Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 1 of 40 R& IN CLERK'S OFF;

Q ~,~NP~'
O~ `\

,~, ,JA~3-1 ~C;3
IN THE UNITED STATES DISTRICT COURT FOR` THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

MICHAEL BIRDSONG, KELLEY DOTSON, SUSAN EDWARDS, BOBBY JONES, MIA MURRAY LARRY PRITCHARD, and PATRICIA REDMOND, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
SONNY PERDUE, in his official capacity as Governor of the State of Georgia, GEORGIA DEPARTMENT OF COMMUNITY HEALTH, GEORGIA DEPARTMENT OF HUMAN RESOURCES, JIM MARTIN, Commissioner, Georgia Department of Human Resources, in his official capacity, GARY BEDDING, Commissioner, Georgia Department of Community Health, in his official capacity,
Defendants .

COMPLAINT - Class Action CIVIL ACTION NO.
1 : o~-cv -o28a ,:7 . . . ,; ;.

COMPLAINT

AO 81 1822 .3

rd~ vn ~ ;,

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 2 of 40
I. INTRODUCTION 1 . The Plaintiffs in this case are persons with physical disabilities who receive or are seeking to receive long-term health-care services under federally assisted state programs administered by Defendants . Although Plaintiffs prefer and are eligible to receive care in their homes and communities, Defendants' official practices and policies cause Plaintiffs to be unnecessarily segregated in nursing homes or at risk of nursing home placement. Defendants' actions violate Plaintiffs' rights under the Americans with Disabilities Act ("ADA"), 42 U.S .C . §§ 12101-12213, § 504 of the Rehabilitation Act of 1973, 29 U.S .C . § 794(a) ("Section 504"), Title XIX of the Social Security Act, 42 U.S .C . § 1396-1396v ("Title XIX" or the "Medicaid Act") and the Civil Rights Act of 1871, 42 U.S .C . § 1983 . 2 . The ADA is a legislative response to the fact that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S .C . § 12101(a)(2). 3 . The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied
-Z-
AO 8118229

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 3 of 40
the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity ." 42 U .S.C . § 12132 .
4 . The Supreme Court has held that "unjustified institutional isolation of persons with disabilities is a form of discrimination" prohibited by the ADA . Olmstead v. L. C., 527 U.S . 581, 600 (1999) .
5 . In their administration of long-terns health-care services and programs for persons with disabilities, Defendants are required to comply with the "integration mandate" dictated by the ADA, by Section 504, and by federal regulations . These authorities require that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities ." 28 C .F.R. § 35 .130(d); see also 28 C.F.R. § 41 .51(d) (imposing the same requirement on the administration of federally assisted programs). The "most integrated setting appropriate" is "a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible ." 28 C.F .R . pt. 35, App. A, p . 450 .
6. The ADA's implementing regulations further provide that "[a] public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration : (i) that have the effect of subjecting qualified
-3-
AO 811822 .3

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 4 of 40
individuals with disabilities to discrimination on the basis of disability ; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities." 28 C.F .R. § 35 .130(b)(3) ; see also 28 C .F.R. § 41 .51(b)(3) (imposing the same requirement on the administration of federally assisted programs).
7 . In their administration of long-term health-care services and programs for persons with disabilities, Defendants are legally obligated to make "reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity ." 28 C.F .R. § 35 .130(b)(7).
8. Defendants discriminate against Plaintiffs by violating the integration mandate. The most integrated setting for Plaintiffs to receive long-term healthcare services is in their homes and communities . This setting is appropriate to Plaintiffs' needs, or could be made appropriate with reasonable modifications to the policies, practices, or procedures of Defendants . Defendants do not offer appropriate services to Plaintiffs in their homes and communities but continue to
-4-
AO 811822)

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 5 of 40
provide Plaintiffs with services only in nursing homes, which are unnecessarily segregated settings .
9. Defendants already administer programs that could provide needed services to Plaintiffs outside of institutions . To serve some persons with physical disabilities in a non-institutional setting, Defendants operate two home and community based (HCB) programs. The United States Centers for Medicare and Medicaid Services ("CMS") have approved these programs for Medicaid reimbursement, and in conjunction with that approval, certain statutory requirements of the Medicaid program have been waived as authorized by Title XIX . For this reason, the programs are referred to as "waiver programs ." Georgia's waiver programs are the Community Care Services Program (CCSP) and the Independent Care Waiver Program (ICWP) . Defendants also administer two Medicaid-reimbursed demonstration programs approved by the CMS : ShepherdCare, an ICWP program with a demonstration case management component, and the SOURCE program, which serves elderly and disabled persons at varying levels of medical need.
10 . The long-term health-care services provided under the programs Defendants administer are federally reimbursed under Title XIX. Defendants
-5-
AO 811822 .7

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 6 of 40
administer the ICWP, ShepherdCare, SOURCE, and CCSP programs under Title XIX pursuant to waivers that allow them to include as "medical assistance" home or community-based services (other than room and board) pursuant to an approved state plan. As a condition to each waiver, the Medicaid Act requires Defendants to inform "individuals . . . determined to be likely to require the level of care provided in a hospital, nursing facility . . . that there are feasible alternatives, . . ., at the choice of such individuals, to the provision of inpatient . . . nursing facility services . . . ." 42 U.S .C. § 1396n(c)(2)(C). The Federal Regulations require "[a]ssurance that when a recipient is determined to be likely to require the level of care provided in a . . . [nursing facility] . . ., the recipient . . . will be - (1) Informed of any feasible alternatives available under the waiver; and (2) Given the choice of either institutional or home and community-based services." 42 C .F.R. § 441 .302(d). In violation of the statute and regulations, Defendants administer state programs and services in a way that fails to adequately inform Plaintiffs of the waiver alternatives . This violation of the Medicaid Act further deprives Plaintiffs of a meaningful choice between nursing-home care and the more integrated care programs that are provided in the community, and of the opportunity to apply for and to be placed on the waiting lists for these HCB programs .
-6-
AO 811822 .3

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 7 of 40
11 . Title XIX further requires that Defendants provide Medicaid services to eligible persons with "reasonable promptness ." 42 U .S .C. § 1396a(a)(8) . In violation of this requirement, Defendants have failed to provide Plaintiffs with reasonably prompt access to long-term health-care services in home and community settings, although Plaintiffs are eligible for such services .
12 . Among states with waiver programs, Georgia ranks close to the bottom in the percentage of Medicaid participants being served in communitybased programs rather than in institutions. According to the Georgia Department of Community Health, in state fiscal year 2000 a total of 13,657 persons were served under the ICWP, CCSP, ShepherdCare and SOURCE programs, whereas 50,004 persons -- over three and one-half times as many -- were served in nursing homes. Upon information and belief, only a small number of those served in HCB programs are individuals who were provided with a choice to move into the HCB programs from nursing facilities .
13 . In operating the HCB programs, Defendants utilize criteria and methods of administration that discriminate against Plaintiffs and defeat or substantially impair the accomplishment of the objectives of the waiver programs in violation of the ADA and Section 504. 28 C .F .R. § 35 .130(b)(3)(i) ; 28 C.F .R.
-7-
AO 9 11822 .1

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 8 of 40
§ 41 .51(b)(3)(i) . For example, Defendants utilize arbitrary age criteria in the ICWP, place overly restrictive limits on the number of attendant care hours an HCB waiver recipient can receive, and contract with only a very limited number of service providers that have wheelchair accessible facilities . All of these criteria and methods of administration have the effect of requiring Plaintiffs to receive public disability services in the segregated environment of a nursing home .
14 . In order for Georgia's waiver programs to receive federal approval, Defendants were required to assure the Secretary of Health and Human Services that Defendants would provide persons in nursing homes or at risk of nursinghome placement with information about the more integrated care alternatives available under HCB programs . In the approximately two decades that waiver programs have been available in Georgia, Defendants have been aware that hundreds of persons in nursing homes or at risk of nursing home placement did not know they could apply for HCB programs. Despite this awareness, Defendants did not make this information available to these potential program consumers in a way that would permit meaningful access to the HCB programs.
15 . Defendants have admitted that hundreds of persons with disabilities either in nursing homes or at risk of nursing home placement have been determined
-8-
AO 8 11922.3

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 9 of 40
by the State of Georgia to be eligible for HCB programs but have been placed on waiting lists and have not received community-based services .
16. Defendants' stated reason for this treatment of persons with disabilities is lack of funding for waiver programs . Nevertheless, Defendants have admitted that home and community-based care costs significantly less, on average, than institutional care . For example, the Georgia Department of Human Resources, Division of Aging Services, reported that in state fiscal year 2001 the per-client cost of the CCSP was a mere 26% of the cost of nursing-home care, for a total savings of $221 million in state and federal funds from the CCSP alone .
17 . In the three and one half years since the Olntstead v. L.C. decision, the State has made no significant effort to operate its long-terns care services in an even-handed manner so that persons who need HCB services have this option. Instead, the State spends nearly 80% of its long-term care Medicaid budget on institutional care and only 16% on HCB waiver programs . During this same time period, the waiting lists for the HCB programs have greatly increased.
18. CMS, the agency within the United States Department of Health and Human Services that funds Medicaid and sets the federal Medicaid policies with which Defendants must comply, has instructed Defendants that "no one should
-9-
AO 8115_2 .3

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 10 of 40

have to live in an institution or a nursing home if they can live in the community with the right support." Letter from Timothy M. Westmoreland (former director, Center for Medicaid and State Operations) and Thomas Perez (former director, Office for Civil Rights, United States Department of Health and Human Services) to State Medicaid Directors of Jan. 14, 2000, at 1 .
19. Plaintiffs could receive long-term health care in their own homes, or in other more integrated settings outside of nursing homes, if Defendants funded and administered Georgia's HCB programs in accordance with the integration mandate .
20 . Plaintiffs bring this lawsuit to end Defendants' discriminatory practices and policies . Defendants violate the ADA and Section 504 by requiring that Plaintiffs be confined in nursing homes in order to receive long-term healthcare services, when community-based care is both available and appropriate to Plaintiffs' needs. Defendants further violate the ADA and Section 504 by utilizing criteria and methods of administration in their HCB waiver programs that have the effect of discriminating against Plaintiffs . Defendants also violate Title XIX by failing to provide benefits to Plaintiffs with reasonable promptness, failing to adequately inform Plaintiffs of the waiver alternatives, and failing to allow

AO 911822 .3

-10-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 11 of 40

Plaintiffs a choice of institutional or home and community-based services . In administering a state program in such a way as to deprive Plaintiffs of federal rights, Defendants violate 42 U.S.C. § 1983 .
II. JURISDICTION AND VENUE 21 . This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1343 . 22 . Plaintiffs' claims are authorized by 28 U .S.C. §§ 2201 and 2202, by 42 U.S.C. §§ 1983 and 12133, and by 29 U.S .C . § 794a .
III. PARTIES A. Plaintiffs
23 . Michael Birdsong is a 35-year-old resident of Lawrenceville, Georgia. 24. Kelley Dotson is a 47-year-old resident of Lilburn, Georgia. 25 . Susan Edwards is a 41-year-old resident of Alpharetta, Georgia. 26. Bobby Jones is a 68-year-old resident of Roswell, Georgia. 27. Mia Murray is a 33-year-old resident of Lilburn, Georgia . 28 . Larry Pritchard is a 55-year-old resident of Austell, Georgia. 29. Patricia Redmond is a 42-year-old resident of Austell, Georgia.

AO 811822 .7

-11-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 12 of 40
B . Defendants 30 . Defendant Sonny Perdue is the Governor of the State of Georgia. He
is responsible for appointing the conunissioner of the Department of Community Health ("DCH") and approving the appointment by the Board of the Department of Human Resources ("DHR") of its commissioner. He is sued in his official capacity for actions and omissions under color of state law.
31 . Defendant DCH is the state agency responsible for administering the Georgia Medicaid Program . See 42 U.S .C . § 1396a(a)(5); O.C .G.A. § 31-SA-4(a). It is a public entity as defined in 42 U.S .C . § 12131(1), and is a recipient of federal financial assistance.
32 . Defendant Gary Redding is the Commissioner of the DCH. Pursuant to O.C .G .A . § 31-SA-6, he is responsible for the functions and programs of the DCH, including the state Medicaid program and the HCB waiver programs. Defendant Redding is sued in his official capacity for actions and omissions under color of state law .
33 . Defendant DHR is empowered under state law to apply for, receive, and administer federal funds under the Medicaid program and other federal health
-12-
AO 811822 .3

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 13 of 40

programs. See O.C .G .A . § 31-2-2. It is a public entity as defined in 42 U.S .C . § 12131(1) and is a recipient of federal financial assistance .
34. Defendant Jim Martin is the Commissioner of the DHR. Pursuant to O.C .G.A . § 49-2-1, he is responsible for the functions and programs of the DHR, including its acceptance and disbursement of federal Medicaid funds . He is sued in his official capacity for actions and omissions under color of state law .
IV. CLASS-ACTION ALLEGATIONS 35 . Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs Michael Birdsong, Kelley Dotson, Susan Edwards, Bobby Jones, Mia Murray, Larry Pritchard, and Patricia Redmond bring this action on behalf of themselves and all other persons similarly situated . The plaintiff class consists of all Georgia residents with disabilities (1) who could live in the community with appropriate support, including the HCB services administered by Defendants, (2) who do not oppose community placement, and (3) who, as a result of Defendants' actions or failure to act, are either (a) unnecessarily segregated in a nursing home, or (b) at risk of nursing home placement. 36 . The exact size of the class is unknown to Plaintiffs, but the class is believed to be so large that individual joinder of all members would be

An 311822 .3

-13-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 14 of 40

impracticable. According to the DCH website, there are approximately 50,000 persons with disabilities receiving Medicaid-funded nursing home services in Georgia. Approximately 5,000 are under 65 years of age . Many of these persons meet the criteria for inclusion within the plaintiff class. Moreover, many class members, especially those in nursing homes, have not been informed about longterm care services in HCB programs, and have therefore not attempted to apply for such programs even though they could live in the community with appropriate support.
37 . The questions of law and fact common to the class are whether Defendants violate the ADA, Section 504, and Title XIX by: (1) requiring Plaintiffs to be unnecessarily segregated and confined in institutions in order to receive long-term health-care services, rather than providing those services in Plaintiffs' homes and communities ; (2) utilizing criteria and methods of administration in the HCB waiver programs that discriminate against Plaintiffs and defeat or substantially impair the accomplishment of the objectives of the HCB waiver programs ; (3) failing adequately to inform Plaintiffs of the availability of HCB waiver programs ; (4) failing, in their administration of Medicaid-reimbursed long-term health-care programs, to provide Plaintiffs with a choice between

AO 811822 .3

-14-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 15 of 40
institutional (nursing home) or home and community-based services ; and (5) failing to provide HCB services to eligible individuals with reasonable promptness .
38 . The claims of the named Plaintiffs are typical of the class members' claims .
39. The named Plaintiffs will fairly and adequately protect the interests of the class. They have no conflict of interest with other class members . Plaintiffs' counsel is experienced in litigating class actions, including actions to enforce the civil rights of persons with disabilities .
40 . Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate class-wide injunctive and declaratory relief.
V. FACTS A. Plaintiffs' Need For Community-Based Services
Michael Birdsong 41 . Michael Birdsong is 35 years old . He suffers from spina bifida, hydrocephalus, and depression . He has been in nursing homes since September 2000, when he fell out of his wheelchair and hurt his knee while crossing the street .
-15
AU `3118223

