Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 1 of 63

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

T.R., by and through his guardian and next

7 friend, R.R.; S.P., by and through her mother and No.

next friend, DH; C.A., by and through her

8 mother and next friend, A.A.; T.F., by and

through her father and next friend, D.F.; P.S., by

9 and through his mother and next friend, W.S.;

CLASS ACTION COMPLAINT FOR

T.V., by and through his guardian and next

INJUNCTIVE AND DECLARATORY

10 friend, C.D.; G.B., by and through her mother

RELIEF

and next friend, L.B.; E.H. by and through his

11 mother and next friend, C.H.; E.D., by and

through his mother and next friend, A.D.; and

12 L.F.S., by and through his mother and next

friend, B.S.

13

Plaintiffs,

14 v.

15 SUSAN N. DREYFUS, not individually, but : 1 solely in her official capacity as Secretary of the
16 Washington State Depmiment of Social and Health Services;
17 Defendant.
18

19

The named Plaintiffs herein, by and through their counsel, and on behalf of themselves

20 and the class they represent, allege as follows:

21

1. BRIEF STATEMENT OF THE CASE

22

1. This Complaint asserts a class action lawsuit to enforce the rights of

23 Washington's Medicaid eligible children under the age of21, with mental health needs, to

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 1

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 2 of 63

1 receive the intensive home and community-based mental health services necessary to cOlTect or

2 ameliorate their mental health conditions.

3

2. Since at least the year 2002, Washington's Department of Social and Health

4 Services ("DSHS") has commissioned and issued numerous studies and reports that confirm the

5 inadequacy of the State's CUlTent system of mental health care for Washington's Medicaid

6 children and that recommend the wide-spread adoption of intensive home and community-based

7 mental health services ("Intensive He-based Services"). Yet, to date, Washington's Medicaid

8 children have little or no access to such services.

9

3. The State's failure to ensure that Washington's Medicaid eligible children are

10 provided necessary, Intensive He-based Services violates: (1) the Early and Periodic Screening,

11 Diagnostic and Treatment ("EPSDT") provisions of Title XIX of the federal Social Security Act

12 ("Medicaid Act"); and (2) the Integration Mandate of the Americans with Disabilities Act (the

13 "ADA") and Rehabilitation Act.

14

4. Within Washington's Medicaid system, many children with significant mental

15 health needs can only access a limited tool kit of weekly office-based therapy and medication

16 management. If those limited services are insufficient, the only option generally available for

17 these children is hospitalization in an acute care psychiatric hospital or placement in a long term

18 institutional mental health facility.

19

5. The named Plaintiffs in this action are ten children between the ages of nine and

20 17 who suffer from various psychiatric and behavioral disorders. They and the Plaintiff class

21 cannot access critical Intensive He-based Services due to Defendant's failure to provide them

22 with infonnation and notice of their right to access such services, failure to administer adequate

23 screening and assessments to address the children's community mental health needs, and failure

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 2

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 3 of 63

1 to manage the State's Medicaid mental health system so as to ensure that these children actually

2 have access to and are provided the Intensive HC-based Services necessary to correct ameliorate

3 their mental health conditions.

4

6. As a result of the Defendant's failure to arrange and provide for necessary

5 Intensive HC-based Services, the named Plaintiffs and thousands of other similarly situated

6 children have suffered: a) family separation and instability, including homelessness, eviction,

7 foster care placement, and out-of-state placement; b) repeated and avoidable hospitalizations; c)

8 unnecessary and harmful juvenile detention; d) segregation through unnecessary, prolonged and

9 often harmful institutionalization; and e) worsening mental and physical health conditions

10 contributing to their decline socially, academically and in daily living.

11

7. Plaintiffs and the class of children they represent, are cycling in and out of

12 hospitals, juvenile detention centers, long-telm psychiatric institutions, and foster care

13 placements that may be hundreds of miles away from their homes and families. Children should

14 grow up at home, not in institutions, and the revolving door of institutionalization and lack of

15 services must end.

16

8. Three of the named Plaintiffs are currently institutionalized; five have recently

17 been discharged after almost a year or more of institutionalization and are currently being

18 deprived of necessary post discharge services that would allow them to remain safely at home.

19 Each of these children has experienced multiple hospitalizations or institutionalization. The

20 remaining two named Plaintiffs have avoided hospitalization or institutionalization but have been

21 denied the Intensive HC-based Services they need to address their significant mental health

22 symptoms of selfhmming behaviors and threatened suicide. If these children do not receive

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 3

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 4 of 63

1 immediate treatment they are at high risk of institutionalization and will join the other named

2 Plaintiffs in the cycle of institutionalization and denial of services.

3

9. This failure to provide intensive HC-based Services has decreased the chance that

4 each of these children, and the class they represent, will become independent and productive

5 adults.

6

10. The named Plaintiffs seek declaratory and injunctive relief to enforce the

7 Medicaid Act, the Americans with Disabilities Act, the Rehabilitation Act and the FOUlieenth

8 Amendment to the United State's Constitution so that Intensive HC-based Services will be

9 available to them and others similarly situated.

10

II. JURISDICTION AND VENUE

11

11. This class action for declaratory and injunctive relief arises under 42 U.S.C. §§

12 1983 and 1988, the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. ("ADA") and

13 Section 504 of the Rehabilitation Act of 1973,29 U.S.c. § 794. Defendant is a state actor whose

14 actions giving rise to this suit were under color of state law.

15

12. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 and 1343(a).

16 Plaintiffs' claims for declaratory and injunctive relief are authorized under 28 U.S.C. § 2201 and

17 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure.

18

13. Venue is appropriate in the Western District of Washington pursuant to 28 U.S.C.

19 § 13 91 (b) because Defendant is sued in her official capacity and performs her official duties by

20 and through offices within the District and thus resides therein, and a substantial part of the

21 events and omissions giving rise to the claims herein occurred in this District. Many of the

22 named Plaintiffs also reside in this District.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 4

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 5 of 63

III. INTRODUCTORY STATEMENT

2

14. Historically, children with intensive mental health care needs were either treated

3 in large institutional asylums or were left untreated and faced a future ofjuvenile detention and

4 adult incarceration, homelessness or ever declining psychological, physical and social

5 conditions. There is now widespread agreement among children's mental health experts that

these restrictive, institutional treatment centers pose additional risks and can be a harmful

7 environment for children. By contrast, years of research and clinical experience have proven that

8 intensive home and community-based mental health services are both successful and cost

9 effective. Such services are now relied upon as a necessary treatment modality even for children

10 with the most severe emotional and behavioral problems. As a result, comis around the country

11 have required that state Medicaid programs ensure the provision ofIntensive HC-based Services

12 under Medicaid's EPSDT requirements. And, recognizing their legal obligation and the

13 effectiveness of such services, several states have voluntarily reformed their systems to ensure

14 that such services are made available to their Medicaid children and youth.

15

15. DSHS has repeatedly received recommendations for, and has itself recognized the

16 need for, wide-spread adoption and expansion ofIntensive HC-based Services but has failed to

17 implement the necessary systemic changes to provide for the delivery of these services statewide.

18 While pilot programs exist, they are available only to a fraction of the population and are often

19 funded by non-Medicaid funds. Other services may become available only if the child's parent

20 relinquishes custody to the foster care system, tearing the child away from a caring and loving

21 family environment and introducing further instability. And, while a few community mental

22 health providers offer limited home and community-based services to Medicaid children, these

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 5

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 6 of 63

services are frequently inadequate and offered only to a privileged few or in restrictive

2 circumstances.

3

16. By failing to create and suppOli intensive services in children's homes and

4 communities, and only offering intensive services in restrictive institutional settings, the system

5 is placing Plaintiffs and the members of the Plaintiff class at risk of (and in many cases ensuring)

( avoidable psychiatric hospitalizations or commitment to the juvenile delinquency system.

7

17. The cost to taxpayers of failing to provide necessary treatment and services to

8 children is well documented: inadequate care leads to a worsening of symptoms, with costlier

9 consequences requiring more expensive responses. The cost in lost opportunities to the children

10 themselves- through higher school drop out rates, involvement in the juvenile and criminal

11 justice systems, and a very real prospect of a lifetime of cycling in and out of state psychiatric

12 hospitals -cannot be calculated.

13

18. The harm to the named Plaintiffs and to the Plaintiff class is ineparable. While

14 the Defendant delays systemic reform, the childhood of each of the named Plaintiffs and Plaintiff

15 class members is literally slipping away as they spend days, weeks, months, and years in

16 institutions, detention centers, and out of home placements far from their families and

17 communities. Injunctive and declaratory relief are necessary and appropriate because absent

18 relief ensuring that Plaintiffs are provided necessary and legally required services, the named

19 Plaintiffs and the class they represent will continue to suffer as a result of Defendant's continued

20 violations of their legal rights.

21

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23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 6

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 7 of 63

1

IV. PARTIES

2 The Plaintiff Children

3

19. T.R. is a ten-year-old boy from King County with significant mental health care

4 needs. Although his treatment team recognizes that his condition will only worsen in an

5 institutional environment, he is unable to access the intensive home and community-based

6 mental health services that would allow him to safely return home. Instead he has remained

7 confined for the last nine months at the state psychiatric hospital for children on the grounds of

8 Western State Hospital. T.R. brings this action through his sister, legal guardian and next friend,

9 R.R. T.R. is a Medicaid recipient, for whom Defendant has failed to alTange and provide for

10 necessary Intensive HC-based Services, in King County, Washington.

11

20. S.P. is a 16-year-old girl from Spokane County, Washington with significant

12 mental health care needs. S.P. was recently discharged from an inpatient psychiatric facility and,

13 like the five times she had been previously discharged, was denied the Intensive HC-based

14 Services that she requires to remain safely at home. As a result, shortly thereafter she was

15 recommitted and is currently institutionalized. S.P. brings this action by and through her mother

16 and next friend, D.H. S.P. is a Medicaid recipient for whom Defendant has failed to arrange and

17 provide for necessary Intensive HC-based Services, in Spokane County, Washington.

18

21. C.A. is a 15-year-old girl from Island County, Washington with significant mental

19 health care needs. By the time she was 14, C.A. had been hospitalized three times due to

20 depression and a suicide attempt, and she had begun cutting herself. Although she can be treated

21 at home with Intensive HC-based Services, she is cUlTently institutionalized. C.A. brings this

22 action by and through her mother and next friend, A.A. C.A. is a Medicaid recipient for whom

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF-7

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 8 of 63

1 Defendant has failed to arrange and provide for necessary Intensive HC-based Services in Island

2 County, Washington.

3

22. T.F. is a 15-year-old girl from Spokane County, Washington with significant

4 mental health care needs. In order to receive Intensive HC-based Services, T.F. is currently

5 placed in a foster home in Kennewick, Washington, over 150 miles away from her home and

6 family. Due to the lack of available Intensive HC-based Services, she has been in out-of-home

7 placements and institutions since she was ten years old. T.F. brings this action by and through

8 her father and next friend, D.F. T.F. is a Medicaid recipient, for whom Defendant has failed to

9 arrange and provide for necessary Intensive HC-based Services, in Spokane County,

10 Washington.

11

23. P.S. is a 17-year-old boy from King County, Washington with significant mental

12 health care needs. Because P.S. has been repeatedly denied necessary Intensive HC-based

13 Services, he has spent his childhood bouncing between institutions, hospitals, and juvenile

14 detention. P.S. brings this action through his mother and next friend, W.S. P.S. is a Medicaid

15 recipient, for whom Defendant has failed to arrange and provide for necessary Intensive HC-

16 based Services in King County, Spokane County, and Yakima County, Washington.

17

24. T.V. is an eleven-year-old boy from Spokane County, Washington with

18 significant mental health care needs. After a year at the state psychiatric hospital for children,

19 T.V. was recently discharged and is currently being denied the step-down Intensive HC-based

20 Services he needs to prevent relapse. T.V. brings this action by and through his legal guardian,

21 C.D. T.V. is a Medicaid recipient, for whom Defendant has failed to arrange and provide for

22 necessary Intensive HC-based Services, in Spokane County, Washington.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 8

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 9 of 63

25. G.B. is a 13-year-old girl from King County, Washington with significant mental

2 health care needs. After spending almost two years in the state psychiatric hospital, G.B. was

3 recently discharged to her family with in-horne mental health services to address her aggression

4 and selfhmID. These Intensive HC-based Services were abruptly terminated by her Medicaid

5 provider based solely on arbitrary limits unrelated to her needs, thereby placing G.B. at

C significant risk of re-institutionalization. G.B. brings this action by and through her mother, L.B.

7 G.B. is a Medicaid recipient and has requested, for whom Defendant has failed to alTange and

8 provide for necessary Intensive HC-based Services, in King County, Washington.

9

26. E.H. is a 15- year-old boy from Whitman County, Washington with mental health

10 care needs. In spite of frequent incidents of self-harm, attempted suicide, and threats to others,

11 E.H. was recently discharged from an institution and has yet again been denied the Intensive HC-

12 based Services that would stabilize him in his horne. E.H. brings this action by and through his

13 mother and next friend, C.H. E.H. is a Medicaid recipient, for whom Defendant has failed to

14 arrange and provide for necessary Intensive HC-based Services, in Whitman County,

15 Washington.

16

27. E.D. is a ten-year-old boy King County, Washington with significant mental

17 health care needs from. E.D. has never been institutionalized, but he has serious and dangerous

18 unrnet mental health needs that are placing him at risk of falling into the vicious cycle of

19 hospitalizations that his fellow named Plaintiffs have suffered. E.D. brings this action by and

20 through his mother and next friend, A.D. E.D. is a Medicaid recipient for whom Defendant has

21 failed to alTange and provide for necessary Intensive HC-based Services in King County,

22 Washington.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 9

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 10 of 63

1

28. L.F.S. is a nine-year-old boy from Spokane County, Washington with mental

2 health care needs. L.F.S. has been exhibiting severe mental health symptoms for the last five

3 years, but has yet to receive an adequate assessment of his condition or Intensive HC-based

4 Services. L.F.S brings this action by and through his mother and next friend, B.S. L.F.S. is a

5 Medicaid recipient, for whom Defendant has failed to arrange and provide for necessary

6 Intensive HC-based Services in Spokane County, Washington

7 The Defendant

8

29. Susan N. Dreyfus is Secretary of the Washington State Depmiment of Social and

9 Health Services. Secretary Dreyfus is named solely in her official capacity as DSHS Secretary

10 for declaratory and prospective injunctive relief. DSHS administers Washington's Medicaid

11 program. Secretary Dreyfus is the designated State Mental Health Authority under

12 Washington's Community Mental Health Services Act, RCW 71.24. RCW 71.24.035. Secretary

13 Dreyfus's duties include assuring access to mental health treatment services for children, RCW

14 71.24.035.

15

30. Secretary Dreyfus is responsible for ensuring that Washington's Medicaid and

16 mental health services are administered in a manner consistent with state and federal law.

17

V. THE CLASS ACTION ALLEGATIONS

18

31. This action is brought as a statewide class action pursuant to Fed. R. Civ. P. 23(a)

19 and 23(b)(2). The proposed class consists of all current or future Medicaid-eligible residents of

20 Washington under the age of 21 who have or may in the future have a mental illness or condition

21 and who need, or may in the future need, but are not receiving, intensive home and community-

22 based mental health services in order to correct or ameliorate their mental illness or condition.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 10

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 11 of 63

1

32. The class is so numerous that joinder of all members is impracticable. By way of

2 example, DSHS data shows that there are more than 75,000 children between the ages of zero

3 and 17 who are low-income with a mental health diagnosis in the moderate to severe range and

4 thus would likely benefit from Intensive He-based Services that are routinely unavailable

5 statewide. Plaintiff class, which includes all Medicaid-eligible children under the age of 21, is

6 larger than this estimate. Furthermore, the class is fluid in that new members are regularly

7 created.

8

33. All members of the class share common issues of law and fact with respect to

9 Defendant's obligation to ensure that Washington's Medicaid eligible children are provided

10 legally mandated Intensive He-based Services required under the EPSDT provisions of the

11 federal Medicaid Act, the Integration Mandate of the ADA and the Rehabilitation Act, and that

12 such children are receiving notice of their rights under Medicaid.

13

34. The claims of the named Plaintiffs are typical of the claims of the class they

14 represent.

15

35. Plaintiffs will fairly and adequately protect the interests of the class they

16 represent. Plaintiffs know of no conflict of interest among the class members, and have a

17 personal and clearly defined interest in vindicating their rights and the rights of the class

18 members they represent to obtain necessary Intensive He-based Services and notice of their

19 rights under Medicaid. The relief the named Plaintiffs seek will inure to the benefit of the

20 Plaintiff class as a whole. The Plaintiffs are represented by attorneys experienced in federal class

21 action litigation and knowledgeable in the areas of disability and Medicaid law.

22

36. Prosecution of separate actions by individual class members would create a risk of

23 inconsistent or varying adjudications with respect to individual class members which would

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 11

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 12 of 63

1 establish incompatible standards of conduct or could as a practical matter be dispositive of the

2 interests of the other members or substantially impair or impede their ability to protect their

3 interests.

4

37. Defendant's ongoing actions and omissions have affected and will affect the class

5 generally, thereby making appropriate final injunctive and declaratory relief with respect to the

6 class as a whole.

7

VI. STATEMENTOFFACTS

8

A. Statutory Background

9

The Federal Medicaid Act and the EPSDT Mandate

10

38. Medicaid is a cooperative federal and state funded program authorized and

11 regulated pursuant to Title XIX of the Social Security Act ("Medicaid Act"), providing for a

12 medical assistance program for certain groups oflow-income persons. See 42 U.S.C. § 1396, et

13 seq. One of the purposes of the Medicaid program is to provide services to help such families

14 and individuals attain or retain the capability for independence or self-care. ld.

15

39. State participation is voluntary; however, states that choose to accept federal

16 funding and participate in the Medicaid program must adhere to the minimum federal

17 requirements set forth in the Social Security Act, as amended, and its implementing regulations,

18 42 U.S.C. § 1396 et seq. Through the Medicaid program, states receive federal matching funds

19 for their own programs in the form of reimbursements by the federal government for a pOliion of

20 the cost of providing Medicaid benefits.

21

40. The Medicaid Act mandates that states provide Early and Periodic Screening

22 Diagnostic and Treatment (EPSDT) services to Medicaid eligible children under the age of 21.

23 The EPSDT mandate obligates states to asceliain children's physical and mental impailments,

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 12

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 13 of 63

1 and to arrange for or provide such health care, treatment, or other measures that are necessary to

2 treat or ameliorate impairments and conditions, 42 U.S.C. § 1396a(a)(10)(A); 42 U.S.C.

3 § 1396d(a)(4)(B). EPSDT was created to be the "nation's largest preventative health program

4 for children." H.R. 3299, 101st Congo § 4213 (1989).

5

41. Under the Medicaid Act, every participating state must implement an EPSDT

6 program consisting of the following services:

7

a. informing all persons in the state who are under the age of21 and eligible for

8

medical assistance of the availability of early and periodic screening, diagnostic

9

and treatment services as described in 42 U.S.C. § 1396d(r);

10

b. providing or arranging for the provision of such screening services in all cases

11

where they are requested; and

12

c. providing or arranging for corrective treatment the need for which is disclosed by

13

such child health screening services. 42 U.S.C. § 1396a(a)(43).

14

42. Under EPSDT, states must provide and arrange for all of the treatment services

15 listed in 42 U.S.C. § 1396d(a) for EPSDT eligible children when necessary to correct or

16 ameliorate a psychiatric, behavioral, or emotional condition of a child or youth under the age of

17 21.

18

43. Home health care services, 42 U.S.C. § 1396d(a)(7); rehabilitative services, 42

19 U.S.C. § 1396d(a)(13); case management services, 42 U.S.C. §§ 1396d(a)(19), 1396n(g); and

20 personal care services, 42 U.S.C. § 1396d(a)(24) are among the services listed in 42 U.S.C.

21 § 1396d(a) and encompass Intensive HC-based Services. Courts have held that intensive home

22 and community-based mental health services are covered Medicaid services that must be

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 13

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 14 of 63

1 provided by the state under the EPSDT mandate (see, e.g., Rosie D. v. Romney, 410 F. Supp.2d

2 18 (D. Mass 2006)).

3

44. While states may adopt managed care concepts, contract with entities to oversee

4 the delivery of services, and anange services through provider networks, the states remain

5 responsible for ensuring compliance with all relevant Medicaid requirements, including the

6 mandates of the EPSDT program. 42 U.S.C. §§ 1396a(a)(5), 42 U.S.C. § 1396u-2; 42 U.S.C.

7 § 1396a(a)(43). The state must ensure that the managed care entity has the capacity to offer the

8 full range of necessary and appropriate preventive and primary services for all enrolled

9 beneficiaries. 42 U.S.C. § 1396u-2(b)(5).

10

45. In addition to the EPSDT mandate, states must comply with the Constitutional

11 Due Process requirements under the FOUlieenth Amendment, the Medicaid Act's due process
12 requirements and comparability requirements. u.s. Const. amend. XIV; 42 U.S.C.

13 § 1396a(a)(3); 42 U.S.C. § 1396a(a)(10)(B).

14

The Americans with Disabilities Act and the Integration Mandate

15

46. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et

16 seq., prohibits public entities from discriminating against or excluding a qualified individual with

17 a disability from enjoying or participating in the benefits of services, programs, or activities of

18 the public entity on the basis of disability. 42 U.S.c. § 12132; 28 C.F.R. § 35.130.

19

47. Regulations promulgated to implement Title II of the ADA require public entities

20 to "provide services, programs, and activities in the most integrated setting appropriate to the

21 needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The Medicaid program

22 is a public entity, and as such Medicaid services must be provided in the most integrated setting

23 appropriate to the individual's needs.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 14

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 15 of 63

48. The United States Supreme Court has determined that unnecessary

2 institutionalization constitutes discrimination and that Title II requires states to "provide

3 community-based treatment for persons with mental disabilities when 1) the State's treatment

4 professionals detennine that such placement is appropriate, 2) the affected persons do not oppose

5 such treatment, and 3) the placement can be reasonably accommodated, taking into account the

6 resources available to the State and the needs of others with mental disabilities." Olmstead v.

7 L.e., 527 U.S. 581, at 607 (1999).

8

B. Washington's Delivery of Medicaid Funded Mental Health Services for Children

9

49. Washington has chosen to patiicipate in the Medicaid program. RCW

10 43.20A.OI0. As a result, it receives billions of dollars every year from the federal government to

11 fund the State's program. Indeed, approximately 50-65% of every dollar spent by the State on its

12 Medicaid program is funded by the federal government.

13

50. In addition to the standard Medicaid funding received from the federal

14 government, the State of Washington has or shall receive up to an additional $339 million from

15 the federal government as pati of an increase in the percentage of Medicaid funded pursuant to

16 the stimulus package enacted as part of the American Recovery and Reinvestment Act of2009

17 (Pub. L. No. 111-5) ("ARRA"). These additional federal funds are designed to help states

18 support their Medicaid programs by relieving budgetary pressure on state governments during

19 difficult economic times.

20

51. States that choose to accept federal funding and patiicipate in the Medicaid

21 program must designate a "single state agency" to administer the Medicaid program at the state

22 level. 42 U.S.C. § 1396a(a)(5). In Washington, DSHS is the single state agency that is

23 designated to administer Washington's Medicaid program. Although Medicaid allows states to

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 15

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 16 of 63

1 provide mandatory Medicaid services through contractors, DSHS remains responsible for

2 ensuring that the mandates of the Medicaid Act are met, including EPSDT.

3

52. DSHS is authorized under state law to "make grants and/or purchase services

4 from counties, combinations of counties, or other entities, to establish and operate community

5 mental health programs." RCW 71.24.030.

6

53. The federal govemment has waived specific Medicaid provisions to allow DSHS

7 to implement a pre-paid capitated mental health program for individuals with significant mental

8 health needs. Under this capitated mental health waiver, DSHS may pre-pay fixed "capitated"

9 amounts to geographically designated Regional Support Networks (RSNs), who in tum locally

10 administer community mental health services to Medicaid eligible individuals who meet specific

11 access to care standards.

12

54. The capitated mental health waiver does not permit DSHS to deny, reduce, or

13 terminate services listed in 42 U.S.C. § 1396d(a) to Medicaid children for reasons not relating to

14 each child's individual needs. The waiver only permits DSHS to provide for additional services

15 to individuals enrolled on the waiver, although these services are not otherwise available to the

16 general Medicaid population.

17

55. The capitated mental health waiver did not affect the State's obligation under the

18 EPSDT mandate to ensure that children have access to all services listed in 42 U.S.C. § 1396d(a)

19 if necessary to correct or ameliorate their conditions. Thus, these services must be provided

20 regardless of whether the children's conditions otherwise meet the access to care standards

21 applicable to the managed care program.

22

56. The waiver also did not affect the Defendant's obligations under the Due Process

23 provisions of the Medicaid Act.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 16

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 17 of 63

-

57. Washington's Medicaid State Plan and capitated mental health waiver provide

2 coverage for intensive home and community-based mental health services such as intensive care

3 coordination, comprehensive home assessment, mobile crisis intervention, home and

4 community-based crisis stabilization, intensive home and community-based behavioral and

5 therapeutic services for children and their families, training on independent living, social and

6 communication skills in a natural environment, personal care services, and respite, among other

7 services or supports.

8

58. Under its capitated mental health waiver, DSHS contracts directly with

9 independent RSNs (currently totaling 13) to administer mental health services in their

10 communities. RCW 7l.24.035(2); WAC 388-865-0200. In turn, each of the RSNs subcontract

11 with various licensed community mental health agencies and/or health care service providers to

12 provide mental health services to eligible recipients within each region.

13

59. Secretary Dreyfus's responsibilities with respect to the RSNs include, but are not

14 limited to: 1) developing and adopting rules establishing state minimum standards for the

15 delivery of mental health services by licensed services providers and RSNs; 2) establishing a

16 standard contract or contracts for RSNs; 3) entering into contracts with RSNs; 4) assuring that

17 the special needs of children and low-income persons are met; and 5) denying all or part of the

18 funding allocations to RSNs based upon formal findings of noncompliance with the terms of the

19 RSNs. RCW 7l.24.035.

20

60. The RSNs' obligations include: 1) contracting as needed with licensed service

21 providers, or in the absence of a licensed service provider entity, becoming a licensed service

22 provider entity for the purpose of providing services not available from licensed service

23 providers; 2) monitoring and perfOlming biennial fiscal audits of licensed service providers who

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 17

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 18 of 63

1 have contracted with the regional support network to provide services; and 3) assuring that the

2 special needs of children and low-income persons are met. RCW 71.24.045.

3

61. DSHS has been aware since at least 2002 that its RSN system was failing to

4 adequately meet the mental health needs of Washington's Medicaid children. See JLARC 2002

5 Children's Mental Health Study Report 02-5, p. 9 ("This study finds that Washington has not

... ! met the Legislature's intent to establish a coordinated, efficient and effective system of public

7 mental health care for children"). Yet, the State has taken no action to correct this failing.

8 Indeed, as recently as April 2009, another report prepared for DSHS described the RSN system

9 as "a system that has high levels of regional variation, limited access to care, a lack of

10 standardized care management and unclear roles and authority between state agencies, the RSNs

11 and some of the provider systems." See Improving Care: Options for Redesign of Washington 's

12 Mental Health System (April 2009).

13

62. DSHS has similarly known for years that many of Washington's Medicaid

14 children are not receiving the Intensive HC-based Services they need and that these children are

15 underserved by the limited array of mental health services made available to them. Repeatedly,

16 DSHS has received and generated reports confirming and reiterating the State's ongoing failure

17 to provide Intensive HC-based Services, and the resulting harm to Washington's children. For

18 example:

19

a. Capacity and Demand Study for Inpatient Psychiatric Hospital and Community

ii

20

Residential Beds Final Report (November 2004). As early as 2004, DSHS

21

acknowledged that community-based services are essential to prevent harm to

22

children:

23

"The expansion of community based services for children and

adolescents is essential to minimize the need for foster care, residential,

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 18

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 19 of 63

or inpatient services as well as to promote effective integration back into

the community once an individual has left any of these treatment

2

altematives ... Community based services can minimize these disruptions

and the conesponding risks (e.g. trauma from separation) that may occur

3

with inpatient and residential treatment options while also offering

effective outcomes and comparatively lower cost of care."

4

b. Children's Acute and Non-Acute Inpatient Psychiatric and Residential Treatment

5

White Paper (August 2006). This DSHS white paper contained the following

6

stark conclusions:

7

1) "Program shortages and inconsistencies in local community

(RSN) intensive community-based care and diversion

8

resources [to divert children from institutionalization] result

in acute community hospitalizations and for those who do

9

not improve, or frequently decompensate, the need for

Children's Long-Term Inpatient Programs (CLIP);" and

10 2) "The same shortages in community based alternatives that

11

increase the need for CLIP admissions, result in lengthened

stays when there are few or no "step-down", or intermediate

12

care resources for youth and their families to utilize post-

discharge [from a CLIP facility]."

13 c. CLIP System Improvement Workgroup (September 2007). This workgroup paper

14 documented similar observations about the delivery of community mental health

15 services to children:

16 1) "Adequate assessments are not available to quickly access intensive

17 services to prevent long term treatment;"

18 2) There is "[l]imited coordination, policy and agreement among service

19

providers!systems;"

20 3) There is a "[l]ack of effective coordination for pre & post services [for

21 children before and after they are institutionalized];"

22
4) There is "[n]o aftercare in the community including discharge planning

23 by!with allied systems;"

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 19

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 20 of 63

1

5) There are "[p]rogrammatic limitations in meeting each child's needs;" and

2

6) "[The] System[s] needs [are] placed over child and family needs."

3

d. Intensive Children's Mental Health Services Summary Report (Fall 2009). In this

4

repOli DSHS's Mental Health Division identified several significant problems

5

with its delivery of mental health services for children, including:

6

1) "a limited array of intensive community and family-based services for

7

children and youth;"

8

2) "insufficient transitional programs to support successful returns to the

9

community;" and

10

3) "insufficient targeted treatment and security options for special

11

populations such as youth with cO-occulTing developmental disabilities

12

and mental health needs, and highly aggressive youth."

13

To address these issues, a workgroup consisting ofDSHS officials and other

14

stakeholders recommended expanding transition and aftercare services for

15

children being discharged from CLIP facilities and 2417 mobile and in-home

16

crisis services connected to longer-ternl stabilization beds.

17

e. Children's Mental Health Services ~ Synopsis on Gaps and Recommendations

18

related to SSHBl 088 from DSHS Assistant Secretaries and Administrators

19

(2009). Most recently, DSHS issued a document related to SB 1088 to identify

20

gaps in Children's Mental Health services. In the document DSHS acknowledged

21

that the "Frequency, duration, and type of [mental health] treatment modality

22

offered [to Washington's Medicaid children] are inappropriate and/or limited,"

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 20

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 21 of 63

1

and "Wraparound, respite, crisis mobilization, day treatment and integrated dual

2

disorder services are not available especially in rural areas."

3

63. Despite such information and notice, the Defendant has failed to take adequate

4 actions providing or arranging for the Intensive HC-based Services children in Washington need

5 and are not receiving, despite the legal mandate to provide for such services, her knowledge of

6 the deficiencies within DSHS's mental health system for children, her receipt of

7 recommendations for how to improve the system, and the long standing acknowledgment by

8 DSHS that the lack of intensive services results in trauma for children.

9

64. In many areas of Washington, children with mental health needs who are on

10 Medicaid only receive weekly therapy and medication management. Children who cannot safely

11 remain in their own homes with these limited services and without necessary Intensive HC-based

12 Services must tum for help to acute care hospitals such as Fairfax, Children's Hospital, Kitsap

13 Mental Health, and Sacred Heart, where they are placed on locked child and adolescent

14 psychiatric wards.

15

65. Some of the children who cycle in and out of these acute care facilities are

16 eventually placed in one of four Children's Long telm Inpatient Psychiatric ("CLIP") facilities

17 located in Lakewood, Tacoma, Seattle, and Spokane. CLIP services are administered by DSHS.

18 These facilities are often hundreds of miles away from the child's home and family, which

19 causes harm of prolonged separation and creates significant balTiers to providing necessary

20 family therapy, discharge planning, and services to reintegrate children back into their home and

21 communities.

22

66. While the State and the RSNs offer some limited home and community-based

23 services, these services are made available only to a fortunate few and the limited services that

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 21

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 22 of 63

are offered are often subj ect to arbitrary limits and onerous, if not draconian, restrictions. For

2 example:

3

a. The few existing Medicaid funded in-home suppOlis and case management

4

programs have limited slots and have narrow access standards which require that

5

a child's mental health condition meet a celiain level of severity, which is

6

narrower than the "necessary to correct or ameliorate" standard for EPSDT. This

7

results in many children having to deteriorate in order to get the care they need. If

8

a child is able to access these services, the services are often limited by arbitrary

9

caps and restrictions unrelated to the child's needs.

10

b. In some areas of Washington, more intensive services may be available through

11

Washington's foster care system, but in order to access these services parents of

12

Medicaid children must first give up their custodial rights.

13

c. In other regions of the State, children can only access necessary intensive mental

14

health interventions if they have been charged or found guilty of a crime through

15

the local and state juvenile justice system.

16

d. While Washington has implemented a few pilot programs around the state to

17

provide community-based supports, these pilot programs have limited capacity,

18

are not funded with Medicaid, and are not treated as a Medicaid entitlement. The

19

pilot programs reach only a reported 79 children, resulting in a very small

20

percentage of children who are able to access limited services-largely based

21

upon where they happen to live.

22

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 22

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 23 of 63

1

67. Some services, such as community-based therapeutic mentoring and intensive

2 mobile crisis stabilization services, are routinely unavailable to children on Medicaid in much of

3 the state.

4

68. Children served by the mental health system do not get notice of their right under

5 EPSDT to request and receive services necessary to correct or ameliorate their conditions.

6 DSHS's contracts with the RSNs only require that each RSN provide Medicaid recipients under

7 the age of21 with a copy of the "Mental Health Benefits Booklet" published by DSHS. This

8 publication does not adequately inform children and their families that Intensive HC-based

9 Services are available under EPSDT. Consequently, many families are poorly positioned to

10 request services their children need because they do not know that these mental health services

11 are coverable by Medicaid. See DSHS Report, Children's Mental Health Gaps Response)

12 Summary ofFindings Across Data Sources (2007) (identifying lack of information to families as

13 a major barrier to effective access to services).

14

69. Children and their families do not receive prior written notice when the

15 Community Mental Health Agency denies, reduces or terminates Medicaid services, nor do they

16 receive any notice that they have a right to request a hearing to challenge such denials,

17 suspensions, reductions, and terminations of their mental health services.

18

70. The DSHS website states that recipients only receive action notices if their

19 services are denied, suspended, reduced, or terminated when such action is made by the RSN,

20 and not the result of a community mental health agency decision. If a community mental health

21 agency decides to deny, suspend, reduce, or terminate Medicaid services, DSHS has no adequate

22 regulations, policies, or procedures requiring providers to ensure recipients' of their due process

23 rights.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 23

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 24 of 63

1

C. The Plaintiff Children's Experience with Washington's Public Mental Health

System

2

Currently Institutionalized Children

3

T.R. (Ten-Year-Old Boy)

4

71. T.R. is a Medicaid recipient who is not receiving the intensive horne and

5

community-based mental health services he needs to correct or ameliorate his mental health

6

conditions or reduce his behavioral symptoms.

7

72. Since TR.' s single mother died when he was six years old, TR. and his brother

8

have lived with their older sister, R.R., who is TR.'s legal guardian and next friend. R.R., a

9

single mother, also cares for her seven year-old son.

10

73. TR. has had serious behavioral symptoms since his mother's death in 2005. In

11

2008, after his symptoms worsened, TR. was diagnosed with Oppositional Defiant Disorder,

12

Attention Deficient Hyperactivity Disorder, and Mood Disorder Not Otherwise Specified. In the

13

last two years, TR. has been admitted into the psychiatric unit of the community hospital on four

14

occasions. Due to his inability to access necessary services, T.R. is currently institutionalized at

15

the state psychiatric hospital for children on the grounds of Western State Hospital.

16

74. TR. 's symptoms have not improved, and his hospital treatment team has

17

indicated that the institutionalized setting in which he is receiving services is hannful to him.

18

The team recommended that TR. be discharged to his sister's horne with intensive horne and

19

community-based mental health services that were not available to him prior to his admission to

20

the state hospital.

21

75. Prior to his most recent institutionalization, TR. 's Care Plan included one-to-one

22

in-horne "case aid" services and mobile crisis services.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 24

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 25 of 63

1

76. When T.R.' s symptoms escalated, his sister called the crisis team for help, but on

2 multiple occasions there either was no response or the crisis team refused to come to T.R.' s

3 home and instructed his sister to call the police. The crisis services were only approved for 30

4 days at a time, so T.R. and his sister had no assurances that crisis services would be available to

5 T.R. when the next crisis arose.

()

77. By November 2008, after T.R. was hospitalized again in an acute psychiatric unit.

7 His community treatment team recommended that his one-to-one in-home "case aid" services be

8 increased to over 40 hours per week. His records documented that the "case aides" were

9 "helpful" to address T.R. 's symptoms and in "keeping his life consistent." However, by the end

10 of December 2008, T.R. had met the funding cap the RSN had set for in-home "case aid"

11 services. Although T.R. continued to need these services to help manage his symptoms, the

12 "case aides" were terminated.

13

78. T.R. 's therapist requested an exception to the RSN's policy for him to continue

14 receiving case aids or to allow a brief stay at a residential facility, but her request was denied.

15 T.R. later began receiving some additional case aid services but at a significantly reduced level

16 of only 20% of the hours he had been receiving.

17

79. With these inadequate services, T.R. 's mental health continued to decline and

18 T.R. was admitted to the state psychiatric hospital for children in February 2009. While initially

19 successful after his admission, T.R. 's condition soon quickly deteriorated. In October 2009,

20 T.R. 's hospital treatment team informed his sister that they believed the hospital was not the

21 appropriate environment to treat his mental health needs. Specifically, the team identified the

22 rotation of clinical residents that occurs in a teaching facility and the turn over of patients at the

23 hospital as a source of continual trauma that was detrimental to treating T.R. His treatment team

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 25

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 26 of 63

concluded that these inherent aspects of the state hospital program were harming T.R and

2 undermining his recovery. T.R.'s treatment team has recommended discharge back to his sister's

3 home based on their conclusion that a stable family home is clinically more appropriate.

4

80. To manage T.R.'s symptoms in the community, where T.R. must receive

5 treatment in order to achieve greater emotional stability and move toward a productive future,

6 T.R. will need more intensive and long-telm mental health services and supports in his home and

7 community than he had before his hospital admission.

8

81. IfT.R were provided with adequate and appropriate Intensive HC-based

9 Services, he would improve significantly and be able to live at home with his family rather than

10 at the children's psychiatric hospital on the grounds of Western State Hospital. Without these

11 services, T.R has little hope of avoiding worsening symptoms, harm to himself or others,

12 repeated hospitalizations, continued institutionalization, and separation from his family.

13

82. Prior to T.R.' s recent institutionalization, RR. sought intensive home and

14 community-based services for T.R. through Medicaid and believed that the services provided by

15 the RSN were the maximum allowable under Medicaid. She never received notice of the

16 availability of Intensive HC-based Services under the Medicaid program or T.R.' s right to a fair

17 hearing to dispute the denial, reduction, and termination of services.

18

S.P. (16-Year-Old Girl)

19

83. S.P. is a Medicaid recipient who is not receiving the intensive home and

20 community-based mental health services she needs to correct or ameliorate her mental health

21 conditions or reduce her behavioral symptoms.

22

84. S.P.'s current diagnoses include Schizophrenia, paranoid type, and Attention

23 Deficit Hyperactivity Disorder. As a result of her conditions, she hears voices, has visual

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 26

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 27 of 63

1 hallucinations, experiences paranoid delusions that her family members want to harm her, is

2 irritable, and displays aggression, depression, and low self-esteem. She is currently

3 institutionalized and has been denied the Intensive HC-based Services that she needs to COlTect

4 or ameliorate her mental health conditions.

5

85. S.P. has been exhibiting mental health symptoms since she was in kindergmien.

6 She struggled in school, had multiple truancies, and was ultimately unable to cope in a school

7 environment for more than two hours a day.

8

86. In 2005, S.P. participated in a five week facility-based day treatment program at a

9 local community hospital in Spokane, Washington. Even after completing this program, S.P.

10 was subsequently involuntarily hospitalized seven times in the psychiatric unit of the local

11 hospital, and was twice involuntarily committed for long term treatment at a CLIP facility

12 approximately 300 miles away from her home. At the end of each stay, she was discharged to

13 the same inadequate array of weekly therapy, medication management, and case management

14 services that had failed her in the past. During this time, S.P. was not offered or provided any

15 additional Intensive HC-based Services to help cope with, control, or reduce her symptoms.

16

87. The second time S.P. was discharged from the Tacoma CLIP facility in June

17 2009, her treating mental health professional recommended specific home and community-based

18 mental health services and identified as "essential services" the provision of one-to-one home-

19 based, independent living and social skills training, enhanced supervision support during early

20 evening unstructured time, and community-based training in the development of coping skills.

21

88. After discharge, S.P. requested these services but was told they were not

22 available. S.P.'s services were again limited to the weekly office-based therapy and medication

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 27

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 28 of 63

1 management by a psychiatric nurse that she had received after every prior unsuccessful

2 discharge.

3

89. S.P.'s condition again deteriorated over the summer of2009. She began to

4 experience command hallucinations, was afraid to accept medication from her mother, and began

5 threatening others in response to her hallucinations. As a result, she was again involuntarily

6 committed to the local community hospital's psychiatric unit.

7

90. When S.P. was discharged from the hospital on September 11,2009, she was

8 approved for one of two slots in a new program in Spokane, Washington, that promised her more

9 home services. However, the services available through this program were also inadequate to

10 satisfy the recommendations of her treating mental health professional. For example, S.P. could

11 not access a sufficient number of service hours or services during the times when her mother was

12 at work.

13

91. Although S.P.'s treating mental health professional was concerned that another

14 institutionalization would not be in her best interest, she ultimately recommended that S.P. return

15 to a CLIP placement due to the lack of sufficient Intensive HC-based Services. In October 2009,

16 S.P. was involuntarily ordered to the state children's psychiatric hospital on the grounds of

17 Western State Hospital, hundreds of miles from her home and family.

18

92. If S.P. were provided with adequate and appropriate EPSDT mental health

19 services, she would improve significantly and be able to live at home with her family. In order

20 to ameliorate S.P.'s condition and avoid further institutionalization, S.P. needs and has requested

21 the Intensive HC-based services recommended by her treating mental health provider. These

22 essential services have not been made available to her, and as a result, she has experienced an

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 28

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 29 of 63

increase in her symptoms, has harmed herself and others, and has become socially isolated by

2 recurring or prolonged institutionalization.

3

93. S.P. and her mother never received notice of the availability ofIntensive HC-

4 based Services through the Medicaid program, or a notice about her right to request a hearing to

5 dispute denials, reductions, or terminations of her services.

6

C.A. (15-Year-Old Girl)

7

94. c.A. is a Medicaid recipient who is not receiving the intensive home and

8 community-based mental health services she needs to COlTect or ameliorate her mental health

9 conditions or reduce her behavioral symptoms.

10

95. Prior to entering adolescence, C.A. demonstrated no mental health needs and was

11 an honor roll student. However, by the time she was 14 years old, she had been hospitalized

12 three times due to depression and suicide attempts, had begun cutting herself, and had jumped

13 out of a second story window.

14

96. c.A. 's mental health diagnosis is Major Depressive Disorder.

15

97. C.A. 's first hospitalization was for thirteen days in December 2007. Upon

16 discharge, C.A. received recommendations for medication management and individual and

17 family therapy.

18

98. By February 2008, C.A. was again hospitalized. She was discharged one week

19 later with recommendations that she continue outpatient therapy, specifically cognitive

20 behavioral techniques for managing depression and anxiety, interpersonal therapy and distress

21 tolerance. Additional recommended services included parent support, coaching and education

22 for c.A.'s mother to assist her in effectively dealing with c.A.' s emotional instability and

23 chronic suicidal ideation in the home setting.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 29

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 30 of 63

99. Despite her two hospitalizations within ten weeks, no comprehensive home-based

2 assessment was completed to determine what services C.A. needed.

3

100. Upon discharge from the hospital in February 2008, c.A. did not receive

4 Intensive HC-based Services, nor was she assessed for such services. Instead, C.A. 's mother

c; was referred to the abuse and neglect system to access in-home services that should have been

;) provided for under Medicaid, and to apply for the Children's Hospital Alternative Program

7 ("CHAP"). C.A. was not able to access these services for several months.

8

101. Without the Intensive HC-based Services she needed, c.A. continued to

9 experience serious depression and hopelessness after discharge. Two months later, in April

10 2008, C.A. jumped from a second story window and was re-admitted to the psychiatric hospital.

11 Upon discharge, C.A. again continued to receive only limited mental health services, specifically

12 medication management and therapy.

13

102. On September 25, 2008, C.A. went to the emergency room at the local

Ii

14 community hospital complaining of seeing shadows and fairies, and hearing footsteps. She was

15 not admitted and did not receive Intensive HC- based Services.

16

103. In November 2008, C.A. was enrolled in the CHAP. This program was supposed

17 to provide Intensive HC-based Services but the services she actually received were inadequate.

18 The services C.A. received in the CHAP program were: a) individual therapy at the office of the

19 community mental health agency - over an hour's drive from her home; b) weekly in-office

20 family therapy that was attended by c.A.'s mother while C.A. was in her individual session; and,

21 c) medication management to stabilize her mood. C.A. also attended a few "therapeutic

22 photography" sessions with a technician at the community mental health agency and on a few

23 occasions, had a "case aid" take her on a short visit to a local coffee shop.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 30

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 31 of 63

1

104. C.A. was offered out-of-home respite through therapeutic foster care as an

2 intermediary step to prevent acute hospitalization. On the one occasion she attempted to use this

3 service, she became distressed and had to return home in the middle of the night.

4

105. Notably, the reported goal of c.A. 's CHAP services was to "work with [her

5 mother] in maintaining C.A. in her home until a CLIP comes through." The service was not

6 intended as an alternative to a CLIP inpatient treatment or to avoid institutionalization.

7

106. C.A. entered a CLIP facility in May 2009. She has worked hard with her

8 treatment team and met benchmarks set for her. She is described as a "star" in group therapy and

9 has maintained high levels in the facility's reward system.

10

107. C.A. 's mother travels the 63 miles each way from their home in Island County to

11 the CLIP facility twice a week to attend family therapy sessions and visit her child. Facility

12 based family therapy sessions have had limited effectiveness.

13

108. C.A. is a very bright child and is capable of advanced academic work. However,

14 opportunities for her to receive accelerated educational services at the CLIP have been limited.

15 C.A. sees her intelligence as a strength she can build on, and experiences hopelessness when she

16 cannot do challenging academic work.

17

109. c.A.'s mother is deeply committed to support her child's recovery and bringing

18 her home. However, the local mental health agency did not provide sufficient services to C.A.

19 prior to her admission and C.A. must have Intensive HC-based Services to be safe at home.

20

110. C.A. never received notice of the availability ofIntensive HC-based Services

21 through the Medicaid program, or a notice about her right to request a hearing to dispute denials,

22 reductions, or terminations of her services.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 31

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 32 of 63

Children Discharged from Institutions Not Receiving Adequate Services

2

T.F. (15-Year-Old Girl)

3

111. T.F. is a Medicaid recipient who is not receiving the intensive home or

4 community-based mental health services she needs to correct or ameliorate her mental health

5 conditions and reduce her behavioral symptoms.

6

112. T.F. has been diagnosed with Bipolar Disorder, Oppositional Defiant Disorder,

7 and Post Traumatic Stress Disorder. As a result of her psychiatric disorders and history of sexual

8 abuse by a non-parent, she exhibits severe symptoms of anxiety, including self-harming

9 behaviors.

10

113. When T.F. was ten years old, she had two suicide attempts that resulted in

11 inpatient treatment at her local hospital's psychiatric unit. Based on these incidents, DSHS's

12 Division of Child and Family Services CDCFS) took custody of her. Both T.F. and her father

13 want her to return to her father's home, but DCFS continues to have custody because T.F. needs

14 Intensive HC-based Services that have not been made available to her outside of the foster care

15 system.

16

114. In October 2008, T.F. was briefly returned to her father after receiving a year of

17 inpatient psychiatric treatment at the CLIP facility in Spokane. At discharge, the treatment team

18 at the CLIP recommended that T.F. receive individual counseling, individual and family sessions

19 to transition home, group therapy, and structured recreational activities to model appropriate

20 behaviors.

21

115. T.F.'s discharge plan included medication management, individual counseling,

22 twelve hours per week of therapeutic aids and transitional counseling services from the CLIP

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 32

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 33 of 63

1 facility. TF. did not actually receive these services due to inflexible service hours and a lack of

2 available and qualified therapeutic aid providers.

3

116. No group therapy or structured recreational activities was offered. TF. also has

4 not been provided mobile crisis services or home based crisis stabilization services to respond

5 when her symptoms escalated. During this period, T.F. was hospitalized, arrested, and expelled

6 from school for such things as threatening to overdose on her prescription medications and

7 getting into altercations with other students.

8

117. Faced with a lack of insufficient services, TF. was institutionalized again at the

9 CLIP facility in January 2009. When TF. was ready for discharge from the CLIP facility in May

10 2009, she asked to return home to her father. However, she was advised that the structured

11 supports TF.'s treatment team recommended for her were only available in a congregate care

12 facility. DSHS placed T.F. in a treatment facility in Coeur D' Alene, Idaho and told her that she

13 had to complete the program in order to return home to her father.

14

118. While she was in Coeur D' Alene, the facility relied on law enforcement to

15 address her mental health crises: T.F. was arrested eight times and spent the vast majority of the

16 time between May and October 2009 in the local Juvenile Detention Center. As a result of her

17 repeated arrests and incarcerations, the institution did not implement TF.' s treatment plan or

18 provide TF. with the family and individual therapy she needs. Ultimately, the facility

19 discontinued services, leaving her in the custody ofIdaho' s juvenile criminal system.

20

119. TF. requested to go home with her father and for services to be delivered to her in

21 her father's home, but DSHS did not make any arrangements for her to receive services at home.

22 TF. needs to be in a stable setting long-term with Intensive HC-based Services.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 33

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 34 of 63

1

120. T.F.'s DCFS case manager reports that he is unable to find a therapeutic group

2 home or foster home in the Spokane area. T.F. has stated that being away from her family is a

3 primary source of stress and anxiety for her. Nonetheless, in November 2009, T.F. was moved

4 to the closest community placement option for her in Washington - a foster care placement in

5 Kennewick, 155 miles away from her family.

6

121. T.F. 's father is committed to visitations and family therapy, knowing that these

7 will help T.F. recover, but fears that the great distance between his home and the foster care

8 home will result in less frequent contact with her. T.F.'s father has limited resources to pay for

9 regular travel, has an inflexible schedule on his job, and is concerned about the impact of the

10 upcoming winter on his ability to travel such a distance.

11

122. T.F. is currently being harmed by her separation from her family and the lack of

12 services. Without the availability ofIntensive HC-based Services in her own community, T.F. is

13 at risk of further harm from the separation of her family, institutionalization, incarceration, and

14 an increase in her behavioral symptoms.

15

123. T.F. never received notice of the availability of Intensive HC-based Services

16 through the Medicaid program, or a notice about her right to request a hearing to dispute denials,

17 reductions, or terminations of her services.

18

P.S. (17-Year-Old Boy)

19

124. P.S. is a Medicaid recipient who is not receiving the intensive home and

20 community-based mental health services he needs to conect or ameliorate his mental health

21 conditions or reduce his behavioral symptoms.

22

125. P.S. has been diagnosed with severe Post Traumatic Stress Disorder (Primary),

23 Bipolar Disorder Not Otherwise Specified, Attention Deficit/Hyperactivity Disorder Not

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 34

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 35 of 63

1 Otherwise Specified, and Fetal Alcohol Syndrome. P.S. was abused during the first eight years

2 of his life. As a result of his mental health conditions and his traumatic childhood, P.S.

3 experiences traumatic flashbacks, sleep problems, headaches, and problems concentrating. P.S.

4 also exhibits severe symptoms of suicidal attempts, and self harming behaviors that include

5 cutting himself, burning himself, and banging his head.

6

126. P.S. came to live with his grandmother at the age of eight. During the years he

7 lived with her in Yakima County, the only community mental health services he could access

8 were in-office counseling and medication management. With these limited services, his

9 symptoms did not improve. He attempted suicide, experienced a series of school expulsions,

10 alTests, and involuntary hospitalizations.

11

127. Beginning with his involuntary commitment in October 2007, P.S. was moved

12 between numerous out-of-home placements, including the CLIP facility in Spokane, crisis

13 response centers in Yakima and Kennewick, and the psychiatric unit of the community hospital.

14 In November 2008, P.S. was discharged from the CLIP facility with the following

15 recommendations: placement in a therapeutic foster home with respite care; specialized school

16 setting; behavioral health specialist to provide one-to-one attention; monitoring during

17 unstructured times; and development of a behavioral plan.

18

128. Upon discharge, P.S.'s Yakima treatment team had identified no placement

19 options. P.S. did not receive the services recommended by the CLIP facility, and instead was

20 discharged to a crisis bed in Yakima without any one-to-one support. P.S. ran away the first

21 weekend and was missing for several days.

22

129. In December 2008, the Casey Family Foundation agreed to fund a six-month

23 treatment program in Marylhurst, Oregon. P.S. was discharged from the facility in late May

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 35

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 36 of 63

1 2009 with the following recommendations: highly structured group home setting; independent

2 living skills training, mental health therapy, crisis suppOli and medication management;

3 discharge placement familiar and sensitive to the effects and reactions to trauma.

4

130. Upon return to Washington, P.S. did not receive the services that were

5 recommended for him by his treating mental health professionals.

131. From May until August 2009, P.S. again rotated between temporary placements

7 while his Yakima based treatment team struggled to identify a placement that would accept him.

8 During this period, P.S. was not provided with a comprehensive home assessment or mental

9 health therapy, and received only sporadic medication management.

10

132. Fearing for P.S.'s safety and hoping that there would be more mental health

11 services in King County, P.S.'s grandmother sent him to live with his biological mother in

12 Seattle in August 2009. P.S. requested mental health treatment in King County, but was initially

13 denied because his Medicaid coupon was from another county. After obtaining a King County

14 medical coupon the following month, P.S. completed the intake process at a community mental

15 health agency in King County, Washington on September 23,2009.

16

133. P.S. made multiple requests for an appointment with a psychiatrist to check his

17 medication levels and physical tolerance of the six different medications that had been prescribed

18 by the Oregon facility. However, P.S. has yet to meet with a psychiatrist. P.S.'s community

19 mental health provider directed P.S. to see his family doctor for monitoring of his psychotropic

20 medications during the delay.

21

134. The only services P.S. has been able to access at his community mental health

22 agency in King County are weekly counseling in the therapist's office

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 36

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 37 of 63

135. P.S. has requested other necessary services, including mobile crisis stabilization

2 services, horne behavioral assessments and aids, therapeutic mentoring, but none of these

3 services have been made available to him. P.S. was informed that he would be put on the

4 waiting list for "wrap around" case management services and parent suppOli.

5

136. P.S. has experienced five separate mental health crisis events since corning to

6 Seattle in August, including one event of suicidal ideation and four physical altercations with the

7 youth in his community. His counselor has been notified of these incidents and has

8 acknowledged that P.S. should not be left unsupervised. However, the services P.S. needs and

9 has requested have not been provided for or ananged by the Defendant.

10

137. P.S. is experiencing harm due to the lack of services. For example, after a recent

11 mental health crisis, P.S. 's mother was informed by the apmiment complex in which they live

12 that they were going to be evicted because ofP.S.'s actions. P.S. and his family had to scramble

13 to find a new horne. During the turmoil, P.S. received no mental health therapy services from his

14 community mental health provider.

15

138. Without necessary Intensive HC-based Supports, P.S. is experiencing increased

16 symptoms. He is socially isolated from his peers, has experienced physical injuries, and has

17 been suspended from school. IfP.S.'s needs continue to go unrnet, he will continue to be at risk

18 of experiencing an increase in his symptoms, additional physical injuries, incarceration, and

19 additional long-term institutionalizations.

20

139. P.S. never received notice of the availability ofIntensive HC-based mental health

21 services through the Medicaid program, or a notice about his right to request a hearing to dispute

22 denials, reductions, or terminations of his services.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 37

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 38 of 63

...

T.V. (ll-Year-Old Boy)

2

140. T.V. is a Medicaid recipient who is not receiving the intensive home or

3 community-based mental health services he needs to correct or ameliorate his mental health

4 conditions, or to reduce his behavioral symptoms.

5

141. TV. has been diagnosed with Mood Disorder, Not Otherwise Specified; Post

6 Traumatic Stress Disorder, chronic; Oppositional Defiant Disorder, chronic; and Attention

7 Deficit Hyperactivity Disorder, inattentive type. As a result of his conditions and traumatic

8 history, TV. displays severe symptoms of aggression, sudden outbursts of rage, elopement, and

9 self-harming behaviors. TV. continues to have difficulty concentrating and socializing

10 appropriately with peers.

11

142. Before his second birthday, T.V. was removed from his biological parent's home

12 due to severe neglect, and bounced between five different placements until he was finally placed

13 with C.D. as a foster child. When TV. was seven-years-old, after he had bonded with C.D. and

14 her family, but before C.D. had established third patiy custody, he was transferred to a different

15 foster home for fifteen months where he was the victim of sexual assault.

16

143. Following TV.'s return to C.D.'s custody at age eight, TV. began to exhibit

17 severe symptoms of a serious mental health condition. T.V. was hospitalized at the local

18 community hospital's psychiatric unit five times over the next eighteen months, and received day

19 treatment through the hospital's outpatient program and at a community mental health provider.

20 Without adequate mobile crisis services, he had incidents in which he was arrested and detained.

21 Ultimately, T.V. was institutionalized for over a year at the state psychiatric hospital for children

22 on the grounds of Western State Hospital in Lakewood, WA, 300 miles away from his home and

23 family.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 38

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 39 of 63

1

144. When TV. was discharged from the state children's hospital in August 2009, the

2 hospital's treatment team recommended "significant support as an outpatient in the school and

3 home setting" as well as individual and family therapy in order to continue his progress and

4 "prevent further hospitalizations."

5

145. Upon discharge, T.V. was enrolled at a local community mental health provider

6 so that he could receive case management services, and was offered weekly office-based therapy,

7 an anger management group, and monthly medication management check-ups. C.D. repeatedly

8 requested "step-down" transitional services, including community-based therapeutic mentoring

9 and in-home behavioral aids to help TV. practice the de-escalation skills he learned at the state

10 hospital in a natural environment.

11

146. T.V.'s current case manager informed C.D. that she agreed the services C.D.

12 requested would clinically benefit TV., but advised that these services are only made available

13 to children with more severe symptoms. As a result, TV. could not access the services he

14 needed to succeed in his community, to prevent his condition from worsening again, or to reduce

15 his symptoms of Post Traumatic Stress Disorder.

16

147. Denied the Intensive HC-based Services he needs, TV.'s symptoms have

17 worsened over the last few months to the point that he recently threatened to jump out of a

18 window to commit suicide. Prior to the onset of these symptoms, the services that could have

19 prevented his condition from worsening were unavailable to him. His case manager has now

20 referred T.V. to a program that provides in-home services, but he has not yet been approved and

21 has been told that there is a waiting list.

22

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 39

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 40 of 63

1

148. If T.V. does not receive services to prevent his condition from worsening again,

2 he is at risk of harm from himself and at risk of being re-hospitalized and separated from his

3 family again.

4

149. T.V. never received notice of the availability ofIntensive He-based Services

5 through the Medicaid program, or a notice about his right to request a hearing to dispute denials,

6 reductions, or telminations of his services.

7

G.B. (13-Year-Old Girl)

8

150. G.B. is a Medicaid recipient who is not receiving the intensive home and

9 community-based mental health services she needs to conect or ameliorate her mental health

10 conditions or reduce her behavioral symptoms.

11

151. G.B. was removed from her birth mother when she was 17 months old due to

12 severe neglect. G.B. was placed in multiple foster homes before coming to live with her

13 adoptive family at age 24 months. G.B. has exhibited troubling behavior from the onset, such as

14 destructive behavior, refusing to be held or touched and an inability to self-soothe or be

15 comforted.

16

152. G.B. has been diagnosed with Oppositional Defiant Disorder, Mood Disorder Not

17 Otherwise Specified, Reactive Attachment Disorder, disinhibited type, Attention Deficit

18 Hyperactivity Disorder, combined type, and Post Traumatic Stress Disorder.

19

153. By age 11, G.B. had received inpatient mental health treatment on five different

20 occasions. Soon thereafter, G.B. was admitted to the state psychiatric hospital for children on

21 the grounds of Western State Hospital, and remained there for almost two years. G.B.' s

22 prognosis at discharge in late June 2009 was "guarded."

23

CLASS ACTION COMPLAINT FOR INmNCTIVE AND DECLARATORY RELIEF - 40

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 41 of 63

1

154. Upon discharge from the state hospital, G.B.'s treatment team made a series of

2 discharge recommendations that were to fonn the core of G.B.' s community treatment;

3 specifically:

4

a. Dialectical Behavioral Therapy (a specific form of individual therapy);

5

b. Line-of-sight supervision, particularly in the home to ensure the safety of younger

6

siblings;

7

c. Community crisis plan, with out of home emergency respite if needed;

8

d. A paraprofessional to work with the family on skill building and behavioral

9

interventions;

10

e. Ongoing family therapy with a skilled professional;

11

f. Community groups and activities for G.B. to develop social skills in less stmctured

12

settings, while supervised by adults; and

13

g. Ongoing group therapy.

14

155. Upon discharge, G.B. planned to receive mental health services through the RSN

15 in King County. G.B. was eligible to access some intensive services from multiple providers for

16 crisis response services, respite services, case aides, and individual therapy. However, the RSN

17 did not provide her with Dialectic Behavioral Therapy, group therapy or support for community

18 group activities.

19

156. G.B. came home on June 25, 2009 and was stable in her home with the intensive

20 services available. From July through October, G.B. had access to approximately 20 hours of

21 one-to-one therapeutic "case aid" services per week, and her therapist came to her home for

22 weekly sessions. While there were a few incidents of G.B. engaging in problematic behavior,

23 such as opening car doors while the car was moving, her parents maintained line-of-sight

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 41

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 42 of 63

supervision and were assisted in this by the in-home one-to-one case aids. G.B. was able to

2 access some out-of-home respite.

3

157. On October 28,2009, G.B.'s mother received a call from the RSN contractor who

4 provided GB's case aid services. She was notified that beginning November 1, 2009, the case aid

5 services would be terminated. G.B. and her parents received no pre-termination written notice

(; from the RSN or other providers, and they were not informed of the process to dispute the

7 termination through a fair hearing.

8

158. On October 29,2009, G.B. 's treating therapist made specific recommendations

9 for needed services for G.B. to the RSN. These services included individual therapy, crisis

10 services, continued "line-of-sight" supervision and related one-to-one therapeutic services to

11 address G.B.'s tendency to target her younger siblings, family therapy, social group therapy, and

12 modification of her treatment plan to receive more services in the home.

13

159. "Case aid" and other services were terminated as of November 4,2009. G.B.

14 cUlTently receives individual therapy sessions for 50 minutes once per week and no other

15 serVIces.

16

160. The summary removal of these necessary EPSDT services, without notice or

17 opportunity to appeal in time to avoid the disruption, places G.B. at risk of deterioration, and

18 reinstitutionalization. Over the past few weeks, G.B. 's oppositional behavior and threats of self-

19 harm have increased, to the point where her mother recently notified G.B. 's therapist that G.B.

20 may soon need to return to a CLIP facility.

21

161. Without Intensive HC-based Services, G.B. has little hope of receiving the

22 necessary treatment she needs to avoid suffering an increase in symptoms, harm to herself or

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 42

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 43 of 63

1 others, repeated hospitalizations, long-term institutionalization, incarceration, and separation

2 from her family.

3

162. G.B. never received notice of her right to request a hearing to dispute denials,

4 reductions, or terminations of her services.

5

Children Never Institutionalized

6

E.H. (15-Year-Old Boy)

7

163. E.H. is a Medicaid recipient who is not receiving the intensive home and

8 community-based services he needs to correct or ameliorate his mental health conditions and

9 reduce his behavioral symptoms.

10

164. E.H. has been diagnosed with Bipolar Disorder, Attention Deficit Disorder,

11 Oppositional Defiant Disorder, and has violent behavioral symptoms. E.H.' s mood cycles

12 between manic phases characterized by racing and grandiose thoughts and phases in which he is

13 depressed and explicitly atiiculates a wish to die. He makes threats and attempts to commit

14 suicide, and has injured himself on numerous occasions by hitting and cutting himself.

15

165. E.H.' s symptoms have been documented since he was a toddler. By the time he

16 was four-years-old, E.H. was taking medications to manage his behaviors, had therapeutic aid

17 services, and was in counseling.

18

166. Between 2004 and 2006, E.H.'s condition began to worsen. In March 2005,

19 E.H. 's symptoms escalated to the point his mother called the police, and he was arrested and

20 detained in juvenile detention. His provider began recommending out-of-home placements, but

21 his mother chose not to give up custody.

22

167. In February 2007, E.H. was hospitalized at an acute psychiatric hospital in

23 Spokane, Washington after threatening to kill his parents and to harm himself. He was

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 43

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 44 of 63

1 discharged with a plan to receive counseling from the community mental health provider in

2 Whitman County.

3

168. In November 2008 the acute psychiatric hospital in Spokane admitted E.H. for

4 inpatient treatment. The hospital did not have a pediatric bed for him and transferred him to an

5 acute psychiatric hospital in Coeur D' Alene, Idaho. When he was discharged on December 5,

G 2008, his plan specified that he was to receive "comprehensive wraparound services" from his

7 mental health provider in Whitman County. This plan included necessary services that he did

8 not receive. Specifically, he never received "one-on-one individual social skills, education, and

9 coaching," or assistance from the community mental health provider in becoming integrated into

10 "community based social activities".

