Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 1 of 24 Page ID #:1

1 LYNN S. CARMAN, State Bar 028860 28 Newport Landing Dr.
2· Novato, CA 94949-8214 Telephone: (415) 927-4023
3 Facsimile: (415) 499-1687 Email: a7827@comcast.net
4 STANLEY L. FRIEDMAN, State Bar 120551
5 445 S. Figueora St., 27th Floor LosAngeles,CA 90071-1631
6 Telephone: (213) 629-1500 Facsimile : (213) 489-6899
7 Email: friedman@friedmanlaw.org

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8 Attorneys for Plaintiff California
Association for Health Services at Home 9

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE CENTRAL DISTRICT OF CALIFORNIA

13

WESTERN DIVISION

14 CALIFORNIA ASSOCIATION FOR

15 HEALTH SERVICES AT HOME, a California nonprofit corporation,

16

-vs.17

SANDRA SHEWRY, Director of 18 Department of Health Care Services

of the State of California, and DOES 1 19 through 50,

20

Defendants. I

COMPLAINT FOR INJUNCTION AND DECLARATORY RELIEF

21

22

23

24

Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 2 of 24 Page ID #:2

1

The plaintiff CALIFORNIA ASSOCIATION FOR HEALTH SERVICES AT HOME

2 complains of defendants SANDRA SHEWRY, Director of Department of Health Care Services
of the State of California, and DOES 1 through 50, and for claims for relief alleges: 3
INTRODUCTION
4 1. Plaintiff challenges:

5

- (1) the validity of an across-the-board ten percent reduction, ("Ten Percent Rate

6

Reduction") under Assembly Bill X3 5 ("AB 5"), in reimbursement rates to home health

7

services providers in the Medicaid ("Medi-Cal") fee-for-service ("FFS") program, for

dates of service on and after July 1, 2008, and, 8

9 - (2) the validity of an across-the-board one percent reduction, under Assembly

10

Bill ("AB") 1183, in reimbursement rates to providers of home health services to

11

beneficiaries of the Medi-Cal FFS program, for dates of service on and after March 1,

12

2009,

13 which Defendant Sandra Shewry, Director of the California Department of Health Care

14 Services is responsible for implementing under AB 5, AB 1183, and Cal. Welf. & Inst. Code

15 § 14105.

Jurisdiction and venue

16

2.

The Court has jurisdiction under 28 U.S.C. § 1331. Shaw v. Delta Air Lines,

17 Inc., 463 U.S. 85,96 n.4 (1983).

18

3. The actions of the Defendant complained were and will be done in all parts of

19 the state of California, including the County of Los Angeles. The injuries which are inflicted

20 and threatened which are complained of, to the Plaintiff CAHSAH, its members who are home
health services providers, and their patients in the Medi-Cal FFS program, have occurred and 21
are threatened to occur in all parts of the state of California, including the County of Los
22
Angeles. The Defendant has an office in the County of Los Angeles.
23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 3 of 24 Page ID #:3

1

Parties

2

4. The plaintiff CALIFORNIA ASSOCIATION FOR HEALTH SERVICES AT

HOME ("Plaintiff CAHSAH'), is a California nonprofit corporation, whose principal place of 3
business is Sacramento, California, and does business throughout California, including the

4 County of Los Angeles, California.

5

5. (a) The purposes of the PlaintiffCAHSAH are to promote quality home health

6 services and promote and protect the interests of all home health services providers in the State

7 of California. Plaintiff CAHSAH represents more than 500 members that are direct providers
ofhome health services. Plaintiff CAHSAH' s members include Medicare-certified home 8
health agencies, licensed home health agencies, home care aide organizations, home medical 9
equipment providers, home infusion pharmacy providers, and interdisciplinary professional
10 service organizations.

11

(b) "Home health services," as used in this complaint, means and includes,

12 without limitation thereby, the following services covered by the Medi-Cal fee-for-service

("FFS") program: 13

- Medicare-care certified home health agency services

14

-licensed home health agency services

-hospice

15

- home care aides

- home medical equipment providers

16

- home infusion pharmacy providers

- occupational therapy

17

- speech therapies

18

- medical social worker services

-home health care services, as defined by 42 C.F.R. §§ 441.15, 440.70,

19

includi-nngu: rsm. g serv1.ces

20

- home health aide services

- medical supplies

21

- medical equipment

- appliances suitable for use in a home

22

- physical therapy

- occupational therapy

23

- speech pathology services

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 4 of 24 Page ID #:4

1

- audiology services

- early periodic screening, diagnosis and treatment ("EPSDT") services

2

provided in the home, including but not limited to:

- periodic screening and vision, dental, and hearing services

3

- services under Home and Community Based Services ("HCBS) waivers,

including HCBS services under:

4

-Multi-Purpose Senior Services Program Waiver

-the AIDS Waiver

5

-Developmentally Disabled Waiver

6

-Nursing Facility AlB Waiver -Nursing Facility Subacute Waiver

7

-In-Home Medical Care Waiver,

8 which are performed or furnished in the home, (collectively, "home health services").

9

6. The defendant SANDRA SHEWRY ("Director") is the director of the California

Department ofHealth Care Services, ("the Department"). The Director is exclusively 10

empowered by§§ 14100.1 and 14105 California Welfare & Institutions ("Welf. & Inst.") Code 11
to set all policies, rules, and regulations in the Medi-Cal program, including setting all rates 12
payable to Medi-Cal providers, including home health services providers. The Director is sued
13 in her official capacity only.

14

7. The defendants Does 1 through 50 are persons whose identity and capacities are

15 uulmown to the Plaintiff CAHSAH, who for that reason sues them by such fictitious names.

16 Plaintiff CAHSAH prays leave to amend this complaint when the identify of any of these Does

17 1 through 50 become known to counsel.

18

8. The Plaintiff CAHSAH is a corporate citizen and resident of the State of

California, and sues herein on its own behalf, in its own interest, and the interest of its 19
members, and also, as well, on behalf of the public of the State of California, and of the Medi-
20
Cal beneficiary patients ofthe members of the Plaintiff CAHSAH to procure the performance 21
of public duty by the defendant public officials: namely the performance ofthe mandatory
22
public duty ofthe Director, under and pursuant to the Supremacy Clause, not to injure Medi-

23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 5 of 24 Page ID #:5

1 Cal beneficiaries and their providers, including home health services providers, in the Medi-Cal
2 FFS program, by (1) implementing the federally preempted Ten Percent Rate Reduction of AB
3 5, and by (2) implementing the federally preempted One Percent Rate Reduction of AB 1183,-which aforesaid actions of the Director are preempted, under the Supremacy Clause, in that the
4
aforesaid actions violate and are hence contrary to 42 U.S.C. § 1396a(a)(30)(A), --"Sec. 30A,"
5
-- including the quality and equal access clauses of Sec. 30A. 6
9. The Plaintiff CAHSAH also sues in a prudential jus tertii capacity to assert 7 (1) the interests of its members as well as (2) the interests of the Medi-Cal patients of the
8 members ofthe Plaintiff CAHSAH, in the claims for relief, and Supremacy Clause preemption,

9 which is sued upon and sought in this within complaint.

