facility with one attendant There is no behavioral specialist present in the home. Dr. Martin Linder, a family physician, provides medical care, but there are no scheduled visits by him to the home. A psychiatrist or psychologist may visit the home once per month.
In summary, there is a clear and present danger to Valdina living at the new home. These concerns were discussed frankly with, the representatives ofSCRP and SD Regional Center who chose to discard them. As Medical Director at purview please advise me what you recommend should be done. If Valdina is <. charged how much of this information should be placed in the discharge summary?
A speedy response is requested as she is due for discharge June 29th.

FAIRVIEW DEVELOPMENTAL CENTER MEMORANDUM

To: From: Date: Subject:

Karen Larson Program 4 Director
Paulette Goncales Program 4 Nursing Coordinator
6-24-95 '
Placement of Valdina Robinette into a Community Residence.

The team applauds the tremendous strides Valdina has made in the Dast few years. We would also hope that in her new home she will continue to receive the supervision, medical support and consistency in training that will allow her to be successful.
In response to the memo dated 6-21-96 from Dr. William Cable to Dr. L i l i a Tan Figueroa several of the team members agree that i t i s an accurate picture of Kiss. Robinette. Dr. William Cable feels there is a "clear and present danger" to l i v i n g in t h i s home. I do not feel that strongly, but the team and I certainly do have serious concerns regarding her supervision, especially at n i g h t , when she will have access to the kitchen, food (is on diced d i e t and has choked twice this year), stove and e x i t doors. She i s often up at night.
Thought might be given to a home that may provide a more structured environment in which she will be successful.

cc:

Lou Sarrao

Bethel Reeves

State C' California— Health and Welfare Agency

ROSINETTS,

FDC #0266 - R e s . 4 4 3

6 / 2 5 / 9 6 MEDICAL DISCHARGE SUMMARY

Department of Developmental

aspiration

CDER DIAGNOSIS

Profound mental r e t a r d a t i o n , cause unknown. 1Q: 1 1 .

.ve

DSiicVicr T 3z"oxounG , S jp I J. S p S gran*i m

HISTORICAL DATA

Valdina was born 4/13/46 in San Diego, California. Valdina's mother

had nine pregnancies with 5 miscarriages and 4 surviving children.

Valdina was born at full term and appeared normal at birth. At 7

months, she developed seizures and was diagnosed as having epilepsy.

She sat up at 6 months and walked at age 4 years. She spoke a few

words at age

3ehavioral problems posed a great' problem for the

i ami •1

m-_ - _ _

» . x ucse

aea ref using L O "*e m ain cresscG / pe r ac 1V1 L y /

rm des <-jr

tr atclun, i Ullll.^11^ c n c J' / c c

and cl i m b i n g over 9a tes

The amily was onir na X

c . . _ _ • _ 1 _ •>- -
UliCUlC l-W

_ i V a J.U 1

rtii-L C11 s u u s e c uent iy esu.X l_cd 111

uO r w X I.ex V 1 J. l e n us

in 1954 aitt agee 88years. While at Porterville

.lieu anc

C c i i u i i L i S u i i i u i i i . a i m i / i / J J C i i u a i u u s u x ^ . u ^ s c u i . c x j ' 3 / ±\j / u > .

uu

3/14/58, she was again hospitalized for acute amoeoic colitis.

Laceration of right ear on 2/19/55. No medication history prior to

admission to Fairview is available. Seclusion was utilized on

numerous occasions while at Porterville. Her official diagnosis at

rort£~vixis on .i. / 3 ™ was '

-2 /

undifferentiated due to defective fetal development, symptomatic

epilepsy due to definite brain diseases (agenesis), generalized

seizures, grand mal.

COURSE AT FAIRVIEW & CONDITION AT RELEASE
Valdina was transferred from Forterville State Hospital and admitted to Feirview Developmental Center on 3/11/59. She was eventually placed in Program 7 (now Program 4) 6/30/68.

SIGNIFICANT PHYSICAL CONDITIONS/ILLNESSES WHILE AT FAIRVIEW Constipation: Problem opened 2/10/82. Problem closed 12/16/86.

She received birth control Dills due to menstrual irregularity frcm 2/10/82 to 3/4/82.

Continued-on Page.

SUMMARY

•(J Discharge/Transfer

L H Release

• Other

.

CONFIDENTIAL CLIENT INFORMATION

' P t S < 43

f:'c c o h ' s l - VALO3HA C .

0 3 / j ] / . '•• 3 D C 3 / - J / C : : Cfi t'l 6 5ittf33

* " ^ <; -> 5
JUDH
62

RCBINETTE, Valdina FDC #0266 - Res. 443 Fage two 6/25/96 MEDICAL DISCHARGE SUMMARY— ( continued ) History of b i l a t e r a l fibroid cysts. Received mass treatment for amebiasis 9/2C/S2. She has r e c e i v e d a t least 15 l a c e r a t i o n s while a t Fairview. Left shoulder pain with'decreased range of motion. Problem opened 8/22/83 and closed 9/19/83. Finworms: She has been infested at l e a s t 10 t i m e s .
o / o i ion
i^ v S i n ' s . i ^ i . i i i c a D / i J ; Q J L i i i u u u i l ±\J j i. I 3 -i .
-k ToCturS FTixQ S i i c l t OX L"IC SCCOUG iTictaCcrpax r i c n t naliU 9/ i 9 / uu.
Left lung collapse secondary to foreign body obstruction 3/18/83. Fracture of r i g h t huir.erus 12/5/94. History of EPS 3/6/89 through 5/29/90. Impetigo 3/26/SO. Kyperlipidemia from 6/12/90 through 5/2/95. Respiratory infection 3/1/91, 11/22/91 and 8/1/95. Ski'n infection 11/6/92 and 12/21/93. Anemia 3/3/93 through 5/2/35. Kernetoma 7/31/93. Weight loss 5/4/34. Pneumonia 2/23/9 6 through 3/2C/96.

p rs *«3

1

ro?«Ifc-»TTr. VA'.DINA C,

PVL '

: r-C CCOJ-JS-7 F -H C 4 / 1 3 / 4 6

r * / M / ' " ? so hp ^sse

P

O.1. /7 1 / * e OR JO'OH

R03INETTE, Valdina 7DC #0266 - Res. 443 Page three 6 / 2 5 / 9 6 MEDICAL DISCHARGE SUMMARY—(continued)

CURRENT MEDICAL FR03LEMS

•

Epilepsy: Valdina has had 8 seizures since 3/18/89. The 19S9 seizure occurring during an aspiration episode. All seizures are generalized tonic-clonic type. Previous recorded seizure was on 7/20/51. She
f i c s c i i L l ; J - C _ C J . V C 5 i c u i C L U l XTUU l i l y f c ^ u c / . n i l i l u u u v u i S s i i L x c v c x W U
2 / 1 / 9 5 was 7 . 6 . Normal.being between 4-12. Last ESG 11/3C/S7 was norir>cj. witij no epiieptitorm discharges.

Public d i s r o b i n g : She receives no medical i n t e r v e n t i o n a t t h i s time (see psychological ciscnarge summary dated 6/17/36). Jump s u i t s have been worn in the past.