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 16 of 40

He currently resides in the Life Care of Gwinnett, 3850 Safehaven Drive, Lawrenceville, GA 30344 .
42. When Mr. Birdsong was first admitted to a nursing home, no one told him about community-based alternatives . He first learned of these alternatives from Toni Pastore, a paralegal with Atlanta Legal Aid Society, Inc.
43 . In attempting to secure alternative community-based care, Mr. Birdsong has encountered a series of inconsistent responses . On September 24, 2001, Mr. Birdsong applied for ICWP, CCSP and ShepherdCare . His application for CCSP, which, like all Medicaid waiver programs, requires that Mr. Birdsong require the level of care provided in a nursing home, was approved on November 27, 2001 . He has been on a waiting list for community-based services since that date.
44 . In December 2001 and March 2002, Mr. Birdsong was denied ICWP and ShepherdCare purportedly because he had the ability to handle his needs independently and did not need nursing home care. He is appealing the ShepherdCare decision through the Office of State Administrative Hearings .
45 . Upon information and belief, in June 2002, when it was time to determine the level of care in order to secure Medicaid reimbursement for

AO 8 11822.3

-16-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 17 of 40
continued nursing home placement, the Georgia Medical Care Foundation, the same agency that evaluated him for one of the community-based programs, determined that he did meet the level of care required for nursing home services, i.e ., that he needed assistance in his activities of daily living .
46 . The SOURCE program notified Mr. Birdsong's counsel in his ShepherdCare administrative appeal that Mr . Birdsong is eligible for SOURCE.
47 . Mr. Birdsong wants to live in the community. He is interested in going back to school, possibly in computers or electronics . He wants to get a job and get off of public assistance . The nursing home is a restrictive and lonely place for him to live. He is a great deal younger than most of the other residents, and because of his institutionalization he is unable to participate in activities that interest him .
48 . Before being institutionalized, Mr. Birdsong lived in his own apartment. He functions independently in many ways, although he does need some attendant care and housekeeping assistance . If appropriate services were provided, Mr. Birdsong could live in the community.
17-
AO 8118229

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 18 of 40

Kelley Dotson 49. Plaintiff Kelley Dotson is 47 years old. She has lived in Lilburn Health Care, a nursing facility at 788 Indian Trail Road, Lilburn, GA 30047, since early 2001 . 50. Ms . Dotson has had a stroke and has some speech problems as a result of the stroke, but no other significant health issues. She was not advised that there were any home or community-based alternatives where she could receive disability services when she was admitted to the nursing home. However, a close friend learned of their availability and assisted her with an application for ICWP . 51 . Ms . Dotson received no communication from Defendants about her ICWP application, and in March 2002 sought assistance from Atlanta Legal Aid in following up on her application . She applied for CCSP as well in April 2002. She was placed on the CCSP waiting list in May 2002. She later learned that she had been on an ICWP waiting list since December 2001 based on her prior application . 52. Ms . Dotson would like to live in the community and attend jobtraining classes. Her life in the nursing home frustrates her because she is active and willing to work, but can do nothing of consequence as long as she continues to live in the nursing home. She has found her nursing home stay very isolating

AO 811822 .3

-18-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 19 of 40

because of her speech difficulty and the long wait for a communication device evaluation .
53 . With appropriate services, Ms. Dotson could live in the community. Susan Edwards 54. Plaintiff Susan Edwards is 41 years old. She has had cerebral palsy since birth and uses a motorized scooter or wheelchair for ambulation . She currently lives at home with her parents in Alpharetta, Georgia. Her parents assist her with her activities of daily living. 55 . Ms . Edwards first learned of the Medicaid waiver programs in 2001 when she participated in "Partners in Policymaking", a leadership and advocacy training program for people with developmental disabilities and their families . 56. In November 2002, with the assistance of staff members at Disability Link, the metro Atlanta Center for Independent Living, Ms. Edwards applied for the ICWP and the CCSP . She was determined eligible for the CCSP in November 2002 and placed on a waiting list. In December 2002, she was determined eligible for ICWP and placed on a waiting list .

AO 9 1 181:3

-19-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 20 of 40

57 . Ms. Edwards is at risk of nursing home placement. She worries that when her aging parents become unable to care for her, she may some day have to live in a nursing home to receive the assistance she needs.
58 . Ms . Edwards does not want to live in a nursing home. She would like to live in an apartment setting, perhaps with a roommate, and would like to get a meaningful job. Without the assistance of the Medicaid waivers, Ms. Edwards would not be able to live in an apartment or other community setting on her own .
Bobby Jones 59. Plaintiff Bobby Jones is 68 years old. He has diabetes, heart disease, glaucoma, hypertension, and vascular disease, and both of his legs have been amputated below the knee. Since March 1997, he has been institutionalized in Roswell Nursing Home, 1109 Green Street, Roswell, GA 30075 . 60. When Mr . Jones first entered the nursing home in March 1997, he was not informed about home and community-based programs . He first learned of these programs from Toni Pastore in the fall of 2001 . 61 . In November 2001, Mr. Jones applied for ICWP, CCSP and ShepherdCare . His ICWP and ShepherdCare applications were denied because those programs do not offer services to persons over 64 years of age . He was

AO 811312 .7

-20-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 21 of 40

determined to be eligible for CCSP and was placed on a waiting list in December 2001 .
62 . Mr . Jones wants to live in the community. His regular visitors live some distance away from the nursing home and have difficulty visiting him. The nursing home is a restrictive environment for him . He does not often go on outings with the nursing home because the home does not bring along the necessary staff to change his adult diapers. Mr. Jones is on the waiting list for a subsidized housing complex near his old neighborhood, where he would like to live with his daughter .
63 . Despite his many disabling conditions, Mr. Jones is independent in many ways. He enjoys cooking and can get himself out of bed by using a transfer board. With appropriate services, Mr. Jones could live in the community with his family .
Mia Murray 64 . Plaintiff Mia Murray is 33 years old and is living in Lilburn Health Care Center, 788 Indian Trail Road, Lilburn, GA 30047, a nursing facility . 65 . Ms . Murray was diagnosed with multiple sclerosis in 1986, but is otherwise medically stable . While she currently needs support in some of her

AO 8118223

-21-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 22 of 40
activities of daily living, she could gain additional ability and function with appropriate therapy and independent living skills training . None of this therapy or training is available to her in the nursing home.
66 . When Ms . Murray was admitted to the nursing home she was not informed of the availability of home and community-based services . She overheard a conversation between Plaintiff Kelley Dotson, her roommate, and Toni Pastore of Atlanta Legal Aid, and sought assistance in making applications for waiver services from Ms . Pastore .
67 . Applications were submitted on behalf of Ms . Murray in April 2002 for the ICWP, CCSP and ShepherdCare programs . She was denied ICWP services based on an alleged inability to direct her own services. This denial was successfully appealed through the Office of State Administrative Hearings, and she was place on a waiting list for services in October 2002. She was found eligible for CCSP services and placed on the waiting list in May 2002 . Ms. Murray's ShepherdCare application is still pending.
68 . Ms. Murray is anxious to leave the nursing home and is interested in working with vocational rehabilitation specialists . She has already completed two years toward a degree in management. Because of her age, her social and
22-
AO 311822 .3

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 23 of 40

intellectual needs are not being met at the nursing home . As a result, Ms . Murray has suffered from depression .
69. Ms . Murray would like to live in the community, and could do so with appropriate services .
Larry Pritchard 70 . Plaintiff Larry Pritchard is 55 years old . He suffers from multiple sclerosis . He has resided since November 1998 at Austell Nursing Home, 1700 Mulkey Road, Austell, GA 30106. 71 . Mr. Pritchard applied for ICWP, CCSP and ShepherdCare in October 2001 . He was denied participation in CCSP purportedly because he is not ambulatory and because the program does not allocate an adequate amount of money per day to serve Mr. Pritchard's needs in the community. He was denied ICWP services in December 2001 also for "cost" reasons, but successfully appealed that decision through the Office of State Administrative Hearings and was retroactively placed on a waiting list for services as of October 2001 . He was approved for ShepherdCare services (a program with the same criteria as the ICWP program) and placed on a waiting list in March 2002.

AO 8 1 1822 .3

-23-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 24 of 40

72 . Mr. Pritchard would like to live in the community, and could do so with appropriate services. He would like to reestablish a relationship with his large family and lead a normal life where he is able to interact with neighbors and friends .
Patricia Redmond 73 . Plaintiff Patricia Redmond is 42 years old. She suffered an intracerebral hemorrhage in November 2000 . She also has diabetes, seizure disorder, and hypertension. She currently lives in Austell Nursing Home, 1700 Mulkey Road, Austell, GA 30106 . 74. Ms . Redmond applied for ICWP and CCSP in September 2001, and for ShepherdCare in December 2001 . She was approved for CCSP services in October 2001 and placed on a waiting list. She was denied ICWP services in January 2002 because she could not talk due to a tracheotomy. She was approved for ShepherdCare in March 2002, a program with the same eligibility criteria as ICWP . She successfully appealed the ICWP decision through the Office of State Administrative Hearings and was placed on that waiting list in June 2002 . 75 . Ms. Redmond would like to live in the community with her 12-yearold daughter.

AO 8 11822.3

-24-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 25 of 40

76. With appropriate services, Ms. Redmond could live in the community . B. Medicaid Program and HCB Waivers
77. The Medicaid program, authorized by Title XIX, is a joint federalstate program. Medicaid is a matching cost arrangement under which the federal government reimburses a portion of the expenditures incurred by states that elect to furnish medical assistance to individuals whose income and resources are insufficient to cover the costs of their medical care .
78. States are not required to participate in the Medicaid program, but, if they choose to do so, they must operate their programs within federal statutory and regulatory provisions. Each participating state must adopt a State Plan that delineates the standards for determining eligibility and identifies the extent of Medicaid benefits . Georgia has chosen to participate in the Medicaid program and has adopted a State Plan.
79 . For every four dollars that Georgia puts into the Medicaid program, the federal government provides approximately six dollars toward health-care services for eligible Georgia recipients .

AO 911922 .3

-25-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 26 of 40

80 . Each participating state must designate a single state agency responsible for administering the Medicaid program. The State of Georgia has so designated the Georgia Department of Community Health .
81 . Title XIX mandates that a State Plan provide certain specified services that are included in its definition of "medical assistance ." See 42 U.S .C . § 1396a(a)(10)(A) (incorporating 42 U.S .C . §§ 1396d(a)(1)-(5), (17), and (21)). These mandatory services include inpatient hospital services, outpatient services, nursing facility services, and physician's services, among other things.
82 . In addition to the mandatory services, Title XIX also permits (but does not require) a State Plan to provide other specified "optional" services identified as "medical assistance" in 42 U.S .C . § 1396d(a) . Georgia has chosen not to provide certain optional services relating specifically to community-based longterm care, including personal care services, under its regular Medicaid programs . It has chosen, instead, to provide home and community-based "waiver" services .
83. To receive federal reimbursement under a HCB waiver, a state must make certain assurances to the CMS. Among these is an assurance of "costneutrality," i.e., that the average per capita cost of home care under the waiver

AO 81182.'. .3

-z6-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 27 of 40

program will not exceed the average per capita cost of institutional care. 42 U.S .C . § 1396n(c)(2)(D).
84 . Under a waiver, a state can provide an array of home or communitybased services, including some services not identified in 42 U.S .C. § 1396d(a) as "medical assistance ." 42 U.S.C. § 1396n(c)(4)(B) ; 42 C.F.R. § 440.180. These extra services could not be reimbursed under Title XIX apart from the waiver program . Thus, for example, a state can provide attendant care services in the community for persons with impairments, as well as other appropriate services to assist persons to reside in their homes and communities.
85 . In an approved waiver program, the Medicaid Act allows a state to: waive the statutory requirements of statewide application and comparability, 42 U.S .C. §§ 1396a(a)(1) and (10)(B); alter the income and resource rules for eligibility, 42 U.S.C . § 1396a(a)(10)(C)(i)(III) ; and impose a cap upon the number of persons eligible for services under the waiver, provided that number is not capped at fewer than 200 persons . 42 U.S .C. § 1396n(c)(3) and (9)-(10) .
86 . Under the Medicaid statute and regulations, in order to participate in the waiver program a state must provide "[a]ssurance that when a recipient is determined to be likely to require the level of care provided in a hospital, [or] NF

AO 8 11822.3

_27_

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 28 of 40

[nursing facility] . . ., the recipient . . . will be (1) [i]nformed of any feasible alternatives available under the waiver; and (2) given the choice of either institutional or home and community-based services ." 42 C .F.R. § 441 .302(d)(1)(2), 42 U.S .C . § 1396n(c)(2)(C) .
87. Despite their promise to provide eligible Medicaid recipients a choice of either institutional or HCB services, Defendants did not inform Plaintiffs of such alternatives, nor did they provide Plaintiffs with such a choice prior to their admission to a nursing home. Instead, in most cases, Plaintiffs learned that such choices and options were available from personnel associated with the Atlanta Legal Aid Society, Inc.
88 . The purpose of Title XIX's HCB waivers is to encourage states to provide services to help individuals with disabilities avoid institutionalization.
89 . Georgia has control over the development and provision of HCB services under its waiver programs .
90. For several years, Defendants have been aware that there are a substantial number of persons in nursing facilities or at risk of unnecessary institutionalization who could be served in the community using existing waiver programs .

AO 811822 9

_2g_

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 29 of 40
C . Georgia's Long-Term Care Medicaid Program 91 . Long-term care is assistance given over a sustained period of time to
people who are experiencing long-term inabilities or difficulties in functioning because of a disability . Long-term care services are designed either to compensate for the individual's functional impairments, or to restore or improve functional abilities. There are five basic long-term care services available under Medicaid (whether mandatory or optional): Medicaid long-term "institutional" reimbursements for (1) nursing home facilities and (2) intermediate care facilities for the mentally retarded; and Medicaid long-term "community services" reimbursements for (3) personal care, (4) home health, and (5) HCB services under waiver programs. Georgia has not opted to offer personal care services under its state plan, but does offer the other four services .
92 . As noted above, Georgia has two HCB waiver programs (ICWP and CCSP) and two demonstration projects (ShepherdCare and SOURCE) for adults who are either at risk of nursing home placement or who are currently receiving nursing home services .
93 . Individuals are eligible under Defendants' waiver programs if: (1) they are disabled (or, in the CCSP program, are over the age of 65) ; (2) they meet
-29AO 8 11822 .3

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 30 of 40

the standards of care for nursing home or intermediate-care-facility services ; and (3) they are eligible for Medicaid. The ICWP and ShepherdCare programs do not serve individuals over 64 years of age .
94. In 2001, Georgia spent $1,099,000,000 in combined state and federal funds on long-term care. Approximately 79%, or $872,000,000, of Georgia's expenditures for long-term care services goes to institutional rather than HCB services . More than 69%, or $760,000,000, of these institutional expenditures goes to nursing homes. Only about 16% of the long-term care budget goes to HCB waiver programs, which translates into approximately 6% of Georgia's overall Medicaid budget.
95 . While Georgia ranks near the bottom of all the states both in the percentage of its population that receives HCB waiver services, and in its per capita expenditures on such services, it ranks near the top in the percentage of its population that is institutionalized in order to receive long-term health care.
96. Defendants' HCB programs provide a broad range of services, including case management, homemaker services, personal care services, environmental accessibility modifications, personal emergency response systems and companion services .