10

10. The PlaintiffCAHSAH, --as well as the home health services provider members

11 of the Plaintiff CAHSAH, and the Medi-Cal beneficiary patients of the home health services
provider members ofthe Plaintiff CAHSAH on behalf of whom the Plaintiff CAHSAH sues 12
herein, -- also have standing and a claim for relief against the Director inasmuch as each has 13
suffered, will suffer, and is threatened to suffer, concrete and irreparable injury, unless the 14
defendant Director is restrained by an appropriate injunction from implementing the Ten 15
Percent Rate Reduction of AB 5 and the One Percent Rate Reduction of AB 1183, which
16 actions are preempted under the Supremacy Clause by Sec. 30A.

17

INTRODUCTION

18

11. Medi-Cal is a major component of the "safety net" that ensures the State's poor

19 have access to health care services.

20

LEGISLATIVE HISTORY OF AB 5

12. On January 10,2008, the California Governor proclaimed a State fiscal 21

emergency, sent a proposed 2008-2009 budget bill to the Legislature, and called the Legislature
22
into special session.
23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 6 of 24 Page ID #:6

1

13. (a) On February 16, 2008 the Governor signed into law AB 5, the Special

2 Session health care trailer bill.

3

(b) AB 5, eff. February 16,2008, was chaptered as Chapter 3, Statutes 2007-

2008 Third Extraordinary Session.
4

5 14. Section 14 of AB 5 added §14105.19 Welf. & Inst. Code, which, in subds. (a),
6 (b)(l), (b)(2), and (c)- (e) provides that reimbursement shall be cut 10% across-the-board in
7 Medi-Cal fee-for-service to providers, including home health services providers, in the
8 Medi-Cal fee-for-service program, for dates of service on and after July 1, 2008.

9

15. § 14105.245 Welf. & Inst. Code, (added by Section 15 of Assembly Bill

10 X3 5 as set forth above), provides:

11

"(a) The Legislature finds and declares that the state faces a fiscal crisis that requires unprecedented measures to be taken to reduce General Fund expenditures to avoid

12

reducing vital government services necessary for the protection of the health, safety, and welfare of the citizens of the State of California." (Emphasis supplied.)

13 16. Finally, Sees. 16 and 17 of AB 5 provide:

14 "SEC. 16. This act addresses the fiscal emergency declared by the Governor

15

by proclamation on January 10, 2008, pursuant to subdivision (f) of Section 10 of Article IV of the California Constitution.

16

SEC. 17. . .. In order to malce statutory changes needed to implement cost

containment measures affecting health services, at the earliest possible time, it is

17

necessary that this act take effect immediately." (Emphasis supplied.)

18

Concrete injury from implementing Sees. 14 and 15 of AB 5.

19

17. The Plaintiff CAHSAH, as well as its home health services provider members

20 and their patients in the Medi-Cal FFS program for whom the Plaintiff CAHSAH is a virtual

21 representative and a jus tertii representative, have been and will, respectively, and foreseeably

22 and inevitably, suffer concrete injury, and are threatened with concrete injury, and are put at risk of concrete injury, by the Ten Percent Rate Reduction, which was put into effect on July 1,
23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 7 of 24 Page ID #:7

1 2008 and continuously since then, by the defendant Director, pursuant to and by her policy,

2 practice, and provider bulletin to implement the aforesaid Ten Percent Rate Reduction to

3 providers in the Medi-Cal FFS program, including the home health services providers who are
members of the Plaintiff CAHSAH; -- which concrete injury from the Ten Percent Rate 4
Reduction is great, immediate, and irreparable; and which irreparable injury is also both 5
presumed and inferred from the fact that the Legislature and the Director failed to consider 6
quality of services or equal access of beneficiaries in the course of the Legislature enacting and
7 the Director implementing the Ten Percent Rate Reduction of AB 5.

8

Denial of access to home health services

9

18. Since July 1, 2008 due to the Ten Percent Rate Reduction, many home health

10 services providers have and will reduce services by not accepting new Medi-Cal patients, or by

11 not accepting Medi-Cal patients at all, or by reducing kinds, amounts, locations, and levels of
services, or by going out of business, to the great injury and irreparable injury of tens of 12
thousands of Medi-Cal beneficiaries who are unable thereby to obtain life-vital home health 13
services and treatment in the Medi-Cal FFS program; so as to cause and threaten to cause great 14
physical suffering and injury to Medi-Cal beneficiaries, including patients of the members of
15 the Plaintiff CAHSAH.

16

FIRST CLAIM FOR RELIEF

17

Against each ofthe defendants, for injunctive reliefto enjoin the defendants to

refrain from implementing a 10% reduction of payments to Medi-Cal fee-for-

18

service providers ofhome health services, under subds. (a), (b)(1), (b)(2), and (c)-

(e) of§ 14105.19 Welf. & Inst. Code,-- which statutes, and the State action of

19

defendants to implement the state statutes, violate, and are hence preempted under

the Supremacy Clause by, the quality and equal access clauses of 42 U.S.C.

20

§ 1396a(a)(30)(A).

21

* * * * * * *

22

19. The Plaintiff CAHSAH refers to and each of the allegations in each of the

23 preceding Paragraphs of this complaint, as if fully set forth herein.

Case 2:08-cv-07045-CAS-MAN Document 1

Filed 10/24/08

Page 8• of 24

.~ ...,.....-_ Page ID #:8

I

20. The Medicaid Act, in 42 U.S.C. § 1396a, subd. (a)(30)(A), provides:

2

"(a) A State plan for medical assistance must- (30)(A) provide for such methods and

procedures relating to the utilization of, and the payment for, care and services available

3

under the plan (including but not limited to utilization review plans as provided for in

section 1396b(i)(4) of this title) as may be necessary to safeguard against unnecessary

4

utilization of such care and services and to assure that payments are consistent with

efficiency, economy, and quality of care and are sufficient to enlist enough providers so

5

that care and services are available under the plan at least to the extent that such care and

services are available to the general population in the geographic area; ... " 6

21. 7
30A."

42 U.S.C. § 1396a, subd. (a)(30)(A), shall hereinafter be referred to as "Sec.

8 22. However, under the facts, including but not limited to the fact that on January

9 I 0, 2008, the Governor proclaimed a fiscal emergency and called the Legislature into Special

10 Session; and that on February 16, 2008 the Legislature enacted and the Governor signed into

11 law AB 5, which proclaims in Sec. 15 that "the state faces a fiscal crisis that requires

12 unprecedented measures to be taken to reduce General Fund expenditures," and which

13 proclaims in Sections 16 and 17 that:

14

"SEC. 16. This act addresses the fiscal emergency declared by the Governor

by proclamation on January 10, 2008, pursuant to subdivision (f) of Section 10 of

15

Article N of the California Constitution.

16

SEC. 17. . .. In order to make statutory changes needed to implement cost containment measures affecting health services, at the earliest possible time, it is

necessary that this act take effect immediately." (Emphasis supplied.) 17

The sole function and purpose, and the conclusive consideration in the Legislature's 18
decision to enact subds. (a), (b)(!), (b)(2), and (c)- (e) of§ 14105.19 Welf. & Inst. Code,--

19 which provide that the defendants shall cut Medi-Cal payments to providers in the Medi-Cal

20 fee-for-service program, including home health services, --was budgetary considerations, to

21 "address the fiscal emergency" declared by the Governor, and to effect "cost containment

22 measures affecting health services," by making statutory changes needed to reduce

23 expenditures, (to fit the State's reduced budget), commencing July 1, 2008.

