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1 MELINDA BIRD (SBN 102236) DEBORAH DORFMAN (CRLSA No. 801060)
2 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd., Ste. 902
3 Los Angeles, CA 90010 Telephone: (213) 427-8747
4 Facsimile: (213) 427-8767 Melinda. bird@disabilityrightsca.org
5 Attorneys for Named Plaintiffs and the Proposed Class
6 Additional Attorneys for Named Plaintiffs and the Proposed Class on Signature Page
7 STEPHEN P. BERZON (SBN 46540)
8 EVE H. CERVANTEZ (SBN 164709) STACEY M. LEYTON (SBN 203827)
9 Altshuler Berzon LLP 177 Post Street, Suite 300
10 San Francisco, California 94108 Telephone: (415) 421-7151
11 Facsimile: (415) 362-8064 sleyton@altshulerberzon.com
12 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU
13 Local 521, SEIU California State Council, UDW, and CUHW

14

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO/OAKLAND DIVISION

16 VL. by and through his guardian ad litem Nancy

Case No. CV 09-04668 JSW

17

Lagahid, DAVID OSTER, WILLIE BEATRICE
SHEPPARD, and c.R. by and through his guardian ad

18

litem Michelle Rivera, and DOTTY JONES, on behalf of AMENDED CLASS ACTION

themselves and a class of those similarly situated;

COMPLAINT FOR INJUNCTIVE

19

SERVICE EMPLOYEES INTERNATIONAL UNION - AND DECLARATORY RELIEF UNITED HEALTHCARE WORKERS WEST, SERVICE

20

EMPLOYEES INTERNATIONAL UNION - UNITED LONG-TERM CARE WORKERS, SERVICE

21

EMPLOYEES INTERNATIONAL UNION LOCAL 521, SERVICE EMPLOYEES INTERNATIONAL UNION

22

STATE COUNCIL, UNITED DOMESTIC WORKERS OF AMERICA, AFSCME, LOCAL 3930, AFL-CIO, and

23 CALIFORNIA UNITED HEALTHCARE WORKERS,

24

Plaintiffs, v.

25 JOHN A. WAGNER, Director of the California

26

Department of Social Services; DAVID MAXWELLJOLLY, Director of the California Department of Health

27

Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES; and CALIFORNIA

28 DEPARTMENT OF SOCIAL SERVICES,

Defendants.

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1

INTRODUCTION

2

1. This civil rights class action seeks declaratory and injunctive relief to prevent over

3 one hundred thousand low-income seniors and individuals with disabilities from losing critical

4 services that enable them to remain safely in their homes.

5

2.

California's In-Home Supportive Services ("IHSS") program presently provides

6 crucial in-home assistance with certain basic tasks of daily living - for example, bathing, dressing,

7 meal preparation and clean up, eating, bowel and bladder care, and taking necessary medications -

8 so that elderly individuals and persons with disabilities can avoid unnecessary and costly

9 institutionalization. IHSS recipients qualify for these services because it has been determined that

10 they cannot safely remain in their homes without them.

11

3. However, ABX4 4, which was passed on an emergency basis for purely budgetary

12 reasons, would render tens of thousands of current IHSS recipients ineligible for all IHSS services

13 based on a "Functional Index Score," first devised in 1988, that was not designed to measure

14 individual need or to determine eligibility, has never been used for such purposes, and is not a

15 reasonable measure of need or eligibility. ABX44 (Stats. 2009, c. 4, §§ 29,30) (Part II)

16 (amending Cal. Welf. & Inst. Code §§ 12309 & 12309.2). ABX4 4 would also deprive tens of

17 thousands of additional IHSS recipients of critical IHSS domestic and related services that have

18 previously been found necessary to permit these individuals to remain safely in their homes based

19 on a numerical "rank" that was not designed to determine eligibility, has never been used for such

20 purpose, and is not a reasonable measure of need or eligibility. These statutory changes are

21 scheduled to go into effect on November 1, 2009.

22

4. Unless enjoined, these provisions of ABX4 4 will cause immediate and irreparable

23 harm by depriving members of the plaintiff class of services that are essential to their ability to

24 remain safely in their own homes. This will place members of the plaintiff class at imminent and

25 serious risk of harm to their health and safety, as well as of unnecessary and unwanted out-of-home

26 placement, including institutionalization.

27

5. The statutory provisions at issue contravene federal law in a number of ways.

28 Initially, ABX4 4's changes to state law violate the Americans with Disabilities Act of 1990,42
1
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1 US.C. § 12312 ("ADA"), and Section 504 of the Rehabilitation Act of 1973,29 US.C. § 794

2 ("Section 504"), by placing IHSS recipients at imminent risk of unnecessary and unwanted out-of-

3 home and out-of-community placement, including in institutions such as nursing homes, and by

4 discriminating on the basis of type of disability.

5

6. ABX44 also violates the requirements of Title XIX of the Social Security Act, 42

6 US.C. § 1396a ("the Medicaid Act"): that States provide (1) comparable Medicaid services to

7 individuals with similar needs; (2) services that are sufficient in amount, duration, and scope to

8 reasonably achieve their purposes; (3) services according to reasonable standards; and (4)

9 necessary services to correct or ameliorate children's conditions. ABX4 4 further violates the

10 requirement imposed by the Medicaid Maintenance of Effort Clause of the American Recovery and

11 Reinvestment Act ("ARRA") by restricting IHSS eligibility standards.

12

7. Finally, Defendants' failure to provide adequate notice and opportunity for hearing

13 prior to depriving members of the plaintiff class of critical IHSS services violates the federal

14 constitutional guarantee of procedural due process and the Medicaid Act's notice and hearing

15 provlSlons.

16

JURISDICTION

17

8. This action for declaratory and injunctive relief arises under the Due Process Clause

18 of the Fourteenth Amendment to the US. Constitution; Title XIX of the Social Security Act, 42

19 US.C. § 1396a et seq. ("the Medicaid Act"); Title II of the Americans With Disabilities Act of

20 1990,42 US.C. § 12132 ("ADA"); Section 504 of the Rehabilitation Act of 1973,29 US.C. § 794

21 ("Section 504"); 42 US.C. § 1983; and the Supremacy Clause, US. Const., Art. VI, cl. 2.

22

9. Jurisdiction is based on 28 US.C. §§ 1331 and 1343. Plaintiffs' claims for

23 declaratory and injunctive relief are authorized under 28 US.C. §§ 2201 and 2202. At all times

24 relevant to this action, Defendants have acted under color of state law.

25

VENUE

26

10. Venue is proper in the Northern District of California pursuant to 28 US.C.

27 § 1391(b), because the Defendants operate and perform their official duties therein and thus reside

28 therein for purposes of venue, and because a substantial part of the events and omissions giving
2
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1 rise to the claims herein occurred in the Northern District of California. Individual named plaintiff

2 VL. lives and receives services in San Francisco, which is in the Northern District of California.

3 Individual named plaintiff Willie Beatrice Sheppard lives and receives services in Emeryville,

4 which is in Alameda County, in the Northern District of California. Individual named plaintiff

5 c.R. lives and receives services in Gilroy, which is in Santa Clara County, in the Northern District

6 of California. Members of the plaintiff class reside and receive IHSS services in the Northern

7 District of California. Organizational Plaintiff Service Employees International Union-United

8 Healthcare Workers West ("UHW") members provide IHSS services in Marin and Contra Costa

9 Counties, in the Northern District of California. Organizational Plaintiff SEIU United Long-Term

10 Care Workers ("ULTCW") members provide IHSS services in Mendocino, Sonoma, Napa,

11 Alameda, Santa Cruz, and Monterey Counties, in the Northern District of California.

12 Organizational Plaintiff SEIU Local 521 ("Local 521") members provide IHSS services in Santa

13 Clara and San Mateo County, in the Northern District of California. Organizational plaintiff

14 California United Homecare Workers ("CUHW") members provide IHSS services in Del Norte,

15 Humboldt, and Lake Counties, in the Northern District of California.

16

INTRADISTRICT ASSIGNMENT

17

11. Pursuant to Civil L. R. 3-2(c) this action should be assigned to the San Francisco or

18 Oakland Division of the Northern District of California, because a substantial part of the events and

19 omissions giving rise to the claims herein occurred in counties in the San Francisco/Oakland

20 Division. Individual named plaintiffVL. lives in San Francisco. Individual named plaintiff Willie

21 Beatrice Sheppard lives in Emeryville, which is located in Alameda County. Many members of the

22 plaintiff class are residents of Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin,

23 Mendocino, Napa, San Francisco, San Mateo, and Sonoma Counties. Organizational Plaintiff

24 UHW members provide IHSS services in Marin and Contra Costa Counties. Organizational

25 PlaintiffULTCW members provide IHSS services in Alameda, Mendocino, Sonoma, and Napa

26 Counties. Organizational Plaintiff Local 521 members provide IHSS services in San Mateo

27 County. Organizational Plaintiff CUHW members provide IHSS services in Del Norte, Humboldt,

28 and Lake Counties.
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1

PARTIES

2

Individual Plaintiffs

3

12. Named PaintiffVL., represented here by his guardian ad litem Nancy Lagahid, is a

4 14-year-old boy who has Charcot-Marie-Tooth Disease, a form of muscular dystrophy. Because of

5 his disabilities and medical condition, plaintiff VL. is eligible for California's Medicaid program

6 ("Medi-Cal") and receives IHSS services. Pursuant to ABX4 4, VL. will lose eligibility for all

7 IHSS services because his Functional Index Score is under 2.0.

8

13. Named Plaintiff David Oster is a 33-year-old man who has autism and bi-polar

9 disorder. Because of his disabilities and medical conditions, Mr. Oster is Medi-Cal eligible and

10 receives IHSS services. Pursuant to ABX4 4, Mr. Oster will lose eligibility for all IHSS services

11 because his Functional Index Score is under 2.0.

12

14. Named Plaintiff Willie Beatrice Sheppard is an 81-year-old woman whose mobility

13 is impaired as result of a stroke and arthritis. Because of her disabilities, medical conditions, and

14 age, Ms. Sheppard is Medi-Cal eligible and receives IHSS. Ms. Sheppard has never been informed

15 what her Functional Index Score is and has also never been informed what her functional ranks are

16 for domestic and related services. She is concerned that she may lose eligibility for IHSS

17 altogether if her Functional Index score is too low (below 2.0) or that she may lose some of her

18 domestic and related services if her functional ranks for these services are below 4.

19

15. Named Plaintiff c.R., represented here by his guardian ad litem Michelle Rivera, is

20 a five-year-old boy who has a developmental disability due to chromosome deletion. Because of

21 his disabilities and medical condition, c.R. is Medi-Cal eligible and receives IHSS services.

22 Pursuant to ABX4 4, c.R. will lose eligibility for all IHSS services because his Functional Index

23 Score is under 2.0.

24

16. Named Plaintiff Dotty Jones is a 51-year-old woman who has AIDS and

25 neuropathy. Because her disabilities and medical condition, Ms. Jones is Medi-Cal eligible and

26 receives IHSS services. Pursuant to ABX4 4, Ms. Jones will lose IHSS services for meal

27 preparation and clean-up and for housekeeping.

28
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1

Organizational Plaintiffs

2

17. PlaintiffUHW is an unincorporated association with members that include

3 approximately 55,000 IHSS providers in 11 counties. Some members provide services for their

4 minor children. PlaintiffUHW is an affiliate of the Service Employees International Union

5 ("SEIU") and for years has been an advocate for increased access to and quality ofIHSS services.

6 UHW brings this suit on behalf of its members who will be injured if IHS S recipients (including

7 minor children of members) lose eligibility and services, who would have standing to sue in their

8 own right, and whose personal participation in this litigation is not necessary.

9

18. Plaintiff ULTCW is an unincorporated association with members that include

10 approximately 175,000 IHSS providers in 10 counties. Some members provide services for their

11 minor children. ULTCW has long been an advocate for increased access to and quality ofIHSS

12 services. ULTCW brings this suit on behalf of its members who will be injured if IHS S recipients

13 (including minor children of members) lose eligibility and services, who would have standing to

14 sue in their own right, and whose personal participation in this litigation is not necessary.

15

19. Plaintiff Local 521 is an unincorporated association with members that include

16 approximately 15,000 IHSS providers. Some members provide services for their minor children.

17 Local 521, through its predecessor unions, has long been an advocate for increased access to and

18 quality ofIHSS services. Local 521 brings this suit on behalf of its members who will be injured if

19 IHS S recipients (including minor children of members) lose eligibility and services, who would

20 have standing to sue in their own right, and whose personal participation in this litigation is not

21 necessary.

22

20. Plaintiff SEIU California State Council ("SEIU State Council") is a state-wide

23 affiliate of SEIU More than 20 local unions representing over 700,000 workers and retirees

24 belong to the SEIU State Council. The SEIU State Council advocates for the interests of its

25 affiliated local unions and their members before legislative bodies, regulatory agencies, and the

26 courts, including by advocating for increased access to and quality ofIHSS services. The SEIU

27 State Council brings this suit on behalf of its affiliate local unions and the members of its affiliates,

28
5
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1 who would have standing to sue in their own right and whose personal participation in this

2 litigation is not necessary.

3

21. United Domestic Workers of America, AFSCME, Local 3930, AFL-CIO ("UDW")

4 is a local union affiliated with the American Federation of State, County and Municipal Employees

5 ("AFSCME"). UDW represents approximately 55,000 IHSS providers in 11 counties throughout

6 California. Some of these members provide services for their minor children. UDW has for years

7 been an advocate for increased access to and quality ofIHSS services. UDW brings this suit on

8 behalf of its members who will be injured if IHS S recipients (including minor children of

9 members) lose eligibility and services, who would have standing to sue in their own right, and

10 whose personal participation in this litigation is not necessary.

11

22. Plaintiff CUHW is an unincorporated association with members that include

12 approximately 18,000 IHSS providers in 18 counties. Some members provide services to their

13 minor children. CUHW is jointly affiliated with SEIU and AFSCME, and is a member of the

14 SEIU State Council. Through the SEIU State Council, CUHW has been an advocate for increased

15 access to and quality of IHS S services. CUHW brings this suit on behalf of its members who will

16 be injured ifIHSS recipients (including minor children of members) lose eligibility and services,

17 who would have standing to sue in their own right, and whose personal participation in this

18 litigation is not necessary.

19

Defendants

20

23. Defendant California Department of Health Care Services ("DHCS") is a state

21 agency that receives federal funds and is the single state agency responsible for administering the

22 federal Medicaid program in California ("Medi-Cal"). Defendant DHCS is sued under the Third

23 Claim for Relief (ADA) and the Fourth Claim for Relief (Section 504).

24

24. Defendant David Maxwell-Jolly is the Director ofDHCS, a state agency that

25 receives federal funds. Defendant Maxwell-Jolly is a public agency director responsible for

26 operation of a public entity, pursuant to 42 U.S.C. §§ 12131(1)(A) & (B). As the Director of

27 DHCS, Defendant Maxwell-Jolly is responsible for oversight, supervision and control of the

28 functions and programs vested in the DHCS, including the Medi-Cal program, and has the
6
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1 responsibility for ensuring that the Medi-Cal program is implemented and administered consistent

2 with the requirements of federal Medicaid law. Defendant Maxwell-Jolly is sued in his official

3 capacity under the First Claim for Relief (Fourteenth Amendment to the United States

4 Constitution-Procedural Due Process), Second Claim for Relief (Medicaid- Right to Fair Hearing),

5 Fifth Claim for Relief (Medicaid-Comparability Requirement), Sixth Claim for Relief (Medicaid-

6 Sufficiency Requirement), Seventh Claim for Relief (Medicaid-Reasonable Standards

7 Requirement), Eighth Claim for Relief (Medicaid-Early and Periodic Screening, Diagnostic and

8 Treatment Services), and Ninth Claim for Relief (Medicaid-ARRA).

9

25. Defendant California Department of Social Services ("CDSS") is a state agency that

10 receives federal funds and is responsible for the overall implementation and supervision of the

11 administration of the IHSS programs by the counties. Defendant CDSS is sued under the Third

12 Claim for Relief (ADA) and the Fourth Claim for Relief (Section 504).

13

26. Defendant John Wagner is the Director ofCDSS, a state agency that receives

14 federal funds. Defendant Wagner is a public agency director responsible for the operation of a

15 public entity pursuant to 42 U.S.C. §§ 12131(1)(A) & (B). Defendant Wagner is sued in his

16 official capacity under the First Claim for Relief (Fourteenth Amendment to the United States

17 Constitution-Procedural Due Process), Second Claim for Relief (Medicaid-Right to Fair Hearing),

18 Fifth Claim for Relief (Medicaid-Comparability Requirement), Sixth Claim for Relief (Medicaid-

19 Sufficiency Requirement), Seventh Claim for Relief (Medicaid-Reasonable Standards

20 Requirement), Eighth Claim for Relief (Medicaid-Early & Periodic Screening, Diagnostic and

21 Treatment Services), and Ninth Claim for Relief (Medicaid-ARRA).

22

FACTUAL ALLEGATIONS

23

A. Medi-Cal and the California IHSS Program

24

27. The purpose of the IHSS program is "to enable the aged, blind or disabled poor to

25 avoid institutionalization by remaining in their homes with proper supportive services." Cal. Welf.

26 & Inst. Code § 12300(a).

27

28. Persons eligible for this program must be aged (65 or over), blind, or disabled, and

28 must also be poor under standards of the federal Supplemental Security Income or State
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1 Supplemental Payment Program. Cal. Welf. & Inst. Code §§ 12051, 12052, 14051; CDSS Manual

2 of Policies and Procedures ("Manual" or "MPP") §§ 30-755.111-.114.

3

29. The IHSS program provides assistance with the following: (1) domestic services;

4 (2) related services (meal preparation and clean-up, restaurant meal allowance, laundry, food and

5 other shopping); (3) personal care services (bowel and bladder care, respiration, feeding, routine

6 bed baths, bathing, oral hygiene and grooming, dressing, repositioning and rubbing skin including

7 range of motion exercises, transfers, care and assistance with prosthetic devices and self-

8 administration of medication, routine menstrual care, skin care, and ambulation); (4) travel to

9 medical appointments; (5) yard hazard abatement; (6) protective supervision (monitoring of

10 individuals with mental impairments to ensure their safety); (7) teaching and demonstration

11 services; and (8) paramedical services (services that are prescribed by a doctor and require training,

12 such as injections, colostomy irrigation, catheter insertion/care, suctioning, G and NG tube feeding,

13 and ventilator and oxygen care). Cal. Welf. & Inst. Code §§ 12300(b) & (c); 14132.95(d)(I), (2);

14 14132.951(c).

15

30. Most IHSS services are provided through California's Medicaid program ("Medi-

16 Cal"). Medicaid is a joint federal and state medical assistance program for certain groups of low-

17 income people, including children. See 42 U.S.C. §§ 1396-1396v. California has elected to

18 participate in the Medicaid program, and so must comply with the requirements of the federal

19 Medicaid Act and its implementing regulations.

20

31. The purpose of Medicaid is to furnish, as far as practicable, "medical assistance on

21 behalf of ... aged, blind or disabled individuals, whose income and resources are insufficient to

22 meet the costs of necessary medical services" and "to help such families and individuals to attain or

23 retain capability for independence or self-care ...." 42 U.S.c. § 1396.

24

32. Participating States must designate a "single state agency" to administer the

25 Medicaid program. 42 U.S.c. § 1396a(a)(5). In California, the single state agency is DHCS.

26

33. Participating States are reimbursed by the federal government for a portion of the

27 cost of providing Medicaid benefits. See 42 U.S.C. § 1396b. The remaining funding for the IHSS

28 program comes from the State and from counties.
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1

1. Eligibility for IHSS Services

2

34. Counties, under the direction of Defendant CDSS, determine recipients' eligibility

3 for IHSS services and the number of hours authorized for any services based on statewide statutes

4 and regulations. Cal. Welf. & Inst. Code §§ 12300(g), 14132.95(f), 14132.951(b) & (e).

5

35. Individuals are eligible for IHSS services only if they are "unable to perform the

6 services themselves and ... cannot safely remain in their homes... unless these services are

7 provided." Cal. Welf. & Inst. Code § 12300(a); MPP §§ 30-761.13, 30-763.112.

8

36. The assessment of eligibility for IHSS services begins with county social workers

9 "collecting and evaluating information ... [which] includes but is not limited to, all of the

10 following: (A) The recipient's living environment. (B) Alternative resources. (C) The recipient's

11 functional abilities." Cal. Welf. & Inst. Code § 12309(b).

12

37. Social workers assess recipients' level of need through a variety of methods,

13 including observing the recipient and the recipient's living environment, asking the client

14 questions, and reviewing documentation, including diagnosis and functional indications from the

15 recipient's physician. MPP § 30-761.26.

16

38. Based on this information, social workers determine the tasks that recipients are

17 unable to safely perform by themselves, and the minimum number of hours necessary for an IHSS

18 provider to assist or to undertake those tasks for them. MPP § 30-763.2.

19

39. Social workers are trained that providers should not do things for recipients that the

20 recipients could do for themselves, because this results in further loss of independence for the

21 recipient and may actually further mental or physical deterioration.

22

40. When a new recipient begins receiving IHSS services, the recipient receives a

23 Notice of Action ("NOA") setting forth the hours authorized for each service on a weekly or

24 monthly basis. Cal. Welf. & Inst. Code § 12300.2; MPP § 30-763.81.

25

41. Recipients are reassessed for eligibility for IHSS services on an annual basis

26 through in-person social worker reassessment. Recipients are notified of any change in hours

27 authorized in an NOA. Cal. Welf. & Inst. Code § 12300.2; MPP §§ 30-761.212, 30-763.81.

28

42. Counties are also required to reassess recipients any time the recipient notifies the

9

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1 county of a need to adjust the supportive services hours authorized, or when there are other

2 indications or expectations of a change in circumstances affecting the recipient's need for

3 supportive services. Cal. Welf. & Inst. Code § 12301.1(d).

4

43. As of the date this complaint is being filed, if a recipient disagrees with the number

5 of authorized hours set forth in the NOA, he or she may file an administrative appeal. Cal. Welf. &

6 Inst. Code § 12301.5.

7

2. Assignment of Functional Ranks

8

44. As one part of their overall assessment, social workers assign a functional rank to

9 each of fourteen "activities of daily living and instrumental activities of daily living" ("ADLs") by

10 evaluating the combined "effect of the recipient's physical, cognitive, and emotional impairment"

11 on the recipient's performance of the tasks associated with those ADLs. Cal. Welf. & Inst. Code §

12 12309(c); MPP § 30-756.1.

13

45. Recipients are ranked on eleven physical tasks and three mental functions. The

14 physical tasks are: housework; laundry; shopping and errands; meal preparation and cleanup;

15 mobility inside; bathing and grooming; dressing; bowel, bladder, and menstrual care; transfer;

16 eating; and respiration. Of these, housework, laundry, shopping and errands, and meal preparation

17 and cleanup correspond to so-called domestic or related services, and the remainder are referred to

18 in state regulations as "personal care" services. MPP § 30-756.2(a)-(k). Social workers also rank

19 three mental functions of recipients: memory, orientation, and judgment. MPP § 30-756.372.

20

46. The IHSS ranking scale includes:

21

(1) Rank one. A recipient's functioning shall be classified as rank one ifhis or her

22

functioning is independent, and he or she is able to perform the function without human assistance, although the recipient may have difficulty in performing the

23

function, but the completion of the function, with or without a device or mobility

aid, poses no substantial risk to his or her safety.

24

(2) Rank two. A recipient's functioning shall be classified as rank two ifhe or she is

25

able to perform a function, but needs verbal assistance, such as reminding, guidance,

26

or encouragement.

27

(3) Rank three. A recipient's functioning shall be classified as rank three ifhe or she

can perform the function with some human assistance, including, but not limited to,

28

direct physical assistance from a provider.

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1

(4) Rank four. A recipient's functioning shall be classified as rank four ifhe or she

can perform a function, but only with substantial human assistance. 2

3

(5) Rank five. A recipient's functioning shall be classified as rank five if he or she

cannot perform the function, with or without human assistance.

4

5 Cal. Welf. & Inst. Code § I2309(d)(1)-(5).

6

47. These ranks are further defined and explained, with specific descriptions, examples,

7 and sample observations for what constitutes a rank of 1,2, 3, 4, or 5, for each of the 14 ADLs, in

8 the Annotated Assessment Criteria, revised Attachment B to All-County Letter ("ACL") 06-34

9 (April 27, 2007).

10

48. Although social workers rank most ADLs on a scale of 1-5, there are certain

11 exceptions: laundry is ranked only 1, 4, or 5; shopping is ranked only 1, 3, or 5; respiration is

12 ranked only 1 or 5; and the three categories of mental functioning (memory, orientation, and

13 judgment) are ranked either 1, 2, or 5.

14

49. There are no functional ranks assigned to certain tasks for which IHSS hours may be

15 authorized, such as repositioning and rubbing skin, care and assistance with prosthetic devices, and

16 assistance with self-administration of medication. MPP § 30-757.I4(g)(i).

17

50. A recipient must have a functional rank of at least 2 with respect to any ADL to be

18 eligible for the corresponding IHSS service. MPP § 30-763.1. Otherwise, before the enactment of

19 ABX4 4, the functional ranks have not had any relationship to eligibility for IHSS.

20

3. Hourly Task Guidelines

21

51. CDSS has established "statewide hourly task guidelines and instructions to provide

22 counties with a standard tool for consistently and accurately assessing service needs and

23 authorizing service hours to meet those needs." Cal. Welf. & Inst. Code § I2301.2(a)(I).

24

52. The applicable regulations specify the standard time ranges required for each IHSS

25 task and set forth criteria that are relevant to when an individual's needs would fall outside this

26 range. Cal. Welf. & Inst. Code § I2301.2(a)(2); MPP § 30-757.

27

53. Counties are required to deviate from the hourly task guideline amount if a

28 recipient's needs fall outside this standard range, and in such cases counties must document the
11
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1 need for that service level. Cal. Welf. & Inst. Code § 12301.2(c). There are multiple reasons why

2 a recipient's need for and authorization for IHSS hours might differ from the hourly task

3 guidelines, as set forth in the Manual. MPP § 30-757.1.

4

54. For every service with hourly task guidelines, the standard time range is so broad

5 that it overlaps for functional ranks 2 through 5. For example, in meal preparation, the standard

6 time range for functional rank 2 is 3.02-7.00 hours per week, rank 3 is 3.5-7.00 hours per week,

7 rank 4 is 5.25-7.00 hours per week, and rank 5 is 7 hours per week. MPP § 30-757. 131(a). A

8 recipient may thus rank either 2, 3, or 4 in meal preparation and still receive 5-7 hours per week for

9 this service without deviating from the standard hourly task guideline.

10

55. Some services have limitations in hours that are not related to functional rank at all:

11 domestic services are limited to six hours per month; laundry services are limited to one hour per

12 week (or 1. 5 hours per week iflaundry facilities are not available on the premises), and shopping

13 and other errands are limited to 1.5 hours per week. MPP § 30-757.11(k)(I), .134(c) & (d),

14 .135(b)(i).

15

56. Social workers do not use the functional ranks or the hourly task guidelines to

16 determine in the first instance whether a recipient is eligible for IHSS services, or the number of

17 hours to authorize for each service. Instead, social workers use the functional ranks and hourly

18 task guidelines to double check their individualized assessment of services needed, and then

19 document any case in which authorized services do not match the hourly task guidelines.

20

57. If a social worker finds that an individual needs more than the standard amount of

21 hours for a service, that does not affect the functional rank.

22

58. After a county determines the number of hours required for each needed service, it

23 must adjust those hours downward if the recipient shares the need with someone else in the

24 household or if some other agency or person provides the service without charge. MPP §§ 30-

25 763.3,.4, .6. The number of hours authorized for each needed IHSS service is the result of that

26 adjustment process. MPP § 30-763.7.

27

59. The maximum amount ofIHSS services that a recipient is allowed to receive is 283

28 hours per month if the person is "severely disabled" or 195 hours per month if the person is not
12
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1 severely disabled. Welf. & Inst. Code §§ 12303.4(a) & (b), 14132.95(g), 14132.951(b).

2

B. ABX44

3

60. On July 28,2009, the Governor of California signed into law ABX4 4, which was

4 enacted as part of the Fourth Extraordinary Legislative Session. ABX44 amended California

5 Welfare and Institutions Code Sections 12309(e) and 12309.2 ("Sections 12309(e) and 12309.2")

6 to eliminate crucial IHSS services to over one hundred thousand recipients.

7

1. Loss of Eligibility For All IHSS Services

8

61. Under Section 12309.2 as amended by ABX4 4, IHSS recipients with composite

9 functional index scores ("FI Scores") of below 2.0 are no longer eligible for any IHSS services.

10

62. The FI Score was originally designed in the mid-1980's as part of a "uniformity

11 system" for quality control and comparison purposes among counties (not among individuals).

12 ACL 88-118 (Sept. 6, 1988), Question 14.

13

63. CDSS has tested the FI Score, and determined that it is not meaningful.

14

64. Before the enactment of ABX4 4, the counties administering the IHSS program did

15 not utilize the FI Score for any purpose, including quality control. Before the enactment of ABX4

16 4, most county social workers were not even aware of the FI Scores of individual IHS S recipients.

17

65. The FI Score was not designed, and has never been used in the past, to determine

18 eligibility or need. The FI Score was not designed, and has never been used in the past, to predict

19 the service hours that any individual recipient should receive. ACL 88-118, Question 13.

20

66. Before the enactment of ABX4 4, IHSS recipients were not notified of their FI

21 Score. The FI Score did not appear on the NOAs that recipients receive upon assessment or

22 reassessment.

23

67. The FI Score is a number between 1.00 and 5.00 calculated by the Case

24 Management and Payrolling System ("CMIPS") for each IHSS recipient. ACL 88-118, Question

25 7. The formula for calculating the FI Score, which has not changed since 1988, involves

26 calculating a weighted average of the functional rankings for each of the 11 physical task ADLs.

27 ACL 88-118, Questions 9, 10; Draft ACL at 2. In general, these weights were determined by

28 taking the average (mean) number of hours assigned for these tasks by counties in 1988 and
13
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1 determining the proportion of time each task represented with respect to the total aggregate hours

2 allocated for IHSS services. ACL 88-118, Question 10.

3

68. The composite FI Score is not an accurate or reliable measure of need for IHSS

4 services because it was not designed to, and does not, provide information about the likelihood that

5 any individual IHSS recipient is at risk of physical or mental injury, and/or out-of-home placement

6 or institutionalization, in the absence ofIHSS services.

7

69. The FI Score is a poor measure of need because it does not allow for individual

8 assessment of need based on individual circumstances, as set forth in the succeeding paragraphs.

9

70. The FI Score measures the weighted average of 11 functional ranks, and does not

10 measure whether any particular services are critical to any particular individual. Thus, the FI

11 Scores of recipients who only need a few of the 11 services measured will be low, even if the need

12 for those few services is critical.

13

71. The FI Score measures the average of 11 functional ranks, weighted based on the

14 number of hours authorized by counties to those tasks in 1988. Counties' assessment of hours may

15 not have been uniform or accurate in 1988. The population of individuals receiving IHSS services

16 has changed since 1988.

17

72. The FI Score does not include the functional ranks for mental functioning (memory,

18 orientation, judgment). Only the eleven functional ranks for physical ADLs are considered in

19 calculating the FI Score. ACL 88-118, Questions 7, 10.

20

73. Recipients with cognitive or psychiatric disabilities are more likely to receive

21 functional ranks of 2 for the 11 ADL tasks that are used to calculate the FI Score, because they may

22 require verbal rather than physical assistance.

23

74. The FI Score does not include functional ranks for certain IHSS services for which

24 no functional rank is calculated, including repositioning and rubbing skin, care and assistance with

25 prosthetic devices, assistance with self-administration of medications, and travel to medical

26 appointments.

27

75. Because children under a certain age receive automatic ranks of 1 for four or more

28 of the eleven tasks (depending on age), their FI Scores tend to be lower than those of adults. See
14
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1 MPP § 30-763.451-462.

2

76. Because recipients of paramedical services receive automatic ranks of 6 for certain

3 tasks, which are then converted to l' s in calculating the FI Score, their FI Scores tend to be lower

4 than they would be otherwise. See MPP § 30-756.41-42.

5

77. Although the FI Score is not a rational measure of need for any individual, the

6 above-described factors cause FI Scores to be a particularly poor measure for certain groups of

7 IHSS recipients, including children, individuals with impairments in mental functioning,

8 individuals whose need is greatest in areas where not very many hours are allocated on a statewide

9 basis, individuals who have high need in a few areas, individuals who receive paramedical

10 services, and individuals whose greatest need is for medication reminders and travel to medical

11 appointments.

12

78. ABX44 established exemptions to the eligibility restriction for IHSS recipients

13 authorized for paramedical services, protective supervision, or 120 or more hours ofIHSS per

14 month. The bill also gave authority to the Director ofCDSS to waive these exemptions if

15 necessary to maintain federal financial participation, and the Governor's veto message indicated

16 the Governor's intent to waive all three of these exemptions.

17

79. In a draft All County Letter released on September 18, 2009 (,Draft ACL"), and a

18 final All County Letter released on October 1,2009 (ACL 09-56), CDSS stated that the exemptions

19 for paramedical services and protective supervision were being retained for the time being, but that

20 the Director had waived the exemption for recipients who are authorized to receive at least 120

21 hours ofIHSS services per month. ACL 09-56 stated that it was possible that the exemptions for

22 protective supervision and paramedical services would be waived, based on guidance from the

23 federal government. Accordingly, Plaintiffs still do not know whether recipients who are

24 authorized for paramedical services or protective supervision will be subject to the eligibility

25 restrictions.

26

2. Reductions in Domestic and Related Services

27

80. Under Section 12309(e) as amended by ABX4 4, even IHSS recipients who remain

28 eligible for IHSS services will no longer receive domestic and related services (meal preparation
15
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1 and clean up, laundry, shopping and errands) if their functional rank is below 4 for that particular

2 servIce.

3

81. Other than the functional rank of 1, the functional ranks were not designed as

4 measures of eligibility for assistance for a particular task. Before the enactment of ABX4 4, the

5 functional ranks 2, 3, 4, or 5 were never used to determine eligibility for services.

6

82. All IHSS recipients with functional ranks of2, 3, 4, or 5 have been individually

7 assessed by a social worker to need authorized services for a specified number of hours to live

8 safely in their homes. Recipients with a functional rank of 2 or 3 have as great a need for domestic

9 and related services as recipients with a rank of 4 or 5; they cannot perform those functions safely

10 without assistance.

11

83. Individuals with cognitive or psychiatric, as opposed to physical, disabilities often

12 receive a 2 rank for many ADLs, because they need verbal as opposed to physical assistance.

13 Because, by definition, they cannot perform the given activity without this verbal assistance, their

14 need for this verbal assistance is as great as the need of recipients who need physical assistance to

15 perform the same activity.

16

84. It is often difficult for social workers to distinguish between the ranks of3 (need

17 "some human assistance") and 4 (need "substantial human assistance"), especially when a

18 recipient's functioning may vary from day to day.

19

85. Prior to the enactment of ABX4 4, IHSS recipients were not notified of their

20 functional ranks. These functional ranks did not appear on the NOAs that recipients receive upon

21 their assessment and reassessment.

22

86. On information and belief, DSS will not require the reassessment or review of the

23 impact that elimination of domestic and related services may have on IHSS recipients' assessed

24 needs in relation to other activities.

25

87. ABX4 4 established exemptions to the elimination of domestic and related services

26 for IHSS recipients authorized for paramedical services, protective supervision, or 120 or more

27 hours ofIHSS services per month. The bill also gave authority to the Director of the Department

28 of Social Services to waive these exemptions if necessary to maintain federal financial
16
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1 participation, and the Governor's veto message indicated the Governor's intent to waive all three of

2 these exemptions.

3

88. In the Draft ACL released September 18, 2009, and final ACL released October 1,

4 2009 (ACL 90-56), CDSS stated that the exemptions for protective supervision and paramedical

5 services were being retained for the time being, but that the Director had waived the exemption for

6 recipients who are authorized to receive at least 120 hours ofIHSS services per month. ACL 90-56

7 stated that it was possible that the exemptions for protective supervision and paramedical services

8 would also be waived, based on guidance from the federal government. Accordingly, Plaintiffs

9 still do not know whether recipients who are authorized for protective supervision or paramedical

10 services will be subject to the cuts in domestic and related services.

11

3. Notice to Recipients and Fair Hearing Rights

12

89. IHSS recipients have not heretofore been informed of the possibility that they will

13 lose eligibility for IHSS services based on their FI Score or the possibility that they will lose

14 eligibility for domestic and related services based upon their functional ranks for those services.

15

90. Many IHSS recipients who have requested their FI Scores and/or their individual

16 functional ranks from their social workers and/or counties have been unable to obtain them.

17

91. On September 18, 2009, CDSS issued a draft All-County Letter ("Draft ACL")

18 stating that the IHSS eligibility restrictions and service cuts would be implemented on November

19 1,2009. On October 1, 2009, CDSS issued a final All-County Letter (ACL 09-56), stating that

20 IHSS eligibility restrictions and service cuts would be implemented on November 1, 2009, and

21 providing counties with instructions for implementation of the eligibility restrictions and service

22 cuts.

23

92. A copy of the notice that will be sent to IHSS recipients who are losing some or all

24 of their services is attached to ACL 09-56. IHSS recipients will be notified of their FI Scores and

25 all of their functional rankings if they are losing eligibility for IHS S services, and of their

26 functional ranks for domestic or related services if they are losing one or more of those services.

27

93. The notice also includes a 22 page "stuffer" that includes the complex mathematical

28 formula for calculating the FI Score. This complex mathematical formula is not used by county
17
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1 social workers, because the FI Score is calculated automatically by the state's computer system.

2

94. The 22-page "stuffer" consists of the detailed agency procedures given to county

3 social workers for determining functional rank for each ADL. The language is lifted verbatim from

4 official policies and procedures issued by CDSS to counties for use by social workers, who have

5 years of training and experience in using documents such as this. The language in which the 22-

6 page stuffer is written is not comprehensible to typical IHSS recipients, who are all aged, blind, or

7 disabled, and who have not received the training provided to county social workers. The language

8 may be particularly incomprehensible to the large number ofIHSS recipients who have cognitive

9 or other mental disabilities.

10

95. ACL 09-56 also states that the notices will be sent "no less than the required 10-day

11 notice." On information and belief, Defendants will notify recipients that their IHSS services have

12 been cut or reduced only ten days before the implementation date of November 1, 2009.

13

96. The timing of the notice to IHSS recipients of the eligibility restrictions and

14 elimination of authorized hours will not provide adequate time for recipients to make alternative

15 arrangements for assistance, to the extent such arrangements are possible.

16

97. According to ACL 09-56, recipients will be able to request state hearings regarding

17 disputes over their FI Scores or functional ranks, and to request aid paid pending appeal if they file

18 their hearing requests prior to the effective date of the notice of action.

19

98. Defendants operate the state administrative hearing system through a series of

20 regional hearing offices. Recipients and applicants who appeal denials or reductions ofMedi-Cal,

21 IHSS, Cal-Works, Food Stamps, Adoption Assistance and other public benefits must file a timely

22 request for hearing with the hearing office or the local welfare office. On information and belief,

23 these hearing offices are presently unable to respond in a timely manner to all the claimants who

24 request administrative hearings, so that the state hearing officers recently decided to no longer

25 consider requests for reconsideration of an adverse hearing decision.

26

99. On information and belief, as many as 100,000 class members may request an

27 administrative hearing to appeal the reduction or termination of their IHSS benefits pursuant to

28 ABX44. Because Defendants have failed to allocate the staff and resources to respond to this
18
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1 number of expected hearing requests, Plaintiffs will be unable to obtain a timely hearing regarding

2 their appeals.

3

100. IHSS recipients have not been, and will not be, notified of the availability of

4 replacement services available under the Medi-Cal State Plan, to the extent any other services are

5 available. Nor have the State or counties arranged for such replacement services, to the extent any

6 services are available.

7

4. Impact upon Recipients

8

101. The loss of eligibility for all IHS S services or the loss of domestic and related

9 services is likely to cause Plaintiff Class members to suffer declines in physical functioning,

10 increased medical complications, and additional preventable accidents resulting in physical injury.

11 This will expose them to a serious risk of harm to their health and safety and cause a serious risk of

12 unwanted out-of-home placement, including unwanted institutionalization.

13

102. The loss of eligibility for all IHSS services or the loss of domestic and related

14 services is likely to cause Plaintiff Class members to suffer declines in mental functioning. This

15 will expose them to a serious risk of harm to their health and safety and cause a serious risk of out-

16 of-home placement, including unwanted institutionalization.

17

103. Individuals whose physical or cognitive impairments are such that they cannot be

18 left alone or whose health conditions are extremely unstable are likely to face immediate out-of-

19 home placement in an institution.

20

104. Other individuals will lose physical and mental functioning as a result of the loss of

21 or reduction in their IHSS services. For example, individuals with psychiatric disabilities may stop

22 taking their medications and become delusional, suicidal, or otherwise present a danger to

23 themselves and others. Individuals deprived of shopping, meal preparation and and/or eating

24 assistance may become malnourished or ill because they eat foods contraindicated by medical

25 conditions or necessary medications, or fail to eat at all. Individuals deprived of domestic services

26 may suffer falls or other injuries if they attempt to perform cleaning and other household tasks.

27 Other individuals will live in unsanitary and potentially hazardous situations that can lead to falls,

28 illness, and/or eviction and homelessness. The mental or physical functioning of these individuals
19
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1 is likely to deteriorate to the point that they also face out-of home placement, including unwanted

2 and preventable institutionalization.

3

105. Out-of-home placement in an institution can often further destabilize already

4 compromised mental or physical functioning. Once placed in an institution, it is extremely difficult

5 for individuals to move out of institutions and back into the community.

6

106. It costs far more to institutionalize elderly and disabled individuals in nursing homes

7 or other institutions than it does to provide IHSS services that allow them to live in community-

8 based settings.

9

107. The IHSS Program helps prevent costly and unnecessary institutionalization, saving

10 the State significant funds, and, at the same time, improving the quality of life for the individuals

11 served.

12

c.

Facts Related to Individual Plaintiffs

13

1. Named PlaintiffV.L.

14

108. Named PlaintiffVL. is a 14-year-old boy, and is a qualified person with a

15 disability-specifically, Charcot-Marie-Tooth Disease ("CMT"), an inherited form of muscular

16 dystrophy known as peroneal muscular atrophy. He lives with his family in San Francisco,

17 California and attends a local middle school.

18

109. Because of his disabilities, VL. has wasting and weakness in his hands, feet, and

19 legs. It is difficult for him to stand or walk for more than a few minutes. He wears an orthotic

20 brace to help him stand and walk, even in the shower. VL. cannot sense when shower water is too

21 hot or too cold. Because of weakness in his hands, VL. has trouble cutting and eating his food,

22 and putting on and taking off his leg braces and wrist splints. VL. also requires help getting

23 dressed, as he cannot put on or button his clothes. VL. also requires assistance to use the

24 bathroom.

25

110. VL. is authorized to receive 44.8 hours ofIHSS services per month. His provider

26 helps him out approximately ten hours per week with such personal tasks as using the restroom,

27 bathing, getting dressed, exercising, and putting on and taking off his leg brace and wrist splints.

28

Ill. VL. 's mother was recently told by his social worker that he will be losing eligibility

20

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1 for all IHSS services because his FI Score is below 2.0.

2

112. These IHSS services are critical to enable VL. to remain safely in his home with his

3 family and to attend a local school. VL.' s mother is unable to assist VL., because she also has

4 CMT and uses a wheelchair. VL.' s father works during the day, and thus is not available to help

5 VL. during work hours. VL.' s need for services is so great that his older brother has temporarily

6 dropped out of college at CSU-Northridge in order to serve as VL.' s IHS S provider until VL' s

7 regular provider returns from an extended leave of absence.

8

2. David Oster

9

113. David Oster is a 33-year-old man who is a qualified person with disabilities,

10 including autism and bi-polar disorder. He lives by himself in an apartment in Los Angeles

11 County.

12

114. Because of his disabilities, Mr. Oster is unable to remember to take his medications

13 (consisting of some 20 pills, including medications necessary to control his bi-polar disorder) and

14 is unable to go shopping, cook, or clean up after himself. For example, he cannot concentrate and

15 follow directions to cook a nutritionally balanced meal following the diet prescribed by his doctor,

16 and forgets to put food away before it spoils. Mr. Oster is also unable to get to medical

17 appointments himself, as he cannot drive and becomes confused if he tries to take public

18 transportation.

19

115. Before he began receiving IHSS services, Mr. Oster's apartment was in great

20 disarray. Trash, clutter, and rotten food were strewn about his apartment, which was infested with

21 cockroaches. Mr. Oster had to pick his way among makeshift pathways between the debris. All

22 the food in his refrigerator was spoiled. His clothes were dirty, and he rarely bathed. He was at risk

23 of serious health consequences from the unsanitary conditions and inadequate meals, and was also

24 in serious danger of eviction from his apartment because of the unsanitary conditions in which he

25 was living.

26

116. Mr. Oster began receiving IHSS services approximately two years ago and currently

27 receives 63.2 hours per month ofIHSS services. Without these services, he would not be able to

28 live independently in the community.
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1

117. Mr. Oster's IHSS provider performs the following services: cooks meals following

2 the diet that has been medically prescribed by Mr. Oster's doctor; sets out medications and reminds

3 Mr. Oster to take them; takes Mr. Oster to doctor's appointments; reminds Mr. Oster to bathe; does

4 Mr. Oster's laundry; and cleans the apartment and changes bed linens.

5

118. Mr. Oster's social worker has told Mr. Oster that his FI Score is 1. 9. Because his FI

6 Score is below 2.0, Mr. Oster will lose eligibility for all IHSS services. Although Mr. Oster has

7 functional ranks of 5 for housework, laundry, and shopping, and a functional rank of 3 for meal

8 preparation, his composite FI Score is under 2.0 because he is ranked a 1 for many other ADLs that

9 he can perform himself, such as eating, bowel/bladder care, mobility, transfer, and respiration.

10

119. When Mr. Oster learned that his IHSS services would be cut, he was so terrified

11 about losing services that he had a nervous breakdown and had to be hospitalized for two weeks for

12 inpatient psychiatric services. Upon discharge, he then had to continue in a psychiatric outpatient

13 program for several weeks more.

14

120. Mr. Oster does not want to lose his apartment or his independence and does not

15 want to live in a group home or board and care facility where his independence and freedom would

16 be restricted. He is sure that he will not be able to maintain his independence without IHSS

17 services. Without IHSS services, Mr. Oster is at serious risk of increased psychiatric problems,

18 including hospitalization and institutionalization, because he cannot take his medications, cook his

19 medically necessary diet, or maintain sanitary conditions necessary to maintain an independent

20 apartment.

21

121. Prior to his recent conversation with his social worker, Mr. Oster had never been

22 informed of his functional ranks or FI Score.

23

3. Willie Beatrice Sheppard

24

122. Named Plaintiff Willie Beatrice Sheppard is 81 years old and is a qualified person

25 with disabilities, including arthritis and the effects of a stroke. She lives by herself in an apartment

26 in Emeryville, California.

27

123. Ms. Sheppard uses a cane or electric wheelchair for mobility and cannot stand for

28 any length of time. She cannot get in and out of the bathtub without assistance. Sometimes Ms. 22
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1 Sheppard cannot use her hands or the entire right side of her body because of her stroke and cannot

2 pick up any heavy object. Ms. Sheppard is also easily fatigued.

3

124. Ms. Sheppard has been receiving IHSS services since 2003.

4

125. Ms. Sheppard's IHSS provider comes to her home twice a week to help her bathe, to

5 clean the house, and to prepare meals (in sufficient quantities that Ms. Sheppard can microwave the

6 leftovers on days that her provider is not working).

7

126. Meal preparation is essential to Ms. Sheppard's health and well being, as she does

8 not have sufficient strength in her hands, or the stamina to stand, to cook meals. Ms. Sheppard's

9 physician has advised her that she cannot eat foods that are high in sodium because of her stroke

10 risk. For that reason, Ms. Sheppard must avoid eating prepared processed foods.

11

127. Ms. Sheppard is only able to bathe two days a week, on those days when her

12 provider is there. Were it not for her provider, Ms. Sheppard would be unable to bathe at all.

13

128. Ms. Sheppard's provider performs all heavy housecleaning for her, as Ms. Sheppard

14 is unable to push around a vacuum or mop while walking with a cane, and is unable to scrub the

15 bathroom. If she attempted these tasks, she might fall and further injure herself. She has had

16 several previous falls. Because Ms. Sheppard is 81 years old, she is more susceptible to illnesses,

17 and thus a clean house is important to her health and well-being.

18

129. Because of her mobility impairments, it is very difficult for Ms. Sheppard to travel

19 outside her home. Accordingly, her provider must shop for groceries and pick up her prescription

20 medications.

21

130. Ms. Sheppard lives alone and is dependent upon IHSS services. Most of her

22 children do not live in the area, and her one daughter who does live nearby has a disabled son who

23 requires her full time attention.

24

131. Ms. Sheppard has never been informed of her FI Score or her functional ranks. She

25 is afraid that her IHSS eligibility may be eliminated or her service hours for domestic (cleaning)

26 and meal preparation will be reduced. If this happens, she will not have adequate meals or

27 sanitation, resulting in a serious risk that Ms. Sheppard's medical condition will deteriorate or she

28 will fall and injure herself and then will require placement in a nursing home. Ms. Sheppard used
23
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1 to work in a nursing home and knows that nursing home staff are often overworked and unable to

2 provide quality care to each resident. Thus, she wants to avoid having to be placed in a nursing

3 home.

4

4. Named Plaintiff c.R.

5

132. c.R. is a five-year-old boy and is a qualified person with a disability, specifically,

6 developmental disability caused by chromosome deletion. He lives with his family in Gilroy,

7 California. His mother and guardian ad litem here, Michelle Rivera, is his provider.

8

133. c.R. has a developmental disability because he is missing the chromosome known

9 as 3P25, which causes a disconnect between his brain and his body parts. c.R. has global delays

10 across all spectrums: He cannot walk, talk, or chew food. He uses a manual wheelchair, because

11 he does not have the mental capacity to use a motor or power chair. He has to be repositioned

12 regularly, because he can only sit up for twenty minutes at a time. He also has hearing loss and

13 vision loss.

14

134. Because of his disabilities, c.R. cannot eat or drink by himself. His mother helps

15 him drink by placing a sippy cup firmly in his hands, wrapping his hands around the cup, and then

16 putting the cup to his mouth. He can then suck on the sippy cup. Because he cannot chew food, all

17 of his food must be pureed. His mother must place food into his mouth, spoonful by spoonful,
18 until he swallows it. It takes about twenty minutes to feed c.R. each meal. c.R. does not receive 19 IHSS services for eating/feeding. On information and belief, c.R. does not receive IHSS services

20 for feeding because the county has determined he is too young to receive IHSS services for

21 feeding.

22

135. c.R. wears diapers because he cannot control his bowels, but does not receive IHSS

23 services for toileting and dressing. On information and belief, c.R. does not receive IHSS services

24 for toileting or dressing because the county has determined he is too young to receive IHSS

25 services for toileting and dressing.

26

136. c.R. is authorized for 55 hours ofIHSS services per month for transportation to

27 medical appointments (40 miles away), moving in and out of bed or a vehicle (a special school bus

28 that picks him up to attend preschool for children with disabilities), rubbing skin, and
24
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1 repositioning.

2

13 7. c.R. 's mother has been told that c.R. will lose eligibility for IHS S services because

3 hisFIScoreisl.97.

4

138. Although c.R. only receives 55 hours ofIHSS services per month, those IHSS

5 service hours are critical. His mother works as his provider and uses the money she earns to

6 purchase c.R.' s special, medically necessary foods and gas to take him to his many medical

7 appointments.

8

139. c.R. needs to stay at home with his mother as his provider. In order to fully

9 maximize his potential, he needs one-on-one care on a constant basis to encourage each small step

10 of being able to control his body himself. Although doctors are unable to predict the prognosis for

11 a child with c.R.' s type of disability, they do know that if there is to be any hope for c.R. to learn

12 to walk, talk, or chew on his own, he needs continued one-on-one care to encourage him to do

13 everything that he can learn to do.

14

140. If the only way for c.R. to stay at home would be for his family to hire an outside

15 provider, rather than his mother, they would do that. However, they do not believe they will be

16 able to find anyone capable of caring for him; they looked before but were unable to find anyone.

17

5. Named Plaintiff Dotty Jones

18

141. Named Plaintiff Dotty Jones is 51 years old, and is a qualified person with

19 disabilities, including AIDS and neuropathy. She lives alone in Grass Valley, in Nevada County.

20

142. As a result of Ms. Jones' neuropathy, it is nearly impossible for her to walk or to use

21 her hands. Her limbs are numb and painful. She cannot grab objects without dropping them. The

22 neuropathy also affects her balance and coordination. As a result of AIDS, Ms. Jones has

23 diminished appetite and sores in her mouth, which make eating difficult and painful.

24

143. Ms. Jones has been receiving IHSS services since 1994. Her IHSS provider assists

25 her with many tasks of daily living, including meal preparation and clean up, and housecleaning.

26

144. Ms. Jones cannot cook for herself, because she is unable to lift pots and pans or hold

27 or chop food items. In addition to cooking for her, Ms. Jones' provider spends time urging Ms.

28 Jones to eat, which is very important because of Ms. Jones' diminished appetite. Because of Ms.
25
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1 Jones weakened immune system, it is critical for her to maintain her weight and to eat nutritious

2 meals.

3

145. Ms. Jones cannot clean the house herself, because she cannot maneuver or hold a

4 broom or vacuum, or even pick up items off the floor. Before Ms. Jones began receiving IHSS

5 services her apartment was very cluttered because she was unable to move things or clean, and her

6 neuropathy is much worse now that it was when she began to receive IHSS services. It is very

7 important for Ms. Jones' apartment to remain clean and sanitary, because she is extremely

8 susceptible to bronchial infections and pneumonia due to her compromised immune system.

9

146. Because Ms. Jones' Functional Index Score is 2.28, she remains eligible for IHSS

10 services, and will continue to receive some services, such as assistance with laundry and shopping.

11 However, because Ms. Jones functional rankings for meal preparation and clean up and for

12 housekeeping are 3, she will lose those services.

13

147. Ms. Jones does not have any living family members who can assist her. Without

14 her IHSS provider cooking meals, cleaning up after meals, and cleaning her apartment, Ms. Jones

15 will not have nutritious meals, and will not be able to maintain her apartment in a clean and

16 sanitary condition. Particularly in light of her AIDS-compromised immune system and lack of

17 appetite, Ms. Jones is likely to become malnourished, lose weight, and come down with

18 pneumonia, bronchial infections, or other illnesses. This is likely to result in increased trips to the

19 emergency room, increased hospitalization, and potentially early death.

20

CLASS DEFINITION AND ALLEGATIONS

21

148. Pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure,

22 Individual Named Plaintiffs VL., David Oster, Willie Beatrice Sheppard, C.R, and Dotty Jones

23 bring this action on behalf of themselves and all other persons similarly situated. For the First,

24 Second, Third, Fourth, Fifth, and Seventh claims for relief, Plaintiffs bring this action on behalf of

25 a class consisting of "all recipients ofIHSS in the State of California whose IHSS services will be

26 limited, cut, or terminated under the provisions of ABX4 4, and all applicants to IHSS in the State

27 of California who would have been eligible for IHSS services but who are either not eligible, or are

28 eligible for fewer services, as a result of ABX 4 4 (hereinafter the "Class")."
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1

149. Plaintiffs VL., David Oster, Willie Beatrice Sheppard, c.R., Dotty Jones, and

2 others similarly situated also plead subclasses of individuals as follows:

3

a. For the Sixth claim for relief: "Loss of Domestic and Related

4

Services Subclass" to be defined as "all present and future IHSS recipients

5

and applicants who have been or would have been authorized to receive

6

domestic and/or related IHSS, and whose IHSS will be reduced to eliminate

7

some or all of their domestic and/or related services under the provisions of

8

ABX44." Plaintiffs Dotty Jones and Willie Beatrice Sheppard are typical of

9

this subclass.

10

b. For the Ninth claims for relief: "Termination of Benefits Subclass" to

11

be defined as "all present and future IHSS recipients and applicants who

12

have been or would have been authorized to receive IHSS, and whose IHSS

13

services will be terminated or denied in their entirety under the provisions of

14

ABX44." Plaintiffs VL., David Oster, and c.R. are typical of this subclass.

15

c. For the Eighth claim for relief: "Children Subclass" to be defined as

16

"all present or future IHSS recipients who are under the age of21, who

17

qualify for full-scope Medi-Cal with federal financial participation, and who

18

therefore are entitled to the protections of the Early Periodic Screening

19

Diagnosis and Treatment provisions of the federal Medicaid Act, 42 U.S.C.

20

§ 1396a(a), who have been or would have been authorized to receive IHSS,

21

and whose IHSS services will be reduced or terminated under the provisions

22

of ABX4 4." Plaintiffs c.R. and VL. are typical of this subclass.

23

150. Numerosity: The Plaintiff Class is so numerous that joinder of all its members is

24 impracticable. There are more than 130,000 persons in the Class. Upon information and belief the

25 "Termination of Benefits subclass" consists of approximately 36,000 individuals. Upon

26 information and belief, the "Loss of Domestic and Related Services Subclass" consists of

27 approximately 97,000 people. Upon information and belief the "Children Subclass" consists of

28 over one thousand children. Joinder of individuals in the Class and subclasses is also impracticable
27
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1 because of the size of the subclasses, and because members of the Plaintiff Class lack the

2 knowledge and financial means to maintain individual actions and are geographically disbursed

3 throughout the state.

4

151. Commonality: Common questions of law and fact predominate over questions

5 affecting individual Class members. Questions of law and fact common to members of the Class

6 include but are not limited to whether Sections 12309 and 12309.2 violate provisions of the

7 Medicaid Act, the ADA, and Section 504, and whether the implementation of Sections 12309 and

8 12309.2 fail to meet the requirements of procedural due process established by the U.S.

9 Constitution.

10

152. Typicality: The claims of the Individual Named Plaintiffs are typical of the claims

11 of the Class as a whole and are typical of the claims of the subclasses in that the Individual Named

12 Plaintiffs and members of the Plaintiff Class currently are eligible IHSS participants and qualified

13 individuals with disabilities who will be affected similarly by the IHSS eligibility changes enacted

14 by ABX4 4 and Defendants' policies and practices. The claims arise from the same unlawful and

15 discriminatory law and policies and practices of Defendants.

16

153. Adequate representation: The Individual Named Plaintiffs will fairly represent

17 and adequately protect the interests of members of the class as a whole. The Individual Named

18 Plaintiffs do not have any interests antagonistic to those of other members of the Plaintiff Class.

19 By filing this action, the Individual Named Plaintiffs have displayed an interest in vindicating their

20 rights, as well as the claims of others who are similarly situated. The relief sought by the

21 Individual Named Plaintiffs will inure to the benefit of members of the Plaintiff Class generally.

22 Plaintiffs are represented by counsel who are experienced, skilled, and knowledgeable about civil

23 rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal

24 courts and the prosecution and management of class action litigation.

25

154. Class certification is appropriate pursuant to Federal Rules of Civil Procedure

26 23(b)(2) because Defendants have acted, refused to act, or will act on grounds generally applicable

27 to the Class, thereby making final injunctive and declaratory relief appropriate with respect to the

28 Class as a whole.
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1

155. Members of the plaintiff class share a common need for IHSS services and

2 Defendants' policies and actions in limiting or terminating IHSS services, and the provisions of

3 ABX 4 4, are applicable to the entire class.

4

LEGAL CLAIMS

5

156. Defendants' actions, as alleged herein, have resulted in, and will continue to result

6 in, irreparable injury to members of the Plaintiff Class for which they have no plain, speedy, or

7 adequate remedy at law. Members of the Plaintiff Class will suffer irreparable injury in that they

8 will be deprived of critical health-related services and subjected to imminent risk of out-of-home

9 placement, institutionalization and/or harm to their health and safety.

10

157. IHSS provider members of the organizational plaintiffs who provide IHSS services

11 for members of the Plaintiff Class will also be subj ect to irreparable injury, for they will lose

12 employment and hours of work for which they will be unable to recover monetary damages and

13 which will lead to harm to their health and deprivation of life necessities. Some members of these

14 organizational plaintiffs and their minor children for whom they provide services are at risk of

15 losing their children's IHS S services and will suffer irreparable injury as a result.

16

158. An actual controversy exists between Plaintiffs and Defendants in that Defendants

17 are seeking to implement reductions and terminations in IHSS services to which members of the

18 Plaintiff Class are entitled, and which, if implemented, will place members of the Plaintiff Class at

19 risk of unnecessary out-of-home placement, institutionalization and harm to their physical and

20 mental health. Further, these reductions and terminations violate the Due Process Clause of the

21 Fourteenth Amendment to the United States Constitution, the ADA, Section 504, and various

22 provisions of the Medicaid Act. Plaintiffs therefore seek a declaration as to their rights and

23 Defendants' corresponding duties with respect to the matters alleged herein.

24

159. The balance of harms favors entering an injunction because the harm suffered by

25 individuals deprived of crucial and needed IHSS outweighs any monetary loss to Defendants.

26

160. It is in the public interest that the Court grant an injunction to ensure that Plaintiffs

27 and other similarly situated individuals receive medically necessary medical benefits to which they

28 are entitled.
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1

161. In taking the relevant actions, Defendants have acted under color of state law.

2

FIRST CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

3

Constitutional Due Process

4

162. Plaintiffs reallege and incorporate herein by reference each and every allegation and

5 paragraph set forth previously.

6

163. Plaintiffs and members of the Plaintiff Class are entitled to adequate notice of and

7 opportunity for a pre-termination or pre-reduction hearing on any termination or reduction in

8 medical care and services. See Goldberg v. Kelly, 397 US. 254 (1970).

9

164. The notice Defendants propose to send is not adequate or effective, because it is

10 incomprehensible to Plaintiffs and members of the Plaintiff Class. It does not provide Plaintiffs

11 and class members with meaningful information necessary to determine whether the agency has

12 made a mistake in terminating their benefits and how they can contest those mistakes at the hearing

13 to stop the termination.

14

165. The notice Defendants propose to send is not adequate or effective, because ten days

15 is not sufficient time for IHSS recipients, many of whom have cognitive or psychiatric disabilities,

16 to appeal the decision to reduce or terminate their services.

17

166. On information and belief, Plaintiffs and Class members will be unable to obtain a

18 timely hearing if they do file an appeal.

19

167. Unless enjoined, Defendants will reduce or terminate IHSS services to which

20 members of the Plaintiff Class are entitled and have a property interest in maintaining, thereby

21 depriving class members of their right to an opportunity for fair hearing before reduction or

22 termination of benefits.

23

168. These actions violate the Due Process Clause of the Fourteenth Amendment to the

24 US. Constitution, US. CONST. Amend. XlV.

25

169. Defendants' actions deprive Plaintiffs and members of the Plaintiff Class of rights,

26 privileges or immunities secured to them by the Constitution of the United States, in violation of 42

27 US.C. § 1983.

28
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1

SECOND CLAIM FOR RELIEF

2

(Defendants Director Wagner and Director Maxwell-Jolly)

Medicaid Act Right to a Fair Hearing

3 170. Plaintiffs reallege and incorporate herein by reference each and every allegation

4
and paragraph set forth previously.

5 171. Under federal Medicaid requirements, recipients and applicants for Medicaid

6
services have rights to written notice and a pre-termination fair hearing if their benefits are

7 reduced, suspended, or terminated. 42 US.C. § 1396a(a)(3).

8
172. This notice must contain the following:

9

(a) A statement of what action the State ... intends to take;

10

(b) The reasons for the intended action;

11

(c) The specific regulations that support, or the change in Federal or State law that

requires, the action;

12

(d) An explanation of-

(1) The individual's right to request an evidentiary hearing if one is available, or

13

a State agency hearing; or

(2) In cases of an action based on a change in law, the circumstances under

14

which a hearing will be granted; and

15

(e) An explanation of the circumstances under which Medicaid is continued if a hearing

is requested.

16 42 C.F.R. § 431.210.

17

173. Pursuant to the Medicaid Act, California has established procedures to provide fair

18 hearings to any Medi-Cal beneficiary whose services are denied, reduced, or terminated. Cal. Code

19 Regs. tit. 22 § 51014.1(a).

20

174. In reducing or terminating services as set forth above, Defendants have deprived

21 Plaintiffs and members of the Plaintiff Class of their opportunity to notice and a fair pre-

22 termination hearing in violation of 42 US.c. § 1396a(a)(3).

23

175. Defendants' actions deprive Plaintiffs and members of the Plaintiff Class of rights,

24 privileges or immunities secured to them by the Constitution of the United States, in violation of 42

25 US.C. § 1983, and are preempted by the Supremacy Clause of the United States Constitution,

26 Article IV.

27

28
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1

2

THIRD CLAIM FOR RELIEF

(Defendants DHCS and CDSS)

3

Americans with Disabilities Act, 42 U.S.c. § 12134-35 et seq.

4

176. Plaintiffs reallege and incorporate herein by reference each and every allegation and

5 paragraph set forth previously.

6

177. Title II of the ADA provides that "no qualified individual with a disability shall, by

7 reason of disability, be excluded from participation in or be denied the benefits of services,

8 programs, or activities of a public entity or be subjected to discrimination by such entity." 42

9 US.C. § 12132.

10

178. In enacting the ADA, Congress found that "[i]ndividuals with disabilities

11 continually encounter various forms of discrimination, including ... segregation ...." 42 US.C.

12 § 12101(a)(5).

13

179. Regulations implementing Title II of the ADA provide: "A public entity shall

14 administer services, programs, and activities in the most integrated setting appropriate to the needs

15 of qualified individuals with disabilities." 28 C.F.R. § 35. 130(d).

16

180. Defendants DHCS and CDSS are public entities within the meaning of Title II of

17 the ADA.

18

181. Regulations implementing Title II of the ADA provide: "A public entity may not,

19 directly or through contractual or other arrangements, utilize criteria or other methods of

20 administration: (i) that have the effect of subjecting qualified individuals with disabilities to

21 discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or

22 substantially impairing accomplishment of the objectives of the entity's program with respect to

23 individuals with disabilities...." 28 C.F.R. § 35.130(b)(3).

24

182. The United States Supreme Court in Olmsteadv. L.c. ex rei. Zimring, 527 US. 581

25 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of

26 discrimination under Title II of the ADA. In doing so, the Supreme Court interpreted the ADA's

27 "integration mandate" as requiring persons with disabilities to be served in the community when:

28 (1) the state determines that community-based treatment is appropriate; (2) the individual does not
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1 oppose community placement; and, (3) community placement can be reasonably accommodated.

2 Id 527 U.S. at 607.

3

183. The ADA prohibits discrimination based on type of disability.

4

184. The ADA's regulations further provide that "[a] public entity shall not impose or

5 apply eligibility criteria that screen out or tend to screen out an individual with a disability or any

6 class of individuals with disabilities from fully and equally enjoying any service, program, or

7 activity, unless such criteria can be shown to be necessary for the provision of the service,

8 program, or activity being offered." 28 C.F.R. 35.130(b)(8).

9

185. Pursuant to the ADA, public entities are required to provide meaningful access to

10 their programs, services and activities, and provide any accommodations or modifications

11 necessary for people with disabilities to access those services.

12

186. Each Individual Named Plaintiff and member of the Plaintiff Class is a "qualified

13 individual with a disability" within the meaning of the ADA in that they (1) have physical and/or

14 mental impairments that substantially limit one or more major life activities; and meet the essential

15 eligibility requirements in that they (2) are capable of living independently in their own homes

16 and/or in the most integrated community setting possible, with assistance; and (3) meet the Medi-

17 Cal income eligibility requirements.

18

187. Defendants' actions have placed members of the Plaintiff Class at imminent risk of

19 unnecessary confinement in institutions, including nursing facilities, or other out-of home

20 placements that are not the most integrated community placements possible, in violation of the

21 ADA's integration mandate.

22

188. Defendants discriminate against Plaintiffs and Class members in ways that include,

23 but are not limited to, failing to provide reasonable modifications to programs and services.

24

189. Defendants have utilized eligibility criteria and methods of administration that

25 subject Individual Named Plaintiffs and members of the Plaintiff Class to discrimination on the

26 basis of disability, in violation of28 C.F.R. § 35. 130(b)(3) &(8), and otherwise denied meaningful

27 access to their programs, services and activities.

28
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1

190. Defendants' actions discriminate against individuals with cognitive and psychiatric

2 disabilities, based on their type of disability, because the functional rankings and FI Scores for such

3 individuals are lower than the functional rankings and FI Scores of individuals with physical

4 disabilities who have the same level of need for IHSS services, and will result in the deprivation of

5 services to individuals with mental disabilities, even if they have the same level of need as

6 individuals with physical disabilities who are not deprived ofIHSS services.

7

191. Defendants' actions violate Title II of the ADA.

8

192. Pursuant to 42 U.S.C. § 12133, Plaintiffs are entitled to declaratory and injunctive

9 relief as well as reasonable attorneys' fees and costs incurred in bringing this action.

10

FOURTH CLAIM FOR RELIEF

(Defendants DHCS and CDSS)

11

Section 504 of the Rehabilitation Act, 29 U.S.c. § 794 et seq.

12

193. Plaintiffs reallege and incorporate herein by reference each and every allegation and

13 paragraph set forth previously.

14

194. Section 504 of the Rehabilitation Act of 1973, on which the ADA is modeled, sets

15 forth similar protections against discrimination by recipients of federal funds, such as Defendants

16 herein. 29 U.S.C. §§ 794-794a. These protections include the prohibition against unnecessary

17 segregation. Regulations implementing Section 504 require that a public entity administer its

18 services, programs and activities in "the most integrated setting appropriate" to the needs of

19 qualified individuals with disabilities. 28 C.F.R. § 41. 51 (d).

20

195. Section 504 prohibits discrimination based on type of disability.

21

196. Section 504' s regulations prohibit recipients of federal financial assistance from

22 utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting qualified

23 handicapped persons to discrimination on the basis of handicap [or] (ii) that have the purpose or

24 effect of defeating or substantially impairing accomplishment of the objectives of the recipient's

25 program with respect to handicapped persons. 28 C.F.R. § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4).

26

197. Each Individual Named Plaintiff and member of the Plaintiff Class is a "qualified

27 individual with a disability" within the meaning of Section 504 in that they (1) have physical

28 and/or mental impairments that substantially limits one or more major life activities; and meet the
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1 essential eligibility requirements in that they (2) are capable of living independently in their own

2 homes and/or in the most integrated community setting possible, with assistance; and (3) meet the

3 Medi-Cal income eligibility requirements.

4

198. Defendants' actions have placed members of the Plaintiff Class at risk of

5 unnecessary confinement in institutions, including nursing facilities, or other out-of-home

6 placements that are not the most integrated community placements possible, in violation of Section

7 504's integration mandate.

8

199. Defendants discriminate against Plaintiffs and Class members in ways that include,

9 but are not limited to, failing to provide reasonable modifications to programs and services.

10

200. Defendants have utilized eligibility criteria and methods of administration that

11 subj ect Plaintiffs and members of the Plaintiff Class to discrimination on the basis of disability in

12 violation of28 C.F.R. § 41.51(b)(3)(i) and 45 C.F.R. § 84.4(b)(4), and otherwise denied

13 meaningful access to their programs, services and activities.

14

201. Defendants' actions discriminate against individuals with cognitive and psychiatric

15 disabilities, based on their type of disability, because the functional rankings and FI Scores for such

16 individuals are lower than the functional rankings and FI scores of individuals with physical

17 disabilities who have the same level of need for IHSS services, and will result in the deprivation of

18 services to individuals with mental disabilities, even if they have the same level of need as

19 individuals with physical disabilities who are not deprived ofIHSS services.

20

202. Defendants' actions violate Section 504.

21

FIFTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

22

Medicaid Act Comparability Requirement

23

203. Plaintiffs reallege and incorporate herein by reference each and every allegation and

24 paragraph set forth previously.

25

204. Under federal Medicaid requirements, states must provide comparable benefits, i.e.,

26 benefits that are equal in "amount, duration and scope," to all categorically needy Medicaid

27 beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. § 440.240(a), (b)(I). Categorically

28
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1 needy Medicaid beneficiaries are beneficiaries who, in most cases, receive cash public assistance to

2 meet basic needs.

3

205. The Medicaid Act also requires states to provide comparable benefits to all

4 medically needy Medicaid beneficiaries. 42 US.c. § 1396a (a)(10)(B)(ii); 42 C.F.R. §§ 440.240

5 (b)(1). Medically needy Medicaid beneficiaries are beneficiaries who do not receive cash public

6 assistance because they have income or resources in excess of the requirements for receipt of such

7 assistance, but who nevertheless meet categorical requirements for such assistance, e.g., they are

8 over age 65, blind, or disabled.

9

206. States may provide benefits to the medically needy that are less in amount, duration

10 and scope than benefits to the categorically needy, but California has not elected to do so.

11

207. Therefore (with certain exceptions for some groups not relevant here), California

12 must provide benefits under its Medicaid program that are equal in amount, duration and scope to

13 all eligible beneficiaries. The only permissible basis for distinguishing among such beneficiaries is

14 differing levels of need.

15

208. Pursuant to ABX4 4, Defendants will provide IHSS services to some Medicaid

16 recipients, while denying the same services to other IHSS recipients who have comparable needs,

17 based on an FI Score that is not a rational measure of need.

18

209. Pursuant to ABX4 4, Defendants will provide domestic and related IHSS services to

19 some Medicaid recipients, while denying the same services to other IHSS recipients who have

20 comparable needs, based on a functional rank that is not a rational measure of need.

21

210. Therefore, ABX4 4 violates Medicaid's comparability requirement, 42 US.C. §

22 1396a(a)(10)(B)(i).

23

211. Defendants' actions deprive Plaintiffs and members of the Plaintiff Class of rights,

24 privileges or immunities secured to them by the Constitution of the United States, in violation of 42

25 US.C. § 1983, and are preempted by the Supremacy Clause of the US. CONST., art. IV.

26

27

28
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1

SIXTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

2

Medicaid Act Sufficiency Requirement:

Loss of Domestic and Related Services Subclass Only

3 212. Plaintiffs reallege and incorporate herein by reference each and every allegation and

4
paragraph set forth previously.

5 213. Under federal Medicaid requirements, states must provide "sufficient" benefits.

6
That is, "[e]ach service must be sufficient in amount, duration, and scope to reasonably achieve its

7 purpose." 42 C.F.R. § 440.230(b).

8
214. By terminating or reducing IHSS domestic and related services to individuals for

9
whom such services have been deemed necessary pursuant to an individual service plan approved

10 by the state, ABX4 4 will result in insufficient services to fulfill the purpose of the IHSS benefit.

11 215. ABX4 4 is inconsistent with the federal law and preempted by the Supremacy

12 Clause of the US. CONST., art. IV.

13

14

SEVENTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

15

Medicaid Reasonable Standards Requirement

16

216. Plaintiffs reallege and incorporate herein by reference each and every allegation and

17 paragraph set forth previously.

18

217. Federal Medicaid law requires participating states to establish reasonable standards,

19 consistent with the objectives of the Medicaid Act, for determining the extent of covered services.

20 See 42 US.C. § 1396a(a)(17).

21

218. Pursuant to ABX4 4, Defendants will cover IHSS services for some Medicaid

22 recipients, while denying the same services to other IHSS recipients who have comparable needs,

23 and will utilize FI Scores and/or functional ranks that do not provide a fair or reasonable measure

24 of need for services,

25

219. ABX4 4 is inconsistent and in conflict with the reasonable standards requirements

26 of the federal Medicaid Act, 42 US.C. §1396a(a)(17), and interpretive federal guidelines, and is

27 thus preempted by the Supremacy Clause of the United States Constitution, art. IV.

28
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1

EIGHTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

2

Medicaid Act, Early and Periodic Screening, Diagnostic and Treatment

(EPSDT) Services, 42 U.S.c. § 1396 et seq: Child Subclass Only

3 220. Plaintiffs reallege and incorporate herein by reference each and every allegation and

4
paragraph set forth previously.

5 221. Early and Periodic Screening, Diagnostic and Treatment ("EPSDT") for children

6
and youth under age 21 is a mandatory Medicaid service. See 42 US.C. §§ 1396a(a)(10)(A),

7 1396a(a)(43), 1396d(a)(4)(B), 1396d(r).

8
222. Thousands ofIHSS recipients in California are under the age of21 and are protected

9
by the EPSDT mandate, which requires the State to provide them with the services that are

10 medically necessary to ameliorate their conditions.

11 223. Under EPSDT, States must provide or arrange for periodic medical screens that

12 include a comprehensive health and developmental/mental health history and assessment,

13 unclothed physical examination, immunizations, laboratory testing, and health education. 42

14 US.C. §§ 1396a(a)(43), 1396d(r)(I).

15 224. States must provide for "arranging for (directly or through referral to appropriate

16 agencies, organizations or individuals) corrective treatment the need for which is disclosed by" a

17 periodic or inter-periodic screen. 42 US.c. § 1396a(a)(43)(C).

18 225. EPSDT treatment must include vision, dental and hearing services and "other

19 necessary health care, diagnostic services, treatment, and other measures described in subsection

20 (a) of this section [42 US.C. § 1396d(a)] to correct or ameliorate defects and physical and mental

21 illnesses and conditions discovered by the screening services whether or not such services are

22 covered under the State plan." 42 US.C. § 1396d(r)(5).

23 226. Under EPSDT, States must inform all Medi-Cal eligible persons in the State who

24 are under age 21 of the availability of early and periodic screening "and treatment services as

25 described in section 1396d(r)...." 42 US.c. § 1396a(a)(43)(A).

26 227. For each child under age 21 who has been approved for IHSS services through the

27 Medi-Cal Personal Care Services program, the State has previously made an individualized

28
38

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1 determination that the current level of personal care services are necessary to ameliorate the child's

2 condition. The reductions and terminations required by ABX4 4 have not been made on the basis

3 of an individualized determination that these services are no longer necessary, but for purely

4 budgetary reasons.

5

228. On information and belief, Defendants intend to subject children under the age of21

6 receiving personal care services from non-legally responsible relatives to the same reductions and

7 terminations as adults, in violation of the EPSDT mandates and the requirements of federal

8 Medicaid law.

9

229. EPSDT includes a notice and informing mandate. State EPSDT programs are

10 required to effectively inform individuals of the screening and treatment services available under

11 the program. 42 US.C. § 1396a(a)(43)(A); 42 C.F.R. §441.56(a). Under this informing mandate,

12 Defendants must inform all children of the full range ofEPSDT services, including personal care

13 services, that are available to them when needed to correct or ameliorate their physical and/or

14 mental conditions.

15

230. On information and belief, Defendants do not intend to inform children receiving

16 personal care services from a legally-responsible parent provider through the IHSS Plus waiver of

17 the availability of uninterrupted personal care services from a non-parent provider through the

18 EPSDT program.

19

231. Defendants' actions, as described above, fail to provide for Medi-Cal-eligible

20 children to obtain coverage of personal care services as required by the EPSDT provisions of the

21 Medicaid Act. 42 US.C. §§ 1396a(a)(10)(A), 1396a(a)(43)(A), (C), 1396d(a)(4)(B), 1396d(r)(5),

22 enforceable by Plaintiffs pursuant to 42 US.C. § 1983.

23

NINTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

24

Medicaid: ARRA: Termination of Benefits Subclass Only

25

232. Plaintiffs reallege and incorporate herein by reference each and every allegation and

26 paragraph set forth previously.

27

233. In 2009, Congress passed the ARRA or Stimulus Act, Pub. Law No. 111-5 (2009),

28 which included a temporary increase in the Federal Medical Assistance Percentages, which is the
39
Amended Class Action Complaint for Injunctive and Declaratory Relief, Case No. CV 09-04668 JSW

Case3:09-cv-04668-JSW Document17 Filed10/05/09 Page41 of 44

1 level of federal financial participation in state Medicaid programs. See Title V of ARRA, §§5000,

2 et seq.

3

234. This increased federal matching assistance is meant to "protect and maintain State

4 Medicaid programs during a period of economic downturn, including by helping avert cuts to

5 provider payment rates and benefits or services, and to prevent constrictions of income eligibility

6 requirements for such programs...." ARRA, § 5000, Pub. L. No. 111-5 (2009).

7

235. States are ineligible for the ARRA's increased federal match if eligibility standards,

8 methodologies, or procedures under their Medicaid state plan (including any waivers) are more

9 restrictive than the eligibility standards, methodologies, or procedures under such plan (or waiver)

10 as in effect on July 1, 2008. ARRA § 5000(£)(1).

11

236. The State of California has received increased federal matching assistance funds and

12 plans to continue to receive such funds.

13

237. By making ineligible for IHSS individuals with FI Scores ofless than 2.0, ABX4 4

14 will result in eligibility standards, methodologies, or procedures under the California Medicaid plan

15 and/or waivers that are more restrictive than the eligibility standards, methodologies, or procedures

16 that were in effect on July 1, 2008.

17

238. ABX 4 therefore violates the ARRA, and is preempted by the Supremacy Clause of

18 the U.S. CaNST., art. IV.

19

REQUEST FOR RELIEF

20

WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies on

21 behalf of themselves and all others similarly situated:

22

a) Assume jurisdiction over this action and maintain continuing jurisdiction until

23 Defendants are in full compliance with every order of this Court;

24

b) Certify this action as a class action and appoint the individual named Plaintiffs as

25 Class representatives;

26

c) Declare that ABX4 4 and Defendants DHCS and CDSS' policies, practices, acts and

27 omissions as set forth above violate the American with Disabilities Act and Section 504 of the

28 Rehabilitation Act;
40
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1

d) Declare that ABX4 4 and Defendant Wagner and Maxwell-Jolly's policies,

2 practices, acts and omissions as set forth above violate the Medicaid Act (comparability,

3 sufficiency, reasonable fair hearing, EPSDT, and ARRA provisions), the Due Process Clause of the

4 United States Constitution, and 42 US.C. § 1983, and are preempted by the Supremacy Clause.

5

e) Grant a temporary restraining order, preliminary and permanent injunction enjoining

6 Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert

7 or participation with them from implementing the provisions of ABX4 4 that amended Sections

8 12309(e) and 12309.2 of the Welfare and Institutions Code to make ineligible for IHSS services

9 recipients with FI Scores ofless than 2.0 and to make ineligible for domestic and related services

10 individuals with functional ranks of less than 4 for those services.

11

f)

Award the Plaintiffs the costs of this action and reasonable attorneys' fees pursuant

12 to 20 US.C. § 794a; 42 US.c. §§ 1988, 12133, 12205; and as otherwise may be allowed by law.

13 All such other and further relief as the Court deems to be just and equitable.

14 Dated: October 5, 2009
15

Respectfully Submitted,

16 By: lsi Melinda Bird

17

MELINDA BIRD (SBN 102236)

18

MARILYN HOLLE (SBN 61530)

DEBORAH DORFMAN (CRLSA No. 801060)

19

DISABILITY RIGHTS CALIFORNIA

20

LOS ANGELES REGIONAL OFFICE

3580 Wilshire Blvd., Ste. 902

21

Los Angeles, CA 90010

Telephone: (213) 427-8747

22

Facsimile: (213) 427-8767

23

Melinda. bird@disabilityrightsca.org Debbie. dorfman@disabilityrightsca.org

24

Marilyn. holle@disabilityrightsca.org

25

SUJATHA JAGADEESH BRANCH (SBN 166259)

DISABILITY RIGHTS CALIFORNIA

26

SACRAMENTO REGIONAL OFFICE

27

100 Howe Ave., Suite 235N Sacramento, CA 95825

28

Telephone: (916) 488-9950

41

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Case3:09-cv-04668-JSW Document17 Filed10/05/09 Page43 of 44

1

Facsimile: (916) 488-9960

Suj atha. branch@disabilityrightsca.org 2

3

DARA L. SCHUR (SBN 98638)

FREDERICK P. NISEN (SBN 184089)

4

JUNG PHAM (SBN 251232)

DISABILITY RIGHTS CALIFORNIA

5

BAY AREA REGIONAL OFFICE

1330 Broadway, Suite 500

6

Oakland, CA 94612

7

Telephone: (510) 267-1200

Facsimile: (510) 267-1201

8

Dara. schur@disabilityrightsca.org

Fred. nisen@disabilityrightsca.org

9

Jung. pham@disabilityrightsca.org

10

ANN MENASCHE (SBN 74774)

11

DISABILITY RIGHTS CALIFORNIA

SAN DIEGO REGIONAL OFFICE

12

III Sixth Avenue, Suite 200

San Diego, CA 92101

13

Telephone: (619) 239-7861

14

Facsimile: (619) 239-7906 Ann. menasche@disabilityrightsca.org

15 PAULA PEARLMAN (SBN 109038)

16

SHAWNAPARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

17

919 Albany Street

18

Los Angeles, CA 90015 Telephone: (213) 736-1031

19

Facsimile: (213) 736-1428

Paula.pearlman@lls.edu

20

Shawna.parks@lls.edu

21

CHARLES WOLFINGER (SBN 63467)

22

LAW OFFICE OF CHARLES WOLFINGER

4655 Cass Street #314

23

San Diego, Ca 92109

Telephone: (858) 272-8115

24

Facsimile: (858) 270-3960

Cw@charleswolfinger.com 25

26

JANE PERKINS (SBN 104784)

NATIONAL HEALTH LAW PROGRAM

27

211 N. Columbia Street

Chapel Hill, NC 27514

28

Telephone: (919) 968-6308

42

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Case3:09-cv-04668-JSW Document17 Filed10/05/09 Page44 of 44

1

Facsimile: (919) 968-8855

perkins@healthlaw.org 2

3

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

4

1330 Broadway, Suite 525

Oakland, CA 94612

5

Telephone: (510) 663-1055

Facsimile: (510) 663-1051
6

7

Attorneysfor Individual Named Plaintiffs VL., David

Oster, Willie Beatrice Sheppard, c.R., Dotty Jones,

8

and the Plaintiff Class

9

By: lsi StacevM Levton

10

STEPHEN P. BERZON (SBN 46540)

11

EVE H. CERVANTEZ (SBN 164709)

STACEY M. LEYTON (SBN 203827)

12

PEDER J. THOREEN (SBN 217081)

CASEY A. ROBERTS (SBN 253474)

13

(Admission Pending)

14

Altshuler Berzon LLP 177 Post Street, Suite 300

15

San Francisco, California 94108

Telephone: (415) 421-7151

16

Facsimile: (415) 362-8064

sberzon@altshulerberzon.com

17

ecervantez@altshulerberzon.com

18

sleyton@altshulerberzon.com pthoreen@altshulerberzon.com

19

croberts@altshulerberzon.com

20

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

SEIU Local 52], SEIU California State Council,

21

UDW, and CUHW

22

23

24

25

26

27

28
43
Amended Class Action Complaint for Injunctive and Declaratory Relief, Case No. CV 09-04668 JSW

 
 Case4:09-cv-04668-CW Document198 Filed10/23/09 Page1 of 31

United States District Court For the Northern District of California

1

2

3

IN THE UNITED STATES DISTRICT COURT

4

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 V.L., et al.,

8

Plaintiffs,

9

v.

10 JOHN A. WAGNER, Director of the California Department of Social
11 Services; DAVID MAXWELL-JOLLY, Director of the California Department
12 of Health Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES;
13 CALIFORNIA DEPARTMENT OF SOCIAL SERVICES,

14 Defendants.

15

/

No. C 09-04668 CW
ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

16 Plaintiffs are disabled and elderly Californians who need in-
17 home assistance with one or more of the activities of daily living,
18 such as eating, bathing, toileting or taking medication, in order
19 to live safely at home without risk of serious injury or harm.
20 Plaintiffs seek to prevent the State from applying a change in the
21 law to reduce or terminate these services to over 130,000 people
22 who receive them from the state In-Home Supportive Services (IHSS)
23 program, by changing the eligibility criteria of the program in a
24 way that, the Court concludes, likely violates federal law. This
25 change would reduce or terminate services to recipients based on
26 numerical rankings and a complicated mathematical formula devised
27 years ago, which was not designed, and has never been used, to
28

Case4:09-cv-04668-CW Document198 Filed10/23/09 Page2 of 31

United States District Court For the Northern District of California

1 measure an individual’s need for care.

2

Plaintiffs provide ample evidence that they and others like

3 them will be irreparably harmed if they lose their in-home help.

4 They will be unable to care for themselves, suffer injuries, and be

5 relegated to emergency rooms, hospitals, and other institutions.

6 Although the State counters that its budget crisis requires such

7 cuts, and the Court weighs this in the balance, the increase in

8 more expensive hospitalization and institutionalization of needy

9 disabled and elderly people will likely outweigh the short-term

10 savings. And in any event, the human suffering that will be caused

11 by the change in the law justifies the Court’s preliminary

12 injunction against the implementation of this change.

13

BACKGROUND

14

Under the 1965 federal Medicaid Act, the federal government

15 financially assists participating states that provide medical

16 services to eligible beneficiaries. California participates in

17 Medicaid through the Medi-Cal Program. In 1973, California

18 established In-Home Supportive Services (IHSS) as part of its Medi-

19 Cal program to provide assistance with the tasks of daily living to

20 low-income elderly and disabled persons. IHSS is funded with a

21 combination of state, county and federal Medicaid monies. Id.

22 § 12306. Over 360,000 IHSS caregivers serve over 440,000

23 individuals in California. Sixty percent of IHSS recipients are

24 senior citizens.

25

Those who qualify for IHSS are persons “who are unable to

26 perform the services themselves and who cannot safely remain in

27 their homes or abodes of their own choosing unless these services

28 are provided.” Welf. & Inst. Code § 12300(a). The California

2

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United States District Court For the Northern District of California

1 Department of Social Services (CDSS) Manual of Policies and

2 Procedures (MPP) similarly directs that IHSS “provides assistance

3 to those eligible aged, blind and disabled individuals who are

4 unable to remain safely in their own homes without this

5 assistance.” MPP § 30-700.1.1 The MPP also states that a

6 particular service will not be authorized unless the social worker

7 evaluating the individual “has determined that the recipient would

8 not be able to remain safely in his/her own home without IHSS” and

9 “performance of the service by the recipient would constitute such

10 a threat to his/her health/safety that he/she would be unable to

11 remain in his/her own home.” Id. § 30-761.13-14.

12

In 1988, fifteen years after the IHSS program was created, the

13 State legislature passed a law requiring the CDSS to develop a

14 uniform needs assessment tool “to assure that in-home supportive

15 services are delivered in all counties in a uniform manner.” Cal.

16 Welf. & Inst. Code § 12309(a).

17

The CDSS developed and implemented such a tool, calling it the

18 Uniformity Assessment System. The System defined ranks of one to

19 five for social workers to use in use in rating elderly or disabled

20 individuals’ functional abilities in each of fourteen areas:2

21 housework; laundry; shopping and errands; meal preparation and

22 1The Court takes judicial notice of Plaintiffs’ Exhibits A
23 through I to their request and the State Defendants’ Exhibits A and B to their request. These documents consist of publications by
24 state officials and agencies which contain facts that are not subject to reasonable dispute in that they are capable of accurate
25 and ready determination by resort to sources whose accuracy cannot be reasonably questioned.
26 2It is not clear why, but these areas do not include many
27 other tasks for which IHSS hours may be authorized, such as helping with self-administration of medications or transportation to
28 doctors’ appointments.

3

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United States District Court For the Northern District of California

1 clean up; mobility inside the residence; bathing and grooming;

2 dressing; bowel, bladder and menstrual; transfer from one position

3 to another; eating; respiration; memory; orientation; and judgment.

4 The ranks are defined as follows:

5

Rank one. A recipient’s functioning shall be classified as

rank one if his or her functioning is independent, and he or

6

she is able to perform the function without human assistance,

although the recipient may have difficulty in performing the

7

function, but the completion of the function, with or without

a device or mobility aid, poses no substantial risk to his or

8

her safety.

9

Rank two. A recipient’s functioning shall be classified as

rank two if he or she is able to perform a function, but

10

needs verbal assistance, such as reminding, guidance, or

encouragement.

11

Rank three. A recipient’s functioning shall be classified as

12

rank three if he or she can perform the function with some

human assistance, including, but not limited to, direct

13

physical assistance from a provider.

14

Rank four. A recipient’s functioning shall be classified as

rank four if he or she can perform a function, but only with

15

substantial human assistance.