AO 811922 3

-30-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 31 of 40

97. Many class members in institutions and living in their homes have been waiting for years to obtain the community-based long-term care services they require. Meanwhile, Defendants continually place hundreds of individuals in nursing homes without providing information about alternatives, determining if they are appropriate candidates for community services, or offering such alternative services to persons who could reside in the community with appropriate services and supports . Defendants have failed to expand their waiver programs to the extent necessary to avoid unjustified institutionalization and segregation of the class members in nursing facilities .
98 . Many class members in nursing homes were not provided with information at all or in a meaningful way nor were they provided with choices of home and community-based alternatives and are thus not on waiting lists for integrated services for which they are qualified.
99 . For those class members who have applied for the HCB waivers, many are denied for arbitrary reasons. For example, they may not meet the ICWP criterion that limits the program to those individuals under 65 years of age; they may be considered non-ambulatory, thus not qualifying for Alternative Living Services (the personal care home option of the CCSP); they may be denied because

AO B11822 .3

-31-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 32 of 40

of an arbitrary limit on the number of hours of attendant care available. All of these methods of administration have the effect of continuing the illegal segregation of class members in nursing homes .
100. The Plaintiffs and class members are appropriate and willing candidates to receive services in the community. Defendants have failed and continue to fail to provide them with appropriate, community-based long-term care services . Instead, Defendants continue to require Plaintiffs and class members, as a condition of receiving services, to be unnecessarily segregated and isolated in nursing homes that often cost more than Defendants would have to spend for the same or similar services in the community.
101 . Plaintiffs and class members are suffering severe and irreparable harm or are at risk of suffering imminent, irreparable injury and harm due to Defendants' actions, absent an award of injunctive relief.
VI. CLAIMS FOR RELIEF COUNT I - The Americans with Disabilities Act: Failure to Provide
Services in the Most Integrated Appropriate Setting . 102 . Plaintiffs are qualified individuals with disabilities protected by the ADA, 42 U.S.C. § 12132, and are subjected to discrimination .

AO 8 11822.3

-32-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 33 of 40

103 . Defendants' requirement that Plaintiffs and class members be confined in unnecessarily segregated environments (i .e. nursing facilities), rather than in the community, in order to obtain long-term care and services, violates the ADA's integration mandate, which requires that a "public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs ofqualified individuals with disabilities ." 28 C.F.R. § 35 .130(d).
104 . Plaintiffs and class members can receive and are appropriate candidates for receipt of publicly-funded long-term health-related services in the community, and the community is the most integrated setting appropriate to meet their needs . Nevertheless, Defendants have denied them access to the array of community-based services they need and instead have offered them services only if they are confined in segregated facilities
COUNT II - Section 504 of the Rehabilitation Act : Failure to Provide Services in the Most Inteerated Appropriate Settine.
105 . Plaintiffs are qualified individuals with disabilities protected by Section 504 of the Rehabilitation Act, 29 U.S .C. § 794(a), and are subjected to discrimination .

AO 811X22.1

-33-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 34 of 40

106 . Defendants' requirement that Plaintiffs and class members be confined in unnecessarily segregated environments (i.e., nursing facilities) rather than in the community, in order to obtain long-term care and services, violates Section 504's "integration mandate ."
107 . Plaintiffs and class members can receive and are appropriate candidates for receipt of long-term health related services in the community, and the community is the most integrated setting appropriate to meet their needs . Nevertheless, Defendants have denied them access to the array of communitybased services they need and, instead, have offered them services only if they are confined in segregated facilities .
COUNT III -Americans With Disabilities Act : Utilization of Discriminatory Criteria and Methods of Administration .
108 . The ADA prohibits public entities from utilizing criteria that have the effect of subjecting persons with disabilities to discrimination . The ADA regulations provide that "[a] public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration : (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability ; (ii) that have the purpose or effect of defeating or

AO 811822 .3

-34-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 35 of 40

substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities ." 28 C .F.R. § 35 .130(b)(3) .
109. In violation of this requirement, Defendants have utilized criteria and methods of administration in their HCB waiver programs that have the effect of subjecting Plaintiffs and the class they represent to discrimination . Among these criteria and methods of administration that have the effect of requiring Plaintiffs and class members, as a condition of receiving disability services, to be unnecessarily segregated in nursing homes are : the use of arbitrary eligibility criteria (such as age and mobility limitations), the use of a limited number of service providers with wheelchair accessible facilities, and an unreasonable limit on the number of attendant care hours an applicant for these services may receive . These and other methods of administration substantially undermine accomplishment of the objective of the waiver programs, which is to provide an alternative to institutionalization.
COUNT IV - Section 504 of the Rehabilitation Act: Utilization of Discriminatory Criteria and Methods of Administration .
1 10 . In violation of the Rehabilitation Act and 28 C .F.R. § 41 .51(b)(3), Defendants have utilized criteria and methods of administration in their HCB

AO 811822 .7

-35-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 36 of 40

waiver programs that have the effect of subjecting Plaintiffs and the class they represent to discrimination . Among these criteria and methods of administration that have the effect of requiring Plaintiffs and class members, as a condition of receiving disability services, to be unnecessarily segregated nursing homes are: the use of arbitrary eligibility criteria (such as age and mobility limitations), the use of a limited number of service providers with wheelchair accessible facilities, and an unreasonable limit on the number of attendant care hours an applicant for these services may receive. These and other methods of administration substantially undermine accomplishment of the objective of the waiver programs, which is to provide an alternative to institutionalization. COUNT V - Medicaid : Failure to Provide Timely and Adequate Notice and
Freedom of Choice in Home and Community-Based Waiver Services. 111 . Title XIX requires as a condition of the ICWP and CCSP waivers that
Defendants give "[a]ssurance that when a recipient is determined to be likely to require the level of care provided in a . . . [nursing facility], . . ., the recipient . . . will be - (1) Informed of any feasible alternatives available under the waiver ; and (2) Given the choice of institutional or home and community-based services ." 42 CFR § 441 .302 .(d); 42 U.S .C. § 1396n(c)(2)(C).

AO 811822 .3

-36-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 37 of 40

112. In violation of this requirement, Defendants administer state programs and services in a way that fails to provide Plaintiffs with adequate information about the waiver alternatives and deprives Plaintiffs of a meaningful choice between nursing home care and the more integrated care settings that are available in the community and required by federal law, including the opportunity to be placed on waiting lists for HCB programs .
COUNT VI- Medicaid : Failure to Provide Services with Reasonable Promptness
113 . Title XIX requires that Defendants provide Medicaid services to eligible individuals with "reasonable promptness ." 42 U.S .C. § 1396a(a)(8) .
114. Defendants use services provided through Medicaid ICWP and CCSP waivers as the primary means of attempting compliance with the ADA and § 504 requirements that Plaintiffs be provided with services in the most integrated setting appropriate . Because plaintiffs have chosen to rely primarily on the Medicaid waivers to attempt to comply with the requirements of the ADA and § 504, Defendants are obligated to make such services available with reasonable promptness .

AO 811822 .J

-37-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 38 of 40

115 . In violation of this requirement, Defendants have failed to provide Plaintiffs with "reasonabl[y] prompt[]" access to waiver and other Medicaid services that would afford long-term health-care services in home and communitybased settings, although Plaintiffs are qualified for such services.
VII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request :
a. That this Court exercise jurisdiction over this action . b . That this Court declare that the actions and failure to act of
Defendant Georgia Department of Community Health, Defendant Redding, and the other Defendants violate the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Medicaid Act, and Section 1983 of the Civil Rights Act of 1871 . c. That this Court issue preliminary and permanent injunctions to enjoin Defendants from continuing to violate the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, Sections 1396a(a)(8) and 1396n(c)(2)(C) of the Medicaid Act and Section 1983 of the Civil Rights Act of 1871 ; to

AO 8118223

-38-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 39 of 40

require Defendants to immediately offer its long-term care services to Plaintiffs and class members in their homes and communities, rather than only in unnecessarily segregated institutional facilities; to require Defendants to notify in a meaningful manner all class members of the waiver alternatives and of their option to choose between institutional and homebased or community-based services ; to require Defendants to allow those class members who choose home-based or community-based services to apply and be placed on a waiting list for the waiver programs ; to enjoin Defendants from utilizing criteria and methods of administration in their HCB waiver programs that discriminate against Plaintiffs and class members and have the effect of defeating the purpose of the HCB waivers; and to require Defendants to provide long-term care in home-based and community-based settings with reasonable promptness. d. That this Court issue such other relief as may be just, equitable and appropriate, including an award of reasonable attorneys'

AO 811822.1

-39-

Case 1:03-cv-00288-JEC Document 1 Filed 01/31/03 Page 40 of 40

Dated:

fees, litigation expenses and costs pursuant to 42 U.S .C. §§ 1988 and 12205, and 29 U.S .C . § 794a(b) .

January 3 /r,2003

I 1,~.~'
Charles T. Lester, Jr. Georgia Bar Number 447200 Teresa Wynn Roseborough Georgia Bar Number 614375 Judith A. O'Brien Georgia Bar Number 548625 Susan Walker Goico Georgia Bar Number 732598 Joseph A. White Georgia Bar Number 754315

"a,

SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, NE Atlanta, Georgia 30309-3996
(404) 853-8000 (404) 853-8806 (fax)

AO 811822 3

-40-

 
 Case,. 1:03-cv-00288-JEC Document 28 Filed 08/20/04 Page 1 of 4

1N

rkEv IN THE UNITED STATES DISTRICT COURT FOR J.S.D
THE NORTHERN DISTRICT OF GEORGIA

.CCL.E-AR.K1z"~',nt~

ATLANTA DIVISION

AUG 2 0 2004

MICHAEL BIRDSONG, KELLEY DOTSON, SUSAN EDWARDS, BOBBY JONES, MIA MURRAY LARRY PRITCHARD, and PATRICIA REDMOND, on behalf of themselves and all others similarly situated,
Plaintiffs,

aLyU: 7Ht~
rQ~r

~~s, cierk

CIVIL ACTION NO . 1 :03 - CV - 0288 -JEC

v.

SONNY PERDUE, in his official capacity as Governor of the State of Georgia, GEORGIA DEPARTMENT OF
COMMUNITY HEALTH,
GEORGIA DEPARTMENT OF HUMAN RESOURCES, JIM MARTIN,
Commissioner, Georgia Department of Human Resources, in his official capacity, GARY BEDDING, Commissioner, Georgia Department of Community Health, in his official capacity,

Defendants .

PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Plaintiffs hereby request that this Court issue an order pursuant to Federal Rule of Civil Procedure 23(c)(1) determining that this case may proceed as a class action, defining the class and the class claims, and appointing class counsel . The

AO 1170155.2

Case 1:03-cv-00288-JEC Document 28 Filed 08/20/04 Page 2 of 4
proposed plaintiff class consists of all persons with physical disabilities who have been, or are at risk of being, unnecessarily segregated in nursing homes because of Defendants' failure to provide them with long-term health-care services in the community as required by federal law .
In support of this motion, Plaintiffs show the following : 1 . the class is so numerous that joinder of all members is impracticable ; 2. there are questions of law and fact common to the class; 3 . the claims of the representative parties are typical of the class; 4, the representative parties will fairy and adequately protect the interests ofthe class; and 5 . Defendants have acted or refused to act on grounds generally applicable to the class . For these reasons, and as argued in the accompanying Memorandum of Law, Plaintiffs respectfully request that this Court enter the requested order.
2
AO 1170155 .2

Case 1:03-cv-00288-JEC Document 28 Filed 08/20/04 Page 3 of 4
Dated : August 20, 2004
T. Lester, Jr. Bar Number 447200 Teresa Wynn Roseborough Georgia Bar Number 614375 Judith A. O'Brien Georgia Bar Number 548625 Susan Walker Goico Georgia Bar Number 732598 Leighton Moore Georgia Bar Number 520701 Joseph A. White Georgia Bar Number 754315 SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, NE Atlanta, Georgia 30309-3996 (404) 853-8000 (404) 853-8806 (fax)
3
AO 1170155 .2

Case 1:03-cv-00288-JEC Document 28 Filed 08/20/04 Page 4 of 4
CERTIFICATE OF SERVICE This is to certify that I have this day served a copy of the accompanying Motion for Class Certification upon counsel of record by first class mail properly addressed as follows :
Thurbert E . Baker Attorney General Kathleen M. Pacious Deputy Attorney General David E. Langford Assistant Attorney General 40 Capitol Square Atlanta, GA 30334-1300
This 90t day of August, 2004.
Jose A. to Bar Number 754315
4
AO 1170155 .2

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 1 of 21

1~~

~p~~~
J'S

IN
. D

C.cLE.R-KA'tSlaOFnFtIaGZ

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA AUG 2 0 Z004

ATLANTA DIVISION

L UTfjL

L~

u e~'Et

MICHAEL BIRDSONG, KELLEY
DOTSON, SUSAN EDWARDS, BOBBY JONES, MIA MURRAY LARRY PRITCHARD, and PATRICIA REDMOND, on behalf of themselves
and all others similarly situated,

CIVIL ACTION NO .

Plaintiffs,

1 :03 -- CV - 0288 -JEC

v.

SONNY PERDUE, in his official capacity as Governor of the State of Georgia,
GEORGIA DEPARTMENT OF COMMUNITY HEALTH,
GEORGIA DEPARTMENT OF HUMAN
RESOURCES, JIM MARTIN,
Commissioner, Georgia Department of Human Resources, in his official capacity, GARY BEDDING, Commissioner, Georgia Department of Community Health, in his official capacity,

Defendants .