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 9 of 24 Page ID #:9

1

23. However, therein, by each and all of the above allegations, the enactment of the

2 Ten Percent Rate Reduction in respect to home health services in the Medi-Cal FFS program,
3 by subds. (a), (b)(l), (b)(2), and (c)- (e) of § 14105.19 Welf. & Inst. Code, by the Legislature
was without any consideration of quality and access to home health services as required by Sec.
4
30A,1 and was without any consideration of what it costs home health services providers to 5
perform the various services and procedures of home health services, as required by Sec. 30A;2 6
such that the State's sole purpose, and the conclusive factor, in enacting the across-the-board
7 10% reduction in reimbursement to providers in the Medi-Cal fee-for-service program,
8 including home health services providers, was to reduce the budget deficit. Accordingly,

9 under the standard of Orthopaedic Hasp., 103 F.3d 1491, at 1500 (1997); and Arkansas

10 Medical Society, Inc. v. Reynolds, 6 F.3d 519 (8th Cir.l983), the action ofthe Legislature to

11 enact the aforesaid subds. (a), (b)(l), (b)(2), and (c)- (e) of §14105.19 Welf. & Inst. Code; and

the policy and action of the defendants to implement these statutes by reducing payments to 12

home health services providers, by ten percent (1 0%), for dates of service on and after July 1, 13
2008, was and is arbitrary and capricious, and contrary to and in violation of the quality and 14
access provisions of Sec. 30A; so that hence, under the Supremacy Clause, the aforesaid subds.
15 (a), (b)(l), (b)(2), and (c)- (e) of §14105.19 Welf. & Inst. Code are preempted by Sec. 30A.

16

24. Accordingly, by each and all of the foregoing facts alleged, subds. (a), (b)(1),

17 (b)(2), and (c)- (e) of § 14105.19 Welf. & Inst. Code were and are unlawful, in violation of the

18 quality and access provisions of Sec. 30A, so as to be preempted. under the Supremacy Clause,

19 by the gualitv and access provisions of Sec. 30A, such that the defendant Director has and is

20

21

1 Othopaedic Hospital v. Belshe, 103 F.3d 1491, 1500 (9th Cir.1997).

22

2 Id., 103 F.3d at 1500; Arkansas Medical Society, Inc. v. Reynolds, 6 F.3d 519

(8th Cir. 1993).
23

24

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.:··
Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 10 of 24 Page ID #:10

1 acting in excess of and without jurisdiction to implement subds. (a), (b)(1), (b)(2), and (c)- (e)

2 of§ 14105.19 Welf. & Inst. Code, by reducing payments to home health services providers in
3 the Medi-Cal fee-for-service program, commencing July 1, 2008. 25. Further, unless restrained by the Court by an appropriate injunction, the
4 defendant Director has and will implement the aforesaid subds. (a), (b)(l), (b)(2), and (c)- (e)
5 of§ 14105.19 Welf. & Inst. Code, and thereby has caused and will foreseeab1y result in injury
6 to the Plaintiff CAHSAH; its members who are home health services providers, and the
7 patients of the home health services provider-members of the Plaintiff CAHSAH; -- which
8 injury has been caused by and will foreseeably result from home health providers (including

9 members of CAHSAH) not accepting new Medi-Cal patients, or stopping serving Medi-Cal

10 patients at all, or by reducing kinds, amounts, locations, and levels of services to Medi-Cal
11 beneficiaries, or by going out of business, so that thereby beneficiaries have been and will
forseeably be caused, and threatened to be caused, denial and reduction of access to life-vital 12
home health services and treatment in the Medi-Cal FFS program, resulting in great physical 13
suffering and injury to beneficiaries, including beneficiaries served by the members of 14
CAHSAH; many of whom will thereby be forced into institutions such as nursing homes to 15
obtain their necessary medical treatment and medicines; and some will die; all to the
16 irreparable injury, and threat of irreparable injury, to thousands of Medi-Cal beneficiaries
17 including the beneficiaries served by the members of CAHSAH.

18

26. The Plaintiff CAHSAH, its Members, and the patients of the Members of the

19 Plaintiff CAHSAH, have no administrative remedy, nor any plain, speedy, or adequate remedy
20 whatsoever or at all, except by this complaint for injunctive relief.
WHEREFORE, the Plaintiff CAHSAH prays for judgment and orders as shall 21
hereinafter be specified:
22

23

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 11 of 24 Page ID #:11

1

SECOND CLAIM FOR RELIEF

2

Against the Director, for declaratory

judgment under 42 U.S.C. § 2201

3

27. Plaintiff CAHSAH refers to and incorporates each of the allegations in the

4 preceding Paragraphs of this Complaint as if fully set forth herein.

5

28. Welf. & Inst. Code§ 14105.19(b)(1), enacted by AB 5, provided:

6

"(b) (1) Except as otherwise provided by subdivision (c), payments shall be

reduced by 10 percent for Medi-Cal fee-for-service benefits for dates of service

7

on and after July 1, 2008.";

(herein, "Subd. (b)(1)"); and subdivision (c) ofWelf. & Inst. Code§ 14105.19, mentioned in 8

the above Subd. (b)(1 ), did not exclude horne health services or horne health services providers. 9
Hence the Ten Percent Rate Reduction of AB 5 expressly applied to horne health services and
10 horne health services providers.

11

29. However, the above-entitled Court did, on August 18, 2008, in the case of

12 Independent Living Center ofSouthern California, Inc., et al. v. SHEWRY, No. 2:08-cv-03315

13 CAS (MANx), --herein, "ILC," --file an order entitled:

14

"Order Granting in Part and Denying in Part Petitioners' Motion for

Preliminary Injunction,"

15 (Clerk's Document 121 in Case No. 2:08-cv-03315 in the above-entitled Court ("ILC')),

16 which provided in relevant part:

17

"The Court hereby orders defendant Director, her agents, servants, employees,

attorneys, successors, and all those working in concert with her to refrain from

18

enforcing Cal. Welf. & Inst. Code § 14105 .19(b)(1), including refraining from reducing

by ten percent payments under the Medi-Cal fee-for-service program for physicians,

19

dentists, pharmacies, adult day care health centers, clinics, health systems, and other

providers for services provided on or after July 1, 2008."

20

(Emphasis supplied.)

30. Subsequent to August 18,2008, three minute orders were filed in the Clerk's 21
Docket of this Case No. 2:08-cv-03315, namely:
22
-A written order dated August 27,2008, --being Clerk's Document 135 in ILC;

23

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 12 of 24 Page ID #:12

1

- A written order dated August 27, 2008, -- being Clerk's Document 134 in ILC;

2

-A written order dated September 5, 2008, -- being Clerk's Document 162 in ILC; and,

-A written order dated September 15, 2008, --being Clerk's Document 175 in ILC.. 3
31. Plaintiff CAHSAH hereinafter refers to the five orders mentioned in Paragraphs

4
29 and 30, collectively, as a single order, (herein, "the Order in Question").