16

Rank five. A recipient’s functioning shall be classified as

rank five if he or she cannot perform the function, with or

17

without human assistance.

18 Id. § 12309(d).

19

Social workers annually re-assess each recipient’s rank in the

20 fourteen areas on an individualized basis. MPP § 30-761.1. These

21 social workers are specifically trained to determine a recipient’s

22 level of functional ability. Since 2005, the State has spent $10

23 million providing eight days of training to over 16,000 social

24 workers who conduct IHSS assessments.

25

However, the ranks have never before been used to determine

26 IHSS eligibility. Rather, as noted above, social workers were

27 required to find a person eligible for services if he or she “would

28 not be able to remain safely in his/her own home without IHSS.”

4

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United States District Court For the Northern District of California

1 Id.; see also Welf. & Inst. Code § 12300(a); MPP § 30-700.1. By

2 definition, an individual given a rank of two through five in any

3 of the functions needs some IHSS assistance to remain safely in his

4 or her own home.

5

Rather, the purpose of the ranks was to help social workers

6 determine with uniformity the number of hours of a particular

7 service elderly and disabled individuals needed. In the MPP, time

8 guidelines are provided for each rank for some tasks.

9

As another part of the Uniformity Assessment System, the State

10 created the Functional Index (FI) Score in 1988. Each recipient is

11 given an overall Functional Index Score between 1.00 and 5.00,

12 which is calculated based on a weighted average of eleven of the

13 recipient’s fourteen ranks of functional ability.3 The mental

14 tasks (i.e., memory, orientation and judgment) are not counted in

15 this calculation. The State calculated the weights by using the

16 following method: first, the State computed the county-wide average

17 number of hours per week of IHHS provided for each task for the

18 people who received help with that task; second, all the county-

19 wide averages more than one standard deviation away from the mean

20 were removed from the computation; third, the county-wide averages

21 from each of the remaining counties were then averaged to get a

22 state-wide average of hours per week for each task; fourth, the

23 state-wide average of hours per week for each task were added

24 together to get a state-wide number representing the average IHSS

25 hours per week for all of the tasks; fifth, the state-wide average

26 for each task was divided by the state-wide average for all of the

27 3The parties refer to these numerical ranks of functioning as
28 “functional ranks.”

5

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United States District Court For the Northern District of California

1 tasks together. The quotient was the weight used to calculate the

2 FI Score. In effect, then, tasks that take more time are weighted

3 more heavily.

4

These weights were calculated in 1988 and have not been

5 changed since. The weights are as follows:

6

Function

Weight

Housework

.038

7

Laundry

.037

Shopping and Errands

.040

8

Meal Preparation and Clean Up

.222

Mobility Inside

.079

9

Bathing and Grooming

.095

Dressing

.057

10

Bowel, Bladder and Menstrual

.129

Transfer

.094

11

Eating

.127

Respiration

.082

12

An individual’s FI Score is calculated using these weights as

13

follows: A one is subtracted from his or her rank for each

14

function. Each of those numbers is multiplied by the weight

15

assigned to the respective functions. (As noted above, the mental

16

functioning ranks are not counted.) These products are totaled and

17

a one is added to the sum. The result is the FI Score. In a July

18

1, 1989 Report to the Legislature on IHSS Uniformity, the CDSS

19

stated, “Admittedly, the description of the application of the

20

formula is difficult to conceptualize.” Report to Legislature:

21

IHSS Uniformity at 10.

22

In effect, then, a person who needs help with a greater number

23

of different tasks, especially tasks usually that take more time

24

perform, will have a higher score than a person who needs help with

25

a smaller number of different tasks, irrespective of the severity

26

of their need for the help. Need for assistance with the mental

27

functioning tasks of memory, orientation and judgment is not

28

6

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United States District Court For the Northern District of California

1 considered in the Score.

2

FI Scores were intended to be used by social workers and

3 county and state administrators “to compare the FI Scores and FI

4 Hours of clients on their caseload.” All County Letter No. 88-118

5 at 5. For example, if the hours of IHSS approved by a social

6 worker “do not seem to correlate to the FI Score, the worker should

7 be able to identify unique circumstances which account for the

8 variance.” Id. The FI Score was specifically not meant to be used

9 as a tool to predict the number of hours an individual beneficiary

10 needed. Id. at 4. More importantly, the FI Score was not created

11 to be an eligibility criterion to determine whether an individual

12 beneficiary needed services to live safely in his or her home.

13

In response to California’s current budget crisis, the

14 Legislature passed and on July 28, 2009, the Governor signed ABX4

15 4, which put numerical ranks and FI Scores to a new use.

16 Specifically, ABX4 4 amended section 12309 and added section

17 12309.2 to the California Welfare and Institutions Code, to provide

18 that IHSS recipients must have a numerical rank of at least four in

19 a given category of domestic and related services (i.e. housework;

20 laundry; shopping and errands; and meal preparation and clean up)

21 to receive any services in that category, and must have an FI Score

22 of at least 2.0 to receive any IHSS services at all.

23

ABX4 4 exempts individuals authorized to receive either

24 protective supervision or paramedical services.4 These

25

26

4“Paramedical services include the administration of

medications, puncturing the skin or inserting a medical device into 27 a body orifice, activities requiring sterile procedures, or other

activities requiring judgment based on training given by a licensed

28

(continued...)

7

Case4:09-cv-04668-CW Document198 Filed10/23/09 Page8 of 31

United States District Court For the Northern District of California

1 beneficiaries will continue to receive all of their IHSS services

2 regardless of their FI Scores and numerical ranks for domestic and

3 related services. Cal. Welf. & Inst. Code §§ 12309(e)(2) &

4 12309(a)(3). Defendants claim that if recipients rank at five in

5 any one of the mental functioning categories they receive

6 protective supervision services and are exempt from the ABX4 4

7 requirements.5 However, Plaintiffs dispute this point because

8 protective supervision is available only if “a need exists for

9 twenty-four-hours-a-day of supervision in order for the recipient

10 to remain at home safely,” MPP § 30-757.173, and it is not clear

11 that everyone with a five in one of these categories requires

12 twenty-four hour care.

13

The new eligibility standards under ABX4 4 were to go into

14 effect on November 1, 2009. CDSS estimates that 97,000 disabled

15 and elderly individuals would lose domestic and related services

16 and 36,000 would lose all IHSS services.

17

CDSS planned to deliver Notices of Action to recipients whose

18 IHSS benefits would be reduced or eliminated by ABX4 4. The

19 notices were not sent because the Court issued a temporary

20 restraining order. Defendants have submitted to the Court the

21 notices they intended to send. If a recipient’s services would be

22 terminated altogether because his or her FI Score is less than 2.0,

23 the notice would state:

24

AS OF 11/01/2009, THE IN-HOME SUPPORTIVE SERVICES (IHSS)

YOU HAVE BEEN GETTING WILL STOP. HERE'S WHY: A CHANGE IN

25

26

4(...continued)

health care professional.” Cal. Welf. & Inst. Code § 12300.1. 27

5In the three mental tasks (i.e., memory, orientation and 28 judgment), recipients can be given ranks of only one, two or five.

8

Case4:09-cv-04668-CW Document198 Filed10/23/09 Page9 of 31

United States District Court For the Northern District of California

1

THE LAW SET A SPECIFIC NEED LEVEL NECESSARY TO GET IHSS

THAT IS DETERMINED BY FUNCTIONAL INDEX SCORE. THE NEED

2

FOR IHSS IS DETERMINED UTILIZING A UNIFORM NEEDS

ASSESSMENT TOOL DESIGNED TO EVALUATE FUNCTIONING IN ADLS

3

(ACTIVITIES OF DAILY LIVING) AND IADLS (INSTRUMENTAL

ACTIVITIES OF DAILY LIVING) MPP 12309(C)(1). THE UNIFORM

4

ASSESSMENT TOOL EVALUATES FUNCTIONAL ABILITY ON A DEFINED

SCALE MADE UP OF 5 RANKS: 1 -- INDEPENDENT; 2 -- REQUIRES

5

VERBAL ASSISTANCE; 3 -- REQUIRES SOME HUMAN ASSISTANCE;

4 -- REQUIRES SUBSTANTIAL HUMAN ASSISTANCE AND

6

5 -- CANNOT PERFORM WITH OR WITHOUT HUMAN ASSISTANCE.

RANKING IS DONE IN 11 AREAS OF PHYSICAL FUNCTIONING.

7

THEN A FUNCTIONAL INDEX (FI) SCORE IS DETERMINED

UTILIZING A WEIGHTED AVERAGE CALCULATION APPLIED TO THE

8

RANKINGS IN THESE 11 AREAS. THE FUNCTIONAL INDEX SCORE

PROVIDES A MEASUREMENT OF RELATIVE DEPENDENCE ON HUMAN

9

ASSISTANCE FOR IHSS TASKS. INDIVIDUALS WITH A FUNCTIONAL

INDEX SCORE BELOW 2.0 ARE NOT ELIGIBLE TO RECEIVE IHSS

10

(W&IC 12309(F)(2)).

11 Carroll Decl., Exh. C. The notice then lists the recipient’s

12 Functional Index Score as well as his or her ranks in each of the

13 eleven functions. A cursory and opaque one-page description of how

14 the State calculates the Score would be enclosed.

15

If some of a recipient’s services would be terminated because

16 his or her rank in those functions is below four, the notice would

17 state:

18

AS OF 11/01/2009, THE HOURS OF SERVICE FOR DOMESTIC YOU HAVE

BEEN GETTING WILL STOP. HERE'S WHY: A CHANGE IN THE LAW SET A

19

SPECIFIC NEED LEVEL NECESSARY TO GET DOMESTIC OR RELATED

SERVICES THAT IS DETERMINED BY FUNCTIONAL ABILITY IN THAT

20

AREA. FUNCTIONAL ABILITY IS MEASURED ON A 5 RANK SCALE: 1 --

INDEPENDENT; 2 -- REQUIRES VERBAL ASSISTANCE; 3 -- REQUIRES

21

SOME HUMAN ASSISTANCE; 4 -- REQUIRES SUBSTANTIAL HUMAN

ASSISTANCE AND 5 -- CANNOT PERFORM WITH OR WITHOUT HUMAN

22

ASSISTANCE. INDIVIDUALS WITH A RANK BELOW 4.0 ARE NOT

ELIGIBLE TO GET THE ASSOCIATED DOMESTIC OR RELATED SERVICE

23

(W&IC 12309(E)(1)). YOUR FUNCTIONAL RANK FOR DOMESTIC IS [1,

2 OR 3]. THEREFORE, YOUR NEED DOES NOT MEET THE REQUIRED

24

LEVEL TO GET HELP WITH DOMESTIC SERVICES.

25

The notice would then repeat the same paragraph for each

26 additional service eliminated.

27

At the bottom of the page, both forms of notice state in

28 Spanish, “If you do not understand the information or notice,

9

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United States District Court For the Northern District of California

1 contact the social worker in your county. The county should

2 provide you with an interpretation service free of charge.”

3

The back of both forms of notice advises recipients that they

4 have a right to a “conference with representatives of CDSS to talk

5 about this intended action.” Recipients also have the right to

6 receive a state hearing if they request it within ninety days of

7 the mailing date of the notice. If the request is made “before the

8 effective date of the county’s proposed action . . . services may

9 continue until the hearing.” If a recipient looks back to the

10 first page of the notice, he or she will learn that the date

11 alluded to is November 1, 2009.

12

On October 5, 2009, Plaintiffs filed this complaint and motion

13 for a temporary restraining order and/or preliminary injunction.6

14 Plaintiffs claim that amended sections 12309(e) and 12309.2 of the

15 California Welfare and Institutions Code violate the Medicaid Act,

16 the Americans with Disabilities Act, Section 504 of the

17 Rehabilitation Act and the Due Process Clause of the United States

18 Constitution. The Court granted Plaintiffs’ request to expedite

19 the briefing and set a hearing on the motion for October 19, 2009

20 based on Plaintiffs’ understanding that the notices would be mailed

21 on October 20. Defendants did not disabuse the Court of this

22

23

6Plaintiffs concurrently filed a motion for class

certification. However, Defendants concede that “there is no need 24 for the Court to consider class certification at this time.”

Opposition at 31. “District courts are empowered to grant 25 preliminary injunctions ‘regardless of whether the class has been

certified.’” Brantley v. Maxwell-Jolly, 2009 WL 2941519, at *14 26 n.14 (N.D. Cal.) (citing Schwarzer, Tashima and Wagstaffe, Federal

Civil Procedure Before Trial, § 10:773 at 10-116 (TRG 2008)). 27 Thus, Plaintiffs can obtain class-wide injunctive relief before

moving to certify a class and the Court denies Plaintiffs’ motion 28 without prejudice to refiling at a later date.

10

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United States District Court For the Northern District of California

1 understanding.

2

On October 14, Deputy Attorney General Gregory Brown notified

3 Plaintiffs that it was his “understanding that the Notices of

4 Action will be going out to recipients on October 15, 2009.”

5 Surprised at State Defendants’ decision to move forward with the

6 Notices of Action earlier than expected despite the pending motion,

7 Plaintiffs promptly moved for an immediate temporary restraining

8 order to enjoin State Defendants from issuing Notices of Action to

9 IHSS recipients regarding the subject matter of this litigation any

10 time prior to this Court’s ruling on the preliminary injunction

11 motion. The Court granted the temporary restraining order.7

12

LEGAL STANDARD

13

“A plaintiff seeking a preliminary injunction must establish

14 that he is likely to succeed on the merits, that he is likely to

15 suffer irreparable harm in the absence of preliminary relief, that

16 the balance of equities tips in his favor, and that an injunction

17 is in the public interest.” Winter v. Natural Res. Def. Council,

18 Inc., ___ U.S. ___, 129 S. Ct. 365, 374 (2008). “In each case,

19 courts ‘must balance the competing claims of injury and must

20 consider the effect on each party of the granting or withholding of

21 the requested relief.’” Id. at 376 (quoting Amoco Prod. Co. v.

22 Vill. of Gambell, Alaska, 480 U.S. 531, 542 (1987)).

23

DISCUSSION

24 I. Likelihood of Success on the Merits

25

A. Medicaid Act Claims

26

As mentioned above, Congress established the Medicaid program

27 7The Court has considered and hereby denies Defendants’
28 request for reconsideration of the temporary restraining order.

11

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1 in 1965 to enable states to provide medical services to individuals

2 with limited abilities to pay for health care. 42 U.S.C. § 1396-

3 1396v. A state’s participation in Medicaid is voluntary, but when

4 a state chooses to participate, it must comply with the Medicaid

5 Act and its implementing regulations. 42 U.S.C. § 1396.

6

1. Comparability Requirement

7

The “comparability” requirement of the Medicaid Act mandates

8 comparable services for individuals with comparable needs and is

9 violated when some recipients are treated differently than others

10 where each has the same level of need. 42 U.S.C.

11 § 1396a(a)(10)(B); see also 42 C.F.R. § 440.240; Jenkins v.

12 Washington State Dep’t of Social & Health Servs., 157 P.3d 388, 392

13 (Wash. 2007); Sobky v. Smoley, 855 F. Supp. 1123, 1139 (E.D. Cal.

14 1994) (comparability requirement “creates an equality principle”

15 for all medically needy individuals); Schott v. Olszewski, 401 F.3d

16 682, 688-89 (6th Cir. 2005); White v. Beal, 555 F.2d 1146, 1151-52

17 (3d Cir. 1977). The state may “place appropriate limits on a

18 service based on such criteria as medical necessity or on

19 utilization control procedures.” 42 C.F.R. § 440.230(c)(2).

20 However, the state may not “arbitrarily deny or reduce the amount,

21 duration, or scope of a required service . . . to an otherwise

22 eligible recipient solely because of the diagnosis, type of

23 illness, or condition.” 42 C.F.R. § 440.230(c)(1).

24

The use of numerical ranks and FI Scores to determine

25 eligibility for IHSS services likely violates the comparability

26 requirement because neither reasonably measures the individual need

27 of a disabled or elderly person for a particular service.

28

Numerical ranks are particularly inaccurate measures of the

12

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1 needs of individuals with mental impairments, such as elders with

2 Alzheimer’s disease. Individuals with cognitive and psychiatric

3 disabilities frequently require verbal rather than physical

4 assistance. Therefore, many of these individuals receive numerical

5 ranks of two rather than three or four. Numerical ranks of two for

6 recipients with mental disabilities reflect the nature of the

7 assistance needed, not the severity of the need. Disabled and

8 elderly individuals with numerical ranks of two have no less need

9 for verbal assistance than individuals with severe physical

10 impairments have for physical assistance. For example, elders may

11 need reminders to eat on a regular basis, take medication or avoid

12 eating foods contraindicated with certain medications. As one IHSS

13 Program manager explains:

14

Often all that someone with a cognitive or psychiatric

disability needs in order to maintain a safe and independent

15

living situation is someone who can come by every morning to

encourage or remind them to get out of bed, bathe, get

16

dressed, take medication, and have breakfast. . . . [W]ith no

IHSS provider visiting regularly . . . [a] person’s

17

environment and ability to live safely in the community can

fall apart in a matter of days, potentially leading to an

18

exacerbated medical condition, hospitalization,

institutionalization, homelessness and/or death. 19

Nicco Decl. ¶ 23. 20

A 1996 Study by the Institute for Social Research at 21

California State University Sacramento to assess the FI Score as a 22

predictor of IHSS hours noted that “whether provider assistance is 23

verbal (rank 2) or physical (3) their presence during task 24

performance is necessary and therefore the practical distinction 25

between the two ranks is elusive.” Kline Decl., Exh. D at 14.8 As 26

27

8Each side has challenged the admissibility of the evidence

28

(continued...)

13

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1 noted above, all ranks, two through five, reflect a social worker’s

2 determination that IHSS recipients are “unable to perform the

3 services themselves” and “cannot safely remain in their homes or

4 abodes of their own choosing unless these services are provided.”

5 Welf. & Inst. Code § 12300(a).

6

Similarly, the Functional Index Score is not an accurate

7 measure of need. It does not weigh the critical nature of the

8 services recipients need and it systematically disadvantages

9 certain groups of recipients. If a person with a particular type

10 of disability does not need assistance with most activities, but

11 critically needs substantial assistance with a few, he or she will

12 likely receive a low FI Score, and will be deprived of all IHSS

13 services.

14

For instance, recipients with seizure disorders generally have

15 an FI Score below 2.0 because they only need assistance with

16 bathing and cooking; however, it would be dangerous for these

17 individuals to perform these activities themselves. Blind

18 recipients also generally have FI Scores below 2.0, but they

19 critically need assistance traveling to medical appointments.

20

21

8(...continued)

submitted by the other side. However, on a motion for a 22 preliminary injunction, the Court may consider inadmissible

evidence, giving such evidence appropriate weight depending on the 23 competence, personal knowledge, and credibility of the declarants.

11A Charles A. Wright, Arthur K. Miller & Mary K. Kane, Federal 24 Practice and Procedure § 2949 at 216-217 (2d ed. 1995); see also

Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) 25 (“The urgency of obtaining a preliminary injunction necessitates a

prompt determination and makes it difficult to obtain affidavits 26 from persons who would be competent to testify at trial. The trial

court may give even inadmissible evidence some weight, when to do 27 so serves the purpose of preventing irreparable harm.”) Therefore,

the Court will exercise its discretion to consider the proffered 28 evidence as appropriate.

14

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1

Nor does the length of time a task normally takes necessarily

2 equate with the importance of the task to an individual’s health

3 and safety. But an elderly person who needs help with tasks which

4 on average are less time-consuming, such as mobility inside the

5 home, transfer from sitting to standing or respiration, is more

6 likely to receive a lower FI Score and lose all her services, than

7 is one who needs help with the kinds of tasks that tend to take

8 more time, such as meal preparation.

9

In sum, the FI Scoring system favors elderly and disabled

10 people with many different needs, especially needs for help with

11 tasks that are particularly time-intensive, over those with fewer

12 different needs, and needs for help with tasks that are less time-

13 intensive, even though the unmet needs of some of the latter

14 recipients may be equally or more life-threatening than those of

15 the former. The FI Score simply does not measure the severity of

16 need.

17

The FI Score is particularly inaccurate as a measure of the

18 needs of children and adolescents, whose services will be

19 terminated at disproportionately high rates. Collins Decl. ¶ 7

20 (thirty-six percent of children in San Luis Obispo County will be

21 terminated compared to twenty-five percent of adults); Nicco Decl.

22 ¶¶ 8-9 (twenty-three percent of children in San Francisco County

23 will be terminated compared to eight percent of adults).

24

Because children, with or without disabilities, are not

25 generally expected to perform such tasks as meal preparation and

26 housecleaning, children with disabilities are automatically ranked

27 at one on such tasks. This rank reflects, not the severity of

28 their disabilities, but only the expectations of their age group.

15

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1 To illustrate, a child or adolescent with a disability may have

2 high numerical ranks in other tasks because of serious unmet needs

3 such as mobility inside the home, transfer from one position to

4 another, bathing, dressing, or toileting and menstruation.

5 Nonetheless, his or her composite FI Score will be

6 disproportionately lower than that of an adult with the same

7 disability because the adult will likely have more tasks rated

8 above a one. Children’s and adolescents’ critical needs, though

9 fewer in number, will not be met, merely because they do not have

10 as many unmet needs as adults with the same level of disability.

11

FI Scores, like the numerical ranks, are also particularly

12 inaccurate measures for individuals with mental impairments. As

13 noted above, FI Scores do not count the numerical ranks assigned by

14 social workers for memory, judgment and orientation. Therefore,

15 mentally disabled individuals will generally have lower FI Scores

16 than those with physical disabilities. Individuals with mental

17 disabilities may need only a few critical services, such as

18 medication management and assistance with domestic and related

19 tasks. But, because they do not need help with a larger number of

20 personal care functions such as bowel/bladder, ambulation or

21 respiration, their FI Scores will generally be below 2.0. Nicco

22 Decl. ¶ 26; Syropiatko Decl. ¶ 6; Guerra Decl. ¶ 12; Baran Decl.

23 ¶ 14; Oster Decl. ¶ 11. Nevertheless, individuals with mental

24 impairments are no less in need of IHSS services than those with

25 physical impairments.

26

Jenkins, a recent opinion from the Washington State Supreme

27 Court, is instructive. In that case, the State had previously

28 determined the number of hours of home health care services needed

16

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1 by recipients, based on assessment of their ability to perform

2 daily living activities. The State then adopted a “shared living

3 rule” which reduced the level of household services to recipients

4 who lived with someone else. The reduction was not based on an

5 individual’s needs for service, that is, it did not consider

6 whether a recipient lived with someone who actually would help.

7 The court held that the State violated the comparability

8 requirement because it “reduce[d] a recipient’s benefits based on a

9 consideration other than the recipient’s actual need.” Jenkins,

10 157 P.3d at 390.

11

Here, IHSS recipients have been assessed in an individualized

12 process to determine the services they need to remain safely in

13 their homes. With the passage of ABX4 4, the State has

14 mechanically applied the numerical ranks and FI Score to a use for

15 which they were not designed. The Score is not a meaningful

16 measure of an individual’s degree of need for services. Because

17 need is the only basis upon which distinctions between recipients

18 can be made without violating the comparability requirement,

19 Plaintiffs have made a strong showing of likelihood of success on

20 the merits that ABX4 4 violates the comparability requirement of

21 the Medicaid Act.

22

2. Reasonable Standards Requirement

23

The Medicaid Act requires that all participating states use

24 “reasonable standards (which shall be comparable for all

25 groups) . . . for determining eligibility for and the extent of

26 medical assistance under the plan which . . . are consistent with

27 the objectives” of the program. 42 U.S.C. § 1396a(a)(17). The

28 primary objectives of the Medicaid program are to provide medical

17

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1 assistance to individuals whose income and resources are

2 insufficient to meet the costs of necessary medical services and to

3 furnish “rehabilitation and other services to help such . . .

4 individuals attain and retain capability for independence or self

5 care.” 42 U.S.C. § 1396-1.

6

For the reasons discussed above, numerical ranks and FI Scores

7 were not designed as a measure of eligibility or need for IHSS

8 services and cannot reasonably be used for this purpose. In a

9 manual produced by CDSS to help train social workers across the

10 state about IHSS, the agency described the FI Score in response to

11 the question, “How does the state compute the Functional Index,” as

12 follows: “that score has been tested and is not meaningful, so it

13 is a moot point.” Kline Decl., Ex. E at 8. A numerical rank of

14 two or above for any particular task indicates that the recipient

15 cannot live safely in his or her home without assistance for that

16 task; however, under ABX4 4, domestic and related services will be

17 terminated for all recipients with numerical ranks below four.

18

Plaintiffs have shown a likelihood of success on the merits of

19 their claim that the law employs an unreasonable standard to

20 determine the extent of medical assistance, in violation of

21 § 1396a(a)(17).

22

Defendants also argue that Plaintiffs’ claims under the

23 reasonable standards requirement must fail because these provisions

24 are not privately enforceable using 42 U.S.C. § 1983. Defendants

25 rely on Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006). In that

26 case, the Ninth Circuit held that Congress did not intend the

27 reasonable standards requirement of Section 1396a(a)(17) to create

28 a private right of action for individuals and organizations under

18

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1 § 1983. However, Watson does not bar a request for injunctive

2 relief under the Supremacy Clause for violations of the Medicaid

3 Act. Independent Living Ctr. S. Cal. v. Shewry, 543 F.3d 1050,

4 1056-57 (9th Cir. 2009), cert. denied, 129 S. Ct. 2828 (2009). In

5 Independent Living, the Ninth Circuit noted, “The Supreme Court has

6 repeatedly entertained claims for injunctive relief based on

7 federal preemption, without requiring that the standards for

8 bringing suit under § 1983 be met . . . .” Id. at 1055. The court

9 continued that “a plaintiff seeking injunctive relief under the

10 Supremacy Clause on the basis of federal preemption need not assert

11 a federally created ‘right,’ in the sense that term has been

12 recently used in suits brought under § 1983.” Id. at 1058.

13 Although Independent Living involved a different provision of the

14 Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A), nothing about the facts

15 or the court’s analysis in that case indicates that its holding

16 would not apply to the statute at issue in the present case. See

17 Lankford v. Sherman, 451 F.3d 496, 509-13 (8th Cir. 2006).

18 Although Section 1396a(a)(17) is not enforceable under § 1983,

19 Plaintiffs’ claims for injunctive relief may be brought under the

20 Supremacy Clause.

21

3. Sufficiency Requirement

22

The regulations implementing the Medicaid Act contain a

23 “sufficiency” requirement, which mandates, “Each service must be

24 sufficient in amount, duration, and scope to reasonably achieve its

25 purpose.” 42 C.F.R. § 440.230(b). When a state commits to provide

26 a Medicaid service, the sufficiency requirement ensures that it

27 adequately fulfills that obligation.

28

Defendants argue that ABX4 4 satisfies the sufficiency

19

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1 requirement because the law “will ensure that individuals with a

2 moderate to high level of need will continue to receive all

3 necessary services.” Opposition at 22. However, Defendants fail

4 to explain how the purposes of the program -- to enable disabled

5 and elderly people to remain in their homes safely –- will still be

6 fulfilled if domestic and related services for 97,000 needy

7 recipients are eliminated.

8

A 2009 report by the UCLA Center for Health Policy Research

9 assessing the cuts to IHSS found that “domestic services are in

10 some respects the ‘glue’ that permits older people to stay in their

11 homes. Shopping and meal preparation are especially essential,

12 since they influence how much and how well older people eat.”

13 Benjamin Decl., Ex. B at 13. “Weight loss in elders is often the

14 reason that they end up being placed into nursing homes. These

15 domestic and related services are vital.” Id. at ¶ 30.

16

The services currently provided through IHSS have already been

17 determined by social workers to be “necessary” to permit elderly

18 and disabled individuals to remain safely in their homes. MPP

19 § 30-761.1. Thus, the elimination of these services will likely

20 leave affected individuals without a level of service sufficient to

21 achieve the purpose of the program. Accordingly, the Court

22 concludes that Plaintiffs are likely to succeed on their

23 sufficiency claim.9

24

25

9Defendants assert that Plaintiffs’ “sufficiency” claim under

42 C.F.R. § 440.230(b) fails because a federal regulation, by 26 itself, does not create a privately enforceable right. See

Alexander v. Sandoval, 532 U.S. 275, 286-87, 291 (2001). However, 27 federal regulations may carry preemptive force, see, e.g., Geier v.

American Honda Motor Co., 529 U.S. 861, 884-86 (2000), and, as

28

(continued...)

20

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1

B. Americans with Disabilities Act Claim

2

The Americans with Disabilities Act (ADA) and the

3 Rehabilitation Act prohibit discrimination based on disability. 42

4 U.S.C. § 12132; 29 U.S.C. § 794(a). Unnecessary isolation is a

5 form of discrimination against people with disabilities. As the

6 Supreme Court has explained, “[u]njustified isolation of the

7 disabled” amounts to discrimination because institutional placement

8 “perpetuates unwarranted assumptions that persons so isolated are

9 incapable or unworthy of participating in community life” and

10 “severely diminishes everyday life activities of individuals,

11 including family relations, social contacts, work options, economic

12 independence, educational advancement, and cultural enrichment.”

13 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597, 60-61 (1999).

14

Thus, both the ADA and the Rehabilitation Act contain an

15 “integration mandate” which “serves one of the principal purposes

16 of Title II of the ADA: ending the isolation and segregation of

17 disabled persons.” Arc of Washington State v. Braddock, 427 F.3d

18 615, 618 (9th Cir. 2005). States are required to provide care in

19 integrated environments for as many disabled persons as is

20 reasonably feasible, so long as such an environment is appropriate

21 to their health needs. Specifically, the ADA regulations provide:

22 “A public entity shall administer services, programs, and

23 activities in the most integrated setting appropriate to the needs

24 of qualified persons with disabilities.” 28 C.F.R. § 35.130(d).

25

“The ‘most integrated setting’ is defined as ‘a setting that

26

27

9(...continued)

such, they may provide a cause of action for injunctive relief 28 under the Supremacy Clause.

21

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1 enables individuals with disabilities to interact with non-disabled

2 persons to the fullest extent possible.’” Brantley, 2009 WL

3 2941519, at *6 (citing 28 C.F.R. pt. 35 app. A; Olmstead, 527 U.S.

4 at 592).

5

Plaintiffs allege that ABX4 4 violates the “integration

6 mandate” of the ADA and the Rehabilitation Act by placing people in

7 serious risk of being forced to move out of their homes to the less

8 integrated setting of institutions. Although Olmstead addressed

9 ongoing institutionalization, plaintiffs who currently reside in

10 community settings may assert ADA integration claims to challenge

11 state actions that give rise to a risk of unnecessary

12 institutionalization. See Fisher v. Oklahoma Health Care Auth.,

13 335 F.3d 1175, 1181-82 (10th Cir. 2003) (imposition of cap on

14 prescription medications placed participants in community-based

15 program at high risk for premature entry into nursing homes in

16 violation of ADA); Ball v. Rogers, 2009 WL 1395423, at *5 (D.

17 Ariz.) (failure to provide them with needed services “threatened

18 Plaintiffs with institutionalization, prevented them from leaving

19 institutions, and in some instances forced them into institutions

20 in order to receive their necessary care” in violation of the ADA

21 and Rehabilitation Act); Mental Disability Law Clinic v. Hogan,

22 2008 WL 4104460, at *15 (E.D.N.Y.) (“even the risk of unjustified

23 segregation may be sufficient under Olmstead”).

24

Plaintiffs have submitted substantial evidence from experts,

25 county officials, caregivers and individual recipients showing that

26 class members face a severe risk of institutionalization as a

27 result of losing the services that ABX4 4 would eliminate. For

28 instance, individuals with mental disabilities who lose IHSS

22

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1 assistance to remind them to take medication, attend medical

2 appointments and perform tasks essential to their continued health

3 are at a severely increased risk for institutionalization. Elderly

4 and disabled individuals with unmet in-home care needs will likely

5 suffer falls which will lead to hospitalization and subsequent

6 institutionalization. Elderly individuals who lose meal

7 preparation services will decline in health and risk being placed

8 in a nursing home.

9

Defendants claim that Plaintiffs are not at risk of

10 institutionalization because some may have family members who may

11 be able to take over the care once provided by IHSS and some might

12 find care through some other community-based service. However,

13 Defendants bear the ultimate responsibility for ensuring the

14 State’s compliance with federal disability law. “Thus, to the

15 extent that Defendants are claiming that alternative services

16 satisfy their obligations under the integration mandate, Defendants

17 certainly bear the burden of ensuring more than a ‘theoretical’

18 availability of such services.” Brantley, 2009 WL 2941519, at *10.

19 Moreover, the record demonstrates that alternative services are not

20 available for a large portion of the class members who face the

21 risk of institutionalization. Accordingly, the Court concludes

22 that Plaintiffs have shown a likelihood of success on the merits of

23 their claim that Defendants violated the integration mandate.

24

C. Due Process Claim

25

Due process requires that the state must provide “notice

26 reasonably calculated, under all the circumstances, to apprise

27 interested parties of the pendency of the action and afford them an

28 opportunity to present their objections.” Mullane v. Central

23

Case4:09-cv-04668-CW Document198 Filed10/23/09 Page24 of 31

United States District Court For the Northern District of California

1 Hannover Bank & Trust Co., 339 U.S. 306, 314 (1950). IHSS

2 recipients must receive “timely and adequate notice detailing the

3 reasons for termination and an effective opportunity to defend”

4 themselves. Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970). To

5 comport with due process, notice must be “tailored to the

6 capacities and circumstances” of the recipients who must decide

7 whether to request a hearing. Id. at 268. “The government must

8 consider unique information about an intended recipient regardless

9 of whether a statutory scheme is reasonably calculated to provide

10 notice in the ordinary case.” Jones v. Flowers, 547 U.S. 220, 221

11 (2006).

12

Here, the notices Defendants plan to mail to IHSS recipients

13 likely do not comport with due process. Many class members,

14 because of their disabilities or inability to read English or both,

15 will be unable to understand and act upon the notice within ten

16 days of receipt so that they can request a fair hearing and

17 continue to receive IHSS services. For instance, fifteen percent

18 of IHSS recipients speak only Spanish. There is one line at the

19 bottom of the notices in Spanish that tells recipients to contact

20 “the social worker in your county” if they do not understand the

21 information. This phrase is misleading and confusing. The notice

22 says that the county should provide free translation services but

23 it does not tell recipients how to get this service nor has the

24 State made a showing that each county actually will provide this

25 service. Further, the notice does not warn Spanish-speaking

26 recipients that this is an important notice regarding termination

27 or reduction of benefits. Thirty-four percent of recipients are

28 monolingual in a language other than English or Spanish. Thus,

24

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1 this notice will be entirely meaningless to them. It is not

2 reasonable to expect these individuals to obtain translation of the

3 notice in sufficient time to act upon it within ten days, to

4 receive aid pending termination.

5

The notice is also difficult to read. The print is small,

6 single spaced and in all capital letters. It contains unexplained

7 acronyms and the description of numerical ranks and FI Scores is

8 virtually unintelligible. The elderly and disabled individuals

9 reading these notices will have a difficult time understanding

10 them, let alone taking the affirmative action required. Many IHSS

11 recipients cannot easily leave their homes due to their

12 disabilities; the notice does not inform them of their right to

13 have a hearing at home to dispute the service cuts.

14

CDSS has recognized that, before this notice, IHSS “recipients

15 have not previously been informed of their FI Ranks or FI

16 Scores. . . . the NOA [Notice of Action] implementing this change

17 in law will be the first time recipients have been informed of

18 their FI Ranks or FI Scores.” All County Letter No. 09-56, sent on

19 October 1, 2009. The terse notice and one page description of how

20 the FI Score is calculated do little to inform recipients of the

21 reasons for termination or how they might be able to rebut the

22 decision to terminate their IHSS services. Therefore, the Court

23 concludes that Plaintiffs have shown a likelihood of success on the

24 merits of their claim that the notice violates due process.10

25

26

10Because the Court concludes that a preliminary injunction is

warranted based on Plaintiffs’ likelihood of success on their 27 Medicaid Act, ADA integration mandate and due process claims, the

Court need not determine the likelihood of Plaintiffs’ success on

28

(continued...)

25

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1 II. Irreparable Harm, Balance of Hardships and the Public Interest

2

Numerous federal courts have recognized that the reduction or

3 elimination of public medical benefits irreparably harms the

4 participants in the programs being cut. See Beltran v. Myers, 677

5 F.2d 1317, 1322 (9th Cir. 1982) (holding that possibility that

6 plaintiffs would be denied Medicaid benefits sufficient to

7 establish irreparable harm); Newton-Nations v. Rogers, 316 F. Supp.

8 2d 883, 888 (D. Ariz. 2004) (citing Beltran and finding irreparable

9 harm shown where Medicaid recipients could be denied medical care

10 as a result of their inability to pay increased co-payment to

11 medical service providers); Edmonds v. Levine, 417 F. Supp. 2d

12 1323, 1342 (S.D. Fla. 2006) (finding that state Medicaid agency’s

13 denial of coverage for off-label use of prescription pain

14 medication would irreparably harm plaintiffs).

15

In addition, Plaintiffs have presented ample evidence to

16 support their claim that they will suffer immediate and irreparable

17 harm unless the Court issues a preliminary injunction. Counselors

18 who work with IHSS recipients predict a “humanitarian disaster” and

19 premature deaths. Baran Decl. ¶ 18; Goldberg Decl. ¶¶ 6-7. Some

20 individuals who lose their IHSS may neglect to take vital

21 medications or take them improperly. Others will be unable to

22 leave their house to obtain food, medication and other necessities.

23 Without an IHSS caregiver to transport recipients to doctor’s

24 appointments, many will go without essential care. Some recipients

25 will try to clean their home or cook food and injure themselves as

26 a result. Other recipients, because of mental illness or lack of

27 10(...continued)
28 their other claims under the ADA.

26

Case4:09-cv-04668-CW Document198 Filed10/23/09 Page27 of 31

United States District Court For the Northern District of California

1 appetite, need assistance in order to eat at all.

2

Entire families will be destabilized when a child or family

3 member is deprived of IHSS because relatives serving as caregivers

4 will be forced to seek other jobs without a way to care for their

5 loved ones. See e.g., Hathaway Decl. ¶ 5; Crockett Decl. ¶¶ 19-20;

6 Kaljian Decl. ¶ 18. Even a temporary interruption in services may

7 “result in damaging setbacks” for the affected individual. Baran

8 Decl. ¶ 20. The Executive Director of the IHSS Consortium in San

9 Francisco stated:

10

Each one of the IHSS recipients affected by the cuts

represents a person with a disability who has been stabilized

11

at home, often through a painstaking process that takes months

or even years, to find the right attendant, the right home or

12

apartment, the right combination of services. All of this

will be lost. And even if the cuts are restored later, it

13

will be virtually impossible to rebuild the safe living

situations people have now. 14

Id. There is also a serious risk that individuals with mental or 15

cognitive disabilities will become homeless if they lose IHSS 16

services. Once homeless, mentally ill individuals decline rapidly 17

and could end up anywhere from a psychiatric hospital to jail. 18

As noted above, if ABX4 4 is implemented, class members will 19

face a severe risk of unnecessary institutionalization.11 20

Institutionalizing individuals who can comfortably survive in their 21

22

11State Defendants argue that Plaintiffs have not shown that

any “named plaintiffs” are likely to suffer imminent, irreparable 23 harm. Opposition at 28. However, Defendants do not point to any

Ninth Circuit law that imposes the requirement that the Court 24 should consider only the risk of institutionalization faced by the

named Plaintiffs, and not by other class member declarants. 25 Moreover, because Defendants have conceded that the instant

injunction may apply to the entire class before such a class is 26 certified, the Court can look beyond the named Plaintiffs when

analyzing this aspect of the preliminary injunction motion. 27 Further, even if Defendants’ argument is correct, the named

Plaintiffs in this case are likely to face the risk of unnecessary 28 institutionalization.

27

Case4:09-cv-04668-CW Document198 Filed10/23/09 Page28 of 31

United States District Court For the Northern District of California

1 home with the help of IHSS caregivers will “cause Plaintiffs to

2 suffer injury to their mental and physical health, including a

3 shortened life, and even death for some Plaintiffs.” Crabtree v.

4 Goetz, 2008 WL 5330506, at *30 (M.D. Tenn.).

5

The balance of hardships also weighs in Plaintiffs’ favor. If

6 the preliminary injunction does not issue, the State Defendants’

7 sole injury will be the financial costs associated with continuing

8 to provide services under the status quo. The Court weighs

9 California’s budget crisis in the balance. However, “[a] budget

10 crisis does not excuse ongoing violations of federal law,

11 particularly when there are no adequate remedies available other

12 than an injunction.” Independent Living Ctr., 572 F.3d at 659. If

13 the State is of the view that some people are receiving IHSS

14 services for their convenience or improved quality of life rather

15 than need, individualized measures could be adopted to address this

16 circumstance. Further, the Court notes that there is persuasive

17 evidence that the IHSS cuts would actually cost the State tens of

18 millions of additional dollars because in-home care is considerably

19 less expensive than institutional care and IHHS caregivers reduce

20 the need for expensive emergency room visits and hospitalization.

21 Accordingly, the financial loss the State may suffer if ABX4 4 is

22 not implemented does not outweigh the hardship Plaintiffs would

23 suffer absent an injunction.

24

Lastly, the public interest weighs heavily in favor of

25 granting relief. “It would be tragic, not only from the standpoint

26 of the individuals involved but also from the standpoint of

27 society, were poor, elderly, disabled people to be wrongfully

28 deprived of essential benefits for any period of time.” Lopez v.

28

Case4:09-cv-04668-CW Document198 Filed10/23/09 Page29 of 31

United States District Court For the Northern District of California

1 Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).

2 III. Bond

3

Federal Rule of Civil Procedure 65(c) "invests the district

4 court ‘with discretion as to the amount of security required, if

5 any.’” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003)

6 (emphasis in original; quoting Barahona-Gomez v. Reno, 167 F.3d

7 1228, 1237 (9th Cir. 1999)). A district court has the discretion

8 to dispense with the security requirement where giving security

9 would effectively deny access to judicial review. See Save Our

10 Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005)

11 (citation omitted). Similarly, a district court may waive the bond

12 requirement where the plaintiffs are indigent. See Walker v.

13 Pierce, 665 F. Supp. 831, 844 (N.D. Cal. 1987). The Court waives

14 the bond requirement for Plaintiffs because they are indigent and

15 to ensure their ability to access the courts on behalf of

16 themselves and other class members.

17

CONCLUSION

18

For the foregoing reasons, the Court grants Plaintiffs’ motion

19 for a preliminary injunction (Docket No. 16). Defendants and their

20 successors, agents, officers, servants, employees, attorneys and

21 representatives and all persons acting in concert or participating

22 with them are enjoined from implementing the provisions of ABX4 4

23 that amended Sections 12309(e) and 12309.2 of the California

24 Welfare and Institutions Code to terminate from eligibility for

25 IHSS services those recipients with Functional Index Scores of less

26 than 2.0 and to eliminate domestic and related services for

27 recipients with functional ranks of less than 4 for those services.

28

The Court further orders that, to the extent that Defendants

29

Case4:09-cv-04668-CW Document198 Filed10/23/09 Page30 of 31

United States District Court For the Northern District of California

1 have already taken actions to eliminate eligibility for IHSS

2 services for individuals with an FI Score under 2, or to eliminate

3 eligibility for domestic and related services for individuals with

4 functional ranks under 4, Defendants shall take all steps and

5 commit all resources necessary to ensure that no otherwise eligible

6 individual is denied eligibility for, or terminated from, IHSS,

7 solely on the basis of an FI Score under 2.0, and that no otherwise

8 eligible individual is denied eligibility for, or terminated from,

9 receipt of domestic and related IHSS services, solely on the basis

10 of a functional rank under 4. Defendants shall further ensure that

11 there is no delay in paying IHSS providers for services rendered to

12 individuals whom Defendants had planned to terminate or reduce IHSS

13 eligibility on the basis of an FI score under 2.0 or a functional

14 rank under 4. Defendants shall determine the method of

15 implementing the preliminary injunction that will be the least

16 expensive in the aggregate to the county and state taxpayers.

17 Defendants may require the counties to re-enter manually the

18 information about individual recipients whose IHSS services were

19 scheduled to be terminated or reduced because their FI Scores were

20 below 2.0 or their functional ranks for a particular domestic or

21 related service were below 4 only if that is less expensive than

22 doing it themselves. The State must reimburse the counties for

23 their expenses. The State may instead restore the system back-up

24 and re-enter the changes made in the interim.

25

To ensure that all relevant parties are aware of the Court’s

26 injunction, Defendants shall further rescind any directions or

27 notices issued to any person or entity for the termination or

28 reduction of IHSS benefits on the basis of an FI Score under 2 or

30

Case4:09-cv-04668-CW Document198 Filed10/23/09 Page31 of 31

United States District Court For the Northern District of California

1 functional ranks under 4; and shall notify all persons and entities

2 that have received such directions or notices that such IHSS

3 benefits will not be terminated or reduced. Defendants shall mail

4 a notice to all IHSS recipients informing them, in language agreed

5 upon by the parties, that the previously announced terminations or

6 reductions in IHSS service will not go into effect. Defendants

7 must mail this notice by Tuesday, October 27.

8

Defendants shall post a copy of this preliminary injunction

9 with an explanation of its effect on IHSS services conspicuously on

10 its website by the close of business on Monday, October 26, 2009.

11 Defendants shall serve and file a declaration of compliance by

12 Thursday, October 29, 2009.

13

The Court denies Plaintiffs’ motion for class certification

14 without prejudice to refiling (Docket No. 20) and denies

15 Defendants’ motion for reconsideration of the temporary restraining

16 order (Docket No. 169). The Court denies Defendants’ motion, made

17 orally at the hearing, for a stay pending appeal.

18

IT IS SO ORDERED.

19 Dated: 10/23/09 20

CLAUDIA WILKEN United States District Judge

21

22

23

24

25

26

27

28

31

 
 Case4:09-cv-04668-CW Document182 Filed10/19/09 Page1 of 2

United States District Court For the Northern District of California

1

2

3

4

5 IN THE UNITED STATES DISTRICT COURT
6

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

9 V.L., et al.,

10

Plaintiffs,

No. C 09-04668 CW
PRELIMINARY INJUNCTION

11

v.

12 JOHN A. WAGNER, et al.,

13

Defendants.

/

14

15

IT IS HEREBY ORDERED that Defendants and their successors,

16 agents, officers, servants, employees, attorneys and

17 representatives and all persons acting in concert or participating

18 with them are enjoined from implementing the provisions of ABX4 4

19 that amended Sections 12309(e) and 12309.2 of the California

20 Welfare and Institutions Code to terminate from eligibility for

21 IHSS services those recipients with Functional Index Scores of less

22 than 2.0 and to eliminate domestic and related services for

23 recipients with functional ranks of less than 4 for those services.

24 The Court also enjoins Defendants from issuing notices of action to

25 In-Home Support Services (IHSS) recipients declaring that certain

26 individuals will have their IHSS eligibility terminated or reduced

27 on the basis of a Functional Index Score under 2.0 or functional

28 rank under 4.

Case4:09-cv-04668-CW Document182 Filed10/19/09 Page2 of 2

United States District Court For the Northern District of California

1

A reasoned written order will follow.

2

IT IS SO ORDERED.

3 Dated: 10/19/09 4

CLAUDIA WILKEN United States District Judge

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

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24

25

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28

2

 
 Case4:09-cv-04668-CW Document181 Filed10/19/09 Page1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

V.L., ET AL, Plaintiff,
v.

NO. C 09-04668 CW
MINUTE ORDER Date: 10/19/09

WAGNER ET AL,

Defendant.

The Honorable Claudia Wilken, Presiding Clerk: Sheilah Cahill Court Reporter: Raynee Mercado

Appearances for Plaintiff: Anna Rich; Melinda Bird; Deborah Dorfman; Sujatha Branch; Eve Cervantes; Stacey Leyton; Dana Schur; Stephen Berzon; Casey Roberts; Fred Nisen

Appearances for Defendant: Gregory Brown; Susan Carson

Motions:

Plaintiffs

Mo. for preliminary Granted injunction

Further briefing due: Order to be prepared by: Court

Notes: Court will keep in effect TRO and convert it to a preliminary injunction. Defendants to submit their proposed order. Plaintiffs can submit additional response by close of business tomorrow; defendants can reply 24 hours thereafter. Court denies stay pending appeal.

Copies to: Chambers

 
 Case4:09-cv-04668-CW Document128 Filed10/14/09 Page1 of 1

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

10

11 V.L., et al.,

12

Pl

aintiffs

13

v.

14

WAGNER, et al.,

15 Defendants

16

) Case No.: CV 09-04668 CW ) ) ORDER GRANTING EMERGENCY ) TEMPORARY RESTRAINING ORDER ) ) ) ) ) ) )

17

18

GOOD CAUSE HAVING BEEN SHOWN, the Court hereby enjoins defendants from

19 issuing notices of action to In-Home Support Services (“IHSS”) recipients regarding the subject

20 matter of this litigation any time prior to this Court’s ruling on Plaintiffs’ application for

21 preliminary injunctive relief after the hearing currently scheduled for October 19, 2009.

22 IT IS SO ORDERED:
23

24

10/ DATED:

14/09

25

Hon.

26

______________________________________ Claudia Wilken
United States District Judge

27

28
[PROPOSED] ORDER GRANTING TRO CASE NO. CV09-04668 CW

 
 Case4:09-cv-04668-CW Document16 Filed10/05/09 Page1 of 48

1 MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)
2 DEBORAH DORFMAN (CRLSA No. 801060) DISABILITY RIGHTS CALIFORNIA
3 3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010
4 Telephone: (213) 427-8747 Facsimile: (213) 427-8767
5 Melinda.bird@disabilityrightsca.org Debbie.dorfman@disabilityrightsca.org
6 Marilyn.holle@disabilityrightsca.org

7 Attorneys for Named Plaintiffs and the Proposed Class Additional Attorneys for Named Plaintiffs and the
8 Proposed Class on Signature Page

9 STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)
10 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
11 Altshuler Berzon LLP 177 Post Street, Suite 300
12 San Francisco, California 94108 Telephone: (415) 421-7151
13 Facsimile: (415) 362-8064 sberzon@altshulerberzon.com
14 ecervantez@altshulerberzon.com sleyton@altshulerberzon.com
15 pthoreen@altshulerberzon.com

16 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU

Local 521, SEIU California State Council, UDW, and CUHW

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

19

20 V.L., et al.,

21

Pl

aintiffs

22

v.

23

WAGNER, et al.,

24 Defendants

25

26

) Case No.: CV 09-04668 JSW ) ) NOTICE OF MOTION AND MOTION ) FOR TEMPORARY RESTRAINING ) ORDER AND/OR PRELIMINARY ) INJUNCTION; MEMORANDUM OF ) POINTS AND AUTHORITIES IN ) SUPPORT THEREOF ) ) ) DATE: October 16, 2009 ) TIME: 9:00 a.m. ) PLACE: Courtroom 11, 19th Floor

27

28

NOTICE OF MOTION AND MOTION FOR TRO AND/OR PRELIMINARY INJUNCTION; MPA CASE NO. CV 09-04668 JSW

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page2 of 48

1 NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

2

AND/OR PRELIMINARY INJUNCTION

3

TO DEFENDANTS DIRECTOR JOHN WAGNER, THE CALIFORNIA DEPARTMENT

4 OF SOCIAL SERVICES, DIRECTOR DAVID MAXWELL-JOLLY, THE CALIFORNIA

5 DEPARTMENT OF HEALTHCARE SERVICES AND THEIR ATTORNEYS OF RECORD:

6 PLEASE TAKE NOTICE that on October 16, 2009 at 9:00 a.m. or as soon thereafter as counsel

7 may be heard in Courtroom 11, 19th Floor, United States District Court, Northern District of

8 California, located at 450 Golden Gate Avenue, San Francisco, CA, Plaintiffs individually and on

9 behalf of class members will move the Court pursuant to Rule 65 of the Federal Rules of Civil

10 Procedure and Rule 65-1 of the Civil Local Rules for a temporary restraining order and/or

11 preliminary injunction enjoining Defendants and their successors, agents, officers, servants,

12 employees, attorneys and representatives and all persons acting in concert or participating with

13 them, from implementing the provisions of ABX4 4 that amended Sections 12309(e) and 12309.2

14 of the California Welfare and Institutions Code to terminate from eligibility for IHSS services

15 those recipients with Functional Index Scores of less than 2.0 and to eliminate domestic and related

16 services for recipients with functional ranks of less than 4 for those services.

17

The Motion will be made on the ground that Plaintiffs and class members will suffer

18 irreparable injury unless the activities described above are enjoined, and that the activities

19 described above violate the Medicaid Act, the Americans with Disabilities Act, Section 504 of the

20 Rehabilitation Act, and the Due Process Clause of the United States Constitution. Plaintiffs are

21 concurrently filing a motion for class certification, and further move that the injunction issue on a

22 class-wide basis.

23

24

25

26

27

28

1 NOTICE OF MOTION AND MOTION FOR TRO AND/OR PRELIMINARY INJUNCTION; MPA
CASE NO. CV 09-04668 JSW

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page3 of 48

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES..........................................................................................................iii

3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
4 PRELIMINARY INJUNCTION .....................................................................................................1

5 INTRODUCTION........................................................................................................................... 1

6 BACKGROUND............................................................................................................................. 2

7

I. The IHSS Program Provides Necessary Services to Keep Elderly and

Disabled People Safely at Home ............................................................................. 2

8

A. IHSS Provides Core Services that Recipients Need to Remain Safely

9

at Home ....................................................................................................... 2

10

B. Recipients are Individually Assessed to Receive IHSS Services ............... 5

11

C. IHSS is Cost Effective ................................................................................ 6

12

II. New State Budget Act Provisions Will Cut IHSS Services Based on

Functional Index Ranking and Scores That Do Not Reflect Recipients’

13

Ability to Live Safely at Home ............................................................................... 7

14

A. ABX4 4 Eliminates IHSS Services for Tens of Thousands of

Recipients .................................................................................................... 7

15

B. The Functional Ranks Are Not An Accurate Predictor of Severity of

16

Disability or Whether Recipients Will Be Safe Without Assistance .......... 8

17

C. The Composite Functional Index Score Is Calculated By A Weighted

Formula That Does Not Reflect the Critical Nature of Certain

18

Services and Results in Low Scores for Certain Groups of

Recipients, Including Children and People with Mental Disabilities........ 10

19

LEGAL STANDARD ................................................................................................................... 14

20

ARGUMENT ................................................................................................................................ 14

21

I. The Termination of IHSS Services Will Cause Irreparable Injury, and the

22

Equities and Public Interest Weigh in Favor of a Status Quo Preliminary

Injunction............................................................................................................... 14

23

A. The Termination of IHSS Services Will Place Recipients at Great

24

Risk of Injury at Home, Homelessness and Institutionalization ............... 15

25

1. Risk of Injury and Effect on Health and Safety ............................. 15

26

2. Risk of Homelessness..................................................................... 16

27

3. Risk of Institutionalization ............................................................. 17

28

4. Plaintiffs Will Suffer Irreparable Injury ......................................... 18

i NOTICE OF MOTION AND MOTION FOR TRO AND/OR PRELIMINARY INJUNCTION; MPA
CASE NO. CV 09-04668 JSW

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page4 of 48

1

B. The Balance of Equities and Public Interest Favor Plaintiffs.................... 19

2

III. Plaintiffs Are Likely to Succeed on the Merits of Their Due Process,

3

Medicaid, and Americans with Disabilities Act Claims ....................................... 20

4

A. The Termination and Reduction Notices Violate Due Process

Because They Are Not Reasonably Calculated to Apprise IHSS

5

Recipients of Their Rights......................................................................... 20

6

B. ABX4 4 Violates the Medicaid Act’s Comparability, Reasonable

Standards, and Sufficiency Requirements ................................................. 23

7

1. By Providing Differing Levels of Medical Assistance to

8

Individuals With Similar Needs, ABX4 4 Violates the

Comparability Requirement of the Medicaid Act ......................... 23

9

2. By Authorizing IHSS Services Based on Functional Index

10

Score and Functional Ranks, ABX4 4 Violates the

Reasonable Standards Requirement .............................................. 26

11

3. By Failing to Provide Adequate Domestic and Related

12

Services, ABX4 4 Violates the Sufficiency Requirement............. 27

13

C. ABX4 4 Violates Title II of the ADA and Section 504 of The

Rehabilitation Act...................................................................................... 28

14

1. ABX4 4 Violates the ADA’s Integration Mandate by Placing

15

People with Disabilities at Risk of Unnecessary

Institutionalization......................................................................... 29

16

2. ABX4 4 Discriminates Against People with Psychiatric and

17

Cognitive Disabilities .................................................................... 32

18

3. ABX4 4 Uses Methods of Administration that Discriminate

Against People with Disabilities ................................................... 34

19

CONCLUSION ............................................................................................................................. 36

20

21

22

23

24

25

26

27

28

ii NOTICE OF MOTION AND MOTION FOR TRO AND/OR PRELIMINARY INJUNCTION; MPA
CASE NO. CV 09-04668 JSW

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page5 of 48

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Alexander v. Choate,

469 U.S. 287 (1985) .................................................................................................... 23, 34

4

Allen v. Mansour,

5

681 F.Supp. 1232 (E.D. Mich. 1986) ................................................................................ 26

6 America Trucking Ass'ns v. City of Los Angeles,

559 F.3d 1046 (9th Cir. 2009) ........................................................................................... 14

7

Arc of Wash. State Inc. v. Braddock,

8

427 F.3d 615 (9th Cir. 2005) ............................................................................................. 30

9 Ball v. Rodgers,

2009 WL 1395423 (D. Ariz. Apr. 24, 2009) ..................................................................... 31

10

Bay Area Addiction Research, Inc. v. City of Antioch,

11

179 F.3d 725 (9th Cir. 1999) ............................................................................................. 29

12 Beltran v. Meyers,

677 F.2d 1317 (9th Cir.1982) ............................................................................................ 19

13

Brantley v. Maxwell-Jolly,

14

2009 WL 2941519 (N.D. Cal. 2009)..................................................................... 14, 30, 35

15 California Pharmacists Association v. Maxwell-Jolly,

563 F.3d 847 (9th Cir. 2009) ............................................................................................. 19

16

Chalk v. United States Dist. Court Central Dist. Cal.,

17

840 F.2d 701 (9th Cir. 1988) ............................................................................................. 20

18 Charpentier v. Belshe,

1994 WL 792591 (E.D. Cal. Dec. 21, 1994)............................................................... 24, 27

19

Coleman v. Zatechka, 824 F.Supp.

20

824 F.Supp. 1360 (D. Neb. 1993) ..................................................................................... 32

21 Covey v. Town of Somers,

351 U.S. 141 (1956) .......................................................................................................... 21

22

Crabtree v. Goetz,

23

2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) ................................................... 18, 19, 31

24 Crowder v. Kitagawa,

81 F.3d 1480 (9th Cir. 1996) ....................................................................................... 32, 34

25

Curtis v. Taylor,

26

625 F.2d 645 (5th Cir. 1980) ............................................................................................. 27

27 Daniels v. Wadley, 926 F.Supp. 1305 (M.D. Tenn. 1996) ............................................................................... 19
28

iii NOTICE OF MOTION AND MOTION FOR TRO AND/OR PRELIMINARY INJUNCTION; MPA
CASE NO. CV 09-04668 JSW

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page6 of 48

1 David v. Heckler,

591 F.Supp. 1033 (E.D.N.Y. 1984) ...................................................................................21

2

Doston v. Duffy,

3

732 F.Supp. 857 (N. D. Ill. 1988)...................................................................................... 21

4 Duvall v. County of Kitsap,

260 F.3d 1124 (9th Cir. 2001) ........................................................................................... 30

5

EEOC v. Staten Island Sav. Bank,

6

207 F.3d 144 (2nd Cir. 2000) ............................................................................................ 33

7 Evans v. Chater,

110 F.3d 1480 (9th Cir. 1997) ........................................................................................... 21

8

Fisher v. Oklahoma Health Care Authority,

9

335 F.3d 1175 (10th Cir. 2003) ................................................................................... 30, 32

10 Frederick L. v. Department of Public Welfare of Com. Of Pennsylvania,

364 F.3d 487 (3rd Cir. 2004)............................................................................................. 32

11

Giebeler v. M & B Associates,

12

343 F.3d 1143 (9th Cir. 2003) ........................................................................................... 29

13 Goldberg v. Kelly,

397 U.S. 254 (1970) .................................................................................................... 20, 21

14

Gray Panthers v. Schweiker,

15

652 F.2d 146 (D.C. Cir. 1981)........................................................................................... 21

16 Guckenberger v. Boston University,

974 F.Supp. 106 (D. Mass. 1997)...................................................................................... 32

17

Habeas Corpus Res. Ctr. v. United States Dep't. of Justice,

18

2009 WL 185423 (N.D. Cal. Jan. 20, 2009)...................................................................... 14

19 Hamlyn v. Rock Island County Metropolitan Mass Transit District,

986 F.Supp. 1126 (C.D. Ill. 1997)..................................................................................... 34

20

Helen L. v. DiDario,

21

46 F.3d 325 (3rd Cir. 1995)............................................................................................... 34

22 Henrietta D. v. Gulliani,

119 F.Supp.2d 181 (E.D.N.Y. 2000) ...........................................................................23, 29

23

Hern v. Beye,

24

57 F.3d 906 (10th Cir. 1995) ............................................................................................. 26

25 Hodgson v. Board of County Comm'rs, Hennepin County,

614 F.2d 601 (8th Cir. 1980) ............................................................................................. 24

26

Independent Living Center of Southern California, Inc. v. Shewry,

27

543 F.3d 1050 (9th Cir. 2008) ........................................................................................... 23

28 Independent Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly,

iv NOTICE OF MOTION AND MOTION FOR TRO AND/OR PRELIMINARY INJUNCTION; MPA
CASE NO. CV 09-04668 JSW

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page7 of 48

1

572 F.3d 644 (9th Cir.2009) .............................................................................................. 19

2 Jones v. Flowers,

547 U.S. 220 (2006) .......................................................................................................... 21

3

Joyce v. City & County of San Francisco,

4

846 F.Supp.2d 843 (N.D. Cal. 1994)................................................................................. 14

5 Kansas Hospital Association v. Whiteman,

835 F.Supp. 1548 (D. Kan. 1993) .................................................................................... 19

6

Kathleen S. v. Pennsylvania Department of Publ. Welfare,

7

10 F.Supp.2d 460 (E.D. Pa. 1998)..................................................................................... 35

8 LaForest v. Former Clean Air Holding Co.,

376 F.3d 48 (2nd Cir. 2004) .............................................................................................. 19

9

Lankford v. Sherman,

10

451 F.3d 496 (8th Cir. 2006) ............................................................................................. 26

11 Long v. Benson,

2008 WL 4571903 (N.D. Fla. Oct. 14, 2008).................................................................... 19

12

Lopez v. Heckler,

13

713 F.2d 1432 (9th Cir.1983) ...................................................................................... 19, 20

14 M.A.C. v. Betit,

284 F.Supp.2d 1298 (D. Utah 2003) ................................................................................. 31

15

Makin ex rel. Russell v. Hawaii,

16

114 F.Supp.2d 1017 (D. Haw. 1999)................................................................................. 31

17 Martinez v. Schwarzenneger,

2009 WL 1844989 (N.D. Cal. June 26, 2009).................................................14, 18, 19, 20

18

Mayer v. Wing,

19

922 F.Supp. 902 (S.D.N.Y. 1996) ..................................................................................... 19

20 Memphis Light, Gas & Water Division v. Craft,

436 U.S. 1 (1978) .............................................................................................................. 21

21

Mental Disability Law Clinic v. Hogan,

22

2008 WL 4104460 (E.D.N.Y. Aug. 28, 2008) .................................................................. 31

23 Mitchell v. Johnson,

701 F.2d 337 (5th Cir. 1983) ............................................................................................. 27

24

Mullane v. Central Hanover Bank & Trust Co.,

25

339 U.S. 306 (1950) .......................................................................................................... 20

26 O'Bannon v. Town Court Nursing Center,

447 U.S. 773 (1980) .......................................................................................................... 20

27

O'Connor v. Consolidated Coin Caterers Corp.,

28

517 U.S. 308 (1996) .......................................................................................................... 33

v NOTICE OF MOTION AND MOTION FOR TRO AND/OR PRELIMINARY INJUNCTION; MPA
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Case4:09-cv-04668-CW Document16 Filed10/05/09 Page8 of 48

1

Olmstead v. Zimring,

2

527 U.S. 581 (1999) ........................................................................................29, 30, 33, 34

3 Parker v. Universidad de Puerto Rico,

225 F.3d 1 (1st Cir. 2000) ................................................................................................. 35

4

Parry v. Crawford,

5

990 F.Supp. 1250 (D. Nev. 1998) ..................................................................................... 25

6 Penn. Protection & Advocacy, Inc. v. Pennsylvania Dept. of Public Welfare,

402 F.3d 374 (3rd Cir. 2005)............................................................................................. 32

7

Preterm, Inc., v. Dukakis,

8

591 F.2d 121 (1st Cir. 1979) ............................................................................................. 26

9 Rodde v. Bonta,

357 F.3d at 998 (9th Cir. 2004) ......................................................................................... 32

10

Schweiker v. Gray Panthers,

11

453 U.S. 34 (1981) ............................................................................................................26

12 Sobky v. Smoley,

855 F.Supp. 1123 (E.D. Cal. 1994) ................................................................................... 24

13

Steiberger v. Apfel,

14

134 F.3d 37 (2nd Cir. 1997) .............................................................................................. 21

15 Stormans, Inc. v. Selecky,

571 F.3d 960 (9th Cir. 2009) ............................................................................................. 14

16

Townsend v. Quasim,

17

328 F.3d 511 (9th Cir. 2003) ............................................................................................. 30

18 Vargas v. Trainor,

508 F.2d 485 (7th Cir. 1974) ............................................................................................. 21

19

Wagner v. Fair Acres Geriatric Ctr.,

20

49 F.3d 1002 (3rd Cir. 1995)............................................................................................. 34

21 Weaver v. Reagen,

886 F.2d 194 (8th Cir. 1989) ............................................................................................. 27

22

Weinreich v. Los Angeles County Metropolitan Transport Authority,

23

114 F.3d 976 (9th Cir. 1997) ............................................................................................. 29

24 White v. Beal,

555 F.2d 1146 (3rd Cir. 1977)............................................................................... 25, 26, 27

25

Winkler v. Interim Svcs., Inc.,

26

36 F.Supp.2d 1026 (M.D. Tenn. 1999) .............................................................................34

27 Winter v. Natural Resources Defense Council Inc., 129 S.Ct. 365 (2008) ......................................................................................................... 14
28

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Case4:09-cv-04668-CW Document16 Filed10/05/09 Page9 of 48

1 Wisconsin Department of Health & Fam. Serv. v. Blumer, 534 U.S. 473 (2002) .......................................................................................................... 25
2

3

STATE CASES

4 Conlan v. Bonta,

102 Cal.App.4th 745 (2002).............................................................................................. 24

5

Jeneski v. Myers,

6

163 Cal.App.3d 18 (1984) ................................................................................................. 25

7 Jenkins v. Washington State Dep't Social & Health Servs.,

157 P.3d 388 (Wash. 2007) ......................................................................................... 24, 26

8

Miller v. Woods,

9

148 Cal.App.3d 862 (1983) ....................................................................................... 2, 5, 36

10

FEDERAL STATUTES

11 29 U.S.C. §794 ............................................................................................................................. 29

12 42 U.S.C. § 12101 ......................................................................................................................... 29

13 42 U.S.C. § 12132 ......................................................................................................................... 28

14 42 U.S.C. § 12134 ......................................................................................................................... 35

15 42 U.S.C. § 1396 ........................................................................................................................... 23

16 42 U.S.C. § 1396-1 ........................................................................................................................ 26

17 42 U.S.C. § 1396-1396v ................................................................................................................ 23

18 42 U.S.C. § 1396a.......................................................................................................................... 26

19 42 U.S.C. § 1983 ........................................................................................................................... 23

20

FEDERAL REGULATIONS

28 C.F.R. § 35.130................................................................................................................... 29, 30

21

28 C.F.R. § 35.130(b).............................................................................................................. 29, 32

22

28 C.F.R. § 35.130(b)(3) ............................................................................................................... 34

23

28 C.F.R. § 41.51(b)(3) ................................................................................................................. 35

24

42 C.F.R. § 440.230....................................................................................................................... 27

25

42 C.F.R. § 440.240....................................................................................................................... 23

26

45 C.F.R. § 84.4(b)(4) ................................................................................................................... 34

27

28

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1

STATE STATUTES

2 Welf. & Inst. Code § 12300....................................................................................................passim

3 Welf. & Inst. Code § 12301.2.......................................................................................................... 6

4 Welf. & Inst. Code § 12302.1.......................................................................................................... 5

5 Welf. & Inst. Code § 12306............................................................................................................. 2

6 Welf. & Inst. Code § 12309............................................................................................................. 8

7 Welf. & Inst. Code § 14132.95........................................................................................................ 5

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

2

3

INTRODUCTION

4

This suit challenges the legality of two provisions in ABX4 4, which, for purely budgetary

5 reasons, terminate and reduce services to more than 130,000 elderly, blind, or disabled individuals

6 who rely on the In-Home Supportive Services (“IHSS”) program to remain safely in their homes.

7 Each of these over 135,000 IHSS recipients has been determined by county social workers to need

8 the services he or she currently receives in order to avoid the risk of injury or other harm. Yet

9 ABX4 4 terminates or reduces IHSS services to these elderly or disabled recipients based on

10 measures called functional ranks and composite Functional Index (“FI”) Scores – numbers that do

11 not measure such risk of harm, were not intended to determine eligibility, and have never

12 previously been sent to IHSS recipients. As county officials attest, FI Scores were not designed to

13 measure need or eligibility and should not be used for such purposes. Collins Decl. ¶27 (counties

14 “do not use the composite FI scores for any reason.”); Crockett Decl. ¶¶8, 14 (“never intended to

15 be used as an eligibility criterion”); Kaljian Decl. ¶5 (“[p]roblems” with using FI Score as

16 eligibility standard); Calame Decl. ¶6 (“completely arbitrary”) Golledge Decl. ¶6 (use of FI Score

17 and functional ranks for eligibility determinations “misguided”); Figueroa Decl. ¶8 (does nto use to

18 determine services needed).

19

Defendants have announced plans to send notices of termination and reduction of IHSS

20 services under ABX4 4 to class members on or before October 19, 2009, with an effective date of

21 November 1, 2009. Plaintiffs seek a TRO and/or preliminary injunction of the planned IHSS

22 terminations and reductions which, unless enjoined, will cause immediate and irreparable harm by

23 placing members of the plaintiff class at imminent and serious risk of harm to their health and

24 safety, as well as of unnecessary and unwanted out-of-home placement including

25 institutionalization. The balance of equities strongly favors Plaintiffs because Defendants’ only

26 interest is fiscal, whereas the plaintiff class faces life or death consequences.

27

Plaintiffs are highly likely to prevail on their legal claims. Defendants’ failure to provide

28 adequate notice of the terminations and reductions violates the federal Due Process Clause. ABX4

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Case4:09-cv-04668-CW Document16 Filed10/05/09 Page12 of 48

1 4 also contravenes federal law by terminating necessary health care services based on arbitrary

2 numbers that do not meaningfully distinguish among individuals on the basis of need, and that

3 discriminate against recipients with mental disabilities. Thus, ABX4 4 violates the requirements of

4 Title XIX of the Social Security Act, 42 U.S.C. § 1396a (“the Medicaid Act”) that States provide

5 (1) comparable Medicaid services to individuals with similar needs; (2) services according to

6 reasonable standards; and (3) services that are sufficient in amount, duration, and scope to

7 reasonably achieve their purposes. And it violates the Americans with Disabilities Act of 1990, 42

8 U.S.C. § 12312 (“ADA”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794

9 (“Section 504”), by placing IHSS recipients at imminent risk of unnecessary and unwanted out-of-

10 home placement, including in institutions such as nursing homes and psychiatric facilities; by

11 discriminating on the basis of type of disability; and by using methods of administration that will

12 exclude individuals with disabilities from IHSS.

13

BACKGROUND

14

I. The IHSS Program Provides Necessary Services To Keep Elderly and Disabled People Safely At Home.

15

A. IHSS provides Core Services that Recipients Need to Remain Safely at Home.

16

IHSS is a program provided through California’s Medicaid program (“Medi-Cal”) and is

17 funded with a combination of state, county and federal Medicaid funds. Welf. & Inst. Code §

18 12306. The purpose of the program is “to enable [the] aged, blind or disabled poor to avoid

19 institutionalization by remaining in their homes with proper supportive services.” Miller v. Woods,

20 148 Cal.App.3d 862, 867 (1983); see also Welf. & Inst. Code § 12300(a) (IHSS provides services

21 to those who “cannot safely remain in their homes . . . unless these services are provided”); id. §

22 14132.95(a) (similar); Cal. Dep’t Soc. Servs. (“CDSS”), Manual of Policies and Procedures 23 (“MPP”) § 30-700.1 (similar). 1

24

The IHSS program has been remarkably successful in stabilizing elderly and disabled Medi-

25

26
___________________________________

27

1 For the Court’s convenience, that portion of the CDSS Manual containing the regulations

applicable to IHSS is attached to Plaintiffs’ Request for Judicial Notice (“RJN”) as Exhibit H. 28

2

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page13 of 48

1 Cal recipients at home.2 For example, 81-year-old Plaintiff Beatrice Sheppard struggles with the

2 effects of a stroke that left her unable to walk, cook, shop, clean house, go to the doctor, or bathe

3 without assistance. Sheppard Decl., passim. She “want[s] to do things for [her]self but … know[s]

4 there is a chance that [she] will lose [her] balance and fall” and so is “very cautious about what

5 [she] tr[ies] to do.” Id. ¶3. She is able to remain in the small apartment where she has lived for 11

6 years only because her IHSS provider assists her with shopping, meal preparation and clean-up,

7 housecleaning, accompaniment to medical appointments, and bathing. She receives just 41.7 hours

8 of IHSS per month, but these services are critical to enabling her to remain safely at home. Id. ¶5.

9

Of the more than 425,000 people who depend on the IHSS program, 60% are seniors such as

10 Plaintiff Sheppard.3 Experts and county IHSS officials confirm that these seniors are healthier and

11 happier living at home. See, e.g., Altman Decl. ¶4; Castro Decl. ¶8; Gardner Decl. ¶39; Hathaway

12 Decl. ¶14; LaPlante Decl. ¶7; Navarro Decl. ¶13; Schnelle ¶¶ 5,6. Similarly, people under 65 with

13 disabilities have better outcomes and experience more independence and well-being living 14 independently.4

15

Assistance with personal care tasks such as bathing, dressing, and using the toilet are core

16 IHSS tasks. For example, Plaintiff V.L. is a 14-year-old boy with muscular dystrophy who cannot

17 stand for more than a few minutes and needs assistance using the toilet, showering and dressing.

18 Lagahid Decl. ¶2. IHSS is crucial for this family, since V.L.’s mother has the same neuromuscular

___________________________________

19

2 IHSS services include (1) domestic services (house cleaning); (2) related services - meal

20 preparation and clean-up, restaurant meal allowance, laundry, grocery shopping and other shopping; (3) personal care services - bowel and bladder care, respiration, feeding, routine bed

21 baths, bathing, oral hygiene and grooming, dressing, repositioning and rubbing skin including

range of motion exercises, transfers, care and assistance with prosthetic devices and self22 administration of medication, routine menstrual care, skin care, ambulation; (4) travel to medical

23

appointments; (5) yard hazard abatement; (6) protective supervision; (7) teaching and demonstration services, and (9) paramedical services. Welf. & Inst. Code § 12300(b) & (c); Id. §

24 14132.95(d)(1) & (2). 3 IHSS Background and Caseload Components, Kline Decl., Ex. C at 8. See also Goldberg
25 Decl. ¶¶ 2, 8; Hoffacker Decl. ¶3; Guerra Decl. ¶¶12, 14; Crockett Decl. ¶ 3 (many recipients over

26

80 being terminated); Collins Decl. ¶ 30 (91-year old woman losing domestic and related services). 4 See, e.g., Oster ¶7 (“healthiest” in his own home); Hathaway Decl. ¶14 (director of county

27 IHSS program; “people will live longer, be happier and . . . their quality of life will be increased” if

they remain at home); Leiva Decl. ¶7; Rivera Decl. ¶¶ 16, 36. 28

3

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page14 of 48

1 disorder that has disabled V.L. Id. ¶11. Like many recipients with arthritis or the symptoms of a

2 stroke, Plaintiff Sheppard depends on her IHSS provider for assistance taking a bath; without this

3 help she would not be able to bathe at all. Sheppard Decl. ¶10. Other IHSS recipients need

4 personal care assistance because, for example, they are paralyzed, Bean Decl. ¶¶2, 7, 9, have

5 traumatic brain injury, F.H. Decl. ¶2, or have seizure disorders, Crockett Decl. ¶17.

6

Many IHSS recipients need assistance with simple domestic chores such as cooking.

7 Addison Decl. ¶2; Campbell Decl. ¶6; F.H. Decl. ¶11; Jones Decl. ¶8; Mandell Decl. ¶9; Oster

8 Decl. ¶2; Wilson Decl. ¶13; Worden Decl. ¶6. When balance is poor, help with cooking and meal

9 clean-up ensures that individuals do not risk a fall, which can trigger a “downward spiral” that ends

10 in a nursing home. Kaljian Decl. ¶16. Other IHSS recipients need assistance with meal

11 preparation because they have dementia or cognitive impairments. Aho Decl. ¶11; Baran Decl.

12 ¶25; Crockett Decl. ¶16; Jansen Decl. ¶¶2, 5; Oster Decl. ¶2. Whatever the reason, IHSS services

13 ensure their safety, continued health, and nutrition. See., e.g.. Baran Decl. ¶25 (regular, nutritious

14 meals slow dementia process and make individuals more alert); Gardner Decl. ¶31; Nicco Decl.

15 ¶35. Other recipients need help with special diets because of suppressed immune systems,

16 Campbell Decl. ¶5; Jones Decl. ¶ 8, or because they are dialysis patients, Collins Decl. ¶23.

17

Many elders and people with disabilities can no longer go out into the community on their

18 own. Sheppard Decl. ¶6; Anderson Decl. ¶7; Guerra Decl. ¶13; Hoffacker Decl. ¶4. They rely on

19 another core IHSS service, which is assistance with shopping, errands, and accompaniment to

20 medical appointments. Addison Decl. ¶5; Anderson Decl. ¶4; Bean Decl. ¶7; Good Decl. ¶4;

21 Hoffacker Decl. ¶4; Hylton Decl. ¶ 5; Mandell Decl. ¶6; Oeland Decl. ¶5; Reeder Decl. ¶5; Wilson

22 Decl. ¶13. Even IHSS recipients like Plaintiffs Sheppard and Oster who can warm up their own

23 food still need someone to buy food for them or prepare meals to eat later. Sheppard Decl. ¶9;

24 Oster Decl. ¶2. Plaintiffs and others like them also need IHSS assistance to visit their doctors.

25 Sheppard Decl. ¶6; Anderson Decl. ¶7; Canann Decl. ¶4; Brent Decl. ¶4. The amount of time that

26 IHSS allows for these tasks is small – no more than 90 minutes per week – but critical to recipients.

27

IHSS recipients may also need help with cleaning and laundry. Those with poor balance

28 and weakness often cannot manage a broom or mop and risk falls if they attempt to clean house

4

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page15 of 48

1 themselves. Sheppard Decl. ¶7; Anderson Decl. ¶5; Bean Decl. ¶¶9, 10; Collins Decl. ¶29; Good

2 Decl. ¶5; F.H. Decl. ¶10; Hylton Decl. ¶5; Mandell Decl. ¶7; Oeland Decl. ¶6. Blind people need

3 similar assistance. Kaljian Decl. ¶12; Anderson Decl. ¶5. Others have mental disabilities and need

4 direction and reminders to clean because of their level of confusion, disorientation, or self-neglect.

5 Aho Decl. ¶16; Oster Decl. ¶¶8, 9. Cleaning services are vital to allow individuals to stay safely in

6 their home, particularly those with suppressed immune systems, Jones Decl. ¶14; Campbell Decl.

7 ¶4, respiratory ailments, Collins Decl. ¶29, or obsessive compulsive disorders, Nicco Decl. ¶26.

8 As with shopping, the allowable hours and cost to the IHSS program are small—only six hours per

9 month—in relation to the benefit to recipients. MPP § 30-757.135.

10

IHSS providers also offer support and prompting to remind recipients to take prescription

11 medication at the right time and in the right amounts. McHenry Decl. ¶4 (recipient took either too

12 much or too little medication in absence of provider); Leon Decl. ¶4; Medina Decl. ¶6; Nicco Decl.

13 ¶33; Oster Decl. ¶4; Reeder Decl. ¶4; Baran Decl. ¶21. Often this crucial service does not require

14 much extra time because providers give these prompts while performing other tasks such as

15 laundry and cooking. Baran Decl. ¶23; Castro Decl. ¶10; Medina Decl. ¶6; Nicco Decl. ¶23.

16

For frail seniors and people with mental disabilities who lack family supports and may

17 otherwise be very isolated, the presence of an IHSS provider monitors deterioration or changes in

18 condition that may otherwise go unnoticed until it is too late. Castro Decl. ¶9; Nicco Decl. ¶23;

19 Kaljian Decl. ¶16. IHSS providers who see a problem developing can intervene or obtain help.

20

B. Recipients are Individually Assessed To Receive IHSS Services.

21

IHSS is administered by counties under the supervision of Defendant CDSS and pursuant to

22 an interagency agreement between Defendant Department of Health Care Services (“DHCS”) and

23 CDSS. County social workers conduct an individualized, in person assessment of applicants’

24 eligibility for IHSS services and the amount of services that they need to remain safely in their own

25 home. Welf. & Inst. Code §§ 12300(g), 12302.1, 14132.95(f), 14132.951(b) & (e); MPP §§ 30-

26 761.11-.13, §30-761.24; Miller, 148 Cal.App.3d at 868; Figueroa Decl. ¶4. Regulations dictate that

27 “[s]ervices shall be authorized only [where] Social services staff . . . has determined that the

28

5

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page16 of 48

1 recipient would not be able to remain safely in his/her own home without IHSS [and]

2 [p]erformance of the service by the recipient would constitute such a threat to his/her health/safety

3 that he/she would be unable to remain in his/her own home.” MPP § 30-761.1.

4

California statutes require that counties determine a person’s eligibility (need) for any

5 services by assessing “the recipient’s living environment, alternate resources, and their functional

6 abilities.” Welf. & Inst. Code § 12309 (a)-(b). While the State has promulgated “hourly task

7 guidelines” as an aid in the assessment process, counties are required to authorize hours outside the

8 guidelines ranges when necessary to meet individual need. Welf. & Inst. Code § 12301.2(a)-(c);

9 Figueroa Decl. ¶6. It is “very necessary to conduct individualized assessment.” Crockett Decl.

10 ¶¶4-6; accord Collins Decl. ¶11; Nicco Decl. ¶12.

11

C. IHSS is Cost Effective.

12

IHSS is extremely cost effective, given the comparative costs of out-of-home care. Nursing

13 homes, for example, cost five times as much as services received by a typical IHSS recipient.5

14 Most IHSS recipients need only a few hours of assistance per day or week.6 However, this

15 assistance makes all the difference in a recipient’s ability to live safely at home. Kaljian Decl. ¶10;

16 Nicco Decl. ¶41; Oster Decl. ¶2; Sheppard Decl. ¶12. Without IHSS, many recipients would end

17 up needing to seek more expensive services in emergency rooms and other settings. Gardner Decl. 18 ¶ 38; Kaljian Decl. ¶16-17; Collins Decl. ¶32, 34-35; Nicco Decl. ¶36, 40.7

19

Because of its many benefits, Defendants have described IHSS as “an essential component

20

___________________________________
5 “California’s IHSS Program: Who is Served?” Kline Decl., Ex. G at 7. This report

21 compares the average daily rate for hospitals ($1230), ICF/DD facility ($142), nursing home

($118) and IHSS ($24). See also Jimenez Decl. ¶¶3, 6; Polit Decl. ¶¶4, 5.

22

6 IHSS: Background and Caseload Components, Kline Decl., Ex. C at 7: Half of all IHSS

23 recipients receive fewer than 80 hours per month. The maximum number of IHSS hours is 283 per month, but only 6% of recipients receive services in this hourly range. Id.

24

7 This cost effectiveness is well illustrated by Plaintiffs. Plaintiff Sheppard’s IHSS provider

25

works 41.7 hours per month (Sheppard Decl. ¶5) and at $11.50 per hour her wages are less than $500 per month. In contrast, a nursing home costs over $4000 per month. See supra n. 5. David

26 Oster is able to live safely in the community with only 63.2 monthly IHSS hours (Oster Decl. ¶1), for which his provider earns $568. When the threat to his IHSS precipitated a mental breakdown

27 and he ended up in a psychiatric hospital for two weeks at over $1000 per day, the total cost

exceeded $15,000. 28

6

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page17 of 48

1 of the State’s effort to provide services to maintain individuals [with disabilities] in their homes 2 and communities.”8 One year ago, Governor Schwarzenegger declared:

3

[C]ommunity-based care and services can be more cost-effective than institutional

care and result in a higher quality of life that promotes the values of community

4

participation, inclusiveness, and respect for diversity. . . . California has a

demonstrated record of success in providing services that support the full integration

5

of persons with disabilities in community life through such programs as In-Home

Supportive Services. 6

Gov. Schwarzenegger’s Executive Order 5-19-08, Kline Decl., Ex. H.

7

8

II. New State Budget Act Provisions Will Cut IHSS Services Based on Functional Index Rankings and Scores That Do Not Reflect Recipients’ Ability to Live Safely

9

at Home.

10

A. ABX4 4 Eliminates IHSS Services For Tens of Thousands of Recipients.

11

Governor Schwarzenegger signed ABX4 4 on July 28, 2009. ABX4 4 amended California

12 Welfare and Institutions Code Section 12309(e) and added Section 12309.2, to terminate from

13 IHSS all recipients with overall composite FI Scores below 2.0 and to eliminate domestic and

14 related services for IHSS recipients with functional ranks below 4. Stats. 2009, c. 4, §§ 29, 30

15 (Part II). There are four functional ranks in the domestic and related services categories: 1)

16 Housekeeping; 2) Laundry; 3) Meal Preparation and Clean-up; and 4) Shopping and Errands.

17 CDSS estimates that 36,000 Californians will lose all IHSS services, and 97,000 will lose domestic

18 and related services, as a result of ABX4 4. CDSS Press Release, Kline Decl., Ex. F. These cuts

19 will affect 133,000 people – almost one in every three IHSS recipients.

20

State officials claim that ABX4 4 limits IHSS eligibility to the “most severely disabled” and

21 cuts services to the “least disabled.” LAO’s CA July 2009 Budget Package, Kline Decl., Ex. J at 7. 22 This is not true. As described by the most senior social services director in the State of California:9

23

[T]o the extent that the Legislature intended to cut IHSS services in accordance with

need, ABX4 4 does not do that. First, all IHSS recipients by definition need the

24

services that they are authorized to receive in order to remain safely in their homes;

they would not have been authorized to receive those services if they did not need

25 ___________________________________

26

8 CA Health and Human Services Agency, CA Olmstead Plan, Kline Decl., Ex. I at 32, 52 (commitment to increase service capacity for “in-home care”).

27

9 Leland Collins is Director of the Social Services Department for San Luis Obispo County.

He has over 25 years of experience as a director of county social services. Collins Decl. ¶1. 28

7

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page18 of 48

1

them. Moreover, because of the way the functional rank and composite FI score are

calculated, they are not an accurate indicator of need, and these cuts do not

2

necessarily reduce or eliminate IHSS services for the least needy. Instead, many

comparably needy individuals are being treated differently because of the vagaries

3

of the scoring system.

4 Collins Decl., ¶ 10; see also Nicco Decl. ¶11 (FI Scores and functional ranks “not good

5 measures”); Golledge Decl. ¶¶7, 9; supra at 1. As described below, ABX4 4 terminates and

6 reduces IHSS services on the basis of these arbitrary numbers that have never previously been

7 considered a proxy for IHSS eligibility, the amount of services needed, or the risk of injury without

8 services.

9

B. The Functional Ranks Are Not An Accurate Predictor of Severity of

Disability or Whether Recipients Will be Safe without Assistance.

10

11

The functional ranks that are used to eliminate eligibility for domestic and related services

12 for some individuals, and to calculate the composite FI Score used to terminate services for others,

13 were never designed for such a purpose. The functional ranks correspond to five levels for each

14 activity of daily living (“ADL”):

15

• Rank 1 for those with independent functioning who do not need assistance;

• Rank 2 for those who “needs verbal assistance, such as reminding, guidance, or

16

encouragement”;

• Rank 3 for those who need “some human assistance”;

17

• Rank 4 for those who need “substantial human assistance”; and

• Rank 5 for those who cannot physically perform the function at all.

18 Welf. & Inst. Code § 12309(d).

19 A recipient must rank at least 2 in any activity to need the corresponding IHSS service

20 (MPP § 30-763.1), but otherwise, until now, functional rank has had no direct correlation to

21 eligibility for IHSS or the number of IHSS hours authorized. See, e.g., MPP § 30-757.1(a)(1)

22 (functional ranks cannot be “sole factor” to determine eligibility or hours); Figueroa Decl. ¶8. The

23 functional ranks were not intended to signify that a recipient with a 2 or 3 for a given task had less

24 need for assistance than someone with a 4. By definition, any recipient with a rank of 2 or above

25 cannot perform the function safely without assistance. Welf & Inst. Code § 12309(d); MPP § 30-

26 761.1; Crockett Decl. ¶9. Indeed, for every service with hourly task guidelines, the standard time

27

28

8

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page19 of 48

1 range is so broad that it overlaps for functional ranks 2 through 5. Collins Decl. ¶15.10 Until now,

2 social workers have used the functional ranks and hourly task guidelines only as a form of

3 documentation, and authorized hours based on a careful, individualized assessment of need.

4 Crockett Decl. ¶7, 12-13; Collins Decl. ¶11, 15. Under ABX4 4, however, these functional ranks

5 mean the difference between receiving or not receiving services.

6

There are “many grey areas [s] and it is impossible to place someone in a given functional

7 rank with mathematical precision.” Collins Decl. ¶12. Researchers note that “whether provider

8 assistance is verbal (rank 2) or physical (3) their presence during task performance is necessary and

9 therefore the practical distinction between the two ranks is elusive.” Kline Decl., Ex. D at 14.

10 Similarly, “[I]t is very difficult to discern the difference between” ranks 3 (“some assistance”) and

11 4 (“substantial assistance”). Collins Decl. ¶13 (highlighting similarity in CDSS descriptions of

12 ranks 3 and 4 for domestic services); Nicco Decl. ¶ 17. For example, recipients are to be ranked 3

13 in meal preparation if they need assistance on a less than daily basis (because they can reheat

14 leftover food in a microwave) and 4 if they need assistance on a daily basis. All County Letter

15 (“ACL”) No. 06-34, RJN Ex. C, Ex. B at 7. Under ABX4 4, however, a person with a rank of 3

16 will get no assistance, and will not have any leftover food to heat up. Crockett Decl. ¶11.

17

The functional ranks are a particularly poor measure of eligibility for individuals with

18 mental impairments. National expert Dr. William Gardner explains that individuals with cognitive

19 and psychiatric disabilities frequently require verbal rather than physical assistance, and so may

20 receive a functional rank of 2 rather than 3 or 4 for some activities. Gardner Decl. ¶¶20-24; accord

21 Nicco Decl. ¶¶21-22; Hathaway Decl. ¶15; Foss Decl. ¶6; Collins Decl. ¶19; Crockett Decl. ¶9-10.

22 Prior to the adoption of ABX4 4, CDSS trained social workers to give equal recognition to the

23 needs of IHSS recipients with cognitive and psychological disabilities, instructing: “If a depressed

24 client, for example, sits passively in the dark living room all day, his need is as real and measurable

25 ___________________________________

26

10 For example, a recipient may rank either 2, 3, or 4 in meal preparation and receive 3-7

hours per week for this service under the standard hourly task guideline. MPP § 30-757.131(a).