11

169. Until he was most recently hospitalized, E.H. was receiving weekly therapy,

12 medication management from a psychiatrist two hours away, and respite services. E.H. was not

13 receiving any in-home behavioral services, and his crisis services were generally limited to

14 telephone consultations and emergency room visits, despite his persistent self-harming and

15 aggressive behaviors.

16

170. In October 2009, E.H. was re-admitted to the acute psychiatric hospital in Coeur

17 D'Alene, Idaho after he attempted to commit suicide. Fifteen days later, he was discharged with

18 recommendations to follow up with the local community mental health provider.

19

171. In order to be successfully discharged home, he needs Intensive HC-based

20 Services. If E.H. does not receive these services, he is at risk of long term institutionalization or

21 suffering significant injuries or death at his own hands.

22

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 44

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 45 of 63

1

172. E.B. never received notice of the availability of intensive home and community-

2 based mental health services through the Medicaid program, or a notice about his right to request

3 a hearing to dispute denials, reductions, or terminations of his services.

4

E.D. (IO-Year-Old Boy)

5

173. E.D. is a Medicaid recipient who is not receiving the intensive home and

6 community-based mental health services he needs to COlTect or ameliorate his mental health

7 conditions or reduce his behavioral symptoms.

8

174. E.D. has been diagnosed with General Anxiety Disorder, Attention Deficit

9 Disorder, and Oppositional Defiant Disorder, and a possibility of Bipolar Disorder.

10

175. Beginning when E.D. was four-years-old, he experienced multiple removals from

11 his mother's custody and experienced incidents of sexual abuse by a non-relative. E.D. 's mental

12 health conditions and traumatic history of abuse and separations from his family have resulted in

13 E.D. experiencing significant symptoms of aggression, sudden outbursts of anger, and self-

14 harming behaviors. His symptoms are on a rapid "cycle" in which they tend to dramatically

15 worsen and get better about every five days.

16

176. In June 2009, E.D. received an outpatient psychiatric evaluation at his local

17 community hospital's psychiatric unit. These recommendations included further evaluation for

18 autism spectrum disorder, "appropriate crisis interventions" and "intensive home interventions,

19 as well as wraparound services and case management."

20

177. In August 2009, E.D. 's mother learned that E.D. had still not been placed on the

21 waiting list for an autism assessment when she has requested it back in December 2008, and so

22 she made another request. E.D. did not receive this assessment until November 19,2009 and has

23 yet to receive results.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 45

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

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1

178. In August 2009, E.D. 's mother attempted to access services during an episode

2 when E.D. 's behavioral symptoms escalated to the point where she had serious safety concerns.

3 She was told by the community mental health agency to take him to the emergency room or to

4 call "9-1-1" if she needed help getting him there. At the hospital, E.D.' s mother requested

5 inpatient treatment, but was turned away without any other immediate services.

6

179. In August 2009, the local community mental health agency in King County

7 conducted an intake assessment. E.D.' s mother reported that E.D. has symptoms of anger and

8 aggression that were so severe that he assaulted and threatened to kill her and his brother and

9 destroy their propeIiy. The assessment resulted in the mental health professional requesting a

10 benefit of"3Al Tier" for E.D., which is the second to highest level of outpatient services

11 available. E.D.'s mother never received any written notice that he had been assessed at this level

12 of care, what services were included in this level of care, what other services were available from

13 the mental health agency or Medicaid, or how the agency determines who can access these

14 serVIces.

15

180. Currently, E.D. only receives weekly office-based therapy, and monthly

16 medication management appointments at the community mental health agency. He is not

17 receiving and has not been offered any Intensive HC-based Services including the "appropriate

18 crisis interventions, intensive home interventions as well as wrap around services and case

19 management" recommended by the community hospital in June 2009.

20

181. E.D.'s mother requested Intensive HC-based Services from her Medicaid

21 provider, but she was told the mobile crisis intervention, wraparound, and behavioral testing she

22 requested are not available. She did not receive any written notice of a denial. The provider told

23 E.D.'s mother he would be referred to their more intensive program for additional services, but

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 46

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 47 of 63

1 she has not received any further information about whether the referral was made, what services

2 could be available to E.D. in that program, or whether E.D. has been approved.

3

182. Without necessary mental health services, E.D.'s symptoms have not improved.

4 As a result of his behavioral symptoms, he has significant difficulties in school, has been

5 suspended on multiple occasions, and is at risk of expulsion. IfE.D. does not receive the

6 treatment he needs, E.D. will continue to be at risk of being removed from his home due to his

7 undelireated impulsive and aggressive behaviors that place him at significant risk of getting

8 arrested, hospitalized, or institutionalized in a long term facility.

9

183. E.D. has never received notice of the availability ofIntensive HC-based Services

10 through the Medicaid program, or a notice about his right to request a hearing to dispute denials,

11 reductions, or terminations of his services.

12

L.F.S. (9-Year-Old Boy)

13

184. L.F.S. is a Medicaid recipient who is not receiving the intensive home and

14 community-based mental health services he needs to conect or ameliorate his mental health

15 conditions or reduce his behavioral symptoms.

16

185. L.F.S. has been diagnosed with Attention Deficit/Hyperactivity Disorder,

17 Combined Type, Disruptive Behavior Disorder, Not Otherwise Specified, Mood Disorder, Not

18 Otherwise Specified, Mild Mental Retardation, and possible diagnoses of Bipolar Disorder,

19 Schizophrenia, and Psychosis Not Otherwise Specified. His symptoms include being assaultive,

20 engaging in dangerous behaviors, resisting personal care activities, and significant problems with

21 his sleep.

22

186. When L.F.S. was four-years-old, soon after he and his family fled to the United

23 States as political refugees from Cuba, he received a psychiatric assessment from his community

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 47

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 48 of 63

1 mental health agency which identified his behavioral symptoms as symptoms of a serious mental

2 health condition. At that time, L.F.S.'s mother reported that L.F.S. had a history of being

3 extremely volatile, aggressive, impulsive, and over reactive, and had recently taken a knife and

4 threatened to kill her and himself.

5

187. L.F.S. began receiving medication management from a community mental health

6 agency and weekly office-based therapy from a second community mental health agency. Years

7 later, in April 2009, L.F.S.'s symptoms were still so unstable that his treating psychiatrist

8 discussed the possibility of hospitalization with his mother. Instead, the family chose to continue

9 attempting to address his needs at home. L.F.S. had a crisis plan which instructed his mother to

10 take him to the emergency room if necessary, but he was never offered any home or community-

11 based crisis intervention or other services.

12

188. L.F.S.'s therapist requested a neuropsychological assessment on January 21,2009

13 to determine whether L.F.S. has Bipolar or psychotic disorders and determine the reason for

14 L.F.S.'s inability to academically progress. When L.F.S.'s mother learned that an appointment

15 was not available through her Medicaid provider for another six months, L.F. S. ' s therapist began

16 making requests that the RSN authorize payment for an assessment by an "out-of-network"

17 provider that could see him sooner. The RSN denied the therapist's and L.F.S.'s request, and the

18 neuropsychological evaluation did not occur until October 19,2009.

19

189. According to L.F.S.'s treating mental health provider, he needs additional

20 assessments that he has not yet received, including a comprehensive strengths-based assessment

21 that includes home observations of his behaviors and interactions with his family, a Functional

22 Scale and Adaptive Skills assessment, and a sleep study.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 48

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 49 of 63

1

190. Additionally, his mental health provider has recommended Intensive HC-based

2 Services including services delivered by Spanish speaking providers or with qualified Spanish

3 interpreters, therapeutic aid services, home services including a behavior plan and training for

4 L.F.S. 's mother on implementation, mobile crisis intervention and home stabilization services,

5 home family therapy, home individual therapy, and training and support for L.F.S.'s mother from

6 a parent pminer. L.F.S. is not receiving any of these services.

7

191. If L.F.S. does not receive the services and assessments he needs, he will continue

8 to struggle academically and experience conflict at home and school, and he will be at risk of

9 experiencing an increase in his symptoms, hospitalization, and school failure.

10

192. L.F.S. and his mother never received notice of the availability ofIntensive HC-

11 based Services through the Medicaid program, or a notice about his right to request a hearing to

12 dispute denials, reductions, or terminations of his services.

13

D. Intensive Home and Community-based Mental Health Care Services are

Effective and Necessary

14

193. There is virtual unanimity among mental health experts that children with serious

15

mental health problems require an alTay of individualized services tailored to meet their needs.

16

Programs implementing such individualized services have been successfully provided to children

17

and have proven more effective and cost efficient than congregate and institutional care.

18

194. In 2002, the Secretary ofDSHS, Dennis Braddock, convened a taskforce of

19

judges, foster care providers, court commissioners, county prosecutors, group home providers,

20

sheriffs, sex offender treatment professionals, high level DSHS administrators and others

21

involved in serving children and families to look at the long term care needs of children with

22

serious mental illness and emotional disturbance. The resultant report, refelTed to as "The

23

Braddock Report," found that:

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 49

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 50 of 63

"Traditionally, community-based interventions have been dismissed as

inappropriate on the theory that these youth present too high a risk to self, family

2

safety and community. But to the contrary, wraparound services and multi-

systemic treatment that involve the participation of the family, the youth, multiple

3

health, educational, social service and other system partners are proving to be

successful in improving the health and well being of youth with severe emotional

4

and behavioral needs, reducing the need for hospitalization and other expensive

"crisis" placements."

5

Select Committee on Adolescents in Need of Long Term Placement, DSHS Washington, Final

6

Report (2002).

7

195. Intensive HC-based Services are also cost effective. For example, compare

8

Medicaid hospitalization rate of $707-1475 (per day) to the cost of Multi-Systemic Therapy at

9

approximately $60 (per day).

10

196. Intensive home and community-based services encompass a broad and flexible

11

anay of services necessary to treat a child's mental health condition at home and in the

12

community in which he or she resides and includes but is not limited to intensive care

13

coordination; mobile services provided on site as necessary to assist a child experiencing a

14

behavioral health crisis; short term crisis stabilization services to prevent or ameliorate a

15

behavioral crisis; skilled staff to provide therapy in the home setting or other natural environment

16

in order to improve the youth's functioning in the those settings and prevent need for an out of

17

home placement; trained mentors available to work with the child in a natural setting to support,

18

coach, and train youth in age-appropriate behaviors, interpersonal communications, problem-

19

solving and conflict resolution; training on independent living, social and communication skills

20

in a natural environment such as skill-building guidance to children and parents (e.g. modeling

21

appropriate behaviors and communication techniques); personal care services for assistance with

22

daily living tasks; and respite care to further stabilize the family home.

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 50

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 51 of 63

197. Despite this consensus among the State's own mental health professionals that

2 Intensive HC-based Services are necessary, the Defendant has failed to ensure that children

3 receiving treatment through Medicaid funded programs receive the services to which they are

4 entitled by law.

5

E. The Failure to Provide Intensive He-based Services Results in Serious and

Irreparable Harm

6 198. Failure to provide intensive home and community-based mental health services

7 results in significant harm including unnecessary and prolonged institutionalization, non-

8

improvement or a decline in mental and physical health, reduced social interaction, academic

9

success and quality oflife, a declining family environment and police intervention and

10

confinement within the juvenile justice system.

11

Unnecessary and Prolonged Institutionalization

12

199. DSHS has recognized that:

13 "The lack of community placement and diversion alternatives

14

contributes to: 1) increasing demand [for institutional beds] on the

"front end" [and] 2) protracted or stalled discharge planning on the

15

"back end." In essence the lack of such services results in the

"Boarding" of youth who are committed to inpatient treatment on

16

acute community hospital units (e.g., Sacred Heart)."

17

Issue Statement: Briefing Paper about CLIP Process Kid Team Discussion

and Recommendations (April 2007).

18 200. The average length of a stay in Washington's CLIPs is 297 days, with some

19 populations staying much longer. Children under age 13 average 476 days. A white paper

20 issued in 2006 concluded that the leading cause of discharge delays from CLIPS is the lack of

21 discharge placement and family readiness. Children's Acute and Non-acute Inpatient

22 Psychiatric and Residential Treatment White Paper (2006); See also Capacity and Demand

23 Study for Inpatient Psychiatric Hospital and Community Residential Beds - Adults and Children,

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 51

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 52 of 63

State a/Washington DSHS (November 2004) (recommending therapeutic foster care and

2 additional community programming to reduce average length of stay).

3

201. Beyond the length of stay, over-reliance on restrictive, institutional settings is

4 often harmful to children with mental health problems, placing them in a setting that is

5 antithetical to their successful treatment, in part because removing a child from her parents or a

6 caring adult is, itself, harmful.

7

202. Moreover, hospitals and restrictive institutions are designed to offer shOli-term

8 stabilization and behavior management, not intensive, individualized services.

9

203. The experience of the named Plaintiffs is illustrative and, unfortunately, typical.

10 G.B. was treated on an inpatient basis on five different occasions by the time she was 11; T.F.

11 was institutionalized three times by the time she was 14; T.V. was hospitalized five times over

12 18 months before being institutionalized for over a year at the state children's psychiatric

13 hospital; S.P. has cycled in and out of the local hospital psychiatric unit five times in the last year

14 and is currently hospitalized due to inadequate community services; P.S. was institutionalized
15 twice at a CLIP facility and hospitalized multiple times; and c.A. is in an inpatient facility due to

16 the lack of community services.

17

Non-improvement or a Decline in Mental and Physical Health

18

204. Children who do not receive appropriate treatment cannot get better and are at

19 risk of getting worse. If the decline is severe, many will face the risk of institutionalizations that

20 could continue for years. Children, like T.V., who cannot access recommended intensive

21 services because Defendant's policies and practices deem their symptoms to be not severe

22 enough, must deteriorate to the point they are at risk of hospitalization when their condition will

23 be harder to treat.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 52

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 53 of 63

205. The lack ofIntensive HC-based Services often also result in physical harm from

2 selfhmming behaviors (self-burning, cutting or head banging), forced restraint by police or

3 others, fighting due to aggression or confusions, harm due to command hallucinations and other

4 causes. For example, c.A., P.S., and E.H. have cut themselves; P.S. has been injured in physical

5 altercations; and T.F. was almost hit by a car during an episode when she attempted to elope

6 from a treatment facility.

7

206. Children with mental health symptoms also are at high risk of suicide.

8 Washington State's Department of Health recently released a report acknowledging that on

9 average, two Washington youth commit suicide each week, and that Washington's youth suicide

10 rate is higher than the national average. See Washington State's Plan/or Youth Suicide

11 Prevention 2009. T.F., P.S., C.A., and E.H. have all had suicidal ideations and have made

12 attempts to take their own lives.

13

Reduced Social Interactions, Academic Success and Quality of Life

14

207. The lack of Intensive HC-based Services results in increased risk of school failure

15 and drop out, and a marked decline in the quality oflife. S.P. has become so anxious about

16 social interactions that she could attend school only two hours a day. E.D. scores in the 80th

17 percentile for intelligence, but his inability to relate to peers and his condition causes problems in

18 school, at home and in the community. C.A.' s self esteem is bolstered by academic challenge

19 but institutionalized, she has no outlet for her intellectual curiosity, and she has little hope for the

20 future.

21

208. The symptoms experienced by these children can be baniers to developing

22 positive peer relationships. Furthermore, the cycle of institutionalizations faced by many of

23 these children threatens to foreclose any chance these children have of developing healthy,

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 53

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 54 of 63

stable, long term relationships on which to build attachments, self-confidence and social skills,
,
2 i leading to a lifetime of challenges with marital, familial and peer relationships, and social

3 isolation.

4

Declining Family Environment

5

209. A failure to provide intensive home and community-based mental health services

- 1 i is disruptive to the family and often results in out of home placements, involuntary foster care

7 and occasionally homelessness, eviction, or transfers among family members struggling to

8 provide appropriate care. T.R., S.P., C.A. and T.F. are all currently in long-term out-of-home

9 placements. P.S., T.V. and G.B. have experienced long-term displacement and are at risk of

10 future institutionalization. P.S. and his family were forced to move to avoid eviction due to his

11 mental health crises. Those that remain at home struggle on a day-to-day basis with their families

12 living in fear of harm to their other children, themselves and others family members and friends.

13

Police Intervention and Confinement within the Juvenile Justice System

14

210. Many children with mental health needs are arrested, detained, and taken into

15 custody by Washington's Juvenile Rehabilitation Administration (JRA). The State of

16 Washington has found that 62% of children enter the custody of JRA with unmet mental health

17 needs.

18

211. Confinement within a juvenile detention facility and police intervention is not a

19 substitute for Intensive HC-based Services. Physical restraint frequently exacerbates these

20 children's symptoms, treatment is frequently unavailable and these children are torn from their

21 families. Yet this is a tool frequently used in place ofIntensive HC-based Services, particularly

22 mobile crisis care. For example, T.F. was placed in a facility in Idaho which used police

23 intervention in response to her mental health crises, was arrested while in the facility eight times

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 54

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 55 of 63

during her first four months of treatment, and spent the vast majority of the past six months in

2 juvenile criminal detention. At only ll-years-old, TV. has been arrested and detained on

3 multiple occasions. P.S., TF., TR. and E.D. 's only crisis plan was to call "9-1-1" for police

4 intervention. P.S. has Post Traumatic Stress Disorder and arrest by the police further traumatizes

5 him and exacerbates his condition. P.S. has requested a crisis plan and mobile crisis services to

6 avoid relying on the police, but the Defendant has failed to provide coverage for this necessary

7 serVIce.

8

212. As one recent report stated:

9

"The concept of prevention - prevention of failure in school, job loss,

homelessness, criminal behavior and untold suffering - seems hardly to exist

10

within the public mental health system."

11 Children's Mental Health in Washington State: A Public Health Perspective Needs Assessment,

12 Washington Department of Health (November 2007). In order to protect Washington's

13 Medicaid children and prevent fmiher harm, Defendant must be compelled to comply with its

14 legal obligations.

15

VII. REQUISITES FOR RELIEF

16

213. By reason of the factual allegations set forth above, an actual controversy has

17 arisen and now exists between Plaintiffs and the Defendant. Plaintiffs contend that their rights

18 under the Constitution and laws of the United States are being violated, while the Defendant is

19 charged with enforcing and complying with those legal requirements. A declaration from this

20 Court that Plaintiffs' rights have been violated is therefore necessary and appropriate.

21

214. Defendant's failure to comply with the requirements of federal and state law will

22 result in irreparable harm to Plaintiffs. Plaintiffs have no plain, adequate, or complete remedy at

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 55

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 56 of 63

law to address the wrongs described herein. Plaintiffs therefore seek injunctive relief restraining

2 Defendant from engaging in the unlawful and unconstitutional acts and policies described herein.

3

VIII. CLAIMS FOR RELIEF

4

COUNT I

Violations of the Early and Periodic Screening,

5

Diagnostic and Treatment (EPSDT) Provisions of the Medicaid Act

6

215. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as

7 though fully set fOlth herein.

8

216. Defendant has failed to establish policies, procedures, and practices to ensure

9 Plaintiffs and members of the Plaintiff class receive adequate notice of the specific behavioral

10 and mental health treatment services available under the EPSDT provisions of the federal

11 Medicaid Act, including intensive, community and home-based mental health services, which

12 has the effect of denying these services to children with physical or mental illnesses or

13 conditions, in violation of 42 U.S.C. § 1396a(a)(43)(A).

14

217. Defendant has failed to provide or otherwise arrange for Plaintiffs and the

15 members of the Plaintiff class to receive the EPSDT early and periodic screening and diagnostic

16 services that would otherwise determine the existence of any physical or mental illnesses or

17 conditions, in violation of 42 U.S.C. §§ 1396a(a)(10)(A), 1396(a)(43)(B), 1396d(a)(4)(B), and

18 1396d(r)(l)(A).

19

218. Defendant has failed to provide or otherwise arrange for Plaintiffs and the

20 members of the Plaintiff class to receive the necessary behavior and mental health services,

21 including intensive, community and home-based mental health services, that would treat or

22 ameliorate their physical or mental illnesses or conditions, in violation of 42 U.S.c.

23 §§ 1396a(a)(10)(A), 1396a(a)(43)(C), and 1396d(r)(5).

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 56

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 57 of 63

1

219. Defendant's actions and omissions described above violate 42 U.S.C. § 1983 by

2 depriving Plaintiffs and the members of the Plaintiff class of their statutory rights under the

3 EPSDT provisions of the federal Medicaid Act to receive necessary screening, diagnostic, and

4 treatment services and to receive notice of the availability of these services.

5

COUNT II

Violation of the Comparability Provisions of the Federal Medicaid Act

6

220. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as

7

though fully set forth herein.

8

221. The "comparability" requirement of the Medicaid Act requires that all

9

categorically needy individuals with comparable needs receive comparable Medicaid funded

10

services. 42 U.S.C. § 1396a(a)(10)(B). The State violates the "comparability" requirement ifit

11

reduces, denies, or telminates a Medicaid funded service for an individual for a reason other than

12

the individual's needs consistent with 42 U.S.C. § 1396a(a)(30)(A).

13

222. The Defendant has failed to establish or maintain policies, procedures, or

14

practices that will prohibit reductions, telminations, or denials of medically necessary intensive

15

in home and community-based mental health services to children and youth on the bases of their

16

diagnoses, geographic location, and qualifications for child welfare DCFS services, in violation

17

of 42 U.S.C. § 1396a(a)(10)(B), which is enforceable by Plaintiffs pursuant to 42 U.S.C. § 1983.

18

COUNT III

19

Violation of the Due Process Provisions of the Federal Medicaid Act

20

223. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as

21 though fully set forth herein.

22

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 57

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 58 of 63

1

224. The Medicaid Act requires that participating states provide an opportunity for a

2 fair hearing for any individual whose request for Medicaid services have been denied or provided

3 with reasonable promptness. 42 U.S.c. § 1396a(a)(3).

4

225. Defendant has failed to establish and maintain customs, policies, and practices to

5 provide Plaintiffs and members of the Plaintiff class with adequate written notice of reductions,

6 terminations, and denials of Medicaid funded intensive home and community-based services and

7 their rights to a pre-termination or reduction fair hearing, in violation of 42 U.S.c. § 1396a(a)(3),

8 which is enforceable by Plaintiffs pursuant to 42 U.S.C. § 1983.

9

COUNT IV

Violation of the Due Process Provision of the Fourteenth Amendment

10

of the United States Constitution

226. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as 11

12 though fully set forth herein.

227. The Due Process Clause of the United States Constitution establishes the right for 13

14 Plaintiffs and members of the Plaintiff class to receive adequate notice of reductions,

terminations, and denials of Medicaid funded services and their right to a fair hearing to 15

challenge such actions prior to implementation. See Goldberg v. Kelly, 397 U.S. 254 (1970); 42 16

17 U.S.C. § 1396a(a)(3).

228. Defendant has failed to establish and maintain customs, policies, and practices to 18

19 provide Plaintiffs and members of the Plaintiff class with adequate written notice of reductions,

20 terminations, and denials of Medicaid funded intensive home and community-based services and

21 their rights to a pre-termination or reduction fair hearing in violation of the Due Process clause of

22 the Fomieenth Amendment of the Constitution, which is enforceable by Plaintiffs pursuant to 42

23 U.S.C. § 1983.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 58

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 59 of 63

COUNT V

Violation of Americans with Disabilities Act

2

and Section 504 of the Rehabilitation Act

229. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as 3

4 though fully set forth herein.

230. Plaintiffs and members of the Plaintiff class have behavioral, emotional, and 5

6 i! psychiatric impairments that qualify them as individuals with disabilities within the meaning of

the ADA, 42 U.S.C. § 12131(2), and are "otherwise qualified individuals with a disability" 7

within the meaning of the Rehabilitation Act, 29 U.S.C. § 794. 8

9

231. Defendant is a public official of a public entity subject to the provisions of the

10'; ADA. 42 U.S.C. § 12131(1)(A). Defendant's agency receives federal financial assistance, and

11 Defendant is thus subject to the provisions of the Rehabilitation Act.

232. Defendant has failed to administer services, programs, and activities in the most 12

integrated setting appropriate to the needs of children who need intensive mental health services 13

14 in violation of the ADA and Rehabilitation Act.

233. Defendant has discriminated against Plaintiffs and members of the Plaintiff class 15
1! on the basis of their disabilities by failing to make reasonable modifications in their policies, 16

practices, or procedures. Reasonable modification of Defendant's policies, practices, or 17

procedures would not fundamentally alter the nature of their services, programs, or activities, but 18

rather would further Defendant's stated goals. 28 C.F.R. § 35.130(b)(7). 19

234. Defendant has discriminated against Plaintiffs and members of the Plaintiff class 20

solely on the basis of disability in violation of the Rehabilitation Act and ADA by: (i) failing to 21

provide reasonable accommodations to allow Plaintiffs and members of the Plaintiff class to 22

participate fully in Defendant's programs and receive adequate services; and (ii) failing to 23

provide and support appropriate community-based placements, instead requiring Plaintiffs and

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 59

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 60 of 63

1 members of the Plaintiff class to be confined in restrictive, institutional settings in order to access

2 necessary mental health services.

3

235. Defendant's acts and omissions alleged herein have denied and continue to deny

4 Plaintiffs and members of the Plaintiff class the opportunity to benefit from Defendant's services,

5 programs, and activities.

i, i i

IX. PRAYER FOR RELIEF

7

WHEREFORE, Plaintiffs respectfully request that this Court:

8

A. Assume jurisdiction over this action and maintain continuing jurisdiction until

9 Defendant is in full compliance with every order of this Court;

10

B. Certify that Plaintiffs may maintain this action as a class action pursuant to

11 Rule 23(b)(2) of the Federal Rules of Civil Procedure and appoint the individual named Plaintiffs

12 as Class representatives;

13

C. Declare that Defendant's policies, practices, acts, and omissions violate the

14 EPSDT and Comparability provisions of the Medicaid Act, which requires the Defendant to

15 provide for necessary intensive in-home and community-based mental health services;

16

D. Declare that Defendant's policies, practices, acts, and omissions violate the due

17 process provision of the Medicaid Act and the Due Process Clause of the Fourteenth Amendment

18 to the United States Constitution, which require the Defendant to provide notice to the Plaintiffs

19 and members of the Plaintiff class informing them of their rights when a Medicaid service is

20 terminated, suspended, reduced or denied and providing them with a pre-termination opportunity

21 to appeal such action;

22

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 60

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 61 of 63

E. Declare that Defendant's policies, practices, acts, and omissions violate the

2 Plaintiffs' rights to receive mental health services in the most integrated setting appropriate to

3 their needs under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;

4

F. Grant a preliminary and permanent injunction requiring the Defendant to:

5

a. establish and implement policies, procedures, and practices to screen and

h

assess members of the Plaintiff class for unrnet mental health needs,

7

including intensive home and community-based services, to ensure that

8

class members are reliably identified and adequately served;

9

b. conduct professionally-adequate assessments of all Plaintiffs and members

10

of the Plaintiff class who reside in private or public mental health facilities

11

to determine whether intensive home and community-based mental health

12

services are necessary to treat or ameliorate their behavioral, emotional, or

13

psychiatric conditions;

14

c. conduct professionally-adequate assessments of all Plaintiffs and members

15

of the Plaintiff class who reside in private or public mental health

16

facilities, and to determine whether or not such children are receiving

17

mental health services in the most integrated setting appropriate to their

18

individual needs.

19

d. provide meaningful notice to Medicaid-eligible children and their families

; I

20

of the availability of the full range of Medicaid-funded mental health, and

21

behavioral services available under EPSDT program, including intensive

22

home and community-based services;

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 61

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 62 of 63

1

e.

establish and implement policies, procedures, and practices that are

2

sufficient to ensure that the Plaintiffs and all members of the Plaintiff class

3

promptly receive coverage of necessary, intensive home and community-

4

based mental health services, including professionally-adequate

5

assessments, crisis and case management services;

f.

establish and implement policies, procedures, practices, and

7

reimbursement rates to ensure that sufficient qualified providers are

8

available to offer intensive home and community-based mental health

9

services, including professionally-adequate assessments, crisis, and case

10

management services throughout the state and in a culturally appropriate

11

manner;

12

g.

remove any baniers or criteria which prevent Medicaid-eligible children

13

from applying for and accessing necessary EPSDT mental health services,

14

including intensive home and community-based mental health services;

15

h. promptly provide intensive home and community-based mental health

16

services to all Plaintiffs who would benefit from them;

17

G. Award to the Plaintiffs the reasonable costs and expenses incurred in the

18 prosecution of this action, including but not limited to reasonable attorneys' fees and costs; and

19

H. Award such other equitable and fmiher relief as the Comi deems just and proper.

20

21 II II
22 II

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 62

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

Case 2:09-cv-01677-TSZ Document 1 Filed 11/24/09 Page 63 of 63

....

1

DATED this 24th day of November, 2009.

2 Is/Regan Bailey Regan Bailey, WSBA No. 39142
3 reganb@dr-wa.org Susan Kas, WSBA No. 36592
4 susank@dr-wa.org DISABILITY RIGHTS WASHINGTON
5 315 5th Avenue South, Suite 850 Seattle, WA 98104
(i, Telephone: (206) 324-1521 Facsimile: (206) 957-0729
7 IslSusan E. Foster
8 Susan E. Foster, WSBA No. 18030 SF oster@12erkinscoie.com
9 Frederick B. Rivera, WSBA No. 23008 FRivera@12erkinscoie.com
10 Travis A. Exstrom, WSBA No. 39309 TExstrom@12erkinscoie.com
11 PERKINS COlE LLP 1201 Third Avenue, Suite 4800
12 Seattle, WA 98101-3099 Telephone: (206) 359.8000
13 Facsimile: (206) 359.9000

14 IslJane Perkins Jane Perkins, SBN 104784
15 12erkins@healthlaw.org NATIONAL HEALTH LAW PROGRAM
16 211 N. Columbia Street Chapel Hill, NC 27514
17 Telephone: (919) 968-6308

18 IslPatrick Gardner Patrick Gardner, CB No. 208199
19 12gardner@youthlaw.org Fiza Quraishi, CB No. 252033
20 fguraishi@youthlaw.org NATIONAL CENTER FOR YOUTH LAW
21 405 14th Street, 15th Floor Oakland, CA 94612
22 (510) 835-8098

23 Attorneys for Plaintiffs

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 63

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

 
 Case 2:09-cv-01677-TSZ Document 28 Filed 06/24/10 Page 1 of 4

1

THE HONORABLE THOMAS S. ZILLY

2

3

4

5

6

7

8

9

10

11

12

13

UNITED STATES DISTRICT COURT

14

WESTERN DISTRICT OF WASHINGTON

15

AT SEATTLE

16

17

18 T.R.., by and through his guardian and next No. 2:09-cv-01677-TSZ

19 friend, R.R.; S.P., by and through her

20 mother and next friend, D.H.; C.A., by and PLAINTIFFS' MOTION FOR CLASS

21 through her mother and next friend, A.A.;

CERTIFICATION

22 T.F., by and through her father and next

23 friend, D.F.; P.S., by and through his

NOTE FOR MOTION CALENDAR:

24 mother and next friend, W.S.; T.V., by and Friday, Friday, July 9, 2010

25 through his guardian and next friend. C.D.;

26 G.B., by and through her mother and next

27 friend, L.B.; E.H. by and through his

28 mother and next friend, C.H.; E.D., by and

29 through his mother and next friend, A.D.;

30 and L.F.S., by and through his mother and

31 next friend, B.S.,

32

33

Plaintiffs,

34

35

v.

36
37 SUSAN N. DREYFUS, not individually, 38 but solely in her official capacity as 39 Secretary of the Washington State 40 Department of Social and Health Services,

41

42

Defendant.

43

44 45

Plaintiffs move the Court for an order certifying this lawsuit as a plaintiff class action

46 47

under Federal Rule of Civil Procedure 23(b)(2). Plaintiffs ask that the class be defined as:

48

49

All persons under the age of 21 who now or in the future:

50

51

PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv-01677-TSZ) – 1
70787-0001/LEGAL18270127.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 28 Filed 06/24/10 Page 2 of 4

1

(1) meet or would meet the State of Washington's financial

2

Title XIX Medicaid eligibility criteria;

3

4

(2) are determined and documented by a licensed

5

practitioner of the healing arts operating within the scope of their

6

practice as defined by Washington state law, to have a mental

7

illness or condition, or had a screen or an assessment been

8

conducted by such practitioner, would have been determined and

9

documented to have a mental illness or condition;

10

11

(3) have a functional impairment, which substantially

12

interferes with or substantially limits the ability to function in the

13

family, school or community setting; and

14

15

(4) for whom intensive home and community based

16

services coverable under Title XIX Medicaid and eligible for

17

Federal Financial Participation, have been, or would have

18

been recommended by a licensed practitioner in order to correct or

19

ameliorate a mental illness or condition.

20 21

Plaintiffs also request that the Court designate counsel for the named Plaintiffs, Disability

22 23

Rights Washington, the National Health Law Program, the National Center for Youth Law, and

24 25

Perkins Coie, as class counsel and certify the proposed class without requiring notice to the

26 27

unnamed class members.

28 29

This motion is based on the accompanying Memorandum in Support of Plaintiffs' Motion

30 31

for Class Certification, the Declarations of Susan Foster, Regan Bailey, Patrick Gardner, Jane

32 33

Perkins, R.R., D.H., A.A., D.F., P.S., C.D., L.B., C.H., A.D. and B.S. in Support of Plaintiffs'

34 35

Motion for Class Certification, the Stipulation Regarding Plaintiffs' Motion for Class

36 37

Certification and the Proposed Order Granting Plaintiffs' Motion for Class Certification, and all

38 39

pleadings and other documents on file in this case.

40

41

42

43

44

45

46

47

48

49

50

51

PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv-01677-TSZ) – 2
70787-0001/LEGAL18270127.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 28 Filed 06/24/10 Page 3 of 4

1

DATED this 24th day of June, 2010.

2

3 /s/Regan Bailey

4 Regan Bailey, WSBA No. 39142

5 6 7

reganb@dr-wa.org Susan Kas, WSBA No. 36592

8 susank@dr-wa.org

/s/Patrick Gardner Patrick Gardner, CB No. 208199 pgardner@youthlaw.org Bryn Martyna, CB No. 239852 bmartyna@youthlaw.org

9 DISABILITY RIGHTS WASHINGTON

Fiza Quraishi, CB No. 252033

10 315 5th Avenue South, Suite 850

11 12 13 14

Seattle, WA 98104 Telephone: (206) 324-1521 Facsimile: (206) 957-0729

15

fquraishi@youthlaw.org NATIONAL CENTER FOR YOUTH LAW 405 14th Street, 15th Floor Oakland, CA 94612 (510) 835-8098

16

17 /s/Susan E. Foster

/s/Jane Perkins

18 Susan E. Foster, WSBA No. 18030

19 SFoster@perkinscoie.com

20 21 22

Frederick B. Rivera, WSBA No. 23008 FRivera@perkinscoie.com

23 Travis A. Exstrom, WSBA No. 39309

24 TExstrom@perkinscoie.com

Jane Perkins, SBN 104784 perkins@healthlaw.org NATIONAL HEALTH LAW PROGRAM 211 N. Columbia Street Chapel Hill, NC 27514 Telephone: (919) 968-6308

25 PERKINS COIE LLP

26 1201 Third Avenue, Suite 4800

27 28 29

Seattle, WA 98101-3099 Telephone: (206) 359.8000

30 Facsimile: (206) 359.9000

31
32 ATTORNEYS FOR PLAINTIFFS

33

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51

PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv-01677-TSZ) – 3
70787-0001/LEGAL18270127.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 28 Filed 06/24/10 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on this 24th day of June, 2010, I electronically filed the foregoing

4 5 6 7

with the Clerk of the Court using the CM/ECF system which will send notification of same to the following: Carrie Bashaw (CarrieB@atg.wa.gov), Sarah Coats (SarahC@atg.wa.gov), Bill G. Clark (BillC2@atg.wa.gov), Eric Nelson (EricN1@atg.wa.gov), and Scott T. Middleton

8 (ScottM6@atg.wa.gov).

9

10

11

12

13 14

/s/Cathi Schleh

15

Legal Secretary

16

17

18

19

20

21

22

23

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PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv-01677-TSZ) – 4
70787-0001/LEGAL18270127.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 1 of 27

1

THE HONORABLE THOMAS S. ZILLY

2

3

4

5

6

7

8

9

10

11

12

13

UNITED STATES DISTRICT COURT

14

WESTERN DISTRICT OF WASHINGTON

15

AT SEATTLE

16

17

18 T.R.., by and through his guardian and next No. 2:09-cv-01677-TSZ

19 friend, R.R.; S.P., by and through her

20 mother and next friend, D.H.; C.A., by and MEMORANDUM IN SUPPORT OF

21 through her mother and next friend, A.A.;

PLAINTIFFS' MOTION FOR CLASS

22 T.F., by and through her father and next

CERTIFICATION

23 friend, D.F.; P.S., by and through his

24 mother and next friend, W.S.; T.V., by and

NOTE FOR MOTION CALENDAR:

25 through his guardian and next friend. C.D.; Friday, July 9, 2010

26 G.B., by and through her mother and next

27 friend, L.B.; E.H. by and through his

28 mother and next friend, C.H.; E.D., by and

29 through his mother and next friend, A.D.;

30 and L.F.S., by and through his mother and

31 next friend, B.S.,

32

33

Plaintiffs,

34

35

v.

36
37 SUSAN N. DREYFUS, not individually, 38 but solely in her official capacity as 39 Secretary of the Washington State 40 Department of Social and Health Services,

41

42

Defendant.

43

44

45

46

47

48

49

50

51

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 1
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 2 of 27

1

I. INTRODUCTION

2 3

Plaintiffs, on behalf of themselves and a proposed class of Medicaid-eligible children,

4 5

filed a class action complaint on November 24, 2009 asserting that Defendant has failed to

6 7

ensure that Washington's Medicaid eligible children under the age of 21 receive intensive home

8 9

and community-based mental health services necessary to correct or ameliorate their health

10 11

condition. The Action was brought under the Early Periodic Screening, Diagnosis and

12 13

Treatment ("EPSDT") and comparability and due process requirements of the Medicaid Act, the

14 15

American with Disabilities Act, the Rehabilitation Act and the United States Constitution.

16 17

Defendant is the Secretary of the Washington State Department of Social and Health Services

18 19

("DSHS"), the department responsible for providing medically necessary mental health services

20 21

to children.1

22 23

Federal courts have routinely certified this type of class in similar lawsuits filed on behalf

24 25

of Medicaid-eligible children seeking the Early and Periodic Screening, Diagnostic and

26 27

Treatment ("EPSDT") services mandated by the federal Medicaid Act and Defendant has

28 29

stipulated to the certification of the proposed Class in this case, and a copy of the Stipulation

30 31

Regarding Plaintiffs' Motion for Class Certification is attached hereto as Exhibit 1.2

32 33

In light of Rule 23(c)(1)'s requirement that the Court determine whether to certify this

34 35

lawsuit as a class action "[a]t an early practicable time after a person files suit as a class

36 37

representative," Plaintiffs submit this Memorandum and the Stipulation in support of their

38 39

accompanying Motion for Class Certification.

40

41

42

43

44

45

46 47 48 49 50 51

1 Secretary Dreyfus is the designated State Mental Health Authority under Washington’s Community Mental Health Services Act, RCW 71.24. RCW 71.24.035. Here duties include assuring access to mental health treatment services for children, RCW 71.24.035.
2 Defendant has reserved the right to challenge class certification, including class definition and other class issues, as the issues and facts in the case are further identified and developed. See Stipulation re Class Certification at ¶¶1, 3 and 4.

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 2
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 3 of 27

1

II. STATEMENT OF FACTS

2
3 A. The Proposed Plaintiff Class

4 5

Plaintiffs request that the court certify a class consisting of all persons under the age of 21

6 7

who now or in the future:

8

9

(1) meet or would meet the State of Washington's Title XIX Medicaid financial

10

eligibility criteria;

11

12

(2) are determined and documented by a licensed practitioner of the healing arts

13

operating within the scope of their practice as defined by Washington state law, to

14

have a mental illness or condition, or had a screen or an assessment been

15

conducted by such practitioner, would have been determined and documented to

16

have a mental illness or condition;

17

18

(3) have a functional impairment, which substantially interferes with or substantially

19

limits the ability to function in the family, school or community setting; and

20

21

(4) for whom intensive home and community based services coverable under Title

22

XIX Medicaid and eligible for Federal Financial Participation, have been, or

23

would have been recommended by a licensed practitioner in order to correct or

24

ameliorate a mental illness or condition.

25 26

The proposed class is quite numerous. For example, DSHS data reveals that there are

27 28

more than 75,000 children between the ages of zero and 17 in Washington that live in low

29 30

income households with a mental health diagnosis in the moderate to severe range (and thus

31 32

likely to have a functional impairment). Such individuals would most likely benefit from

33 34

intensive home and community-based mental health services. Complaint ¶ 32. The class is

35 36

perhaps larger, consisting of individuals under the age of 21 and is also fluid in that new

37 38

members are regularly created.

39
40 B. The Class Representatives

41 42

As set forth in the Complaint, the named Plaintiffs in this action are ten children between

43 44

the ages of nine and 18 who suffer from a mental illness or condition and require but have not

45 46

been provided requested intensive home and community based services. Each child currently

47 48

resides, or is being treated, in a county within Washington State and receives services through

49 50

Washington's Medicaid program.

51

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 3
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 4 of 27

1

As members of the proposed plaintiff class, the named Plaintiffs are in need of medically

2
3 necessary intensive home and community-based mental health services available under the

4
5 EPSDT provisions of the federal Medicaid Act. The Defendant's systematic failure to ensure

6
7 that Washington's Medicaid-eligible children are provided these services has caused the named

8
9 Plaintiffs and the members of the proposed plaintiff class to endure harms such as homelessness,

10
11 repeated and avoidable hospitalizations, unnecessary juvenile detention, prolonged

12
13 institutionalization, foster care and out-of-state placement, and deteriorating physical and mental

14
15 health conditions. ,See, e.g. Complaint ¶¶5-8, 19-28, 71-192, 198-212.

16

17

Several of the named Plaintiffs have experienced multiple hospitalizations or

18
19 institutionalization as a result of their mental health condition or illness and have a functional

20
21 impairment which interferes with or substantially limits the ability to function in family, school

22
23 or community settings. Id. For example, as of the date of filing C.A. had been hospitalized three

24
25 times due to depression, suicide attempts and self-harming behaviors (e.g. cutting herself and

26
27 jumping out of a second-story window). Complaint ¶ 95. And, at the time of the filing three of

28
29 the named Plaintiffs were institutionalized. Complaint ¶ 8. Unless the named Plaintiffs and the

30
31 proposed plaintiff class receive the medically necessary intensive home and community-based

32
33 mental health services for which they are eligible, they will continue to be harmed by the

34
35 repeated pattern of hospitalization and institutionalization that will decrease their chance of

36
37 becoming independent and productive adults.

38

39 C. The Plaintiffs' Class Action

40

41

This action asserts claims under the Medicaid Act, the ADA, the Rehabilitation Act and

42
43 the United States Constitution. Each of these claims relate directly to the Defendant's failure to

44
45 establish policies, procedures and practices to ensure that Washington's Medicaid-eligible

46
47 children receive necessary intensive home and community-based services and notice of their

48
49 right to such services under Medicaid.

50

51

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 4
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 5 of 27

1

Following the Court's direction at the Scheduling Conference, the parties met on several

2
3 occasions to discuss the class definition and a proposed stipulation with respect to class

4
5 certification. Ultimately those discussions were successful and as modified, the stipulated class

6
7 definition clarifies and adds additional detail to the Class Certification language contained at

8
9 Paragraph 33 of the Complaint.

10

11

III. ARGUMENT

12

13 A. This Requirements Under Rule 23 for the Maintenance of a Class Action

14

15

In determining whether an action warrants class treatment, "the question is not whether

16
17 the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather

18
19 whether the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178

20
21 (1974) (quotations and citations omitted); see Moore v. Hughes Helicopters, Inc., 708 F.2d 475,

22
23 480 (9th Cir. 1983) (stating that "it is improper to advance a decision on the merits [at] the class

24
25 certification stage"). When deciding a class certification motion, the Court should therefore

26
27 "take the substantive allegations of the complaint as true." Blackie v. Barrack, 524 F.2d 891,

28
29 901 n.17 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976); Burkhalter Travel Agency v.

30 31

MacFarms Int'l, Inc., 141 F.R.D. 144, 152 (N.D. Cal. 1991).3 But, the court must also engage in

32
33 a rigorous analyze to determine if certification is appropriate. LaCasse v. Washington Mutual,

34
35 Inc., 198 F. Supp.2d 1255, 1260-61 (W.D. Wa. 2002).

36

37

For a lawsuit to be maintained as a class action, it must satisfy the four threshold

38
39 requirements of Rule 23(a) and at least one of the class action grounds of Rule 23(b). Amchem

40
41 Prod., Inc. v. Windsor, 521 U.S. 591, 613-14, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Under

42
43 Rule 23(a), a district court must find that:

44

45

46

47 48 49 50 51

3 In addition to the Complaint, Plaintiff's' have submitted declarations from the next friend for each of the named plaintiffs confirming the accuracy of the factual allegations relating to each child were accurate as of the date of filing of the Complaint. See Declarations of R.R., D.H., A.A., D.F., W.S., C.D., L.B., C.H., A.D., and B.S. in Support of Plaintiffs' Motion for Class Certification. Additionally, the Court may take judicial notice of the multitude of reports and other publicly available materials referenced in the Complaint.

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 5
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 6 of 27

1

(1) the class is so numerous that joinder of all members is

2

impracticable; (2) there are questions of law and fact common to

3

the class; (3) the claims or defenses of the representative parties

4

are typical of the claims or defenses of the class; and (4) the

5

representative parties will fairly and adequately protect the

6

interests of the class.

7 8

Fed. R. Civ. P. 23(a); Rodgriguez v. Hayes, --- F.3d ---, 2010 WL 6394, *11 (9th Cir. Jan. 4,

9 10

2010). The requirements of "Rule 23(a) must be read liberally in the context of civil rights suits .

11 12

. . [t]his is especially true when the class action falls under Rule 23(b)(2) . . . " Jones v.

13 14

Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975); see also Gay v. Waiters' & Dairy Lunchmen's

15 16

Union, 549 F.2d 1330, 1334 (9th Cir. 1977) (holding that a trial court must "liberally interpret

17 18

and apply Rule 23" in the context of Title VII discrimination lawsuits). Additionally, the court

19 20

must determine that the putative class satisfies one of three class type requirements provided in

21 22

Rule 23(b). Because the named Plaintiffs in this case seek certification of a 23(b)(2) class, this

23 24

Court must conclude that "(2) the party opposing the class has acted or refused to act on grounds

25 26

that apply generally to the class, so that final injunctive relief or corresponding declaratory relief

27 28

is appropriate respective the class as a whole . . ." Fed. R. Civ. P. 23(b)(2).

29 30

Federal courts have routinely certified Rule 23(b)(2) plaintiff classes, similar to that

31 32

sought here, that challenge a state system of mental health care for Medicaid-eligible children.

33 34

See, e.g., Rosie D. v. Romney, 410 F. Supp. 2d 18, 22 (D.Mass. 2006) ("[T]he court . . . certified

35 36

a class of all current and future Medicaid-eligible children in Massachusetts under twenty-one

37 38

years of age, who were (or might become) eligible to receive, but were not receiving, what

39 40

Plaintiffs described as 'intensive home-based services.'"); Katie A., et al. v. Diana Bonta, 433 F.

41 42

Supp. 2d 1065, 1067 (C.D. Cal. 2006) ("[T]he Court certified the following class: [C]hildren in

43 44

California who (a) are in foster care or are at imminent risk of foster care placement; and (b)

45 46

have a mental illness or condition that has been documented or, had an assessment already been

47 48

conducted, would have been documented; and (c) who need individualized mental health

49 50

services, including but not limited to professionally acceptable assessments, behavioral support

51

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 6
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 7 of 27

1 and case management services, family support, crisis support, therapeutic foster care and other

2
3 necessary services in the home or in a home-like setting, to treat or ameliorate their illness or

4
5 condition."), overruled on other grounds, 481 F.3d 1150 (9th Cir. 2007); Risinger, 201 F.R.D. at

6
7 23 ("Plaintiffs seek a permanent injunction against Defendants' general policies, practices, and

8
9 procedures, which, Plaintiffs allege, fail to provide for prompt, reliable, and adequate in-home

10
11 mental health services. Such allegations make this case an appropriate candidate for Rule

12
13 23(b)(2) class certification."); see also List of Selected EPSDT Class Action Cases, attached as

14
15 Exhibit 2. Like these cases, the present case should proceed as a class action.

16

17 B. The Proposed Plaintiff Class Satisfies the Rule 23(a) Requirements

18

19

1. All Parties Agree that the Proposed Class Is so Numerous that Joinder of All

20

Members Is Impracticable

21

22

A class action may be maintained only if "the class is so numerous that joinder of all

23
24 members is impracticable." Fed. R. Civ. P. 23(a)(1). Impracticability addresses the expense and

25
26 burden, to the parties and the court, of litigating each claim individually, rendering the case

27
28 difficult or inconvenient without joining all members of the class. Harris v. Palm Springs Alpine

29
30 Estates, Inc., 329 F.2d 909. 913-14 (9th Cir. 1964). The party seeking class certification need

31
32 not identify the exact size of the proposed class in order to establish that joinder of all of its

33
34 members would be impracticable. See, e.g., Staton v. Boeing, 327 F.3d 938, 953 (9th Cir. 2003)

35
36 (certifying class of "approximately" 15,000 individuals).

37

38

Defendant has conceded that the proposed plaintiff class is so numerous as to make

39
40 joinder impracticable. See Defendant's Answer and Affirmative Defenses to Class Action

41
42 Complaint, dkt. 13 at ¶ 31-33. Indeed, courts in the Ninth Circuit have certified classes

43
44 containing far fewer members than the proposed class in this case. See, e.g., Rodriguez v.

45
46 Carlson, 166 F.R.D. 465, 472 (W.D. Wa. 1996) (class comprised of monolingual Spanish-

47
48 speaking workers and estimated at over 100 individuals satisfied the numerosity requirement); In

49
50 re Badger Mountain Irrigation Dist. Sec. Litig., 143 F.R.D. 693, 696-97 (W.D. Wash. 1992)

51

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 7
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 8 of 27

1 (reasonable estimate of 324 plaintiffs satisfied the numerosity requirement). The fluid nature of

2
3 the proposed plaintiff class also makes the joinder of all its members impracticable. See Jordan

4
5 v. L.A. County, 669 F.2d 1311, 1320 (9th Cir. 1982) (holding that the district court erred in

6
7 denying class certification for failure to establish numerosity because "the class is composed of

8
9 unnamed and unknown future black applicants who may be discriminated against . . . [and] [t]he

10
11 joinder of unknown individuals is inherently impracticable"), vacated on other grounds by 459

12
13 U.S. 810 (1982). Because the proposed plaintiff class is estimated at more than 75,000 children

14
15 across the state and will continue to add new, but currently unknown, members, it satisfies Rule

16
17 23(a)(1).

18

19

2. There are Questions of Law or Fact Common to All Members of the

20

Proposed Class

21

22

Rule 23(a)(2) requires that there be either "questions of law or fact common to the class."

23
24 Fed. R. Civ. P. 23(a)(2). In the Ninth Circuit, "Rule 23(a)(2) has been construed permissively."

25
26 Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1177 (9th Cir. 2007) (quoting Hanlon v. Chrysler

27 28

Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)).4 Thus, "[a]ll questions of fact and law need not be

29
30 common to satisfy the rule. The existence of shared legal issues with divergent factual predicates

31
32 is sufficient, as is a common core of salient facts coupled with disparate legal remedies within

33
34 the class." Id.; Staton v. Boeing, 327 F.3d 938, 953 (9th Cir. 2003) (quoting Hanlon, 150 F.3d at

35
36 1019). The commonality requirement is satisfied in a civil rights suit "where the lawsuit

37
38 challenges a system-wide practice or policy that affects all of the putative class members."

39
40 Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001).

41

42

"Commonality focuses on the relationship of common facts and legal issues among class

43
44 members." Dukes, 509 F.3d at 1177. A class action "is 'peculiarly appropriate' when the 'issues

45

46

47 48 49 50 51

4 Courts apply the commonality requirement liberally where, as here, the named plaintiffs seek certification of a 23(b)(2) class because a proposed class seeking declaratory or injunctive relief generally challenges policies and/or practices affecting an identifiable group in a similar way. See Von Colln v. County of Ventura, 189 F.R.D. 583, 591 (C.D. Cal. 1999) ("[W]hen addressing commonality of class members proposed under Rule 23(b)(2), a court may employ a liberal definition of commonality.")

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 8
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 9 of 27

1 involved are common to the class as a whole' and when they 'turn on questions of law applicable

2
3 in the same manner to each member of the class.'" Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,

4
5 155, 102 S. Ct. 2364, 72 L.Ed.2d 740 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-

6
7 01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). Rule 23 "does not require the named plaintiffs to be

8
9 identically situated with all other class members. It is enough if their situations share a common

10
11 issue of law or fact and are sufficiently parallel to insure a vigorous and full presentation of all

12
13 claims for relief." Cal. Rural Legal Assistance v. Legal Serv. Corp., 917 F.2d 1171, 1175 (9th

14
15 Cir. 1990) (quotation marks and citations omitted). Thus, Plaintiffs are not required to show that

16
17 members of the proposed class "share every fact in common or completely identical legal

18
19 issues," rather plaintiffs must present only "some shared legal issue or a common core of facts."

20
21 Rodriguez, 2010 WL 6394 at *12; see Dukes, 509 F.3d at 1177 (observing that the "commonality

22
23 test is qualitative rather than quantitative—one significant issue common to the class may be

24
25 sufficient to warrant certification"); Hanlon, 150 F.3d at 1019 (same).

26

27

A common allegation that a governmental defendant's general or systematic policy,

28
29 procedure, or practice is discriminatory or illegal suffices to establish commonality – even where

30
31 the effect of that policy, procedure, or practice on each class member may differ. See Walters v.

32
33 Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (finding that class-wide allegation of insufficient

34
35 notice by Immigration and Naturalization Services is sufficient to establish commonality despite

36
37 alleged factual distinctions in each class members' underlying document fraud claims); Arnold v.

38
39 United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994) (stating that

40
41 commonality is "met by the alleged existence of common discriminatory practices. The actions

42
43 of the defendant need not affect each member of the class in the same manner"). The Ninth

44
45 Circuit has held, specifically in the civil rights context, that "individual factual differences

46
47 among the individual litigants or groups of litigants will not preclude a finding of commonality."

48
49 Armstrong, 275 at 868 (affirming certification of a class of prisoners with disabilities despite

50

51

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 9
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 10 of 27

1 evidence showing different disabilities and accommodation needs because the entire class had a

2
3 common issue related to systemic policies and implementation).

4

5

Common questions of law and fact abound in this action, including:

6

7

• Whether the Department of Social Health and Services' ("DSHS") failed (1) to establish

8

policies, procedures, and practices to ensure Plaintiffs and members of the proposed

9 10 11

plaintiff class receive adequate notice of the intensive home and community based mental health services available under the EPSDT provisions of the Medicaid Act; (2) to provide

12

or arrange for Plaintiffs and members of the proposed plaintiff class to receive EPSDT

13

screening and assessment services that would otherwise determine the existence of any

14

physical or mental illnesses or conditions; and (3) to provide or arrange for Plaintiffs and

15

members of the proposed plaintiff class to receive the medically necessary intensive

16 17 18

home and community-based mental health services to treat or ameliorate their physical or mental illnesses or conditions and whether such failures violate the EPSDT mandate of

19

the Medicaid Act;

20

21

• Whether DSHS' failure to establish or maintain policies, procedures, or practices that

22

would prohibit improper reductions, terminations, or denials of medically necessary

23 24 25

intensive home and community-based mental health services to Medicaid-eligible children on the basis of their diagnoses, geographic location, eligibility and/or

26

qualifications for child welfare Division of Children and Family Services violates the

27

Comparability provisions of the Medicaid Act;

28

29

• Whether DSHS' failure to establish or maintain customs, policies, or practices that would

30

provide Plaintiffs and members of the proposed plaintiff class with adequate written

31 32 33

notice of reductions, terminations, and denials of Medicaid-funded intensive home and community-based mental health services and their rights to a pre-termination or reduction

34

fair hearing violates the Due Process provisions of the Medicaid Act and/or the Due

35

Process Clause of the Fourteenth Amendment of the United States Constitution;

36

37

• Whether DSHS' failure (1) to administer services, programs, and activities in the most

38 39 40

integrated setting appropriate to the needs of children who need intensive mental health services; (2) to make reasonable modifications in its policies, procedures, or practices that

41

would not fundamentally alter the nature of its services programs, or activities; (3) to

42

provide reasonable accommodations to allow Plaintiffs and members of the proposed

43

plaintiff class to participate fully in DSHS' programs and receive adequate services; and

44

(4) provide and support appropriate community-based placements in favor of requiring

45

Plaintiffs and members of the proposed plaintiff class to be confined in restrictive,

46 47

institutional settings in order to access necessary mental health services violates the

48

Americans with Disabilities Act and Section 504 of the Rehabilitation Act; and,

49

50

• Whether such claims are subject to any of Defendant's defenses including: a) whether

51

intensive home and community based mental health services are required services under

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 10
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 11 of 27

1

the EPSDT mandate; b) whether Defendant is required to arrange for or provide such

2

services or is only required to pay for covered services; c) whether such services are

3

subject to other State identified requirements such as the Access to Care standards and

4 5 6

whether plaintiffs' have or must exhaust all administrative remedies even if the subject services are not otherwise available or made known to plaintiffs or their practitioners; d)

7

whether alleged failures of third parties beyond the alleged control of Defendant obviate

8

Defendant's responsibilities; and e) whether the court has the ability to order the

9

requested relief or whether such relief must be denied because it would constitute illegal

10

spending in violation of RCW 43.135 or would otherwise usurp the rights of the

11

Washington State Legislature.

12

13

Because these issues are common to all proposed class members, the commonality

14

15 requirement has been satisfied. As discussed above, any differences that may exist in the way
16

17 that DSHS' policies, procedures, and practices affect the individual class members do not
18

19 undermine the finding of commonality. See Jordan v. L.A. County, 669 F.2d 1311, 1320 (9th
20

21 Cir.) ("[T]he legality of defendant's practices or policies will usually be a question common to
22

23 the class, and the existence of different factual questions with respect to various employees will
24

25 not defeat satisfaction of the commonality requirement."), vacated on other grounds, 459 U.S.
26
27 810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982).5 A common inquiry is the most efficient and
28

29 appropriate way to resolve the common factual and legal questions posed in this case; otherwise,
30

31 the prosecution of separate actions by individuals within the proposed class would risk
32

33 inconsistent or varying adjudications, establishing incompatible rules of law for the provision of
34

35 medically necessary mental health services to Medicaid-eligible children in Washington.
36

37

3. The Named Plaintiffs' Claims Are Typical of the Claims of the Proposed

38

Class

39

40

Under Rule 23, the claims of the class representatives must be typical of the claims of the

41

42 class. Fed. R. Civ. P. 23(a)(3); see Dukes, 509 F.3d at 1184. The purpose of this requirement is
43

44 to "assure that the interest of the named representative[s] aligns with the interests of the class."
45

46 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted). To
47

48 49 50 51

5 Like other EPSDT cases, this action does not require the Court to engage in individualized determinations of eligibility or service prescription. The lack of notice of EPSDT benefits, the absence of adequate screening and assessment procedures, and the wholesale lack of accessible, ongoing, and intensive home-based services for children in need can be determined without resort to individual treatment determinations by the Court.

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 11

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000

70787-0001/LEGAL17414611.3

Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 12 of 27

1 demonstrate "typicality," the named plaintiffs' claims must arise from a course of conduct "not

2
3 unique to the named plaintiffs' that has resulted in similar injury to other class members. Id

4

5

Similar to commonality, typicality does not require that each class member share the

6
7 same factual situation. The Supreme Court has recognized that "[t]he commonality and

8
9 typicality requirements of Rule 23(a) tend to merge." Id. Typicality exists where "'each class

10
11 member's claim arises from the same course of events, and each class member makes similar

12
13 arguments to prove the defendant's liability." Rodriguez, 2010 WL 6394 at *13 (quoting

14
15 Armstrong, 275 F.3d at 868); see Winkler v. DTE, Inc., 205 F.R.D. 235, 241 (D. Ariz. 2001)

16
17 (noting that "a claim is typical if it is based on the same event or course of conduct giving rise to

18
19 the claims of other class members and based on the same legal theory.") In such a situation,

20
21 "varying factual differences between the claims or defenses of the class and the class

22
23 representatives will not render the named representative's claim atypical." Jordan, 669 F.2d at

24
25 1321; see Dukes, 509 F.3d at 1843 ("Some degree of individuality is to be expected in all cases,

26
27 but that specificity does not necessarily defeat typicality.") "Like the commonality requirement,

28
29 the typicality requirement is 'permissive' and requires only that the representative's claims are

30
31 'reasonably co-extensive with those of absent class members; they need not be substantially

32
33 identical.'" Rodriguez, 2010 WL 6394 at *13 (quoting Hanlon, 150 F.3d at 1020); see

34
35 Lightbourn v. County of El Paso, 118 F.3d 421, 425 (5th Cir. 1997) ("The test for typicality, like

36
37 the test for commonality, is not demanding.")

38

39

Here, the claims of the named Plaintiffs are typical of the class and arise from the same

40
41 course of events as the claims of the proposed class and are based on the same or similar liability

42
43 arguments. Each of the named Plaintiffs is a member of the class, is under the age of 21 and (1)

44
45 meets the State of Washington's Title XIX Medicaid financial eligibility criteria, (2) suffers from

46
47 a mental illness or condition, (3) has a functional impairment that substantially interferes with or

48
49 limits his/her ability to function in the family, school or community setting, and (4) has been

50
51 recommended or would have been recommended medically necessary intensive home and

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 12
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 13 of 27

1 community-based mental health services to correct or ameliorate his/her mental illness or

2
3 condition. See, e.g. Complaint ¶¶ 19-28, 71-192, 203-212. The individual Plaintiffs, like the

4
5 proposed class as a whole, charge DSHS with violations of federal law due to its unlawful and

6
7 discriminatory policies, procedures, and practices and seek the same injunctive and declaratory

8
9 relief. Their claims therefore typify the claims of the class. See Risinger ex rel. Risinger v.

10
11 Concannon, 201 F.R.D. 16, 22 (D.Me. 2001) (holding that Rule 23(b)(2) class challenging

12
13 failure to provide adequate in-home mental health services to Medicaid-eligible children met the

14
15 typicality requirement as "Plaintiffs invoke the same Medicaid Act provisions that are invoked

16
17 on behalf of all class members, allege that they face the same systemic deficiencies that all class

18
19 members face, and seek to benefit from the same injunction sought on behalf of all class

20
21 members"); Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 63 (3d Cir. 1994) (holding that

22
23 district court abused its discretion in finding that proposed class challenging the provision of

24
25 child welfare services did not possess typicality; "because this suit seeks only declaratory and

26
27 injunctive relief, the named plaintiffs are simply not asserting any claims that are not also

28
29 applicable to the absentees").

30

31

4. The Named Plaintiffs and Their Attorneys Will Fairly and Adequately

32

Protect the Interests of the Class

33

34

Rule 23(a)(4) permits certification of a class only where "the representative parties will

35
36 fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). This

37
38 requirement has two elements: (1) the named plaintiffs do not have any conflicts of interest with

39
40 the proposed class and (2) the named plaintiffs must be represented by qualified and competent

41
42 counsel. Dukes, 509 F.3d at 1185.

43

44

As discussed above, the named Plaintiffs and putative class members share an obvious

45
46 and strong interest in pursuing their claims to address the deficiencies in DSHS' provision of

47
48 those mental health services mandated under the Medicaid Act. That the named Plaintiffs seek

49
50 statewide injunctive and declaratory relief against a single entity, DSHS, as opposed to personal

51

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 13
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 14 of 27

1 damages or other individualized relief, there is no risk that they possess any unique interests that

2
3 might cause them to litigate this matter in a way that would prejudice the absent class members.

4
5 See Baby Neal, 43 F.3d at 63 ("[P]laintiffs here seek only injunctive and declaratory relief; there

6
7 are no other claims that could compromise the named Plaintiffs’ pursuit of the class claims. . . .

8
9 There is no danger here that the named Plaintiffs have unique interests that might motivate them

10
11 to litigate against or settle with the defendants in a way that prejudices the absentees."). The

12
13 named Plaintiffs will fairly and adequately represent the interests of the class in the pursuit of

14
15 this relief.. See also, Declarations of the Named Plaintiffs and Guardians at ¶3.

16

17

Moreover, proposed class counsel are competent and qualified. Courts have recognized

18
19 that public interest attorneys with experience in protecting the interests of the poor adequately

20
21 represent class interests. See, e.g., Lopez v. Heckler, 572 F. Supp. 26, 31 (C.D. 1983), modified

22
23 on other grounds, 725 F.2d 1489 (9th Cir.), vacated and remanded on other grounds, 469 U.S.

24
25 1082 (1984). Co-counsel Disability Rights Washington is a federally-mandated non-profit

26
27 organization established to protect the rights and interests of people with disabilities and has

28
29 extensive experiences with Children's mental health issues in Washington state and extensive

30
31 experience litigation federal and state class action cases. Bailey Decl. ¶ 2-3, 5; see, e.g., 42

32
33 U.S.C. §§ 10801 et seq.; 42 U.S.C. § 15041; 29 U.S.C. § 794e; RCW 71A.10.080. Co-counsel

34
35 National Health Law Program and National Center for Youth Law are intimately familiar with

36
37 state and federal child welfare laws and have considerable experience representing plaintiffs in

38
39 child welfare class actions. Gardner Decl. ¶ 2-3, 5, and Perkins Decl. ¶ 2-3, 5. Co-counsel

40
41 Perkins Coie LLP is a large private law firm with substantial experience litigating a broad range

42
43 of complex and sophisticated civil matters in federal court, including class actions and social

44
45 justice cases. Foster Decl. ¶ 2-3, 6. Jointly, the defense team includes class counsel from Katie

46
47 A. v. Bonita, a pending lawsuit seeking intensive home and community based services in

48
49 California and Braam v. State of Washington, a class action challenging the foster care system in

50
51 Washington. By any measure Plaintiff's counsel will more than adequately represent the class.