5

32. A controversy in respect to the Order in Question has arisen between the

6 Plaintiff CAHSAH and the defendant Director, in that the Plaintiff CAHSAH claims that the

7 Order In Question, in substance and its totality, ordered the Director to refrain from enforcing
Cal. Welf. & lnst. Code§ 14105.19(b)(1); but, the Director has failed at all times to so obey 8
the aforesaid provision ofthe Order in Question, by deducting 10% from payments to home 9
health services providers for home health services in the Medi-Cal FFS program, for dates of
10 service on or after August 18, 2008.

11

33. Further, the PlaintiffCAHSAH claims that by virtue of the duty of the Director

12 not to deduct anything from payments to home health services providers for home health
services and products furnished in the Medi-Cal FFS program on or after August 18, 2008, -13
which duty is set forth in the Order in Question, -- that the Director has a present, existing, and 14
continuing mandatory duty to pay over all the 10% deductions to all home health services
15 providers which the Director has made and will make in the future, to the respective home

16 health services providers from whose payments the aforesaid deductions were and are being

17 made, -- all, without any demand being required by any home health services provider to be
entitled to receive such pay over. 18
34. In contrast, the Director claims that the Order in Question does not so provide, 19
and that she has a defense to, and a justification, for (1) not ceasing to malce these deductions
20 and (2) not paying over the deducted amonnts.

21

35. In turn, a further controversy exists between the Plaintiff CAHSAH and the

22 Director in respect to her claims set forth in the preceding Paragraph, in that the Plaintiff
CAHSAH claims that under established U.S. Supreme Court decisions, that if a person subject 23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 13 of 24 Page ID #:13

1 to an ~unction has good and legal cause not to obey or to be excused from complying with the
2 injunction, that it is incumbent on the person to apply to the court and obtain an order which
amends or terminates the injunction, or excuses the noncompliance with the injunction; and 3
for failure to so apply and obtain any exculpatory order, that the injunction continues in full 4 force and effect as written, so as to cause the person subject to the injunction to continue to
5 subject thereto; but, the Director disputes this claim of the Plaintiff CAHSAH.

6

36. By the foregoing set forth in this Second Claim for Relief, an actual controversy

7 exists between the Plaintiff CAHSAH, suing on behalf of its constituent member home health
services providers, and the defendant Director, such that a judgment and order should issue 8
pursuant to 28 U.S.C. § 2201 and Rule 65, Fed. Rules Civ. Proc., which first, declares the 9
rights and duties of the Director in respect to the aforesaid Order in Question, to be, namely,
10 that:

11

-the Director has had since August 18, 2008 the present and continuing duty to obey

12

the first ordering clause of the Order in Question, namely, to pay all providers in the

Medi-Cal FFS program without any deduction whatsoever; in that the said ordering 13
clause of the Order in Question specifically orders the Director "to refrain from 14
enforcing Cal. Welf. & Inst. Code§ 14105.19(b)(l),"
15
and second, orders the Director to perform her mandatory duty under the Order in 16
Question,-- namely, (1) the mandatory duty to refrain from implementing the Ten Percent
17 Reduced of AB 5 prospectively, and (2) the mandatory duty to pay over to the providers

18 entitled thereto, without any demand, all the 10% deductions from payments to home health

19 service providers which the Director has made and will make in the future, to all home health

20 services providers, -- in respect to whom said deductions of 10% have been continuously made
by the Director since July 1, 1008, (except insofar as the Director has ceased, since September 21
5, 2008, making any deductions in respect to physicians, dentists, optometrists, adult day care
22
health centers, and prescription drugs).
23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 14 of 24 Page ID #:14

1

37. The PlaintiffCAHSAH, its Members, and the patients of the Members of the

2 Plaintiff CAHSAH, have no administrative remedy, nor any plain, speedy, or adequate remedy
whatsoever or at all, except by this complaint for injunctive relief. 3
WHEREFORE the Plaintiff CAHSAH prays for judgment and orders as shall
4
hereinafter be specified:

5

THIRD CLAIM FOR RELIEF

6

Against each of the defendants, for injunctive relief to enjoin the defendants to refrain

fi·om implementing a one percent (1 %) reduction of payments to Medi-Cal fee-for-

7

service providers ofhome health services, under§ 14105.191 Welf. & Inst. Code,-which statute, and the State action of defendants to implement the same, violates and is

hence preempted under the Supremacy Clause by, the quality and equal access clauses

8

of 42 U.S.C. § 1396a(a}(30)(A).

9

38. Plaintiff CAHSAH refers to and incorporates each of the allegations in the

10 preceding Paragraphs of this Complaint as if fully set forth herein.
39. At all times, from and after at least September 15, 2008 to the present and 11
continuing, the Order in Question prohibited and commanded the Director to refrain from
12 enforcing the Ten Percent Rate Reduction of Subd. (b)(1) ofWelf. & Inst. Code

13 § 14105.19.

14

40. The Legislature on September 30, 20098, while the aforesaid Order in Question

15 was still in force, did enact Sections 44 and 45 of AB 1183, (Cal. Stats. 2008-2009, Ch. 758),
which provisions, as part of one single statute, reduced the Ten Percent Rate Reduction for all 16
Medi-Cal fee-for-service benefits which had been subject to the Ten Percent Rate Reduction
17 under Subd. (b)(l) ofWelf. & Inst. Code§ 14105, (of AB 5) to first, a five percent (5%)

18 reduction in Medi-Cal fee-for-service payments to pharmacies, (herein "the Five Percent Rate

19 Reduction"), and second, reduced the Ten Percent Rate Reduction to a one percent (1 %)

20 reduction in Medi-Cal fee-for-service payments to all other providers who had been subject to
the aforesaid Ten Percent Rate Reduction, including home health services providers of home 21
health services in the Medi-Cal FFS program, (herein "the One Percent Rate Reduction"), for 22
dates of service on or after March 1, 2009.
23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 15 of 24 Page ID #:15

1

41. Sec. 45 of AB 1183 enacted subd. (f) ofWelf. & Inst. Code§ 14105.191 to

2 provide:

"(f) Notwithstanding Chapter 3.5 (commencing with Section 11340) ofPart 1 of

3

Division 3 ofTit1e 2 of the Government Code, the department may implement and

4

administer this section by means of provider bulletins, or similar instructions, without taking regulatory action."

5

42. Cal. Constitution article 3.5 requires the Director to comply with Sec. 45 of AB

6 1183.

7

43. Further, the policy and practice of the Director whenever Medi-Cal rate

8 reductions are enacted by the Legislature, which contain a provision as in subd. (f) ofWelf. &
Inst. Code § 14105.191 which permits the Director to pass through a rate cut enacted by the 9
Legislature without taking any regulatory action herself, by use of provider bulletins to the
10 providers affected, is to always so pass through the legislative Medi-Cal rate cut, without

11 taking any regulatory action herself, by announcing the rate cut to providers in bulletins, Gust

12 as the Director did in respect to legislative rate cuts in the Medi-Cal program in the 2003-2004,

13 2004-2005, and 2007-2008 fiscal years, which contained the same above "pass through"
authorization set forth in subd. (f) ofWelf. & Inst. Code§ 14105.191. 14
44. Accordingly, based on the above facts alleged in Paragraphs 39 through 43 next 15 above, the Plaintiff CAHSAH alleges that the Director, under her aforesaid policy and practice
16 mentioned in Paragraph 43, will pass through and implement the One Percent Rate Reduction

17 in respect to all payments to home health services providers, (including the Members of the

18 Plaintiff CAHSAH) for home health services furnished on or after March 1, 2009, in the Medi-

Cal FFS program. 19
45. However,-- due to the fact that the existing injunction of the Order in
20 Question still facially currently enjoins the Director:

21

-in the first ordering clause of the Order in Question, to refrain from enforcing Subd.