•relent loss: neignt nas ij.ucuuai.9ci between xO; pounuS and I 3 J po since it/l/u7. ricScfiL weignu ±£.*. 1/^. pouncs. RecoiTimenGeu weignt range 115-125 lbs. She receives a general diced triple high density

/^ mux11vitarnin wi~n rnmeraxs \.s.u one po is civsn uaixy

t_ £ 1
Fage t h r e e 6/25/96 MEDICAL DISCHARGE SUMMARY—(continued )
r ' o c i a t r y : H i s t o r y Cx ingrowji r i g n t g r e a t t o e n a i l . uzsz. P o d i a t r y C l i n i c 9/13/95 f o r reduction of mycotic t o e n a i l s and r e d u c t i o n of ingrown t o e n a i l . She r e c e i v e s g r i s e o f u l v i n 250 mg a t 0800, 1200 and 2000 hours d a i l y for c h r o n i c fur-gal n a i l s . SGOT and SGFT on 4 / 2 / 9 6 was within normal l i m i t s .

H i s t o r y of choking: Prevention of p i c a b e h a v i o r by s t a f f c o n t i n u e s . Diced d i e t w i t h soaked bread continues and e f f e c t i v e t o p r e v e n t c h o k i n g . As p r e v i o u s l y mentioned, h i s t o r y of l e f t lung c o l l a p s e secondary t o f o r e i g n body o b s t r u c t i o n 3 / 1 8 / 8 9 .

DISEASES OR CONDITIONS NOT REQUIRING TREATMENT AT THIS TIMS 1. P i c a , chews on s t r i n g s , magazines, r o c k s , c l o t h i n g , e t c .

2. I n t e r m i t t e n t c a r d i a c arhythmia: Last EKG on 1 1 / 3 / 8 9 w i t h

"prolonged QRS d u r a t i o n , otherwise w i t h i n normal d e v i a t i o n .

P r e v i o u s t r a c i n g s u g g e s t s prolonged' CRS. May be due t o

incomplete right bundle branch block."

*"'•*'

• i

PCS

44 3

P C - P I N ' T T E , V A L D I N A C.

P

f - C C C O : fct-7 F WM C 4 / 1 3 /

«.'" I /I 1 / • * r-D MP 5 2 5 8

V I G ? 1 '-. f» 3 3

6 2

ROBINSTTE, Valdina FDC #0266 - Res. 443 Paae four 6/25/96 MEDICAL DISCHARGE SUMMARY— (continued)
OTHER MEDICATIONS RECEIVED WHILE AT FAIRVIEW Mebendazole 100 mg po (pinworms), cephradine 250 mg cid, ibuprcfsn (dysmenorrhea), polysporin ointment, povidone solution, urea lotion, diazepam injection 10 mg IM, haidol, chloral hydrate 3 gm po (sedation), i~orphine sulfate 8 rng, atropins 0.3 mg 250 rnc sodium, thiopental with additional 175 mg sodium thiopehtal for cental Scuation 1/ 7/ 94, nor etnincrone 1 rng anu mestrancj. u. u5 me. \ ^.1 cay cycle),' and birth control pills, Dilantin, phenobarbital, primidone, isrrous sul^ate 3^.4 rng uiu with nieaxS, ascorbic acid, Dulcclax suppository, fleets enema, Sisacodyl tabs, Cloradryn, Guaifenesin syrup, Cogendn, lococjumol, BaCunm, and viuornin E.

SIGNIFICANT LA3 FINDINGS Stool for ova and parasites on 4/4/96. No pathogens.
S.MA 20 on 4/2/96 within normal -limits except alkaline phosphatase was 129, normal being between 42 and 121. LDH was 211, normal being between 91 and ISO. Cholesterol was 3C4, normal being under 200.

^^w on T/l/36 w i t n i n normal ^liuiuS excepu A 3 C -r.u/, n o r m a l ueing
between 4.2 and 5.4.

Rectal, swab on 3/11/96 was negative. Swube paddle on 3/'ll/36

negativs.

.

KBsAg nonreactive, anti E3s reactive, anti K3c reactive on 12/1/95. Urinalysis on 11/13/95 within normal limits. Swube paddle test on 11/13/95 positive for pinworns.

Last gynecological exam 1/7/94 was normal.

E0BIN2TTE, Valdina FDC #0266 - Res. 443 Page four

6/25/96 MEDICAL'DISCHARGE SUMMARY—(continued )

Last retinal exam on 3/30/90 normal.

Last dental 6/24/96 with extraction of #29.

ALLERGIES

•

1. Mellaril (water intoxication dated 8/14/90).

'"'

r, V"f-V::

PT S 4 O

P ' . f U ' l T T ! . VALDI^A C.

PVL

FTC C 0 C T £ € - 7 r wh

C 4/13/46

C . L ' / l 1 / ' 9 SO HR 5 2 5 P

P

LZ/I \/'.'-• OR

JUCH

f I 6 '«• 1fcfe3 3

f- 2

X

ROBINETTE, Valdina FDC #0266 - Res. 443 Page five 6/25/96 MEDICAL DISCHARGE SUMMARY— ( continued )

2. Bactrim/erythro.-ycin (rash on 2/29/96).

ADAPTIVE EQUIPMENT

Jump suit laced and tied in the back to prevent disrobing was

discontinued 3/19/36 and presently with no adaptive equipment usage.

Concerns at the exit conxerence Gated 6/^1/96. VaxGina has a History

of behavioral problems ,for which she has been living under the

behavioral unit at Fairview. These include chronic pica with brush

bristles, rocks, strips of sheets, etc. and as previously mentioned,

which has resulted in serious medical problems in the past year. This

year alone, she has been admitted to Fcirview Developmental Center

infirmary twice and has been transferred to the UCI Medical Center.

She has a history Oi compulsive ususviors Oi. smearing xeces anu

getting .up at night nc wanuermg anu stripping ctusr uses. She has

sen aggressivs ihere is a History

an mtracarcisc conouccion

nas needed a

Sue uas soen i. o e n i " • — • - •

~~

-=?-

•:-= ?T^

an institution. 1954 to 1959, she lived at the Forterville

Developmental Center and from 1959 to the present, she has lived at

Fairview. In recent years, she has lived in a locked facility.

Dr. Martin L m d e r , a family physician, provides medical care at his

oziice out tuere are no sciiSGUieu visits uy i:im cO tn£ uome. ^

psych'iatx"ist or psycnclocist rnsy visit tns home once ssr month.

RECOMMENDATIONS 1. Periodic liver enzyme screens while receiving griseofulvin for
onychomycoses. 2. Diced or other appropriate diet including soaked bread to prevent
choking/aspiration. 3.- Periodic C3C and SMA's while receiving Tegretol to rule out blood
dyscrasias. 4. Behavioral specialist to observe and recommend proper behavioral
interventions m regarGS uo pica, insomnia, oeu, stripping, smearing, etc.

Pete Metchikoff, R.N.P. PM: ko DD: 6/24/96 DT: 6/25/96

L. T a n Figufefcrafe, M.D.

'••'• / ! ! • « • • • . 50

IKA C. J >J C H

Memo
To: I.ilia Tan-Figueroa. M.D. Medical Director. Fairvicw Developmental Center
From: William Cable. M.D. Physician. Proeram 4
Re: Placement of Valdina Robincttc into a community residence.
Dnfc: June 26. 1996
On June 24th a memo was sent to you requesting guidance on the discharge jf the above client. So far neither the program 4 office staff nor I have received my response. Valdina is scheduled to leave today. The concerns for her health md safely remain. An Medical Director al Fairview, please advise me what you ecommend should be done. If Valdina is discharged how much of our concerns -hoiild he placed in the discharge summary?
An urgent response is requested.
Procram 4 director

FAIRVIEW DEVELOPMENTAL CENTER INTRAFACILITY MEMORANDUM June 26, 1996

To:

Dr. William Cable

Staff Physician

From: Dr. Lilia Tan-Figueroa Medical Director

Re:

Placement of VaJdina Robinetle into a community residence.