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 14
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 15 of 27

1 C. The Proposed Class Satisfies Rule 23(b)(2) Because Defendant Has Acted on

2

Grounds Generally Applicable to the Class Making Final Injunctive and

3

Declaratory Relief Appropriate

4 5

Rule 23(b)(2) provides that a class action may be maintained if: "the party opposing the

6 7

class has acted or refused to act on grounds that apply generally to the class, so that final

8 9

injunctive relief or corresponding declaratory relief is appropriate respective the class as a whole

10 11

. . ." In interpreting this requirement, courts have held that where the primary purpose in

12 13

bringing the action is to seek injunctive pr declaratory relief, the action is property certifiable

14 15

under Rule 23(b)(2). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1195 (9th Cir. 2001).

16 17

The United States Supreme Court has recognized that civil rights cases against parties charged

18 19

with class-based discrimination are "prime examples" of actions under Rule 23(b)(2). Amchem

20 21

Prod., 521 U.S. at 614; see Walters, 145 F.3d at 1047 ("[T]he claims raised by the plaintiffs in

22 23

this action are precisely the sorts of claims that Rule 23(b)(2) was designed to facilitate. As the

24 25

Advisory Committee Notes explain, 23(b)(2) was adopted in order to permit the prosecution of

26 27

civil rights actions.") For example, the Ninth Circuit has held that class certification under Rule

28 29

23(b)(2) is appropriate where "class members complain of a pattern or practice that is generally

30 31

applicable to the class as a whole." Rodriguez, 2010 WL 6394 at *14 (quoting Walters, 145 F.3d

32 33

at 1047). "The fact that some class members may have suffered no injury or different injuries

34 35

from the challenged practice does not prevent the class from meeting the requirements of Rule

36 37

23(b)(2)." Id..

38 39

This case exemplifies a Rule 23(b)(2) class action because DSHS' policies, practices, and

40 41

procedures affect the proposed class generally. Indeed, DSHS' failure to satisfy its obligation to

42 43

provide or arrange for medically necessary intensive home and community-based mental health

44 45

services to all Medicaid-eligible children within the State has both created and defined the scope

46 47

of the proposed class. Moreover, as discussed above, Rule 23(b)(2) is specifically designed to

48 49

permit class actions seeking declaratory and injunctive relief in civil rights cases and federal

50 51

courts have repeatedly certified 23(b)(2) plaintiff classes that challenge a state's provision of

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 15
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Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 16 of 27

1 mental health services for Medicaid-eligible children. See, e.g., Rosie D., 410 F. Supp. 2d at 22;

2
3 Katie A., 433 F. Supp. 2d at 1067; Risinger, 201 F.R.D. at 23. Since the named Plaintiffs seek

4
5 only declaratory and injunctive relief to ameliorate the deficient provision of statewide services,

6
7 and the granting of such relief is appropriate for the proposed class as a whole, the Court should

8
9 certify this class pursuant to Rule 23(b)(2).

10

11 D. The Court Should Designate Plaintiffs' Counsel as Class Counsel

12

13

When a class is certified, the court must appoint class counsel. Fed. R. Civ. P. 23(g)(1).

14
15 The class certification order must also list these counsel. Fed. R. Civ. P. 23(c)(1)(B). The

16
17 Federal Rules provide four factors for the court to consider in appointing class counsel:

18

19

(i) the work counsel has done in identifying or investigating

20

potential claims in the action; (ii) counsel's experience in handling

21

class actions, other complex litigation, and the types of claims

22

asserted in the action; (iii) counsel's knowledge of the applicable

23

law; and (iv) the resoScurces that counsel will commit to

24

representing the class.

25
26 Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv).

27

28

Counsel for the named Plaintiffs qualify for appointment as class counsel under these

29
30 factors. Disability Rights Washington, the National Health Law Program, the National Center

31
32 for Youth Law, and Perkins Coie have committed extensive time and resources to investigating

33
34 and analyzing the claims of the named Plaintiffs and the proposed class. Bailey Decl. ¶ 6, 8,

35
36 Gardner Decl. ¶ 6, Foster Decl. ¶ 10 and Perkins Decl. ¶ 8. As discussed above, counsel

37
38 possesses extensive experience in class actions and complex civil litigation and has substantial

39
40 knowledge of state and federal child welfare laws. The Court should therefore appoint counsel

41
42 for the named Plaintiffs as class counsel in its class certification order.

43

44 E. Precertification Class Notice is not Required

45

46

Because the named Plaintiffs seek to certify a class under Rule 23(b)(2), notice to the

47
48 class is not required. Fed. R. Civ. P. 23(c)(2)(A); see Elliott v. Weinberger, 564 F.2d 1219, (9th

49
50 Cir. 1977), aff'd in relevant part, rev'd in part sub nom, California v. Yamasaki, 442 U.S. 682, 99

51

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 16
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 17 of 27

1 S.Ct. 2545, 61 L.Ed.2d 176 (1979). The need for notice is significantly reduced in a 23(b)(2)

2
3 class – as opposed to a 23(b)(3) class seeking individual damages – because only members of a

4
5 23(b)(3) class may request exclusion and the cost of providing notice "could easily cripple

6
7 actions that do not seek damages." Advisory Committee Notes to 2003 Amendments to Rule 23.

8

9

The Ninth Circuit has recognized that due process requires notice to absent class

10
11 members only when it is necessary to provide class members an opportunity to signify whether

12
13 representation by the named plaintiffs is fair and adequate or to otherwise intervene. Elliot, 564

14
15 F.2d at 1229. In a Rule 23(b)(2) class action seeking only injunctive or declaratory relief, "the

16
17 due process rights of absent class members generally are satisfied by adequate representation

18
19 alone." Crawford v. Honig, 37 F.3d 485, 487 n.2 (9th Cir. 1994); see Besinga v. U.S., 923 F.2d

20
21 133, 137 n.7 (9th Cir. 1991) (stating that while due process requires that absent members of a

22
23 23(b)(2) class seeking monetary relief be notified that their damage claims may be adjudicated,

24
25 "[w]hen only equitable relief is sought . . . the due process interests of absent members will

26
27 usually be safeguarded by adequate representation alone").

28

29

Notice is not necessary in this case, because the named Plaintiffs' claims are typical of

30
31 those of the class as a whole, the named Plaintiffs are adequate representatives of the class, the

32
33 class is represented by experienced counsel, and this case involves only claims for declaratory

34
35 and injunctive relief. See Elliot, 564 F.2d at 1229 (finding that notice is not required for a

36
37 nationwide 23(b)(2) class where the named Plaintiffs are adequate representatives with

38
39 experienced counsel); Stolz v. United Bhd. Of Carpenters & Joiners of Am., Local Union No.

40
41 971, 620 F. Supp. 396, 408 (D. Nev. 1985) (holding that notice is unnecessary for a 23(b)(2)

42
43 class where the named plaintiffs are adequate representatives of the class). Accordingly,

44
45 Plaintiffs request that the Court exercise its discretion to certify the class without requiring notice

46
47 to the unnamed class members, at least at this stage of the litigation.

48

49

50

51

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 17
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 18 of 27

1

IV. CONCLUSION

2 3

For the reasons set forth above, Plaintiffs respectfully request that the Court certify the

4 5

class described above, designate counsel for the named Plaintiffs as class counsel and certify the

6 7

proposed class without requiring notice to the unnamed class members.

8 9

DATED this 24th day of June, 2010.

10

11 /s/Regan Bailey

/s/Patrick Gardner

12 Regan Bailey, WSBA No. 39142

Patrick Gardner, CB No. 208199

13 reganb@dr‐wa.org

14 15 16

Susan Kas, WSBA No. 36592 susank@dr‐wa.org

17 DISABILITY RIGHTS WASHINGTON

pgardner@youthlaw.org Bryn Martyna, CB No. 239852 bmartyna@youthlaw.org Fiza Quraishi, CB No. 252033

18 315 5th Avenue South, Suite 850

fquraishi@youthlaw.org

19 Seattle, WA 98104

NATIONAL CENTER FOR YOUTH LAW

20 Telephone: (206) 324‐1521 21 Facsimile: (206) 957‐0729
22 23

405 14th Street, 15th Floor
Oakland, CA 94612 (510) 835‐8098

24
25 /s/Susan E. Foster 26 Susan E. Foster, WSBA No. 18030

/s/Jane Perkins Jane Perkins, SBN 104784

27 SFoster@perkinscoie.com

perkins@healthlaw.org

28 Frederick B. Rivera, WSBA No. 23008

29 30 31

FRivera@perkinscoie.com Travis A. Exstrom, WSBA No. 39309

32 TExstrom@perkinscoie.com

NATIONAL HEALTH LAW PROGRAM
211 N. Columbia Street Chapel Hill, NC 27514 Telephone: (919) 968‐6308

33 PERKINS COIE LLP

34 1201 Third Avenue, Suite 4800

35 Seattle, WA 98101‐3099

36 37 38

Telephone: (206) 359.8000 Facsimile: (206) 359.9000

39
40 ATTORNEYS FOR PLAINTIFFS

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MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 18
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 19 of 27

1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on this 24th day of June, 2010, I electronically filed the foregoing

4 5 6

with the Clerk of the Court using the CM/ECF system which will send notification of same to the following: Carrie Bashaw (CarrieB@atg.wa.gov), Sarah Coats (SarahC@atg.wa.gov), Bill G.

7 Clark (BillC2@atg.wa.gov), Eric Nelson (EricN1@atg.wa.gov), and Scott T. Middleton

8 (ScottM6@atg.wa.gov).

9

10

11

12

13 14

Legal

/s/Cathi Schleh Secretary

15

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17

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MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv01677-TSZ) – 19
70787-0001/LEGAL17414611.3

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 20 of 27 Page 20

Case 2:09-cv-01677-TSZ Document 29 Filed 06/24/10 Page 21 of 27 Page 21

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 Case 2:09-cv-01677-TSZ Document 60 Filed 07/23/10 Page 1 of 5

1

THE HONORABLE THOMAS S. ZILLY

2

3

4

5

6

7

8

9

10

11

12

13

UNITED STATES DISTRICT COURT

14

WESTERN DISTRICT OF WASHINGTON

15

AT SEATTLE

16

17

18 T.R.., by and through his guardian and next No. 2:09-cv-01677-TSZ

19 friend, R.R.; S.P., by and through her

20 mother and next friend, D.H.; C.A., by and ORDER GRANTING PLAINTIFFS'

21 through her mother and next friend, A.A.;

MOTION FOR CLASS CERTIFICATION

22 T.F., by and through her father and next

23 friend, D.F.; P.S., by and through his

24 mother and next friend, W.S.; T.V., by and

25 through his guardian and next friend. C.D.;

26 G.B., by and through her mother and next

27 friend, L.B.; E.H. by and through his

28 mother and next friend, C.H.; E.D., by and

29 through his mother and next friend, A.D.;

30 and L.F.S., by and through his mother and

31 next friend, B.S.,

32

33

Plaintiffs,

34

35

v.

36
37 SUSAN N. DREYFUS, not individually, 38 but solely in her official capacity as 39 Secretary of the Washington State 40 Department of Social and Health Services,

41

42

Defendant.

43

44

45

46

THIS MATTER comes before the Court on Plaintiffs’ Motion for Class Certification,

47
48 docket no. 28.

49

50

51

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv-01677-TSZ) – 1
70787-0001/LEGAL18270932.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 60 Filed 07/23/10 Page 2 of 5

1

Plaintiffs and Defendant have stipulated that certification of the following class is

2
3 currently appropriate:

4

5

All persons under the age of 21 who now or in the future:

6

7

(1) meet or would meet the State of Washington’s Title

8

XIX Medicaid financial eligibility criteria;

9

10

(2) are determined and documented by a licensed

11

practitioner of the healing arts operating within the scope of their

12

practice as defined by Washington state law, to have a mental

13

illness or condition, or had a screen or an assessment been

14

conducted by such practitioner, would have been determined and

15

documented to have a mental illness or condition;

16

17

(3) have a functional impairment, which substantially

18

interferes with or substantially limits the ability to function in the

19

family, school or community setting; and

20

21

(4) for whom intensive home and community based

22

services coverable under Title XIX Medicaid and eligible for

23

Federal Financial Participation, have been, or would have

24

been recommended by a licensed practitioner in order to correct or

25

ameliorate a mental illness or condition.

26

27

28 The Parties’ stipulation reserves rights to challenge class certification and the class definition

29

30 based upon ongoing discovery.

31

32

The Court finds that certification of the proposed class is appropriate under Federal Rule

33
34 of Civil Procedure 23(a) in that “(1) the class is so numerous that joinder of all members is

35
36 impracticable; (2) there are questions of law and fact common to the class; (3) the claims or

37
38 defenses of the representative parties are typical of the claims or defenses of the class; and (4)

39
40 the representative parties will fairly and adequately protect the interests of the class.” The Court

41
42 also finds that the allegations of the proposed class satisfy the requirement of Federal Rule of

43
44 Civil Procedure 23(b)(2) that “the party opposing the class has acted or refused to act on grounds

45
46 that apply generally to the class, so that final injunctive relief or corresponding declaratory relief

47
48 is appropriate respecting the class as a whole.” The Court therefore GRANTS plaintiffs’ motion

49

50

51

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv-01677-TSZ) – 2
70787-0001/LEGAL18270932.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 60 Filed 07/23/10 Page 3 of 5

1 for class certification, docket no. 28, and CERTIFIES the class as defined by the parties’

2
3 stipulation.

4

5

The representative named plaintiffs are T.R., by and through his guardian and next friend,

6
7 R.R.; S.P., by and through her mother and next friend, D.H.; C.A., by and through her mother

8
9 and next friend, A.A.; T.F., by and through her father and next friend, D.F.; P.S., by and through

10
11 his mother and next friend, W.S.; T.V., by and through his guardian and next friend. C.D.; G.B.,

12
13 by and through her mother and next friend, L.B.; E.H. by and through his mother and next friend,

14
15 C.H.; E.D., by and through his mother and next friend, A.D.; and L.F.S., by and through his

16
17 mother and next friend, B.S.

18

19

The Court appoints Disability Rights Washington, the National Health Law Program, the

20
21 National Center for Youth Law, and Perkins Coie as class counsel.

22

23

This order is without waiver of any right of any party to move to modify this order.

24
25 Defendant may file motions seeking to decertify the class, remove any of the named plaintiffs, or

26
27 to amend the class definition, as the issues or facts in the case are further identified or developed,

28
29 and to challenge the designation of multiple law firms if it appears that such designation is

30
31 unnecessarily increasing the cost of litigation or is otherwise interfering with the efficient

32
33 management of this case. Plaintiffs are not required to provide notice to the unnamed class

34
35 members.

36

37

DATED this 23rd day of July, 2010.

38

39

40 41 42

A

43 44

Thomas S. Zilly

45

United States District Judge

46

47

48

49

50

51

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv-01677-TSZ) – 3
70787-0001/LEGAL18270932.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 60 Filed 07/23/10 Page 4 of 5

1

2
3 FOR PLAINTIFFS:

4

5 /s/Regan Bailey

6 Regan Bailey, WSBA No. 39142

7 8 9

reganb@dr-wa.org Susan Kas, WSBA No. 36592

10 susank@dr-wa.org

11 DISABILITY RIGHTS WASHINGTON

12 315 5th Avenue South, Suite 850

13 Seattle, WA 98104 14 Telephone: (206) 324-1521 15 Facsimile: (206) 957-0729
16

17

18
19 /s/Susan E. Foster 20 Susan E. Foster, WSBA No. 18030

21 SFoster@perkinscoie.com

22 Frederick B. Rivera, WSBA No. 23008

23 FRivera@perkinscoie.com

24 25 26

Travis A. Exstrom, WSBA No. 39309 TExstrom@perkinscoie.com

27 PERKINS COIE LLP

28 1201 Third Avenue, Suite 4800

29 Seattle, WA 98101-3099

30 Telephone: (206) 359.8000 31 Facsimile: (206) 359.9000
32

33 ATTORNEYS FOR PLAINTIFFS
34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

/s/Patrick Gardner Patrick Gardner, CB No. 208199 pgardner@youthlaw.org Bryn Martyna, CB No. 239852 bmartyna@youthlaw.org Fiza Quraishi, CB No. 252033 fquraishi@youthlaw.org
NATIONAL CENTER FOR YOUTH LAW
405 14th Street, 15th Floor Oakland, CA 94612 (510) 835-8098
/s/Jane Perkins Jane Perkins, SBN 104784 perkins@healthlaw.org
NATIONAL HEALTH LAW PROGRAM
211 N. Columbia Street Chapel Hill, NC 27514 Telephone: (919) 968-6308

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv-01677-TSZ) – 4
70787-0001/LEGAL18270932.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 60 Filed 07/23/10 Page 5 of 5

1

2 3

FOR DEFENDANT:

4

5 6 7

ROBERT M. MCKENNA Attorney General

8

9 10 11 12 13 14 15 16 17 18 19 20

/s/ Carrie Bashaw CARRIE L. BASHAW, WSBA No. 20253 CarrieB@atg.wa.gov SARAH J. COATS, WSBA No. 20333 SarahC@atg.wa.gov BILL G. CLARK, WSBA No. 09234 BillC2@atg.wa.gov ERIC NELSON, WSBA No. 27183 EricN1@atg.wa.gov Assistant Attorneys General Attorneys for Defendant

21 22 23 24 25 26

Office of the Attorney General 7141 Cleanwater Drive SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

27 28

ATTORNEYS FOR DEFENDANT

29

30

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50

51

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (No. 2:09-cv-01677-TSZ) – 5
70787-0001/LEGAL18270932.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 1 of 56

1

THE HONORABLE THOMAS S. ZILLY

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

T.R., by and through his guardian and next

7 friend, R.R.; S.P., by and through her mother and

next friend, DH; C.A., by and through her

No. 2:09-cv-01677-TSZ

8 mother and next friend, A.A.; T.F., by and

through her father and next friend, D.F.; P.S., by

9 and through his mother and next friend, W.S.;

T.V., by and through his guardian and next

FIRST AMENDED CLASS ACTION

10 friend, C.D.; E.H. by and through his mother and COMPLAINT FOR INJUNCTIVE AND

next friend, C.H.; E.D., by and through his

DECLARATORY RELIEF

11

mother and next friend, A.D.; and L.F.S., by and through his mother and next friend, B.S.

CLASS ACTION

12

Plaintiffs,

13 v.

14 SUSAN N. DREYFUS, not individually, but solely in her official capacity as Secretary of the
15 Washington State Department of Social and Health Services; and J. DOUGLAS PORTER,
16 not individually, but solely in his official capacity as the Director of the Washington State
17 Health Care Authority,

18

Defendants.

19 The named Plaintiffs herein, by and through their counsel, and on behalf of themselves
20 and the class they represent, and with the opposing party's written consent to file an amended 21 pleading, allege as follows:

22

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 1 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 2 of 56

1

I. BRIEF STATEMENT OF THE CASE

2

1. This Complaint asserts a class action lawsuit to enforce the rights of

Washington’s Medicaid eligible children under the age of 21, with mental health needs, to 3

receive the intensive home and community-based mental health services necessary to correct or
4 ameliorate their mental health conditions.

5

2. Since at least the year 2002, Washington’s Department of Social and Health

6 Services (“DSHS”) has commissioned and issued numerous studies and reports that confirm the

7 inadequacy of the State’s current system of mental health care for Washington’s Medicaid

8 children and that recommend the wide-spread adoption of intensive home and community-based

9 mental health services (“Intensive HC-based Services”). Yet, to date, Washington’s Medicaid children have little or no access to such services.
10 3. The State’s failure to ensure that Washington’s Medicaid eligible children are
11 provided necessary, Intensive HC-based Services violates: (1) the Early and Periodic Screening,
12 Diagnostic and Treatment (“EPSDT”) provisions of Title XIX of the federal Social Security Act
13 (“Medicaid Act”); and (2) the Integration Mandate of the Americans with Disabilities Act (the

14 “ADA”) and Rehabilitation Act.

15

4. Within Washington’s Medicaid system, many children with significant mental

16 health needs can only access a limited tool kit of weekly office-based therapy and medication
management. If those limited services are insufficient, the only option generally available for 17
these children is hospitalization in an acute care psychiatric hospital or placement in a long term 18
institutional mental health facility.

19

5. The named Plaintiffs in this action are ten children between the ages of nine and

20 17 who suffer from various psychiatric and behavioral disorders. They and the Plaintiff class

21 cannot access critical Intensive HC-based Services due to Defendants’ failure to provide them

22 with information and notice of their right to access such services, failure to administer adequate

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 2 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 3 of 56

1 screening and assessments to address the children’s community mental health needs, and failure

2 to manage the State’s Medicaid mental health system so as to ensure that these children actually
have access to and are provided the Intensive HC-based Services necessary to correct ameliorate 3
their mental health conditions. 4
6. As a result of the Defendants’ failure to arrange and provide for necessary 5 Intensive HC-based Services, the named Plaintiffs and thousands of other similarly situated
6 children have suffered: a) family separation and instability, including homelessness, eviction,

7 foster care placement, and out-of-state placement; b) repeated and avoidable hospitalizations; c)

8 unnecessary and harmful juvenile detention; d) segregation through unnecessary, prolonged and

9 often harmful institutionalization; and e) worsening mental and physical health conditions contributing to their decline socially, academically and in daily living.
10 7. Plaintiffs and the class of children they represent, are cycling in and out of
11 hospitals, juvenile detention centers, long-term psychiatric institutions, and foster care
12 placements that may be hundreds of miles away from their homes and families. Children should
13 grow up at home, not in institutions, and the revolving door of institutionalization and lack of

14 services must end.

15

8. Three of the named Plaintiffs are currently institutionalized; five have recently

16 been discharged after almost a year or more of institutionalization and are currently being
deprived of necessary post discharge services that would allow them to remain safely at home. 17
Each of these children has experienced multiple hospitalizations or institutionalization. The 18
remaining two named Plaintiffs have avoided hospitalization or institutionalization but have been

19 denied the Intensive HC-based Services they need to address their significant mental health

20 symptoms of self harming behaviors and threatened suicide. If these children do not receive

21 immediate treatment they are at high risk of institutionalization and will join the other named

22 Plaintiffs in the cycle of institutionalization and denial of services.

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 3 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 4 of 56

1

9. This failure to provide intensive HC-based Services has decreased the chance that

2 each of these children, and the class they represent, will become independent and productive
adults. 3
10. The named Plaintiffs seek declaratory and injunctive relief to enforce the 4
Medicaid Act, the Americans with Disabilities Act, the Rehabilitation Act and the Fourteenth 5 Amendment to the United State’s Constitution so that Intensive HC-based Services will be
6 available to them and others similarly situated.

7

II. JURISDICTION AND VENUE

8

11. This class action for declaratory and injunctive relief arises under 42 U.S.C. §§

9 1983 and 1988, the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Defendants are state actors
10 whose actions giving rise to this suit were under color of state law.
11 12. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 and 1343(a).
12 Plaintiffs’ claims for declaratory and injunctive relief are authorized under 28 U.S.C. § 2201 and
13 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure.

14

13. Venue is appropriate in the Western District of Washington pursuant to 28 U.S.C.

15 § 1391(b) because Defendants are sued in their official capacity and perform their official duties
16 by and through offices within the District and thus resides therein, and a substantial part of the
events and omissions giving rise to the claims herein occurred in this District. Many of the 17
named Plaintiffs also reside in this District. 18
III. INTRODUCTORY STATEMENT 19
14. Historically, children with intensive mental health care needs were either treated 20 in large institutional asylums or were left untreated and faced a future of juvenile detention and
21 adult incarceration, homelessness or ever declining psychological, physical and social

22 conditions. There is now widespread agreement among children’s mental health experts that

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 4 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 5 of 56

1 these restrictive, institutional treatment centers pose additional risks and can be a harmful

2 environment for children. By contrast, years of research and clinical experience have proven that
intensive home and community-based mental health services are both successful and cost 3
effective. Such services are now relied upon as a necessary treatment modality even for children 4
with the most severe emotional and behavioral problems. As a result, courts around the country 5 have required that state Medicaid programs ensure the provision of Intensive HC-based Services
6 under Medicaid’s EPSDT requirements. And, recognizing their legal obligation and the

7 effectiveness of such services, several states have voluntarily reformed their systems to ensure

8 that such services are made available to their Medicaid children and youth.

9

15. DSHS has repeatedly received recommendations for, and has itself recognized the

need for, wide-spread adoption and expansion of Intensive HC-based Services but has failed to 10
implement the necessary systemic changes to provide for the delivery of these services statewide. 11
While pilot programs exist, they are available only to a fraction of the population and are often

12 funded by non-Medicaid funds. Other services may become available only if the child’s parent

13 relinquishes custody to the foster care system, tearing the child away from a caring and loving

14 family environment and introducing further instability. And, while a few community mental

15 health providers offer limited home and community-based services to Medicaid children, these
16 services are frequently inadequate and offered only to a privileged few or in restrictive circumstances.
17 16. By failing to create and support intensive services in children’s homes and
18 communities, and only offering intensive services in restrictive institutional settings, the system
19 is placing Plaintiffs and the members of the Plaintiff class at risk of (and in many cases ensuring)

20 avoidable psychiatric hospitalizations or commitment to the juvenile delinquency system.

21

17. The cost to taxpayers of failing to provide necessary treatment and services to

22 children is well documented: inadequate care leads to a worsening of symptoms, with costlier

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 5 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

Disability Rights Washington 315 5th Avenue South, Suite 850
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1 consequences requiring more expensive responses. The cost in lost opportunities to the children

2 themselves— through higher school drop out rates, involvement in the juvenile and criminal
justice systems, and a very real prospect of a lifetime of cycling in and out of state psychiatric 3
hospitals —cannot be calculated. 4
18. The harm to the named Plaintiffs and to the Plaintiff class is irreparable. While 5 the Defendants delay systemic reform, the childhood of each of the named Plaintiffs and Plaintiff
6 class members is literally slipping away as they spend days, weeks, months, and years in

7 institutions, detention centers, and out of home placements far from their families and

8 communities. Injunctive and declaratory relief are necessary and appropriate because absent

9 relief ensuring that Plaintiffs are provided necessary and legally required services, the named

Plaintiffs and the class they represent will continue to suffer as a result of Defendants’ continued 10

violations of their legal rights.

11

IV.

PARTIES

12 A. The Plaintiff Children

13

19. T.R. is a ten-year-old boy from King County with significant mental health care

14 needs. Although his treatment team recognizes that his condition will only worsen in an

15 institutional environment, he is unable to access the intensive home and community-based
16 mental health services that would allow him to safely return home. Instead he has remained confined for the last nine months at the state psychiatric hospital for children on the grounds of
17 Western State Hospital. T.R. brings this action through his sister, legal guardian and next friend,
18 R.R. T.R. is a Medicaid recipient, for whom Defendants have failed to arrange and provide for
19 necessary Intensive HC-based Services, in King County, Washington.

20

20. S.P. is a 16-year-old girl from Spokane County, Washington with significant

21 mental health care needs. S.P. was recently discharged from an inpatient psychiatric facility and,

22 like the five times she had been previously discharged, was denied the Intensive HC-based

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1 Services that she requires to remain safely at home. As a result, shortly thereafter she was
2 recommitted and is currently institutionalized. S.P. brings this action by and through her mother and next friend, D.H. S.P. is a Medicaid recipient for whom Defendants have failed to arrange
3 and provide for necessary Intensive HC-based Services, in Spokane County, Washington.
4 21. C.A. is a 15-year-old girl from Island County, Washington with significant mental
5 health care needs. By the time she was 14, C.A. had been hospitalized three times due to 6 depression and a suicide attempt, and she had begun cutting herself. Although she can be treated
7 at home with Intensive HC-based Services, she is currently institutionalized. C.A. brings this
8 action by and through her mother and next friend, A.A. C.A. is a Medicaid recipient for whom
9 Defendants have failed to arrange and provide for necessary Intensive HC-based Services in Island County, Washington.
10 22. T.F. is a 15-year-old girl from Spokane County, Washington with significant
11 mental health care needs. In order to receive Intensive HC-based Services, T.F. is currently
12 placed in a foster home in Kennewick, Washington, over 150 miles away from her home and
13 family. Due to the lack of available Intensive HC-based Services, she has been in out-of-home
14 placements and institutions since she was ten years old. T.F. brings this action by and through
15 her father and next friend, D.F. T.F. is a Medicaid recipient, for whom Defendants have failed to 16 arrange and provide for necessary Intensive HC-based Services, in Spokane County,
Washington. 17
23. P.S. is a 17-year-old boy from King County, Washington with significant mental 18
health care needs. Because P.S. has been repeatedly denied necessary Intensive HC-based 19 Services, he has spent his childhood bouncing between institutions, hospitals, and juvenile
20 detention. P.S. brings this action through his mother and next friend, W.S. P.S. is a Medicaid
21 recipient, for whom Defendants have failed to arrange and provide for necessary Intensive HC-
22 based Services in King County, Spokane County, and Yakima County, Washington.

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1

24. T.V. is an eleven-year-old boy from Spokane County, Washington with

2 significant mental health care needs. After a year at the state psychiatric hospital for children,

T.V. was recently discharged and is currently being denied the step-down Intensive HC-based 3
Services he needs to prevent relapse. T.V. brings this action by and through his legal guardian, 4
C.D. T.V. is a Medicaid recipient, for whom Defendants have failed to arrange and provide for
5 necessary Intensive HC-based Services, in Spokane County, Washington.

6

25. E.H. is a 15- year-old boy from Whitman County, Washington with mental

7 health care needs. In spite of frequent incidents of self-harm, attempted suicide, and threats to

8 others, E.H. was recently discharged from an institution and has yet again been denied the

9 Intensive HC-based Services that would stabilize him in his home. E.H. brings this action by

and through his mother and next friend, C.H. E.H. is a Medicaid recipient, for whom Defendants 10
have failed to arrange and provide for necessary Intensive HC-based Services, in Whitman 11
County, Washington.

12

26. E.D. is a ten-year-old boy King County, Washington with significant mental

13 health care needs from. E.D. has never been institutionalized, but he has serious and dangerous

14 unmet mental health needs that are placing him at risk of falling into the vicious cycle of

15 hospitalizations that his fellow named Plaintiffs have suffered. E.D. brings this action by and
16 through his mother and next friend, A.D. E.D. is a Medicaid recipient for whom Defendants have failed to arrange and provide for necessary Intensive HC-based Services in King County,
17 Washington.
18 27. L.F.S. is a nine-year-old boy from Spokane County, Washington with mental
19 health care needs. L.F.S. has been exhibiting severe mental health symptoms for the last five

20 years, but has yet to receive an adequate assessment of his condition or Intensive HC-based

21 Services. L.F.S brings this action by and through his mother and next friend, B.S. L.F.S. is a

22

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1 Medicaid recipient, for whom Defendants have failed to arrange and provide for necessary

2 Intensive HC-based Services in Spokane County, Washington.
B. The Defendants 3
28. Susan N. Dreyfus is Secretary of the Washington State Department of Social and 4
Health Services. Secretary Dreyfus is named solely in her official capacity as DSHS Secretary 5 for declaratory and prospective injunctive relief. Until July 1, 2011, DSHS administered
6 Washington’s Medicaid program. Secretary Dreyfus is the designated State Mental Health

7 Authority under Washington’s Community Mental Health Services Act, RCW 71.24. RCW

8 71.24.035. Secretary Dreyfus’s duties include assuring access to mental health treatment

9 services for children, RCW 71.24.035. 29. J. Douglas Porter is the Director of the Washington State Health Care Authority
10 (“HCA”). Director Porter is named solely in his official capacity as the Director of the
11 Washington HCA for declaratory and prospective injunctive relief. As of July 1, 2011, the HCA
12 Director is the official within the executive branch of Washington State with final decision-
13 making authority over matters relating to Washington’s Medicaid program, RCW 71.24.035.

14

30. Secretary Dreyfus and Director Porter each have responsibilities for ensuring that

15 Washington’s Medicaid and mental health services are administered in a manner consistent with
16 state and federal law. V. THE CLASS ACTION ALLEGATIONS
17 31. This action is brought as a statewide class action pursuant to Fed. R. Civ. P. 23(a)
18 and 23(b)(2). The proposed class consists of all current or future Medicaid-eligible residents of
19 Washington under the age of 21 who have or may in the future have a mental illness or condition

20 and who need, or may in the future need, but are not receiving, intensive home and community-

21 based mental health services in order to correct or ameliorate their mental illness or condition.

22

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1

32. The class is so numerous that joinder of all members is impracticable. By way of

2 example, DSHS data shows that there are more than 75,000 children between the ages of zero
and 17 who are low-income with a mental health diagnosis in the moderate to severe range and 3
thus would likely benefit from Intensive HC-based Services that are routinely unavailable 4
statewide. Plaintiff class, which includes all Medicaid-eligible children under the age of 21, is 5 larger than this estimate. Furthermore, the class is fluid in that new members are regularly
6 created.

7

33. All members of the class share common issues of law and fact with respect to

8 Defendants’ obligation to ensure that Washington’s Medicaid eligible children are provided

9 legally mandated Intensive HC-based Services required under the EPSDT provisions of the
federal Medicaid Act, the Integration Mandate of the ADA and the Rehabilitation Act, and that 10
such children are receiving notice of their rights under Medicaid. 11
34. The claims of the named Plaintiffs are typical of the claims of the class they
12 represent.

13

35. Plaintiffs will fairly and adequately protect the interests of the class they

14 represent. Plaintiffs know of no conflict of interest among the class members, and have a

15 personal and clearly defined interest in vindicating their rights and the rights of the class

16 members they represent to obtain necessary Intensive HC-based Services and notice of their
rights under Medicaid. The relief the named Plaintiffs seek will inure to the benefit of the 17
Plaintiff class as a whole. The Plaintiffs are represented by attorneys experienced in federal class 18
action litigation and knowledgeable in the areas of disability and Medicaid law.

19

36. Prosecution of separate actions by individual class members would create a risk of

20 inconsistent or varying adjudications with respect to individual class members which would

21 establish incompatible standards of conduct or could as a practical matter be dispositive of the

22

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1 interests of the other members or substantially impair or impede their ability to protect their

2 interests.

37. Defendants’ ongoing actions and omissions have affected and will affect the class 3

generally, thereby making appropriate final injunctive and declaratory relief with respect to the
4 class as a whole.

5

VI. STATEMENT OF FACTS

6 A. Statutory Background

7

The Federal Medicaid Act and the EPSDT Mandate

8

38. Medicaid is a cooperative federal and state funded program authorized and

9 regulated pursuant to Title XIX of the Social Security Act (“Medicaid Act”), providing for a

medical assistance program for certain groups of low-income persons. See 42 U.S.C. § 1396, et 10
seq. One of the purposes of the Medicaid program is to provide services to help such families 11
and individuals attain or retain the capability for independence or self-care. Id.

12

39. State participation is voluntary; however, states that choose to accept federal

13 funding and participate in the Medicaid program must adhere to the minimum federal

14 requirements set forth in the Social Security Act, as amended, and its implementing regulations,

15 42 U.S.C. § 1396 et seq. Through the Medicaid program, states receive federal matching funds
16 for their own programs in the form of reimbursements by the federal government for a portion of the cost of providing Medicaid benefits.
17 40. The Medicaid Act mandates that states provide Early and Periodic Screening
18 Diagnostic and Treatment (EPSDT) services to Medicaid eligible children under the age of 21.
19 The EPSDT mandate obligates states to ascertain children’s physical and mental impairments,

20 and to arrange for or provide such health care, treatment, or other measures that are necessary to

21 treat or ameliorate impairments and conditions, 42 U.S.C. § 1396a(a)(10)(A); 42 U.S.C.

22

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1 § 1396d(a)(4)(B). EPSDT was created to be the “nation’s largest preventative health program

2 for children.” H.R. 3299, 101st Cong. § 4213 (1989).

41. Under the Medicaid Act, every participating state must implement an EPSDT 3
program consisting of the following services: 4
a. informing all persons in the state who are under the age of 21 and eligible for 5
medical assistance of the availability of early and periodic screening,

6

diagnostic and treatment services as described in 42 U.S.C. § 1396d®;

7

b. providing or arranging for the provision of such screening services in all

8

cases where they are requested; and

9

c. providing or arranging for corrective treatment the need for which is

10

disclosed by such child health screening services. 42 U.S.C. § 1396a(a)(43).

42. Under EPSDT, states must provide and arrange for all of the treatment services

11 listed in 42 U.S.C. § 1396d(a) for EPSDT eligible children when necessary to correct or

12 ameliorate a psychiatric, behavioral, or emotional condition of a child or youth under the age of

13 21.

14

43. Home health care services, 42 U.S.C. § 1396d(a)(7); rehabilitative services, 42

15 U.S.C. § 1396d(a)(13); case management services, 42 U.S.C. §§ 1396d(a)(19), 1396n(g); and

16 personal care services, 42 U.S.C. § 1396d(a)(24) are among the services listed in 42 U.S.C.
§ 1396d(a) and encompass Intensive HC-based Services. Courts have held that intensive home 17
and community-based mental health services are covered Medicaid services that must be 18
provided by the state under the EPSDT mandate (see, e.g., Rosie D. v. Romney, 410 F. Supp.2d
19 18 (D. Mass 2006)).

20

44. While states may adopt managed care concepts, contract with entities to oversee

21 the delivery of services, and arrange services through provider networks, the states remain

22 responsible for ensuring compliance with all relevant Medicaid requirements, including the

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1 mandates of the EPSDT program. 42 U.S.C. §§ 1396a(a)(5), 42 U.S.C. § 1396u-2; 42 U.S.C.

2 § 1396a(a)(43). The state must ensure that the managed care entity has the capacity to offer the
full range of necessary and appropriate preventive and primary services for all enrolled 3
beneficiaries. 42 U.S.C. § 1396u-2(b)(5). 4
45. In addition to the EPSDT mandate, states must comply with the Constitutional 5 Due Process requirements under the Fourteenth Amendment, the Medicaid Act’s due process
6 requirements and comparability requirements. U.S. Const. amend. XIV; 42 U.S.C.

7 § 1396a(a)(3); 42 U.S.C. § 1396a(a)(10)(B).

8

The Americans with Disabilities Act and the Integration Mandate

9

46. Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et

seq., prohibits public entities from discriminating against or excluding a qualified individual with 10
a disability from enjoying or participating in the benefits of services, programs, or activities of 11
the public entity on the basis of disability. 42 U.S.C. § 12132; 28 C.F.R. § 35.130.

12

47. Regulations promulgated to implement Title II of the ADA require public entities

13 to “provide services, programs, and activities in the most integrated setting appropriate to the

14 needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The Medicaid program

15 is a public entity, and as such Medicaid services must be provided in the most integrated setting
16 appropriate to the individual’s needs. 48. The United States Supreme Court has determined that unnecessary
17 institutionalization constitutes discrimination and that Title II requires states to “provide
18 community-based treatment for persons with mental disabilities when 1) the State’s treatment
19 professionals determine that such placement is appropriate, 2) the affected persons do not oppose

20 such treatment, and 3) the placement can be reasonably accommodated, taking into account the

21 resources available to the State and the needs of others with mental disabilities.” Olmstead v.

22 L.C., 527 U.S. 581, at 607 (1999).

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1 B. Washington’s Delivery of Medicaid Funded Mental Health Services for Children

2

49. Washington has chosen to participate in the Medicaid program. RCW

43.20A.010. As a result, it receives billions of dollars every year from the federal government to 3

fund the State’s program. Indeed, approximately 50-65% of every dollar spent by the State on its
4 Medicaid program is funded by the federal government.

5

50. In addition to the standard Medicaid funding received from the federal

6 government, the State of Washington has or shall receive up to an additional $339 million from

7 the federal government as part of an increase in the percentage of Medicaid funded pursuant to

8 the stimulus package enacted as part of the American Recovery and Reinvestment Act of 2009

9 (Pub. L. No. 111-5) (“ARRA”). These additional federal funds are designed to help states support their Medicaid programs by relieving budgetary pressure on state governments during
10 difficult economic times.
11 51. States that choose to accept federal funding and participate in the Medicaid
12 program must designate a “single state agency” to administer the Medicaid program at the state
13 level. 42 U.S.C. § 1396a(a)(5). In Washington, DSHS is the single state agency that is

14 designated to administer Washington’s Medicaid program. Although Medicaid allows states to

15 provide mandatory Medicaid services through contractors, DSHS remains responsible for

16 ensuring that the mandates of the Medicaid Act are met, including EPSDT.
52. DSHS is authorized under state law to “make grants and/or purchase services 17
from counties, combinations of counties, or other entities, to establish and operate community 18
mental health programs.” RCW 71.24.030.

19

53. The federal government has waived specific Medicaid provisions to allow DSHS

20 to implement a pre-paid capitated mental health program for individuals with significant mental

21 health needs. Under this capitated mental health waiver, DSHS may pre-pay fixed “capitated”

22 amounts to geographically designated Regional Support Networks (RSNs), who in turn locally

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1 administer community mental health services to Medicaid eligible individuals who meet specific

2 access to care standards.
54. The capitated mental health waiver does not permit DSHS to deny, reduce, or 3
terminate services listed in 42 U.S.C. § 1396d(a) to Medicaid children for reasons not relating to 4
each child’s individual needs. The waiver only permits DSHS to provide for additional services 5 to individuals enrolled on the waiver, although these services are not otherwise available to the
6 general Medicaid population.

7

55. The capitated mental health waiver did not affect the State’s obligation under the

8 EPSDT mandate to ensure that children have access to all services listed in 42 U.S.C. § 1396d(a)

9 if necessary to correct or ameliorate their conditions. Thus, these services must be provided
regardless of whether the children’s conditions otherwise meet the access to care standards 10
applicable to the managed care program. 11
56. The waiver also did not affect the Defendants’ obligations under the Due Process
12 provisions of the Medicaid Act.

13

57. Washington’s Medicaid State Plan and capitated mental health waiver provide

14 coverage for intensive home and community-based mental health services such as intensive care

15 coordination, comprehensive home assessment, mobile crisis intervention, home and

16 community-based crisis stabilization, intensive home and community-based behavioral and
therapeutic services for children and their families, training on independent living, social and 17
communication skills in a natural environment, personal care services, and respite, among other 18
services or supports.

19

58. Under its capitated mental health waiver, DSHS contracts directly with

20 independent RSNs (currently totaling 13) to administer mental health services in their

21 communities. RCW 71.24.035(2); WAC 388-865-0200. In turn, each of the RSNs subcontract

22

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1 with various licensed community mental health agencies and/or health care service providers to

2 provide mental health services to eligible recipients within each region.
59. Secretary Dreyfus’s responsibilities with respect to the RSNs include, but are not 3
limited to: 1) developing and adopting rules establishing state minimum standards for the 4
delivery of mental health services by licensed services providers and RSNs; 2) establishing a 5 standard contract or contracts for RSNs; 3) entering into contracts with RSNs; 4) assuring that
6 the special needs of children and low-income persons are met; and 5) denying all or part of the

7 funding allocations to RSNs based upon formal findings of noncompliance with the terms of the

8 RSNs. RCW 71.24.035.

9

60. The RSNs’ obligations include: 1) contracting as needed with licensed service

providers, or in the absence of a licensed service provider entity, becoming a licensed service 10
provider entity for the purpose of providing services not available from licensed service 11
providers; 2) monitoring and performing biennial fiscal audits of licensed service providers who

12 have contracted with the regional support network to provide services; and 3) assuring that the

13 special needs of children and low-income persons are met. RCW 71.24.045.

14

61. DSHS has been aware since at least 2002 that its RSN system was failing to

15 adequately meet the mental health needs of Washington’s Medicaid children. See JLARC 2002
16 Children’s Mental Health Study Report 02-5, p. 9 (“This study finds that Washington has not met the Legislature’s intent to establish a coordinated, efficient and effective system of public
17 mental health care for children”). Yet, the State has taken no action to correct this failing.
18 Indeed, as recently as April 2009, another report prepared for DSHS described the RSN system
19 as “a system that has high levels of regional variation, limited access to care, a lack of

20 standardized care management and unclear roles and authority between state agencies, the RSNs

21 and some of the provider systems.” See Improving Care: Options for Redesign of Washington’s

22 Mental Health System (April 2009).

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1

62. DSHS has similarly known for years that many of Washington’s Medicaid

2 children are not receiving the Intensive HC-based Services they need and that these children are

underserved by the limited array of mental health services made available to them. Repeatedly, 3
DSHS has received and generated reports confirming and reiterating the State’s ongoing failure 4
to provide Intensive HC-based Services, and the resulting harm to Washington’s children. For
5 example:

6

a. Capacity and Demand Study for Inpatient Psychiatric Hospital and Community

7

Residential Beds Final Report (November 2004). As early as 2004, DSHS

8

acknowledged that community-based services are essential to prevent harm to

9

children:

10

“The expansion of community ba sed services for children and adolescents is essential to minimize the need for foster care, residential,

11

or inpatient services as well as to p romote effective integration back into the community once an individual ha s left any of these treatm ent

12

alternatives…Community based services can minimize these disruptions and the corresponding risks (e.g. traum a from separation) that may occur

13

with inpatient and residential treatment options while also offering effective outcomes and comparatively lower cost of care.”

14

b. Children’s Acute and Non-Acute Inpatient Psychiatric and Residential Treatment

15

White Paper (August 2006). This DSHS white paper contained the following

16

stark conclusions:

17

1) “Program shortages and inc onsistencies in loc al community

(RSN) intensive community-based care an d diversion

18

resources [to divert children from institutionalization] result

in acute co mmunity hospitalizations and for those who do

19

not improve, or frequently decompensate, the need fo r

Children’s Long-Term Inpatient Programs (CLIP);” and

20

2) “The same shortages in co mmunity based alter natives that

21

increase the need for CLIP adm issions, result in lengthened stays when there are few or no “step -down”, or intermediate

22

care resources for youth and th eir families to utilize postdischarge [from a CLIP facility].”

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1 c. CLIP System Improvement Workgroup (September 2007). This workgroup paper
2 documented similar observations about the delivery of community mental health
3 services to children:
4

1) “Adequate assessments are not availab le to quickly access in tensive

5

services to prevent long term treatment;”

6

2) There is “[l]i mited coordination, policy and agreem ent among service

providers/systems;”

7

3) There is a “[l]ack of effectiv e coordination for pre & post services [for

8

children before and after they are institutionalized];”

4) There is “[n]o aftercare in the community including discharge planning

9

by/with allied systems;”

10

5) There are “[p]rogrammatic limitations in meeting each child’s needs;” and

11

6) “[The] System[s] needs [are] placed over child and family needs.”

12

d. Intensive Children’s Mental Health Services Summary Report (Fall 2009). In this

report DSHS’s Mental Health Division identified several significant problems 13

with its delivery of mental health services for children, including:

14

1) “a limited array of intensive community and family-based services for

15

children and youth;”

16

2) “insufficient transitional programs to support successful returns to the community;” and

17

3) “insufficient targeted treatment and security options for special

populations such as youth with co-occurring developmental disabilities

18

and mental health needs, and highly aggressive youth.”

19

To address these issues, a workgroup consisting of DSHS officials and other

20

stakeholders recommended expanding transition and aftercare services for

children being discharged from CLIP facilities and 24/7 mobile and in-home 21
crisis services connected to longer-term stabilization beds. 22

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70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 19 of 56

1

e. Children’s Mental Health Services – Synopsis on Gaps and Recommendations

2

related to SSHB1088 from DSHS Assistant Secretaries and Administrators

(2009). Most recently, DSHS issued a document related to SB 1088 to identify 3

gaps in Children’s Mental Health services. In the document DSHS acknowledged
4 that the “Frequency, duration, and type of [mental health] treatment modality

5

offered [to Washington’s Medicaid children] are inappropriate and/or limited,”

6

and “Wraparound, respite, crisis mobilization, day treatment and integrated dual

7

disorder services are not available especially in rural areas.”

8

63. Despite such information and notice, the Defendants have failed to take adequate

9 actions providing or arranging for the Intensive HC-based Services children in Washington need
and are not receiving, despite the legal mandate to provide for such services, her knowledge of 10
the deficiencies within DSHS’s mental health system for children, her receipt of 11
recommendations for how to improve the system, and the long standing acknowledgment by
12 DSHS that the lack of intensive services results in trauma for children.

13

64. In many areas of Washington, children with mental health needs who are on

14 Medicaid only receive weekly therapy and medication management. Children who cannot safely

15 remain in their own homes with these limited services and without necessary Intensive HC-based
16 Services must turn for help to acute care hospitals such as Fairfax, Children’s Hospital, Kitsap Mental Health, and Sacred Heart, where they are placed on locked child and adolescent
17 psychiatric wards.
18 65. Some of the children who cycle in and out of these acute care facilities are
19 eventually placed in one of four Children’s Long term Inpatient Psychiatric (“CLIP”) facilities

20 located in Lakewood, Tacoma, Seattle, and Spokane. CLIP services are administered by DSHS.

21 These facilities are often hundreds of miles away from the child’s home and family, which

22 causes harm of prolonged separation and creates significant barriers to providing necessary

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 19 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 20 of 56

1 family therapy, discharge planning, and services to reintegrate children back into their home and

2 communities.

66. While the State and the RSNs offer some limited home and community-based 3
services, these services are made available only to a fortunate few and the limited services that 4
are offered are often subject to arbitrary limits and onerous, if not draconian, restrictions. For
5 example:

6

a. The few existing Medicaid funded in-home supports and case management

7

programs have limited slots and have narrow access standards which require that

8

a child’s mental health condition meet a certain level of severity, which is

9

narrower than the “necessary to correct or ameliorate” standard for EPSDT. This

results in many children having to deteriorate in order to get the care they need. If 10
a child is able to access these services, the services are often limited by arbitrary 11
caps and restrictions unrelated to the child’s needs.

12

b. In some areas of Washington, more intensive services may be available through

13

Washington’s foster care system, but in order to access these services parents of

14

Medicaid children must first give up their custodial rights.

15

c. In other regions of the State, children can only access necessary intensive mental

16

health interventions if they have been charged or found guilty of a crime through

the local and state juvenile justice system. 17
d. While Washington has implemented a few pilot programs around the state to

18 provide community-based supports, these pilot programs have limited capacity,

19

are not funded with Medicaid, and are not treated as a Medicaid entitlement. The

20

pilot programs reach only a reported 79 children, resulting in a very small

21

percentage of children who are able to access limited services—largely based

22

upon where they happen to live.

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 20 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 21 of 56

1

67. Some services, such as community-based therapeutic mentoring and intensive

2 mobile crisis stabilization services, are routinely unavailable to children on Medicaid in much of
the state. 3
68. Children served by the mental health system do not get notice of their right under 4
EPSDT to request and receive services necessary to correct or ameliorate their conditions. 5 DSHS’s contracts with the RSNs only require that each RSN provide Medicaid recipients under
6 the age of 21 with a copy of the “Mental Health Benefits Booklet” published by DSHS. This

7 publication does not adequately inform children and their families that Intensive HC-based

8 Services are available under EPSDT. Consequently, many families are poorly positioned to

9 request services their children need because they do not know that these mental health services

are coverable by Medicaid. See DSHS Report, Children’s Mental Health Gaps Response, 10
Summary of Findings Across Data Sources (2007) (identifying lack of information to families as 11
a major barrier to effective access to services).

12

69. Children and their families do not receive prior written notice when the

13 Community Mental Health Agency denies, reduces or terminates Medicaid services, nor do they

14 receive any notice that they have a right to request a hearing to challenge such denials,

15 suspensions, reductions, and terminations of their mental health services.

16

70. The DSHS website states that recipients only receive action notices if their

services are denied, suspended, reduced, or terminated when such action is made by the RSN, 17
and not the result of a community mental health agency decision. If a community mental health

18 agency decides to deny, suspend, reduce, or terminate Medicaid services, DSHS has no adequate

19 regulations, policies, or procedures requiring providers to ensure recipients’ of their due process

20 rights.

21

22

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 21 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 22 of 56

1 C.
2

The Plaintiff Children’s Experience with Washington’s Public Mental Health System

3

1) Currently Institutionalized Children

4

T.R. (Ten-Year-Old Boy)

5

71. T.R. is a Medicaid recipient who is not receiving the intensive home and

6 community-based mental health services he needs to correct or ameliorate his mental health
conditions or reduce his behavioral symptoms. 7
72. Since T.R.’s single mother died when he was six years old, T.R. and his brother 8
have lived with their older sister, R.R., who is T.R.’s legal guardian and next friend. R.R., a

9 single mother, also cares for her seven year-old son.

10

73. T.R. has had serious behavioral symptoms since his mother’s death in 2005. In

11 2008, after his symptoms worsened, T.R. was diagnosed with Oppositional Defiant Disorder,

12 Attention Deficient Hyperactivity Disorder, and Mood Disorder Not Otherwise Specified. In the

last two years, T.R. has been admitted into the psychiatric unit of the community hospital on four 13

occasions. Due to his inability to access necessary services, T.R. is currently institutionalized at
14 the state psychiatric hospital for children on the grounds of Western State Hospital.

15

74. T.R.’s symptoms have not improved, and his hospital treatment team has

16 indicated that the institutionalized setting in which he is receiving services is harmful to him.

17 The team recommended that T.R. be discharged to his sister’s home with intensive home and

18 community-based mental health services that were not available to him prior to his admission to
19 the state hospital. 75. Prior to his most recent institutionalization, T.R.’s Care Plan included one-to-one
20 in-home “case aid” services and mobile crisis services.
21 76. When T.R.’s symptoms escalated, his sister called the crisis team for help, but on
22 multiple occasions there either was no response or the crisis team refused to come to T.R.’s
23

FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 22 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 23 of 56

1 home and instructed his sister to call the police. The crisis services were only approved for 30

2 days at a time, so T.R. and his sister had no assurances that crisis services would be available to
T.R. when the next crisis arose. 3
77. By November 2008, after T.R. was hospitalized again in an acute psychiatric unit. 4
His community treatment team recommended that his one-to-one in-home “case aid” services be 5 increased to over 40 hours per week. His records documented that the “case aides” were
6 “helpful” to address T.R.’s symptoms and in “keeping his life consistent.” However, by the end

7 of December 2008, T.R. had met the funding cap the RSN had set for in-home “case aid”

8 services. Although T.R. continued to need these services to help manage his symptoms, the

9 “case aides” were terminated.
78. T.R.’s therapist requested an exception to the RSN’s policy for him to continue 10
receiving case aids or to allow a brief stay at a residential facility, but her request was denied. 11
T.R. later began receiving some additional case aid services but at a significantly reduced level
12 of only 20% of the hours he had been receiving.

13

79. With these inadequate services, T.R.’s mental health continued to decline and

14 T.R. was admitted to the state psychiatric hospital for children in February 2009. While initially

15 successful after his admission, T.R.’s condition soon quickly deteriorated. In October 2009,
16 T.R.’s hospital treatment team informed his sister that they believed the hospital was not the appropriate environment to treat his mental health needs. Specifically, the team identified the
17 rotation of clinical residents that occurs in a teaching facility and the turn over of patients at the
18 hospital as a source of continual trauma that was detrimental to treating T.R. His treatment team
19 concluded that these inherent aspects of the state hospital program were harming T.R. and

20 undermining his recovery. T.R.’s treatment team has recommended discharge back to his sister’s

21 home based on their conclusion that a stable family home is clinically more appropriate.

22

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 23 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 24 of 56

1

80. To manage T.R.’s symptoms in the community, where T.R. must receive

2 treatment in order to achieve greater emotional stability and move toward a productive future,
T.R. will need more intensive and long-term mental health services and supports in his home and 3
community than he had before his hospital admission. 4
81. If T.R. were provided with adequate and appropriate Intensive HC-based 5 Services, he would improve significantly and be able to live at home with his family rather than
6 at the children’s psychiatric hospital on the grounds of Western State Hospital. Without these

7 services, T.R. has little hope of avoiding worsening symptoms, harm to himself or others,

8 repeated hospitalizations, continued institutionalization, and separation from his family.

9

82. Prior to T.R.’s recent institutionalization, R.R. sought intensive home and

community-based services for T.R. through Medicaid and believed that the services provided by 10
the RSN were the maximum allowable under Medicaid. She never received notice of the 11
availability of Intensive HC-based Services under the Medicaid program or T.R.’s right to a fair

12 hearing to dispute the denial, reduction, and termination of services.

13

S.P. (16-Year-Old Girl)

14

83. S.P. is a Medicaid recipient who is not receiving the intensive home and

15 community-based mental health services she needs to correct or ameliorate her mental health
16 conditions or reduce her behavioral symptoms. 84. S.P.’s current diagnoses include Schizophrenia, paranoid type, and Attention
17 Deficit Hyperactivity Disorder. As a result of her conditions, she hears voices, has visual
18 hallucinations, experiences paranoid delusions that her family members want to harm her, is
19 irritable, and displays aggression, depression, and low self-esteem. She is currently

20 institutionalized and has been denied the Intensive HC-based Services that she needs to correct

21 or ameliorate her mental health conditions.

22

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 24 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 25 of 56

1

85. S.P. has been exhibiting mental health symptoms since she was in kindergarten.

2 She struggled in school, had multiple truancies, and was ultimately unable to cope in a school
environment for more than two hours a day. 3
86. In 2005, S.P. participated in a five week facility-based day treatment program at a 4
local community hospital in Spokane, Washington. Even after completing this program, S.P. 5 was subsequently involuntarily hospitalized seven times in the psychiatric unit of the local
6 hospital, and was twice involuntarily committed for long term treatment at a CLIP facility

7 approximately 300 miles away from her home. At the end of each stay, she was discharged to

8 the same inadequate array of weekly therapy, medication management, and case management

9 services that had failed her in the past. During this time, S.P. was not offered or provided any additional Intensive HC-based Services to help cope with, control, or reduce her symptoms.
10 87. The second time S.P. was discharged from the Tacoma CLIP facility in June
11 2009, her treating mental health professional recommended specific home and community-based
12 mental health services and identified as “essential services” the provision of one-to-one home-
13 based, independent living and social skills training, enhanced supervision support during early

14 evening unstructured time, and community-based training in the development of coping skills.

15

88. After discharge, S.P. requested these services but was told they were not

16 available. S.P.’s services were again limited to the weekly office-based therapy and medication
management by a psychiatric nurse that she had received after every prior unsuccessful 17
discharge. 18
89. S.P.’s condition again deteriorated over the summer of 2009. She began to

19 experience command hallucinations, was afraid to accept medication from her mother, and began

20 threatening others in response to her hallucinations. As a result, she was again involuntarily

21 committed to the local community hospital’s psychiatric unit.

22

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 25 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 26 of 56

1

90. When S.P. was discharged from the hospital on September 11, 2009, she was

2 approved for one of two slots in a new program in Spokane, Washington, that promised her more

home services. However, the services available through this program were also inadequate to 3
satisfy the recommendations of her treating mental health professional. For example, S.P. could 4
not access a sufficient number of service hours or services during the times when her mother was
5 at work.

6

91. Although S.P.’s treating mental health professional was concerned that another

7 institutionalization would not be in her best interest, she ultimately recommended that S.P. return

8 to a CLIP placement due to the lack of sufficient Intensive HC-based Services. In October 2009,

9 S.P. was involuntarily ordered to the state children’s psychiatric hospital on the grounds of Western State Hospital, hundreds of miles from her home and family.
10 92. If S.P. were provided with adequate and appropriate EPSDT mental health
11 services, she would improve significantly and be able to live at home with her family. In order
12 to ameliorate S.P.’s condition and avoid further institutionalization, S.P. needs and has requested
13 the Intensive HC-based services recommended by her treating mental health provider. These

14 essential services have not been made available to her, and as a result, she has experienced an

15 increase in her symptoms, has harmed herself and others, and has become socially isolated by

16 recurring or prolonged institutionalization.
93. S.P. and her mother never received notice of the availability of Intensive HC17
based Services through the Medicaid program, or a notice about her right to request a hearing to 18
dispute denials, reductions, or terminations of her services.

19

C.A. (15-Year-Old Girl)

20

94. C.A. is a Medicaid recipient who is not receiving the intensive home and

21 community-based mental health services she needs to correct or ameliorate her mental health

22 conditions or reduce her behavioral symptoms.

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 26 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 27 of 56

1

95. Prior to entering adolescence, C.A. demonstrated no mental health needs and was

2 an honor roll student. However, by the time she was 14 years old, she had been hospitalized

three times due to depression and suicide attempts, had begun cutting herself, and had jumped 3

out of a second story window.
4 96. C.A.’s mental health diagnosis is Major Depressive Disorder.

5

97. C.A.’s first hospitalization was for thirteen days in December 2007. Upon

6 discharge, C.A. received recommendations for medication management and individual and

7 family therapy.

8

98. By February 2008, C.A. was again hospitalized. She was discharged one week

9 later with recommendations that she continue outpatient therapy, specifically cognitive
behavioral techniques for managing depression and anxiety, interpersonal therapy and distress 10
tolerance. Additional recommended services included parent support, coaching and education 11
for C.A.’s mother to assist her in effectively dealing with C.A.’s emotional instability and
12 chronic suicidal ideation in the home setting.

13

99. Despite her two hospitalizations within ten weeks, no comprehensive home-based

14 assessment was completed to determine what services C.A. needed.

15

100. Upon discharge from the hospital in February 2008, C.A. did not receive

16 Intensive HC-based Services, nor was she assessed for such services. Instead, C.A.’s mother
was referred to the abuse and neglect system to access in-home services that should have been 17
provided for under Medicaid, and to apply for the Children’s Hospital Alternative Program 18
(“CHAP”). C.A. was not able to access these services for several months.

19

101. Without the Intensive HC-based Services she needed, C.A. continued to

20 experience serious depression and hopelessness after discharge. Two months later, in April

21 2008, C.A. jumped from a second story window and was re-admitted to the psychiatric hospital.

22

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 27 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 28 of 56

1 Upon discharge, C.A. again continued to receive only limited mental health services, specifically

2 medication management and therapy.

102. On September 25, 2008, C.A. went to the emergency room at the local 3

community hospital complaining of seeing shadows and fairies, and hearing footsteps. She was
4 not admitted and did not receive Intensive HC- based Services.

5

103. In November 2008, C.A. was enrolled in the CHAP. This program was supposed

6 to provide Intensive HC-based Services but the services she actually received were inadequate.

7 The services C.A. received in the CHAP program were: a) individual therapy at the office of the

8 community mental health agency - over an hour’s drive from her home; b) weekly in-office

9 family therapy that was attended by C.A.’s mother while C.A. was in her individual session; and,

c) medication management to stabilize her mood. C.A. also attended a few “therapeutic 10
photography” sessions with a technician at the community mental health agency and on a few 11
occasions, had a “case aid” take her on a short visit to a local coffee shop.

12

104. C.A. was offered out-of-home respite through therapeutic foster care as an

13 intermediary step to prevent acute hospitalization. On the one occasion she attempted to use this

14 service, she became distressed and had to return home in the middle of the night.

15

105. Notably, the reported goal of C.A.’s CHAP services was to “work with [her

16 mother] in maintaining C.A. in her home until a CLIP comes through.” The service was not
intended as an alternative to a CLIP inpatient treatment or to avoid institutionalization. 17
106. C.A. entered a CLIP facility in May 2009. She has worked hard with her 18
treatment team and met benchmarks set for her. She is described as a “star” in group therapy and

19 has maintained high levels in the facility’s reward system.

20

107. C.A.’s mother travels the 63 miles each way from their home in Island County to

21 the CLIP facility twice a week to attend family therapy sessions and visit her child. Facility

22 based family therapy sessions have had limited effectiveness.

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 28 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 29 of 56

1

108. C.A. is a very bright child and is capable of advanced academic work. However,

2 opportunities for her to receive accelerated educational services at the CLIP have been limited.
C.A. sees her intelligence as a strength she can build on, and experiences hopelessness when she 3
cannot do challenging academic work. 4
109. C.A.’s mother is deeply committed to support her child’s recovery and bringing 5 her home. However, the local mental health agency did not provide sufficient services to C.A.
6 prior to her admission and C.A. must have Intensive HC-based Services to be safe at home.

7

110. C.A. never received notice of the availability of Intensive HC-based Services

8 through the Medicaid program, or a notice about her right to request a hearing to dispute denials,

9 reductions, or terminations of her services. 2) Children Discharged from Institutions Not Receiving Adequate Services
10 T.F. (15-Year-Old Girl)
11 111. T.F. is a Medicaid recipient who is not receiving the intensive home or
12 community-based mental health services she needs to correct or ameliorate her mental health
13 conditions and reduce her behavioral symptoms.

14

112. T.F. has been diagnosed with Bipolar Disorder, Oppositional Defiant Disorder,

15 and Post Traumatic Stress Disorder. As a result of her psychiatric disorders and history of sexual
16 abuse by a non-parent, she exhibits severe symptoms of anxiety, including self-harming behaviors.
17 113. When T.F. was ten years old, she had two suicide attempts that resulted in
18 inpatient treatment at her local hospital’s psychiatric unit. Based on these incidents, DSHS’s
19 Division of Child and Family Services (DCFS) took custody of her. Both T.F. and her father

20 want her to return to her father’s home, but DCFS continues to have custody because T.F. needs

21 Intensive HC-based Services that have not been made available to her outside of the foster care

22 system.

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 29 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 30 of 56

1

114. In October 2008, T.F. was briefly returned to her father after receiving a year of

2 inpatient psychiatric treatment at the CLIP facility in Spokane. At discharge, the treatment team

at the CLIP recommended that T.F. receive individual counseling, individual and family sessions 3

to transition home, group therapy, and structured recreational activities to model appropriate
4 behaviors.

5

115. T.F.’s discharge plan included medication management, individual counseling,

6 twelve hours per week of therapeutic aids and transitional counseling services from the CLIP

7 facility. T.F. did not actually receive these services due to inflexible service hours and a lack of

8 available and qualified therapeutic aid providers.

9

116. No group therapy or structured recreational activities was offered. T.F. also has

not been provided mobile crisis services or home based crisis stabilization services to respond 10
when her symptoms escalated. During this period, T.F. was hospitalized, arrested, and expelled 11
from school for such things as threatening to overdose on her prescription medications and

12 getting into altercations with other students.