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 2 of 21

Table of Contents

1. Overview

I

II . The Proposed Class Meets the Requirements of Rule 23 . . . .. . . . . . . . . . .. . . . . .., ., .  ,2

A. The Proposed Class Meets the Numerosity Requirement.. .. . . . .. . . . . .. . . . . .. 3 B . Plaintiffs' Claims Present Common Questions of Law and Fact. . . . .. . . .5

1 . The Case Presents Common Issues of Law. . .. . . .. .. . . . .. . . . . .. . . . . .. . . . . . 6 2. The Case Presents Common Issues of Fact. . . . . .. . . . . .. . .,. .  . . .. ., . .  g

C. The Claims of the Named Plaintiffs Are Representative of the Claims of the Proposed Class. .. . . . . .. . . . . . .. .. .. . .. . . . . .. . . . . .. . . . . . . . . . . . . . . . .. .. .. . . . . . .. . . . . .. . . . . .. .8

1 . Plaintiffs' Integration-Mandate Claims . . .. .. .. . . . . . . . .. . . . . ..  ., .  .,9

2 . Plaintiffs' Discriminatory-Criteria Claims . . . . .. .. . . .. . ., . . . . .. . . .. .  ,9

3 . Plaintiffs' Freedom-of-Choice Claim .. .. .. . . . . .. . . . . . . . ., .. . .  11 4 . Plaintiffs' Reasonable-Promptness Claim .. .. . . .. . . . . .. . . . . . ..,. . . .  . .12

D. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class . . . . . . . . . . .. . . . . .. . . . . . . . .. .. .. . . . . . .. . . . . .. . . .. .. . . . .. . . . . .. . . . . .. . . . . . . . . . .. . . . . .. . . . . . .13
E . Defendants Have Acted or Refused to Act on Grounds Generally Applicable to the Class. . . . .. .. . . .. . . . . .. . . . . . .. .. .. . . . . .. . .. . . . . . . .. . . . . .. . . . . . . . .. .. .. . . . . . ..14
III. Conclusion . . .. .. . . .. . . . . .. . . . . . . . . . .. . . . . .. . . . . . . . . . .. . . . . .. . . . . .. . .. .. .. .. .. . . . . .. . . . . . .. . . .. . . . . .. . .. . . . . .. . .15 CERTIFICATE OF COMPLIANCE .. . . .. . . .. .. . . . . . .. .. .. . . . . .. . . . . . . . . . .. . . .. .. . . . . .. . . . .. .. . . . . . .. . . . . .16 CERTIFICATE OF SERVICE . . . . . .. . . .. . . . . . .. . . . . .. . . . . .. . . . .. .. . . .. . . . . .. . . . . . .. . . .. . . . . .. . . . . . . . .. .. . . . . .17

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 3 of 21
TABLE OF AUTHORITIES CASES Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) . . . . .. . . . . .. . . . . .. . . . ., . . .13 Armstead v. Pingree, 629 F. Supp. 273 (M.D. Fla. 1986) . . . . .. . . .. .., . . .. ..  ..  4 CV Reit, Inc. v. Levy, 144 F.R.D. 690 (S .D . FIa. 1992) . . . . . . . . .. . . .. . . . . ., .,. ., . . .  4 Calagaz v. Calhoon, 309 F .2d 248 (5th Cir. 1962) . . . .. . . . . . . . . . .. . . . . ..  ., . ., . .  . , 13 In re Carbon Dioxide Antitrust Litigation, 149 F.R.D. 229 (M.D. FIa.
1993) . .. . . . . .. .. . . . . .. . . . . .. . . . .. .. . . .. . . . . . . . .. . . .. .. . . . .. . . . . .. . . . . .. . . . . . . . . . .. . . . . .. .. .. . . . . . .. . . . . .. . . . . .. .3 Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986) . .. .. .. . .. .4 Eisen v. Carlisle c& .Iacquelin, 417 U.S . 156 (1974) .. .. . . . . .. . . . . . . . ., ., . . .  .  3 Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925 (1 lth Cir. 1983) .. .. . . . .. .. . . ..4 Frederick L. v. Houston, 364 F.3d 487 (3d Cir. 2004). . .. . . . . .. . . . . . . . . . ., . . ., .. .  ,6 Johnson v. American Credit Co. of Ga., 581 F .2d 526 (5th Cir. 1978) . . . . . . .. . .5 Kilgo v. Bowman Transport, Inc., 7$9 F.2d 859 (11th Cir. I98b) .. . . . . .. . . . . .. . . . . 4 Kornberg v. Carnival Cruise Lines, 741 F .2d 1332 (11th Cir. 1984) . . . . .. . . . . .. . 8 Murray v. Auslander, 244 F.3d $07 (11th Cir. 2001) . . . .. . . . . .. . . . .. ..  ., . . .  , . ..5 Olmstead v. L. C., 527 U.S. 5$1 (1999) . . . .. . . .. . . . . . .. . ., . .., .  . . . .,1 6, 14 Penson v. Terminal Transport Co., 634 F .2d 989 (5th Cir. Jan. 1981) . . . . . . .. 14 Stewart v. Winter, 669 F.2d 328 (5th Cir. 1982) . . . . .. . . . . ..,. .. ., .. . . . . . , . . .5 Walco Investments v. Thenen, 168 F.R.D . 315 (S .D. Fta. 1996) . . .. . .. . . . . .. . . .. . ., 3
11

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 4 of 21 STATUTES 42 C.F .R. § 441 .302(d) . . . .. . . . . .. . . . . . .. . . .. . . . . .. . . . . . . . . . .. . . . . .. . . .. .. . . . .. . . . . .. . . . . .. . . . . . . . . . .. . . . . .7 29 U.S .C . § 794(a) . . . . . .. . . . . .. . . . . . . . . . .. . . . . .. . . .. . . . . . .. . . . . .. . . .. .. . . . .. . . . . .. . . . . .. . . . . . . . . . .. . . . . .. . . . .1 42 U.S .C. § 139ba(a)(8) . . . . . .. . . . . .. . .. .. .. . . .. . .. . . . . .. . . .. .. . . . .. . . . . .. . . . . .. .. . . . . . . . .. . . . . .. . . .7, 12 42 U.S.C. §§ 12101-12213 .. .. . . . .. .. .. .. . . . . .. . .. . . .. .. .. . . . . .. . . . . . . . .. .. . . . . .. . . . . . . . .. .. .. . . . . . .. . . .1
42 U .S .C . § 1983 . . . . . . .. . . .. .. .. . .. . . . . .. . . . . .. . . . . . .. . . .. . . . . .. . . . . . . . . . .. . . . . .. . . . . .. . . . .. .. . . .. . . . . . . . .. . .2 42 U.S .C . §§ 1396-i396v . .. . . . . . . . .. .. . . . . .. . .. . . . . .. . . .. . . . . . .. . . . . .. . . .. .. .. . . . . . . . .. . . . . .. . . . . . .. . . .2 MISCELLANEOUS Federal Rule of Civil Procedure 23(a). .. . . . . .. . ., . .. . ., . . . . . .  , .., . . ,2,14, 15 Federal Rule of Civil Procedure 23{a}(4) . . . .. .. . ., . .. . . . . ..  .  . .. . . ..  , . .,.,. . . 13 Federal Rule of Civil Procedure 23(b)(2).. . . . . .. . . .. .. . . . .. . . . . .. . . . . .. . . . . . . . . . 2,3,Z4, 15
iii

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 5 of 21

I. Overview

ARGUMENT

The named Plaintiffs bring this action on behalf of themselves and all persons with physical disabilities who : (1) are qualified to receive long-term health-care and supportive services under Medicaid and state-funded programs administered by Defendants, and (2) would prefer, and are qualified (with or without reasonable accommodations) to receive such services in a more integrated setting than a nursing home (i. e., hereinafter, to receive "community-based services") ; but {3} are either unnecessarily confined and segregated in nursing homes, or on community-based services waiting lists that do not move at a reasonable pace. l

Defendants' failure to provide class members with community-based services violates the Americans with Disabilities Act (the "ADA"), 42 U.S .C. §§ 12101-12213, and implementing regulations ; § 504 ofthe Rehabilitation Act of

qas(mtSsupe1teheaprar9ePallvtvl9niinieia9fcctici)hieanehnaestbse(gidsl;hfbieosthufnrhlsonponoadwdtreaitieceodndneivrgtetgeseerrhttstnrahaeaohd,merrsafstitmeAt)ihlivhtnDye.neehtAet"rehtdqrey,ewuerohaomAwnwlieh.aiDm"efsqAwiArouhe"reapdlnaohet.ioner"hmfdrseigSoteeitSendhnnot"eeuamSbitiSOeeaenntclyaeethtmtlhiasdebieodigtehnisecadb"pla5lsequa0deutts4daseevf,el"r.odtimorLefeorifiMrv.,nieeemCenidrdi.fid",nittw5ietcihho2ndhaeen7sietttethdmoUhoimescbeh.erleoSsaaime.pgvnelnmi5leiasbu8iinletg1nngeih,tiebseiftl6vfoesyfd0ersi-a2nfftbmo-wfhiraee6efers0rst,e3euhdceh

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 6 of 21
1973, 29 U.S .C . § 794(a) ("Section 504"), and implementing regulations; Title XIX of the Social Security Act, 42 U.S .C . § 1396-1396v ("Title XIX" or the "Medicaid Act"), and implementing regulations; and the Civil Rights Act of 1871, 42 U.S .C . § 1983 ("Section 1983") . Plaintiffs seek injunctive relief designed to end and remedy this violation.
Plaintiffs have moved to certify the above-described class, pursuant to Federal Rule of Civil Procedure 23{a} and 23(b)(2) . In support of this Motion, Plaintiffs submit the following argument and authorities.
II. The Proposed Class Meets the Requirements of Rule 23. To be certified as a class action under Rule 23, this case must satisfy the four
prerequisites of Rule 23(a), as well as at least one of the grounds of certification set forth in Rule 23(b). Rule 23(a) provides that a class may be certified only if
(I) the class is so numerous that joinder of alb members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class .
2

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 7 of 21
Under Rule 23(b)(2), an action:that meets the above requirements is maintainable as a class action, as long as "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relied with respect to the class as a whole . . . ." Fed. R. Civ. P. 23(b)(2).
Although the language just quoted may appear to require a determination of fact regarding Defendants' actions, the Supreme Court has held that the merits of a plaintiffs underlying claims are not at issue in determining whether the case may proceed as a class action . Eisen v. Carlisle & .Tacquelin, 417 U.S. 156, 178 (1974) . Instead, "[fJor the purposes of class certification[,] . . . the Court accepts the Plaintiffs' substantive allegations as true." In re Carbon Dioxide Antitrust Litigation, 149 F.R.D. 229, 232 (M.D . Fla. 1993) . The standards of Rule 23 are liberally construed, Walco Investments v. Thenen, 168 F .R.D. 315, 323 (S .D. FZa. 1996), and "[t]he Court [should] resolve[] . . . any doubt in favor of class certification," Carbon Dioxide Antitrust, 149 F.R.D. at 232 . Plaintiffs' claims are appropriate for class treatment under these standards.
A. The Proposed Class Meets the Numerositv Requirement. Rule 23(a)(1) requires that the class be "so numerous that j oinder of all members is impracticable ." Plaintiffs have clearly met this requirement.
3

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 8 of 21
To establish numerosity, Plaintiffs need not present an exact number for the class, Evans v. U.S. Pipe & Foundry Co., 696 F .2d 925 (11th Cir. 1983), but need only make a reasonable estimate, Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 87$ (1 ith Cir. 1986). What constitutes a sufficient number of class members varies, depending on the specific facts of each case . CV Reit, Inc, v. Levy, 144 F.R .D. 690, 696 (S .D . Fla. 1992). However, as a rule of thumb, "less than twentyone is inadequate, more than forty adequate ." Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986).
The proposed class is so numerous that individual joinder of all members would be impracticable. Upon information and belief, there are presently over 4,800 people on waiting lists for community-based services in Georgia, and still others who are eligible for and would welcome such services but who are not on waiting lists, either because their applications have not been processed or have been wrongfully denied, or because Defendants have not effectively informed them that they have the choice to receive community-based services in place of nursinghome care. The proposed class also includes future members, likely to number in the thousands . Even if the number of class members were on the order of tens rather than thousands, it would probably be sufficient, in view of Plaintiffs' physical disabilities, geographic dispersion throughout the state, and financial inability to pursue individual claims . See, e.g., Armstead v. Pingree, 629 F . Supp.
4

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 9 of 21
273, 279 (M.D. FIa. 1986) (considering these circumstances in assessing numerasity of proposed class ofMedicaid recipients). The numerosity requirement of Rule 23(a) has clearly been met, and Plaintiffs expect that the State will not contend otherwise.
B. Plaintiffs' Claims Present Common uestions of Law and Fact. Rude 23(x)(2) requires the existence of "questions of law or fact common to the class." There is no requirement that all questions of law or fact be common to all class members, however. Johnson v. American Credit Co . of Ga ., 581 F.2d 526, 532 (5th Cir. 1978) . Factual differences among class members do not preclude the required commonality, as long as common questions of taw exit . Murray v. Auslander, 244 F.3d 807, 813 (11th Cir. 2001) . The commonality rule requires only that one issue of law or fact be common to all or a significant number of proposed class members . Stewart v. Winter, 669 F .2d 328 (5th Cir. I982) .
This requirement is met here . Not one ofPlaintiffs' claims seeks relief that would be limited to the particular circumstances of an individual plaintiff. Rather, as shown below, each claim raises a legal challenge to a policy or practice that applies to a class ofpersons similarly situated . Cf. Murray, 244 F.3d at 813 (certifying class to challenge State's policy of "capping" the per-person amount under Florida's Developmental Disabilities Medicaid Waiver Program). The legal theory underlying each claim therefore constitutes a common issue of law, and the
5

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 10 of 21
allegations regarding Defendants' actions with respect to the class constitute common issues of fact .
1 . The Case Presents Common Issues of Law. In Qlmstead v. L. C, 527 U.S . 581 (1999), the Supreme Court held that, absent a sufficient showing of necessity, Georgia's practice of institutionalizing persons who preferred and were qualified to receive community-based services would constitute illegal discrimination . 527 U.S . at 597 ("Unjustified isolation, we hold, is properly regarded as discrimination based on disability ."). The same legal theory approved by the Supreme Court in Olmstead is one basis for the relief Plaintiffs seek on behalf of all class members . See Complaint, Count 1, IT 102104. In keeping with this theory of relief, the proposed class is limited to persons who are qualified and willing to receive community-based services but who either have already been unnecessarily segregated in nursing homes or are at risk of such segregation due to the fact that the waiting lists far Georgia's community-basedservices programs do not move at a reasonable pace. The fact that this theory is common to all class members is itself sufficient to satisfy Rule 23(a)(2) .
Plaintiffs also contend that Defendants have violated Section 504 by unnecessarily segregating persons qualified far community-based services or subjecting them to an unnecessary risk of institutional segregation . Complaint, Count II, TT 105-107 ; see Frederick L. v. Houston, 364 F.3d 487, 490 (3d Cir.
6

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 11 of 21
2004) (noting congruence of integration mandates under the ADA and Section 504). This claim likewise applies to all class members, and likewise provides a common issue for purposes of Rule 23(a)(2) .
The remaining counts of the Complaint raise issues of law that are common to substantial groups within the proposed class . Counts III and IV challenge a variety of program criteria and administrative methods that unnecessarily prevent certain class members from receiving community-based services in pace of nursing-home care. The issues of law presented under Counts III and IV would be common to all such persons to whom the challenged criteria and methods of administration apply. Count V is brought on behalf of all persons within the class who have been adversely affected by Defendants' failure to comply with 42 C .F.R. section 441 .302(d), which requires Defendants to provide Medicaid recipients with the choice of community-based services at the point when they are determined likely to require the level of care provided in a nursing home or hospital . Count VI applies to all persons within the class who are on waiting lists that do not move at a reasonable pace, and raises the common issue of whether this circumstance constitutes a violation of the requirement that Medicaid services be provided with "reasonably promptness." See 42 U.S .C. § 1396a(a)(S) . The issues of law raised in these counts are common to all members of the applicable groups within the class .
7

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 12 of 21
2. The Case Presents Common Issues of Fact. Numerous common issues of fact are also presented . These include the basic structure of the relevant programs and the manner in which they are administered; the rate at which Defendants' community-based-services waiting lists move; the manner in which Defendants provide information and choices relating to community-based services when a program participant is determined to need the level of care available in a hospital or nursing facility; and the factual basis, if any, for Defendants' claim that the requested relief would amount to a "fundamental alteration" of existing programs . One or more of these common issues of fact is pertinent to every claim Plaintiffs have raised.
C. The Claims of the Named Plaintiffs Are Representative of the Claims of the Proposed Class
Rule 23(a)(3) requires that, if a set of plaintiffs is to represent a class, their claims must represent the claims of the class . The claims need not be identical in every respect; rather, it is sufficient "if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory." Kornberg v. Carnival Cruise Lines, 741 F .2d 1332, 1337 {i lth Cir. 19$4}. This requirement is met here. As argued above, the Complaint asserts claims of systemic discrimination that are common to the class as a whole or a substantial group within the class. Each claim in the Complaint is urged at an individual level by at feast one named Plaintiff.
8