27 Thus, a recipient with a rank of 2 could receive seven hours while a recipient with a rank of 4

receives only five hours, depending on the social worker’s individual assessment of need. 28

9

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page20 of 48

1 as the client whose immobility is caused by a spinal cord injury. If the client will perform the

2 given activity when reminded or encouraged, the appropriate ranking is a 2.” ACL 88-118, RJN,

3 Ex. G at 6; see also Kline Decl., Ex. A at 49-85. Assigning a functional rank of 2 to recipients with

4 mental disabilities reflects the nature of the assistance needed, not the severity of need or whether

5 IHSS would be authorized.

6

Treating the functional ranks as a hierarchal order, with a 2 signifying less need for services

7 than a 3, 4, or 5, incorrectly presumes that verbal assistance, cueing or encouragement to help a

8 person perform an activity of daily living is less essential to health and safety than the provision of

9 physical assistance for an individual with a physical impairment. This ignores the fact that if a

10 person with a mental or cognitive disability does not have the verbal assistance of his or her IHSS

11 provider, the risk to his or her health and safety can be the same as for a person who needs physical

12 assistance to do these same activities. Gardner Decl. ¶21; Nicco Decl. ¶24. People with mental

13 disabilities may need verbal cueing or other nonphysical assistance for a variety of reasons that are

14 critical. For example, many people need reminders to eat on a regular basis or to eat appropriate

15 foods, assistance to avoid eating excessive amounts of food, or reminders not to eat food that is

16 contraindicated because of their medical conditions. Gardner Decl. ¶¶30-33. An IHSS Program

17 manager explains:

18

Often all that someone with a cognitive or psychiatric disability needs in order to

maintain a safe and independent living situation is someone who can come by every

19

morning to encourage or remind them to get out of bed, bathe, get dressed, take

medication, and have breakfast. . . . with no IHSS provider visiting regularly . . .

20

[a]person’s environment and ability to live safely in the community can fall apart in

a matter of days, potentially leading to an exacerbated medical condition,

21

hospitalization, institutionalization, homelessness and/or death.

22 Nicco Decl. ¶23.

23

C. The Composite Functional Index Score Is Calculated By A Weighted

24

Formula That Does Not Reflect the Critical Nature of Certain Services and Results in Low Scores for Certain Groups of Recipients, Including Children

25

and People with Mental Disabilities.

26

The composite FI Score is even more disconnected from the actual IHSS assessment

27 process than are the functional ranks. When the FI Score was first initiated as a method of quality

28 assurance the State recognized that neither the individual functional ranks nor the overall FI Score

10

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page21 of 48

1 “predict hours” that are “appropriate.” ACL 88-118 Q13, RJN, Ex. G at 4. CDSS itself has tested

2 the FI Score and determined that it is “not meaningful.” Kline Decl., Ex. E. But under ABX4 4,

3 anyone with an FI Score below 2.0 will be terminated from all IHSS services.

4

The FI Score is a number between 1.00 and 5.00 that is calculated by the state’s computer

5 system according to a complex mathematical formula that factors in the weighted average of the

6 functional ranks for each of the 11 physical task ADL’s. ACL 88-118 Qs 9-10, RJN, Ex. G at 3-4;

7 ACL 09-56 RJN, Ex. A at 2. It was originally designed in the 1980s as part of a “uniformity

8 system” for quality control purposes. ACIN No. E-61-89, RJN, Ex. F. Until ABX4 4, the counties

9 administering the IHSS program did not use the FI Score for any purpose, including quality

10 control. Collins Decl. ¶27; Nicco Decl. ¶20; Crockett Decl. ¶14. Thus, neither state nor county

11 staff has had any incentive to review FI Scores for accuracy, or alignment with actual need.

12 Collins Decl. ¶27. Notices of action to IHSS recipients have never included the FI Score or its

13 component functional ranks, and so recipients have never had the opportunity to challenge the 14 accuracy of these measures.11 ACL 09-56, RJN, Ex. A at 7. The very first time that most

15 recipients hear about their functional ranks and FI Scores will be the new notice of action that 16 CDSS plans to send out ten days before IHSS benefits are cut.12

17 ___________________________________

18

11 See Baran Decl. ¶10 (“Although our clients would appeal or ask for a reassessment if they were not getting enough IHSS hours, they would not know to appeal or ask for a reassessment

19 of their functional index ranks and scores.”); Bean Decl. ¶6 (after requesting functional ranks, found that FI Score listed by county was different from that listed on state system). Once they

20 have learned their FI Scores, some IHSS recipients have found that their county social workers

rapidly acknowledged that the component functional ranks were incorrect and increased them. 21 Hylton Decl. ¶7; Brown Decl. ¶¶4-6. This informal reassessment process might have resolved

22

many problems with functional ranks if CDSS had notified recipients of their functional ranks and FI Scores earlier, but it takes time. Sending the functional ranks and FI scores out on the eve of the

23 termination and reductions, as CDSS plans to do, will not allow enough time for informal reassessment to avert an interruption in IHSS.

24

12 Most IHSS recipients have not heard of their FI Scores and are unsure how to obtain this

25

information. E.g., F.H. Decl. ¶3 (“I don’t know my functional index score because it doesn’t say it on my notice”); Sheppard Decl. ¶13 (“I have never heard of a functional index or functional

26 rankings and I have no idea what these mean…I don’t even know who my county IHSS social worker is, so I don’t have an easy way to find out whether I will be cut or not”). Recipients have

27 encountered tremendous difficulty in contacting their social workers to find out their FI Scores and

whether they are at risk of having their services cut or reduced. See e.g., Marshall Decl. ¶4 28

11

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page22 of 48

1

There are numerous reasons why the FI Score does not accurately reflect whether an

2 individual can safely perform activities without IHSS assistance: First, as described above, the

3 functional ranks themselves do not signify that someone with a rank of 2 or 3 can perform the task

4 safely without assistance, any more than someone with a higher rank.

5

Importantly, the FI Score reflects the average of 11 different functions. “Looking at the

6 average functional ranking across a wide spectrum of tasks fails to take into account criticality.”

7 Collins Decl. ¶17. That is, if a recipient needs assistance with only some activities, that recipient

8 will tend to have a low FI Score, and will be cut off from all services, including those that may be

9 critical in allowing that recipient to live safely and independently at home. Crockett Decl. ¶¶15-17

10 (clients with seizure disorders only need assistance with bathing and cooking which would be

11 dangerous for them to perform themselves); Kaljian Decl. ¶ 12 (blind recipient needs assistance

12 traveling to medical appointments and cleaning dishes and apartment); Golledge Decl. ¶ 8 (“does

13 not make any sense” to terminate recipients who need assistance bathing and using the toilet

14 “because their ability to perform other tasks lowers their” FI Score). Moreover, the FI Score does

15 not factor in at all some tasks that are crucial for certain recipients, such as medication reminders

16 and travel to medical appointments. MPP § 30-757.14(g)(i); Kaljian Decl. ¶ 8; Nicco Decl. ¶25.

17

Additionally, the weights used have no external validity. They were determined based on

18 the average hours assigned for those tasks by counties in 1988. ACL 88-118, Q11, RJN, Ex. G.

19 The weights have not changed since, despite changes in the IHSS population and corresponding

20 changes in need. Collins Decl. ¶16. Moreover, in 1988 counties varied widely in their

21 authorization of IHSS hours, so that the weights derived from those hours “may already reflect

22 inconsistent assignment of hours.” ACL 06-34E2, Kline Decl., Ex. D at 8; Collins Decl. ¶16.

23

The FI Score is especially not correlated to the needs of children, who will be terminated at

24 high rates. Collins Decl. ¶7 (36% of children in county will be terminated compared to 25% of

25 (“[M]ost consumers I spoke with were unable to get their scores…several have reached their 26 service workers but been unable to get their scores, and several more have been unable to reach
their service worker at all, despite repeated attempts”). Even law firms representing plaintiffs have 27 been unable to obtain FI Scores and functional ranks for many of their clients. See e.g. Kline Decl.
¶4; Marshall Decl. ¶8; Taggares Decl. ¶8. 28

12

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page23 of 48

1 adults); Nicco Decl. ¶¶8-9 (23% of children in county will be terminated compared to 8% of

2 adults). The problem is the way functional ranks are averaged into the score:

3

Because children are not expected to perform domestic or related functions (disabled or

not) or even certain personal care activities (depending on age), they receive a “1” for all of

4

these activities. . . . Because the FI [Score] is an average number that includes services that

children do not receive, the children all receive disproportionately low scores. 5

Collins Decl. ¶21; see also ACL 88-118, RJN, Ex. G at 6. Consequently, children such as V.L.

6

who have high needs and high scores for bathing, dressing, and toileting still receive a relatively

7

low composite FI Score, and will be terminated from the IHSS program. Lagahid Decl. ¶6; see

8

also Collins Decl. ¶25 (9 year old with multiple severe disabilities and FI Score of 1.82); Nicco

9

Decl. ¶¶21, 31 (child with brain tumor and FI Score below 2).

10

The FI Score is also a particularly inaccurate measure for individuals with mental

11

impairments, who are disproportionately likely to have an FI Score below 2.0 and lose eligibility

12

for all IHSS. Baran Decl. ¶13-16; Collins Decl. ¶19; Nicco Decl. ¶21. As described earlier,

13

individuals with mental impairments tend to receive lower functional ranks than those with

14

physical disabilities, which drives down their FI Scores. See supra at 9-10. Moreover, the FI

15

Score does not include the functional ranks assigned by social workers for memory, judgment, and

16

orientation. MPP 30-756.372. This may artificially depress FI Scores for recipients with mental

17

disabilities. Gardner Decl. ¶24; Nicco Decl. ¶¶22, 33; Collins Decl. ¶19; Kaljian Decl. ¶9.

18

Similarly, many individuals with mental disabilities will need only a few critical services, such as

19

medication management and assistance with domestic and related tasks, and will not need help

20

with personal care functions as bowel/bladder, ambulation, or respiration. Because the FI Score is

21 a weighted average, persons who need only a few services receive disproportionately low scores.13

22

23 ___________________________________ 13 For example, many IHSS recipients have psychiatric disabilities relating to hoarding and
24 cluttering. Because they do not need personal care services, and often receive only one-time heavy

25

cleaning and ongoing domestic assistance, they tend to have low FI Scores, and may lose their IHSS, be evicted and become homeless. Nicco Decl. ¶26; Syropiatko Decl. ¶6; Guerra Decl. ¶12;

26 Baran decl. ¶14. Plaintiff Oster has a FI Score of below 2.0 even though he has a rank of 5 for housework, laundry, and shopping errands, and a rank of 3 in meal preparation. This is because he

27 does not have high functional ranks in other areas, such as eating or bowel and bladder care. Oster

Decl. ¶11. 28

13

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page24 of 48

1

LEGAL STANDARD

2

“A plaintiff seeking a preliminary injunction must establish that he is [1] likely to succeed

3 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3]

4 that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”

5 Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v.

6 Natural Res. Def. Council Inc., 129 U.S. 365, 374 (2008)); Stormans, Inc. v. Selecky, 571 F.3d 960,

7 978 (9th Cir. 2009). Requests for preliminary injunctive relief are evaluated on a sliding scale –

8 where plaintiffs have made a strong showing of irreparable harm, they need not make as great a

9 showing with respect to likelihood of success on the merits, and vice versa. See, e.g., Martinez v.

10 Schwarzenegger, 2009 WL 1844989, at *3, *5-*6 (N.D. Cal. June 26, 2009); Habeas Corpus Res.

11 Ctr. v. United States Dep’t. of Justice, 2009 WL 185423, at *5, *9 (N.D. Cal. Jan. 20, 2009).

12 Plaintiffs meet this test, as here there is both severe irreparable harm and a strong likelihood of 13 success on the merits.14

14

ARGUMENT

15

I. The Termination of IHSS Services Will Cause Irreparable Injury, and the Equities and Public Interest Weigh in Favor of a Status Quo Preliminary Injunction.

16

The loss of IHSS services will put Plaintiffs at imminent risk of illness, injury,

17 institutionalization, and even death, as well as harm to their family ties, independence and dignity.

18 An injunction should issue to preserve the status quo while the merits of the legal challenge are

19 adjudicated.

20

___________________________________

21

14 Although plaintiffs are concurrently filing a motion for class certification in an

22 abundance of caution, “[d]istrict courts are empowered to grant preliminary injunctions regardless of whether the class has been certified.” Brantley v. Maxwell-Jolly, __ F.Supp.2d __, 2009 WL

23 2941519, at *14 n.14 (N.D. Cal. Sept. 10, 2009) (quotation marks omitted). Class certification is

unnecessary when, as here, granting relief to any class member will effectively grant relief to the 24 entire class. See 2 Newberg on Class Actions, § 9:45, at 411 n.3 & 413-14 (4th ed. 2002) (interim

25

injunctive relief should be awarded on class-wide basis where “activities . . . are directed generally against a class of persons”; collecting cases ordering class-wide preliminary injunctive relief

26 pending class certification); cf. Joyce v. City & County of San Francisco, 846 F.Supp.2d 843, 85354 (N.D. Cal. 1994) (considering injuries to all individuals within class when class determination

27 not yet made). However, if this Court disagrees, it should certify the classes for the reasons set

forth in Plaintiffs’ Motion for Class Certification. 28

14

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page25 of 48

1

A. The Termination of IHSS Services Will Place Recipients at Great Risk of

Injury at Home, Homelessness and Institutionalization. 2

1. Risk of Injury and Effect on Health and Safety 3

The irreparable injury resulting from the loss of IHSS services will be severe. Counselors 4

who work with IHSS recipients predict a “humanitarian crisis,” Baran Decl. ¶19, and premature 5

deaths, Goldberg Decl. ¶¶6-7. Some who lose their IHSS may neglect to take their medications or 6

take them improperly, compromising their health. Baran Decl. ¶¶20-21; Crockett Decl. ¶¶16-17; 7

Reeder Decl. ¶6; Kaljian Decl. ¶7; Medina Decl. ¶6; Leon Decl. ¶4; Castro Decl. ¶10; Nicco Decl. 8

¶24; Hoffacker Decl. ¶6; McHenry Decl. ¶4. Others will be unable to leave the house to obtain 9

food, medication, and other necessities. Guerra Decl. ¶13; Collins Decl. ¶28; Hathaway Decl. ¶13; 10

Mandell Decl. ¶6; Oeland Decl. ¶10; Canann Decl. ¶7. Recipients who cannot move independently 11

may develop decubitis ulcers and be unable to clean and dress themselves. Bean Decl. ¶7; Collins 12

Decl. ¶32; Hoffacker Decl. ¶5. 13

Some recipients will try to clean or cook food and injure themselves as a result. Good 14

Decl. ¶8; Vescovo Decl. ¶13-16; Canann Decl. ¶5. Without assistance preparing meals, some 15

individuals will not know when their food is fully cooked and safe to eat, Anderson Decl. ¶4, or 16

will burn themselves or start fires, Brown Decl. ¶4; Good ¶8 (concerned that vision impaired 17

recipient will burn down the building if she tries to cook for herself). Others will be unable to 18

maintain a diet that avoids exacerbating their medical conditions, Crockett Decl. ¶¶12, 16; 19

Campbell Decl. ¶5; Collins Decl. ¶30; Medina Decl. ¶5; Oster Decl. ¶2; Jones Decl. ¶8; Sheppard 20

Decl. ¶9; Goldberg Decl. ¶7; Castro Decl. ¶¶7, 10. Others need assistance in order to eat at all, 21

because of mental illness or lack of appetite, Baran Decl. ¶23; Jones Decl. ¶9, or because they risk 22

choking, Hoffacker Decl. ¶8; Canann Decl. ¶5. 23

Without an IHSS provider to transport them to doctor’s appointments, many will go without 24

essential care. Brent Decl. ¶4; Canann Decl. ¶¶5-6; Baran Decl. ¶22; Hathaway Decl. ¶11. 25

Recipients who are unable to clean their houses adequately, particularly those with 26

impaired immune function due to HIV/AIDS, may become sick due to unsanitary conditions. 27

Campbell Decl.¶4; Good Decl. ¶8; F.H. Decl. ¶13; Jones Decl. ¶14; Hylton Decl. ¶4; Collins Decl. 28

15

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page26 of 48

1 ¶29. Some may try to clean their homes even though they lack the requisite strength or balance,

2 and may injure themselves. Crockett Decl. ¶15; F.H. Decl. ¶10; Collins Decl. ¶29; Vescovo Decl.

3 ¶18. County officials and other professionals who serve the IHSS community state unequivocally

4 that they believe individuals will die as a result of neglect and injuries. Nicco Decl. ¶36; Goldberg

5 Decl. ¶7; Vescovo Decl. ¶¶ 5, 21.

6

“[E]ntire families will be destabilized” when a child or family member is cut off IHSS,

7 since caregiver relatives will be forced to seek other jobs without a way to care for their loved

8 ones. Hathaway Decl. ¶5; Crockett Decl. ¶¶19-20; Kaljian Decl. ¶18; Nicco Decl. ¶27; Leiva Decl.

9 ¶¶7-8. Without IHSS, some families may have no choice but to leave their dependent family

10 member (including some children) unattended while they work, leading to the possibility of tragic

11 accidents or mental and medical decline. Collins Decl. ¶33.

12

Even a temporary interruption in services may “result in damaging setbacks,” as it may take

13 years to find the right provider and set of services for a recipient. Baran Decl. ¶20

14

Each one of the IHSS recipient affected by the cuts represents a person with a

disability who has been stabilized at home, often through a painstaking process

15

that takes months of even years, to find the right attendant, the right home or

apartment, the right combination of services. All of this will be lost. And even if

16

the cuts are restored later, it will be virtually impossible to rebuild the safe living

situations people have now. 17

see also Gardner Decl. ¶¶ 39- 45 (describing difficulties in returning to community after

18

hospitalization or other institutional placement).

19

For individuals with psychiatric disabilities, the stress of losing services may trigger

20

symptomatic behaviors such as hurting themselves or damaging property. Gardner Decl. ¶¶36-37.

21

Several years ago, an IHSS recipient with muscular dystrophy committed suicide after receiving a

22

notice that her services would be cut and left a recording to explain that she did not know how it

23

would be possible for her to continue living without that support. Vescovo Decl. ¶¶5-6.

24

2. Risk of Homelessness

25

There is also a serious risk that many individuals, particularly those with mental or

26

cognitive disabilities, will become homeless if they lose IHSS services. Nicco Decl. ¶¶23, 35;

27

Kaljian Decl. ¶18; Aho Decl. ¶¶13-20; Oster Decl. ¶9; Syropiatko Decl. ¶7; Calame Decl. ¶7.

28

16

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page27 of 48

1 Once homeless, people with mental illness decline rapidly, and may end up under a 2 conservatorship, in a psychiatric hospital, a board-and-care facility, or even jail. Hill Decl. ¶4.15

3 For example, individuals with hoarding disorders who lack IHSS are likely to lose their housing

4 because without IHSS their homes will become unsanitary and hazardous. Syropiatko Decl. ¶7; 5 Castro Decl. ¶7; Navarro Decl. ¶¶ 9, 15-17; Aho Dec. ¶ 16-23; Calame Decl. ¶7.16

6

3. Risk of Institutionalization

7

If ABX4 4 is implemented, class members also risk unnecessary institutionalization. Dr.

8 Gardner warns of the particular risk facing individuals with mental disabilities who lose IHSS

9 assistance to remind them to take medication, attend medical appointments, and perform tasks

10 essential to their continued mental health. Gardner Decl. ¶¶ 30-33; see also Crockett Decl. ¶16;

11 Baran Decl. ¶¶12, 24; Castro Decl. ¶10; Nicco Decl. ¶¶33-34; Navarro Decl. ¶¶15-16. Other

12 experts have found that elderly and disabled individuals with unmet in-home care needs are at

13 increased risk of institutionalization, LaPlante Decl. ¶7, and that the lack of affordable home care

14 services is “a primary factor driving the need for nursing home placement,” Schnelle Decl. ¶5.

15

County IHSS officials express further concerns that recipients who lose IHSS services as a

16 result of ABX4 4 will suffer falls that lead to hospitalization and further institutionalization,

17 Crockett Decl. ¶15, and that family providers forced to seek outside employment will have no

18 choice but to place relatives in institutional settings, Nicco Decl. ¶31, Kaljian Decl. ¶15; Hathaway

19 Decl. ¶¶5, 6. Similarly, they warn that elderly individuals who lose meal preparation services may

20 face health declines that land them in nursing homes. Guerra Decl. ¶¶12, 14. See also Collins

21

___________________________________

22

15 The mental health system already gone through waves of funding cutbacks so very few

23 resources are available; “IHSS is one of the few support services left” to people with mental illness. Hill Decl. ¶ 7.

24

16 Class member Gerald Aho, who lives in a Section 8-funded apartment and receives IHSS

25

based on his bipolar disorder, faces this risk. During periods of extreme depression Mr. Aho is unable to take the trash out, clean dishes or do his laundry. Aho Decl. ¶16. On several occasions,

26 his apartment has become so unsanitary that he did not pass his Section 8 inspection. Id. ¶18. After receiving IHSS heavy cleaning and other domestic and related services, he was able to pass

27 inspection and remain at home, rather than be forced to live in his car as in the past. Id. ¶¶20-23.

Without IHSS Mr. Aho is in danger of becoming homeless again. 28

17

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page28 of 48

1 Decl. ¶26; Dillard-Foss Decl. ¶¶7-8.17

2

Institutionalization will be detrimental to IHSS recipients’ quality of life and care.

3 Placement in an institution can destabilize already compromised mental or physical functioning,

4 and it is extremely difficult for individuals to move out of institutions and back into the

5 community. Gardner Decl. ¶¶ 39, 45; Navarro Decl. ¶ 13. Institutionalized individuals may

6 become habituated to institutional structures, and lose or fail to develop the skills necessary to live

7 in a community-based setting. Gardner Decl. ¶ 40. They also may be subjected to inadequate care

8 due to chronic understaffing. See Schnelle Decl. ¶6 (noting that citations for noncompliance are

9 common); Navarro Decl. ¶13. IHSS recipients fear institutionalization because they value the

10 independence of community living, Golledge Decl. ¶5; Oster Decl. ¶7; Wilson Decl. ¶9, and are

11 aware that care in institutions is sometimes inadequate, Sheppard Decl. ¶12.

12

4. Plaintiffs Will Suffer Irreparable Injury.

13

Martinez v. Schwarzenegger, 2009 WL 1844989, at *5 (N.D. Cal. June 26, 2009), recently

14 concluded that recipients would suffer irreparable harm if they were to lose IHSS assistance:

15

The consumers’ quality of life and health -care will be greatly diminished, which

16

will likely cause great harm to disabled in dividuals. For in stance, the declarations

submitted by Plaintiffs describe harms ranging from going hungry and dehydration,

17

to falls and burns, to an inability ever to le ave the ho me. Institutiona lizing

individuals that can comfortably survive in their hom e with the he lp of IHSS

18

providers will “cause Plaintiffs to suffer in jury to their m ental and physical health,

19

including a shortened life, and ev en death for som e Plaintiffs.” Crabtree v. Goetz, 2008 WL 5330506, at *30 (M.D. Tenn.).

20

___________________________________

21

17 The individual circumstances of class members support these predictions of risk.

22 Plaintiff Oster needs IHSS assistance to remember to take his medications, shop, cook, or clean up. Oster Decl. ¶¶2-4. Before receiving IHSS services, his apartment was unsanitary and in disarray,

23 with piles of trash, dishes and paper. Id. ¶8. He was under threat of eviction because of the

condition of his apartment. Id. And fear when he learned he might lose IHSS has already caused a 24 breakdown that required two weeks of psychiatric hospitalization. Id. ¶¶2, 6, 9. F.H., a woman

25

with a traumatic brain injury due to domestic violence, may be unable to continue living independently because she falls constantly if she tries to do housework and often becomes too

26 confused to handle domestic tasks. F.H. Decl. ¶¶5, 8-12; Leon Decl. ¶¶3-5. Plaintiff Sheppard may need to enter a nursing home because of her inability to bathe, clean house, or prepare meals.

27 Sheppard Decl. ¶¶7-12; see also Worden Decl. ¶11; Wilson Decl. ¶¶ 9, 18; Hylton Decl. ¶ 9;

Jansen Decl. ¶6; Anderson Decl. ¶8; Good Decl. ¶9; Canann Decl. ¶7; Leiva Decl. ¶¶7-10. 28

18

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page29 of 48

1

This “reduc[tion] or terminati[on of] home care services . . . would result in the deprivation

2 of life-sustaining medical services. This certainly constitutes irreparable harm.” Mayer v. Wing,

3 922 F.Supp. 902, 905, 909 (S.D.N.Y. 1996) (issuing preliminary injunction prohibiting reduction

4 of personal home care services including “assistance with personal hygiene, dressing, feeding and

5 housekeeping”); see also Crabtree, 2008 WL 5330506, at *30 (home care services cuts will cause

6 irreparable injury because “institutionalization will cause Plaintiffs to suffer injury to their mental

7 and physical health, including a shortened life, and even death for some Plaintiffs”); Long v.

8 Benson, 2008 WL 4571903, at *2 (N.D. Fla. Oct. 14, 2008) (similar); cf. Independent Living Ctr. of

9 S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (denial of needed medical care

10 constitutes irreparable harm); LaForest v. Former Clean Air Holding Co., 376 F.3d 48, 55-56 (2nd

11 Cir. 2004) (same, regarding reduction of retiree health benefits including increased cost of

12 prescription medications); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) (same, regarding

13 deprivation of social security benefits); Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982)

14 (same, regarding “needed medical care”).

15

B. The Balance of Equities and Public Interest Favor Plaintiffs.

16

Defendants’ purely fiscal interest, by contrast, is not as weighty as the risk of illness and

17 injury to low-income public assistance recipients. See Lopez, 713 F.2d at 1437; Daniels v. Wadley,

18 926 F. Supp. 1305, 1313 (M.D. Tenn. 1996); Kansas Hosp. Ass’n v. Whiteman, 835 F. Supp. 1548,

19 1552-53 (D. Kan. 1993). Just this year, the Ninth Circuit held that the current California fiscal

20 crisis does not outweigh the harm that might befall Medi-Cal beneficiaries if unlawful cuts are

21 implemented. See Independent Living Ctr., 572 F.3d at 659 (“A budget crisis does not excuse

22 ongoing violations of federal law, particularly when there are no adequate remedies available other

23 than an injunction.”); Martinez, 2009 WL 1844989, at *6; see also California Pharmacists Ass’n v. 24 Maxwell-Jolly, 563 F.3d 847, 853 (9th Cir. 2009).18

25

Further, in addition to the harm experienced by IHSS recipients, the IHSS eligibility

26

___________________________________
18 Moreover, the likely increased demand upon public services and threat of institutional

27 placement means that the IHSS eligibility restrictions are unlikely to save as much money as

Defendants might argue. 28

19

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1 restrictions will cause increased demand upon other public services which are ill-positioned to bear

2 these burdens. County emergency rooms will see seniors and people with disabilities who have

3 experienced “dramatic declines” in their health, including falls and other injuries. Kaljian Decl.

4 ¶12; see also Altman Decl. ¶5 (UCSF researcher predicts that loss of home care services will result

5 in greater emergency room use); Nicco Decl. ¶¶23, 25, 31; Collins Decl. ¶32; Kaljian Decl. ¶17;

6 Leon Decl. ¶5; Mandel Decl. ¶¶4, 7-9; Bailey Decl. ¶¶ 13-14; Oster Decl. ¶6; Hill Decl. ¶4.

7 Seniors who lose assistance with food shopping and meal preparation and consequently stop eating

8 will end up in local hospitals. Collins Decl. ¶29. County adult protective services divisions will

9 face increased demand and no longer be able to rely upon IHSS for referrals. Collins Decl. ¶31;

10 Nicco Decl. ¶25; Kaljian Decl. ¶20; Crockett Decl. ¶20; Baran Decl. ¶19.

11

An injunction is also in the public interest. See Lopez, 713 F.2d at 1437 (deprivation of

12 essential benefits harms public interest even if benefits are costly to government); Martinez, 2009

13 WL 1844989 at *6. The termination of IHSS services is likely to devastate tens of thousands of

14 families who will have no way to care for their loved ones, and place increased and untenable

15 demands upon local government services and emergency rooms. Moreover, an injunction will also

16 preserve the status quo pendente lite, which is one of the purposes of a preliminary injunction

17 under Rule 65. See Chalk v. U.S. Dist. Court Cent. Dist. Cal., 840 F.2d 701, 704 (9th Cir. 1988).

18 II. Plaintiffs Are Likely to Succeed on the Merits of their Due Process, Medicaid, and Americans with Disabilities Act Claims.
19

A. The Termination and Reduction Notices Violate Due Process Because They Are Not

20

Reasonably Calculated to Apprise IHSS Recipients of Their Rights.

21

Prior to an action that will affect an interest in life, liberty, or property protected by the Due

22 Process Clause, a State must provide “notice reasonably calculated, under all circumstances, to

23 apprise interested parties of the pendency of the action and afford them an opportunity to present

24 their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Thus,

25 recipients of social services must receive a “timely and adequate notice detailing the reasons for

26 termination and an effective opportunity to defend” against it at a pre-termination, administrative

27 hearing. Goldberg v. Kelly, 397 U.S. 254, 262-63, 269 (1970); O’Bannon v. Town Court Nursing

28 Ctr., 447 U.S. 773, 787 (1980). That notice must provide recipients with information they can use

20

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page31 of 48

1 to decide whether the agency has made mistakes in terminating their benefits and, if so, how they

2 can contest those mistakes at a hearing. Goldberg, 397 U.S. at 266, 268; see also Gray Panthers v.

3 Schweiker, 652 F.2d 146, 168 (D.C. Cir. 1981) (without adequate notice of reasons for denial

4 “hearing serves no purpose”); Vargas v. Trainor, 508 F.2d 485, 490 (7th Cir. 1974) (notice is

5 especially important because of “human tendency, even among those more experienced and

6 knowledgeable in the ways of bureaucracies than the aged, blind and disabled persons . . . to 7 assume that an action taken by a government agency in a pecuniary transaction is correct”).19

8

Whether notice comports with constitutional requirements depends upon whether it is

9 “tailored to the circumstances” of the recipients who must decide whether to request a hearing.

10 Goldberg, 397 U.S. at 268. Thus, when the government is on notice of an individual’s impairment,

11 “even notice that complied fully with the statutory requirements [may] nonetheless not [be]

12 reasonably calculated to provide her adequate notice.” Covey v. Town of Somers, 351 U.S 141,

13 146-47 (1956); see also Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13-15 (1978)

14 (“[P]articularly extensive efforts to provide notice may often be required when the State is aware of

15 a party’s inexperience or incompetence.”); Jones v. Flowers, 547 U.S. 220, 221 (2006) (due

16 process violated when government has reason to know notice is ineffective because of “unique

17 information about an intended recipient”); Evans v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997)

18 (where disability benefits applicant was incompetent at the time he received notice of denial or

19 termination of benefits, due process right to meaningful opportunity to be heard was implicated);

20 Steiberger v. Apfel, 134 F.3d 37, 40-41 (2nd Cir. 1997) (due process violated where disability

21 benefits claimant served with notice of termination of benefits that he was unable to understand

22 and act upon due to mental impairment); David v. Heckler, 591 F.Supp. 1033, 1042 (E.D.N.Y

23 1984) (when notice was technical and confusing it was not comprehensible to class of disability

24 recipients); accord Doston v. Duffy, 732 F.Supp. 857, 872-73 (N.D. Ill. 1988).

25 ___________________________________

26

19 The risk of such mistakes is extremely high here. Because functional ranks and FI scores

have never before been used to determine eligibility, errors in these scores and rankings may have

27 gone unnoticed. Since ABX4 4 was enacted, recipients have sought reevaluation of their FI scores

and been reassessed with higher scores. See supra note 11. 28

21

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1

Defendants’ termination and reduction notices – a notice of action message and 22 pages of

2 agency procedures lifted verbatim from official policies that are given to counties and county social

3 workers for determining functional rank (ACL 9-56, RJN, Ex. A) – are not written so that IHSS

4 recipients can understand and act upon them, and so are not “reasonably calculated” to provide

5 IHSS recipients with the meaningful and comprehensible information that due process requires.

6 Social workers, the intended audience for these 22 pages, have undergone extensive training in the

7 use of functional ranks they discuss. ACIN I-61-89; ACL 88-118, RJN, Ex. F at 14-21.

8 Recipients, by contrast, have never even seen functional ranks or an FI Score before now. See

9 supra at 11-12 & nn. 11-12. The 22 pages also outline the complex mathematical formula for

10 computing FI Scores, which recipients (and, for that matter, most social workers) have never

11 before seen. ACL 9-56, RJN, Ex. A. Defendant CDSS itself terms the description of this formula

12 “difficult to conceptualize” even for trained social workers. ACIN I-61-89, RJN, Ex. F at 10. To

13 expect disabled recipients to understand this notice, without training and explanation, is a cruel

14 hoax. To be meaningful, the notice would need to put the recipient on notice that in order to retain

15 IHSS eligibility he or she would need to present evidence to increase one or more functional ranks

16 which, when multiplied by the weight for each function and added together, would produce a score

17 of 2.0 or more. Because of its confusing, technical content, the planned notice will not convey this

18 key information to IHSS recipients.

19

The notice is defective in other ways as well. It is misleading, in that the 22 pages include

20 descriptions of the three mental functions of memory, orientation and judgment, even though these

21 functional ranks are completely irrelevant to determining either the FI Score or any functional rank

22 used in computing it, or to eligibility for domestic and related services. The notice fails to inform

23 recipients that they may contest the ranks for all 11 functions, even those ranked “1” for which they

24 are not authorized any hours, in order to raise their composite FI Score.

25

The language, format, and timing of these notices will not allow recipients to ascertain

26 whether counties made errors in their FI Scores or functional ranks--figures they have never seen

27 before--and whether, if they contest them, they can raise their FI Scores to 2.0 or raise their

28 functional ranks for domestic or related services to 4. This makeshift termination notice is plainly

22

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page33 of 48

1 not tailored to the capacity of IHSS recipients and does not satisfy procedural due process 2 standards.20

3

B. ABX4 4 Violates the Medicaid Act’s Comparability, Reasonable Standards, And

4

Sufficiency Requirements.

5

The Medicaid program was established by Title XIX of the Social Security Act in 1965 to

6 enable states to provide medical services to individuals with limited ability to pay for health care.

7 42 U.S.C. § 1396-1396v. Medicaid is a cooperative program between federal and state

8 governments that allows states to receive federal financial assistance for the provision of medical

9 assistance to low-income individuals. 42 U.S.C. § 1396. Participation is voluntary, but when a

10 state chooses to participate, it must comply with the Medicaid Act and its implementing 11 regulations. 42 U.S.C. § 1396; Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985).21

12

1. By Providing Differing Levels of Medical Assistance to Individuals With Similar Needs, ABX4 4 Violates the Comparability Requirement of the

13

Medicaid Act.

14

The “comparability” requirement of the Medicaid Act, 42 U.S.C. § 1396a(a)(10)(B), provides

15 “that medical assistance made available to any individual described in subparagraph (A)

16 [describing categorically needy recipients] — (i) shall not be less in amount, duration, or scope

17 than the medical assistance made available to any other such individual, and (ii) shall not be less in

18 amount, duration, or scope than the medical assistance made available to individuals not described 19 in subparagraph (A).”22 In effect, the comparability requirement mandates “comparable services

20

___________________________________
20 In addition to violating procedural due process, the planned notice of action also violates

21 the ADA and Section 504 because it is not reasonably accessible to people with disabilities. See

Alexander v. Choate, 469 U.S. 287, 301 (1985); see also Henrietta D. v. Gulliani, 119 F. Supp. 2rd 22 181 (E.D.N.Y. 2000), aff’d, 331 F.3d 261 (2nd Cir. 2003) (state must make process to obtain

23

benefits meaningfully accessible to individuals with disabilities). 21 As set forth in the Complaint, many of plaintiffs’ Medicaid claims are brought pursuant

24 to 42 U.S.C. § 1983. As the Ninth Circuit held in Independent Living Center of Southern

California, Inc. v. Shewry, 543 F.3d 1050 (9th Cir. 2008), cert. denied sub nom. Maxwell-Jolly v. 25 Independent Living Center of S. California, 129 S.Ct. 2828 (2009), all of the Medicaid provisions

26

at issue are also enforceable directly under the Supremacy Clause. 22 See 42 C.F.R. § 440.240 (“(a) The state must provide that the services available to any

27 categorically needy recipient under the plan are not less in amount, duration, and scope than those

services available to a medically needy recipient; and (b) The plan must provide that the services 28

23

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1 when individuals have comparable needs,” and it is violated “when some recipients are treated

2 differently from other recipients where each has the same level of need.” Jenkins v. Washington

3 State Dep’t Social & Health Servs., 157 P.3d 388, 392 (Wash. 2007); see also Sobky v. Smoley, 855

4 F. Supp. 1123, 1139 (E.D. Cal. 1994) (comparability requirement “creates an equality principle by

5 which all categorically needy individuals must receive medical assistance which is no less than that

6 provided to any other categorically or medically needy individual”); Hodgson v. Bd. of County

7 Comm’rs, Hennepin County, 614 F.2d 601, 608 (8th Cir. 1980) (“Once a state designates services it

8 will subsidize, it may distinguish between eligible and ineligible recipients only on the basis of

9 their degree of medical need.”).

10

Courts have thus found that states violate the Medicaid Act when they fail to offer the same

11 service to all with the same need. See, e.g., Conlan v. Bonta, 102 Cal.App.4th 745, 753-54 (2002)

12 (comparability violated where state policy resulted in some Medi-Cal recipients incurring

13 unreimbursed expenses); Parry v. Crawford, 990 F.Supp. 1250, 1257 (D. Nev. 1998)

14 (comparability violated where state provides Intermediate Care Facility for the Mentally Retarded

15 only to those with mental retardation, not those with “related conditions” and no basis on which to

16 infer difference in medical need); Charpentier v. Belshe, 1994 WL 792591, at *5 (E.D. Cal. Dec.

17 21, 1994) (limiting reimbursement for those eligible for both Medi-Cal and Medicare to no more

18 than 20% of Medicare’s reasonable charge while placing no such limitation on Medi-Cal-only

19 recipients violates comparability requirement).

20

Jenkins is directly on point. There, the state had previously determined the number of hours

21 of home health care services needed by recipients, based on assessment of their ability to perform

22 daily living activities. The state then reduced the number of hours that would be provided to

23 recipients whose caregiver lived with them, on the theory that the caregiver would, for example,

24 need to clean their own houses and should not be paid for this effort. The reduction was applied

25 without any individual assessment of need; rather, it operated as an “irrebuttable presumption.”

26

27 available to any individual in the following groups are equal in amount, duration, and scope for all recipients within the group: (1) The categorically needy. (2) A covered medically needy group.”).
28

24

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1 157 P.3d at 390. The Washington Supreme Court held that the state violated the comparability

2 requirement because it “reduce[d] a recipient’s benefits based on a consideration other than the

3 recipient’s actual need.” Id. at 393; see also White v. Beal, 555 F.2d 1146, 1151 (3rd Cir. 1977)

4 (optional state Medicaid services must be “distributed in a manner which bears a rational

5 relationship” to underlying federal purpose of helping those in greatest need; provision of glasses

6 only to recipients with eye diseases, but not refractive error, violated comparability requirement);

7 Jeneski v. Myers, 163 Cal.App.3d 18 (1984) (across-the-board restrictions violated Medicaid

8 comparability requirement by failing to account for individual needs).

9

By definition, all individuals currently receiving IHSS services have been found to need such

10 services (in some amount) in order to remain safely in their home. Thus, they have already been

11 determined to meet the same threshold level of need through an individualized assessment. An

12 across-the-board termination of all recipients with an FI Score below 2.0, and an across-the-board

13 elimination of domestic and related services for all recipients with a functional rank below 4,

14 without any examination of their individual circumstances, will deprive tens of thousands of IHSS

15 recipients of services that they need just as critically as the remaining IHSS recipients whose FI

16 Scores are above 2.0 or whose functional ranks for domestic or related services are 4 or 5. This is

17 because, as previously discussed, neither the composite FI Score nor the functional ranks are

18 meaningful measures of need, and need is the only basis upon which distinctions can be made

19 without violating the comparability requirement. Thus, using the fundamentally flawed FI Scores

20 and functional ranks to distinguish between those who receive IHSS services and those who do not

21 violates the comparability requirement.

22

Moreover, because of the way FI Scores are calculated, individuals with cognitive or mental

23 disabilities, children, and those who do not need the full range of services (but for whom the

24 needed services are critical to remain safely at home) may receive FI Scores lower than warranted

25 by their actual need. These individuals will be entirely cut off from IHSS services despite the fact

26 that they desperately need these services in order to remain safely in their homes.

27

Because neither the functional ranks nor the FI Score reflect the criticality of the service and

28 whether a recipient is safe at home without the service, and because the State has previously

25

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1 determined recipients’ actual need and allocated IHSS services accordingly, the State’s use of the

2 false and arbitrary proxies of FI Scores and functional ranks to determine eligibility for services

3 violates Medicaid’s comparability requirement by treating similarly situated recipients differently.

4 See Jenkins, 157 P.2d at 393.

5

2. By Authorizing IHSS Services Based On Functional Index Score and

Functional Ranks, ABX4 4 Violates the Reasonable Standards Requirement. 6

7

The Medicaid Act further requires that all participating states employ “reasonable standards

8 … for determining … the extent of medical assistance under the plan which … are consistent with

9 the objectives of this subchapter.” 42 U.S.C. § 1396a(a)(17); see also Wisconsin Dep't of Health &

10 Fam. Serv. v. Blumer, 534 U.S. 473, 479 (2002); Schweiker v. Gray Panthers, 453 U.S. 34, 36-37

11 (1981). The primary objectives of the Medicaid program are to provide medical assistance to

12 individuals whose income and resources are insufficient to meet the costs of necessary medical

13 services and to furnish “rehabilitation and other services to help such … individuals attain and

14 retain capability for independence or self care.” 42 U.S.C. § 1396-1.

15

When state Medicaid rules deny coverage of services on an arbitrary or irrational basis,

16 courts have invalidated those state rules as contrary to the reasonable standards requirement. See

17 Lankford v. Sherman, 451 F.3d 496, 511-13 (8th Cir. 2006) (plaintiffs likely to succeed on

18 reasonable standards claim where state unreasonably restricted optional medical equipment

19 benefit); Hern v. Beye, 57 F.3d 906, 910-11 (10th Cir. 1995) (state law restricting medically

20 necessary treatment to those whose lives were at risk not reasonable standard); Preterm, Inc., v.

21 Dukakis, 591 F.2d 121, 131 (1st Cir. 1979) (state could not restrict medically necessary services

22 solely on basis of diagnosis); White, 555 F.2d at 1151 (enjoining policy for glasses coverage

23 because it “discriminated based upon etiology rather than the need for services”); Allen v.

24 Mansour, 681 F.Supp. 1232, 1238 (E.D. Mich. 1986) (state medical necessity criteria arbitrary

25 when unsupported by expert opinion or scientific data).

26

Defendants’ termination of IHSS services based on FI Scores and functional ranks is even

27 more arbitrary and capricious than state actions found elsewhere to violate Medicaid’s reasonable

28 standards requirement. As Plaintiffs have amply demonstrated, FI Scores and functional ranks

26

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page37 of 48

1 were never intended to measure “need” for IHSS services, and cannot reasonably be used for this

2 purpose. See supra at 8-13. FI Scores and functional ranks have not been scientifically designed

3 or validated, and CDSS has acknowledged that the FI Score is not a meaningful measure. Kline

4 Decl. Ex. E. Defendants have not even offered, nor does ABX4 4 provide, an exceptions process

5 through which individuals with FI Scores below 2.0 or ranks below 4 for domestic and related

6 services could demonstrate their actual level of need for services. By arbitrarily denying and

7 reducing access to IHSS based solely on FI Score and functional ranks, Defendants employ an

8 unreasonable standard to determine the extent of medical assistance in violation of § 9 1396a(a)(17).23

10

3. By Failing to Provide Adequate Domestic and Related Services, ABX4 4

Violates the Sufficiency Requirement. 11

12

Medicaid’s related “sufficiency” requirement mandates that “[e]ach service must be

13 sufficient in amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. §

14 440.230(b). Thus, when a state has committed to provide a Medicaid service, the sufficiency

15 requirement ensures that it adequately fulfills that obligation. To determine whether the service is

16 sufficient, a court considers whether the level of service achieves the specific program’s purposes.

17 Curtis v. Taylor, 625 F.2d 645, 651 (5th Cir. 1980).

18

For example, reductions in a children’s dental health program violate the sufficiency

19 requirement where the resulting program fails to achieve its preventative, maintenance and

20 restorative purposes. Mitchell v. Johnson, 701 F.2d 337, 347-51 (5th Cir. 1983); see also Weaver

21 v. Reagen, 886 F.2d 194, 197-200 (8th Cir. 1989) (where state elects to provide prescription drugs,

22 program’s failure to cover prescription of AIDS drug to certain individuals for whom that drug is

23 medically necessary violates sufficiency requirement); Charpentier, 1994 WL 792591, at *5

24 ___________________________________

25

23 Additionally, because ABX4 4 uses FI Scores and functional ranks which have a disparate impact on recipients with mental, as opposed to physical, impairments, it is inconsistent

26 with the related regulation that prohibits arbitrary limitations on required services “based solely on diagnosis, type of illness, or condition.” 42 C.F.R. § 440.230(c); see White, 555 F.2d at 1152

27 (applying §440.230(c) to determine whether state used reasonable standards to limit provision of

optional benefit). 28

27

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page38 of 48

1 (limiting reimbursement for those eligible for both Medi-Cal and Medicare to no more than 20% of

2 Medicare’s reasonable charge, such that affected individuals are denied supplies and equipment,

3 violates sufficiency requirement).

4

Here, the elimination of domestic and related services to individuals eligible for IHSS

5 would result in the insufficient provision of IHSS services. Without domestic and related services,

6 the IHSS services that remain cannot reasonably achieve the purpose of the IHSS program, as

7 defined by statute, to provide services to those “who cannot safely remain in their homes or abodes

8 of their own choosing unless these services are provided.” Welf. & Inst. Code § 12300(a). The

9 services currently authorized for IHSS recipients are, by definition, necessary to permit these

10 individuals to remain safely in their home. MPP § 30-761.1; see supra at 2-7.

11

For example, as a result of the cuts, Plaintiff Dotty Jones would remain eligible for some

12 IHSS but lose all help with cleaning and meal preparation. Jones Decl. ¶3. Jones has AIDS and

13 related medical complications, including neuropathy, pervasive weakness, mouth sores and

14 breathing difficulties. Since she cannot cook or clean for herself, she is likely to stop eating or be

15 unable to keep her apartment free of dust and infection, putting her at risk of a medical crisis and

16 hospitalization. Without adequate nutrition and a healthy environment, Ms. Jones’ remaining IHSS

17 hours will do little to keep her safely at home. This provision of ABX4 4 thus violates the

18 sufficiency requirement by failing provide services adequate to achieve the purpose of the IHSS 19 program.24

20

C. ABX4 4 Violates Title II of the ADA and Section 504 of The Rehabilitation Act.

21

Title II of the ADA states that “no qualified individual with a disability shall, by reason of

22 such disability, be excluded from participation in or be denied the benefits of the services,

23 programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42

24 U.S.C. § 12132. To establish a violation of the ADA, a plaintiff must show: “(1) he is a ‘qualified

___________________________________

25

24 As Medi-Cal recipients under age 21, Plaintiffs V.L. and C.R. have an additional claim:

26 ABX4 4 violates federal mandates for Early and Periodic Screening, Diagnosis and Treatment (EPSDT). Amended Complaint ¶¶220-231. The Court need not reach this issue at present,

27 however, because the requested TRO and preliminary injunction, if granted, will protect EPDST-

eligible plaintiffs from injury. 28

28

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1 individual with a disability’; (2) he was either excluded from participation in or denied benefits of a

2 public entity’s services, programs or activities, or was otherwise discriminated against by the

3 public entity; and (3) such exclusion, denial of benefits or discrimination was by reason of his 4 disability.”25 See Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th

5 Cir. 1997). Here, Plaintiffs are qualified individuals with disabilities in that they are capable of

6 living independently in their own homes with assistance and meet the Medicaid income eligibility

7 requirements.

8

Plaintiffs are likely to prevail in showing that ABX4 4 violates the ADA in myriad ways:

9 (1) violating the “integration mandate” of the ADA by placing people at serious risk of having to

10 move out of their homes to less integrated settings and institutionalization, Olmstead v. Zimring,

11 527 U.S. 581 (1999); (2) discriminating against IHSS recipients with cognitive and psychiatric

12 disabilities; and (3) utilizing methods of administration that discriminate against people with

13 disabilities, which is prohibited by 28 C.F.R. § 35.130(b)(3).

14

1. ABX4 4 Violates the ADA’s Integration Mandate by Placing People with

Disabilities at Risk of Unnecessary Institutionalization. 15

16

Implementation of ABX4 4 will place class members at risk of unnecessary confinement in

17 institutional settings such as nursing homes and psychiatric facilities in violation of the ADA’s

18 integration mandate. In adopting the ADA, Congress recognized that “historically, society has

19 tended to isolate and segregate individuals with disabilities, and, despite some improvements, such

20 forms of discrimination against individuals with disabilities continue to be a serious and pervasive

21 social problem,” and that “individuals with disabilities continually encounter various forms of

22 discrimination, including outright intentional exclusion, ... failure to make modifications to existing

23

___________________________________

24

25 The ADA and Section 504 apply to “all facets of state government.” Bay Area Addiction

25

Research, Inc. v. City of Antioch, 179 F.3d 725, 731 (9th Cir. 1999). Because of the absence of any significant difference between the substantive standards of the ADA and Section 504, see 29

26 U.S.C. §794(a), the claims may be analyzed together. See, e.g., Giebeler v. M & B Assocs., 343 F.3d 1143, 1149 (9th Cir. 2003) (internal quotation marks omitted). The only difference is that

27 Section 504 also requires the plaintiff to demonstrate that the relevant program receives federal

funding. Henrietta D., 331 F.3d at 272. 28

29

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page40 of 48

1 facilities and practices, ... [and] segregation.” 42 U.S.C. § 12101(a)(2), (5).

2

To this end, ADA regulations require provision of services in the most integrated setting

3 possible: “A public entity shall administer services, programs, and activities in the most integrated

4 setting appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. § 35.130(d).

5 “The ‘most integrated setting’ is defined as ‘a setting that enables individuals with disabilities to

6 interact with non-disabled persons to the fullest extent possible.’” Brantley v. Maxwell-Jolly, 2009

7 WL 2941519, at *6 (N.D.Cal. Sept. 10, 2009) (citing 28 C.F.R. pt. 35 app. A; Olmstead, 527 U.S.

8 at 592). This mandate “serves one of the principal purposes of Title II of the ADA: ending the

9 isolation and segregation of disabled persons.” Arc of Wash. State Inc. v. Braddock, 427 F.3d 615,

10 618 (9th Cir. 2005); see also Brantley, 2009 WL 2941519 at *6.

11

In Olmstead, the Court applied these integration and anti-isolation principles, holding that

12 the ADA prohibits “[u]njustified isolation of the disabled.” Olmstead, 527 U.S. at 597. The Court

13 reasoned that unnecessary institutional placement “perpetuates unwarranted assumptions that

14 persons so isolated are incapable or unworthy of participating in community life,” and “severely

15 diminishes the everyday life activities of individuals, including family relations, social contacts,

16 work options, economic independence, educational advancement, and cultural enrichment.” Id. at

17 600-01 (citations omitted). To establish an Olmstead claim, a plaintiff must show (1) the state’s

18 treatment professionals have determined that community-based services are appropriate, (2) the

19 disabled individual does not oppose such community-based treatment, and (3) the provision of

20 community-based services can be reasonably accommodated, taking into account the resources 21 available to the state and the needs of other individuals with disabilities.26 527 U.S. at 587.

22

Although Olmstead addressed ongoing institutionalization, plaintiffs who currently reside

23 in community settings may assert ADA integration claims to challenge state actions that give rise

24 to a risk of unnecessary institutionalization. See Fisher v. Oklahoma Health Care Auth., 335 F.3d

25 ___________________________________

26

26 The Ninth Circuit has also analyzed the integration mandate claim under the more

general test applicable to ADA claims brought under Title II. See Townsend v. Quasim, 328 F.3d

27 511 (9th Cir. 2003) (citing Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001));

Brantley, 2009 WL 2941519 at *7. Plaintiffs prevail under either formulation. 28

30

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page41 of 48

1 1175, 1181-82 (10th Cir.2003) (imposition of cap on prescription medications placed participants

2 in community-based program at high risk for premature entry into nursing homes in violation of

3 ADA); Ball v. Rodgers, 2009 WL 1395423 at *5 (D. Ariz. Apr. 24, 2009) (defendants’ failure to

4 provide plaintiffs with needed services “threatened Plaintiffs with institutionalization, prevented

5 them from leaving institutions, and in some instances forced them into institutions in order to

6 receive their necessary care in violation of the ADA and Rehab Act”); Mental Disability Law

7 Clinic v. Hogan, 2008 WL 4104460 at * 15 (E.D.N.Y. Aug.28, 2008) (“[E]ven the risk of

8 unjustified segregation may be sufficient under Olmstead” ); M.A.C. v. Betit, 284 F.Supp.2d 1298,

9 1309 (D. Utah 2003) (integration mandate applies to those at risk of institutionalization); Makin ex

10 rel. Russell v. Hawaii, 114 F.Supp.2d 1017 (D. Haw. 1999) (denying summary judgment because

11 statute at issue “could potentially force Plaintiffs into institutions in violation of the ADA's non-

12 discrimination policy since the State’s Medicaid statute fails to offer all qualified disabled people

13 services in the ‘most integrated setting possible’”).

14

Here, the statutes and regulations that govern the IHSS program themselves establish that

15 the elimination of services for members of the plaintiff class will place them at risk of unnecessary

16 institutionalization. See supra at 2, 5-6. Also, the evidence submitted herewith demonstrates a

17 dramatic risk of institutionalization for many class members. See supra at 17-18.

18

In similar circumstances, courts have found violations of the ADA’s integration mandate.

19 For example, in Fisher, the Tenth Circuit held that recipients of community-based Medicaid

20 services could challenge a state-imposed limitation (enacted for budgetary reasons) of five

21 prescriptions per month, which did not apply to residents of nursing homes, because they “st[oo]d

22 imperiled with segregation” under the new policy. 335 F.3d at 1178-79, 1181-82; see also

23 Crabtree, 2008 WL 5330506, at *25 (M.D. Tenn. Dec. 19, 2008) (enjoining state from reducing

24 maximum allowable hours of home health care services because it would “eliminate services that

25 enable Plaintiffs to remain in their community placement” and thereby “cause their

26 institutionalization into nursing homes”).

27

Finally, maintenance of current IHSS eligibility standards constitutes a reasonable

28 modification that would not require fundamental alteration of the program. Even assuming that

31

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page42 of 48

1 requiring Defendants to maintain current standards could constitute a fundamental alteration, it is

2 well-established that “budgetary constraints alone are insufficient to establish a fundamental

3 alteration defense.” Penn. Protection & Advocacy, Inc. v. Penn. Dept. of Public Welfare, 402 F.3d

4 374, 380 (3rd Cir. 2005); see also Frederick L. v. Dept. of Public Welfare of Com. Of Penn., 364

5 F.3d 487, 495-96 (3rd Cir. 2004); Fisher, 335 F.3d at 1182-83. ABX4 4’s exclusive purpose was

6 such budget savings. Moreover, if even a small proportion of the 133,000 IHSS recipients at risk

7 here end up in hospitals, emergency rooms or nursing homes, the cost to taxpayers may actually be

8 far greater than the entire cost of the IHSS program. See supra at 6-7, 19-20.

9

2. ABX4 4 Discriminates Against People with Psychiatric and Cognitive

10

Disabilities.

11

Implementation of ABX4 4 would also violate the ADA because the use of the composite

12 FI Scores and functional ranks as criteria to determine IHSS eligibility criteria will have a uniquely

13 detrimental effect upon people with psychiatric and cognitive disabilities and tend to exclude them

14 from IHSS.

15

Actionable discrimination under the ADA may be established through a showing that a

16 facially neutral rule has a uniquely detrimental impact upon persons with disabilities; for example,

17 that its effect would be to deny individuals with disabilities meaningful access to government-

18 provided services due to their unique needs. See Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir.

19 1996) (facially neutral 30-day quarantine on animals); Rodde v. Bonta, 357 F.3d at 998 (9th Cir.

20 2004) (closure of county hospital). Similarly, the use of “eligibility criteria that screen out or tend

21 to screen out an individual with a disability or any class of individuals with disabilities from fully

22 and equally enjoying any service, program, or activity” violates the ADA “unless such criteria can

23 be shown to be necessary for the provision of the service, program, or activity being offered.” 28

24 C.F.R. §35.130(b)(8); see also Guckenberger v. Boston Univ., 974 F. Supp. 106, 122-23, 135, 139-

25 40 (D.Mass. 1997) (imposition of requirements that may discourage students with learning

26 disabilities from seeking accommodations); Coleman v. Zatechka, 824 F.Supp. 1360, 1368 (D.

27 Neb. 1993) (eligibility requirements imposed upon students with disabilities seeking to participate

28 in roommate assignment program).

32

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page43 of 48

1

Here, ABX4 4 has a uniquely detrimental and disproportionate impact upon persons with

2 cognitive and psychiatric disabilities, in two primary ways. First, individuals with cognitive and

3 psychiatric disabilities, many of whom may require verbal encouragement or cueing rather than

4 physical assistance, are likely to receive lower functional ranks than individuals with physical

5 disabilities, which will render them ineligible for domestic and related services – even though their

6 need for assistance is just as critical. See supra at 9-10. Second, the way in which the FI Score is

7 calculated tends to result in lower FI Scores for recipients with mental disabilities, such that their

8 IHSS benefits will be terminated while services authorized for recipients with physical disabilities

9 will not be terminated. See supra at 13. The use of these measures to determine IHSS eligibility

10 cannot be characterized as necessary to the program when neither is currently in place; rather, they

11 have been adopted purely as cost-cutting measures.

12

In Olmstead, the Court clarified that the ADA does not limit its protections to situations

13 involving discrimination that disfavors members of a protected class in comparison to individuals

14 outside of that class; rather, the ADA also forbids discrimination among members of the same

15 protected class. See Olmstead, 527 U.S. at 598 (concluding that the latter is within the scope of the

16 “comprehensive view of the concept of discrimination advanced in the ADA”); id. at 598 n. 10

17 (rejecting dissent’s assertion that the “Court has never endorsed an interpretation of the term

18 ‘discrimination’ that encompassed disparate treatment among members of the same protected 19 class”) (citing O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996)).27 This

20 proposition that the ADA requires even-handed treatment among the disabled derives logically

21 from the fact that the ADA affords “individualized protection against illegal conduct,” not group

22 protection. EEOC v. Staten Island Sav. Bank, 207 F.3d 144, 151 (2nd Cir. 2000) (citing Olmstead,

23 527 U.S. at 598 n. 10). Thus, the key question is whether an entity covered by the ADA has

24 discriminated against an individual because of that individual’s disability – here, against members

25 ___________________________________

26

27 In O’Connor, the Court held that a plaintiff asserting age discrimination need not show

that he was replaced by a younger employee outside of the protected category in order to establish

27 a prima facie case. 517 U.S. at 312. Rather, the plaintiff needed show only that he “ha[d] lost out

because of his age,” even if it was to another member of the protected class. Id. 28

33

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page44 of 48

1 of the plaintiff class with cognitive or psychiatric disabilities. See Olmstead, 527 U.S. at 598.

2

Accordingly, courts have held actionable under the ADA discrimination based on type or

3 degree of disability in cases involving programs that are available only to the disabled. See, e.g.,

4 Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1010 (3rd Cir. 1995) (refusal to admit

5 Alzheimer’s patient who suffered from particularly severe disturbances violated Rehabilitation

6 Act); Hamlyn v. Rock Island County Metro. Mass Transit Dist., 986 F. Supp. 1126, 1131 (C.D. Ill.

7 1997) (exclusion of individuals with AIDS from reduced transit fare program available to other

8 individuals with disabilities violated Rehabilitation Act and ADA ); Winkler v. Interim Svcs., Inc.,

9 36 F.Supp.2d 1026, 1029 (M.D. Tenn. 1999) (exclusion of severely disabled individuals from

10 program providing home health services to individuals with disabilities would violate

11 Rehabilitation Act). Here, the implementation of ABX4 4 will have a uniquely detrimental effect

12 upon individuals with cognitive and/or psychiatric impairments in that it will tend to exclude them

13 from IHSS services. Moreover, the basis on which these individuals will be excluded bears no

14 relation to their actual need for the services because the functional ranks and FI Score were not

15 designed to measure criticality of need. Relying on an unreasonable and arbitrary basis for

16 excluding these disabled individuals denies them meaningful access and violates the ADA and

17 Section 504.

18

3. ABX4 4 Uses Methods of Administration that Discriminate Against People with Disabilities.

19

The ADA prohibits methods of administration that have a discriminatory effect on people

20 with disabilities. See Alexander, 469 U.S. at 296-97; Helen L. v. DiDario, 46 F.3d 325, 335 (3rd

21 Cir. 1995); Crowder, 81 F.3d at 1484. The ADA’s implementing regulations state:

22

A public entity may not, directly or through contractual or other arrangements,

23

utilize criteria or methods of administration: ¶ (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; ¶

24

(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to

25

individuals with disabilities. . . .

26 28 C.F.R. § 35.130(b)(3) (emphasis added); see also 28 C.F.R. § 41.51(b)(3)(i); 45 C.F.R. § 27

28

34

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page45 of 48

1 84.4(b)(4) (Section 504). 28

2

The purpose of the IHSS program is “to enable the aged, blind or disabled poor to avoid

3 institutionalization by remaining in their homes with proper supportive services.” Miller, 148

4 Cal.App.3d at 867; see also Welf. & Inst. Code § 12300(a) (IHSS provides services to those who

5 “cannot safely remain in their homes . . . unless these services are provided”). Defendants’ new

6 criteria for deciding IHSS eligibility will significantly impair the purpose of the IHSS program

7 because, among other things, they will cause thousands of individuals to lose IHSS they have

8 already been found to need based on calculations that were not developed to measure the need for

9 IHSS, do not in fact measure that need, and, when applied, cause arbitrary reductions and

10 terminations of supportive services among people with disabilities. See supra at 8-13.

11

Defendants’ new methods of administration will also subject individuals to disability

12 discrimination. The scoring criteria will screen out many individuals with cognitive and

13 psychiatric disabilities. See supra at 9-10, 13. They will also exclude from domestic and related

14 services individuals who have been found to need these services to remain safely in their homes.

15 The methods of administration regulations are also violated by, inter alia, terminating eligibility

16 and services without providing for an individualized exception process for individuals whose

17 scores may be technically accurate but who need IHSS in order to remain safely in their own

18 homes and to avoid institutionalization, without proper notice and a hearing, and without adequate

19 time to arrange for any alternative services that are in fact available.

20

Terminating services based on inaccurate assessments, or based on accurate rankings and

21 scores that do not reflect who may remain safely in their homes without IHSS, impair the purpose

22 of the IHSS program and so violate the ADA. See Brantley, 2009 WL 2941519 at *11 (plaintiffs

23 likely to succeed on claim that defendants’ failure to provide sufficient notice and information

24 regarding reduction in Medi-Cal services violated methods of administration regulation); Kathleen

25 ___________________________________

26

28 Because Congress explicitly authorized the Attorney General to promulgate regulations

to implement Title II of the ADA, these regulations must be given controlling weight unless they

27 are arbitrary, capricious, or plainly contrary to the statute. See 42 U.S.C. § 12134; Parker v.

Universidad de Puerto Rico, 225 F.3d 1, 5 n.5 (1st Cir. 2000). 28

35

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page46 of 48

1 S. v. Pennsylvania Dep’t of Publ. Welfare, 10 F.Supp.2d 460, 471 (E.D.Pa. 1998) (state’s “failure

2 to adequately plan for the community placements” it had already determined appropriate by

3 shifting needed funds within a reasonable time constituted discriminatory methods of

4 administration).

5

CONCLUSION

6

For all the foregoing reasons, Plaintiffs request that this Court issue a preliminary

7 injunction.

8 Dated: October 5, 2009
9

Respectfully Submitted,

10

By: /s/ Melinda Bird

_____

MELINDA BIRD (SBN 102236)

11

MARILYN HOLLE (SBN 61530)

DEBORAH DORFMAN (CRLSA No. 801060)

12

DISABILITY RIGHTS CALIFORNIA

LOS ANGELES REGIONAL OFFICE

13

3580 Wilshire Blvd., Ste. 902

Los Angeles, CA 90010

14

Telephone: (213) 427-8747

Facsimile: (213) 427-8767

15

Melinda.bird@disabilityrightsca.org

Debbie.dorfman@disabilityrightsca.org

16

Marilyn.holle@disabilityrightsca.org

17

SUJATHA JAGADEESH BRANCH (SBN 166259)

DISABILITY RIGHTS CALIFORNIA

18

SACRAMENTO REGIONAL OFFICE

100 Howe Ave., Suite 235N

19

Sacramento, CA 95825

Telephone: (916) 488-9950

20

Facsimile: (916) 488-9960

Sujatha.branch@disabilityrightsca.org 21

DARA L. SCHUR (SBN 98638)

22

FREDERICK P. NISEN (SBN 184089)

JUNG PHAM (SBN 251232)

23

DISABILITY RIGHTS CALIFORNIA

BAY AREA REGIONAL OFFICE

24

1330 Broadway, Suite 500

Oakland, CA 94612

25

Telephone: (510) 267-1200

Facsimile: (510) 267-1201

26

Dara.schur@disabilityrightsca.org

Fred.nisen@disabilityrightsca.org

27

Jung.pham@disabilityrightsca.org

28

36

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page47 of 48

1

ANN MENASCHE (SBN 74774)

DISABILITY RIGHTS CALIFORNIA

2

SAN DIEGO REGIONAL OFFICE

111 Sixth Avenue, Suite 200

3

San Diego, CA 92101

Telephone: (619) 239-7861

4

Facsimile: (619) 239-7906

Ann.menasche@disabilityrightsca.org

5

PAULA PEARLMAN (SBN 109038)

6

SHAWNA PARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

7

919 Albany Street

Los Angeles, CA 90015

8

Telephone: (213) 736-1031

Facsimile: (213) 736-1428

9

Paula.pearlman@lls.edu

Shawna.parks@lls.edu

10

CHARLES WOLFINGER (SBN 63467)

11

LAW OFFICE OF CHARLES WOLFINGER

4655 Cass Street #314

12

San Diego, Ca 92109

Telephone: (858) 272-8115

13

Facsimile: (858) 270-3960

Cw@charleswolfinger.com

14

JANE PERKINS (SBN 104784)

15

NATIONAL HEALTH LAW PROGRAM

211 N. Columbia Street

16

Chapel Hill, NC 27514

Telephone: (919) 968-6308

17

Facsimile: (919) 968-8855

perkins@healthlaw.org

18

ANNA RICH (SBN 230195)

19

NATIONAL SENIOR CITIZEN LAW CENTER

1330 Broadway, Suite 525

20

Oakland, CA 94612

Telephone: (510) 663-1055

21

Facsimile: (510) 663-1051

22

Attorneys for Individual Named Plaintiffs V.L., David

Oster, Willie Beatrice Sheppard, C.R., Dotty Jones,

23

and the Plaintiff Class

24

25

26

27

28

37

Case4:09-cv-04668-CW Document16 Filed10/05/09 Page48 of 48

1

By: /s/ Stacey M. Leyton

______

STEPHEN P. BERZON (SBN 46540)

2

EVE H. CERVANTEZ (SBN 164709)

STACEY M. LEYTON (SBN 203827)

3

PEDER J. THOREEN (SBN 217081)

CASEY A. ROBERTS (SBN 253474)

4

(Admission Pending)

Altshuler Berzon LLP

5

177 Post Street, Suite 300

San Francisco, California 94108

6

Telephone: (415) 421-7151

Facsimile: (415) 362-8064

7

sberzon@altshulerberzon.com

ecervantez@altshulerberzon.com

8

sleyton@altshulerberzon.com

pthoreen@altshulerberzon.com

9

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

10

SEIU Local 521, SEIU California State Council,

UDW, and CUHW

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

38

 
 Case4:09-cv-04668-CW Document20 Filed10/05/09 Page1 of 22

1 MELINDA BIRD (SBN 102236) DEBORAH DORFMAN (CRLSA No. 801060)
2 DISABILITY RIGHTS CALIFORNIA LOS ANGELES REGIONAL OFFICE
3 3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010
4 Telephone: (213) 427-8747 Facsimile: (213) 427-8767
5 Melinda.bird@disabilityrightsca.org Debbie.dorfman@disabilityrightsca.org
6 Attorneys for Named Plaintiffs and the Proposed Class
7 Additional Attorneys for Named Plaintiffs and the Proposed Class on Signature Page
8 STEPHEN P. BERZON (SBN 46540)
9 EVE H. CERVANTEZ (SBN 164709) STACEY M. LEYTON (SBN 203827)
10 Altshuler Berzon LLP 177 Post Street, Suite 300
11 San Francisco, California 94108 Telephone: (415) 421-7151
12 Facsimile: (415) 362-8064 sleyton@altshulerberzon.com
13 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU
14 Local 521, SEIU California State Council, UDW, and CUHW

15

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO/OAKLAND DIVISION

17 V.L., et al.,
18 Plaintiffs
19 v.
20 WAGNER, et al.,
21 Defendants
22
23
24

) Case No.: CV 09-04668 JSW

)

) CLASS ACTION

)

) PLAINTIFFS’ NOTICE OF

) MOTION AND MOTION FOR

) CLASS CERTIFICATION;

) ) )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

)

) Hearing Date: To Be Determined

)

)

25

26

27

28

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Case4:09-cv-04668-CW Document20 Filed10/05/09 Page2 of 22

1

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

2

TO: JOHN A. WAGNER, Director of the California Department of Social

3

Services; DAVID MAXWELL-JOLLY, Director of the California Department of

4

Health Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE

5

SERVICES; and CALIFORNIA DEPARTMENT OF SOCIAL SERVICES:

6

PLEASE TAKE NOTICE that at the date, time, and location set by the Court for the

7 Hearing on Plaintiffs’ Motion for Temporary Restraining Order, or as soon thereafter as counsel may

8 be heard, in the United States District Court for the Northern District of California, the Named

9 Plaintiffs V.L. by and through his guardian ad litem Nancy Lagahid, David Oster; Willie Beatrice

10 Sheppard; C.R. by and through his guardian ad litem Michelle Rivera; and Dotty Jones individually

11 and on behalf of all others similarly situated, will and do hereby move under Rules 23(a) and

12 23(b)(2) of the Federal Rules of Civil Procedure for an order certifying the following class for the

13 purposes of injunctive and declaratory relief for First, Second, Third, Fourth, Fifth, and Seventh

14 Claims for Relief:

15

“All recipients of IHSS in the State of California whose IHSS services

will be limited, cut, or terminated under the provisions of ABX4 4, and

16

all applicants to IHSS in the State of California who would have been

17

eligible for IHSS services but who are either not eligible, or are eligible for fewer services, as a result of ABX 4 4.”

18 Plaintiffs also move for certification of the following subclasses:
19 a. For the Sixth Claim for Relief: “Loss of Domestic and related Services Subclass” to
20 be defined as “all present and future IHSS recipients and applicants who have been or would have
21 been authorized to receive domestic and/or related IHSS, and whose IHSS will be reduced to
22 eliminate some or all of their domestic and/or related services under the provisions of ABX4 4.”
23 b. For the Ninth Claim for Relief: “Termination of Benefits Subclass” to be defined as
24 “all present and future IHSS recipients and applicants who have been or would have been authorized
25 to receive IHSS, and whose IHSS services will be terminated or denied in their entirety under the
26 provisions of ABX4 4
27 c. For the Eighth Claim for Relief: “Children Subclass” to be defined as “all present or
28 future IHSS recipients who are under the age of 21, who qualify for full-scope Medi-Cal with federal

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Case4:09-cv-04668-CW Document20 Filed10/05/09 Page3 of 22

1 financial participation, and who therefore are entitled to the protections of the Early Periodic

2 Screening Diagnosis and Treatment provisions of the federal Medicaid Act (42 U.S.C. §

3 1396a(a)(10)(A), 1396a(a)(43), 1396d(a)(4)(B), 1396d(r)) who have been or would have been

4 authorized to receive IHSS, and whose IHSS services will be reduced or terminated under the

5 provisions of ABX4 4.”

6

Plaintiffs further request that this Court appoint Named Plaintiffs’ counsel to serve as class

7 counsel.

8

The Named Plaintiffs move for certification because the above-defined Plaintiff class and

9 subclasses are so numerous that joinder would be impracticable, there are common questions of law

10 or fact among the class members and subclass members, the claims of the representative Named

11 Plaintiffs are typical of those of the class and subclasses, and the Named Plaintiffs and their counsel

12 will fairly and adequately represent the class and subclass interests. Additionally, Defendants John

13 A. Wagner, Director of the California Department of Social Services; David Maxwell-Jolly, Director

14 of the California Department of Health Care Services; California Department of Health Care

15 Services; and California Department of Social Services have acted or refused to act on grounds

16 applicable to the entire class and subclasses, rendering declaratory and injunctive relief appropriate

17 to the class and subclasses as a whole.

18

This Motion is based on the following Memorandum of Points and Authorities, the

19 Declarations of Class Counsel Dara Schur, Anna Rich, Shawna Parks, Charles Wolfinger, and Jane

20 Perkins in Support of Plaintiffs’ Motion for Class Certification; the Declarations filed in Support of

21 Plaintiffs’ Application for Order Shortening Time, Motions for Temporary Restraining Order,

22 Preliminary Injunction, and Class Certification; attached exhibits; the arguments of counsel; and all

23 other relevant pleadings, briefs, and evidence.

24

25

26

27

28

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Case4:09-cv-04668-CW Document20 Filed10/05/09 Page4 of 22

1 TABLE OF CONTENTS

2 MEMORANDUM OF POINTS AND AUTHORITIES.............................................................1

3 I. INTRODUCTION..............................................................................................................1

4 II. BACGROUND ...................................................................................................................1

5

A. The IHSS Program...................................................................................................1

6

B. ABX4 4 Changed Eligibility for IHSS Services......................................................2

7 III. ARGUMENT......................................................................................................................3

8

A. Plaintiffs Meet the Standards for Certification Under Rule 23(a) ...........................3

9

1. The Proposed Class Meets the Numerosity Requirement of Rule 23(a) .........3

10

2. There are Questions of Law and Fact Common to the Case............................4

11

a. Common Issues of Fact ...........................................................................5

12

b. Common Issues of Law ..........................................................................6

13

3. The Named Plaintiffs’ Claims are Typical of the Claims of the Class...........7

14

4. The Named Plaintiffs and Their Attorneys Will Fairly

and Adequately Protect the Interests of the Class...........................................8

15

a. The Named Plaintiffs’ Interests are Not Antagonistic

16

to Those of the Class ............................................................................8

17

b. Plaintiffs’ Counsel are Qualified to Litigate This Action....................9

18

B. This Case Satisfies Rule 23(b)(2) Because Defendants Have Acted

on Grounds Generally Applicable to the Class, Making Final

19

Injunctive and Declaratory Relief Appropriate and Making

Notice Unnecessary ...............................................................................................10

20

C. The Court Should Designate Plaintiffs’ Counsel as Class Counsel

21

Pursuant to Rule 23(g)(1).......................................................................................11

22 IV. CONCLUSION ................................................................................................................12

23

24

25

26

27

28

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Case4:09-cv-04668-CW Document20 Filed10/05/09 Page5 of 22

1

2 3 Cases

TABLE OF AUTHORITIES

4 Amchem Products v. Windsor 521 U.S. 591 (1997). ...................................................................................................................... 10
5
Armstrong v. Davis 6 275 F.3d 849 (9th Cir. 2001)............................................................................................................ 4

7 Armstrong v. Pingree 8 629 F. Supp. 273 (M.D. Fla. 1986) .................................................................................................. 3

9 Cyrus v. Walker 233 F.RD. 467 (S.D.W.Va 2006) .............................................................................................. 5, 10
10

11

Capitol People First v. DDS 155 Cal.App. 4th 676 (2007)

………………………………………………………………5

12 Elliott v. Weinberger
13 564 F.2d 1219 n.12 (9th Cir. 1977).......................................................................................... 10, 11

14 General Telephone Co. v. Falcon 15 457 U.S. 147 (1982) ................................................................................................................ passim

16 Haley v. Medtronic, Inc. 169 F.R.D. 643 (C.D. Cal. 1996) ..................................................................................................... 4
17

18

Hanlon v. Chrysler Corp. 150 F.3d 1011 (9th Cir. 1998).......................................................................................................... 4

19 Harris v. Palm Springs Alpine Estates
20 329 F.2d 909 (9th Cir. 1964)............................................................................................................ 3

21 Hernandez v. Medows

22

209 F.R.D. 665 (S.D.Fla. 2002). ...................................................................................................... 5

23 In re MDC Holdings Securities Litig. 754 F. Supp 785 (S.D. Cal. 1990). ................................................................................................... 9
24 In re Northern Dist. of Cal. Dalkon Shield IUD Prods. Liab. Litig.
25 693 F.2d 847 (9th Cir. 1982)............................................................................................................ 8

26 Jones v. Diamond

27

519 F.2d 1090 (5th Cir. 1975)........................................................................................................... 3

28 Jordan v. County of Los Angeles 669 F.2d 1311 (9th Cir.)........................................................................................................... passim
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Case4:09-cv-04668-CW Document20 Filed10/05/09 Page6 of 22

1

Lopez v. Heckler

2

572 F. Supp. 26 (C.D. Cal. 1983),................................................................................................... 9

3 M.A.C. v. Betit 4 284 F.Supp.2d 1298 (D.Utah. 1997) .............................................................................................. 10

5 Miller v. Woods 148 Cal.App.3d 862 (1983).............................................................................................................. 6
6

7

Navarro-Ayala v. Hernandez-Colon 951 F.2d 1325 (1st Cir. 1991). ....................................................................................................... 11

8 Perez-Funez v. District Dir.
9 611 F.Supp. 990 (C.D. Cal. 1984).................................................................................................... 3

10 Risinger v. Concannon

11

201 F.RD. 16 (D.Me. 2001) ........................................................................................................... 5

12 Rodriguez v. Hayes -- F.3d --, 2009 WL 2526622 (9th Cir. 2009) ......................................................................... passim
13 Stolz v. United Bd. of Carpenters and Joiners of Am.
14 20 F.Supp. 396 (D. Nev. 1985). ..................................................................................................... 10
15 Von Colln v. County of Ventura
16 189 F.R.D. 583 (C.D. Cal. 1999) .................................................................................................... 4

17 Walters v. Reno 45 F.3d 1032 (9th Cir. 1998).......................................................................................................... 10
18
19 Legislation

20 ABX4 4 ........................................................................................................................................ passim

21 U.S. Constitution ........................................................................................................................ passim

22 Statutes 23

24 California Welfare & Institutions Code § 12300 ............................................................................................................................................. 2

25 § 12309 .................................................................................................................................... passim

§ 12309.2 ................................................................................................................................. passim 26 § 14132.95 ............................................................................................................................... passim

27

§ 14132 ............................................................................................................................................. 5

28

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1 Regulations 2 3 California Department of Social Services Manual of Policies and Procedures § 30-700.1 ................. 5

4 Rules
5

6

Federal Rules of Civil Procedure Rule 23. ................................................................................................................................... passim

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION

3 The Named Plaintiffs represent a prospective class of over 130,000 low-income seniors and
4 other people with disabilities throughout California who are threatened with the loss of critical In-
5 Home Supportive Services (IHSS) services that enable them to remain safely in their homes. They
6 move for an order certifying this case as a class action pursuant to Rule 23 of the Federal Rules of
7 Civil Procedure.
8 Plaintiffs seek declaratory and injunctive relief to enforce (1) the procedural due process
9 rights of prospective class members guaranteed to them by the Fourteenth Amendment of the United
10 States Constitution; (2) the requirements of Title XIX of the Social Security Act, 42 U.S.C. § 1396a
11 et seq. (“the Medicaid Act”); and (3) the integration mandate and other anti-discrimination
12 provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12312 (“ADA”) and Section
13 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”).
14 This action readily satisfies the requirements for class certification under Rule 23(a) and the
15 requirements of Rule 23(b)(2). First, there are in excess of 130,000 people in the class, and the
16 subclasses each have thousands of members. Second, members of the proposed class and subclasses
17 share common issues of fact and law. Third, the Named Plaintiffs are typical of the class because
18 they are threatened with the loss or reduction of IHSS benefits. Fourth, Named Plaintiffs are
19 adequate class representatives with experienced class action counsel. Finally, this case is
20 appropriate for certification under Rule 23(b)(2) because the class has been subjected to a common
21 set of practices for which plaintiffs seek only injunctive and declaratory relief.
22 II. BACKGROUND
23 A. The IHSS Program
24

25

The purpose of the IHSS program is “to enable the aged, blind or disabled poor to avoid

26 institutionalization by remaining in their homes with proper supportive services.” Miller v. Woods,

27 148 Cal.App.3d 862, 867 (1983); See also California Welfare and Institutions Code (“Welf. & Inst.

28 Code”) § 12300(a) (IHSS provides services to those who in the absence of these services “cannot

1
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1 safely remain in their homes . . .”). People eligible for this program must be aged 65 or over, blind,

2 or disabled, and must also be poor under standards of the federal Supplemental Security

3 Income/State Supplemental Payment Program. Amended Class Action Complaint for Injunctive and

4 Declaratory Relief (“Amended Complaint”) ¶ 28.

5

IHSS services, provided in the recipients’ home, include (1) domestic services; (2) related

6 services (meal preparation and clean-up, restaurant meal allowance, laundry, and food and other

7 shopping); (3) personal care services (bowel and bladder care, respiration, feeding, routine bed

8 baths, bathing, oral hygiene and grooming, dressing, repositioning and rubbing skin, including range

9 of motion exercises), transfers, care and assistance with prosthetic devices, assistance with self-

10 administration of medication, routine menstrual care, skin care, and ambulation); (4) travel to

11 medical appointments; (5) yard hazard abatement; (6) protective supervision; (7) teaching and

12 demonstration services, and (8) paramedical services. Welf. & Inst. Code §§ 12300(b) & (c);

13 14132.95(d)(1), (2); 14132.951(c).

14

B. ABX4 4 Changed Eligibility for IHSS Services

15

ABX4 4, effective July 1, 2009, amended Welf. & Inst. Code § 12309 and added § 12309.2

16 to terminate or reduce IHSS services based on measures called functional rankings and composite

17 Functional Index scores. These statutes eliminate Domestic and Related Services for all IHSS

18 recipients who have been assessed to have a Functional Index Rank of below 4 for a particular

19 service and terminate all IHSS services for recipients with a composite Functional Index Score of

20 below 2.0. Stats. 2009, c. 4, § 29 (Part II) (amending Welf. & Inst. Code §§ 12309(e)(1)) and id., §

21 30 (Part II) (adding Welf. & Inst. Code §12309.2(a)(1)). CDSS estimates that 38,000 Californians

22 will lose all IHSS services and 97,000 will lose domestic and related services. CDSS Press Release,

23 September 18, 2009, Exh. F to Kline Decl.

24

Functional index ranks and scores do not measure the safety risk of reducing or eliminating

25 services; furthermore, these ranks and scores have never even been sent to IHSS recipients, so

26 recipients have never before had the opportunity to challenge their accuracy. In particular, as county

27 officials responsible for IHSS programs attest, FI scores were not designed to measure need or

28 eligibility and have never been used for such purposes. Collins Decl. ¶ 27 (county social workers

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1 “do not use the composite FI scores for any reason.”); Crockett Decl. ¶¶ 4, 8, 16; Kaljian Decl. ¶ 6

2 (FI score not an eligibility standard); Nicco Decl. ¶ 20 (no one has ever used functional index ranks

3 or scores for any purpose); Calame Decl., ¶ 6 (“completely arbitrary”).

4

III. ARGUMENT

5

A. Plaintiffs Meet the Standards for Certification Under Rule 23(a).

6

Rule 23(a) of the Federal Rules of Civil Procedure allows an action to be maintained as a

7 class action provided that it meets four conditions: “(1) the class is so numerous that joinder is

8 impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses

9 of the representative parties are typical of the claims or defenses of the class; and (4) the

10 representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 11 23(a). See Rodriguez v. Hayes, -- F.3d --, 2009 WL 2526622, *10 (9th Cir. 2009). Rule 23(a) is read

12 liberally in the context of civil rights suits. Armstrong v. Pingree, 629 F. Supp. 273, 279 (M.D. Fla. 13 1986) (citing Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975)). As shown below, the

14 proposed class here easily satisfies all of the requirements of Rule 23(a).

15

1. The Proposed Class Meets the Numerosity Requirement of Rule

23(a)

16

A class action may be maintained only if “the class is so numerous that the joinder of all

17

parties is impracticable.” Fed. R. Civ. P. 23(a)(1). Impracticability addresses the expense and

18

burden, to the parties and the court, of litigating each claim individually, rendering the case difficult

19

or inconvenient without joining all members of the class. Harris v. Palm Springs Alpine Estates,

20

329 F.2d 909, 913-14 (9th Cir. 1964). Courts have often found the numerosity requirement satisfied

21

by the sheer number of class members. Courts in the Ninth Circuit have found that classes of far

22

fewer than 100 members are sufficiently numerous to render joinder impracticable. Perez-Funez v.

23

District Dir., 611 F.Supp. 990, 995 (C.D. Cal. 1984) (“Classes consisting of 25 members have been

24

held large enough to justify certification.”).

25

In this case, there are more than 130,000 people in the class, more than 97,000 in the Loss of

26

Domestic and Related Services Subclass, more than 36,000 in the Termination of Benefits Subclass,

27

28

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1 and more than 1000 children in the Children Subclass. Amended Complaint ¶ 150. Plaintiffs meet

2 the numerosity requirement of Rule 23(a)(1).

3

2. There are Questions of Law and Fact Common to the Class

4

Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed. R.

5 Civ. P. 23(a)(2). “[F]or the commonality requirement to be met, there must only be one single issue 6 common to the proposed class.” Haley v. Medtronic, Inc., 169 F.R.D. 643, 648 (C.D. Cal. 1996).1

7 “All questions of fact and law need not be common to satisfy the rule. The existence of shared legal

8 issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled

9 with disparate legal remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th

10 Cir. 1998).

11

A class action is particularly appropriate when the issues involved are common to the class as

12 a whole and when they “turn on questions of law applicable in the same manner to each member of

13 the class.” General Telephone Co. v. Falcon 457 U.S. 147, 155 (1982). The Ninth Circuit has held,

14 in the civil rights context, that “commonality is satisfied where [a] . . . lawsuit challenges a system-

15 wide practice or policy that affects all of the putative class members . . . In such circumstance [sic],

16 individual factual differences among the individual litigants or groups of litigants will not preclude a

17 finding of commonality.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (affirming

18 certification of class of prisoners with disabilities despite facts showing different disabilities and

19 accommodation needs because the entire class had common issues related to systemic policies and

20 implementation) (citations omitted). The Ninth Circuit has observed that courts “have generally

21 given [Rule 23(a)(2)] a permissive application in a variety of substantive law areas so that the

22 commonality requirement is usually found to be satisfied.” Jordan v. County of Los Angeles, 669

23 F.2d 1311, 1320 (1982), vacated and rem’d on other grounds, 459 U.S. 810 (1982).

24

25 1In addition, courts apply the commonality requirement more liberally where, as here, plaintiff seeks

class certification under Rule 23(b)(2) because a proposed class seeking declaratory or injunctive 26 relief generally challenges policies and practices affecting an identifiable group in the same way.

27

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

28 definition of commonality.”).

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1

Class actions are routinely certified cases similar to this one, including those that allege

2 violation of constitutional due process, the Medicaid Act, the ADA, or Section 504. Risinger v.

3 Concannon, 201 F.R.D. 16, 19 (D. Me. 2001) (finding commonality where plaintiffs alleged that

4 defendant’s provision of services violated Medicaid EPSDT requirements); Hernandez v. Medows,

5 209 F.R.D. 665, 669 (S.D. Fla. 2002) (certifying class of Medicaid beneficiaries, noting that “factual

6 differences between class members do not preclude a finding of commonality, as long as common

7 questions of law exist.”); Cyrus v. Walker, 233 F.R.D. 467 (S.D. W.Va. 2006) (certifying class in a

8 case alleging that changes in Medicaid home and community based services eligibility

9 determination processes led to termination of benefits in violation of due process); See generally,

10 Capitol People First v. DDS 155 Cal. App. 4th 676 (2007) (reversing a trial court and ordering

11 certification of a class in a case alleging that unnecessary institutionalization violated the Medicaid

12 Act, the ADA, and other laws).

13

Welf. & Inst. Code §§ 12309(e) and 12309.2 have adversely affected all class members by

14 terminating or reducing their IHSS services. While the ultimate effect of the termination or

15 reduction on each individual class member may be different, “[t]he legality of defendant’s practice

16 or policies ... [is] ... a question common to the class, and the existence of different factual questions

17 with respect to various [plaintiffs] will not defeat satisfaction of the commonality requirement.”

18 Jordan, 669 F.2d at 1320.

19

a. Common Issues of Fact

20

The common issues of fact include the following:

21

(1) Class members have been receiving IHSS services after their county has found, using

22 criteria developed by the state, that they need these services in order to live safely at home. Welf. &

23 Inst. Code § 12300(a); Amended Complaint ¶¶ 34-38; California Department of Social Services 24 Manual of Policies and Procedures § 30-700.1 (“Services shall be authorized only [where] Social 25 services staff of the designated county department has had a face-to-face contact with the recipient in 26 the recipient’s home at least once within the past 12 months . . . and has determined that the recipient

27

28

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1 would not be able to remain safely in his/her own home without IHSS [and] [p]erformance of the

2 service by the recipient would constitute such a threat to his/her health/safety that he/she would be

3 unable to remain in his/her own home”); Altman Decl. ¶¶ 3-5; Castro Decl. ¶¶ 5-10; Goldberg Decl.

4 ¶¶ 3; Guerro Decl. ¶¶ 12-15; Hathaway Decl. ¶ 16; Nicco Decl. ¶¶ 5, 11-12; Collins Decl. ¶¶ 10-12.

5

(2) Prior to the enactment of ABX4 4, class members were not informed of their

6 Functional Index Ranks or of their composite Functional Index Scores. Amended Complaint ¶¶ 66,

7 85; Baran Decl. ¶ 9; Aho Decl. ¶ 9; Bean Decl. ¶¶ 5-6; Drass Decl. ¶ 3; Guerra Decl. ¶ 11; Good

8 Decl. ¶ 9; F.H. Decl. ¶ 3; Hylton Decl. ¶ 7; Janson Decl. ¶ 3; Lagahid Decl.¶ 9; Mandel Decl. ¶ 5;

9 Oster Decl. ¶ 5; Worden Decl. ¶ 7.

10

(4) All class members will be provided only 10 days of notice prior to reduction of

11 termination of their IHSS services and the notice is not readily understandable (Amended Complaint

12 ¶ 95);

13

(5) All class members will have their IHSS services terminated or reduced. Amended

Complaint ¶ 148; Cal. Welf. & Inst. Code §§ 12309 & 12309.2. 14

Because the issue of Defendants’ compliance with the federal statutes is common to all class 15

members, the commonality requirement has been satisfied. 16

b. Common Issues of Law 17

Among the common issues of law for the entire class are: 18

(1) Whether Defendants are violating Plaintiffs’ rights arising from the federal 19

constitutional guarantee of procedural due process and provisions of the Medicaid Act by failing to 20

provide adequate notice and opportunity for hearing prior to depriving members of the Plaintiff class 21

of critical IHSS services. 22

(2) Whether Defendants are violating the Medicaid Act by failing to provide (a) 23

comparable Medicaid services to individuals with similar needs; and (b) services according to 24

reasonable standards. 25

(3) Whether Defendants are violating the integration mandate of the Americans with 26

Disabilities Act of 1990, 42 U.S.C. § 12312 (“ADA”), and Section 504 of the Rehabilitation Act of 27

1973, 29 U.S.C. § 794 (“Section 504”), by reducing or terminating IHSS for class members, thus 28

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1 placing class members at imminent risk of being segregated and confined unnecessarily in

2 institutional settings in order to receive services;

3

(4) Whether Defendants are violating the ADA and Section 504 by cutting IHSS benefits

4 in a manner that discriminates or has the effect of discriminating against class members based on the

5 type of disability, or by using methods of administration that exclude individuals with disabilities

6 from IHSS.