Per your request, and after soliciting input from your Program Management and your ID Team, may I suggest that you be as thorough and precise when addressing the medical issues of your clie'nL Emphasize medical conditions that are of concern to you and include all therapeutic modalities that had been successful in your experience caring for this client. When you are making your recommendation, I suggest that you enumerate all the medical concerns that you have with the specialist and time table for follow-up. Be as specific as possible to the therapeutic intervention and environment that will ensure your clients' health and safety.

I have enclosed the format for the Discharge Summary' (medical) to help you remember certain key areas when you are doing your dictation.

LTF/sd

.OUTLINE DISCHARGE/TRANSFER SUMMARY (MEDICAL)

D i c t a t e one week p r i o r to release. One copy acconpanJ.es c l i e n t t o .placement f a c i l i t y . _ _ _ _•

I. II. III. IV.

IDENTIFICATION
A. Naae ' B. Fairview nuabeT C. Prograa/residence D. Brief description of client

•

.

DIAGNOSIS A. Mental Retardation (level, due t o , e t c . ) B. Physical C. Adaptive D. IQ

HISTORICAL DATA A. Reason for admission (birth h i s t o r y , h i s t o r y of trausa., e t c . ) 3 . P h y s i c a l and Dental h i s t o r y prior1 t o a d m i s s i o n t o F.D.C. C. Medication history prior to a d n i s s i o n t o F.D.C.
COURSE AT FAIRVIEW AND CONDITION ON RELEASE A. Significant physical conditions/illnesses: 1. While at F.D.C. (include nutritional status, dental conditions) 2. Current physical condition (includes nutritional status, dental conditions) 3. Current nedical problecs and treatment

B. Medication received vaile at F.D.C. 1. Effectiveness 2. Include behavior medications and side effects
T. Significant lab findings
1. During stay at F.D.C. 2. Current lab findings

D. Allergies
1. Include allergic reactions to Dedications
E. Adaptive equipment used in past and currently in use 1. Wheelchair, feeding pump, braces, g l a s s e s , etc.

Page 2

OUTLINE DISCHARGE/TRANSFER SUMMARY (MEDICAL)

V.

RECOMMENDATIONS

A. Specific recoTsaendations f o r future programming and follow-up

services

1. Medication

2. -Diet

3. Physical needs and considerations (blind, deaf, etc.)

4. Need for follow-up treataent services

(such as dental care, physical therapy, ongoing treatment of diabetes, e t c . )

VI.

DATE OF DISCHARGE/PLACEMENT

VII.

TIPS OF PLACEMENT A. 6-aonth provisional placeaent B. Direct Discharge C. Transfer to another state facility

' ,

VIII. IX

If client is discharged against facility recosaendatioas, add

A. Reason for discharge

B. Evaluation of appropriateness of reason

«

FOLLOW-U? SERVICES: tiaae of (Regional C e n t e r , case w o r k e r ) , naae of

(Regional Center), address and telephone nuaber of (Regional Center) v i l l

be r e s p o n s i b l e for providing follow-up s e r v i c e s ensuring prograa

c o n t i n u i t y . Vt.'' ' . . - 1 "nn

V ~c - ^ n ^ > ' - ?[f i _ . L r . L , te.Lrri.a",

FAIRVIEW DEVELOPMENTAL CENTER
2501 Harbor Blvd. Costa Mesa, CA 92626
(7\4) 957-5000
Memo
To: Raymond Peterson, M.D. Executive Director, San Diego Regional Center
From: William Cable, M.D., Proeram 4 Fairview Developmental Center
Re: Deletion of Information in the Medical Discharge Summary
of Fairview client Valdina ( Date: July 14, 1996
Valdina j|sg$ggfi| is a 50 year old severely retarded woman, conserved by the SD Regional Center, who has spent most of her life in an institution. She was discharged on 6/26/96 to a community residence despite concerns of the Fairview Residential Team tha; the placement was not suitable. Despite this, her case coordinator Mr. Todd Lordson authorized her transfer.
I have been VaJdina's treating physician for the past 18 months. She has significant health problems. Unknown to me, my discharge summary for VaJdina covering these concerns was altered to remove problems I had identified and signed by another physician, Dr. Lilia Tan-Figueroa, who had never examined or treated Valdina, • and did not know Valdina's health problems at the time. Valdina was thus discharged wit. an incomplete summary of her situation.
The-deletion was made clumsily, such that the concerns of the exit conference appear on page 4 of the discharge summary under the heading "Adaptive Equipment". (See highlight area)
There are two issues of concern in this matter. 1. Unacknowledged altering of a medical record. 2. The staff at the community home do not have a complete record to adequately care for tlus client. It is alarming that key information was denied to the community staff caring fo Valdina. Who would be responsible for this omission if Valdina should become ill?
I have enclosed a copy of the information that was deleted from the discharge summary so that your staff may be more fully informed about the needs of this client.

Ccncsnu r£scd at tin: Exit Conference en Valfffna
c: Jxxzcll, 1996
a history of behavioral problems for which sin i n s been living on the Behavioral Unit at Fairvicw. These include chronic pica with brush brisdcl, rocks, scrips of sheets, etc., which hzs resulted in serious ctdicaJ'prcHc=3 in''*h* past This year slone sbe has been admitted to ihc FDC I j f a a y tvrica znd L15 been utniferrcd to the U Q Medical Ccntsr. She h a * history of cxnupuisivs bchzvian, cncarrig ftccs, cad getting up at nighl ^-asd^ring and striping other beda. She has been aggressive cid can hit siid JdcJc it DIDCS and his rjffercd broken booes. There 15 a history of 23. intraczrdiic ccoiicticm block. She has needed ajuinp-suit in the pajt. Shs Haa spen! E2D5t of her life in sa inxtituHon - from 1954 - 1959 she lived *t the PortavfllelVv-ciopECitsl Center, sr.d &cca 1959 to the prescat sha has ifvod el F n m e w . la rcccct yean she has L'ved in a locksd fzz
" F r c a Lotus and Kaihy Tcmtdos of Vcksco K o m « we l&amed thai oinfi is a level 3 community facility- She is not in a locked facility.
The wmd'DVr-j arc ghss, nol p l e d g e s . She I m one czrcfrJrrr, Tlvdna Domingo Vr-ho h i i not had special training in. msit2j rctadarion behavioral problcii. Valdina will be one of as many as 5 other clicats in this fiidEty ^•sh on* ittcndznl. Tba ztttoisnt Jleq>s al lie heme ai nigiiL There err no awake nigM staff to obscrv-T: her zai prevenl injuries**.
There is no behavioral specialist present in the home. Dr. Martin Hinder, a family physidza, pro*.id« medjcal csrc at his oSce, bat there are no scheduled visits b>' him to Ths home. A psychiatrist or psychologist may the hcant oocc per nonth.