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 13 of 21
1 . Plaintiffs' Integration-Mandate Claims Counts I and Ii of the Complaint allege that Defendants have systemically violated the ADA and Section 504, respectively, by failing to make long-term health-care and supportive services under Medicaid reasonably available in the community rather than in nursing homes . Class members are harmed by this violation because it effectively requires them to forego the level of care they need and are qualified to receive, unless they are willing to accept confinement in a nursing home as a condition of such care. In either case, class members who apply and are determined eligible for community-based services languish on unreasonably slow waiting lists. All of the named Plaintiffs allege that they have been harmed by Defendants in one of these ways . See Complaint at Tj 41-48 (Michael Birdsong); 49-53 (Kelley Dotson); 54-58 (Susan Edwards) ; 59-b3 (Bobby Jones); 64-69 (Mia Murray); 70-72 (Larry Pritchard) ; and 73-76 (Patricia Redmond) .
2. Plaintiffs' Discriminato ry-Criteria Claims Counts III and IV of the Complaint allege that certain eligibility criteria and administrative practices arbitrarily exclude qualified individuals from Defendants' community-based-services programs. Several named Plaintiffs allege that they have been denied enrollment in such programs because of such criteria and practices . Plaintiff Michael Birdsong, for instance, was denied enrollment in the
9

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 14 of 21
ICWP and ShepherdCare programs on the basis that he did not need the level of care provided in a nursing home, even though he was already receiving Medicaidfunded care in a nursing home and had also been approved for Defendants' CC SP program, which has the same eligibility requirement. Likewise, Patricia Redmond was approved for ShepherdCare and denied ICWP, even though those programs have the same eligibility criteria. Mr. Birdsong and Ms. Redmond seek injunctive relief requiring Defendants to coordinate among programs with respect to factual determinations that establish eligibility . Such relief would benefit all similarly situated class members, and these claims are therefore representative of class claims .
Plaintiff Bobby Jones has been denied access to ICWP and ShepherdCare because applications for those programs are not accepted from persons over 64 years of age, even though persons over 64 are served in these programs if they applied before reaching that age . Defendants' refusal to provide services to otherwise-eligible applicants over age 64 uniformly affects a group within the proposed class . Mr. Jones seeks injunctive relief abolishing that criterion. Such relief would benefit all similarly situated class members, and Mr. Jones's challenge to that practice is therefore representative of class claims .
10

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 15 of 21
Plaintiffs Mia Murray and Patricia Redmond were both denied admission to ICWP due to the requirement that participants be able to direct their own care . They seek injunctive relief either abolishing or modifying this requirement. Such relief would benefit all similarly situated class members, and their claim is therefore representative of class claims.
Plaintiff Larry Pritchard was denied access to the CCSP on the asserted bases that he was not "ambulatory," and that the program does not allocate an adequate amount of money per day to serve his needs in the community. He was originally denied enrollment in ICWP also for "cost" masons, but successfully appealed that decision administratively and was retroactively placed on a waiting list as of October 2001 . He seeks injunctive relief to end the exclusion of wheelchair users from CCSP's personal care home option, and to raise or eliminate the cost-of-care limits Defendants have imposed in CCSP and ICWP. Such relief would benefit all similarly situated class members. These claims are therefore representative within the meaning of Rule 23{a}(c).
3 . Plaintiffs' Freedom-of-Choice Claim Plaintiffs also claim that Defendants have failed to provide class members with adequate information and a genuine choice concerning community-based services . See Complaint, Count V, TJ 111-112. Several named Plaintiffs urge such a claim on their own behalf as well as an behalf of the class. See Complaint at TT
11

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 16 of 21
42 (Michael Birdsong); 50 (Kelley Dotson); 60 (Bobby Jones) ; 66 (Mia Murray). These claims are representative of class claims.
4, Plaintiffs' Reasonable-Promptness Claim In Count VI of the Complaint, Plaintiffs claim that Defendants have failed to establish reasonably fast-moving waiting lists, and that this failure violates Title XIX's requirement that states provide Medicaid services to eligible applicants with "reasonable promptness ." See 42 U.S .C . § 1396a{a}(8). Several named plaintiffs have been personally affected by this violation and seek injunctive relief against it on their own behalf as well as on behalf of the class. For example, Mr. Birdsong has been on a CCSP waiting list for almost three years, since November 27, 2001 . Complaint, T 43. Both Ms. Edwards and Ms . Murray have been on waiting lists for ICWP and CCSP since 2002 . Complaint, X56 . Mr. Jones has been on a waiting list for CCSP since December 2001 . Complaint, T 61 . Both Mr. Pritchard and Ms. Redmond spent years on slow-moving waiting lists for ShepherdCare. Complaint, TT 71, 74 . The named Plaintiffs' reasonable-promptness claims are representative ofthose of the class .
12

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 17 of 21
D. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class.
The final requirement of Rule 23(a) is that the named plaintiffs must fairly and adequately protect the interests of the class . Fed. R. Civ. P. 23{a}(4). As the Fifth Circuit stated in Calagaz v. Calhoon, 309 F .2d 248, 254 (5th Cir. 1962} :
The theory of the class action is that ail the members of the class are before the court in the person of their representatives; and, therefore, can justly be bound by the court's decree . The class must, however, be adequately represented, for it is only through the self-interest of their representatives that adequate litigation of the common issues is assured.
Here, the self-interest of the representatives is more than sufficient to ensure adequate litigation of the common issues . Each named Plaintiff stands to benefit from the injunctive relief awarded in just the same way as any other similarly situated class member, and no named Plaintiff has a conflict of interest that would inhibit foil and fair litigation .
"The adequacy heading also factors in competency and conflicts of class counsel ." Amchem Products, Inc. v. Windsor, 521 U.S . 591, 626 n.20 (1997). Plaintiffs' legal team has expertise and experience in federal civil litigation at all levels, including considerable experience with anti-discrimination lawsuits, representation of the indigent, and protection of persons with disabilities . The team includes counsel who represented the plaintiffs in the controlling Supreme
13

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 18 of 21
Court precedent, Olmstead v. L. CI 527 U.S . 581 (1999) . There are no conflicts of interest that would impede counsel's zealous advocacy in this case.
E, Defendants Have Acted or Refused to Act on Grounds Generally Applicable to the Class.
Rule 23(b)(2) provides that a proposed class action may be certified if, in addition to the threshold requirements of Rule 23(a), the proponent of certification can show that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole . . . ." This ground of certification was designed to facilitate anti-discrimination class actions, "where the class representatives typically [seek] broad injunctive or declaratory relief against discriminatory practices." Penson v. Terminal Transport Co., 634 F.2d 9$9, 993 (5th Cir. Jan. 1981).
Plaintiffs' claims for relief arise from Defendants' actions or failure to act with respect to the class as a whole. Specifically, Plaintiffs allege that Defendants have failed to provide class members with long-term health-care and supportive services in the most integrated appropriate setting, as required by the ADA and Section 504 . The class is defined to include only persons who could be served in more integrated settings with the appropriate services . Rather than offer reasonable access to such services, Defendants offer unreasonably slow waiting
14

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 19 of 21

lists and bong-term institutionalization . Whether this is described as action or as failure to act, the essential point is that it affects the entire class, making class-wide injunctive relief appropriate . Because the requirements of Rule 23(a) are also mgt, this showing warrants certification of the proposed class under Rule 23(b)(2).
III. Conclusion For the foregoing reasons, Plaintiffs respectfully request that this Court enter
an order certifying the proposed class .

Dated:

August 2~76 , 2004

Cha s T. Lester, Jr. Ge gia Bar Number 447200 Teresa Wynn Roseborough Georgia Bar Number 614375 Judith A. O'Brien Georgia Bar Number 548625 Susan Walker Goico Georgia Bar Number 732598 Leighton Moore Georgia Bar Number 520701 Joseph A. White Georgia Bar Number 754315
SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, N.E . Atlanta, Georgia 30309-3996 (404) 853-8000 Phone (404) 853-8806 Fax
15

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 20 of 21
CERTIFICATE OF COMPLIANCE
This is to certify that this document has been prepared using Times New Roman font, 14 point type, which is one of the font and print selections approved by the Court in L.R. 5 .1B .
This ~~ day of August, 2004.
By:
J ph A. White
16

Case 1:03-cv-00288-JEC Document 28-1 Filed 08/20/04 Page 21 of 21
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the accompanying Memorandum of Law in Support of Motion for Class Certification upon counsel ofrecord by first class mail properly addressed as follows :
Thurbert E. Baker Attorney General Kathleen M. Pacious Deputy Attorney General David E . Langford Assistant Attorney General 40 Capitol Square Atlanta, GA 30334-1300
This 20~- day of August, 2004 .
Josep AhW~htitee GGJGoesooerrp ia Bar Number 754315
17

 
 Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

MICHAEL BIRDSONG, KELLEY DOTSON, )

SUSAN EDWARDS, BOBBY JONES,

)

MIA MURRAY, LARRY PRITCHARD, and )

PATRICIA REDMOND,

)

on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

SONNY PERDUE, in his official capacity

)

as Governor of the State of Georgia,

)

GEORGIA DEPARTMENT OF COMMUNITY )

HEALTH, GEORGIA DEPARTMENT OF

)

HUMAN RESOURCES, B.J. WALKER,

)

Commissioner, Georgia Department of

)

Human Resources, in her official capacity,

)

TIM BURGESS, Commissioner, Georgia

)

Department of Community Health,

)

in his official capacity,

)

)

Defendants.

)