7

The above issues are common to all class members, including those in subclasses. In

8 addition, the following are common issues of law regarding the subclasses:

9

(1) For the “Loss of Domestic and Related Services Subclass,” whether Defendants are

10 violating the sufficiency provisions of the Medicaid Act by terminating IHSS domestic and related

11 services to individuals for whom such services have been deemed necessary pursuant to an

12 individual service plan approved by the state;

13

(2) For the “Termination of Benefits Subclass,” whether Defendants are violating the

14 requirement imposed by the Medicaid Maintenance of Effort Clause of the American Recovery and

15 Reinvestment Act (“ARRA”).

16

(3) For the “Children Subclass,” whether Defendants are violating the Medicaid Act’s

17 Early and Periodic Screening, Diagnostic and Treatment (EPSDT) requirements by failing to assure

18 that children obtain the full range of personal care services necessary to correct or ameliorate their

19 physical and mental conditions, including services that could replace lost IHSS.

20

3. The Named Plaintiffs’ Claims Are Typical of the Claims of the

Class

21

The claims of the Named Plaintiffs who represent the class must be typical of the class

22

claims. Fed. R. Civ. P. 23(a)(3). “A class representative must be part of the class and possess the

23

same interest and suffer the same injury as the class members.” General Telephone Co., 457 U.S. at

24

156 (citations omitted). The primary purpose of the typicality requirement is to ensure that the

25

nature of the claims brought by the class representative are so interrelated that the interests of the

26

class members will be fairly and adequately protected in their absence. Id. at 157. “[T]he

27

commonality and typicality requirements of Rule 23(a) tend to merge….” Id, at 158 n.13. “[A]

28

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1 named plaintiff’s claim is typical if it stems from the same event, practice or course of conduct that

2 forms the basis of the class claims and is based upon the same legal or remedial theory.” Ibid. See

3 also Rodriguez, 2009 WL 2526622 at *11.

4

Here, the claims of the Named Plaintiffs mirror those of the class as a whole. Each of the

5 Named Plaintiffs is a recipient of IHSS. Each faces the same unlawful acts by Defendants:

6 termination or reduction of the IHSS services that allow him or her to remain safely at home. See

7 Common Issues of Fact above, section III.A.2.a. The Named Plaintiffs, like the proposed class as a

8 whole, claim that Defendants’ practices violate their rights under the federal constitution and

9 statutes. See Common Issues of Law, section III.A.2.b. The claims of the Named Plaintiffs are

10 typical of all class members who may lose IHSS, or receive reduced IHSS, due to ABX4 4, and the

11 Named Plaintiffs seek the same relief as all class members. Amended Complaint ¶ 152.

12

Hence, the requirements of Rule 23(a)(3) are met for both the proposed class and the

13 proposed subclasses.

14

4. The Named Plaintiffs and Their Attorneys Will Fairly and

Adequately Protect the Interests of the Class

15

16

The final requirement of Rule 23(a) is that the representative parties must “fairly and

17 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy of

18 representation requirement is two-fold: (1) the proposed class representatives must not have conflicts

19 of interest with the proposed class, and (2) they must have qualified and competent counsel. See

20 Hanlon, 150 F.3d at 1020. Because the Named Plaintiffs have no interests that conflict with or are

21 antagonistic to those of the class, and their counsel are qualified, Plaintiffs meet this requirement as

22 well.

23

a. The Named Plaintiffs’ Interests are Not Antagonistic to

Those of the Class

24

25

The class representatives do not have any interests that are antagonistic to the interests of the

26 class because they share the same interests and this lawsuit is not collusive. In re Northern Dist. of

27 Cal. Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d 847, 855 (9th Cir. 1982); Rodriguez, 2009 WL

28 2526622, at *12.

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1

Here, as discussed above, the Named Plaintiffs’ claims and their loss of IHSS services are

2 typical of the claims of the proposed class members. None of the Named Plaintiffs seeks personal

3 damages or other individualized relief to the exclusion of other class members. To the contrary, the

4 focus of this litigation is the grant of broad injunctive and declaratory relief that will benefit the

5 entire class. Collusion is absent. No conflicts exist that could hinder the Named Plaintiffs’ ability to

6 pursue the litigation vigorously on behalf of the class. They will fairly and adequately protect the

7 interests of the class.

8

b. Plaintiffs’ Counsel Are Qualified to Litigate This Action

9

Rule 23(a)(4) also requires that the proposed class representatives be able to prosecute the

10 action vigorously through qualified counsel. In re MDC Holdings Securities Litig., 754 F. Supp 785,

11 802 (S.D. Cal. 1990). It has been recognized that public interest attorneys with experience in

12 protecting the interests of the poor adequately represent class interests. See, e.g., Lopez v. Heckler,

13 572 F. Supp. 26, 31 (C.D. Cal. 1983), modified on other grounds, 725 F.2d 1489 (9th Cir.), vacated

14 and remanded on other grounds, 469 U.S. 1082 (1984).

15

Lead counsel for the class is Melinda Bird with Disability Rights California, who has been

16 involved in public interest class action cases for more than twenty-five years. Ms. Bird is teamed

17 with other highly experienced lawyers from Disability Rights California, as well as highly

18 experienced lawyers from Disability Rights Legal Center, the National Senior Citizens Law Center,

19 the National Health Law Project, and Charles Wolfinger, a lawyer with specialized expertise

20 regarding California’s In-Home Supportive Services programs. Collectively, these long-established

21 public interest firms and attorneys have decades of extensive experience in litigation of federal class

22 actions involving disability and health programs, including representation of classes at the trial and

23 appellate levels. They include some of the most experienced lawyers in the nation and the state on

24 public benefits and Medicaid, disability discrimination, and In-Home Supportive Services issues.

25 Declarations of Schur, Perkins, Rich, Parks, and Wolfinger in Support of Plaintiffs’ Motion for Class

26 Certification, and resumes attached thereto. The resources and experiences of proposed class

27 counsel are more than adequate to represent the class competently.

28

Additionally, no conflicts exist between counsel, Named Plaintiffs, and the proposed class

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1 members that would compromise their ability to represent the class.

2

In summary, the Named Plaintiffs satisfy the adequacy of representation requirement under

3 Rule 23(a)(4) both with respect to their interests and their choice of counsel.

4

B. This Case Satisfies Rule 23(b)(2) Because Defendants have Acted on Grounds

5

Generally Applicable to the Class, Making Final Injunctive and Declaratory

Relief Appropriate and Making Notice Unnecessary

6 In addition to the four requirements of Rule 23(a), the Named Plaintiffs also must satisfy the

7 requirement contained in one of the subdivisions of Rule 23(b). In this case they satisfy Rule

8 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds

9 generally applicable to the class, thereby making appropriate final injunctive relief or corresponding

10 declaratory relief with respect to the class as a whole . . .” In interpreting this requirement, courts

11 have held that where the primary purpose in bringing the action is to seek injunctive relief, the action

12 is properly certifiable under Rule 23(b)(2). Elliott v. Weinberger, 564 F.2d 1219, 1228 (9th Cir.

13 1977) aff’d in relevant part, rev’d in part, 442 U.S. 682, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979);

14 Stolz v. United Bd. of Carpenters and Joiners of Am., 620 F.Supp. 396, 407 (D. Nev. 1985). Civil

15 rights cases against parties charged with class-based discrimination are “prime examples” of actions

16 under Rule 23(b)(2). Amchem Products v. Windsor, 521 U.S. 591, 614 (1997). For example, the

17 Ninth Circuit has held that class determination under Rule 23(b)(2) is appropriate when “class

18 members complain of a pattern or practice that is generally applicable to the class as a

19 whole…[e]ven if some class members have not been injured by the challenged practice….” Walter

20 v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998). Rule 23(b)(2) “does not require us to examine the

21 viability or bases of class members’ claims for declaratory and injunctive relief, but only to look at

22 whether class members seek uniform relief from a practice applicable to all of them.” Rodriguez,

23 2009 WL 2526622 at *13. See also Cyrus v. Walker, 233 F.R.D. 467 (S.D. W.Va. 2006) (certifying

24 class in a case alleging that changes in Medicaid home and community based eligibility

25 determination processes led to termination of benefits in violation of due process.); M.A.C. v. Betit

26 284 F. Supp. 2d. 1298 (D. Utah, 2003) (certifying class of disabled Medicaid recipients challenging

27

28

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1 the denial of Medicaid waiver services as a violation of the Medicaid Act and the integration

2 mandate of the ADA).

3

This case is exemplary of a Rule 23(b)(2) action because Defendants’ enforcement of Welf.

4 & Inst. Code §§ 12309(e)(1) and 12309.2(a)(1) affects all members of the class as well as the Named

5 Plaintiffs, and because Plaintiffs seek only declaratory and injunctive relief. Defendants’ violations

6 of federal law have equal application to all class members, as all class members are people with

7 disabilities who receive IHSS services.

8

Class-wide final injunctive and declaratory relief is appropriate to facilitate enforcement of

9 judgments. Given that the Plaintiffs seek only declaratory and injunctive relief, and the granting of

10 such relief is appropriate with respect to the class as a whole to remedy Defendants’ discriminatory

11 actions, Rule 23(b)(2) is satisfied in this case.

12

Because Plaintiffs seek to certify a class under Rule 23(b)(2), Rule 23(c)(2)(A) prejudgment

13 notice is not required. Fed. R. Civ. P. 23(c)(2)(A). Elliot, 564 F.2d at 1228-29; Navarro-Ayala v. 14 Hernandez-Colon, 951 F.2d 1325, 1336-37 (1st Cir. 1991).

15

C. The Court Should Designate Plaintiffs’ Counsel as Class Counsel Pursuant to

16

Rule 23(g)(1).

17

When a class is certified, the court must appoint class counsel (Fed. R. Civ. P. 23(g)(1)), and

18 the class certification order must list these counsel. Fed. R. Civ. P. 23(c)(1)(B). The court considers

19 four factors in appointing class counsel:

20

“(i) the work counsel has done in identifying or investigation potential claims in the action;

21

(ii) counsel’s experience in handling class actions, other complex litigation and the types of

claims asserted in the action; 22
(iii) counsel’s knowledge of the applicable law; and

23

(iv) the resources that counsel will commit to representing the class.”

24 Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv).

25

Pursuant to these four factors, Plaintiffs’ counsel qualify for appointment in this case. As

26 reflected in the Amended Complaint and Plaintiffs’ concurrently filed Motion for Preliminary
27 Injunction, Plaintiffs’ counsel has committed extensive time and resources to investigating and analyzing Plaintiffs’ claims. Counsel is very experienced in class actions and complex litigation and
28

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1 has extensive knowledge of discrimination and benefits law. Declarations of Schur, Rich, Parks,

2 Perkins, and Wolfinger in Support of Plaintiffs’ Motion for Class Certification. The Court should

3 appoint Plaintiffs’ counsel as class counsel in its class certification order.

IV. CONCLUSION 4
For the reasons stated above, the Named Plaintiffs have satisfied all of the requirements of

5 Rule 23(a) and Rule 23(b)(2) with respect to the proposed defined class, and Rule 23(g)(1) as to

6 appointment of class counsel. Plaintiffs respectfully request that this Court:

7 1) Certify this case as a Rule 23(b)(2) class action;

8 2) For the First, Second, Third, Fourth, Fifth, and Seventh Claims for Relief, define the class

9 as:

10 “All recipients of IHSS in the State of California whose IHSS services

11

will be limited, cut, or terminated under the provisions of ABX4 4, and

all applicants to IHSS in the State of California who would have been

12

eligible for IHSS services but who are either not eligible, or are

13

eligible for fewer services, as a result of ABX 4 4 (hereinafter the “Class”).”

14 3) In addition to the claims for the class as a whole, for the Sixth Claim for Relief, certify a
15 “Loss of Domestic and related Services Subclass” to be defined as “all present and
16 future IHSS recipients and applicants who have been or would have been authorized to
17 receive domestic and/or related IHSS, and whose IHSS will be reduced to eliminate some
18 or all of their domestic and/or related services under the provisions of ABX4 4.”
19 3) In addition to the claims for the class as a whole, for the Ninth Claim for Relief, certify a
20 “Termination of Benefits Subclass” to be defined as “all present and future IHSS
21 recipients and applicants who have been or would have been authorized to receive IHSS,
22 and whose IHSS services will be terminated or denied in their entirety under the
23 provisions of ABX4 4.”
24 4) In addition to the claims for the class as a whole, for the Eighth Claim for Relief, certify a
25 “Children Subclass” to be defined as “all present or future IHSS recipients who are
26 under the age of 21, who qualify for full-scope Medi-Cal with federal financial
27 participation, and who therefore are entitled to the protections of the Early Periodic
28

12
PLAINTIFF’S NOTICE OF MTN AND MTN FOR CLASS CERT; MEMO. OF PTS. AND AUTH. IN SUPPORT, CASE NO. CV 09-04668 JSW

Case4:09-cv-04668-CW Document20 Filed10/05/09 Page20 of 22

1

Screening Diagnosis and Treatment provisions of the federal Medicaid Act 42 U.S.C. §

2

1396a(a), who have been or would have been authorized to receive IHSS, and whose

3

IHSS services will be reduced or terminated under the provisions of ABX4 4.”

4

4) Appoint Plaintiffs’ counsel to serve as class counsel; and

5

5) Dispense with any requirement for Plaintiffs to give notice to absent class members at this

6 stage of the litigation.

7 Date: October 5, 2009
8

Respectfully submitted,

9

/s/

10

________________________________________

SUJATHA JAGADEESH BRANCH (SBN 166259)

11

DISABILITY RIGHTS CALIFORNIA

SACRAMENTO REGIONAL OFFICE

12

100 Howe Street, Suite 235 N

13

Sacramento, CA 95825 Telephone: (916) 488-9950

14

Facsimile: (916) 488-9960

Sujatha.branch@disabilityrightsca.org

15

16

MELINDA BIRD (SBN 102236)

17

MARILYN HOLLE (SBN 61530) DEBORAH DORFMAN (CRLSA No. 801060)

18

DISABILITY RIGHTS CALIFORNIA

LOS ANGELES REGIONAL OFFICE

19

3580 Wilshire Blvd., Ste. 902

Los Angeles, CA 90010

20

Telephone: (213) 427-8747

21

Facsimile: (213) 427-8767

Melinda.bird@disabilityrightsca.org

22

Debbie.dorfman@disabilityrightsca.org

marilyn.holle@disabilityrightsca.org

23

DARA L. SCHUR (SBN 98638)

24

FREDERICK P. NISEN (SBN 184089)

25

JUNG PHAM (SBN 251232)

DISABILITY RIGHTS CALIFORNIA

26

BAY AREA REGIONAL OFFICE

1330 Broadway, Suite 500

27

Oakland, CA 94612

28

Telephone: (510) 267-1200 Facsimile: (510) 267-1201

13
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Case4:09-cv-04668-CW Document20 Filed10/05/09 Page21 of 22

1

Dara.schur@disabilityrightsca.org

Fred.nisen@disabilityrightsca.org

2

Jung.pham@disabilityrightsca.org

3

ANN MENASCHE (SBN 74774)

4

DISABLITY RIGHTS CALIFORNIA

SAN DIEGO REGIONAL OFFICE

5

1111 Sixth Avenue, Suite 200

San Diego, CA 92101

6

Telephone: (619)239-7861

7

Facsimile: (619)239-7906 Ann.menasche@disabilityrightsca.org

8 PAULA PEARLMAN (SBN 109038)

9

SHAWNA PARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

10

919 Albany Street

11

Los Angeles, CA 90015 Telephone: (213) 736-1031

12

Facsimile: (213) 736-1428

Paula.pearlman@lls.edu

13

Shawna.parks@lls.edu

14

CHARLES WOLFINGER (SBN 63467)

15

LAW OFFICE OF CHARLES WOFLINGER

4655 Cass Street # 314

16

San Diego, CA 92109

Telephone: (858) 272-8115

17

Facsimile: (858) 270-3960

Cw@charleswolfinger.com 18

19

JANE PERKINS (SBN 104784)

NATIONAL HEALTH LAW PROGRAM

20

211 N. Columbia Street

Chapel Hill, NC 27514

21

Telephone: (919) 968-6308

22

Facsimile: (919) 968-8855 perkins@healthlaw.org

23 ANNA RICH (SBN 230195)

24

NATIONAL SENIOR CITIZEN LAW CENTER

1330 Broadway, Suite 525

25

Oakland, CA 94612

26

Telephone: (510) 663-1055 Facsimile: (510) 663-1051

27

28

Attorneys for Named Plaintiffs V.L., David

14
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Case4:09-cv-04668-CW Document20 Filed10/05/09 Page22 of 22

1

Oster, Willie Beatrice Sheppard, Dotty Jones, C.R., and

the Plaintiff Class

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15
PLAINTIFF’S NOTICE OF MTN AND MTN FOR CLASS CERT; MEMO. OF PTS. AND AUTH. IN SUPPORT, CASE NO. CV 09-04668 JSW

 
 Case4:09-cv-04668-CW Document169 Filed10/15/09 Page1 of 7

1 EDMUND G. BROWN JR. Attorney General of California
2 KARIN S. SCHWARTZ SUSAN M. CARSON
3 Supervising Deputy Attorneys General JOSHUA N. SONDHEIMER
4 GREGORY D. BROWN (State Bar No. 219209) MICHAEL Z. ZWIBELMAN
5 Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000
6 San Francisco, CA 94102-7004 Telephone: (415) 703-5461
7 Fax: (415) 703-5480 E-mail: Gregory.Brown@doj.ca.gov
8 Attorneys for Defendants

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11 OAKLAND DIVISION
12

13

14 V.L., et al.,

CV 09-4668 CW

15

16

v.

17 JOHN A. WAGNER, et al.,
18

19

20

Plaintiffs, DEFENDANTS’ REQUEST FOR RECONSIDERATION OF OCTOBER 14, 2009 ORDER GRANTING EMERGENCY TEMPORARY RESTRAINING ORDER

Defendants.

Date:

N/A

Time:

N/A

Courtroom: 2, 4th Floor

Judge:

The Honorable Claudia Wilken

Trial Date: None Set

Action Filed: October 1, 2009

21

22

23

24

25

26

27

28
1
Defendants’ Request for Reconsideration of October 14, 2009 Order Granting Emergency TRO (CV 09-4668 CW)

Case4:09-cv-04668-CW Document169 Filed10/15/09 Page2 of 7

1

INTRODUCTION

2

Defendants respectfully request that the court reconsider and vacate the emergency

3 Temporary Restraining Order (TRO) issued yesterday afternoon, which temporarily restrains

4 defendants from sending out Notices of Action to recipients whose benefits will be reduced or

5 terminated under ABX4 4, which will take effect on November 1, 2009. Defendants were not

6 given an opportunity to respond to plaintiffs’ ex parte application for a TRO, and accordingly the

7 court was deprived of an opportunity to learn the facts relevant to the TRO or to hear argument

8 thereon. For the reasons set forth herein, plaintiffs have not met, and cannot meet, the legal or

9 equitable requirements for obtaining the extraordinary remedy of a TRO in this instance, and

10 accordingly the TRO should be vacated and defendants should be immediately permitted to send

11 the Notices of Action to recipients.

12

ARGUMENT

13 I. THE TRO IS PREMISED ON A MISUNDERSTANDING OF THE PURPOSE AND FUNCTION OF THE NOTICES OF ACTION
14 The TRO was issued before defendants could submit an opposition and without any
15 argument, and as a result rests upon a fundamental misunderstanding of both the purpose and
16 function of the Notices of Action and what the practical effect is of such a TRO. The Notices of
17 Action do not themselves reduce or terminate anyone’s IHSS benefits. They are – as their name
18 implies – merely notices that are sent to recipients to inform them of actions that have already
19 been taken in the IHSS computer system – a system called CMIPS that is operated by a third party
20 vendor, Electronic Data Systems, LLP (EDS). See Petty Decl., ¶¶ 1 et seq. Accordingly, the
21 TRO has no effect whatsoever on actions relevant to plaintiffs’ complaint or motion for a
22 preliminary injunction – i.e., the implementation of ABX4 4’s reductions and terminations in the
23 CMIPS system – and instead merely deprives recipients of notice of the actions that have already
24 been taken (and have not been restrained or enjoined by the court). In other words, the TRO does
25 nothing to stop the implementation of ABX4 4, and instead directly harms IHSS recipients by
26 depriving them of notice of the pending reductions in or terminations of their benefits which will
27 take effect on November 1, 2009. The earlier that recipients receive notice, the sooner they can
28
2
Defendants’ Request for Reconsideration of October 14, 2009 Order Granting Emergency TRO (CV 09-4668 CW)

Case4:09-cv-04668-CW Document169 Filed10/15/09 Page3 of 7

1 determine whether to seek a state hearing, which would entitle them to aid paid pending the

2 hearing.

3

Subsequent to the issuance of the TRO, defendants’ counsel has obtained additional

4 information regarding the implementation of ABX4 4. Defendants’ counsel spoke with plaintiffs’

5 attorney Dara Schur earlier today to bring this new information to plaintiffs’ attention, see Brown

6 Decl., ¶ 3, and defendants now wish to bring that information to the court’s attention as well:

7

In order to make the necessary changes to the state’s CMIPS computer system to implement

8 ABX4 4, EDS had to develop a new program that took over six weeks to develop, test, and verify

9 to ensure that it would work. Petty Decl., ¶ 6. Under this new program, CMIPS has been

10 modified so that individuals whose functional ranks and/or FI scores are below the need

11 thresholds under ABX4 4 will have those services automatically reduced or terminated by the

12 CMIPS system as of November 1, 2009. Id., ¶ 7. These changes were completed in early

13 October 2009, meaning that the terminations and reductions effective November 1, 2009 under

14 ABX4 4 have already occurred in the CMIPS system. Id., ¶¶ 6, 9. The Notices of Action that

15 were enjoined by the TRO simply notify recipients of these changes; whether or not they are sent,

16 the changes are already in effect.

17

Defendants wish to notify the court that these changes will not be easy to undo. If the court

18 were to order EDS to stop or reverse the changes that it has made to CMIPS under ABX4 4, it

19 would take up to five weeks to accomplish. Id., ¶ 8. This is because the reductions and

20 terminations effective November 1, 2009 under ABX4 4 have already been entered into the

21 CMIPS system. Id., ¶¶ 6-9. CMIPS does not currently have the ability to reconstruct past data,

22 and thus a new program would have to be created, designed, and tested before that could be done

23 on a system-wide bases – a process that has never been done before in the 25+ years that EDS has

24 supported CMIPS, and which accordingly would take extensive time and effort to implement. Id.,

25 ¶ 8. Therefore, in order to attempt to reverse the reductions and terminations that have been

26 entered into CMIPS prior to November 1, 2009, the counties would have to manually re-enter the

27 information into CMIPS for each individual recipient. Id., ¶¶ 9, 10. At this point defendants do

28
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Defendants’ Request for Reconsideration of October 14, 2009 Order Granting Emergency TRO (CV 09-4668 CW)

Case4:09-cv-04668-CW Document169 Filed10/15/09 Page4 of 7
1 not have a good estimate of how long that process would take. Even if EDS were to develop an
2 automated solution, considerable effort by the counties would still be required. Id., ¶¶ 9, 10.
3 II. THE ALLEGED “EMERGENCY” WAS CREATED ENTIRELY BY PLAINTIFFS’ OWN DELAY
4 The TRO should be vacated for the separate and independent reason that the supposed
5 “emergency” for the TRO was created entirely by plaintiffs’ own delay. Plaintiffs have known
6 since ABX4 4 was enacted on July 28, 2009 that defendants would have to send out Notices of
7 Action to affected beneficiaries prior to the statute taking effect. Despite this knowledge,
8 plaintiffs sandbagged defendants and waited until October 14, 2009 – 78 days later – to raise their
9 first challenge to the issuance of the Notices of Action (as no such claims were raised in the
10 complaint or motion for a preliminary injunction), and then gave defendants just 67 minutes’
11 notice before seeking a TRO. The TRO was granted just 24 minutes after plaintiffs completed the
12 filing of their moving papers, without a hearing and without giving defendants any opportunity to
13 respond.
14 Plaintiffs’ claims that the reason for the October 19, 2009 hearing date was to ensure that
15 the hearing was held prior to the issuance of the Notices of Action is simply false. On at least two
16 separate occasions, plaintiffs’ counsel informed defendants’ counsel that their primary concern
17 with the timing of the hearing date was not the sending of the Notices of Action, but rather to
18 have the hearing early enough so that, in the event a preliminary injunction is granted, CDSS will
19 have time to notify recipients prior to November 1, 2009 that they are entitled to continue to
20 receive their benefits. See Brown Decl., ¶ 2 & Exh. A. Indeed, if the date of mailing of the
21 Notices of Action had been a genuine concern to plaintiffs, plaintiffs’ counsel could have sought
22 and easily obtained that information from defendants prior to filing their motion to shorten time
23 on October 5, 2009.
24 Plaintiffs’ claims that they were “sandbag[ged]” be defendants are truly beyond the pale.
25 See Application at 2 n.1. Plaintiffs delayed for 69 days before filing their motion for a
26 preliminary injunction, and then sandbagged defendants with just 7 days to respond to over 1,100
27 pages on the basis of an alleged “emergency” that was entirely plaintiffs’ own creation.
28
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Defendants’ Request for Reconsideration of October 14, 2009 Order Granting Emergency TRO (CV 09-4668 CW)

Case4:09-cv-04668-CW Document169 Filed10/15/09 Page5 of 7

1 Beginning on October 8, 2009, while plaintiffs were well aware that defendants’ counsel were

2 working around the clock to read and respond to plaintiffs’ moving papers, plaintiffs contacted

3 defendants’ counsel to ask them questions regarding (1) what defendants would argue in their

4 briefs regarding class certification and (2) the exact date on which the Notices of Action would

5 issue. The first question improperly inquired into defendants’ litigation strategy and required no

6 response, and defendants’ counsel had no time to immediately track down the answer to the

7 second question given the extremely tight briefing schedule. Moreover, defendants’ counsel

8 recognized that the second question was entirely irrelevant to plaintiffs’ claims and accordingly

9 was not particularly urgent. Indeed, plaintiffs’ counsel Eve Cervantes acknowledged that this

10 question was not particularly urgent via email on October 9, 2009, stating:

11

Even if notices will be sent this Saturday [October 10, 2009], the briefing and hearing

schedule should remain as previously set, so that the State has sufficient time to send

12

notices informing affected recipients that their IHSS will not be terminated or

reduced, in the event the Court grants a preliminary injunction enjoining the

13

terminations and reductions.

14 Brown Decl., Exh. A.

15

In response to plaintiffs’ questions, Deputy Attorney General Gregory D. Brown informed

16 plaintiffs’ counsel that he would get back to them after defendants’ brief was filed, and he did so,

17 leaving a voice message for Stacey Leyton on October 13, 2009. Ms. Leyton responded to

18 Mr. Brown’s message on October 14, 2009, and asked defendants to confirm when the Notices of

19 Action would be mailed out. Mr. Brown contacted CDSS that same day to obtain that

20 information, and sent a letter to Ms. Leyton that same afternoon, via email, immediately upon

21 learning that the Notices of Action were potentially going out the next day, October 15, 2009.

22 Indeed, as Mr. Brown’s letter states, he had not yet had time to confirm that information at the

23 time he sent the letter, but nonetheless sent the letter to ensure that Ms. Leyton received all of the

24 information that Mr. Brown had as soon as possible.

25 III. PLAINTIFFS FAILED TO MEET EITHER THE LEGAL OR EQUITABLE REQUIREMENTS FOR OBTAINING A TRO
26 Plaintiffs cannot meet any of the standards for receiving a TRO. To obtain the
27 extraordinary remedy of a TRO, plaintiffs must show: “(1) a strong likelihood of success on the
28
5
Defendants’ Request for Reconsideration of October 14, 2009 Order Granting Emergency TRO (CV 09-4668 CW)

Case4:09-cv-04668-CW Document169 Filed10/15/09 Page6 of 7

1 merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a

2 balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain

3 cases).” Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2009) (internal quotation marks omitted).

4

First, plaintiffs have no likelihood of prevailing on the merits of their claims relating to the

5 TRO. The alleged wrong that plaintiffs have temporarily restrained via the TRO – the sending of

6 Notices of Action – is not challenged in their complaint and is not a subject of their motion for a

7 preliminary injunction. Indeed, plaintiffs claim in their complaint and motion for preliminary

8 injunction that recipients’ due process rights will be violated if they do not receive adequate

9 notice. Plaintiffs have now turned around 180 degrees and, without citing a single authority,

10 obtained a TRO to prevent recipients from receiving any notice of the actions that have already

11 been taken in the CMIPS system. Plaintiffs cannot possibly succeed on the merits of such a 12 claim.1

13

Second, plaintiffs have not even attempted to offer any evidence of harm that could be

14 caused by the mere sending of Notices of Action. The only “irreparable harm” that plaintiffs

15 allege in this case would supposedly stem from the action taken in implementing ABX4 4 (i.e.,

16 reducing or terminating recipients’ benefits), and not from the notices sent to recipients informing

17 them of that action.

18

Third, the balance of hardships and public interest both tilt overwhelmingly against the

19 issuing of a TRO to restrain the Notices of Action. Indeed, it is in both the state’s interest and

20 recipients’ interest to have the Notices of Action sent out as soon as reasonably feasible. The

21 TRO has already caused and will continue to cause the state considerable expense, and it is

22 presently depriving recipients of notice of the actions being taken under ABX4 4.

23

Finally, it appears from the record that plaintiffs have not given any security to pay the

24 costs if defendants are found to have been wrongfully restrained, as required by Federal Rule of

25

26

1 Moreover, as defendants demonstrated in their opposition to the motion for a preliminary

injunction, plaintiffs cannot succeed on the merits of any of the claims in their complaint or

27 motion for a preliminary injunction. Nor have plaintiffs shown any likelihood of irreparable harm

from the implementation of ABX4 4.

28

6

Defendants’ Request for Reconsideration of October 14, 2009 Order Granting Emergency TRO (CV 09-4668 CW)

Case4:09-cv-04668-CW Document169 Filed10/15/09 Page7 of 7

1 Civil Procedure 65(c). To the extent that a request for a security is required under Civil Local

2 Rule 65.1-1(a), defendants hereby request that such security be furnished immediately.

3

CONCLUSION

4

For the foregoing reasons, the court should vacate the TRO and permit defendants to send

5 Notices of Action regarding ABX4 4 to IHSS recipients immediately.

6 Dated: October 15, 2009 7 8 9 10 11 12 13 14 SF2009405031
40387895.doc
15

Respectfully submitted,
EDMUND G. BROWN JR. Attorney General of California KARIN S. SCHWARTZ SUSAN M. CARSON Supervising Deputy Attorneys General
/s/ Gregory D. Brown
JOSHUA N. SONDHEIMER GREGORY D. BROWN MICHAEL A. ZWIBELMAN Deputy Attorneys General Attorneys for Defendants

16

17

18

19

20

21

22

23

24

25

26

27

28
7
Defendants’ Request for Reconsideration of October 14, 2009 Order Granting Emergency TRO (CV 09-4668 CW)

 
 Case4:09-cv-04668-CW Document92 Filed10/06/09 Page1 of 10

1 MELINDA BIRD (SBN 102236)

MARILYN HOLLE (SBN 61530)

2 DEBORAH DORFMAN (CRLSA No. 801060)

DISABILITY RIGHTS CALIFORNIA

3 LOS ANGELES REGIONAL OFFICE

3580 Wilshire Blvd., Ste. 902

4 Los Angeles, CA 90010

Telephone: (213) 427-8747

5 Facsimile: (213) 427-8767

Melinda.bird@disabilityrightsca.org

6 Debbie.dorfman@disabilityrightsca.org

Marilyn.holle@disabilityrightsca.org

7

Attorneys for Named Plaintiffs and the Proposed Class

8 Additional Attorneys for Named Plaintiffs and the

Proposed Class on Signature Page

9

STEPHEN P. BERZON (SBN 46540)

10 EVE H. CERVANTEZ (SBN 164709)

STACEY M. LEYTON (SBN 203827)

11 PEDER J. THOREEN (SBN 217081)

Altshuler Berzon LLP

12 177 Post Street, Suite 300

San Francisco, California 94108

13 Telephone: (415) 421-7151

Facsimile: (415) 362-8064

14 sleyton@altshulerberzon.com

ecervantez@altschulerberzon.com

15 sleyton@altschulerberzon.com

pthoreen@altschulerberzon.com

16 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU

Local 521, SEIU California State Council, UDW, and CUHW

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

19

V.L., et al.,

) Case No.: CV 09-04668 JSW

20

)

) CLASS ACTION

21

Plaintiffs

)

) PLAINTIFFS’ OPPOSITION TO

22

v.

) DEFENDANTS’ ADMINISTRATIVE

23 WAGNER, et al.,

24

Defendants

) MOTION PURSUANT TO LOCAL

) ) )

RULE 7-11 TO CONDUCT LIMITED DISCOVERY OF NAMED PLAINTIFFS

)

25

) Hearing Date: October 16, 2009

) Place: Courtroom 11, 19th Floor

26

) Judge: The Honorable Jeffrey S. White

)

27

)

28

PLAINTIFFS’ OPP. TO DEFENDANTS’ ADMIN. MTN PURSUANT TO LOCAL RULE 7-11 TO CONDUCT LIM. DISC. OF NAMED PLAINTIFFS

Case4:09-cv-04668-CW Document92 Filed10/06/09 Page2 of 10

1

Plaintiffs file this Opposition to Defendants’ request to conduct the depositions of the

2 individual named Plaintiffs and their Guardian Ad Litems this week. This is a class action lawsuit

3 seeking a Temporary Restraining Order and/or Preliminary Injunction, and permanent injunctive

4 relief, to stop Defendants from terminating or reducing critical In-Home-Supportive Services

5 (“IHSS”) to 133,000 elderly, disabled, or blind Californians who depend upon these services to

6 remain safely in their homes.

7 I. 8

PLAINTIFFS ARE WILLING TO ENGAGE IN MUTUAL, LIMITED DISCOVERY PROVIDED CLASS MEMBERS ARE NOT PREJUDICED BY TERMINATIONS OR REDUCTIONS OF SERVICE DURING THE DISCOVERY PERIOD.

9

Prior to filing their Motion for a Temporary Restraining Order and Preliminary Injunction,

10 Plaintiffs proposed to Defendants that both sides be permitted to take limited depositions of key

11 witnesses for the purpose of preparing for the motion for a preliminary injunction in this case,

12 provided that class members rights’ were not prejudiced in the interim by the termination and

13 reduction of IHSS services. Leyton Decl. ¶ 2, 3. Accordingly, Plaintiffs’ Counsel proposed that the

14 state agree to postpone the pending IHSS terminations and reductions for one month to permit

15 limited discovery. Leyton Decl. ¶ 2, 3. Defendants rejected this solution, and have refused to

16 postpone the terminations and redections in order to allow both sides to engage in mutual discovery

17 on a reasonable schedule. Leyton Decl. ¶ 5.

18

In the absence of a stipulation from Defendants, a Temporary Restraining Order, as requested

19 by Plaintiffs, would allow the hearing on the preliminary injunction to proceed on a less compressed

20 schedule, allowing for mutual focused discovery while still fully protecting the rights of the Plaintiff

21 class.

22

Instead, Defendants propose lopsided discovery of only the named Plaintiffs and their

23 Guardians within the next four days. Given that Plaintiffs are elderly or have mental disabilities,

24 and/or their Guardian Ad Litems have responsibilities for caring for their children with disabilities,

25 additional time beyond a few days is necessary for Plaintiffs’ counsel to meet with and prepare these

26 witnesses for deposition, arrange for accessible transportation, arrange for attendant care during the

27 deposition, ensure that Plaintiffs medical needs are accommodated, and/or arrange for alternative

28 care givers to provide care to minor children with disabilities during the deposition. Lagahid Decl. ¶
1
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Case4:09-cv-04668-CW Document92 Filed10/06/09 Page3 of 10

1 11 (Doc. No. 34) (mother, who is the guardian ad litem, has extensive physical disabilities and uses

2 a wheelchair); Sheppard Decl. ¶¶ 3, 4, 6 (Doc. No. 37) (cannot go into community without IHSS

3 provider who comes only twice a week for four hours, has fluctuating health due to medical

4 conditions and uses a wheelchair); Rivera Decl. ¶ 6, 11, 44 (Doc. No. 38) (mother, who is the

5 primary caregiver for Plaintiff C.R., has two other young children, C.R. cannot walk or talk); Jones

6 Decl. ¶ 9 (Doc. No. 39) (has difficulty walking due to neuropathy); Oster Decl. ¶ 4, 6 (has

7 fluctuating mental health needs and need for medication). Plaintiffs previously raised this issue with

8 Defendants. Leyton Decl. ¶ 4. Defendants’ particular proposed discovery is neither necessary nor

9 appropriate at this stage of the case, but in any event could not occur within the next week without

10 substantial prejudice to Plaintiffs and the proposed class representatives.

11 II. 12

DEPOSITION TOPICS PROPOSED BY DEFENDANTS ARE UNIQUELY WITHIN DEFENDANTS’ KNOWLEDGE OR ARE OTHERWISE IRRELEVANT AND UNNECESSARY

13

Defendants claim that depositions are necessary in order to establish four facts. Motion p. 23.

14 However, these particular facts are either exclusively within Defendants’ knowledge and control or

15 irrelevant at this stage of the proceedings. Defendants have not specified what facts are relevant to

16 any defense to the motions for class certification or preliminary injunction that are not in plaintiffs'

17 county case files and their own records. Defendants'have access to all such information.

18

A. Proffered Reason 1: Defendants do not need to depose Plaintiffs to know whether

19

their IHSS services will actually be reduced or terminated, and in fact such

20

information is SOLELY in the Defendants’ control at this time. It is particularly

21 ironic that Defendants propose to depose Plaintiffs to find out whether they will lose
22 their IHSS services.
23

24

Plaintiffs have not yet received official notices of the cuts, and while some of

25

them have sought and received some preliminary information from their respective

26

counties, none of them know for sure what will happen. Rivera Decl. ¶¶ 8 and 40

27

(Doc. No. 38); Oster Decl. ¶¶ 5 and 11 (Doc. No. 35); Sheppard Decl. ¶ 13 (Doc. No.

28

37) ; Lagahid Decl. ¶ 9 (Doc. No. 34); Jones Decl. ¶ 18 (Doc. No. 37). In contrast, it

2
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1

is Defendants, not the Named Plaintiffs, who are in the unique position of knowing

2

whether services “will actually be reduced or terminated.” The All County Letter

3

(ACL), issued by Defendants on October 1, details the process for calculating the

4

terminations, determining who will lose eligibility or have their IHHS services

5

reduced. Request for Judicial Notice, Exhibit A (Doc. No. 18). The process starts

6

with “functional ranks” that have been determined by county social workers, and not

7

yet revealed to Plaintiffs or other class members. Id. at 2-3. Then, Defendants will

8

generate the Functional Index scores (FI), based on data entered by the counties into

9

the Defendants’ computer system. The FI Score “is a system driven calculation that

10

is computed by the Case Management, Information and Payrolling System (CMIPS)

11

based on the FI Ranks entered by the county for each functional area.” Id. at 2.

12

Following the determination of the FI Score, the CMIPS system will identify and

13

terminate recipients, and generate the notices of action informing the recipient of the

14

termination. Id. at 4. The state will then, through the CMIPS system, “generate a

15

report of terminated recipients that will be provide to counties… that will include

16

recipient name, recipient number, FI score” and other information. Id. at 4. This

17

information will not be available on line but will be mailed to the county offices. Id.

18

at 4..

19

Furthermore, Defendants Wagner and CDSS have control over all IHSS

20

recipients'entire case files because the county welfare departments act as their agents

21

in administering the IHSS program (Miller v. Woods (1983) 148 Cal.App.3d 862,

22

868.) State law gives them control over all county social service records and the right

23

to "make rules, regulations governing the custody, use and preservation of all records.

24

. ." which are "binding" on the counties. (Welf. & Inst. Code § 10850, subd. (c).)

25

State regulations give their attorneys the right to obtain a copy of the entire case file

26

from the county when the IHSS recipient is a party in a suit. (MPP § 19-004.5.)

27

Defendants also have extensive information in their own computerized record system

28

known as Case Management, Information and Payrolling System (CMIPS).

3
PLAINTIFFS’ OPP. TO DEFENDANTS’ ADMIN. MTN PURSUANT TO LOCAL RULE 7-11 TO CONDUCT LIM. DISC. OF NAMED PLAINTIFFS

Case4:09-cv-04668-CW Document92 Filed10/06/09 Page5 of 10

1

2

Defendants already know whose services will be terminated or reduced..

3

Plaintiffs do not. Deposing Plaintiffs on this issue would be an entirely useless

4

exercise, and provide nothing helpful to the Court.

5

B. Proffered Reason 2: Defendants do not need to depose Plaintiffs to determine

6

whether alternative services are available to them. Plaintiffs have not yet received

7

official notices of the terminations and reductions in benefits, and have not received

8 any information about what alternatives the state may be willing to provide. Rivera
9 Decl. ¶¶ 4-5 (Doc. No. 38); Lagahid Decl. ¶ 11 (Doc. No. 34. Without information
10

11

from Defendants, the class representatives are not going to have the information or

12

expertise to determine what alternative Medi-Cal or state services might be available

13

to assist them.

14

Again, this information is entirely within the control of the Defendants and their

15

agents, since they are the ones most familiar with the range of available State

16 services. (Brantley, et al v. Maxwell-Jolly, et al, -- F. Supp. --, 2009 WL 2941519
17

[N.D. Cal], at 9.) For example, whether or not, as Defendants claim in their Motion, 18

19

regional centers have funds or will back fill IHSS cuts, is again within the knowledge

20

of the Defendants. It is the California Department of Developmental Services which

21

directly contracts with regional centers to provide services to clients. (Cal. Welfare

22

Inst. Code Sections 4620 et seq. and 4640 et seq.) Plaintiffs do not have information

23 about what state-funded entities, such as the regional centers, will be providing in the

24 way of alternative resources and their depositions on this topic will be fruitless. The
25

26

record shows that alternative services are already overburdened and that class

27

members lack information about these services. See Baran Decl. ¶ 26 (Doc No. 63)

28

(for most clients there are no other options besides IHSS, very limited number of

4
PLAINTIFFS’ OPP. TO DEFENDANTS’ ADMIN. MTN PURSUANT TO LOCAL RULE 7-11 TO CONDUCT LIM. DISC. OF NAMED PLAINTIFFS

Case4:09-cv-04668-CW Document92 Filed10/06/09 Page6 of 10

1

Medi-Cal covered nursing home placements within the county); Calame Decl. ¶ 8

2

(Doc. No. 64) (gap left by withdrawal of IHSS services “cannot be filled”); Collins

3

Decl. ¶ 31 (Doc. No. 65) (other county services such as Adult and Child Protective

4 Services “will not be able to handle the sudden influx of IHSS recipients); Hill Decl.
5 ¶ 7 (Doc. No. 75) (ABX4 4 cuts come concurrent with cuts to county outpatient
6

7

mental health care services, so that program will not be able to absorb those cut from

8

IHSS); Nicco Decl. ¶ 38 (Doc. No. 80) (social services network in San Francisco does

9

not have capacity to compensate for loss of IHSS services); Anderson Decl. ¶ 11

10

(Doc. No. 43) (ten days would be insufficient to arrange alternative means of care);

11

Addison Decl. ¶ 8 (Doc. No. 61) (same).

12 Additionally, the existence of alternate resources is irrelevant to many of
13

Plaintiffs’ claims. For example, Plaintiffs’ claim that the notice of action the State 14

15

intends to send out does not provide meaningful notice because it does not adequately

16

apprise class members of the basis for their termination and provide them with an

17

adequate opportunity to challenge any errors does not depend on the existence or

18

nonexistence of alternative resources. Similarly, the existence or non-existence of

19 alternative resources is not relevant to whether Defendants are violating the Medicaid

20 Act by using a wholly irrational and arbitrary system to decide whose benefits should
21

22

be terminated or reduced, or are violating the Americans with Disabilities Act and

23

Section 504 by disproportionately terminating and reducing IHSS services for

24

individuals with mental (as opposed to physical) disabilities.

25

In fact, if these issues are determined to be relevant at this stage of the

26

proceeding, Plaintiffs are the ones who will need to take the depositions of the

27 Defendants to ascertain what services are available and what steps the state is taking,
28

5
PLAINTIFFS’ OPP. TO DEFENDANTS’ ADMIN. MTN PURSUANT TO LOCAL RULE 7-11 TO CONDUCT LIM. DISC. OF NAMED PLAINTIFFS

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1

directly or through its agents, to make alternative services available under the Medi-

2

Cal program or other state programs, such as the Lanterman Act.

3

C. Proffered Reasons 3 and 4: There is no need to take the depositions of the named

4 Plaintiffs to determine whether the proposed cuts will place class members at risk of
5 harm or unnecessary out-of-home placement.
6

7

Finally, discovering the “effect of any reduction or termination” on Plaintiffs

8

or their “risk of out-of-home placement” is similarly not a compelling reason to order

9

that these depositions take place at this time. Plaintiffs rely not on their individual

10

predicaments alone to show the irreparable harm and risk of institutionalization that

11

proposed terminations and reductions in IHSS services will bring -- but instead on the

12

dozens of declarations filed by stake holders, experts, providers and County IHSS

13

offices which demonstrate harm to thousands of recipients. See declarations cited in

14

Memorandum of Points and Authorities in Support of Motion for Temporary

15

Restraining Order (Doc. No. 16), at Argument 1.A. Defendants cannot claim that the

16

deposition of a handful of Plaintiffs and/or their Guardian Ad Litems is necessary to

17

contest the Preliminary Injunction motion.

18

To the extent that Defendants insist on seeking such information, mutual

19

discovery is necessary. Plaintiffs would wish to depose a number of Defendants’

20

staff and agents as to what they will be doing to avoid such harm as a result of the

21

terminations and reductions in services. It would be almost impossible to complete

22

that discovery within 1 week.

23 III. 24

ONE WEEK IS INSUFFICIENT TIME TO ARRANGE AND PREPARE FOR DEPOSITIONS OF NAMED PLAINTIFFS, PARTICULARLY IN LIGHT OF THE FACT THAT THEY ARE INDIVIDUALS WITH SIGNIFICANT DISABILTIES

25

Plaintiffs are elderly or have mental disabilities, and/or their Guardian Ad Litems have

26 responsibilities for caring for their children with disabilities. See Section I, supra. Thus, there is

27 insufficient time, within the next few days, to prepare for and make arrangements for the depositions

28 of Plaintiffs and their Guardian Ad Litems. Preparation of Plaintiffs, who have significant
6
PLAINTIFFS’ OPP. TO DEFENDANTS’ ADMIN. MTN PURSUANT TO LOCAL RULE 7-11 TO CONDUCT LIM. DISC. OF NAMED PLAINTIFFS

Case4:09-cv-04668-CW Document92 Filed10/06/09 Page8 of 10

1 disabilities, is complicated by the fact that Defendants provided Plaintiffs with no information about

2 how IHSS terminations and reductions would be conducted until October 1 and Plaintiffs have yet to

3 receive actual notification regarding cuts to their services. Additionally, a few days is not sufficient

4 time to make the accommodations that Plaintiffs need at their depositions, including transportation,

5 providing for their attendant care coverage and medical concerns, and covering child care for

6 Guardian parents. (Lagahid Decl. ¶ 11 (Doc. No. 34) (mother, who is the guardian ad litem, has

7 extensive physical disabilities and uses a wheelchair); Sheppard Decl. ¶¶ 3, 4, 6 (Doc. No. 37)

8 (cannot go into community without IHSS provider who comes only twice a week for four hours, has

9 fluctuating health due to medical conditions and uses a wheelchair); Rivera Decl. ¶ 6, 11, 44 (Doc.

10 No. 38) (mother, who is the primary caregiver for Plaintiff C.R., has two other young children, C.R.

11 cannot walk or talk); Jones Decl. ¶ 9 (Doc. No. 39) (has difficulty walking due to neuropathy); Oster

12 Decl. ¶ 4, 6 (Doc. No. 35) (has fluctuating mental health needs and need for medication). While

13 these arrangements are possible with the requisite planning, an expedited schedule will prejudice

14 Plaintiffs and class members.

15 IV. CONCLUSION

16

For all the above reasons, Plaintiffs request that this Court deny Defendants’ motion for

17 limited discovery or grant temporary restraining order enjoining the proposed terminations and

18 reductions in benefits, and then set a reasonable schedule for mutual, limited discovery prior to the

19 hearing for preliminary injunction.

20 Date: October 6, 2009

Respectfully submitted,

21

/s/ Dara L. Schur

22

DARA L. SCHUR (SBN 98638)

FREDERICK P. NISEN (SBN 184089)

23

JUNG PHAM (SBN 251232)

DISABILITY RIGHTS CALIFORNIA

24

BAY AREA REGIONAL OFFICE

25

1330 Broadway, Suite 500 Oakland, CA 94612

26

Telephone: (510) 267-1200

Facsimile: (510) 267-1201

27

Dara.schur@disabilityrightsca.org

Fred.nisen@disabilityrightsca.org

28

Jung.pham@disabilityrightsca.org

7
PLAINTIFFS’ OPP. TO DEFENDANTS’ ADMIN. MTN PURSUANT TO LOCAL RULE 7-11 TO CONDUCT LIM. DISC. OF NAMED PLAINTIFFS

Case4:09-cv-04668-CW Document92 Filed10/06/09 Page9 of 10

1

SUJATHA JAGADEESH BRANCH (SBN 166259)

2

DISABILITY RIGHTS CALIFORNIA

3

SACRAMENTO REGIONAL OFFICE 100 Howe Street, Suite 235 N

4

Sacramento, CA 95825

Telephone: (916) 488-9950

5

Facsimile: (916) 488-9960

Sujatha.branch@disabilityrightsca.org 6

7

MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)

8

DEBORAH DORFMAN (CRLSA No. 801060)

DISABILITY RIGHTS CALIFORNIA

9

LOS ANGELES REGIONAL OFFICE

3580 Wilshire Blvd., Ste. 902

10

Los Angeles, CA 90010

11

Telephone: (213) 427-8747 Facsimile: (213) 427-8767

12

Melinda.bird@disabilityrightsca.org

Debbie.dorfman@disabilityrightsca.org

13

marilyn.holle@disabilityrightsca.org

14

ANN MENASCHE (SBN 74774)

15

DISABLITY RIGHTS CALIFORNIA

SAN DIEGO REGIONAL OFFICE

16

1111 Sixth Avenue, Suite 200

San Diego, CA 92101

17

Telephone: (619)239-7861

Facsimile: (619)239-7906

18

Ann.menasche@disabilityrightsca.org

19 PAULA PEARLMAN (SBN 109038)

20

SHAWNA PARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

21

919 Albany Street

22

Los Angeles, CA 90015 Telephone: (213) 736-1031

23

Facsimile: (213) 736-1428

Paula.pearlman@lls.edu

24

Shawna.parks@lls.edu

25

26

27

28
8
PLAINTIFFS’ OPP. TO DEFENDANTS’ ADMIN. MTN PURSUANT TO LOCAL RULE 7-11 TO CONDUCT LIM. DISC. OF NAMED PLAINTIFFS

Case4:09-cv-04668-CW Document92 Filed10/06/09 Page10 of 10

1

CHARLES WOLFINGER (SBN 63467)

LAW OFFICE OF CHARLES WOFLINGER

2

4655 Cass Street # 314

3

San Diego, CA 92109 Telephone: (858) 272-8115

4

Facsimile: (858) 270-3960

Cw@charleswolfinger.com

5

JANE PERKINS (SBN 104784)

6

NATIONAL HEALTH LAW PROGRAM

7

211 N. Columbia Street Chapel Hill, NC 27514

8

Telephone: (919) 968-6308

Facsimile: (919) 968-8855

9

perkins@healthlaw.org

10

ANNA RICH (SBN 230195)

11

NATIONAL SENIOR CITIZEN LAW CENTER 1330 Broadway, Suite 525

12

Oakland, CA 94612

Telephone: (510) 663-1055

13

Facsimile: (510) 663-1051

14

15

Attorneys for Named Plaintiffs V.L., David

Oster, Willie Beatrice Sheppard, Dotty Jones, C.R., and

16

the Plaintiff Class

17

18

19

20

21

22

23

24

25

26

27

28
9
PLAINTIFFS’ OPP. TO DEFENDANTS’ ADMIN. MTN PURSUANT TO LOCAL RULE 7-11 TO CONDUCT LIM. DISC. OF NAMED PLAINTIFFS

 
 Case4:09-cv-04668-CW Document94 Filed10/06/09 Page1 of 2

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9 V.L., et al.,

10

Plaintiffs,

No. C 09-04668 JSW

11 v.

12 JOHN A. WAGNER, et al.,

13

Defendants.

14

15

16

ORDER (1) GRANTING MOTION

TO HEAR PRELIMINARY

INJUNCTION MOTION ON

SHORTENED TIME; (2) SETTING

BRIEFING SCHEDULE; AND (3)

DENYING DEFENDANTS’

MOTION FOR EXPEDITED

/

DISCOVERY

17

Now before the Court is Plaintiffs’ administrative motion to hear their motion for a

18 preliminary injunction on shortened time. For good cause shown, the Court HEREBY

19 GRANTS Plaintiffs’ administrative motion for shortened time. The Court GRANTS Plaintiffs’

20 administrative motion to exceed the page limitations.1 The Court FURTHER ORDERS that

21 Defendants shall file an opposition to the motion for preliminary injunction by no later than

22 2:00 p.m. on October 12, 2009. Defendants shall deliver directly to chambers a copy of their

23 opposition papers by no later than 9:30 a.m. on October 13, 2009. Plaintiffs shall file their

24 reply, if any, by no later than 2:00 p.m. on October 14, 2009. Plaintiffs shall deliver directly to

25 chambers a copy of their reply papers by no later than 2:30 p.m. on October 14, 2009. The

26 Court will conduct a hearing on Plaintiffs’ motion for preliminary injunction on October 19,

27 2009 at 10:00 a.m.

28
1 The Court’s Standing Orders provide page limitations that are more restrictive than the Local Rules. The Court construes Plaintiffs’ motion as seeking relief from both the Local Rules and the Court’s Standing Orders.

Case4:09-cv-04668-CW Document94 Filed10/06/09 Page2 of 2

United States District Court For the Northern District of California

1

If Defendants disagree with the legal proposition that “district courts are empowered to

2 grant preliminary injunctions regardless of whether the class has been certified,” see Branley v.

3 Maxwell-Jolly, __ F. Supp. 2d __, 2009 WL 2941519, at *14 n.14 (N.D. Cal. Sept. 10, 2009),

4 Defendants shall file an opposition to Plaintiffs’ motion for class certification by no later than

5 2:00 p.m. on October 12, 2009. Defendants shall deliver directly to chambers a copy of their

6 opposition papers by no later than 9:30 a.m. on October 13, 2009. If Defendants file an

7 opposition to the motion for class certification, Plaintiffs shall file their reply, if any, by no later

8 than 2:00 p.m. on October 14, 2009. Plaintiffs shall deliver directly to chambers a copy of their

9 reply papers by no later than 2:30 p.m. on October 14, 2009. If Defendants agree with the

10 above legal proposition and do not file an opposition by October 12, 2009, the Court will

11 address Plaintiffs’ motion for class certification at a later time.

12

The Court DENIES Defendants’ administrative motion to conduct limited discovery of

13 the named Plaintiffs. The Court is amenable to continuing the hearing and briefing schedule on

14 Plaintiffs’ motion for preliminary injunction if Defendants postpone the pending In-Home

15 Support Services terminations and reductions, including sending out notice of such terminations

16 or reductions. Such postponement shall be sufficient to enable both Plaintiffs and Defendants to

17 conduct limited discovery with respect to the pending motion for preliminary injunction.

18

IT IS SO ORDERED.

19

20 Dated: October 6, 2009 21

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28

2

 
 Case4:09-cv-04668-CW Document105 Filed10/07/09 Page1 of 6

1 MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)
2 DEBORAH DORFMAN (CRLSA No. 801060) DISABILITY RIGHTS CALIFORNIA
3 3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010
4 Telephone: (213) 427-8747 Facsimile: (213) 427-8767
5 Melinda.bird@disabilityrightsca.org Debbie. dorfman@disabilityrightsca.org
6 Marilyn. holle@disabilityrightsca.org

7 Attorneys for Named Plaintiffs and the Proposed Class Additional Attorneys for Named Plaintiffs and the
8 Proposed Class on Signature Page

9 STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)

10 STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

11 Altshuler Berzon LLP

177 Post Street, Suite 300

12 San Francisco, California 94108

Telephone: (415) 421-7151

13 Facsimile: (415) 362-8064

sberzon@altshulerberzon.com 14 ecervantez@altshulerberzon.com

15

sleyton@altshulerberzon.com pthoreen@altshulerberzon.com

16 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU
17 Local 521, SEIU California State Council, UDW, and CUHW

18

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO/OAKLAND DIVISION

20 VL., et ai.,

21

Plaintiffs,

22

v.

23 Wagner, et ai.,

Case No. CV 09-04668 CW
OPPOSITION TO DEFENDANTS' REQUEST FOR RECONSIDERATION OF OCTOBER 7, 2009 ORDER RE BRIEFING SCHEDULE AND HEARING DATE

24

Defendants.

25

26

27

Date:

N/A

Time:

N/A

Dept:

Courtroom 2, 4th Floor

Judge:

Judge Claudia Wilken

Trial Date: None Set

Action Filed: Oct. 1, 2009

28

Opposition To Defendants' Request for Reconsideration, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document105 Filed10/07/09 Page2 of 6

1

Plaintiffs do not oppose giving Defendants as much time as they need to prepare a brief

2 opposing the motion for a preliminary injunction, as long as that extra time does not come at the

3 expense of irreparable injury to tens of thousands of IRS S recipients. If Defendants would like

4 almost four weeks to prepare an opposition brief, they should agree to postpone implementation of

5 the eligibility changes or should inform this Court that they do not oppose entry of a temporary

6 restraining order to maintain the status quo during the time period that Plaintiffs' preliminary

7 injunction motion is pending. 1

8

Defendants' assertion that the 130,000 members of the plaintiff class whose services will be

9 terminated or reduced on November 1, 2009 if no injunction issues will not suffer irreparable

10 injury is completely false, as explained in the letter Plaintiffs filed yesterday evening (ECF Docket

11 No. 98, attached hereto for the Court's convenience as Exhibit A): the State's position is that only

12 individuals who dispute their functional ranks or Functional Index scores may request hearings,

13 many members of the plaintiff class will not request such hearings within ten days as required to

14 receive aid paid pending, the notice informing recipients of their right to request hearings is

15 inadequate, and requiring the State to hold 130,000 hearings would itself cause harm.

16

The contention that Plaintiffs themselves caused the emergency need to enjoin Defendants

17 is addressed in Plaintiffs' Ex Parte Application for Order Shortening Time for Motions for a

18 Preliminary Injunction and for Class Certification or, in the Alternative, for Temporary Restraining

19 Order and Order to Show Cause Why Preliminary Injunction Should Not Issue (ECF Docket No.

20 19, attached hereto for the Court's convenience as Exhibit B, hereinafter "PI. Ex Parte App.") and

21 the Declaration of Melinda Bird in support of that motion (ECF Docket No. 25, attached hereto for

22 the Court's convenience as Exhibit C, hereinafter "Bird Dec1.").

23

Defendants' motion for reconsideration fails to respond to Plaintiffs' showing, in those

24 filings, that:

25 1 Plaintiffs previously proposed a one-month delay in implementation to permit a longer period of

26

time for discovery and briefing of the preliminary injunction motion, but Defendants declined that option. See Bird Dec1. (ECF Docket No. 25, attached hereto for the Court's convenience as

27 Exhibit C) ~8; Leyton Dec1. (ECF Docket No. 92) ~~3, 5. Defendants claim they lack statutory authority to postpone implementation, but fail to offer any explanation as to why the statute

28 permitted them to delay implementation by two months but not any further.

1 Opposition To Defendants' Request for Reconsideration, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document105 Filed10/07/09 Page3 of 6

1

•

The information regarding which individuals will lose eligibility for IHSS services on

2

November 1, 2009 has been in Defendants' possession during this entire time period,

3

see Ex Parte App. at 2:28-3:26; Bird Dec1. ~13;

4

•

Plaintiffs have been diligent in seeking to obtain this information, but could not

5

ascertain how the State planned to implement the eligibility changes, who would be

6

exempted from these changes, and which individuals had functional ranks and/or

7

Functional Index scores that would cause them to lose IHSS services, see Ex Parte App.

8

at 3:21-24,3:27-4:4; Bird Dec1. ~~8, 9, 14; Kline Dec1. (ECF Docket No. 31) ~~3-

9

9; Marshall Dec1. (ECF Docket No. 32) ~~3-8; Taggares Dec1. (ECF Docket No. 33)

10

~~3-8; Drass Dec!. (ECF Docket No. 68) ~~3-4;

11

•

Plaintiffs' counsel has been in ongoing communication with Defendants in an effort to

12

obtain information about the implementation of this law and to resolve our legal

13

concerns, but Defendants did not issue the final All County Letter setting forth how the

14

eligibility changes would be implemented until October 1,2009, the day that the

15

complaint in this case was filed, see Ex Parte App. at 3:2-26; Bird Dec1. ~~8, 10, 11;

16

and

17

•

The instant action and preliminary injunction motion were filed as soon as they

18

reasonably could have been, given the ongoing uncertainty as to whose services would

19

be reduced or terminated when the challenged law went into effect. Plaintiffs still do

20

not know definitively whose services will be terminated, and were only able to ascertain

21

that individuals interested in being named Planitiffs to represent the class would likely

22

face termination of or reduction in services shortly before the complaint was filed on

23

October 1, 2009 (with an additional plaintiff identified by October 5, 2009, when the

24

amended complaint was filed). See Ex Parte App. at 4: 1-15; Bird Dec1. ~~9, 12, 14.

25

Defendants' request that this Court permit the IHSS reductions and terminations to take

26 effect before this Court has had the opportunity to consider Plaintiffs' motion for an injunction

27 would place at unnecessary risk the health, safety, and well being of tens of thousands ofIHSS

28 recipients. See Motion for Temporary Restraining Order and/or Preliminary Injunction (ECF

2 Opposition To Defendants' Request for Reconsideration, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document105 Filed10/07/09 Page4 of 6

1 Docket No. 16) at 14:16-19:14. Plaintiffs submit that Defendants have adequate time to respond to

2 the preliminary injunction motion but, if this Court disagrees, it should enter a temporary

3 restraining order to maintain the status quo while Plaintiffs' preliminary injunction motion is

4 pending.

5

6 Dated: October 7,2009

Respectfully Submitted,

7

By: lsi Deborah Dorfman

8

MELINDA BIRD (SBN 102236)

9

MARILYN HOLLE (SBN 61530)

DEBORAH DORFMAN (CRLSA No. 801060)

10

DISABILITY RIGHTS CALIFORNIA

LOS ANGELES REGIONAL OFFICE

11

3580 Wilshire Blvd., Ste. 902

Los Angeles, CA 90010

12

Telephone: (213) 427-8747

13

Facsimile: (213) 427-8767

Melinda. bird@disabilityrightsca.org

14

Debbie. dorfman@disabilityrightsca.org

Marilyn. holle@disabilityrightsca.org 15

SUJATHA JAGADEESH BRANCH (SBN 166259)

16

DISABILITY RIGHTS CALIFORNIA

17

SACRAMENTO REGIONAL OFFICE

100 Howe Ave., Suite 235N

18

Sacramento, CA 95825

Telephone: (916) 488-9950

19

Facsimile: (916) 488-9960

20

Suj atha. branch@disabilityrightsca.org

21

DARA L. SCHUR (SBN 98638)

FREDERICK P. NISEN (SBN 184089)

22

JUNG PHAM (SBN 251232)

DISABILITY RIGHTS CALIFORNIA

23

BAY AREA REGIONAL OFFICE

24

1330 Broadway, Suite 500

Oakland, CA 94612

25

Telephone: (510) 267-1200

Facsimile: (510) 267-1201

26

Dara. schur@disabilityrightsca.org

Fred. nisen@disabilityrightsca.org

27

Jung. pham@disabilityrightsca.org

28

3 Opposition To Defendants' Request for Reconsideration, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document105 Filed10/07/09 Page5 of 6

1

ANN MENASCHE (SBN 74774)

DISABILITY RIGHTS CALIFORNIA

2

SAN DIEGO REGIONAL OFFICE

3

III Sixth Avenue, Suite 200

San Diego, CA 92101

4

Telephone: (619) 239-7861

Facsimile: (619) 239-7906

5

Ann. menasche@disabilityrightsca.org

6

PAULA PEARLMAN (SBN 109038)

7

SHAWNAPARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

8

919 Albany Street

Los Angeles, CA 90015

9

Telephone: (213) 736-1031

Facsimile: (213) 736-1428

10

Paula.pearlman@lls.edu

11

Shawna.parks@lls.edu

12

CHARLES WOLFINGER (SBN 63467)

LAW OFFICE OF CHARLES WOLFINGER

13

4655 Cass Street #314

14

San Diego, Ca 92109 Telephone: (858) 272-8115

15

Facsimile: (858) 270-3960

Cw@charleswolfinger.com

16

JANE PERKINS (SBN 104784)

17

NATIONAL HEALTH LAW PROGRAM

18

211 N. Columbia Street Chapel Hill, NC 27514

19

Telephone: (919) 968-6308

Facsimile: (919) 968-8855

20

perkins@healthlaw.org

21

ANNA RICH (SBN 230195)

22

NATIONAL SENIOR CITIZEN LAW CENTER

1330 Broadway, Suite 525

23

Oakland, CA 94612

Telephone: (510) 663-1055

24

Facsimile: (510) 663-1051

25

Attorneysfor Individual Named Plaintiffs VL., David

26

Oster, Willie Beatrice Sheppard, c.R., Dotty Jones,

and the PlaintiffClass

27

28

By: lsi StacevM Levton

STEPjIEN P. BERZON (SBN 46540)

Opposition To Defendants' Request for Reconsideration, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document105 Filed10/07/09 Page6 of 6

1

EVE H. CERVANTEZ (SBN 164709)

STACEY M. LEYTON (SBN 203827)

2

PEDER J. THOREEN (SBN 217081)

3

CASEY A. ROBERTS (SBN 253474)

(Admission Pending)

4

Altshuler Berzon LLP

177 Post Street, Suite 300

5

San Francisco, California 94108

Telephone: (415) 421-7151

6

Facsimile: (415) 362-8064

7

sberzon@altshulerberzon.com

ecervantez@altshulerberzon.com

8

sleyton@altshulerberzon.com

pthoreen@altshulerberzon.com

9

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

10

SEIU Local 52], SEIU California State Council,

11

UDW, and CUHW

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5 Opposition To Defendants' Request for Reconsideration, Case No. CV 09-04668 CW

 
 Case4:09-cv-04668-CW Document110 Filed10/09/09 Page1 of 1

United States District Court For the Northern District of California

1

2

3

IN THE UNITED STATES DISTRICT COURT

4

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 V.L., et al.,

8

Plaintiffs,

9

v.

10 JOHN A. WAGNER, et al.,

11

Defendants.

12

No. C 09-04668 CW
ORDER DENYING CALIFORNIA STATE DEFENDANTS’ REQUEST FOR RECONSIDERATION OF OCTOBER 7, 2009 ORDER RE BRIEFING SCHEDULE AND HEARING DATE /

13

The Court has received State Defendants’ request for

14 reconsideration of the Court’s October 7, 2009 Order Re Briefing

15 Schedule and Hearing Date. Plaintiffs oppose the request. Having

16 considered the papers, the Court denies State Defendants’ request.

17 The Court notes that Plaintiffs do not oppose a longer briefing

18 schedule for the preliminary injunction motion, so long as IHSS

19 recipients are not subject to termination of IHSS services during

20 the pendency of the motion. Therefore, if Defendants are willing

21 to stipulate to a one-month postponement of the termination and

22 reduction of IHSS services under ABX4 4, and the issuance of the

23 notices of action announcing those terminations and reductions,

24 Defendants will have the full time requested to prepare an

25 opposition brief.

26

IT IS SO ORDERED.

27 Dated: 10/9/09 28

CLAUDIA WILKEN United States District Judge

 
 Case4:09-cv-04668-CW Document112 Filed10/13/09 Page1 of 40

1 EDMUND G. BROWN JR. Attorney General of California
2 KARIN S. SCHWARTZ SUSAN M. CARSON
3 Supervising Deputy Attorneys General JOSHUA N. SONDHEIMER
4 GREGORY D. BROWN (State Bar No. 219209) MICHAEL A. ZWIBELMAN
5 Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000
6 San Francisco, CA 94102-7004 Telephone: (415) 703-5461
7 Fax: (415) 703-5480 E-mail: Gregory.Brown@doj.ca.gov
8 Attorneys for Defendants

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11 OAKLAND DIVISION
12

13

14 V.L. et al.,

CV 09-4668 CW

15

16

v.

17 JOHN A. WAGNER, et al.,
18

19

20

Plaintiffs, DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Defendants.

Date:

October 19, 2009

Time:

10:00 a.m.

Dept:

Courtroom 2, 4th Floor

Judge:

The Honorable Claudia Wilken

Trial Date: None Set

Action Filed: October 1, 2009

21

22

23

24

25

26

27

28

Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page2 of 40

1

TABLE OF CONTENTS

2

Page

3 Introduction ..................................................................................................................................... 1

4 Statement of Facts ........................................................................................................................... 2

A. The IHSS program ...................................................................................... 2

5

B. Assessing recipients’ needs for IHSS ......................................................... 3

6

C. Enactment of ABX4 4 ................................................................................. 5

7

D. Notices and appeal rights ............................................................................ 6

E. California’s unprecedented fiscal crisis and overall cuts to services .......... 6

8 Argument ........................................................................................................................................ 8

9

I. Plaintiffs have no likelihood of success on the merits ............................................ 8

10

A. Plaintiffs have no likelihood of success on their due process claim because the notice provided is timely and adequate ................................... 9

11

B. Plaintiffs have no likelihood of success on their Medicaid Act

claims ........................................................................................................ 11

12

1. Statutory overview ........................................................................ 11

13

2. The FI scoring system satisfies the comparability

requirement of the federal Medicaid Act. ..................................... 12

14

3. The FI scoring system satisfies the reasonable-standards

15

requirement of the federal Medicaid Act, 42 U.S.C. § 1396a(a)(17). .............................................................................. 14

16

a. Congress did not intend for private individuals to

enforce the “reasonableness” requirement of section

17

1396a(a)(17). ..................................................................... 15

18

b. Defendants’ use of the functional index scoring system is a reasonable means of determining

19

recipients’ need for (and the extent of) services. .............. 17

c. The cases cited by plaintiffs are inapposite....................... 18

20

4. The FI scoring system satisfies the sufficiency requirement

21

of federal Medicaid Law, 42 C.F.R. § 440.230(b). ....................... 20

a. Overview. .......................................................................... 20

22

b. Plaintiffs have failed to tie the “sufficiency”

23

regulation to any statutory right of action under the Medicaid Act. .................................................................... 21

24

c. ABX4 4 satisfies the sufficiency requirement. ................. 21

25

C. Plaintiffs have no likelihood of success on their claims under Title II of the ADA and section 504 of the Rehabilitation Act ......................... 23

26

II. Plaintiffs’ motion must be denied because plaintiffs cannot demonstrate a

likelihood of irreparable harm or that the balance of equities or public

27

interest would favor an injunction......................................................................... 27

28
i Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page3 of 40

1

TABLE OF CONTENTS

(continued)

2

Page

3

A. None of the named plaintiffs can show a likelihood of irreparable

harm .......................................................................................................... 27

4

B. Plaintiffs have not shown any likelihood of irreparable harm for

5

other purported class members.................................................................. 27

C. The balance of equities and public interest tilt strongly against

6

plaintiffs’ request to enjoin a state statute................................................. 30

7

III. Class certification in neither necessary at this stage nor proper in this case......... 31

IV. In the event that the court does not deny plaintiffs’ motion, the court should

8

refrain from ruling until defendants have been given a reasonable

opportunity to respond .......................................................................................... 31

9 Conclusion .................................................................................................................................... 33

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ii
Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page4 of 40

1

TABLE OF AUTHORITIES

2

Page

3

CASES 4

Alexander v. Choate

5

469 U.S. 287 (1985) .......................................................................................................... 20, 21

6 Alexander v. Sandoval

7

532 U.S. 275 (2001) .......................................................................................................... 15, 21

8 Allen v. Mansour

681 F. Supp. 1232 (E.D. Mich. 1986) ..................................................................................... 19

9

Arcasmuzi v. Continental Airlines, Inc.

10

819 F.2d 935 (9th Cir. 1987)..................................................................................................... 8

11 Beal v. Doe

12

432 U.S. 438 (1977) .......................................................................................................... 15, 30

13 Brantley v. Maxwell-Jolly __ F. Supp. 2d __, 2009 WL 2941519 (N.D. Cal. Sept. 10, 2009) ......................................... 31

14

Chapman v. Houston Welfare Rights Org.

15

441 U.S. 600 (1979) ................................................................................................................ 17

16 Charpentier v. Belshe

17

1994 WL 792591 (E.D. Cal.) ............................................................................................ 22, 23

18 Curtis v. Taylor 625 F.2d 645 (5th Cir. 1980)....................................................................................... 20, 21, 22

19 Dennis v. Higgins

20

498 U.S. 439 (1991) ................................................................................................................ 17

21 Doston v. Duffy

22

732 F. Supp. 857 (N.D. Ill. 1988) ............................................................................................. 9

23

Garrett v. Puett 707 F.2d 930 (6th Cir. 1983)..................................................................................................... 9

24 Goldberg v. Kelly

25

397 U.S. 254 (1970) .................................................................................................................. 9

26 Golden State Transit Corp. v. City of Los Angeles 493 U.S. 103 (1989) ................................................................................................................ 17
27

28
iii Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page5 of 40

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Gonzaga University v. Doe 536 U.S. 273 (2002) .......................................................................................................... 15, 17
4

5

Guzman v. Shewry 552 F.3d 941 (9th Cir. 2009)..................................................................................................... 8

6 Hangarter v. Provident Life & Acc. Ins. Co.

7

373 F.3d 998 (9th Cir. 2004)................................................................................................... 27

8 Hern v. Beye

57 F.3d 906 (10th Cir. 1995)............................................................................................. 19, 20 9

Hodgson v. Board of County Commissioners

10

614 F.2d 601 (8th Cir. 1980)................................................................................................... 13

11 Independent Living Center of Southern California, Inc. v. Shewry

12

543 F.3d 1050 (9th Cir. 2008)........................................................................................... 16, 17

13 Jenkins v. Washington State Dep’t of Social and Health Services

157 P.3d 388 (Wash. 2007)..................................................................................................... 13 14

Lankford v. Sherman

15

451 F.3d 496 (8th Cir. 2006)............................................................................................. 18, 19

16 Lonberg v. City of Riverside

17

571 F.3d 846 (9th Cir. 2009)................................................................................................... 21

18 Mandrigues v. World Savings, Inc.

2009 WL 160213 (N.D. Cal. Jan. 20, 2009) ..................................................................... 28, 31

19

Mitchell v. Johnson

20

701 F.2d 337 (5th Cir. 1983)................................................................................................... 22

21 Parry v. Crawford

22

990 F. Supp. 1250 (D. Nev. 1998) .......................................................................................... 13

23 Pennsylvania Protection & Advocacy v. Pennsylvania Dep’t of Public Welfare 402 F.3d 374 (3d Cir. 2005).................................................................................................... 23

24 Pharm. Research & Mfrs. of Am. v. Walsh (PhrMA)

25

538 U.S. 644 (2003) (Breyer, J., concurring) ............................................................. 16, 20, 21

26 Preterm, Inc. v. Dukakis

27

591 F.2d 121 (1st Cir. 1979) ............................................................................................. 19, 20

28 iv
Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page6 of 40

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Rosen v. Goetz 410 F.3d 919 (6th Cir. 2005)............................................................................................. 27, 30
4

5

Schott v. Olszewski 401 F.3d 682 (6th Cir. 2005)................................................................................................... 12

6 Schweiker v. Gray Panthers

7

453 U.S. 34 (1981) .................................................................................................................. 12

8 Sobky v. Smoley

855 F. Supp. 1123 (E.D. Cal. 1994)........................................................................................ 13 9

State of Washington v. Bowen

10

815 F.2d 549 (9th Cir. 1987)................................................................................................... 15

11 Steinberger v. Apfel

12

134 F.3d 37 (2d Cir. 1997)...................................................................................................... 11

13 Watson v. Weeks

436 F.3d 1152 (9th Cir. 2006).......................................................................................... passim 14

Weaver v. Reagen

15

886 F.2d 194 (8th Cir. 1989)................................................................................................... 23

16 Weinreich v. Los Angeles County Metropolitan Transp. Authority

17

114 F.3d 976 (9th Cir. 1997)................................................................................................... 23

18 White v. Beal

555 F.2d 1146 (3d Cir. 1977)...................................................................................... 12, 15, 19

19

Wilder v. Virginia Hosp. Ass’n

20

496 U.S. 498 (1990) ................................................................................................................ 12

21 Winter v. Natural Resources Defense Council, Inc.

22

__ U.S. __, 129 S. Ct. 365 (2008) ....................................................................................... 8, 27

23 STATUTES

24 42 U.S.C. § 1396-1........................................................................................................................ 18

25 42 U.S.C. § 1396 et seq................................................................................................................. 12

26 42 U.S.C. § 1396a(a)..................................................................................................................... 12

27 42 U.S.C. §§ 1396a(a)(1)-(71) ...................................................................................................... 12 28
v
Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 42 U.S.C. § 1396a(a)(10)(B)......................................................................................................... 12

4 42 U.S.C. § 1396a(a)(17) ....................................................................................................... passim
5 42 U.S.C. § 1396a(a)(30)(A)......................................................................................................... 16
6 42 U.S.C. § 1396d(a)(12) .............................................................................................................. 20 7 Cal. Welf. & Inst. Code §§ 4500 et seq. ....................................................................................... 24 8
Cal. Welf. & Inst. Code § 4646.5.................................................................................................. 24 9
Cal. Welf. & Inst. Code § 12300, et seq. ........................................................................................ 3 10
Cal. Welf. & Inst. Code § 12309................................................................................................. 3, 5 11
Cal. Welf. & Inst. Code § 12309(e)(2).......................................................................... 5, 18, 26, 28 12 13 Cal. Welf. & Inst. Code § 12309.2(a)(3)....................................................................... 5, 18, 26, 28
14 COURT RULES
15 Fed. R. Civ. P. 8(a)(2) ................................................................................................................... 21

16 Fed. R. Civ. P. 23 .......................................................................................................................... 31

17 OTHER AUTHORITIES

18 42 C.F.R. § 440.230 .................................................................................................................. 1, 23

19 42 C.F.R. § 440.230(b) ..................................................................................................... 20, 21, 22
20 42 C.F.R. § 440.230(c)(1) ............................................................................................................. 13
21 42 C.F.R. § 440.230(c)(2) ............................................................................................................. 13 22
42 C.F.R. § 440.240 ...................................................................................................................... 12 23
42 C.F.R. § 441.462 ...................................................................................................................... 12 24
45 C.F.R. § 205.10(a)(3) & (a)(4)(i)(B).......................................................................................... 9 25

26

27

28 vi
Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page8 of 40

1

INTRODUCTION

2

Plaintiffs ask this court to take the extraordinary step of issuing a preliminary injunction

3 against a duly enacted State statute that plaintiffs believe to be unwise. Defendants strongly

4 disagree with plaintiffs’ assessment, but in any event it is entirely irrelevant because a statute’s

5 wisdom, or alleged lack thereof, is not a valid basis for injunctive relief. To prevail, plaintiffs

6 must be able to show that the statute, whether wise or unwise, is legally improper. And they

7 cannot do so here.

8

Plaintiffs are not entitled to injunctive relief because there is no likelihood that they will

9 prevail on the merits of any of their claims challenging the reduction in In-Home Support

10 Services (IHSS) under ABX4 4.

11

• The Notices of Action provided to IHSS recipients affected by ABX4 4 comply with

12

due process by providing recipients with clear and concise notice of their reduction

13

in benefits, the reasons therefor, their right to a hearing, and their right to receive

14

benefits pending the outcome of their hearing;

15

• Plaintiffs fail to state a “comparability” claim under the Medicaid Act because the

16

service thresholds under ABX4 4 are based entirely on recipients’ levels of need for

17

services, and do not discriminate against any category of recipients;

18

• Plaintiffs fail to state a “reasonable standards” claim under the Medicaid Act both

19

because plaintiffs lack a private right of action to enforce 42 U.S.C. § 1396a(a)(17)

20

and because the service standards are based on a reasonable, individualized

21

assessment by trained social workers of each recipient’s level of need;

22

• Plaintiffs fail to state a “sufficiency” claim under the Medicaid Act both because

23

plaintiffs lack a private right of action to enforce 42 C.F.R. § 440.230 and because

24

ABX4 4’s need-based standards fully comply with the Medicaid Act’s sufficiency

25

requirements; and

26

• Plaintiffs fail to state a claim under the Americans with Disabilities Act (ADA) or

27

Section 504 of the Rehabilitation Act because ABX4 4 does not discriminate against

28 1
Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page9 of 40

1

any category of recipients on the basis of any disability, but instead determines

2

service levels based solely on an assessment of need.

3

An injunction also is improper because plaintiffs cannot demonstrate any “real or

4 immediate threat of an irreparable injury” if ABX4 4 is allowed to take effect. Plaintiffs’ various

5 claims of irreparable harm are based entirely upon several fundamental misunderstandings of how

6 recipients’ levels of need for services are determined under ABX4 4, and accordingly plaintiffs’

7 purported “evidence” of irreparable harm cannot withstand even the most basic scrutiny. Nor can

8 plaintiffs meet their burdens of demonstrating that the balance of equities tilts in their favor, or

9 that an injunction would be in the public interest, as the injunction that plaintiffs request would

10 further worsen California’s unprecedented fiscal crisis and almost certainly result in cuts to other

11 programs or services that the Legislature has deemed to be more essential than the services at

12 issue here. For each of these reasons, plaintiffs’ motion should be denied.

13

STATEMENT OF FACTS

14

A. The IHSS Program

15

The In-Home Support Services (IHSS) program began in 1973, at which point it was

16 funded with state-only general funds. Declaration of Eileen Carroll (Carroll Decl.), ¶ 3. In 1994,

17 in order to be able to draw down federal funds, California added the personal care services

18 program (PCSP), which is an optional service under Medicaid, to the State Plan. Declaration of

19 Toby Douglas (Douglas Decl.), ¶¶ 8, 10; Carroll Decl., ¶ 5. In 2004, the state applied to the

20 Centers for Medicare and Medicaid Services (CMS) for a waiver to the State Plan in order to

21 provide two additional services, one of which allows spouses and parents to become IHSS

22 providers (the IHSS Plus Waiver). CMS approved this IHSS Plus Waiver, allowing IHSS

23 recipients to receive services from a spouse or parent. Douglas Decl. ¶¶ 10-11; Carroll Decl., ¶ 7.

24 On October 1, 2009, the IHSS Plus Waiver program transitioned into a State Plan program, the

25 IHSS Plus Option program. Douglas Decl., ¶ 11 & Exh. A. The IHSS program consists of three 26 subprograms – the PCSP program, IHSS Plus Option program, and IHSS Residual program1 –

27

1 The IHSS Residual program provides services to certain individuals who do not qualify

for PCSP and accounts for approximately 2 percent of those served under the overall IHSS

28

(continued…)

2

Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page10 of 40

1 which are collectively referred to as “IHSS” herein, and which collectively provide services to

2 over 440,000 individuals and include over 360,000 IHSS providers. Carroll Decl., ¶¶ 2, 10.

3 Approximately 62% of IHSS recipients are served by a relative, and 48% of recipients live with

4 the person from whom they receive services. Id., ¶ 10. IHSS is governed by Welfare and

5 Institutions Code section 12300, et seq., and CDSS Manual of Policies and Procedures section

6 30-700, et seq. Id., ¶ 3.

7

B. Assessing Recipients’ Needs for IHSS

8

Since 1988, Welfare and Institutions Code section 12309 has required that counties

9 conducting IHSS assessments use a uniform needs assessment tool, requiring a five-point scale

10 for ranking each of the recipient’s functional abilities. The State developed functional ranks

11 under which recipients’ functional abilities are ranked on a scale of 1 to 5 by trained social

12 workers in each of fourteen areas: housework; laundry; shopping and errands; meal preparation

13 and clean-up; mobility inside; bathing and grooming; dressing; bowel, bladder, and menstrual;

14 transfer; eating; respiration; memory; orientation; and judgment. The ranks are defined as

15 follows:

16

• Rank 1 means that the individual can perform the tasks in that area independently;

17

• Rank 2 means that the individual can perform the tasks in that area but requires verbal

18

reminding or guidance from another;

19

• Rank 3 means that the individual requires minimal human assistance with the tasks;

20

• Rank 4 means that the individual requires substantial human assistance with the tasks;

21

and

22

• Rank 5 means that the individual cannot perform any part of the task, with or without

23

human assistance.

24 Carroll Decl., ¶ 11 & Exhs. A & B.

25

Assessments are conducted for each person on an individualized basis by the county social

26 worker, and the social workers receive extensive training in using these rankings. Id., ¶ 12. From

27 (…continued) program. Carroll Decl., ¶¶ 5, 8.
28 3
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Case4:09-cv-04668-CW Document112 Filed10/13/09 Page11 of 40

1 2005 through the present, CDSS has conducted social worker training academies, specifically

2 training over 16,000 social workers who conduct IHSS assessments, with the overarching purpose

3 of helping to ensure uniformity in these assessments. Id. Accordingly, the functional ranks

4 provide an accurate measure of each recipient’s need for human assistance with each of the

5 eleven functional tasks. Id., ¶¶ 11-12 & Exh. A. The functional ranks identify those who have a

6 great need for the services and are severely impaired, as opposed to individuals for whom

7 services may improve their quality of life, but who would be considered much higher functioning.

8 Id., ¶¶ 11, 16 & Exh. A. CDSS has been using these rankings since 1988. Id., ¶¶ 11-12.

9

Each recipient is also given an overall Functional Index (FI) Score that is calculated based

10 on a weighted average of the recipient’s eleven functional ranks for non-mental tasks (i.e.,

11 excluding the functional ranks for memory, orientation, and judgment). Carroll Decl., ¶¶ 11-12;

12 Declaration of Ernest Cowles (Cowles Decl.), ¶ 2. The FI Score provides a reasonable measure

13 of each recipient’s individual need for service by providing an overall measurement of each

14 recipient’s relative dependence on human assistance for IHSS tasks. Carroll Decl., ¶¶ 11-13, 19

15 & Exh. A; Cowles Decl., ¶ 3. As CDSS reported to the Legislature in 1989, the ranking system

16 and FI Scores provide a reasonable measure of a recipient’s IHSS need and overall functional

17 abilities. Carroll Decl., ¶ 13 & Exh. A at 17. The ranks and FI Scores are the bases of the

18 Uniformity system that has been the core of the IHSS program individual assessment process to

19 determine functional ability and level of need for service since the implementation of the

20 Uniformity system in 1988. Id., ¶ 12. The ranks have been evaluated and found to be a

21 consistent measure over time of functional limitations, and they have been validated repeatedly

22 by State and County review teams over the years. Id., ¶ 13.

23

While recipients’ functional ranks in the three mental categories – memory, orientation, and

24 judgment – are not factored into their FI Scores, these ranks are used to determine a recipient’s

25 need for protective supervision. Id., Exh. A at 12. Recipients can receive scores of only 1, 2, or 5

26 in the three mental categories, and if they receive a 5 in any one of these three categories they

27 would be considered at risk if not supervised and therefore authorized to receive protective

28 supervision services. Id. 4
Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page12 of 40

1

C. Enactment of ABX4 4

2

On July 28, 2009, the Governor signed ABX4 4, which created a need threshold for

3 recipients to receive IHSS services. Specifically, ABX4 4 amended section 12309 and added new

4 section 12309.2 to the California Welfare and Institutions Code, to provide that recipients must

5 have an FI Score of at least 2.0 to receive IHSS services, and must have a functional rank of at

6 least 4 in the appropriate category to receive domestic and related services (housework; laundry;

7 shopping and errands; and meal preparation and clean-up). Thus, ABX4 4 ensures that those with

8 genuine needs for these services will still receive them, while reducing or eliminating services

9 only for people who have the least need for them. Id., ¶¶ 14-16.

10

Additionally, because FI Scores do not measure mental functions such as memory,

11 orientation, and judgment, ABX4 4 exempts individuals authorized to receive either protective

12 supervision or paramedical services, meaning that such individuals may continue to receive all of

13 their IHSS services regardless of their FI Scores and functional ranks for domestic and related

14 services. Id., ¶ 16; Cal. Welf. & Inst. Code §§ 12309(e)(2) & 12309.2(a)(3). Numerous other

15 protections are in place to ensure that recipients who have a genuine need for these services will

16 continue to receive them: For example, recipients have a right to request a needs reassessment,

17 including reassessment of their functional ranks by a social worker; a right to a fair hearing of

18 their assessment; and an entitlement to receive aid pending a hearing. California Department of 19 Social Services Manual of Policies and Procedures (MPP) §§ 22-003.1, 22-073.1 & 30-755.21. 20 Recipients also have a right to an annual assessment, and can raise concerns about their functional 21 ranks or FI Scores then. Id., § 30-761.1. Additionally, individuals with developmental 22 disabilities are covered by the regional centers, which can arrange the same services as their 23 providers under the IHSS program. Declaration of Brian Winfield (Winfield Decl.), ¶ 5. And for 24 those who are determined not to need these services but who still desire them, each individual’s 25 county social worker is responsible for determining whether there are other services available, 26 including but not limited to programs offered through other State departments, County programs, 27 and community-based programs. Declaration of Janet Nicholson (Nicholson Decl.), ¶ 13.

28 5
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1

D. Notices and Appeal Rights

2

CDSS has arranged to deliver timely Notices of Action to recipients whose IHSS benefits

3 are being reduced or eliminated by ABX4 4. Carroll Decl., ¶ 17. For minors and other recipients

4 who have an authorized representative due to disability, senility, or other reasons, the Notices of

5 Action will be sent to the authorized representative. The Notices of Action explain in plain and

6 simple terms what services are being terminated and the reasons why, including the statutory

7 basis for the termination. Id., Exh. C. For recipients whose services are being terminated in their

8 entirety on the ground that their FI Scores are below 2.0, CDSS will also include a one-page

9 “Stuffer” explaining and providing an example of the way the FI Score is calculated. Id., ¶ 17 &

10 Exh. C.

11

The Notice of Action advises recipients that they have a right to a “conference with

12 representatives of CDSS to talk about this intended action.” Id., Exh. C. It is the practice of

13 CDSS, through the county offices, to attempt to resolve challenges to Notices of Action, if

14 possible, before any need for an administrative hearing. See MPP §§ 22-073.2 – 22.073.23;

15 Carroll Decl., Exh. C. Such a resolution may include providing a needs reassessment pursuant to

16 a conditional withdrawal of the hearing request. See MPP § 22-073.231 (county representative

17 has authority to resolve case using conditional withdrawal procedure when representative believes

18 that county action was incorrect). The back of the Notice of Action further advises the recipient 19 of his or her “RIGHT TO REQUEST A STATE HEARING,” and provides both a form and 20 address for requesting a hearing in writing, as well as a toll-free telephone number to make an 21 oral request for a hearing. Carroll Decl., Exh. C. The Notice of Action also states:

22

IF YOU REQUEST A STATE HEARING ANYTIME BEFORE THE EFFECTIVE

DATE OF THE COUNTY’S PROPOSED ACTION, YOUR SERVICES MAY

23

CONTINUE UNTIL THE HEARING. You will not be liable for repayment of

services monies received pending the hearing, even if the result is a denial, provided

24

your request is made in good faith.