13

117. Faced with a lack of insufficient services, T.F. was institutionalized again at the

14 CLIP facility in January 2009. When T.F. was ready for discharge from the CLIP facility in May

15 2009, she asked to return home to her father. However, she was advised that the structured
16 supports T.F.’s treatment team recommended for her were only available in a congregate care facility. DSHS placed T.F. in a treatment facility in Coeur D’Alene, Idaho and told her that she
17 had to complete the program in order to return home to her father.
18 118. While she was in Coeur D’Alene, the facility relied on law enforcement to
19 address her mental health crises: T.F. was arrested eight times and spent the vast majority of the

20 time between May and October 2009 in the local Juvenile Detention Center. As a result of her

21 repeated arrests and incarcerations, the institution did not implement T.F.’s treatment plan or

22

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 30 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 31 of 56

1 provide T.F. with the family and individual therapy she needs. Ultimately, the facility

2 discontinued services, leaving her in the custody of Idaho’s juvenile criminal system.

119. T.F. requested to go home with her father and for services to be delivered to her in 3

her father’s home, but DSHS did not make any arrangements for her to receive services at home.
4 T.F. needs to be in a stable setting long-term with Intensive HC-based Services.

5

120. T.F.’s DCFS case manager reports that he is unable to find a therapeutic group

6 home or foster home in the Spokane area. T.F. has stated that being away from her family is a

7 primary source of stress and anxiety for her. Nonetheless, in November 2009, T.F. was moved

8 to the closest community placement option for her in Washington – a foster care placement in

9 Kennewick, 155 miles away from her family. 121. T.F.’s father is committed to visitations and family therapy, knowing that these
10 will help T.F. recover, but fears that the great distance between his home and the foster care
11 home will result in less frequent contact with her. T.F.’s father has limited resources to pay for
12 regular travel, has an inflexible schedule on his job, and is concerned about the impact of the
13 upcoming winter on his ability to travel such a distance.

14

122. T.F. is currently being harmed by her separation from her family and the lack of

15 services. Without the availability of Intensive HC-based Services in her own community, T.F. is
16 at risk of further harm from the separation of her family, institutionalization, incarceration, and an increase in her behavioral symptoms.
17 123. T.F. never received notice of the availability of Intensive HC-based Services
18 through the Medicaid program, or a notice about her right to request a hearing to dispute denials,
19 reductions, or terminations of her services.

20

21

22

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 31 (Case No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL21990680.1

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

Case 2:09-cv-01677-TSZ Document 83 Filed 10/27/11 Page 32 of 56

1

P.S. (17-Year-Old Boy)

2

124. P.S. is a Medicaid recipient who is not receiving the intensive home and

community-based mental health services he needs to correct or ameliorate his mental health 3
conditions or reduce his behavioral symptoms. 4
125. P.S. has been diagnosed with severe Post Traumatic Stress Disorder (Primary),
5 Bipolar Disorder Not Otherwise Specified, Attention Deficit/Hyperactivity Disorder Not

6 Otherwise Specified, and Fetal Alcohol Syndrome. P.S. was abused during the first eight years

7 of his life. As a result of his mental health conditions and his traumatic childhood, P.S.

8 experiences traumatic flashbacks, sleep problems, headaches, and problems concentrating. P.S.

9 also exhibits severe symptoms of suicidal attempts, and self harming behaviors that include cutting himself, burning himself, and banging his head.
10 126. P.S. came to live with his grandmother at the age of eight. During the years he
11 lived with her in Yakima County, the only community mental health services he could access
12 were in-office counseling and medication management. With these limited services, his
13 symptoms did not improve. He attempted suicide, experienced a series of school expulsions,

14 arrests, and involuntary hospitalizations.

15

127. Beginning with his involuntary commitment in October 2007, P.S. was moved

16 between numerous out-of-home placements, including the CLIP facility in Spokane, crisis
response centers in Yakima and Kennewick, and the psychiatric unit of the community hospital. 17
In November 2008, P.S. was discharged from the CLIP facility with the following 18
recommendations: placement in a therapeutic foster home with respite care; specialized school

19 setting; behavioral health specialist to provide one-to-one attention; monitoring during

20 unstructured times; and development of a behavioral plan.

21

128. Upon discharge, P.S.’s Yakima treatment team had identified no placement

22 options. P.S. did not receive the services recommended by the CLIP facility, and instead was

23
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1 discharged to a crisis bed in Yakima without any one-to-one support. P.S. ran away the first

2 weekend and was missing for several days.
129. In December 2008, the Casey Family Foundation agreed to fund a six-month 3
treatment program in Marylhurst, Oregon. P.S. was discharged from the facility in late May 4
2009 with the following recommendations: highly structured group home setting; independent 5 living skills training, mental health therapy, crisis support and medication management;
6 discharge placement familiar and sensitive to the effects and reactions to trauma.

7

130. Upon return to Washington, P.S. did not receive the services that were

8 recommended for him by his treating mental health professionals.

9

131. From May until August 2009, P.S. again rotated between temporary placements

while his Yakima based treatment team struggled to identify a placement that would accept him. 10
During this period, P.S. was not provided with a comprehensive home assessment or mental 11
health therapy, and received only sporadic medication management.

12

132. Fearing for P.S.’s safety and hoping that there would be more mental health

13 services in King County, P.S.’s grandmother sent him to live with his biological mother in

14 Seattle in August 2009. P.S. requested mental health treatment in King County, but was initially

15 denied because his Medicaid coupon was from another county. After obtaining a King County
16 medical coupon the following month, P.S. completed the intake process at a community mental health agency in King County, Washington on September 23, 2009.
17 133. P.S. made multiple requests for an appointment with a psychiatrist to check his
18 medication levels and physical tolerance of the six different medications that had been prescribed
19 by the Oregon facility. However, P.S. has yet to meet with a psychiatrist. P.S.’s community

20 mental health provider directed P.S. to see his family doctor for monitoring of his psychotropic

21 medications during the delay.

22

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1

134. The only services P.S. has been able to access at his community mental health

2 agency in King County are weekly counseling in the therapist’s office

135. P.S. has requested other necessary services, including mobile crisis stabilization 3
services, home behavioral assessments and aids, therapeutic mentoring, but none of these 4
services have been made available to him. P.S. was informed that he would be put on the
5 waiting list for “wrap around” case management services and parent support.

6

136. P.S. has experienced five separate mental health crisis events since coming to

7 Seattle in August, including one event of suicidal ideation and four physical altercations with the

8 youth in his community. His counselor has been notified of these incidents and has

9 acknowledged that P.S. should not be left unsupervised. However, the services P.S. needs and has requested have not been provided for or arranged by the Defendants.
10 137. P.S. is experiencing harm due to the lack of services. For example, after a recent
11 mental health crisis, P.S.’s mother was informed by the apartment complex in which they live
12 that they were going to be evicted because of P.S.’s actions. P.S. and his family had to scramble
13 to find a new home. During the turmoil, P.S. received no mental health therapy services from his

14 community mental health provider.

15

138. Without necessary Intensive HC-based Supports, P.S. is experiencing increased

16 symptoms. He is socially isolated from his peers, has experienced physical injuries, and has
been suspended from school. If P.S.’s needs continue to go unmet, he will continue to be at risk 17
of experiencing an increase in his symptoms, additional physical injuries, incarceration, and 18
additional long-term institutionalizations.

19

139. P.S. never received notice of the availability of Intensive HC-based mental health

20 services through the Medicaid program, or a notice about his right to request a hearing to dispute

21 denials, reductions, or terminations of his services.

22

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1

T.V. (11-Year-Old Boy)

2

140. T.V. is a Medicaid recipient who is not receiving the intensive home or

community-based mental health services he needs to correct or ameliorate his mental health 3
conditions, or to reduce his behavioral symptoms. 4
141. T.V. has been diagnosed with Mood Disorder, Not Otherwise Specified; Post
5 Traumatic Stress Disorder, chronic; Oppositional Defiant Disorder, chronic; and Attention

6 Deficit Hyperactivity Disorder, inattentive type. As a result of his conditions and traumatic

7 history, T.V. displays severe symptoms of aggression, sudden outbursts of rage, elopement, and

8 self-harming behaviors. T.V. continues to have difficulty concentrating and socializing

9 appropriately with peers. 142. Before his second birthday, T.V. was removed from his biological parent’s home
10 due to severe neglect, and bounced between five different placements until he was finally placed
11 with C.D. as a foster child. When T.V. was seven-years-old, after he had bonded with C.D. and
12 her family, but before C.D. had established third party custody, he was transferred to a different
13 foster home for fifteen months where he was the victim of sexual assault.

14

143. Following T.V.’s return to C.D.’s custody at age eight, T.V. began to exhibit

15 severe symptoms of a serious mental health condition. T.V. was hospitalized at the local
16 community hospital’s psychiatric unit five times over the next eighteen months, and received day treatment through the hospital’s outpatient program and at a community mental health provider.
17 Without adequate mobile crisis services, he had incidents in which he was arrested and detained.
18 Ultimately, T.V. was institutionalized for over a year at the state psychiatric hospital for children
19 on the grounds of Western State Hospital in Lakewood, WA, 300 miles away from his home and

20 family.

21

144. When T.V. was discharged from the state children’s hospital in August 2009, the

22 hospital’s treatment team recommended “significant support as an outpatient in the school and

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1 home setting” as well as individual and family therapy in order to continue his progress and

2 “prevent further hospitalizations.”
145. Upon discharge, T.V. was enrolled at a local community mental health provider 3
so that he could receive case management services, and was offered weekly office-based therapy, 4
an anger management group, and monthly medication management check-ups. C.D. repeatedly 5 requested “step-down” transitional services, including community-based therapeutic mentoring
6 and in-home behavioral aids to help T.V. practice the de-escalation skills he learned at the state

7 hospital in a natural environment.

8

146. T.V.’s current case manager informed C.D. that she agreed the services C.D.

9 requested would clinically benefit T.V., but advised that these services are only made available

to children with more severe symptoms. As a result, T.V. could not access the services he 10
needed to succeed in his community, to prevent his condition from worsening again, or to reduce 11
his symptoms of Post Traumatic Stress Disorder.

12

147. Denied the Intensive HC-based Services he needs, T.V.’s symptoms have

13 worsened over the last few months to the point that he recently threatened to jump out of a

14 window to commit suicide. Prior to the onset of these symptoms, the services that could have

15 prevented his condition from worsening were unavailable to him. His case manager has now
16 referred T.V. to a program that provides in-home services, but he has not yet been approved and has been told that there is a waiting list.
17 148. If T.V. does not receive services to prevent his condition from worsening again,
18 he is at risk of harm from himself and at risk of being re-hospitalized and separated from his
19 family again.

20

149. T.V. never received notice of the availability of Intensive HC-based Services

21 through the Medicaid program, or a notice about his right to request a hearing to dispute denials,

22 reductions, or terminations of his services.

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1

C. Children Never Institutionalized

2

E.H. (15-Year-Old Boy)

150. E.H. is a Medicaid recipient who is not receiving the intensive home and 3

community-based services he needs to correct or ameliorate his mental health conditions and
4 reduce his behavioral symptoms.

5

151. E.H. has been diagnosed with Bipolar Disorder, Attention Deficit Disorder,

6 Oppositional Defiant Disorder, and has violent behavioral symptoms. E.H.’s mood cycles

7 between manic phases characterized by racing and grandiose thoughts and phases in which he is

8 depressed and explicitly articulates a wish to die. He makes threats and attempts to commit

9 suicide, and has injured himself on numerous occasions by hitting and cutting himself.

152. E.H.’s symptoms have been documented since he was a toddler. By the time he 10
was four-years-old, E.H. was taking medications to manage his behaviors, had therapeutic aid 11
services, and was in counseling.

12

153. Between 2004 and 2006, E.H.’s condition began to worsen. In March 2005,

13 E.H.’s symptoms escalated to the point his mother called the police, and he was arrested and

14 detained in juvenile detention. His provider began recommending out-of-home placements, but

15 his mother chose not to give up custody.

16

154. In February 2007, E.H. was hospitalized at an acute psychiatric hospital in

Spokane, Washington after threatening to kill his parents and to harm himself. He was 17
discharged with a plan to receive counseling from the community mental health provider in

18 Whitman County.

19

155. In November 2008 the acute psychiatric hospital in Spokane admitted E.H. for

20 inpatient treatment. The hospital did not have a pediatric bed for him and transferred him to an

21 acute psychiatric hospital in Coeur D’Alene, Idaho. When he was discharged on December 5,

22 2008, his plan specified that he was to receive “comprehensive wraparound services” from his

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1 mental health provider in Whitman County. This plan included necessary services that he did

2 not receive. Specifically, he never received “one-on-one individual social skills, education, and
coaching,” or assistance from the community mental health provider in becoming integrated into 3
“community based social activities”. 4
156. Until he was most recently hospitalized, E.H. was receiving weekly therapy, 5 medication management from a psychiatrist two hours away, and respite services. E.H. was not
6 receiving any in-home behavioral services, and his crisis services were generally limited to

7 telephone consultations and emergency room visits, despite his persistent self-harming and

8 aggressive behaviors.

9

157. In October 2009, E.H. was re-admitted to the acute psychiatric hospital in Coeur

D’Alene, Idaho after he attempted to commit suicide. Fifteen days later, he was discharged with 10
recommendations to follow up with the local community mental health provider. 11
158. In order to be successfully discharged home, he needs Intensive HC-based

12 Services. If E.H. does not receive these services, he is at risk of long term institutionalization or

13 suffering significant injuries or death at his own hands.

14

159. E.H. never received notice of the availability of intensive home and community-

15 based mental health services through the Medicaid program, or a notice about his right to request
16 a hearing to dispute denials, reductions, or terminations of his services. E.D. (10-Year-Old Boy)
17 160. E.D. is a Medicaid recipient who is not receiving the intensive home and
18 community-based mental health services he needs to correct or ameliorate his mental health
19 conditions or reduce his behavioral symptoms.

20

161. E.D. has been diagnosed with General Anxiety Disorder, Attention Deficit

21 Disorder, and Oppositional Defiant Disorder, and a possibility of Bipolar Disorder.

22

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1

162. Beginning when E.D. was four-years-old, he experienced multiple removals from

2 his mother’s custody and experienced incidents of sexual abuse by a non-relative. E.D.’s mental

health conditions and traumatic history of abuse and separations from his family have resulted in 3
E.D. experiencing significant symptoms of aggression, sudden outbursts of anger, and self4
harming behaviors. His symptoms are on a rapid “cycle” in which they tend to dramatically
5 worsen and get better about every five days.

6

163. In June 2009, E.D. received an outpatient psychiatric evaluation at his local

7 community hospital’s psychiatric unit. These recommendations included further evaluation for

8 autism spectrum disorder, “appropriate crisis interventions” and “intensive home interventions,

9 as well as wraparound services and case management.”
164. In August 2009, E.D.’s mother learned that E.D. had still not been placed on the 10
waiting list for an autism assessment when she has requested it back in December 2008, and so 11
she made another request. E.D. did not receive this assessment until November 19, 2009 and has
12 yet to receive results.

13

165. In August 2009, E.D.’s mother attempted to access services during an episode

14 when E.D.’s behavioral symptoms escalated to the point where she had serious safety concerns.

15 She was told by the community mental health agency to take him to the emergency room or to
16 call “9-1-1” if she needed help getting him there. At the hospital, E.D.’s mother requested inpatient treatment, but was turned away without any other immediate services.
17 166. In August 2009, the local community mental health agency in King County
18 conducted an intake assessment. E.D.’s mother reported that E.D. has symptoms of anger and
19 aggression that were so severe that he assaulted and threatened to kill her and his brother and

20 destroy their property. The assessment resulted in the mental health professional requesting a

21 benefit of “3A1 Tier” for E.D., which is the second to highest level of outpatient services

22 available. E.D.’s mother never received any written notice that he had been assessed at this level

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1 of care, what services were included in this level of care, what other services were available from

2 the mental health agency or Medicaid, or how the agency determines who can access these
services. 3
167. Currently, E.D. only receives weekly office-based therapy, and monthly 4
medication management appointments at the community mental health agency. He is not 5 receiving and has not been offered any Intensive HC-based Services including the “appropriate
6 crisis interventions, intensive home interventions as well as wrap around services and case

7 management” recommended by the community hospital in June 2009.

8

168. E.D.’s mother requested Intensive HC-based Services from her Medicaid

9 provider, but she was told the mobile crisis intervention, wraparound, and behavioral testing she
requested are not available. She did not receive any written notice of a denial. The provider told 10
E.D.’s mother he would be referred to their more intensive program for additional services, but 11
she has not received any further information about whether the referral was made, what services
12 could be available to E.D. in that program, or whether E.D. has been approved.

13

169. Without necessary mental health services, E.D.’s symptoms have not improved.

14 As a result of his behavioral symptoms, he has significant difficulties in school, has been

15 suspended on multiple occasions, and is at risk of expulsion. If E.D. does not receive the
16 treatment he needs, E.D. will continue to be at risk of being removed from his home due to his undertreated impulsive and aggressive behaviors that place him at significant risk of getting
17 arrested, hospitalized, or institutionalized in a long term facility.
18 170. E.D. has never received notice of the availability of Intensive HC-based Services
19 through the Medicaid program, or a notice about his right to request a hearing to dispute denials,

20 reductions, or terminations of his services.

21

22

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1

L.F.S. (9-Year-Old Boy)

2

171. L.F.S. is a Medicaid recipient who is not receiving the intensive home and

community-based mental health services he needs to correct or ameliorate his mental health 3
conditions or reduce his behavioral symptoms. 4
172. L.F.S. has been diagnosed with Attention Deficit/Hyperactivity Disorder,
5 Combined Type, Disruptive Behavior Disorder, Not Otherwise Specified, Mood Disorder, Not

6 Otherwise Specified, Mild Mental Retardation, and possible diagnoses of Bipolar Disorder,

7 Schizophrenia, and Psychosis Not Otherwise Specified. His symptoms include being assaultive,

8 engaging in dangerous behaviors, resisting personal care activities, and significant problems with

9 his sleep. 173. When L.F.S. was four-years-old, soon after he and his family fled to the United
10 States as political refugees from Cuba, he received a psychiatric assessment from his community
11 mental health agency which identified his behavioral symptoms as symptoms of a serious mental
12 health condition. At that time, L.F.S.’s mother reported that L.F.S. had a history of being
13 extremely volatile, aggressive, impulsive, and over reactive, and had recently taken a knife and

14 threatened to kill her and himself.

15

174. L.F.S. began receiving medication management from a community mental health

16 agency and weekly office-based therapy from a second community mental health agency. Years
later, in April 2009, L.F.S.’s symptoms were still so unstable that his treating psychiatrist 17
discussed the possibility of hospitalization with his mother. Instead, the family chose to continue 18
attempting to address his needs at home. L.F.S. had a crisis plan which instructed his mother to

19 take him to the emergency room if necessary, but he was never offered any home or community-

20 based crisis intervention or other services.

21

175. L.F.S.’s therapist requested a neuropsychological assessment on January 21, 2009

22 to determine whether L.F.S. has Bipolar or psychotic disorders and determine the reason for

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1 L.F.S.’s inability to academically progress. When L.F.S.’s mother learned that an appointment

2 was not available through her Medicaid provider for another six months, L.F.S.’s therapist began

making requests that the RSN authorize payment for an assessment by an “out-of-network” 3

provider that could see him sooner. The RSN denied the therapist’s and L.F.S.’s request, and the
4 neuropsychological evaluation did not occur until October 19, 2009.

5

176. According to L.F.S.’s treating mental health provider, he needs additional

6 assessments that he has not yet received, including a comprehensive strengths-based assessment

7 that includes home observations of his behaviors and interactions with his family, a Functional

8 Scale and Adaptive Skills assessment, and a sleep study.

9

177. Additionally, his mental health provider has recommended Intensive HC-based

Services including services delivered by Spanish speaking providers or with qualified Spanish 10
interpreters, therapeutic aid services, home services including a behavior plan and training for 11
L.F.S.’s mother on implementation, mobile crisis intervention and home stabilization services,

12 home family therapy, home individual therapy, and training and support for L.F.S.’s mother from

13 a parent partner. L.F.S. is not receiving any of these services.

14

178. If L.F.S. does not receive the services and assessments he needs, he will continue

15 to struggle academically and experience conflict at home and school, and he will be at risk of
16 experiencing an increase in his symptoms, hospitalization, and school failure. 179. L.F.S. and his mother never received notice of the availability of Intensive HC-
17 based Services through the Medicaid program, or a notice about his right to request a hearing to
18 dispute denials, reductions, or terminations of his services.
19 D. Intensive Home and Community-based Mental Health Care Services are Effective and Necessary
20 180. There is virtual unanimity among mental health experts that children with serious
21 mental health problems require an array of individualized services tailored to meet their needs.
22

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1 Programs implementing such individualized services have been successfully provided to children

2 and have proven more effective and cost efficient than congregate and institutional care.
181. In 2002, the Secretary of DSHS, Dennis Braddock, convened a taskforce of 3
judges, foster care providers, court commissioners, county prosecutors, group home providers, 4
sheriffs, sex offender treatment professionals, high level DSHS administrators and others 5 involved in serving children and families to look at the long term care needs of children with
6 serious mental illness and emotional disturbance. The resultant report, referred to as “The

7 Braddock Report,” found that:

8

“Traditionally, community-based interventions have been dism issed as

inappropriate on the theory that these youth present too high a risk to self, fa mily

9

safety and community. But to the c ontrary, wraparound services and m ulti-

systemic treatment that involve the participation of the family, the youth, multiple

10

health, educational, social service and other system partners are proving to be

successful in improving the health and well being of youth with severe emotional

11

and behavioral needs, reducing the need for hospitalization and other expensive

“crisis” placements.”

12

Select Committee on Adolescents in Need of Long Term Placement, DSHS Washington, Final
13 Report (2002).

14

182. Intensive HC-based Services are also cost effective. For example, compare

15 Medicaid hospitalization rate of $707-1475 (per day) to the cost of Multi-Systemic Therapy at

16 approximately $60 (per day).

17

183. Intensive home and community-based services encompass a broad and flexible

18 array of services necessary to treat a child’s mental health condition at home and in the
community in which he or she resides and includes but is not limited to intensive care 19
coordination; mobile services provided on site as necessary to assist a child experiencing a 20
behavioral health crisis; short term crisis stabilization services to prevent or ameliorate a
21 behavioral crisis; skilled staff to provide therapy in the home setting or other natural environment

22 in order to improve the youth’s functioning in the those settings and prevent need for an out of

23

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1 home placement; trained mentors available to work with the child in a natural setting to support,

2 coach, and train youth in age-appropriate behaviors, interpersonal communications, problem-

solving and conflict resolution; training on independent living, social and communication skills 3
in a natural environment such as skill-building guidance to children and parents (e.g. modeling 4
appropriate behaviors and communication techniques); personal care services for assistance with
5 daily living tasks; and respite care to further stabilize the family home.

6

184. Despite this consensus among the State’s own mental health professionals that

7 Intensive HC-based Services are necessary, the Defendants have failed to ensure that children

8 receiving treatment through Medicaid funded programs receive the services to which they are

9 entitled by law.

E. 10

The Failure to Provide Intensive HC-based Services Results in Serious and Irreparable Harm

11

185. Failure to provide intensive home and community-based mental health services

12 results in significant harm including unnecessary and prolonged institutionalization, non-

13 improvement or a decline in mental and physical health, reduced social interaction, academic

success and quality of life, a declining family environment and police intervention and 14

confinement within the juvenile justice system.
15 Unnecessary and Prolonged Institutionalization

16

186. DSHS has recognized that:

17

“The lack of community placem ent and diversion alternatives

contributes to: 1) increasing dem and [for institutional beds] on the

18

“front end” [and] 2) pr otracted or stalled discharge planning on the

“back end.” In essence the lack of such services results in the

19

“Boarding” of youth who are comm itted to in patient treatment on

acute community hospital units (e.g., Sacred Heart).”

20 Issue Statement: Briefing Pape r about CLIP Process Kid Team

21

Discussion and Recommendations (April 2007).

187. The average length of a stay in Washington’s CLIPs is 297 days, with some 22
populations staying much longer. Children under age 13 average 476 days. A white paper
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1 issued in 2006 concluded that the leading cause of discharge delays from CLIPS is the lack of

2 discharge placement and family readiness. Children’s Acute and Non-acute Inpatient

Psychiatric and Residential Treatment White Paper (2006); See also Capacity and Demand 3
Study for Inpatient Psychiatric Hospital and Community Residential Beds – Adults and Children, 4
State of Washington DSHS (November 2004) (recommending therapeutic foster care and
5 additional community programming to reduce average length of stay).

6

188. Beyond the length of stay, over-reliance on restrictive, institutional settings is

7 often harmful to children with mental health problems, placing them in a setting that is

8 antithetical to their successful treatment, in part because removing a child from her parents or a

9 caring adult is, itself, harmful. 189. Moreover, hospitals and restrictive institutions are designed to offer short-term
10 stabilization and behavior management, not intensive, individualized services.
11 190. The experience of the named Plaintiffs is illustrative and, unfortunately, typical.
12 T.F. was institutionalized three times by the time she was 14; T.V. was hospitalized five times
13 over 18 months before being institutionalized for over a year at the state children’s psychiatric

14 hospital; S.P. has cycled in and out of the local hospital psychiatric unit five times in the last year

15 and is currently hospitalized due to inadequate community services; P.S. was institutionalized
16 twice at a CLIP facility and hospitalized multiple times; and C.A. is in an inpatient facility due to the lack of community services.
17 Non-improvement or a Decline in Mental and Physical Health
18 191. Children who do not receive appropriate treatment cannot get better and are at
19 risk of getting worse. If the decline is severe, many will face the risk of institutionalizations that

20 could continue for years. Children, like T.V., who cannot access recommended intensive

21 services because Defendants’ policies and practices deem their symptoms to be not severe

22

23
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1 enough, must deteriorate to the point they are at risk of hospitalization when their condition will

2 be harder to treat.
192. The lack of Intensive HC-based Services often also result in physical harm from 3
self harming behaviors (self-burning, cutting or head banging), forced restraint by police or 4
others, fighting due to aggression or confusions, harm due to command hallucinations and other 5 causes. For example, C.A., P.S., and E.H. have cut themselves; P.S. has been injured in physical
6 altercations; and T.F. was almost hit by a car during an episode when she attempted to elope

7 from a treatment facility.

8

193. Children with mental health symptoms also are at high risk of suicide.

9 Washington State’s Department of Health recently released a report acknowledging that on
average, two Washington youth commit suicide each week, and that Washington’s youth suicide 10
rate is higher than the national average. See Washington State’s Plan for Youth Suicide 11
Prevention 2009. T.F., P.S., C.A., and E.H. have all had suicidal ideations and have made
12 attempts to take their own lives.

13

Reduced Social Interactions, Academic Success and Quality of Life

14

194. The lack of Intensive HC-based Services results in increased risk of school failure

15 and drop out, and a marked decline in the quality of life. S.P. has become so anxious about

16 social interactions that she could attend school only two hours a day. E.D. scores in the 80th

17 percentile for intelligence, but his inability to relate to peers and his condition causes problems in

school, at home and in the community. C.A.’s self esteem is bolstered by academic challenge 18

but institutionalized, she has no outlet for her intellectual curiosity, and she has little hope for the
19 future.

20

195. The symptoms experienced by these children can be barriers to developing

21 positive peer relationships. Furthermore, the cycle of institutionalizations faced by many of

22 these children threatens to foreclose any chance these children have of developing healthy,

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 46 (Case No. 2:09-cv-01677-TSZ)
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1 stable, long term relationships on which to build attachments, self-confidence and social skills,

2 leading to a lifetime of challenges with marital, familial and peer relationships, and social
isolation. 3
Declining Family Environment 4
196. A failure to provide intensive home and community-based mental health services 5 is disruptive to the family and often results in out of home placements, involuntary foster care
6 and occasionally homelessness, eviction, or transfers among family members struggling to

7 provide appropriate care. T.R., S.P., C.A. and T.F. are all currently in long-term out-of-home

8 placements. P.S. and T.V. have experienced long-term displacement and are at risk of future

9 institutionalization. P.S. and his family were forced to move to avoid eviction due to his mental

health crises. Those that remain at home struggle on a day-to-day basis with their families living 10
in fear of harm to their other children, themselves and others family members and friends. 11
Police Intervention and Confinement within the Juvenile Justice System

12

197. Many children with mental health needs are arrested, detained, and taken into

13 custody by Washington’s Juvenile Rehabilitation Administration (JRA). The State of

14 Washington has found that 62% of children enter the custody of JRA with unmet mental health

15 needs.

16

198. Confinement within a juvenile detention facility and police intervention is not a

substitute for Intensive HC-based Services. Physical restraint frequently exacerbates these 17
children’s symptoms, treatment is frequently unavailable and these children are torn from their

18 families. Yet this is a tool frequently used in place of Intensive HC-based Services, particularly

19 mobile crisis care. For example, T.F. was placed in a facility in Idaho which used police

20 intervention in response to her mental health crises, was arrested while in the facility eight times

21 during her first four months of treatment, and spent the vast majority of the past six months in

22 juvenile criminal detention. At only 11-years-old, T.V. has been arrested and detained on

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 47 (Case No. 2:09-cv-01677-TSZ)
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1 multiple occasions. P.S., T.F., T.R. and E.D.’s only crisis plan was to call “9-1-1” for police

2 intervention. P.S. has Post Traumatic Stress Disorder and arrest by the police further traumatizes

him and exacerbates his condition. P.S. has requested a crisis plan and mobile crisis services to 3

avoid relying on the police, but the Defendants have failed to provide coverage for this necessary
4 service.

5

199. As one recent report stated:

6 “The concept of prevention – prevention of failure in school, job loss,

7

homelessness, criminal behavior and untold suffering – seems hardly to exist

within the public mental health system.”

8 Children’s Mental Health in Washington State: A Public Health Perspective Needs Assessment,

9 Washington Department of Health (November 2007). In order to protect Washington’s

10 Medicaid children and prevent further harm, Defendants must be compelled to comply with its

11 legal obligations.

VII. REQUISITES FOR RELIEF

12

200. By reason of the factual allegations set forth above, an actual controversy has

13 arisen and now exists between Plaintiffs and the Defendants. Plaintiffs contend that their rights

14 under the Constitution and laws of the United States are being violated, while the Defendants are

15 charged with enforcing and complying with those legal requirements. A declaration from this

16 Court that Plaintiffs’ rights have been violated is therefore necessary and appropriate.

17

201. Defendants’ failure to comply with the requirements of federal and state law will

18 result in irreparable harm to Plaintiffs. Plaintiffs have no plain, adequate, or complete remedy at

19 law to address the wrongs described herein. Plaintiffs therefore seek injunctive relief restraining

20 Defendants from engaging in the unlawful and unconstitutional acts and policies described

21 herein.

22

23
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1

VIII. CLAIMS FOR RELIEF

2

COUNT I

Violations of the Early and Periodic Screening,

3

Diagnostic and Treatment (EPSDT) Provisions of the Medicaid Act

4

202. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as

5 though fully set forth herein.

6

203. Defendants have failed to establish policies, procedures, and practices to ensure

7 Plaintiffs and members of the Plaintiff class receive adequate notice of the specific behavioral
and mental health treatment services available under the EPSDT provisions of the federal 8
Medicaid Act, including intensive, community and home-based mental health services, which 9
has the effect of denying these services to children with physical or mental illnesses or
10 conditions, in violation of 42 U.S.C. § 1396a(a)(43)(A).

11

204. Defendants have failed to provide or otherwise arrange for Plaintiffs and the

12 members of the Plaintiff class to receive the EPSDT early and periodic screening and diagnostic

13 services that would otherwise determine the existence of any physical or mental illnesses or
14 conditions, in violation of 42 U.S.C. §§ 1396a(a)(10)(A), 1396(a)(43)(B), 1396d(a)(4)(B), and 1396d(r)(1)(A).
15 205. Defendants have failed to provide or otherwise arrange for Plaintiffs and the
16 members of the Plaintiff class to receive the necessary behavior and mental health services,
17 including intensive, community and home-based mental health services, that would treat or

18 ameliorate their physical or mental illnesses or conditions, in violation of 42 U.S.C.

19 §§ 1396a(a)(10)(A), 1396a(a)(43)(C), and 1396d(r)(5).

20

206. Defendants’ actions and omissions described above violate 42 U.S.C. § 1983 by

depriving Plaintiffs and the members of the Plaintiff class of their statutory rights under the 21
EPSDT provisions of the federal Medicaid Act to receive necessary screening, diagnostic, and 22
treatment services and to receive notice of the availability of these services.
23

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1

COUNT II

Violation of the Comparability Provisions of the Federal Medicaid Act

2

3

207. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as

though fully set forth herein. 4
208. The “comparability” requirement of the Medicaid Act requires that all

5 categorically needy individuals with comparable needs receive comparable Medicaid funded

6 services. 42 U.S.C. § 1396a(a)(10)(B). The State violates the “comparability” requirement if it

7 reduces, denies, or terminates a Medicaid funded service for an individual for a reason other than

8 the individual’s needs consistent with 42 U.S.C. § 1396a(a)(30)(A).

9

209. The Defendants have failed to establish or maintain policies, procedures, or

practices that will prohibit reductions, terminations, or denials of medically necessary intensive 10
in home and community-based mental health services to children and youth on the bases of their 11
diagnoses, geographic location, and qualifications for child welfare DCFS services, in violation
12 of 42 U.S.C. § 1396a(a)(10)(B), which is enforceable by Plaintiffs pursuant to 42 U.S.C. § 1983.

13 COUNT III

14

Violation of the Due Process Provisions of the Federal Medicaid Act

15

210. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as

16 though fully set forth herein.

17

211. The Medicaid Act requires that participating states provide an opportunity for a

fair hearing for any individual whose request for Medicaid services have been denied or provided 18
with reasonable promptness. 42 U.S.C. § 1396a(a)(3). 19
212. Defendants have failed to establish and maintain customs, policies, and practices

20 to provide Plaintiffs and members of the Plaintiff class with adequate written notice of

21 reductions, terminations, and denials of Medicaid funded intensive home and community-based

22

23
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1 services and their rights to a pre-termination or reduction fair hearing, in violation of 42 U.S.C. §

2 1396a(a)(3), which is enforceable by Plaintiffs pursuant to 42 U.S.C. § 1983.

3

COUNT IV Violation of the Due Process Provision of the Fourteenth Amendment

of the United States Constitution

4

213. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as

5 though fully set forth herein.

6

214. The Due Process Clause of the United States Constitution establishes the right for

7 Plaintiffs and members of the Plaintiff class to receive adequate notice of reductions,

8 terminations, and denials of Medicaid funded services and their right to a fair hearing to
9 challenge such actions prior to implementation. See Goldberg v. Kelly, 397 U.S. 254 (1970); 42 U.S.C. § 1396a(a)(3).
10 215. Defendants have failed to establish and maintain customs, policies, and practices
11 to provide Plaintiffs and members of the Plaintiff class with adequate written notice of
12 reductions, terminations, and denials of Medicaid funded intensive home and community-based
13 services and their rights to a pre-termination or reduction fair hearing in violation of the Due

14 Process clause of the Fourteenth Amendment of the Constitution, which is enforceable by

15 Plaintiffs pursuant to 42 U.S.C. § 1983.

16

COUNT V Violation of Americans with Disabilities Act

and Section 504 of the Rehabilitation Act 17

18

216. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as

19 though fully set forth herein.
217. Plaintiffs and members of the Plaintiff class have behavioral, emotional, and 20
psychiatric impairments that qualify them as individuals with disabilities within the meaning of 21
the ADA, 42 U.S.C. § 12131(2), and are “otherwise qualified individuals with a disability”
22 within the meaning of the Rehabilitation Act, 29 U.S.C. § 794.

23

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1

218. Defendants are public officials of a public entity subject to the provisions of the

2 ADA. 42 U.S.C. § 12131(1)(A). Defendants’ agency receives federal financial assistance, and

Defendants are thus subject to the provisions of the Rehabilitation Act. 3
219. Defendants have failed to administer services, programs, and activities in the most 4
integrated setting appropriate to the needs of children who need intensive mental health services
5 in violation of the ADA and Rehabilitation Act.

6

220. Defendants have discriminated against Plaintiffs and members of the Plaintiff

7 class on the basis of their disabilities by failing to make reasonable modifications in their

8 policies, practices, or procedures. Reasonable modification of Defendants’ policies, practices, or

9 procedures would not fundamentally alter the nature of their services, programs, or activities, but rather would further Defendants’ stated goals. 28 C.F.R. § 35.130(b)(7).
10 221. Defendants have discriminated against Plaintiffs and members of the Plaintiff
11 class solely on the basis of disability in violation of the Rehabilitation Act and ADA by: (i)
12 failing to provide reasonable accommodations to allow Plaintiffs and members of the Plaintiff
13 class to participate fully in Defendants’ programs and receive adequate services; and (ii) failing

14 to provide and support appropriate community-based placements, instead requiring Plaintiffs and

15 members of the Plaintiff class to be confined in restrictive, institutional settings in order to access

16 necessary mental health services.

222. Defendants’ acts and omissions alleged herein have denied and continue to deny 17
Plaintiffs and members of the Plaintiff class the opportunity to benefit from Defendants’

18 services, programs, and activities.

19

IX. PRAYER FOR RELIEF

20

WHEREFORE, Plaintiffs respectfully request that this Court:

21

A. Assume jurisdiction over this action and maintain continuing jurisdiction until

22 Defendants are in full compliance with every order of this Court;

23
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1

B. Certify that Plaintiffs may maintain this action as a class action pursuant to

2 Rule 23(b)(2) of the Federal Rules of Civil Procedure and appoint the individual named Plaintiffs

as Class representatives; 3
C. Declare that Defendants’ policies, practices, acts, and omissions violate the 4
EPSDT and Comparability provisions of the Medicaid Act, which requires the Defendants to
5 provide for necessary intensive in-home and community-based mental health services;

6

D. Declare that Defendants’ policies, practices, acts, and omissions violate the due

7 process provision of the Medicaid Act and the Due Process Clause of the Fourteenth Amendment

8 to the United States Constitution, which require the Defendants to provide notice to the Plaintiffs
9 and members of the Plaintiff class informing them of their rights when a Medicaid service is terminated, suspended, reduced or denied and providing them with a pre-termination opportunity
10 to appeal such action;
11 E. Declare that Defendants’ policies, practices, acts, and omissions violate the
12 Plaintiffs’ rights to receive mental health services in the most integrated setting appropriate to
13 their needs under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;

14

F. Grant a preliminary and permanent injunction requiring the Defendants to:

15

1. establish and implement policies, procedures, and practices to screen and

16

assess members of the Plaintiff class for unmet mental health needs,

including intensive home and community-based services, to ensure that 17

class members are reliably identified and adequately served; 18
2. conduct professionally-adequate assessments of all Plaintiffs and members

19

of the Plaintiff class who reside in private or public mental health facilities

20

to determine whether intensive home and community-based mental health

21

services are necessary to treat or ameliorate their behavioral, emotional, or

22

psychiatric conditions;

23
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1

3. conduct professionally-adequate assessments of all Plaintiffs and members

2

of the Plaintiff class who reside in private or public mental health

facilities, and to determine whether or not such children are receiving 3

mental health services in the most integrated setting appropriate to their
4 individual needs.

5

4. provide meaningful notice to Medicaid-eligible children and their families

6

of the availability of the full range of Medicaid-funded mental health, and

7

behavioral services available under EPSDT program, including intensive

8

home and community-based services;

9

5. establish and implement policies, procedures, and practices that are

sufficient to ensure that the Plaintiffs and all members of the Plaintiff class 10
promptly receive coverage of necessary, intensive home and community11
based mental health services, including professionally-adequate

12

assessments, crisis and case management services;

13

6. establish and implement policies, procedures, practices, and

14

reimbursement rates to ensure that sufficient qualified providers are

15

available to offer intensive home and community-based mental health

16

services, including professionally-adequate assessments, crisis, and case

management services throughout the state and in a culturally appropriate 17
manner;

18 7. remove any barriers or criteria which prevent Medicaid-eligible children

19

from applying for and accessing necessary EPSDT mental health services,

20

including intensive home and community-based mental health services;

21

8. promptly provide intensive home and community-based mental health

22

services to all Plaintiffs who would benefit from them;

23
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 54 (Case No. 2:09-cv-01677-TSZ)
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1

G. Award to the Plaintiffs the reasonable costs and expenses incurred in the

2 prosecution of this action, including but not limited to reasonable attorneys’ fees and costs; and
H. Award such other equitable and further relief as the Court deems just and proper. 3
DATED this 24th day of October, 2011. 4

5

/s/Regan Bailey Regan Bailey, WSBA No. 39142

6

reganb@dr-wa.org Susan Kas, WSBA No. 36592

7 susank@dr-wa.org

DISABILITY RIGHTS WASHINGTON

8

315 5th Avenue South, Suite 850 Seattle, WA 98104

(206) 324-1521 9

10

/s/Patrick Gardner Patrick Gardner, CB No. 208199 pgardner@youthlaw.org Bryn Martyna, CB No. 239852 bmartyna@youthlaw.org Leecia Welch, WSBA No. 26590 lwelch@youthlaw.org NATIONAL CENTER FOR YOUTH LAW 405 14th Street, 15th Floor
Oakland, CA 94612 (510) 835-8098

11 /s/Susan E. Foster Susan E. Foster, WSBA No. 18030

12 SFoster@perkinscoie.com Frederick B. Rivera, WSBA No. 23008

13 FRivera@perkinscoie.com Travis A. Exstrom, WSBA No. 39309

14

TExstrom@perkinscoie.com Laura T. Ewbank

LEwbank@perkinscoie.com 15 PERKINS COIE LLP

1201 Third Avenue, Suite 4800 16 Seattle, WA 98101-3099
(206) 359.8000

17

Attorneys for Plaintiffs 18

/s/ Kimberly Lewis Kimberly Lewis, CB No. lewis@healthlaw.org NATIONAL HEALTH LAW PROGRAM 2639 S. La Cienega Blvd. Los Angeles, CA 90034 (310) 204-6010

19

20

21

22

23
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1 CERTIFICATE OF SERVICE
2
I hereby certify that on this 27th day of October 2011, I electronically filed the foregoing 3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing 4 to the following attorneys for Defendants: John McIlhenney Jr. (JohnM5@atg.wa.gov); Bill G.
Clark (BillC2@atg.wa.go); Eric Nelson (EricN1@atg.wa.gov); and Catherine R. Hoover 5 (CatherineH1@atg.wa.gov).

6

/s/Frederick B. Rivera

7

Frederick B. Rivera, WSBA No. 23008

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

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 Case 2:09-cv-01677-TSZ Document 100 Filed 03/07/12 Page 1 of 4

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 T.R., by and through his guardian and next friend, R.R.; S.P., by and through
10 her mother and next friend DH; C.A., by and through her mother and next friend,
11 A.A.; T.F., by and through her father and next friend, D.F.; P.S., by and through his
12 mother and next friend, W.S.; T.V., by and though his guardian and next friend,
13 C.D.; E.H. by and though his mother and next friend, C.H.; E.D. by and through his
14 mother and next friend A.D.; and L.F.S. by and though his mother and next friend,
15 B.S.,

NO. C09-1677 TSZ
ORDER REGARDING STIPULATED INTERIM AGREEMENT AND CASE SCHEDULE AMENDMENTS

16

Plaintiffs,

17

v.

18 SUSAN N. DREYFUS, not individually, by solely in her official capacity as
19 Secretary of the Washington State Department of Social and Health
20 Services; and J. DOUGLAS PORTER, not individually, but solely in his official
21 capacity as the Director of the Washington State Health Care Authority,
22
Defendants. 23

24

25

26

ORDER REGARDING STIPULATED

1

INTERIM AGREEMENT AND CASE

SCHEDULE AMENDMENTS

NO. C09-1677 TSZ

Case 2:09-cv-01677-TSZ Document 100 Filed 03/07/12 Page 2 of 4

1

This matter having come before the Court on the parties’ Stipulation Regarding Interim

2 Agreement and Joint Motion Amending Case Schedule, docket no. 99, and having been fully

3 heard and duly considered it is hereby
4 ORDERED THAT:
5

6

1. The Parties’ Interim Agreement, Exhibit 1 to their Stipulation, docket no. 99, is

7

APPROVED, and the Parties’ Joint Motion Amending Case Schedule, docket

8

no. 99, is GRANTED.

9

2. The Court is persuaded that the Interim Agreement does not impede the rights of

10 individual class members, who remain free to adjudicate their claims during the
11

course of the Interim Agreement, and that notice to class members pursuant to 12

13

Federal Rule of Civil Procedure 23(e) is not required.

14

3. The trial date of March 11, 2013, and all related deadlines are STRICKEN.

15

4. As set forth in the Parties’ Stipulation, this case will remain on the Court’s active

16 docket, and the Court shall have jurisdiction to enforce the terms of the Parties’

17 Stipulation, including the requirements and admissions of the Interim Agreement
18

19

incorporated therein, which the Parties have stipulated are binding upon them in

20

this action. All discovery and further litigation activity, other than that described

21

in the Interim Agreement, is STAYED pending further order of the Court.

22

5. The Parties are DIRECTED to file, not later than June 15, 2013, a Joint Status

23 Report regarding the status of the implementation of the Interim Agreement, the
24 status of continuing mediation efforts, and the resolution of the case.
25

26

ORDER REGARDING STIPULATED

2

INTERIM AGREEMENT AND CASE

SCHEDULE AMENDMENTS

NO. C09-1677 TSZ

Case 2:09-cv-01677-TSZ Document 100 Filed 03/07/12 Page 3 of 4

1

6. The Clerk is DIRECTED to UNSEAL the Parties’ Stipulation and Motion, docket

2

no. 99. The Clerk is further DIRECTED to send a copy of this Order to all

3 counsel of record.
4

IT IS SO ORDERED. 5

6

DATED this 7th day of March, 2012.

7 8

A

THOMAS S. ZILLY

9

United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING STIPULATED

3

INTERIM AGREEMENT AND CASE

SCHEDULE AMENDMENTS

NO. C09-1677 TSZ

Case 2:09-cv-01677-TSZ Document 100 Filed 03/07/12 Page 4 of 4

1 For Plaintiffs:

For Defendants:

2 /s/Regan Bailey

/s/ John K. McIlhenny

3 Regan Bailey, WSBA No. 39142 reganb@dr-wa.org

JOHN K. MCILHENNY, JR. WSBA No. 32195 JohnM5@atg.wa.gov

4 Susan Kas, WSBA No. 36592

CATHERINE R. HOOVER, WSBA No. 22049

susank@dr-wa.org

CatherineH1@atg.wa.gov

5 DISABILITY RIGHTS WASHINGTON BILL G. CLARK, WSBA No. 09234

6

315 5th Avenue South, Suite 850 Seattle, WA 98104

BillC2@atg.wa.gov ERIC NELSON, WSBA No. 27183

7 Telephone: (206) 324-1521 Facsimile: (206) 957-0729

EricN1@atg.wa.gov Assistant Attorneys General

8 /s/Frederick B. Rivera

Attorneys for Defendants

9 Susan E. Foster, WSBA No. 18030

SFoster@perkinscoie.com 10 Frederick B. Rivera, WSBA No. 23008

11

FRivera@perkinscoie.com Travis A. Exstrom, WSBA No. 39309

12 TExstrom@perkinscoie.com

PERKINS COIE LLP

13 1201 Third Avenue, Suite 4800

Office of the Attorney General 7141 Cleanwater Drive SW PO Box 40124 Olympia, WA 98504-0124 Telephone: (360) 586-6565
Attorneys for Defendants

Seattle, WA 98101-3099 14 Telephone: (206) 359.8000

15 Facsimile: (206) 359.9000

16

/s/Patrick Gardner Patrick Gardner, CB No. 208199

17 pgardner@youthlaw.org Bryn Martyna, CB No. 239852

18 bmartyna@youthlaw.org

19

NATIONAL CNTR FOR YOUTH LAW 405 14th Street, 15th Floor

20

Oakland, CA 94612 (510) 835-8098

21 /s/ Kimberly Lewis

22 Kimberly Lewis, CB No. 144879 lewis@healthlaw.org
23 NATIONAL HEALTH LAW

24

PROGRAM 3701 Wilshire Blvd, Suite 750

25

Los Angeles, CA 90\1030 (310) 736-1653

26

ORDER REGARDING STIPULATED

4

INTERIM AGREEMENT AND CASE

SCHEDULE AMENDMENTS

NO. C09-1677 TSZ

 
 Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 1 of 72
SEALED DOCUMENT DO NOT DISCLOSE
T.R. v. Dreyfus USDC C09-1677 TSZ STIPULATION REGARDING INTERIM AGREEMENT AND JOINT MOTION AMENDING CASE SCHEDULE And EXHIBIT 1 to Stipulation Regarding Interim Agreement And Joint Motion Amending Case Schedule
Exhibit 1 – Pages 11-72
1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 2 of 72

1

The Honorable THOMAS S. ZILLY

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 T.R., by and through his guardian and next friend, R.R.; S.P., by and through
10 her mother and next friend DH; C.A., by and through her mother and next friend,
11 A.A.; T.F., by and through her father and next friend, D.F.; P.S., by and through his
12 mother and next friend, W.S.; T.V., by and though his guardian and next friend,
13 C.D.; E.H. by and though his mother and next friend, C.H.; E.D. by and through his
14 mother and next friend A.D.; and L.F.S. by and though his mother and next friend,
15 B.S.,

NO. C09-1677 TSZ
STIPULATION REGARDING INTERIM AGREEMENT AND JOINT MOTION AMENDING CASE SCHEDULE

16

Plaintiffs,

17

v.

18 SUSAN N. DREYFUS, not individually, by solely in her official capacity as
19 Secretary of the Washington State Department of Social and Health
20 Services; and J. DOUGLAS PORTER, not individually, but solely in his official
21 capacity as the Director of the Washington State Health Care Authority,
22
Defendants. 23

24 I. INTRODUCTION
25 The parties, through their counsel, respectfully submit to this Court their Stipulation
26

STIPULATION REGARDING INTERIM

1

ATTORNEY GENERAL OF WASHINGTON

AGREEMENT AND JOINT MOTION

7141 CLEANWATER Dr SW PO Box 40124

AMENDING CASE SCHEDULE

Olympia, WA 98504-0124

2

NO. C09-1677 TSZ

(360) 586-6565

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 3 of 72

1 Regarding Interim Agreement and Joint Motion Amending Case Schedule. The parties hereby

2 move the Court to enter their Proposed Order staying discovery and other litigation activity,

3 issuing a new scheduling order, and agreeing to enforce the terms of the parties' Stipulated
4 Interim Agreement.
5

6

Further, the parties hereby stipulate, pursuant to FRE 408 and the Protective Order

7 entered in this action (ECF No. 22), that this Stipulation and the corresponding Proposed

8 Order, shall be filed under seal pursuant to the terms of the Protective Order. The parties

9 further stipulate and agree that upon entry of this Court’s Order, the Court may direct the Clerk
10 to unseal this Stipulation, including the appended Interim Agreement, and the Order, which 11
shall then become part of the public record in this action. 12
After many months of negotiations, the parties have entered into an Interim Agreement, 13
14 attached as Exhibit 1 to this Stipulation, that constitutes a significant and necessary step

15 towards laying the foundation for reforms in the delivery of intensive home and community-

16 based mental health services to Medicaid-eligible children and youth in Washington State. The

17 parties’ Interim Agreement is not a final settlement of, nor does it dispose of, the claims
18 brought by the Plaintiffs in this case. The parties agree, however, that the Interim Agreement 19
is an important milestone in this litigation, which warrants a stay of discovery and active 20 21 litigation during the term of the Interim Agreement, while the parties implement their
22 agreement and continue to work collaboratively towards a final settlement that resolves the

23 entire case.

24

As discussed below, the parties stipulate that the terms of the Interim Agreement are

25 enforceable by this Court and that this Court will retain jurisdiction over the litigation during 26

STIPULATION REGARDING INTERIM

2

ATTORNEY GENERAL OF WASHINGTON

AGREEMENT AND JOINT MOTION

7141 CLEANWATER Dr SW PO Box 40124

AMENDING CASE SCHEDULE

Olympia, WA 98504-0124

3

NO. C09-1677 TSZ

(360) 586-6565

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 4 of 72

1 implementation of the Interim Agreement and until the underlying claims of this lawsuit are

2 resolved. The parties further stipulate and request an order from this Court that stays discovery
3 and other litigation activities during the term of the Interim Agreement; strikes the trial date,
4 now set for March 11, 2013, and other court deadlines; and issues a new Case Scheduling
5 6 Order requiring the parties to submit a Joint Status Report to the Court not later than
7 June 15, 2013.

8

II. FACTS

9

After extensive mediation lasting more than one year, the parties have reached an

10 Interim Agreement that will be implemented during the remainder of the State Budget 2011-

11 2013 fiscal biennium, ending June 30, 2013. The full background of the case and the course of
12
mediation is set forth in the Interim Agreement, pp. 3-6. 13

14

The Interim Agreement requires the Defendants to undertake those planning and

15 development activities necessary to lay a foundational base to implement the services

16 demanded in the Complaint. Those activities are fully set forth in the Interim Agreement,

17 pp. 10-28, and include the following:

18 1. Adoption of universal principles and a core practice model to be used to guide the
19 provision of services to the class members;
20

21

2. Development of a cross-system governance structure;

22

3. Beginning of implementation of a uniform screening and assessment tool to be used

23

for potential class members;

24 4. Development of guidelines, instructions and training for the screening, assessment
25 of class members who may receive intensive home and community-based services;
26

STIPULATION REGARDING INTERIM

3

ATTORNEY GENERAL OF WASHINGTON

AGREEMENT AND JOINT MOTION

7141 CLEANWATER Dr SW PO Box 40124

AMENDING CASE SCHEDULE

Olympia, WA 98504-0124

4

NO. C09-1677 TSZ

(360) 586-6565

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 5 of 72

1

5. Promotion of the development of child and family teams;

2 6. Development of financing strategies for funding future services; and

3

4

7. Beginning of development of a quality management strategy.

5

The Interim Agreement also requires Defendants to make certain admissions if the

6 parties are unable to develop a subsequent agreement prior to July 1, 2013, and the Plaintiffs

7 seek relief from the Court. Under such circumstances, Defendants have agreed to admit that:

8

1. The WIYS array is covered under Washington’s Medicaid state plan to the extent

9 that services are eligible for federal financial participation as Medicaid-covered
10

services; 11

12

2. Plaintiffs’ First Amended Complaint is properly plead; Plaintiffs have a private

13

right of action under 42 U.S.C. § 1983 to enforce the provisions under the Medicaid

14

Act and Americans with Disabilities Act; the Court has both personal and subject

15

matter jurisdiction of the matter; and venue is proper in the U.S. District Court,

16 Western District of Washington; and
17

18

3. Delay in filing any motion for preliminary injunction during the negotiation or

19

implementation periods relating to the Agreement is not evidence that there is no

20

imminent harm or threat to the Plaintiffs.

21

The Interim Agreement was developed in the context of a deep and prolonged recession

22 that has prevented the Defendants from agreeing to long-term fiscal commitments when
23 funding for future services could not be guaranteed. Accordingly, the Interim Agreement was
24 structured to be short-term and implemented within expressly identified, existing resources.
25
26 Interim Agreement, p. 5, ¶ 9.

STIPULATION REGARDING INTERIM

4

ATTORNEY GENERAL OF WASHINGTON

AGREEMENT AND JOINT MOTION

7141 CLEANWATER Dr SW PO Box 40124

AMENDING CASE SCHEDULE

Olympia, WA 98504-0124

5

NO. C09-1677 TSZ

(360) 586-6565

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 6 of 72

1

III. BASIS FOR STIPULATION

2

There are compelling reasons for the parties’ stipulation and requested order. First,

3 significant consideration and resources went into the mediation process in order to arrive at the
4 Interim Agreement. Negotiations were conducted at arm’s length with the involvement of
5

6 mediators at first, and then directly between the parties without neutrals. Interim Agreement,

7 p. 4, ¶ 6. This process took over a year and has forged a mutual respect and collaboration

8 between the parties allowing for an increased likelihood of successful resolution of this case in

9 the future.

10

Second, although the mediation did not conclude with a settlement, the process of the

11 mediation and the commitments made lay the foundation for further settlement discussions,
12
much like the initial reforms in other cases involving the same subject matter. See Katie A. v. 13

14 Bontá, No. CV-02-05662 AHM (C.D. Cal.).

15

Third, Class members will benefit from the implementation of the Interim Agreement

16 during the stay in proceedings. Specifically, class members will benefit from the adoption of

17 the T.R. Principles and the Core Practice Model which will guide how services are provided,
18 the development and implementation of a uniform screening and assessment tool, and the 19
promotion of child and family teams. These are tangible benefits that facilitate effective case 20 21 management services for class members. Similarly, structural changes required by the Interim
22 Agreement benefit class members by putting in place the quality management, governance and

23 infrastructure to sustain effective and responsive intensive mental health services in the

24 community. Notwithstanding these benefits to class members, the Interim Agreement is not a

25 dispositive resolution of the case. Individual class members remain free to adjudicate their 26

STIPULATION REGARDING INTERIM

5

ATTORNEY GENERAL OF WASHINGTON

AGREEMENT AND JOINT MOTION

7141 CLEANWATER Dr SW PO Box 40124

AMENDING CASE SCHEDULE

Olympia, WA 98504-0124

6

NO. C09-1677 TSZ

(360) 586-6565

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 7 of 72

1 claims and will not have their rights affected during the course of the Interim Agreement. The

2 Interim Agreement is not a settlement or voluntary dismissal that binds the class or raises due

3 process concerns. See Fed. R. Civ. P. 23(e); Redhail v. Zablocki, 418 F. Supp. 1061
4 (E.D. Wis. 1976), judgment aff’d, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 618 (1978).
5

6

Finally, the Interim Agreement enhances the parties’ chances for reaching ultimate

7 resolution of this matter. During the pendency of the Interim Agreement, the parties will

8 continue to negotiate to resolve the underlying claims in this lawsuit. The Interim Agreement

9 allows the Defendants to take immediate steps to address structural and planning needs, and to

10 position the children’s community based mental health system for possible resolution of such

11 claims in future negotiations.
12
IV. CASE MANAGEMENT 13

14

As a result of the parties’ Interim Agreement, the parties stipulate that they will forego

15 active litigation at this time. The parties further stipulate that the terms of the Interim

16 Agreement are enforceable by this Court and that this Court shall have jurisdiction over the

17 litigation during implementation of the Interim Agreement and until the underlying claims in
18 this lawsuit are resolved. 19
The parties jointly request an order from this Court that stays discovery and other 20 21 litigation activities; strikes the trial date, now set for March 11, 2013, and other court
22 deadlines; and issues a new Case Scheduling Order requiring the parties to submit a Joint

23 Status Report to the Court not later than June 15, 2013. However, either party may move to

24 amend the case schedule and to lift the stay on discovery and other litigation activity consistent

25 with the dispute resolution provisions in the Interim Agreement at paragraphs 92-97. 26

STIPULATION REGARDING INTERIM

6

ATTORNEY GENERAL OF WASHINGTON

AGREEMENT AND JOINT MOTION

7141 CLEANWATER Dr SW PO Box 40124

AMENDING CASE SCHEDULE

Olympia, WA 98504-0124

7

NO. C09-1677 TSZ

(360) 586-6565

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 8 of 72

1

V. CONCLUSION

2

Based on the foregoing, the parties respectfully submit this Stipulation Regarding

3 Interim Agreement and Joint Motion Amending Case Schedule, as well as the attached
4 Proposed Order for this Court’s approval.
5

6

Respectfully Submitted this 5th day of March, 2012.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

STIPULATION REGARDING INTERIM

7

ATTORNEY GENERAL OF WASHINGTON

AGREEMENT AND JOINT MOTION

7141 CLEANWATER Dr SW PO Box 40124

AMENDING CASE SCHEDULE

Olympia, WA 98504-0124

8

NO. C09-1677 TSZ

(360) 586-6565

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 9 of 72

1 For Plaintiffs:

For Defendants:

2 /s/Regan Bailey

/s/ John K. McIlhenny

3 Regan Bailey, WSBA No. 39142 reganb@dr-wa.org

JOHN K. MCILHENNY, JR. WSBA No. 32195 JohnM5@atg.wa.gov

4 Susan Kas, WSBA No. 36592

CATHERINE R. HOOVER, WSBA No. 22049

susank@dr-wa.org

CatherineH1@atg.wa.gov

5 DISABILITY RIGHTS WASHINGTON BILL G. CLARK, WSBA No. 09234

6

315 5th Avenue South, Suite 850 Seattle, WA 98104

BillC2@atg.wa.gov ERIC NELSON, WSBA No. 27183

7 Telephone: (206) 324-1521 Facsimile: (206) 957-0729

EricN1@atg.wa.gov Assistant Attorneys General

8 /s/Frederick B. Rivera

Attorneys for Defendants

9 Susan E. Foster, WSBA No. 18030

SFoster@perkinscoie.com 10 Frederick B. Rivera, WSBA No. 23008

11

FRivera@perkinscoie.com Travis A. Exstrom, WSBA No. 39309

12 TExstrom@perkinscoie.com

PERKINS COIE LLP

13 1201 Third Avenue, Suite 4800

Office of the Attorney General 7141 Cleanwater Drive SW PO Box 40124 Olympia, WA 98504-0124 Telephone: (360) 586-6565
Attorneys for Defendants

Seattle, WA 98101-3099 14 Telephone: (206) 359.8000

15 Facsimile: (206) 359.9000

16

/s/Patrick Gardner Patrick Gardner, CB No. 208199

17 pgardner@youthlaw.org Bryn Martyna, CB No. 239852
18 bmartyna@youthlaw.org

NATIONAL CNTR FOR YOUTH LAW 19 405 14th Street, 15th Floor

20

Oakland, CA 94612 (510) 835-8098

21 /s/ Kimberly Lewis

22 Kimberly Lewis, CB No. 144879 lewis@healthlaw.org
23 NATIONAL HEALTH LAW

24

PROGRAM 3701 Wilshire Blvd, Suite 750

25

Los Angeles, CA 90\1030 (310) 736-1653

26

STIPULATION REGARDING INTERIM

8

ATTORNEY GENERAL OF WASHINGTON

AGREEMENT AND JOINT MOTION

7141 CLEANWATER Dr SW PO Box 40124

AMENDING CASE SCHEDULE

Olympia, WA 98504-0124

9

NO. C09-1677 TSZ

(360) 586-6565

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 10 of 72

1

CERTIFICATE OF SERVICE

2

Kristi Basic, states and declares as follows:

3

I am a citizen of the United States of America and over the age of 18 years and I am

4 competent to testify to the matters set forth herein.

5

I hereby certify that on March 5th, 2012, I electronically filed the foregoing document

6 with the Clerk of the Court using the CM/ECF system, which will send notification of such

7 filing to the following:

8

Regan Bailey

reganb@dr-wa.org

Susan Linn Kas

susank@dr-wa.org

9

Susan E. Foster

sfoster@perkinscoie.com

Frederick B. Rivera

FRivera@perkinscoie.com

10

Travis A. Exstrom

TExstrom@perkinscoie.com

Laura T. Ewbank

LEwbank@perkinscoie.com

11

Patrick Gardner

pgardner@youthlaw.org

Bryn Martyna

bartyna@youthlaw.org

12

Kimberly Lewis

lewis@healthlaw.org

Jane Perkins

perkins@healthlaw.org

13

Erica Turcious

eturcious@youthlaw.org

Leecia Welch

lwelch@youthlaw.org

14

15

I certify under penalty of perjury under the laws of the state of Washington that the

16 foregoing is true and correct.

17

DATED this 5th day of March, 2012, at Tumwater, Washington.

18

/s/ Kristi Basic

19

KRISTI BASIC

Legal Assistant

20

Office of the Attorney General

21

7141 Cleanwater Drive SW

PO Box 40124

22

Olympia, WA 98504-0124

(360) 586-6565 23

24

25

26

STIPULATION REGARDING INTERIM

9

ATTORNEY GENERAL OF WASHINGTON

AGREEMENT AND JOINT MOTION

7141 CLEANWATER Dr SW PO Box 40124

AMENDING CASE SCHEDULE

Olympia, WA 98504-0124

10

NO. C09-1677 TSZ

(360) 586-6565

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 11 of 72

T.R. v. DREYFUS, No. C09-1677 – TSZ INTERIM AGREEMENT AND PROPOSED ORDER
2-01-2012 Negotiators’ Draft Interim Agreement

TABLE OF CONTENTS
I. PURPOSE AND OBJECTIVES OF THIS AGREEMENT..................................................... 3
II. BACKGROUND...................................................................................................................... 3
III. JURISDICTION AND AUTHORITY OF THE COURT ....................................................... 6
IV. EFFECT OF INTERIM AGREEMENT AND NEGOTIATION OF A SUBSEQUENT AGREEMENT ................................................................................................................................. 7
V. GOALS...................................................................................................................................... 9
VI. COMMITMENTS.................................................................................................................. 10
A. T.R. Principles ...................................................................................................................... 11 B. Population And Service Definition....................................................................................... 13
1) Washington Individualized Youth Services (WIYS)........................................................ 13 2) Class Member Proxy......................................................................................................... 14 C. Screening, Assessment And Access To Care ....................................................................... 15 1) Access Model ..................................................................................................................... 15 2) Screening and Assessment ................................................................................................ 16 D. Service Delivery ................................................................................................................... 17 1) Core Practice Model.......................................................................................................... 17 2) Child and Family Teams (CFT) ......................................................................................... 18 E. System Collaboration / Governance Model.......................................................................... 19 F. Quality Management And Quality Improvement Strategy ................................................... 20 G. Due Process .......................................................................................................................... 23 H. Implementation..................................................................................................................... 24 1) Implementation Plan ......................................................................................................... 24 2) Report On Implementation................................................................................................ 25
VII. EXPECTED ACHIEVEMENTS .......................................................................................... 26

Page 1

11

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 12 of 72
A. Population and Service Definition Achievements................................................................ 26 B. System Collaboration Achievements.................................................................................... 26 C. Access and Assessment Achievements ................................................................................ 27 D. Service Delivery Achievements ........................................................................................... 27 E. Quality Management Achievements..................................................................................... 28 VIII. DISPUTE RESOLUTION.................................................................................................... 28 IX. SCOPE OF RELEASES AND WAIVERS............................................................................ 30 X. PLAINTIFF COUNSEL ACCESS TO INFORMATION ..................................................... 31 A. Non-Confidential Implementation Data and Information .................................................... 31 B. Confidential Information Contained In Class Member Individual Records......................... 32 XI. ATTORNEYS’ FEES AND COSTS ..................................................................................... 33 XII. OTHER PROVISIONS......................................................................................................... 33
APPENDICES Appendix A: Washington Individualized Youth Services (WIYS) Appendix B: Administrative Data Proxies for Identifying Children and Youth To Be Screened
for Need for Intensive Home- and Community-based Mental Health Services Appendix C: T.R. Governance Structure Appendix D: Core Practice Model Appendix E: The Child and Family Team Appendix F: Commitments Appendix G: Expected Achievements

Page 2

12

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 13 of 72

I. PURPOSE AND OBJECTIVES OF THIS AGREEMENT

1.