22

(b)(1) ofWelf. & Inst. Code§ 14105.19 (of AB 5),

23 it follows that the Director has been enjoined to refrain from deducting anything from

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 16 of 24 Page ID #:16

1 payments to providers of home health services in the Medi-Cal FFS program, without first

2 applying to the Court and obtaining an order which terminates or modifies the Order in

Question to so allow to reduce payments, by 5%, to home health services providers. 3
46. Therein by each and all of the facts alleged in this Third Claim for Relief,
4 unless:

5

- (1) a declaratory judgment and order is issued pursuant to 28 U.S.C. § 2201,

6

adjudicating and declaring that the Director must first apply to the Court in the

7

case of Independent Living Center ofSouthern California, Inc., et al. v. Shewry

("ILC''), No. 2:08-cv-03315 in the above-entitled Court, and show by a 8
preponderance of the evidence that the State has complied with the
9 requirements of the federal Medicaid rate-setting statute, Sec. 30A, in enacting

10

and implementing the One Percent Rate Reduction of Welf. & Inst. Code

11

§ 14105.191, and,

12 - (2) an appropriate preliminary and permanent injunction is issued,
13

14 the Director will violate the existing Order in Question by implementing the One Percent

15 Reduction in respect to home health services providers (including members of the Plaintiff
CAHSAH), without first applying to the Court in the ILC case, (No. 2:08-cv-03315 in the 16
above-entitled Court), and obtaining an order in the ILC case which terminates or modifies the 17
August I 8, 2008 preliminary injunction in the ILC case, so as to permit the Director to so
18 implement AB 1183 in respect to dates of home health services on and after March 1, 2009.

19

47. The PlaintiffCAHSAH, its Members, and the patients of the Members of the

20 Plaintiff CAHSAH, have no administrative remedy, nor any plain, speedy, or adequate remedy
whatsoever or at all, except by this complaint for injunctive relief. 21
WHEREFORE, the Plaintiff CAHSAH prays for judgment and orders as shall
22
hereinafter be specified:
2J

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 17 of 24 Page ID #:17

1

2

FOURTH CLAIM FOR RELIEF

Against each of the defendants, for injunctive relief to enjoin the defendants

3

to refrain from implementing a One Percent Rate Reduction under Sec. 45 of AB

1183 in respect to home health services providers, --which statute, and the State

4

action of defendants to implement the state statute, violate, and are hence preempted under the Supremacy Clause by, the quality and equal access clauses of

42 U.S.C. § 1396a(a)(30)(A). 5

48. Plaintiff CAHSAH refers to and incorporates each of the allegations in the
6 preceding Paragraphs of this Complaint as if fully set forth herein.

7

LEGISLATIVE HISTORY OF ASSEMBLY BILL 1183

8

49. Assembly Bill ("AB") 1183, --a health trailer bill to implement the budget

9 cutting decisions of the 2008-2009 Budget Bill,-- was enacted September 30, 2008 and was

10 chaptered as Chapter 758, Statutes 2008-2009.
AB 1183 11
50. AB 1183 was introduced Feb. 2, 2008 as a hazardous material bill. However,
12 during the record budget stalemate which preceded enactment of the 2008-2009 budget bill in

13 late September 2008, the budget bills which had passed by each house without 2/3 majority

14 needed for enactment, were sent to the Big Four, namely, the majority and minority leader of

15 each house. When they finally made their budget deal in late September 2008, the AB 1183
hazardous material bill was amended Sept. 15, 2008 by the Assembly Committee on Budget, 16
was passed by both houses on September 16, 2008, and was signed by the Governor and filed 17
with the Secretary of State on September 30,2008, as part of the process of the Governor
18 signing the Budget Bill for 2008-2009.

19

51. By such legislative history, there were no committee hearings on AB 1183. The

20 reasons why its provisions are what they are, are a secret known only to the Big Four leaders of
the Legislature who drafted the provisions of AB 1183 in secret. 21
52. Further, there are hundreds of different health care subjects in AB 1183, each of
22
which required separate consideration by the Legislature if any reasoned decision was to be
23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 18 of 24 Page ID #:18

1 made by any legislator in the Senate or the Assembly in deciding to vote for or against any

2 particular provision or provisions in the hundreds of different subjects contained in the bill. AB
1183 was hence the pure product of pure logrolling, where, if any member wished his or her 3
health care provision in the multi-provisioned AB 1183 to be enacted, that the legislator had to 4
accept blindly, and vote for, all the other provisions relating to the hundreds of other subjects in
5 the same bill.

6

53. It is a fact, and it is manifest from all the facts alleged in this Fourth Claim for

7 Relief, that individual legislators who voted on AB 1183, and the Legislature as a whole, could
not and did not appropriately consider whether or not the reduced rates of the One Percent Rate 8
Reduction for home health services, were consistent with quality of services, or consistent with 9
equal access of beneficiaries to quality home health services, in the Medi-Cal FFS program.
10 Hence, facially, the action of the Legislature in enacting, and the action of the Director to

11 implement, the One Percent Rate Reduction provisions of AB 1183 in respect to home health

12 services were and are arbitrary, capricious, and contrary to law, (namely, contrary to the quality
and equal clauses of Sec. 30A); so that the provisions of (new) Welf. & Inst. Code§ 14105.191, 13
subds. (a) and (b)(1) which enacted the One Percent Rate Reduction in respect to home health 14
services, effective March 1, 2009, violate and hence are preempted, under the Supremacy
15 Clause, by Sec. 3OA.

16

54. Further, unless restrained by the Court by an appropriate injunction, the

17 defendant Director will implement the aforesaid One Percent Rate Reduction in respect to
home health services providers (including members of the Plaintiff CAHSAH); which in turn 18
will thereby result in injury to the Plaintiff CAHSAH; to its members who are home health 19
services providers, and to patients of home health services providers (including patients of
20 members of the Plaintiff CAHSAH); --which injury will foreseeably result by home health

21 providers (including members of CAHSAH) not accepting new Medi-Cal patients, or stopping

22 serving Medi-Cal patients at all, or by reducing kinds, amounts, locations, and levels of services
to Medi-Cal beneficiaries, or by going out of business, so that thereby beneficiaries are and will 23

24

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• Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 19 of 24 Page ID #:19

1 be caused, and threatened to be caused, denial and reduction of access to life-vital home health

2 services and treatment in the Medi-Cal FFS program, resulting in great physical suffering and
injury to beneficiaries, including beneficiaries served by the members of CAHSAH; many of 3
whom will thereby be forced into institutions such as nursing homes to obtain their necessary 4 medical treatment and medicines; and some will die; all to the irreparable injury, and threat of
5 irreparable injury, to thousands of Medi-Cal beneficiaries including the beneficiaries served by

6 the members of CAHSAH.