25 Id.

26

E. California’s Unprecedented Fiscal Crisis and Overall Cuts to Services

27

It is well-known that California is facing an unprecedented fiscal crisis. Douglas Decl., ¶¶

28 3, 14. Because the Medi-Cal program is the second largest general fund expenditure in the state 6
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1 budget, second only to K-12 education, policymakers often must contemplate reductions in Medi-

2 Cal spending to balance the budget as required under the law. Id., ¶ 4. One way to reduce overall

3 Medi-Cal spending is to reduce payments to providers. Id., ¶ 5. Another option would be for the

4 Legislature to eliminate Medi-Cal coverage of optional services that California currently

5 provides, but that are not required to be provided under the Medicaid Act. Optional services

6 include, but are not limited to, prescription drugs, adult dental services, physical therapy, speech

7 therapy, hospice care, eyeglasses, audiology, and psychology services. Id.

8

These options, among other potential Medi-Cal cuts, have long been discussed and debated

9 by the Department, the Governor, and the Legislature, and were available policy options to the

10 Legislature when it passed Assembly Bill (AB) X3 5 in February 2008. Id., ¶ 6. ABX3 5, which

11 took effect on July 1, 2008, reduced by 10 percent the reimbursement paid for various providers,

12 including pharmacies. Because of a federal court injunction, the State was prohibited from

13 implementing the 10 percent reduction for some services, including prescription drugs for dates

14 of service beginning August 18, 2008. Other legislation provides for further cuts to other Medi-

15 Cal providers. Id.

16

In emergency legislation, the following optional benefits were excluded from coverage

17 under the Medi-Cal program starting on July 1, 2009: acupuncture services; adult dental services;

18 audiology services; chiropractic services; incontinence creams and washes products; optometric

19 and optician services, including services provided by a fabricating optical laboratory; podiatric

20 services; psychology services; and speech therapy services. Id., ¶ 7. Although it could have, the

21 Legislature did not exclude IHSS even though it is an optional service under Medi-Cal and as

22 such could have been eliminated entirely. Id., ¶ 8. However, since the time that the Legislature

23 reduced rates for certain services and eliminated these optional Medicaid services, the budget

24 crisis in California has worsened. California faces a multi-billion dollar deficit over the next 13

25 months and beyond, which the Legislature has attempted to resolve through a combination of tax

26 increases and additional cuts in State spending. Id., ¶ 14. The IHSS reductions based on

27 recipients’ need levels under ABX4 4 were factored into the Legislature’s attempted resolution of

28 the budget deficit. Id. In other words, if the IHSS cuts were enjoined, it would further exacerbate 7
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1 the current budget crisis and require further cuts to be drawn from other essential programs. In

2 this unprecedented fiscal climate, the reduction in these optional services for those who need

3 them least is a difficult, but appropriate, response that will help alleviate California’s current

4 fiscal dilemma. Id.

5

ARGUMENT

6

Plaintiffs bear a heavy burden on their motion. They must show: “(1) a strong likelihood

7 of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is

8 not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public

9 interest (in certain cases).” Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2009) (internal

10 quotation marks omitted). If plaintiffs “show[] no chance of success on the merits,” the inquiry

11 ends, and “the injunction should not issue.” Arcasmuzi v. Continental Airlines, Inc., 819 F.2d 935,

12 937 (9th Cir. 1987). A plaintiff seeking a preliminary injunction also has the burden “to

13 demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Natural

14 Resources Defense Council, Inc., __ U.S. __, 129 S. Ct. 365, 375 (2008) (emphasis added).

15 “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent

16 with our characterization of injunctive relief as an extraordinary remedy that may only be

17 awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 375-76. Here,

18 plaintiffs’ motion must be denied because plaintiffs have no likelihood of success on the merits.

19 Further, plaintiffs have not demonstrated a likelihood of irreparable injury; the balance of

20 hardships strongly favors the State; and an injunction would be contrary to the public interest.

21 I. PLAINTIFFS HAVE NO LIKELIHOOD OF SUCCESS ON THE MERITS

22

Plaintiffs motion for a temporary restraining order and/or preliminary injunction must be

23 denied because plaintiffs have no likelihood of success on the merits of any of their claims.2

24

25 2 Plaintiffs’ Amended Complaint contains nine causes of action, but plaintiffs seek a
26 preliminary injunction only on the basis of their first seven causes of action. Plaintiffs’ eighth and ninth causes of action are without merit, and plaintiffs do not contend that they can succeed
27 on the merits of either their eighth or ninth cause of action. Accordingly, they cannot obtain preliminary injunctive relief on the basis of either of those causes of action.
28
8
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1

A. Plaintiffs Have No Likelihood of Success on Their Due Process Claim

Because the Notice Provided Is Timely and Adequate

2

3

Plaintiffs’ Plaintiffs’ argument that CDSS’s Notices of Action violate due process is

4 entirely without merit. Due process simply requires that recipients receive “timely and adequate

5 notice” of the reduction or termination of their benefits and the reasons therefor, and be given a

6 reasonable opportunity to challenge the reduction or termination. See Goldberg v. Kelly, 397 U.S.

7 254, 262-69 (1970); Garrett v. Puett, 707 F.2d 930, 931-932 (6th Cir. 1983) (notices that

8 identified intended action, reason for the action, citation to relevant statute, and notice of right to 9 appeal “satisfy due process and statutory requirements”); Doston v. Duffy, 732 F. Supp. 857, 872 10 (N.D. Ill. 1988) (“The due process clause requires that a state agency explain, in terms 11 comprehensible to the client, exactly what the agency proposes to do and explain the agency’s 12 reasons for its action in enough detail that the client can assess the correctness of the agency’s 13 decision, make an informed decision as to whether to appeal, and be prepared for the issues to be 14 addressed at the hearing.”). CDSS regulations, consistent with federal requirements, provide that 15 CDSS must give adequate notice of any action decreasing or discontinuing aid, see MPP § 2216 071.13, and define “adequate notice” as:

17

A written notice informing the claimant of the action the county intends to take, the

reasons for the intended action, the specific regulations supporting such action, an

18

explanation of the claimant's right to request a state hearing, and if appropriate, the

circumstances under which aid will be continued if a hearing is requested.

19

20 Id., § 22-001(a)(1)(a); see also 45 C.F.R. § 205.10(a)(3) & (a)(4)(i)(B). CDSS’s Notices of

21 Action provide notice that directly complies with due process and all applicable regulations.

22

The one-page, double-sided Notice of Action states in plain and simple terms what action is

23 being taken and why, referring to the change in law and citing the relevant portions of the

24 California Welfare and Institutions Code. See Carroll Decl., Exh. C. The front of the Notice

25 states that “YOU HAVE THE RIGHT TO FILE A WRITTEN OR ORAL REQUEST FOR A

26 STATE HEARING,” and refers recipients to the Department’s address for requests sent in

27 writing. The front also, in large, bold type, refers recipients to the back side of the Notice for

28 9
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1 further information with the message: “PLEASE SEE REVERSE SIDE OF THIS NOTICE FOR

2 FURTHER DETAILS.” Id.

3

The back of the Notice of Action states in plain and simple terms that the recipient has a

4 “RIGHT TO REQUEST A STATE HEARING,” and provides both a form and address for

5 requesting a hearing in writing, as well as a toll-free telephone number to make an oral request for

6 a hearing. Id. The Notice of Action also states:

7

IF YOU REQUEST A STATE HEARING ANYTIME BEFORE THE EFFECTIVE

DATE OF THE COUNTY’S PROPOSED ACTION, YOUR SERVICES MAY

8

CONTINUE UNTIL THE HEARING. You will not be liable for repayment of

services monies received pending the hearing, even if the result is a denial, provided

9

your request is made in good faith.

10 Id. In addition to these one-page Notices of Action, CDSS is also including a one-page “stuffer”

11 to recipients losing services because their FI Score is below 2.0 that explains in detail how FI

12 Scores are calculated and provides an example of the calculation. Id. If any recipient has an

13 authorized representative (e.g., because the recipient lacks the capacity to receive, read, or

14 comprehend the notices), notices will be provided to those representatives rather than directly to

15 the recipient.

16

Plaintiffs’ challenge to the adequacy of these Notices of Action is misguided and based on a

17 misunderstanding as to the materials being provided to recipients or their representatives. First,

18 plaintiffs contend that CDSS’s 22-page Annotated Assessment Criteria, which plaintiffs

19 misapprehend as being a “stuffer” sent to all recipients, is too complicated and is misleading

20 because it refers to assessment of mental functions that are not part of the FI Score. Motion at

21 22:1-24. However, the Assessment Criteria document is not being provided to recipients. See

22 Carroll Decl., ¶ 17 & Exh. C. Plaintiffs’ arguments regarding this document are inapposite.

23

The only “stuffer” CDSS will send is the one-page explanation and example of the

24 calculation of an FI Score; this is being sent to recipients losing all IHSS services because their FI

25 Scores are below 2.0. Id. Plaintiffs’ contend that the notices are constitutionally deficient

26 because this calculation is too complicated. But plaintiffs do not contend that the one-page

27 Notice of Action is too complicated, and the Notice of Action meets the constitutional and

28 regulatory requirements for adequate notice. CDSS’s inclusion of additional information to help 10
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1 recipients understand how an FI Score is derived—including an example of the calculation to

2 address any difficulty in conceptualizing the written explanation—does not render the Notice of

3 Action constitutionally inadequate.

4

Finally, plaintiffs’ argument that the Notices of Action will not allow recipients to ascertain

5 whether counties have made errors in their FI Scores or functional ranks is also incorrect. See

6 Motion at 22:25-23:2. The Notices of Action expressly state that FI Scores and functional ranks

7 are used to measure a recipient’s need for IHSS services, and the Notices of Action clearly and

8 concisely define each of the five levels of functional rank and notify the recipient of his or her

9 functional rank in each relevant category. See Carroll Decl., Exh. C. Thus, each recipient can

10 readily evaluate whether his or her functional ranks were correctly assessed by simply looking at

11 the rank he or she was given and the definition for each rank; if the recipient believes that his or

12 her level of functioning is not within the rank assessed, then the recipient will have a valid basis

13 for contesting the determination.

14

Plaintiffs’ suggestion that the notice is not tailored to the capacity of persons who may be

15 incompetent is similarly misguided. As noted above, for those recipients who have an authorized

16 representative due to incompetency, disability, or for other reasons, the notice will be provided to

17 their representative. In any event, none of the adult named plaintiffs allege any particular

18 impairment that affects their ability to comprehend the notice, so plaintiffs’ argument is not

19 properly before the court. See Steinberger v. Apfel, 134 F.3d 37, 41-42 (2d Cir. 1997) (court will

20 permit claim of ineffective notice due to mental impairment to invoke federal court jurisdiction

21 “only upon a particularized allegation of mental impairment of plausibly sufficient severity to

22 impair comprehension”).

23

B. Plaintiffs Have No Likelihood of Success on Their Medicaid Act Claims

24

Plaintiffs’ claims under the Medicaid Act are entirely without merit and are not a valid

25 basis for injunctive relief.

26

1. Statutory Overview

27

Congress created the Medicaid program in 1965 as a purely voluntary program in which

28 states could elect to receive federal funds in exchange for providing medical services to certain 11
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1 individuals statutorily defined as “needy.” See generally 42 U.S.C. § 1396 et seq.; Wilder v.

2 Virginia Hosp. Ass’n, 496 U.S. 498, 502 (1990). In exchange for federal funding, states must

3 meet certain statutory and regulatory conditions. See Schweiker v. Gray Panthers, 453 U.S. 34,

4 37 (1981). The most significant condition for federal Medicaid funding is that states must submit

5 for federal approval a “plan for medical assistance” (Medicaid Plan). 42 U.S.C. § 1396a(a). A

6 state’s Medicaid Plan contains a comprehensive statement of the nature and scope of the state’s

7 Medicaid program. See Wilder, 496 U.S. at 502. As codified, Section 1396a(a) of the Medicaid

8 Act includes 71 subparts describing the procedural and substantive requirements for state

9 Medicaid Plans. See 42 U.S.C. §§ 1396a(a)(1)-(71).

10

2. The FI Scoring System Satisfies the Comparability Requirement of

the Federal Medicaid Act. 11

12

Section 1396a(a)(10)(B) provides:

13

A State plan for medical assistance must – provide . . . that the medical assistance

made available to any individual described in subparagraph (A)—(i) shall not be less

14

in amount, duration, or scope than the medical assistance made available to any other

such individual, and (ii) shall not be less in amount, duration, or scope than the

15

medical assistance made available to individuals not described in subparagraph (A).

16 42 U.S.C. § 1396a(a)(10)(B); see also 42 C.F.R. § 440.240. This provision is known as the

17 “comparability” provision.3 Essentially, this provision requires a state to provide a comparable

18 level of services between the categorically needy and the medically needy groups as well as

19 within each of these groups. Courts have found that states violated the comparability requirement

20 when some recipients are treated differently from other recipients where each has the same level

21 of need. Schott v. Olszewski, 401 F.3d 682, 688-89 (6th Cir. 2005) (finding treatment was not

22 comparable when Medicaid did not reimburse recipient for medical expenses she paid out of

23 pocket during period when she was wrongfully denied coverage); White v. Beal, 555 F.2d 1146,

24 1151-52 (3d Cir. 1977) (finding statute was illegal when it covered eyeglasses for those suffering

25 from eye diseases but did not cover glasses for patients when refractive error caused poor

26 eyesight).

27

3 Under the State Plan Option that permits spouses and parents to provide services,

comparability may be waived. See 42 C.F.R. § 441.462. 28

12

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1

However, the comparability requirement is not violated when a state limits the eligibility

2 requirements. A state may “place appropriate limits on a service based on (such criteria as)

3 medical necessity or on utilization control procedures.” 42 C.F.R. § 440.230(c)(2). It just may

4 not do so based solely because of “diagnosis, type of illness, or condition.” 42 C.F.R.

5 § 440.230(c)(1). “Once a state designates services it will subsidize, it may distinguish between

6 eligible and ineligible recipients only on the basis of their degree of medical need.” Hodgson v.

7 Board of County Commissioners, 614 F.2d 601, 608 (8th Cir. 1980).

8

Here, plaintiffs are essentially contending that because recipients qualified for a certain

9 level of services at one point, a state may never amend the eligibility requirements as this would

10 somehow violate the comparability requirement. Plaintiffs fail to cite any authority to support

11 this contention. And, the case authority they do cite is easily distinguishable. Jenkins v.

12 Washington State Dep’t of Social and Health Services, a case that plaintiffs contend is “directly

13 on point,” does not support their position at all. 157 P.3d 388 (Wash. 2007). In that case, the

14 State of Washington adopted the “shared living rule” which automatically reduced the level of

15 household services to recipients who lived with someone else. In other words, the reduction was

16 not made on an individual’s needs for service, but rather the individual’s living situation without

17 regard to whether the other persons in the household performed these tasks for the recipient or

18 not. The court found a violation of comparability because under the rule some recipients would

19 receive less services than others with the same needs. “Without such an evaluation, DSHS cannot

20 automatically reduce, in shared living situations, a recipient's need for assistance with

21 housekeeping, shopping, meal preparation, and wood supply; rather, DSHS must assess those

22 needs in the same way and to the same extent that services are provided to meet the needs of other

23 recipients who do not live in a shared living situation.” Id. at 393. Thus, the comparability

24 requirement was violated in Jenkins precisely because individuals with the same needs were

25 being treated differently from each other – the exact opposite of the situation here. The other

26 cases cited by plaintiffs suffer from the same flaw. See, e.g., Parry v. Crawford, 990 F. Supp.

27 1250, 1257 (D. Nev. 1998) (individuals with mental retardation entitled to receive services but

28 not individuals with other developmental disabilities); Sobky v. Smoley, 855 F. Supp. 1123, 1139 13
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1 (E.D. Cal. 1994) (methodone was available to Medi-Cal recipients in some counties, but not in

2 others).

3

Here, individuals with the same level of need are not being treated differently. Each

4 recipient of IHSS receives an individualized assessment of their needs based on a ranking system

5 that applies to all recipients equally. See Carroll Decl., ¶¶ 11-13. People who demonstrate the

6 same level of need will receive the same services. There is no limitation of services based on

7 diagnosis, type of illness, or condition that would violate the comparability provision.

8

Plaintiffs’ contention that the services will be reduced or termination without “any

9 examination of their individual circumstances” is simply not true. In order to be eligible for

10 IHSS, each of the recipients has been assessed (and reassessed on an annual basis) on an

11 individualized basis in his/her own home by a trained and qualified social worker. See id., ¶¶ 11-

12 13 & 17. The very same rankings plaintiffs now criticize have been used since 1988 to determine

13 recipients’ level of need for IHSS and the services to be provided. See id., ¶¶ 11-13. Use of these

14 rankings and the FI score are reasonable and sound. See id.; Cowles Decl. ¶¶ 3-4. Plaintiffs only

15 now challenge the use of these rankings because the Legislature has made a policy decision –

16 permissible under the Medicaid Act – to limit IHSS to those who need it most. The new need

17 thresholds under ABX4 4 do not violate the comparability provision.

18

3. The FI Scoring System Satisfies the Reasonable-Standards

Requirement of the Federal Medicaid Act, 42 U.S.C. § 1396a(a)(17). 19

20

The functional index (FI) scoring system provides a sound and reasonable basis upon which

21 California may determine a recipient’s level of need for in-home support services under the IHSS

22 program. Defendants’ use of this system under ABX4 4 falls well within the broad discretion

23 afforded to them under the “reasonable standards” provisions of the federal Medicaid Act, 42

24 U.S.C. § 1396a(a)(17). Section 1396a(a)(17) states in relevant part:

25

A State plan for medical assistance must . . . include reasonable standards . . . (which

shall be comparable for all groups . . .) for determining eligibility for and the extent of

26

medical assistance under the plan which . . . are [inter alia] consistent with the

objectives of this subchapter. 27

28 42 U.S.C. § 1396a(a)(17). 14
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1

In the seminal case interpreting Section 1396a(a)(17), the Supreme Court held:

2

[N]othing in the statute suggests that participating States are required to fund every

medical procedure that falls within the delineated categories of medical care … Th[e]

3

language [of Section 1396a(a)(17)] confers broad discretion on the States to adopt

standards for determining the extent of medical assistance, requiring only that such

4

standards be ‘reasonable’ and ‘consistent with the objectives’ of the Act.

5 Beal v. Doe, 432 U.S. 438, 444 (1977) (quoting Section 1396a(a)(17)) (footnote omitted).4 See

6 also State of Washington v. Bowen, 815 F.2d 549, 555 (9th Cir. 1987) (quoting the “broad

7 discretion” language from Beal). The Supreme Court also noted in Beal that “although serious

8 statutory questions might be presented if a state Medicaid plan excluded necessary medical

9 treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to

10 refuse to fund unnecessary though perhaps desirable medical services.” 432 U.S. at 444-45.

11

a. Congress Did Not Intend for Private Individuals to Enforce the

“Reasonableness” Requirement of Section 1396a(a)(17). 12

13

The Ninth Circuit in Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006), held that Congress

14 did not intend for Section 1396a(a)(17) to create a private right of action for individuals and

15 organizations:

16

Section 1396a(a)(17) is a general discretion-granting requirement that a state adopt

reasonable standards …. [T]he parenthetical statement in section 1396a(a)(17) that

17

the state’s reasonable standards ‘shall be comparable for all groups’ puts a focus on

the standards themselves and on their aggregate impact, rather than on the benefits to

18

individuals.

19 436 F.3d at 1162. The Ninth Circuit has therefore squarely held that Section 1396a(a)(17) does

20 not contain statutory language sufficient to evince a congressional intent to create individually-

21 enforceable federal rights, and that its language is too “vague and amorphous for judicial 22 enforcement.” Id. at 1162-63.5

23

4 In Beal, the Supreme Court upheld a Pennsylvania regulation that denied Medicaid

coverage to pregnant women seeking nontherapeutic (i.e., medically unnecessary) abortions:

24 “[W]e do not agree that the exclusion of nontherapeutic abortions from Medicaid coverage is

unreasonable under [Section 1396a(a)(17)].” 432 U.S. at 445.

25

5 In Watson, the Ninth Circuit applied the principles of Gonzaga University v. Doe, 536

U.S. 273 (2002). In Gonzaga, the Supreme Court explained that, regardless of whether plaintiffs

26 seek to enforce a federal statute under an “implied” rights theory or under Section 1983, the court

“must first determine whether Congress intended to create a federal right” with its enactment. Id.

27 at 286. This is because, “[l]ike substantive federal law itself, private rights of action to enforce

federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

28

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1

The plaintiffs in Watson were elderly and disabled individuals who received home- and

2 community-based services as an alternative to Medicaid institutional nursing facilities. (This was

3 part of the Home and Community Based Services waiver program.) To determine eligibility for

4 this program, the State of Oregon used a scoring system that classified individuals into service

5 levels based on medical need, from a score of one to 18. For purely budgetary reasons, Oregon

6 denied coverage to any individuals who scored less than 14. Plaintiffs alleged that Oregon

7 violated Section a(a)(17) “by assessing Plaintiffs’ medical need for nursing facility services using

8 agents who lacked the necessary professional qualifications and training and who employed

9 subjective and inaccurate judgments.” 436 F.3d at 1157. The Ninth Circuit rejected these claims,

10 holding that plaintiffs had no private right of action under the statute.

11

In particular, the Ninth Circuit held in Watson that Section 1396a(a)(17)

12

does not provide meaningful instruction for the interpretation of ‘reasonable

standards’ in terms of medical need. It provides guidance only regarding the financial

13

means of a potential beneficiary…. [T]he only guidance of section 1396a(a)(17)(A)

regarding medical need eligibility is that state standards be ‘consistent with the

14

objectives of this subchapter.’ Judicial enforcement of section 1396a(a)(17) under

Plaintiffs’ argument would require a court to delve into the medical necessity of

15

particular types of care. If Congress had intended that result, it would have provided

more concrete standards in the statute for determining eligibility based on medical

16

need.

17 Id. at 1162-63. The administratively thorny questions related to which services are medically

18 necessary under a state’s Medicaid Plan and which are not are therefore best left to the

19 institutions in the best position to make such judgments: the defendants in this case and the

20 federal agency that regulates them. See Pharm. Research & Mfrs. of Am. v. Walsh (PhrMA), 538

21 U.S. 644, 672-73 (2003) (Breyer, J., concurring).

22

Plaintiffs may contend that, under Independent Living Center of Southern California, Inc. v.

23 Shewry, 543 F.3d 1050 (9th Cir. 2008), they are entitled to assert a private right of action for

24 injunctive relief under the Supremacy Clause. However, Independent Living is distinguishable on

25 the ground that it addressed claims under 42 U.S.C. § 1396a(a)(30)(A), which the Ninth Circuit

26 held creates specific standards that evince a Congressional intent to preempt state law, thereby

27 giving rise to a federal preemption claim under the Supremacy Clause. Here, in contrast,

28 plaintiffs seek to bring a private cause of action to enforce a different statutory provision – 16
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1 § 1396a(a)(17) – which the Ninth Circuit has squarely held does not create any “concrete

2 standards” or indicate any Congressional intent to create a private right of action or preempt state

3 law. Watson, 436 F.3d at 1162-63. Under Watson, it is settled law in the Ninth Circuit that 4 § 1396a(a)(17) is not privately enforceable, and this court is bound by that decision.6

5

b. Defendants’ Use of the Functional Index Scoring System Is a

Reasonable Means of Determining Recipients’ Need for (and

6

the Extent of) Services.

7

If required to “delve into the medical necessity of particular types of care” — an area the

8 Ninth Circuit in Watson expressly held Congress did not intend courts to explore — this court

9 should conclude that, in light of the “broad discretion” afforded by Congress, California’s

10 functional index (FI) scoring system is a “reasonable standard” for determining recipients’ need

11 for (and the extent of) services under the IHSS program.

12

The FI scoring system was developed in 1988 to provide a uniform assessment tool for

13 determining a recipient’s need for services, and the FI Score measures a recipient’s relative

14 dependence on human assistance for performance of basic IHSS tasks. Carroll Decl., ¶¶ 11-13;

15 Cowles Decl., ¶¶ 3-4. The weights used to calculate FI Scores were re-assessed in 2009, and the

16 original 1988 weights were found to be reasonable and consistent over time. Cowles Decl., ¶ 3.

17 Additionally, CDSS provides county social workers with extensive training to help achieve and

18 maintain uniformity in the use of functional rankings and FI scores statewide. Carroll Decl., ¶ 12.

19 Accordingly, FI Scores have proven to be particularly effective at measuring an individual’s

20 IHSS need and functional abilities. Carroll Decl., ¶¶ 11-13 & Exh. A; Cowles Decl., ¶ 3.

21

Moreover, ABX4 4 does not utilize FI Scores and functional ranks in a vacuum, but rather

22 carves out explicit exemptions for recipients who are authorized to receive protective supervision

23 or paramedical services, thereby ensuring that any potentially at-risk individuals will receive

24

6 Additionally, Independent Living was wrongly decided because it conflicts with

numerous Supreme Court precedents, including Gonzaga University v. Doe, 536 U.S. 273 (2002),

25 and because the Supremacy Clause does not itself create any substantive rights. See Dennis v.

Higgins, 498 U.S. 439, 450 (1991); Golden State Transit Corp. v. City of Los Angeles, 493 U.S.

26 103, 107 (1989); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 615 (1979).

Defendants recognize, however, that this court cannot overrule the Ninth Circuit’s decision in

27 Independent Living, and therefore raise this argument to preserve it for later appellate

proceedings.

28

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1 services regardless of their FI Scores and functional ranks. See Cal. Welf. & Inst. Code

2 §§ 12309(e)(2) & 12309.2(a)(3); Carroll Decl., ¶ 19 & Exh. B. Numerous other protections are

3 built into the system to further ensure that at-risk individuals will receive the services that they

4 need. For example, the individual’s county social worker is responsible for determining whether

5 there are other services available, including Medi-Cal waivers and county only services, and for

6 making referrals to those services. Additionally, any recipient who believes that his or her FI

7 Score or functional ranks have been incorrectly assessed is entitled to a hearing and will continue

8 to receive all of his or her current IHSS benefits pending the outcome of the hearing. See MPP §§

9 22-003.1, 22-073.1 & 30-755.21; Carroll Decl., ¶¶ 17 & 19. ABX4 4 represents a reasonable way

10 to provide services to those most in need, and is consistent with the overall objectives of the

11 Medicaid Act, which are to provide medically necessary services “as far as practicable under the

12 conditions in such state.” 42 U.S.C. § 1396-1.

13

c. The Cases Cited by Plaintiffs Are Inapposite

14

The cases cited by the plaintiffs in support of their § 1396a(a)(17) arguments are inapposite.

15 For example, plaintiffs rely on Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006), but Lankford

16 is an Eighth Circuit case that, to the extent it conflicts with Watson’s holding that § 1396a(a)(17)

17 is not privately enforceable, is not valid law in this Circuit. In any event, Lankford also is

18 distinguishable. There, the Eighth Circuit struck down a Missouri regulation that made

19 unreasonable distinctions between the types of durable medical equipment that would be covered

20 under Medicaid. These distinctions were so unreasonable that they bordered on the absurd. One

21 provision funded wheelchairs but not the batteries, accessories, and replacement parts necessary

22 to keep those wheelchairs running; another provision funded oxygen and other respiratory

23 equipment, but not the suction pumps, apnea monitors, and humidification devices that were

24 medically necessary to assist in breathing. See 451 F.3d at 511. The FI scoring system in

25 California creates no such anomalies. Indeed, ABX4 4 sets a new threshold for services that is

26 based entirely on recipients’ level of need, and will ensure that those will the highest level of need

27 continue to receive all necessary services. See Carroll Decl., ¶¶ 11-14 & Exh. B; Cowles Decl.,

28 ¶ 3.

18
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1

Plaintiffs also rely on White v. Beal, 555 F.2d 1146 (3d Cir. 1977), a case that never

2 mentions § 1396a(a)(17). In White, Pennsylvania’s Medicaid program paid for eyeglasses for

3 individuals who had an eye disease but refused to pay for eyeglasses for those without such a

4 disease. Both groups of individuals (those with eye disease and those without) had a medical

5 need for eyeglasses, but Pennsylvania based its funding distinction on the individuals’ conditions,

6 not their medical needs. The Third Circuit held this distinction to be improper. No such

7 condition-based distinctions are made under the FI scoring system, which instead assesses

8 recipients’ need for services – precisely what White and Lankford require. See Carroll Decl.,

9 ¶¶ 11-14 & Exh. B; Cowles Decl., ¶ 3.

10

Plaintiffs also cite a Michigan district court case that involved the requirement than an

11 individual seeking a Medicaid-financed liver transplant must have first abstained from alcohol for

12 two years. See Allen v. Mansour, 681 F. Supp. 1232 (E.D. Mich. 1986). In Allen, the court found

13 that Michigan failed to rely on statistical data, reports from agencies, and other related

14 information to determine the proper length of abstinence. See id. at 1238. Here, in contrast, the

15 FI scoring system was developed over 20 years ago and has stood the test of time as an accurate

16 and reliable means to measure a recipient’s level of need for services. Cowles Decl., ¶ 3; Carroll

17 Decl., ¶ 13.

18

Finally, plaintiffs rely on abortion cases in which two states impermissibly sought to limit

19 Medicaid funding for medically necessary abortions. See Hern v. Beye, 57 F.3d 906 (10th Cir.

20 1995); Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979). Specifically, Colorado and

21 Massachusetts funded abortions in cases where the mothers faced imminent, life-or-death

22 situations but denied funding for medically necessary (but not life-threatening) cases. The courts 23 struck down such distinctions as unreasonable.7 No such condition-based distinctions are made

24 in this case. Indeed, both the Hern and Preterm courts expressly articulated the difference

25 between need-based and condition-based distinctions: “[W]hen a state singles out one particular

26

7 The Preterm court noted, by way of analogy, “[i]f only those suffering at death’s door

from sickle cell anemia or syphilis could receive publicly provided medical care, but not those

27 condemned to a lifetime of dependency, one would be hard put to discern any rational social

objective being thereby served.” 591 F.2d at 126.

28

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1 medical condition … and restricts treatment for that condition to life and death situations it has …

2 crossed the line between permissible discrimination based on degree of need and entered the

3 forbidden discrimination based on medical condition.” Hern, 57 F.3d at 910; see also Preterm,

4 591 F.2d at 126. The California FI scoring system, which makes distinctions based solely on

5 need and not medical condition, see Carroll Decl., ¶¶ 11-14 & Exh. B, falls squarely on the

6 “permissible” side of the line under the very authorities cited by plaintiffs.

7

4. The FI Scoring System Satisfies the Sufficiency Requirement of

Federal Medicaid Law, 42 C.F.R. § 440.230(b). 8

9

The “broad discretion” afforded to states to determine “the extent of medical assistance”

10 they will provide under Medicaid is further checked by the “sufficiency” requirement of 42

11 C.F.R. § 440.230(b), which requires that “[e]ach service must be sufficient in amount, duration,

12 and scope to reasonably achieve its purpose.” See Plaintiffs’ Sixth Claim for Relief, at Amended

13 Compl. ¶¶ 212-15. As discussed below, even assuming that plaintiffs can privately enforce this

14 regulation, defendants satisfy the sufficiency rules under federal Medicaid law.

15

a. Overview.

16

States that voluntarily participate in the Medicaid program may, under their sole discretion,

17 elect to offer “optional” services such as prescription drugs or in-home support services. See 42

18 U.S.C. § 1396d(a)(12). Once a state elects to offer such a service, “[e]ach service must be

19 sufficient in amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R.

20 § 440.230(b). As the Supreme Court has repeatedly made clear, the Medicaid Act gives states

21 “substantial discretion to choose the proper mix of amount, scope, and duration limits on

22 coverage as long as care and services are provided in the recipients’ best interest.” PhrMA, 538

23 U.S. at 665 (plurality opinion); Alexander v. Choate, 469 U.S. 287, 303 (1985). The key focus

24 under the sufficiency regulation is therefore whether the provided services “achieve [their]

25 purpose” under the federal statutory framework. See Curtis v. Taylor, 625 F.2d 645, 651 (5th Cir.

26 1980).

27

28 20
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1

b. Plaintiffs Have Failed to Tie the “Sufficiency” Regulation to

any Statutory Right of Action Under the Medicaid Act.

2

3

Plaintiffs’ “sufficiency” claim under 42 C.F.R. § 440.230(b) fails as a matter of law

4 because a federal regulation cannot, by itself, serve as the basis for a private lawsuit, but instead

5 must be tied to a privately enforceable right created by a Congressional statutory enactment. See

6 Alexander, 532 U.S. at 286-87, 291; Lonberg v. City of Riverside, 571 F.3d 846, 850-51 (9th Cir.

7 2009) (“[R]egulations that do not encapsulate [a] statutory right and corresponding remedy are

8 not privately enforceable.”). This is because, “[l]ike substantive federal law itself, private rights

9 of action to enforce federal law must be created by Congress.” Sandoval, 532 U.S. at 287. Here,

10 plaintiffs have not tied 42 C.F.R. § 440.230(b) to any statute. See Amended Complaint, ¶¶ 212-

11 215. Accordingly, this claim fails as a matter of law.

12

In their moving papers, plaintiffs assert that 42 C.F.R. § 440.230(b) is “related” to 42

13 U.S.C. § 1396a(a)(17). Mem. at 27:12. Because this “relationship” is not mentioned in the

14 complaint, this claim is legally insufficient as a matter of law. See Fed. R. Civ. P. 8(a)(2)

15 (complaint must including “a short and plain statement of the claim showing that the pleader is 16 entitled to relief”). Beyond that, and even assuming arguendo that § 440.230(b) implements 17 § 1396a(a)(17), that statute cannot supply a basis for private enforcement of § 440.230(b) because 18 § 1396a(a)(17) itself does not itself create any privately enforceable rights. See Watson, 436 F.3d 19 at 1162-63.8

20

c. ABX4 4 Satisfies the Sufficiency Requirement.

21

Even if plaintiffs could establish a private right of action under the “sufficiency” regulation,

22 they could not prove that ABX4 4 falls outside of the “substantial discretion” afforded to 23 Congress to limit the amount, scope, and duration of IHSS benefits. PhrMA, 538 U.S. at 665; 24 Alexander, 469 U.S. at 303. Under the very authorities cited by the plaintiffs, ABX4 4 meets the 25 sufficiency standard. In Curtis v. Taylor, 625 F.2d 645 (5th Cir. 1980), for example, the court

26

8 The cases cited by plaintiffs in their moving papers (Mem. at 27-28) are inapposite on

their facts and predate both Alexander v. Sandoval’s holding that a regulation, alone, cannot

27 support a private right of action, and the Ninth Circuit’s holding in Watson v. Weeks that Section

1396a(a)(17) is not privately enforceable.

28

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1 analyzed a Florida statute that limited the number of paid physician visits to three per calendar

2 month. The court properly asked the following question under the “sufficiency” requirement of

3 42 C.F.R. § 440.230(b), namely, “whether three visits are sufficient ‘to reasonably achieve’ the

4 purpose of going to the doctor’s office.” 625 F.2d at 651. The Curtis court upheld the Florida

5 statute for the same reason this court should uphold ABX4 4: the state properly exercised its

6 judgment in limiting care to those with the highest degree of need:

7

Florida’s decision to pay for no more than three physicians’ visits per month does not

discriminate on the basis of ‘condition’ between persons who need three or fewer

8

visits and those who need four or more. Neither does its decision to pay for

emergency visits beyond the three-visit limitation discriminate against those with less

9

severe ‘conditions.’ It simply reflects a judgment by the state that those persons who

need emergency care have a higher degree of medical necessity than those who do

10

not. That conclusion is compassionate as well as rational.

11 Id. at 652. The Curtis court also noted that federal regulators had previously approved state plans

12 that included “precisely the type of limitation on physicians’ visits per month that Florida seeks to

13 adopt.” Id. at 652-53 (service limitations appropriate if resulting coverage “is adequate to serve

14 the medical needs of most of the individuals eligible for Medicaid assistance”). Similarly, in the

15 instant case, the service limitations are based solely on recipients’ level of need, and will ensure

16 that individuals with a moderate to high level of need will continue to receive all necessary

17 services. See Carroll Decl., ¶¶ 11-14, 16 & Exh. B.

18

In the same way, the court in Mitchell v. Johnson, 701 F.2d 337 (5th Cir. 1983), focused on

19 the Congressional purpose underlying preventive dental care for children, the Medicaid services

20 at issue in that case. Mem. at 27. In Mitchell, the court noted Congress’s express intent to

21 provide a comprehensive package of preventive dental services for eligible children under

22 Medicaid. When the State of Texas eliminated seven of the eight elements of that comprehensive

23 package, that unreasonably high percentage was held to be well outside the bounds of the

24 “substantial discretion” afforded to states under federal Medicaid law. See 701 F.2d at 350-51.

25 In the instant case, the modest, need-based limitations on IHSS services do not approach the 26 massive level of cuts (seven out of eight elements of the dental plan) seen in Mitchell.9

27

9 The plaintiffs also cite to Charpentier v. Belshe, 1994 WL 792591 (E.D. Cal.), to support

their “sufficiency” arguments. Although the Charpentier court cited the sufficiency regulation

28

(continued…)

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1

C. Plaintiffs Have No Likelihood of Success on Their Claims Under Title II of

the ADA and Section 504 of the Rehabilitation Act

2

3

Plaintiffs’ ADA and Rehabilitation Act claims fail as a matter of law because plaintiffs

4 cannot demonstrate that ABX4 4 discriminates on the basis of any disability. Section 12131 of

5 Title II of the ADA provides in pertinent part: “[N]o qualified individual with a disability shall,

6 by reason of such disability, be excluded from participation or be denied the benefits of the

7 services, programs, or activities of a public entity, or be subjected to discrimination by such an 8 entity.”10

9

To prove a public program or service violates Title II of the ADA, a plaintiff must

show: (1) he is a “qualified individual with a disability”; (2) he was either excluded

10

from participation in or denied the benefits of a public entity's services, programs or

activities, or was otherwise discriminated against by the public entity; and (3) such

11

exclusion, denial of benefits, or discrimination was by reason of his disability.

12 Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978 (9th Cir.

13 1997) (emphasis in original).

14

Here, plaintiffs cannot show that any named plaintiff (or other IHSS recipient) will be

15 denied benefits by reason of his or her disability. Indeed, ABX4 4 does precisely the opposite,

16 basing service levels entirely on need to ensure that the people with the greatest need for services

17 will continue to receive them, and eliminating or reducing services only for those recipients who

18 have been determined by trained social workers not to have a genuine need for them. Carroll

19 Decl., ¶¶ 11-14; Cowles Decl., ¶ 3.

20

Nor is there any evidence that any of the named plaintiffs will suffer any injury as a result

21 of ABX4 4, much less end up institutionalized:

22

23 (…continued) (once), it did not analyze the regulation or discuss it. The Charpentier case involved a glancing
24 discussion of comparability, and Defendants address that issue above. Plaintiffs also point to Weaver v. Reagen, 886 F.2d 194 (8th Cir. 1989), a case that cites the sufficiency regulation
25 (subpart (b) of 42 C.F.R. § 440.230) but does not discuss it. The Weaver case focuses on subparts (c) and (d) of 42 C.F.R. § 440.230, which involve the ability of a state to limit Medicaid services.
26 Defendants address that issue in the “reasonable standards” discussion above. 10 The language of section 504 of the Rehabilitation Act is essentially the same, and
27 analyzed the same way. Pennsylvania Protection & Advocacy v. Pennsylvania Dep’t of Public Welfare, 402 F.3d 374, 379 n. 3 (3d Cir. 2005).
28
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1

• Plaintiff C.R. is a client of the San Andreas Regional Center and has a developmental

2

disability as defined under the Lanterman Developmental Disabilities Services Act

3

(Lanterman Act), California Welfare and Institutions Code §§ 4500 et seq. Carroll

4

Decl., ¶ 18. Accordingly, he is entitled to continue to receive the same services that

5

he currently receives through IHSS through another provider arranged by his

6

regional center, and he will not suffer any loss of services. Id.; Winfield Decl., ¶ 5;

7

Cal. Welf. & Inst. Code § 4646.5.

8

• Plaintiff David Oster has autism, which is a developmental disability under the

9

Lanterman Act. Carroll Decl., ¶ 18. Mr. Oster is a client of the Harbor Regional

10

Center, and he is entitled to continue to receive the same services that he currently

11

receives through IHSS through another provider arranged by his regional center, and

12

he will not suffer any loss of services. Id.; Winfield Decl., ¶ 5; Cal. Welf. & Inst.

13

Code § 4646.5.

14

• Plaintiff Willie Beatrice Sheppard has an FI Score of 2.56, and the only service that

15

she will lose as a result of ABX4 4 is shopping, for which she currently receives just

16

one hour per week. Carroll Decl., ¶ 18. Because Ms. Sheppard has a functional

17

rank of less than 4 for shopping, her social worker has by definition determined that

18

she does not require substantial assistance to engage in this activity. Moreover, Ms.

19

Sheppard’s own declaration indicates that shopping services are a convenience but

20

not a true necessity for her, as she states that she has a daughter who lives nearby

21

and with whom she goes to church every Sunday, and she does not provide any

22

indication that her daughter, although quite busy, could not help her with shopping

23

for just one hour per week. Sheppard Decl., ¶¶ 2, 11. She also fails to identify any

24

irreparable harm that would occur if she lost her shopping services, focusing instead

25

on the consequences that she believes she would suffer if she lost her other services,

26

which she will not lose under ABX4 4. Id., ¶¶ 7-11; Carroll Decl., ¶ 18. Finally, in

27

the event that Ms. Sheppard believes that she has a greater need for shopping

28

services than her functional rank indicates, she is entitled to seek a hearing and

24

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1

reassessment, and will continue to receive benefits pending the outcome of her

2

hearing. Carroll Decl., ¶¶ 17, 19.

3

• Plaintiff Dottie Jones has an FI Score of 2.28, and she will continue to receive

4

services for laundry, shopping, and dressing, losing only her services for housework

5

(six hours per month), meal preparation (three hours per month), and meal clean-up

6

(one-and-one-half hours per month). Id., ¶ 18. Because Ms. Jones has functional

7

ranks of less than 4 in these categories, by definition her social worker has

8

determined that she does not require substantial assistance with these activities. If

9

she believes that her functional ranks have been incorrectly assessed, she is entitled

10

to a hearing and/or reassessment, and she will continue to receive her current

11

benefits pending the outcome of her hearing. See id., ¶¶ 17, 19. Moreover, Ms.

12

Jones has failed to demonstrate that there are no other community resources

13

available to her, such as Meals on Wheels or other volunteer community or religious

14

support networks. See id., ¶ 18.

15

• Plaintiff V.L. is a 14-year-old boy whose current IHSS provider is his older brother,

16

who lives in the house with him. Id., ¶ 18. V.L.’s mother also receives IHSS

17

services (which will not be cut under ABX4 4), and his mother’s provider also lives

18

in the house with them, along with his mother’s husband. Id. V.L. receives only

19

44.8 hours of services per month (approximately 11 hours per week), and his

20

services can be, and are, provided by the family members living in the house with

21

him. Id.; Lagahid Decl., ¶ 4. There is no evidence that V.L. will stop receiving any

22

services, the only change being that his family members will no longer be paid for

23

providing those services to him. Lagahid Decl., ¶¶ 1-13. Moreover, if V.L. believes

24

that his FI Score of 1.87 does not accurately reflect his level of need, he is entitled

25

to a hearing and/or reassessment, and he will continue to receive his current benefits

26

pending the outcome of his hearing. Carroll Decl., ¶¶ 17, 19. Finally, V.L. lives in

27

San Francisco, and under Proposition J there are numerous resources available for

28

children in San Francisco. Id., ¶ 18. There is no indication that V.L.’s parents have

25

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1

sought any assistance from the City of San Francisco, which may be able to provide

2

many of the same services that IHSS currently provides. Id., ¶ 18; Lagahid Decl.,

3

¶¶ 1-13.

4

Plaintiffs’ contention that the reductions in the IHSS program “will have a uniquely

5 detrimental effect upon people with psychiatric and cognitive disabilities and exclude them from

6 IHSS” is completely without foundation. Plaintiffs’ Motion at 32. Plaintiffs fail to provide any

7 credible evidence to support this assertion, as, among other things, they overlook the fact that

8 functional ranks and FI scores are assessed by trained social workers for the specific purpose of

9 measuring the recipient’s level of need for services, and thus anyone with a genuine need for

10 services will receive them unless they have been mis-assessed. Carroll Decl., ¶¶ 11-14. And

11 anyone who believes that he or she has been mis-assessed is entitled to a hearing and/or

12 reassessment, and will continue to receive benefits pending the outcome of that hearing. Id., ¶¶

13 17 & 19. Recipients with developmental disabilities will not lose any services because they are

14 entitled to receive the same services through their regional centers under the Lanterman Act, and

15 many people with psychiatric or cognitive disabilities are likely to fall into this category.

16 Winfield Decl., ¶ 5. Further, recipients with serious cognitive or psychiatric disabilities will

17 almost certainly be authorized to receive protective supervision, which will automatically exempt

18 them from any service reductions under ABX4 4. Carroll Decl., Exh. A at 12 & Exh. B; Cal.

19 Welf. & Inst. Code §§ 12309(e)(2) & 12309.2(a)(3). In short, there is no evidence that anyone

20 with significant cognitive or psychological difficulties will lose any IHSS services. Under such

21 circumstances, plaintiffs cannot show that any named plaintiff (or any other recipient) is likely to

22 be significantly harmed by the reduction in IHSS, much less end up being admitted to a skilled

23 nursing facility or other institution as a result of ABX4 4.

24

Moreover, a state is not precluded in every instance from reducing or eliminating services

25 under its Medicaid Plan such that it will be in violation of the ADA or section 504 of the

26 Rehabilitation Act. As the Sixth Circuit noted, a State is not required to maintain optional

27 Medicaid services that it can no longer afford.

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1

[I]t may occasionally happen that the zero-sum fiscal realities of administering a state

budget will prohibit the State from sustaining [its previous] level of [Medicaid

2

services]. If that should happen, it is not for the federal courts to compel the State to

maintain non-mandatory Medicaid programs that it no longer can support. So long

3

as the State’s disenrollment process satisfies the requirements of the Medicaid

regulations and statute . . . , those policy choices must be left to the elected

4

representatives of the residents of the State.

5 Rosen v. Goetz, 410 F.3d 919, 933 (6th Cir. 2005) (emphasis added).

6

The bottom line is that the new eligibility requirements do not discriminate against

7 individuals with disabilities. The majority of those who receive IHSS are disabled.11 These new

8 requirements are narrowly tailored and based on individual assessments of IHSS recipients.

9 Nothing about the new standards for determining recipients’ need for IHSS services violates the 10 Medicaid Act or the ADA/section 504, and therefore, plaintiffs have failed to show that they can 11 prevail on the merits of their claims.

12 II. PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE PLAINTIFFS CANNOT

DEMONSTRATE A LIKELIHOOD OF IRREPARABLE HARM OR THAT THE BALANCE OF

13

EQUITIES OR PUBLIC INTEREST WOULD FAVOR AN INJUNCTION

14

Plaintiffs have not met their burden of demonstrating that any named plaintiffs or purported

15 class members face “a real or immediate threat of an irreparable injury” when ABX4 4 goes into 16 effect. Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1020 (9th Cir. 2004); see also 17 Winter, 129 S. Ct. at 375-76. Indeed, plaintiffs’ claims of irreparable harm are based entirely 18 upon several fundamental misunderstandings of how recipients’ levels of need for services are 19 determined under ABX4 4, and accordingly plaintiffs’ purported “evidence” of irreparable harm 20 cannot withstand even the most basic scrutiny.

21

A. None of the Named Plaintiffs Can Show a Likelihood of Irreparable Harm

22

As discussed above, plaintiffs have failed to show that any of the named plaintiffs will go

23 without needed services. See Section I.C at pp. 23-25, supra.

24

B. Plaintiffs Have Not Shown Any Likelihood of Irreparable Harm for Other

Purported Class Members

25

26

27

11 An individual could qualify for these services based on their age and income status.

Such individuals would not necessarily be “disabled” within the meaning of the ADA. 28

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1

In order to obtain a preliminary injunction, plaintiffs must show that one or more of the

2 “named plaintiffs” is likely to suffer “imminent, irreparable harm,” Mandrigues v. World Savings,

3 Inc., 2009 WL 160213 at *3 (N.D. Cal. Jan. 20, 2009) (emphasis added), and plaintiffs have

4 utterly failed to meet that burden. Moreover, plaintiffs also have failed to show that any IHSS

5 recipients – members of the purported class or otherwise – are likely to suffer irreparable harm

6 under ABX4 4. Plaintiffs’ claims of alleged irreparable harm are based entirely on plaintiffs’

7 fundamental misunderstandings of the relevant facts and law.

8

First, plaintiffs describe numerous recipients whose benefits will not be cut under ABX4 4,

9 and then allege a parade-of-horrors that might happen to those recipients in the hypothetical event

10 that their benefits were cut. See Nicholson Decl., ¶ 6; see also Anderson Decl., ¶ 10 (admitting

11 no services will be lost); Addison Decl., ¶ 7 (provider admitting recipient will not lose services);

12 Brown Decl., ¶¶ 2 & 5 (admitting facts that show child’s services will not be cut). Specifically,

13 throughout their declarations and briefs plaintiffs completely overlook the fact that all individuals

14 who are authorized to receive protective supervision or paramedical services are exempt from the

15 changes in ABX4 4. See Cal. Welf. & Inst. Code §§ 12309(e)(2) & 12309.2(a)(3). Individuals

16 with a functional rank of 5 in any of the three mental functioning categories – memory,

17 orientation, and judgment – are automatically entitled to receive protective supervision, and

18 accordingly will be exempt from any cuts under ABX4 4. Carroll Decl., Exh. A at 12. Thus, any

19 individuals with moderate or severe cognitive or psychological disabilities will be authorized to

20 receive protective supervision and will not have any services cut.

21

Plaintiffs further overlook the fact that individuals with developmental disabilities have an

22 entitlement to services under the Lanterman Developmental Disabilities Services Act (Lanterman

23 Act), and therefore are entitled to the services they need whether they are provided through the

24 IHSS program or some other vendor or contractor. See Winfield Decl., ¶ 5; see also Gardner

25 Decl., ¶¶ 26, 32, 37 (plaintiffs’ purported expert incorrectly stating that recipients with

26 developmental disabilities will lose services and suffer harm). These individuals receive case

27 management services from regional centers located throughout California, and they need only

28 28
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1 contact their case manager at the regional center to ensure that they will continue to receive any

2 IHSS services that they would otherwise lose as a result of ABX4 4. Winfield Decl., ¶ 5.

3

Plaintiffs also incorrectly allege that social workers do not know how to assess functional

4 rank and frequently make errors, and that this will supposedly harm recipients. Plaintiffs have no

5 evidence to support this claim. Social workers are given extensive training in how to use

6 functional ranks and properly assess recipients, including such things as basing the assessment on

7 the recipient’s “worst” days rather than average or best days. Carroll Decl., ¶ 12; Nicholson Decl.,

8 ¶ 7. Social worker assessments are subject to routine auditing and review, and have been found

9 to be very consistent across the state over time. Carroll Decl., ¶ 13. Moreover, in the event that a

10 social worker makes an error in assessing a recipient, the recipient has a right to a reassessment

11 and/or a state hearing, and the recipient will continue to receive all of their current benefits

12 pending the outcome of the hearing. Id., ¶¶ 17 & 19. Indeed, many of the recipients identified in

13 plaintiffs’ declarations claim to have disabilities that are far worse than what is reflected in their

14 functional ranks and FI scores. Nicholson Decl., ¶¶ 8, 11. Where those claims are true, the

15 recipients can simply ask to have their functional ranks reassessed and/or request a state hearing

16 and they will receive all of the services that they need. Id.; Carroll Decl., ¶¶ 17 & 19.

17

All of the protections in place under the IHSS program and related programs render it

18 extremely unlikely that any recipient will suffer irreparable harm if ABX4 4 goes into effect, and

19 plaintiffs have made no showing to the contrary. Indeed, in order to show irreparable harm,

20 plaintiffs would first have to identify a recipient who will lose services as a result of ABX4 4: i.e.,

21 an individual with a functional rank below 4 for one or more domestic and related services, and/or

22 an FI Score below 2, who is not developmentally disabled and who is not authorized to receive

23 protective supervision or paramedical services. Then, plaintiffs would have to show that such

24 person’s functional ranks were correctly assessed; otherwise, that person would be entitled to a

25 reassessment that would give him or her the services he or she needs. After that, plaintiffs would

26 have to show that that recipient – who has been correctly diagnosed by a social worker as not

27 needing services (otherwise he or she would be reassessed) – in fact has a genuine need for those

28 services. Then, plaintiffs would have to show that the recipient has no reasonable alternative 29
Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page37 of 40

1 other than IHSS to receive those services (i.e., no family member, friend, state or county service,

2 or charity service that can provide the equivalent services). And finally, plaintiffs would have to

3 show that the absence of such services will be likely (not merely possible) to cause that recipient

4 to suffer a concrete and irreparable harm. Plaintiffs’ evidence does not come close to making this

5 showing, and accordingly plaintiffs have failed to meet their burden of demonstrating a likelihood

6 of irreparable harm.

7

C. The Balance of Equities and Public Interest Tilt Strongly Against

Plaintiffs’ Request to Enjoin a State Statute 8

9

California is facing an unprecedented fiscal crisis, and the Legislature has little choice but

10 to make budget cuts to popular programs. The cuts in ABX4 4 were made after careful

11 consideration by the Legislature and were specifically designed to preserve services for those who

12 need them most, while eliminating only those services that, while undoubtedly providing great

13 convenience to the recipients, are not truly necessary. See Beal, 432 U.S. at 444-45 (“it is hardly

14 inconsistent with the objectives of the Act for a State to refuse to fund unnecessary though

15 perhaps desirable medical services”). Basic separation-of-powers principles dictate that the

16 courts should not interfere with the Legislature’s reasoned judgment about how to address the

17 budget crisis and how to assess recipients’ need for services. See Watson, 436 F.3d at 1162-63

18 (Congress did not intend for courts to “delve into the medical necessity of particular types of

19 care”). If the court issues a preliminary injunction to prevent ABX4 4 from taking effect, it will

20 directly worsen the State’s budget crisis and almost certainly force the Legislature to cut other

21 programs and services that the Legislature has deemed more essential than the services cut under

22 ABX4 4. Indeed, there is a realistic possibility that the Legislature could eliminate the IHSS

23 program entirely, as it is an optional program under Medicaid that was almost eliminated during

24 the State budget crisis in 2003-04. See Douglas Decl., ¶ 11; Rosen, 410 F.3d at 933 (“it is not for

25 the federal courts to compel the State to maintain non-mandatory Medicaid programs that it no

26 longer can support”). ABX4 4 makes reasonable cuts to the IHSS program in order to preserve

27 those services for the most needy, and if ABX4 4’s cuts are enjoined the entire program could be

28 30
Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page38 of 40

1 put at risk. Accordingly, the balance of equities and public interest tilt strongly against plaintiffs’

2 request for a preliminary injunction, and the court should deny plaintiffs’ request.

3 III. CLASS CERTIFICATION IN NEITHER NECESSARY AT THIS STAGE NOR PROPER IN THIS CASE
4

5

Defendants agree that there is no need for the court to consider plaintiffs’ motion for class

6 certification at this time. “[D]istrict courts are empowered to grant preliminary injunctions

7 ‘regardless of whether the class has been certified,’” Brantley v. Maxwell-Jolly, __ F. Supp. 2d __,

8 2009 WL 2941519, at *14 n.14 (N.D. Cal. Sept. 10, 2009) (quoting Schwarzer, Tashima and

9 Wagstaffe, Fed.Civ.P. Before Trial, § 10:773 at 10-116 (TRG 2008)), and thus if plaintiffs meet

10 the requirement for a preliminary injunction as to the named plaintiffs and they establish that

11 putative class members will suffer the same harm, plaintiffs can obtain classwide preliminary

12 injunctive relief without certifying a class. See Mandrigues, 2009 WL 160213 at *3 (When

13 seeking a preliminary injunction on a classwide basis, “the moving party must prove that (1) the

14 named plaintiffs face imminent, irreparable harm, and (2) there is reason to believe that the

15 putative class members face the same harm.”). However, because plaintiffs cannot meet the

16 requirements for a preliminary injunction, they are not entitled to any relief, and the issue of class 17 certification is moot.12

18 IV. IN THE EVENT THAT THE COURT DOES NOT DENY PLAINTIFFS’ MOTION, THE

COURT SHOULD REFRAIN FROM RULING UNTIL DEFENDANTS HAVE BEEN GIVEN A

19

REASONABLE OPPORTUNITY TO RESPOND

20

Plaintiffs’ motion should be denied – or, at a minimum, the court should postpone its ruling

21 – because defendants have not been afforded a fair and reasonable opportunity to prepare a

22 response. After ABX4 4 was enacted on July 28, 2009, plaintiffs spent 69 days preparing their

23 preliminary injunction papers and supporting documents – which total over 1,100 pages – before

24 filing them on the evening of October 5, 2009. Plaintiffs then used their own delay as a basis for

25 seeking to shorten defendants’ time to respond to plaintiffs’ motion, and despite defendants’

26

12 In any event, plaintiffs have not met, and cannot possibly meet, the requirements for

class certification under Rule 23, as they cannot meet the basic requirements of commonality,

27 typicality, or adequacy, among other deficiencies. Accordingly, if the court deems it necessary to

rule on plaintiffs’ motion for class certification at this time, class certification must be denied.

28

31

Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page39 of 40

1 objections the court shortened defendants’ time to respond to just seven days (four court days).13

2 Despite this unreasonably short schedule, defendants have demonstrated herein that plaintiffs

3 have no likelihood of prevailing on the merits and cannot show any likelihood of irreparable harm,

4 and therefore that plaintiffs’ motion for a preliminary injunction must be denied. Nonetheless, in

5 the unlikely event that the court is inclined to grant plaintiffs’ motion, defendants request that

6 they first be given a reasonable opportunity to submit additional arguments and evidence that they

7 have not been able to present to the court in the unreasonably short time that defendants were

8 given to respond.

9

First, there is no urgency to plaintiffs’ motion because any plaintiffs and/or putative class

10 members who might be affected by ABX4 4 are currently empowered to maintain the status quo

11 (and keep their exact same level of benefits) by requesting an administrative hearing. See Carroll

12 Decl., ¶¶ 17, 19 & Exh. B at 7; MPP § 22-073.1. Thus, the plaintiffs and putative class members

13 will be able to maintain the status quo and continue to receive their exact same level of benefits

14 without this court intervening on their behalf. Second, the purported “emergency” to decide the

15 preliminary injunction motion (which, as discussed above, is no emergency at all) was caused by

16 the plaintiffs themselves, who waited more than two months after enactment of the challenged

17 statute to bring these matters to the attention of the court. Third, due process and fundamental

18 fairness require that defendants be given more than a few days to respond to more than 1,100

19 pages of legal arguments and evidence, including more than 50 supporting declarations. These

20 due process concerns are particularly acute in this case because giving defendants a reasonable

21 time to respond will not prejudice the plaintiffs in any way (because they can keep their exact

22 same level of benefits by requesting an administrative hearing).

23

Finally, a compressed briefing schedule – under which plaintiffs had months to prepare

24 their motion and defendants were given a few days to respond – is particularly inappropriate in

25 this case because it involves a challenge to a statute duly enacted by a state. State statutes are

26 presumed constitutional and judicial orders preliminarily enjoining them are disfavored. In

27

13 Plaintiffs also continued to file declarations and corrections during defendants’ seven-

day response period, giving defendants a moving target to shoot at. 28

32

Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

Case4:09-cv-04668-CW Document112 Filed10/13/09 Page40 of 40

1 granting plaintiffs’ request to shorten time, this court has rewarded plaintiffs’ delay and has

2 implicitly sanctioned a litigation-by-ambush approach that turns the traditional presumptions and

3 burdens of litigation on their head. Plaintiffs bear the burden of proving the preliminary

4 injunction factors, overcoming the presumptions favoring the validity of state laws, and

5 establishing the urgent need for such extraordinary judicial relief. If the court grants a

6 preliminary injunction without first allowing defendants a fair opportunity to contest plaintiffs’

7 claims and offer countervailing evidence, the court will essentially be issuing a default judgment,

8 despite defendants’ best efforts to be heard.

9

CONCLUSION

10

The court should deny the motion for a temporary restraining order and/or a preliminary

11 injunction. Plaintiffs have no likelihood of success on the merits because their allegations fail to

12 state a claim as a matter of law. In addition, plaintiffs have failed to make any showing of

13 irreparable harm; the balance of hardships tips strongly in favor of the State; and an injunction

14 would be contrary to the public interest.

15 Dated: October 13, 2009 16 17 18 19 20 21 22 23 SF2009405031
40383908.doc
24

Respectfully Submitted,
EDMUND G. BROWN JR. Attorney General of California KARIN S. SCHWARTZ SUSAN M. CARSON Supervising Deputy Attorneys General
/s/ Gregory D. Brown
JOSHUA N. SONDHEIMER GREGORY D. BROWN MICHAEL A. ZWIBELMAN Deputy Attorneys General Attorneys for Defendants

25

26

27

28 33
Defendants’ Opposition to Plaintiffs’ Motion for TRO and/or Preliminary Injunction (CV 09-4668 CW)

 
 Case4:09-cv-04668-CW Document125 Filed10/14/09 Page1 of 5

1 MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)
2 DEBORAH DORFMAN (CRLSA No. 801060) DISABILITY RIGHTS CALIFORNIA
3 3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010
4 Telephone: (213) 427-8747 Facsimile: (213) 427-8767
5 Melinda.bird@disabilityrightsca.org Debbie. dorfman@disabilityrightsca.org
6 Marilyn. holle@disabilityrightsca.org

7 Attorneys for Named Plaintiffs and the Proposed Class Additional Attorneys for Named Plaintiffs and the
8 Proposed Class on Signature Page

9 STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)
10 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
11 Altshuler Berzon LLP 177 Post Street, Suite 300
12 San Francisco, California 94108 Telephone: (415) 421-7151
13 Facsimile: (415) 362-8064 sberzon@altshulerberzon.com
14 ecervantez@altshulerberzon.com sleyton@altshulerberzon.com
15 pthoreen@altshulerberzon.com

16 Attorneysfor Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU

Local 521, SEIU California State Council, UDW, and CUHW

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

19

20 VL., et ai.,

) Case No.: CV 09-04668 CW

)

21

) EMERGENCY EX PARTE

Plaintiffs

) APPLICATION FOR A TEMPORARY

22

) RESTRAINING ORDER

v.

)

23

) IMMEDIATE HEARING REQUESTED

WAGNER, et ai.,

)

24

)

Defendants

)

25

)

)

26 -----------------------------)

27

28

EMERGENCY EX PARTE APPLICATION FOR A TRO CASE NO. CV 09-04668 JSW

Case4:09-cv-04668-CW Document125 Filed10/14/09 Page2 of 5
EMERGENCY EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER Plaintiffs have just discovered that Defendants intend to take action to implement the IHSS
terminations and reductions that are the subject of a preliminary injunction hearing on October 19,
2009. This Court has ordered expedited briefing and scheduled that hearing for October 19
precisely so that plaintiffs' application can be heard prior to Defendants' mailing notices of action
to 130,000 IHSS recipients informing them that that their services are going to be reduced or
eliminated on November 1, 2009 pursuant to ABX4 4. At 2:34 p.m. today, counsel for State
Defendants informed Plaintiffs that Defendants intend to begin mailing those notices
tomorrow, October 15, 2009. See Leyton Decl., Exhibit D.
In order to maintain the status quo pending adjudication of Plaintiffs' application for a
preliminary injunction, Plaintiffs respectfully request an immediate telephonic hearing or, in the
alternative, the immediate issuance of a temporary restraining order preventing Defendants from
mailing these notices of action until after the hearing on October 19, 2009. Plaintiffs informed
counsel for State Defendants at 2:46 p.m. today that they would be seeking immediate relief from
the Court. Leyton Dec!. ~ 7.
Defendants are well aware that the basis for the expedited schedule in this matter was so
that a preliminary injunction hearing could take place prior to the mailing of these notices of
action. As Plaintiffs wrote in their application:
Plaintiffs seek an order shortening time for the hearing on a preliminary injunction or, in the alternative, request that the Court set a hearing on their request for a TRO, so that relief can be granted before October 19,2009, when Plaintiffs expect Defendants to send notices to over 130,000 low income elderly, blind, or disabled Californians telling them that crucial In-Home Supportive Services ("IHSS") that currently enable them to remain safely in their own homes will be terminated effective November 1, 2009. Docket #19:4-9 (emphasis in original); see also Leyton Decl. ~ 9. 1
1 During a case management conference on October 6,2009, in Martinez v. Schwarzenegger, C09-2306, counsel for Defendants in this matter informed the Court that she would be opposing Plaintiffs' requested for an expedited schedule in this case. The Court suggested that Defendants "propose some sort of alternative ... schedule, and ... address whatever it is that's happening on October 19, and whether anything could be done to mitigate whatever harm plaintiffs are claiming." 10/6/09 Tr. at 6. Counsel for Defendants said she would communicate that to her co-
1 REPLY MEMORANDUM RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document125 Filed10/14/09 Page3 of 5

1

Despite multiple briefs and letters concerning the expedited schedule, Defendants have

2 never informed the Court (or Plaintiffs) that they intended to mail notices of action prior to the

3 hearing date set by the Court. Plaintiffs have repeatedly asked Defendants when they intended to

4 mail these notices of action and have received no answer - until today. Leyton Dec1. ~~ 2-6. As a

5 matter of their duty of candor to the Court, State Defendants clearly had an obligation to inform the

6 Court that they intended to mail notice prior to October 19. Instead, with less than 24 hours'

7 notice, State Defendants intend to disrupt the status quo and cause the very harm that the expedited

8 briefinglhearing schedule was intended to avoid.

9

CONCLUSION

10

For all the foregoing reasons, and based on the briefing in support of Plaintiffs' Application

11 for a Temporary Restraining Order and Preliminary Injunction that have already been filed in this

12 case, Plaintiffs request that this Court hold an immediate telephonic hearing or, in the alternative,

13 immediately issue, without a hearing, an ex parte order enjoining Defendants from mailing notices

14 of action that inform IHS S recipients that their IHS S services will be reduced or terminated

15 pursuant to ABX4 4 until after this Court has the opportunity to rule on Plaintiffs' motion for a

16 preliminary injunction following the hearing scheduled for October 19, 2009.

17 Dated: October 14,2009
18

Respectfully Submitted,

19

By: lsi Melinda Bird

MELINDA BIRD (SBN 102236)

20

MARILYN HOLLE (SBN 61530)

DEBORAH DORFMAN (CRLSA No. 801060)

21

DISABILITY RIGHTS CALIFORNIA

LOS ANGELES REGIONAL OFFICE

22

3580 Wilshire Blvd., Ste. 902

Los Angeles, CA 90010

23

Telephone: (213) 427-8747

Facsimile: (213) 427-8767

24

Melinda. bird@disabilityrightsca.org

Debbie. dorfman@disabilityrightsca.org

25

Marilyn. holle@disabilityrightsca.org

26 counsel in this case. But rather than propose an alternative schedule that would avoid the harm, Defendants now seek simply to sandbag plaintiffs - and the Court - by mailing the Notice of
27 Action prior to the hearing on Plaintiffs' application.

28

2

Case4:09-cv-04668-CW Document125 Filed10/14/09 Page4 of 5

1

SUJATHA JAGADEESH BRANCH (SBN 166259)

2

DISABILITY RIGHTS CALIFORNIA

SACRAMENTO REGIONAL OFFICE

3

100 Howe Ave., Suite 235N

Sacramento, CA 95825

4

Telephone: (916) 488-9950

Facsimile: (916) 488-9960

5

Suj atha .branch@disabilityrightsca .org

6

DARA L. SCHUR (SBN 98638)

FREDERICK P. NISEN (SBN 184089)

7

JUNG PHAM (SBN 251232)

DISABILITY RIGHTS CALIFORNIA

8

BAY AREA REGIONAL OFFICE

1330 Broadway, Suite 500

9

Oakland, CA 94612

Telephone: (510) 267-1200

10

Facsimile: (510) 267-1201

Dara.schur@disabilityrightsca.org

11

Fred .nisen@disabilityrightsca .org

Jung .pham@ disabilityright sca .o rg

12

13

ANN MENASCHE (SBN 74774)

DISABILITY RIGHTS CALIFORNIA

14

SAN DIEGO REGIONAL OFFICE

III Sixth Avenue, Suite 200

15

San Diego, CA 92101

Telephone: (619) 239-7861

16

Facsimile: (619) 239-7906

Ann.menasche@disabilityrightsca. org

17

PAULA PEARLMAN (SBN 109038)

18

SHAWNAPARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

19

919 Albany Street

Los Angeles, CA 90015

20

Telephone: (213) 736-1031

Facsimile: (213) 736-1428

21

Paula.pearlman@lls. edu

Shawna .parks @lls .edu

22

CHARLES WOLFINGER (SBN 63467)

23

LAW OFFICE OF CHARLES WOLFINGER

4655 Cass Street #314

24

San Diego, Ca 92109

Telephone: (858) 272-8115

25

Facsimile: (858) 270-3960

Cw@charleswolfinger.com

26

JANE PERKINS (SBN 104784)

27

NATIONAL HEALTH LAW PROGRAM

211 N. Columbia Street

28

Chapel Hill, NC 27514

3

Case4:09-cv-04668-CW Document125 Filed10/14/09 Page5 of 5

1

Telephone: (919) 968-6308

Facsimile: (919) 968-8855

2

perkins@healthlaw.org

3

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

4

1330 Broadway, Suite 525

Oakland, CA 94612

5

Telephone: (510) 663-1055

Facsimile: (510) 663-1051

6

Attorneysfor Individual Named Plaintiffs VL., David

7

Oster, Willie Beatrice Sheppard, c.R., Dotty Jones,

and the Plaintiff Class

8

9

By: lsi StacevM Levton

10

STEPHEN P. BERZON (SBN 46540)

EVE H. CERVANTEZ (SBN 164709)

11

STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

12

CASEY A. ROBERTS (SBN 253474)

(Admission Pending)

13

Altshuler Berzon LLP

177 Post Street, Suite 300

14

San Francisco, California 94108

Telephone: (415) 421-7151

15

Facsimile: (415) 362-8064

sberzon@altshulerberzon.com

16

ecervantez@altshulerberzon.com

sleyton@altshulerberzon.com

17

pthoreen@altshulerberzon.com

18

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

SEIU Local 52], SEIU California State Council,

19

UDW, and CUHW

20

21

22

23

24

25

26

27

28

4

 
 Case4:09-cv-04668-CW Document158 Filed10/15/09 Page1 of 29

1 MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)
2 DEBORAH DORFMAN (CRLSA No. 801060) DISABILITY RIGHTS CALIFORNIA
3 3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010
4 Telephone: (213) 427-8747 Facsimile: (213) 427-8767
5 Melinda.bird@disabilityrightsca.org Debbie.dorfman@disabilityrightsca.org
6 Marilyn.holle@disabilityrightsca.org

7 Attorneys for Named Plaintiffs and the Proposed Class Additional Attorneys for Named Plaintiffs and the
8 Proposed Class on Signature Page

9 STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)
10 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
11 Altshuler Berzon LLP 177 Post Street, Suite 300
12 San Francisco, California 94108 Telephone: (415) 421-7151
13 Facsimile: (415) 362-8064 sberzon@altshulerberzon.com
14 ecervantez@altshulerberzon.com sleyton@altshulerberzon.com
15 pthoreen@altshulerberzon.com

16 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU

Local 521, SEIU California State Council, UDW, and CUHW

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

19

20 V.L., et al.,

21

Pl

aintiffs

22

v.

23

WAGNER, et al.,

24 Defendants

25

26

) Case No.: CV 09-04668 CW ) ) REPLY IN SUPPORT OF ) PLAINTIFFS’ MOTION FOR ) PRELIMINARY INJUNCTION ) ) DATE: October 19, 2009 ) TIME: 10:00 a.m. ) PLACE: Courtroom 2, 4th Floor ) ) ) )

27

28

REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document158 Filed10/15/09 Page2 of 29

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES..........................................................................................................iii

3 INTRODUCTION........................................................................................................................... 1

4

I. Functional Ranks and Functional Index Scores Were Not Intended to, and

Do Not, Measure Recipients’ Need for IHSS in Order to Remain Safely at

5

Home ....................................................................................................................... 1

6

A. The FI Score Does Not Bear a Reasonable Relationship to an

Individual’s Need for Any Particular IHSS Service....................................2

7

B. The Functional Ranks Do Not Indicate Degree of Need for Service ......... 5

8

II. Defendants’ Notices Are Not Reasonably Calculated to Inform Plaintiffs of

9

Their Appeal Rights ................................................................................................ 7

10

III. Defendants Have Failed to Undermine Plaintiffs’ Showing of Likelihood of

Success on Their Medicaid Claims ......................................................................... 9

11

A. Defendants Violate the Comparability Requirement .................................. 9

12

B. Defendants Violate the Reasonable Standards and Sufficiency

13

Requirements............................................................................................. 11

14

1. Plaintiffs May Enforce the Reasonable Standards and

Sufficiency Requirements Directly Under the Supremacy

15

Clause ............................................................................................ 11

16

2. ABX4 4 Does Not Meet the Medicaid Act’s Reasonableness

Requirement .................................................................................. 13

17

3. Defendants Do Not Address Plaintiffs Sufficiency Argument...... 14

18

IV. Defendants Have Failed to Refute Plaintiffs’ Likelihood of Prevailing on

19

Their ADA and Section 504 Claims......................................................................15

20

A. Defendants Cannot Defeat Plaintiffs’ Olmstead Claim............................. 15

21

B. ABX4 4 Discriminates Based on Type of Disability ................................ 16

22

C. Defendants Concede Plaintiffs’ Methods of Administration Claim.......... 17

23

IV. Because Defendants Have Failed to Rebut the Risk of Irreparable Harm to

Plaintiffs and Others Similarly Situated, the Balance of Equities Strongly

24

Favors an Injunction .............................................................................................. 18

25

A. The Loss of IHSS Benefits is Irreparable Injury Per Se............................18

26

B. Plaintiffs and Others Similarly Situated Do Not Have Access to

Alternative Services that Will Replace the IHSS They Will Lose............19

27

C. The Class of Thousands of Recipients Will Suffer Severe Irreparable

28

Harm .......................................................................................................... 21

i REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document158 Filed10/15/09 Page3 of 29
1 CONCLUSION ............................................................................................................................. 22
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ii REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
CASE NO. CV 09-4668 CW

Case4:09-cv-04668-CW Document158 Filed10/15/09 Page4 of 29

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Allen v. Mansour,

681 F.Supp. 1232 (E.D. Mich. 1986) ................................................................................ 13

4

Angotti v. Rexam, Inc.,

5

2006 WL 1646135 (N.D. Cal. June 14, 2006)................................................................... 18

6 Bank of America v. City & County of San Francisco,

309 F.3d 551 (9th Cir. 2002) ............................................................................................. 12

7

Brantley v. Maxwell-Jolly,

8

__ F.Supp.2d __, 2009 WL 2941519 (N.D. Cal. Sept. 10, 2009) ............................... 15, 18

9 City of New York v. FCC,

486 U.S. 57 (1988) ............................................................................................................12

10

Cultbertson v. Sec'y of Health and Human Services,

11

859 F.2d 319 (4th Cir. 1988) ............................................................................................... 9

12 Geier v. American Honda Motor Co.,

529 U.S. 861 (2000) .......................................................................................................... 12

13

Hern v. Beye,

14

57 F.3d 906 (10th Cir. 1995) ............................................................................................. 13

15 Independent Living Center of Southern California v. Shewry,

543 F.3d 1050 (9th Cir. 2008), cert. denied sub nom., Maxwell-Jolly v. Independent

16

Living Center of Southern California, 129 S.Ct. 2828 (2009) ................................... 11, 12

17 LaForest v. Former Clean Air Holding Co., Inc.,

376 F.3d 48 (3rd Cir. 2004)............................................................................................... 22

18

Lankford v. Sherman,

19

451 F.3d 496 (8th Cir. 2006) ............................................................................................. 12

20 Mandrigues v. World Savings, Inc.,

Civ. No. 07-4497 (N.D. Cal. Jan. 20, 2009), 2009 WL 160213........................................ 22

21

Mitchell v. Johnston,

22

701 F.2d 337 (5th Cir. 1983) ............................................................................................. 14

23 Preterm, Inc. v. Dukakis,

591 F.2d 121 (1st Cir. 1979) ............................................................................................. 13

24

Rosen v. Goetz,

25

410 F.3d 919 (6th Cir. 2005) ............................................................................................. 18

26 Sanchez v. Johnson,

416 F.3d 1051 (9th Cir. 2005) ..................................................................................... 11, 12

27

Sobky v. Smoley,

28

855 F.Supp. 1123 (E.D. Cal. 1994) ................................................................................... 10

iii REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
CASE NO. CV 09-4668 CW

Case4:09-cv-04668-CW Document158 Filed10/15/09 Page5 of 29

1

Vargas v. Trainor,

2

508 F.2d 485 (7th Cir. 1974) ............................................................................................... 8

3 Watson v. Weeks,

436 F.3d 1152 (9th Cir. 2006) ..................................................................................... 11, 12

4

White v. Beal,

5

555 F.2d 1146 (3rd Cir. 1977)........................................................................................... 13

6

STATE CASES

7

Calderon v. Anderson

8

45 Cal.App.4th 607 (1996)................................................................................................ 17

9 Jenkins v. Washington State Department of Social & Health Services,

157 P.3d 388 (Wash. 2007) ............................................................................................... 11

10

Marshall v. McMahon,

11

17 Cal.App.4th 1841 (1993).............................................................................................. 17

12 FEDERAL STATUTES
13 42 C.F.R. § 440.230................................................................................................................. 12, 13
14 42 C.F.R. § 440.240....................................................................................................................... 13
15 42 U.S.C. § 12101 ......................................................................................................................... 21
16 42 U.S.C. § 1396a(a) ......................................................................................................... 11, 13, 14
17 STATE STATUTES
18 Welf. & Inst. Code § 12300........................................................................................................... 14
19 Welf. & Inst. Code § 12309......................................................................................................... 5, 6
20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

In response to Plaintiffs’ Motion for a Preliminary Injunction, Defendants’ central

3 contention is that the functional ranks and composite Functional Index (“FI”) Score are reasonable

4 measures of need. Defendants never squarely address the objections raised by the county officials

5 who administer the IHSS program – that use of the functional index to determine eligibility is

6 arbitrary and defeats the purpose of the program, which is to keep recipients safely at home. They

7 also never acknowledge the absence of a relationship between functional ranks and scores and

8 criticality or need. Nor do Defendants address the way in which the FI Scores of children and

9 individuals with psychiatric and cognitive disabilities are artificially low, which result in

10 disproportionate terminations. Ignoring these defects does not make them go away. They are

11 evidence of the profound irrationality of the use of the functional index as an eligibility standard.

12

Plaintiffs’ opening brief demonstrated convincingly the irreparable harm that will befall

13 130,000 Californians if ABX4 4 is implemented. Defendants quibble over whether some of the

14 named Plaintiffs will be able to find alternative services, but cannot counter Plaintiffs’ showing of

15 this enormous harm. Before turning to irreparable harm, however, Plaintiffs discuss why

16 functional ranks and FI Scores are not reasonable proxies for need (which is relevant to both harm

17 and the merits), and demonstrate that Plaintiffs have a likelihood of success on the merits.

18

I. Functional Ranks and Functional Index Scores Were Not Intended to, and Do Not,

19

Measure Recipients’ Need for IHSS in Order to Remain Safely at Home.

20

Defendants’ arguments, with respect to both Plaintiffs’ likelihood of success on the merits

21 and irreparable harm, are premised on one central claim, which is belied by the evidence: that

22 ABX4 4 eliminates and reduces IHSS services on the basis of recipients’ need. See, e.g., Opp. 1-2

23 (arguing comparability, sufficiency, reasonable standards, ADA, and irreparable harm claims fail

24 because functional ranks and FI Scores measure need). If Defendants are wrong about this central

25 point (and they are), their opposition to a preliminary injunction entirely collapses.

26

The extensive record evidence shows that county social workers conduct individualized

27 assessments of applicants’ eligibility for IHSS services, that they may not authorize services unless

28

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1 “the recipient would not be able to remain safely in his/her own home without IHSS,” and that they

2 are required to go beyond functional ranks to determine the level of assistance needed by IHSS

3 recipients. Pl. Br. 5-6.

4

A. The FI Score Does Not Bear a Reasonable Relationship to an Individual’s Need for

5

Any Particular IHSS Service.

6

Defendants fail to refute Plaintiffs’ showing that the FI Score, upon which Plaintiffs’ continued

7 eligibility for IHSS now depends, is not a reasonable measure of any particular recipient’s need for

8 any specific IHSS service, because, as the declarations establish, it does not measure criticality of

9 services, and cannot serve as a reasonable proxy for what would happen to a recipient if services

10 were eliminated. Pl. Br. at pp. 8-13; see also, e.g., Gardner Supp. Decl. ¶8, Kessler Decl. ¶ 6.

11

• The FI Score is a weighted average of functional ranks for 11 IHSS tasks. It does not take

12

into account whether any one or several of those tasks are critical to an IHSS recipient’s

13

ability to live safely at home; it looks only at how many services the recipient needs, and

14

the statewide average number of hours needed to perform those tasks. Individuals who

15

need fewer discrete services, or services that require fewer hours, will necessarily have

16

lower FI Scores. Pl. Br. 12.1

17

• The FI Score does not include some IHSS tasks such as medication management and

18

accompaniment to medical appointments that are medically necessary for many IHSS

19

recipients. Pl. Br. 12.

20

• The functional ranks that are summed and averaged to arrive at the FI Score are themselves

21

not reliable indicators of need. Pl. Br. 8-10, infra at 5-7.

22

• The weights used have no external validity. Pl. Br. 12; see also Benjamin Decl. ¶12.

23

• The FI Scores of children are particularly meaningless because children automatically

___________________________________

24

1 It is as if the state is treating a person who has appendicitis and symptoms of a heart attack

as “more needy” than a person who only has appendicitis, because one person needs two services 25 (appendectomy and heart stent) while the other person needs only one service (appendectomy) to

26

live. If you take the “average” number of surgeries needed, you might determine (as the state has with respect to the FI Score) that the person with appendicitis but no heart trouble is “less needy”

27 than the person with both. But the person with appendicitis needs the appendectomy to live just as surely as the person who needs two separate surgeries.

28

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1

receive a rank of 1 for many services. Pl. Br. 12-13.2

2

• Individuals with mental impairments are disproportionately likely to have FI Scores below

3

2.0 and thus be terminated from all services. Pl. Br. 13.

4

For example, Plaintiff David Oster has functional ranks of 5 for housework, laundry, and

5 shopping; that is, his social worker has determined he is incapable of performing these tasks, even

6 with substantial assistance. Oster Decl. ¶11. He also has a functional rank of 3 for meal

7 preparation, which means that he needs some human assistance to safely prepare meals. Id. But

8 because he does not need other services not typically needed by person with mental disabilities

9 (such as assistance with mobility, toileting and eating) he will be denied services that he cannot

10 safely perform by himself, and without which he cannot live independently. See Medina Decl.

11 ¶¶ 3-4 (Oster’s apartment was full of trash and rotten food before he started receiving IHSS). Thus

12 it is not true that “[p]eople who demonstrate the same level of need will receive the same services.”

13 Opp. 14. Plaintiff Oster, with a rank of 5 for housework, laundry, and shopping, will no longer

14 receive IHSS whereas another individual who has similar ranks for those tasks will continue to

15 receive those services if that person also needs assistance with, for example, mobility and toileting. 16 See also Supp. Gardner Decl. ¶ 10 (noting “arbitrary nature” of Oster’s FI Score).3

17

Defendants’ assertion that “[t]he FI Score provides a reasonable measure of each recipient’s

18 individual need for service,” Opp. at p. 4,4 falsely equates “relative dependence on human

19 assistance for IHSS tasks” (i.e. the number of services or hours needed) with need, without taking

20

___________________________________
2 Defendants’ declarant Janet Nicholson incorrectly contends that children above age 3 may

21 receive a score above 1 for certain domestic and related services, such as meal preparation and clean up. Nicholson Decl. ¶9. However, CDSS training materials state that children up to the age

22 of 17 should be assessed with a functional rank of 1 for meal preparation and clean up. Nicco

Supp. Decl. Ex. A at 1.

23

3 After a recent psychiatric hospitalization, Mr. Oster’s social worker authorized six

24 additional hours per month for accompaniment to medical appointments because his psychiatric condition had worsened. However, his FI Score did not change (because accompaniment to

25 medical appointments is not included in the FI Score), and remains below 2.0. Supp. Gardner

Decl. ¶10.

26

4 See, e.g. Carroll Decl. Ex. A at 13 (“Since the FI Score is a measurement of the client’s

27 relative dependence on human assistance for selected IHSS tasks, there should be a correlation between each client’s FI Score and his FI Hours.”).

28

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1 into account the fact that even one or two or three services can be critical to maintaining an

2 individual safely in his or her own home. See Supp. Gardner Decl. ¶8.

3

Defendants – who have access to all the data on IHSS recipients whose services will be

4 eliminated – have also failed to rebut Plaintiffs’ evidence that the use of the FI score has a

5 particularly detrimental effect upon people with psychiatric and cognitive disabilities. See Opp. 26.

6 Defendants have presented no answer to Plaintiffs’ declarations from both experts and county

7 officials that individuals with mental impairments are disproportionately likely to have FI Scores 8 below the eligibility threshold. Pl. Br. 13.5

9

Defendants’ reliance on the declaration of Ernest Cowles to support the proposition that the

10 FI Score is a reasonable measure of individual need is misplaced.6 Not only does Dr. Cowles

11 provide no support for his opinion, but the opinion is based on a non-sequitur. Benjamin Decl.

12 ¶12. He states that he recalculated the county weights (originally calculated in 1988) in June

13 2009, and “found that the number of individuals that were ranked less than 2.0 did not change

14 substantially from 1988. Therefore, the FI Score is a reasonable measure because it has been

15 consistent over time.” Cowles Decl. ¶3. But consistency over time has no bearing on accuracy:

16 The FI Score could be consistently wrong. Benjamin Decl. ¶12. Nor is the Cowles declaration

17 correct that the FI Score takes criticality into account. See supra at 2-4; Benjamin Decl. ¶14

18 (noting that fact that FI Score includes services that are critical to certain people, such as

19

___________________________________
5 For example, Joyce McHenry’s severe depression and anxiety disorder mean that she

20 requires verbal assistance in order to dress, bathe and groom, and prepare meals, and has functional ranks of 2 for those services. McHenry Decl. ¶ 2; Kline Supp. Decl., Ex. B. She has been assessed

21 a 3 for housework and shopping—she can do some of this work herself, but often forgets, or cannot

muster the energy. Id. ¶ 5. These relatively “low” functional ranks, combined with her ability to 22 move, toilet, and eat independently, have resulted in an FI Score of 1.64. Medication management

23

and accompaniment to medical appointments are extremely important for Ms. McHenry. Id. at ¶4, 6. But these IHSS service are not included in the FI Score. Furthermore, Ms. McHenry is not a

24 regional center client and does not qualify for protective supervision. McHenry Supp. Decl. ¶¶2-4; Kline Supp. Decl., Ex. B. Ms. McHenry has been hospitalized before due to her depression and

25 suicide attempt, and is likely to require such services again in the absence of IHSS. McHenry

Decl. ¶ 7. Other individuals with mental disabilities similarly are not authorized for protective 26 supervision and do not receive regional center services. See Supp. Aho Decl. ¶ 2; Love Decl. ¶ 7.

27

6 Although Dr. Cowles has a Ph.D., it is in criminology. Cowles Decl. Ex. A; see also Pl.

Obj. Def. Evid.

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1 respiration, does not make use of an average any less problematic for people who have critical

2 need for some, but not a great number, of services); see also Gardner Supp. Decl. ¶¶8-9.

3

Indeed, the final paragraph of the Cowles Declaration and the attached “Summary

4 Statistics” illustrate that the FI Score is not a reasonable measure of need. See Benjamin Decl. ¶16.

5 According to the Declaration, if the 2009 weighted average (rather than the 1988 weighted

6 average) were used to determine FI Scores, an additional 1,500 individuals would lose IHSS

7 eligibility due to ABX4 4. Cowles Decl. ¶6. In other words, a change to the complex formula,

8 based on the average hours assigned by 58 counties throughout the state to over 400,000 recipients

9 for 11 tasks, changes the eligibility of specific individuals for those services. Benjamin Decl. ¶16.

10 But a change in mathematical formula does not change those individuals’ specific needs. Id.

11

Independent researchers have concluded that the FI Score is not a rational measure of need.

12 A recent study by the UCLA Center for Health Policy Research found that “[t]he assumption made

13 by the state budget cuts that an FIS score below 2 represents someone who needs fewer services is 14 inaccurate.” Benjamin Decl., Ex. B at 24.7 Report co-author Dr. A.E. Benjamin, a professor of

15 Social Welfare at UCLA and expert in home care services, explains that, because the FI Score is an

16 average of 11 different tasks, those who need a larger number of services will generally receive

17 higher FI Scores. “The FI Score does not measure, and says nothing about, the nature or intensity

18 of an individual’s need for any particular service, or the risk associated with withdrawing that

19 assistance.” Benjamin Decl. ¶24. Dr. Benjamin concludes, “the Functional Index Score and

20 functional rankings are not reasonable measures of need for IHSS services.” Benjamin Decl. ¶22.

21

B. The Functional Ranks Do Not Indicate Degree of Need for Services.

22

Plaintiffs’ opening brief explained that functional ranks 2-5 do not measure whether a

23 recipient needs a particular service, but simply characterize the type or degree of assistance needed.

24 Defendants’ own statutes and regulations show that any recipient with a functional rank of 2 or

25 higher cannot perform the function safely without assistance. Welf. & Inst. Code § 12309(d); MPP

26

___________________________________

27

7 See also Barnes, et al., Kline Decl. Ex. D at 68 (inclusion of household help in functional

index “probably contributes to the inconsistency with which the scale is applied”).

28

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1 § 30-763.1. It is not true that some individuals are authorized for IHSS services only to “improve

2 their quality of life.” Opp. 4; Nicco Supp. Decl. ¶9. Moreover, Plaintiffs showed that the

3 differences among functional ranks of 2, 3, and 4 are difficult to discern and cannot be determined

4 with precision, and that recipients with cognitive or psychiatric disabilities may correctly be

5 assessed with a functional rank of “2” even though assistance is critical to them. Pl. Br. 8-9.

6

Defendants have not refuted this showing. Their argument that social workers have

7 received training in how to conduct assessments (Opp. 4) is to no avail, as Plaintiffs’ argument

8 does not rest on inaccuracy of assessments, but rests instead on the use of the rankings for

9 inappropriate purposes. Moreover, Defendants fail to note that this training is focused almost

10 entirely on the hourly task guidelines and on the need for accurate and uniform hours authorization,

11 rather than accurate and uniform assessment of functional ranks, which have heretofore never been

12 used to determine eligibility for services. See Collins Supp. Decl. ¶3; Kaljian Supp. Decl. ¶2;

13 Kessler Decl. ¶ 5-10. Notably, social workers are required to document exceptions to the hourly

14 task guidelines, but these exceptions are nowhere captured in the functional ranks the State will use

15 to determine eligibility absent a preliminary injunction. Benjamin Decl. ¶28.

16

Defendants also argue that the ranks have been evaluated and validated by state and county

17 review teams, but provide no competent evidence of this. Opp. 4. The only support they cite is

18 Paragraph 13 of the Carroll Declaration. See Pl. Obj. Def. Evid. None of the studies supposedly

19 validating the functional ranks is attached to her declaration; instead, she includes only studies

20 from 1988 and 1989 when the system was first enacted. Dr. Benjamin is unaware of any such

21 recent study. Benjamin Decl. ¶29.8

22

___________________________________
8 There are many reasons to distrust statements in the Carroll Declaration not supported by

23 accompanying evidence. For example, she blatantly misstates the statutory definition for the

functional rank of 3, stating that an individual can be ranked a 3 if that individual “requires 24 minimal human assistance with the tasks,” when the statute, and the documents she attaches to her

25

declaration, describe rank 3 as indicating a need for “some” human assistance. Welf. & Inst. Code § 12309(d)(3); Carroll Decl. Ex. A & B. Ms. Carroll also states that “ABX4 4 mandates that

26 Domestic and Related Services will be authorized only to those individuals with a substantial need for that specific service based on a Rank of at least 4 in that functional area.” A rank of 4 does not

27 mean that a person has “substantial need” for that service, but, rather, that a person needs

“substantial assistance” to perform that task. Welf. & Inst. Code § 12309(d)(4). As Plaintiffs have 28

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1

Moreover, the recent UCLA Center for Health Policy Research study indicates that there

2 are unexplained differences between the functional rankings in different counties: In San Diego

3 County, an estimated one-third of all elderly IHSS recipients will lose one or more domestic

4 service because of a functional rank below 4, whereas in Santa Clara County, only one-tenth of

5 elderly recipients will lose eligibility. Benjamin Decl., Ex. B at 12, ¶26. The only other published

6 study of which Plaintiffs are aware analyzing the reliability of the functional ranks, which was

7 authored by the Institute for Social Research (with which Dr. Cowles is affiliated), found the

8 following:

9

• Mental functioning is weakly related to functional level. Kline Decl., Ex. D at 8, 16.