Diego
Regional C e n t e r for the Developmental^ Disabled

•!355RuffinRcvid.Siiiii-20-1. S.inDifj;o.C«!iforn;flV2123-)(>•;« • (CIV) 576-2996 Telccomrminicaiion Device for ihc Deaf ( T D D ) • (f.l9) 2V2-5H2I

j

July 23, 1996

'•

Hugh Kohler, Executive Director

Fairview Developmental Center

25 01 Harbor 3oulevard

Costa Mesa CA 9262 6

Dear Hugh:

Enclosed i s a memorandum and attachments, from a Fairview Develop-

mental Center physician, regarding Valdina R^y^j^j^a, received en

July 19.

•numr.j

After receiving the memo, I spoke with Regional Center s t a f f who have been involved in the placement and s u p e r v i s i o n of Hs. R£3£SS5£ and, a t my request, Dr. Howard Wolf inger ,• Chief of Medical Services and Mr. Ron Royer, Service Coordinator, v i s i t e d Ms. Rg3SS9§§| a ^ n e residence in the Crowe Home (ARM level 4) in El Cajon on the evenir cf July 19. I t was t h e i r determination t h a t t h e placement i s apprc p r i a t e and that Ms. F . ^ ^ ^ ^ s needs are being m e t .

Our primary concern is for Ms: Ros«£s>*s«e*»"s health and safety and th assurance that her move to San Diego will r e s u l t i n a s t a b l e , quality living arrangement with program to meet h e r needs. As Ms. KrfSSSSH* is a conservatee of the Director of Developmental Services, there is a special duty to make certain t h a t her rights are protected. Dr. Cable's allegations t h a t the medical record and the discharge summary were altered, and h i s statement t h a t information was denied to ccrjr.unity staff caring for Ms. R~ESSraS55a«, are serious and need to be addressed.
I would appreciate your reviewing t h i s matter t o determine the basi. of Dr. Cable's statements and to resolve any areas of error or cmis sion. I t may be appropriate t o notify the Director of Dr. Cable's l e t t e r regarding his conservatee and the actions t h a t have been taken.
Thank you for arranging follow-up. Please l e t me know if you have questions, or if you would like additional information.

Sincerely yours,

Raymond M. Peterson, M.D. Executive Director
RH?: jb(adaia/5oia/desk/daiiy/kohler.ltr)
xc: Judy S. Borchert Ron Royer Howard L. Wolf inger J r , M.D. Judy Wallace-Patton Christina Engel Brewster, Consumer Rights Advocate

FAIRVIEW DEVELOPMENTAL CENTER INTRAFACILITY MEMORANDUM July 31, 1996
To: Mr. Hugh Kohler, Executive Director, Fairview Developmental Center
From: William Cable, M.D., Program 4
Re: Alteration of the Medical Discharge Summary on Fairview client Valdina Robinette
I was Valdina's treating physician prior to her being transferred from Fairview to a community home on 6/26/96. I had cared for Valdina for the past 18 months and knew she had significant health problems which raised serious concerns about her suitability for community living. These concerns were discussed with her new care providers at the exit conference. Despite the risks she was discharged. The discharge summary was prepared and included my concerns about her community residence. Unknown to me, at the time of discharge, the discharge summary I had prepared for Valdina covering these concerns was altered to remove the problems and signed by another physician, Dr. Lilia Tan-Figueroa. Dr. Lilia Tan-Figueroa had not examined or treated Valdina and thus could not know, or understand the concerns about Valdina's health problems. Valdina was thus discharged with an incomplete summary of her situation.
There are two issues of grave concern in this matter. 1. Unacknowledged tampering with a medical record is a criminal offense. 2. The staff at the community home were denied information about the risks of her placement, unnecessarily jeopardizing her health and welfare.

I I I
|: jg," $/
I; .
*;
I

As you are aware, the mortality rate is higher for individuals with mental retardation who have been transferred from California Developmental Centers to the community, and we have unfortunately seen Fairview clients die after discharge. In these circumstances it is especially alarming that key information was denied to the community staff caring for Valdina. Who will be responsible for this omission when Valdina becomes ill?
Please indicate how this matter should be handled as the legal ramifications are pressing. I believe there is also a violation of Title 42. I do not know if Dr. Tan-Figueroa alter the record alone or at the instigation of others.
Your response is awaited.

ST.
B
$
£'

FAIRVIEW DEVELOPMENTAL. CENTER INTRAFACILITY MEMORANDUM August 7, 1996

To:

William Cable, M.D.

From: Hugh Kohler I Executive Director

Re:

Your Memo of July 31

I received your memo of July 31 on the topic of alleged alteration of the medical discharge summarv of Valdina Robinette yesteida}'. Please be advised that the information and allegations in vour memo are already under review. Dr. Raymond Peterson. Executive Director of San Diego Regional Center, kindly provided me with a copy of your July 14 letter to him. Immediately upon Dr. Peterson brinsina these matters to my attention, I asked our Special Investigator, Stephani Valencia, and the Clients' Rights Advocate. Jeffrey Heifer, to independently review your allegations. In addition, Ms. Valencia, on consultation with the Department of Developmental Services in Sacramento, has referred the matter to the California Medical Board for their investigation. Fairview had thus taken all necessary steps to fully evaluate this situation long before you brought the matter to my attention on July 31.
P!e2se be further advised that you will be held personally accountable for your failure to follow department and Fairview policy with regard to the unauthorized release of confidential client information, as well as the accuracy of the allegations, information, and materials you inappropriately provided to Dr. Peterson. Your letter to Dr. Peterson being printed on Fairview letterhead suggests that you are communicating to him in some official capacity, when in fact your correspondence was unauthorized, unnecessary, and inappropriate, and resulted in the regional center wasting considerable time, energy, and manpower investigating a situation that they already well understood and were fully conversant with. Ms. Robinette has made a successful transition back into her home community and continues to do well there.
In conclusion, your behavior in this matter is most disappointing and highly unprofessional as a staff physician at Fairview Developmental Center. You have shown your disdain for Fairview administration and continue to demonstrate through your behavior .that you feel the rules and policies established by Fairview and the Department do not apply to you. Tne tactic you have chosen, of bringing your concerns to the attention of Dr. Peterson without informing me first or even providing me with a courtesy copy of the letter, I find personally affronting; it shows again the disregard and disdain that you have for the administration at Fairview. Your behavior in this instance is unacceptable and is under review by management. If you engage in similar conduct in the future, you may subject yourself to adverse action for the incident cited in this memo as well as any future incidents.

HFK/lsh cc: Dr. Lilia Tan-Figueroa
Tom Camarella Betti Dolezal

Fairvicw Developmental Center Memorandum

HughKohler, Executive Director
Jeffrey Heifer, Rights Advocate Stephani K. Valencia, Special Investigator

DATE:

August 09, 1996

SUBJECT: Valdina

Exit Conference and Medical Discharge Summary

The concerns raised rtgardmg Ms.

transfer to a community home included the tampering

~

d e n i e d p e r t i n e n l information. Afler

our findings are:

- *****—FDC

"—

1.

community transfer process. 2.

the community placement.