The purpose of this Interim Agreement (“Agreement”) is to set forth a plan and

process for the State of Washington to develop a foundation for the delivery of intensive home

and community based mental health services to Medicaid eligible children and youth, in

substantial compliance with Title XIX of the federal Social Security Act, and specifically the

Early Periodic Screening, Diagnostic, and Treatment (EPSDT) provisions of Medicaid, 42 U.S.C.

§ 1396d(r)(5). The objective of this Interim Agreement is to establish the infrastructure and

necessary collaboration towards the readiness to provide intensive home and community based

mental health treatment and supports that will be delivered in accordance with the principles and

practices described herein, and are provided statewide in a sustained manner over time.

2.

This Agreement includes three distinct components: goals, commitments, and

achievements. The goals are intended to provide guidance to the overall planning and

implementation of the Agreement. As guidelines, the goals are not enforceable. The

commitments are items or actions that Defendants agree to do to implement the Agreement.

During the pendency of this Agreement, Defendants will substantially comply with each of the

commitments as set forth herein based on a phased-in period of implementation. The

achievements are the sole objective measures that, when accomplished at the end of this

Agreement, indicate that Defendants are in substantial compliance with the terms of the

Agreement.

II. BACKGROUND

3.

Plaintiffs brought this lawsuit entitled T.R. et al. v. Susan Dreyfus et al.

(the "T.R. Litigation"), filed November 24, 2009, case no. C09-1677-JPD, seeking certification of

Page 3

13

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 14 of 72

a class and declaratory and injunctive relief against Susan Dreyfus, Secretary of the Washington

State Department of Social and Health Services. The lawsuit was subsequently assigned to the

Hon. Thomas Zilly, Senior District Court Judge, as case number C09-1677-TSZ.

4.

On July 23, 2010, this case was certified as a class action for purposes of all

causes of action in Plaintiffs’ Complaint.

5.

The class was defined as: all persons under the age of 21 who now or in the

future (1) meet or would meet the State of Washington’s Title XIX Medicaid financial eligibility

criteria; (2) are determined and documented by a licensed practitioner of the healing arts operating

within the scope of their practice as defined by Washington state law, to have a mental illness or

condition, or had a screen or an assessment been conducted by such practitioner, would have been

determined and documented to have a mental illness or condition; (3) have a functional

impairment, which substantially interferes with or substantially limits the ability to function in the

family, school or community setting; and (4) for whom intensive home and community based

services coverable under Title XIX Medicaid and eligible for Federal Financial Participation,

have been, or would have been recommended by a licensed practitioner in order to correct or

ameliorate a mental illness or condition.

6.

On January 6, 2011, the parties began intensive efforts to negotiate the

settlement of this case. The parties conducted seven mediation sessions with the assistance of

mediators Theresa Wakeen, J.D., of Seattle, and Kathleen Noonan, Clinical Professor of Law, at

the University of Wisconsin Law School in Madison. Thereafter, the parties undertook direct

mediation sessions without the assistance of mediators. From March 19, 2011 to October 16,

2011, the parties held approximately 21 direct sessions, achieving substantial progress.

Page 4

14

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 15 of 72

Ms. Wakeen is no longer employed by the parties; however, Professor Noonan remains available

to the parties to resolve matters where the parties are unable to reach Agreement, as set forth in

the dispute resolution provisions herein.

7.

Plaintiffs filed their First Amended Complaint on October 27, 2011, adding

J. Douglas Porter, Director of the Washington State Health Care Authority, as a defendant. The

First Amended Complaint is the operative pleading in this action.

8.

This Agreement does not settle the claims in the TR litigation. Nonetheless, the

parties agree that the best interests of the class will be substantially advanced by the

implementation of the commitments reflected in this Agreement.

9.

The parties acknowledge that a deep, prolonged recession has taken the greatest

toll since the Great Depression on the State’s economy and its revenues. As a result, the parties

acknowledge that the Defendants intend to implement this Agreement within legislative

appropriations. This Agreement does not require Defendants to seek, nor does it preclude

Defendants from seeking, additional legislative appropriations to accomplish the goals,

commitments and achievements of the Agreement. Nothing in this Agreement is intended to, nor

does it, impair the rights of children to EPSDT services.

10.

This Agreement is not to be construed as an admission of liability or

wrongdoing by the Defendants subject to the specific admissions set forth in paragraph 20(b).

The Defendants assert that they have meritorious defenses in response to the allegations of the

Plaintiffs’ Class. The Defendants have entered into this Agreement solely for the purpose of

laying a foundation for system reform and to avoid the expense and diversion of resources caused

by protracted litigation.

Page 5

15

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 16 of 72

11.

In consideration of the covenants and undertakings set forth herein and

intending to be legally bound thereby, it is stipulated and agreed by the Plaintiffs and the

Defendants, represented by their authorized signatories, that Defendants will undertake the

commitments herein during the term of this Agreement.

III. JURISDICTION AND AUTHORITY OF THE COURT

12.

The United States District Court has jurisdiction over the claims against all

Defendants pursuant to 28 U.S.C. §§ 1331, 1343(a). Venue is proper in the Western District of

Washington pursuant to 28 U.S.C. § 1391(b).

13.

The parties to this interim Agreement acknowledge that this Agreement is not a

settlement of the claims set forth in T.R. v. Dreyfus, et al. The parties acknowledge this

Agreement establishes commitments and achievements to which State Defendants agree to be

bound during the term of the Agreement. The parties acknowledge that this Agreement calls for

the cessation of litigation activities in this case for the term of the Agreement. The parties further

acknowledge this Court will continue to have jurisdiction over this Agreement during that period.

14.

Upon execution of this agreement the parties shall file with this Court a

Stipulated Motion and Proposed Order asking the Court to:

a). Enter an Order regarding enforcement of this Interim Agreement,

b). Strike the pre-trial deadlines and trial date in the current case scheduling order, and

c) Enter a new case scheduling order requiring the parties to file with this Court a

Joint Status Report not later than June 15, 2013.

15.

Because this Agreement is not a final settlement of the claims set forth in T.R. v.

Dreyfus, et al, and does not bind the members of the class, the parties believe that notice to the

Page 6

16

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 17 of 72

Class and a hearing on this proposed order are not required under FRCP 23 prior to entry of an

Order regarding enforcement of this Agreement. Accordingly, the parties will ask the Court to

enter its Order herein without formal notice to the Class, other than notice to the individual class

representatives in this case. Should the Court determine that notice to the broader Class is

required, the parties will provide said notice as directed by the Court.

16.

Except as otherwise noted, the terms of this Agreement shall not take effect

until the Court issues its Order regarding enforcement of this Agreement.

IV. EFFECT OF INTERIM AGREEMENT AND NEGOTIATION OF A SUBSEQUENT

AGREEMENT

17.

The parties anticipate that Defendants will accomplish the achievements of this

Agreement on or before June 30, 2013. The term of this Interim Agreement ends on June 30,

2013. Nothing in this Interim Agreement shall obligate Defendants to enter into a second interim

agreement.

18.

Prior to expiration, the Parties agree to use best efforts to negotiate a second

agreement to continue implementation of the reforms outlined herein. Any second agreement,

known as a “subsequent agreement”, may address the roll out of Washington Individualized Youth Services (WIYS)1 statewide, and may include settlement of some or all of Plaintiffs’ legal

claims.

19.

To negotiate the terms of any subsequent agreement the parties will:

1 The array of services is briefly described in Paragraph 24 in this Agreement, and more fully described in Appendix A.
Page 7

17

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 18 of 72

a) Meet and confer, no later than January 2013, to exchange information and establish a

meeting schedule that anticipates the parties’ best efforts to negotiate the terms of any

subsequent agreement.

b) Establish milestones for the completion of specific components of any subsequent

agreement and place those milestones in a timeline, the end point for which will be

June 30, 2013.

c) Use their best efforts to adhere to the established negotiation schedule and timeline.

d) Initiate those steps necessary to gain approval of any subsequent agreement, if

successfully developed, by their respective approving authorities.

e) Apply to the Court for preliminary and final approval of any subsequent agreement,

pursuant to FRCP 23(c) in the event any subsequent agreement contains a final

resolution or settlement of any claim or all claims set forth in T.R. v. Dreyfus, et al.

20.

In the event that the Parties do not develop a subsequent agreement before July

1, 2013, the Parties may:

a) By mutual consent and with the approval of the Court extend the deadline for

completing the subsequent agreement and continue to implement this Agreement in

the interim; or

b) Upon 30 days notice, move the Court for appropriate relief on the underlying cause(s)

of action, but not before July 1, 2013. Should Plaintiffs file such a motion, Defendants

agree to the following admissions:

(1) The WIYS array is covered under Washington’s Medicaid state plan to the extent the

services are eligible for federal financial participation as Medicaid-covered services;

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(2) Plaintiffs’ First Amended Complaint is properly plead; Plaintiffs have a private right

of action under 42 U.S.C. § 1983 to enforce the provisions under the Medicaid Act and the

Americans with Disabilities Act; the Court has both personal and subject matter jurisdiction of

this matter; and venue is proper in the U.S. District Court, Western District of Washington; and

(3) Delay in filing any motion for preliminary injunction during the negotiation or

implementation periods relating to the Agreement is not evidence that there is no imminent harm

or threat to Plaintiffs.

The admissions set forth in this paragraph shall be in effect throughout the term of this Court’s

jurisdiction of the lawsuit.

V. GOALS

21.

The goals of this Agreement are to:

a) Identify the WIYS array and population to be served, and establish procedures for

determining who is eligible for, and, once implemented, how they may gain access to,

those services.

b) Set up practices and procedures consistent with the principles and core practice model

established under this Agreement to guide interagency efforts to collaborate and

coordinate delivery of care to class members in order to improve the effectiveness of

services and outcomes for families and youths. Improving collaboration among child-

serving agencies is intended to reduce fragmentation of services for class members,

avoid duplication and waste, and lower costs.

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c) Establish a consistent screening, assessment and referral (where indicated) procedure

statewide that will facilitate access to services under this Agreement regardless of

entry point, for all putative class members.

d) Provide the foundation for the provision of services statewide consistent with the

principles and core practice model under this Agreement, and develop and maintain a

comprehensive service array in order to provide class members with timely access to

medically necessary services.

e) Make systemic changes in the way intensive home and community based services are

delivered to eligible children and youth in order to, among other things, minimize out

of home placements and maximize the class members’ potential to grow into healthy

and independent adults.

f) Identify quality management tools and measures to be developed in order to report on,

provide, and improve quality of care, and to provide transparency and accountability

to families, youths, and stakeholders under this Agreement. Provide due process

consistent with this Agreement to class members denied services.

g) Arrive at Agreements based on three fundamental considerations: (1) what is required

of the Defendants, including achieving substantial compliance with Commitments and

Achievements, is within the Defendants’ control, (2) the standards used to determine

whether the State has accomplished those achievements are objective and measurable,

and (3) state resources are efficiently and effectively used.

VI. COMMITMENTS

22.

Defendants agree to the commitments contained within this Section:

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A. T.R. Principles

23.

Defendants agree to operate a Medicaid-funded mental health system that

delivers services to children and youth guided by the following Principles:

a) Family and Youth Voice and Choice: Family and child voice, choice and preferences

are intentionally elicited and prioritized during all phases of the process, including

planning, delivery, transition, and evaluation of services. Services and interventions

are family-focused and child-centered from the first contact with or about the family or

child.

b) Team-based: Services and supports are planned and delivered through a multi-agency,

collaborative teaming approach. Team members are chosen by the family and

connected to them through natural, community, and formal support and service

relationships. The team works together to develop and implement a plan to address

unmet needs and work toward the family’s vision.

c) Natural Supports: The team actively seeks out and encourages the full participation

of team members drawn from family members’ networks of interpersonal and

community relationships (e.g. friends, neighbors, community and faith-based

organizations). The care plan reflects activities and interventions that draw on sources

of natural support to promote recovery and resiliency.

d) Collaboration: The system responds effectively to the behavioral health needs of

multi-system involved children and their caregivers, including children in the child

welfare, juvenile justice, developmental disabilities, substance abuse, primary care,

and education systems.

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Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 22 of 72

e) Home and Community-based: Children are first and foremost safely maintained in, or returned to, their own homes. Services and supports strategies take place in the most inclusive, most responsive, most accessible, most normative, and least restrictive setting possible.
f) Culturally Relevant: Services are culturally relevant and provided with respect for the values, preferences, beliefs, culture, and identity of the child/youth and family and their community.
g) Individualized: Services, strategies, and supports are individualized and tailored to the unique strengths and needs of each child and family. They are altered when necessary to meet changing needs and goals or in response to poor outcomes.
h) Strengths-based: Services and supports are planned and delivered in a manner that identifies, builds on, and enhances the capabilities, knowledge, skills, and assets of the child and family, their community, and other team members.
i) Outcome-based: Based on the family’s needs and vision, the team develops goals and strategies, ties them to observable indicators of success, monitors progress in terms of these indicators, and revises the plan accordingly. Services and supports are persistent and flexible so as to overcome setbacks and achieve their intended goals and outcomes. Safety, stability and permanency are priorities.
j) Unconditional: A child and family team’s commitment to achieving its goals persists regardless of the child’s behavior, placement setting, family’s circumstances, or availability of services in the community. The team continues to work with the family toward their goals until the family indicates that a formal process is no longer required.

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Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 23 of 72

B. Population And Service Definition

1) Washington Individualized Youth Services (WIYS)

24.

Defendants will develop a written “crosswalk” that matches the following

Medicaid covered mental health services for eligible children and youths to Washington Medicaid

State Plan Modalities: (1) Mobile Crisis Intervention and Stabilization Services, (2) Intensive

Care Coordination, and (3) Intensive Home and Community Based Direct Services. WIYS are

more fully described in Appendix A. The crosswalk will describe the services and their

components, who is authorized to provide them, and how an agency or provider may authorize

and bill for them. In accordance with the Principles, Core Practice Model, Access Model,

Governance Model, and existing Washington State Medicaid State Plan, Defendants will develop: a) a funding strategy to expand capacity statewide2 for use in any subsequent

Agreement;

b) a plan to train and coach providers and Prepaid Inpatient Health Plans (PIHP) to

prepare to deliver these intensive services; and

c) a plan to transition existing intensive services capacity to the WIYS array to the extent

feasible using existing resources.

25.

Defendants will define initial expected service utilization among PIHPs of

WIYS not later than April 1, 2013.

26.

Upon the Court entering an order regarding enforcement of this Agreement:

a) Defendants will offer a reassessment to each of the eight named plaintiffs currently

enrolled in the WA Medicaid program within 20 days.

2 “Statewide” means sufficient in quantity, scope, duration, and geographic distribution to meet the needs of class members in each PIHP service area.

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Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 24 of 72

b) This reassessment will be scheduled within 60 days or at the Plaintiff’s convenience.

The reassessment will determine the client’s current need for intensive home and

community based mental health services.

c) Defendants will provide medically necessary services to address these needs as soon

as possible but no later than 90 days after reassessment.

d) Any variance to these timeframes will be documented in the client file.

27.

Defendants will develop a flexible statewide communications plan for outreach

and education of the community, stakeholders, and families about eligible children and youths

and the WIYS array to be developed within six months of a signed agreement in concert with the

implementation plan. Information will be provided with appropriate translations and other

necessary accommodations to promote recipient understanding.

2) Class Member Proxy

28.

The Population Proxy Model (“the Proxy”) is an aggregation of historical data

from actual children who had a mental illness or condition and a functional impairment that the

Parties surmised would be similar to the characteristics of potential class members. The Proxy is

attached hereto and incorporated herein as Appendix B. The Proxy was designed, in part, to

inform the parties as to the potential numbers and characteristics of the actual class. The Proxy

also informs as to potential costs and need for increased system capacity. The Proxy represents

potential cross-system service utilization and helps distinguish the numbers of children and youth

who are exclusively served by PIHPs, jointly served by PIHPs and allied agencies and partners,

and exclusively served by allied agencies and partners. The Proxy may be refined as additional

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Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 25 of 72

data becomes available to Defendants, particularly with respect to children and youth who have

an Individualized Education Plan (IEP).

29.

Defendants will develop a plan to screen children and youth who have a mental

illness or condition and functional impairment as listed in the Proxy. Defendants will develop

instructions, guidance and/or technical assistance so that PIHPs, providers, allied agencies and

partners are prepared to screen children and youth for the presence of the functional indicators

contained in the Proxy.

C. Screening, Assessment And Access To Care

1) Access Model

30.

Defendants will develop an access model to be fully implemented in any

subsequent Agreement that describes access pathways to WIYS consistent with this Agreement

within six months of the Court entering an order regarding enforcement of this Agreement. The

Access Model will include elements that address all of the following:

a) screening all putative class members, including those children and youth who have a

mental illness or condition and functional impairment as listed in the Proxy, for

appropriate services;

b) identifying youth who may need WIYS;

c) providing timely access to medically necessary WIYS for class members already being

served by the PIHPs;

d) developing cross-system protocols to facilitate entry from any of the child-serving

agencies; and

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Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 26 of 72

e) providing for continuity of care3 for children and youth receiving WIYS, particularly

for those in transition.

31.

Defendants will begin transitioning existing intensive services capacity to the

WIYS array in accordance with the completed transition plan, subject to existing resources and

PIHP capacity.

32.

The Access Model developed pursuant to this subsection is not intended to, nor

shall it, restrict the rights of individuals to medical assistance under EPSDT.

2) Screening and Assessment

33.

Defendants will begin to implement the Child and Adolescent Needs and

Strengths (CANS) tool no later than June 30, 2013. The CANS is an assessment strategy and

communication tool and will be used to inform: screening, level of care decisions, standardization

of referrals, clinical practice, measurement of individual outcomes, resource and program

management, and improvement of service access and service coordination consistent with T.R.

Principles and the Core Practice Model.

34.

Defendants will train providers to recognize functional impairments commonly

associated with the functional indicators identified in the T.R. class proxy criteria and evaluate if

they amount to a high risk behavior, as defined under 1915(b) Waiver Access to Care Standards,

and exist due to the presence of a mental health condition (Diagnosis B “Additional Criteria”).

3 Continuity of care means the provision of continuous coordinated care for class members through transitions in providers or service areas and across child serving agencies so that services are provided in a manner that does not interrupt medically necessary care or jeopardize the individual’s health.

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35.

Defendants will train providers that screening for intensive services or WIYS, if

applicable, is essential when there is a:

a) request for out of home treatment or placement due to mental health needs;

b) step-down request from institutional or group care; or

c) PIHP crisis intervention and the individual presents with past or current functional

indicators in the T.R. proxy.

Eligible youth who screen positive under this paragraph shall be considered for transitioning from

existing intensive services to WIYS under this Agreement, consistent with the transition plan.

36.

Defendants will allow families or their representative referral sources to directly

contact the PIHP or PIHP contracted Community Mental Health Agency (CMHA) to request and

receive screening.

37.

Defendants will provide medically necessary services or up to 14 days of

medically necessary stabilization during the screening/assessment process through the contracted

CMHA.

D. Service Delivery

1) Core Practice Model

38.

The Core Practice Model, more fully described in Appendix D to this

Agreement, is the overarching framework for providing comprehensive behavioral health services

and supports for class members under this Agreement. The Core Practice Model components embrace wraparound principles employed within a System of Care4 to the fullest extent feasible.

4 A “system of care” (SOC) is an organizational philosophy and framework that is designed to create a network of effective community-based services and supports to improve the lives of children and youth with, or at risk of, serious mental health conditions and their families.
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The Practice Model components include: (1) Engagement, (2) Assessing, (3) Service Planning

and Implementation, (4) Teaming, (5) Monitoring and Adapting, and (6) Transition.

39.

The Core Practice Model informs and guides the management and delivery of

mental health services and supports; describes the treatment and support activities that care

providers undertake; describes how services are coordinated among systems and providers;

provides the means to measure and account for outcomes; provides relevant feedback to managers

and clinicians in order to continuously improve system and services quality; and seeks cost-

effective use of resources. Each individual case affords the class member and his or her family all

of the six Core Practice Model components over the course of treatment and transition.

2) Child and Family Teams (CFT)

40.

Defendants will institute contract language by October 2012 requiring PIHPs to

develop Child and Family Teams (CFT) consistent with the T.R. Principles and the Core Practice

Model. Class members, especially those who are served by multiple child-serving agencies,

whose individualized strengths and needs (as identified by a standardized assessment process)

indicate that they would benefit by having a Child and Family Team should be provided an

organized Child and Family Team. In such cases the CFT drives the treatment planning process

for services and supports. The role of the CFT is expressly set forth at Appendix E.

41.

Defendants will establish a process for CFTs to obtain authorization by PIHPs.

The process will be defined no later than November 1, 2012, whereby an organized CFT, with the

participation of the Duly Authorized Provider Representative (DAPR), has the ability to access

services and supports included in the class member’s treatment plan.

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42.

In case of any disagreement between the DAPR and other CFT members

regarding service recommendations, the DAPR works with the CFT to resolve any differences of

opinion, with particular attention to the input and preferences of the parent(s)/guardian(s) of the

enrolled child. When Agreement is not able to be reached regarding service planning at the CFT

level, the DAPR helps unite the team in agreeing to try a particular service approach on an interim

basis for a specified period of time during which the behavioral outcomes of the child are

carefully monitored by the CFT. The team later reconvenes to consider the outcomes in relation

to the services that have been provided and works together to make needed adjustments as time

progresses. When deciding upon a service approach in the case of disagreement between CFT

members, the DAPR gives as much or more weight to the opinions and preferences of the

parent/guardian/youth as to any other member of the CFT.

43.

Defendants will establish Agreements across the Department of Social and

Health Services (DSHS) with child serving agencies requiring that local and regional

representatives participate in CFTs (or care planning teams) for children served by multiple

agencies.

44.

Defendants will develop plans to provide guidance, training, supervision, and/or

support to Child and Family Teams and informal care planning teams consistent with T.R.

Principles and the Core Practice Model.

E. System Collaboration / Governance Model

45.

Defendants will establish a sustainable interagency governance structure

designed to achieve the responsibilities as outlined in the Governance Structure in Appendix C.

The governance structure will establish a process for (a) high-level policy-making, program

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Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 30 of 72

planning, decision-making, oversight, and implementation of the intents set forth in the

Agreement and (b) local engagement, including participation by families/youth and local

community representatives.

46.

Defendants will establish Agreements with other child-serving systems to

promote collaborative and coordinated care for high needs youth consistent with the T.R.

Principles, Core Practice Model, and purposes and the intents of the Agreement.

47.

Defendants will include families as full partners5 in the governance committees

and groups as depicted in the Governance Structure in Appendix C.

48.

Defendants will begin the process of aligning funding sources to strengthen

interagency collaboration, support improved long-term outcomes, and establish systems to

develop funding mechanisms for WIYS.

49.

Defendants, with input from the Settlement Design Team, will undertake

analyses and make recommendations to improve the integration of Children’s Administration’s

and Division of Behavioral Health & Recovery’s Title XIX services to class members.

Defendants will implement their recommendations to the extent that it can be done within the

term of this Agreement.

F. Quality Management And Quality Improvement Strategy

50.

Defendants will begin development of a Quality Management Plan (QMP) not

later than January 2013. The QMP is a comprehensive integration of the quality management

5 Full partners are persons or entities who play an active role in the development and implementation of the T.R. activities. They have the same access to data and equal rights in the decision-making processes as other committee members.
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Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 31 of 72

goals, objectives, tools, and resources needed to implement the commitments set forth in this

Agreement.

51.

The QMP will be produced with input from the Settlement Design Team and

appropriate stakeholders, and, as needed, from consultants.

52.

The QMP will:

a) Enumerate the goals necessary to achieve T.R. implementation and the data used to

determine progress;

b) Identify key performance indicators, and the data to be used to inform the indicators

and establish procedures and timelines for measuring them; and

c) Identify tools, resources, and personnel available to perform these tasks.

53.

Information and data developed pursuant to the QMP will be used to inform and

improve the provision of mental health services at multiple levels: at the individual level to assess

and meet the child’s needs; at the agency level to monitor the provision of services and to build

and maintain adequate capacity and quality; and at the regional and state levels to establish and

maintain accountability within the system and monitor the systemic improvements required

and/or implemented under this Agreement.

54.

In support of their quality management commitments, Defendants will identify,

gather, analyze and use reliable and relevant data from a variety of sources, to:

a) Inform the children’s mental health system and promote transparency;

b) Guide decision-making and resource allocation;

c) Measure access to care;

d) Assess adequacy of service capacity statewide;

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e) Measure and promote adherence to the T.R. Principles and Core Practice Model;

f) Evaluate and continuously improve clinical, program and system performance and

outcomes for children and families; and

g) Monitor and report on implementation of the QMP.

55.

Key indicators shall be established by the Quality Management Work Group in

order to provide sufficient qualitative and quantitative information to assess performance of the

State’s commitments under the Agreement and provide sufficient evidence to affirm substantial

satisfactory compliance. Indicators may include:

a) The number and characteristics of youth screened, assessed and referred to treatment;

b) The number and characteristics of youth that receive treatment;

c) The outcomes;

d) The scope and intensity of services provided;

e) The degree to which services are provided consistent with T.R. Principles and the Core

Practice Model; and

f) Administrative achievements.

56.

Defendants will develop the mechanisms for measuring these system and

clinical performance indicators no later than June 30, 2013.

57.

Defendants will develop methods and procedures for PIHPs to monitor and

periodically report on the degree to which services are aligned with T.R. Principles and the Core

Practice Model.

58.

Defendants will use data to manage and allocate resources through the

governance structure, including initiating system improvements when indicated by data.

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59.

Defendants will share information developed under this section with the

Settlement Design Team in order to facilitate reaching any subsequent Agreement.

60.

Defendants will refine the annual satisfaction survey for youth and families to

include questions regarding intensive services no later than January 2013.

G. Due Process

61.

Defendants will require that PIHPs provide a Notice of Action to Class

members when any of the following apply:

a) The regional support network or the PIHP denies, terminates or reduces services.

b) The class member indicates to the PIHP their disagreement with specific treatment

recommendations made during the development of his or her treatment plan.

62.

Defendants will inform class members in the benefits booklet of the

circumstances in which they have a right to receive a notice of action and request a fair hearing,

including the circumstances listed in Paragraph 61 above.

63.

Defendants will provide directives to PIHPs and CMHAs reflecting the limits of

CMHA’s authority to deny, terminate, or reduce services for reasons that are solely clinical.

Defendants will train CMHAs and PIHPs as to the limited role of CMHAs.

64.

Defendants will require the PIHP to monitor for CMHA reductions,

terminations and denials of services, to take such actions as are necessary to correct unauthorized

actions by CMHAs. Defendants will require all PIHPs to collect data that tracks Notices of

Action issued and Grievances and Appeals filed and to analyze the information on grievances and

appeals as part of the PIHPs’ quality improvement program. Compliance will be monitored

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Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 34 of 72

through an Extended Quality Review Organization (EQRO) review. Defendants will address

compliance concerns when they are identified.

H. Implementation

65.

Defendants will implement the Agreement consistent with the T.R. Principles

and Core Practice Model, and include them as appropriate in:

a) A governance plan

b) Contracts with PIHPs

c) Training materials

d) Communication materials

e) Quality review planning

f) Transition plan for existing intensive services.

1) Implementation Plan

66.

Defendants will begin to develop an Implementation Plan for this Agreement

once the Court enters an order regarding enforcement of the Agreement and will complete the

Implementation Plan within three months thereafter. The Implementation Plan shall be developed

under the direction of the Division of Behavioral Health and Recovery with input as outlined in

the governance structure by the Settlement Design Team and shall:

a) identify and sequence necessary tasks;

b) set clear and accountable timelines for completing tasks;

c) assign responsibility for achieving tasks;

d) establish processes to provide feedback on implementation progress, including the

need to adjust or amend the plan;

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e) establish a collaborative method, to the greatest extent possible, to resolve disputes

among the parties; and

f) be reasonably capable of achieving the terms of this Agreement.

67.

The Implementation Plan will include a timeline for specific activities to

achieve the goals set forth in this Agreement. The timeline will serve as a measurement of

progress but strict adherence is not an expectation of this Agreement nor is it cause to seek

judicial relief if the overall purpose of this Agreement is otherwise being met.

2) Report On Implementation

68. By June 30, 2013, Defendants will provide the Court, the Plaintiffs, and the

public with a Report that describes Defendants’ progress in meeting their obligations under this

Agreement. The Report will include accomplishments and identify potential or actual problem

issues that need attention as well as remedial efforts to address them. The Report shall also set

forth a funding plan for implementing WIYS and discuss the status of negotiations towards a

subsequent Agreement.

69.

The parties agree that Kathleen Noonan may advise and assist the parties in the

development of the Report. In providing such consultation, Ms. Noonan may communicate freely

with each of the parties or their counsel and shall have access to all necessary information.

70.

Thirty days prior to filing the Report, Defendants shall provide a draft of the

report to counsel for Plaintiffs. Plaintiffs shall provide any feedback within fifteen days of

receiving the draft. If the parties are unable to reach consensus on the final contents of the

Report, they may engage Kathleen Noonan to mediate the dispute. Plaintiffs will have the option

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to prepare a Reply that will be filed with the Court and attached as an addendum to the publicly

available version of the Report.

VII. EXPECTED ACHIEVEMENTS

71.

The Parties anticipate Defendants will complete implementation of this

Agreement on or about June 30, 2013. The expected achievements of this Agreement are set

forth in the five categories below (i.e., Population and Service Definition, System Collaboration,

Access and Assessment, Service Delivery and Quality Management).

A. Population and Service Definition Achievements

72.

Defendants have defined the WIYS array, as described in Appendix A, and

produced a written “crosswalk” that matches WIYS to Washington Medicaid State Plan

Modalities.

73.

Defendants have described the population of youth that will be eligible for

WIYS.

74.

Defendants have described the population of youth that will be served by CFTs.

75.

Defendants have developed a flexible Communication Plan for outreach and

education of the community, stakeholders, and families about eligible children and youths and the

WIYS array. The plan includes language that it will be updated per department policy.

B. System Collaboration Achievements

76.

Defendants have established an interagency governance structure, substantially

similar to the structure described in Appendix C, that provides for high-level policy-making,

program planning and implementation, and local engagement and decision-making. Families are

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full partners in governance and policy development. The Settlement Design Team is operational

during the term of this Agreement.

77.

Defendants have developed and adopted cross-system protocols consistent with

this Agreement and have embedded those protocols in established Agreements/MOUs with child-

serving agencies.

C. Access and Assessment Achievements

78.

Defendants have adopted an access model as described in paragraphs 30 - 32.

79.

Defendants have developed and adopted CANS as an assessment strategy and

communications tool consistent with paragraph 33.

80.

Defendants have established the threshold CANS criteria for access to WIYS in

consultation with clinical experts agreed upon by the state and Plaintiffs.

D. Service Delivery Achievements

81.

Defendants have adopted the Core Practice Model for the purpose of guiding

service delivery consistent with the T.R. Principles and the Agreement.

82.

Defendants have required PIHPs to develop CFTs pursuant to PIHPs’ amended

contracts.

83.

Defendants have established a protocol that identifies the process by which a

CFT may present treatment recommendations for authorization by the PIHP.

84.

Defendants have developed a CFT quality tool to measure CFT voice, choice,

and efficacy.

85.

Defendants have defined the initial expected service utilization of WIYS among

PIHPs.

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86.

Defendants have a written implementation plan developed for this Agreement,

as described in paragraphs 66-67. This plan is created with input from the Settlement Design

Team and approved through the Governance process.

87.

Defendants have developed a plan, subject to existing resources and PIHP

capacity, to transition existing intensive services capacity to the WIYS array consistent with the

T.R. Principles and Core Practice Model.

E. Quality Management Achievements

88.

Defendants have identified quality management tools and measures to be used

for reporting, providing, and improving quality of care, and for providing transparency and

accountability.

89.

Defendants have begun development of the Quality Management Plan, as

described in paragraphs 50-60.

90.

Defendants have clarified Notice of Action and grievance protocols and

incorporated them into the Communication Plan and Benefits Booklet. The Division of

Behavioral Health and Recovery (DBHR) has in place a process to monitor and periodically

report on PIHP’s compliance with this provision.

91.

Defendants require that at least one PIHP annual Performance Improvement

Project (PIP) is focused on improving mental health services to Medicaid funded children and

youth.

VIII. DISPUTE RESOLUTION

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92.

Any claim, dispute, or other matter in controversy (“dispute”) arising out of or

related to this Agreement, or the breach, implementation or performance thereof, shall be resolved

according to the procedure set forth in paragraphs 93-97 below.

93.

The parties agree to convene, at a mutually agreeable time and place, and use

their good-faith, best efforts to discuss and resolve the dispute. This initial meeting will be a

direct negotiation between the parties without the assistance of a mediator or other non-party.

Any Agreement reached in this forum will be formalized as an addendum to the parties’

Agreement and submitted to the Court for approval.

94.

In the event the parties are unable to resolve the dispute through direct

negotiation, they will engage the mediation services of Kathleen Noonan for the purpose of

mediating a resolution to the dispute. That meeting will be at a mutually agreeable time and

place, and, with the assistance of the mediator, the parties will use their good-faith, best efforts to

discuss and resolve the dispute. Any Agreement reached in this forum will be formalized as an

addendum to the parties’ Agreement and submitted to the Court for approval.

95.

The parties agree to use their best efforts to secure third-party funding to

support the mediation and consultation role of Kathleen Noonan, described above. If such funds

are not secured at the time of Ms. Noonan’s invoice for payment, Defendants agree to pay the

reasonable costs of her services.

96.

If, after participating in good faith at the mediation, no resolution is reached

Plaintiffs may file an appropriate motion with the United States District Court in this matter.

Plaintiffs shall provide the appropriate notice to Defendants’ counsel of such action.

Page 29

39

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 40 of 72

97.

Disability Rights Washington (DRW), as the Protection and Advocacy agency

for the State of Washington does not waive its federal authority in the event that DRW has

reasonable cause to believe that there is a risk of imminent harm to class members. Should that

circumstance arise, Plaintiffs will make a good faith effort to consult with Defendants’ counsel to

discuss the issue or issues. If the issue or issues are not resolved within a reasonable amount of

time, parties will engage in an expedited mediation process, using Kathleen Noonan as detailed in

the dispute resolution provisions set forth herein. If the systemic matter is not resolved through

the mediator, Plaintiffs may proceed directly to the Court or may take any other necessary legal

action. Plaintiffs will provide at least one business day’s written notice to Defendants’ counsel

via facsimile or email and first class mail prior to initiating court action. “Imminent”, as defined

in RCW 71.05.020(20), is “the state or condition of being likely to occur at any moment; near at

hand, rather than distant or remote.” A “systemic obligation” is one that may affect all, or a

substantial portion of, the class and is not represented or proven by a circumstance or condition

affecting an individual class member.

IX. SCOPE OF RELEASES AND WAIVERS

98.

Nothing in this Agreement shall be deemed to limit the Court’s powers of

contempt or any other power possessed by the Court.

99.

Nothing in this Agreement shall be deemed to limit the ability of any individual

class member to obtain individual relief of any kind to which they would otherwise be entitled

under state or federal law other than for the claims for systemic injunctive relief adjudicated by

this action.

Page 30

40

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 41 of 72

100. The parties agree that nothing in this Agreement is intended to address or preclude any claims or defenses that may be available to the parties in the pending matter of J.E. v. Porter. (C.A. 2:11-cv-01669-JCC. W.D. Wash). Similarly, the parties to these proceedings (T.R. v. Dreyfus) do not intend that J.E. v. Porter addresses or precludes any claims or defenses they may have in this case.
101. Nothing in this Agreement shall be deemed to limit the ability of DRW to fulfill its federal mandates pursuant to the Protection and Advocacy for Individuals with Mental Illness (PAIMI) Act, 42 U.S.C. § 10801, et seq., and the regulations promulgated thereto, 42 C.F.R. § 51 et seq., and the Developmental Disabilities Assistance and Bill of Rights (DD) Act, 42 U.S.C. §15041, et seq., and the regulations promulgated thereto, 45 C.F.R. § 1386 et seq. X. PLAINTIFF COUNSEL ACCESS TO INFORMATION
102. The Plaintiffs agree to minimize the number and scope of requests for data and information not already provided to the Settlement Design Team pursuant to this Agreement. A. Non-Confidential Implementation Data and Information
103. Should Plaintiffs seek any data and information concerning Defendants’ progress in implementing this Agreement not otherwise available in this Agreement:
a) Plaintiffs will make their request for that additional data and information to Defendants through the Settlement Design Team. Plaintiffs’ request will establish a reasonable purpose and scope which shall include:
(1) Specific data and information sought, (2) Specific provision(s) of the Agreement to which the data and information are
relevant, and

Page 31

41

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 42 of 72

(3) Specific concerns the data and information are sought to address. b) Where Defendants agree the data and information requested are relevant to the
Agreement, Defendants will provide access to relevant data and information within their control within a reasonable time period. Within ten (10) days of receipt of a request for additional data or information under this paragraph, Defendants will provide a letter that acknowledges such receipt, and gives an estimate of the time and costs needed to comply with the request. Plaintiffs will pay reasonable copy costs for records not otherwise provided in other provisions of this Agreement. c) Any disputes within that process regarding the necessity or availability of requested data and information will be resolved through dispute resolution (Section VIII herein). B. Confidential Information Contained In Class Member Individual Records 104. In the event Plaintiffs seek the review of confidential information contained in the individual records of a class member not named as a party in this proceeding, DRW may obtain those records pursuant to its federal authority under the Protection and Advocacy for Individuals with Mental Illness (PAIMI) Act, 42 U.S.C. § 10801, et seq. (also known as Probable Cause Authority). Where records are sought outside of DRW’s federal authority, the following procedures will apply: a) Plaintiffs will obtain a Release from the individual class member or his/her parent or guardian. Plaintiffs may use the release to directly obtain the information sought. The parties agree that, so long as individual names and contact information are known, the Release process is the primary means to obtain confidential information.

Page 32

42

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 43 of 72

b) If the name/contact information is not known to Plaintiffs but is known to Defendants, Defendants will provide that information through the Settlement Design Team so that Plaintiffs may obtain a Release.
c) If there is no way to obtain a Release or Plaintiffs believe that effort will be futile, and there is reasonable cause to believe an individual class member is not being appropriately served under this Agreement, Plaintiffs may seek a court order requiring the release of confidential information from the State, the PIHP, and/or the provider of services. Under most circumstances Defendants will take no position on the request or will stipulate to the order for the release of information so long as notice is provided to the class member (if possible) and he/she is give an opportunity to be heard. Defendants reserve the right to oppose the request if it amounts to a blanket order for the confidential information of class members.
d) Plaintiffs will pay reasonable duplication costs pursuant to 42 CFR 51.41(e). XI. ATTORNEYS’ FEES AND COSTS
105. The parties will make good faith efforts to negotiate the amount of attorneys’ fees, costs, and litigation expenses to be awarded to plaintiffs’ counsel. In the event that the parties cannot reach Agreement with respect to attorneys’ fees, costs, and expenses, they will submit the matter for mediation to a mutually agreeable mediator. If attempts to mediate are not successful, Plaintiffs may file the appropriate motion with the district court. XII. OTHER PROVISIONS
106. The Parties agree those materials contained in the several appendices to this Agreement, as they are referenced in the main body of the Agreement, are included and fully

Page 33

43

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 44 of 72

incorporated into this Agreement as if fully set forth herein. Appendix F provides a consolidated list of the Commitments made by the State of Washington in this Agreement, and Appendix G provides a consolidated list of the Expected Achievements of this Agreement. Notwithstanding their full incorporation herein, these two appendices are provided for convenience. The Commitments Appendix and the Expected Achievements Appendix must be read and interpreted within the context of this Agreement and not in isolation. When interpreting the Commitments and Expected Achievements, the language contained in the main body of the Agreement is controlling.
107. This Agreement contains all the terms and conditions agreed upon by the Parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto.
108. The Parties have participated and had an equal opportunity to participate in the drafting and/or approval of this Agreement. No ambiguity shall be construed against any party based upon a claim that the party drafted the ambiguous language.
109. Signors of this Agreement represent and warrant they have full power and authority to enter into this Agreement and to carry out all actions required of them to the extent allowed by law. Each of the signors warrants that he/she has fully read and agrees to all the terms and conditions contained herein.
110. This Agreement may be amended by mutual agreement of the parties and approval of the Court. In order to be binding, such amendments must be in writing, signed by persons authorized to bind each of the parties, and approved by the Court. The parties further agree to work in good faith to obtain Court approval of necessary amendments or modifications.

Page 34

44

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 45 of 72

111. The parties agree that this Agreement is intended to be interpreted to provide flexibility and economic efficiencies in the implementation of the Patient Protection and Affordable Care Act of 2010, P.L. 111-148.
112. This Agreement shall inure to the benefit of and be binding upon the legal representatives and any successor(s) of Plaintiffs and Defendants.
113. If, for any reason, the Court does not issue an order regarding enforcement of this Interim Agreement, the Agreement shall be null and void.
114. This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which taken together shall constitute a single instrument. This Agreement may be executed by signature via facsimile transmission or electronic mail which shall be deemed the same as an original signature.
FOR PLAINTIFFS:

By: __________________________________ REGAN BAILEY Disability Rights Washington

Dated: __________________

__________________________________ SUSAN E. FOSTER Perkins Coie LLP

Dated: __________________

__________________________________ PATRICK GARDNER National Center for Youth Law

Dated: __________________

__________________________________ KIMBERLY LEWIS National Health Law Program

Dated: __________________

Page 35

45

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 46 of 72

46

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 47 of 72

47

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 48 of 72

48

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 49 of 72

49

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 50 of 72

50

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 51 of 72

51

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 52 of 72

52

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 53 of 72

53

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 54 of 72

54

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 55 of 72

55

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 56 of 72

56

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 57 of 72

57

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 58 of 72

58

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 59 of 72

59

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 60 of 72

60

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 61 of 72

61

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 62 of 72

62

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 63 of 72

63

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 64 of 72

64

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 65 of 72

65

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 66 of 72

66

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 67 of 72

67

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 68 of 72

68

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 69 of 72

69

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 70 of 72

70

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 71 of 72

71

Exhibit 1

Case 2:09-cv-01677-TSZ Document 99 Filed 03/05/12 Page 72 of 72

72

Exhibit 1

 
 Case 2:09-cv-01677-TSZ Document 137 Filed 12/19/13 Page 1 of 6

1

2

3

4

5

6

7

8

9

10

11

12

13

UNITED STATES DISTRICT COURT

14

WESTERN DISTRICT OF WASHINGTON

15 16

AT SEATTLE

17

18 T.R., by and through his guardian and next

19 20

friend, R.R.; S.P., by and through her

21 mother and next friend, D.H.; C.A., by and

22 through her mother and next friend, A.A.;

23 T.F., by and through her father and next

C09-1677 TSZ
ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT

24 friend, D.F.; P.S., by and through his

25 mother and next friend, W.S.; T.V., by and

26 27 28

through his guardian and next friend. C.D.; E.H. by and through his mother and next

29 friend, C.H.; E.D., by and through his

30 mother and next friend, A.D.; and L.F.S.,

31 by and through his mother and next friend,

32 B.S.,
33

34

Plaintiffs,

35

36 37

v.

38
39 KEVIN QUIGLEY, not individually, but 40 solely in his official capacity as Secretary

41 of the Washington State Department of

42 Social and Health Services; and

43 DOROTHY TEETER, not individually, but

44 solely in her official capacity as the

45 46

Director of the Washington State Health

47 Care Authority,

48

49

Defendants.

50

51

ORDER – 1

Case 2:09-cv-01677-TSZ Document 137 Filed 12/19/13 Page 2 of 6

1

THIS MATTER having come before the Court on the parties’ Joint Motion for Final

2

3 Approval of Class Action Settlement Agreement, docket no. 134, and having been duly
4

5 6

considered, the Court makes the following findings:

7

8

The Court has jurisdiction over the claims against all Defendants pursuant to 28 U.S.C.

9

10 §§ 1331, 1343(a). Venue is proper in the Western District of Washington pursuant to 28 U.S.C.

11

12 § 1391(b).
13

14

15

The Court preliminarily approved the parties’ proposed Settlement Agreement on

16

17 September 27, 2013. Order (docket no. 125). The Court further approved the parties’ notice to

18

19 class members regarding the proposed settlement as well as the method for distributing the notice
20

21
22 as described in the Notice Plan, attached as Exhibit 3 to Plaintiffs’ Motion for Preliminary

23

24 Approval of Class Action Settlement Agreement, docket no. 119-3.

25

26

The parties complied with the Notice Plan in all material respects, meeting the due

27

28 29

process requirements of the United States Constitution and Federal Rule of Civil Procedure

30
31 23(e). Class members had until December 5, 2013, to file written objections with the United

32

33 States District Court or to serve the objections on counsel for the parties.

34

35 36

The Court conducted a final approval hearing on December 19, 2013, in Seattle,

37
38 Washington. Counsel for Plaintiffs and Defendants presented argument as to why the Settlement

39

40 Agreement is fair, reasonable, and adequate and should be approved. Class members and others

41

42 thereby affected received adequate opportunity to object.
43

44 45

The proposed Settlement Agreement, attached as Exhibit 1 to Plaintiffs’ Motion for

46

47 Preliminary Approval, docket no. 119-1, is fair, reasonable, and adequate, given the amount that

48

49 Plaintiffs have obtained in settlement weighed against the strength of their claims. Further
50

51

ORDER – 2

Case 2:09-cv-01677-TSZ Document 137 Filed 12/19/13 Page 3 of 6

1 litigation would expose both sides to risk and expense, given the complexity of this lawsuit and

2

3 the likely duration of litigation. The Settlement Agreement is the result of arms’ length
4

5 6

negotiations, conducted after thorough factual and legal investigation and discovery, and is not

7
8 the product of fraud, collusion, or overreaching. Experienced counsel and children’s mental

9

10 health stakeholders favor approval of the proposed Settlement Agreement. The Court has

11

12 reviewed and considered the objections of class members and finds that they do not raise
13

14
15 concerns that alter the underlying fairness, reasonableness, and adequacy of the settlement.

16

17

The Court, having fully considered the matter and good cause appearing, hereby

18

19 ORDERS:
20

21

22

1. The parties’ Joint Motion for Final Approval of Class Action Settlement

23

24

Agreement, docket no. 134, is GRANTED. The Court FINDS and CONCLUDES

25

26

that the settlement is fair, reasonable, and adequate.

27

28 29

2. The parties’ Settlement Agreement, attached as Exhibit 1 to Plaintiffs’ Motion for

30

31

Preliminary Approval of Class Action Settlement Agreement, docket no. 119-1, is

32

33

APPROVED.

34

35 36

3. The parties to the Settlement Agreement shall perform all of their obligations

37

38

thereunder. The case will be administratively CLOSED, but the Court shall retain

39

40

jurisdiction over the matter to enforce the provisions of the Settlement

41

42

Agreement.

43

44 45

4. The Settlement Agreement is binding on class members. It settles all of

46

47

Plaintiffs’ claims for class-wide relief against Defendants that were asserted in the

48

49

50

51

ORDER – 3

Case 2:09-cv-01677-TSZ Document 137 Filed 12/19/13 Page 4 of 6

1

Complaint filed on November 24, 2009, or First Amended Complaint filed on

2

3

October 27, 2011.

4

5 6

5. On or before June 30, 2018, the parties shall file a Joint Status Report indicating

7

8

whether the conditions of the Settlement Agreement have been satisfied and

9

10

whether this case can be dismissed with prejudice.

11

12

6. The Clerk is directed to send a copy of this Order to all counsel of record.

13

14

15

IT IS SO ORDERED.

16

17 18

Dated this 19th day of December, 2013.

19

20

21 22

A

23

24

Thomas S. Zilly

25 26

United States District Judge

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

ORDER – 4

Case 2:09-cv-01677-TSZ Document 137 Filed 12/19/13 Page 5 of 6

1 Presented by:

2

3 /s/David Carlson

/s/Leecia Welch

4 David Carlson, WSBA No. 35767

5 davidc@dr-wa.org

6 7

Susan Kas, WSBA No. 36592

8 susank@dr-wa.org

9 DISABILITY RIGHTS WASHINGTON

10 315 5th Avenue South, Suite 850

Leecia Welch, WSBA No. 26590 lwelch@youthlaw.org Erin Liotta, CB No. 278949 eliotta@youthlaw.org NATIONAL CENTER FOR YOUTH LAW 405 14th Street, 15th Floor

11 Seattle, WA 98104

Oakland, CA 94612

12 Telephone: (206) 324-1521 13 Facsimile: (206) 957-0729
14

Telephone: (510) 835-8098 Facsimile: (510) 835-8099

15 16

/s/Susan E. Foster

17 Susan E. Foster, WSBA No. 18030

18 SFoster@perkinscoie.com

/s/Kimberly Lewis Kimberly Lewis, CB No. 144879 lewis@healthlaw.org

19 Frederick B. Rivera, WSBA No. 23008

Jane Perkins, SBN 104784

20 FRivera@perkinscoie.com

21 Travis A. Exstrom, WSBA No. 39309

22 23 24

TExstrom@perkinscoie.com Austin Rainwater, WSBA No. 41904

25 ARainwater@perkinscoie.com

26 PERKINS COIE LLP

perkins@healthlaw.org
NATIONAL HEALTH LAW PROGRAM 3701 Wilshire Blvd., Suite #750
Los Angeles, CA 90010 Telephone: (310) 204-6010 Facsimile: (213) 368-0774

27 1201 Third Avenue, Suite 4900

28 Seattle, WA 98101-3099 29 Telephone: (206) 359.8000 30 Facsimile: (206) 359.9000
31

32

33 34

/s/Patrick Gardner

35 Patrick Gardner, CB No. 208119

36 patrick@youngmindsadvocacy.org

37 Wesley Sheffield, CB No. 287940

38 wsheffield@youthmindsadvocacy.org

39 YOUNG MINDS ADVOCACY PROJECT

40 115 Haight Street

41 42

Menlo Park, CA 92025

43 Telephone: (650) 494-4930

44

45

46 ATTORNEYS FOR PLAINTIFFS

47

48

49

50

51

ORDER – 5

Case 2:09-cv-01677-TSZ Document 137 Filed 12/19/13 Page 6 of 6
1 FOR DEFENDANTS:
2 3
4 BOB FERGUSON 5 Attorney General
6 7
8 /s/ John McIlhenny 9 /s/ Bill Clark 10 /s/ Eric Nelson 11 JOHN K. MCILHENNY, JR., WSBA No. 32195 12 JohnM5@atg.wa.gov 13 BILL G. CLARK, WSBA No. 09234 14 BillC2@atg.wa.gov 15 ERIC NELSON, WSBA No. 27183 16 EricN1@atg.wa.gov 17 Assistant Attorneys General 18 Attorneys for Defendant
19
20 Office of the Attorney General 21 7141 Cleanwater Drive SW 22 PO Box 40124 23 Olympia, WA 98504-0124 24 (360) 586-6565
25 26
27 ATTORNEYS FOR DEFENDANTS
28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51
ORDER – 6

 
 Case 2:09-cv-01677-TSZ Document 147 Filed 08/06/14 Page 1 of 4

1

2

3

4

5

6

7

The Honorable Thomas S. Zilly

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

T.R., by and through his guardian and

NO. 09-1677 TSZ

11 next friend, R.R.; by and through her

mother and next friend D.H.; C.A., by

STIPULATED MOTION AND

12 and through her mother and next friend,

ORDER APPROVING THE

A.A.; T.F., by and through her father and

IMPLEMENTATION PLAN

13 next friend, D.F.; P.S. by and through his

mother and next friend, W.S.; T.V., by

14 and through his guardian and next friend,

C.D.; E.H., by and through his mother

15 and next friend, C.H.; E.D., by and

through his mother and next friend, A.D.;

16 and L.F.S., by and through his mother

and next friend, B.S., ,

17

Plaintiffs,

18

v.

19

KEVIN QUIGLEY, not individually, but

20 solely in her official capacity as Secretary

of the Washington State Department of

21 Social and Health Services; and

DOROTHY TEETER, not individually,

22 but solely in his official capacity as the

Director of the Washington State Health

23 Care Authority. ,

24

Defendants.

25 STIPULATED MOTION
26

STIPULATED MOTION AND ORDER

1

APPROVING THE IMPLEMENTATION

PLAN

NO. 09-1677 TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:09-cv-01677-TSZ Document 147 Filed 08/06/14 Page 2 of 4

1

Defendants, and Plaintiffs on behalf of themselves and the class they represent,

2 respectfully submit to this Court for approval the Implementation Plan attached hereto at

3 Exhibit 1, and respectfully move this Court for an order finding that the Implementation Plan is

4 reasonably capable of fulfilling the Commitments and achieving the Exit Criteria in the

5 Settlement Agreement and approving the Plan. This motion is supported by the declaration of

6 Assistant Attorney General John K. McIlhenny, Jr., counsel for the Defendants, filed herewith.

7

BACKGROUND

8

As required by the Settlement Agreement (Dkt. No. 119-1), approved by the Court’s

9 Order Granting Joint Motion For Final Approval of Class Action Settlement Agreement, dated

10 December 19, 2013 (Dkt. No. 137), the Defendants were to submit to this Court for approval a

11 final Implementation Plan (“the Plan”) not later than June 19, 2014. Dkt. No. 119-1, ¶ 55

12 (“…within six months after the Court gives its final approval...”).

13

Defendants, in cooperation with the Plaintiffs through the joint Implementation

14 Advisory Team in the Settlement Agreement, began developing an Implementation Plan to be

15 “reasonably capable of fulfilling the Commitments and achieving the Exit Criteria” as required

16 by the Settlement Agreement. Declaration of John K. McIlhenny, Jr. (“McIlhenny Decl.”) at

17 ¶ 4; Dkt. No. 119-1, ¶ 58.

18

The parties began meeting on February 6, 2014 and thereafter began exchanging

19 working drafts of a proposed plan. The parties met, either in person or telephonically, eight

20 times through June 2014. McIlhenny Decl. at ¶ 5. At the in-person working session on

21 June 11, 2014, the parties concluded that Defendants could not complete a final

22 Implementation Plan, due to substantive modifications sought by Plaintiffs, to submit to the

23 Court by the deadline date of June 19, 2014. McIlhenny Decl., ¶ 5; see Dkt. Nos. 141 and 142

24 (declarations of John K. McIlhenny and Susan Kas, respectively).

25

26

STIPULATED MOTION AND ORDER

2

APPROVING THE IMPLEMENTATION

PLAN

NO. 09-1677 TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:09-cv-01677-TSZ Document 147 Filed 08/06/14 Page 3 of 4

1

Accordingly, the Parties, by stipulated motion (Dkt. No. 140), moved the Court to

2 extend the deadline to August 1, 2014. The Court granted the motion and approved that

3 extension. Dkt. No. 143.

4

Since the extension, the parties have met in face-to-face and in telephonic working

5 sessions to finalize the Plan, and have proposed, exchanged, reviewed, edited, and agreed upon

6 draft language for the Plan. McIlhenny Decl., ¶ 7.

7

On July 31, 2014, the parties finalized a two part Plan setting forth objectives,

8 strategies, and quality improvement measures for accomplishing the goals, commitments, and

9 exit criteria of the Settlement Agreement. McIlhenny Decl., ¶ 8. The two parts of the plan

10 describe the tasks to be completed in order to establish the infrastructure and capacity

11 necessary for supporting the scheduled roll-out and initial utilization estimates of the WISe

12 program. The Plan's Section I objectives outline how Defendants will: (1) communicate with

13 class members about the WISe program; (2) identify, refer, and screen class members for

14 eligibility; (3) provide the WISe services; (4) coordinate the WISe services across agencies and

15 providers; (5) support workforce development; (6) maintain a collaborative governance

16 structure to achieve the goals of the settlement; and (7) afford due process to class members.

17 Section II objectives are designed to create an accountability structure to ensure quality

18 assurance and system improvement, as well as a system to monitor achievement of the

19 settlement goals and to facilitate development of the Washington State System of Care.

20

Accordingly, the parties move this Court for an Order finding that the Implementation

21 Plan submitted herewith at Exhibit 1 is “reasonably capable of fulfilling the Commitments and

22 achieving the Exit Criteria” in the Settlement Agreement in this case and, further, approving

23 the Plan.

24

ORDER

25

The parties’ Stipulated Motion, docket no. 144, is GRANTED, and the Court hereby:

26

STIPULATED MOTION AND ORDER

3

APPROVING THE IMPLEMENTATION

PLAN

NO. 09-1677 TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

Case 2:09-cv-01677-TSZ Document 147 Filed 08/06/14 Page 4 of 4

1

1. FINDS that the Implementation Plan is reasonably capable of fulfilling the

2

Commitments and achieving the Exit Criteria in the Settlement Agreement in this

3

case; and,

4

2. ORDERS that the Implementation Plan is Approved.

5

Ordered this 6th day of August, 2014.

6

7

A

THOMAS S. ZILLY

8

United States District Judge

9
For Plaintiffs: 10
/s/ Susan Kas 11 Susan Kas, WSBA No. 36592
susank@dr-wa.org 12 DISABILITY RIGHTS WASHINGTON
315 5th Avenue South, Suite 850 13 Seattle, WA 98104
Telephone: (206) 324-1521 14 Facsimile: (206) 957-0729

/s/ Kimberly Lewis Kimberly Lewis, CB No. 144879 lewis@healthlaw.org NATIONAL HEALTH LAW PROGRAM 2639 S. LaCienga Blvd. Los Angeles, CA 90034 (310) 204-6010

15

For Defendants:

/s/ Patrick Gardner 16 Patrick Gardner, CB No. 208199

/s/ John K. McIlhenny, Jr.

17

Patrick@youngmindsadvocacy.org YOUNG MINDS ADVOCACY PROJECT

JOHN K. MCILHENNY, JR, WSBA No. 32195

115 Haight Street 18 Menlo Park, CA 92025
Telephone: (650) 494-4030

JohnM5@atg.wa.gov ERIC NELSON, WSBA No. 27183

19 Email: Patrick@youngmindsadvocacy.org

EricN1@atg.wa.gov

Assistant Attorneys General

20 /s/ Leecia Welch

Attorneys for Defendants

/s/ Erin Liotta 21 Leecia Welch, WSBA No. 26590
Erin Liotta, CB No. 278949 22 lwelch@youthlaw.org
eliotta@youthlaw.org 23 NATIONAL CNTR FOR YOUTH LAW

Office of the Attorney General 7141 Cleanwater Drive SW PO Box 40124 Olympia, WA 98504

405 14th Street, 15th Floor 24 Oakland, CA 94612

Telephone: (360) 586-6565

(510) 835-8098 25

26

STIPULATED MOTION AND ORDER

4

APPROVING THE IMPLEMENTATION

PLAN

NO. 09-1677 TSZ

ATTORNEY GENERAL OF WASHINGTON 7141 Cleanwater Dr SW PO Box 40124 Olympia, WA 98504-0124 (360) 586-6565

 
 Case 2:09-cv-01677-TSZ Document 150 Filed 11/19/14 Page 1 of 3

1 THE HON. THOMAS S. ZILLY
2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON 6

T.R., by and through his guardian and next friend, 7 R.R.; S.P., by and through her mother and next
friend, D.H.; C.A., by and through her mother and 8 next friend, A.A.; T.F., by and through her father
and next friend, D.F.; P.S., by and through his 9 mother and next friend, W.S.; T.V., by and
through his guardian and next friend. C.D.; E.H. 10 by and through his mother and next friend, C.H.;
E.D., by and through his mother and next friend, 11 A.D.; and L.F.S., by and through his mother and
next friend, B.S., 12

No. C09-1677-TSZ
ORDER REGARDING PERIODIC PAYMENT OF ATTORNEYS’ FEES AND COSTS

Plaintiffs, 13

v. 14

15 KEVIN QUIGLEY, not individually, but solely in his official capacity as Secretary of the
16 Washington State Department of Social and Health Services; and DOROTHY TEETER, not
17 individually, but solely in her official capacity as the Director of the Washington State Health Care
18 Authority,

19

Defendants.

20

This matter having come before the Court on the parties’ Stipulation Regarding Periodic

21 Payment of Attorneys’ Fees and Costs, docket no. 148, and having been duly considered, it is

22 hereby

23 ORDERED THAT:

ORDER RE PERIODIC PAYMENT OF FEES - 1 C09-1677 TSZ

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

Case 2:09-cv-01677-TSZ Document 150 Filed 11/19/14 Page 2 of 3

1

1. Pursuant to 42 U.S.C. §§ 1988 and 12205, the parties’ Stipulation Regarding

2

Periodic Payment of Attorneys’ Fees and Costs, docket no. 148, is APPROVED.

3

2. Pursuant to the parties’ agreement, Defendants shall pay $716,090.66 to

4

Plaintiffs’ counsel. Defendants have 15 days from the entry of this Order to make

5

the payment.

6

3. On an annual basis, Plaintiffs’ counsel shall submit a billing statement to

7

Defendants’ counsel for attorneys’ fees and costs no later than August 1. The

8

billing period reflected in that statement will be from July 1 of the previous

9

calendar year to June 30 of the same year in which the statement is submitted.

10

The billing statement will itemize the biller, the biller’s hourly rate, the task

11

performed and the dates of performance, the time spent, plus any costs and

12

expenses incurred.

13

4. The parties will engage in a meet and confer period during which time they will

14

attempt in good faith to resolve any disputes and to negotiate an agreed amount of

15

attorneys’ fees and costs to be paid to Plaintiffs’ counsel. The meet and confer

16

period will expire 60 days from the date of Defendants’ receipt of the billing

17

statement, but may be extended at the parties’ mutual written agreement. Once

18

the meet and confer period expires, if there has been no resolution on the amount

19

of attorneys’ fees and costs to be paid or on any component thereof (for example,

20

on billing rates), the parties will submit the matter for mediation to a mutually

21

agreeable mediator.

22

5. If attempts to mediate are not successful within 30 days, Plaintiffs may file an

23

appropriate motion with the Court.

ORDER RE PERIODIC PAYMENT OF FEES - 2 C09-1677 TSZ

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

Case 2:09-cv-01677-TSZ Document 150 Filed 11/19/14 Page 3 of 3

1

6. If the parties reach agreement as to the payment of attorneys’ fees and costs, the

2

parties shall present a stipulated order for payment of the fees and costs.

3

Defendants will have 15 days from the entry of any such stipulated order to pay

4

the fees and costs.

5

IT IS SO ORDERED.

6

Dated this 19th day of November, 2014.

7

A

8 THOMAS S. ZILLY

9

United States District Judge

10

11 Presented by:
12 /s/Susan Kas Susan Kas, WSBA #36592
13 David Carlson, WSBA #35767 susank@dr-wa.org
14 davidc@dr-wa.org DISABILITY RIGHTS WASHINGTON
15 315 5th Avenue South, Suite 850 Seattle, WA 98104
16 Telephone: (206) 324-1521 Facsimile: (206) 957-0729
17
18 /s/Patrick Gardner Patrick Gardner, CB #208119
19 patrick@youngmindsadvocacy.org YOUNG MINDS ADVOCACY PROJECT
20 115 Haight Street Menlo Park, CA 92025
21 Telephone: (650) 494-4930
22 ATTORNEYS FOR PLAINTIFFS
23

/s/Leecia Welch Leecia Welch, WSBA #26590 Erin Liotta, CB #278949 lwelch@youthlaw.org eliotta@youthlaw.org NATIONAL CENTER FOR YOUTH LAW 405 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (510) 835-8099
/s/Kimberly Lewis Kimberly Lewis, CB #144879 lewis@healthlaw.org NATIONAL HEALTH LAW PROGRAM 3701 Wilshire Blvd., Suite 750 Los Angeles, CA 90010 Telephone: (310) 204-6010 Facsimile: (213) 368-0774

ORDER RE PERIODIC PAYMENT OF FEES - 3 C09-1677 TSZ

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

 
 Case 2:09-cv-01677-TSZ Document 158 Filed 10/06/15 Page 1 of 2

1 THE HON. THOMAS S. ZILLY
2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON 6

T.R., by and through his guardian and next friend, 7 R.R.; S.P., by and through her mother and next
friend, D.H.; C.A., by and through her mother and 8 next friend, A.A.; T.F., by and through her father
and next friend, D.F.; P.S., by and through his 9 mother and next friend, W.S.; T.V., by and
through his guardian and next friend. C.D.; E.H. 10 by and through his mother and next friend, C.H.;
E.D., by and through his mother and next friend, 11 A.D.; and L.F.S., by and through his mother and
next friend, B.S., 12

No. C09-1677-TSZ
ORDER REGARDING PAYMENT OF ATTORNEYS’ FEES AND COSTS FOR JULY 2014 THROUGH JUNE 2015

Plaintiffs, 13

v. 14

15 KEVIN QUIGLEY, not individually, but solely in his official capacity as Secretary of the
16 Washington State Department of Social and Health Services; and DOROTHY TEETER, not
17 individually, but solely in her official capacity as the Director of the Washington State Health Care
18 Authority,

19

Defendants.

20

21

Pursuant to 42 U.S.C. §§ 1988 and 12205 and the parties’ Stipulation Regarding Payment

22 of Attorneys’ Fees and Costs from July 1, 2014, through June 30, 2015, docket no. 156,

23

ORDER RE PAYMENT OF ATTORNEYS’ FEES - 1 C09-1677 TSZ

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

Case 2:09-cv-01677-TSZ Document 158 Filed 10/06/15 Page 2 of 2

1 Defendants shall pay $500,000 to Plaintiffs’ counsel. Defendants have 15 days from the entry of

2 this Order to make the payment.

3

IT IS SO ORDERED.

4

Dated this 6th day of October, 2015.