CIVIL ACTION NO. 1:03 – CV – 0288 -JEC

INTERVENORS’ COMPLAINT

I. PRELIMINARY STATEMENT
1.

Plaintiffs are persons with physical disabilities who receive or are seeking to

receive long-term health-care services under federally assisted state programs

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 2 of 19
administered by Defendants. Although Plaintiffs prefer and are eligible to receive care in their homes and communities, Defendants’ official practices and policies cause Plaintiffs to be unnecessarily segregated in nursing homes or at risk of nursing home placement. Defendants continue to require Plaintiffs, as a condition of receiving services, to be isolated in nursing homes that often cost more than Defendants would have to spend for the same or similar services in the community. Defendants violate the American with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213 and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) by requiring that Plaintiffs be confined in nursing homes in order to receive long-term health-care services, when community-based care is both available and appropriate to Plaintiffs’ needs. Defendants further violate the ADA and Section 504 by utilizing criteria and methods of administration in their Home and Community Based (HCB) waiver programs that have the effect of discriminating against Plaintiffs. Defendants also violate Title XIX of the Social Security Act, 42 U.S.C. § 1396-1396v (“Medicaid Act”) by failing to provide benefits to Plaintiffs with reasonable promptness, failing to adequately inform Plaintiffs of the waiver alternatives, and failing to allow Plaintiffs a choice of institutional or home and community-based services. In administering a state program in such a way as to
-2-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 3 of 19
deprive Plaintiffs of federal rights, Defendants violate the Civil Rights Act of 1871, 42 U.S.C. § 1983.
2. All three Plaintiff-Intervenors are physically disabled individuals residing in nursing homes. Community-based care is both available and appropriate to their needs. They have not been adequately informed of the home and community based waiver alternatives and, thus, were not allowed a meaningful choice between institutional or home and community-based services. By their actions towards Plaintiff-Intervenors, Defendants violated the ADA, Section 504, the Medicaid Act and deprived Plaintiff-Intervenors of their federal rights in violation of 42 U.S.C. § 1983.
II. JURISDICTION AND VENUE
3. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1343.
4. Plaintiffs’ claims are authorized by 28 U.S.C. §§ 2201 and 2202, by 42 U.S.C. §§ 1983 and 12133, and by 29 U.S.C. § 794a.
5. Venue is proper under 28 U.S.C. § 1391.
-3-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 4 of 19
III. PARTIES A. Plaintiff-Intervenors
6. Jennifer Bivins is a 30-year-old resident of Macon, Georgia.
7. Alanna Clay is a 55-year-old resident of Macon, Georgia.
8. Barney Strickland is a 51-year-old resident of Macon, Georgia. B. Defendants
9. Defendant Sonny Perdue is the Governor of the State of Georgia. He is responsible for appointing the commissioner of the Department of Community Health (“DCH”) and approving the appointment by the Board of the Department of Human Resources (“DHR”) of its commissioner. He is sued in his official capacity for actions and omissions under color of state law.
10. Defendant DCH is the state agency responsible for administering the Georgia Medicaid Program. See 42 U.S.C. § 1396a(a)(5); O.C.G.A. § 31-5A-4(a).
-4-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 5 of 19
It is a public entity as defined in 42 U.S.C. § 12131(1), and is a recipient of federal financial assistance.
11. Defendant Tim Burgess is the Commissioner of the DCH. Pursuant to O.C.G.A. § 31-5A-6, he is responsible for the functions and programs of the DCH, including the state Medicaid program and the HCB waiver programs. Defendant Burgess is sued in his official capacity for actions and omissions under color of state law.
12. Defendant DHR is empowered under state law to apply for, receive, and administer federal funds under the Medicaid program and other federal health programs. See O.C.G.A. § 31-2-2. It is a public entity as defined in 42 U.S.C. § 12131(1) and is a recipient of federal financial assistance.
13. Defendant B.J. Walker is the Commissioner of the DHR. Pursuant to O.C.G.A. § 49-2-1, she is responsible for the functions and programs of the DHR, including its acceptance and disbursement of federal Medicaid funds. She is sued in her official capacity for actions and omissions under color of state law.
-5-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 6 of 19
IV. FACTS
14. Jennifer Bivins is a 30-year-old physically disabled woman. She suffers from diabetes, hypertension, partial paralysis of her digestive system, and has been blind for four years. She requires kidney dialysis three times a week. Ms. Bivins has lived in nursing homes for the past four and a half years, and currently resides at Rosewood Nursing Center, 2795 Finney Circle, Macon, GA 31217, where she has lived for approximately four years. She was forced to enter a nursing home when her family was no longer able to care for her.
15. When Ms. Bivins was first admitted to a nursing home, no one told her about community-based alternatives. She first learned of these alternatives from her attorneys in this case.
16. Ms. Bivins does not want to live in a nursing home. She is significantly younger than most of the other residents, and finds the nursing home restrictive and isolating. Because of her institutionalization, she is unable to engage in many of the life activities in which most 30-year-olds participate. She wants to live in the community so that she can become more independent and socialize with people
-6-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 7 of 19
of her own age. She would like to be able to go and see movies, go shopping, and generally lead a more normal life.
17. If appropriate care were provided, Ms. Bivins could live in the community. Ms. Bivins would need help with activities such as housekeeping and cooking and would require transportation to the dialysis center.
18. Alanna Clay is 55 years old. She suffers from lupus, degenerative bone disease, Crohn’s disease, chronic pain, and she is an amputee. She moved to Rosewood Nursing Center in February 2004 following the amputation of one of her legs.
19. Before her amputation, Ms. Clay was an active member of the community. She has lived in Macon for approximately eight years and would like to live in the community again so she would have the freedom to participate in normal life activities, rather than being confined in a nursing home.
-7-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 8 of 19
20. With the help of Anna McCrary from Georgia Legal Services in Macon, Ms. Clay has applied for ICWP and CCSP. No determination of eligibility has been made.
21. Ms. Clay needs help with activities such as getting up in the morning, bathing, getting dressed, shopping, keeping house, and getting to bed at night. With the appropriate services she could live in the community again.
22. Mr. Strickland is 51 years old, and suffers from cerebral palsy and a fused hip. He has lived in Rosewood Nursing Center in Macon since June of 2004. He came to Rosewood from Emory Woods Nursing Home in Atlanta where he lived for approximately three years.
23. Mr. Strickland lived and worked in the community until he suffered a shoulder injury and was admitted to Grady Hospital. After several weeks in the hospital he moved to Emory Woods Nursing Home.
-8-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 9 of 19
24. Mr. Strickland was not advised of the existence of home or community based alternatives when he was admitted to the nursing home. Anna McCrary from Georgia Legal Services in Macon is helping him apply for CCSP.
25. Mr. Strickland would like to live in the community, and with appropriate care is capable of doing so. He wants the freedom to go to libraries, attend the symphony, and visit with friends. In the community, Mr. Strickland will need help with activities such as bathing, dressing, housekeeping and getting to bed.
26. Defendant’s actions have caused and are continuing to cause PlaintiffIntervenors irreparable harm.
V. CLAIMS FOR RELIEF
COUNT I The Americans with Disabilities Act: Failure to Provide Services
in the Most Integrated Appropriate Setting. 27.
Plaintiffs are qualified individuals with disabilities protected by the ADA, 42 U.S.C. § 12132, and are subjected to discrimination.
-9-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 10 of 19
28. Defendants’ requirement that Plaintiff-Intervenors be confined in unnecessarily segregated environments (i.e., nursing facilities), rather than in the community, in order to obtain long-term care and services, violates the ADA’s integration mandate, which requires that a “public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
29. Plaintiff-Intervenors can receive and are appropriate candidates for receipt of publicly-funded long-term health-related services in the community, and the community is the most integrated setting appropriate to meet their needs. Nevertheless, Defendants have denied them access to the array of communitybased services they need and instead have offered them services only if they are confined in segregated facilities
-10-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 11 of 19
COUNT II Section 504 of the Rehabilitation Act: Failure to Provide
Services in the Most Integrated Appropriate Setting. 30.
Plaintiff-Intervenors are qualified individuals with disabilities protected by Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and are subjected to discrimination.
31. Defendants’ requirement that Plaintiff-Intervenors be confined in unnecessarily segregated environments (i.e., nursing facilities) rather than in the community, in order to obtain long-term care and services, violates Section 504’s “integration mandate.”
32. Plaintiff-Intervenors can receive and are appropriate candidates for receipt of long-term health related services in the community, and the community is the most integrated setting appropriate to meet their needs. Nevertheless, Defendants have denied them access to the array of community-based services they need and, instead, have offered them services only if they are confined in segregated facilities.
-11-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 12 of 19
COUNT III Americans With Disabilities Act : Utilization of Discriminatory Criteria and Methods of Administration.
33. The ADA prohibits public entities from utilizing criteria that have the effect of subjecting persons with disabilities to discrimination. The ADA regulations provide that “[a] public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3).
34. In violation of this requirement, Defendants use criteria and methods of administration in their HCB waiver programs that have the effect of subjecting Plaintiff-Intervenors to discrimination. Among these criteria and methods of administration that have the effect of requiring Plaintiff-Intervenors, as a condition of receiving disability services, to be unnecessarily segregated in nursing homes are: the use of arbitrary eligibility criteria (such as age and mobility limitations), the use of a limited number of service providers with wheelchair accessible
-12-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 13 of 19
facilities, and an unreasonable limit on the number of attendant care hours an applicant for these services may receive. These and other methods of administration substantially undermine accomplishment of the objective of the waiver programs, which is to provide an alternative to institutionalization.
COUNT IV Section 504 of the Rehabilitation Act: Utilization of Discriminatory
Criteria and Methods of Administration. 35.
In violation of the Rehabilitation Act and 28 C.F.R. § 41.51(b)(3), Defendants have utilized criteria and methods of administration in their HCB waiver programs that have the effect of subjecting Plaintiff-Intervenors to discrimination. Among these are: the use of arbitrary eligibility criteria (such as age and mobility limitations), the use of a limited number of service providers with wheelchair accessible facilities, and an unreasonable limit on the number of attendant care hours an applicant for these services may receive. These and other methods of administration substantially undermine accomplishment of the objective of the waiver programs, which is to provide an alternative to institutionalization.
-13-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 14 of 19
COUNT V Medicaid: Failure to Provide Timely and Adequate Notice and Freedom
of Choice in Home and Community-Based Waiver Services. 36.
Title XIX requires as a condition of the ICWP and CCSP waivers that Defendants give “[a]ssurance that when a recipient is determined to be likely to require the level of care provided in a . . . [nursing facility], . . ., the recipient . . . will be - (1) Informed of any feasible alternatives available under the waiver; and (2) Given the choice of institutional or home and community-based services.” 42 CFR § 441.302.(d); 42 U.S.C. § 1396n(c)(2)(C).
37. In violation of this requirement, Defendants administer state programs and services in a way that fails to provide Plaintiff-Intervenors with adequate information about the waiver alternatives and deprives them of a meaningful choice between nursing home care and the more integrated care settings that are available in the community and required by federal law, including the opportunity to be placed on waiting lists for HCB programs.
-14-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 15 of 19
COUNT VI Medicaid: Failure to Provide Services with
Reasonable Promptness 38.
Title XIX requires that Defendants provide Medicaid services to eligible individuals with “reasonable promptness.” 42 U.S.C. § 1396a(a)(8).
39. Defendants use services provided through Medicaid ICWP and CCSP waivers as the primary means of attempting compliance with the ADA and § 504 requirements that Plaintiff-Intervenors be provided with services in the most integrated setting appropriate. Because Defendants have chosen to rely primarily on the Medicaid waivers to attempt to comply with the requirements of the ADA and § 504, Defendants are obligated to make such services available with reasonable promptness.
40. In violation of this requirement, Defendants have failed to provide PlaintiffIntervenors with “reasonabl[y] prompt[]” access to waiver and other Medicaid services that would afford long-term health-care services in home and communitybased settings, although Plaintiff-Intervenors are qualified for such services.
-15-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 16 of 19
VI. PRAYER FOR RELIEF WHEREFORE, Plaintiff-Intervenors request: a. That this Court exercise jurisdiction over this action. b. That this Court declare that the actions and failure to act of Defendant Georgia Department of Community Health, Defendant Burgess, and the other Defendants violate the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Medicaid Act, and Section 1983 of the Civil Rights Act of 1871. c. That this Court issue permanent injunctions to enjoin Defendants from continuing to violate the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, Sections 1396a(a)(8) and 1396n(c)(2)(C) of the Medicaid Act and Section 1983 of the Civil Rights Act of 1871; to require Defendants to immediately offer its long-term care services to Plaintiff-Intervenors in their homes and communities, rather than only in unnecessarily segregated institutional facilities; to require Defendants to notify Plaintiff-Intervenors in a meaningful manner of the waiver alternatives and of their
-16-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 17 of 19
option to choose between institutional and home-based or community-based services; to require Defendants to allow those Plaintiff-Intervenors who choose home-based or communitybased services to apply and be placed on a waiting list for the waiver programs; to enjoin Defendants from utilizing criteria and methods of administration in their HCB waiver programs that discriminate against Plaintiff-Intervenors and have the effect of defeating the purpose of the HCB waivers; and to require Defendants to provide long-term care in home-based and community-based settings with reasonable promptness. d. That this Court issue such other relief as may be just, equitable and appropriate, including an award of reasonable attorneys’ fees, litigation expenses and costs pursuant to 42 U.S.C. §§ 1988 and 12205, and 29 U.S.C. § 794a(b).
-17-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 18 of 19
Dated: January 5, 2005
S/ Charles T. Lester, Jr. Charles T. Lester, Jr., Georgia Bar Number 447200 Teresa Wynn Roseborough, Georgia Bar Number 614375 Judith A. O’Brien, Georgia Bar Number 548625 Susan Walker Goico, Georgia Bar Number 732598 Joseph A. White, Georgia Bar Number 754315 Sam Almon, Georgia Bar Number 141432 SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, NE Atlanta, Georgia 30309-3996 (404) 853-8000 (404) 853-8806 (fax)
-18-

Case 1:03-cv-00288-JEC Document 54 Filed 01/05/05 Page 19 of 19
CERTIFICATE OF SERVICE This is to certify that I have this day served a copy of the accompanying Intervenors’ Complaint upon counsel of record by first class mail properly addressed as follows:
Robert David Powell, Esq. Office of United States Attorney Northern District of Georgia 75 Spring Street, S.W. 600 United States Courthouse Atlanta, GA 30303 All other counsel of record will be automatically served through the Court’s electronic filing system.
This 5th day of January, 2005.
S/ Charles T. Lester, Jr.___________ Charles T. Lester, Jr. Georgia Bar Number 447200

 
 Case 1:03-cv-00288-JEC Document 68 Filed 03/22/05 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MICHAEL BIRDSONG, KELLEY DOTSON, SUSAN EDWARDS, BOBBY JONES, MIA MURRAY, LARRY PRITCHARD, and PATRICIA REDMOND, on behalf of themselves and all others similarly situated

..:$~
4,X12-C .~~ ~,
,-

Plaintiffs,
V.

CIVIL ACTION NO . 1 : 03--CV-288-JEC

SONNY PURDUE, in his official capacity as Governor of the State of Georgia, GEORGIA DEPARTMENT OF COMMUNITY HEALTH, GEORGIA DEPARTMENT OF HUMAN RESOURCES, JIM MARTIN, Commissioner, Georgia Department of Human Resources, in his official capacity, GARY REDDING, Commissioner, Georgia Department of Community Health, in his officiall capacity

Defendants . OR D E R
This case is presently before the Court on United States' Notice of Request to Participate as Amicus Curiae [22] ; defendants' Motion for Leave to File Excess Pages [26 1 ; defendants' Motion for Partial Dismissal [27] ; plaintiffs' Motion for Class Certification [28] ; defendants' Motion for Leave to File Excess Pages [33 1 ;

AO 72A (Rev_8/82)

Case 1:03-cv-00288-JEC Document 68 Filed 03/22/05 Page 2 of 4
defendants' Motion for Leave to file Excess Pages [46] ; Motion to Intervene as Plaintiffs [55] ; plaintiffs' Motion for Hearing on Motions for Class Certification and to Intervene [56] ; Motion to Intervene [60] ; Consent Motion for Extension of Discovery [61] ; AND defendants' Motion for Leave to File Excess Pages [63] .
The Court recently held a teleconference to address the consent motion for an extension of the discovery period . At this teleconference, the parties expressed their need to engage in further discovery so that they could participate in more fruitful settlement discussions . The Court GRANTS this motion [61] and extends discovery through May 16, 2005, the date requested by the parties . The parties shall send the Court a letter by May 16, 2005, indicating where they are in settlement discussions, whether further discovery is necessary, and whether they are prepared to begin briefing any summary judgment motions . This letter must be double-spaced and conform to the Court's local rule regarding font size . See LR 5 . 1C, NDGa . The Court will confer with counsel at that time and determine how the case should proceed and what motions should be filed . In the meantime, the Court DENIES wi thout prejudice the pending motions for partial dismissal [27] and class certification [28] .
Further, at the conference , the Court discouraged plaintiffs' counsel from filing any more motions to intervene, but did not
2
AO 72A (Rev 8182)

Case 1:03-cv-00288-JEC Document 68 Filed 03/22/05 Page 3 of 4
direct that plaintiffs not file any further such motions . Upon further reflection, the Court believes it best that plaintiffs cease filing motions to intervene while the parties are discussing settlement . Settlement discussions cannot progress if defendants must continue to respond to these motions and if the universe of plaintiffs continues to change . For this reason, the Court DENIES withou t prejudice the pending motions to intervene [55, 60] and instructs plaintiffs' counsel not to file any additional motions to intervene . If the case does not settle by the May 16 discovery deadline, then plaintiffs may, after conferring with the Court, revisit the issue of filing motions to intervene .
For the foregoing reasons, the Court GRANTS the United States' Notice of Request to Participate as Amicus Curiae [22] ; GRANTS defendants' Motion for Leave to File Excess Pages [26] ; DENIES without prejudice defendants' Motion for Partial Dismissal [27] ; DENIES wi thout prejudice plaintiffs' Motion for Class Certification [28] ; GRANTS defendants' Motion for Leave to File Excess Pages [33] ; GRANTS defendants' Motion for Leave to File Excess Pages [46] ; DENIES wi thout prejudice Motion to Intervene as Plaintiffs [55] ; DENIES without prejudice plaintiffs' Motion for Hearing on Motions for Class Certification and to Intervene [S6] : DENIES without prejudi ce Motion to Intervene [60] ; GRANTS Consent Motion
3
AO 72A (Rev.8/82)

Case 1:03-cv-00288-JEC Document 68 Filed 03/22/05 Page 4 of 4

for Extension of Discovery [61] ; AND GRANTS defendants' Motion for Leave to File Excess Pages [63] .
The parties are reminded that they must send the Court a letter by May 16 , 2005 indicating where they are in settlement discussions and discovery .

SO ORDERED, this

day of March, 2005 .

,`~ ULIE E . CARNES U N I T ED STATES DISTRICT JUDGE

4
AO 72A (Rev.8/82)

 
 Case 1:03-cv-00288-JEC Document 88 Filed 06/26/06 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

MICHAEL BIRDSONG, et al., Plaintiffs,
v.
SONNY PERDUE, et al., Defendants.

* * * * CIVIL ACTION NO. * 1:03-CV-0288-JEC
* * * *

STIPULATION OF DISMISSAL WITH PREJUDICE

COME NOW all parties to the above action, by and through their respective

counsel of record and, pursuant to Federal Rule of Civil Procedure 41, stipulate to

the dismissal of the above-styled action with prejudice.

1&~ This

of June, 2006.