10

• Use of time-task guidelines, especially for domestic or related services, lessens the

11

importance to social workers of making precise distinctions in functional ranks. Id. at 9,

12

17.

13

• Distinctions among functional ranks on household tasks are difficult to draw. Id. at 10, 18.

14

• Demands of particular home environments (a required factor in assessments) vary

15

independently of client functioning. Id. at 17.

16 II. Defendants’ Notices Are Not Reasonably Calculated to Inform Plaintiffs of Their Appeal

17

Rights.

18

The notices Defendants plan to mail to IHSS recipients do not comport with due process

19 and will not prevent irreparable harm by giving recipients sufficient notice to request a fair hearing

20 within ten days of receipt so that they can continue to receive IHSS services (“aid paid pending”).

21 It is well settled that where recipients lack the capacity to understand and act upon a notice of

22 benefits termination and corresponding appeal rights, and state officials are or should be aware that

23 recipients lack such capacity, the notices are defective and violate due process. See Pl. Br. 21. As

24 Defendants acknowledge, the notice must be drafted “in terms comprehensible to the client.” Opp.

25 9. Many class members, because of their disabilities and/or limited English, will be unable to

26 understand and act upon the highly technical and complicated English-only, single-spaced, notice

27 described, a person may need only “some” human assistance to perform a task, but still have a “substantial need” for that service. See Pl. Obj. Def. Evid.
28

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1 and “stuffer” that explain how the functional index score is calculated. See Carroll Decl., Ex. B.9

2

Both the notice and “stuffer” will be incomprehensible to most IHSS recipients. Thomson

3 Decl. ¶ 12; see also Padilla Decl., ¶ 8. Each is esoteric and highly technical, and they are not

4 readable or accessible to IHSS recipients. Id. The complicated description of the formula used to

5 calculate the FI Score requires the recipient to have “knowledge or aptitude beyond that possessed

6 by the average high school graduate.” Id. It is replete with perplexing abbreviations. And before

7 now, IHSS recipients have never been told what their FI Score or rankings are, Pl. Br. 11, n. 11, 12,

8 making the notice all the more confusing. And without understanding the stuffer, IHSS recipients

9 will be unable to make an informed decision whether to appeal.

10

Further, elderly or disabled individuals may be assumed to “be unable or disinclined,

11 because of physical handicaps and, in the case of the aged, mental handicaps as well, to take the

12 necessary affirmative action” on the notice. Vargas v. Trainor, 508 F.2d 485, 489-90 (7th Cir.

13 1974) (notice that required elderly and disabled individuals to meet with case managers or appeal

14 without knowing basis of termination violated due process). See also Thomson Decl., ¶ 12; Ackel

15 Decl. ¶¶ 5(a), (b), 7; Williams Decl. ¶10; K. Good Decl.¶¶7-8; Kaljian Supp. Decl. ¶9. Many

16 members of the Plaintiff Class will be unable to comply with the 10-day appeal deadlines in order

17 to receive aid paid pending the outcome of their appeals. Ackel Decl., ¶ 7; Williams Decl. ¶18; S.

18 Good Decl.¶6; Kaljian Supp. Decl. ¶9.

19

Other individuals may not appeal because they will not understand that they could have a

20 “home hearing,” and mistakenly believe they cannot challenge the loss of services because they

21 cannot leave their homes due to their disabilities. Ackel Decl. ¶ 5(c). Some will not appeal

22 because they are afraid that they will lose further services if they request a hearing to challenge the

23 cuts. Id. ¶5(d). Some will not appeal simply because they do not or cannot open and read their

24

___________________________________

25

9 The exact contours of the Notice to be sent have been a moving target. The Notice

26

attached to ACL 09-56 (Oct. 1, 2009), RJN Ex. A, is different than the apparently final notice attached to the Carroll Declaration, in that the draft contains a 22-page stuffer while the final

27 contains a one-page stuffer. (And both differ from the draft notice attached to the draft ACL issued on Sept. 17-18, 2009; see RJN, Ex. B.)
28

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1 mail until someone is there to assist them. Id. ¶5(e); Williams Decl. ¶12-14; S. Good Decl ¶9.10

2

Elderly or disabled IHSS recipients who do not speak English will certainly not understand

3 the notice, which is exclusively in English except for one line in Spanish that states, “If you do not

4 understand the information or notice, contact the social worker in your county. The county should

5 provide you with an interpretation service free of charge.” Carroll Decl., Ex. B; Taggares Supp.

6 Decl. ¶4. This does not even warn Spanish-speaking recipients that this is an important notice

7 regarding termination or reduction of benefits. Moreover, there are no advisements for other non-

8 English speakers informing them of their right to a free translation of the notice and stuffer.

9 Carroll Decl., Ex. B. Yet IHSS data indicate that 15% of IHSS recipients are monolingual Spanish

10 speakers and 34% of IHSS recipients are monolingual in a language other than English or Spanish.

11 Rich Supp. Decl., Ex. A. Consequently, an extra burden is placed on non-English speaking IHSS

12 recipients (almost half of all IHSS recipients) to (1) realize the importance of the notice; and (2)

13 find someone to translate it. It is not reasonable to expect these individuals to obtain translation of

14 the notice in sufficient time to act upon it within the 10-day aid paid pending timeframe.

15

Finally, the notice and stuffer are not available in alternate formats (i.e. large print, Braille,

16 tape), or in more simple language that might be needed by some recipients with disabilities. The

17 notice and stuffer thus violate the ADA and Section 504. See Pl. Br. 23, n. 20.

18 III. Defendants Have Failed to Undermine Plaintiffs’ Showing of Likelihood of Success on

19

Their Medicaid Claims.

20

A.

Defendants Violate the Comparability Requirement.

21

The parties are in agreement regarding the basic requirements of the Medicaid Act’s

22 comparability requirement, 42 U.S.C. § 1396a(a)(10)(B). In Defendants’ words, comparability is

23 violated “when some recipients are treated differently from other recipients where each has the

___________________________________

24

10 There is no merit to Defendants’ contention that IHSS recipients who are incompetent to

understand and act upon the notices will have their due process rights protected because notices 25 will be mailed to authorized representatives of these individuals. Opp. 10. There is no evidence that

26

all, or even most, incompetent IHSS recipients have authorized representatives. And non-legal representatives or family members have no legal duty to act on behalf of the IHSS recipient

27 receiving the notice. See Cultbertson v. Sec’y Health & Human Servs., 859 F. 2d 319, 324 (4th Cir. 1988).

28

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1 same level of need.” Opp. 12:19-21.11 In this case, the use of the flawed FI Scores and functional

2 ranks to distinguish between those who receive IHSS services and those who do not violates the

3 comparability requirement, because neither is a reasonable measure of the criticality of any

4 particular service, or a proxy for the effects of eliminating that service. As previously discussed,

5 an individual with a cognitive or psychiatric disability may need the assistance of an IHSS provider

6 just as much as one with a physical disability, but because of the way that the functional ranks and

7 FI scores are calculated, will lose services. See Pl. Br. 9-10, 12-13. Similarly, a child with severe

8 disabilities requiring substantial physical assistance may be cut off while an adult requiring similar

9 assistance will not be, simply based on automatic low ranks for children. See, e.g., Collins Decl. 10 ¶¶ 21, 25; Nicco Decl. ¶ 32; supra at 2-3.12 As in Sobky v. Smoley, 855 F.Supp. 1123, 1139-40

11 (E.D. Cal. 1994), where the availability of methadone treatment varied by county in an arbitrary

12 way and thus violated the comparability requirement, here the availability of IHSS is limited by a

13 similarly irrelevant standard – recipients’ FI scores and rankings – which do not measure the

14 criticality of services or the individual’s ability to live safely at home without the services.

15

Defendants fundamentally misapprehend the nature of Plaintiffs’ comparability claim when

16 they argue that “plaintiffs are essentially contending that because recipients qualified for a certain

17 level of services at one point, a state may never amend the eligibility requirements as this would 18 somehow violate the comparability requirement.” Opp. 13.13 Not so. Plaintiffs do not contest that

19 ___________________________________

20

11 Defendants note that comparability “may be waived” as to the State Plan Option (Opp. 12 n.3), but do not, and cannot, contend that comparability was in fact waived here.

21

12 Defendants cite 42 C.F.R. § 440.230(c), suggesting that the comparability requirement

applies only to distinctions based on “diagnosis, type of illness, or condition.” The cited regulation 22 does not address comparability, but rather prohibits states from “arbitrarily deny[ing] or reduc[ing]

23

the amount, duration, or scope” of certain mandatory Medicaid programs. As defendants elsewhere correct concede, the comparability provision requires, more generally, that individuals

24 with like needs receive like services. See, e.g., Opp. 13:18-19. 13 Further, Defendants point out that a different Medicaid regulation (not the comparability
25 regulation set forth in 42 C.F.R. § 440.240), permits states to “place appropriate limits on a service

26

based on such criteria as medical necessity or on utilization control procedures.” 42 C.F.R. § 440.230(d). This has no relevance here, both because the regulation is not part of the

27 comparability law, and because FI Scores and ranks do not differentiate between recipients on the basis of medical necessity.

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1 Defendants could impose limitations on services without violating comparability. But where, as

2 here, the limitations at issue result in individuals with similar needs receiving critically different

3 levels of services, comparability is violated.

4

Defendants’ attempt to distinguish Jenkins v. Washington State Dep’t Soc. & Health Servs.,

5 157 P.3d 388 (Wash. 2007), is unpersuasive. As in Jenkins, here IHSS recipients have been

6 assessed through an individualized process to determine their needs. As in Jenkins, the State has

7 subsequently imposed a categorical formula to eliminate services, regardless of how or whether

8 that formula adequately reflects individuals’ need for services. And as in Jenkins, the State’s

9 introduction of an across-the-board standard that “presumes certain needs of the recipient are met

10 without an individualized determination” (id. at 393-94), violates the comparability requirement.

11

B. Defendants Violate the Reasonable Standards and Sufficiency Requirements.

12

1. Plaintiffs May Enforce the Reasonable Standards and Sufficiency

13

Requirements Directly Under the Supremacy Clause.

14

Defendants assert that Plaintiffs’ claims under the Medicaid Act’s reasonable standards (42

15 U.S.C. § 1396a(a)(17)) and sufficiency (42 C.F.R. § 440.230(b)) requirements must fail because

16 these provisions are not privately enforceable. But Plaintiffs assert these claims directly under the

17 Supremacy Clause, not under 42 U.S.C. §1983. First Amended Compl. ¶¶ 212-19. Watson v.

18 Weeks, 436 F.3d 1152 (9th Cir. 2006), relied on by Defendants, is therefore irrelevant. In that case,

19 the court held that Section 1396a(a)(17) does not create a Section 1983 private right of action. But

20 in Independent Living Ctr. S. Cal. v. Shewry, 543 F.3d 1050, 1056-57 (9th Cir. 2008), cert. denied,

21 129 S.Ct. 2828 (2009), the Ninth Circuit held that such conclusion does not bar a request for

22 injunctive relief under the Supremacy Clause for violations of the Medicaid Act.

23

Defendants assert that Independent Living Center is distinguishable because it involved a

24 different provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A). Opp. 16-17. In fact, the

25 cases are directly analogous. In Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005), the Ninth

26 Circuit had held that the Medicaid Act provision at issue in Independent Living Center did not

27 create a right enforceable under Section 1983. But that was irrelevant to Independent Living

28 Center’s conclusion regarding the availability of injunctive relief under the Supremacy Clause.

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1 Instead, “[t]he Supreme Court has repeatedly entertained claims for injunctive relief based on

2 federal preemption, without requiring that the standards for bringing suit under § 1983 be met . . .”;

3 “a plaintiff seeking injunctive relief under the Supremacy Clause on the basis of federal preemption

4 need not assert a federally created ‘right,’ in the sense that term has been recently used in suits

5 brought under § 1983.” 543 F.3d at 1055 & 1058.

6

The conclusion in Watson regarding Section 1983 is just as irrelevant with respect to the

7 Supremacy Clause enforceability of Section 1396a(a)(17) as was Sanchez with respect to 8 Supremacy Clause enforcement of Section 1396a(a)(30)(A).14 Although the Ninth Circuit has not

9 yet considered Section 1396a(a)(17) in the context of a Supremacy Clause challenge (Independent

10 Living Center would dictate the outcome), the Eighth Circuit in Lankford v. Sherman, 451 F.3d

11 496, 509-13 (8th Cir. 2006), addressed this precise issue, holding Section 1396a(a)(17) was not 12 enforceable under Section 1983 but that the claim may be brought under the Supremacy Clause.15

13

Defendants are also wrong, and miss the point, with respect to Plaintiffs’ sufficiency claim,

14 when they argue that private rights of action to enforce federal law can only be created by federal

15 statute, not regulations. See Independent Living Ctr. of S. Cal., 543 F.3d at 1059 (“A party may

16 bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal

17 law at issue does not create a private right of action.” (quotation marks omitted)). Defendants

18 cannot dispute the preemptive force of the regulation under the Supremacy Clause. See, e.g., Geier

19 v. American Honda Motor Co., 529 U.S. 861, 884-86 (2000) (state law preempted where it poses

20 obstacle to objective of federal regulation); City of New York v. FCC, 486 U.S. 57, 63-64 (1988)

21 (Supremacy Clause “encompasses both federal statutes themselves and federal regulations that are

22 properly adopted in accordance with statutory authority.”); cf. Bank of Am. v. City & County of San

23

___________________________________
14 Just as Watson opined that the statute at issue was “too vague and amorphous for judicial

24 enforcement” (436 F.3d at 1162), the Court in Sanchez held that the “‘broad and diffuse’ language of the statute [was not] amenable to judicial remedy” (416 F.3d at 1060). This did not prevent the

25 court in Independent Living Center from holding that such claims are enforceable under the

Supremacy Clause.

26

15 As Defendants’ footnote 6 indicates, their real issue is with the Ninth Circuit’s holding in

27 Independent Living Center. But the Supreme Court has already declined to review that decision, 129 S.Ct. 2828, and Defendants have no grounds to ask the Court to disregard binding circuit law.

28

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1 Francisco, 309 F.3d 551, 560-61 (9th Cir. 2002) (field preemption by regulation).

2

2. ABX4 4 Does Not Meet the Medicaid Act’s Reasonableness Requirement.

3

As with the comparability analysis, the parties do not differ regarding the applicable law,

4 but merely in how that law applies to the facts of this case. Defendants repeatedly claim that

5 restricting or eliminating IHSS based on FI Scores or functional ranks allows for distinctions based

6 on “need,” but, as discussed extensively above and in our opening brief, this is not true: A

7 functional rank of 2 or above for any particular task indicates that the recipient cannot live safely in

8 his or her home without assistance for that task, and signals the nature of that assistance (i.e. verbal

9 or physical), but not the number of hours needed or the criticality of the assistance; the FI Score

10 indicates only the number of services/hours needed (if that), and not whether or not a particular

11 service is critical, or whether a person can survive at home without that assistance.

12

As in Lankford, here the State has used unreasonable standards for determining eligibility

13 for IHSS services in order to limit access to those services, with nonsensical results. See supra at 14 1-7.16 And as in Allen v. Mansour, 681 F. Supp. 1232, 1234 (E.D. Mich. 1986), the State relies on

15 a measurement that is not supported by expert opinion or scientific data. See Benjamin Decl. ¶¶15,

16 21-22; Gardner Decl. ¶¶8-9. Further, as in White v. Beal, 555 F.2d 1146, 1151-52 (3d Cir. 1977),

17 Hern v. Beye, 57 F.3d 906, 910 (10th Cir. 1995), and Preterm, Inc. v. Dukakis, 591 F.2d 121, 126

18 (1st Cir. 1979), the terminations and reductions based on the FI Score and functional ranks

19 discriminate against people who have different types of diagnosis or conditions (here, mental v.

20 physical disabilities) yet the same need for services. See supra at 1-7, Pl. Br. at 10-13, 32-34.

21

While Defendants point to various mechanisms such as carve-out exceptions that

22 supposedly ameliorate the arbitrary nature of the FI scoring system, they do not cure the violation

23 of the reasonable standards requirement. For example, Defendants have presented no evidence that

24 ___________________________________ 16 For example, two blind women in Sonoma County are both authorized to receive
25 domestic and related services as well as accompaniment to medical services. Kaljian Supp. Decl. ¶

26

10. Social workers authorized these services because they were necessary for recipients to live safely in their homes. But because of the vagaries of the FI Scoring system, one of these women

27 has an FI Score of 1.75 and will be terminated from IHSS, while the other (with very similar needs) has an FI Score of 2.18, and will not be terminated.

28

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1 all of the IHSS recipients fall within an exempted category. Nor does the existence of the federally

2 required fair hearing process, or theoretically available alternative services, cure the legal violation

3 caused by the denial of IHSS based on unreasonable standards.

4

3. Defendants Do Not Address Plaintiffs’ Sufficiency Argument.

5

Defendants entirely fail to address Plaintiffs’ claim that reducing domestic and related

6 services for 97,000 IHSS recipients, while leaving other IHSS services in place for these recipients,

7 will violate federal requirements that the remaining services “be sufficient in amount, duration, and

8 scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b). Plaintiffs’ sufficiency argument

9 is directed only at the reductions to domestic and related services – a critical point Defendants

10 completely ignore. See Pl. Br. 28:4-19; First Amended Compl. at 37 & ¶¶ 212-15 (asserted on

11 behalf of the “Loss of Domestic and Related Services Subclass Only”).

12

As a team of UCLA researchers recently noted, “domestic services are in some respects the

13 ‘glue’ that permits older people to stay in their homes. Shopping and meal preparation are

14 especially essential, since they influence how much and how well older people eat.” Benjamin

15 Decl. Ex. B at 13. “Weight loss in elders is often the reason that they end up being placed into

16 nursing homes. These domestic and related services are vital.” Id. ¶ 30.

17

Defendants fail to explain how, with the elimination of domestic and related services, the

18 remaining IHSS services will still fulfill the purpose of the program: to enable recipients to safely

19 remain in their homes. Welf. & Inst. Code § 12300(a). Because currently authorized services have

20 already been deemed necessary to permit recipients to remain safely in their homes, MPP § 30-

21 761.1; Crockett Decl. ¶ 9, the elimination of these services cannot possibly leave affected

22 individuals with a level of service sufficient to achieve the purpose of the program. As named

23 plaintiff Dottie Jones explains, without these services “I will not be able to eat regular nutritious

24 meals as I am presently, and my house will quickly become inhabitable for me since I cannot clean

25 it.” Supp. Jones Decl. ¶ 7; see also Collins Decl. ¶¶ 28-30, Guerra Decl. ¶¶ 12-15 (providing

26 additional examples of individuals who, with the loss of domestic and related services, will suffer

27 substantial harm and potentially be forced their homes).

28

Defendants’ characterization notwithstanding, this case is directly analogous to Mitchell v.

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1 Johnston, 701 F.2d 337 (5th Cir. 1983). Mitchell involved Texas’ elimination of several previously

2 available services (such as topical fluoride treatments and porcelain crowns) from its preventive

3 dental program for children. The court analyzed the impact of these reductions on the ability of the

4 program to fulfill its goal of preventive dental care and concluded that they undermined that goal.

5 Here the sufficiency violation is even clearer, since the eliminated services at issue are, by

6 Defendants’ own definition, necessary components to achieve the purpose of the program.

7 IV. Defendants Have Failed to Refute Plaintiffs’ Likelihood of Prevailing on Their ADA and

8

Section 504 Claims.

9

A. Defendants Cannot Defeat Plaintiffs’ Olmstead Claim.

10

Defendants argue that Plaintiffs’ Olmstead claim fails because Plaintiffs have allegedly not

11 shown that “any named plaintiff (or any other recipient) is likely to be significantly harmed by the

12 reduction in IHSS, much less end up being admitted to a skilled nursing facility or other institution

13 as a result of ABX4 4.” Opp 23:20-21, 26:20-23. However, as recently reaffirmed by this Court in

14 Brantley, “the risk of institutionalization is sufficient to demonstrate a violation of Title II [of the

15 ADA].” Brantley v. Maxwell-Jolly, __ F.Supp.2d __, 2009 WL 2941519, at *7 (N.D. Cal. Sept. 10,

16 2009) (emphasis in original); see also Pl. Br. 30:24-31:13, 31:18-26. And Plaintiffs have submitted

17 substantial evidence – unrefuted by Defendants – from experts, county officials, service providers,

18 and individual recipients and providers showing that class members do face precisely such a risk of

19 institutional placement in a hospital or care facility. Pl. Br. 2:18-23, 5:26-6:3, 17:7-18:11 & n. 17,

20 31:14-17; see also Jones Decl. ¶¶ 15-17; Love Decl. ¶14; Nicco Supp. Decl. ¶¶9-10; Brent Decl., ¶ 21 9; Brandt Decl., ¶ 9; Gardner Supp. Decl. ¶10.17 That risk is especially heightened for individuals

22 with cognitive or psychiatric disabilities, who comprise a large portion of the class. See Gardner

23 Decl., Docket No. 70, ¶¶ 30-33; Castro Decl. ¶10; Crockett Decl. ¶16; Baran Decl. ¶¶12, 24; Nicco

24 Decl. ¶¶33-34; Navarro Decl. ¶¶15-16.

25 ___________________________________

26

17 To the extent Defendants mean to suggest that this Court should consider only the risk of institutionalization faced by the named Plaintiffs, and not by other class members, they are

27 mistaken. Because Defendants have conceded that class certification is not necessary, this case must be analyzed as if the Court has a certified class in front of it.

28

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1

Next, Defendants blithely assert that Plaintiffs are not at risk of institutionalization because

2 they are eligible for regional center services, have family members who theoretically could fill the

3 void left by loss of IHSS, or could secure unspecified community services to meet their needs.

4 Opp. 24:4-6; 24:10-12; 24:22-23; 25:12; 25:27-26:3, 26:13-19. Similar arguments were recently

5 rejected in Brantley:

6

Defendants concede that they bear the ultimate responsibility for ensuring

compliance with federal disability laws. Nevertheless, they have taken an arguably

7

cavalier approach to ensuring their continuing compliance with the ADA and

Rehabilitation Act . . . . Thus, to the extent that Defendants are claiming that

8

alternative services satisfy their obligations under the integration mandate,

Defendants certainly bear the burden of ensuring more than a ‘theoretical’

9

availability of such services.

10 2009 WL 2941519, at *10 (internal cites omitted). In any event, the record establishes that

11 alternative services are not available for a substantial portion of the Plaintiffs who face the risk of

12 institutionalization. See infra 19-21; see also Goldblatt Decl. ¶21; Rosene Decl.¶7-9; Nicco Decl.

13 ¶36, 38-41; Nicco Supp. Decl. ¶ 3.

14

Finally, the assertion that Plaintiffs are not being denied benefits by reason of their

15 disabilities ignores Olmstead, which held that undue institutionalization is discrimination on the

16 basis of disability. 527 U.S. at 598-601.

17

B. ABX4 4 Discriminates Based on Type of Disability.

18

Defendants fail to address Plaintiffs’ authority that, if ABX4 4 has a uniquely detrimental

19 impact against people with cognitive and psychiatric disabilities, it violates the ADA. Pl. Br.

20 32:11-34:17. Instead, they argue that any disparate treatment or impact is based on varying levels

21 of need, not disability (Opp. at 23:14-19), but that is directly refuted by Plaintiffs’ showing that FI

22 Scores and functional rankings are not reasonable proxies for criticality of need, particularly for

23 individuals with cognitive and psychiatric disabilities. Pl. Br. at 32; see also supra at 3-4; see also

24 Supp. Gardner Decl. ¶ 9. Further, in arguing that social workers are trained to measure need and

25 that anyone with a “genuine need” will continue to receive services (Opp. 26:8-10) Defendants

26 misunderstand the nature of Plaintiffs’ criticism of the use of FI Scores and functional ranks.

27 Plaintiffs’ claims rest not on the notion that social workers are giving recipients the wrong

28 functional rankings, but on the showing that the design of the functional ranks and FI Score will

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1 screen people with cognitive and psychiatric disabilities out of the IHSS program. Pl. Br. at 32; see

2 also supra at 3-4.

3

Defendants also contend that the functional ranks and FI Score do not discriminate against

4 individuals with cognitive or psychiatric disabilities because their needs will be met in other ways:

5 they will receive alternative services through regional centers (a point addressed infra at 19-20),

6 and those “with serious cognitive or psychiatric disabilities will almost certainly be authorized to

7 receive protective supervision” and therefore be exempt from ABX4 4. Opp. 26:13-19; see also id.

8 at 4, 28. In fact, many individuals with cognitive or psychiatric disabilities serious enough to

9 require IHSS services do not qualify for protective supervision, either because they do not meet the 10 particular requirements for that service or because they fall into one of a number of exclusions.18

11 See Kaljian Supp. Decl. ¶3 (“Protective supervision is authorized very sparingly” to only 4% of

12 IHSS recipients, while “number of [IHSS] clients with cognitive or psychiatric disabilities who

13 receive IHSS far exceeds” this percentage); Ackel Decl. ¶¶9-10; see also, e.g., Aho Supp. Decl.

14 ¶¶13-14 (no protective supervision). Quite simply, most IHSS recipients with mental disabilities

15 will not be exempt from the terminations and reductions, and the use of functional rankings and an

16 FI Score that exclude them from IHSS violates the ADA.

17

C. Defendants Concede Plaintiffs’ Methods of Administration Claim.

18

Defendants do not address, and appear to concede, Plaintiffs’ claim that ABX4 4 violates

19 the ADA’s methods of administration regulation by thwarting the purpose of the IHSS program

20

21 ___________________________________

22

18 Protective supervision is available only if “a need exists for twenty four-hours-a-day of supervision in order for the recipient to remain at home safely,” MPP § 30-757.173, and the

23 recipient must be mobile enough to move around the house and be injured, Calderon v. Anderson, 45 Cal.App.4th 607, 616-18 (1996); see also Marshall v. McMahon, 17 Cal.App.4th 1841, 1852-

24 53 (1993). Moreover, those who meet this standard may fall into one of a number of excluded

categories. MPP § 30-757.172(e) (excluding, e.g., need to control anti-social behavior or guard 25 against deliberate self-destructive behavior from protective supervision). Defendants’ contention

26

that “there is no evidence that anyone with significant cognitive or psychological difficulties will lose any IHSS services” is belied by substantial evidence in the record. See Pl. Br. 13:10-22 &

27 n.13; Aho Decl. ¶4; Aho Supp. Decl. ¶14; Oster Decl. ¶¶4-5; Love Decl. ¶¶2, 12-13; Campbell Decl. ¶¶2, 8; McHenry Decl. ¶¶2, 10; Syropiatos Decl. ¶¶5-6; Williams Decl. ¶¶10, 21.

28

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1 and screening out individuals with certain types of disabilities. See Pl. Br. 34:19-36:4.19

2

V. Because Defendants Have Failed to Rebut the Risk of Irreparable Harm to Plaintiffs and

3

Others Similarly Situated, the Balance of Equities Strongly Favors an Injunction.

4

Although Defendants raise claims of fiscal emergency, they ignore settled Ninth Circuit

5 authority and this Court’s preliminary injunction decision in Martinez that fiscal problems cannot

6 outweigh the needs of the sick and poor. Pl. Br. at 19. Defendants have not and cannot rebut

7 Plaintiffs’ strong showing of irreparable injury.

8 A. The Loss of IHSS Benefits is Irreparable Injury Per Se.

9 Defendants have failed to rebut Plaintiffs’ showing that the loss of Medicaid services such

10 as IHSS constitutes irreparable harm. Pl. Br. 18:13-19:14; see also Brantley, 2009 WL 2941519 at

11 *12-*13 (reduction in Medi-Cal-funded Adult Day Health Care services); Angotti v. Rexam, Inc.,

12 2006 WL 1646135 *14 (N.D. Cal. June 14, 2006) (Medicaid recipients so poor that by definition

13 could not otherwise afford medical care, so irreparable harm could be reasonably inferred without

14 particularized showing by class members).

15 Moreover, Plaintiffs have pointed out – and Defendants do not dispute – that the IHSS

16 statutes and regulations themselves establish the likelihood of irreparable injury, because all IHSS

17 recipients have been assessed by trained county personnel to need the services they receive in order

18 to remain safely in their homes. Pl. Br. 9-10, 25. Indeed, Defendants have specifically stated that

19 “without regular contact with a personal care service worker, individuals will experience isolation

20 and deterioration of chronic conditions that will result in more frequent emergency room visits and

21 higher utilization of acute hospital and nursing facilities . . . .” IHSS Plus Demonstration Waiver

22 at 10, Brzovic Decl. Ex. A. Plaintiffs also have provided ample specific evidence of irreparable

23

___________________________________

24

19 Defendants fail to raise any fundamental alteration defense, and therefore have waived it.

In any event, Plaintiffs have explained why no such defense would have merit. Pl. Br. 31:27-32:8. 25 Rosen v. Goetz, 410 F.3d 919 (6th Cir. 2005), cited by Defendants, does not involve an ADA claim

26

and so its discussion of when federal courts may enjoin the elimination of Medicaid programs is not applicable here. And to the extent Defendants mean to argue that individuals who qualify for

27 IHSS are not “disabled” under the ADA, they are mistaken. Compare Welf. & Inst. Code § 12300(a), MPP § 30-700.1, with 42 U.S.C. § 12101(2)(A).

28

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1 harm, in the form of declarations from county IHSS officials, and service providers who describe

2 in great detail the impact the IHSS terminations and reductions will have on thousands of needy

3 IHSS recipients, as well as numerous declarations from the named Plaintiffs and class members. 4 Pl. Br. at 14-19; see also Shneider Decl. ¶¶4, 9; Brown Decl. ¶3; Love Decl. ¶10.20

5

B. Plaintiffs and Others Similarly Situated Do Not Have Access to Alternative

6

Services that Will Replace the IHSS They Will Lose.

7

Defendants’ assertion that other reasonable alternatives to IHSS services exist and that

8 therefore there is no risk of imminent harm is without basis. Defendants make no showing that

9 these services will be available without interruption following the loss of IHSS services, and as in

10 Brantley, “even temporary gaps in services would present serious consequences for plaintiffs and

11 place them at great risk of being institutionalized.” 2009 WL 2941519 at *10.

12

For example, Defendants suggest (without support) that plaintiffs with developmental

13 disabilities “need only contact the regional center” and their lost IHSS services will be replaced.21

14 Carroll Decl, ¶ 18; Pl. Obj. Def. Evid. However, named Plaintiffs, other class members, advocates,

15 and IHSS county officials have already tried contacting regional centers and been told such

16 replacement services will not be provided. Supp. Oster Decl. ¶¶10-13; Rivera Supp. Decl. ¶ 2;

17 ___________________________________ 20 Defendants fail to rebut this showing, but instead complain that some of the declarations
18 discuss recipients whose benefits will not be reduced or terminated on November 1, because they

19

fall into a category that the State has tentatively exempted or because their scores or ranks appear to be above the minimum. Opp. Br. 28:8-20. But this fact does nothing to negate Plaintiffs’

20 extensive showing that thousands of individuals who will face service reductions or terminations will suffer irreparable injury. Love Decl. ¶¶7, 12 (score of 1.9, not client of regional center or

21 eligible for protective supervision); Baran Decl. ¶¶13-16 (discussing two women who will lose all

IHSS services); Brent Decl. ¶11 (score of 1.27, will lose all services); Campbell Decl. ¶8 (score of 22 1.97, will lose all services); Hylton Decl. ¶7 (score of 2.0, will lose some domestic services hours);

23

Collins Decl. ¶¶7-8 (387 will lose all services because FI score below 2.0 and not covered by exemption); Crockett Decl. ¶3 (approximately 900 will lose all services and 2500 will lose some);

24 Guerra Decl. ¶¶6-8 (195 people will lose all services); Hathaway Decl. ¶ 10 (dozen people will lose all services); Kaljian ¶4 (778 will lose all services because FI score below 2.0 and not covered by

25 exemption); Nicco Decl. ¶¶8, 10 (1,078 will lose all services, and 6,863 will lose certain domestic

and related services, numbers exclude those covered by exemptions); Wilson Decl. ¶17 (score of 26 1.75, will lose all services).

27

21 Ironically, Defendants’ argument that terminated IHSS services will be replaced by

regional centers, if true, would show that the individual IHSS recipients must need those services.

28

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1 Schneider Decl. ¶10; Drass Decl. ¶¶4-5; Collins Decl. ¶9; Supp. Nicco Decl. ¶5; Kaljian Supp.

2 Decl. ¶6. And regional centers are unlikely to provide replacement services in a timely manner. 3 Goldblatt Decl. ¶¶8-19, 21; Rosene Decl. ¶¶8, 9.22 Finally, even assuming that regional centers

4 could be persuaded to fund replacement services for IHSS, this at most would protect but a few 5 thousand of the more than 130,000 IHSS recipients who face service reductions and terminations.23

6

Similarly, Defendants argue that IHSS recipients can turn to other programs and services,

7 ignoring Plaintiffs’ showing that these resources were already overburdened even before recent

8 budget cuts, and cannot accommodate the needs of tens of thousands of disabled or elderly

9 individuals who will lose IHSS services. Pl. Br. at 20; Guerra Supp. Decl. ¶¶4, 6-9; Nicco Supp.

10 Decl. ¶¶3, 5; Baran Decl. ¶26; Kaljian ¶¶20-21; Nicco Decl. ¶¶38-39; Rosene Supp. Decl. ¶7; 11 Kaljian Supp. Decl. ¶4; Collins Supp. Decl. ¶¶4, 7.24

12

Defendants also argue that family members should provide personal care services to

13 Plaintiffs such as V.L. for free. Opp. at p. 24. In fact, family members are not available to care for

14 V.L. (Lagahid Supp. Decl. ¶3), and Defendants’ suggestion is illegal under CDSS regulations:

15

Social services staff shall explore with the recipient the willingness of relatives,

housemates, friends or other appropriate persons to provide voluntarily some or all

16

of the services required by the recipient, . . . [they] shall not compel any such

volunteer to provide services. 17

18 ___________________________________ 22 Regional centers themselves have recently sustained deep funding cuts, suggesting that
19 already existing difficulties in obtaining services will only be exacerbated. Rosene Decl. ¶7;

20

Kaljian Decl. ¶6; Goldblatt Decl. ¶¶9, 10, 20. 23 Kline Supp. Decl., Ex. A at 12 (only 10,909 regional center consumers (less than 3% of

21 all IHSS recipients) receive IHSS); see also, e.g., Aho Decl. ¶2.

22

24 For example, Defendants suggest that Meals on Wheels could replace Dottie Jones’ meal preparation services. However, that program in Nevada County is not available to recipients under

23 aged 60. Rossow Decl., Ex. A (Jones Supp. Decl.) ¶8; Guerra Supp. Decl. ¶6. In other counties, if IHSS recipients are added, the waiting period will be months if not years. Nicco Supp. Decl. ¶7.

24 Also, because Medi-Cal funding for adult mental health services was eliminated, there is no “extra”

Proposition 63 funding available to replace services to IHSS recipients with mental illness. 25 Compare Opp. at pp. 26, 28 with Hill Decl. ¶7. The UCLA report co-authored by Dr. Benjamin

26

shows the elimination of or serious cuts to other programs that serve elderly or disabled individuals, including the elimination of 36 Alzheimer’s program centers, a case management

27 program targeted to long-term care recipients, a respite program to assist caregivers facing burnout, and a surplus food and feeding program. Benjamin Decl., Ex. B at 32.

28

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1 MPP 30-763.62 - .622 (emphasis added). Free care from family members is also not an option for

2 the many IHSS recipients who live alone and do not have family member providers. Rossow

3 Decl., Ex. A (Jones Supp. Decl.) ¶10; Guerra Decl. ¶10; Oster Decl. ¶7. UCLA researchers

4 concluded that as many as 40 to 50% of the seniors facing service reductions or terminations are in 5 this situation. Benjamin Decl., Ex. B at 10.25

6

Similarly, Defendants suggest that overburdened county social workers will somehow be

7 able to find nonexistent services to replace the IHSS hours that tens of thousands of individuals

8 across the State will lose. Opp. at 5. Even if such services were available, which they are not,

9 social workers do not have caseloads that permit such intensive case management and assistance.

10 Nicco Supp. Decl. ¶6; Guerra Supp. Decl. ¶11. Nor will IHSS social workers likely assist someone

11 who has already been terminated and is no longer their responsibility. Nicco Supp. Decl. ¶ 6.

12

Defendants have made no effort to identify those recipients who do have alternative

13 resources; Defendants did not make their eligibility decisions on this basis; and Defendants do not

14 plan to exempt those without alternative resources from the devastating impact of the cutbacks.

15

C. The Class of Thousands of Recipients Will Suffer Severe Irreparable Harm.

16

Defendants fail to address the overwhelming majority of Plaintiffs’ evidentiary showing,

17 and instead focus almost exclusively on attempts to rebut the showing by the named plaintiffs.

18 However, Plaintiffs’ declarations amply establish irreparable injury to both the named Plaintiffs

19 and members of the plaintiff class. See Pl. Br. 15-18 and declarations cited therein; see also Rose

20 Brown Decl. ¶¶2-7; Love Decl. ¶¶8-11.

21

Moreover, to the extent Defendants mean to suggest that only injury to the named plaintiffs

22 is relevant, or that irreparable injury to class members is irrelevant in the absence of injury to the

23 named plaintiffs, they are mistaken. Neither the case cited by Defendants, or the decision on which

24 ___________________________________ 25 The researchers also found “no evidence that family and friends will automatically step
25 in and fill gaps in care” as a result of the IHSS reductions and terminations. Id. at 13. Instead, the

26

cuts will attenuate “‘the fragile individualized safety net’ cobbled together by families with (up to now) significant assistance from the state.” Id. (also noting that “[l]egally-responsible adults like

27 spouses are already stretched very thin in terms of the physical and economic resources they devote to care giving”).

28

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1 it relies, addressed the question whether a specific showing of harm to class members was adequate

2 without a showing of injury to the named plaintiffs. Mandrigues v. World Savings, Inc., 2009 WL

3 160213 (N.D. Cal. Jan. 20, 2009), citing Angotti v. Rexam, Inc., 2006 WL 1646135. In fact,

4 Angotti demanded a particularized showing of harm by “prospective class members,” not the

5 named plaintiffs. Id. at 14-15. See also LaForest v. Former Clean Air Holding Co., Inc., 376 F.3d

6 48, 57 (3d Cir. 2004) (“That the six affidavits relied upon by the district court [to support showing

7 of irreparable harm] were submitted by unnamed plaintiffs gives us little pause, given that these

8 persons are now members of the certified class.”). Although the named plaintiffs here will clearly

9 suffer irreparable harm, additional IHSS recipients who face termination and will also suffer

10 irreparable harm are willing to act as named plaintiffs, should the Court deem this necessary.

11 McHenry Supp. Decl.¶ 5; Aho Supp. Decl. ¶ 3.

12

Whether the named plaintiffs will suffer irreparable injury, as Plaintiffs have shown, would

13 be relevant to their adequacy as class representatives, not to whether this Court should issue a

14 preliminary injunction. Defendants did not file an opposition to plaintiffs’ motion for class

15 certification, and concede that class certification is not necessary for the Court to grant class-wide

16 injunctive relief. Opp. Br. 31:5-7.

17

CONCLUSION

18

For all the foregoing reasons, Plaintiffs request that this Court issue a preliminary

19 injunction.

20 Dated: October 15, 2009 21 22 23 24 25 26 27 28

Respectfully Submitted,

By: /s/ Melinda Bird

_____

MELINDA BIRD (SBN 102236)

MARILYN HOLLE (SBN 61530)

DEBORAH DORFMAN (CRLSA No. 801060)

DISABILITY RIGHTS CALIFORNIA

LOS ANGELES REGIONAL OFFICE

3580 Wilshire Blvd., Ste. 902

Los Angeles, CA 90010

Telephone: (213) 427-8747

Facsimile: (213) 427-8767

Melinda.bird@disabilityrightsca.org

Debbie.dorfman@disabilityrightsca.org

Marilyn.holle@disabilityrightsca.org

22 REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
CASE NO. CV 09-4668 CW

Case4:09-cv-04668-CW Document158 Filed10/15/09 Page28 of 29

1

SUJATHA JAGADEESH BRANCH (SBN 166259)

2

DISABILITY RIGHTS CALIFORNIA

SACRAMENTO REGIONAL OFFICE

3

100 Howe Ave., Suite 235N

Sacramento, CA 95825

4

Telephone: (916) 488-9950

Facsimile: (916) 488-9960

5

Sujatha.branch@disabilityrightsca.org

6

DARA L. SCHUR (SBN 98638)

FREDERICK P. NISEN (SBN 184089)

7

JUNG PHAM (SBN 251232)

DISABILITY RIGHTS CALIFORNIA

8

BAY AREA REGIONAL OFFICE

1330 Broadway, Suite 500

9

Oakland, CA 94612

Telephone: (510) 267-1200

10

Facsimile: (510) 267-1201

Dara.schur@disabilityrightsca.org

11

Fred.nisen@disabilityrightsca.org

Jung.pham@disabilityrightsca.org

12

13

ANN MENASCHE (SBN 74774)

DISABILITY RIGHTS CALIFORNIA

14

SAN DIEGO REGIONAL OFFICE

111 Sixth Avenue, Suite 200

15

San Diego, CA 92101

Telephone: (619) 239-7861

16

Facsimile: (619) 239-7906

Ann.menasche@disabilityrightsca.org

17

PAULA PEARLMAN (SBN 109038)

18

SHAWNA PARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

19

919 Albany Street

Los Angeles, CA 90015

20

Telephone: (213) 736-1031

Facsimile: (213) 736-1428

21

Paula.pearlman@lls.edu

Shawna.parks@lls.edu

22

CHARLES WOLFINGER (SBN 63467)

23

LAW OFFICE OF CHARLES WOLFINGER

4655 Cass Street #314

24

San Diego, Ca 92109

Telephone: (858) 272-8115

25

Facsimile: (858) 270-3960

Cw@charleswolfinger.com

26

JANE PERKINS (SBN 104784)

27

NATIONAL HEALTH LAW PROGRAM

211 N. Columbia Street

28

Chapel Hill, NC 27514

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CASE NO. CV 09-4668 CW

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1

Telephone: (919) 968-6308

Facsimile: (919) 968-8855

2

perkins@healthlaw.org

3

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

4

1330 Broadway, Suite 525

Oakland, CA 94612

5

Telephone: (510) 663-1055

Facsimile: (510) 663-1051

6

Attorneys for Individual Named Plaintiffs V.L., David

7

Oster, Willie Beatrice Sheppard, C.R., Dotty Jones,

and the Plaintiff Class

8

By: /s/ Stacey M. Leyton

______

9

STEPHEN P. BERZON (SBN 46540)

EVE H. CERVANTEZ (SBN 164709)

10

STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

11

CASEY A. ROBERTS (SBN 253474)

(Admission Pending)

12

Altshuler Berzon LLP

177 Post Street, Suite 300

13

San Francisco, California 94108

Telephone: (415) 421-7151

14

Facsimile: (415) 362-8064

sberzon@altshulerberzon.com

15

ecervantez@altshulerberzon.com

sleyton@altshulerberzon.com

16

pthoreen@altshulerberzon.com

17

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

SEIU Local 521, SEIU California State Council,

18

UDW, and CUHW

19

20

21

22

23

24

25

26

27

28

24 REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
CASE NO. CV 09-4668 CW

 
 Case4:09-cv-04668-CW Document280 Filed01/05/10 Page1 of 44

1 MELINDA BIRD (SBN 102236) DEBORAH DORFMAN (CRLSA No. 801060)
2 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd., Ste. 902
3 Los Angeles, CA 90010 Telephone: (213) 427-8747
4 Facsimile: (213) 427-8767 Melinda.bird@disabilityrightsca.org
5 Attorneys for Named Plaintiffs and the Proposed Class
6 Additional Attorneys for Named Plaintiffs and the Proposed Class on Signature Page
7 STEPHEN P. BERZON (SBN 46540)
8 EVE H. CERVANTEZ (SBN 164709) STACEY M. LEYTON (SBN 203827)
9 Altshuler Berzon LLP 177 Post Street, Suite 300
10 San Francisco, California 94108 Telephone: (415) 421-7151
11 Facsimile: (415) 362-8064 sleyton@altshulerberzon.com
12 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU
13 Local 521, SEIU California State Council, UDW, and CUHW

14

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO/OAKLAND DIVISION

16 V.L. by and through his guardian ad litem Nancy

Case No. CV 09-04668 JSW

17

Lagahid, DAVID OSTER, WILLIE BEATRICE SHEPPARD, and C.R. by and through his guardian ad

18

litem Michelle Rivera, on behalf of themselves and a class SECOND AMENDED CLASS of those similarly situated, DOTTY JONES; SERVICE ACTION COMPLAINT FOR

19

EMPLOYEES INTERNATIONAL UNION – UNITED HEALTHCARE WORKERS WEST, SERVICE

INJUNCTIVE AND DECLARATORY RELIEF

20

EMPLOYEES INTERNATIONAL UNION – UNITED LONG-TERM CARE WORKERS, SERVICE

21

EMPLOYEES INTERNATIONAL UNION LOCAL 521, SERVICE EMPLOYEES INTERNATIONAL UNION

22

STATE COUNCIL, UNITED DOMESTIC WORKERS OF AMERICA, AFSCME, LOCAL 3930, AFL-CIO, and

23 CALIFORNIA UNITED HEALTHCARE WORKERS,

24

Plaintiffs, v.

25 JOHN A. WAGNER, Director of the California

26

Department of Social Services; DAVID MAXWELLJOLLY, Director of the California Department of Health

27

Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES; and CALIFORNIA

28 DEPARTMENT OF SOCIAL SERVICES,

Defendants.

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1

INTRODUCTION

2

1. This civil rights class action seeks declaratory and injunctive relief to prevent over

3 one hundred thousand low-income seniors and individuals with disabilities from losing critical

4 services that enable them to remain safely in their homes.

5

2. California’s In-Home Supportive Services (“IHSS”) program presently provides

6 crucial in-home assistance with certain basic tasks of daily living – for example, bathing, dressing,

7 meal preparation and clean up, eating, bowel and bladder care, and taking necessary medications –

8 so that elderly individuals and persons with disabilities can avoid unnecessary and costly

9 institutionalization. IHSS recipients qualify for these services because it has been determined that

10 they cannot safely remain in their homes without them.

11

3. However, ABX4 4, which was passed on an emergency basis for purely budgetary

12 reasons, would render tens of thousands of current IHSS recipients ineligible for all IHSS services

13 based on a “Functional Index Score,” first devised in 1988, that was not designed to measure

14 individual need or to determine eligibility, has never been used for such purposes, and is not a

15 reasonable measure of need or eligibility. ABX4 4 (Stats. 2009, c. 4, §§ 29, 30) (Part II)

16 (amending Cal. Welf. & Inst. Code §§ 12309 & 12309.2). ABX4 4 would also deprive tens of

17 thousands of additional IHSS recipients of critical IHSS domestic and related services that have

18 previously been found necessary to permit these individuals to remain safely in their homes based

19 on a numerical “rank” that was not designed to determine eligibility, has never been used for such

20 purpose, and is not a reasonable measure of need or eligibility. These statutory changes are

21 scheduled to go into effect on November 1, 2009.

22

4. Unless enjoined, these provisions of ABX4 4 will cause immediate and irreparable

23 harm by depriving members of the plaintiff class of services that are essential to their ability to

24 remain safely in their own homes. This will place members of the plaintiff class at imminent and

25 serious risk of harm to their health and safety, as well as of unnecessary and unwanted out-of-home

26 placement, including institutionalization.

27

5. The statutory provisions at issue contravene federal law in a number of ways.

28 Initially, ABX4 4’s changes to state law violate the Americans with Disabilities Act of 1990, 42
1
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1 U.S.C. § 12312 (“ADA”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794

2 (“Section 504”), by placing IHSS recipients at imminent risk of unnecessary and unwanted out-of-

3 home and out-of-community placement, including in institutions such as nursing homes, and by

4 discriminating on the basis of type of disability.

5

6. ABX4 4 also violates the requirements of Title XIX of the Social Security Act, 42

6 U.S.C. § 1396a (“the Medicaid Act”): that States provide (1) comparable Medicaid services to

7 individuals with similar needs; (2) services that are sufficient in amount, duration, and scope to

8 reasonably achieve their purposes; (3) services according to reasonable standards; and (4)

9 necessary services to correct or ameliorate children’s conditions. ABX4 4 further violates the

10 requirement imposed by the Medicaid Maintenance of Effort Clause of the American Recovery and

11 Reinvestment Act (“ARRA”) by restricting IHSS eligibility standards.

12

7. Finally, Defendants’ failure to provide adequate notice and opportunity for hearing

13 prior to depriving members of the plaintiff class of critical IHSS services violates the federal

14 constitutional guarantee of procedural due process and the Medicaid Act’s notice and hearing

15 provisions.

16

JURISDICTION

17

8. This action for declaratory and injunctive relief arises under the Due Process Clause

18 of the Fourteenth Amendment to the U.S. Constitution; Title XIX of the Social Security Act, 42

19 U.S.C. § 1396a et seq. (“the Medicaid Act”); Title II of the Americans With Disabilities Act of

20 1990, 42 U.S.C. § 12132 (“ADA”); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794

21 (“Section 504”); 42 U.S.C. § 1983; and the Supremacy Clause, U.S. Const., Art. VI, cl. 2.

22

9. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343. Plaintiffs’ claims for

23 declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201 and 2202. At all times

24 relevant to this action, Defendants have acted under color of state law.

25

VENUE

26

10. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

27 § 1391(b), because the Defendants operate and perform their official duties therein and thus reside

28 therein for purposes of venue, and because a substantial part of the events and omissions giving
2
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1 rise to the claims herein occurred in the Northern District of California. Individual named plaintiff

2 V.L. lives and receives services in San Francisco, which is in the Northern District of California.

3 Individual named plaintiff Willie Beatrice Sheppard lives and receives services in Emeryville,

4 which is in Alameda County, in the Northern District of California. Individual named plaintiff

5 C.R. lives and receives services in Gilroy, which is in Santa Clara County, in the Northern District

6 of California. Members of the plaintiff class reside and receive IHSS services in the Northern

7 District of California. Organizational Plaintiff Service Employees International Union-United

8 Healthcare Workers West (“UHW”) members provide IHSS services in Marin and Contra Costa

9 Counties, in the Northern District of California. Organizational Plaintiff SEIU United Long-Term

10 Care Workers (“ULTCW”) members provide IHSS services in Mendocino, Sonoma, Napa,

11 Alameda, Santa Cruz, and Monterey Counties, in the Northern District of California.

12 Organizational Plaintiff SEIU Local 521 (“Local 521”) members provide IHSS services in Santa

13 Clara and San Mateo County, in the Northern District of California. Organizational plaintiff

14 California United Homecare Workers (“CUHW”) members provide IHSS services in Del Norte,

15 Humboldt, and Lake Counties, in the Northern District of California.

16

INTRADISTRICT ASSIGNMENT

17

11. Pursuant to Civil L. R. 3-2(c) this action should be assigned to the San Francisco or

18 Oakland Division of the Northern District of California, because a substantial part of the events and

19 omissions giving rise to the claims herein occurred in counties in the San Francisco/Oakland

20 Division. Individual named plaintiff V.L. lives in San Francisco. Individual named plaintiff Willie

21 Beatrice Sheppard lives in Emeryville, which is located in Alameda County. Many members of the

22 plaintiff class are residents of Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin,

23 Mendocino, Napa, San Francisco, San Mateo, and Sonoma Counties. Organizational Plaintiff

24 UHW members provide IHSS services in Marin and Contra Costa Counties. Organizational

25 Plaintiff ULTCW members provide IHSS services in Alameda, Mendocino, Sonoma, and Napa

26 Counties. Organizational Plaintiff Local 521 members provide IHSS services in San Mateo

27 County. Organizational Plaintiff CUHW members provide IHSS services in Del Norte, Humboldt,

28 and Lake Counties.
3
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1

PARTIES

2

Individual Plaintiffs

3

12. Named Plaintiff V.L., represented here by his guardian ad litem Nancy Lagahid, is

4 a 14-year-old boy who has Charcot-Marie-Tooth Disease, a form of muscular dystrophy. Because

5 of his disabilities and medical condition, plaintiff V.L. is eligible for California’s Medicaid

6 program (“Medi-Cal”) and receives IHSS services. Pursuant to ABX4 4, V.L. will lose eligibility

7 for all IHSS services because his Functional Index Score is under 2.0.

8

13. Named Plaintiff David Oster is a 33-year-old man who has autism and bi-polar

9 disorder. Because of his disabilities and medical conditions, Mr. Oster is Medi-Cal eligible and

10 receives IHSS services. Pursuant to ABX4 4, Mr. Oster will lose eligibility for all IHSS services

11 because his Functional Index Score is under 2.0.

12

14. Named Plaintiff Willie Beatrice Sheppard is an 81-year-old woman whose mobility

13 is impaired as result of a stroke and arthritis. Because of her disabilities, medical conditions, and

14 age, Ms. Sheppard is Medi-Cal eligible and receives IHSS. Ms. Sheppard has never been informed

15 what her Functional Index Score is and has also never been informed what her functional ranks are

16 for domestic and related services. She is concerned that she may lose eligibility for IHSS

17 altogether if her Functional Index score is too low (below 2.0) or that she may lose some of her

18 domestic and related services if her functional ranks for these services are below 4.

19

15. Named Plaintiff C.R., represented here by his guardian ad litem Michelle Rivera, is

20 a five-year-old boy who has a developmental disability due to chromosome deletion. Because of

21 his disabilities and medical condition, C.R. is Medi-Cal eligible and receives IHSS services.

22 Pursuant to ABX4 4, C.R. will lose eligibility for all IHSS services because his Functional Index

23 Score is under 2.0.

24

16. Named Plaintiff Dotty Jones is a 51-year-old woman who has AIDS and

25 neuropathy. Because her disabilities and medical condition, Ms. Jones is Medi-Cal eligible and

26 receives IHSS services. Pursuant to ABX4 4, Ms. Jones will lose IHSS services for meal

27 preparation and clean-up and for housekeeping.

28
4
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1

Organizational Plaintiffs

2

17. Plaintiff UHW is an unincorporated association with members that include

3 approximately 55,000 IHSS providers in 11 counties. Some members provide services for their

4 minor children. Plaintiff UHW is an affiliate of the Service Employees International Union

5 (“SEIU”) and for years has been an advocate for increased access to and quality of IHSS services.

6 UHW brings this suit on behalf of its members who will be injured if IHSS recipients (including

7 minor children of members) lose eligibility and services, who would have standing to sue in their

8 own right, and whose personal participation in this litigation is not necessary.

9

18. Plaintiff ULTCW is an unincorporated association with members that include

10 approximately 175,000 IHSS providers in 10 counties. Some members provide services for their

11 minor children. ULTCW has long been an advocate for increased access to and quality of IHSS

12 services. ULTCW brings this suit on behalf of its members who will be injured if IHSS recipients

13 (including minor children of members) lose eligibility and services, who would have standing to

14 sue in their own right, and whose personal participation in this litigation is not necessary.

15

19. Plaintiff Local 521 is an unincorporated association with members that include

16 approximately 15,000 IHSS providers. Some members provide services for their minor children.

17 Local 521, through its predecessor unions, has long been an advocate for increased access to and

18 quality of IHSS services. Local 521 brings this suit on behalf of its members who will be injured if

19 IHSS recipients (including minor children of members) lose eligibility and services, who would

20 have standing to sue in their own right, and whose personal participation in this litigation is not

21 necessary.

22

20. Plaintiff SEIU California State Council (“SEIU State Council”) is a state-wide

23 affiliate of SEIU. More than 20 local unions representing over 700,000 workers and retirees

24 belong to the SEIU State Council. The SEIU State Council advocates for the interests of its

25 affiliated local unions and their members before legislative bodies, regulatory agencies, and the

26 courts, including by advocating for increased access to and quality of IHSS services. The SEIU

27 State Council brings this suit on behalf of its affiliate local unions and the members of its affiliates,

28
5
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1 who would have standing to sue in their own right and whose personal participation in this

2 litigation is not necessary.

3

21. United Domestic Workers of America, AFSCME, Local 3930, AFL-CIO (“UDW”)

4 is a local union affiliated with the American Federation of State, County and Municipal Employees

5 (“AFSCME”). UDW represents approximately 55,000 IHSS providers in 11 counties throughout

6 California. Some of these members provide services for their minor children. UDW has for years

7 been an advocate for increased access to and quality of IHSS services. UDW brings this suit on

8 behalf of its members who will be injured if IHSS recipients (including minor children of

9 members) lose eligibility and services, who would have standing to sue in their own right, and

10 whose personal participation in this litigation is not necessary.

11

22. Plaintiff CUHW is an unincorporated association with members that include

12 approximately 18,000 IHSS providers in 18 counties. Some members provide services to their

13 minor children. CUHW is jointly affiliated with SEIU and AFSCME, and is a member of the

14 SEIU State Council. Through the SEIU State Council, CUHW has been an advocate for increased

15 access to and quality of IHSS services. CUHW brings this suit on behalf of its members who will

16 be injured if IHSS recipients (including minor children of members) lose eligibility and services,

17 who would have standing to sue in their own right, and whose personal participation in this

18 litigation is not necessary.

19

Defendants

20

23. Defendant California Department of Health Care Services (“DHCS”) is a state

21 agency that receives federal funds and is the single state agency responsible for administering the

22 federal Medicaid program in California (“Medi-Cal”). Defendant DHCS is sued under the Fourth

23 Claim for Relief (Section 504).

24

24. Defendant David Maxwell-Jolly is the Director of DHCS, a state agency that

25 receives federal funds. Defendant Maxwell-Jolly is a public agency director responsible for

26 operation of a public entity, pursuant to 42 U.S.C. §§ 12131(1)(A) & (B). As the Director of

27 DHCS, Defendant Maxwell-Jolly is responsible for oversight, supervision and control of the

28 functions and programs vested in the DHCS, including the Medi-Cal program, and has the
6
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1 responsibility for ensuring that the Medi-Cal program is implemented and administered consistent

2 with the requirements of federal Medicaid law. Defendant Maxwell-Jolly is sued in his official

3 capacity under the First Claim for Relief (Fourteenth Amendment to the United States

4 Constitution-Procedural Due Process), Second Claim for Relief (Medicaid- Right to Fair Hearing),

5 Third Claim for Relief (ADA), Fifth Claim for Relief (Medicaid-Comparability Requirement),

6 Sixth Claim for Relief (Medicaid-Sufficiency Requirement), Seventh Claim for Relief (Medicaid-

7 Reasonable Standards Requirement), Eighth Claim for Relief (Medicaid-Early and Periodic

8 Screening, Diagnostic and Treatment Services), and Ninth Claim for Relief (Medicaid-ARRA).

9

25. Defendant California Department of Social Services (“CDSS”) is a state agency that

10 receives federal funds and is responsible for the overall implementation and supervision of the

11 administration of the IHSS programs by the counties. Defendant CDSS is sued under the Fourth

12 Claim for Relief (Section 504).

13

26. Defendant John Wagner is the Director of CDSS, a state agency that receives

14 federal funds. Defendant Wagner is a public agency director responsible for the operation of a

15 public entity pursuant to 42 U.S.C. §§ 12131(1)(A) & (B). Defendant Wagner is sued in his

16 official capacity under the First Claim for Relief (Fourteenth Amendment to the United States

17 Constitution-Procedural Due Process), Second Claim for Relief (Medicaid-Right to Fair Hearing),

18 Third Claim for Relief (ADA), Fifth Claim for Relief (Medicaid-Comparability Requirement),

19 Sixth Claim for Relief (Medicaid-Sufficiency Requirement), Seventh Claim for Relief (Medicaid-

20 Reasonable Standards Requirement), Eighth Claim for Relief (Medicaid-Early & Periodic

21 Screening, Diagnostic and Treatment Services), and Ninth Claim for Relief (Medicaid-ARRA).

22

FACTUAL ALLEGATIONS

23

A. Medi-Cal and the California IHSS Program

24

27. The purpose of the IHSS program is “to enable the aged, blind or disabled poor to

25 avoid institutionalization by remaining in their homes with proper supportive services.” Cal. Welf.

26 & Inst. Code § 12300(a).

27

28. Persons eligible for this program must be aged (65 or over), blind, or disabled, and

28 must also be poor under standards of the federal Supplemental Security Income or State
7
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1 Supplemental Payment Program. Cal. Welf. & Inst. Code §§ 12051, 12052, 14051; CDSS Manual

2 of Policies and Procedures (“Manual” or “MPP”) §§ 30-755.111-.114.

3

29. The IHSS program provides assistance with the following: (1) domestic services;

4 (2) related services (meal preparation and clean-up, restaurant meal allowance, laundry, food and

5 other shopping); (3) personal care services (bowel and bladder care, respiration, feeding, routine

6 bed baths, bathing, oral hygiene and grooming, dressing, repositioning and rubbing skin including

7 range of motion exercises, transfers, care and assistance with prosthetic devices and self-

8 administration of medication, routine menstrual care, skin care, and ambulation); (4) travel to

9 medical appointments; (5) yard hazard abatement; (6) protective supervision (monitoring of

10 individuals with mental impairments to ensure their safety); (7) teaching and demonstration

11 services; and (8) paramedical services (services that are prescribed by a doctor and require training,

12 such as injections, colostomy irrigation, catheter insertion/care, suctioning, G and NG tube feeding,

13 and ventilator and oxygen care). Cal. Welf. & Inst. Code §§ 12300(b) & (c); 14132.95(d)(1), (2);

14 14132.951(c).

15

30. Most IHSS services are provided through California’s Medicaid program (“Medi-

16 Cal”). Medicaid is a joint federal and state medical assistance program for certain groups of low-

17 income people, including children. See 42 U.S.C. §§ 1396-1396v. California has elected to

18 participate in the Medicaid program, and so must comply with the requirements of the federal

19 Medicaid Act and its implementing regulations.

20

31. The purpose of Medicaid is to furnish, as far as practicable, “medical assistance on

21 behalf of . . . aged, blind or disabled individuals, whose income and resources are insufficient to

22 meet the costs of necessary medical services” and “to help such families and individuals to attain or

23 retain capability for independence or self-care . . . .” 42 U.S.C. § 1396.

24

32. Participating States must designate a “single state agency” to administer the

25 Medicaid program. 42 U.S.C. § 1396a(a)(5). In California, the single state agency is DHCS.

26

33. Participating States are reimbursed by the federal government for a portion of the

27 cost of providing Medicaid benefits. See 42 U.S.C. § 1396b. The remaining funding for the IHSS

28 program comes from the State and from counties.
8
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1

1. Eligibility for IHSS Services

2

34. Counties, under the direction of Defendant CDSS, determine recipients’ eligibility

3 for IHSS services and the number of hours authorized for any services based on statewide statutes

4 and regulations. Cal. Welf. & Inst. Code §§ 12300(g), 14132.95(f), 14132.951(b) & (e).

5

35. Individuals are eligible for IHSS services only if they are “unable to perform the

6 services themselves and . . . cannot safely remain in their homes. . . unless these services are

7 provided.” Cal. Welf. & Inst. Code § 12300(a); MPP §§ 30-761.13, 30-763.112.

8

36. The assessment of eligibility for IHSS services begins with county social workers

9 “collecting and evaluating information . . . [which] includes but is not limited to, all of the

10 following: (A) The recipient’s living environment. (B) Alternative resources. (C) The recipient’s

11 functional abilities.” Cal. Welf. & Inst. Code § 12309(b).

12

37. Social workers assess recipients’ level of need through a variety of methods,

13 including observing the recipient and the recipient’s living environment, asking the client

14 questions, and reviewing documentation, including diagnosis and functional indications from the

15 recipient’s physician. MPP § 30-761.26.

16

38. Based on this information, social workers determine the tasks that recipients are

17 unable to safely perform by themselves, and the minimum number of hours necessary for an IHSS

18 provider to assist or to undertake those tasks for them. MPP § 30-763.2.

19

39. Social workers are trained that providers should not do things for recipients that the

20 recipients could do for themselves, because this results in further loss of independence for the

21 recipient and may actually further mental or physical deterioration.

22

40. When a new recipient begins receiving IHSS services, the recipient receives a

23 Notice of Action (“NOA”) setting forth the hours authorized for each service on a weekly or

24 monthly basis. Cal. Welf. & Inst. Code § 12300.2; MPP § 30-763.81.

25

41. Recipients are reassessed for eligibility for IHSS services on an annual basis

26 through in-person social worker reassessment. Recipients are notified of any change in hours

27 authorized in an NOA. Cal. Welf. & Inst. Code § 12300.2; MPP §§ 30-761.212, 30-763.81.

28

42. Counties are also required to reassess recipients any time the recipient notifies the

9

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1 county of a need to adjust the supportive services hours authorized, or when there are other

2 indications or expectations of a change in circumstances affecting the recipient’s need for

3 supportive services. Cal. Welf. & Inst. Code § 12301.1(d).

4

43. As of the date this complaint is being filed, if a recipient disagrees with the number

5 of authorized hours set forth in the NOA, he or she may file an administrative appeal. Cal. Welf. &

6 Inst. Code § 12301.5.

7

2. Assignment of Functional Ranks

8

44. As one part of their overall assessment, social workers assign a functional rank to

9 each of fourteen “activities of daily living and instrumental activities of daily living” (“ADLs”) by

10 evaluating the combined “effect of the recipient’s physical, cognitive, and emotional impairment”

11 on the recipient’s performance of the tasks associated with those ADLs. Cal. Welf. & Inst. Code §

12 12309(c); MPP § 30-756.1.

13

45. Recipients are ranked on eleven physical tasks and three mental functions. The

14 physical tasks are: housework; laundry; shopping and errands; meal preparation and cleanup;

15 mobility inside; bathing and grooming; dressing; bowel, bladder, and menstrual care; transfer;

16 eating; and respiration. Of these, housework, laundry, shopping and errands, and meal preparation

17 and cleanup correspond to so-called domestic or related services, and the remainder are referred to

18 in state regulations as “personal care” services. MPP § 30-756.2(a)-(k). Social workers also rank

19 three mental functions of recipients: memory, orientation, and judgment. MPP § 30-756.372.

20

46. The IHSS ranking scale includes:

21

(1) Rank one. A recipient's functioning shall be classified as rank one if his or her

22

functioning is independent, and he or she is able to perform the function without human assistance, although the recipient may have difficulty in performing the

23

function, but the completion of the function, with or without a device or mobility

aid, poses no substantial risk to his or her safety.

24

(2) Rank two. A recipient's functioning shall be classified as rank two if he or she is

25

able to perform a function, but needs verbal assistance, such as reminding, guidance,

26

or encouragement.

27

(3) Rank three. A recipient's functioning shall be classified as rank three if he or she

can perform the function with some human assistance, including, but not limited to,

28

direct physical assistance from a provider.

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1

(4) Rank four. A recipient's functioning shall be classified as rank four if he or she

can perform a function, but only with substantial human assistance. 2

3

(5) Rank five. A recipient's functioning shall be classified as rank five if he or she

cannot perform the function, with or without human assistance.

4

5 Cal. Welf. & Inst. Code § 12309(d)(1)-(5).

6

47. These ranks are further defined and explained, with specific descriptions, examples,

7 and sample observations for what constitutes a rank of 1, 2, 3, 4, or 5, for each of the 14 ADLs, in

8 the Annotated Assessment Criteria, revised Attachment B to All-County Letter (“ACL”) 06-34

9 (April 27, 2007).

10

48. Although social workers rank most ADLs on a scale of 1-5, there are certain

11 exceptions: laundry is ranked only 1, 4, or 5; shopping is ranked only 1, 3, or 5; respiration is

12 ranked only 1 or 5; and the three categories of mental functioning (memory, orientation, and

13 judgment) are ranked either 1, 2, or 5.

14

49. There are no functional ranks assigned to certain tasks for which IHSS hours may be

15 authorized, such as repositioning and rubbing skin, care and assistance with prosthetic devices, and

16 assistance with self-administration of medication. MPP § 30-757.14(g)(i).

17

50. A recipient must have a functional rank of at least 2 with respect to any ADL to be

18 eligible for the corresponding IHSS service. MPP § 30-763.1. Otherwise, before the enactment of

19 ABX4 4, the functional ranks have not had any relationship to eligibility for IHSS.

20

3. Hourly Task Guidelines

21

51. CDSS has established “statewide hourly task guidelines and instructions to provide

22 counties with a standard tool for consistently and accurately assessing service needs and

23 authorizing service hours to meet those needs.” Cal. Welf. & Inst. Code § 12301.2(a)(1).

24

52. The applicable regulations specify the standard time ranges required for each IHSS

25 task and set forth criteria that are relevant to when an individual’s needs would fall outside this

26 range. Cal. Welf. & Inst. Code § 12301.2(a)(2); MPP § 30-757.

27

53. Counties are required to deviate from the hourly task guideline amount if a

28 recipient’s needs fall outside this standard range, and in such cases counties must document the
11
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1 need for that service level. Cal. Welf. & Inst. Code § 12301.2(c). There are multiple reasons why

2 a recipient’s need for and authorization for IHSS hours might differ from the hourly task

3 guidelines, as set forth in the Manual. MPP § 30-757.1.

4

54. For every service with hourly task guidelines, the standard time range is so broad

5 that it overlaps for functional ranks 2 through 5. For example, in meal preparation, the standard

6 time range for functional rank 2 is 3.02-7.00 hours per week, rank 3 is 3.5-7.00 hours per week,

7 rank 4 is 5.25-7.00 hours per week, and rank 5 is 7 hours per week. MPP § 30-757.131(a). A

8 recipient may thus rank either 2, 3, or 4 in meal preparation and still receive 5-7 hours per week for

9 this service without deviating from the standard hourly task guideline.

10

55. Some services have limitations in hours that are not related to functional rank at all:

11 domestic services are limited to six hours per month; laundry services are limited to one hour per

12 week (or 1.5 hours per week if laundry facilities are not available on the premises), and shopping

13 and other errands are limited to 1.5 hours per week. MPP § 30-757.11(k)(1), .134(c) & (d),

14 .135(b)(i).

15

56. Social workers do not use the functional ranks or the hourly task guidelines to

16 determine in the first instance whether a recipient is eligible for IHSS services, or the number of

17 hours to authorize for each service. Instead, social workers use the functional ranks and hourly

18 task guidelines to double check their individualized assessment of services needed, and then

19 document any case in which authorized services do not match the hourly task guidelines.

20

57. If a social worker finds that an individual needs more than the standard amount of

21 hours for a service, that does not affect the functional rank.

22

58. After a county determines the number of hours required for each needed service, it

23 must adjust those hours downward if the recipient shares the need with someone else in the

24 household or if some other agency or person provides the service without charge. MPP §§ 30-

25 763.3, .4, .6. The number of hours authorized for each needed IHSS service is the result of that

26 adjustment process. MPP § 30-763.7.

27

59. The maximum amount of IHSS services that a recipient is allowed to receive is 283

28 hours per month if the person is “severely disabled” or 195 hours per month if the person is not
12
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1 severely disabled. Welf. & Inst. Code §§ 12303.4(a) & (b), 14132.95(g), 14132.951(b).

2

B. ABX4 4

3

60. On July 28, 2009, the Governor of California signed into law ABX4 4, which was

4 enacted as part of the Fourth Extraordinary Legislative Session. ABX4 4 amended California

5 Welfare and Institutions Code Sections 12309(e) and 12309.2 (“Sections 12309(e) and 12309.2”)

6 to eliminate crucial IHSS services to over one hundred thousand recipients.

7

1. Loss of Eligibility For All IHSS Services

8

61. Under Section 12309.2 as amended by ABX4 4, IHSS recipients with composite

9 functional index scores (“FI Scores”) of below 2.0 are no longer eligible for any IHSS services.

10

62. The FI Score was originally designed in the mid-1980’s as part of a “uniformity

11 system” for quality control and comparison purposes among counties (not among individuals).

12 ACL 88-118 (Sept. 6, 1988), Question 14.

13

63. CDSS has tested the FI Score, and determined that it is not meaningful.

14

64. Before the enactment of ABX4 4, the counties administering the IHSS program did

15 not utilize the FI Score for any purpose, including quality control. Before the enactment of ABX4

16 4, most county social workers were not even aware of the FI Scores of individual IHSS recipients.

17

65. The FI Score was not designed, and has never been used in the past, to determine

18 eligibility or need. The FI Score was not designed, and has never been used in the past, to predict

19 the service hours that any individual recipient should receive. ACL 88-118, Question 13.

20

66. Before the enactment of ABX4 4, IHSS recipients were not notified of their FI

21 Score. The FI Score did not appear on the NOAs that recipients receive upon assessment or

22 reassessment.

23

67. The FI Score is a number between 1.00 and 5.00 calculated by the Case

24 Management and Payrolling System (“CMIPS”) for each IHSS recipient. ACL 88-118, Question

25 7. The formula for calculating the FI Score, which has not changed since 1988, involves

26 calculating a weighted average of the functional rankings for each of the 11 physical task ADLs.

27 ACL 88-118, Questions 9, 10; Draft ACL at 2. In general, these weights were determined by

28 taking the average (mean) number of hours assigned for these tasks by counties in 1988 and
13
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1 determining the proportion of time each task represented with respect to the total aggregate hours

2 allocated for IHSS services. ACL 88-118, Question 10.

3

68. The composite FI Score is not an accurate or reliable measure of need for IHSS

4 services because it was not designed to, and does not, provide information about the likelihood that

5 any individual IHSS recipient is at risk of physical or mental injury, and/or out-of-home placement

6 or institutionalization, in the absence of IHSS services.

7

69. The FI Score is a poor measure of need because it does not allow for individual

8 assessment of need based on individual circumstances, as set forth in the succeeding paragraphs.

9

70. The FI Score measures the weighted average of 11 functional ranks, and does not

10 measure whether any particular services are critical to any particular individual. Thus, the FI

11 Scores of recipients who only need a few of the 11 services measured will be low, even if the need

12 for those few services is critical.

13

71. The FI Score measures the average of 11 functional ranks, weighted based on the

14 number of hours authorized by counties to those tasks in 1988. Counties’ assessment of hours may

15 not have been uniform or accurate in 1988. The population of individuals receiving IHSS services

16 has changed since 1988.

17

72. The FI Score does not include the functional ranks for mental functioning (memory,

18 orientation, judgment). Only the eleven functional ranks for physical ADLs are considered in

19 calculating the FI Score. ACL 88-118, Questions 7, 10.

20

73. Recipients with cognitive or psychiatric disabilities are more likely to receive

21 functional ranks of 2 for the 11 ADL tasks that are used to calculate the FI Score, because they may

22 require verbal rather than physical assistance.

23

74. The FI Score does not include functional ranks for certain IHSS services for which

24 no functional rank is calculated, including repositioning and rubbing skin, care and assistance with

25 prosthetic devices, assistance with self-administration of medications, and travel to medical

26 appointments.

27

75. Because children under a certain age receive automatic ranks of 1 for four or more

28 of the eleven tasks (depending on age), their FI Scores tend to be lower than those of adults. See
14
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1 MPP § 30-763.451-462.

2

76. Because recipients of paramedical services receive automatic ranks of 6 for certain

3 tasks, which are then converted to 1’s in calculating the FI Score, their FI Scores tend to be lower

4 than they would be otherwise. See MPP § 30-756.41-42.

5

77. Although the FI Score is not a rational measure of need for any individual, the

6 above-described factors cause FI Scores to be a particularly poor measure for certain groups of

7 IHSS recipients, including children, individuals with impairments in mental functioning,

8 individuals whose need is greatest in areas where not very many hours are allocated on a statewide

9 basis, individuals who have high need in a few areas, individuals who receive paramedical

10 services, and individuals whose greatest need is for medication reminders and travel to medical

11 appointments.

12

78. ABX4 4 established exemptions to the eligibility restriction for IHSS recipients

13 authorized for paramedical services, protective supervision, or 120 or more hours of IHSS per

14 month. The bill also gave authority to the Director of CDSS to waive these exemptions if

15 necessary to maintain federal financial participation, and the Governor’s veto message indicated

16 the Governor’s intent to waive all three of these exemptions.

17

79. In a draft All County Letter released on September 18, 2009 (‘Draft ACL”), and a

18 final All County Letter released on October 1, 2009 (ACL 09-56), CDSS stated that the exemptions

19 for paramedical services and protective supervision were being retained for the time being, but that

20 the Director had waived the exemption for recipients who are authorized to receive at least 120

21 hours of IHSS services per month. ACL 09-56 stated that it was possible that the exemptions for

22 protective supervision and paramedical services would be waived, based on guidance from the

23 federal government. Accordingly, Plaintiffs still do not know whether recipients who are

24 authorized for paramedical services or protective supervision will be subject to the eligibility

25 restrictions.

26

2. Reductions in Domestic and Related Services

27

80. Under Section 12309(e) as amended by ABX4 4, even IHSS recipients who remain

28 eligible for IHSS services will no longer receive domestic and related services (meal preparation
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1 and clean up, laundry, shopping and errands) if their functional rank is below 4 for that particular

2 service.

3

81. Other than the functional rank of 1, the functional ranks were not designed as

4 measures of eligibility for assistance for a particular task. Before the enactment of ABX4 4, the

5 functional ranks 2, 3, 4, or 5 were never used to determine eligibility for services.

6

82. All IHSS recipients with functional ranks of 2, 3, 4, or 5 have been individually

7 assessed by a social worker to need authorized services for a specified number of hours to live

8 safely in their homes. Recipients with a functional rank of 2 or 3 have as great a need for domestic

9 and related services as recipients with a rank of 4 or 5; they cannot perform those functions safely

10 without assistance.

11

83. Individuals with cognitive or psychiatric, as opposed to physical, disabilities often

12 receive a 2 rank for many ADLs, because they need verbal as opposed to physical assistance.

13 Because, by definition, they cannot perform the given activity without this verbal assistance, their

14 need for this verbal assistance is as great as the need of recipients who need physical assistance to

15 perform the same activity.

16

84. It is often difficult for social workers to distinguish between the ranks of 3 (need

17 “some human assistance”) and 4 (need “substantial human assistance”), especially when a

18 recipient’s functioning may vary from day to day.

19

85. Prior to the enactment of ABX4 4, IHSS recipients were not notified of their

20 functional ranks. These functional ranks did not appear on the NOAs that recipients receive upon

21 their assessment and reassessment.

22

86. On information and belief, DSS will not require the reassessment or review of the

23 impact that elimination of domestic and related services may have on IHSS recipients’ assessed

24 needs in relation to other activities.

25

87. ABX4 4 established exemptions to the elimination of domestic and related services

26 for IHSS recipients authorized for paramedical services, protective supervision, or 120 or more

27 hours of IHSS services per month. The bill also gave authority to the Director of the Department

28 of Social Services to waive these exemptions if necessary to maintain federal financial
16
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1 participation, and the Governor’s veto message indicated the Governor’s intent to waive all three of

2 these exemptions.

3

88. In the Draft ACL released September 18, 2009, and final ACL released October 1,

4 2009 (ACL 90-56), CDSS stated that the exemptions for protective supervision and paramedical

5 services were being retained for the time being, but that the Director had waived the exemption for

6 recipients who are authorized to receive at least 120 hours of IHSS services per month. ACL 90-56

7 stated that it was possible that the exemptions for protective supervision and paramedical services

8 would also be waived, based on guidance from the federal government. Accordingly, Plaintiffs

9 still do not know whether recipients who are authorized for protective supervision or paramedical

10 services will be subject to the cuts in domestic and related services.

11

3. Notice to Recipients and Fair Hearing Rights

12

89. IHSS recipients have not heretofore been informed of the possibility that they will

13 lose eligibility for IHSS services based on their FI Score or the possibility that they will lose

14 eligibility for domestic and related services based upon their functional ranks for those services.

15

90. Many IHSS recipients who have requested their FI Scores and/or their individual

16 functional ranks from their social workers and/or counties have been unable to obtain them.

17

91. On September 18, 2009, CDSS issued a draft All-County Letter (“Draft ACL”)

18 stating that the IHSS eligibility restrictions and service cuts would be implemented on November

19 1, 2009. On October 1, 2009, CDSS issued a final All-County Letter (ACL 09-56), stating that

20 IHSS eligibility restrictions and service cuts would be implemented on November 1, 2009, and

21 providing counties with instructions for implementation of the eligibility restrictions and service

22 cuts.

23

92. A copy of the notice that will be sent to IHSS recipients who are losing some or all

24 of their services is attached to ACL 09-56. IHSS recipients will be notified of their FI Scores and

25 all of their functional rankings if they are losing eligibility for IHSS services, and of their

26 functional ranks for domestic or related services if they are losing one or more of those services.

27

93. The notice also includes a 22 page “stuffer” that includes the complex mathematical

28 formula for calculating the FI Score. This complex mathematical formula is not used by county
17
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1 social workers, because the FI Score is calculated automatically by the state’s computer system.

2

94. The 22-page “stuffer” consists of the detailed agency procedures given to county

3 social workers for determining functional rank for each ADL. The language is lifted verbatim from

4 official policies and procedures issued by CDSS to counties for use by social workers, who have

5 years of training and experience in using documents such as this. The language in which the 22-

6 page stuffer is written is not comprehensible to typical IHSS recipients, who are all aged, blind, or

7 disabled, and who have not received the training provided to county social workers. The language

8 may be particularly incomprehensible to the large number of IHSS recipients who have cognitive

9 or other mental disabilities.

10

95. ACL 09-56 also states that the notices will be sent “no less than the required 10-day

11 notice.” On information and belief, Defendants will notify recipients that their IHSS services have

12 been cut or reduced only ten days before the implementation date of November 1, 2009.

13

96. The timing of the notice to IHSS recipients of the eligibility restrictions and

14 elimination of authorized hours will not provide adequate time for recipients to make alternative

15 arrangements for assistance, to the extent such arrangements are possible.

16

97. According to ACL 09-56, recipients will be able to request state hearings regarding

17 disputes over their FI Scores or functional ranks, and to request aid paid pending appeal if they file

18 their hearing requests prior to the effective date of the notice of action.

19

98. Defendants operate the state administrative hearing system through a series of

20 regional hearing offices. Recipients and applicants who appeal denials or reductions of Medi-Cal,

21 IHSS, Cal-Works, Food Stamps, Adoption Assistance and other public benefits must file a timely

22 request for hearing with the hearing office or the local welfare office. On information and belief,

23 these hearing offices are presently unable to respond in a timely manner to all the claimants who

24 request administrative hearings, so that the state hearing officers recently decided to no longer

25 consider requests for reconsideration of an adverse hearing decision.

26

99. On information and belief, as many as 100,000 class members may request an

27 administrative hearing to appeal the reduction or termination of their IHSS benefits pursuant to

28 ABX4 4. Because Defendants have failed to allocate the staff and resources to respond to this
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1 number of expected hearing requests, Plaintiffs will be unable to obtain a timely hearing regarding

2 their appeals.

3

100. IHSS recipients have not been, and will not be, notified of the availability of

4 replacement services available under the Medi-Cal State Plan, to the extent any other services are

5 available. Nor have the State or counties arranged for such replacement services, to the extent any

6 services are available.

7

4. Impact upon Recipients

8

101. The loss of eligibility for all IHSS services or the loss of domestic and related

9 services is likely to cause Plaintiff Class members to suffer declines in physical functioning,

10 increased medical complications, and additional preventable accidents resulting in physical injury.

11 This will expose them to a serious risk of harm to their health and safety and cause a serious risk of

12 unwanted out-of-home placement, including unwanted institutionalization.

13

102. The loss of eligibility for all IHSS services or the loss of domestic and related

14 services is likely to cause Plaintiff Class members to suffer declines in mental functioning. This

15 will expose them to a serious risk of harm to their health and safety and cause a serious risk of out-

16 of-home placement, including unwanted institutionalization.

17

103. Individuals whose physical or cognitive impairments are such that they cannot be

18 left alone or whose health conditions are extremely unstable are likely to face immediate out-of-

19 home placement in an institution.

20

104. Other individuals will lose physical and mental functioning as a result of the loss of

21 or reduction in their IHSS services. For example, individuals with psychiatric disabilities may stop

22 taking their medications and become delusional, suicidal, or otherwise present a danger to

23 themselves and others. Individuals deprived of shopping, meal preparation and and/or eating

24 assistance may become malnourished or ill because they eat foods contraindicated by medical

25 conditions or necessary medications, or fail to eat at all. Individuals deprived of domestic services

26 may suffer falls or other injuries if they attempt to perform cleaning and other household tasks.

27 Other individuals will live in unsanitary and potentially hazardous situations that can lead to falls,

28 illness, and/or eviction and homelessness. The mental or physical functioning of these individuals
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1 is likely to deteriorate to the point that they also face out-of home placement, including unwanted

2 and preventable institutionalization.

3

105. Out-of-home placement in an institution can often further destabilize already

4 compromised mental or physical functioning. Once placed in an institution, it is extremely difficult

5 for individuals to move out of institutions and back into the community.

6

106. It costs far more to institutionalize elderly and disabled individuals in nursing homes

7 or other institutions than it does to provide IHSS services that allow them to live in community-

8 based settings.

9

107. The IHSS Program helps prevent costly and unnecessary institutionalization, saving

10 the State significant funds, and, at the same time, improving the quality of life for the individuals

11 served.

12

C. Facts Related to Individual Plaintiffs

13

1. Named Plaintiff V.L.

14

108. Named Plaintiff V.L. is a 14-year-old boy, and is a qualified person with a

15 disability—specifically, Charcot-Marie-Tooth Disease (“CMT”), an inherited form of muscular

16 dystrophy known as peroneal muscular atrophy. He lives with his family in San Francisco,

17 California and attends a local middle school.

18

109. Because of his disabilities, V.L. has wasting and weakness in his hands, feet, and

19 legs. It is difficult for him to stand or walk for more than a few minutes. He wears an orthotic

20 brace to help him stand and walk, even in the shower. V.L. cannot sense when shower water is too

21 hot or too cold. Because of weakness in his hands, V.L. has trouble cutting and eating his food,

22 and putting on and taking off his leg braces and wrist splints. V.L. also requires help getting

23 dressed, as he cannot put on or button his clothes. V.L. also requires assistance to use the

24 bathroom.

25

110. V.L. is authorized to receive 44.8 hours of IHSS services per month. His provider

26 helps him out approximately ten hours per week with such personal tasks as using the restroom,

27 bathing, getting dressed, exercising, and putting on and taking off his leg brace and wrist splints.

28

111. V.L.’s mother was recently told by his social worker that he will be losing eligibility

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1 for all IHSS services because his FI Score is below 2.0.

2

112. These IHSS services are critical to enable V.L. to remain safely in his home with his

3 family and to attend a local school. V.L.’s mother is unable to assist V.L., because she also has

4 CMT and uses a wheelchair. V.L.’s father works during the day, and thus is not available to help

5 V.L. during work hours. V.L.’s need for services is so great that his older brother has temporarily

6 dropped out of college at CSU-Northridge in order to serve as V.L.’s IHSS provider until V.L’s

7 regular provider returns from an extended leave of absence.

8

2. David Oster

9

113. David Oster is a 33-year-old man who is a qualified person with disabilities,

10 including autism and bi-polar disorder. He lives by himself in an apartment in Los Angeles

11 County.

12

114. Because of his disabilities, Mr. Oster is unable to remember to take his medications

13 (consisting of some 20 pills, including medications necessary to control his bi-polar disorder) and

14 is unable to go shopping, cook, or clean up after himself. For example, he cannot concentrate and

15 follow directions to cook a nutritionally balanced meal following the diet prescribed by his doctor,

16 and forgets to put food away before it spoils. Mr. Oster is also unable to get to medical

17 appointments himself, as he cannot drive and becomes confused if he tries to take public

18 transportation.

19

115. Before he began receiving IHSS services, Mr. Oster’s apartment was in great

20 disarray. Trash, clutter, and rotten food were strewn about his apartment, which was infested with

21 cockroaches. Mr. Oster had to pick his way among makeshift pathways between the debris. All

22 the food in his refrigerator was spoiled. His clothes were dirty, and he rarely bathed. He was at risk

23 of serious health consequences from the unsanitary conditions and inadequate meals, and was also

24 in serious danger of eviction from his apartment because of the unsanitary conditions in which he

25 was living.

26

116. Mr. Oster began receiving IHSS services approximately two years ago and currently

27 receives 63.2 hours per month of IHSS services. Without these services, he would not be able to

28 live independently in the community.
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1

117. Mr. Oster’s IHSS provider performs the following services: cooks meals following

2 the diet that has been medically prescribed by Mr. Oster’s doctor; sets out medications and reminds

3 Mr. Oster to take them; takes Mr. Oster to doctor’s appointments; reminds Mr. Oster to bathe; does

4 Mr. Oster’s laundry; and cleans the apartment and changes bed linens.

5

118. Mr. Oster’s social worker has told Mr. Oster that his FI Score is 1.9. Because his FI

6 Score is below 2.0, Mr. Oster will lose eligibility for all IHSS services. Although Mr. Oster has

7 functional ranks of 5 for housework, laundry, and shopping, and a functional rank of 3 for meal

8 preparation, his composite FI Score is under 2.0 because he is ranked a 1 for many other ADLs that

9 he can perform himself, such as eating, bowel/bladder care, mobility, transfer, and respiration.

10

119. When Mr. Oster learned that his IHSS services would be cut, he was so terrified

11 about losing services that he had a nervous breakdown and had to be hospitalized for two weeks for

12 inpatient psychiatric services. Upon discharge, he then had to continue in a psychiatric outpatient

13 program for several weeks more.

14

120. Mr. Oster does not want to lose his apartment or his independence and does not

15 want to live in a group home or board and care facility where his independence and freedom would

16 be restricted. He is sure that he will not be able to maintain his independence without IHSS

17 services. Without IHSS services, Mr. Oster is at serious risk of increased psychiatric problems,

18 including hospitalization and institutionalization, because he cannot take his medications, cook his

19 medically necessary diet, or maintain sanitary conditions necessary to maintain an independent

20 apartment.

21

121. Prior to his recent conversation with his social worker, Mr. Oster had never been

22 informed of his functional ranks or FI Score.

23

3. Willie Beatrice Sheppard

24

122. Named Plaintiff Willie Beatrice Sheppard is 81 years old and is a qualified person

25 with disabilities, including arthritis and the effects of a stroke. She lives by herself in an apartment

26 in Emeryville, California.

27

123. Ms. Sheppard uses a cane or electric wheelchair for mobility and cannot stand for

28 any length of time. She cannot get in and out of the bathtub without assistance. Sometimes Ms.
22
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1 Sheppard cannot use her hands or the entire right side of her body because of her stroke and cannot

2 pick up any heavy object. Ms. Sheppard is also easily fatigued.

3

124. Ms. Sheppard has been receiving IHSS services since 2003.

4

125. Ms. Sheppard’s IHSS provider comes to her home twice a week to help her bathe, to

5 clean the house, and to prepare meals (in sufficient quantities that Ms. Sheppard can microwave the

6 leftovers on days that her provider is not working).

7

126. Meal preparation is essential to Ms. Sheppard’s health and well being, as she does

8 not have sufficient strength in her hands, or the stamina to stand, to cook meals. Ms. Sheppard’s

9 physician has advised her that she cannot eat foods that are high in sodium because of her stroke

10 risk. For that reason, Ms. Sheppard must avoid eating prepared processed foods.

11

127. Ms. Sheppard is only able to bathe two days a week, on those days when her

12 provider is there. Were it not for her provider, Ms. Sheppard would be unable to bathe at all.

13

128. Ms. Sheppard’s provider performs all heavy housecleaning for her, as Ms. Sheppard

14 is unable to push around a vacuum or mop while walking with a cane, and is unable to scrub the

15 bathroom. If she attempted these tasks, she might fall and further injure herself. She has had

16 several previous falls. Because Ms. Sheppard is 81 years old, she is more susceptible to illnesses,

17 and thus a clean house is important to her health and well-being.