5

A

6

Thomas S. Zilly

7

United States District Judge

8 Presented by:
9 /s/Susan Kas Susan Kas, WSBA #36592
10 David Carlson, WSBA #35767 susank@dr-wa.org
11 davidc@dr-wa.org DISABILITY RIGHTS WASHINGTON
12 315 5th Avenue South, Suite 850 Seattle, WA 98104
13 Telephone: (206) 324-1521 Facsimile: (206) 957-0729
14

/s/Leecia Welch Leecia Welch, WSBA #26590 lwelch@youthlaw.org NATIONAL CENTER FOR YOUTH LAW 405 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (510) 835-8099

15 /s/Patrick Gardner Patrick Gardner, CB #208119
16 patrick@youngmindsadvocacy.org YOUNG MINDS ADVOCACY PROJECT
17 115 Haight Street Menlo Park, CA 92025
18 Telephone: (650) 494-4930
19

/s/Kimberly Lewis Kimberly Lewis, CB #144879 lewis@healthlaw.org NATIONAL HEALTH LAW PROGRAM 3701 Wilshire Blvd., Suite 750 Los Angeles, CA 90010 Telephone: (310) 204-6010 Facsimile: (213) 368-0774

20 ATTORNEYS FOR PLAINTIFFS

21

22

23

ORDER RE PAYMENT OF ATTORNEYS’ FEES - 2 C09-1677 TSZ

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

 
 Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 1 of 16

1

2

3

4

5

6

7

8

9

THE HONORABLE THOMAS S. ZILLY

10

11

12

13

UNITED STATES DISTRICT COURT

14

WESTERN DISTRICT OF WASHINGTON

15

AT SEATTLE

16

17
18 T.R., by and through his guardian and next 19 friend, R.R.; S.P., by and through her 20 mother and next friend, D.H.; C.A., by and 21 through her mother and next friend, A.A.; 22 T.F., by and through her father and next 23 friend, D.F.; P.S., by and through his 24 mother and next friend, W.S.; T.V., by and 25 through his guardian and next friend. C.D.; 26 E.H. by and through his mother and next 27 friend, C.H.; E.D., by and through his 28 mother and next friend, A.D.; and L.F.S., 29 by and through his mother and next friend, 30 B.S.,

No. 2:09-cv-01677-TSZ
MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT
NOTE FOR MOTION CALENDAR:
Friday, September 13, 2013

31

32

Plaintiffs,

33

34

v.

35
36 KEVIN QUIGLEY, not individually, but 37 solely in his official capacity as Secretary 38 of the Washington State Department of 39 Social and Health Services; and 40 DOROTHY TEETER, not individually, but 41 solely in her official capacity as the 42 Director of the Washington State Health 43 Care Authority,

44

45

Defendants.

46

47

48

49

50

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ)
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 2 of 16

1

TABLE OF CONTENTS

2

3

4
5 I.

INTRODUCTION ............................................................................................................. 1

6 II. FACTUAL BACKGROUND............................................................................................ 2

7

8

A. Procedural History ................................................................................................. 2

9

1. Litigation.................................................................................................... 2

10

11

2. Settlement Negotiations ............................................................................. 3

12

B. Summary of Settlement Provisions........................................................................ 4

13

14

C. Attorneys’ Fees and Costs ..................................................................................... 5

15 III. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE ............................ 6

16

17

A. The Settlement Provides Important Benefits to the Class that Outweigh the

18

Risks of Continued Litigation................................................................................ 7

19

B. The Settlement Is the Result of Informed, Non-Collusive Negotiations ............... 9

20

21 IV. THE PROPOSED NOTICE AND NOTICE PLAN ARE REASONABLE ................... 10

22 V. CONCLUSION................................................................................................................ 11
23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – i
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 3 of 16

1

TABLE OF AUTHORITIES

2

3

4

5 CASES

6

7 Hanlon v. Chrysler Corp.,

8

150 F.3d 1011 (9th Cir. 1998) ...................................................................................................9

9

10 In re Mego Fin. Corp. Sec. Litig.,

11

213 F.3d 454 (9th Cir. 2000) .....................................................................................................9

12

13

14 In re NASDAQ Market-Makers Antitrust Litig.,

15

176 F.R.D. 99 (S.D.N.Y. 1997) .......................................................................................7, 9, 10

16

17 Mendoza v. United States,

18

623 F.2d 1338 (9th Cir. 1980) .................................................................................................10

19

20 Officers for Justice v. Civil Serv. Comm’n,

21

688 F.2d 615 (9th Cir. 1982) ...........................................................................................6, 8, 10

22

23

24

OTHER AUTHORITIES

25
26 Fed. R. Civ. P. 23(e) ........................................................................................................................6

27
28 Fed. R. Civ. P. 23(e)(1)..................................................................................................................10

29

30 Fed. R. Civ. P. 23(h) ........................................................................................................................6

31

32 Manual for Complex Litig., § 21.63 (4th ed. 2004) .........................................................................7

33

34 Manual for Complex Litig., §§ 21.632-34 (4th ed. 2004)................................................................6
35

36 Manual for Complex Litig., § 30.41 (3d ed. 1995) ......................................................................7, 9
37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – ii
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 4 of 16

1

I. INTRODUCTION

2

3

Four years ago, Plaintiffs filed this lawsuit alleging that Washington’s low-income

4
5 children were being wrongly denied access to the intensive mental health services to which they

6
7 were entitled under federal law. Asserting that “[c]hildren should grow up at home, not in

8
9 institutions,” Plaintiffs sought declaratory and injunctive relief to enforce their rights to adequate

10
11 mental health treatment in their homes and local communities. Dkt. 1, ¶ 7.

12

13

After months of intensive, arms-length negotiations, the parties have now reached a

14
15 Settlement Agreement that, if approved by this Court, will provide substantial benefits to

16
17 Medicaid-eligible children with mental health needs throughout Washington. The proposed

18
19 Settlement Agreement, attached as Exhibit 1, obligates Defendants to implement a five-year plan

20
21 to integrate intensive home and community-based mental health services for class members into

22
23 the state Medicaid program. These new services will provide the single most important relief

24
25 sought in this lawsuit: access to intensive mental health services that will maintain class

26
27 members in their homes and communities.

28

29

The proposed Settlement Agreement is fair, reasonable, and adequate and meets the

30
31 minimum threshold required for approval at the preliminary stage. First, the Agreement is the

32
33 product of informed, arms’ length negotiations conducted over the course of many months by

34
35 counsel experienced in these types of lawsuits. Second, it provides Plaintiffs with more

36
37 expedient and comprehensive reforms than would be available through continued litigation.

38
39 Finally, all of the named plaintiffs support approval of this Agreement, and experienced class

40
41 counsel believe that it is a very strong agreement on behalf of the plaintiff class.

42

43

Accordingly, Plaintiffs respectfully request an order from this Court preliminarily

44
45 approving the proposed Settlement Agreement, approving the proposed Notice, and directing

46
47 that notice to the class be given in the time and manner described in the Notice Plan. Plaintiffs

48
49 also seek an order setting a schedule for the final fairness hearing to determine whether the

50

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 1
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 5 of 16

1
2 settlement should be granted final approval, as well as a deadline for Plaintiffs to file a motion

3
4 for attorneys’ fees and costs so that it may be heard at the final fairness hearing.

5

6

II. FACTUAL BACKGROUND

7
8 A. Procedural History

9

10

1. Litigation

11

12

Plaintiffs filed this class action lawsuit on November 24, 2009, seeking declaratory and

13
14 injunctive relief against the Secretary of the Washington State Department of Social and Health

15
16 Services (DSHS). Dkt. 1, ¶¶ 1-10. The named plaintiffs were ten Medicaid-eligible children

17
18 who needed intensive home and community-based mental health services to correct or ameliorate

19
20 their psychiatric and behavioral health disorders. Id. at ¶ 5. Plaintiffs claimed that, by failing to

21
22 provide these services, Defendants violated the Early and Periodic Screening, Diagnostic and

23
24 Treatment (EPSDT) provisions of the federal Medicaid Act, as well as the Integration Mandate

25 26

of the Americans with Disabilities Act (ADA).1 Id. at ¶ 3.

27

28

Plaintiffs filed a motion to certify the class along with a joint stipulation as to the class

29
30 definition. On July 23, 2010, this Court granted the motion and certified the following class:

31

32

All persons under the age of 21 who now or in the future:

33

(1) meet or would meet the State of Washington’s Title XIX Medicaid financial

34

35

eligibility criteria;

36

(2) are determined and documented by a licensed practitioner of the healing arts

37

operating within the scope of their practice as defined by Washington state law, to

38

39

have a mental illness or condition, or had a screen or an assessment been

40

conducted by such practitioner, would have been determined and documented to

41

have a mental illness or condition;

42

43

(3) have a functional impairment, which substantially interferes with or substantially

44

limits the ability to function in the family, school or community setting; and

45

(4) for whom intensive home and community based services coverable under Title

46

47

XIX Medicaid and eligible for Federal Financial Participation, have been, or

48

49

1 On October 27, 2011, Plaintiffs filed the First Amended Complaint, which added the Director of the Washington

50

State Health Care Authority (HCA) as a defendant and dismissed one named Plaintiff. Dkt. 83, ¶ 29. The First

51

Amended Complaint is the operative pleading in this case.

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099

Phone: 206.359.8000

70787-0001/LEGAL27695933.2

Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 6 of 16

1

would have been recommended by a licensed practitioner in order to correct or

2

ameliorate a mental illness or condition.

3

4 Dkt. 60 at 2.

5

6

Throughout this time, Plaintiffs vigorously litigated their claims and Defendants

7

8 vigorously denied liability and asserted their defenses. See, e.g., Carlson Decl. ¶ ¶ 26-27, 29-30;

9

10 Ex. 1 ¶ 80.

11

12

2. Settlement Negotiations

13

14

In October 2010 the parties agreed to enter into mediation to attempt to resolve all of the

15

16 issues in this case. Upon application, the Court vacated the case scheduling order so that

17

18 mediation could proceed. Dkt. 68 at 1. Initially, the parties worked with the assistance of

19

20 mediators Theresa Wakeen and Kathleen Noonan. Gardner Decl. ¶ 17. The parties then

21

22 continued direct negotiations without mediators in approximately eighteen in-person sessions

23

24 conducted over the course of the next fifteen months. Gardner Decl. ¶ 18.

25

26

As a result of these efforts, the parties reached an Interim Agreement approved by this

27

28 Court on March 7, 2012. Dkt. 100. The Interim Agreement’s objective was to “establish the

29

30 infrastructure and necessary collaboration towards readiness to provide intensive home and

31

32 community based mental health treatment and supports ….” Dkt. 99, Ex. 1, ¶ 1. Defendants

33

34 worked, with input from Plaintiffs’ counsel, to “undertake those planning and development

35

36 activities necessary to lay a foundational base to implement the services demanded in the

37

38 Complaint.” Dkt. 99 at 3.

39

40

Although a significant milestone, the Interim Agreement did not resolve Plaintiffs’ claims

41

42 completely. Dkt. 99, Ex. 1, ¶ 8. In February 2013, the parties reinitiated settlement discussions.

43

44 Over the next five months, the parties engaged in approximately eleven days of negotiating,

45

46 including several days with the assistance of mediator Kathleen Noonan. Carlson Decl. ¶ 42;

47

48 Gardner Decl. ¶ 23. The parties reached agreement on the proposed Settlement Agreement in

49

50 July. Carlson Decl. ¶ 55.

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 3
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 7 of 16

1 B. Summary of Settlement Provisions

2

3

The purpose of the proposed Settlement Agreement “is to direct development of a

4
5 sustainable service delivery system of intensive home and community based mental health

6
7 services to Medicaid eligible children and youth ….” Ex. 1, ¶ 1. To effectuate this purpose,

8
9 Defendants have agreed that Intensive Care Coordination, Intensive Home and Community

10
11 Based Services, and Mobile Crisis Intervention and Stabilization Services are covered under

12
13 Washington’s State Medicaid plan. Id. at ¶ 79. These services are collectively referred to as

14
15 Wraparound with Intensive Services (WISe), and are defined in Appendix A to Exhibit 1

16
17 attached to this motion. Practically speaking, these services will allow class members to access

18
19 intensive mental health services while remaining in their homes, minimizing the need for costly

20
21 and unnecessary institutionalizations. Experts agree that providing services to children in their

22
23 homes and communities is both more successful and more cost-effective than serving them in

24
25 institutions. Dkt. 1, ¶ 14.

26

27

Subject to this Court’s final approval of the proposed Agreement, Defendants agree to

28
29 expand statewide program capacity to provide WISe services to all youth for whom intensive

30
31 home and community based services are medically necessary. Ex. 1 ¶, 27. According to

32
33 Defendants’ estimates, as many as 23,000 children and youth in Washington may have risk

34
35 factors that indicate a need for WISe services and supports. Id., App. D at 5. Defendants will

36
37 establish a protocol for identifying, screening, and referring at-risk youth to WISe using a

38
39 transparent process and in consultation with a mutually agreed clinical expert. Ex 1. ¶ 27.

40
41 Following this protocol, there will be an individualized determination as to which youth are

42
43 eligible for WISe services. Defendants also agree to establish, within ninety days following this

44
45 Court’s final approval, an initial estimate of the number of children and youth who are expected

46
47 to utilize WISe. Id. Subsequently, Defendants will provide a schedule for increasing system

48
49 capacity over the course of the next five years. Id.

50

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 4
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 8 of 16

1

2

Defendants will deliver services to class members in accordance with the WISe Access

3
4 Protocol, as described in Appendix C to Exhibit 1. Id. at ¶ 22. This protocol dictates that

5
6 children will be screened for the need for WISe using the Child and Adolescent Needs and

7
8 Strengths, a data tool that evaluates children’s needs and the efficacy of the services they receive.

9
10 Id. at ¶ 29. Defendants agree to develop a manual that describes WISe and instructs practitioners

11
12 and providers on documentation and operational requirements. Id. at ¶ 62.

13

14

Additionally, the proposed Agreement affords class members important due process

15
16 protections. Defendants will establish due process procedures to ensure Plaintiffs and their

17
18 families understand their right to challenge Medicaid determinations. Id. at ¶¶ 34-38.

19
20 Defendants will also modify regulations, issue directives, and require that Prepaid Inpatient

21
22 Health Plans monitor and collect data, in order to ensure due process compliance. Id. at ¶¶ 35,

23
24 37, 38.

25

26

Defendants will complete an Implementation Plan within six months after this Court

27
28 gives its final approval of the Agreement. Id. at ¶ 55. The plan will identify the tasks necessary

29
30 to fulfill the Defendants’ obligations in the Agreement. Id. at ¶ 57. Defendants will submit the

31
32 plan to this Court for approval and provide annual status reports. Id. at ¶¶ 58-59.

33

34

The parties anticipate completing implementation of the proposed Agreement on or

35
36 around June 30, 2018. Id. at ¶ 65. At that time, Defendants’ obligations in the lawsuit will

37
38 terminate if they are able to demonstrate substantial compliance with the Exit Criteria set forth in

39
40 the proposed Agreement. Id. at ¶¶ 2, 65.

41
42 C. Attorneys’ Fees and Costs

43

44

Defendants have agreed to pay a liquidated amount of $3.1 million to Plaintiffs for

45
46 attorneys’ fees, costs, and expenses incurred in litigating this matter through August 31, 2013.

47
48 Carlson Decl. ¶ 53. The negotiated fee amount represents a roughly 40% reduction from

49
50 Plaintiffs’ total lodestar claim. Id. at ¶ 56.

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 5
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 9 of 16

1

2

The parties negotiated this amount in two phases—first at the conclusion of mediation on

3
4 the Interim Agreement, and again after agreement had been reached on the proposed Settlement

5
6 Agreement. Id. at ¶¶ 54-55. Subsequent to filing the Interim Agreement on March 7, 2012, the

7
8 parties negotiated an amount of $2.1 million to be paid to Plaintiffs for fees and costs incurred

9
10 from pre-filing through March 7, 2012. Id. at ¶ 54; see Ex. 1 ¶ 90. After finalizing the proposed

11
12 Settlement Agreement in July 2013, the parties initiated negotiations of attorneys’ fees and

13 14

costs.2 Carlson Decl. ¶ 55. The parties reached an agreed amount of $1 million for the period

15
16 March 8, 2012 through June 30, 2013, with forbearance of any claim for the period July 1

17
18 through August 31, 2013. Id. at ¶ 53.

19

20

Pursuant to Federal Rule of Civil Procedure 23(h), Plaintiffs will file a separate motion

21
22 seeking court approval of the attorneys’ fees and costs award. Plaintiffs request that this Court

23
24 set the hearing on the fee motion at the same time as the fairness hearing.

25

26

III. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE

27

28

Federal Rule of Civil Procedure 23(e) requires parties to obtain court approval prior to

29
30 settling the claims of a certified class. The court approval process occurs over several stages:

31
32 (1) the court preliminarily approves the proposed settlement; (2) class members receive notice of

33
34 the proposed settlement; and (3) the court conducts a final fairness hearing to determine whether

35
36 the settlement is fair, reasonable, and adequate and thus should be approved. Manual for

37
38 Complex Litig. §§ 21.632-34 (4th ed. 2004). In analyzing the fairness, reasonableness, and

39
40 adequacy of an agreement, courts weigh a number of factors, including “the risk, expense,

41
42 complexity, and likely duration of further litigation; … the amount offered in settlement; …

43
44 [and] the experience and views of counsel ….” Officers for Justice v. Civil Serv. Comm’n, 688

45
46 F.2d 615, 625 (9th Cir. 1982).

47

48

49

50

2 The Settlement Agreement does not provide for a set amount of attorneys’ fees and costs; instead, it requires the

51

parties to engage in good faith negotiations to reach agreement on this amount. Ex. 1, ¶ 89.

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 6

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099

Phone: 206.359.8000

70787-0001/LEGAL27695933.2

Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 10 of 16

1

2

At the preliminary approval stage, the court’s inquiry is a limited one. The court should

3
4 grant preliminary approval if “the proposed settlement appears to be the product of serious,

5
6 informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant

7
8 preferential treatment to class representatives or segments of the class and falls within the range

9
10 of possible approval ….” In re NASDAQ Market-Makers Antitrust Litig., 176 F.R.D. 99, 102

11
12 (S.D.N.Y. 1997) (citing Manual for Complex Litig., § 30.41 (3d ed. 1995)); see also Manual for

13
14 Complex Litig., § 21.63 (4th ed. 2004). As discussed in more detail below, the proposed

15
16 Settlement Agreement far surpasses this standard.

17

18 A. The Settlement Provides Important Benefits to the Class that Outweigh the Risks of

19

Continued Litigation

20

21

The proposed Settlement Agreement is fair, reasonable, and adequate. Under this

22
23 Agreement, Plaintiffs will recover the most important relief they sought at the outset of this suit:

24
25 to have intensive home and community-based mental health services for children available

26
27 statewide and covered under Washington’s Medicaid plan. In their Complaint, Plaintiffs alleged

28
29 that class members could “access only a limited tool kit of weekly office-based therapy and

30
31 medication management.” Dkt. 1, ¶ 4. Under the proposed Agreement, children would receive

32
33 individualized mental health services in their homes or communities so that they may avoid

34
35 unnecessary hospitalization or other institutional or group care. These new services include

36
37 intensive care coordination, intensive home and community based services, and mobile crisis

38
39 intervention and stabilization services. Ex. 1, ¶ 20. Additionally, these new services will be

40
41 coordinated by child and family teams that place the child and his or her caregiver at the center

42
43 of the decision-making process. Id. at ¶ 21. Plaintiffs will also obtain other significant relief

44
45 such as the screening of children for potential need for WISe, trainings that educate children and

46
47 their families on the availability of WISe, and implementation of due process protections. Id. at

48
49 ¶¶ 22-23, 29, 32, 34-38, 57(g).

50

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 7
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 11 of 16

1

2

Plaintiffs’ counsel believe the proposed settlement achieves a significant victory for the

3
4 class that would be far from guaranteed through further litigation. Plaintiffs filed this suit nearly

5
6 four years ago. The Plaintiff children do not have years to wait for greater hypothetical relief

7
8 when Defendants are offering to change their system now. While Plaintiffs contend they have

9
10 strong legal claims, Defendants have consistently denied liability, and resolution of Defendants’

11
12 legal defenses could have resulted in protracted appeals and lengthy delays. See Ex. 1 ¶ 80.

13
14 Given this case’s long history, both parties are keenly aware that, if this settlement attempt fails,

15
16 another opportunity to settle may not be possible in the near future.

17

18

Class counsel has met with the named Plaintiffs and/or their next friends to discuss the

19
20 proposed settlement. Carlson Decl. ¶ 57. The named Plaintiffs are supportive of the Agreement

21
22 and have not expressed any objections to counsel. Id. Class members will have the opportunity

23
24 to ask questions and object pursuant to the proposed Notice Plan attached as Exhibit 3.

25
26 Recognizing that “the very essence of a settlement is compromise,” Plaintiffs seek the certainty

27
28 of settlement and the guarantee of covered mental health services that this proposed Agreement

29
30 provides. See Officers for Justice, 688 F.2d at 624.

31

32

Class counsel agree that this Settlement Agreement commits the Defendants to a range of

33
34 critical obligations that are not worth sacrificing for an undefined outcome that might be gained

35
36 in the courtroom. Class counsel are national experts in litigating broad injunctive relief cases

37
38 and in reforming mental health care systems and believe this settlement to be fair, reasonable,

39
40 and adequate. Carlson Decl. ¶ 45; Foster Decl. ¶ 15; Gardner Decl. ¶¶ 29-30; Lewis Decl. ¶ 10;

41
42 Welch Decl. ¶ 12.

43

44

On balance, the immediate and long-term benefits to the class set forth in the proposed

45
46 Settlement Agreement outweigh the risks of continued litigation.

47

48

49

50

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 8
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 12 of 16

1 B. The Settlement Is the Result of Informed, Non-Collusive Negotiations

2

3

Although courts will not delve into the merits of a proposed settlement, the court must be

4
5 satisfied that the agreement is free from collusion before it will grant preliminary approval.

6
7 NASDAQ, 176 F.R.D. at 102. Preliminary approval should be granted “[w]here the proposed

8
9 settlement appears to be the product of serious, informed, non-collusive negotiations [and] does

10
11 not improperly grant preferential treatment to class representatives or segments of the class ….”

12
13 Id. (citing Manual for Complex Litig., § 30.41 (3d ed. 1995)). In determining whether collusion

14
15 existed, courts will look to whether the agreement “was negotiated in haste or in the absence of

16
17 information illuminating the value of plaintiffs’ claims.” Hanlon v. Chrysler Corp., 150 F.3d

18
19 1011, 1027 (9th Cir. 1998).

20

21

In this case, there can be no question that the agreement is free from collusion. Prior to

22
23 filing this lawsuit, Plaintiffs engaged in extensive fact investigation. Carlson Decl. ¶¶ 21-26;

24
25 Foster Decl. ¶ 6. The four years since the initiation of this suit have afforded the parties the

26
27 opportunity to take a realistic and informed view of their respective positions in the lawsuit.

28
29 From the beginning, Plaintiffs engaged outside experts to assess Defendants’ Medicaid system.

30
31 Carlson Decl. ¶ 26; Foster Decl. ¶ 11; Gardner Decl. ¶ 14. The parties conducted discovery, both

32
33 sides propounded requests for production of documents, and Plaintiffs deposed DSHS personnel.

34
35 Carlson Decl. ¶¶ 27, 30; Foster Decl. ¶ 8. The parties vigorously litigated this case from the

36
37 outset. Only when Plaintiffs were on the cusp of filing a motion for preliminary injunction did

38
39 the parties agree to sit down to explore settlement options. Foster Decl. ¶ 10. At various points

40
41 the parties engaged outside mediators to facilitate their settlement talks. Carlson Decl. ¶¶ 36, 42.

42
43 Having engaged in formal and informal discovery for several years, the parties came to the table

44
45 with “sufficient information to make an informed decision about settlement.” See In re Mego

46
47 Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000).

48

49

In summary, the settlement was not negotiated in haste. This case was filed in November

50
51 2009, and settlement negotiations began in January 2011. Gardner Decl. ¶¶ 15, 18. Over one

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 9
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 13 of 16

1
2 year later, the parties agreed to the Interim Agreement, which laid the groundwork for the current

3
4 proposed reforms. Carlson Decl. ¶¶ 37-38. The parties returned to the negotiating table in

5
6 February 2013, and after five months of intensive negotiations reached agreement on the

7
8 proposed Settlement Agreement. Gardner Decl. ¶ 23. All told, the parties have spent roughly

9
10 nineteen months in settlement discussions. Carlson Decl. ¶¶ 34, 41.

11

12

The Settlement Agreement does not give preferential treatment to named plaintiffs nor

13
14 does it distinguish between subgroups of the class. Carlson Decl. ¶ 52. Rather, the Agreement

15
16 sets the stage for a statewide system in which every class member has equal access to WISe

17
18 regardless of his or her geographic location. Ex. 1, ¶ 1.

19

20

Finally, there is no hint of collusion regarding the fee payments. When negotiating fees

21
22 under the Interim Agreement and again under the Settlement Agreement, the parties refrained

23
24 from negotiating fees and costs until after they had resolved the merits of Plaintiffs’ claims.

25
26 Carlson Decl. ¶¶ 54-55. That Plaintiffs are settling their fee claim at roughly 60% of their

27
28 lodestar should eliminate any further concern about collusion on the fees. See Carlson Decl.

29
30 ¶ 56.

31

32

The proposed Settlement Agreement falls well “within the range of possible approval”

33
34 and should be approved. See NASDAQ, 176 F.R.D. at 102.

35

36

IV. THE PROPOSED NOTICE AND NOTICE PLAN ARE REASONABLE

37

38

Where a proposed settlement would bind class members, Federal Rule of Civil

39
40 Procedure 23(e)(1) requires that the class receive notice “in a reasonable manner.”

41
42 Individualized notice is not required, so long as the notice “generally describes the terms of the

43
44 settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come

45
46 forward and be heard.” Mendoza v. United States, 623 F.2d 1338, 1350, 1353 (9th Cir. 1980).

47
48 Notice must also be directed “in a manner that does not systematically leave any group without

49
50 notice ….” Officers for Justice, 688 F.2d at 624.

51

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 10
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 14 of 16

1

2

Plaintiffs’ proposed Notice and Notice Plan, attached as Exhibits 2 and 3, are appropriate

3
4 and reasonably calculated to reach class members. The proposed Notice describes the lawsuit

5
6 and key settlement terms in clear, easily understood language. It also provides the class with

7
8 notice of the proposed fee amount and that the amount is subject to this Court’s approval. Ex. 2

9
10 at 5. The parties will make the Notice accessible in a variety of formats and media—including in

11
12 print newspapers, online, in hard copy at offices where class members seek services, via

13
14 interactive video conferences, and through in-person information sessions conducted at several

15
16 locations. Ex. 3. The Notice makes clear that class members may object to the proposed

17
18 Agreement, and provides adequate opportunity for such objection or comment. Ex. 2 at 6.

19

20

V. CONCLUSION

21

22

Through this Settlement Agreement, the parties have developed a shared vision to

23
24 provide class members with high-quality, individualized, intensive mental health care services.

25
26 The proposed Settlement Agreement is fair, reasonable, and adequate. More importantly, it

27
28 promises to bring much needed support to thousands of Washington’s children, helping them

29
30 remain safely in their homes and communities and avoid institutionalization. For the foregoing

31
32 reasons, Plaintiffs respectfully urge this Court to enter the proposed order: (1) granting

33
34 preliminary approval of the proposed Settlement Agreement; (2) approving the proposed Notice;

35
36 (3) directing that notice to the class be given pursuant to the Notice Plan; (4) setting a deadline

37
38 for Plaintiffs to file their motion for attorneys’ fees and costs so that it may be heard at the final

39
40 fairness hearing; and (5) setting a schedule for the final fairness hearing.

41

42

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45

46

47

48

49

50

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MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 11
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 15 of 16

1
2 Dated: August 29, 2013

3
4 FOR PLAINTIFFS:

5

6 s/ David Carlson

7 s/ Susan Kas

8 David Carlson, WSBA No. 35767

9 Susan Kas, WSBA No. 36592

10

11 12

DISABILITY RIGHTS WASHINGTON 315 5th Avenue South, Suite 850

13 Seattle, WA 98104

14 Telephone: (206) 324-1521

15 Facsimile: (206) 957-0729

16 Email: davidc@dr-wa.org

17

susank@dr-wa.org

18

19

20 s/ Susan E. Foster

21 s/ Frederick B. Rivera 22 s/ Travis A. Exstrom
23
24 s/ Laura T. Ewbank 25 s/ Austin Rainwater
26 Susan E. Foster, WSBA No. 18030

27 Frederick B. Rivera, WSBA No. 23008

28 Travis A. Exstrom, WSBA No. 39309 29 Laura T. Ewbank, WSBA No. 39534 30 Austin Rainwater, WSBA No. 41904 31 PERKINS COIE LLP
32
33 1201 Third Avenue, Suite 4900 34 Seattle, WA 98101-3099

35 Telephone: (206) 359.8000

36 Facsimile: (206) 359.9000

37 Email: SFoster@perkinscoie.com

38

FRivera@perkinscoie.com

39

TExstrom@perkinscoie.com

40

LEwbank@perkinscoie.com

41

ARainwater@perkinscoie.com

42

43

44

45

46 ATTORNEYS FOR PLAINTIFFS
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48

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s/ Leecia Welch s/ Erin Liotta Leecia Welch, WSBA No. 26590 Erin Liotta, CB No. 278949 NATIONAL CENTER FOR YOUTH LAW 405 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Facsimile: (510) 835-8099 Email: lwelch@youthlaw.org
eliotta@youthlaw.org
s/ Kimberly Lewis s/ Jane Perkins Kimberly Lewis, CB No. 144879 Jane Perkins, SBN 104784 NATIONAL HEALTH LAW PROGRAM 3701 Wilshire Blvd., Suite #750 Los Angeles, CA 90010 Telephone: (310) 204-6010 Facsimile: (213) 368-0774 Email lewis@healthlaw.org
perkins@healthlaw.org
s/ Patrick Gardner s/ Wesley Sheffield Patrick Gardner, CB No. 208119 Wesley Sheffield, CB No. 287940 YOUNG MINDS ADVOCACY PROJECT 115 Haight Street Menlo Park, CA 92025 Telephone: (650) 494-4930 Email: patrick@youngmindsadvocacy.org
wsheffield@youthmindsadvocacy.org

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 12
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 119 Filed 08/29/13 Page 16 of 16

1

2

3

4

CERTIFICATE OF SERVICE

5

6

I hereby certify that on this 29th day of August, 2013, I electronically filed the foregoing

7
8 with the Clerk of the Court using the CM/ECF system which will send notification of such filing

9
10 to the following: John McIlhenny Jr. (JohnM5@atg.wa.gov), Bill G. Clark

11
12 (BillC2@atg.wa.gov), and Eric Nelson (EricN1@atg.wa.gov).

13

14

15

DATED this 29th day of August, 2013.

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17

s/Tabitha Moe

18

Tabitha Moe Legal Secretary

19

Perkins Coie LLP

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MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT (No. 2:09-cv-01677-TSZ) – 13
70787-0001/LEGAL27695933.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:09-cv-01677-TSZ Document 116 Filed 06/28/13 Page 1 of 5

1 THE HON. THOMAS S. ZILLY
2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON 6

T.R., by and through his guardian and next friend, 7 R.R.; S.P., by and through her mother and next
friend, D.H.; C.A., by and through her mother and 8 next friend, A.A.; T.F., by and through her father
and next friend, D.F.; P.S., by and through his 9 mother and next friend, W.S.; T.V., by and
through his guardian and next friend. C.D.; E.H. 10 by and through his mother and next friend, C.H.;
E.D., by and through his mother and next friend, 11 A.D.; and L.F.S., by and through his mother and
next friend, B.S., 12
Plaintiffs, 13

No. C09-1677-TSZ
STIPULATED MOTION AND ORDER RE EXTENSION OF INTERIM AGREEMENT

v. 14

15 SUSAN N. DREYFUS, not individually, but solely in her official capacity as Secretary of the
16 Washington State Department of Social and Health Services; and J. DOUGLAS PORTER, not
17 individually, but solely in his official capacity as the Director of the Washington State Health Care
18 Authority,

19

Defendants.

20

STIPULATION

21

The parties, through their counsel, respectfully submit this Stipulation for court approval

22 to extend the term of the parties’ Interim Agreement from June 30, 2013, until the date this Court

23 orders final approval of the parties’ Settlement Agreement.

STIPULATED MOTION AND ORDER RE EXTENSION OF INTERIM AGREEMENT - 1 C09-1677 TSZ

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

Case 2:09-cv-01677-TSZ Document 116 Filed 06/28/13 Page 2 of 5

1

On March 7, 2012, this Court issued its Order Regarding Stipulated Interim Agreement

2 and Case Schedule Amendments (DKT 100). That Order, at paragraph 1, approved the Parties’

3 Interim Agreement attached as Exhibit 1 to the Parties’ Stipulation Regarding Interim Agreement

4 and Joint Motion Amending Case Schedule (DKT 99). The Interim Agreement established that

5 its term would end on June 30, 2013, but allowed for an extension of this term by “mutual

6 consent and with approval of the Court.” See Paragraphs 17 & 20. Paragraph 20 further

7 established that if the parties had not developed a subsequent agreement before July 1, 2013,

8 they could “extend the deadline for completing the subsequent agreement and continue to

9 implement … [the Interim] Agreement.”

10

The parties have been working diligently to negotiate a Settlement Agreement of this

11 matter, and are close to completing their negotiations and reaching a final Agreement. The

12 parties will be filing a Joint Status Report on July 15, 2013, which will update the Court on the

13 status of negotiations and Defendants’ implementation efforts. The parties recognize that once

14 the Settlement Agreement is submitted to this Court, the process for obtaining final approval

15 may take several months.

16

In the interim, the parties agree that Defendants will continue meeting the obligations set

17 forth in the Interim Agreement. Accordingly, as contemplated by Paragraph 20 of the Interim

18 Agreement, the parties seek an extension of the term of that Agreement until the date this Court

19 orders final approval of the parties’ Settlement Agreement. Upon final approval of the

20 Settlement Agreement, the Interim Agreement will expire.

21 // //
22 // //
23 //

STIPULATED MOTION AND ORDER RE EXTENSION OF INTERIM AGREEMENT - 2 C09-1677 TSZ

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

Case 2:09-cv-01677-TSZ Document 116 Filed 06/28/13 Page 3 of 5

1

IT IS SO STIPULATED this 27th day of June, 2013

2

3 /s/David Carlson David Carlson, WSBA No. 35767
4 DavidC@dr-wa.org DISABILITY RIGHTS WASHINGTON
5 315 5th Avenue South, Suite 850 Seattle, WA 98104
6 Telephone: (206) 324-1521

7 Attorneys for Plaintiffs

8

9 /s/ John K. McIlhenny John K. McIlhenny, Jr. WSBA No. 32195
10 JohnM5@atg.wa.gov Assistant Attorney General
11 OFFICE OF THE ATTORNEY GENERAL 7141 Cleanwater Drive SW
12 PO Box 40124 Olympia, WA 98504-0124
13 Telephone: (360) 586-6565

14 Attorneys for Defendants

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STIPULATED MOTION AND ORDER RE EXTENSION OF INTERIM AGREEMENT - 3 C09-1677 TSZ

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

Case 2:09-cv-01677-TSZ Document 116 Filed 06/28/13 Page 4 of 5

1

ORDER

2

Based on the foregoing stipulated motion, ECF No. 115, which is hereby GRANTED, the

3 Court’s March 7, 2012 Order Regarding Stipulated Interim Agreement and Case Schedule

4 Amendments, ECF No. 100, is hereby modified to extend the term of the parties’ Interim

5 Agreement from June 30, 2013, until the date this Court orders final approval of the parties’

6 Settlement Agreement.

7

DATED this 28th day of June, 2013.

8

9

A

10

THOMAS S. ZILLY

United States District Judge

11

12

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23

STIPULATED MOTION AND ORDER RE EXTENSION OF INTERIM AGREEMENT - 4 C09-1677 TSZ

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

Case 2:09-cv-01677-TSZ Document 116 Filed 06/28/13 Page 5 of 5

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 27th day of June, 2013, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

3 to the following: John McIlhenney Jr. (JohnM5@atg.wa.gov), Bill G. Clark

(BillC2@atg.wa.gov), Eric Nelson (EricN1@atg.wa.gov) and Catherine R. Hoover

4 (CatherineH1@atg.wa.gov)

5

6

s/Mona Rennie

7

Legal Assistant

Disability Rights Washington

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STIPULATED MOTION AND ORDER RE EXTENSION OF INTERIM AGREEMENT - 5 C09-1677 TSZ

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

 
 Case 2:09-cv-01677-TSZ Document 159 Filed 11/16/15 Page 1 of 50
Implementation Status Report
November 16, 2015
Submitted under the Settlement Agreement in T.R. v. Quigley and Teeter Hon. Thomas S. Zilly U.S. District Court, Seattle No. C09-1677-TSZ
1

Case 2:09-cv-01677-TSZ Document 159 Filed 11/16/15 Page 2 of 50

Table of Contents

Introduction

3

1: Progress in Meeting Obligations

Objective 1: Communication Regarding WISe

4

Objective 2: Identification, Referral, and Screening for WISe

6

Objective 3: Provision of WISe

13

Objective 4: Coordinating Delivery of WISe Across Child-Serving

25

Agencies

Objective 5: Workforce Development and Infrastructure

30

Objective 6: Maintaining Collaborative Governance Structure

36

Objective 7: Affording Due Process to Class Members

39

2: Implementation Challenges

42

3: Glossary of Key Terms

48

2

Case 2:09-cv-01677-TSZ Document 159 Filed 11/16/15 Page 3 of 50
Wraparound with Intensive Services (WISe) Implementation Status Report
Introduction
The State of Washington settled T.R. v. Quigley and Teeter in December 2013. The case had been filed four years earlier, asking the State to provide children and youth on Medicaid with intensive mental health services in their homes and community settings. In the settlement, Washington State committed to developing intensive mental health services, based on a “wraparound” model, so that eligible youth can live and thrive in their homes and communities, and avoid or reduce costly and disruptive out-of-home placements. As part of the settlement, Washington State developed Wraparound with Intensive Services (WISe). WISe is designed to provide comprehensive behavioral health services and supports to Medicaid-eligible individuals, up to 21 years of age, with complex behavioral needs and to assist their families on the road to recovery. WISe will be available in every county across the state by June 2018.
Until the exit of the Settlement Agreement, the State will provide the Court, the Plaintiffs, and the public an annual Implementation Status Report to describe progress in meeting the obligations under the agreement. The report is to include accomplishments, remaining tasks and identification of potential or actual problems, as well as remedial efforts to address them. This Implementation Status Report represents the second annual report, detailing the State’s accomplishments in developing and implementing the WISe program.
The State submitted a WISe Implementation Plan to the Court on August 1, 2014, which was subsequently approved. The Implementation Plan was organized around seven objectives necessary to accomplish the commitments and exit criteria of the Settlement Agreement. The layout of this report follows these same seven objectives so that progress and concerns can be tracked in a logical and consistent manner, as the WISe program evolves over time. This report is further organized into two sections. Section 1 has a description of accomplishments made in year two of the Implementation Plan, and then sets forth remaining tasks. Section 2 identifies overarching implementation challenges and proposals for addressing those areas of concern.
This report briefly addresses the requirement for an annual quality management plan (QMP) report. The annual QMP report is in process and on time to meet the December 19, 2015 deadline for completion.
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1. Progress in Meeting Obligations under the Settlement Agreement and Status of Remaining Tasks
Objective 1: Communication Regarding WISe
Communicate with families, youth, and stakeholders about the nature and purpose of Wraparound with Intensive Services (WISe), who is eligible, and how to gain access to WISe.
Progress and Accomplishments:
An overarching goal of this objective is to deliver information through a variety of online, print, and in-person methods and deliver information in a way that conveys consistent messaging and content to audiences across the state.
A key strategy for communicating with families, youth, and child-serving partners and stakeholders about the nature and purpose of WISe was to develop and disseminate informational materials in a manner that recognizes cultural and linguist differences of class members. The U.S. Department of Health and Human Services set national standards for Cultural and Linguistically Appropriate Services (CLAS standards) that guided efforts for appropriate outreach and engagement.
Between July 2014 and July 2015, the communications developed were tailored to meet the needs of these groups, herein referred to as “affinity groups.” Fourteen affinity groups were identified (see list below). The Division of Behavioral Health and Recovery (DBHR) engaged representatives from identified affinity groups, such as Children’s Administration, Rehabilitation Administration (RA), Developmental Disabilities Administration (DDA), Family/Youth Organizations, and Regional Support Networks (RSNs), in the development of draft materials to inform youth, families, and child-serving system partners about WISe.
The draft materials went through multiple rounds of vetting through the statewide Family, Youth and System Partner Roundtable (FYSPRT), a DSHS Diversity Affairs Workgroup representative, and Plaintiffs’ Counsel. In compliance with current DSHS policies, the family and youth information sheets were translated into eight different languages (English, Cambodian, Chinese, Korean, Laotian, Russian, Spanish, and Vietnamese).
All information sheets, including translations, were published in late July 2015. The DBHR website link for accessing the WISe Information Sheets is: http://www.dshs.wa.gov/dbhr/cbh-wise.shtml.
Materials were developed for each of the following affinity groups:
• Child Psychiatrists and ARNPs • Children’s Administration Social Service Specialists
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• Children’s Long Term Inpatient Program Staff • Developmental Disabilities Administration • DMHPs and Crisis Teams • Families/Family Organizations • Heath Care Authority and Contracted Providers • Individuals Providing Mental Health Services • Juvenile Court, Detention, and Probation Personnel • Juvenile Rehabilitation Personnel • K-12 Educators and Professionals • Pediatricians, Family Practitioners, Physicians Assistants and ARNPs • Substance Use Disorders (SUD) Providers • Youth/Youth Organizations
On September 15, 2015, WISe communication sheets were disseminated to the following distribution lists:
• Statewide Family, Youth and System Partner Roundtable • Children’s Mental Health Committee • Children’s Long Term Inpatient – Improvement Committee • Diversity Affairs/Cultural Competency Workgroup • Office of Consumer Partnership • Behavioral Health Advisory Committee • Community Connectors • WISe Advisory Manual Group • TR Implementation Advisory Group • Children’s Behavioral Health ListServ
From these lists, approximately 900 youth, family, and system partner stakeholders from across the state received copies of the WISe Information Sheets. Furthermore, each affinity group representative assisted DBHR in identifying and implementing strategies for sharing the WISe information specific to their network (e.g., Educational Service Districts, Substance Use Disorder Residential Providers, Informing Families Organization and ListServ). This initial dissemination through affinity group representatives also occurred in September 2015. Affinity group stakeholders were also encouraged to include these materials in their own system and community trainings.
On November 10, 2015, a link to a 10 minute YouTube video describing WISe was also sent out to the distribution lists above. This video can be accessed through the following link: https://youtu.be/NScjTSwT6U4 .
Another key strategy for communicating with interested stakeholders is to maintain a WISe implementation website (www.dshs.wa.gov/dbhr/cbh-wise.shtml). This site has a variety of information including a WISe referral contact list by county, a map of where WISe is currently being implemented, the current version of the WISe Manual,
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as well as the information sheets discussed above. The website also offers an email address for feedback and questions. The address is WISeSupport@dshs.wa.gov. Additionally, the website provides an opportunity to sign up for the Children’s Behavioral Health ListServ, for those interested in receiving announcements and updates. The expected results of this work are that youth and families in need of WISe services will receive sufficient information to be informed about and access WISe services, and system partners will understand how to best support them in understanding and accessing these services.
Objective 1 -Remaining Tasks: • Continue to disseminate the developed information to the affinity groups, system partners, and to youth and families about WISe, as described above. • Continue to share information drafted and incorporated into the WISe Manual with FYSPRTs, system partners, affinity groups, and Plaintiffs’ Counsel. • Continue to deliver information developed through a variety of online, print, and in-person methods, including targeted and in-person outreach to school personnel and medical providers. (Also, see Objective 5 for general WISe training information and specifically, conference presentations provided to school personnel in FY 2015). • Continue to deliver information in a way that conveys consistent messages and content to audiences across the state. • Continue to have FYSPRTs distribute WISe communication materials. • Annually review and update the informational materials using the same groups involved in development. The first review needs to start in December 2015 and be completed by July 2016. • Include in the Quality Management Plan (QMP), a process for improvement of effectiveness of communications.
Objective 2: Identification, Referral, and Screening for WISe
Effectively identify, refer, and screen class members for WISe services.
Progress and Accomplishments:
Prior to implementation, a WISe Access Protocol was established to identify and refer class members for WISe services. The WISe Access Protocol includes the identification, referral, screening, and intake/engagement process for WISe services. The WISe Access Protocol is included in the WISe Manual and provides uniform standards on the administrative practices and procedures for providing access to WISe and its services. WISe providers and Regional Support Networks (RSNs) use the protocols to meet requirements related to:
• Identification of youth who might qualify/benefit from WISe.
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• Elements of the WISe screening. • Conducting a WISe screen.
Starting in July 2015, the WISe Access Protocol is to be reviewed annually. The next review is in April 2016, after RSNs transition to Behavioral Health Organizations. The timing of this review assists with updating the protocol with any regional operational changes.
In July 2014, system partners started using system-specific indicators, informed by the data used to identify class members in the Proxy, to identify potential referrals. This work included coordination of WISe screens for youth referred to, participating in, or discharging from Children’s Administration’s Behavior Rehabilitation Services (BRS), as well as Children’s Long Term Inpatient Programs (CLIP). Rehabilitation Administration, Juvenile Rehabilitation, is working to include an identifier-checklist in their Automated Client Tracking (ACT) to assist with coordination of WISe referrals. System partner representatives from the identified affinity groups worked with DBHR to develop identifiers to be included on the WISe information sheets. Identification of system identifiers to improve access and referrals is on-going work. DBHR and our system partners will continue to monitor for additional improvements over time.
Child and Adolescent Needs and Strengths: Per the Settlement Agreement, a Washington version of the Child and Adolescent Needs and Strengths (CANS) screen and assessment tool was developed and an initial CANS screening algorithm was put in place in July 2014. CANS is a multi-purpose tool developed for children’s services to support decision-making, including level of care and service planning, to facilitate quality improvement initiatives and to allow for the monitoring of service outcomes through the mental health system. CANS trainings have been offered in-person and online.
DBHR and its contractor, RCR Technologies, have developed an online data system to store and report on CANS related data. The Behavioral Health Assessment System (BHAS) data system was launched in July 2014. BHAS captures and communicates youth and family needs and strengths for treatment planning purposes. CANS data reports are available in real time at local (clinician, supervisor, agency), regional (RSN, county), and state levels for quality improvement purposes.
In May 2015, one-day trainings on how to use the BHAS data as part of Transformational Collaborative Outcomes Management (TCOM) were offered in various locales for RSNs currently implementing WISe. BHAS Quarterly Reports are being generated and reviewed through the quality infrastructure as outlined in the WISe Quality Management Plan. An e-learning module is also in production to assist with understanding data protocol reviews. The first complete review cycle was completed with 2nd quarter data and a “best practice” report identified and disseminated to all RSNs.
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WISe Screens: Anyone can make a referral for a WISe screen. Family, youth, and childserving systems, such as Children’s Administration, Rehabilitation Administration, Development Disabilities Administration, Health Care Authority Regional Support Networks (RSNs), school personnel, county and community providers, and medical providers can assist in the identification and referral of youth who might benefit from WISe. Consideration for referral begins with youth who are Medicaid eligible, under age 21, and have complex behavioral health needs.
The WISe referral contacts list by county can be found in the following link: http://www.dshs.wa.gov/dbhr/cbh-wise.shtml. In addition, referrals for a WISe screen may be made directly to an RSN or any RSN provider.
From July 1, 2014, through June 30, 2015, (FY 2015) 1,417 WISe screens were conducted for youth age 5 up to 21 years old. (Note that this number may be slightly higher than previous estimates for the same time period due to additional data maturity.)
The table below provides referral sources. The largest referral sources for the WISe program are the RSNs (36%), self and family (19%), and Children’s Administration (18%). A smaller number of referrals are coming from other mental health services and programs (e.g., crisis services, Health Care Authority-paid mental health) and other settings (e.g., Rehabilitation Administration, community organizations, schools, and medical providers).
In FY 2015, only a small number of WISe referrals came from school personnel (3%). Nevertheless, additional analyses show that a significant number of youth screened into WISe in FY 2015 had received school-based behavioral health services in the 30 days prior to screening (20%) and that nearly half of youth screened into WISe (47%) had received special education services in the 30 days prior to screening. On the one hand, there exists an opportunity to continue to expand outreach efforts to school personnel, including better informing school administrators as well as school social workers and counselors, about the WISe program. At the same time, a good number of youth with identified functional impairments and behavioral health issues in the school setting are already making their way into the WISe program through other channels.
In FY 2015 WISe presentations were provided to the Student Support Conference in Wenatchee and the Washington Association of School Social Workers in Federal Way as well as the distribution of WISe information sheets, as described in Objective 1 and this outreach will continue. Opportunities for additional outreach also exist with medical providers and the Rehabilitation Administration.
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Mental Health Referral Source Types
MH-Outpatient/RSN MH-Crisis Services MH-Other MH-Outpatient/Non-RSN MH-Inpatient/Non-CLIP MH-Inpatient/CLIP MH-Tribal
Other Referral Source Types
Self & Family Children's Administration Other Community Organization School Juvenile Justice/non-JJRA Juvenile Justice/JJRA Medical Provider Developmental Disabilities Administration Chemical Dependency Provider
TOTAL DUPLICATED SCREENS

Referral Source Types

N
508 75 24 24 21 * *
N
272 255 84 51 38 24 13 12
* *
1,417

% of Screens 36% 5% 2% 2% 1% * *
%
19% 18% 6% 4% 3% 2% 1% 1% * *
100%

NOTES: A total of 1,417 WISe screens (CANS screens) were conducted for youth age 5 or older in FY 2015. Screens for youth below age 5 are excluded due to low numbers (11 total conducted in FY 2015). Some youth have multiple WISe screens (CANS screens) in the fiscal year, and are represented multiple times in the above counts. Continued work on refining the BHAS data system may yield changes to these numbers. *Cells representing fewer than 10 individuals have been suppressed to protect confidentiality. SOURCE: Washington Behavioral Health Assessment System (BHAS).
WISe Manual: DBHR, in collaboration with Portland State University (PSU), University of Washington (UW) and the WISe Manual Advisory Workgroup, developed the initial WISe Manual that was completed in June 2014. The purpose of the WISe Manual is to direct the development of a sustainable service delivery system for providing intensive mental health in home and community settings to Medicaid eligible children and youth. The manual is to assist the community mental health system and allied agencies, as well as other formal, informal, and natural supports with the identification of eligible youth and the implementation and provision of WISe. The manual is a living document that will continue to be informed by those working on implementation and monitoring the progress. The WISe Manual Advisory Workgroup, a diligent and essential work group, reviewed the manual quarterly between September 2014 and June 2015. As of July 2015, the manual will be updated annually. The manual is disseminated to WISe provider sites, the statewide FYSPRT, Plaintiffs’ Counsel, and is available on line at: www.dshs.wa.gov/dbhr/cbh-wise.shtml.

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Quality Improvement: The initial Quality Management Plan (QMP) was completed in December 2014. This document will continue to be adapted and updated to best support continuous quality improvement. The QMP provides the foundation for measuring the implementation and success of the goals and commitments of the TR Settlement Agreement. An overview of the work included in the QMP can be found in Appendix B, the Action Information Matrix.
A copy of the Quality Management Plan can be found online at: https://www.dshs.wa.gov/sites /default/files/BHSIA/dbh/Mental%20Health/QMP%20FINAL-updated5.2015.pdf
The QMP (pages 4-7) identifies the process for improving outcomes related to the effectiveness of identification, referral, and screening. Quarterly reports are a vital component to reviewing system and service outcomes and will become increasingly useful as the data from Behavioral Health Assessment System (BHAS) becomes more accurate. Work with RCR Technology Corporation toward this goal is progressing. In the meantime, we are using the quarterly reports to have the RSNs become familiar with the expectations for the quarterly review set forth in the Quarterly Data Review Protocol (Appendix D of the QMP) for assessing performance on access, engagement, service appropriateness, service effectiveness, and linkages. Each RSN submitted their review on time. Two RSNs were not meeting screening timeliness expectations; one identified a plan to address the gap. Changes based on data will not be expected in the quarter immediately following the planned improvement because the changes will not be in effect. There will always be at least a one quarter lag. Additional information on timeliness is included on the following page.
Quarterly Reports include information relevant to stakeholders at each level of the system. These reports are designed to help decision-makers review areas of variation in performance which, among other things, is intended to identify exceptionally effective performance, or performance needing improvement. These reports are part of the BHAS online information system. Statewide and RSN level reports will posted on the DBHR website once BHAS data and reporting challenges have been addressed. See Section 2 for additional information on BHAS updates.
Examples of multi-level BHAS outcomes reports, some of which are still being tested by the contracted BHAS developer (RCR Technology Corporation) and the State’s DBHR and Research and Data Analysis staff, include:
• Screening Timeliness • Clinician Screening Results • Initial Full Assessment Screening Results • Key Intervention Needs Over Time • Strengths Development Over Time
The reports produced via the BHAS system reflect up-to-the-moment assessments of clinical performance at each level of the system, and may be configured to provide
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assessments of previous performance. In the next six to nine months, once report validation is completed, quarterly reports by RSN and statewide will be posted on the DBHR website to inform stakeholders and ensure transparency. Quarterly reports will be aggregated so that they contain no personally identifiable protected health information and to comply with the Health Insurance Portability and Accountability Act (HIPAA).
For RSNs and agencies providing WISe, quarterly reports were available on the BHAS site April 1, 2015 for the WISe first quarter data. These reports included: first Quarter Reports (January 1, 2015 – March 31, 2015); Implementation Reports (July 1, 2014 – December 31, 2014); and Longevity Reports (July 1, 2014 – March 31, 2015). Quarterly Reports were disseminated to all groups identified in the Quality Structure of the QMP. Individual RSN BHAS reports were emailed to each RSN currently implementing WISe. Second quarter reports were sent out in August 2015.
An example of one of the BHAS reports included in the quarterly report is the Screening Timeliness Report. Outcomes for FY 2015 indicate that of the 1,417 WISe screens conducted, 76% were conducted within 10 business days of referral, the standard for screening timeliness. The timeliness of screens improved over the course of the fiscal year. For four regions, the screening timeliness was near or above 90% across the fiscal year. For one region, the screening timeliness was at 49% at the start of implementation and in the last quarter of SFY 2015 increased to 62%. For the remaining region, there is an expectation, as identified in the Quarterly Data Review Protocol (Appendix D of the QMP), to review timeliness reports and identified to how to better ensure that referred youth are being screened for WISe in a more timely manner. The Quarterly Data Review process began for RSNs in August 2015. Additional information and data will be provided in the annual QMP report due in late December 2015.

FY 2015 Quarter JUL-SEP 2014 OCT-DEC 2014 JAN-MAR 2015 APR-JUN 2015
FY 2015 Total

Screens % Timely

305

63%

379

74%

339

86%

394

78%

1,417

76%

NOTES: A screen is considered timely if it is conducted within 10 business days of referral. A total of 1,417 WISe screens (CANS screens) were conducted for youth age 5 or older in FY 2015. Screens for youth below age 5 are excluded due to low numbers (11 total conducted in FY 2015). Some youth have multiple WISe screens (CANS screens) in the fiscal year, and are represented multiple times in the above numbers. Continued work on refining the BHAS data system may yield changes to these numbers. SOURCE: Washington Behavioral Health Assessment System (BHAS).
Statewide Measures of Performance: Work on the WISe Statewide Measures of Performance “dashboard” is underway and expected to be completed in January

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2016. A significant amount of work in the past several months has gone into refining data systems to ensure adequate data quality, and accuracy. As this work continues, additional work has begun mapping out preliminary plans for what will be included in the first year version of the WISe dashboard. The analytical datasets to execute these plans are being built, at the same time as plans are being refined and better specified. At the current time, the following elements are planned to be in the first annual WISe dashboard:
• An updated Functional Proxy Profile identifying children and youth to be screened for need for intensive home and community-based mental health services.
• The number and characteristics of youth screened for WISe and youth receiving WISe services in FY 2015. Characteristics will include demographics, behavioral health history, cross-system involvement, and functional proxy indicators.
• WISe service characteristics for youth served in WISe in FY 2015, including caseload counts and service hours, service locations, provider types, and treatment modalities. WISe caseload counts by county and region, and a map showing progress to full implementation service targets.
• Change in outcomes for WISe participants over the first six months in the WISe program, as measured by changes in BHAS scores, such as Behavioral and Emotional Needs and Risk Factors (examples of such outcomes included under Objective 3). (Note that the program has not been running a sufficient amount of time to examine long-term outcomes or to examine outcomes measured in administrative data for youth screened into and/or out of the WISe program.)
Objective 2 - Remaining Tasks: • Annually review the WISe Access Protocol. Next review to be completed by June 30, 2016. • Completion of the Statewide Measures of Performance for WISe by January 2016. • Annually refine the identification over time to account for learning from actual use and performance and include education system information as it becomes available. Next review to be completed by December 31, 2016. • Continue to incorporate the WISe Manual in the RSN/BHO contracts. • Continue to provide training and technical assistance on compliance with the WISe Manual. • Continue to address issues related to BHAS (see Section 2, Implementation Challenges, BHAS). • Continue to review and report timeliness standards. • Continue to review and report on BHAS data as identified in the QMP. • Continue to require that youth referred to, participating in, or discharging from BRS or CLIP receive a WISe screen. • Post RSN and state level Quarterly Reports to DBHR website once all BHAS reports complete validation for accuracy. (See Section 2, Implementation Challenges, BHAS).
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Objective 3: Provision of WISe
Provide timely and effective mental health services and supports that are sufficient in intensity and scope, are individualized to youth and family strengths and needs, and delivered consistently with the WISe Program Model as well as Medicaid law and regulations
Progress and Accomplishments:
Youth Strengths and Needs: The following story is about “Mary”, the pseudonym for a youth participating in WISe and developing her own personal strengths.
Mary started WISe in January 2015 at 17 years old. Mary self-referred to the program with prompting from her social worker. She was living in a crisis residential center. Mary was battling addiction, severe anxiety, PTSD, and depression. Before arriving at the crisis residential center, she had moved alone from the East Coast at age 14 to escape abuse and neglect from her biological family and moved in with her biological aunt. She lost placement with her aunt after an altercation that landed her in detention. After detention Mary was placed in local foster care at the crisis residential center and placed in a psychiatric hospital. After being released from the hospital, Mary ran away from the crisis residential center a few times. Amidst all her crisis, Mary was able to maintain a job, get herself to and from work, continue school, and was involved in a local church group. A few days after starting WISe, Mary enrolled in a local stabilization bed, returned back to the crisis residential center, and then was placed with a foster family.
Mary’s WISe team met with her school and supports to create a safety plan for her to remain safe in her community. WISe advocated for Mary to get treatment in her community when other services wanted impatient treatment outside of the community. Mary enrolled in intensive outpatient drug and alcohol treatment and began meeting her WISe therapist twice a week. Mary used WISe on-call services several times when first enrolled in the program. WISe staff would respond to Mary at her school when she was having panic attacks. The WISe team connected Mary to a local psychiatrist, and assisted her in obtaining medical and dental appointments to address health concerns. The team worked together to create the WISe Cross System Care Plan that addressed Mary’s need to know that she is stable in our community. As Mary and her WISe team continued to meet the intensity of her needs, the interventions decreased. Mary’s team went from meeting daily, to every two weeks, to monthly, and now every six weeks.
Today, Mary is 237 days clean and sober. Mary is working, caught up on her school credits, and looking forward to graduating this upcoming school year. Mary turned 18 and signed herself into extended foster care. The judge and everyone in the court room cheered and applauded Mary for her hard work and continued dedication. Mary
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has reconnected with her aunt and other natural supports. Mary is in the transition phase of WISe and will graduate the program within three to six months. Mary plans to reach out to apply for a youth partner position in the WISe program after high school graduation.
Named Plaintiffs’ are: As of November 2015, three of the ten named plaintiffs in services, either receiving WISe, “WISe-like” services, or in other outpatient mental health services, including intensive services, to meet their current level of care need. The other seven named plaintiffs have aged-out, opted-out, or moved out of state. Plaintiff Workgroups were identified in August 2014, with the first meetings held in September 2014, and on-going meetings are held to monitor progress. These workgroups will continue to meet on a quarterly basis and with more frequent communication, when indicated.
WISe Participants: From July 1, 2014, through June 30, 2015, (FY2015) a total of 925 youth received WISe services. (Note that this number may be slightly higher than previous estimates for the same time period due to additional data maturity.)
In terms of demographics, WISe clients were approximately 37% female, 61% male, and 3% had unknown gender (sums to greater than 100% due to rounding error). Unknown demographic data is due to data lag in linkage processes. Only four WISe clients were younger than age 5 (<1%). One-third of WISe clients were between ages 5 and 11 (33%), three-fifths (60%) were between ages 12 and 17, and the remainder were either between 18 and 20 (3%) or of unknown age (3%). Slightly more than half of WISe clients were non-Hispanic white (52%). The most common minority races/ethnicities (not mutually exclusive) were Hispanic (20%), American Indian/Alaska Native (15%), black (12%) and Asian/Pacific Islander (7%).

Gender Female Male Unknown
Age Group 0-4 5-11 12-17 18-20 Unknown

ALL YOUTH RECEIVING WISe SERVICES (FY 2015)

N

%

339

36.7%

561

60.7%

25

2.7%

4

0.4%

306

33.1%

558

60.3%

29

3.1%

28

3.1%

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Race/Ethnicity Non-Hispanic White Minority Unknown
Minority Category (not mutually exclusive / do not sum to 100%)
Hispanic Black American Indian / Alaska Native Asian / Pacific Islander
TOTAL POPULATION

482

52.1%

416

45.0%

27

2.9%

180

19.5%

115

12.4%

141

15.2%

60

6.5%

925

NOTE: Unknown demographic data due to data lag in linkage processes. SOURCE: RDA Integrated Client Database.
WISe Program Model: The 925 youth in WISe in FY 2015 received a total of 68,811 hours of outpatient care under the WISe program. On average, a youth enrolled in WISe in a given month received 14 hours of services during that month.
The table below presents statistics on the types of providers, service locations, and treatment modalities for WISe services. The most frequent provider types, by hours of service, were below master’s level (43%) and MA/PhD (38%). Approximately onesixth of all service hours (17%) were delivered by peer counselors. Service hours were most frequently delivered in the youth's home (40%) and mental health outpatient facilities (27%). Five percent of service hours were also delivered in schools, and a large number in service hours (27%) were delivered in settings other than those listed in the table below. This may reflect providers delivering services in natural community settings like parks, community centers, or other places that youth may spend time. The top five service modalities, by hours of WISe services are: individual treatment services (36%), peer support (17%), child and family team meeting (15%), family treatment (10%), and care coordination services (10%). An average of 14 WISe service hours per month were provided, which include a variety of treatment modalities as identified below.

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Program Totals Number of WISe Clients (unduplicated within FY) Number of Service Encounters Number of Service Hours Number of Service Months Number of Service Encounters per Month in Program Number of Service Hours per Month in Program
Service Provider Type WISe service hours provided by these provider types
Below Masters Level MA/PhD Peer Counselor Psychiatrist/MD Other Designated Mental Health Professional
Service Location WISe service hours provided in these settings
Home Other Mental Health Outpatient Facility School Emergency Room - Hospital Prison - Correctional Facility Residential Care Setting
Treatment Modality WISe service hours provided under these service modalities
Individual Treatment Services Peer Support Child and Family Team Meeting Family Treatment Care Coordination Services Crisis Services Group Treatment Services High Intensity Treatment Intake Evaluation Medication Management Rehabilitation Case Management Involuntary Treatment Investigation Interpreter Services

ALL WISe SERVICES (FY 2015)

N

%

925

---

70,133

---

68,811

---

4,940

---

14.2

---

13.9

---

29,656 26,069 11,602
998 453
33

43.1% 37.9% 16.9%
1.5% 0.7% 0.0%

27,215 18,707 18,485
3,297 663 224 220

39.6% 27.2% 26.9%
4.8% 1.0% 0.3% 0.3%

24,447 11,706 10,197
7,164 7,133 2,126 1,303 1,253 1,143
895 642 487 175

35.5% 17.0% 14.8% 10.4% 10.4%
3.1% 1.9% 1.8% 1.7% 1.3% 0.9% 0.7% 0.3%
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Therapeutic Psychoeducation Medication Monitoring Integrated Substance Abuse MH Screening Psychological Assessment Integrated Substance Abuse MH Assessment

104

0.2%

13

0.0%

10

0.0%

9

0.0%

4

0.0%

NOTE: WISe services include all mental health outpatient service encounters submitted to CIS with WISe "U8" modifier and other WISe-approved outpatient services received in a month with at least one "U8" service. SOURCE: RDA Integrated Client Database.
Transitions: In total, 12% of the 1,417 WISe screens conducted in FY 2015 resulted in a service recommendation of Behavior Rehabilitation Services (BRS) or Children’s Long Term Inpatient Program (CLIP). For nearly all of these screens, the person making the referral for WISe screening had originally recommended BRS or CLIP as the most appropriate service placement for the youth. Many of those youth whose screening resulted in a service recommendation of BRS or CLIP were likely already engaged in BRS or CLIP at the time of screening, and thus the screening represents a recommendation to continue in the current setting. The BHAS data system is currently undergoing modifications to more clearly track this.

The BHAS data does show, however, that some youth are successfully transitioning from BRS and CLIP into WISe services. Out of 32 screens conducted for youth who had been in CLIP within the 30 days prior to screening, 88% were screened into the WISe program. Out of 173 screens conducted for youth who had been in BRS within the 30 days prior to screening, 22% were screened into the WISe program.

WISe Initial Outcomes: From quarterly reports, data were gathered to provide initial outcomes for clinical improvements over time. The following chart shows change over time in behavioral and emotional needs for children who entered WISe and completed an initial CANS assessment in FY 2015, and subsequently completed a six-month CANS follow-up assessment (youth in WISe are assessed every 90 days).