Respectfully submitted,

SUTHERLAND, ASBILL & BRENNAN, LLP

999 Peachtree Street, NE Suite 2300 Atlanta, GA 30309-3996 (404) 853-8000 (Telephone) (404) 853-8806 (Facsimile)

Is/ Charles T. Lester, Jr.
Charles T. Lester, Jr Georgia Bar No. 447200
(By Bruce M. Edenfield w /express permission)

[SIGNATURES CONTINUED]

Case 1:03-cv-00288-JEC Document 88 Filed 06/26/06 Page 2 of 2

2408 Mt. Vernon Road Atlanta, Georgia 30338 (770) 351-0090 (770) 351-0366 Facsilnile bedenfield@ghelaw .com

THURBERT E. BAKER Attorney General Georgia Bar No.: 033887
KATHLEEN M. PACIOUS Deputy Attorney General Georgia Bar No.: 558555
JOHN C. JONES Senior Assistant Attorney General Georgia Bar No.: 401250
GRAY, HEDRICK & EDENFIELD, L.L.P.
Is I Bruce M. Edenfield
Bruce M. Edenfield Special Assistant Attorney General Georgia Bar No. 239050

 
 Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 1 of 13
4months, CLASS, CLOSED, STAY
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:03−cv−00288−JEC

Birdsong, et al v. Perdue, et al

Date Filed: 01/31/2003

Assigned to: Judge Julie E. Carnes

Date Terminated: 11/02/2005

Demand: $0

Jury Demand: None

Cause: 42:12101 et seq. Americans with Disabilities Act of 1990 Nature of Suit: 440 Civil Rights: Other

Jurisdiction: Federal Question

Plaintiff

Michael Birdsong

represented by Charles T. Lester , Jr. Sutherland Asbill &Brennan 999 Peachtree Street, N.E. Suite 2300 Atlanta, GA 30309−3996 404−853−8000 Email: charles.lester@sablaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith A. O'Brien Sutherland Asbill &Brennan 999 Peachtree Street, N.E. Suite 2300 Atlanta, GA 30309−3996 404−853−8000 Email: judy.obrien@sablaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold Office of Stephen F. Gold 125 South 9th Street Suite 700 Philadelphia, PA 19107 215−627−7100 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Wynn Roseborough Sutherland Asbill &Brennan−GA 999 Peachtree Street, N.E. Suite 2300 Atlanta, GA 30309−3996 404−853−8100 Email: teresa.roseborough@sablaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Alan White Fried &Bonder, LLC White Provision Suite 305 1170 Howell Mill Road, NW Atlanta, GA 30318 404−853−8000 Email: jwhite@friedbonder.com TERMINATED: 04/12/2006

Susan Walker Goico Sutherland Asbill &Brennan

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 2 of 13

999 Peachtree Street, N.E. Suite 2300 Atlanta, GA 30309−3996 404−853−8000 Email: susan.goico@sablaw.com TERMINATED: 04/12/2006

S. Leighton Moore Troutman Sanders, LLP−ATL Suite 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308−2216 404−962−6664 Email: leighton.moore@troutmansanders.com ATTORNEY TO BE NOTICED

Plaintiff Kelley Dotson

represented by Charles T. Lester , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith A. O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Wynn Roseborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Alan White (See above for address) TERMINATED: 04/12/2006

Susan Walker Goico (See above for address) TERMINATED: 04/12/2006

S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Susan Edwards

represented by Charles T. Lester , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith A. O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 3 of 13

ATTORNEY TO BE NOTICED

Teresa Wynn Roseborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Alan White (See above for address) TERMINATED: 04/12/2006

Susan Walker Goico (See above for address) TERMINATED: 04/12/2006

S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Bobby Jones

represented by Charles T. Lester , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith A. O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Wynn Roseborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Alan White (See above for address) TERMINATED: 04/12/2006

Susan Walker Goico (See above for address) TERMINATED: 04/12/2006

S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mia Murray

represented by Charles T. Lester , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith A. O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 4 of 13

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Wynn Roseborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Alan White (See above for address) TERMINATED: 04/12/2006

Susan Walker Goico (See above for address) TERMINATED: 04/12/2006

S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Larry Pritchard

represented by Charles T. Lester , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith A. O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Wynn Roseborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Alan White (See above for address) TERMINATED: 04/12/2006

Susan Walker Goico (See above for address) TERMINATED: 04/12/2006

S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Patricia Redmond on behalf of themselves and all others similarly situated

represented by Charles T. Lester , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith A. O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 5 of 13

Plaintiff Jennifer Bivins
Plaintiff Alanna Clay
Plaintiff Barney Strickland
Plaintiff Victor Cardenas

Stephen F. Gold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa Wynn Roseborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Alan White (See above for address) TERMINATED: 04/12/2006
Susan Walker Goico (See above for address) TERMINATED: 04/12/2006
S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED
represented by S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED
represented by S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED
represented by S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED
represented by S. Leighton Moore (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff USA

represented by Robert David Powell Office of United States Attorney Northern District of Georgia 75 Spring Street, S.W. 600 United States Courthouse Atlanta, GA 30303 404−581−6004 Email: R.David.Powell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Harrington U.S. Department of Justice P.O. Box 14403 Ben Franklin Station

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 6 of 13
Washington, DC 20044−4403 202−305−7999 Email: sarah.harrington@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Sonny Perdue in his official capacity as Governor of the State of Georgia
Defendant Georgia Department of Community Health
Defendant Georgia Department of Human Resources

represented by David E. Langford Cruser &Mitchell, LLP Suite 2000 Meridian II 275 Scientific Drive Norcross, GA 30092 678−684−2154 Fax: 404−881−2630 Email: dlangford@cmlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Jones Law Offices of John C. Jones 248 Roswell Street Marietta, Ga 30060 770−427−8066 Email: jcjones1234@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce McCord Edenfield Bruce M. Edenfield, P.C. Suite H 87 North Chestatee Street Dahlonega, GA 30533 706−864−2123 Fax: 770−351−0366 Email: bedenfieldlaw@windstream.net ATTORNEY TO BE NOTICED
represented by David E. Langford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce McCord Edenfield (See above for address) ATTORNEY TO BE NOTICED
represented by David E. Langford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C. Jones

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 7 of 13

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce McCord Edenfield (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jim Martin Commissioner, Georgia Department of Human Resources, in his official capacity

represented by David E. Langford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce McCord Edenfield (See above for address) ATTORNEY TO BE NOTICED

Defendant
Gary Redding Commissioner, Georgia Department of Community Health, in his official capacity

represented by David E. Langford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce McCord Edenfield (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/31/2003
01/31/2003 02/06/2003 02/13/2003 02/18/2003 02/18/2003
02/27/2003

# Docket Text
1 CLASS ACTION COMPLAINT filed and summons(es) issued. Consent form to proceed before U.S. magistrate and pretrial instructions given to attorney FILING FEE $ 150.00 RECEIPT # 500720 (aet) Modified on 02/04/2003 (Entered: 02/04/2003)
2 Application for admission of Stephen F. Gold pro hac vice for plaintiffs (to GET) (bsm) (Entered: 02/05/2003)
3 ORDER by Judge G. E. Tidwell, recusing Judge. Case reassigned to Judge Julie E. Carnes (cc w/notice) (bsm) (Entered: 02/07/2003)
4 ORDER by Judge Julie E. Carnes GRANTING [2−1] pro hac vice application of Stephen F. Gold (cc) (adg) (Entered: 02/14/2003)
Added attorney for defendant: David E. Langford. (ck) (Entered: 02/20/2003)
5 CONSENT ORDER by Judge Julie E. Carnes, extending time thru 4/7/03 for dfts to answer [1−1] complaint , Answer due 4/7/03 for Gary Redding, for Jim Martin, for GA Dept. Human Resou, for GA Dept. Community H, for Sonny Perdue (cc) (ck) (Entered: 02/20/2003)
Proposed Consent order extending time fof plas to move for class certification. (to JEC) (jph) (Entered: 03/03/2003)

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 8 of 13

03/05/2003 03/05/2003 04/08/2003 05/07/2003 05/07/2003 05/14/2003 05/14/2003
07/16/2003 07/18/2003
10/08/2003 10/10/2003
01/14/2004 02/05/2004
04/16/2004 04/20/2004
07/22/2004 08/05/2004 08/05/2004

6 CONSENT ORDER by Judge Julie E. Carnes, extending time thru 6/2/03 for plas to move for class certification (cc by CRD) (jph) (Entered: 03/06/2003)
7 Memo by CRD that [6−1] consent order violates the Court's rule regarding font. Parties are reminded to comply w/LR 5.1B regarding font. (cc by CRD) (jph) Modified on 03/06/2003 (Entered: 03/06/2003)
8 ANSWER by defendants to complaint [1−1] Discovery ends 9/5/03. (jph) (Entered: 04/09/2003)
9 Joint Certificate of interested persons. (to judge) (jph) (Entered: 05/08/2003)
10 Joint Preliminary Report and Discovery Schedule. (to judge) (jph) (Entered: 05/08/2003)
11 ENDORSED ORDER by Judge Julie E. Carnes APPROVING [10−1] preliminary statement. (cc) (jph) (Entered: 05/15/2003)
12 SCHEDULING ORDER by Judge Julie E. Carnes, staying discovery from 5/14/03 and expires 8/11/03. Discovery will commence 8/12/03 and Discovery ends 4/7/04 , any motions for sum jgm are due 4/27/04 and pto due 30 days after ruling; if no sum jgm motions then pre−trial order due on 5/7/04 , [12−1] order to be submitted on 5/10/04 if no sum jgm motions or pto filed . Parties are reminded to comply w/LR 5.1B regarding font. (cc) (jph) (Entered: 05/15/2003)
13 Joint MOTION to extend time to move for class certification and for parties to make initial disclosures , and to stay discovery (to JEC) (jph) (Entered: 07/17/2003)
14 CONSENT ORDER by Judge Julie E. Carnes GRANTING [13−1] joint motion to extend time to move for class certification and for parties to make initial disclosures, GRANTING [13−2] joint motion to stay discovery (cc) (jph) (Entered: 07/21/2003)
15 Joint MOTION to extend time for class certification, for parties to make initial disclosures , and to stay discovery (to JEC) (jph) (Entered: 10/09/2003)
16 CONSENT ORDER by Judge Julie E. Carnes GRANTING the [15−1] joint motion to extend time for class certification, for parties to make initial disclosures and GRANTING [15−2] joint motion stay discovery. Discovery ends 9/16/04. (cc) (aaq) (Entered: 10/14/2003)
17 Joint MOTION to extend time thru 05/06/04 for plas to move for class certification, thru 04/16/04 for parties to make initial disclosures, and thru 04/16/04 for the stay of discovery with prop. order. (to JEC) (jdb) (Entered: 01/15/2004)
18 CONSENT ORDER by Judge Julie E. Carnes GRANTING [17−1] joint motion to extend time thru 05/06/04 for plas to move for class certification, thru 04/16/04 for parties to make initial disclosures, and thru 04/16/04 for the stay of discovery, time for filing motions under N.D.Ga LR 7.1(A)(2) is extended to 5/17/04. Discovery ends 12/16/04 (cc) (jlm) (Entered: 02/06/2004)
19 JOINT MOTION to extend time for plas to move for class certification; for parties to make initial disclosures and to stay discovery with proposed consent order. (jlm) (Entered: 04/19/2004)
20 CONSENT ORDER by Judge Julie E. Carnes GRANTING [19−1] motion to extend time to and including 8/6/04 for plas to move for class certification; parties to make initial disclosures by 7/16/04 and GRANTING [19−2] motion to stay discovery until 7/16/04. Time for filing motions under LR 7.1(A)(2) is extended to 8/17/04. Discovery ends 3/16/05 (cc) (jlm) (Entered: 04/21/2004)
21 Dft's Response to Initial Disclosures (jlm) (Entered: 07/26/2004)
22 United States' Notice of Request to participate as Amicus Curiae with Brief In Support. (jlm) (Entered: 08/10/2004)
23 CONSENT MOTION for Extension of Time to file motion for class certification .(to JEC) (jlm) (Entered: 08/11/2004)

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 9 of 13

08/10/2004 08/18/2004 08/18/2004 08/18/2004 08/20/2004 09/01/2004 09/01/2004 09/10/2004
09/20/2004 09/20/2004 09/22/2004 09/22/2004 09/24/2004 09/24/2004 09/27/2004 10/01/2004 10/08/2004
10/12/2004 10/12/2004 10/13/2004

24 ORDER granting 23 CONSENT MOTION for Extension of Time to and including 8/20/04 to file motion for class certification . Signed by Judge Julie E. Carnes on 8/9/04. (cc) (jlm) (Entered: 08/11/2004)
25 CERTIFICATE OF SERVICE by pla re: Pla's first set of interrogatories. (jlm) (Entered: 08/19/2004)
26 Dft's MOTION to exceed page limitation for brief filed in support of their motion for partial dismissal. (jlm) (Entered: 08/19/2004)
27 Dft's MOTION for Partial Dismissal. (Attachments: # 1 Brief in Support)(jlm) (Entered: 08/19/2004)
28 Pla's MOTION to Certify Class with memorandum in support. (Attachments: # 1 Memorandum of law in support)(jlm) (Entered: 08/23/2004)
29 CONSENT MOTION for Extension of Time for dfts to file response to pla's 28 MOTION to Certify Class . (to JEC) (jlm) (Entered: 09/03/2004)
30 CONSENT MOTION for Extension of Time for plas to file memorandum in opposition to dft's 27 MOTION for partial dismisssal . (jlm) (Entered: 09/03/2004)
Submission of 22 MOTION Request to participate as Amicus Curiae, 26 MOTION for Leave to File Excess Pages, 27 MOTION to Dismiss and 28 MOTION to Certify Class, submitted to District Judge Julie E. Carnes. (jlm) (Entered: 09/10/2004)
31 ORDER GRANTING 29 Consent Motion for Extension of Time to and including 9/21/04 for dft's to file response to pla's motion for class certification. . Signed by Judge Julie E. Carnes on 9/17/04. (jlm) (Entered: 09/21/2004)
32 ORDER GRANTING 30 Consent Motion for Extension of Time for plas to file memorandum in opposition to dft's 27 MOTION for partial dismisssal . Signed by Judge Julie E. Carnes on 9/17/04. (jlm) (Entered: 09/21/2004)
33 Dft's MOTION for Leave to File Excess Pages for its Brief in Support of Dfts Response to Pla's Motion for Class Certification . (jlm) (Entered: 09/24/2004)
34 Dft's BRIEF in RESPONSE to Pla's 28 MOTION to Certify Class. (Attachments: # 1 Exhibit 1 Barnes Affidavit# 2 Exhibit 2 Bacheller Affidavit# 3 Exhibit 3 Dillard Affidavit)(jlm) (Entered: 09/24/2004)
35 CONSENT MOTION for Leave to File Excess Pages with proposed order. (to JEC). (jlm) (Entered: 09/28/2004)
36 CONSENT MOTION of the United States to Intervene as of right and for Leave to File consolidated brief as amicus and intervenor with proposed order. (to JEC) (jlm) (Entered: 09/28/2004)
37 Plaintiff's RESPONSE to dfts' 27 MOTION for Partial Dismissal. (jlm) (Entered: 10/01/2004)
38 CERTIFICATES OF SERVICE regarding dfts' Beverly Walker and Georgia Department of Community Health's response to pla's first set of interrogatories. (jlm) (Entered: 10/05/2004)
39 CONSENT MOTION for Extension of Time to and including 10/25/04 for plas' to respond to dft's 34 Brief in Opposition to pla's motion for Class Certification and to and including 10/21/04 for dfts' to reply to pla's 37 Memorandum in Response to dft's motion for partial dismissal, with Proposed Order. (Last page of document filed in error) Modified on 10/8/2004 (jlm). (to JEC) (Entered: 10/08/2004)
Submission of 33 MOTION for Leave to File Excess Pages, submitted to District Judge Julie E. Carnes. (FILE IN CHAMBERS) (jlm) (Entered: 10/12/2004)
40 CERTIFICATE OF SERVICE by dft Tim Burgess regarding his response to pla's first set of interrogatories. (jlm) (Entered: 10/12/2004)
41 BRIEF filed by USA as Intervenor regarding State's 27 MOTION to Dismiss . (Attachments: # 1 Part 2# 2 Part 3)(jlm) (Entered: 10/14/2004)

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 10 of 13

10/13/2004 10/13/2004
10/15/2004
10/22/2004 10/22/2004 10/25/2004 10/26/2004
10/29/2004 10/29/2004 11/02/2004 11/02/2004 11/24/2004 12/09/2004
01/05/2005 01/05/2005 01/18/2005
01/24/2005