7

55. The Plaintiff CAHSAH, its Members, and the patients of the Members of the

Plaintiff CAHSAH, have no administrative remedy, nor any plain, speedy, or adequate remedy 8
whatsoever or at all, except by this complaint for injunctive relief.
9 WHEREFORE, the Plaintiff CAHSAH prays for judgment and orders as shall

10 hereinafter be specified:

11

FIFTH CLAIM FOR RELIEF

12

Against each of the defendants, for injunctive relief to enjoin the defendants to

refrain from implementing a One Percent Rate Reduction under Sec. 45 of AB

13

1183, -- including a 1% reduction in payments to home health services providers,

-- which statute, and the State action of defendants to implement the state statutes,

14

violate, and are hence preempted under the Supremacy Clause by, the quality and

equal access clauses of 42 U.S.C. § 1396a(a)(30)(A).

15

56. Plaintiff CAHSAH refers to and incorporates each of the allegations in the

16 preceding Paragraphs of this Petition as if fully set forth herein.

17

57. However, the enactment of the One Percent Rate Reduction in respect to home

18 health services and providers in the Medi-Cal FFS program, by subds. (a)- (b)(1) and (e)- (h) of

19 new Welf. & Inst. Code§ 14105.191, by Sec. 45 of AB 1183, by the Legislature was without 20 any consideration of quality and access as required by Sec. 30A,3 and was without any 21 consideration of what it costs providers to perform the various services and procedures, as

22

23

3 Othopaedic Hospital v. Belshe, 103 F.3d 1491, 1500 (9th Cir.l997).

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 20 of 24 Page ID #:20

1 required by Sec. 30A;4 such that the State's sole purpose, and the conclusive factor, in enacting
2 the one percent (1 %) payment reduction for providers in subds..(a)- (b)(l) and (e)- (h) ofWelf. 3 & Inst. Code§ 14105.191, (including home health services providers) in the Medi-Cal FFS
program, was to reduce the budget deficit.
4 58. Accordingly, under the standard of Orthopaedic Hasp., 103 F.3d 1491, at 1500
5 (1997); and Arkansas Medical Society, Inc. v. Reynolds, 6 F.3d 519 (8th Cir.l983), the action of
6 the Legislature to enact the aforesaid subds. (a)- (b)(l) and (e)- (h) of §14105.191 Welf. & Inst.
7 Code, including the One Percent Rate Reduction in respect to home health services providers
8 (including home health services providers who are members of the PlaintiffCAHSAH); for
9 services on or after March 1, 2009; for services on or after March 1, 2009, and (2) the policy
10 and action of the Director to implement these statutes by reducing payments to providers in the
11 Medi-Cal fee-for-service program, including payments to home health services providers, by 12 one percent (1 %), was and is arbitrary and capricious, and contrary to and in violation of the
quality and access provisions of Sec. 30A. 13
59. Accordingly, by each and all of the foregoing facts alleged, subds. (a)- (b)(l) and 14
(e)- (h) of§ 14105.191 Welf. & Inst. Code, and the One Percent Rate Reduction in respect to 15
home health services providers, were and are contrary to and in violation of the quality and 16 access provisions of Sec. 3OA, so as to be preempted. under the Supremacy Clause. by the
17 qualitv and access provisions of Sec. 30A, such that the defendant Director is and will be acting
18 in excess of and without jurisdiction to implement subds. (a)- (b)(l) and (e)- (h) of
19 § 141 05.191 Welf. & Inst. Code, including the One Percent Rate Reduction to home health
20 services providers, commencing March 1, 2009.

21

22

4 !d., 103 F.3d at 1500; Arkansas Medical Society, Inc. v. Reynolds, 6 F.3d 519

(8th Cir. 1993).

23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 21 of 24 Page ID #:21

1

60. Further, unless restrained by the Court by an appropriate injunction, the

2 defendant Director will implement the aforesaid subds. (a)- (b)(l) and (e)- (h) of§ 14105.191

3 Welf. & Inst. Code, and the One Percent Rate Reduction in payments to home health services
providers (including members ofthe Plaintiff CAHSAH); which in tum will foreseeably result
4
in injury to the Plaintiff CAHSAH; to the members of CAHSAH; and to the Medi-Cal
5
beneficiary patients of home health services providers (including patients of members ofthe 6
Plaintiff CAHSAH); --which injury will foreseeably result by home health providers (including
7 members of CAHSAH) not accepting new Medi-Cal patients, or stopping serving Medi-Cal

8 patients at all, or by reducing kinds, amounts, locations, and levels of services to Medi-Cal

9 beneficiaries, or by going out of business, so that thereby beneficiaries are and will be caused,

10 and threatened to be caused, denial and reduction of access to life-vital home health services and

11 treatment in the Medi-Cal FFS program, resulting in great physical suffering and injury to

beneficiaries, including beneficiaries served by the members ofCAHSAH; many of whom will 12

thereby be forced into institutions such as nursing homes to obtain their necessary medical 13
treatment and medicines; and some will die; all to the irreparable injury, and threat of 14
irreparable injury, to thousands of Medi-Cal beneficiaries including the beneficiaries served by
15 the members of CAHSAH.

16

61. The Plaintiff CAHSAH, its Members, and the patients of the Members of the

17 Plaintiff CAHSAH, have no administrative remedy, nor any plain, speedy, or adequate remedy 18 whatsoever or at all, except by tlus complaint for injunctive relief.

19

WHEREFORE, Plaintiff CAHSAH prays for judgment and orders as follows:

20

A

That Plaintiff CAHSAH have judgment against the defendant SANDRA

SHEWRY, Director of California Department of Health Services, (herein, "Director"), and that 21

defendants take nothing. 22

23

24

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•
Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 22 of 24 Page ID #:22

I

B. First Claim for Relief

2

That a preliminary and permanent injunction be issued to command the defendant

3 SANDRA SHEWRY, Director of the Department, and the defendants Does I through 50, to set
aside their preempted policy to implement subds. (a), (b)(!), (b)(2), and (c)- (e) of 4
§ 141 05.19 Welf. & Inst. Code, and, to refrain from implementing the same; including but not
5
limited to refraining from reducing payments by ten percent (I 0%) or by any lesser deduction, to 6
providers, including home health services providers, (including members of the Plaintiff
7 CAHSAH), in the Medi-Cal FFS program.

8

C. Second Claim for Relief

9

FIRST: That the Court issue a declaratory judgment and order which declares the rights

10 of the parties in respect to the August 18, 2008 preliminary injunction as amended by minute

II orders dated August 27, August 28, September 5, and September 15,2008, (herein, "the Order

in Question"); and that the Court find, adjudicate, and declare that: 12
I. The Order In Question ordered the Director "to refrain from enforcing Cal. Welf. 13
& Inst. Code § 14105.19(b)(I)," but that the Director has failed at all times to so obey the 14
aforesaid provision of the Order in Question, by deducting 10% from payments to providers in 15
the Medi-Cal FFS program, including home health services providers, for services on or after
16 August 18,2008,-- (except that the Director did stop making such deductions on September 5,
17 2008 in respect to physicians, dentists, optometrists, adult day care health centers, and

18 prescription drugs).