It does not a p p . that any rights of the ^ d u a ^ r e i n « o n

transfer proems.

g^^

R e U e of Information, and

thereby may mfiinge on the nght of Ms R t f H I ^ b e ^ t h c r e a D p e a r s l 0 b e violations or the

infomation and records, disclosure, and consent. We agree additional inquiry may be needed to address the above issues.

r

i

FAIRVIEW DEVELOPMENTAL CENTER

2501 Harbor Blvd. Costa Mesa. CA 9262S
(7U) 957-5000

October 2, 1996
NOTICE OF ADVERSE ACTION

William Cable, M. D. Physician and Surgeon Fairvicw Developmental Center 2501 Harbor Boulevard Costa Mesa, CA 92626
Home Address:

• SSH
Original sent by certified mail Copy sent by regular mail

NATURE OF ACTION
YOU ARE HEREBY NOTIFIED that pursuant to Govemment Code section 19574. you are Suspended for ten (10) working days in your posilion of Physician and Surgeon with the Department of Developmental Services, Fairview Developmental Center, effective at the beginning of vour shift on October 15,1996 and concluding at the end of your shift October 28, 1996.

II STATEMENT OF CAUSES
This action is being taken against you for the following causes specified in the following subsections of Government Code Section 19572:
(c) Inefficiency

STATE Of CAtffOaWIA—MEAITH AND >VflFA« AGfNCY

WIISOK.

William Cable, M. D. Adverse Action Notice Page 2
(d) Inexcusable neglect of duty (f) Dishonesty (m) Discourteous treatment of the public or other employees (r) Violations of the prohibitions set forth in accordance wkh Section 19990.
Section 19990: "A stale officer or employee shall not engage in any employment, activity, or enterprise which is clearly inconsistent, incompatible, in conflict with, or inimical to his or her duties as a state officer or employee.
c) Using, or having access to, confidential information available by virtue of state employment for private gain or advantage or providing confidential information lo persons to whom issuance of the information has not been authorized. (!) Other failure ofgood behavior either during or outside of duty hours which is of such a nature that il causes discredit to the agency or the employment
III STATEMENT OF FACTS
You were appointed as Physician and Surgeon at Fairview Developmental Center on May 9, 1994. You arc currently assigned lo Program 2 and 6 at Fairview Developmental Center.
The causes set forth in paragraph II above are based on the following facts: 1. On July 14, 1996 you sent a letter lo Raymond Peterson, M.D. Director of San Diego

William Cable, M. D. Adverse Action Notice Page 3
Regional Center. In this letter, written on Fairvjew letterhead, you held yourself out as a

medical representative of the facility charging that Fairview allered and withheld key client

record information in discharging client, Valdina R. to a community facility.

2

In this lerter. you also charged that Fairview or its representative employees deleted from

Valdina's discharge summary concerns and problems identified by you as her treating

phvsician, and authorized another physician, Dr. Lilia Tan-Figueroa to sign the discharge

* *

/

/

summary although Dr. Tan-Figuerca never examined or treated Valdina or knew of her

health problems.

You knew or should have known that the information you claim was dcleied from the

discharge summary was actually a description of the community facility placement

mentioned during Valdina's exit conference, and that this information was not appropriate

for the discharge document. Further, the facts contained in the information you claim was

deleted was not known by Fairview to be accurate.

3. In the same lener you claim thai Valdina was discharged by Fairview despite concerns from

her treatment team that placement was not suitable. As a member of this team you knew or

should have known that ihe team decision was that Valdina's community placement was

proper and in her best interests.

4.

Ih.this same letter you accused Todd Lordson, Valdina's case coordinator and a Regional

Center employee of authorizing the discharge against the treatment team's recommendations

and advice. As a member of this team you knew or should have known that the transfer was

not against the advice of the team.

William Cable, M. D. Adverse Action Notice Page 4
You knew or should have known that the serious charges you made against Fairview could bring discredit to the facility, its employees and to the Regional Center employee. You farther knew or should have known that your actions under color of your official caoacitv as a Fairview physician would be taken seriously by Dr. Peterson. As a direct cor.seauence of your letter Dr. Peterson found it necessary to review Valdina's placement with his staff who had participated in the placemen!.... Further, he requesied his Chief of Medical Services and the Service Coordinator to visit Valdina and re-assess her placement. It was their independent assessment that Valdina's beaJlh and safety needs were indeed met in her new placement. In your July 14. 1996 letter to Dr. Peterson, not only did you charge Fairview with intentionally altering the client record, you provided Dr. Peterson with a copy of the deleted section, in violation of Fain'iew's procedure for the release of client information. You knew or should have known that your release of information from VaJdina's record to. Dr. Peterson violated Fairview's policy number 2.3 "Confidentiality - Release of Client Information'" because;
a. You failed to obtain approvaJ for the release; b. You failed to note in Valdina's record what information was released; c. You failed lo place a copy of your letter in the client record; d Your release was made without a request for such information from the
Regional Center, or others who would be authorized to request additional information;

William Cable, M. D. Adverse Action Notice Page 5

Based upon ail of the above facts, management has determined it necessary lo tike this actior

for a len (10) working day suspension.

.

IV RIGHT TO RESPOND TO APPOINTING AUTHORITY
As an employee with permanent civil service status, you are entitled to five (5) working days within which to respond to this notice. You may respond either orally or in writing to Hugh KohJer, Executive Director, Fairview Developmental Center. You are entitled to a reasonable amount of stale lime lo prepare your response tc the charges. You are not entitled !o a formal hearing with examination of witnesses at this stage of the proceedings. However, you may be represented by another in presenting your response. This appointing power may amend, modify, or revoke any or all of the foregoing charges, including the adverse action.

RIGHT TO APPEAL TO THE STATE PERSONNEL BOARD
Regardless of whether you respond to these charges lo the appointing power, you are zdvissd that you have the right to file a written answer lo this notice with the Slate Personnel Board, 801 Capitol Mall, Sacramento, California 95814, not later than thirty (30) days after service of this notice: If this notice was personally served on you, the effective date of service is the day that it was given to you. If service on you was made through the mail, service was effective on the dale of

William Cable, M. D. Adverse Action Notice Page 6 mailing as ascertained by the postmark.
An answer shall be deemed 1c be a request for a hearing or investigation as provided in Section 19575 of the Government Code. Jf you file an answer as provided, the Board or its authorized representative shall, within a reasonable time, hold a hearing and shall notify the parties of the lime and place thereof, if you fail lo answer within the time specified, the adverse action taken by the appointing power shall be final.
VI RIGHT TO INSPECT RELEVANT D OCUMENTATION
If you desire lo inspect any documentation that is on file relevant ic the above charges, you may do so by contacting Karen Slump, Personnel Officer. Please note that your right to respond in writing lo your appointing power authority is separate and distinct from your formal State Personnel Board appeal rights which are explained in paragraph V above. You may exercise both rights as long as you do so wiihin the limils provided.
Documentation: 1. Peterson Letter daled July 23, 1996, one page. 2. Cable memo daled July 14, 1992, one page, plus Attachment, one page. 3. Kelfer memo daled August 9, 1996, one page. 4. Anderson memo daled August ] 5, 1996, four pages, plus Attachment, fifteen pages.