The chart below reflects the changes experienced over the first six months of WISe treatment for the 147 children and youth ages 5-20 who had received an initial and follow-up CANS assessment. The top five behavioral and emotional needs, by proportion at intake/initial assessment, are shown. A decline at the time of the sixmonth reassessment represents improvement for these measures, i.e., a decrease in the proportion of children and youth with clinically significant treatment needs in these areas.

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Definitions of top five needs: • Emotional Control Problems: Youth’s inability to manage his/her emotions, lack of frustration tolerance. • Attention/Impulse Problems: Behavioral symptoms associated with hyperactivity and/or impulsiveness, e.g., a loss of control of behaviors, ADHD, and disorders of impulse control. • Mood Disturbance: Includes symptoms of depressed mood, hypermania, or mania. • Oppositional Behavior: Non-compliance with authority. (Different than conduct disorder, where emphasis is seriously breaking social rules, norms, and laws). • Anxiety: Symptoms of worry, dread, or panic attacks. • Other youth behavioral needs on CANS assessment that are not in the top five at intake (and not shown here): Psychosis; Conduct; Substance Abuse; Adjustment to Trauma.
The other youth behavioral needs on the full CANS assessment that are not in the top five at intake show either positive change or remain relatively steady between intake and six-month follow up. Specifically, we observed a decrease in problems over the first six months in WISe related to: Conduct, Adjustment to Trauma, and Psychosis. For Substance Abuse, numbers are relatively low at intake (fewer than 20% have actionable treatment needs), and remain relatively steady at six-month follow-up (small and likely statistically insignificant increase observed). These analyses are only for youth with a first full CANS assessment in FY 2015. DBHR will continue to monitor as the program grows and matures.
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Risk Factors, Clinical Improvement Over Time, is a chart that show the top five risk factors for children who entered WISe and completed an initial CANS assessment in FY 2015, and subsequently completed a six-month CANS follow-up assessment. The following chart reflects the changes experienced over the first six months of WISe treatment for 147 children and youth ages 5-20.
Definitions of top five risk factors: • Decision Making Problems: Youth’s difficulty anticipating the consequences of choices, and lack of use of developmentally appropriate judgment in decision making. • Danger to Others: Youth’s violent or aggressive behavior, the intention of which is to cause significant bodily harm to others. • Intended Misbehavior: Problematic social behaviors that a youth engages in to intentionally force adults to sanction him or her (e.g., getting in trouble, suspension/expulsion from school, loss of foster home). • Suicide Risk: Presence of thoughts or behaviors aimed at taking one’s life. • Non-Suicidal Self-Injury: Repetitive behavior that results in physical injury to the youth (e.g., cutting, head banging).
The following chart shows growth in child and youth strengths for children who entered WISe and completed an initial CANS assessment in FY 2015, and subsequently completed a six-month CANS follow-up assessment (youth in WISe are assessed every 90 days). The chart reflects the changes experienced over the first six months of WISe treatment for 147 children and youth ages 5-20. The five strengths that grew the most over the first six months in WISe services are shown.
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An increase at the time of the six-month reassessment represents improvement for these measures; i.e., an increase in the proportion of children and youth with noted strengths.
Definitions of top five strengths shown: • Resiliency: Ability of youth to recognize his or her own strengths and use them in times of need or to support his
or her own healthy development. • Educational System Strengths: School works with and/or advocates on behalf of the youth and family to identify
and address the youth’s educational needs, or the youth is performing adequately in school. • Vocational Strengths: Youth has vocational or pre-vocational skills; may or may not be currently working. • Resourcefulness: Youth’s ability to identify and use external/environmental strengths in managing their lives
and achieving a healthy lifestyle.
• Relationship Permanence: Youth has some or significant stability in relationships with family members and/or
other individuals. Other strengths on CANS assessment that are not in the top five in terms of growth over time (and not shown here): Family; Optimism, Spiritual/religious, Talents/interests, Recreation, Natural supports, Community connections, and Primary care physician relationship.
WISe Statewide Rollout: For the planned statewide phase-in of WISe services, DSHS developed an initial WISe rollout model. The model is currently being updated and is expected to be posted to the DBHR website in January 2016. The model needs to adjust for growth, needed capacity, and provider readiness with the end point being full statewide capacity by June 30, 2018. In addition, WISe implementation plans are
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being addressed in the detailed plan submission required for the new Behavioral Health Organization (BHOs). A list of current qualified WISe providers is available on the DBHR website and will be updated throughout the implementation process. Nineteen of Washington’s 39 counties, representing four million of the state’s seven million residents, are currently implementing WISe with a statewide monthly caseload capacity of 760 youth and their families receiving services each month.
As of November 2015, the counties currently offering WISe are shaded in the map below.

SAN JUAN

CLALLAM

ISLAND

JEFFERSON

KITSAP

GRAYS MASON HARBOR
THURSTON

WHATCOM SKAGIT SNOHOMISH KING PIERCE

OKANOGAN

CHELAN

DOUGLAS

KITTITAS

GRANT

FERRY

STEVENS PEND OREILLE

LINCOLN

SPOKANE

ADAMS

WHITMAN

PACIFIC WAHKIAKUM

LEWIS
COWLITZ SKAMANIA
CLARK

YAKIMA KLICKITAT

FRANKLIN

GARFIELD

BENTON

WALLA COLUMBIA WALLA

ASOTIN

The following information identifies which regions have implemented WISe and their progress towards the initial full capacity estimates for June 2018.
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WISe Progress to Full Implementation Target by Region as of September 2015

Regions September 2015

MID LEVEL

PROGRESS

HIGHEST MONTHLY MONTHLY SERVICE TO

CASELOAD

TARGET

TARGET

ALL REGIONS (by June 2018)

542

Chelan-Douglas

Chelan Douglas

0

2,985 50

18% 0%

Grays HarborCowlitz

Cowlitz Grays Harbor

18

Greater Columbia

Asotin

Benton

Columbia

Franklin

Garfield

132

Kittitas

Klickitat

Walla Walla Whitman

Yakima

133

14%

418

32%

King

King

0

North Sound

Island

San Juan

Skagit

91

Snohomish

Whatcom

Peninsula

Clallam

Jefferson

0

Kitsap

527

0%

460

20%

189

0%

Pierce

Pierce

114

Southwest

Clark Skamania

76

345

33%

201

38%

Spokane

Adams

Ferry

Grant

Lincoln Okanogan

11

Pend Oreille

Spokane

Stevens

Thurston-Mason

Mason Thurston

139

Timberlands

Lewis

Pacific

0

Wahkiakum

450

2%

142

98%

70

0%

NOTES: Table displays the highest monthly WISe caseload recorded as of September 2015, based on the number of children residing in each region receiving WISe services. Due to data lag, progress shown reflects highest WISe caseload as of May 2015. Note that the agency providing WISe services may not be located in the same region as the child’s residence. RDA’s Client Services Database (CSDB) obtains client addresses from multiple data systems across DSHS, and performs processes to standardize and geocode these addresses each quarter using industry standard software to maintain consistency and accuracy. Mid-level monthly service targets reflect mid-level estimates of WISe youth projected to be served each month at full implementation (please refer to the RDA document, “Addendum to ‘Initial Estimates of WISe Utilization at Full Implementation,’” dated February 26, 2015).

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Based on the table above, RSNs who started implementation in July 2014 range from 20% to 38% with one RSN at 98% of meeting its June 2018 WISe capacity goals. DBHR believes the first year was foundational for ongoing WISe implementation and views these efforts as a success.

During a TRIAGe meeting in December 2014, there was a discussion and an agreement among the parties not to bring on new RSNs during the first year of implementation. This consideration came directly from RSNs implementing WISe with the rationale to allow for more time to identify successes and address barriers related to implementation efforts.

By April 2016, all RSNs will begin WISe implementation in at least one county in their region. To stay on target to meet June 2018 goals, by June 2016, capacity needs to double statewide. DBHR recognizes this as a challenge during a year when RSNs will be transitioning to BHOs. DBHR will review submitted BHO Detailed Plans during November 2015. These plans require BHOs to address WISe capacity building and the plans also present an opportunity to identify technical assistance for new or on-going implementation efforts.

RSNs are concerned that the mid-level monthly capacity targets identified in the “Initial Estimates of WISe Utilization at Full Implementation” document produced by RDA are greater than the actual need for intensive mental health services for children and youth in their local areas. This concern is reportedly based on their local service data. As identified in the Implementation Plan, review of WISe capacity should happen annually and should direct adjustments as needed. DBHR has asked that RDA review capacity targets for any needed adjustments. This review is anticipated to be completed in late December 2015.

WISe Budget For the 2015-2017 biennium, the following chart describes the Department of Social and Health Services budget for intensive mental health services for high needs youth to continue implementing the commitments set forth in the T.R. Settlement Agreement.

WISe Budget State Federal Total WISe Budget (includes Salaries & Encounters)

FY2016 16,094,161 15,558,861 31,653,022

FY2017 24,069,838 23,456,889 47,526,727

WISe Case Rate Payment: In accord with the Settlement Agreement, WISe will be implemented incrementally with the intention that the delivery model be statewide in 2018. At implementation, DBHR established a reimbursement method for WISe providers. DBHR worked with Mercer, its actuary, to develop and implement actuarially sound rates, including a case rate for WISe. The case rate payment is in addition to capitation revenues paid through existing eligibility in one of the RSN
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rating groups. The rate was initially established through June 30, 2015. For FY 2015, the WISe case rate was established at $2,070.12 per WISe eligible person per month.
For FY 2016, Mercer evaluated the impact of trend inflation to project the WISe case rate. As the WISe program was effective July 1, 2014, actual encounter data was not available for use in updating the case rate. The WISe case rate for FY 2016 was calculated by applying an additional year of the 2.2% trend to the previously certified FY 2015 WISe case rate. The resulting FY 2016 WISe case rate is $2,115.67 per WISe eligible person per month.
Encounter data is monitored on a monthly basis by DBHR’s budget unit and reviewed by subject matter experts for quality and completeness. In 2016, Mercer will review more recent financial Revenue and Expenditure reports to determine whether a financial experience adjustment is warranted. However, with WISe still in the early stages of implementation, DBHR does not anticipate having adequate statewide encounter data to support WISe case rate development until 2017.
Objective 3 - Remaining Tasks: • Continue Quarterly Named Plaintiff Workgroups with Plaintiffs’ Counsel, DBHR staff, and the named plaintiffs’ home RSN staff. • Annually, review WISe Manual for updates. Next review to be completed by June 30, 2016. • Annually review with system partners, protocols related to: referral to WISe; participation in Child and Family Teams; and transitions out of WISe. Next review to be completed by December 31, 2016. • Continue to review implementation of CANS for care planning at Children’s Long Term Inpatient Placement (CLIP) facilities. • Continue to build sufficient provider capacity to meet the statewide need for WISe services by June 30, 2018. (See Section 2, Implementation Challenges, WISe Roll Out) • Review WISe capacity needs annually and make adjustments as needed. • Continue to monitor utilization of WISe services to assist with state rollout strategies. • Continue to work with RSNs to establish local training schedules and post training dates. • Continue to post on the DBHR website, a list of qualified WISe providers by county. • Continue to work with the actuary to establish a reimbursement method. • Continue to develop Decision Packages bi-annually. • Continue to modify ProviderOne, the Medicaid payment system. (See Section 2, Challenges, ProviderOne). • Continue to monitor capacity/utilization through fiscal reports and the new RSN bi-monthly monitoring reports (to start in January 2016). • Continue to update the QMP, when indicated, for the provision of improvement of WISe services and supports.
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Objective 4: Coordinating Delivery of WISe across Child-serving Agencies
Coordinate delivery of WISe services across child-serving agencies and providers
Progress and Accomplishments:
In April 2013, an initial financing plan that coordinates resources to strengthen interand intra-agency collaboration, sustain WISe, and improve long-term outcomes was adopted. Per the WISe Implementation Plan, this finance plan was to be reviewed for updates beginning in July 2015 and completed by December 2015. DBHR anticipates an updated finance plan produced by Mercer for Behavioral Health Organizations and service integration by the mentioned deadline. The on-going actuarial rate study for WISe will continue through 2018.
Cross-System Partner Activities: DBHR has worked closely with representatives from other administrations within the department and with representatives from Health Care Authority. Below are highlighted WISe related activities as reported from our state system partners.
Juvenile Rehabilitation (JR) reports the following:
• JR Mental Health Program Administrator and Executive Leadership designees have been working with HCA and have developed a Memorandum of Understanding (MOU) to allow Health Care Authority (HCA) staff, in collaboration with JR youth and JR residential counselors, to apply for Medicaid benefits for the eligible youth 30 days prior to release from JR incarceration. When the obstacles of funding, administrative precedence, and authorization are surmounted, the approved MOU will grant permission to the youth and staff and/or HCA designee to obtain Medicaid coverage for the youth while still incarcerated. This would allow WISe Child Family Team (CFT) Coordinators and Reentry Team Meeting (RTM) Coordinators to work together to begin WISe service planning.
• JR Mental Health Program Administrator, Institution, and Regional Mental Health Coordinators are developing a statewide WISe (JR) youth eligible (identifier) checklist and WISe serving agency/RSN/BHO referral document.
• The WISe criteria identifier-checklist automation in JR’s Automated Client Tracking (ACT) system is in development. The module will allow essential JR staff to generate WISe eligible youth roster report lists that can be distributed to residential program staff to begin the RTM and CFT coordination to operationalize WISe service implementation in JR.
• As a System Partner, JR has worked closely with Behavioral Health and System Integration Administration (BHSIA)/ DBHR, Children’s Administration (CA), Developmental Disabilities Administration (DDA), the Department of Health (DOH), and the Office of the Superintendent for Public Instruction (OSPI), the
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HCA, as well as RSNs, family and youth, and community providers to build System of Care (SOC) Expansion focused state and regional governance structure called Family Youth System Partner Round Tables (FYSPRTs). The regional and statewide FYSPRTs were developed as a key component for ensuring behavioral health and other public child, youth, and family serving systems in Washington State are coordinated and informed by input from multiple stakeholders, especially youth and families.
Children’s Administration reports the following WISe highlights: • Mental Health: In-Depth Applications for Child Welfare training was enhanced to include a WISe module. From December 2014 through September 2015, trainings were offered at Centralia, Lynnwood, Spokane, and Seattle. An average around 15 people (new and ongoing social workers, foster parents, Court Appointed Special Advocates, and local service providers) attended each training; more than 60 total attended the trainings. • CA also enhanced the training required for all new social workers, Regional Core Training (RCT), to include information regarding the WISe. During the same period, December 2014 through September 2015, RCT was offered at Centralia, Everett, Lynnwood, Seattle, West Seattle, Smokey Point, Spokane, Tacoma, Toppenish, Tumwater, and Centralia, with a minimum of 180 new social workers participating. • In May 2015, Passion to Action, a statewide, youth-led advisory board to CA, was consulted and helped develop a WISe information sheet for youth and youth organizations that was published on DSHS WISe Implementation website in August 2015. • Children’s Administration, in conjunction with DBHR, finalized a WISe information sheet specifically for CA Social Service Specialists in August 2015. The information sheet has been published on DSHS WISe implementation web site. This information sheet will be distributed to all CA offices progressively, targeting the offices in the counties where WISe has already implemented or is being implemented. • In July 2015, the BRS contract handbook was updated to include the detailed information for managing WISe screens, which is required every six months and upon discharge. • In September 2015, CA provided communication via email to BRS contractors and Regional CA staff regarding the WISe informational sheet and WISe referral contact list. • CA continues to support and actively participate in activities related to WISe program coordination, communication, implementation planning, and dissemination. These meetings and trainings including but are not limited to, statewide FYSPRT meeting, WISe Manual Advisory Group meeting, Children’s Behavioral Health Data and Quality Team meeting, TRIAGe meeting, WISe Advisory Work Group meeting, WISe Communication meeting, System of Care Leadership meeting, TCOM/CANS training, and WISe Community Training.
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Developmental Disabilities Administration (DDA) representatives participate on the statewide FYSPRT. DDA has also expressed an interest in collaborating on an advanced training on wraparound with DBHR.
Health Care Authority (HCA) reports the following WISe highlights: • HCA continues to be involved in supporting WISe implementation. • HCA participates actively in the FYSPRTs. • HCA is working closely with DHBR regarding contract language for its Managed Care Organizations (MCOs). • HCA is working to align WISe and the MCOs – and has been instrumental in collaborating with our plans. • HCA continues to participate in system of care and encourages contracted providers to use EBPs when appropriate. • HCA continues to communicate with our providers to educate about WISe services.
RSN staff and their contracted WISe agency staff have been essential system partners during the first year of implementation. The RSN contributions in early implementation, and sharing lessons learned has been essential to our early successes.
Children’s Behavioral Health Principles: From June 2014 through November 2014, an External Quality Review Organization (EQRO) was contracted to review RSNs for the implementation of the Children’s Behavioral Health Principles.
Key components of the principles are included in Wraparound with Intensive Services (WISe), the Child and Adolescent Needs and Strengths (CANS) assessment, and the Child and Family Team (CFT) meeting. A copy of the principles can be found on the DBHR website at: https://www.dshs.wa.gov/sites/default/files/BHSIA/dbh/Mental %20Health/WA%20State%20Children%27s%20BH%20Principles.pdf
For RSNs who were early implementers of WISe, a review of clinical records for Cross System Care Plans and required elements of CFT meetings was conducted. The review covered cases for which the RSN submitted service codes for CFT services, High Intensity Treatment services, and Wraparound services. The report was completed and submitted to DBHR in December 2014.
Challenges identified in the 2014 EQRO Report focused on three areas: Implementation of WISe and Grievance systems, specifically:
• Many RSNs said they found it difficult to retool their mental health delivery systems in an environment of constant change with regard to the WISe Manual and turnover of State staff in the children’s program.
• RSNs found it difficult to maintain and recruit adequate numbers of qualified staff to meet the contractual timelines for both intakes and follow-up appointments.
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• Most RSNs expressed concern that youth in Behavior Rehabilitative Services must receive a CANS screening by the RSN, even though those children are not eligible to receive WISe services.
• All RSNs expressed concern that the direct service staff of community partners (e.g., DSHS, juvenile justice, schools) knew little about the Children’s Behavioral Health Principles and WISe. Most RSNs said it will take time to change the local culture of using out-of-home placement for youth with serious emotional disturbances.
• Clinical chart reviews showed that many of the cross-system care plans did not specify objective and measurable treatment service goals and the supports designed to achieve these service goals. The cross-system care plans consistently lacked an evaluation of progress and a statement of the family/youth needs and goals in the youth’s and family’s own voice. Crisis plans were present in only 54% of the CFT cross-system care plans.
• The EQRO found that tracking and monitoring of grievances vary among RSNs.
In response to the issues identified in the 2014 EQRO Report, the following steps were taken:
• Quarterly updates to the WISe Manual were required under the Implementation Plan during first year of implementation with annual updates starting in July 2015. During the first year of WISe implementation, DBHR incorporated RSN feedback in the WISe Manual. Through review by the WISe Manual Advisory Workgroup, the WISe Manual was further clarified to meet practice realities without altering the requirement to provide services based on Children’s Behavioral Health principles.
• Development of a Workforce Collaborative to provide ongoing training and assist with developing a five-year strategic plan to include strategies to address workforce development.
• DBHR shared with RSNs that the Settlement Agreement requires that youth referred to BRS receive a WISe screen.
• RSNs are to develop and implement policies and procedures specific to the WISe program and articulated in the detailed plans required for conversion to Behavioral Health Organizations (BHOs), due October 31, 2015.
• WISe information sheets are being distributed to system partners, and family, youth organizations. Communication dissemination and training is on-going.
• DBHR engaged RSNs directly to identify strategies to strengthen participation by system partners (as well as family and youth) in implementing the WISe program.
• DBHR reiterated to RSNs the need for on-going training with provider agencies to create and document cross-system care plans that address all required elements, as well as all required elements of CFT meetings, including all team members.
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• DBHR has added language to RSN contracts requiring them to incorporate the results of Grievances, Appeals, and Fair Hearings into their Quality Management Plans and to address any trends in a QI Plan.
• Reporting requirements have been clarified and will be monitored on a quarterly basis. Reporting of client-level information for Notices of Action has been implemented for those in the WISe program. This is a pilot and lessons learned will be incorporated into specific reporting requirements for BHOs
In addition, DBHR began approving the children’s Performance Improvement Plans (PIPs) in 2014 and has made many changes to the process to make these more meaningful including requiring that:
• All PIPs are justified on the basis of clearly identified needs and are relevant to the Medicaid population, includes enrollee input into prioritization and selection of the topic, and focuses on a high-volume or high-risk population.
• RSNs develop PIPs with the intention of completing the second re-measurement within three to four years and then choosing a different topic; DBHR approves all PIP topics prior to RSN implementation.
• RSNs to demonstrate that their PIP interventions address barriers identified by means of a thorough root cause analysis or other recognized quality improvement process.
In 2016, the EQRO Children’s Focus will be on Quality Service Reviews (QSRs). A Chapin Hall consultant and DBHR staff reviewed existing QSR protocols for effectiveness and utility, incorporating elements which meet the needs of children and youth, state and federal audit and quality requirements, and the Settlement Agreement. A draft QSR Protocol was developed in August, reviewed with the DBHR Children’s Behavioral Health Unit, RSN Quality Leads and Children’s Care Coordinators, statewide FYSPRT, Children’s Behavioral Health Data, and Quality Team. Suggested modifications were made and pilot tested at one agency in October. The QSR is currently being modified based on the results of the pilot testing. Training on its use and use at three providers will occur in 2016. The QSR will help us identify the essential requirements to implement WISe successfully and lead to improved outcomes for children and youth.
The QSR will also assist with reviewing cross-system coordination in several ways. First, with a review of CANS items, a rating is made of functional and treatment needs. This indicates formal and informal linkages and supports, and whether a net gain in supports has occurred. Improvements or gaps in certain areas, such as educational systems, religious participation, and community connection, are identified. Second, an assessment of goal-related stakeholder participation across Child Family Team meetings is made to determine whether system partners are participating in meetings. Third, updates in the crisis plan will be reviewed to see if input from cross-system providers and natural supports are included. Fourth,
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completed transition plans will be assessed to identify how input from cross-system partners and natural supports was incorporated.
Objective 4 - Remaining Tasks:
• Review the initial finance plan and work towards completion by December 2015. • By July 2016, review and reestablish of the Memorandum of Understanding
between DSHS and HCA regarding collaboration and coordination, cross system participation on Child and Family Teams, and the use of a single plan of care to direct services. • In partnership with the Washington State University Workforce Collaborative, DBHR will continue to refine training curricula for RSNs, providers, systems partners, and community organizations that participate on Child and Family Teams. These materials will be reviewed annually beginning in December 2015. • Continue to promote Washington State Children’s Behavioral Health Principles in service delivery and policy development through the governance structure. • DBHR and CA to continue to review BRS and WISe materials annually. • Conduct the QSR for low, middle, and high performing providers. • Continue to review the QMP process for improvement, including the effectiveness of transitions from out-of-home placements. The next QMP annual report is due on December 19, 2015, and is on target to meet the deadline.
Objective 5: Workforce Development and Infrastructure
Support workforce development and infrastructure necessary for education, training, coaching, supervision, and mentoring of providers, youth and families.
Progress and accomplishments:
WISe trainings: From March 1, 2014, through September 30, 2015, a total of 27 WISe training sessions were offered statewide by the DBHR contracted WISe training team. These training opportunities included four-day, in-person trainings, webinars, and community meetings, with a total of 768 participants. Participants included prospective direct WISe service providers such as care coordinators; family partners; youth partners; therapists; and RSN Administrators, Clinical Directors, and Supervisors, as well as, child serving system partners and community partners. In June 2015, DBHR provided a four-day WISe training to Tribal Behavioral Health agencies hosted by Yakama Nation Behavioral Health in Toppenish, Washington.
DBHR worked closely with Rehabilitation Administration (RA), Juvenile Rehabilitation (JR) to inform JR staff on the WISe program model. The following trainings were offered to JR staff:
• June 23, 2015: two-hour WISe Webinar for all JR staff; 53 attendees. The WISe webinar was made available to all JR staff via a link on the JR home (web) page; 950 potential JR staff viewers.
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• June 24, 2015: five-hour WISe In-Person Regional Training for Western Washington JR staff; 49 attendees.
• June 26, 2015: five-hour WISe In-Person Regional Training for Eastern Washington JR staff; 40 attendees.
The WISe webinar and in-person training participants included Mental Health Coordinators, Community Mental Health Coordinators, Mental Health Unit Supervisors and Program Managers, Residential Counselors/Case Managers, Psychiatrists, Psychologists, Juvenile Parole Program Managers, Residential Treatment Coordinators, and Community Counselors.
Childrens’ Administration (CA) enhanced an existing mental health training to include a module on the WISe access model. The training is provided through the Alliance for Child Welfare Excellence and is offered six times during a fiscal year in an in-service format. Participants in these trainings are new and ongoing social workers, foster parents, Court Appointed Special Advocates (CASAs), attorneys, and local service providers. From December 2014 through September 2015, trainings were offered at Centralia, Lynnwood, Spokane, and Seattle. CA also enhanced the training required for all new social workers, Regional Core Training (RCT), to include information regarding the WISe. During the same period, December 2014 through September 2015, RCT was offered at Centralia, Everett, Lynnwood, Seattle, West Seattle, Smokey Point, Spokane, Tacoma, Toppenish, Tumwater, and Centralia, with a minimum of 180 new social workers participating.
In addition to WISe trainings, during this last year WISe presentations were offered at the Behavioral Health Conference in Vancouver, the System of Care Institute in Everett, the Student Support Conference in Wenatchee, the National Alliance of Mentally Ill Conference, in Vancouver, and the Washington Association of School Social Workers in Federal Way.
WISe Training Evaluation: In order to evaluate the quality and impact of trainings for the WISe initiative, the University of Washington Wraparound Evaluation and Research Team administered the Impact of Training and Technical Assistance (IOTTA) survey to all training attendees since the first trainings were held in early 2014.
The IOTTA is collected twice. First, a baseline administration is completed in person at the end of a training event. The baseline survey focuses on trainee perceptions of quality, organization, trainer competence, and the importance of the training subject matter. The survey also asks the trainee to rate his or her perceived mastery over the material before the training as well as after.
Then, two months later, a follow-up version of the survey is emailed to participants to complete online. The online survey asks respondents similar questions to the baseline survey: about their perceived mastery over the material presented in the training, their
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perception of the quality of the training, and the impact of the training on their work in the two months since the training occurred.
To date, IOTTA data have been collected from trainees who attended 16 WISe trainings in Washington State from the period of March 2014 to July 2015. In 2014, ten four-day, in-person trainings were held and 227 trainees completed baseline surveys at the end of the trainings. In 2015, six four-day, in-person trainings were held, with 106 trainees completing baseline IOTTA surveys. The follow-up response rates in 2014 was 69% (156/227 across ten trainings) and in 2015, to date has been 47% (43/92 respondents across five trainings). The 6th training of 2015 was conducted in late July, too recently for follow-up surveys to have been completed and analyzed for this report.
Outcome highlights from the IOTTA results included: • On average, throughout the 2014 trainings, existing mastery (prior to the training) was rated at a mean score of 4.30 and post-training mastery was rated at a mean of 6.92 (national mean = 7.08); the average mastery change within trainings was 2.62 (national mean = 1.95). • For the six trainings in 2015, the mean score for existing mastery was 2.67 with the post-training mastery mean of 6.09. The mastery change within trainings was 3.42 (national mean = 1.95); an increase from the 2014 scores.

Fully Expert

Change in Mastery for WISe Trainees (0-10 Scale)
10

9

8

7.35

6.92 7

6

7.31 6.09

7.36 6.61

Intermediate

5 4.30

4

3.69

3

2.67

2

Complete

1

Beginner

0

Existing Mastery Post-Training Mastery Current Mastery

2014 Overall (n=227) 4.30 6.92 7.35

2015 Overall (n=106) 2.67 6.09 7.31

Total Overall (n=333) 3.69 6.61 7.36

7.08 6.94 5.13
National Mean (n=3242) 5.13 7.08 6.94

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The above results suggest that, despite lower baseline mastery, the Washington WISe trainings are promoting greater improvement in self-reported mastery of the subject matter than national trainings, to the extent that post-training ratings are similar to post-training ratings for the national comparison sample.
From the IOTTA, direct feedback from trainees about the WISe trainings strengths, needs for improvement, and recommendations included:
• Strengths (n=762 comments) o Learned new information that was taught in different training styles and was detailed, helpful, and applicable. (n=173) o Presenters were enthusiastic, passionate, knowledgeable, and maintained interest with humor and self-disclosure. (n=170) o The group components helped clarify and solidify concepts, while allowing for further discussion of ideas. (n=128) o Information was thorough and presented in an organized, interesting way with a variety of visual aids and handouts. (n=124) o The training was engaging with a variety of videos, hands-on activities, and role plays that promoted audience participation. (n=107) o There was a good background and review of main topics (e.g., Wraparound, Systems of Care, the overall WISe process, etc.). (n=36) o Appreciated the application of techniques and input from family and youth (e.g., understanding the CANS and how to rate it, etc.). (n=24)
• Need for Improvement (n=256 comments) o More specific information and techniques (e.g., more on Intensive Services, a better distinction of roles, and WISe practice models). (n=55) o More practical examples, activities, and scenarios of case examples that would be applicable for trainees. (n=52) o Better attention to time-keeping and atmosphere, suggest allowing for fewer audience questions, activities, off-topic discussions, inappropriate comments, biases, and personal side stories. (n=43) o The training was too long, too fast, and too much information all at once – try to add more breaks in between sections or have shorter but more training days. (n=42) o Better organization, as well as structure of the presentation (e.g., need clearer or written instructions for group activity, less slide reading, and more clarity on handouts). (n=35) o Trainees have different backgrounds, so some information tended to be repetitive, confusing, or hard to understand. (n=21)
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o The role of the therapist seemed to be minimized and was not really represented or explained. (n=8)
• Recommendations (n=182 comments) o Shorten the training, have less group work and activities, have more notice of the schedule ahead of time, follow-up with teams, and offer more breaks and snacks between sections. (n=44) o Provide more specific information and case examples to learn from concepts (e.g., completing a plan of care, crisis plan, etc.) and provide completed examples for trainee reference. (n=40) o More applicable and interactive activities and movement to keep it engaging (such as a role plays) as well as post-discussion to supplement learning. (n=32) o Provide a more thorough definition of roles (e.g., therapist, peer support partner, etc.) as well as more information on Intensive Services. (n=26) o Limit the overview of CANS and phases/principles, but perhaps provide a sample CANS to better demonstrate application of use. (n=18) o Try to assess the background knowledge of audience and tailor training in that respect, as well as fully listen to trainees’ questions before responding. (n=8) o More diversity of youth voice, maybe have a youth co-presentor or add information to the training. (n=5)
Overall, in terms of training-specific issues, data suggest that certain improvements could be made in the trainings’ ability to:
• Facilitate understanding of expectations and skills of all WISe roles (not just facilitators).
• Include more specific information on WISe. • Provide more WISe examples and less generic information around wraparound
and system of care. • Provide better understanding of what is meant by “Intensive Services” and how
these integrate with wraparound facilitation. • Promote greater understanding of how to use CANS in a WISe context, and less
general information on the CANS.
On-going training improvements will be addressed through the Tri-Lead Workforce Collaborative, the WISe training team, and additional workgroups as needed.
Workforce Collaborative: DBHR staff and members of the statewide FYSPRT worked with Washington State University (WSU) to design an organizationally independent
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WISe Workforce Collaborative. A contract between DBHR and WSU establishes the staffing infrastructure for the Workforce Collaborative. The collaborative operates independently and is tri-led by youth and family, state systems, and partner universities. This tri-led model was originally supported by Washington’s System of Care Grant in 2013. Building a strong workforce is an essential component of an effective system of care.
The immediate purpose of the Workforce Collaborative is to develop sustainable local and statewide education, training, coaching, mentoring and technical assistance to support agencies in providing WISe with consistency across the state. The long-term goal is that the collaborative, in partnership, will provide comprehensive professional development services and supports to behavioral health providers and other stakeholders to build a highly-skilled workforce and support system-wide implementation of evidence and research-based practices to meet the behavioral health needs of youth, families, and adults in Washington.
As of October 1, 2015, the collaborative is responsible for coordination of WISe training efforts and will work directly with RSNs to establish training plans that meet the needs of their unique regions. The training plan will be updated every six months by and through the Workforce Collaborative.
The Workforce Collaborative will also be responsible for assessing ongoing training needs, completing a framework for statewide WISe trainings, and for completing a strategic plan. A group of stakeholders including RSNs, system partners, youth, and families met on September 21, 2015, and began the strategic planning process. The strategic plan will be adaptable to meet the needs of local implementation as more RSNs roll out WISe and current sites increase capacity. The plan will also address increasing training capacity for youth peers, family peers, and system partners. It will offer the following trainings: WISe half-day community orientation, WISe trainings, WISe clinical supervisor trainings. DBHR will also coordinate the state-certified Family and Youth Peer Counseling Training through the Workforce Collaborative as well as other training initiatives for youth, families, and system partners.
Objective 5 - Remaining Tasks:
• Continue to support a WISe Workforce Collaborative. • Continue to refine training curriculum with WISe training partners. As of
October 2015, the Workforce Collaborative will oversee and convene workgroups to address this on-going work. • Continue to work with RSNs and system partners to develop training plans. As of October 2015, the Workforce Collaborative will coordinate trainings. • Continue to evaluate training curriculum. As of October 2015, Workforce Collaborative will oversee contracting for training evaluation. • WISe e-learning modules are being developed for ongoing training; six training modules are scheduled to be completed by December 2015.
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• Continue to work collaboratively with system partners to develop a “Train the Trainer” model with the goal that all trainings are provided by WISe providers by 2018. The development of the training model is behind schedule based on the Implementation Plan deadline of June 2015. Anticipated completion date is March 2016.
• On-going collaboration with system partners to include WISe modules in their trainings, manuals, and other workforce development efforts.
• Workforce Collaborative to develop a five-year strategic plan with youth, family, and system partners.
• Workforce development will be an on-going agenda item at FYSPRT meetings.
Objective 6: Maintaining Collaborative Governance Structure
Maintain a collaborative governance structure to achieve the goals of the Settlement Agreement.
Progress and accomplishments:
The Governance Structure consists of inter-agency members on an Executive Leadership Team of state administrators, the statewide, regional, and local Family, Youth, System Partner Round Tables (FYSPRTs), an advisory team, and various policy workgroups who inform and provide oversight for high-level, policy-making program planning and decision making in the design, development, and oversight of behavioral health care services and for the implementation of the T.R. v. Quigley and Teeter Settlement Agreement.
FYSPRTs were developed under the Department of Social and Health Services’ (DSHS) Washington State System of Care (SOC) Expansion Project as a key component for ensuring behavioral health and other public child, youth, and family-serving systems in Washington are coordinated and informed by input from multiple stakeholders.
FYSPRTs are designed to influence the functioning of local and state child-serving systems, and to promote proactive changes that will improve access to, and the quality of, services for families and youth with complex behavioral health challenges, and the outcomes they experience. FYSPRTs are grounded in the Children’s Behavioral Health Principles and provide a forum for local information exchange and problem solving, as well as an opportunity for identifying and addressing barriers to providing comprehensive behavioral health services and supports to children and youth.
Plaintiffs’ Counsel stress that the following activities are essential for FYSPRTs to play their intended role within the Governance Structure: 1) Robust stakeholder engagement, recruitment, and community-building efforts; 2) Family and youth-driven leadership development; 3) The ability to identify – and act on - issues of local and regional concern; 4) Transparent and action-oriented communications; 5) Continuous quality improvement and accountability, and 6) Sufficient resources.
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To assist with ensuring that all members of the statewide FYSPRT are engaged as full partners within the work of the FYSPRT and are included in all aspects of the development, implementation, and evaluation of WISe, DBHR developed an evaluation tool. FYSPRT evaluation tools are available on the DBHR website at:
https://www.dshs.wa.gov/bhsia/division-behavioral-health-andrecovery/family-youth-and-system-partner-round-tables-fysprts
In addition to evaluation tool, DBHR collects quarterly reports from regional FYSPRTs, as required under the SOC grant. In the most recent SOC quarterly report, the following comment was noted from a regional FYSPRT Tri-Lead: “As noted by the clinical staff working with the WISe families, the WISe process is quickly changing families’ perception of their inherent skills and resources such that they are avoiding crisis and should crisis occur, it is being resolved much more quickly and without accessing extreme resources such as in-patient care.”
DBHR is aligning the regional FYSPRTs with the soon to be operational Behavioral Health Organizations (BHOs)/Regional Service Areas (RSA). Laws of 2014, ch. 225, (2SSB 6312) directs DSHS to integrate chemical dependency and mental health purchasing primarily with managed care contracts by April 1, 2016. To match the developing BHO/RSA regions, the number of regional FYSPRTs needs to increase from six to ten.
In late 2014 through early 2015, multiple stakeholder meetings and focus groups with youth and family leaders in the state were conducted by the University of Washington (UW) to gather information to inform the alignment and transition to ten regional FYSPRTs.
Listed below are a few examples of the stakeholder meetings:
• November 20, 2014 – Children’s Mental Health Committee meeting with RSN Children’s Care Coordinators, family leaders, and DBHR representatives. The UW team led an activity around the alignment of the FYSPRTs and the BHOs.
• November 25, 2014 – Statewide FYSPRT meeting with system partners and FYSPRT Tri Leads. The UW team led an activity around the alignment of the FYSPRTs and the BHOs.
• January 2015 – University of Washington staff sent out a survey titled the “Washington Governance Structure Survey” to 201 stakeholders and received 111 responses.
• January 27, 2015 - University of Washington staff presented to the atatewide FYSPRT members information gathered from the 1) statewide FYSPRT meeting evaluations, 2) Tri Lead focus groups, 3) group decision processes with the Children’s Mental Health Committee and statewide FYSPRT, 4) Youth N Action
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BHO Alignment meetings, and 5) the 111 responses received from the Washington Governance Structure Survey. • February 24, 2015 and March 12, 2015 - DBHR provided updates to the T.R. Implementation Advisory Group (TRIAGe) regarding the FYSPRT review process.
In late May/early June, DBHR shared with statewide FYSPRT members, RSN Administrators, and TRIAGe that to assist with the BHO alignment, future regional FYSPRT contracts would be held with RSNs/BHOs starting October 2015. Additionally, on June 4, 2015, Ellen Kagen, Senior Policy Associate of the Georgetown University Center for Child and Human Development, facilitated a daylong meeting with family leaders, youth leaders, system partners and RSN Children’s Care Coordinators titled “Planning for Meaningful Youth and Family Participation in Policy, Management, and Services in the Context of WISe”. During this meeting, Ms. Kagen also provided a Participant Resource Guide with activities and exercises to facilitate family, youth, and system partner leaders to come together in their region and continue building a plan for collaboration.
DBHR, through the System of Care grant funding, contracted with UW Evidence-Based Practice Institute to include coordination and collaboration with youth, families, and system partners to gather feedback and compile a FYSPRT manual. The manual will assist with structure of the regional FYSPRTs.
FY 2015 contract requirements for regional FYPSRTs include, but are not limited to:
• Development and execution of a written outreach strategy to engage youth, family, and system partners in the planning process, including current/former members.
• Planning meetings with existing regional FYSPRT contractors, current FYSPRT participants, and other interested stakeholders.
• Develop a process for application to provide travel, and other meeting support (e.g., mileage/public transit reimbursement, onsite child care), to FYSPRT members wanting to attend FYSPRT related meetings and activities.
• Conduct a needs assessment, using the region’s tool/method of choice to assist in the planning and development of regional and local FYSPRTs.
• Convene regular regional FYSPRT meetings at a minimum of once per month, starting on or before January 2016. o Meeting materials must be made publicly available prior to the meetings. o Meetings must follow the regional FYSPRT meeting protocol, set forth in the FYSPRT Manual.
• Submit a written report on the results of the needs assessment, including but not limited to: o Local/regional strengths and barriers with regard to the development and sustainability of the regional FYSPRT.
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o Recommendations regarding the development and operation of the regional FYSPRT.
Objective 6 - Remaining Tasks:
• In January 2016, DBHR to review and approve RSN reports summarizing the regional FYPSRT progress on contract requirements through December 2015, including the identification of barriers on FYSPRT Implementation, and plans regarding next steps.
• In April 2016, DBHR to review and approve RSN reports summarizing the regional FYPSRT progress on contract requirements through March 2016, including an updated membership roster and the results of the needs assessment and the strategic plan framework.
• In April 2016, DBHR to review RSN submitted sign-in sheets (with role/organization represented) and meeting minutes from each FYSPRT regional meeting.
• Maintain similar regional FYSPRT contract language in BHO contracts starting in April 2016.
• By July 2016, review and reestablish the Memorandum of Understanding between DSHS and HCA to address coordination, training, and quality assurance.
• Continue to bring issues identified through the regional and statewide FYSPRT to the Executive Leadership Team.
• Continue to review the protocols and procedures in the WISe Manual for Community Collaborative/s to oversee implementation of local WISe programs.
The intent of this objective is to further establish meaningful partnerships between family, youth, and system partners throughout the state at every level of the childserving system. Through the identified strategies, providers will have the opportunity to work together cooperatively and collaboratively to build a delivery system with effective services and supports for their youth and their families.
Objective 7: Affording Due Process to Class Members
Afford due process to class members by adopting legally appropriate, federally compliant due process rules and policies; modification of the Washington Administrative Code (WAC) that addresses Medicaid due process requirements for Medicaid enrollees; inform class members of their rights to due process; and monitor compliance with due process requirement and address noncompliance.
Objective 7 Strategies - Progress and Accomplishments:
In the November 2014 annual report, DSHS reported that it had previously adopted contractual provisions related to the grievance system, informed class members of their due process rights through the Medicaid Mental Health Benefits Booklet, developed a model “Notice of Action” for use by RSNs, and published a section in the
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WISe Manual that includes a Client Rights section on the right to appeal denials, reductions, or terminations of services.
In regard to due process protections, the major milestone accomplished this year was adoption of new grievance and appeals rules. These rules, which apply to all individuals who apply for, are eligible for, or receive RSN-authorized mental health services, are found at WAC 388-877A-400 to 460. The rules became effective on July 26, 2015. This is a key element of Objective 7 that satisfies the requirements of the Settlement Agreement, Sections 35 and 68(b). The rules generally describe how individuals can express concerns through the various levels of the grievance system, provide definitions, describe the grievance process, the right to receive a notice of action from the RSN, how to appeal that notice of action, the right to continued benefits, and the right to an administrative hearing. Finally, the rules describe rights that are specific to Medicaid recipients, which include all WISe enrollees.
The rules at WAC 388-877A-400 to 460 were drafted to be compliant with federal Centers for Medicare and Medicaid Services (CMS) rules governing Medicaid managed care, grievances and appeals. 42 CFR 438, Subpart F (Sections 438.400 to .424), which took effect in 2002.
Two changes will affect the substance of the new due process rules in Ch. 388-877A and require that the rules be amended in the coming year. First, on June 1, 2015, CMS published a notice of rulemaking proposing extensive amendments to 42 CFR Part 438. 80 FR 31098 (June 1, 2015). These proposed amendments include some significant changes to Part 438, Subpart F, which will in turn drive changes to the new DSHS regulations. The comment period closed on July 27, 2015. It is unknown when CMS will adopt its final rules. CMS has proposed that the term “action” be replaced with “adverse benefit determination.” The proposed rule also aligns the Medicaid and CHIP managed care appeals process with Medicare Advantage and private plans, proposes some changes to definitions and timeframes for the resolution of appeals, streamlines levels of internal appeals, and requires that enrollees rely first on the managed care plan’s internal process before proceeding to a state fair hearing.
Second, under Laws of 2014, ch. 225 (2SSB 6312), Regional Support Networks become “Behavioral Health Organizations” (BH0s) effective April 1, 2016. This state law change furthers efforts to integrate mental health services and chemical dependency services, and is primarily codified in ch. 71.24 RCW. Implementing this legislative mandate to integrate behavioral health into one system of care will require DSHS to amend many of its regulations, including the new due process provisions in WAC 388-877A-400 to 460 to reflect adoption of BHOs as the new managed care entity and reflect a service array that encompasses both mental health and chemical dependency.
In addition to the rule-making, DSHS has worked with WISe stakeholders to further develop the Client Rights (Section 5) of the WISe Manual.
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DSHS continues to monitor compliance with due process requirements and address noncompliance by requiring RSN/BHO policies to be consistent with due process regulations and policies. It also requires, in contract, that RSNs collect and report data on actions, grievances, and appeals. Reports are analyzed and used by the RSN contract compliance staff members and provide input to audit activity by DBHR staff and EQRO external auditors.
DSHS is analyzing and using grievance and appeal data as part of the WISe quality improvement program. Data being collected by DBHR contract compliance staff is currently being analyzed on a regular basis for adherence to contract requirements. Use of WISe specific data regarding due process rights is in the beginning phases of inclusion into the WISe quality improvement program.
DSHS will work in the coming year to develop a comprehensive oversight plan for compliance with WISe enrollee right requirements. This plan will link with DBHR contract compliance staff, EQRO review staff, Children and Youth Behavioral Health team staff, and DBHR WAC rule development and monitoring staff.
The expected results of this objective are to ensure Medicaid beneficiaries (including class members) are aware of their due process rights; that RSNs and providers are complying with the Medicaid due process rights; and beneficiaries have access to and can exercise their notice, grievance and appeal rights.
Objective 7 - Remaining Tasks:
• Amend the new due process provisions in WAC 388-877A-400 to 460 to reflect adoption of BHOs.
• If necessary, once federal regulations are adopted, amend due process provisions to be compliant with federal Centers for Medicare and Medicaid Services (CMS) rules governing Medicaid managed care, grievances and appeals.
• Develop a model notice of action for RSNs. Require RSNs to use the model notice, or complete a checklist and attestation that their notice has all the same elements as the model notice.
• Continue to monitor RSN reports on grievances and appeals related to WISe. • Continue to monitor RSN compliance with due process requirements related to
WISe through EQRO and compliance reviews and data analysis. • Analyze and use the data as part of the WISe quality improvement program. Use
of WISe specific data regarding due process rights is in the beginning phases of inclusion into the WISe quality improvement program.
The expected results of this objective are to ensure Medicaid beneficiaries (including class members) are aware of their due process rights; that RSNs and providers are complying with the Medicaid due process rights; beneficiaries have access to and can exercise their notice, grievance and appeal rights.
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2. Implementation Challenges
DBHR has access to the statewide FYSPRT and the related workgroups (the Children’s Behavioral Health Executive Leadership team, the Children's Behavioral Health Data and Quality Team, and T.R. Implementation Advisory Group (TRIAGe)) to assist with identifying and reviewing implementation issues (and successes). These groups are active and meet either on a quarterly or monthly basis. Their participation will be vital in the on-going monitoring and refinement of the service implementation.
Our anticipated challenges for the next year are outlined below according the T.R. Implementation Plan Objectives. The below categories are current areas of focus for WISe implementation:
Rollout of WISe Services (Objective 3)
DBHR is in the process of updating the WISe rollout schedule with RSNs and the upcoming BHOs. The staged rollout of WISe services poses challenges both in terms of geographic availability and capacity until June 2018. During the implementation period, the WISe program will not be available for all youth for whom the services may be appropriate. The new schedule will be posted on the DBHR website as soon as it is completed. The biggest change to the initial rollout plan is that King County RSN has volunteered to implement WISe prior to original date of November 2017; the anticipated start date is early 2016. All RSNs will begin WISe implementation in at least one county in their region by April 2016. RSNs currently implementing WISe, with the exception of Thurston Mason RSN, will need to continue to build capacity in their region. The September 2015 State Mental Health Contract amendment, received by all RSNs, included the projected WISe capacity estimates needed at full implementation. These capacity projections were also included in the BHO’s Detailed Plans.
To assist with finalizing the WISe capacity numbers linked to the rollout plan, DBHR has requested an updated review of estimated capacity needs for each county to identify any changes since the initial report generated by the department’s Research and Data Analysis Division (RDA) in July 2014. Completion of this work is anticipated in late December 2015.
As noted under Objective 3, DBHR finds success in the WISe capacity development during the first year of implementation. DBHR also recognizes the capacity target for FY2016 is aggressive, particularly when RSNs are transitioning to BHOs. DBHR will continue to monitor utilization through fiscal reports. Per contract requirements starting in December 2015, DBHR will monitor bi-monthly progress reports submitted by the RSNs. The progress reports will identify current WISe capacity in the RSN region, indicate any decreases in capacity, and present an action plan to regain compliance. In this report, RSNs are also required to identify challenges in meeting their service capacity targets and identify strategies to address those challenges. From these reports, DBHR can further support and assist RSNs with their identified strategies to meet implementation challenges.
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As identified in the first annual Implementation Status Report, capacity building for WISe is a big challenge. In addition to funding for capacity, there is also a ramp-up to meet the staffing requirements for WISe teams. RSNs have had to manage capacity and ramp-up for WISe services and will continue to meet unique challenges (e.g. workforce recruitment, workforce shortages, staff turnover, Requests for Proposals). RSNs continue to report difficulty in workforce recruitment and staff turnover on the WISe teams.
There is an overarching interest in identifying technical assistance and supports to bolster the children’s behavioral health workforce. In support of this, the WSU Workforce Collaborative will coordinate and collaborate with current initiatives and identify more long-term strategies in a five-year Workforce Development Strategic Plan that is under development. Once completed, DBHR will work to support the strategies identified in the Workforce Development Plan.
The Workforce Collaborative will also align with the efforts under contract with the University of Washington Evidence-Based Practice Institute (EBPI). DBHR has also contracted with the University of Washington EBPI to develop a state implementation plan for Evidence-Based Practices based on the regional needs of RSNs, providers, and stakeholders for children’s mental health services.
Workforce shortages, competition for existing skilled staff, and difficulty with recruitment in children’s behavioral health services will continue to cause challenges for WISe implementation. There is a need to identify creative and collaborative ways to support RSNs and WISe providers. DBHR believes the noted workforce contracts with WSU and U of W will assist with this work.
DBHR will to review workforce issues in TRIAGe, in the statewide FYSPRTs, and with the Workforce Collaborative Steering Committee.
Payment Mechanisms and Reporting (Objective 3)
ProviderOne (P1)
P1 is the online electronic system that manages Medicaid claims. During the first year of WISe implementation, a number of ongoing issues were encountered for the WISe Service Based Enhancement (SBE) payments due to established coding within P1. At the end of the fiscal year, withheld payments were monitored and processed directly by fiscal staff. To mitigate this ongoing problem, DBHR will dedicate fiscal staff to review and generate WISe SBE payments for RSNs/BHOs. DBHR reviewed the proposed new SBE process with RSNs in late September 2015. The new process will be tested, phased in, and fully implemented by January 2016.
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Behavioral Health Assessment System (BHAS)
The BHAS system launched in July 2014 with five Regional Support Networks and their contract WISe agencies inputting CANS screening and assessment data. To bring on a system and users in such a quick turnaround time was an accomplishment. However, these accomplishments also came with some challenges; some expected and some unexpected.
When implementing such a system, in users will experience problems that need to be addressed. Additional staff were needed to address technical fixes and continue building the Washington State report structure. The process of fixing system issues and creating BHAS reports began September 2014 and is ongoing. At first, the technical ability to create the reports did not exist and no project management staff were available to create, modify, adjust, and validate these reports. Since such time, a project manager has been hired by the vendor and more developers and programmers have been brought on board.
The system challenges have been prioritized and are being addressed by the vendor, DSHS, and DSHS’ contractor, Dr. Nate Israel, in systematically working through each report. This work entails looking at requirements, logic patterns, outputs, and validation against extract data run through the same logic parameters. This process will ensure that the reports produced by BHAS come with only the highest form of accuracy.
Upcoming work on the BHAS system consists of the following: • Functionality to bring greater detail to the screening referral outcome. • Algorithmic functionality to allow Washington to create, test, and employ new algorithms to the CANS screen. • Transfer capability added to the RSN and agency levels that will allow clients to change locations. • Functionality that will allow users according to permission to discharge, delete, and suppress CANS to allow for more accurate records and data. • Adding additional reports, e.g. a CANS 90-day timeliness report.
WISe Training (Objective 5)
Training needs for WISe exists on a variety of levels, with our system partners, with youth and family members, and with RSNs and their WISe affiliated agencies. DBHR is meeting with a workgroup of representatives from RSNs, WISe agencies, WSU, UW EBPI, and PSU to develop a WISe Train the Trainer Model (TtT). This model will assist with increasing local training expertise and provide trainings in a timely manner that best meets the needs of the local RSN/BHO. The goal was to have the WISe TtT completed this past summer but has fallen behind schedule. Part of the delay for the TtT, was an interest in hiring an executive director for the WSU Workforce
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Collaborative that took longer than expected. And, DBHR is currently in the process of changing its training platform from a required four-day, in-person training to having online training modules available and an experiential two-day, in-person training. The training curricula needs continued refinement and re-design to match the experience of the individual RSNs workforce. This project is moving forward in partnership but needs to be completed so that additional trainers can be available in local communities as WISe services continue to increase statewide.
Also, there is an ongoing interest to work with Cross System partners for a better understanding on how and why a Cross Care Plan benefits youth and families. To that effect, DBHR continues to work with key system partners to identify methods to increase trainings and information to their critical staff. The 2016 EQRO review and Quality Services Reviews (QSRs) will assist with ongoing quality improvement and training needs. Later in 2016, a written report on the lessons learned from the QSRs will also be available to guide quality improvement.
DBHR will continue to work with the Workforce Collaborative under Washington State University, UW EBI, and system partners to identify a plan to establish and sustain WISe provider trainings with sufficient frequency, depth, and scope to address capacity expansion, as well as staff turnover.
Family, Youth, and System Partner Roundtables (Objective 6)
Establishment and support of the Family, Youth, System Partner Roundtables (FYSPRTs) is derived from the goals, commitments, and exit criteria of the T. R. Settlement Agreement. The agreement stipulates that the Washington State Children’s Behavioral Health Delivery System will “maintain a collaborative governance structure that includes child-serving agencies, youth and families, and other stakeholders.”
As noted in Objective 6, the statewide, regional, and local FYSPRTs are designed to influence the functioning of local and state child-serving systems, and to promote proactive changes that will improve access to, and the quality of, services for families and youth with complex behavioral health challenges, and the outcomes they experience. FYSPRTs are grounded in the Washington State Children’s Behavioral Health Principles and provide a forum for local information exchange and problem solving, as well as an opportunity for identifying and addressing barriers to providing comprehensive behavioral health services and supports to children and youth.
FYSPRTs are to engage family, youth, and local community representatives as “full partners” with the same access to data and equal rights in the decision-making processes as other committee members.
Towards the end of FY 2015, DBHR began the work to align the regional FYSPRTs with the soon to be operational Behavioral Health Organizations (BHOs)/Regional Service Areas (RSA). 2SSB 6312 directs DSHS to integrate chemical dependency and mental health purchasing primarily with managed care contracts by April 1, 2016. To better
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Case 2:09-cv-01677-TSZ Document 159 Filed 11/16/15 Page 46 of 50
match the regional FYSPRT with the developing BHO/RSA regions, the number of regional FYSPRTs needed to increase from six to ten. The start date to increase the number of regional FYSPRT and the transition of RSNs receiving the contracts was October 1, 2015.
The governance structure is intended to: • Increase family and youth participation in governance activities at all levels of the system. • Include authentic and substantial family and youth involvement in all aspects of policy making and decision-making for the WISe program.
To assist with meeting this intent, contracts require the national best practice that each regional FYSPRT include a minimum of 51% youth and family stakeholders. As the regional and local FYSPRTs continue to develop in the new BHO/RSA, they may or may not be able to recruit a sufficient number of youth, family and system partner members. RSN reports submitted to DBHR on membership rosters and recruitment strategies will reveal if there are shortages. DBHR is preparing to address this issue, should it prove to be a challenge, by providing sufficient technical assistance for meeting any shortages.
Opportunities for technical assistance and leadership development activities are available through contracts with the Workforce Collaborative, Youth ‘N Action, as well as by DBHR staff. DBHR is also in the process of developing an RFP for a Family-led organization that can also provide expertise in leadership development and offer consultation and technical assistance.
DBHR will require regional and local FYSPRTs to use the evaluation tool noted in Objective 6. Also, within the current Regional FYSPRT contract, concrete deliverables are required. Again, some of these contractual requirements are noted under Objective Six and Remaining Tasks.
Throughout the process of transitioning from six to ten FYSPRTs, Plaintiffs’ Counsel and stakeholders have expressed ongoing concerns about the transition of the regional FYSPRTs to the RSNs/BHOs. Areas of concern with the RSNs/BHOs receiving the contract include:
• Authentic youth and family representation as full partners. • The inclusion of historical FYSPRT work, contractors, and members. • The timelines around the development of local FYSPRTs.
Through stakeholder meetings, discussions, and input into the contract language and FYSPRT Manual, DBHR has attempted to address these concerns. DBHR and Plaintiffs’ Counsel have made a mutual commitment to continue to address any ongoing FYSPRT concerns.
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Case 2:09-cv-01677-TSZ Document 159 Filed 11/16/15 Page 47 of 50 Regional FYSPRTs will locally identify barriers on FYSPRT implementation and develop plans regarding next steps. DBHR will review these plans in January 2016. In addition, barriers and best practices will continue to be discussed at the statewide FYSPRT meetings. The work of developing regional and local FYSPRTs started prior to the Settlement Agreement under the System of Care grant and is an evolving process. The commitment to the intent has been voiced in numerous meetings and collectively from youth, family, and system partners. This work is critical and on-going.
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3. Glossary of Key Terms
Definitions: The words and phrases listed below have the following definitions:
a. “Behavioral Health Assessment System” or “BHAS” is an online data system to store and report on Child and Adolescent Needs and Strengths (CANS) data for Wraparound with Intensive Services (WISe).
b. “Behavioral Health Organizations” or “BHOs” are created by state law to ch. 225, Laws of 2014, purchase and administer public mental health and substance use disorder services under managed care. BHOs are single, local entities that assume responsibility and financial risk for providing substance use disorder treatment, and the mental health services previously overseen by the Regional Support Networks (RSNs).
c. “Behavioral Health and Service Integration Administration” or “BHSIA” is an administration of the Department of Social and Health services and provides prevention, intervention, in-patient treatment, outpatient treatment, and recovery support to people with addiction and mental health needs. In addition, BHSIA operates three state psychiatric hospitals: Eastern State Hospital, Western State Hospital, and the Child Study and Treatment Center.
d. “Behavior Rehabilitation Services” or ‘BRS” is a temporary intensive wraparound support and treatment program for youth with high-level service needs. BRS is used to stabilize youth (in-home or out-of-home) and assist in achieving their permanent plan. These services are offered through contracts under the Children’s Administration.
e. “Children’s Administration” or “CA” is an administration of the Department of Social and Health Services and the public child welfare agency for the state of Washington.
f. “Child and Adolescent Needs and Strengths” or “CANS” is a multi-purpose tool developed for children’s services to support decision making, including level of care and service planning, to facilitate quality improvement initiatives, and to allow for the monitoring of outcomes of services.
g. “Child and Family Team” or “CFT” includes the youth, parents/caregivers, relevant family members, and natural and community supports.
h. “Children’s Long Term Inpatient Program” or “CLIP” is the most intensive inpatient psychiatric treatment available to all Washington residents, ages 5-18 years of age; offers a medically based treatment approach providing 24-hour psychiatric care staffed by Psychiatrists, Master level Social Workers, RNs and other clinical experts.
i. “Culturally and Linguistically Appropriate Services” or “CLAS” – the national standards are intended to advance health equity, improve quality, and help eliminate health care disparities by providing a blueprint for individuals and health and health care organizations to implement culturally and linguistically appropriate services. Adoption of these Standards will help advance better health and health care. https://www.thinkculturalhealth.hhs.gov/content/clas.asp
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j. “Developmental Disabilities Administration” or “DDA” is an administration of the Department of Social and Health Services that provides programs for state residents with developmental disabilities and their families.
k. “Division of Behavioral Health and Recovery” or “DBHR” means the DSHSdesignated state mental health authority to administer the state and Medicaid funded mental health programs authorized by RCW chapters 71.05, 71.24, and 71.34.
l. “External Quality Review Organization” or “EQRO” provides external quality review and supports quality improvement for services provided to Medicaid enrollees in Washington; the work supports the State of Washington Health Care Authority (HCA) and Department of Social and Health Services (DSHS) Division of Behavioral Health and Recovery.
m. “Family Youth and System Partner Round Tables” or “FYSPRTs” provide an equitable forum for families, youth, systems, and communities to strengthen sustainable resources by providing community-based approaches to address the individualized behavioral health needs of children, youth, and families.
n. “Fiscal Year 2015” or “FY2015’ is the state fiscal year running from July 1, 2014, through June 30, 2015.
o. “Full partners” are persons or entities who play an active role in the development and implementation of activities under the “T.R. v. Quigley and Teeter” (formerly Dreyfus and Porter) Settlement Agreement. Full partners have the same access to data and equal rights in the decision-making processes as other members of the Governance structure.
p. The “Governance Structure” consists of inter-agency members on an Executive Team of state administrators, the statewide, regional, and local FYSPRTs, an advisory team, and various policy workgroups who inform and provide oversight for high-level policy-making, program planning, and decision-making in the design, development, and oversight of behavioral health care services and for the implementation of the T.R. v. Quigley and Teeter Settlement Agreement.
q. “Health Care Authority” or “HCA” purchases health care for more than 2 million Washingtonians through two programs — Washington Apple Health (Medicaid) and the Public Employees Benefits Board (PEBB) Program.
r. “Quality Management Plan” or “QMP” prescribes the quality management goals, objectives, tools, resources, and processes needed to measure the implementation and success of the commitments set forth in the T.R. v. Quigley and Teeter Settlement Agreement.
s. “Regional Service Areas” or “RSAs,” as directed by E2SSB 6312, the Health Care Authority (HCA) and Department of Social and Health Services (DSHS), have jointly decided on common Regional Service Areas (RSAs) for Medicaid purchasing of physical and behavioral health care, beginning in 2016. Map as of June 2015: http://www.hca.wa.gov/hw/Documents/2016rsa_boundaries.pdf
t. “Regional Support Network” or “RSN” means a county authority or group of county authorities or other entity recognized by the DSHS Secretary through a DSHS contract for a DSHS-designated region which provides management of behavioral health services.
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u. “Rehabilitation Administration’s (RA), Juvenile Rehabilitation” or “JR’” is an administration of the Department of Social and Health services which serves Washington State's highest-risk youth.
v. “System of Care” or “SOC” is an organizational philosophy and framework that involves collaboration across agencies, families, and youth for the purpose of improving access and expanding the array of coordinated community-based, culturally and linguistically competent services and supports for children and youth with a serious emotional disturbance and their families.
w. “T.R. Implementation Advisory Group” or “TRIAGe” is a group comprised of the Plaintiffs’ Counsel, Attorney General representatives, and representatives of DSHS child-serving administrations (BHSIA, CA, DDA and RA) and HCA who have knowledge relevant to the services and processes identified in the WISe Implementation Plan. TRIAGe is utilized as a communication mechanism between parties to enable implementation.
x. “T.R. v Quigley and Teeter (formerly Dreyfus and Porter) Settlement Agreement” is a legal document stating objectives to develop and successfully implement a five-year plan that delivers Wraparound with Intensive Services (WISe) and supports statewide, consistent with Washington State Children’s Behavioral Health Principles.
y. “Tri-Lead” is a role, developed to create equal partnership, among a family, a transition age youth and/or youth partner, and a system partner representative who share leadership in organizing and facilitating FYSPRT meetings and action items.
z. “Washington State Children’s Behavioral Health Principles” are a set of standards, grounded in the system of care values and principles, which guide how the children’s behavioral health system delivers services to youth and families. The Washington State Children’s Behavioral Health Principles are: • Family and Youth Voice and Choice • Team Based • Natural Supports • Collaboration • Home and Community-based • Culturally Relevant • Individualized • Strengths Based • Outcome-based • Unconditional
aa. “Wraparound with Intensive Services” or “WISe” means intensive mental health services and supports, provided in home and community settings, for Medicaid eligible individuals, up to 21 years of age, with complex behavioral health needs and their families, in compliance with the T.R. v Quigley and Teeter (formerly Dreyfus and Porter) Settlement Agreement.
bb. “Workforce Collaborative” means a staffing infrastructure that operates independently and is tri-led by youth and families, state systems and partner universities to develop sustainable local and statewide education, training, coaching, mentoring, and technical assistance.
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 Case 2:09-cv-01677-TSZ Document 77 Filed 03/16/11 Page 1 of 7

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THE HONORABLE THOMAS S. ZILLY

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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16 T.R., by and through his guardian and next 17 friend, R.R.; S.P., by and through her 18 mother and next friend, D.H.; C.A., by and 19 through her mother and next friend, A.A.; 20 T.F., by and through her father and next 21 friend, D.F.; P.S., by and through his 22 mother and next friend, W.S.; T.V., by and 23 through his guardian and next friend. C.D.; 24 G.B., by and through her mother and next 25 friend, L.B.; E.H. by and through his 26 mother and next friend, C.H.; E.D., by and 27 through his mother and next friend, A.D.; 28 and L.F.S., by and through his mother and 29 next friend, B.S.,

No. 2:09-cv-01677-JPD
STIPULATED MOTION TO AMEND SCHEDULING ORDER AND SECOND JOINT STATUS REPORT REGARDING MEDIATION

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Plaintiffs,

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v.

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Defendant.

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STIPULATED MOTION

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Plaintiffs, on behalf of themselves and the class they represent, and Defendant respectfully file

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47 this Stipulated Motion to Amend Scheduling Order requesting a six (6) month extension of the

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STIPULATED MOTION AND JOINT STATUS REPORT REGARDING MEDIATION (No. 2:09cv-01677-TSZ) – 1
70787-0001/LEGAL20131671.1

Perkins Coie LLP 1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 77 Filed 03/16/11 Page 2 of 7

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2 litigation deadlines included in the current case schedule (Dkt. 70) on grounds that the extension is

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4 necessary to allow the parties to continue settlement discussions. As detailed in the Second Joint

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6 Status Report Regarding Mediation set forth below, the parties have made significant progress towards

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8 reaching a conclusive resolution of all issues involved in this matter. Additionally, the parties have

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10 committed to a schedule of additional meetings and mediation, as well as a detailed process to reach

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12 their mutual goal of arriving at a settlement on or before August 30, 2011. The parties are unable to

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14 apply the resources required to continue settlement discussions, while at the same time prepare this

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16 case for trial under the current schedule. Accordingly, to avoid wasting judicial resources and the

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18 parties' resources, Plaintiffs and Defendant respectfully move for a six (6) month extension of the

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20 current litigation deadlines. A proposed order is submitted herewith.