19

2. That by virtue of the duty of the Director, under the Order in Question,

20 not to deduct anything from payments to home health services providers for services furnished
in the Medi-Cal FFS program on or after August 18, 2008, --which duty is set forth in the Order 21
in Question, -- that the Director has a present, existing, and continuing mandatory duty, to pay
22
over all the 10% deductions to all home health services providers which the Director has made 23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 23 of 24 Page ID #:23

1 and will make in the future, to the respective home health services providers from whose

2 payments the aforesaid deductions were and are being made, -- all, without any demand being
required by any home health services provider to be entitled to receive such pay over. 3
SECOND: That if the Director has a good and legal cause not to obey or to be 4
excused fi·om complying with the Order in Question in respect to health service providers, that 5
it is incumbent on the Director to apply to the Court and obtain an order which modifies or 6
terminates the Order in Question in respect to payments to health services providers so as to
7 permit deductions to be made from payments to home health services providers; -- and for
8 failure to so apply and obtain any modification or termination ofthe Order in Question, that the

9 Order in Question continues in full force and effect as written, so as to cause the Director, who

10 is subject to the Order in Question, to continue to be subject thereto.

11

TIDRD: That the Court order the Director to perform her mandatory duty under the

Order in Question, to pay over, without any demand, all the 10% deductions to all home health 12

services providers which the Director has made and will make in the future, to the respective
13
home health services providers from whose payments the aforesaid deductions were and are
14
being made; unless and until the Director applies to the Court and obtains some order from the
15
Court which relieves her from any such further duty in this respect; all, without any home health

16 services provider having to demand that this be done.

17

D. Third Claim for Relief

18

- (1) That the Court issue fmd, adjudicate and issue a declaratory judgment and order

19 pursuant to 28 U.S.C. § 2201, which adjudicates and declares that the Director must first apply
20 to and obtain an order from the Court which terminates or modifies the August 18, 2008
injunction in respect to payments for home health services for dates of service on or after March 21
1, 2008, so as to permit the Director to implement the new One Percent Rate Reduction rate of 22
AB 1183 in respect to home health services; all, before the Director may implement the One 23

24

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Case 2:08-cv-07045-CAS-MAN Document 1 Filed 10/24/08 Page 24 of 24 Page ID #:24

1 Percent Rate Reduction ofWelf. & Inst. Code§ 14105.191 in respect to payments for home

2 health services;
(2) That the Court order and enjoin the Director from implementing AB 1183 and its 3
One Percent Rate Reduction, unless and until the Director first complies with the August 18, 4
2008 injunction by (1) refraining from deducting any amounts from any payments to health
5
services providers in the Medi-Cal FFS program, and (2) by paying over to all Medi-Cal FFS
6
home health providers all amounts of deductions theretofore deducted by the Director from
7 payments to Medi-Cal health service providers, since the August 18, 2008 injunction was issued
8 by this Court.

9

E. Fourth and Fifth Claims for Relief

10

That a preliminary and permanent injunction be issued to command the defendant

11 SANDRA SHEWRY, Director of the Department, and the co-defendants Does 1 through 50, to

set aside their preempted policy to in1plement subds. (a)- (b)(l) and (e)- (h) of§ 14105.191 12

Welf. & Inst. Code, and to refrain from implementing the same; including but not limited to 13
refraining from reducing payments by one percent (1 %) or by any lesser percentage or sum, to 14
Medi-Cal fee-for-service providers, including home health services providers in the Medi-Cal

15 fee-for-service program.

16

All Claims for Relief

17

F. That the Plaintiff CAHSAH have costs of suit incurred, together with such other

18 and further relief as may be just.

19 Dated: October 24, 2008. 20 21
22
23

LYNN S. CARMAN
By:~/~~ STANLEY L. FRIEDMA~ . ~ /
Attorneys fo lamuff California Association for Health
Services at Home

24

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 Case 2:08-cv-07045-CAS-MAN Document 6 Filed 11/03/08 Page 1 of 2 Page ID #:37

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11 INDEPENDENT LIVING CENTER OF
12 SOUTHERN CALIFORNIA, a nonprofit corporation; GRAY
13 PANTHERS OF SACRAMENTO, a nonprofit corporation; GRAY
14 PANTHERS OF SAN FRANCISCO, a nonprofit corporation; GERALD
15 SHAPIRO, Pharm.D. doing business as Uptown Pharmacy and Gift Shoppe;
16 SHARON STEEN, doing business as Central Pharmacy; MARK
17 BECKWITH; MARGARET DOWLING; TRAN PHARMACY, INC.,
18 a corporation, doing business as Tran Pharmacy; and JASON YOUNG,
19 Petitioners,
20 v.
21 SANDRA SHEWRY, Director of the
22 Department of Health Care Services of the State of California; DEPARTMENT
23 OF HEALTH CARE SERVICES, a Department of the State of California;
24 and DOES 1 through 50,

CV08-03315 CAS (MANx); CV08-7045-CAS(MANx) & CV08-7046-CAS(MANx) [PROPOSED] ORDER RE: RESPONDENT’S EX PARTE APPLICATION FOR ORDER STAYING THE ACTION AND THE TWO NEW RELATED CASES OR, IN THE ALTERNATIVE, CONTINUING HEARING ON PETITIONERS’ THIRD MOTION FOR PRELIMINARY INJUNCTION AND EXTENDING TIME TO RESPOND TO THE TWO NEW RELATED CASES

25

Respondents.

26

27

28

1

Case 2:08-cv-07045-CAS-MAN Document 6 Filed 11/03/08 Page 2 of 2 Page ID #:38

1

Respondent Sandra Shewry, Director of the California Department of Health

2 Care Services, appeared ex parte to request an Order staying the underlying

3 Independent Living matter and the Two New Related Cases in their entirety or, in

4 the alternative, continue the hearing on Petitioners’ Third Motion for Preliminary

5 Injunction for no less than thirty (30) days and extend the time for Respondent to

6 file responsive pleadings to the Two New Related Cases to thirty (30) days after

7 opposition to the Third Motion for Preliminary Injunction is due. FOR GOOD

8 CAUSE SHOWING, Respondent’s request is GRANTED in part and DENIED in

9 part.

10

The following cases are hereby stayed in their entirety until further order of

11 Court:

12

CV 08-07045-CAS (MANx): California Association for Health Services at

13

Home v. Sandra Shewry;

14

CV 08-07046-CAS(MANx): California Medical Transportation Association

15

v. Sandra Shewry ; and

16

CV 08-3315-CAS Independent Living et al v. Sandra Shewry

17

The Third Motion for Preliminary Injunction shall be heard on November

18 17, 2008 at 10:00 a.m., as originally scheduled.

19

IT IS SO ORDERED.