William Cable, M. D. -' Adverse Action Notice
Page 7

Dale

Dr. Tan-FiguergJa/ , ^

Medical Director

Fairview Developmental Center

LA/bl cc: Slate Personnel Board Hearing Office
DDS/ Labor Relations Branch Linda Anderson, Labor Relations Coordinator
Personnel

 
 317 F.3d 1080 (2003)
RICHARD S., Cynthia R., Valdina R., and Roes 1 through 2500, individually, and on behalf of all others similarly situated by William Cable, M.D., as Guardian ad Litem, Melissa Tisdale, by and through her guardian ad litem, Debby Tisdale, Raymond Masao Kawaguchi, by and through his conservator, Margaret Reade, Sheila Williams, by and
through her conservator, Essie Rogers, Philip Wilson, by and through his conservator, Betty Gray, and Roes 2501 through 5000, Debbie Tisdale, individually, and on behalf of the
California Association of State Hospital Parent Councils for the Retarded, aka (CASH/ PCR), Association for Retarded Citizens-California, aka, (ARC-CAL), Sacramento Association for the Retarded, Inc., aka (ARC-Sacramento), Plaintiffs,
Barbara Bell, Jeffrey Cason, Donna Plouffe, Self-Advocacy Board of Los Angeles, Autism Society of Los Angeles, Area IV Board, Intervenors.
Melissa Tisdale, by and through her guardian ad litem, Debbie Tisdale, Philip Wilson, by and through his conservator, Betty Gray, Debbie Tisdale, individually, Debbie Tisdale, on behalf of the California Association of State Hospital Parent Councils for the Retarded,
aka (CASH/PCR), Plaintiff-Appellants. v.
DEPARTMENT OF DEVELOPMENTAL SERVICES OF the State of CALIFORNIA, Donna E. Shalala, in her capacity as Secretary of the Department of Health and Human Services, Fairview Developmental Center, South Coast Regional Project, Harbor Regional Center,
Regional Center of Orange County, San Diego Regional Center, South Central Los Angeles Regional Center, Westside Regional Center, Clifford Allenby, as Director of the Department of Developmental Services State of California, Hugh Kohler, as Executive Director of Fairview Developmental Center, Lilia Tan Figueroa, M.D., as Medical Director of Fairview Developmental Center, Dawn Lemonds, as Director of South Coast Regional
Project, Defendants.
No. 01-56370.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 7, 2002. Filed January 29, 2003.
10812 *1081 *1082 Margaret M. Cahill (argued), Hardiman & Cahill, Costa Mesa, CA, for the plaintiff-appellant and intervenor-appellant. Patricia M. Lytle (brief), Law Offices of Herbert Hafif, Claremont, CA, for intervenor-appellant Melissa Tisdale.
Richard T. Waldow, Deputy Attorney General, Los Angeles, CA, for the defendants-appellees.
1083 *1083 Before: PREGERSON, THOMPSON, and WARDLAW, Circuit Judges.
PREGERSON, Circuit Judge:
This appeal involves plaintiffs' motion for attorney's fees. Plaintiffs are developmentally disabled adults and residents of Fairview Developmental Center. On March 29, 1997, they brought suit under Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1983, against California's Department of Developmental Services ("DDS"). After three years of litigation, the parties entered into a settlement agreement.

In February 2001, plaintiffs asked the district court to determine that they were the "prevailing party," and thus entitled to an award of attorney's fees and costs under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, and the ADA, 42 U.S.C. § 12205. The district court determined that plaintiffs were the "prevailing party" to a limited extent based upon a settlement agreement and based upon a finding that plaintiffs' suit was the "catalyst" for legislative change. Before the court awarded attorney's fees, the United States Supreme Court decided Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). In Buckhannon, the Court eliminated the "catalyst theory" as a basis for recovery of attorney's fees under the Fair Housing Amendments Act of 1988 ("FHAA"), 42 U.S.C. § 3601 et seq., and the ADA, 42 U.S.C. § 12101 et seq. Id. at 610, 121 S.Ct. 1835. The district court reconsidered its earlier ruling and found that under Buckhannon, plaintiffs were not the prevailing party and denied them attorney's fees, costs, and reimbursement of expenses. Plaintiffs appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1989, nine-year old Bill Coffelt's negative behavior became unbearable: he was attacking his siblings and their friends, and breaking windows. Feeling there was no other option, Bill's parents placed their developmentally disabled son at the Sonoma Developmental Center. Two weeks later, when they brought their son home for a weekend visit, he had lost weight and had several bruises. He was disoriented and listless. Because there were no vacancies in community group homes for developmentally disabled children, Bill's parents returned their son to the developmental center. A year later, Bill's parents joined other parents and the organization Protection & Advocacy, Inc.[1] in filing suit to get developmentally disabled children out of institutions and back into the community. Four years later, in January 1994, Bill Coffelt was the named plaintiff in a class action settlement, the Coffelt Agreement, that revolutionized the care that developmentally disabled adults were entitled to receive in California. The Coffelt Agreement required that 2,000 developmentally disabled adults living in institutional state developmental centers be transferred to community residences.[2] Three years after the Coffelt Agreement was 1084 approved, plaintiffs/appellants ("plaintiffs") *1084 filed the action now before this court.
On March 29, 1997, plaintiffs brought suit in the United States District Court for the Central District of California under the integration mandate contained in 28 C.F.R. § 35.130(d) of Title II of the ADA, Title V of the ADA, and 42 U.S.C. § 1983. Plaintiffs sought injunctive relief against DDS, various developmental and regional centers throughout the state, and individual defendants in their official capacities (collectively "defendants").
Plaintiffs alleged that in implementing the Coffelt Agreement, DDS engaged in the practice of "client shopping" 0907 i.e., selecting for transfer from Fairview and placing in the community those residents without guardians or conservators who might object to their transfer. In their complaint, plaintiffs listed published scientific studies that showed an increased rate of mortality in developmentally disabled adults living in the community compared with developmentally disabled adults living in developmental centers, like Fairview. Plaintiffs also identified transferred Fairview residents who had died, been injured, or injured and killed others 0907 such as "RD," who, after being released from Fairview, walked through a glass window at the community residence he had been transferred to and died in a San Diego Emergency Room.
Pending trial, the district court issued a preliminary injunction, enjoining DDS and Fairview Developmental Center from releasing or transferring adult residents of Fairview "unless the individual: (1) has capacity to object to the release or transfer; (2) has authorized a representative in writing; or (3) is `represented' during the course of the release decision making process." The district court determined that a person is represented if "he or she has (a) a conservator or (b) an involved family member."
On June 16, 1997, Protection & Advocacy ("intervenors") filed a motion to intervene. The district court granted the motion.