18

129. Because of her mobility impairments, it is very difficult for Ms. Sheppard to travel

19 outside her home. Accordingly, her provider must shop for groceries and pick up her prescription

20 medications.

21

130. Ms. Sheppard lives alone and is dependent upon IHSS services. Most of her

22 children do not live in the area, and her one daughter who does live nearby has a disabled son who

23 requires her full time attention.

24

131. Ms. Sheppard has never been informed of her FI Score or her functional ranks. She

25 is afraid that her IHSS eligibility may be eliminated or her service hours for domestic (cleaning)

26 and meal preparation will be reduced. If this happens, she will not have adequate meals or

27 sanitation, resulting in a serious risk that Ms. Sheppard’s medical condition will deteriorate or she

28 will fall and injure herself and then will require placement in a nursing home. Ms. Sheppard used
23
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1 to work in a nursing home and knows that nursing home staff are often overworked and unable to

2 provide quality care to each resident. Thus, she wants to avoid having to be placed in a nursing

3 home.

4

4. Named Plaintiff C.R.

5

132. C.R. is a five-year-old boy and is a qualified person with a disability, specifically,

6 developmental disability caused by chromosome deletion. He lives with his family in Gilroy,

7 California. His mother and guardian ad litem here, Michelle Rivera, is his provider.

8

133. C.R. has a developmental disability because he is missing the chromosome known

9 as 3P25, which causes a disconnect between his brain and his body parts. C.R. has global delays

10 across all spectrums: He cannot walk, talk, or chew food. He uses a manual wheelchair, because

11 he does not have the mental capacity to use a motor or power chair. He has to be repositioned

12 regularly, because he can only sit up for twenty minutes at a time. He also has hearing loss and

13 vision loss.

14

134. Because of his disabilities, C.R. cannot eat or drink by himself. His mother helps

15 him drink by placing a sippy cup firmly in his hands, wrapping his hands around the cup, and then

16 putting the cup to his mouth. He can then suck on the sippy cup. Because he cannot chew food, all

17 of his food must be pureed. His mother must place food into his mouth, spoonful by spoonful,

18 until he swallows it. It takes about twenty minutes to feed C.R. each meal. C.R. does not receive

19 IHSS services for eating/feeding. On information and belief, C.R. does not receive IHSS services

20 for feeding because the county has determined he is too young to receive IHSS services for

21 feeding.

22

135. C.R. wears diapers because he cannot control his bowels, but does not receive IHSS

23 services for toileting and dressing. On information and belief, C.R. does not receive IHSS services

24 for toileting or dressing because the county has determined he is too young to receive IHSS

25 services for toileting and dressing.

26

136. C.R. is authorized for 55 hours of IHSS services per month for transportation to

27 medical appointments (40 miles away), moving in and out of bed or a vehicle (a special school bus

28 that picks him up to attend preschool for children with disabilities), rubbing skin, and
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1 repositioning.

2

137. C.R.’s mother has been told that C.R. will lose eligibility for IHSS services because

3 his FI Score is 1.97.

4

138. Although C.R. only receives 55 hours of IHSS services per month, those IHSS

5 service hours are critical. His mother works as his provider and uses the money she earns to

6 purchase C.R.’s special, medically necessary foods and gas to take him to his many medical

7 appointments.

8

139. C.R. needs to stay at home with his mother as his provider. In order to fully

9 maximize his potential, he needs one-on-one care on a constant basis to encourage each small step

10 of being able to control his body himself. Although doctors are unable to predict the prognosis for

11 a child with C.R.’s type of disability, they do know that if there is to be any hope for C.R. to learn

12 to walk, talk, or chew on his own, he needs continued one-on-one care to encourage him to do

13 everything that he can learn to do.

14

140. If the only way for C.R. to stay at home would be for his family to hire an outside

15 provider, rather than his mother, they would do that. However, they do not believe they will be

16 able to find anyone capable of caring for him; they looked before but were unable to find anyone.

17

5. Named Plaintiff Dotty Jones

18

141. Named Plaintiff Dotty Jones is 51 years old, and is a qualified person with

19 disabilities, including AIDS and neuropathy. She lives alone in Grass Valley, in Nevada County.

20

142. As a result of Ms. Jones’ neuropathy, it is nearly impossible for her to walk or to use

21 her hands. Her limbs are numb and painful. She cannot grab objects without dropping them. The

22 neuropathy also affects her balance and coordination. As a result of AIDS, Ms. Jones has

23 diminished appetite and sores in her mouth, which make eating difficult and painful.

24

143. Ms. Jones has been receiving IHSS services since 1994. Her IHSS provider assists

25 her with many tasks of daily living, including meal preparation and clean up, and housecleaning.

26

144. Ms. Jones cannot cook for herself, because she is unable to lift pots and pans or hold

27 or chop food items. In addition to cooking for her, Ms. Jones’ provider spends time urging Ms.

28 Jones to eat, which is very important because of Ms. Jones’ diminished appetite. Because of Ms.
25
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1 Jones weakened immune system, it is critical for her to maintain her weight and to eat nutritious

2 meals.

3

145. Ms. Jones cannot clean the house herself, because she cannot maneuver or hold a

4 broom or vacuum, or even pick up items off the floor. Before Ms. Jones began receiving IHSS

5 services her apartment was very cluttered because she was unable to move things or clean, and her

6 neuropathy is much worse now that it was when she began to receive IHSS services. It is very

7 important for Ms. Jones’ apartment to remain clean and sanitary, because she is extremely

8 susceptible to bronchial infections and pneumonia due to her compromised immune system.

9

146. Because Ms. Jones’ Functional Index Score is 2.28, she remains eligible for IHSS

10 services, and will continue to receive some services, such as assistance with laundry and shopping.

11 However, because Ms. Jones functional rankings for meal preparation and clean up and for

12 housekeeping are 3, she will lose those services.

13

147. Ms. Jones does not have any living family members who can assist her. Without

14 her IHSS provider cooking meals, cleaning up after meals, and cleaning her apartment, Ms. Jones

15 will not have nutritious meals, and will not be able to maintain her apartment in a clean and

16 sanitary condition. Particularly in light of her AIDS-compromised immune system and lack of

17 appetite, Ms. Jones is likely to become malnourished, lose weight, and come down with

18 pneumonia, bronchial infections, or other illnesses. This is likely to result in increased trips to the

19 emergency room, increased hospitalization, and potentially early death.

20

CLASS DEFINITION AND ALLEGATIONS

21

148. Pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure,

22 Individual Named Plaintiffs V.L., David Oster, Willie Beatrice Sheppard, C.R, and Dotty Jones

23 bring this action on behalf of themselves and all other persons similarly situated. For the First,

24 Second, Third, Fourth, Fifth, and Seventh claims for relief, Plaintiffs bring this action on behalf of

25 a class consisting of “all recipients of IHSS in the State of California whose IHSS services will be

26 limited, cut, or terminated under the provisions of ABX4 4, and all applicants to IHSS in the State

27 of California who would have been eligible for IHSS services but who are either not eligible, or are

28 eligible for fewer services, as a result of ABX 4 4 (hereinafter the “Class”).”
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1

149. Plaintiffs V.L., David Oster, Willie Beatrice Sheppard, C.R., Dotty Jones, and

2 others similarly situated also plead subclasses of individuals as follows:

3

a. For the Sixth claim for relief: “Loss of Domestic and Related

4

Services Subclass” to be defined as “all present and future IHSS recipients

5

and applicants who have been or would have been authorized to receive

6

domestic and/or related IHSS, and whose IHSS will be reduced to eliminate

7

some or all of their domestic and/or related services under the provisions of

8

ABX4 4.” Plaintiffs Dotty Jones and Willie Beatrice Sheppard are typical of

9

this subclass.

10

b. For the Ninth claims for relief: “Termination of Benefits Subclass” to

11

be defined as “all present and future IHSS recipients and applicants who

12

have been or would have been authorized to receive IHSS, and whose IHSS

13

services will be terminated or denied in their entirety under the provisions of

14

ABX4 4.” Plaintiffs V.L., David Oster, and C.R. are typical of this subclass.

15

c. For the Eighth claim for relief: “Children Subclass” to be defined as

16

“all present or future IHSS recipients who are under the age of 21, who

17

qualify for full-scope Medi-Cal with federal financial participation, and who

18

therefore are entitled to the protections of the Early Periodic Screening

19

Diagnosis and Treatment provisions of the federal Medicaid Act, 42 U.S.C.

20

§ 1396a(a), who have been or would have been authorized to receive IHSS,

21

and whose IHSS services will be reduced or terminated under the provisions

22

of ABX4 4.” Plaintiffs C.R. and V.L. are typical of this subclass.

23

150. Numerosity: The Plaintiff Class is so numerous that joinder of all its members is

24 impracticable. There are more than 130,000 persons in the Class. Upon information and belief the

25 “Termination of Benefits subclass” consists of approximately 36,000 individuals. Upon

26 information and belief, the “Loss of Domestic and Related Services Subclass” consists of

27 approximately 97,000 people. Upon information and belief the “Children Subclass” consists of

28 over one thousand children. Joinder of individuals in the Class and subclasses is also impracticable
27
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1 because of the size of the subclasses, and because members of the Plaintiff Class lack the

2 knowledge and financial means to maintain individual actions and are geographically disbursed

3 throughout the state.

4

151. Commonality: Common questions of law and fact predominate over questions

5 affecting individual Class members. Questions of law and fact common to members of the Class

6 include but are not limited to whether Sections 12309 and 12309.2 violate provisions of the

7 Medicaid Act, the ADA, and Section 504, and whether the implementation of Sections 12309 and

8 12309.2 fail to meet the requirements of procedural due process established by the U.S.

9 Constitution.

10

152. Typicality: The claims of the Individual Named Plaintiffs are typical of the claims

11 of the Class as a whole and are typical of the claims of the subclasses in that the Individual Named

12 Plaintiffs and members of the Plaintiff Class currently are eligible IHSS participants and qualified

13 individuals with disabilities who will be affected similarly by the IHSS eligibility changes enacted

14 by ABX4 4 and Defendants’ policies and practices. The claims arise from the same unlawful and

15 discriminatory law and policies and practices of Defendants.

16

153. Adequate representation: The Individual Named Plaintiffs will fairly represent

17 and adequately protect the interests of members of the class as a whole. The Individual Named

18 Plaintiffs do not have any interests antagonistic to those of other members of the Plaintiff Class.

19 By filing this action, the Individual Named Plaintiffs have displayed an interest in vindicating their

20 rights, as well as the claims of others who are similarly situated. The relief sought by the

21 Individual Named Plaintiffs will inure to the benefit of members of the Plaintiff Class generally.

22 Plaintiffs are represented by counsel who are experienced, skilled, and knowledgeable about civil

23 rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal

24 courts and the prosecution and management of class action litigation.

25

154. Class certification is appropriate pursuant to Federal Rules of Civil Procedure

26 23(b)(2) because Defendants have acted, refused to act, or will act on grounds generally applicable

27 to the Class, thereby making final injunctive and declaratory relief appropriate with respect to the

28 Class as a whole.
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1

155. Members of the plaintiff class share a common need for IHSS services and

2 Defendants’ policies and actions in limiting or terminating IHSS services, and the provisions of

3 ABX 4 4, are applicable to the entire class.

4

LEGAL CLAIMS

5

156. Defendants’ actions, as alleged herein, have resulted in, and will continue to result

6 in, irreparable injury to members of the Plaintiff Class for which they have no plain, speedy, or

7 adequate remedy at law. Members of the Plaintiff Class will suffer irreparable injury in that they

8 will be deprived of critical health-related services and subjected to imminent risk of out-of-home

9 placement, institutionalization and/or harm to their health and safety.

10

157. IHSS provider members of the organizational plaintiffs who provide IHSS services

11 for members of the Plaintiff Class will also be subject to irreparable injury, for they will lose

12 employment and hours of work for which they will be unable to recover monetary damages and

13 which will lead to harm to their health and deprivation of life necessities. Some members of these

14 organizational plaintiffs and their minor children for whom they provide services are at risk of

15 losing their children’s IHSS services and will suffer irreparable injury as a result. Additionally, the

16 organizational plaintiffs’ members include retirees who receive IHSS services themselves and are

17 at risk of losing services under ABX4 4.

18

158. An actual controversy exists between Plaintiffs and Defendants in that Defendants

19 are seeking to implement reductions and terminations in IHSS services to which members of the

20 Plaintiff Class are entitled, and which, if implemented, will place members of the Plaintiff Class at

21 risk of unnecessary out-of-home placement, institutionalization and harm to their physical and

22 mental health. Further, these reductions and terminations violate the Due Process Clause of the

23 Fourteenth Amendment to the United States Constitution, the ADA, Section 504, and various

24 provisions of the Medicaid Act. Plaintiffs therefore seek a declaration as to their rights and

25 Defendants’ corresponding duties with respect to the matters alleged herein.

26

159. The balance of harms favors entering an injunction because the harm suffered by

27 individuals deprived of crucial and needed IHSS outweighs any monetary loss to Defendants.

28
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1

160. It is in the public interest that the Court grant an injunction to ensure that Plaintiffs

2 and other similarly situated individuals receive medically necessary medical benefits to which they

3 are entitled.

4

161. In taking the relevant actions, Defendants have acted under color of state law.

5

FIRST CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

6

Constitutional Due Process

7

162. Plaintiffs reallege and incorporate herein by reference each and every allegation and

8 paragraph set forth previously.

9

163. Plaintiffs and members of the Plaintiff Class are entitled to adequate notice of and

10 opportunity for a pre-termination or pre-reduction hearing on any termination or reduction in

11 medical care and services. See Goldberg v. Kelly, 397 U.S. 254 (1970).

12

164. The notice Defendants propose to send is not adequate or effective, because it is

13 incomprehensible to Plaintiffs and members of the Plaintiff Class. It does not provide Plaintiffs

14 and class members with meaningful information necessary to determine whether the agency has

15 made a mistake in terminating their benefits and how they can contest those mistakes at the hearing

16 to stop the termination.

17

165. The notice Defendants propose to send is not adequate or effective, because ten days

18 is not sufficient time for IHSS recipients, many of whom have cognitive or psychiatric disabilities,

19 to appeal the decision to reduce or terminate their services.

20

166. On information and belief, Plaintiffs and Class members will be unable to obtain a

21 timely hearing if they do file an appeal.

22

167. Unless enjoined, Defendants will reduce or terminate IHSS services to which

23 members of the Plaintiff Class are entitled and have a property interest in maintaining, thereby

24 depriving class members of their right to an opportunity for fair hearing before reduction or

25 termination of benefits.

26

168. These actions violate the Due Process Clause of the Fourteenth Amendment to the

27 U.S. Constitution, U.S. CONST. Amend. XIV.

28
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1

169. Defendants’ actions deprive Plaintiffs and members of the Plaintiff Class of rights,

2 privileges or immunities secured to them by the Constitution of the United States, in violation of 42

3 U.S.C. § 1983.

4

SECOND CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

5

Medicaid Act Right to a Fair Hearing

6

170. Plaintiffs reallege and incorporate herein by reference each and every allegation

7 and paragraph set forth previously.

8

171. Under federal Medicaid requirements, recipients and applicants for Medicaid

9 services have rights to written notice and a pre-termination fair hearing if their benefits are

10 reduced, suspended, or terminated. 42 U.S.C. § 1396a(a)(3).

11

172. This notice must contain the following:

12

(a) A statement of what action the State . . . intends to take;

13

(b) The reasons for the intended action;

(c) The specific regulations that support, or the change in Federal or State law that

14

requires, the action;

(d) An explanation of–

15

(1) The individual’s right to request an evidentiary hearing if one is available, or

16

a State agency hearing; or (2) In cases of an action based on a change in law, the circumstances under

17

which a hearing will be granted; and

(e) An explanation of the circumstances under which Medicaid is continued if a hearing

18

is requested.

19 42 C.F.R. § 431.210.

20

173. Pursuant to the Medicaid Act, California has established procedures to provide fair

21 hearings to any Medi-Cal beneficiary whose services are denied, reduced, or terminated. Cal. Code

22 Regs. tit. 22 § 51014.1(a).

23

174. In reducing or terminating services as set forth above, Defendants have deprived

24 Plaintiffs and members of the Plaintiff Class of their opportunity to notice and a fair pre-

25 termination hearing in violation of 42 U.S.C. § 1396a(a)(3).

26

175. Defendants’ actions deprive Plaintiffs and members of the Plaintiff Class of rights,

27 privileges or immunities secured to them by the Constitution of the United States, in violation of 42

28
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1 U.S.C. § 1983, and are preempted by the Supremacy Clause of the United States Constitution,

2 Article IV.

3

THIRD CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

4

Americans with Disabilities Act, 42 U.S.C. § 12134-35 et seq.

5

176. Plaintiffs reallege and incorporate herein by reference each and every allegation and

6 paragraph set forth previously.

7

177. Title II of the ADA provides that “no qualified individual with a disability shall, by

8 reason of disability, be excluded from participation in or be denied the benefits of services,

9 programs, or activities of a public entity or be subjected to discrimination by such entity.” 42

10 U.S.C. § 12132.

11

178. In enacting the ADA, Congress found that “[i]ndividuals with disabilities

12 continually encounter various forms of discrimination, including . . . segregation . . . .” 42 U.S.C.

13 § 12101(a)(5).

14

179. Regulations implementing Title II of the ADA provide: “A public entity shall

15 administer services, programs, and activities in the most integrated setting appropriate to the needs

16 of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).

17

180. Defendants Director Wagner and Director Maxwell-Jolly are the directors of CDSS

18 and CDHCS, respectively, which are public entities within the meaning of Title II of the ADA.

19

181. Regulations implementing Title II of the ADA provide: “A public entity may not,

20 directly or through contractual or other arrangements, utilize criteria or other methods of

21 administration: (i) that have the effect of subjecting qualified individuals with disabilities to

22 discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or

23 substantially impairing accomplishment of the objectives of the entity’s program with respect to

24 individuals with disabilities. . . .” 28 C.F.R. § 35.130(b)(3).

25

182. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581

26 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of

27 discrimination under Title II of the ADA. In doing so, the Supreme Court interpreted the ADA’s

28 “integration mandate” as requiring persons with disabilities to be served in the community when:
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1 (1) the state determines that community-based treatment is appropriate; (2) the individual does not

2 oppose community placement; and, (3) community placement can be reasonably accommodated.

3 Id. 527 U.S. at 607.

4

183. The ADA prohibits discrimination based on type of disability.

5

184. The ADA’s regulations further provide that “[a] public entity shall not impose or

6 apply eligibility criteria that screen out or tend to screen out an individual with a disability or any

7 class of individuals with disabilities from fully and equally enjoying any service, program, or

8 activity, unless such criteria can be shown to be necessary for the provision of the service,

9 program, or activity being offered.” 28 C.F.R. 35.130(b)(8).

10

185. Pursuant to the ADA, public entities are required to provide meaningful access to

11 their programs, services and activities, and provide any accommodations or modifications

12 necessary for people with disabilities to access those services.

13

186. Each Individual Named Plaintiff and member of the Plaintiff Class is a “qualified

14 individual with a disability” within the meaning of the ADA in that they (1) have physical and/or

15 mental impairments that substantially limit one or more major life activities; and meet the essential

16 eligibility requirements in that they (2) are capable of living independently in their own homes

17 and/or in the most integrated community setting possible, with assistance; and (3) meet the Medi-

18 Cal income eligibility requirements.

19

187. Defendants’ actions have placed members of the Plaintiff Class at imminent risk of

20 unnecessary confinement in institutions, including nursing facilities, or other out-of home

21 placements that are not the most integrated community placements possible, in violation of the

22 ADA’s integration mandate.

23

188. Defendants discriminate against Plaintiffs and Class members in ways that include,

24 but are not limited to, failing to provide reasonable modifications to programs and services.

25

189. Defendants have utilized eligibility criteria and methods of administration that

26 subject Individual Named Plaintiffs and members of the Plaintiff Class to discrimination on the

27 basis of disability, in violation of 28 C.F.R. § 35.130(b)(3) &(8), and otherwise denied meaningful

28 access to their programs, services and activities.
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1

190. Defendants’ actions discriminate against individuals with cognitive and psychiatric

2 disabilities, based on their type of disability, because the functional rankings and FI Scores for such

3 individuals are lower than the functional rankings and FI Scores of individuals with physical

4 disabilities who have the same level of need for IHSS services, and will result in the deprivation of

5 services to individuals with mental disabilities, even if they have the same level of need as

6 individuals with physical disabilities who are not deprived of IHSS services.

7

191. Defendants’ actions violate Title II of the ADA.

8

192. Pursuant to 42 U.S.C. § 12133, Plaintiffs are entitled to declaratory and injunctive

9 relief as well as reasonable attorneys’ fees and costs incurred in bringing this action.

10

FOURTH CLAIM FOR RELIEF

(Defendants DHCS and CDSS)

11

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.

12

193. Plaintiffs reallege and incorporate herein by reference each and every allegation and

13 paragraph set forth previously.

14

194. Section 504 of the Rehabilitation Act of 1973, on which the ADA is modeled, sets

15 forth similar protections against discrimination by recipients of federal funds, such as Defendants

16 herein. 29 U.S.C. §§ 794-794a. These protections include the prohibition against unnecessary

17 segregation. Regulations implementing Section 504 require that a public entity administer its

18 services, programs and activities in “the most integrated setting appropriate” to the needs of

19 qualified individuals with disabilities. 28 C.F.R. § 41.51(d).

20

195. Section 504 prohibits discrimination based on type of disability.

21

196. Section 504’s regulations prohibit recipients of federal financial assistance from

22 utiliz[ing] criteria or methods of administration . . . (i) [t]hat have the effect of subjecting qualified

23 handicapped persons to discrimination on the basis of handicap [or] (ii) that have the purpose or

24 effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s

25 program with respect to handicapped persons. 28 C.F.R. § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4).

26

197. Each Individual Named Plaintiff and member of the Plaintiff Class is a “qualified

27 individual with a disability” within the meaning of Section 504 in that they (1) have physical

28 and/or mental impairments that substantially limits one or more major life activities; and meet the
34
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1 essential eligibility requirements in that they (2) are capable of living independently in their own

2 homes and/or in the most integrated community setting possible, with assistance; and (3) meet the

3 Medi-Cal income eligibility requirements.

4

198. Defendants’ actions have placed members of the Plaintiff Class at risk of

5 unnecessary confinement in institutions, including nursing facilities, or other out-of-home

6 placements that are not the most integrated community placements possible, in violation of Section

7 504’s integration mandate.

8

199. Defendants discriminate against Plaintiffs and Class members in ways that include,

9 but are not limited to, failing to provide reasonable modifications to programs and services.

10

200. Defendants have utilized eligibility criteria and methods of administration that

11 subject Plaintiffs and members of the Plaintiff Class to discrimination on the basis of disability in

12 violation of 28 C.F.R. § 41.51(b)(3)(i) and 45 C.F.R. § 84.4(b)(4), and otherwise denied

13 meaningful access to their programs, services and activities.

14

201. Defendants’ actions discriminate against individuals with cognitive and psychiatric

15 disabilities, based on their type of disability, because the functional rankings and FI Scores for such

16 individuals are lower than the functional rankings and FI scores of individuals with physical

17 disabilities who have the same level of need for IHSS services, and will result in the deprivation of

18 services to individuals with mental disabilities, even if they have the same level of need as

19 individuals with physical disabilities who are not deprived of IHSS services.

20

202. Defendants’ actions violate Section 504.

21

FIFTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

22

Medicaid Act Comparability Requirement

23

203. Plaintiffs reallege and incorporate herein by reference each and every allegation and

24 paragraph set forth previously.

25

204. Under federal Medicaid requirements, states must provide comparable benefits, i.e.,

26 benefits that are equal in “amount, duration and scope,” to all categorically needy Medicaid

27 beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. § 440.240(a), (b)(1). Categorically

28
35
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Case4:09-cv-04668-CW Document280 Filed01/05/10 Page37 of 44

1 needy Medicaid beneficiaries are beneficiaries who, in most cases, receive cash public assistance to

2 meet basic needs.

3

205. The Medicaid Act also requires states to provide comparable benefits to all

4 medically needy Medicaid beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. §§ 440.240

5 (b)(1). Medically needy Medicaid beneficiaries are beneficiaries who do not receive cash public

6 assistance because they have income or resources in excess of the requirements for receipt of such

7 assistance, but who nevertheless meet categorical requirements for such assistance, e.g., they are

8 over age 65, blind, or disabled.

9

206. States may provide benefits to the medically needy that are less in amount, duration

10 and scope than benefits to the categorically needy, but California has not elected to do so.

11

207. Therefore (with certain exceptions for some groups not relevant here), California

12 must provide benefits under its Medicaid program that are equal in amount, duration and scope to

13 all eligible beneficiaries. The only permissible basis for distinguishing among such beneficiaries is

14 differing levels of need.

15

208. Pursuant to ABX4 4, Defendants will provide IHSS services to some Medicaid

16 recipients, while denying the same services to other IHSS recipients who have comparable needs,

17 based on an FI Score that is not a rational measure of need.

18

209. Pursuant to ABX4 4, Defendants will provide domestic and related IHSS services to

19 some Medicaid recipients, while denying the same services to other IHSS recipients who have

20 comparable needs, based on a functional rank that is not a rational measure of need.

21

210. Therefore, ABX4 4 violates Medicaid’s comparability requirement, 42 U.S.C. §

22 1396a(a)(10)(B)(i).

23

211. Defendants’ actions deprive Plaintiffs and members of the Plaintiff Class of rights,

24 privileges or immunities secured to them by the Constitution of the United States, in violation of 42

25 U.S.C. § 1983, and are preempted by the Supremacy Clause of the U.S. CONST., art. IV.

26

SIXTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

27

Medicaid Act Sufficiency Requirement:

Organizational Provider Plaintiffs and Loss of Domestic and Related Services Subclass Only 28

36

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1

212. Plaintiffs reallege and incorporate herein by reference each and every allegation and

2 paragraph set forth previously.

3

213. Under federal Medicaid requirements, states must provide “sufficient” benefits.

4 That is, “[e]ach service must be sufficient in amount, duration, and scope to reasonably achieve its

5 purpose.” 42 C.F.R. § 440.230(b).

6

214. By terminating or reducing IHSS domestic and related services to individuals for

7 whom such services have been deemed necessary pursuant to an individual service plan approved

8 by the state, ABX4 4 will result in insufficient services to fulfill the purpose of the IHSS benefit.

9

215. ABX4 4 is inconsistent with the federal law and preempted by the Supremacy

10 Clause of the U.S. CONST., art. IV.

11

12

SEVENTH CLAIM FOR RELIEF (Defendants Director Wagner and Director Maxwell-Jolly)

13

Medicaid Reasonable Standards Requirement

14

216. Plaintiffs reallege and incorporate herein by reference each and every allegation and

15 paragraph set forth previously.

16

217. Federal Medicaid law requires participating states to establish reasonable standards,

17 consistent with the objectives of the Medicaid Act, for determining the extent of covered services.

18 See 42 U.S.C. § 1396a(a)(17).

19

218. Pursuant to ABX4 4, Defendants will cover IHSS services for some Medicaid

20 recipients, while denying the same services to other IHSS recipients who have comparable needs,

21 and will utilize FI Scores and/or functional ranks that do not provide a fair or reasonable measure

22 of need for services,

23

219. ABX4 4 is inconsistent and in conflict with the reasonable standards requirements

24 of the federal Medicaid Act, 42 U.S.C. §1396a(a)(17), and interpretive federal guidelines, and is

25 thus preempted by the Supremacy Clause of the United States Constitution, art. IV.

26

EIGHTH CLAIM FOR RELIEF (Defendants Director Wagner and Director Maxwell-Jolly)

27

Medicaid Act, Early and Periodic Screening, Diagnostic and Treatment (EPSDT) Services, 42 U.S.C. § 1396 et seq:

28

Organizational Provider Plaintiffs and Child Subclass Only

37

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1

220. Plaintiffs reallege and incorporate herein by reference each and every allegation and

2 paragraph set forth previously.

3

221. Early and Periodic Screening, Diagnostic and Treatment (“EPSDT”) for children

4 and youth under age 21 is a mandatory Medicaid service. See 42 U.S.C. §§ 1396a(a)(10)(A),

5 1396a(a)(43), 1396d(a)(4)(B), 1396d(r).

6

222. Thousands of IHSS recipients in California are under the age of 21. Legally

7 responsible relatives are IHSS providers for many of these children, who are covered by the IHSS

8 Plus Waiver. Children who receive IHSS from providers who are not legally responsible relatives

9 are covered by the Medi-Cal Personal Care Services program and are protected by the EPSDT

10 mandate. EPSDT requires the State to provide them with the services that are medically necessary

11 to ameliorate their conditions.

12

223. Under EPSDT, States must provide or arrange for periodic medical screens that

13 include a comprehensive health and developmental/mental health history and assessment,

14 unclothed physical examination, immunizations, laboratory testing, and health education. 42

15 U.S.C. §§ 1396a(a)(43), 1396d(r)(1).

16

224. States must provide for “arranging for (directly or through referral to appropriate

17 agencies, organizations or individuals) corrective treatment the need for which is disclosed by” a

18 periodic or inter-periodic screen. 42 U.S.C. § 1396a(a)(43)(C).

19

225. EPSDT treatment must include vision, dental and hearing services and “other

20 necessary health care, diagnostic services, treatment, and other measures described in subsection

21 (a) of this section [42 U.S.C. § 1396d(a)] to correct or ameliorate defects and physical and mental

22 illnesses and conditions discovered by the screening services whether or not such services are

23 covered under the State plan.” 42 U.S.C. § 1396d(r)(5).

24

226. Under EPSDT, States must inform all Medi-Cal eligible persons in the State who

25 are under age 21 of the availability of early and periodic screening “and treatment services as

26 described in section 1396d(r). . . .” 42 U.S.C. § 1396a(a)(43)(A).

27

227. For each child under age 21 who has been approved for IHSS services through the

28 Medi-Cal Personal Care Services program, the State has previously made an individualized
38
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Case4:09-cv-04668-CW Document280 Filed01/05/10 Page40 of 44

1 determination that the current level of personal care services are necessary to ameliorate the child’s

2 condition. The reductions and terminations required by ABX4 4 have not been made on the basis

3 of an individualized determination that these services are no longer necessary, but for purely

4 budgetary reasons.

5

228. On information and belief, Defendants intend to subject children under the age of 21

6 receiving personal care services from non-legally responsible relatives to the same reductions and

7 terminations as adults, in violation of the EPSDT mandates and the requirements of federal

8 Medicaid law.

9

229. EPSDT includes a notice and informing mandate. State EPSDT programs are

10 required to effectively inform individuals of the screening and treatment services available under

11 the program. 42 U.S.C. § 1396a(a)(43)(A); 42 C.F.R. §441.56(a). Under this informing mandate,

12 Defendants must inform all children of the full range of EPSDT services, including personal care

13 services, that are available to them when needed to correct or ameliorate their physical and/or

14 mental conditions.

15

230. On information and belief, Defendants do not intend to inform children receiving

16 personal care services from a legally-responsible parent provider through the IHSS Plus waiver of

17 the availability of uninterrupted personal care services from a non-parent provider through the

18 EPSDT program.

19

231. Defendants’ actions, as described above, fail to provide for Medi-Cal-eligible

20 children to obtain coverage of personal care services as required by the EPSDT provisions of the

21 Medicaid Act. 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43)(A), (C), 1396d(a)(4)(B), 1396d(r)(5),

22 enforceable by Plaintiffs pursuant to 42 U.S.C. § 1983.

23

NINTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

24

Medicaid: ARRA:

Organizational Provider Plaintiffs and Termination of Benefits Subclass Only

25

232. Plaintiffs reallege and incorporate herein by reference each and every allegation and

26

paragraph set forth previously.

27

233. In 2009, Congress passed the ARRA or Stimulus Act, Pub. Law No. 111-5 (2009),

28

which included a temporary increase in the Federa3l9Medical Assistance Percentages, which is the

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1 level of federal financial participation in state Medicaid programs. See Title V of ARRA, §§5000,

2 et seq.

3

234. This increased federal matching assistance is meant to “protect and maintain State

4 Medicaid programs during a period of economic downturn, including by helping avert cuts to

5 provider payment rates and benefits or services, and to prevent constrictions of income eligibility

6 requirements for such programs. . . .” ARRA, § 5000, Pub. L. No. 111-5 (2009).

7

235. States are ineligible for the ARRA’s increased federal match if eligibility standards,

8 methodologies, or procedures under their Medicaid state plan (including any waivers) are more

9 restrictive than the eligibility standards, methodologies, or procedures under such plan (or waiver)

10 as in effect on July 1, 2008. ARRA § 5000(f)(1).

11

236. The State of California has received increased federal matching assistance funds and

12 plans to continue to receive such funds.

13

237. By making ineligible for IHSS individuals with FI Scores of less than 2.0, ABX4 4

14 will result in eligibility standards, methodologies, or procedures under the California Medicaid plan

15 and/or waivers that are more restrictive than the eligibility standards, methodologies, or procedures

16 that were in effect on July 1, 2008.

17

238. ABX 4 therefore violates the ARRA, and is preempted by the Supremacy Clause of

18 the U.S. CONST., art. IV.

19

REQUEST FOR RELIEF

20

WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies on

21 behalf of themselves and all others similarly situated:

22

a) Assume jurisdiction over this action and maintain continuing jurisdiction until

23 Defendants are in full compliance with every order of this Court;

24

b) Certify this action as a class action and appoint the individual named Plaintiffs as

25 Class representatives;

26

c) Declare that ABX4 4 and the policies, practices, acts and omissions of DHCS and

27 CDSS, as set forth above, violate the American with Disabilities Act and Section 504 of the

28 Rehabilitation Act;
40
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1

d) Declare that ABX4 4 and Defendants Wagner and Maxwell-Jolly’s policies,

2 practices, acts and omissions as set forth above violate the Medicaid Act (comparability,

3 sufficiency, reasonable fair hearing, EPSDT, and ARRA provisions), the Due Process Clause of the

4 United States Constitution, and 42 U.S.C. § 1983, and are preempted by the Supremacy Clause.

5

e) Grant a temporary restraining order, preliminary and permanent injunction enjoining

6 Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert

7 or participation with them from implementing the provisions of ABX4 4 that amended Sections

8 12309(e) and 12309.2 of the Welfare and Institutions Code to make ineligible for IHSS services

9 recipients with FI Scores of less than 2.0 and to make ineligible for domestic and related services

10 individuals with functional ranks of less than 4 for those services.

11

f) Award the Plaintiffs the costs of this action and reasonable attorneys’ fees pursuant

12 to 20 U.S.C. § 794a; 42 U.S.C. §§ 1988, 12133, 12205; and as otherwise may be allowed by law.

13 All such other and further relief as the Court deems to be just and equitable.

14 Dated: December 10, 2009
15

Respectfully Submitted,

16

By: /s/ Melinda Bird

_____

17

MELINDA BIRD (SBN 102236)

18

MARILYN HOLLE (SBN 61530)

19

DEBORAH DORFMAN (CRLSA No. 801060) DISABILITY RIGHTS CALIFORNIA

20

LOS ANGELES REGIONAL OFFICE

3580 Wilshire Blvd., Ste. 902

21

Los Angeles, CA 90010

Telephone: (213) 427-8747

22

Facsimile: (213) 427-8767

23

Melinda.bird@disabilityrightsca.org Debbie.dorfman@disabilityrightsca.org

24

Marilyn.holle@disabilityrightsca.org

25

SUJATHA JAGADEESH BRANCH (SBN 166259)

DISABILITY RIGHTS CALIFORNIA

26

SACRAMENTO REGIONAL OFFICE

27

100 Howe Ave., Suite 235N Sacramento, CA 95825

28

Telephone: (916) 488-9950

Facsi4m1 ile: (916) 488-9960

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Case4:09-cv-04668-CW Document280 Filed01/05/10 Page43 of 44

1

Sujatha.branch@disabilityrightsca.org

2

3

4

5

DARA L. SCHUR (SBN 98638)

FREDERICK P. NISEN (SBN 184089)

6

JUNG PHAM (SBN 251232)

7

DISABILITY RIGHTS CALIFORNIA

BAY AREA REGIONAL OFFICE

8

1330 Broadway, Suite 500

Oakland, CA 94612

9

Telephone: (510) 267-1200

10

Facsimile: (510) 267-1201 Dara.schur@disabilityrightsca.org

11

Fred.nisen@disabilityrightsca.org

Jung.pham@disabilityrightsca.org

12

ANN MENASCHE (SBN 74774)

13

DISABILITY RIGHTS CALIFORNIA

14

SAN DIEGO REGIONAL OFFICE 111 Sixth Avenue, Suite 200

15

San Diego, CA 92101

Telephone: (619) 239-7861

16

Facsimile: (619) 239-7906

Ann.menasche@disabilityrightsca.org 17

18

PAULA PEARLMAN (SBN 109038) SHAWNA PARKS (SBN 208301)

19

DISABILITY RIGHTS LEGAL CENTER

919 Albany Street

20

Los Angeles, CA 90015

Telephone: (213) 736-1031

21

Facsimile: (213) 736-1428

22

Paula.pearlman@lls.edu Shawna.parks@lls.edu

23

CHARLES WOLFINGER (SBN 63467)

24

LAW OFFICE OF CHARLES WOLFINGER

4655 Cass Street #314

25

San Diego, Ca 92109

26

Telephone: (858) 272-8115

Facsimile: (858) 270-3960

27

Cw@charleswolfinger.com

28

JANE PERKINS (SBN 104784)

NAT4I2ONAL HEALTH LAW PROGRAM

Class Action Complaint for Injunctive and Declaratory Relief, Case No. CV 09-04668 JSW

Case4:09-cv-04668-CW Document280 Filed01/05/10 Page44 of 44

1

211 N. Columbia Street

Chapel Hill, NC 27514

2

Telephone: (919) 968-6308

3

Facsimile: (919) 968-8855

perkins@healthlaw.org

4

5

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

6

1330 Broadway, Suite 525

7

Oakland, CA 94612

Telephone: (510) 663-1055

8

Facsimile: (510) 663-1051

9

Attorneys for Individual Named Plaintiffs V.L., David

10

Oster, Willie Beatrice Sheppard, C.R., Dotty Jones, and the Plaintiff Class

11

12

By: /s/ Stacey M. Leyton

______

STEPHEN P. BERZON (SBN 46540)

13

EVE H. CERVANTEZ (SBN 164709)

14

STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)

15

CASEY A. ROBERTS (SBN 253474)

(Admission Pending)

16

Altshuler Berzon LLP

177 Post Street, Suite 300

17

San Francisco, California 94108

18

Telephone: (415) 421-7151 Facsimile: (415) 362-8064

19

sberzon@altshulerberzon.com

ecervantez@altshulerberzon.com

20

sleyton@altshulerberzon.com

pthoreen@altshulerberzon.com

21

croberts@altshulerberzon.com

22

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

23

SEIU Local 521, SEIU California State Council,

UDW, and CUHW

24

25

26

27

28
43
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 Case4:09-cv-04668-CW Document206 Filed11/10/09 Page1 of 22

1 MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)
2 DEBORAH DORFMAN (CRLSA No. 801060) DISABILITY RIGHTS CALIFORNIA
3 3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010
4 Telephone: (213) 427-8747 Facsimile: (213) 427-8767
5 Melinda.bird@disabilityrightsca.org Debbie.dorfman@disabilityrightsca.org
6 Marilyn.holle@disabilityrightsca.org

7 Attorneys for Named Plaintiffs and the Proposed Class Additional Attorneys for Named Plaintiffs and the
8 Proposed Class on Signature Page

9 STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)
10 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
11 CASEY A. ROBERTS (SBN 253474) Altshuler Berzon LLP
12 177 Post Street, Suite 300 San Francisco, California 94108
13 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
14 sberzon@altshulerberzon.com ecervantez@altshulerberzon.com
15 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
16 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU
17 Local 521, SEIU California State Council, UDW, and CUHW

18

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO/OAKLAND DIVISION

20 V.L., et al.,
21

22

Plaintiffs

23

v.

24 WAGNER, et al.,

25

Defendants

26

27

) Case No.: CV 09-04668 CW ) ) PLAINTIFFS’ MOTION FOR CIVIL ) CONTEMPT SANCTIONS OR IN THE ) ALTERNATIVE FOR A FURTHER ) PRELIMINARY INJUNCTION; ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT ) ) ) ) )

28

PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document206 Filed11/10/09 Page2 of 22

1

NOTICE OF MOTION AND MOTION FOR CIVIL CONTEMPT SANCTIONS

OR IN THE ALTERNATIVE FOR A FURTHER MORE SPECIFIC PRELIMINARY

2

INJUNCTION

3

Please take notice that Plaintiffs hereby move the Court for civil contempt sanctions against

4 Defendants for violating this Court’s Preliminary Injunctions issued on October 19 and 23, 2009,

5 by (1) terminating from IHSS and/or reducing hours authorized of almost 3,000 individuals with FI

6 Scores under 2 and/or functional ranks under 4; (2) failing to take all steps and commit all

7 resources necessary to ensure that none of these otherwise eligible individuals are denied eligibility

8 for, or terminated from, receipt of IHSS services and/or domestic and related IHSS services; (3)

9 failing to notify providers who were incorrectly notified that their recipients’ IHSS hours had been

10 terminated or reduced that they should continue to work previously-authorized hours; and (4)

11 failing to serve and file a declaration of compliance demonstrating actual compliance with this

12 Court’s Preliminary Injunction by Thursday, October 29, 2009. In the alternative, Plaintiffs move

13 for a further injunction.

14

As of Monday, November 9, 2009, Defendants knew that the files of 2,829 recipients who

15 had been scheduled to lose some or all of their IHSS services as a result of ABX4 4 had not yet

16 been restored by the counties. Defendants are also are aware that between approximately

17 November 6 and November 10, the State mailed or will mail time cards to providers, listing the

18 hours they are authorized to work for the period November 1-15. Because the records of almost

19 3,000 recipients have not yet been restored by the counties, providers for those recipients have

20 received, or will shortly receive, time cards showing either “zero hours” (for recipients who were

21 slated for termination), or a lower number of authorized hours for domestic and related services.

22 Defendants have refused to notify the providers for these 3,000 recipients that the time cards were

23 in error, and that they should continue to work their previously authorized hours.

24

Providers, who receive these time cards directly, are likely to stop working for recipients, or

25 work fewer hours than authorized for the recipients, on the basis of these incorrect time cards. The

26 affected recipients are thus actually or effectively terminated from IHSS or from receipt of

27 domestic and related services, in violation of this Court’s Preliminary Injunctions. As this Court

28

1 PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document206 Filed11/10/09 Page3 of 22

1 has already found, recipients who lose some or all of their IHSS services will suffer immediate and

2 irreparable harm.

3

Plaintiffs respectfully request that the Court find Defendants in contempt of court, order

4 that Defendants come into immediate compliance with the Court’s Order, order Defendants to file

5 a status report on compliance each day until the Defendants are in full compliance with this Court’s

6 preliminary injunction, and fine Defendants the sum of $250,000 for each day in which Defendants

7 remain out of compliance with this Court’s preliminary injunction. Plaintiffs’ motion for civil

8 contempt sanctions is made pursuant to the inherent authority of the Court on the ground that

9 Defendants are presently violating this Court’s Preliminary Injunction and Order Granting

10 Preliminary Injunction, filed on October 19 and 23, respectively. See Stone v. City and County of

11 San Francisco, 968 F.2d 850, 856 & n.9 (9th Cir. 1992). Plaintiffs further request that Defendants

12 be required to inform Plaintiffs’ counsel of the names and contact information of the recipients and

13 providers whose records have not been updated.

14

In the alternative, Plaintiffs request that this Court issue a further preliminary injunction,

15 ordering Defendants to notify all providers whose clients’ records have not yet been restored that

16 they may receive time cards showing an incorrect number of authorized hours and that they should

17 continue to work the number of hours that were authorized for the previous pay period.

18

This motion is based on this Notice of Motion and Motion, the accompanying

19 Memorandum of Points and Authorities, the Declarations in connection with this Motion, the

20 [Proposed] Order Granting Plaintiffs’ Motion, the complete files and records of this action, and

21 such other and further matters as the Court may properly consider.

22 Dated: November 10, 2009 23 24 25 26 27 28

Respectfully Submitted,

By: /s/ Melinda Bird

_____

MELINDA BIRD (SBN 102236)

MARILYN HOLLE (SBN 61530)

DEBORAH DORFMAN (CRLSA No. 801060)

DISABILITY RIGHTS CALIFORNIA

LOS ANGELES REGIONAL OFFICE

3580 Wilshire Blvd., Ste. 902

Los Angeles, CA 90010

Telephone: (213) 427-8747

Facsimile: (213) 427-8767

2 PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
CASE NO. CV 09-4668 CW

Case4:09-cv-04668-CW Document206 Filed11/10/09 Page4 of 22

1

Melinda.bird@disabilityrightsca.org

Debbie.dorfman@disabilityrightsca.org

2

Marilyn.holle@disabilityrightsca.org

3

SUJATHA JAGADEESH BRANCH (SBN 166259)

DISABILITY RIGHTS CALIFORNIA

4

SACRAMENTO REGIONAL OFFICE

100 Howe Ave., Suite 235N

5

Sacramento, CA 95825

Telephone: (916) 488-9950

6

Facsimile: (916) 488-9960

Sujatha.branch@disabilityrightsca.org

7

DARA L. SCHUR (SBN 98638)

8

FREDERICK P. NISEN (SBN 184089)

JUNG PHAM (SBN 251232)

9

DISABILITY RIGHTS CALIFORNIA

BAY AREA REGIONAL OFFICE

10

1330 Broadway, Suite 500

Oakland, CA 94612

11

Telephone: (510) 267-1200

Facsimile: (510) 267-1201

12

Dara.schur@disabilityrightsca.org

Fred.nisen@disabilityrightsca.org

13

Jung.pham@disabilityrightsca.org

14

ANN MENASCHE (SBN 74774)

DISABILITY RIGHTS CALIFORNIA

15

SAN DIEGO REGIONAL OFFICE

111 Sixth Avenue, Suite 200

16

San Diego, CA 92101

Telephone: (619) 239-7861

17

Facsimile: (619) 239-7906

Ann.menasche@disabilityrightsca.org

18

PAULA PEARLMAN (SBN 109038)

19

SHAWNA PARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

20

919 Albany Street

Los Angeles, CA 90015

21

Telephone: (213) 736-1031

Facsimile: (213) 736-1428

22

Paula.pearlman@lls.edu

Shawna.parks@lls.edu

23

CHARLES WOLFINGER (SBN 63467)

24

LAW OFFICE OF CHARLES WOLFINGER

4655 Cass Street #314

25

San Diego, Ca 92109

Telephone: (858) 272-8115

26

Facsimile: (858) 270-3960

Cw@charleswolfinger.com

27

JANE PERKINS (SBN 104784)

28

NATIONAL HEALTH LAW PROGRAM

3 PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
CASE NO. CV 09-4668 CW

Case4:09-cv-04668-CW Document206 Filed11/10/09 Page5 of 22

1

211 N. Columbia Street

Chapel Hill, NC 27514

2

Telephone: (919) 968-6308

Facsimile: (919) 968-8855

3

perkins@healthlaw.org

4

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

5

1330 Broadway, Suite 525

Oakland, CA 94612

6

Telephone: (510) 663-1055

Facsimile: (510) 663-1051

7

Attorneys for Individual Named Plaintiffs V.L., David

8

Oster, Willie Beatrice Sheppard, C.R., Dottie Jones,

and the Plaintiff Class

9

By: /s/ Stacey M. Leyton

______

10

STEPHEN P. BERZON (SBN 46540)

EVE H. CERVANTEZ (SBN 164709)

11

STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

12

CASEY A. ROBERTS (SBN 253474)

Altshuler Berzon LLP

13

177 Post Street, Suite 300

San Francisco, California 94108

14

Telephone: (415) 421-7151

Facsimile: (415) 362-8064

15

sberzon@altshulerberzon.com

ecervantez@altshulerberzon.com

16

sleyton@altshulerberzon.com

pthoreen@altshulerberzon.com

17

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

18

SEIU Local 521, SEIU California State Council,

UDW, and CUHW

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES.............................................................................................................ii

3 MEMORANDUM OF POINTS AND AUTHORITIES...................................................................1

4 INTRODUCTION............................................................................................................................. 1

5 BACKGROUND AND STATEMENT OF FACTS.........................................................................2

6

A. Prior Proceedings....................................................................................................... 2

7

B. Plaintiffs’ Communications with Defendants’ Counsel Re: Compliance ................. 5

8

C. Impact Upon Providers and Consumers .................................................................... 9

9 ARGUMENT .................................................................................................................................. 10

10

A. Defendants Are In Contempt of This Court’s Preliminary Injunction .................... 10

11

1. Contempt Standard ...................................................................................... 10

12

2. Defendants Have Violated, And Continue To Violate, This Court’s

Preliminary Injunction................................................................................. 10

13

B. Relief Requested...................................................................................................... 11

14

CONCLUSION ............................................................................................................................... 13

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 In re Dual-Deck Video Cassette Recorder Antitrust Litigation,

10 F.3d 693 (9th Cir. 1993) ............................................................................................... 10

4

Stone v. City and County of San Francisco,

5

968 F.2d 850 (9th Cir. 1992) ............................................................................................. 10

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

Defendants have violated this Court’s Preliminary Injunctions issued on October 19 and 23,

4 2009, by (1) terminating from IHSS and/or reducing hours authorized of almost 3,000 individuals

5 with FI Scores under 2 and/or functional ranks under 4; (2) failing to take all steps and commit all

6 resources necessary to ensure that none of these otherwise eligible individuals are denied eligibility

7 for, or terminated from, receipt of IHSS services and/or domestic and related IHSS services; (3)

8 failing to notify providers who were incorrectly notified that their recipients’ IHSS hours had been

9 terminated or reduced that they should continue to work previously-authorized hours; and (4)

10 failing to serve and file a declaration of compliance demonstrating actual compliance with this

11 Court’s Preliminary Injunction by Thursday, October 29, 2009.

12

As of Monday, November 9, 2009, Defendants knew that the files of 2,829 recipients who

13 had been scheduled to lose some or all of their IHSS services as a result of ABX4 4 had not yet

14 been restored by the counties. Defendants are also are aware that between approximately

15 November 6 and November 10, the State mailed or will mail time cards to providers, listing the

16 hours they are authorized to work for the period November 1-15. Because the records of almost

17 3,000 recipients have not yet been restored by the counties, providers for those recipients have

18 received, or will shortly receive, time cards showing either “zero hours” (for recipients who were

19 slated for termination), or a lower number of authorized hours for domestic and related services.

20 Defendants have refused to notify the providers for these 3,000 recipients that the time cards were

21 in error, and that they should continue to work their previously authorized hours.

22

Providers, who receive these time cards directly, are likely to stop working for recipients, or

23 to work fewer hours than authorized for the recipients, on the basis of these incorrect time cards.

24 The affected recipients are thus actually or effectively terminated from IHSS or from receipt of

25 domestic and related services, in violation of this Court’s Preliminary Injunctions. As this Court

26 has already found, recipients who lose some or all of their IHSS services will suffer immediate and

27 irreparable harm.

28

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1

Plaintiffs respectfully request that the Court find Defendants in contempt of court, order

2 that Defendants come into immediate compliance with the Court’s Order, order Defendants to file

3 a status report on compliance each day until the Defendants are in full compliance with this Court’s

4 preliminary injunction, and fine Defendants the sum of $250,000 for each day in which Defendants

5 remain out of compliance with this Court’s preliminary injunction. Plaintiffs’ motion for civil

6 contempt sanctions is made pursuant to the inherent authority of the Court on the ground that

7 Defendants are presently violating this Court’s Preliminary Injunction and Order Granting

8 Preliminary Injunction, filed on October 19 and 23, respectively. See Stone v. City and County of

9 San Francisco, 968 F.2d 850, 856 & n.9 (9th Cir. 1992). Plaintiffs further request that this Court

10 order Defendants to provide Plaintiffs with a list of the names and contact information of the

11 recipients and providers whose records have not been updated.

12

In the alternative, Plaintiffs request a further injunction ordering Defendants to notify

13 providers whose clients’ records have not been restored that their time cards may show an incorrect

14 number of authorized hours and that they should continue to work the previously authorized hours.

15

BACKGROUND AND STATEMENT OF FACTS

16 A. Prior Proceedings

17

On October 19, 2009, this Court enjoined Defendants “from implementing the provisions of

18 ABX4 4 that amended Sections 12309(e) and 12309.2 of the California Welfare and Institutions

19 Code to terminate from eligibility for IHSS services those recipients with Functional Index Scores

20 of less than 2.0 and to eliminate domestic and related services for recipients with functional ranks

21 of less than 4 for those services.” Preliminary Injunction (Dkt. 182). On October 23, 2009, this

22 Court ordered that,

23

to the extent that Defendants have already taken actions to eliminate

eligibility for IHSS services for individuals with an FI Score under 2, or to

24

eliminate eligibility for domestic and related services for individuals with

functional ranks under 4, Defendants shall take all steps and commit all

25

resources necessary to ensure that no otherwise eligible individual is

denied eligibility for, or terminated from, IHSS, solely on the basis of an

26

FI Score under 2.0, and that no otherwise eligible individual is denied

eligibility for, or terminated from, receipt of domestic and related services,

27

solely on the basis of a functional rank under 4.

28

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1 Order Granting Preliminary Injunction (Dkt 198) at 30.1 The Court also ordered that “Defendants

2 shall further rescind any directions or notices issued to any person or entity for the termination or

3 reduction of IHSS benefits on the basis of an FI Score under 2 or functional ranks under 4; and

4 shall notify all persons and entities that have received such directions or notices that such IHSS

5 benefits will not be terminated or reduced.” Id. at 31. The Court also ordered that by October 27

6 (later amended by stipulation of the parties to October 29) Defendants mail notice to all IHSS

7 recipients, in language agreed to by the parties, that the previously announced terminations or

8 reductions in IHSS services would not go into effect. Finally, the Court ordered that “Defendants

9 shall serve and file a declaration of compliance by Thursday, October 29, 2009.” Id.

10

On October 29, Defendants filed a “Certification of Compliance”2 that stated: (1) On

11 October 22, Defendants ordered the Counties to manually reenter information about individual

12 recipients whose IHSS services were scheduled to be terminated or reduced; (2) As of noon on

13 October 28, the counties had restored 67,738 records, leaving 50,048 files still to be restored; (3)

14 “Defendants have asked the counties to take all steps necessary to ensure that all 117,786 Impacted

15 Recipients’ files will be updated before November 1, 2009, and the counties appear to be on pace

16 to do so;” and (4) “Defendants will file a supplemental certification of compliance after all

17 Impacted Recipients’ files have been updated.” Defendants have not yet filed such a supplemental 18 certification of compliance, apparently because not all files have been restored.3

19 ___________________________________ 1 Thus, although the Court ruled that Defendants could require counties to manually re-enter data
20 for all affected individuals, it is clear that Defendants (not the counties) bear ultimate responsibility for ensuring that no recipients are terminated from IHSS services or from domestic and related
21 IHSS services.
22 2 This was not a “Declaration” signed under penalty of perjury by one of the Defendants with personal knowledge thereof, but, rather, a “Certification” signed by Defendants’ counsel, who did
23 not attest to having personal knowledge of any of the facts set forth in the Certification.
24 3 Defendants also acknowledged that they had not completed mailing notices to affected recipients, and that such notices would not be completely mailed until October 30, in violation of this Court’s
25 Order that such notices be mailed, at the latest, by October 29. Defendants have never filed a supplemental declaration with this Court affirming that all notices have been mailed. However,
26 because counsel for Defendants has assured Plaintiffs’ Counsel that all notices were mailed by October 30, Plaintiffs do not request that Defendants be found in contempt for this violation of the
27 Court’s Order Granting Preliminary Injunction.
28

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1

Defendants were well aware that if all files were not updated by November 1, serious

2 consequences would ensue. On October 20, Plaintiffs filed an “Additional Response re:

3 Implementation Issues” that included declarations from various county officials describing the way

4 in which provider time cards and paychecks are processed. These county officials stated that

5 provider time cards that show recipients’ post-November 1 authorized hours would be sent

6 sometime around November 6-10, 2009. Nicco Dec. ISO Plaintiffs’ Additional Response re:

7 Implementation Issues (Dkt. 187) at ¶5. Defendants are well aware of this, as it is the State (not the

8 counties) that issue provider paychecks and new time cards. McDevitt Dec. ¶¶ 3-5. Moreover,

9 Defendants earlier noted that “providers can and do turn in timesheets at any time of month, and

10 thus many providers are likely to turn in their timesheets [and be issued paychecks] prior to

11 November 15, 2009.” Defendants’ Response re: Implementation Issues (Dkt. 192) at 2, n. 1.

12

As part of the briefing on implementation issues, Plaintiffs requested that Defendants send

13 notice, not only to recipients, but to potentially affected providers, in case data entry errors caused

14 providers to receive time cards for the period November 1-15 that incorrectly showed zero hours or 15 reduced hours.4 Plaintiffs’ Supplemental Response re: Implementation Issues (Dkt. 196) at 1.

16 Plaintiffs stated:

17 18 19 20 21 Id.

There appears to be a very real chance here that some providers will receive erroneous timesheets or paychecks, and, believing that they have been fired or had hours reduced by operation of state law, fail to provide necessary IHSS services to a recipient. The only way to mitigate the potential for errors is to send notices directly to providers, so that they keep working and rendering IHSS services even if Defendants send them an erroneous timesheet or paycheck.

22

23

24 ___________________________________ 4 The Court Order Granting Preliminary Injunction did not specifically discuss notice to providers,
25 but instead provided that, to the extent Defendants had sent any directions or notices to any person or entity terminating or reducing benefits, Defendants must notify persons who received such
26 directions or notices that the benefits would not be terminated or reduced. Order Granting Preliminary Injunction at 30-31.
27

28

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1 B. Plaintiffs’ Communications with Defendants’ Counsel Re: Compliance

2

Unfortunately, the potential for error posited by Plaintiffs has now come to pass: the files

3 of almost 3,000 recipients have not yet been restored, meaning that their providers have or will

4 soon receive incorrect time cards showing fewer hours or no hours for the period November 1-15,

5 and thus may cease or reduce services to those recipients, under the erroneous impression that the

6 recipient’s services have been terminated or reduced. McDevitt Dec.¶¶ 3-11. They are likely to

7 believe that these reduced hours continue into the November 16-31 pay period, and to continue to

8 fail to provide needed ISHS services to recipients. Id. at ¶ 12. It is also possible that some of these

9 providers will receive incorrect paychecks, if recipient files are not updated by the time that

10 paychecks are issued, or if the providers fail to write down hours that they actually worked but

11 believe were not authorized.

12

Plaintiffs have been in continual communication with Defendants’ counsel about

13 implementation and compliance efforts, and have consistently told Defendants that they needed a

14 contingency plan to comply with this Court’s Preliminary Injunction if the counties were not able

15 to complete the manual data entry in a timely manner. On Monday, October 26, Plaintiffs asked

16 Defendants’ counsel how Defendants planned to track counties’ work to make sure it was

17 completed before new and possibly incorrect times cards were issued to providers. Cervantez Dec.

18 ¶ 3. On October 28 Defendants’ counsel informed Plaintiffs that some 50,000 records had not yet

19 been updated. Cervantez Dec. ¶ 5. Plaintiffs’ counsel asked about Defendants’ back up plan if all

20 records had not been updated by November 1, and Defendants’ response was that the records

21 would be updated by November 1 or soon thereafter, so that there would be no disruption in

22 services. Id. On October 29, Plaintiffs’ counsel sent an e-mail to Defendants’ counsel stating the

23 following: 24 25 26 27 28

A concern has been raised that, if data entry is not completed in time, or there are errors in the data entry, providers may receive incorrect timesheets with their paycheck for the October 16-31 pay period. Please verify when the first of these time sheets will be sent out, and let us know what your clients’ plans are for dealing with providers who receive incorrect time sheets (i.e. listing zero hours or reduced hours for the period November 1-15). If these time sheets are not corrected, some providers may incorrectly believe they have been terminated or had authorized hours reduced, and not work the full complement of hours needed by the consumers.

5 PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
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1 Cervantez Dec. Ex. A (October 29, 2009 email from Eve Cervantez to Greg Brown).

2

On October 30, Defendants’ counsel responded generally that CDSS was not aware of any

3 problems with implementation of the injunction, but did not respond to the specific questions and

4 concerns raised in Plaintiffs’ October 29 communication. Cervantez Dec. Ex. A (October 30 email

5 from Greg Brown to Eve Cervantez). Plaintiffs followed up again asking for a more detailed

6 response, and Defendants’ counsel responded on October 30 at 4:55 p.m. that as of 12:30 on

7 October 30, there were just over 8,500 files to update, and that it was anticipated that all changes

8 would be made by the end of that day. Cervantez Dec. Ex. A (October 30 email from Greg Brown

9 to Eve Cervantez). Defendants did not respond to Plaintiffs’ questions regarding issuance of new

10 time cards.

11

Counsel for Plaintiffs again contacted Defendants’ counsel by telephone on Monday and

12 Tuesday, November 2 and 3, asking for a status report. Cervantez Dec. ¶¶ 9-10. Finally, shortly

13 before 5 p.m. on Tuesday, November 3, Defendants’ counsel informed Plainitffs that as of

14 Monday, November 2, some 4,000 records remained to be restored. Cervantez Dec.¶ 10.

15 Defendants’ counsel did not respond to a call placed to him on November 4. Cervantez Dec. ¶ 11.

16

Finally, on November 4, Plaintiffs’ counsel wrote the following to Defendants’ Counsel:

17

It is now November 4. We understand that paychecks for the last pay

period in October will be mailed to providers soon, and those paychecks

18

will be accompanied by timesheets for the period November 1-15, which

may reflect an incorrect number of hours (or zero hours) if records have

19

not been updated. If providers receive incorrect time sheets, they may

believe that hours have been reduced or eliminated, and fail to provide all

20

authorized hours of service to recipients….

If Defendants do not file a Declaration of Compliance by the close

21

of business on Thursday, November 5 (a full week after the Declaration of

Compliance was due), Plaintiffs will have no choice but to bring the

22

matter to the Court’s attention and seek appropriate relief.

23 Cervantez Dec. Ex. B.

24

Defendants did not file a Declaration of Compliance on November 5. Instead, Defendants’

25 counsel wrote to Plaintiffs counsel shortly before 5 p.m. to inform them that, as of 2:40 pm on

26 November 5, there were still 3,133 files that had not been updated, and that these files would

27 probably not be updated within the next few days. Cervantez Dec. Ex. B (November 5, 2009 email

28 from Greg Brown to Eve Cervantez). Counsel stated that the counties would endeavor to update

6 PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
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1 all records by November 15, and that they would issue supplemental paychecks if the files were not

2 updated by November 15. Id. Defense counsel also spoke to Plaintiffs’ counsel by telephone that

3 day, and informed counsel of his view that the Court’s Preliminary Injunction does not require the

4 State to update all the IHSS files, it only requires them to take necessary steps to reverse the cuts,

5 and that Defendants had therefore already complied with the injunction by ordering the counties to

6 reverse the cuts. Bird Dec. ¶ 2.

7

By November 6, Plaintiffs still had not received assurance that Defendants would comply

8 with the Court order to take all steps and commit all resources necessary to ensure that no

9 otherwise eligible individuals were denied eligibility for, or terminated from, IHSS. Plaintiffs’

10 counsel wrote to Defendants the morning of November 6, making the following points:

11

(1)

Time cards would be going out as early as November 6: “Our concern is that

12

providers who receive time cards showing authorized hours that are reduced due

13

to the loss of domestic and related services will work only those hours shown on

14

the time cards. In that event, the consumer who they serve will effectively have

15

been “terminated from . . . receipt of . . . IHSS services…in violation of the

16

Court’s preliminary injunction.” Cervantez Dec. Ex. B (November 6, 2009

17

email from Stacey Leyton to Greg Brown).

18

(2)

Plaintiffs requested that Defendants issue notice to the approximately 3000

19

affected recipients and their providers, explaining that providers had being

20

issued incorrect time cards and instructing providers to continue to work the

21

previously authorized number of hours, and that Defendants send providers

22

either a correct time card or a blank time card. Plaintiffs requested that this

23

notice issue on Tuesday, November 10. Id.

24

(3)

Plaintiffs requested that Defendants set up a toll free number for providers and

25

recipients whose providers received incorrect time cards to call. Id.

26

(4)

Plaintiffs asked for a list of the recipients and providers whose records had not

27

been timely updated. Id.

28

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1

(5)

Plaintiffs asked for a commitment on these points by Monday, November 9, and

2

warned Defendants that otherwise they faced a motion for contempt: “If we are

3

not able to receive these commitments in writing from you by the close of

4

business on Monday, November 9, we will have no choice but to seek relief

5

from the court. Without the notice we have requested, Defendants will be in

6

violation of the preliminary injunction, because Defendants are on notice that

7

some counties have failed to restore these remaining records before time cards

8

go out, and so without this notice Defendants will have failed to ‘take all steps

9

and commit all resources necessary to ensure . . . that no otherwise eligible

10

individual is . . . terminated from …IHSS services.. .” Cervantez Dec. Ex. B

11

(November 6, 2009 email from Stacey Leyton to Greg Brown).

12

Plaintiffs also suggested that the parties file simultaneous briefs on the issue on November

13 10 by noon, so as to obtain expeditious resolution of the dispute before serious harm befell IHSS

14 recipients. Id.

15

Defendants’ counsel telephoned Plaintiffs’ counsel on November 9 at approximately 5 p.m.,

16 and reported the following: (1) As of 10 a.m. on November 9, the counties had not updated the files

17 for 2,829 IHSS recipients. (2) Defendants had not identified which counties had not updated all

18 files, but it appeared that the majority of counties had not completed all updates. (3) CDSS

19 anticipated that most files would be updated by November 15, but did not have a specific “ETA”

20 for completion, and could not make a commitment about date of completion. Bird Dec. ¶ 4.

21

Plaintiffs’ counsel reminded Defendants’ counsel that counties began mailing time cards on

22 November 6 and completed most mailing by November 10, and Defense counsel agreed that some

23 providers would therefore receive time cards with reduced hours. Bird Dec. ¶ 5. Defendants’

24 counsel admitted that CDSS has not sent any instructions to counties instructing them to issue new

25 time cards and/or supplemental checks, as necessary, to affected providers. Id. Finally, although

26 Defendants’ counsel had stated in earlier conversations that he believed that the counties had

27 prioritized and updated the files of all recipients whose IHSS was scheduled for termination

28 because they had an FI Score below 2, he explained that Defendants could not confirm this, and

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1 could not confirm how many of the remaining 2,829 files that had not been updated concerned

2 terminations rather than reductions in hours. Bird Dec. ¶ 7.

3

Defendants’ counsel also sent an e-mail to Plaintiffs’ counsel at 5:30 p.m. on November 9,

4 in which he reported that: (1) There were 2,829 files that had not yet been updated. (2) The

5 counties expected to update all files by November 15. (3) If files are not updated in sufficient time,

6 counties will be able to send corrected timecards and/or supplemental payments. Cervantez Dec.

7 Ex. B (November 9, 2009 email from Greg Brown to Eve Cervantez).

8

Defendants also refused to send notice to the affected providers, and declined to provide

9 Plaintiffs’ counsel with information regarding the names of recipients and providers whose files

10 had not yet been updated. Id.

11 C. Impact Upon Providers and Consumers

12

When providers receive time cards reflecting “zero” hours or a reduced number of hours,

13 they will believe that they are authorized to work only the hours shown on the time cards.

14 McDevitt Dec. ¶ 6-8. They are likely to stop or reduce their provision of services to recipients,

15 believing that they will not be paid for the work. McDevitt Dec. ¶¶ 9-12. The fact that recipients

16 received a notice stating that their IHSS services would not be terminated or reduced because of

17 their functional index scores or ranks does not solve this problem, for a number of reasons. Id. at

18 ¶¶ 13-17. Most notably, a provider receiving an incorrect time card from the State has no way of

19 knowing that the notation of “zero” or reduced hours is a mistake caused by the attempted

20 termination of IHSS services related to functional score or rank, particularly when the notice that

21 the functional index cuts would not take effect were received only by the recipient and a week

22 before the time card showing reduced or terminated hours. Id. at ¶¶ 16-17. Thus, many providers

23 are likely to stop working, or work reduced hours, causing the very serious consequences to these

24 2,829 IHSS recipients that this Court’s injunction was meant to prevent.

25

26

27

28

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1

ARGUMENT

2 A. Defendants Are In Contempt Of This Court’s Preliminary Injunction

3

1. Contempt standard

4

The Court may issue a contempt order if Defendants “(1) [ ] violated the court order, (2)

5 beyond substantial compliance, (3) not based on a good faith and reasonable interpretation of the

6 order, (4) by clear and convincing evidence.” In re Dual-Deck Video Cassette Recorder Antitrust

7 Litig., 10 F.3d 693, 695 (9th Cir. 1993). A district court “has wide latitude in determining whether

8 there has been a contemptuous def[ianc]e of its order.” Stone v. City and County of San Francisco,

9 968 F.2d 850, 856 (9th Cir. 1992) (internal quotation marks omitted). The moving party must

10 demonstrate by clear and convincing evidence that the alleged contemnor violated “a specific and

11 definite order of the court.” Id. at 856 n.9. The burden then shifts to the opposing party to

12 demonstrate that “they took every reasonable step to comply.” Id. The contempt “need not be

13 willful, and there is no good faith exception to the requirement of obedience to a court order.” In

14 re Dual-Deck, 10 F.3d at 695

15

2. Defendants Have Violated, And Continue To Violate, This Court’s Preliminary

16

Injunction

17

As of Monday, November 9, 2009, 21 days after this Court’s issuance of the preliminary

18 injunction, Defendants were aware that almost 3,000 IHSS recipients’ records had not been

19 restored. Defendants also knew that, because these records were not restored, incorrect time cards

20 have been or will soon be sent to the affected recipients’ providers, showing either zero hours or a

21 reduced number of hours for domestic and related services. Defendants have refused to send notice

22 to affected providers, informing them of the error in their time cards, and instructing them to keep

23 working the hours they were previously authorized to work. Many providers will not work hours

24 for which they are not authorized on their time cards. Thus, up to 3,000 IHSS recipients may not

25 receive the services they need to remain safely in their homes.

26

As this Court has previously found, this will cause immediate and irreparable harm. Order

27 Granting Preliminary Injunction at 26. Recipients who lose IHSS services “will be unable to care

28 for themselves, suffer injuries, and be relegated to emergency rooms, hospitals, and other

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1 institutions.” Id. at 2. “Some individuals who lose their IHSS may neglect to take vital

2 medications or take them improperly. Others will be unable to leave their house to obtain food,

3 medication and other necessities.” Id. at 26. “Without an IHSS caregiver to transport recipients to

4 doctor’s appointments, many will go without essential care. Some recipients will try to clean their

5 home or cook food and injure themselves as a result. Other recipients, because of mental illness or

6 lack of appetite, need assistance in order to eat at all.” Id. at 26-27. “Even a temporary

7 interruption in services may ‘result in damaging setbacks’ for the affected individual.” Id. at 27.

8

Defendants have violated this Court’s Preliminary Injunction in numerous ways: First,

9 because the records were not restored by the November 1 effective date, numerous recipients were

10 rendered ineligible for IHSS services as of November 1, in violation of this Court’s Order

11 enjoining any implementation of the provisions of ABX4 4 that reduced or eliminated IHSS

12 eligibility based on functional scores and ranks.

13

Second, in refusing to take sufficient steps to ensure that incorrect time cards showing zero

14 hours or reduced hours for the current pay period were not sent to providers, and refusing to notify

15 providers that they should work previously authorized hours and ignore the incorrect time cards,

16 Defendants violated this Court’s order that they “take all steps and commit all resources necessary

17 to ensure” that otherwise eligible individuals are not denied IHSS services because of their

18 functional scores or ranks. Defendants know or should know that some providers will stop

19 working, or will work reduced hours, based on the incorrect time cards they receive.

20

Third, by refusing to send notice to affected providers who received incorrect time cards

21 showing terminated or reduced IHSS hours, Defendants have violated this Court’s Order that

22 Defendants notify any person who previously received directions or notices that IHSS benefits

23 would be reduced or terminated that these benefits would not actually be terminated or reduced.

24

Fourth, Defendants have not filed a Declaration of Compliance demonstrating actual

25 compliance with the Court’s Preliminary Injunction and Order Granting Preliminary Injunction.

26 B. Relief Requested

27

Plaintiffs request that the Court fine Defendants the sum of $250,000 per day until

28 Defendants file a complete Declaration of Compliance, signed under penalty of perjury by an agent

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1 of Defendants with personal knowledge, setting forth the following: (1) All recipient and provider

2 records have been restored to eliminate any planned terminations or reductions in IHSS services on

3 the basis of functional index score or functional rank, and (2) Any provider who received an

4 incorrect time card reflecting zero or reduced hours because of their recipients’ functional index

5 score or functional rank has been notified that the time card was in error, and that they should

6 continue working their normally authorized hours; and (3) Corrected time cards have been issued

7 to providers who received incorrect time cards, and (4) Supplemental checks have been issued to

8 any providers who were not paid for authorized hours that they worked in November 2009 due to

9 errors on their time cards or the failure to restore the eligibility of recipients for whom they provide

10 services. The notice should be sent in English, Spanish, Chinese, and Armenian, and with an insert

11 stating that speakers of other languages should obtain translation. In the meantime, Plaintiffs also

12 request that the Court order Defendants to file daily reports on the status of their compliance

13 efforts.

14

While Plaintiffs believe that Defendants have violated the clear terms of this Court’s

15 preliminary injunction, Plaintiffs request in the alternative that this Court issue a further injunction

16 ordering Defendants to issue such notices and restore all affected records if counties have not yet

17 done so. This is important because it appears that Defendants are taking the position that they are

18 already in full compliance with this Court’s injunction (merely because they told the Counties to

19 restore the records), even though not all records have been restored, and some providers have

20 already been sent incorrect time cards. Defendants should understand from this Court’s prior

21 orders (but apparently do not) that they are ultimately responsible for insuring that all records are

22 restored, that IHSS services are not terminated or reduced on the basis of functional index scores or

23 ranks, and that providers are notified of their correct working hours and receive the correct

24 payment for those hours.

25

Finally, because providers and recipients are likely to call their unions and/or Plaintiffs’

26 counsel when the providers receive the incorrect time cards, Plaintiffs’ counsel also request that

27 Defendants be ordered to provide them with the names and contact information for all affected

28

12 PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
CASE NO. CV 09-4668 CW

Case4:09-cv-04668-CW Document206 Filed11/10/09 Page20 of 22

1 providers and recipients, who are their clients. This information is subject to discovery.5 Because

2 Plaintiffs are not yet permitted to serve discovery by operation of the Federal Rules, and because

3 responses to discovery are not generally due until 30 days after discovery is served, Plaintiffs

4 respectfully request that the Court use its inherent power to enforce the Preliminary Injunction to

5 order Defendants to provide the requested information.

6

CONCLUSION

7

For the foregoing reason, Plaintiffs’ Motion for Civil Contempt should be granted.

8 Dated: November 10, 2009

Respectfully Submitted,

9

10

By: /s/ Melinda Bird

_____

MELINDA BIRD (SBN 102236)

11

MARILYN HOLLE (SBN 61530) DEBORAH DORFMAN (CRLSA No. 801060)

12

DISABILITY RIGHTS CALIFORNIA LOS ANGELES REGIONAL OFFICE

13

3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010

14

Telephone: (213) 427-8747 Facsimile: (213) 427-8767

15

Melinda.bird@disabilityrightsca.org Debbie.dorfman@disabilityrightsca.org

16

Marilyn.holle@disabilityrightsca.org

17

SUJATHA JAGADEESH BRANCH (SBN 166259) DISABILITY RIGHTS CALIFORNIA

18

SACRAMENTO REGIONAL OFFICE 100 Howe Ave., Suite 235N

19

Sacramento, CA 95825 Telephone: (916) 488-9950

20

Facsimile: (916) 488-9960 Sujatha.branch@disabilityrightsca.org

21

DARA L. SCHUR (SBN 98638)

22

FREDERICK P. NISEN (SBN 184089) JUNG PHAM (SBN 251232)

23

DISABILITY RIGHTS CALIFORNIA BAY AREA REGIONAL OFFICE

24 ___________________________________ 5 Defendants contend that “the information regarding the names of the recipients whose files have
25 not yet been updated, as well as the names of their providers, is confidential information that we are not authorized to disclose.” Cervantez Dec. Ex. B (November 9, 2009 email from Defendants’
26 counsel). Defendants’ confidentiality concerns can be easily addressed through a protective order or other confidentiality agreement between the parties to ensure compliance with any applicable
27 privacy concerns.

28

13 PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
CASE NO. CV 09-4668 CW

Case4:09-cv-04668-CW Document206 Filed11/10/09 Page21 of 22

1

1330 Broadway, Suite 500

Oakland, CA 94612

2

Telephone: (510) 267-1200

Facsimile: (510) 267-1201

3

Dara.schur@disabilityrightsca.org

Fred.nisen@disabilityrightsca.org

4

Jung.pham@disabilityrightsca.org

5

ANN MENASCHE (SBN 74774)

6

DISABILITY RIGHTS CALIFORNIA

SAN DIEGO REGIONAL OFFICE

7

111 Sixth Avenue, Suite 200

San Diego, CA 92101

8

Telephone: (619) 239-7861

Facsimile: (619) 239-7906

9

Ann.menasche@disabilityrightsca.org

10

PAULA PEARLMAN (SBN 109038)

SHAWNA PARKS (SBN 208301)

11

DISABILITY RIGHTS LEGAL CENTER

919 Albany Street

12

Los Angeles, CA 90015

Telephone: (213) 736-1031

13

Facsimile: (213) 736-1428

Paula.pearlman@lls.edu

14

Shawna.parks@lls.edu

15

CHARLES WOLFINGER (SBN 63467)

LAW OFFICE OF CHARLES WOLFINGER

16

4655 Cass Street #314

San Diego, Ca 92109

17

Telephone: (858) 272-8115

Facsimile: (858) 270-3960

18

Cw@charleswolfinger.com

19

JANE PERKINS (SBN 104784)

NATIONAL HEALTH LAW PROGRAM

20

211 N. Columbia Street

Chapel Hill, NC 27514

21

Telephone: (919) 968-6308

Facsimile: (919) 968-8855

22

perkins@healthlaw.org

23

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

24

1330 Broadway, Suite 525

Oakland, CA 94612

25

Telephone: (510) 663-1055

Facsimile: (510) 663-1051

26

Attorneys for Individual Named Plaintiffs V.L., David

27

Oster, Willie Beatrice Sheppard, C.R., Dottie Jones,

and the Plaintiff Class

28

14 PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
CASE NO. CV 09-4668 CW

Case4:09-cv-04668-CW Document206 Filed11/10/09 Page22 of 22

1

By: /s/ Stacey M. Leyton

______

STEPHEN P. BERZON (SBN 46540)

2

EVE H. CERVANTEZ (SBN 164709)

STACEY M. LEYTON (SBN 203827)

3

PEDER J. THOREEN (SBN 217081)

CASEY A. ROBERTS (SBN 253474)

4

Altshuler Berzon LLP

177 Post Street, Suite 300

5

San Francisco, California 94108

Telephone: (415) 421-7151

6

Facsimile: (415) 362-8064

sberzon@altshulerberzon.com

7

ecervantez@altshulerberzon.com

sleyton@altshulerberzon.com

8

pthoreen@altshulerberzon.com

9

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

SEIU Local 521, SEIU California State Council,

10

UDW, and CUHW

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15 PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT
CASE NO. CV 09-4668 CW

 
 Case4:09-cv-04668-CW Document257 Filed11/30/09 Page1 of 3

United States District Court For the Northern District of California

1

2

3

IN THE UNITED STATES DISTRICT COURT

4

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 V.L., et al.,

8

Plaintiffs,

9

v.

10

JOHN A. WAGNER, Director of the California Department of Social

11

Services; DAVID MAXWELL-JOLLY, Director of the California Department

12

of Health Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES;

13

CALIFORNIA DEPARTMENT OF SOCIAL SERVICES,

14

Defendants.

15

/

No. C 09-04668 CW
ORDER ON SUPPLEMENTAL NOTICE TO COUNTIES RE: PROVIDER TIME-CARDS FOR HOURS WORKED IN NOVEMBER, 2009

16

On November 21, 2009, a notice was sent to all IHSS providers

17 who may have been sent erroneous time cards indicating zero or

18 fewer than authorized work hours for November. That notice stated,

19 “If you did not work all your normal hours in November but did not

20 report all hours that you actually worked on your time card, you

21 can make up those hours later in November or in December if your

22 client needs extra hours, and then fill out the supplemental time

23 card enclosed with this notice.” Defendants reviewed and did not

24 object to the text of this notice before mailing.

25

On Monday, November 23, the Court orally ordered that by

26 Tuesday, November 24, Defendants notify counties of this notice and

27 give counties instructions for honoring supplemental time-cards and

28

Case4:09-cv-04668-CW Document257 Filed11/30/09 Page2 of 3

United States District Court For the Northern District of California

1 issuing supplemental pay checks, as necessary, for affected

2 providers who received incorrect time cards. A few hours after the

3 November 23 hearing, Defendants’ counsel drafted and sent to

4 Plaintiffs’ counsel a proposed notice to counties. That proposed

5 notice stated, “The notices also state that providers who did not

6 work all of their normal hours in November because they received

7 incorrect time cards may make up those hours later in November or

8 December and submit supplemental time cards at that time . . .

9 please ensure that the provider is properly paid as soon as

10 possible, including issuing a supplemental paycheck if necessary.”

11 Plaintiffs’ counsel agreed to the proposed notice with minor

12 editorial changes not relevant here.

13

On Tuesday, November 24, Defendants changed course and stated

14 for the first time that the November 21 notices that were sent to

15 providers were incorrect. Defendants asserted that providers are

16 not permitted to provide additional needed services to recipients

17 in December that they did not provide in November because of an

18 erroneous time-card. Defendants suggested that they instead pay

19 IHSS recipients for any hours that they had not received in

20 November. Defendant argue that “by law IHSS recipients may not

21 receive, and providers may not receive payments for, any hours

22 above what the recipient has been determined to need in a given

23 month. See generally, Cal. Welf. & Inst. Code § 12300(a); MPP

24 §§ 30-761.13-14, 30-765.1-12, 30-765.14 and 30-769.91-911.”

25 Defendants’ Opposition at 2.

26

None of the authority cited by Defendants supports the

27 position that providers cannot make up in December the hours not

28 worked in November. Further, none of the authority cited by

2

Case4:09-cv-04668-CW Document257 Filed11/30/09 Page3 of 3

United States District Court For the Northern District of California

1 Defendants precludes this Court from ordering that providers be

2 permitted to make up hours in December that were not worked in

3 November.

4

Accordingly, Defendants shall send Plaintiffs’ proposed form

5 of notice, attached as Appendix A to “Plaintiffs’ Supplemental

6 Response in Support of Contempt Motion Re: Notice to Counties”

7 (Docket No. 249), to counties by Monday, November 30, 2009. The

8 mailing shall include a copy of the November 21 notice to providers

9 and a blank copy of the supplemental time-card.

10

IT IS SO ORDERED.

11 Dated: 11/30/09 12

CLAUDIA WILKEN United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

 
 Case4:09-cv-04668-CW Document289 Filed02/02/10 Page1 of 27

1 EDMUND G. BROWN JR. Attorney General of California
2 KARIN S. SCHWARTZ SUSAN M. CARSON
3 Supervising Deputy Attorneys General JOSHUA N. SONDHEIMER
4 GREGORY D. BROWN (State Bar No. 219209) MICHAEL A. ZWIBELMAN
5 Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000
6 San Francisco, CA 94102-7004 Telephone: (415) 703-5461
7 Fax: (415) 703-5480 E-mail: Gregory.Brown@doj.ca.gov
8 Attorneys for Defendants

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11 OAKLAND DIVISION
12

13

14 V.L., et al.,

CV 09-4668 CW

15

16

v.

17 JOHN A. WAGNER, et al.,
18

19

20

21

Plaintiffs,

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PORTIONS OF PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Defendants.

Date:

N/A

Time:

N/A

Dept:

2, 4th Floor

Judge:

The Honorable Claudia Wilken

Trial Date: None Set

Action Filed: October 1, 2009

22

23

24

25

26

27

28

Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page2 of 27

1

TABLE OF CONTENTS

2

Page

3 Notice of Motion and Motion to Dismiss ....................................................................................... 1

4 Memorandum of Points and Authorities ......................................................................................... 1 Statement of Issues to Be Decided.................................................................................................. 1
5 Introduction ..................................................................................................................................... 2

6 Statement of Relevant Facts............................................................................................................ 3

7

A. The lawsuit .................................................................................................. 3

B. The Medicaid Act........................................................................................ 4

8

C. Enactment of ABX4 4 ................................................................................. 5

9 Argument ........................................................................................................................................ 7

10

I. The Union Plaintiffs lack standing and must be dismissed..................................... 7

A. The Union Plaintiffs lack prudential standing to bring claims on

11

behalf of IHSS providers............................................................................. 7

12

B. The Union Plaintiffs lack constitutional standing to bring claims on behalf of IHSS recipients. ......................................................................... 10

13

C. The court must decide the issue of the Union Plaintiffs’ standing

because they are seeking relief separate from, and potentially at

14

odds with, the relief sought by the Individual Plaintiffs. .......................... 12

15

II. Plaintiffs’ sixth and seventh claims for relief fail to state a claim ........................ 13

A. Section 1396a(a)(17) does not preempt ABX4 4. ..................................... 15

16

B. Section 440.230(b) does not preempt ABX4 4. ........................................ 16

17

III. Plaintiffs’ ninth claim for relief fails to state a claim............................................ 17

18

A. ARRA does not preempt ABX4 4............................................................. 17

B. ARRA is not privately enforceable ........................................................... 19

19

IV. Plaintiffs’ fourth claim for relief against the Agency Defendants is barred

20

by Eleventh Amendment immunity ...................................................................... 20

Conclusion .................................................................................................................................... 21

21

22

23

24

25

26

27

28
i Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page3 of 27

1

TABLE OF AUTHORITIES

2

Page

3

CASES 4

Alden v. Maine

5

527 U.S. 706 (1999) ................................................................................................................ 20

6 Alexander v. Sandoval

7

532 U.S. 275 (2001) .............................................................................................. 14, 17, 19, 20

8 Ass’n of Data Processing Serv. Orgs., Inc. v. Camp

397 U.S. 150 (1970) .................................................................................................................. 7

9

Chapman v. Houston Welfare Rights Org.

10

441 U.S. 600 (1979) .......................................................................................................... 14, 20

11 City of Los Angeles v. County of Kern

12

581 F.3d 841 (9th Cir. 2009)..................................................................................... 7, 8, 16, 17

13 Dennis v. Higgins 498 U.S. 439 (1991) .......................................................................................................... 14, 20

14

Douglas v. Cal. Dept. of Youth Auth.

15

271 F.3d 812 (9th Cir. 2001)................................................................................................... 21

16 Ex Parte Young

17

209 U.S. 123 (1908) ................................................................................................................ 21

18 Golden State Transit Corp. v. City of Los Angeles 493 U.S. 103 (1989) .......................................................................................................... 14, 20

19 Gonzaga Univ. v. Doe

20

536 U.S. 273 (2002) .................................................................................................... 14, 19, 20

21 Gonzalez v. N. Twp. of Lake County

22

4 F.3d 1412 (7th Cir. 1993)..................................................................................................... 12

23

Gray Panthers of San Francisco v. Schwarzenegger 2009 WL 2880555 (N.D. Cal. Sept. 1, 2009) ................................................................... 18, 19

24 Hibbs v. Winn

25

542 U.S. 88 (2004) .................................................................................................................. 18

26 Hillsborough County v. Automated Med. Labs. 471 U.S. 707 (1985) ................................................................................................................ 14
27

28
ii Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page4 of 27

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Hodgers-Durgin v. de la Vina 199 F.3d 1037 (9th Cir. 1999) (en banc)................................................................................. 12
4

5

Hunt v. Wash. State Apple Adver. Comm’n 432 U.S. 333 (1977) .......................................................................................................... 11, 12

6 Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly (Independent Living II)

7

572 F.3d 644 (9th Cir. 2009)..................................................................................................... 5

8 Indep. Living Ctr. of S. Cal., Inc. v. Shewry (Independent Living I)

543 F.3d 1050 (9th Cir. 2008)....................................................................................... 9, 13, 20 9

Local 186, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Brock

10

812 F.2d 1235 (9th Cir. 1987)........................................................................................... 11, 12

11 Lonberg v. City of Riverside

12

571 F.3d 846 (9th Cir. 2009)............................................................................................. 13, 16

13 McMichael v. County of Napa

709 F.2d 1268 (9th Cir. 1983)......................................................................................... 7, 8, 10 14

New York v. F.E.R.C.

15

535 U.S. 1 (2002) .................................................................................................................... 16

16 Pennhurst State Sch. & Hosp. v. Halderman

17

451 U.S. 1 (1981) .................................................................................................................... 14

18 Pharm. Research & Mfrs. of Am. v. Concannon

249 F.3d 66 (1st Cir. 2001) ....................................................................................................... 9

19

Pharm. Research & Mfrs. of Am. v. Walsh

20

538 U.S. 644 (2003) .................................................................................................................. 5

21 Rumsfeld v. Forum for Academic & Institutional Rights, Inc.

22

547 U.S. 47 (2006) .................................................................................................................. 12

23 Sanchez v. Johnson 416 F.3d 1051 (9th Cir. 2005)................................................................................................. 14

24 Satterfield v. Simon & Schuster, Inc.

25

569 F.3d 946 (9th Cir. 2009)................................................................................................... 18

26 Save Our Valley v. Sound Transit

27

335 F.3d 932 (9th Cir. 2003)................................................................................................... 16

28 iii
Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page5 of 27

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Sprietsma v. Mercury Marine 537 U.S. 51 (2002) .................................................................................................................. 15
4

5

St. Thomas-St. John Hotel & Tourism Ass’n v. Virgin Islands 218 F.3d 232 (3d Cir. 2000)...................................................................................................... 9

6 State of Wash., Dept. of Soc. & Health Servs. v. Bowen

7

815 F.2d 549 (9th Cir. 1987)............................................................................................. 14, 15

8 Valley Forge Christian College v. Americans United for Separation of Church & State,

Inc.

9

454 U.S. 464 (1982) ................................................................................................................ 10

10 Warth v. Seldin

11

422 U.S. 490 (1975) ........................................................................................................ 7, 8, 10

12 Watson v. Weeks 436 F.3d 1152 (9th Cir. 2006)..................................................................................... 13, 16, 17

13

Wyeth v. Levine

14

129 S. Ct. 1187 (2009) ................................................................................................ 14, 15, 16

15 STATUTES

16 42 U.S.C.

17

§ 1396........................................................................................................................................ 4

§ 1396a ...................................................................................................................................... 4

18

§ 1396a(a)(10)(A) ..................................................................................................................... 4

§ 1396a(a)(10)(B).................................................................................................................. 3, 8

19

§ 1396a(a)(17) .................................................................................................................. passim

20

§ 1396a(a)(43) ........................................................................................................................... 4 § 1396c ...................................................................................................................................... 4

21

§ 1396d(a) ................................................................................................................................. 5

§ 1396d(a)(4)(B) ....................................................................................................................... 4

22

§ 1396d(r).................................................................................................................................. 4

§ 1983.......................................................................................................................... 16, 19, 20 23

ARRA

24

§ 5000(a)(2)............................................................................................................................. 18

25

§ 5001(f)(1) ...................................................................................................................... passim

§ 5001(g) ................................................................................................................................. 20

26

27

28 iv
Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page6 of 27

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Cal. Welf. & Inst. Code

§ 12309(d)(1)-(5) ...................................................................................................................... 6

4

§ 12309(e) ........................................................................................................................ passim

5

§ 12309.2.......................................................................................................................... passim

6 Rehabilitation Act of 1973 § 504............................................................................................................................ 2, 3, 8, 20
7 CONSTITUTIONAL PROVISIONS
8 Eleventh Amendment.......................................................................................................... 1, 20, 21
9
Supremacy Clause .................................................................................................................. passim 10
11 COURT RULES

12 Fed. R. Civ. Pro. 12(b)(1) ............................................................................................................... 1

13 Fed. R. Civ. Pro. 12(b)(6) ............................................................................................................... 1

14 OTHER AUTHORITIES

15 42 C.F.R.