20

21 Dated: November 3, 2008 22

The Honorable Christina A. Snyder United States District Court Judge

23

24

25

26

27

28

2

 
 10/24/2017

CM/ECF - California Central District
(MANx),CLOSED,DISCOVERY,MANADR,RELATED-G

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:08-cv-07045-CAS-MAN

California Association For Health Services At Home v. Sandra Shewry et al Assigned to: Judge Christina A. Snyder Referred to: Magistrate Judge Margaret A. Nagle Related Case: 2:08-cv-03315-CAS-MAN Cause: 28:2201 Constitutionality of State Statute(s)

Date Filed: 10/24/2008 Date Terminated: 06/01/2011 Jury Demand: None Nature of Suit: 950 Constitutional - State Statute Jurisdiction: Federal Question

Plaintiff
California Association For Health Services At Home a California nonproﬁt corporation

represented by Lynn S Carman Medicaid Defense Fund 71 Marin Valley Drive Novato, CA 94949 415-312-9707 Fax: None Email: lynnscarman@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stanley L Friedman Law Ofﬁces of Stanley L Friedman 445 South Figueroa Street 27th Floor Los Angeles, CA 90071-1631 213-629-1500 Fax: 213-489-6899 Email: friedman@friedmanlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Sandra Shewry Director of Department of Health Care Services of the State of California
Defendant DOES 1 through 50

Date Filed 10/24/2008

# Docket Text
1 COMPLAINT against Defendants Sandra Shewry, DOES 1 through 50. (Filing fee $ 350 PAID.), ﬁled by Plaintiff California Association For Health Services At Home. [Give

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?107927270790561-L_1_0-1

1/3

10/24/2017

CM/ECF - California Central District
Dismissal of Does.] (et) (Additional attachment(s) added on 10/27/2008: # 1 Notice of Assignment, # 2 Summons, # 3 Civil Cover Sheet) (ds). (Entered: 10/27/2008)

10/24/2008

20 DAY Summons Issued re Complaint - (Discovery) 1 as to Defendants Sandra Shewry, DOES 1 through 50. (et) (Entered: 10/27/2008)

10/24/2008

2 CERTIFICATION AND NOTICE of Interested Parties ﬁled by Plaintiff California Association For Health Services At Home. (et) (ds). (Entered: 10/27/2008)

10/24/2008 3 NOTICE TO PARTIES OF ADR PILOT PROGRAM ﬁled. (et) (Entered: 10/27/2008)

10/24/2008

4 NOTICE of Related Case(s) ﬁled by Plaintiff California Association For Health Services At Home. Related Case(s): CV 08-3315 CAS (MANx) (rn) (Entered: 10/29/2008)

10/30/2008

5 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 08-05 -Related Caseﬁled. Related Case No: CV 08-3315 CAS (MANx). Case transferred from Judge Percy Anderson and Magistrate Judge Alicia G. Rosenberg to Judge Christina A. Snyder and Magistrate Judge Margaret A. Nagle for all further proceedings. The case number will now reﬂect the initials of the transferee Judge CV 08-7045 CAS (MANx).Signed by Judge Christina A. Snyder (rn) (Entered: 10/30/2008)

11/03/2008

6 ORDER RE: RESPONDENT'S EX PARTE APPLICATION FOR ORDER STAYING THE ACTION AND THE TWO NEW RELATED CASES OR, IN THE ALTERNATIVE, CONTINUING HEARING ON PETITIONERS' THIRD MOTION FOR PRELIMINARY INJUNCTION AND EXTENDING TIME TO RESPOND TO THE TWO NEW RELATED CASES by Judge Christina A. Snyder: Respondent Sandra Shewry, Director of the California Department of Health Care Services' Ex Parte Application for Order Staying the Action and the Two New Related Cases or, in the Alternative, Continuing Hearing on Petitioners' Third Motion for Preliminary Injunction and Extending Time to Respond to the Two New Related Cases [ﬁled under CV 08-03315 CAS (MANx)] is GRANTED in part and DENIED in part. The following cases are hereby stayed in their entirety until further order of Court: CV 08-07045 CAS (MANx): California Association for Health Services at Home v. Sandra Shewry; CV 08-07046 CAS (MANx): California Medical Transportation Association v. Sandra Shewry; and CV 08-03315 CAS Independent Living et al v. Sandra Shewry. The Third Motion for Preliminary Injunction [ﬁled under CV 08-03315 CAS (MANx)] shall be heard on 11/17/2008 at 10:00 AM, as originally scheduled. (gk) (Entered: 11/04/2008)

11/04/2008

7 NOTICE TO COUNSEL by Judge Christina A. Snyder: This case has been assigned to the calendar of Judge Christina A. Snyder. Counsel are advised that the Court expects strict compliance with the provisions of the Local Rules and the Federal Rules of Civil Procedure. See document for details. (gk) (Entered: 11/04/2008)

01/13/2009

8 NOTICE Voluntary Dismissal of Third, Fourth and Fifth Claims for Relief (Federal Rule of Civil Procedure 41(a)(1) ﬁled by Plaintiff California Association For Health Services At Home. (Friedman, Stanley) (Entered: 01/13/2009)

08/19/2009

9 ORDER DENYING TRANSFER by the Judicial Panel on Multidistrict Litigation, MDL 2069, that the motion by Plaintiffs in an action in the Northern District of California (3:085173), pursuant to 28 U.S.C. Section 1407, for centralization of the six actions listed on Schedule A (attached) is denied. (gk) (Entered: 08/19/2009)

06/01/2011

10 MINUTES (IN CHAMBERS) - ORDER REMOVING ACTION FROM THE ACTIVE LIST OF CASES, PURSUANT TO A STAY IN THE ACTION by Judge Christina A. Snyder: THE COURT, having approved a stay in this matter on 11/3/2008; IT IS HEREBY ORDERED that this action is hereby removed from this Court's active caseload until further application by the parties or order of this Court. IT IS FURTHER ORDERED that counsel shall ﬁle a joint report detailing the status of the case within 90 days and every

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quarter thereafter until the action has been reactivated on this Court's active caseload or a stipulation for dismissal is ﬁled. This Court retains full jurisdiction over this action and this Order shall not prejudice any party to this action. (Made JS-6. Case Terminated.) Court Reporter: Not Present. (gk) (Entered: 06/02/2011)
11 NOTICE OF APPROVAL OF STATE PLAN AMENDMENTS ﬁled by Respondent Sandra Shewry. (Snuggs, Carmen) (Entered: 11/28/2011)
12 MINUTES (IN CHAMBERS) STAY OF PROCEEDINGS by Judge Christina A. Snyder: By order dated 7/8/2013, the Court directed the parties in these matters to submit a joint status report. Dkt. #242, in case no. 2:11-CV-09688-CAS(MANx). The joint status report was ﬁled on 7/23/2013. Dkt. #243, in case no. 2:11-CV-09688-CAS(MANx). The Court has reviewed the parties' positions set forth therein, as well as the issues presented by the petition for writ of certiorari now pending in the United States Supreme Court, see Supreme Court Docket No. 13-253. Based on the foregoing, the Court ﬁnds that there is good cause to stay the proceedings or, if applicable, to continue the existing stay of the proceedings in the above-entitled cases, pending notiﬁcation from this Court. The parties are directed to ﬁle a joint status report with this Court within 14 days after the Supreme Court has taken any action with respect to the above-referenced petition for writ of certiorari. Court Reporter: Not Present. (gk) (Entered: 11/06/2013)
13 NOTICE OF DISMISSAL ﬁled by Plaintiff California Association For Health Services At Home pursuant to FRCP 41a(1) as to California Association For Health Services At Home. (Friedman, Stanley) (Entered: 04/23/2015)
14 STIPULATION to Dismiss Case pursuant to Federal Rule of Civil Procedure 41(a)(1) ﬁled by Plaintiff California Association For Health Services At Home. (Attachments: # 1 Proposed Order)(Friedman, Stanley) (Entered: 04/30/2015)
15 ORDER ON STIPULATION by Judge Christina A. Snyder: Upon Stipulation 14 , IT IS HEREBY ORDERED that, pursuant to Federal Rule of Civil Procedure 41(a)(1), Case No. CV 08-7045 is hereby dismissed with prejudice. (gk) (Entered: 05/06/2015)

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