On March 24, 2000, after hearing cross summary judgment motions, the district court granted permanent injunctive relief on one of intervenors' claims. The permanent injunction prohibited DDS from enforcing its policy of not transferring to community residences any resident of a developmental center whose conservator or family member objected to community placement (the "parental objection" policy). Plaintiffs appealed the trial court's grant of the intervenors' permanent injunction, while also moving the district court to modify the injunction. The district court denied plaintiffs' motion without a hearing. After conferring with a Ninth Circuit Mediator, however, the parties executed a stipulation that modified the permanent injunction.
On March 30, 2000, Magistrate Judge Arthur Nakazato held a court-ordered settlement conference that resulted in a settlement. The key terms of the settlement agreement were stated on the record in open court, and the parties, or their authorized representatives, agreed that the key terms of the settlement agreement were binding and enforceable, just as if they had been reduced to writing.
On August 29, 2000, a fully-executed settlement agreement between plaintiffs, defendants, and intervenors was filed with the court. On January 18, 2001, U.S. District Court Judge Gary L. Taylor ordered the parties to comply with the provisions of the stipulation modifying intervenors' permanent injunction. On January 22, 2001, Judge Taylor entered judgment. The final judgment stated that the "parties ha[d] settled the[] remaining claims [not 1085 resolved by the court on summary judgment] and a settlement agreement was *1085 filed with the Court," and that the parties' time for filing and serving their motions for attorney's fees and costs would begin from that day. Two days later, Judge Taylor signed the order of dismissal. The order stated that plaintiffs' remaining claims against the defendants were "dismissed with prejudice pursuant to a written executed Settlement Agreement between the parties, a copy of which has been previously filed with this Court, and which primary terms were placed on the record before Magistrate Judge, Honorable Arthur Nakazato.... IT IS SO STIPULATED. ... IT IS SO ORDERED."
On February 5, 2001, plaintiffs filed their motion to determine prevailing party status and for an award of attorney's fees and costs under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, and the ADA, 42 U.S.C. § 12205.
On March 28, 2001, the district court ruled that plaintiffs were the prevailing party because they "prevailed to a limited extent through settlement of the case" and "may have acted as a catalyst for legislative change in accomplishing the relief sought." The court, however, ruled that plaintiffs were not prevailing parties on the permanent injunction because that "injunction was obtained by Intervenors, not Plaintiffs"; nor were plaintiffs the prevailing parties on the preliminary injunction they obtained because "it preserved the status quo and was not based on the merits of the claims." (Citing Christopher P. v. Marcus, 915 F.2d 794, 805 (2d Cir. 1990)). The court ordered that the parties submit briefs on the amount of fees to be awarded.
Two months later, before the court awarded attorney's fees, the Supreme Court decided Buckhannon, eliminating the "catalyst theory" as a basis for recovery of attorney's fees under the FHAA and the ADA. 532 U.S. at 610, 121 S.Ct. 1835. Based on that decision, defendants filed an ex parte application asking the district court to reconsider its ruling on the prevailing party issue.
On June 25, 2001, the district court vacated its previous order determining that plaintiffs were the prevailing party to a limited extent. Relying on dicta in Buckhannon, the court found that it had incorrectly relied on the catalyst theory and on a private settlement between the parties in determining that plaintiffs were the prevailing party. The court concluded that as plaintiffs "did not accomplish any of the relief [they] sought by a court order or a consent decree, Plaintiffs are not the prevailing party." The court denied plaintiffs attorney's fees, costs, and reimbursement of expenses.
Plaintiffs now appeal from the district court's "Order Granting Reconsideration and Vacating Order on Determination of Prevailing Party and Denial of Motion for Attorneys' Fees and Costs." Plaintiffs recognize that under Buckhannon and this court's decision in Bennett v. Yoshina, 259 F.3d 1097 (9th Cir.2001), they cannot recover attorney's fees under the catalyst theory; they do not challenge the portion of the district court's order determining that they are not prevailing parties under the catalyst theory. Rather, plaintiffs assert that under Barrios v. California Interscholastic Federation, 277 F.3d 1128 (9th Cir.2002), cert. denied, ___ U.S. ___, 123

S.Ct. 98, 154 L.Ed.2d 28 (2002), the district court erred in ruling that plaintiffs were not the prevailing parties based on the settlement agreement. Barrios, 277 F.3d at 1134.
II. STANDARD OF REVIEW
This court reviews for abuse of discretion a district court's decision to deny attorney's fees. Barrios, 277 F.3d at 1086 1133. A district court abuses its discretion if its ruling on a fee motion "is based on an *1086 inaccurate view of
the law or a clearly erroneous finding of fact." Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.1997) (quoting Corder v. Gates, 947 F.2d 374, 377 (9th Cir.1991)). Elements of legal analysis and statutory interpretation that figure into the district court's attorney's fees decision are reviewed de novo. Fischer v. SJB P.D., Inc., 214 F.3d 1115, 1118 (9th Cir. 2000). Factual findings underlying the district court's decision are reviewed for clear error. Id.
III. DISCUSSION
We are asked to determine whether the Supreme Court's decision in Buckhannon precludes courts from granting "prevailing party" status and reasonable attorney's fees and costs to plaintiffs under the ADA and 42 U.S.C. § 1988 when they reach a settlement agreement. We recently answered this question in Barrios. In Barrios, we held that a plaintiff "prevails," and thus is entitled to attorney's fees and costs, when he or she enters into a legally enforceable settlement agreement with the defendant. Barrios, 277 F.3d at 1134. Because we find that there is a legally enforceable settlement agreement between the parties to this case, the district court erred when it denied plaintiffs attorney's fees and costs. Moreover, we find that the district court erred when it denied plaintiffs prevailing party status based on their success in obtaining a preliminary injunction preventing DDS from releasing Fairview residents into community placements unless certain conditions were met. The district court did not err, however, in denying plaintiffs prevailing party status based on their efforts to modify intervenors' permanent injunction.
A. Legally Enforceable Settlement Agreement
In Barrios, we held that "[u]nder applicable Ninth Circuit law, a plaintiff `prevails' when he or she enters into a legally enforceable settlement agreement against the defendant":
"[A] plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." The Court explained that "a material alteration of the legal relationship occurs [when] the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant." In these situations, the legal relationship is altered because the plaintiff can force the defendant to do something he otherwise would not have to do.
Id. (alteration in original) (quoting Fischer, 214 F.3d at 1118 (quoting Farrar v. Hobby, 506 U.S. 103, 111-13, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992))). Because Barrios could enforce the terms of the settlement agreement against the California Interscholastic Federation, he was the "prevailing party." Id.
We concluded in Barrios that our decision was unaffected by the Supreme Court's recent holding in Buckhannon which eliminated the "catalyst theory" as a basis for the award of attorneys' fees under the ADA and FHAA. Id. at 1134 n. 5. "Barrios, [like the plaintiffs here], however, [did] not claim to be a `prevailing party' simply by virtue of his being a catalyst of policy change; rather his settlement agreement afford[ed] him a legally enforceable instrument, which under Fischer, ma[de] him a `prevailing party.'" Id. Although "the dictum in Buckhannon suggests that a plaintiff `prevails' only when he or she receives a favorable judgment on the merits or enters into a court-supervised consent decree," we found that we were "not bound by that dictum, particularly when it runs contrary to this court's holding in Fischer, by which we are bound." Id. (citation omitted).
1087 *1087 We noted in Barrios that "[m]oreover, the parties, in their settlement, agreed that the district court would retain jurisdiction over the issue of attorneys' fees, thus providing sufficient judicial oversight to justify an award of