42 ORDER GRANTING 35 Motion for Leave to File Excess Pages . Signed by Judge Julie E. Carnes on 10/12/04. (jlm) (Entered: 10/14/2004)
43 ORDER GRANTING 36 Motion to Intervene and GRANTING 36 Motion for Leave to File a consolidated brief as amicus in response to State's motion for partial dismissal . Signed by Judge Julie E. Carnes on 10/12/04. (jlm) (Entered: 10/14/2004)
44 ORDER GRANTING pla's 39 Motion for Extension of Time to and including 10/25/04 to reply to dft's brief in opp to pla's motion for class certification and dft's have until 10/21/04 to reply to pla's memorandum in response to dft's motion for partial dismissal. Signed by Judge Julie E. Carnes on 10/14/04. (jlm) (Entered: 10/19/2004)
46 MOTION to Allow Brief in excess of page limit by dfts.. (jlm) (Entered: 10/26/2004)
47 Dft's BRIEF in REPLY to pla's 37 Response to dft's 27 MOTION to Dismiss. (jlm) (Entered: 10/26/2004)
45 REPLY BRIEF re 28 MOTION to Certify Class filed by Michael Birdsong. (Moore, Sidney) (Entered: 10/25/2004)
48 CONSENT MOTION to file Amended 45 Reply Brief by Michael Birdsong. (Attachments: # 1 PROPOSED AMENDED Reply to Defendants' Brief in Response to Pla's Motion for Class Certification)(Moore, Sidney) Modified on 10/28/2004 (jlm). Modified on 10/28/2004 (jlm). (to JEC for approval) (Entered: 10/26/2004)
49 CERTIFICATE OF SERVICE by plaintiffs regarding pla's first request for production of documents to dfts. (jlm) (Entered: 11/02/2004)
50 CERTIFICATE OF SERVICE by dft Sonny Perdue regarding his response to pla's first set of interrogatories. (jlm) (Entered: 11/02/2004)
51 ORDER APPROVING 48 Consent Motion to File Amended Version of Pla's Reply to dft's Brief in Response to Pla's Motion for Class Certification. Signed by Judge Julie E. Carnes on 11/2/04. (jlm) (Entered: 11/04/2004)
52 Pla's Amended Version of REPLY to dft's 34 RESPONSE to pla's 28 MOTION to Certify Class (jlm) (Entered: 11/04/2004)
Submission of 46 MOTION for Leave to File Excess Pages, submitted to District Judge Julie E. Carnes. (Note: File in Chambers) (dfb) (Entered: 11/24/2004)
53 CERTIFICATE OF SERVICE by Georgia Department of Community Health, Georgia Department of Human Resources, Sonny Perdue Discovery Certificate of Service/Defendants' Response to Plaintiffs' First Request for Production of Documents (Langford, David) (Entered: 12/09/2004)
54 First Intervenor COMPLAINT against all defendants, filed by Jennifer Bivins, Alanna Clay, Barney Strickland.(Moore, Sidney) (Entered: 01/05/2005)
55 MOTION to Intervene as Plaintiffs with Brief In Support by Jennifer Bivins, Alanna Clay, Barney Strickland. (Attachments: # 1)(Moore, Sidney) (Entered: 01/05/2005)
56 MOTION for Hearing re Class Certification and Motion to Intervene by Michael Birdsong, Kelley Dotson, Susan Edwards, Jennifer Bivins, Alanna Clay, Barney Strickland, Bobby Jones, Mia Murray, Larry Pritchard, Patricia Redmond. (Attachments: # 1 Text of Proposed Order)(Moore, Sidney) (Entered: 01/18/2005)
57 RESPONSE in Opposition re 55 MOTION to Intervene as Plaintiffs, 56 MOTION for Hearing re Class Certification and Motion to Intervene filed by Georgia Department of Human Resources, Jim Martin, Gary Redding, Jennifer Bivins, Sonny Perdue, Georgia Department of Community Health. (Attachments: # 1 Affidavit of Sandy Choat# 2 Attachment A to Exhibit 1# 3 Attachment B to Exhibit 1# 4 Attachment C to Exhibit 1# 5 Attachment D to Exhibit 1# 6 Affidavit of Deborah Curry# 7 Attachment A to Exhibit 2# 8 Affidavit of Sue

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 11 of 13

01/31/2005 02/02/2005 02/07/2005 02/10/2005 02/18/2005 03/01/2005
03/08/2005
03/08/2005 03/14/2005 03/14/2005 03/15/2005 03/15/2005
03/22/2005

Burgess)(Langford, David) (Entered: 01/24/2005)
Submission of 55 MOTION to Intervene as Plaintiffs, submitted to District Judge Julie E. Carnes. (NOTE: File in Chambers) (dfb) (Entered: 01/31/2005)
58 RESPONSE in Opposition re 56 MOTION for Hearing re Class Certification and Motion to Intervene Defendants' Response in Opposition to Motion for Rule Nisi filed by Sonny Perdue. (Attachments: # 1 Exhibit Exhibit 1 − Affidavit of Sandy Choate)(Langford, David) (Entered: 02/02/2005)
59 REPLY to Response to Motion re 55 MOTION to Intervene as Plaintiffs filed by Jennifer Bivins, Alanna Clay, Barney Strickland. (Moore, Sidney) (Entered: 02/07/2005)
Submission of 56 MOTION for Hearing re Class Certification and Motion to Intervene, submitted to District Judge Julie E. Carnes. (NOTE: File in Chambers) (dfb) (Entered: 02/10/2005)
60 MOTION to Intervene of Victor Cardenas with Brief In Support. (Attachments: # 1 Brief in Support of Motion to Intervene# 2 Exhibit Complaint of Intervenor)(Moore, Sidney) (Entered: 02/18/2005)
61 CONSENT MOTION for Extension of Time through May 16, 2005 to Complete Discovery by Georgia Department of Human Resources, Jim Martin, Gary Redding, Michael Birdsong, Kelley Dotson, Susan Edwards, Jennifer Bivins, Alanna Clay, Barney Strickland, Victor Cardenas, Bobby Jones, Mia Murray, Larry Pritchard, Patricia Redmond, Sonny Perdue, Georgia Department of Community Health. (ddm) (Entered: 03/02/2005)
62 NOTICE Of Filing Defendants' Objection to Victor Cardenas' Motion for Intervention by Georgia Department of Human Resources, Jim Martin, Gary Redding, Sonny Perdue, Georgia Department of Community Health (Attachments: # 1 Exhibit 1 − Affidavit of Karen Bacheller)(Langford, David) (Entered: 03/08/2005)
63 MOTION for Leave to File Excess Pages by Georgia Department of Human Resources, Jim Martin, Gary Redding, Sonny Perdue, Georgia Department of Community Health. (Langford, David) (Entered: 03/08/2005)
64 NOTICE scheduling a TELEPHONE conference to discuss re 61 MOTION for Extension of Time to Complete Discovery for TUESDAY, 3/15/05, 11:00 A.M. (kb) (Entered: 03/14/2005)
66 ORDER granting 63 Motion for Leave to File Excess Pages. In the future, a Proposed Order should be attached for the Court's signature. Signed by Judge Julie E. Carnes on 3/14/05. (ddm) (Entered: 03/15/2005)
65 NOTICE of Appearance by Sarah E. Harrington on behalf of USA (Harrington, Sarah) (Entered: 03/15/2005)
67 Minute Entry for proceedings held before Judge Julie E. Carnes : Telephone Conference held on March 15, 2005 on 61 Consent Motion to Extend Discovery. Court granted extension through May 16, 2005. Court is denying without prejudice all the pending motions, to be reactivated, if case not settled. Parties to continue settlement negotiations and complete discovery and advise Court by May 16, 2005 (in a Joint letter, double spaced) indicated where parties are and the next procedure required. Court suggested that Plaintiff not file, if possible, any further motions to intervene pending a resolution of discovery and settlement. Court will schedule a conference in May 2005 to discuss matters further. Order to follow. (Court Reporter Donna Keeble.)(ddm) (Entered: 03/17/2005)
68 ORDER 61 Motion to Extend Discovery though May 16, 2005, the date requested by the parties, denying without prejudice 27 Motion for partial dismissal and 28 Motion for class certification, denying without prejudice 55 and 60 Motions to Intervene, granting 22 Notice of Request by USA to participate as Amicus Curiae, granting 26 Motion to file excess pages, granting 33 and 46 Defendants' Motions to file excess pages, denying without prejudice 56 Plaintiff's Motion for hearing on class certification and to intervene, and granting Defendant's Motion to file excess

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 12 of 13

03/31/2005 05/06/2005
05/20/2005 08/02/2005 08/02/2005
08/05/2005 09/02/2005
09/20/2005 09/26/2005 11/02/2005
11/02/2005 11/23/2005 12/02/2005 02/13/2006

pages. The parties are reminded that they must send the Court a letter by May 16, 2005 indicating where they are in settlement discussions and discovery. Signed by Judge Julie E. Carnes on 3/21/05.(ddm) (Entered: 03/22/2005)
69 TRANSCRIPT of In Camera Telephone Conference Proceedings held on March 15, 2005 before Judge Julie E. Carnes. Court Reporter: Donna C. Keeble. (ddm) (Entered: 04/01/2005)
70 Consent MOTION for Extension of Time to Complete Discovery DEFENDANTS' CONSENT MOTION TO EXTEND DISCOVERY AND SET THE DATE FOR FILING OF MOTION FOR SUMMARY JUDGMENT by Georgia Department of Human Resources, Jim Martin, Gary Redding, Sonny Perdue, Georgia Department of Community Health. (Attachments: # 1 CONSENT ORDER EXTENDING TIME FOR DISCOVERY AND DEADLINE FOR THE FILING OF MOTIONS FOR SUMMARY JUDGMENT)(Langford, David) (Entered: 05/06/2005)
71 ORDER granting 70 defendants' Consent Motion for Extension of Time to Complete Discovery. Discovery ends on FRIDAY, 7/15/2005 and summary judgment motions are due on THURSDAY, 9/15/05. Signed by Judge Julie E. Carnes on 05/20/05. (kb) (Entered: 05/23/2005)
72 Request for Leave of Absence for the following date(s): 7/24/05 to 8/19/05 and 9/1/05 to 9/5/05, by Teresa Wynn Roseborough. (kb) (Entered: 08/02/2005)
MINUTE ORDER (by docket entry only) APPROVING re 72 Leave of Absence of Teresa Wynn Roseborough for the period of 7/24/05 to 8/19/05 and 9/1/05 to 9/5/05 by CRD by direction of the Court on 8/2/05. Counsel is expected to comply timely with discovery. Further, should any pleading become due during this period, counsel will be required to file a motion for extension of time as to that particular pleading, should counsel wish any extension.(kb) (Entered: 08/02/2005)
73 Mail Returned as Undeliverable. Mail sent to Stephen F. Gold regarding NEF from Minute Order returned due to incomplete address. (ddm) (Entered: 08/08/2005)
74 Joint MOTION for Extension of Time to Complete Discovery and to File Dispositive Motions by Michael Birdsong, Kelley Dotson, Susan Edwards, Jennifer Bivins, Alanna Clay, Barney Strickland, Victor Cardenas, Bobby Jones, Mia Murray, Larry Pritchard, Patricia Redmond. (Moore, Sidney) (Entered: 09/02/2005)
75 NOTICE of Appearance by Bruce McCord Edenfield on behalf of all defendants (Edenfield, Bruce) (Entered: 09/20/2005)
76 ORDER granting 74 the Joint Motion for Extension of Time to Complete Discovery. Fact Discovery ends on FRIDAY, 9/30/2005. Signed by Judge Julie E. Carnes on 09/23/05. (kb) (Entered: 09/26/2005)
77 ORDER amending its 68 Order of March 22, 2005 to indicate that this action is administratively terminated. The case shall be reactivated by the Clerk on November 30, 2005, when the parties file their dispositive motions or on a later date when these motions are filed, should another extension be sought and granted. Signed by Judge Julie E. Carnes on 11/2/05. (ddm) (Entered: 11/03/2005)
Civil Case Terminated. (ddm) (Entered: 11/03/2005)
78 Joint MOTION for Extension of Time to Complete Discovery by Michael Birdsong, Kelley Dotson, Susan Edwards, Jennifer Bivins, Alanna Clay, Barney Strickland, Victor Cardenas, Bobby Jones, Mia Murray, Larry Pritchard, Patricia Redmond. (Moore, Sidney) (Entered: 11/23/2005)
79 ORDER granting 78 Joint Motion for Extension of Time to Complete Discovery. Fact Discovery ends on TUESDAY,1/31/2006 and dispositive motions due MONDAY, 2/20/06. Signed by Judge Julie E. Carnes on 12/2/05. (kb) (Entered: 12/02/2005)
80 Joint MOTION for Extension of Time to file dispositive motions with Brief In Support by Georgia Department of Human Resources. (Attachments: # 1 Text of Proposed Order granting extension to file dispositive motions)(Edenfield, Bruce)

Case: 1:03-cv-288 As of: 02/12/2011 08:05 PM EST 13 of 13

02/15/2006 02/22/2006 03/13/2006
03/13/2006 03/24/2006 03/27/2006 04/06/2006 04/12/2006 06/26/2006 06/27/2006

(Entered: 02/13/2006)
81 ORDER granting re 80 Joint MOTION for Extension of Time to file dispositive motions through MONDAY, 3/27/06. Signed by Judge Julie E. Carnes on 2/15/06. (kb) (Entered: 02/15/2006)
82 NOTICE by USA re 41 Reply Brief (Attachments: # 1 Supplement Supplemental Legal Authority)(Harrington, Sarah) (Entered: 02/22/2006)
83 DOCUMENT FILED IN ERROR NOTICE Of Filing Motion Requesting Permission to Withdrawal Counsel by Michael Birdsong, Kelley Dotson, Susan Edwards, Jennifer Bivins, Alanna Clay, Barney Strickland, Victor Cardenas, Bobby Jones, Mia Murray, Larry Pritchard, Patricia Redmond (Moore, Sidney) Modified on 3/14/2006 to correct attorney pleading (ddm). (Entered: 03/13/2006)
84 REDOCKETED AS MOTION to Withdraw Susan Walker Goico, Joseph Alan White as Attorneyby Michael Birdsong, Kelley Dotson, Susan Edwards, Jennifer Bivins, Alanna Clay, Barney Strickland, Victor Cardenas, Bobby Jones, Mia Murray, Larry Pritchard, Patricia Redmond. (ddm) (Entered: 03/14/2006)
85 Joint MOTION for Extension of Time to File Dispositive Motions by Georgia Department of Community Health. (Attachments: # 1 Text of Proposed Order)(Edenfield, Bruce) (Entered: 03/24/2006)
86 ORDER granting 85 Motion for Extension of Time for filing dispositive motions through FRIDAY, 4/28/06 . Signed by Judge Julie E. Carnes on 03/27/06. (kb) (Entered: 03/27/2006)
Submission of 84 MOTION to Withdraw Susan Walker Goico, Joseph Alan White as Attorney for Plaintiffs, submitted to District Judge Julie E. Carnes. (ddm) (Entered: 04/06/2006)
87 ORDER granting 84 Motion to Withdraw as Attorney. Attorneys Susan Walker Goico, Riette Van Laack, and Joseph Alan White are terminated as counsel of record for plaintiffs. Signed by Judge Julie E. Carnes on 4/11/06. (mas) (Entered: 04/12/2006)
88 STIPULATION of Dismissal With Prejudice (Joint between all parties) by Georgia Department of Community Health. (Edenfield, Bruce) (Entered: 06/26/2006)
Clerk's Entry of Dismissal approving 88 Stipulation of Dismissal With Prejudice. (ddm) (Entered: 06/27/2006)