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SECOND JOINT STATUS REPORT REGARDING MEDIATION

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1. On December 1, 2010, the Court entered a Minute Order (Dkt. 70) setting forth

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26 litigation deadlines in this matter. That Order included, among other things, the following litigation

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28 requirements and deadlines: August 31, 2011 deadline to complete mediation; October 31, 2011

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On February 17, 2011 the parties submitted a joint status report regarding the three full

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36 days they spent in mediation (January 6, January 25 and 26, 2011), and additionally scheduled

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38 additional mediation sessions (February 15 – 16, 2011 and March 10 – 11, 2011). The parties have

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40 met and completed all of these sessions with their identified mediators, Teresa Wakeen and Kathleen

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42 Noonan. In addition, the parties held a phone conference without mediators on February 28, 2011.

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During these mediation sessions, the parties identified their critical issues and reached

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46 mutual agreement on the key elements that must be resolved to reach final settlement. Outlined below

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STIPULATED MOTION AND JOINT STATUS REPORT REGARDING MEDIATION (No. 2:09-

Perkins Coie LLP 1201 Third Avenue, Suite 4800

cv-01677-TSZ) – 2

Seattle, WA 98101-3099 Phone: 206.359.8000

70787-0001/LEGAL20131671.1

Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 77 Filed 03/16/11 Page 3 of 7

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2 is the schedule the parties have set forth for completing negotiations on these elements and the

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4 deliverables upon which the parties intend to reach mutual agreement:

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Element

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1. Service Array

Mutually Agreed Deliverables Analysis and conclusions regarding

Completion June 2, 2011

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defined intensive home & community

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services, to include coverage under applicable Medicaid law

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2. Principles and Practice Guidance for providers and March 29, 2011

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Components

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administrators

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principles

establishing service values and

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requiring service components for each

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child and family to receive over the

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course of treatment

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3. Systemic Identification Determination of target population June 2, 2011

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and Assessment of Needs

characteristics, size, and written

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description of how children will access

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intensive mental health services

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4. System Management, Analysis and plan to align data June 17, 2011

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Quality Assurance, and collection, quality control, cross-system

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Governance

coordination and collaboration, and

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governance with agreed principles

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5. System Capacity and Review of existing system capacity to June 2 , 2011

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Funding

deliver IHCBS in accordance with

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practice components and development

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of funding mechanisms

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6. Implementation

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Plan for implementing the practice

June 2, 2011

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components, including commitments

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and time frames and systemic outcomes

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4. Provided these six elements can be resolved within the timeframes the parties have

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45 2011, with a target date of June 29, 2011 for the completion of a first draft. A final comprehensive

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STIPULATED MOTION AND JOINT STATUS REPORT REGARDING MEDIATION (No. 2:09-

Perkins Coie LLP 1201 Third Avenue, Suite 4800

cv-01677-TSZ) – 3

Seattle, WA 98101-3099 Phone: 206.359.8000

70787-0001/LEGAL20131671.1

Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 77 Filed 03/16/11 Page 4 of 7

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2 will also discuss exit strategies and criteria, plans to monitor implementation, and enforcement

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4 procedures to be incorporated into their agreement and settlement order.

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The parties agreed to continue settlement negotiations through August 2011 in order to

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8 reach final agreement. The parties have committed to at least one additional mediation session with

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10 both mediators on May 3, 2011, as well as a series of in-person full day negotiation meetings without

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12 the mediators (March 29, April 11, May 2, May 17, June 2, June 15, and June 29, 2011). In addition,

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14 both parties are committing to participate in subgroups to meet in between the scheduled negotiation

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16 meetings in order to address each of the six identified elements with the assistance of stakeholder third

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18 parties and experts. The parties have agreed to submit an additional Joint Status Report on or before

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20 August 15, 2011 to advise the Court of the mediation status.

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As reported to the Court in the parties’ February 17, 2011 Joint Status Report, the

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24 parties have continued to voluntarily stay any new discovery while engaging in mediation. Under the

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26 Court’s current Scheduling Order, both parties acknowledge the need to reengage in significant

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28 discovery efforts, including intensive document production and depositions, beginning not later than

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30 March 21, 2011. The parties continue to desire to focus their respective resources on the mediation

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32 process. At the same time, the parties continue to believe they cannot unnecessarily encumber their

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34 ability to prepare the lawsuit in the event a settlement is not achieved and in light of the Court’s

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36 current scheduling order. Accordingly, the parties have filed a Stipulated Motion requesting a six

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38 month extension to the current litigation deadlines.

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7. The parties mutually agree that settlement progress has been made during the past 30

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42 days and that the agreed mediation schedule represents their best effort at providing a framework in

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44 which to mediate and resolve the issues in this case. Therefore, as reported to the Court in February

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46 17, 2011 Joint Status Report, the parties hereby jointly request a six (6) month continuance of the

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48 deadlines included in the Court’s current Scheduling Order. If such a continuance is requested and

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STIPULATED MOTION AND JOINT STATUS REPORT REGARDING MEDIATION (No. 2:09-

Perkins Coie LLP 1201 Third Avenue, Suite 4800

cv-01677-TSZ) – 4

Seattle, WA 98101-3099 Phone: 206.359.8000

70787-0001/LEGAL20131671.1

Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 77 Filed 03/16/11 Page 5 of 7

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2 granted, the current voluntary discovery freeze will continue during the continuance so the parties may

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8. If the Court has questions about the current mediation process, the parties are agreeable

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8 to status conference to discuss these matters.

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Respectfully submitted this 15th day of March, 2011.

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STIPULATED MOTION AND JOINT STATUS REPORT REGARDING MEDIATION (No. 2:09-

Perkins Coie LLP 1201 Third Avenue, Suite 4800

cv-01677-TSZ) – 5

Seattle, WA 98101-3099 Phone: 206.359.8000

70787-0001/LEGAL20131671.1

Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 77 Filed 03/16/11 Page 6 of 7

1 For Plaintiffs:
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For Defendant:

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/s/Regan Bailey

5 Regan Bailey, WSBA No. 39142

6 reganb@dr-wa.org

/s/ John K. McIlhenny JOHN K. MCILHENNY, JR. WSBA No. 32195 JohnM5@atg.wa.gov

7 Susan Kas, WSBA No. 36592

CATHERINE R. HOOVER, WSBA No. 22049

8 susank@dr-wa.org

CatherineH1@atg.wa.gov

9 DISABILITY RIGHTS WASHINGTON BILL G. CLARK, WSBA No. 09234

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315 5th Avenue South, Suite 850

12 Seattle, WA 98104

BillC2@atg.wa.gov ERIC NELSON, WSBA No. 27183

13 Telephone: (206) 324-1521

EricN1@atg.wa.gov

14 Facsimile: (206) 957-0729

Assistant Attorneys General

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16 /s/Susan E. Foster

Attorneys for Defendant

17 Susan E. Foster, WSBA No. 18030

18 SFoster@perkinscoie.com

19 Frederick B. Rivera, WSBA No. 23008

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FRivera@perkinscoie.com

22 Travis A. Exstrom, WSBA No. 39309

23 TExstrom@perkinscoie.com

Office of the Attorney General 7141 Cleanwater Drive SW PO Box 40124 Olympia, WA 98504-0124
Telephone: (360) 586-6565

24 PERKINS COIE LLP 25 1201 Third Avenue, Suite 4800

Attorneys for Defendants

26 Seattle, WA 98101-3099

27 Telephone: (206) 359.8000

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Facsimile: (206) 359.9000

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/s/Patrick Gardner

33 Patrick Gardner, CB No. 208199

34 pgardner@youthlaw.org

35 Bryn Martyna, CB No. 239852

36 bmartyna@youthlaw.org

37 NATIONAL CNTR FOR YOUTH LAW

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405 14th Street, 15th Floor

40 Oakland, CA 94612

41 (510) 835-8098

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STIPULATED MOTION AND JOINT STATUS REPORT REGARDING MEDIATION (No. 2:09-

Perkins Coie LLP 1201 Third Avenue, Suite 4800

cv-01677-TSZ) – 6

Seattle, WA 98101-3099 Phone: 206.359.8000

70787-0001/LEGAL20131671.1

Fax: 206.359.9000

Case 2:09-cv-01677-TSZ Document 77 Filed 03/16/11 Page 7 of 7

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CERTIFICATE OF SERVICE

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I hereby certify that on this 16th day of March 2011, I electronically filed the foregoing with

5 the Clerk of the Court using the CM/ECF system which will send notification of such filing to the

6 following: John K. McIlhenny, Jr. (JohnM5@atg.wa.gov), Catherine Hoover

7 (CatherineH1@atg.wa.gov), Bill G. Clark (BillC2@atg.wa.gov), and Eric Nelson

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(EricN1@atg.wa.gov.

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s/Mona Rennie

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STIPULATED MOTION AND JOINT STATUS REPORT REGARDING MEDIATION (No. 2:09-

Perkins Coie LLP 1201 Third Avenue, Suite 4800

cv-01677-TSZ) – 7

Seattle, WA 98101-3099 Phone: 206.359.8000

70787-0001/LEGAL20131671.1

Fax: 206.359.9000

 
 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:09-cv-01677-TSZ

TR et al v. Dreyfus Assigned to: Judge Thomas S. Zilly Cause: 42:1983 Civil Rights Act
Plaintiff TR by and through his guardian and next friend, R.R.

Date Filed: 11/24/2009 Date Terminated: 12/19/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Bryn Martyna NATIONAL CENTER FOR YOUTH LAW 405 14TH STREET 15TH FLOOR OAKLAND, CA 94612 510-835-8098 Email: bmartyna@youthlaw.org TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Fiza Asmat Quraishi NATIONAL CENTER FOR YOUTH LAW 405 14TH STREET 15TH FLOOR OAKLAND, CA 94612 510-835-8098 Email: fquraishi@youthlaw.org TERMINATED: 06/25/2010 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-3596 Fax: 206-359-4596 Email: FRivera@perkinscoie.com

TERMINATED: 02/05/2015 LEAD ATTORNEY
Martha Jane Perkins NATIONAL HEALTH LAW PROGRAM 211 N COLUMBIA ST 2ND FLOOR CHAPEL HILL, NC 27514 919-968-6771 Email: perkins@healthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Gardner GARDNER LAW, ADOLESCENT MENTAL HEALTH 115 HAIGHT STREET MENLO PARK, CA 94025 650-993-9394 Email: pgardner@adolescentmentalhealth.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan E Foster PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8000 Fax: 206-359-9000 Email: sfoster@perkinscoie.com TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan Linn Kas DISABILITY RIGHTS WASHINGTON 315 5TH AVE S STE 850 SEATTLE, WA 98104 206-324-1521 Email: susank@dr-wa.org

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-6246 Email: TExstrom@perkinscoie.com TERMINATED: 02/05/2015 LEAD ATTORNEY
Wesley Sheffield YOUNG MINDS ADVOCACY PROJECT PO BOX 163146 SACREMENTO, CA 95816 916-760-8551 Email: wesley.sheffield@dmhc.ca.gov LEAD ATTORNEY PRO HAC VICE
Austin M. Rainwater DLA PIPER US LLP (WA) 701 FIFTH AVE STE 6900 SEATTLE, WA 98104-7044 206-839-4826 Fax: 206-494-1804 Email: austin.rainwater@dlapiper.com TERMINATED: 02/05/2015
David R Carlson DISABILITY RIGHTS WASHINGTON 315 5TH AVE S STE 850 SEATTLE, WA 98104 206-324-1521 Email: DavidC@dr-wa.org ATTORNEY TO BE NOTICED
Erica Turcios

NATIONAL CENTER FOR YOUTH LAW 405 14TH STREET 15TH FLOOR OAKLAND, CA 94612 510-835-8098 Email: eturcios@youthlaw.org TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta NATIONAL CENTER FOR YOUTH LAW 405 14TH STREET, 15TH FLOOR OAKLAND, CA 94612 510-835-8098 Email: eliotta@youthlaw.org TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis NATIONAL HEALTH LAW PROGRAM 2639 S LA CIENEGA BLVD LOS ANGELES, CA 90034 310-204-6010 Email: lewis@healthlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-6278 TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED
Leecia Welch NATIONAL CENTER FOR YOUTH LAW 405 14TH STREET 15TH FLOOR OAKLAND, CA 94612 510-835-8098

Plaintiff
SP by and through his guardian and next friend, DH

Email: lwelch@youthlaw.org ATTORNEY TO BE NOTICED
Regan Bailey DISABILITY RIGHTS WASHINGTON 315 5TH AVE S STE 850 SEATTLE, WA 98104 206-324-1521 Email: reganb@dr-wa.org TERMINATED: 10/11/2012
represented by Bryn Martyna (See above for address) TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan E Foster (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan Linn Kas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Wesley Sheffield (See above for address) LEAD ATTORNEY PRO HAC VICE
Austin M. Rainwater

Plaintiff
CA by and through her mother and next friend, A.A.

(See above for address) TERMINATED: 02/05/2015
David R Carlson (See above for address) ATTORNEY TO BE NOTICED
Erica Turcios (See above for address) TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta (See above for address) TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank (See above for address) TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) TERMINATED: 10/11/2012
represented by Bryn Martyna (See above for address) TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY

Susan E Foster (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan Linn Kas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Wesley Sheffield (See above for address) LEAD ATTORNEY PRO HAC VICE
Austin M. Rainwater (See above for address) TERMINATED: 02/05/2015
David R Carlson (See above for address) ATTORNEY TO BE NOTICED
Erica Turcios (See above for address) TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta (See above for address) TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank (See above for address)

Plaintiff
TF by and through her father and next friend, D.F.

TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) TERMINATED: 10/11/2012
represented by Bryn Martyna (See above for address) TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan E Foster (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan Linn Kas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Wesley Sheffield (See above for address) LEAD ATTORNEY PRO HAC VICE
Austin M. Rainwater (See above for address) TERMINATED: 02/05/2015

Plaintiff
PS by and through his mother and next friend, W.S.

David R Carlson (See above for address) ATTORNEY TO BE NOTICED
Erica Turcios (See above for address) TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta (See above for address) TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank (See above for address) TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) TERMINATED: 10/11/2012
represented by Bryn Martyna (See above for address) TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan E Foster

(See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan Linn Kas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Wesley Sheffield (See above for address) LEAD ATTORNEY PRO HAC VICE
Austin M. Rainwater (See above for address) TERMINATED: 02/05/2015
David R Carlson (See above for address) ATTORNEY TO BE NOTICED
Erica Turcios (See above for address) TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta (See above for address) TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank (See above for address) TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED

Plaintiff
TV by and through is guardian and next friend, C.B.

Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) TERMINATED: 10/11/2012
represented by Bryn Martyna (See above for address) TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan E Foster (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan Linn Kas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Wesley Sheffield (See above for address) LEAD ATTORNEY PRO HAC VICE
Austin M. Rainwater (See above for address) TERMINATED: 02/05/2015
David R Carlson

Plaintiff
GB by and through her mother and next friend, LB. TERMINATED: 10/27/2011

(See above for address) ATTORNEY TO BE NOTICED
Erica Turcios (See above for address) TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta (See above for address) TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank (See above for address) TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) TERMINATED: 10/11/2012
represented by Bryn Martyna (See above for address) TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan E Foster (See above for address) TERMINATED: 02/05/2015

Plaintiff

LEAD ATTORNEY
Susan Linn Kas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Austin M. Rainwater (See above for address) TERMINATED: 02/05/2015
Erica Turcios (See above for address) TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta (See above for address) TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank (See above for address) TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) TERMINATED: 10/11/2012

EH by and through his mother and next friend, C.H.

represented by Bryn Martyna (See above for address) TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan E Foster (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan Linn Kas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Wesley Sheffield (See above for address) LEAD ATTORNEY PRO HAC VICE
Austin M. Rainwater (See above for address) TERMINATED: 02/05/2015
David R Carlson (See above for address) ATTORNEY TO BE NOTICED
Erica Turcios (See above for address) TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta (See above for address)

Plaintiff
ED by and through his mother and next friend, A.D.

TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank (See above for address) TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) TERMINATED: 10/11/2012
represented by Bryn Martyna (See above for address) TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan E Foster (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan Linn Kas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom (See above for address) TERMINATED: 02/05/2015

Plaintiff

LEAD ATTORNEY
Wesley Sheffield (See above for address) LEAD ATTORNEY PRO HAC VICE
Austin M. Rainwater (See above for address) TERMINATED: 02/05/2015
David R Carlson (See above for address) ATTORNEY TO BE NOTICED
Erica Turcios (See above for address) TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta (See above for address) TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank (See above for address) TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) TERMINATED: 10/11/2012

LFS by and through his mother and next friend, B.S.

represented by Bryn Martyna (See above for address) TERMINATED: 03/01/2012 LEAD ATTORNEY PRO HAC VICE
Frederick B Rivera (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan E Foster (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Susan Linn Kas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis A Exstrom (See above for address) TERMINATED: 02/05/2015 LEAD ATTORNEY
Wesley Sheffield (See above for address) LEAD ATTORNEY PRO HAC VICE
Austin M. Rainwater (See above for address) TERMINATED: 02/05/2015
David R Carlson (See above for address) ATTORNEY TO BE NOTICED
Erica Turcios (See above for address) TERMINATED: 03/01/2012 PRO HAC VICE
Erin Liotta (See above for address)

V.
Defendant
Susan N. Dreyfus not individually, but solely in her capacity as Secretary of the Washington State Department of Social and Health Services TERMINATED: 09/27/2013

TERMINATED: 07/06/2015 PRO HAC VICE
Kimberly Lewis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura T. Ewbank (See above for address) TERMINATED: 08/05/2014 ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) TERMINATED: 10/11/2012
represented by Eric Nelson ATTORNEY GENERAL'S OFFICE (SOC/HLTH-OLY) SOCIAL & HEALTH SERVICES PO BOX 40124 OLYMPIA, WA 98504-0124 360-586-6533 Email: ericn1@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carrie L Bashaw ATTORNEY GENERAL'S OFFICE (40124-OLY) 7141 CLEANWATER DR SW PO BOX 40124 OLYMPIA, WA 98504-0124 360-586-8895 Fax: 360-586-8877 Email: carrie.bashaw@atg.wa.gov TERMINATED: 08/31/2010

Catherine R Hoover ATTORNEY GENERAL'S OFFICE (40124-OLY) 7141 CLEANWATER DR SW PO BOX 40124 OLYMPIA, WA 98504-0124 360-459-6730 Email: CatherineH1@atg.wa.gov TERMINATED: 08/13/2013
John K McIlhenny ATTORNEY GENERAL'S OFFICE (40126-OLY) 7141 CLEANWATER DRIVE SW PO BOX 40126 OLYMPIA, WA 98504-0126 360-586-6300 Email: JohnM5@atg.wa.gov TERMINATED: 01/28/2016
Sarah Jane Coats ATTORNEY GENERAL'S OFFICE (40124-OLY) 7141 CLEANWATER DR SW PO BOX 40124 OLYMPIA, WA 98504-0124 360-586-6528 Fax: 360-586-6658 Email: sarahc@atg.wa.gov TERMINATED: 09/01/2010
Scott T. Middleton ATTORNEY GENERAL'S OFFICE (40124-OLY) 7141 CLEANWATER DR SW PO BOX 40124 OLYMPIA, WA 98504-0124 360-586-6547 Email: ScottM6@atg.wa.gov TERMINATED: 02/26/2010
William G Clark ATTORNEY GENERAL'S OFFICE (SEA- FIFTH AVE) 800 5TH AVE

Defendant Douglas Porter TERMINATED: 09/27/2013
Defendant Kevin Quigley Secretary, Washington State Department of Social and Health Services;

STE 2000 SEATTLE, WA 98104-3188 206-389-2794 Fax: FAX 206-587-4229 Email: billc2@atg.wa.gov TERMINATED: 09/25/2015
represented by John K McIlhenny (See above for address) TERMINATED: 01/28/2016
represented by Eric Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Anne Rappaport ATTORNEY GENERAL'S OFFICE (40124-OLY) 7141 CLEANWATER DR SW PO BOX 40124 OLYMPIA, WA 98504-0124 360-586-6552 Email: RachelR@atg.wa.gov TERMINATED: 12/20/2018 LEAD ATTORNEY
Angela D. Coats McCarthy ATTORNEY GENERAL'S OFFICE (40124-OLY) 7141 CLEANWATER DR SW PO BOX 40124 OLYMPIA, WA 98504-0124 360-586-6484 Email: AngelaC3@atg.wa.gov ATTORNEY TO BE NOTICED
Jacqueline G Schafer WASHINGTON STATE ATTORNEY GENERAL'S OFFICE PO BOX 40124 OLYMPIA, WA 98504 360-586-6552

Defendant
Dorothy Teeter Director, Washington State Health Care Authority

Email: JackieS1@atg.wa.gov TERMINATED: 07/21/2016
Jennifer Smith Meyer ATTORNEY GENERAL'S OFFICE (TORTS-OLY) TORTS DIVISION 7141 CLEANWATER DR SW PO BOX 40126 OLYMPIA, WA 98504-0126 360-586-6503 Fax: 360-586-6662 Email: jennis1@atg.wa.gov TERMINATED: 10/01/2018
John K McIlhenny (See above for address) TERMINATED: 01/28/2016
William G Clark (See above for address) TERMINATED: 09/25/2015
represented by Eric Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Anne Rappaport (See above for address) TERMINATED: 12/20/2018 LEAD ATTORNEY
Angela D. Coats McCarthy (See above for address) ATTORNEY TO BE NOTICED
Jacqueline G Schafer (See above for address) TERMINATED: 07/21/2016
Jennifer Smith Meyer (See above for address) TERMINATED: 10/01/2018

John K McIlhenny (See above for address) TERMINATED: 01/28/2016

Date Filed 11/24/2009
11/25/2009 11/25/2009 11/25/2009 11/25/2009 11/25/2009
11/30/2009 11/30/2009

# Docket Text
1 CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against defendant Susan N. Dreyfus (Summons(es) issued)(Receipt # SEA 30659), filed by CA, PS, GB, EH, ED, LFS, SP. (Attachments: # 1 Civil Cover Sheet, # 2 Transmittal email)(PM) (Entered: 11/25/2009)
2 NOTICE OF INITIAL ASSIGNMENT TO A US MAGISTRATE JUDGE AND CONSENT FORM. If consent, return the executed form by 1/6/2010. Please Note: Consents must not be electronically filed with the Court. (PM) (Entered: 11/25/2009)
4 APPLICATION OF ATTORNEY Patrick Gardner FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP (Fee Paid) Receipt No. 09810000000001917428. (Attachments: # 1 ECF)(Bailey, Regan) (Entered: 11/25/2009)
5 APPLICATION OF ATTORNEY Fiza Quraishi FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP (Fee Paid) Receipt No. 09810000000001917454. (Attachments: # 1 ECF form)(Bailey, Regan) (Entered: 11/25/2009)
6 APPLICATION OF ATTORNEY Martha Jane Perkins FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP (Fee Paid) Receipt No. 09810000000001917463. (Attachments: # 1 ECF form)(Bailey, Regan) (Entered: 11/25/2009)
7 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT. Joint Status Report due by 1/6/2010, FRCP 26f Conference Deadline is 12/23/2009, Initial Disclosure Deadline is 12/30/2009, by Hon. James P. Donohue. (PV) (Entered: 11/25/2009)
8 ORDER re 4 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Patrick Gardner for TR, et al by Bruce Rifkin. (No document associated with this docket entry, text only.)(DS) (Entered: 11/30/2009)
9 ORDER re 5 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Fiza Asmat Quraishi for T.R., et al by Bruce Rifkin.

11/30/2009
12/01/2009 12/04/2009 12/15/2009 12/28/2009 01/06/2010
01/13/2010 01/14/2010 01/25/2010 02/05/2010

(No document associated with this docket entry, text only.)(DS) (Entered: 11/30/2009)
10 ORDER re 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Martha Jane Perkins for T.R., et al by Bruce Rifkin. (No document associated with this docket entry, text only.)(DS) (Entered: 11/30/2009)
11 SERVICE OF SUMMONS and Complaint returned executed upon defendant Susan N. Dreyfus on 11/25/2009 (MD) (Entered: 12/02/2009)
12 NOTICE of Appearance by attorney Carrie L Bashaw on behalf of Defendant Susan N. Dreyfus. (Bashaw, Carrie) (Entered: 12/04/2009)
13 ANSWER to Complaint for Injunctive and Declaratory Relief by Susan N. Dreyfus.(Bashaw, Carrie) (Entered: 12/15/2009)
14 NOTICE of Unavailability of counsel Carrie L Bashaw for Defendant Susan N. Dreyfus from January 13, 2010 to January 19, 2010. (Bashaw, Carrie) (Entered: 12/28/2009)
Reset Deadlines: At the request of the parties, the Joint Status Report is now due by 1/14/2010; the parties consent or decline to Magistrate Judge Donohue is continued to 1/14/10, and shall be made part of the JSR,(PV) (Entered: 01/06/2010)
15 JOINT STATUS REPORT signed by all parties estimated Trial Days: 15. Filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP.(Foster, Susan) (Entered: 01/13/2010)
16 ORDER REASSIGNING CASE. Case reassigned to Judge Thomas S. Zilly for all further proceedings. Hon. James P. Donohue no longer assigned to caseby Clerk Bruce Rifkin. (PV) (Entered: 01/14/2010)
17 MINUTE ORDER by Thomas S. Zilly, United States District Judge. The Court SETS a scheduling conference for Friday, February 5, 2010, at 10:00 a.m. (CL) (Entered: 01/25/2010)
18 MINUTE ENTRY SCHEDULING CONFERENCE for proceedings held before Judge Thomas S. Zilly- Dep Clerk: Gail Glass; Pla Counsel: Susan E. Foster, Regan Bailey, Susan Kas, (Patrick Gardner and Fiza Quaraishi-by Phone); Def Counsel: Eric Nelson, Carrie L. Bashaw and William G. Clark; CR: NONE; Scheduling Conference held on 2/5/2010. All counsel appear personally, except for Patrick Gardner and Fiza Quraishi, who appear telephonically. The Court and counsel discuss the nature and status of the case. The Court

02/24/2010
02/26/2010 04/08/2010 04/14/2010 05/13/2010 05/21/2010

sets the following deadlines: (i) motion for class certification filed by July 15, 2010; (ii) additional parties joined by September 1, 2010; (iii) plaintiffs' expert reports disclosed by November 30, 2010; (iv) defendant's expert reports disclosed by December 31, 2010; (v) all discovery completed by February 28, 2011; (vi) any dispositive motions filed by March 31, 2011; (vii) proposed findings of fact and conclusions of law filed by, and bench trial to commence on, June 13, 2011. Counsel are encouraged to meet and confer concerning the crafting of an agreed class certification order. All limitations on discovery set forth in the Federal Rules of Civil Procedure and Local Rules are lifted; however, counsel may seek protective orders as necessary. The Court will enter a separate scheduling order consistent with these Minutes. (GG) (Entered: 02/23/2010)
19 MINUTE ORDER SETTING TRIAL AND RELATED DATES: By Judge Thomas S. Zilly. 39.1 mediation to be completed by 5/16/2011, Discovery completed by 2/28/2011, Dispositive motions due by 3/31/2011, Plaintiffs' Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 11/30/2010, Defendant's Expert Witness Disclosure/Reports due by 12/31/2010, Joinder of Parties deadline due by 9/1/2010, All Motions related to discovery must be filed and due by 1/27/2011, Motions in Limine due by 5/11/2011, Pretrial Order due by 5/31/2011, Proposed Findings of Fact and Conclusions of Law to be submitted by 6/13/2011, Settlement conference to be held by 4/14/2011, Trial briefs to be submitted by 6/8/2011, Final Pretrial Conference set for 6/3/2011 at 2:00 PM before Judge Thomas S. Zilly. Bench Trial is set for 6/13/2011 at 9:00 AM before the Honorable Thomas S. Zilly. Length of Bench Trial 15 days.(GG) (Entered: 02/25/2010)
20 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Scott T. Middleton for Defendant Susan N. Dreyfus. (Bashaw, Carrie) (Entered: 02/26/2010)
21 STIPULATION AND PROPOSED ORDER by parties. (Rivera, Frederick) (Entered: 04/08/2010)
22 STIPULATED PROTECTIVE ORDER by Judge Thomas S. Zilly. (CL) (Entered: 04/15/2010)
23 NOTICE of Unavailability of counsel Carrie L Bashaw for Defendant Susan N. Dreyfus from July 1, 2010 to July 14, 2010. (Bashaw, Carrie) (Entered: 05/13/2010)
24 APPLICATION OF ATTORNEY Bryn Martyna FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs CA, TF, TR, PS, TV, GB, EH,

05/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010
06/24/2010

ED, LFS, SP (Fee Paid) Receipt No. 09810000000002078297. (Attachments: # 1 ECF)(Bailey, Regan) (Entered: 05/21/2010)
25 ORDER re 24 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Bryn Martyna for CA, TF, TR, PS, TV, GB, EH, ED, LFS and SP, by Bruce Rifkin. (No document associated with this docket entry, text only.)(DS) (Entered: 05/24/2010)
26 NOTICE of Appearance by attorney Laura T. Ewbank on behalf of Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP. (Ewbank, Laura) (Entered: 06/24/2010)
27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP. Noting Date 6/24/2010, (Exstrom, Travis) (Entered: 06/24/2010)
28 MOTION to Certify Class by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP. (Attachments: # 1 Proposed Order) Noting Date 7/9/2010, (Exstrom, Travis) (Entered: 06/24/2010)
29 MEMORANDUM re 28 MOTION to Certify Class by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP. (Exstrom, Travis) (Entered: 06/24/2010)
30 DECLARATION of Susan Foster filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
31 DECLARATION of Jane Perkins filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
32 DECLARATION of Patrick Gardner filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
33 SEALED DOCUMENT A.A. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
34 SEALED DOCUMENT Declaration of A.D. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class

06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010

Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
35 SEALED DOCUMENT Declaration of B.S. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
36 SEALED DOCUMENT Declaration of C.D. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
37 SEALED DOCUMENT Declaration of C.H. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
38 SEALED DOCUMENT Declaration of D.H. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
39 SEALED DOCUMENT Declaration of D.F. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
40 SEALED DOCUMENT Declaration of L.B. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
41 SEALED DOCUMENT Declaration of P.S. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
42 SEALED DOCUMENT Declaration of R.B. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and

06/24/2010 06/25/2010 06/25/2010 06/28/2010 06/29/2010
06/29/2010
06/29/2010
06/29/2010

Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
43 SEALED DOCUMENT Declaration of R.R. by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/24/2010)
44 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Fiza Asmat Quraishi for Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP. (Exstrom, Travis) (Entered: 06/25/2010)
45 NOTICE of Appearance by attorney Bryn Martyna on behalf of Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP. (Martyna, Bryn) (Entered: 06/25/2010)
46 STIPULATION AND ORDER granting 27 Stipulated Motion to file Declarations in support of pltfs' motion for class certif under seal by Judge Thomas S. Zilly.(RS) (Entered: 06/28/2010)
47 Redacted DECLARATION of A.A. in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
48 Redacted DECLARATION of B.S. in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
49 Redacted DECLARATION of A.D. in Support of Plaintiffs Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
50 Redacted DECLARATION of C.D. in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class

06/29/2010 06/29/2010 06/29/2010 06/29/2010 06/29/2010 06/29/2010 06/29/2010

Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
51 Redacted DECLARATION of C.H. in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
52 Redacted DECLARATION of D.H. in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
53 Redacted DECLARATION of D.F. in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
54 Redacted DECLARATION of L.B. in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
55 Redacted DECLARATION of P.S. in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
56 Redacted DECLARATION of R.R. in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
57 Redacted DECLARATION of Regan Bailey in Support of Plaintiffs' Motion for Class Certification related to Order Docket #46 filed by

07/06/2010 07/08/2010 07/23/2010
08/23/2010
08/26/2010 08/31/2010 09/01/2010 09/02/2010 09/23/2010 10/01/2010

Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP re 27 Stipulated MOTION and Proposed Order re Filing Declarations in Support of Motion for Class Certification Under Seal, 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 06/29/2010)
58 RESPONSE, by Defendant Susan N. Dreyfus, to 28 MOTION to Certify Class. (Attachments: # 1 Exhibit)(Nelson, Eric) (Entered: 07/06/2010)
59 REPLY, filed by Plaintiffs CA, TF, TR, PS, TV, GB, EH, ED, LFS, SP, TO RESPONSE to 28 MOTION to Certify Class (Exstrom, Travis) (Entered: 07/08/2010)
60 ORDER Granting Plaintiff's 28 Motion to Certify Class, by Judge Thomas S. Zilly. The Court appoints Disability Rights Washington, the National Health Law Program, the National Center for Youth Law, and Perkins Coie as class counsel.(CL) (Entered: 07/23/2010)
61 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon Custodian of Records for Acumentra Health served on August 20, 2010, filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Exstrom, Travis) (Entered: 08/23/2010)
62 NOTICE of Association of Attorney by Carrie L Bashaw on behalf of Defendant Susan N. Dreyfus. (Bashaw, Carrie) (Entered: 08/26/2010)
63 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Carrie L Bashaw for Defendant Susan N. Dreyfus. (Bashaw, Carrie) (Entered: 08/31/2010)
64 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sarah Jane Coats for Defendant Susan N. Dreyfus. (Coats, Sarah) (Entered: 09/01/2010)
65 NOTICE of Association of Attorney by Catherine R Hoover on behalf of Defendant Susan N. Dreyfus. (Hoover, Catherine) (Entered: 09/02/2010)
66 DECLARATION OF SERVICE OF DEPOSITION SUBPOENA upon Charlotte Booth, Executive Director for Family Development served on 9/20/2010. (CL) (Entered: 09/24/2010)
67 STIPULATION AND PROPOSED ORDER REGARDING CASE SCHEDULE AND STATUS CONFERENCE by parties. (Bailey, Regan) (Entered: 10/01/2010)

10/25/2010 11/24/2010 12/01/2010
12/20/2010 12/21/2010 12/21/2010 02/17/2011 03/03/2011 03/03/2011

68 MINUTE ORDER Striking Trial Date and Related Dates by Judge Thomas S. Zilly, United States District Judge, re 67 Stipulation. (TF) (Entered: 10/25/2010)
69 JOINT STATUS REPORT signed by all parties estimated Trial Days: 15.. (Bailey, Regan) (Entered: 11/24/2010)
70 MINUTE ORDER by Thomas S. Zilly, United States District Judge. Having reviewed the Joint Status Report, docket no. 69 , submitted by the parties, the Court hereby sets the following dates and deadlines: Bench trial set for 9/10/2012, 39.1 mediation to be completed by 8/31/2011, Plaintiffs' expert reports ddl 10/31/2011, Defendant's expert reports ddl 11/30/2011, Discovery completed by 3/16/2012, Dispositive motions due by 3/29/2012, Discovery Motions due by 1/26/2012, Motions in Limine due by 7/26/2012, Agreed Pretrial Order due by 8/17/2012, Proposed Findings of Fact and Conclusions of Law to be submitted by 9/7/2012, by noon, Trial briefs to be submitted by 9/24/2012, Pretrial Conference set for 8/24/2012 at 02:00 PM before Judge Thomas S. Zilly. (CL) Modified text on 12/2/2010 (by adding the bench trial) (CL). (Entered: 12/02/2010)
71 APPLICATION OF ATTORNEY Erica Turcios FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV (Fee Paid) Receipt No. 0981-2279281. (Bailey, Regan) (Entered: 12/20/2010)
72 ORDER re 71 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Erica Turcios for TR, et al by William M. McCool. (No document associated with this docket entry, text only.)(DS) (Entered: 12/21/2010)
73 NOTICE of Appearance by attorney Travis A Exstrom on behalf of Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Exstrom, Travis) (Entered: 12/21/2010)
74 JOINT STATUS REPORT signed by all parties estimated Trial Days: 15.. (Rivera, Frederick) (Entered: 02/17/2011)
75 APPLICATION OF ATTORNEY Kimberly Lewis FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV (Fee Paid) Receipt No. 0981-2350644. (Bailey, Regan) (Entered: 03/03/2011)
76 ORDER re 75 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Kimberly Lewis for pltfs TR, CA, ED, EH, GB, LFS, PS, SP, TF, TV, by William M. McCool. (No document associated with this docket entry, text only.)(CL) (Entered: 03/03/2011)

03/16/2011 03/21/2011
08/24/2011 08/24/2011 08/30/2011 09/30/2011 10/27/2011 10/28/2011 10/31/2011

77 Stipulated MOTION and Joint Status Report Regarding Mediation by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Attachments: # 1 Proposed Order)(Bailey, Regan) (Entered: 03/16/2011)
78 ORDER AMENDING SCHEDULING ORDER, by Judge Thomas S. Zilly. The Court GRANTS the parties' stipulated motion to amend scheduling order, docket no. 77 . Accordingly, the Court hereby sets the following dates and deadlines: 39.1 mediation to be completed by 8/31/2011, Discovery completed by 9/17/2012, Dispositive motions due by 10/25/2012, Discovery Motions due by 7/26/2012, Motions in Limine due by 1/24/2013, Agreed Pretrial Order due by 2/20/2013, Proposed Findings of Fact and Conclusions of Law to be submitted by 3/7/2013, Trial briefs to be submitted by 2/20/2013, Bench Trial is set for 3/11/2013 before Judge Thomas S. Zilly. Pretrial Conference set for 3/1/2013 at 02:00 PM before Judge Thomas S. Zilly. (CL) (Entered: 03/21/2011)
79 Stipulated MOTION To Amend Scheduling Order and Third Joint Status Report Regarding Mediation by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Bailey, Regan) (Entered: 08/24/2011)
80 PROPOSED ORDER (Unsigned) re 79 Stipulated MOTION To Amend Scheduling Order and Third Joint Status Report Regarding Mediation. (Bailey, Regan) (Entered: 08/24/2011)
81 ORDER by Judge Thomas S. Zilly. The Court hereby sets October 31, 2011 as the date on which mediation shall be concluded in this matter. (CL) (Entered: 08/30/2011)
82 NOTICE of Appearance by attorney Leecia Welch on behalf of Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Welch, Leecia) (Entered: 09/30/2011)
83 AMENDED COMPLAINT with the Opposing Party's Written Consent against defendant(s) All Defendants, filed by PS, SP, TR, ED, CA, EH, TF, TV, LFS.(Rivera, Frederick) (Entered: 10/27/2011)
84 Stipulated MOTION To Amend Scheduling Order and Fourth Joint Status Report Regarding Mediation by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Attachments: # 1 Proposed Order) Noting Date 10/28/2011, (Bailey, Regan) (Entered: 10/28/2011)
85 ORDER AMENDING SCHEDULING ORDER, by Judge Thomas S. Zilly. The Court GRANTS the parties' 84 stipulated motion to amend scheduling order. Mediation deadline is extended to November 30, 2011. (CL) (Entered: 11/01/2011)

11/10/2011 11/30/2011 12/01/2011 12/20/2011 12/22/2011 01/24/2012 01/27/2012 02/15/2012 03/01/2012 03/01/2012 03/01/2012

86 ANSWER to 83 Amended Complaint and Affirmative Defenses by Susan N. Dreyfus, Douglas Porter.(McIlhenny, John) (Entered: 11/10/2011)
87 Stipulated MOTION to Amend Scheduling Order and Fifth Joint Status Report Regarding Mediation by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Attachments: # 1 Proposed Order) Noting Date 11/30/2011, (Kas, Susan) (Entered: 11/30/2011)
88 ORDER AMENDING SCHEDULING ORDER, by Judge Thomas S. Zilly. Mediation deadline is set for December 20, 2011. (CL) (Entered: 12/02/2011)
89 STIPULATION AND PROPOSED ORDER Regarding Mediation by parties. (McIlhenny, John) (Entered: 12/20/2011)
90 STIPULATION AND ORDER by Judge Thomas S. Zilly. Having considered the parties' 89 Stipulation, the Court hereby finds that there is good cause to extend mediation herein and the deadline to complete mediation shall be January 20, 2012. (CL) (Entered: 12/22/2011)
91 STIPULATION AND PROPOSED ORDER Regarding Mediation by parties. (McIlhenny, John) (Entered: 01/24/2012)
92 STIPULATION AND ORDER by Judge Thomas S. Zilly. Based on the parties' stipulation, docket no. 91 , the court extends the mediation ddl to February 15, 2012. (CL) (Entered: 01/27/2012)
93 JOINT STATUS REPORT signed by all parties estimated Trial Days: 20. Filed by Defendants Susan N. Dreyfus, Douglas Porter.(McIlhenny, John) (Entered: 02/15/2012)
94 APPLICATION OF ATTORNEY Erin Liotta FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV (Fee Paid) Receipt No. 0981-2729773. (Bailey, Regan) (Entered: 03/01/2012)
95 ORDER re 94 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Erin Liotta for CA, ED, EH, GB, LFS, PS, SP, TF, TR, and for TV, by William M. McCool. (No document associated with this docket entry, text only.)(DS) (Entered: 03/01/2012)
96 NOTICE of Appearance by attorney Erin Liotta on behalf of Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Liotta, Erin) (Entered: 03/01/2012)

03/01/2012

97 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Bryn Martyna for Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Liotta, Erin) (Entered: 03/01/2012)

03/01/2012

98 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Erica Turcios for Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Liotta, Erin) (Entered: 03/01/2012)

03/05/2012

99 DOCUMENT UNSEALED PER 100 ORDER DATE 3/7/12. SEALED DOCUMENT . Stipulation Re Interim Agreement and Joint Motion Amending Case Schedule by Defendants Susan N. Dreyfus, Douglas Porter re 22 Protective Order (Attachments: # 1 Proposed Order)(McIlhenny, John) Modified on 3/7/2012 (MD). (Entered: 03/05/2012)

03/07/2012

100 STIPULATION AND ORDER Regarding Stipulated Interim Agreement and Case Schedule Amendments. The trial date of March 11, 2013, and all related deadlines are STRICKEN. All discovery and further litigation activity, other than that described in the Interim Agreement, is STAYED pending further order of the Court. The Parties are DIRECTED to file, not later than June 15, 2013, a Joint Status Report. The Clerk is DIRECTED to UNSEAL the Parties Stipulation and Motion, docket no. 99. The Clerk is further DIRECTED to send a copy of this Order to all counsel of record, by Judge Thomas S. Zilly. (MD) (Entered: 03/07/2012)

03/07/2012

Set/Reset Deadlines: Joint Status Report due by 6/15/2013, (MD) (Entered: 03/07/2012)

09/07/2012

101 NOTICE of Change of Address of Attorney Patrick Gardner. Filed by Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV. (Gardner, Patrick) Modified Address on 9/10/2012 (DS). (Entered: 09/07/2012)

10/02/2012

102 Stipulated MOTION FOR INTERIM SETTLEMENT OF ATTORNEYS' FEES AND COSTS by Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV. (Attachments: # 1 Proposed Order)(Bailey, Regan) (Entered: 10/02/2012)

10/02/2012

103 MEMORANDUM filed by Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV re 102 Stipulated MOTION FOR INTERIM SETTLEMENT OF ATTORNEYS' FEES AND COSTS (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bailey, Regan) (Entered: 10/02/2012)

10/02/2012

104 DECLARATION of SUSAN FOSTER filed by Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV re 102 Stipulated MOTION FOR INTERIM SETTLEMENT OF ATTORNEYS' FEES AND COSTS (Bailey, Regan) (Entered: 10/02/2012)

10/02/2012

105 DECLARATION of JANE PERKINS filed by Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV re 102 Stipulated MOTION FOR INTERIM SETTLEMENT OF ATTORNEYS' FEES AND COSTS (Bailey, Regan) (Entered: 10/02/2012)

10/02/2012

106 DECLARATION of JOHN O'TOOLE filed by Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV re 102 Stipulated MOTION FOR INTERIM SETTLEMENT OF ATTORNEYS' FEES AND COSTS (Bailey, Regan) (Entered: 10/02/2012)

10/11/2012

107 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Regan Bailey for Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV. (Bailey, Regan) (Entered: 10/11/2012)

10/11/2012

108 NOTICE of Appearance by attorney David R Carlson on behalf of Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV. (Carlson, David) (Entered: 10/11/2012)

01/04/2013

109 NOTICE of Appearance by attorney Austin M. Rainwater on behalf of Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Rainwater, Austin) (Entered: 01/04/2013)

01/04/2013

110 Stipulated MOTION and (Proposed) Order Regarding Class Counsel by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. Noting Date 1/4/2013, (Foster, Susan) (Entered: 01/04/2013)

01/04/2013

111 WITHDRAWAL of Motion re 102 Stipulated MOTION FOR INTERIM SETTLEMENT OF ATTORNEYS' FEES AND COSTS ; by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV, Defendants Susan N. Dreyfus, Douglas Porter. (Foster, Susan) (Entered: 01/04/2013)

01/08/2013

112 STIPULATED ORDER by Judge Thomas S. Zilly. Based on the foregoing stipulated motion, ECF No. 110 , which is hereby GRANTED, the Court's July 23, 2010 Order Granting Plaintiffs' Motion for Class Certification, ECF No. 60 , is hereby modified by appointing the Young Minds Advocacy, Corp. law firm as additional class counsel. (CL) (Entered: 01/08/2013)

01/23/2013

113 APPLICATION OF ATTORNEY Wesley Sheffield FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV (Fee Paid) Receipt No. 0981-3085255. (Carlson, David) (Entered: 01/23/2013)

01/24/2013 114 ORDER re 113 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Wesley Sheffield for CA, ED, EH, LFS, PS,

SP, TF, TR, and for TV, by William M. McCool. (No document associated with this docket entry, text only.)(DS) (Entered: 01/24/2013)

06/11/2013

Set/Reset Deadlines: Pursuant to the agreement of the parties, as communicated by counsel telephonically, the deadline for the Joint Status Report required by the Order entered on March 7, 2012, docket no. 100 , is extended to July 15, 2013. (KK) (Entered: 06/11/2013)

06/27/2013

115 Stipulated MOTION and PROPOSED ORDER RE EXTENSION OF INTERIM AGREEMENT by Plaintiffs CA, ED, EH, LFS, PS, SP, TF, TR, TV. (Carlson, David) (Entered: 06/27/2013)

06/28/2013

116 STIPULATED ORDER by Judge Thomas S. Zilly. Based on the foregoing stipulated motion, ECF No. 115 , which is hereby GRANTED, the Court's March 7, 2012 Order Regarding Stipulated Interim Agreement and Case Schedule Amendments, ECF No. 100 , is hereby modified to extend the term of the parties' Interim Agreement from June 30, 2013, until the date this Court orders final approval of the parties Settlement Agreement. (CL) (Entered: 06/28/2013)

07/11/2013

Set/Reset Deadlines: Pursuant to the agreement of the parties, as communicated by counsel telephonically, the deadline for the Joint Status Report required by the Order entered on March 7, 2012, docket no. 100 , is extended to August 12, 2013. (KK) (Entered: 07/11/2013)

08/12/2013 117 JOINT STATUS REPORT signed by all parties estimated Trial Days: 10.. (McIlhenny, John) (Entered: 08/12/2013)

08/13/2013

118 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Catherine R Hoover for Defendants Susan N. Dreyfus, Douglas Porter. (Hoover, Catherine) (Entered: 08/13/2013)

08/29/2013

119 MOTION Preliminary Approval of Class Action Settlement Agreement by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Proposed Order) Noting Date 9/13/2013, (Rainwater, Austin) (Entered: 08/29/2013)

08/29/2013

120 DECLARATION of David Carlson filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 119 MOTION Preliminary Approval of Class Action Settlement Agreement (Rainwater, Austin) (Entered: 08/29/2013)

08/29/2013

121 DECLARATION of Kimberly Lewis filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 119 MOTION Preliminary Approval of Class Action Settlement Agreement (Rainwater, Austin) (Entered: 08/29/2013)

08/29/2013

122 DECLARATION of Leecia Welch filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 119 MOTION Preliminary Approval of Class Action Settlement Agreement (Rainwater, Austin) (Entered: 08/29/2013)

08/29/2013

123 DECLARATION of Patrick Gardner filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 119 MOTION Preliminary Approval of Class Action Settlement Agreement (Rainwater, Austin) (Entered: 08/29/2013)

08/29/2013

124 DECLARATION of Susan Foster filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 119 MOTION Preliminary Approval of Class Action Settlement Agreement (Rainwater, Austin) (Entered: 08/29/2013)

09/27/2013

125 ORDER by Judge Thomas S. Zilly; Pltfs' 119 unopposed motion for preliminary approval of class action settlement is GRANTED. The parties' proposed Settlement Agreement is APPROVED. A final approval hearing will be held on 12/19/2013, at 10:00 a.m. (TF) (Entered: 09/27/2013)

10/10/2013

126 MOTION for Approval of Attorneys' Fees and Costs by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Attachments: # 1 Proposed Order) Noting Date 12/13/2013, (Rainwater, Austin) (Entered: 10/10/2013)

10/10/2013

127 DECLARATION of David Carlson filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 126 MOTION for Approval of Attorneys' Fees and Costs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Rainwater, Austin) (Entered: 10/10/2013)

10/10/2013

128 DECLARATION of Leecia Welch filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 126 MOTION for Approval of Attorneys' Fees and Costs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Rainwater, Austin) (Entered: 10/10/2013)

10/10/2013

129 DECLARATION of Kimberly Lewis filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 126 MOTION for Approval of Attorneys' Fees and Costs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Rainwater, Austin) (Entered: 10/10/2013)

10/10/2013

130 DECLARATION of Susan Foster filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 126 MOTION for Approval of Attorneys' Fees and Costs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Rainwater, Austin) (Entered: 10/10/2013)

10/10/2013

131 DECLARATION of Patrick Gardner filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV re 126 MOTION for Approval of Attorneys' Fees and Costs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Rainwater, Austin) (Entered: 10/10/2013)

10/16/2013

132 PRAECIPE to attach document Proposed Order Granting Petition for Approval of Attorneys' Fees and Costs re 126 MOTION for Approval of Attorneys' Fees and Costs by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Attachments: # 1 Proposed Order)(Rainwater, Austin) (Entered: 10/16/2013)

10/17/2013

133 DECLARATION of John K. McIlhenny, Jr. filed by Defendants Kevin Quigley, Dorothy Teeter re 126 MOTION for Approval of Attorneys' Fees and Costs (McIlhenny, John) (Entered: 10/17/2013)

12/13/2013

134 MOTION Joint Motion for Final Approval of Class Action Settlement Agreement by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Attachments: # 1 Supplement Declaration, # 2 Supplement Declaration, # 3 Supplement Declaration, # 4 Supplement Declaration, # 5 Supplement Declaration, # 6 Supplement Declaration, # 7 Supplement Declaration, # 8 Supplement Declaration, # 9 Proposed Order) Noting Date 12/13/2013, (Rainwater, Austin) (Entered: 12/13/2013)

12/13/2013

135 REPLY, filed by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV, TO RESPONSE to 126 MOTION for Approval of Attorneys' Fees and Costs (Rainwater, Austin) (Entered: 12/13/2013)

12/19/2013

136 MINUTE ENTRY for proceedings held before Hon. Judge Thomas S. Zilly- Dep Clerk: Gail Glass; Pla Counsel: Susan Kas and Austin Rainwater; Def Counsel: John McIllhenny; CR: Nancy Bauer; Time of Hearing: 10:00 a.m.; Courtroom: 15206B; Motion Hearing held on 12/19/2013. The Court hears from counsel concerning the joint motion for final approval of class action settlement agreement, docket no. 134 , and the motion for attorney's fees and costs, docket no. 126 . For the reasons stated on the record, both motions are GRANTED. Separate orders will be entered.(GG) (Entered: 12/19/2013)

12/19/2013

137 ORDER by Judge Thomas S. Zilly. The parties' Joint Motion for Final Approval of Class Action Settlement Agreement, docket no. 134, is GRANTED. (See Order for complete details) (CL) (Entered: 12/20/2013)

12/19/2013

138 MINUTE ORDER by Thomas S. Zilly, United States District Judge. The court GRANTS Plaintiffs' 126 Stipulated unopposed Petition for Approval of Attorneys' Fees and Costs. (CL) (Entered: 12/20/2013)

01/30/2014 139 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Settlement hearing held on 12/19/2013 before Judge Thomas S. Zilly.

Parties have ten (10) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript contact court reporter Nancy Bauer by telephone at 206-370-8506. or by e-mail at nancy_bauer@wawd.uscourts.gov.

. Release of Transcript Restriction set for 4/30/2014, (NB) (Entered: 01/30/2014)

06/17/2014

140 STIPULATION AND PROPOSED ORDER Regarding Submission of the Implementation Plan by parties. (McIlhenny, John) (Entered: 06/17/2014)

06/17/2014

141 DECLARATION John K. McIlhenny re 140 Stipulation by Defendants Kevin Quigley, Dorothy Teeter. (McIlhenny, John) (Entered: 06/17/2014)

06/17/2014 142 DECLARATION Susan Kas re 140 Stipulation by Defendants Kevin Quigley, Dorothy Teeter. (McIlhenny, John) (Entered: 06/17/2014)

06/18/2014

143 STIPULATION AND ORDER REGARDING SUBMISSION OF THE IMPLEMENTATION PLAN ; plan extended to 8/1/14 by Judge Thomas S. Zilly. (RS) (Entered: 06/18/2014)

08/01/2014

144 Stipulated MOTION and Proposed Order Approving the Implementation Plan by Defendants Kevin Quigley, Dorothy Teeter. (Attachments: # 1 Exhibit Implementation Plan) Noting Date 8/1/2014, (McIlhenny, John) (Entered: 08/01/2014)

08/01/2014

145 DECLARATION of John K. McIlhenny Supporting Submission of the Implementation Plan for Court Approval and Motion re 144 Stipulated MOTION and Proposed Order Approving the Implementation Plan by Defendants Kevin Quigley, Dorothy Teeter. (McIlhenny, John) (Entered: 08/01/2014)

08/05/2014

146 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Laura T. Ewbank for Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Ewbank, Laura) (Entered: 08/05/2014)

08/06/2014 147 ORDER Granting 144 Stipulated Motion by Judge Thomas S. Zilly.(LMK) (Entered: 08/06/2014)

11/14/2014

148 STIPULATION AND PROPOSED ORDER REGARDING PERIODIC PAYMENT OF ATTORNEYS' FEES AND COSTS by parties re 138 Minute Order, (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Kas, Susan) (Entered: 11/14/2014)

11/17/2014 149 STATUS REPORT by Defendants Kevin Quigley, Dorothy Teeter (Nelson, Eric) (Entered: 11/17/2014)

11/19/2014

150 ORDER Regarding Periodic Payment of Attorneys' Fees and Costs re 148 Stipulation by Judge Thomas S. Zilly. (LMK) (Entered: 11/19/2014)

12/04/2014 151 STIPULATION and Proposed Order for Withdrawal of Counsel by parties (Rainwater, Austin) (Entered: 12/04/2014)

02/04/2015

152 DECLARATION of David Carlson re 151 Stipulation by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV (Rainwater, Austin) Modified on 2/4/2015; PER CHAMBERS DOCUMENT SEALED DUE TO SENSITIVE INFORMATION; ATTORNEY WILL FILE REDACTED VERSION OF DOCUMENT. (LMK). (Entered: 02/04/2015)

02/04/2015

153 DECLARATION of David Carlson re 152 Declaration (non motion), by Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV (Rainwater, Austin) (Entered: 02/04/2015)

02/05/2015

154 MINUTE ORDER by Judge Thomas S. Zilly re 151 Stipulation for Withdrawal of Counsel. The Court GRANTS leave to Attorneys Susan E. Foster, Frederick B. Rivera, Travis A. Exstrom, Austin M. Rainwater, and the firm of Perkins Coie LLP to withdraw as counsel of record for plaintiffs, effective immediately. (Notice has been turned off on ECF so Attorneys no longer receive notifications concerning this case). (LMK) (Entered: 02/05/2015)

07/06/2015

155 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Erin Liotta for Plaintiffs CA, ED, EH, GB, LFS, PS, SP, TF, TR, TV. (Liotta, Erin) (Entered: 07/06/2015)

09/10/2015 156 STIPULATION AND PROPOSED ORDER REGARDING PAYMENT OF ATTORNEYS' FEES AND COSTS FROM JULY 1, 2014

THROUGH JUNE 30, 2015 by parties re 150 Stipulation and Order (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Kas, Susan) (Entered: 09/10/2015)

09/25/2015

157 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney William G Clark for Defendants Susan N. Dreyfus, Douglas Porter, Kevin Quigley, Dorothy Teeter. (Clark, William) (Entered: 09/25/2015)

10/06/2015

158 ORDER re Payment of Attorneys' Fees and Costs for July 2014 through June 2015, Defendants shall pay $500,000 to Plaintiffs' counsel, by Judge Thomas S. Zilly. (AD) (Entered: 10/06/2015)

11/16/2015 159 STATUS REPORT by Defendants Kevin Quigley, Dorothy Teeter (Nelson, Eric) (Entered: 11/16/2015)

01/28/2016

160 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney John K McIlhenny for Defendants Kevin Quigley, Dorothy Teeter. (Nelson, Eric) (Entered: 01/28/2016)

06/27/2016

161 NOTICE of Association of Attorney by Jacqueline G Schafer on behalf of Defendants Kevin Quigley, Dorothy Teeter. (Schafer, Jacqueline) (Entered: 06/27/2016)

07/21/2016

162 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Jacqueline G Schafer for Defendants Kevin Quigley, Dorothy Teeter. (Schafer, Jacqueline) (Entered: 07/21/2016)

07/21/2016

163 NOTICE of Appearance by attorney Jennifer Smith Meyer on behalf of Defendants Kevin Quigley, Dorothy Teeter. (Meyer, Jennifer) (Entered: 07/21/2016)

09/08/2016

164 STIPULATION AND PROPOSED ORDER REGARDING PAYMENT OF ATTORNEYS' FEES AND COSTS FROM JULY 1, 2015 THROUGH JUNE 30, 2016 by parties re 150 Stipulation and Order (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Kas, Susan) (Entered: 09/08/2016)

09/15/2016

165 ORDER REGARDING PAYMENT OF ATTORNEYS' FEES AND COSTS FOR JULY 2015 THROUGH JUNE 2016 by Judge Thomas S. Zilly. Defendants shall pay $475,000.00 to Plaintiffs' counsel. Defendants have 15 days from the entry of this Order to make the payment. (PM) (Entered: 09/15/2016)

11/15/2016 166 STATUS REPORT Implementation by Defendants Kevin Quigley, Dorothy Teeter (Nelson, Eric) (Entered: 11/15/2016)

11/16/2016 167 PRAECIPE Correct Table of Contents by Defendants Kevin Quigley, Dorothy Teeter (Meyer, Jennifer) (Entered: 11/16/2016)

09/13/2017

168 STIPULATION AND PROPOSED ORDER REGARDING PAYMENT OF ATTORNEYS' FEES AND COSTS FROM JULY 1, 2016 THROUGH JUNE 30, 2017 by parties re 150 Stipulation and Order (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Kas, Susan) (Entered: 09/13/2017)

09/18/2017

169 ORDER re parties' 168 Stipulation Regarding Payment of Attorneys' Fees and Costs for July 2016 through June 2017, signed by Judge Thomas S. Zilly. (SWT) (Entered: 09/18/2017)

11/15/2017 170 STATUS REPORT by Defendants Kevin Quigley, Dorothy Teeter (Meyer, Jennifer) (Entered: 11/15/2017)

04/23/2018

171 STIPULATION Regarding Clarification to the Parties' Settlement Agreement by parties (Attachments: # 1 Exhibit Final Mediation Agreements as of April 6, 2018)(Welch, Leecia) (Entered: 04/23/2018)

09/05/2018

172 NOTICE of Change of Address/Change of Name of Attorney Patrick Gardner. Filed by Plaintiff TF. (Gardner, Patrick) Modified firm name and phone number on 9/5/2018 (DS). (Entered: 09/05/2018)

09/28/2018

173 STIPULATION AND PROPOSED ORDER REGARDING PAYMENT OF ATTORNEYS' FEES AND COSTS FROM JULY 1, 2017 THROUGH JUNE 30, 2018 by parties re 150 Stipulation and Order (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Welch, Leecia) (Entered: 09/28/2018)

10/01/2018

174 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Jennifer Smith Meyer for Defendants Kevin Quigley, Dorothy Teeter. (Meyer, Jennifer) (Entered: 10/01/2018)

10/01/2018

175 NOTICE of Appearance by attorney Angela D. Coats McCarthy on behalf of Defendants Kevin Quigley, Dorothy Teeter. (Coats McCarthy, Angela) (Entered: 10/01/2018)

10/01/2018

Attorney Rachel Anne Rappaport for Kevin Quigley, Dorothy Teeter added; per 175 Notice of Appearance. (SWT) (Entered: 10/02/2018)

10/11/2018

176 ORDER re: Payment of Attorneys' Fees and Costs for July 2017 through June 2018 re parties' 173 Stipulation, by Judge Thomas S. Zilly. (SWT) (Entered: 10/12/2018)

11/15/2018 177 STATUS REPORT by Defendants Kevin Quigley, Dorothy Teeter (Coats McCarthy, Angela) (Entered: 11/15/2018)

12/20/2018

178 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Rachel Anne Rappaport for Defendants Kevin Quigley, Dorothy Teeter. (Rappaport, Rachel) (Entered: 12/20/2018)

07/01/2019

179 STIPULATION Regarding Amended Clarifications to the Parties' Settlement Agreement by parties (Attachments: # 1 Exhibit A)(Coats McCarthy, Angela) (Entered: 07/01/2019)

09/06/2019

180 STIPULATION AND PROPOSED ORDER REGARDING PAYMENT OF ATTORNEYS' FEES AND COSTS FROM JULY 1, 2018 THROUGH JUNE 30, 2019 by parties re 150 Stipulation and Order (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Welch, Leecia) (Entered: 09/06/2019)

09/12/2019

181 ORDER regarding payment of attorneys' fees and costs for July 2018 through June 2019 re parties' 180 Stipulation. Signed by Judge Thomas S. Zilly. (SWT) (Entered: 09/12/2019)

 
 http://www.youthlaw.org/press_room/press_releases/2012_press...

State and Children's Advocacy Organizations Reach Interim Agreement in WA Lawsuit over Children's Mental Health

FOR IMMEDIATE RELEASE Contacts:

Thomas Shapley

Tracy Schroth

360-902-8007

National Center for Youth Law

thomas.shapley(at)dshs.wa.gov 510-835-8098, ext. 3013

Jim Stevenson

tschroth(at)youthlaw.org

360-725-1915

Vincent Eng

jim.stevenson(at)hca.wa.gov National Health Law Program

703-981-6636

Regan Bailey

media(at)healthlaw.org

Disability Rights Washington

206-324-1521 ext. 236

reganb(at)dr-wa.org

March 8, 2012 -- Two state agencies and several advocacy groups have reached an interim agreement to develop a framework for reforms in the Washington state mental health system for children and youth enrolled in Medicaid. The agreement temporarily suspends litigation in a class action lawsuit ﬁled against the Department of Social and Health Services and the Health Care Authority.
The interim agreement was reached after 13 months of mediation and provides for planning and infrastructure development to improve services for children and youth with signiﬁcant mental health needs and their families.
T.R. et al v. Dreyfus was ﬁled in November 2009 alleging deﬁciencies in access to intensive community-based mental health services. The parties began mediation in January 2011 to address the claims in the suit. Although the agreement does not settle the case, U.S. District Court Judge Thomas Zilly has suspended litigation activities in light of the agreement, so that the state and plaintiffs can collaborate on system reforms. The ultimate goal is to reduce psychiatric hospitalizations, keep kids

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http://www.youthlaw.org/press_room/press_releases/2012_press...
out of foster care and reduce juvenile justice interventions for those children and youth most affected by mental illness.
"Families, youth, legislators, providers and the state have tremendous interest in and support for improving the system of care for children, youth, and their families," said DSHS Secretary Robin Arnold-Williams. "This interim agreement allows the state to move that agenda forward while addressing the speciﬁc needs of class members. The interim agreement focuses existing resources on planning improvements to the system and requires no new funding."
Arnold-Williams called the agreement, "a model for how states and advocacy organizations can work together to promote improved services in a challenging ﬁscal environment."
"We have a tremendous opportunity with kids with mental health needs because, by getting in early and providing intensive community-based services, we can really help them to turn their lives around. Many kids who experience signiﬁcant problems, with the right services, overcome them and live full and productive lives. This Interim Agreement takes us closer to making those services a reality in the future," said Regan Bailey, Legal Director for Disability Rights Washington.
According to Susan Foster and Frederic Rivera, attorneys with Perkins Coie, the interim agreement is an important step toward resolving the claims asserted in the lawsuit. "We commend the state for taking the claims seriously and working hard to develop solutions that include meaningful changes to the mental health service delivery system offered to kids in Washington."
"The commitments in this agreement will help move Washington's mental health system forward by employing practices that promote partnership with families and serve children and youth in their homes and communities," added Kim Lewis, an attorney with the National Health Law Program.
"This agreement reﬂects a tremendous amount of commitment and hard work on both sides," said Patrick Gardner, Deputy Director of the National Center for Youth Law. "It is a very critical ﬁrst step in getting our clients the care and support they need. The framework to be developed will greatly improve how Washington provides intensive community-based mental health services to children."
Plaintiffs are represented by Disability Rights Washington, the National Center for Youth Law, Perkins Coie, LLP and the National Health Law Program.
The agreement ends June 30, 2013. Prior to that date, the parties will mediate additional steps necessary to ultimately resolve the lawsuit.
To speak with plaintiffs, please contact Tracy Schroth or Regan Bailey (contact information above).
Click to download:
• Interim Agreement • Court Order Granting Interim Agreement

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© 2013 National Center for Youth Law. All rights reserved.

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