attorneys' fees and costs." Id. Similarly, here, in stating the key terms of the settlement on the record on March 30, 2000, the parties "stipulate[d] that the Court retain jurisdiction to address any issue of attorneys' fees and costs that may be unresolved by the parties." The district court's retention of jurisdiction over the attorney's fees issue, "thus provid[ed] sufficient judicial oversight to justify an award of attorneys' fees and costs." Id.
Although similarities between Barrios and the present case abound, defendants attempt to distinguish the cases by arguing that Mr. Barrios achieved significant monetary and non-monetary relief on his claims whereas the plaintiffs in this case obtained nothing of significance. Here, however, the district court found that although the "settlement mandates are significantly less than the relief Plaintiffs sought ... [they] have achieved greater safeguards against inappropriate transfers to community placements and greater input from various health care professionals into the decisions to transfer consumers and the review by the Superior Court." This factual finding of the district court is not clearly erroneous. Thus, the district court did not abuse its discretion when it found that plaintiffs had "prevailed to a limited extent" and thus achieved relief significant enough to warrant prevailing party status.
The district court conducted the proper inquiry into whether plaintiffs were the prevailing party by examining whether they obtained "some relief on the merits of [their] claim that materially alter[ed] the legal relationship between the parties." (Citing Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)).[3] Contrary to the argument advanced by the defendants, prevailing party status is not determined by the degree of success achieved. Rather as stated above, prevailing party status is determined by inquiring whether plaintiffs' "actual relief on the merits of [their] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Barrios, 277 F.3d at 1134 (quoting Fischer, 214 F.3d at 1118). Just as in Barrios, the present settlement agreement materially altered the legal relationship between the parties, because the defendants were required to do something directly benefitting the plaintiffs that they otherwise would not have had to do. "By formalizing the requirement that Defendants give the Superior Court approximately two weeks notice and prohibiting a transfer if a hearing is granted," the district court concluded, "the settlement does `materially alter[] the legal relationship between the parties.'" (Citation omitted).
Defendants also incorrectly argue that the settlement agreement is not a legally enforceable agreement, but rather a "purely private settlement agreement." Similarly, in denying plaintiffs attorney's fees, the district court 1088 relied on a footnote *1088 in Buckhannon which stated that "[p]rivate settlements do not entail the judicial approval and oversight involved in consent decrees[,]" and that "federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal." Buckhannon, 532 U.S. at 604 n. 7, 121 S.Ct. 1835 (emphasis added).
The settlement agreement in this case, however, is not a not "purely private settlement agreement." At the settlement conference on March 30, 2000, the parties stated the terms of the agreement on the record before Magistrate Judge Nakazato. The court, in a minute order, specifically and expressly stated that "the parties ... represented to the Court that they agreed and understood [that] the terms of the settlement agreement were binding and enforceable just as if they had been reduced to writing.... IT IS SO ORDERED." (Emphasis added). The agreement was reduced to writing and was filed with the district court. The order of dismissal signed by Judge Taylor on January 24, 2001, expressly referred to the settlement agreement: the remaining claims were "dismissed with prejudice pursuant to a written executed Settlement Agreement ... which ha[d] been previously filed with [the] Court, and which primary terms were placed on the record" before Magistrate Judge Nakazato. The parties are bound by this settlement agreement. Furthermore, by stipulation of the parties, the district court retained jurisdiction to resolve the issue of attorney's fees and costs. See Barrios, 277 F.3d at 1134 n. 5.
Through their legally enforceable settlement agreement and the district court's retention of jurisdiction, plaintiffs obtained a "`judicial imprimatur' that alters the legal relationship of the parties," as required by Buckhannon. Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.2002). Thus, we conclude that plaintiffs are entitled to prevailing party status, and we hold that the district court erred when it denied plaintiffs attorney's fees and costs. We reverse that portion of the district court's order finding that plaintiffs are not the "prevailing party to a limited extent" based on the settlement agreement. We further remand this case in light of our recent decision in Barrios,

which held that a plaintiff prevails, and thus is entitled to attorney's fees and costs, when he or she enters into a legally enforceable settlement agreement against the defendant. Barrios, 277 F.3d at 1134.
B. Preliminary Injunction

The district court found that plaintiffs' "success on their Preliminary Injunction cannot be the basis for `prevailing party' status because it only preserved the status quo, and was not based on the merits of the claims." (Citing Christopher P. v. Marcus, 915 F.2d 794, 805 (2d Cir.1990); Smith v. Thomas, 687 F.2d 113, 115 (5th Cir.1982)). In reaching this conclusion, the district court relied solely on other circuit's conclusions and overlooked this court's findings in Williams v. Alioto, 625 F.2d 845 (9th Cir.1980).

In Williams, we held that a plaintiff who obtains a preliminary injunction is a prevailing party for purposes of 42 U.S.C. § 1988 even if the underlying case becomes moot:

1089

We conclude that by obtaining the preliminary injunction appellees "prevailed on the merits of at least some of (their) claims." The preliminary injunction prevented appellants from continued enforcement of their original guidelines, which is precisely the relief appellees sought. Appellees succeeded on a "significant issue in litigation, which achieve(d) ... the benefit the parties sought in bringing suit." Our previous *1089 dismissal of the appeal as moot and vacation of the district court judgment does not affect the fact that for the pertinent time period appellees obtained the desired relief....

Williams, 625 F.2d at 847-48 (citations omitted). Furthermore, subsequent to the district court's ruling that plaintiffs were not the prevailing party based on their preliminary injunction, we held that "a plaintiff who succeeds in obtaining a preliminary injunction can be deemed a `prevailing party' for purposes of 42 U.S.C. § 1988, even though he did not recover other relief sought in the lawsuit." Watson, 300 F.3d at 1093.

We therefore find that the district court erred as a matter of law when it denied plaintiffs prevailing party status based on their success in obtaining a preliminary injunction. We remand this issue in light of our statements of the law in Williams and Watson.

C. Plaintiffs' Efforts in Modifying Intervenors' Permanent Injunction.

The district court dismissed plaintiffs' claim that they were the prevailing party based on their successful efforts to modify the language of the intervenors' permanent injunction. In denying plaintiffs prevailing party status on this basis, the district court reasoned that "[t]he permanent injunction was obtained by Intervenors, not Plaintiffs, so Plaintiffs have not prevailed here."
We recently held that a "plaintiff can be awarded[attorneys'] fees incurred opposing intervention if the defendant ... joined the intervenor's motion." Watson, 300 F.3d at 1097 (citation omitted). Here, however, the intervenors sought a permanent injunction against the defendants to prevent DDS from implementing its parental objection policy.
Thus, the district court did not err as a matter of law when it denied plaintiffs prevailing party status based on their efforts to modify the intervenors' permanent injunction.
IV. CONCLUSION

Because we conclude that the plaintiffs' attainment of both a legally enforceable settlement agreement and a preliminary injunction supports their status as the prevailing party and their entitlement to reasonable attorney's fees, we REVERSE in part and REMAND pursuant to our decisions in Barrios, Williams, and Watson. We AFFIRM, however, the district court's ruling that plaintiffs' efforts in modifying the intervenors' permanent injunction do not support prevailing party status. AFFIRMED in part; REVERSED in part; and REMANDED. Each side to bear its own cost.

[1] Protection & Advocacy, Inc. is a non-profit legal organization working to protect, advocate for, and advance the human, legal, and service rights of persons with disabilities.
[2] Bill, now an adult, is not a party to these proceedings. Bill now lives in a home provided by his parents and receives supportive living services.
[3] The district court correctly found that the degree of overall success determines not whether the plaintiff is a prevailing party, as defendants argue, but rather whether the fee award is reasonable: "While the magnitude of success does not affect the `prevailing party' status, `the level of a plaintiff's success is relevant to the amount of fees to be awarded.'" (Quoting Hensley v. Eckerhart, 461 U.S. 424, 430, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). The district court stated it would "award to Plaintiff a reasonable allocation of fees based on the limited degree of success achieved, as stated in this order."
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