§ 430.35..................................................................................................................................... 5

16

§ 440.230(b) ..................................................................................................................... passim

17

§ 440.230(d) ............................................................................................................................ 17 § 440.240(a) .............................................................................................................................. 8

18 155 Cong. Rec. S1474 (Feb. 4, 2009) ........................................................................................... 18

19 155 Cong. Rec. S1992 (Feb. 9, 2009) ........................................................................................... 19
20

21

22

23

24

25

26

27

28 v
Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page7 of 27

1

NOTICE OF MOTION AND MOTION TO DISMISS

2

PLEASE TAKE NOTICE that pursuant to the briefing schedule set forth in the court’s

3 December 30, 2009 order (Docket No. 279), defendants John A. Wagner, Director of the

4 California Department of Social Services; David Maxwell-Jolly, Director of the California

5 Department of Health Care Services; California Department of Health Care Services; and

6 California Department of Social Services, hereby move the court to dismiss portions of the action

7 pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Plaintiffs’ opposition

8 to this motion to dismiss is due March 2, 2010; defendants’ reply is due March 16, 2010; and the

9 matter shall be submitted on the briefs without oral argument.

10

Plaintiffs Service Employees International Union – United Healthcare Workers West;

11 Service Employees International Union – United Long-Term Care Workers; Service Employees

12 International Union Local 521; Service Employees International Union State Council; United

13 Domestic Workers of America, AFSCME, Local 3930, AFL-CIO; and California United

14 Healthcare Workers (collectively, the Union Plaintiffs) lack standing to bring this action and

15 accordingly must be dismissed. In addition, plaintiffs’ sixth, seventh, and ninth claims for relief

16 fail to state a claim upon which relief may be granted because, as a matter of law, (1) the

17 challenged statute (ABX4 4) is not preempted by 42 C.F.R. § 440.230(b); (2) ABX4 4 is not

18 preempted by 42 U.S.C. § 1396a(a)(17); and (3) ABX4 4 is not preempted by § 5001(f)(1) of the

19 American Recovery and Reinvestment Act (ARRA). Finally, plaintiffs’ fourth claim for relief

20 against defendants California Department of Health Care Services and California Department of

21 Social Services is barred by the Eleventh Amendment and must be dismissed.

22

The motion will be and is based on this Notice of Motion and Motion, the accompanying

23 Memorandum of Points and Authorities, the accompanying Request for Judicial Notice, the

24 pleadings and papers filed herein, and the argument of counsel.

25

MEMORANDUM OF POINTS AND AUTHORITIES

26

STATEMENT OF ISSUES TO BE DECIDED

27

1. Do plaintiffs Service Employees International Union – United Healthcare Workers

28 West; Service Employees International Union – United Long-Term Care Workers; Service 1
Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page8 of 27

1 Employees International Union Local 521; Service Employees International Union State Council;

2 United Domestic Workers of America, AFSCME, Local 3930, AFL-CIO; and California United

3 Healthcare Workers (collectively, the Union Plaintiffs) have standing to challenge ABX4 4?

4

2. Have plaintiffs stated a claim upon which relief can be granted based on purported

5 preemption of ABX4 4 by 42 C.F.R. § 440.230(b)?

6

3. Have plaintiffs stated a claim upon which relief can be granted based on purported

7 preemption of ABX4 4 by 42 U.S.C. § 1396a(a)(17)?

8

4. Have plaintiffs stated a claim upon which relief can be granted based on purported

9 preemption of ABX4 4 by § 5001(f)(1) of the American Recovery and Reinvestment Act

10 (ARRA)?

11

5. Is plaintiffs’ fourth claim for relief against defendants California Department of

12 Health Care Services and California Department of Social Services under Section 504 of the

13 Rehabilitation Act barred by the Eleventh Amendment?

14

INTRODUCTION

15

This court should dismiss the Union Plaintiffs from this action because they lack prudential

16 standing to challenge ABX4 4, which reduces or terminates some IHSS benefits based on

17 assessments of recipients’ level of need for those services. The Union Plaintiffs purport to

18 represent their members who are providers of IHSS services. However, plaintiffs’ First Amended

19 Complaint alleges only that ABX4 4 violates IHSS recipients’ rights to services under various

20 federal laws, and plaintiffs have not alleged any violation of providers’ rights. Under both

21 Supreme Court and Ninth Circuit precedent, the Union Plaintiffs lack prudential standing to bring

22 this action because (1) they may not rest their claims on the rights of third parties, and (2) they are

23 not within the “zone of interests” protected by any of the laws on which plaintiffs base their

24 claims.

25

In addition, plaintiffs’ sixth, seventh, and ninth claims for relief must be dismissed in their

26 entirety for failure to state a claim upon which relief can be granted. Plaintiffs assert each of

27 these claims for relief on the basis of federal preemption of state law under the Supremacy Clause.

28 However, as a matter of law plaintiffs cannot show that any of the federal laws in question evince 2
Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page9 of 27

1 a Congressional intent to preempt state law; nor can they show that ABX4 4 stands as an obstacle

2 to the accomplishment of Congress’s purpose in enacting any of these laws. Plaintiffs’ sixth and

3 seventh claims for relief—for preemption under 42 U.S.C. § 1396a(a)(17) and 42 C.F.R.

4 § 440.230(b)—fail because these are general discretion-granting provisions with vague and

5 amorphous standards that are not suitable for judicial enforcement and are not sufficiently

6 specific to create any conflict with state law. Plaintiffs’ ninth claim for relief—for preemption

7 under ARRA § 5001(f)(1)—fails because ABX4 4 does not implicate Medicaid “eligibility” in

8 any way, and instead only affects recipients’ level of services under the IHSS program. For each

9 of these reasons, the court should dismiss the Union Plaintiffs from the case for lack of standing

10 and dismiss plaintiffs’ sixth, seventh, and ninth causes of action with prejudice for failure to state

11 a claim.

12

STATEMENT OF RELEVANT FACTS

13

A. The Lawsuit

14

Plaintiffs are five individual recipients of In-Home Supportive Services (IHSS)

15 (collectively, the Individual Plaintiffs) and six unions whose members include providers of IHSS

16 (collectively, the Union Plaintiffs). See Second Amended Complaint (SAC), ¶¶ 12-22. They

17 challenge the California Legislature’s decision, in July 2009, to enact ABX4 4, which reduces or

18 terminates IHSS for recipients who fail to meet minimum thresholds of need for those services.

19 See Cal. Welf. & Inst. Code §§ 12309(e) & 12309.2. Plaintiffs’ first and second claims for relief

20 allege violations of IHSS recipients’ rights to notice and a fair hearing before their benefits can be

21 reduced or terminated. See SAC, ¶¶ 162-75. Plaintiffs’ third and fourth claims for relief allege

22 that ABX4 4 discriminates against recipients on the basis of disability and will lead to the

23 unnecessary institutionalization of disabled recipients, in alleged violation of the Americans with

24 Disabilities Act and Section 504 of the Rehabilitation Act. See id., ¶¶ 176-202. Plaintiffs’ fifth

25 claim for relief alleges that ABX4 4 violates the Medicaid Act’s comparability requirement under

26 42 U.S.C. § 1396a(a)(10)(B) by allegedly discriminating against different classes of beneficiaries

27 with comparable needs. See SAC, ¶¶ 203-11. Plaintiffs’ sixth claim for relief, brought only by

28 the Union Plaintiffs and a putative “Loss of Domestic and Related Services Subclass,” alleges 3
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1 that ABX4 4’s reduction of IHSS domestic and related services is preempted by the Medicaid

2 Act’s “sufficiency” requirement under 42 C.F.R. § 440.230(b). See SAC, ¶¶ 212-15. Plaintiffs’

3 seventh claim for relief alleges that ABX4 4 is preempted by the Medicaid Act’s “reasonable

4 standards” requirement under 42 U.S.C. § 1396a(a)(17). See SAC, ¶¶ 216-19. Plaintiffs’ eighth

5 claim for relief, brought only by the Union Plaintiffs and another putative “Child Subclass,”

6 alleges that ABX4 4 violates the Early and Periodic Screening, Diagnostic and Treatment

7 (EPSDT) requirements under 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43), 1396d(a)(4)(B), and

8 1396d(r). See SAC, ¶¶ 220-31. Plaintiffs’ ninth claim for relief, brought only by the Union

9 Plaintiffs and a putative “Termination of Benefits Subclass,” alleges that ABX4 4’s termination

10 of benefits for certain recipients is preempted by ARRA § 5001(f)(1). See SAC, ¶¶ 232-38. On

11 the basis of these allegations, plaintiffs seek declaratory and injunctive relief barring defendants

12 from implementing the provisions of ABX4 4 that enacted or amended Sections 12309(e) and

13 12309.2 of the California Welfare and Institutions Code.

14

The five Individual Plaintiffs bring their claims on behalf of themselves as IHSS recipients

15 and a putative class of IHSS recipients alleged to be similarly situated. See SAC, ¶¶ 12-16, 108-

16 55. Five of the six Union Plaintiffs allege that their members include “IHSS providers,” and each

17 of these five Union Plaintiffs purports to bring this lawsuit “on behalf of its members.” Id.,

18 ¶¶ 17-19, 21-22. The sixth Union Plaintiff, SEIU California State Council, alleges that it consists

19 of “[m]ore than 20 local unions,” and purports to bring this lawsuit “on behalf of its affiliate local

20 unions and the members of its affiliates.” Id., ¶ 20.

21

B. The Medicaid Act

22

Medicaid is a cooperative federal-state program that provides federal financial assistance to

23 participating states to reimburse certain costs of medical treatment for the poor, elderly, and

24 disabled. 42 U.S.C. § 1396. To qualify for federal matching funds, known as the Federal

25 Medical Assistance Percentage (FMAP), a state must establish and administer its Medicaid

26 program through a state plan approved by the Secretary of Health and Human Services (HHS).

27 42 U.S.C. § 1396a. The receipt of federal funding is expressly conditioned on compliance with

28 the Medicaid Act, and HHS is authorized to withhold funds for noncompliance. 42 U.S.C. 4
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1 § 1396c; see also 42 C.F.R. § 430.35. The Center for Medicare and Medicaid Services (CMS) is

2 the federal agency that administers the Medicaid program on behalf of the Secretary of HHS. See

3 Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 650 n.3 (2003).

4

A state that participates in Medicaid must determine which services it will provide. See 42

5 U.S.C. § 1396d(a). To receive federal approval, the Medicaid Act mandates that a state plan

6 include seven enumerated medical services. See id. §§ 1396a(a)(10), 1396d(a)(1)-(5), (17), (21)

7 (including as mandatory: inpatient hospital, outpatient hospital, laboratory and x-ray, nursing

8 facility, physician, nurse-midwife, and nurse-practitioner services). A state may also elect to

9 provide optional medical services, such as dental services, prosthetics, and prescription drugs.

10 See id. §§ 1396(a)(10)(A), 1396d(a). IHSS is an optional service. See id.

11

C. Enactment of ABX4 4

12

It is well known that California is facing an unprecedented fiscal crisis. RJN, Exhs. A & B.

13 Because the Medi-Cal program is the second largest general fund expenditure in the state budget,

14 second only to K-12 education, policymakers often must contemplate reductions in Medi-Cal

15 spending to balance the budget as required under the law. When a state seeks to reduce Medicaid

16 costs, it generally has three options: restrict eligibility standards, reduce provider payments, or

17 eliminate optional services. The Legislature has considered all of these options. However, efforts

18 to reduce provider payments have been enjoined by the courts. See, e.g., Indep. Living Ctr. of S.

19 Cal., Inc. v. Maxwell-Jolly (Independent Living II), 572 F.3d 644 (9th Cir. 2009). Additionally,

20 because California has agreed to receive ARRA funds, it may not currently restrict eligibility

21 requirements. See ARRA § 5001(f)(1) (Pub. L. No. 111-5 (1st Sess. 2009)).

22

Accordingly, in order to help close the state’s multi-billion dollar deficit in fiscal year

23 2009-2010 and beyond and to ensure the ongoing viability of IHSS, on July 28, 2009 the

24 Legislature enacted need-based thresholds for recipients to qualify for IHSS benefits under Medi-

25 Cal. See Cal. Welf. & Inst. Code §§ 12309(e) & 12309.2. Although the Legislature could have

26 eliminated IHSS benefits entirely, it chose not to do so and instead enacted ABX4 4 to preserve

27 the IHSS program for those recipients who need it most. Specifically, ABX4 4 amended section

28 12309 and added new section 12309.2 to the California Welfare and Institutions Code, to provide 5
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1 that recipients must meet certain need thresholds based on their functional ranks and Functional

2 Index (FI) Scores, see id., which have been in use since 1988 and are calculated as follows.

3

Since 1988, Welfare and Institutions Code section 12309 has required that counties

4 conducting IHSS assessments use a uniform needs assessment tool, requiring a five-point scale

5 for ranking each of the recipient’s functional abilities. The State developed functional ranks

6 under which recipients’ functional abilities are ranked on a scale of 1 to 5 by trained social

7 workers in each of 14 areas: housework; laundry; shopping and errands; meal preparation and

8 clean-up; mobility inside; bathing and grooming; dressing; bowel, bladder, and menstrual;

9 transfer; eating; respiration; memory; orientation; and judgment. The ranks are defined as

10 follows:

11

• Rank 1 means that the individual can perform the tasks in that area independently;

12

• Rank 2 means that the individual can perform the tasks in that area but requires verbal

13

reminding or guidance from another;

14

• Rank 3 means that the individual can perform the tasks but requires some human

15

assistance;

16

• Rank 4 means that the individual requires substantial human assistance with the tasks;

17

and

18

• Rank 5 means that the individual cannot perform any part of the tasks, with or

19

without human assistance.

20 See SAC, ¶ 46; Cal. Welf. & Inst. Code § 12309(d)(1)-(5). Each recipient is also given an overall

21 Functional Index (FI) Score that is calculated based on a weighted average of the recipient’s 11

22 functional ranks for the non-mental tasks (i.e., excluding the functional ranks for memory,

23 orientation, and judgment). SAC, ¶¶ 67 & 72. These FI Scores have been in use since 1988. Id.,

24 ¶ 67.

25

ABX4 4 amended the Welfare and Institutions Code to provide that recipients must have an

26 FI Score of at least 2.0 to receive IHSS, and must have a functional rank of at least 4 in the

27 appropriate category to receive domestic and related services (housework; laundry; shopping and

28 errands; and mean preparation and clean-up). See Cal. Welf. & Inst. Code §§ 12309(e) & 6
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1 12309.2. ABX4 4 exempts individuals authorized to receive either protective supervision or

2 paramedical services, meaning that such individuals may continue to receive all of their IHSS

3 services regardless of their FI Score and functional ranks for domestic and related services. See

4 id.; RJN, Exh. G.

5

ARGUMENT

6

The Union Plaintiffs lack standing to bring any of the causes of action in this lawsuit, and

7 accordingly each of the Union Plaintiffs must be dismissed. Additionally, plaintiffs’ sixth,

8 seventh, and ninth claims for relief fail to state a claim upon which relief can be granted and

9 accordingly must be dismissed.

10 I. 11

THE UNION PLAINTIFFS LACK STANDING AND MUST BE DISMISSED The Union Plaintiffs must be dismissed because they lack standing to challenge ABX4 4.

12 Standing “involves both constitutional limitations on federal-court jurisdiction and prudential

13 limitations on its exercise. In both dimensions it is founded in concern about the proper—and

14 properly limited—role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498

15 (1975); see also City of Los Angeles v. County of Kern, 581 F.3d 841, 845 (9th Cir. 2009)

16 (quoting Warth).

17

A. The Union Plaintiffs Lack Prudential Standing to Bring Claims on Behalf

of IHSS Providers. 18

19

The Supreme Court has recognized several prudential limitations on standing, two of which

20 are relevant here: first, “the plaintiff must assert his own rights and ‘cannot rest his claim to relief

21 on the legal rights or interests of third parties,’” McMichael v. County of Napa, 709 F.2d 1268,

22 1270 (9th Cir. 1983) (quoting Warth, 422 U.S. at 499); and second, “the plaintiff’s interest must

23 be ‘arguably within the zone of interests to be protected or regulated by the statute or

24 constitutional guarantee in question.’” Id. (quoting Ass’n of Data Processing Serv. Orgs., Inc. v.

25 Camp, 397 U.S. 150, 153 (1970)). The “zone of interests” requirement “denies a right of review

26 if the plaintiff’s interests are . . . marginally related to or inconsistent with the purposes implicit

27 in” the relevant constitutional or statutory provision. City of Los Angeles, 581 F.3d at 846-47

28 7
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1 (citation omitted). “As the name implies, the zone of interests test turns on the interest sought to

2 be protected, not the harm suffered by the plaintiff.” Id. at 848.

3

The Union Plaintiffs cannot meet either of these prudential standing requirements. First,

4 the Union Plaintiffs purport to represent only IHSS providers,1 not recipients, see SAC, ¶¶ 17-22,

5 yet their claims rest entirely on the alleged rights and interests of recipients. See id., ¶¶ 101-05,

6 162-238. ABX4 4 implements reductions in services to IHSS recipients based on each recipient’s

7 level of need for such services. See Cal. Welf. & Inst. Code §§ 12309(e) & 12309.2. Plaintiffs

8 challenge ABX4 4 based on claims that the statute violates recipients’ rights under various

9 federal laws. See SAC, ¶¶ 162-238. But plaintiffs do not allege, and cannot allege, that ABX4 4

10 violates any rights of IHSS providers. Plaintiffs allege that the provider members of the Union

11 Plaintiffs will suffer “irreparable injury” because “they will lose employment and hours of work,”

12 id., ¶ 157, but they fail to allege that ABX4 4 violates any legal rights of providers. See generally

13 SAC. Instead, the Union Plaintiffs are attempting to rest their claims entirely on the alleged

14 rights or interests of third parties—IHSS recipients—and accordingly the Union Plaintiffs lack

15 prudential standing. See Warth, 422 U.S. at 499; McMichael, 709 F.2d at 1270.

16

Second, the Union Plaintiffs lack prudential standing because their interests are not within

17 the “zone of interests” protected by any of the laws on which plaintiffs base their claims:

18 Plaintiffs’ first and second claims for relief allege violations of recipients’ rights to notice and a

19 fair hearing before their benefits are reduced or terminated. See SAC, ¶¶ 162-175. Plaintiffs’

20 third and fourth claims for relief allege that ABX4 4 discriminates against recipients on the basis

21 of disability and will lead to the unnecessary institutionalization of recipients, in alleged violation

22 of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. See id.,

23 ¶¶ 176-202. Plaintiffs’ fifth claim for relief alleges that ABX4 4 violates recipients’ rights to

24 benefits that are equal in “amount, duration and scope” for all categorically needy Medicaid

25 beneficiaries. See id., ¶¶ 203-11 (citing 42 U.S.C. § 1396a(a)(10)(B) and 42 C.F.R. § 440.240(a),

26 1 To the extent that the Union Plaintiffs may be trying to assert claims on behalf of IHSS
27 recipients, the Union Plaintiffs lack constitutional standing to bring those claims because they cannot meet the requirements for associational standing. See Section I.B, infra.
28 8
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1 (b)(1)). Plaintiffs’ sixth claim for relief alleges that ABX4 4 is preempted by 42 C.F.R.

2 § 440.230(b) because it allegedly does not provide “sufficient” benefits to IHSS recipients. See

3 SAC, ¶¶ 212-15. Plaintiffs’ seventh claim for relief alleges that ABX4 4 is preempted by 42

4 U.S.C. § 1396a(a)(17) because it allegedly does not provide “reasonable standards” for

5 determining the extent of medical assistance for IHSS recipients. See SAC, ¶¶ 216-19.

6 Plaintiffs’ eighth claim for relief alleges that defendants may intend to take actions in the future

7 that plaintiffs allege would violate the rights of some IHSS recipients under age 21 under the

8 Early and Periodic Screening, Diagnostic and Treatment (EPSDT) provisions of the Medicaid Act.

9 See id., ¶¶ 220-31. Finally, plaintiffs’ ninth claim for relief alleges that ABX4 4 is preempted by

10 ARRA because it allegedly would restrict eligibility standards, methodologies, or procedures for

11 IHSS recipients. See id., ¶¶ 232-38. The laws at issue, to the extent that they create any rights at

12 all, protect the interests of recipients in receiving Medicaid services, and none of these laws is

13 intended in any way to protect the interests of providers in continuing their current level of

14 “employment and hours of work.” Id., ¶ 157. Accordingly, the interests of the Union Plaintiffs’

15 provider members in maintaining their current level of employment and hours of work are not

16 within the “zone of interests” protected by any of the laws at issue, and therefore the Union

17 Plaintiffs lack standing to bring any of the claims for relief in the First Amended Complaint.

18

Defendants anticipate that the Union Plaintiffs will argue that this court should follow the

19 First and Third Circuits and hold that plaintiffs do not need prudential standing to proceed under

20 the Supremacy Clause. See Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 73 (1st

21 Cir. 2001); St. Thomas-St. John Hotel & Tourism Ass’n v. Virgin Islands, 218 F.3d 232, 241 (3d

22 Cir. 2000). However, neither Concannon nor St. Thomas is binding on this court, and these cases

23 should not be followed for several reasons. First, both Concannon and St. Thomas were wrongly

24 decided, as they improperly conflate the prudential standing inquiry with the separate and

25 independent question of whether a plaintiff has a private right of action. See Indep. Living Ctr. of

26 S. Cal., Inc. v. Shewry (Independent Living I), 543 F.3d 1050, 1065 & n.17 (9th Cir. 2008)

27 (holding that plaintiffs had a private cause of action under the Supremacy Clause, but declining to

28 address the separate issue of the plaintiffs’ prudential standing because defendants had not raised 9
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1 it). The Ninth Circuit has not held that the Supremacy Clause obviates the need to establish

2 prudential standing; nor should this court, as such a rule would conflict with the prudential

3 standing requirement’s purposes of, among other things, ensuring that claims are brought only by

4 parties with a proper stake in the outcome. See Warth, 422 U.S. at 499-501; McMichael, 709

5 F.2d at 1270. Here, the Union Plaintiffs’ interest in maximizing the number of hours their

6 provider members can work (regardless of whether those hours are needed by the recipients), is

7 potentially at odds with IHSS recipients’ interests in ensuring that they receive necessary and

8 appropriate services. Indeed, an order requiring the State to provide unnecessary IHSS hours

9 would directly benefit providers, but could potentially harm many IHSS recipients by taking

10 funds away from other, more necessary services. For example, the Union Plaintiffs’ attorneys’

11 request for exorbitant fees stemming from the contempt proceedings in this action, see Plaintiffs’

12 Notice of Application and Application for Attorneys’ Fees and Expenses (Docket No. 273),

13 threatens to drain State coffers of taxpayer funds that could otherwise be used to provide benefits

14 directly to recipients. Finally, the judicial-restraint and separation-of-powers concerns that

15 underpin prudential standing doctrine are particularly acute in the context of Supremacy Clause

16 challenges to validly enacted state statutes; thus, if anything, prudential standing concerns should

17 be heightened, not abandoned, in Supremacy Clause cases.

18

[R]epeated and essentially head-on confrontations between the life-tenured branch

and the representative branches of government will not, in the long run, be beneficial

19

to either. The public confidence essential to the former and the vitality critical to the

latter may well erode if we do not exercise self-restraint in the utilization of our

20

power to negative the actions of the other branches.

21 Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454

22 U.S. 464, 474 (1982) (quoting United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J.,

23 concurring)). Accordingly, this court should not permit the Supremacy Clause to be used as an

24 end run around the sound principles of prudential standing limitations.

25

B. The Union Plaintiffs Lack Constitutional Standing to Bring Claims on

Behalf of IHSS Recipients. 26

27

The Union Plaintiffs appear to be bringing this suit solely on behalf of their members who

28 are IHSS providers, and not on behalf of IHSS recipients. See SAC, ¶¶ 17-22. Nonetheless, to 10
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1 the extent that the Union Plaintiffs may claim that they also are bringing this suit on behalf of

2 IHSS recipients, they lack constitutional standing to do so because they cannot meet the

3 requirements for associational standing.

4

[A]n association has standing to bring suit on behalf of its members when: (a) its

members would otherwise have standing to sue in their own right; (b) the interests it

5

seeks to protect are germane to the organization's purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of individual members in

6

the lawsuit.

7 Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).

8

Here, although the allegations are not entirely clear, the Union Plaintiffs appear to be trying

9 to assert that they are bringing this lawsuit on behalf of some children of union members who are

10 IHSS recipients, as well as on behalf of some retired union members who are also IHSS

11 recipients. Specifically, plaintiffs allege that

12

[s]ome members of these organizational plaintiffs and their minor children for whom

they provide services are at risk of losing their children’s IHSS services and will

13

suffer irreparable injury as a result. Additionally, the organizational plaintiffs’

members include retirees who receive IHSS services themselves and are at risk of

14

losing services under ABX4 4.

15 SAC, ¶ 157.

16

To the extent that the Union Plaintiffs purport to be bringing claims on behalf of minor

17 children who are IHSS recipients, they lack standing to do so for several reasons. First, those

18 minor children are not (and are not alleged to be) union members, and thus the unions have no

19 associational basis for representing them in any capacity. See Hunt, 432 U.S. at 343 (prerequisite

20 for associational standing is that the individuals whose interests the association seeks to represent

21 must be “members” of that association). Second, the interests of those minor children in

22 receiving IHSS benefits are not “germane” to the Union Plaintiffs’ purpose of protecting their

23 members’ employment interests. Id.; see also Local 186, Int’l Bhd. of Teamsters, Chauffeurs,

24 Warehousemen & Helpers of Am. v. Brock, 812 F.2d 1235, 1239 (9th Cir. 1987) (union lacks

25 associational standing where interest the union seeks to represent “is not an interest germane to

26 the union’s purpose”). Third, the relief requested—an injunction blocking ABX4 4’s cuts to

27 IHSS benefits—requires the participation of those individual minor children in the lawsuit to

28 demonstrate that the cuts under ABX4 4 would (1) impact each individual minor child, and (2) do 11
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1 so in an unlawful manner. See Hunt, 432 U.S. at 343 (association lacks standing where

2 participation of individual members is required for lawsuit); Hodgers-Durgin v. de la Vina, 199

3 F.3d 1037, 1045 (9th Cir. 1999) (en banc) (injunctive relief requires demonstration of an injury to

4 a named plaintiff).

5

To the extent that the Union Plaintiffs purport to be bringing claims on behalf of their

6 members who are retirees and receive IHSS services, the Union Plaintiffs lack standing to bring

7 such claims for two reasons. First, the interests of those retirees in receiving IHSS benefits under

8 Medi-Cal are not “germane” to the Union Plaintiffs’ purpose of protecting their members’

9 employment interests. See Hunt, 432 U.S. at 343; Local 186, 812 F.2d at 1239. Second, the relief

10 requested requires the participation of those individual members to show that ABX4 4’s cuts

11 would (1) impact each individual member, and (2) do so in an unlawful manner. See Hunt, 432

12 U.S. at 343; Hodgers-Durgin, 199 F.3d at 1045.

13

C. The Court Must Decide the Issue of the Union Plaintiffs’ Standing Because

They Are Seeking Relief Separate from, and Potentially at Odds with, the

14

Relief Sought by the Individual Plaintiffs.

15

While courts have occasionally declined to address the standing of other parties when one

16 party has standing,2 the issue of the Union Plaintiffs’ standing must be addressed in this case

17 because the Union Plaintiffs’ presence in this lawsuit may affect important issues relating to

18 damages (in the form of attorneys’ fees) and equitable relief. “Although one plaintiff with

19 standing is all that is required to vest the court with jurisdiction, we must consider the other . . .

20 plaintiffs’ claims that they have standing,” since “[i]f they do have standing, their presence in the

21 lawsuit may affect issues of damages or equitable relief.” Gonzalez v. N. Twp. of Lake County, 4

22 F.3d 1412, 1416 (7th Cir. 1993).

23

Here, the Union Plaintiffs’ presence in this lawsuit already has impacted the case, as the

24 Union Plaintiffs’ attorneys have requested attorneys’ fees and expenses for their work bringing

25 2 See, e.g., Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 53
26 n.2 (2006) (“The Court of Appeals did not determine whether the other plaintiffs have standing because the presence of one party with standing is sufficient to satisfy Article III’s case-or-
27 controversy requirement. . . . Because we also agree that FAIR has standing, we similarly limit our discussion to FAIR.”).
28
12
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1 the contempt motion in this case, much of which was duplicative of the work done by the

2 Individual Plaintiffs’ attorneys. See Plaintiffs’ Notice of Application and Application for

3 Attorneys’ Fees and Expenses (Docket No. 273); Defendants’ Opposition to Plaintiffs’

4 Application for Attorneys’ Fees and Expenses (Docket No. 283). Additionally, the interests of

5 the Individual Plaintiffs (who appear to have standing based on the face of the complaint) are not

6 the same as—and in many instances are potentially at odds with—the interests of the Union

7 Plaintiffs (who lack standing). For example, the Union Plaintiffs’ interest is likely to be narrowly

8 focused on maximizing the number of hours that their member providers are authorized to work

9 (whether or not those hours are necessary), while the Individual Plaintiffs’ interests—to the extent 10 that they are mutually aligned3—are likely to be focused on ensuring that they receive the

11 benefits that they need. Thus, the authorization of unnecessary hours is directly in the providers’

12 interests, but may not be in the recipients’ interests. Indeed, the authorization of unnecessary

13 IHSS hours and services collectively may be contrary to the recipients’ interests to the extent that

14 unnecessary IHSS expenditures lead to cuts in other programs from which the recipients benefit.

15 Accordingly, this court should dismiss the Union Plaintiffs for lack of standing.

16 II. PLAINTIFFS’ SIXTH AND SEVENTH CLAIMS FOR RELIEF FAIL TO STATE A CLAIM

17

Plaintiffs’ sixth and seventh claims for relief—for alleged violation of the Medicaid Act

18 “sufficiency” requirement under 42 C.F.R. § 440.230(b) and the “reasonable standards”

19 requirement under 42 U.S.C. § 1396a(a)(17)—fail to state a claim as a matter of law because 20 neither § 440.230(b) nor § 1396a(a)(17) preempts ABX4 4 under the Supremacy Clause.4

21

3 The individual interests of the five named Individual Plaintiffs are likely to vary

considerably based on each recipient’s respective individual circumstances.

22

4 Before plaintiffs can raise the preemption issue, as a threshold matter they must first

establish that they have a private right of action under § 440.230(b) and/or § 1396a(a)(17).

23 Defendants recognize that Independent Living I, 543 F.3d at 1050, is binding on this court and

arguably gives plaintiffs a private right of action under the Supremacy Clause regardless of

24 whether Congress intended to allow a private right of action. Accordingly, defendants raise the

following arguments to preserve them for future appellate proceedings: Plaintiffs lack a private

25 right of action under the Supremacy Clause because Congress did not intend to create a private

right of action to enforce § 1396a(a)(17), see Watson, 436 F.3d at 1162-63, and because

26 § 440.230(b) is a regulation that is not tied to any privately enforceable statute. See Lonberg v.

City of Riverside, 571 F.3d 846, 850-51 (9th Cir. 2009) (“[R]egulations that do not encapsulate

27 [a] statutory right and corresponding remedy are not privately enforceable.”). To the extent that

Independent Living I holds that plaintiffs may maintain a private right of action under the

28

(continued…)

13

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1

Plaintiffs bear a heavy burden in sustaining a preemption claim, and they cannot meet that

2 burden here. The Supreme Court has identified two “cornerstones” of a preemption case. See

3 Wyeth v. Levine, 129 S. Ct. 1187, 1194 (2009). “First, ‘the purpose of Congress is the ultimate

4 touchstone in every pre-emption case.’” Id. (citation omitted).

5

Second, [i]n all pre-emption cases, and particularly in those in which Congress has

legislated . . . in a field which the States have traditionally occupied, . . . we start with

6

the assumption that the historic police powers of the States were not to be superseded

by the Federal Act unless that was the clear and manifest purpose of Congress. 7

8 Id. at 1194-95 (internal quotations omitted). “The Medicaid program exemplifies what is often

9 referred to as ‘cooperative federalism.’ In programs of this sort, ‘[w]here coordinated state and

10 federal efforts exist within a complementary administrative framework, and in the pursuit of

11 common purposes, the case for federal preemption becomes a less persuasive one.’” State of

12 Wash., Dept. of Soc. & Health Servs. v. Bowen, 815 F.2d 549, 557 (9th Cir. 1987) (citations

13 omitted); see also Hillsborough County v. Automated Med. Labs., 471 U.S. 707, 715 (1985)

14 (recognizing “the presumption that state or local regulation of matters related to health and safety

15 is not invalidated under the Supremacy Clause”); Pennhurst State Sch. & Hosp. v. Halderman,

16 451 U.S. 1, 28 (1981) (“In legislation enacted pursuant to the spending power, the typical remedy

17 for state noncompliance with federally imposed conditions is not a private cause of action for

18 noncompliance but rather action by the Federal Government to terminate funds to the State.”).

19

Plaintiffs here are pursuing an “implied” or “conflict” preemption claim, as neither

20 § 1396a(a)(17) nor § 440.230(b) contains any “express” preemption clause. Accordingly,

21 plaintiffs must demonstrate either that it is “‘impossible for a private party to comply with both

22 state and federal requirements,’” or that state law “‘stands as an obstacle to the accomplishment

23 and execution of the full purposes and objectives of Congress.’” Sprietsma v. Mercury Marine,

24 (…continued) Supremacy Clause regardless of Congressional intent, it was wrongly decided because it conflicts
25 with both Supreme Court and Ninth Circuit precedents, including Gonzaga University v. Doe, 536 U.S. 273, 283 (2002); Alexander v. Sandoval, 532 U.S. 275, 286 (2001); and Sanchez v.
26 Johnson, 416 F.3d 1051, 1057-62 (9th Cir. 2005), and because the Supremacy Clause does not itself create any substantive rights. See Dennis v. Higgins, 498 U.S. 439, 450 (1991); Golden
27 State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107 (1989); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 615 (1979).
28
14
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Case4:09-cv-04668-CW Document289 Filed02/02/10 Page21 of 27

1 537 U.S. 51, 64 (2002). Plaintiffs cannot make that showing with respect to either § 1396a(a)(17)

2 or § 440.230(b).

3

A. Section 1396a(a)(17) Does Not Preempt ABX4 4.

4

Plaintiffs’ preemption claim under § 1396a(a)(17) fails as a matter of law because Congress

5 has not evinced any “clear and manifest purpose” to preempt ABX4 4. Wyeth, 129 S. Ct. at 1194.

6 Section 1396a(a)(17) is a general discretion-granting statute that provides that “[a] State plan for

7 medical assistance must . . . include reasonable standards . . . for determining eligibility for and

8 the extent of medical assistance under the plan which (A) are consistent with the objectives of this

9 subchapter.” 42 U.S.C. § 1396a(a)(17). Congress did not provide any concrete standards under

10 § 1396a(a)(17), nor did it provide any guidance as to how to define “reasonable standards . . .

11 consistent with the objectives of this subchapter.” Id. Instead, by providing only vague and

12 amorphous statements of general purpose in a discretion-granting statute, Congress made clear its

13 intent to give states broad discretion to determine the appropriate standards under Medicaid’s

14 system of “cooperative federalism” involving “coordinated state and federal efforts . . . within a

15 complementary administrative framework” in which there is a strong presumption against

16 preemption. Bowen, 815 F.2d at 557. Here, ABX4 4 provides reasonable need-based standards

17 for determining the extent of IHSS services that will be provided under the Medi-Cal program.

18 See Cal. Welf. & Inst. Code §§ 12309(e) & 12309.2. ABX4 4 is entirely consistent with

19 § 1396a(a)(17)’s broad grant of discretion to the states to determine such standards, and it cannot

20 “stand[] as an obstacle” to the accomplishment and execution a such a general, discretion-

21 granting statute. Sprietsma, 537 U.S. at 64. There is simply no indication that Congress intended

22 § 1396a(a)(17) to preempt such statutes based on a court’s assessment of their “reasonableness.”

23 Indeed, to overcome the strong presumption against preemption of ABX4 4 Congress must make

24 its intent to preempt “clear and manifest,” and Congress has not done so here. Wyeth, 129 S. Ct.

25 at 1194-95. Accordingly, as a matter of law ABX4 4 is not preempted by § 1396a(a)(17).

26

Moreover, the Ninth Circuit has analyzed Congress’s intent behind § 1396a(a)(17) in the

27 analogous context of determining whether § 1396a(a)(17) creates a private right of action under

28 42 U.S.C. § 1983. See Watson v. Weeks, 436 F.3d 1152, 1162-63 (9th Cir. 2006). There, the 15
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Case4:09-cv-04668-CW Document289 Filed02/02/10 Page22 of 27

1 Ninth Circuit held that “Section 1396a(a)(17) is a general discretion-granting requirement that a

2 state adopt reasonable standards,” and is “too vague and amorphous for judicial enforcement.” Id.

3 at 1162. Section 1396a(a)(17)

4

does not provide meaningful instruction for the interpretation of “reasonable

standards” in terms of medical need. It provides guidance only regarding the

5

financial means of a potential beneficiary. . . . [T]he only guidance of section

1396a(a)(17)(A) regarding medical need eligibility is that state standards be

6

“consistent with the objectives of this subchapter.” Judicial enforcement of section

1396a(a)(17) . . . would require a court to delve into the medical necessity of

7

particular types of care. If Congress had intended that result, it would have provided

more concrete standards in the statute for determining eligibility based on medical

8

need.

9 Id. at 1162-63. Because Congressional intent is the “ultimate touchstone” of any preemption

10 claim, see Wyeth, 129 S. Ct. at 1194, Watson’s holding regarding Congress’s intent behind

11 § 1396a(a)(17) cannot be reconciled with plaintiffs’ preemption claim and effectively forecloses

12 any claim of preemption here.

13

Finally, plaintiffs lack prudential standing to bring a claim under § 1396a(a)(17) because

14 they are not within the “zone of interests” protected by the statute. See City of Los Angeles, 581

15 F.3d at 846-47; Watson, 436 F.3d at 1162-63.

16

B. Section 440.230(b) Does Not Preempt ABX4 4.

17

Plaintiffs cannot state a claim for preemption under § 440.230(b) because they cannot show

18 that Congress intended this regulation to have any preemptive effect.

19

First, 42 C.F.R. § 440.230(b) is an agency regulation, not a statute passed by Congress, and

20 “a federal agency may pre-empt state law only when and if it is acting within the scope of its

21 congressionally delegated authority[,] . . . [for] an agency literally has no power to act, let alone

22 pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers

23 power upon it.” New York v. F.E.R.C., 535 U.S. 1, 18 (2002). An agency regulation alone cannot

24 create a federal right, and can only create a right in conjunction with a statute that “itself confers a

25 specific right upon the plaintiff”; the regulation creates a valid right only to the extent that it

26 “merely further defines or fleshes out the content of that [statutory] right.” Save Our Valley v.

27 Sound Transit, 335 F.3d 932, 941 (9th Cir. 2003); see also Lonberg, 571 F.3d at 850-51

28 (“[R]egulations that do not encapsulate [a] statutory right and corresponding remedy are not 16
Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page23 of 27

1 privately enforceable.”). This is because, “[l]ike substantive federal law itself, private rights of

2 action to enforce federal law must be created by Congress.” Sandoval, 532 U.S. at 287. Here,

3 plaintiffs have not tied § 440.230(b) to any statute that can give it preemptive effect, and

4 accordingly they have failed to state a claim for preemption under § 440.230(b).

5

Second, ABX4 4 is not preempted by § 440.230(b) because there is no conflict between

6 state and federal law. Section 440.230(b), like § 1396a(a)(17), is part of the Medicaid program’s

7 system of cooperative federalism and does not provide any concrete standards suitable for judicial

8 enforcement. Specifically, § 440.230(b) states only that “[e]ach [Medicaid] service must be

9 sufficient in amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R.

10 § 440.230(b). The regulation does not define what amount, duration, or scope of any service will

11 be “sufficient” to “reasonably achieve” the purpose of that service; indeed, these are precisely the

12 type of “vague and amorphous” standards that the Ninth Circuit held were not suitable for judicial

13 enforcement in Watson, 436 F.3d at 1162-63. Moreover, this regulation specifically grants broad

14 discretion to states, stating that a state “may place appropriate limits on a service based on such

15 criteria as medical necessity or on utilization control procedures.” 42 C.F.R. § 440.230(d).

16 Because § 440.230 grants states broad discretion and does not provide any concrete standards

17 suitable for judicial enforcement, it cannot form the basis for a valid preemption claim. See

18 Watson, 436 F.3d at 1162-63 (“If Congress had intended” to have courts “delve into the medical

19 necessity of particular types of care,” “it would have provided more concrete standards.”).

20

Finally, plaintiffs lack prudential standing to bring a claim under § 440.230(b) because they

21 are not within the “zone of interests” protected by the regulation. See City of Los Angeles, 581

22 F.3d at 846-47; Watson, 436 F.3d at 1162-63.

23 III. PLAINTIFFS’ NINTH CLAIM FOR RELIEF FAILS TO STATE A CLAIM

24

A. ARRA Does Not Preempt ABX4 4

25

Plaintiffs allege that ABX4 4’s reductions and terminations of benefits are preempted by

26 ARRA’s prohibition against adopting “eligibility standards, methodologies, or procedures under

27 its State Plan” that are “more restrictive” than those in effect on July 1, 2008. ARRA

28 § 5001(f)(1)(A); see also SAC, ¶¶ 232-38. Plaintiffs’ claim fails because ABX4 4’s reductions 17
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Case4:09-cv-04668-CW Document289 Filed02/02/10 Page24 of 27

1 and terminations of certain IHSS benefits do not affect recipients’ eligibility for the Medi-Cal

2 program. Plaintiffs have confused cuts in specific benefits—which are unquestionably permitted

3 under ARRA, see Gray Panthers of San Francisco v. Schwarzenegger, 2009 WL 2880555, at *8-

4 *10 & *12 (N.D. Cal. Sept. 1, 2009)—with restrictive changes in overall Medi-Cal eligibility,

5 which is what ARRA contemplates.

6

Indeed, plaintiffs’ argument fails as a matter of law under the plain text of the statute and

7 classic canons of statutory construction. It is a “cardinal rule that statutory language must be read

8 in context [since] a phrase gathers meaning from the words around it.” Hibbs v. Winn, 542 U.S.

9 88, 101 (2004). The ultimate purpose, of course, is to effectuate congressional intent, of which

10 the plain text is the best evidence. Here, the specific provision on which plaintiffs rely occurs in a

11 section entitled “Maintenance of Eligibility Requirements,” not “Maintenance of Benefits or

12 Services.” According to its plain meaning, and within context, § 5001(f)(1)(A) restricts states

13 from constricting “eligibility” standards, methodologies, or procedures. Because ABX4 4 does

14 not restrict the “standards, methodologies, or procedures” by which a Medi-Cal beneficiaries

15 “eligibility” is determined, there is no conflict between ABX4 4 and § 5001(f)(1)(A), and

16 plaintiffs’ claims fail as a matter of law. This is consistent with Congress’s express purpose in

17 enacting these provisions, and the distinction it made between “cuts to . . . benefits or services,”

18 which ARRA was only intended to “help[] to avert,” and “constrictions” to “income eligibility

19 requirements,” which ARRA was intended to “prevent.” ARRA § 5000(a)(2).

20

Given the unambiguous statement of Congressional purpose and the statutory text, there is

21 no need to resort to extrinsic aids. However, defendant notes that this understanding of

22 § 5001(f)(1)(A) is supported by CMS’s guidance regarding the statute. See Satterfield v. Simon &

23 Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). CMS has explained that “procedures,” as

24 utilized in § 5001(f)(1), “refers to those actions taken by the State in administration of their

25 Medicaid eligibility or redetermination process,” as distinct from medical services. RJN, Exh. C

26 at 6. In addition, this understanding is consistent with the legislative history relating to ARRA’s

27 enactment. See, e.g., 155 Cong. Rec. S1474, S1513 (Feb. 4, 2009) (statement of Sen. Grassley)

28 (“The bill only prevents States from cutting Medicaid income eligibility. But if Congress is giving 18
Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page25 of 27

1 States $87 billion and telling them not to cut Medicaid eligibility, I think it is very important we

2 in Congress also tell the States that they can't cut benefits. But this bill doesn't do that.”), attached 3 as RJN, Exh. D.5

4

In sum, because ABX4 4 does not implicate the State’s “eligibility” process, it does not

5 conflict with, and therefore is not preempted by, § 5001(f)(1)(A). See Gray Panthers, 2009 WL

6 2880555, at *8-*10 & *12 (N.D. Cal. Sept. 1, 2009) (holding that § 5001(f)(1)(A) does not

7 preempt cuts to optional Medicaid services).

8

B. ARRA Is Not Privately Enforceable

9

Plaintiffs’ ARRA claim fails as a matter of law for a separate and independent reason: the

10 ARRA provisions at issue are not enforceable by private parties. In Gonzaga, 536 U.S. at 273,

11 the Supreme Court explained that, regardless of whether plaintiffs seek to enforce a federal statute

12 under an “implied” rights theory or under § 1983, the court “must first determine whether

13 Congress intended to create a federal right” with its enactment. Id. at 283. This is because,

14 “[l]ike substantive federal law itself, private rights of action to enforce federal law must be

15 created by Congress.” Sandoval, 532 U.S at 286.

16

A statute only may be found to create a private right of action where its text is “phrased in

17 terms of the persons benefited,” thus reflecting an intention to “confer[s] rights on a particular

18 class of persons.” Gonzaga, 536 U.S. at 284-85 (internal quotations omitted). “[W]here the text

19 and structure of a statute provide no indication that Congress intends to create new individual

20 rights, there is no basis for a private suit, whether under § 1983 or under an implied right of

21 action.” Id. at 286. And “even where a statute is phrased in such explicit rights-creating terms, a

22

23

5 See also 155 Cong. Rec. S1992, S2009 (Feb. 9, 2009) (statement of Sen. Grassley)

(“Does the bill prevent States from getting Medicaid Programs? It does not. The bill only

24 prevents States from cutting Medicaid on one of three propositions, this one being income

eligibility. So that is a good thing. But if Congress is giving States $87 billion and telling them

25 not to cut Medicaid eligibility, shouldn't Congress also tell States they can't cut benefits?”),

attached as RJN, Exh. E; see also id at 2013 (“The bill only prevents States from cutting

26 Medicaid income eligibility.”). Senator Grassley filed an amendment to prohibit States “from

generally cutting eligibility and benefits and providers,” but it was not voted on and therefore not

27 incorporated. Id. at S2009-2010; see also id. at 2013 (“I had several other amendments that were

never allowed to be made pending.”).

28

19

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Case4:09-cv-04668-CW Document289 Filed02/02/10 Page26 of 27

1 plaintiff suing under an implied right of action still must show that the statute manifests an intent

2 ‘to create not just a private right but also a private remedy.’” Id. at 284 (quoting Sandoval).

3

The ARRA provisions at issue are not privately enforceable because they do not evince any

4 Congressional intent to create either privately enforceable rights or a private remedy. Rather than

5 confer “rights” on private parties, the text of ARRA imposes obligations on the parties to be

6 regulated (i.e., the States). See Sandoval, 532 U.S. at 289 (“Statutes that focus on the person

7 regulated rather than the individuals protected create ‘no implication of an intent to confer rights

8 on a particular class of persons.’”). Further, there is no indication in the text of an intent to create

9 a private remedy; to the contrary, it appears that Congress intended that the obligation to enforce

10 ARRA, and to impose remedies for noncompliance (i.e., forfeiture of FMAP), would lie with

11 CMS. See § 5001(g) (providing for reporting by states to Secretary of HHS).

12

Plaintiffs may contend that, under Independent Living I, private parties may state a claim

13 for injunctive relief under the Supremacy Clause any time there is a purported conflict between a

14 federal and state statute. However, Independent Living I was wrongly decided because it

15 conflicts with numerous Supreme Court precedents, including Gonzaga, and because the

16 Supremacy Clause does not itself create any substantive rights. See Dennis, 498 U.S. at 450;

17 Golden State Transit Corp., 493 U.S. at 107; Chapman, 441 U.S. at 615. Defendants recognize,

18 however, that Independent Living I is arguably controlling here, and therefore raise this argument

19 to preserve it for later appellate proceedings.

20 IV. PLAINTIFFS’ FOURTH CLAIM FOR RELIEF AGAINST THE AGENCY DEFENDANTS IS BARRED BY ELEVENTH AMENDMENT IMMUNITY
21

22

Plaintiffs’ fourth claim for relief (under Section 504 of the Rehabilitation Act) against

23 defendants California Department of Health Care Services and California Department of Social

24 Services (collectively, the Agency Defendants) is barred in its entirety by the Eleventh

25 Amendment. The Eleventh Amendment generally bars suits by private persons or entities against

26 non-consenting States, which includes suits against an “arm of the State” such as the Agency

27 Defendants here. Alden v. Maine, 527 U.S. 706, 756-57 (1999). While the courts have

28 recognized limited exceptions permitting suits for injunctive or declaratory relief against state 20
Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

Case4:09-cv-04668-CW Document289 Filed02/02/10 Page27 of 27

1 officers, the Agency Defendants are not state officers and no exception to Eleventh Amendment

2 immunity applies. See id.; Ex Parte Young, 209 U.S. 123, 155-57 (1908).

3

Defendants recognize that Douglas v. California Department of Youth Authority, 271 F.3d

4 812, 819 (9th Cir. 2001), arguably holds that by accepting federal Rehabilitation Act funds, the

5 State has waived its Eleventh Amendment immunity with respect to claims under the

6 Rehabilitation Act. Accordingly, defendants raise this issue to preserve it for future appellate

7 proceedings.

8

CONCLUSION

9

The Union Plaintiffs must be dismissed with prejudice because they lack standing to bring

10 this action. Plaintiffs’ sixth, seventh, and ninth claims for relief must be dismissed with prejudice

11 on the ground that as a matter of law each of these claims for relief fails to state a claim upon

12 which relief can be granted.

13 Dated: February 2, 2010 14 15 16 17 18 19 20 21 SF2009405031
40422860.doc
22

Respectfully Submitted,
EDMUND G. BROWN JR. Attorney General of California SUSAN M. CARSON KARIN S. SCHWARTZ Supervising Deputy Attorneys General
/s/ Gregory D. Brown
JOSHUA N. SONDHEIMER GREGORY D. BROWN MICHAEL A. ZWIBELMAN Deputy Attorneys General Attorneys for Defendants

23

24

25

26

27

28 21
Defendants’ Notice of Motion and Motion to Dismiss; Memorandum of Points & Authorities (CV 09-4668 CW)

 
 Case4:09-cv-04668-CW Document238 Filed11/23/09 Page1 of 45

Pages 1 - 44

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Before The Honorable Claudia Wilken, Judge

V.L., et al., Plaintiffs,
VS. Wagner, et al.,
Defendants.

) ) ) ) ) NO. C 09-4668 CW ) ) ) ) )

Oakland, California Thursday, November 19, 2009

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

For Plaintiff Service Employees International Union United Health Care Workers West:
ALTSHULER BERZON LLP 177 Post Street - Suite 300 San Francisco, California 94108 BY: STACEY LEYTON EVE H. CERVANTEZ
STEPHEN P. BERZON
ATTORNEYS AT LAW

(APPEARANCES CONTINUED ON FOLLOWING PAGE)

REPORTED BY:

Kelly L. Bryce, CSR No. 13476 Court Reporter Pro Tem

Computerized Transcription By Eclipse

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page2 of 45

2

1 APPEARANCES: (CONTINUED)

2 For Plaintiffs IHSS Recipients:

DISABILITY RIGHTS CALIFORNIA

3

Los Angeles Regional Office

3580 Wilshire Blvd. - Suite 902

4

Los Angeles, California 90010

BY: MELINDA BIRD

5

ATTORNEY AT LAW

6

DISABILITY RIGHTS CALIFORNIA

7

Bay Area Regional Office

1330 Boradway - Suite 500

8

Oakland, California 94612

BY: FRED NISEN

9

ATTORNEY AT LAW

10 For Defendants:

OFFICE OF THE ATTORNEY GENERAL

11

State of California

455 Golden Gate Avenue - Room 11000

12

San Francisco, California 94102

BY: GREGORY D. BROWN

13

DEPUTY ATTORNEY GENERAL

14

15

16

17

18

19

20

21

22

23

24

25

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page3 of 45

3

1 Thursday - November 19, 2009

3:13 p.m.

2

3

THE CLERK: Calling the matter of V.L. versus

4 Wagner, Civil Action Number C 09-4668.

5

Counsel, please come forward and state your

6 appearances for the record.

7

MS. LEYTON: Good afternoon, Your Honor. Stacey

8 Leyton here for the Union plaintiffs.

9

MS. BIRD: Melinda Bird, Disability Rights

10 California, here for the IHSS recipients, and with me also is

11 Fred Nisen from Disability Rights California.

12

MR. BROWN: Good afternoon, Your Honor. Gregory

13 Brown, Deputy Attorney General, for defendants.

14

THE COURT: Good afternoon.

15

Well, I guess we have some new information in terms

16 of progress on notifying people. I don't know what the current

17 status is and whether there's anything new that I should know

18 about.

19

MS. LEYTON: Your Honor, my understanding --

20

THE COURT: They filed something today. I presume

21 you saw it.

22

MS. LEYTON: Yes. Yes, Your Honor. My

23 understanding is that we have seen some new numbers as of

24 today, which indicate that there's been some progress in terms

25 of updating records over the past week. Although between

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page4 of 45

4

1 yesterday and today, for example, there were only 11 files that

2 were updated and there are still over 900 files remaining.

3

There was also a declaration filed by the State

4 stating that they were going to send the counties a list of the

5 names of individuals whose records hadn't been updated, but

6 there's no evidence that such a list has been transmitted; and

7 in fact, a number of the counties that are remaining on the

8 list are still telling us that they believe that they've

9 updated all their records. And, so, we are particularly

10 concerned about that.

11

In terms of the notice to the providers, there's --

12 my understanding is that the State's position is that no notice

13 is necessary or will be sent; and, so, we have filed some

14 additional evidence today which -- and apologize for submitting

15 it the morning of the hearing but it's information that has

16 just come to our attention, concerning providers who have

17 received notices that their hours have been reduced or

18 terminated even though their consumers did not receive notices

19 of action.

20

And in the case of one consumer, and that's

21 Ms. Belzman, had to go through a number of hoops in order to

22 determine that, in fact, her daughter and her grandson had been

23 terminated because of the functional index cuts, that their

24 records had not been restored by Riverside County, and that it

25 took quite some effort on the part of Ms. Belzman to eventually

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page5 of 45

5

1 ascertain that information.

2

And I would just call Your Honor's attention to the

3 exhibit to Ms. Belzman's declaration. To the extent there's

4 any question that the timecards that were sent to these

5 providers was a notice of termination, I think that exhibit

6 makes it very clear.

7

Ms. Belzman received a timecard for her -- for one

8 of her daughters and for her grandson that says, "Records

9 indicate that your eligibility ended 10/31/09." And that is

10 the notice that hundreds of providers have received about

11 terminations and that thousands of providers have received

12 concerning service reductions. And we feel very strongly that

13 corrective notices need to be sent to these providers so they

14 know that these notices were erroneous, and so that they know

15 how they may correct their records, and that they should work

16 the hours for those consumers that those consumers are

17 authorized to receive.

18

THE COURT: What would be your suggestion as to how

19 the providers should be notified?

20

MS. LEYTON: Our suggestion, Your Honor, is that the

21 State should send those providers a notice. We've submitted a

22 proposed text in the proposed order that we submitted with our

23 reply brief setting forth that the timecards that they received

24 may have been erroneous, that if it reflected --

25

THE COURT: I read that. But, I mean, what --

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page6 of 45

6

1 should they, like, mail them today, overnight mail, Saturday

2 delivery? What?

3

MS. LEYTON: Your Honor, our proposed order suggests

4 that the State begin to pay a fine if they're not mailed on

5 Monday. And the reason that we've suggested that in particular

6 is, with the Thanksgiving holiday coming up, if those notices

7 are not mailed on Monday, they will not reach people until

8 after the Thanksgiving holiday quite likely.

9

We don't believe that the State needs one week to

10 send that notice out. We're talking about a few thousand

11 notices here. We've already drafted a proposed text. It needs

12 to be translated into three languages and stuffed in a few

13 thousand envelopes.

14

We can't -- it's difficult to believe that the State

15 could not accomplish that by Monday. All it is, is it's just a

16 matter of person power and putting enough people on it to make

17 sure that the translation happens quickly and that the notices

18 get printed and stuffed in envelopes.

19

THE COURT: I wonder if we shouldn't just go to one

20 of these claims administration firms that do that sort of thing

21 as their job and just have someone just outsource it and have

22 the State pay for it. Maybe that would be more likely to get

23 it done. I don't know if it's going to get done.

24

What about phoning them? Do you suppose they have

25 their phone numbers?

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page7 of 45

7

1

MS. LEYTON: Your Honor, we actually think that

2 phoning would be a good idea in addition to sending a mailed

3 notice. We think that a mailed notice does need to be sent to

4 make sure that the exact message is conveyed; and also so that

5 providers have something in hand that they can take to a social

6 worker or to a payroll department and say, "Here, I have this

7 from the State." So that somebody like Ms. Belzman is not

8 told, "Oh, you must have missed a reassessment appointment and

9 you're not going to be put back on for a few weeks."

10

But if the State were to call the providers, that

11 could take place on a much faster time basis; or if the State

12 could have counties call providers and pay for whatever the

13 costs of that would be, we believe that that would be a good

14 idea in addition to the written notice.

15

THE COURT: What do you think needs to be done in

16 order to finish the files of these, I guess, 900 people who are

17 still left? What's the best way to get that done?

18

MS. LEYTON: My understanding, I think the first

19 thing is that the State does need to give a list to the

20 counties of how many records they have yet to update and the

21 names of those individuals.

22

The State also needs to be in contact with somebody

23 from each county to talk to each county about why there are

24 records that have yet to be updated and what needs to happen in

25 order to make sure that those records updates take place,

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page8 of 45

8

1 because there appears to be a continued problem that counties

2 believe they completed the record updates and those record

3 updates haven't taken place.

4

My understanding is that the only communication that

5 the State has sent out thus far have been the two generic

6 notices, the electronic mail message that was sent last week

7 after the contempt motion was filed, and the message that was

8 sent last night which tells people that they need to complete

9 updates by today, if at all possible, and that they will be

10 getting a list.

11

But the State has not sent a list to my knowledge,

12 and has also not made a commitment that it will be in

13 communication with each county that has remaining records to

14 ascertain what the source of the problem is and figure out how

15 to get those records updated.

16

THE COURT: I had a question about something that

17 the State wrote in a letter attached to the certification of

18 compliance, the all-county letter that they sent. And it says,

19 "Modifications restoring CMIPS," if that's how you say it, "to

20 the functionality that existed October 8, 2009, has been

21 completed."

22

Do you understand what that means?

23

MR. BROWN: I do, Your Honor. If I -- I'm speaking

24 out of turn here; but the State, in order to even have the

25 counties reenter the information, the State actually had to go

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page9 of 45

9

1 back in the CMIPS, and that was a quick fix they could do but

2 they had to set it up before the counties could go back and

3 reenter the information. And that's what they're referring to

4 in the all-county letter, and that took about two or three days

5 after October 19th.

6

THE COURT: Okay. You were originally saying it

7 would take five weeks to reprogram the computers.

8

MR. BROWN: And that's an entirely separate

9 reprogramming.

10

THE COURT: Right. But the five weeks are up on

11 Monday. Are you just about done?

12

MR. BROWN: Correct, Your Honor. Well, because the

13 counties are doing this, the State has not been reprogramming

14 the computers because that actually would have -- that would

15 have created a whole separate set of problems once that would

16 have gone into place. That would erase everything that

17 happened between October 9th and whenever that was actually

18 implemented.

19

So because the counties were -- because the State

20 decided to have the counties enter this information manually,

21 because that was far and away the fastest way to do this, the

22 State did not have EDS go and write that program.

23

THE COURT: So does that still have to be done

24 someday or --

25

MR. BROWN: No, Your Honor. As soon as the counties

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page10 of 45

10

1 are done. And we're down to less than one percent remaining.

2 I believe the count this morning was 927. And yesterday a

3 notice was sent to the counties and I've been told, we can

4 submit a declaration on this, that e-mail notices were sent to

5 the counties of specific lists for each of those counties

6 giving them the names of the people who needed to be updated.

7 So that that's happening.

8

The counties now have all the information they need

9 to complete it and it should be done very soon. Again, it's

10 hard to put an exact date on it because the State can't control

11 the counties, but we do believe that it will be done very soon.

12

THE COURT: Okay. So assuming that we don't go back

13 to the cavus -- I know this could all -- this is preliminary,

14 it could be reversed on appeal, and this and that; but assuming

15 that that doesn't happen, you will be able to proceed with the

16 program, with your -- I don't mean the computer program, I mean

17 with the proper payment of these people without doing some sort

18 of five-week reprogramming?

19

MR. BROWN: Correct. As soon as the counties have

20 completed all 117,000 plus of these manual reentries,

21 everything in the computer system will be set to --

22

THE COURT: Permanently?

23

MR. BROWN: Permanently, correct.

24

THE COURT: Could be done permanently?

25

MR. BROWN: Correct.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page11 of 45

11

1

THE COURT: You're not going to come back to me at

2 some future date and say, "Oh, remember that five weeks? Well,

3 we still need it."

4

MR. BROWN: Correct, Your Honor.

5

THE COURT: That's not going to happen?

6

MR. BROWN: Assuming the counties can complete

7 everything manually, this will be done. Everyone will be

8 getting their benefits going forward. All providers will be

9 getting their payments.

10

THE COURT: Okay. Well, so you're saying now that

11 each county has been notified already of the names of each

12 provider or of each recipient who has not yet been updated?

13

MR. BROWN: I've been told that that happened

14 yesterday. I can confirm that, and we will submit a

15 declaration on that so we can confirm that.

16

THE COURT: Well, you did submit a declaration today

17 and it didn't say that.

18

MR. BROWN: I was not able to reach Ruben Romero

19 this morning to get confirmation on that. I spoke with him

20 yesterday. It was in process. I spoke with someone else at

21 EDS later this morning. Their understanding was that that went

22 out yesterday. I'll get ahold of Mr. Romero and we'll get a

23 declaration in on that to confirm that; but --

24

THE COURT: So every single county in the state has

25 received a specific list of all the names of the people you

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page12 of 45

12

1 show as not yet being updated?

2

MR. BROWN: That is my understanding.

3

THE COURT: Do you have any reason to disbelief

4 that?

5

MS. LEYTON: Your Honor, I can say that we've spoken

6 with some counties that have said that they have not received

7 such a list. We spoke with them today.

8

My sense is that the State is not moving quickly on

9 any of this and has not been moving quickly; and, so, the only

10 way that this Court can ensure that the State will comply with

11 this and give the counties what they need to comply with this

12 in a timely way is to institute contempt sanctions if the

13 lists -- I think in the proposed order we've made the deadline

14 tomorrow for the counties to receive those lists and for the

15 State to certify that, and Monday for these notices to go out

16 to providers and for the State to submit evidence that all of

17 the remaining 900 records have, in fact, been updated.

18

Without those contempt sanctions, I don't think we

19 have any confidence that what needs to take place will take

20 place in a timely way.

21

MR. BROWN: Your Honor, the record shows we've been

22 working absolutely as fast as we can to implement this. Having

23 the counties do this was the fastest way available. We

24 obviously can't control the counties, we can't hold a gun to

25 their head, but we've asked them to move forward. They've

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page13 of 45

13

1 been, for the most part, moving as fast as they can; and --

2

THE COURT: Up to a point they were, but things have

3 kind of ground to a screeching halt at this point and there

4 seems to be some problems with the remaining ones, and those

5 are all real people. Even though there's 900 of them, there's

6 still 900 real people out there.

7

MR. BROWN: Okay.

8

THE COURT: And I'm trying to figure out how we can

9 get those people updated and make sure that they are.

10

You say you've sent e-mails to them. They say they

11 haven't got them. I just -- I don't know how to deal with it.

12

Maybe you need to call each one of them and speak

13 with human being to human being in each of the counties and

14 confirm that they got it and ask if they've done it; and if

15 they haven't done it, you're going to have to do it manually.

16

Like the Sonoma situation or the San Francisco

17 situation, if they can't fix it for some glitch-type reason,

18 then the State is just going to have to go in and do it

19 manually without a computer. Just handwrite these people a

20 letter if you have to and mail it to them.

21

So how are we going to deal with these last 900

22 people?

23

MR. BROWN: I know things have been moving quickly

24 in the last few days. My understanding is that they're being

25 dealt with as we speak.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page14 of 45

14

1

But, again, these lists were sent to each county or

2 each of the counties that has people left received a list, I

3 believe it was yesterday -- I'll confirm that and I'll submit a

4 declaration on that -- was sent yesterday, that the counties

5 have been asked to finish by today, that they've been moving

6 forward.

7

THE COURT: But you're saying you can't make them do

8 it. What if they don't or, more likely, what if they can't

9 because there's some computer glitch? They try and it doesn't

10 take and they call your help desk and it doesn't work, what are

11 you going to do about that?

12

MR. BROWN: Again, my understanding is when -- I

13 think they've been referring to an e-mail they sent about some

14 computer glitches. Again, I spoke to my client. They're not

15 seeing those glitches. They spoke with EDS. EDS was going to

16 contact the three counties that said they've been having those

17 glitches. They say they're not aware of those glitches, and

18 their understanding was that they thought it was a county

19 error.

20

I don't know what else to say except that we're

21 monitoring it. We're on top of it. The counties have assured

22 us they're going to be able to do this. Again, per your order,

23 the State is going to pay the counties for their costs of

24 implementing this. We haven't had any county show resistance

25 and say, "We're not going to finish." The counties --

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page15 of 45

15

1

THE COURT: Well, apparently many of the counties

2 think they have finished.

3

MR. BROWN: Correct. And, again, the notices that

4 went out yesterday are going to give them the list that say,

5 "These are the people you have not finished. This is what you

6 need to do." So there's no reason to think that this is not

7 going to get done and in a very short time.

8

THE COURT: Well, I do think we need to have notices

9 go out to all the providers who got erroneous notices, and I

10 would like it to reach them before Thanksgiving. So what's

11 your proposal on that?

12

MR. BROWN: We would object to sending those notices

13 for reasons stated in our papers; namely, the whole point of

14 the notices --

15

THE COURT: They're going to be sent.

16

MR. BROWN: Okay.

17

THE COURT: So the question is: Will you send them;

18 or shall I have the plaintiffs send them; or shall I have the

19 plaintiffs hire a firm, one of these claims-administration-tech

20 firms, to do it?

21

I want you to give the plaintiffs, as well as the

22 counties, the contact information for all of the people who got

23 those notices as well as for all of the people who haven't had

24 their files updated yet.

25

MR. BROWN: And we object to that on the grounds

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page16 of 45

16

1 that that's confidential information.

2

THE COURT: Not anymore.

3

MR. BROWN: Okay.

4

THE COURT: I just ordered it.

5

MR. BROWN: Okay. Okay.

6

THE COURT: They're class members. They're union

7 members. I'm ordering immediate discovery of that information

8 with the order that they be used only for purposes of

9 contacting them for this litigation to make sure that their

10 records are updated, and not to give it to anyone else or to

11 disclose any information about them to anyone else; and that

12 whatever is sent to them needs to be worded carefully so that

13 they don't feel like their privacy has been violated. But with

14 that, yes, that information will be given.

15

So my only question really is, I'm thinking in terms

16 of FedEx, overnight mail, Saturday delivery, something like

17 that. And if you say -- it seems like some places you say you

18 only have four employees. Maybe you're not able to do that

19 sort of thing and we might have to have someone other than you

20 do it unless you think you can do it.

21

MR. BROWN: Our preference would be certainly to do

22 it ourselves. I think we can certainly pledge to do it as fast

23 as possible. I don't know that we can put a specific timeline

24 on that. We're going to have to get the notices translated,

25 printed, and mailed.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page17 of 45

17

1

THE COURT: Well, they could go untranslated first

2 and then they could be sent again translated. Certainly

3 English and Spanish could go out. If you have trouble with the

4 others, you could send a second mailing if you had to, but I

5 don't want to delay all of the mailings just to get some of

6 them translated.

7

But if you don't know how long it will take, then

8 that isn't really a good recommendation for your services. We

9 might have to hire someone who does know how long it would

10 take.

11

MR. BROWN: Well, based on Ruben Romero's

12 declaration, he thinks approximately one week to get everything

13 done.

14

THE COURT: Well, that's not good enough. So if

15 that's the best you can do, then I guess we'll have to have --

16 can you find a firm that could do it if you had the addresses?

17

MS. LEYTON: Yes, Your Honor. Yes, we could.

18

THE COURT: Don't you think that would make more

19 sense?

20

MS. CERVANTEZ: I would imagine that we could get

21 notices translated and have a firm get them out perhaps

22 tomorrow, but certainly by Monday as we requested, and probably

23 get -- I'm certain we could get Spanish translation. I'm not

24 sure if it's as easy to find Armenian translation, for example.

25

THE COURT: Okay. Well, if a week is the best you

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page18 of 45

18

1 can do, then I think we better have a private firm do it and

2 have the State pay for it.

3

MR. BROWN: Okay. And to clarify, Your Honor, these

4 are to the providers who are remaining on --

5

THE COURT: No. To every provider who got a notice

6 that they were being cut, all that was 2000 some odd people who

7 you hadn't fixed by the date the timecards went out; and the

8 date the timecards went out, they went out with notices that

9 said, "For your next pay period you're cut off," or, "For your

10 next pay period you get less," and that was wrong. That

11 shouldn't have happened. And all those people who got those

12 need to be told as quickly as possible that that was wrong and

13 how to fix it.

14

So those people as well as the 900 people, which may

15 just be a subset of those 2000 people, would also get a notice

16 saying the same thing.

17

MR. BROWN: Okay. And the 900 would be a subset

18 then?

19

THE COURT: Yeah.

20

MR. BROWN: Okay. And....

21

MS. LEYTON: So, Your Honor, in order to accomplish

22 that, I think we would need the information from the State in

23 electronic form of which providers did receive those incorrect

24 timecards.

25

And we've also asked that there be a number that the

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page19 of 45

19

1 State gives out that providers can call if they're having any

2 difficulty with -- any difficulty fixing the records

3 essentially.

4

And we've asked also we would need to get from the

5 State supplemental timecards that we can send to the providers.

6 I think those could be blank time sheets; but, so, that the

7 providers can fill those out if they did not submit the hours

8 that they were entitled to submit in the earlier part of the

9 month.

10

MR. BROWN: And, Your Honor, the supplemental

11 timecards will be sent by the counties as well as supplemental

12 payments for everyone once the files are corrected. So those

13 are already going to be going out.

14

THE COURT: You want supplemental timecards to send

15 in this mailing that we're going to do tomorrow or Monday?

16

MS. LEYTON: Yes, Your Honor. There's no indication

17 from the counties that they plan to submit -- to send timecards

18 automatically once the records are updated. The State has not

19 instructed them to do that, and we would prefer that -- there's

20 no reason why a blank timecard couldn't be included with the

21 notice that tells them, "You can still work these hours and

22 fill out those hours and put them on this time sheet."

23

THE COURT: So where do we get blank timecards?

24

MS. LEYTON: Well, it's normally the State that

25 sends the timecards to the providers. It is true that when

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page20 of 45

20

1 there are problems, counties do sometimes send supplemental

2 timecards; but the timecards that go out to providers normally

3 go out with their paychecks, so I don't see any reason --

4

THE COURT: So you want just 2000 blank timecards?

5

MS. LEYTON: Or a timecard that is blank that we

6 could copy and providers could fill out and that would be

7 recognized as a legitimate timecard for them.

8

THE COURT: Well, what would be the best way to do

9 that?

10

MR. BROWN: Assuming the plaintiffs are going to be

11 sending this out, I think we could send them like a blank

12 timecard, a .pdf copy, or something along those lines.

13

I would make one other request. If in the event

14 that I talk to my clients and they say, "You know what, we can

15 do this by Monday," I would request that the State be allowed

16 to send these notices and that we not have to provide the

17 provider list to plaintiffs.

18

THE COURT: You're going to provide the provider

19 list no matter what; but in terms of sending out the notices, I

20 just don't know how to feel confident.

21

MR. BROWN: Right. Right.

22

THE COURT: I mean, I want them to go out. I prefer

23 them to go out more cheaply; and if the State can do it more

24 cheaply, ideally that would be preferable, but I just don't

25 know how to feel confident that that would happen.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page21 of 45

21

1

MR. BROWN: Okay. So if we can --

2

THE COURT: I mean, I guess we could say if you

3 actually -- well, I don't know. Because they have to arrange

4 with someone. They can't wait around and see if you're going

5 to do it. So it makes it sort of difficult logistically.

6

MR. BROWN: I can contact my clients --

7

THE COURT: Is there anything that would make you

8 believe that they would do it? If we took a break and they

9 phoned and said, "We promise to do it tomorrow," would you

10 think that was reasonable?

11

MS. LEYTON: The only thing that would make me

12 confident at this point is if this Court were to order that if

13 the State does not complete the mailing by the date that

14 they've said they would complete it by, that there would be

15 contempt sanctions.

16

THE COURT: Well, I'm reluctant to order taxpayer

17 money to be spent on sanctions. I'd much rather have it go to

18 the recipients. So I really am quite reluctant to do that, and

19 I'd rather have the things go out than have fines paid. So I'm

20 really more interested in figuring out a way to make sure these

21 notices go out.

22

MS. LEYTON: Your Honor, I certainly understand

23 that. We haven't requested contempt sanctions in an effort to

24 be punitive or to punish the State for any noncompliance prior

25 to now.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page22 of 45

22

1

Our position would be that if we are going to send

2 these notices out in a timely way, we would need the electronic

3 version of the addresses and names by tomorrow morning so that

4 we could make arrangements.

5

And if the State says this afternoon that they can

6 get these notices out tomorrow, we would like this Court to --

7 if the State is saying that it can do it by a certain date,

8 then I don't see any problem with the Court stating that if the

9 State doesn't accomplish it by that date, it would then have to

10 pay civil contempt sanctions in order to give the State an

11 incentive to make sure that it completes the mailing on that

12 date.

13

THE COURT: Well, maybe we'll take a break and you

14 can call your people and ask them if they want to get it done

15 tomorrow really; and then if they didn't, you could still do it

16 on Saturday or Monday.

17

Maybe you should give them all the addresses and the

18 timecard this afternoon, and you could at least talk to a firm

19 that could do it right away. And then you can call your people

20 right now and ask them if they'd rather do it themselves, and

21 if they can commit to doing it tomorrow; and if they do, we'll

22 give them a chance to do that.

23

MR. BROWN: If I commit to doing it, having them

24 mailed out by Monday or mailed out tomorrow?

25

THE COURT: Mailed out tomorrow.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page23 of 45

23

1

MR. BROWN: Mailed out tomorrow. I can --

2

THE COURT: Because if they don't do it, then I want

3 to be able to have them go out on Monday.

4

MR. BROWN: Right. I can pretty much tell you here

5 that getting them mailed by tomorrow is going to be next to

6 impossible.

7

THE COURT: Okay. Well, then, we'll just go ahead

8 and have the plaintiffs do it.

9

And I guess -- well, I guess we should take a break

10 and have you call your person and see whether these e-mails

11 actually went out to every county.

12

And then I guess what I'd like is to have somebody

13 from the State call every county and actually ask them, "What

14 have you done about this? Do you think you have updated all

15 these? Are you having some computer problems?"

16

And let's just say that anybody whose file isn't

17 updated by tomorrow, the State fixes it themself. They can do

18 that. It's going to be 900 at the most.

19

MR. BROWN: Right.

20

THE COURT: They can do that by hand. They can type

21 up letters on a typewriter if they have to.

22

MR. BROWN: That is going to be a very slow and

23 time-consuming process if the State does it itself because, as

24 they said in their declarations, we have four people. They

25 don't routinely do this.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page24 of 45

24

1

THE COURT: They're not going to be doing it on the

2 computer. They're just going to be writing out a letter,

3 putting it in the mail saying whatever it is they have to do.

4

I mean, if there's computer glitches, it's going to

5 have to be done manually.

6

MR. BROWN: Right. And that's -- well, I guess I'm

7 not following. In terms of a manual letter going out to each

8 recipient or provider or -- because we're --

9

THE COURT: Recipients and providers.

10

MR. BROWN: -- because we're going to be sending

11 providers notices now. So you're talking about additional

12 notices?

13

THE COURT: Whatever it is. I don't know exactly

14 what you're having the computer do; but the computer, perhaps,

15 isn't doing it in a few cases for some reason that no one

16 understands. And if the computer can't be made to do it, then

17 it's going to have to be done some other way.

18

MR. BROWN: The computer can be made to do it.

19 What's happening is there were a hundred seventeen plus

20 thousand files that each one by one had to be updated on the

21 computer one by one, and that's the 927 of those files left to

22 be updated on the computer.

23

To my knowledge, there hasn't been any computer

24 glitch preventing the remaining files from being updated.

25 Where there have been glitches, it's been between the counties

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page25 of 45

25

1 knowing which files to update.

2

THE COURT: No. Because they're several counties

3 that have said, "We've updated all of them"; and you say, "No,

4 you haven't."

5

MR. BROWN: Correct. Our understanding is that

6 that's where the counties did not have a complete list of the

7 names or, perhaps, misentered the information so they need to

8 go back and reenter it. So that's why we sent them the names,

9 so they can go back to those people's specific computer files

10 and update them.

11

THE COURT: Right. But how am I going to know

12 that's going to happen? I mean, how am I going to fix it if it

13 doesn't?

14

MR. BROWN: I mean, like I said, at some point the

15 State can do this, but I just need to state on the record that

16 that's going to be extremely time-consuming. The fastest way

17 by far is going to be to have the counties continue to fix it,

18 and it looks like they're going to be able to very quickly.

19

THE COURT: Okay. Shall we take a break and have

20 you call the person and come back, and then you can come back

21 tomorrow at 1:30 and report on how well it's gone?

22

MR. BROWN: Sure. I actually have another hearing

23 tomorrow at 1:30, so I could --

24

THE COURT: Where is that?

25

MR. BROWN: It's in San Francisco. It's a

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page26 of 45

26

1 settlement conference. I could appear telephonically at a

2 different time or see if someone else from my office is

3 available.

4

THE COURT: Then what else do we have that needs to

5 get done? I mean, I guess I should say, and maybe you want to

6 address this, but it seems to me that the State is in violation

7 of the order if only because, after being told not to cut off

8 people, these notices went out to providers saying that their

9 recipients were cut off. So that was number one, cutting

10 people off when they weren't supposed to be cut off.

11

And, number two, that constituted a notice to the

12 providers that their recipients were cut off. And while it

13 shouldn't have been done at all, seeing as it was done, it was

14 a notice that needed to be remedied and it should have been

15 remedied as soon as it was realized that it was done and

16 notices should have gone out to these people under the term of

17 the preliminary injunction that said that anyone who gets a

18 notice or directive that they're cut off needs to be notified

19 that that was in error.

20

MR. BROWN: We respectfully disagree with that

21 assessment. We believe we're in full compliance with the

22 injunction. If we've misinterpreted it, I think it should be

23 clarified to state exactly what we need to do.

24

THE COURT: I think it was clear, and I will clarify

25 even further. And what I'm ordering you to do now is in part I

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page27 of 45

27

1 view as contempt sanctions and in part further preliminary

2 injunction that has become necessitated by the fact that things

3 didn't go well the first time around. So it's both of those

4 things.

5

MR. BROWN: Okay. And I just reiterate what's in

6 our briefs. There's no basis for contempt sanctions here, and

7 we've been working absolutely as fast as possible to implement

8 this. To the extent that not everything has been updated --

9

THE COURT: Well, you say two different things,

10 which sort of lacks some credibility I have to say. On the one

11 hand you say you're not in violation. On the other hand you

12 say you've done the best you could but you couldn't really do

13 it. So the latter --

14

MR. BROWN: And possibilities is a defense to

15 contempt, Your Honor.

16

THE COURT: Oh, is that what -- oh, when you're

17 saying you're not in contempt, it's because you couldn't

18 comply --

19

MR. BROWN: First, we believe we have complied.

20

THE COURT: -- or are you saying you think you did

21 comply?

22

MR. BROWN: What the injunction said is to take all

23 steps to ensure that no recipients are denied their benefits,

24 and there is no evidence that any recipient has been denied any

25 benefits. There's no evidence that any provider has had a late

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page28 of 45

28

1 payment. Those are the key things in the injunction.

2

As far as what already happened prior to

3 October 19th, we had to go back and undo that as fast as we

4 can, and we've been doing that. And the injunction

5 specifically authorized us to go back and do it in a method

6 that would not have been completed until this coming Monday.

7

THE COURT: Well, that's another thing that I find

8 quite disingenuous. What the injunction said was that you

9 could require the counties to do it or you could restore the

10 backup; and you're choosing to interpret that or claiming to

11 interpret it as being an implicit statement that what you could

12 really do was go this five-week, write a new program, EDS

13 route, and that the Court was essentially saying, "It's okay

14 with me if you don't do this for five weeks." That's not what

15 "restore the backup" meant.

16

What I could never understand through all of your

17 papers, until I got the implementation briefing, was if you

18 made this big computer change that was going to take five weeks

19 to fix, isn't there a backup tape; and finally in the

20 implementation briefing it came out that, yes, there was a

21 backup tape. There was a system backup that could be

22 reinstalled.

23

It had a problem because any changes that had been

24 made by counties since October 8th when the backup tape was

25 made would have to be reentered, but that would have been 5,000

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page29 of 45

29

1 reentries instead of 117,000 reentries. So it occurred to me

2 that that might have been a better way to go, and that was what

3 was referred to in the notion of restoring the backup, not a

4 five-week new reprogramming.

5

MR. BROWN: Your Honor, I think there was something

6 lost in translation because that would have been the five-week

7 process. Reimplementing the backup tape, that's what EDS said.

8 They don't have a program. They cannot just flip a switch to

9 put in the backup tape. That's where they would have to

10 develop a whole new program, test it, and then put it in.

11

THE COURT: That's just not true. That's not what a

12 backup program is. A backup is a backup. You back stuff up

13 every day. They back it up every day and they could reinstall

14 their backup from the 8th or from the 7th or from the 6th, or

15 whatever.

16

What you said they wanted to do was write a new

17 program. That's a different beast. Writing a new program is

18 not the same as restoring a backup.

19

MR. BROWN: But restoring -- they don't have a

20 program to restore the backup.

21

THE COURT: Of course they do. All computers have a

22 program. It's not a program. You just restore the backup. If

23 your computer crashes and everything's gone, you restore the

24 backup.

25

MR. BROWN: I'm not a computer person, Your Honor --

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page30 of 45

30

1

THE COURT: Well, I am.

2

MR. BROWN: -- but I can only tell you what's in the

3 declaration from EDS.

4

THE COURT: Yeah. I read it.

5

MR. BROWN: And they told us they could not --

6

THE COURT: Am I wrong?

7

MR. BROWN: -- do this in less than five weeks, or

8 approximately five weeks.

9

MS. LEYTON: That's my understanding of what a

10 backup means, yes, Your Honor.

11

THE COURT: Yeah. You need to talk to your computer

12 people some more.

13

MR. BROWN: We talked to them extensively,

14 Your Honor, and that's what they told us.

15

THE COURT: Well, maybe next time if you want to say

16 something like this, you should bring one with you, because

17 that just doesn't make any sense.

18

But, anyway, that's what I was referring to, that

19 they could have restored the system backup as of October 8th;

20 and had they done that, they would have had to only make 5,000

21 changes instead of 117,000 changes. So I don't know quite what

22 they did, but....

23

MR. BROWN: I would just reiterate, Your Honor,

24 there's no date set in the order, and we have done this as fast

25 as possible and I don't know what more we can do.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page31 of 45

31

1

I believe we're, A, in compliance with the

2 injunction; b, to the extent anyone believes we're not,

3 certainly there's not any specific and definite provision in

4 there that we're in violation of. And even if you thought we

5 were in violation of that, impossibility would certainly be a

6 complete defense to any contempt on that basis.

7

MS. LEYTON: Your Honor, we would just ask that if

8 this Court is not inclined to institute contempt sanctions,

9 that the best way to proceed would be to have specific

10 deadlines and instructions as possible. For example, that the

11 State would need to get us these addresses in electronic form

12 as well as a blank time sheet no later than tomorrow morning,

13 and that the State would need to do -- I believe it would be

14 warranted to have us required to appear tomorrow and Monday so

15 that this Court can verify that the records have been updated

16 by the counties and to ascertain whether there are any

17 remaining computer glitches or other glitches that are

18 preventing the remaining 900 individuals from having their

19 eligibility restored.

20

So I just think that that kind of specific order

21 with daily reporting in person would make sense.

22

THE COURT: Okay. I don't know why they couldn't

23 e-mail you the addresses today. Why wait until tomorrow?

24

MS. LEYTON: That's true.

25

THE COURT: It's 10 to 4:00.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page32 of 45

32

1

MR. BROWN: We'll do it as fast as we can.

2

THE COURT: Well, as fast as you can isn't good.

3 Let's do it by 5:00 o'clock today. And if you can't do that,

4 then at 5:00 o'clock today file a detailed explanation saying

5 why it's impossible for you to e-mail these names and addresses

6 by 5:00 o'clock today.

7

MR. BROWN: Okay.

8

THE COURT: We don't have pay phones anymore, but

9 I'm sure you have a cell phone. You can get on the phone and

10 call someone and get that done. And the blank time sheet can

11 be .pdf'd by 5:00 o'clock today.

12

And, then, I also want a declaration filed today

13 verifying your statement that the names and addresses of all

14 the -- is it the 900 people --

15

MS. LEYTON: Your Honor --

16

THE COURT: -- that haven't been updated go to each

17 of the counties?

18

MS. LEYTON: Oh, yes. Yes. The 900 people to the

19 counties.

20

THE COURT: Okay. So a declaration as soon as you

21 can get ahold of this gentleman; and if he's not at his office,

22 get his home phone or his supervisor or his supervisor's

23 supervisor and find out what happened.

24

Then I'm thinking we should just have a phone call.

25 If the counties can't reach someone at the State to find out

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page33 of 45

33

1 what's going on, maybe we should just have someone at the State

2 call each county and have a realtime connection as to comparing

3 the status of these people.

4

MS. LEYTON: Yes. We believe that's appropriate,

5 Your Honor.

6

THE COURT: Okay. So tomorrow we should have

7 someone from the State call -- do they know who to call?

8

MS. LEYTON: My understanding is that they would,

9 yes.

10

MR. BROWN: I would assume so.

11

THE COURT: -- the appropriate person to call at

12 each county and actually have a realtime conversation with

13 them, "Did you get our e-mail of the 'X' number of people that

14 we think aren't updated yet? Have you tried to update them?"

15 And then you check your records and see if it took.

16

Is that how it works? They update it and then you

17 have to look at it to see if it took? Is that how it works?

18

MR. BROWN: They update it and then we get reports

19 from EDS off of the CMIP system telling us basically -- I think

20 they can give us different types of reports. The ones we've

21 been getting are showing just a list of how many have been

22 updated and how many are left.

23

THE COURT: Where is EDS? How do you get those

24 reports?

25

MR. BROWN: I believe that they're --

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page34 of 45

34

1

THE COURT: I mean, this is all done electronically.

2

MR. BROWN: I believe they're e-mailed to us.

3

THE COURT: So --

4

MR. BROWN: They're e-mailed to me.

5

THE COURT: Okay. So, then, tomorrow we'll have a

6 realtime phone conversation between someone in the State and

7 someone in each county who can confirm that that county did

8 receive all of its names, that that county has or has not tried

9 to update all of its names; and if for any reason that county

10 hasn't succeeded in doing that, then the -- then you need to

11 find out the names of the people that they were unable to

12 update, and the State can update them themself tomorrow

13 afternoon.

14

There shouldn't be very many if what you're saying

15 is correct. So it shouldn't be too burdensome.

16

And if the counties have already tried and weren't

17 able to or won't do it, then you can just do the rest of those

18 and those should be done by the end of the day tomorrow.

19

And then you all will have your addresses and you

20 can send mailings out maybe tomorrow or Saturday, which should

21 easily get there by Thanksgiving; and all you need is the

22 addresses, the time sheet, and the letter that you've got.

23

MS. LEYTON: Yes. We would also like a number to

24 give to providers to call.

25

THE COURT: Oh, the number, yeah.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page35 of 45

35

1

Is there a phone number that they can put, an 800

2 number, they can put in their letter where the people can call

3 to the State if they have trouble?

4

MR. BROWN: I guess it depends what type of

5 information would they be wanting at the other end of this 800

6 number.

7

MS. LEYTON: Our concern is that, for example,

8 Ms. Belzman, when she attempted to get her problem fixed, she

9 contacted payroll and payroll sent her to the social worker.

10 And, so, in each county it may be a different entity that needs

11 to fix a problem when a provider didn't get paid for their

12 hours or got an incorrect time sheet. So we would like a

13 central number that they could call where somebody at the State

14 could say, "You're from Riverside County, we'll report your

15 problem to Riverside County," or help the person take care of

16 it.

17

Because otherwise, you know, providers who speak

18 different languages and may be, more or less, aware of the

19 various issues or more or less persistent, may not be able to

20 push through all the different mechanisms within their county

21 to figure out how to get it corrected.

22

THE COURT: Would the State know how many hours they

23 were supposed to get?

24

MS. LEYTON: The State should be able to look that

25 up in the CMIP system, yes, once those records are corrected.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page36 of 45

36

1

THE COURT: So it would be somebody in the State.

2 Where does this happen, in Sacramento?

3

MR. BROWN: This is information that's typically

4 going to be at the county level in terms of --

5

THE COURT: But you know it because it's in your

6 CMIPS computer.

7

MR. BROWN: Well, we can ask EDS to call it up and

8 get it for us, and that's process. So I don't think we can --

9

THE COURT: You e-mail them and they e-mail it back.

10

MR. BROWN: Yeah. And, so, to get it in realtime, I

11 think if people contact the counties, they're going to get this

12 information much, much faster because this is something the

13 counties routinely handle is people calling and saying, "My

14 benefits" --

15

THE COURT: But you tell me I can't rely on the

16 counties, so I have to rely on you. I can't give them 94

17 different numbers. I don't know how many counties they have.

18

MR. BROWN: Well, each recipient would already have

19 the number for their county person.

20

THE COURT: We need a number in the State that they

21 can call if they don't understand it, or they don't know how

22 many hours they're supposed to get, or they don't get any help

23 from the county.

24

MR. BROWN: I think that would honestly, Your Honor,

25 just cause more confusion for the recipients and providers

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page37 of 45

37

1 because I don't see how this State number would really provide

2 them with anything further than essentially referring them back

3 to the county.

4

THE COURT: No. I want the State person to be able

5 to send an e-mail to EDS and say, "What is John Doe's

6 situation?" And get an e-mail back from EDS. Maybe you need

7 to have somebody on call at EDS for a few days who can run

8 those queries for you when the calls come in.

9

Do you have an 800 number up there?

10

MR. BROWN: I don't think we have one set up. We

11 can certainly look into setting one up. I just don't know that

12 this is going to be anything that's actually going to benefit

13 anyone. I think it's going to be incredibly cumbersome on both

14 the State and EDS, which I think is going to hinder the ability

15 for the State to go back and enter any more information into

16 CMIPS, which sounds like we might have to do after tomorrow if

17 the counties aren't done.

18

So my real concern is sort of putting an impossible

19 burden on the State that's not going to be helpful to

20 recipients or providers and that the State is just not

21 physically going to be able to comply with.

22

THE COURT: Well, let's give it a try. Maybe there

23 won't be a lot of calls. I don't know how quickly they can get

24 an 800 number. You want to put a number in there. If they

25 don't have one, maybe we just ought to give them their regular

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page38 of 45

38

1 phone number.

2

MS. BIRD: Your Honor, when these cuts -- Melinda

3 Bird here -- were being implemented, we set up 800 numbers for

4 people to call us, Disability Rights California. You can have

5 an 800 number set up in a matter of hours.

6

THE COURT: Oh, really?

7

MR. BROWN: And, Your Honor, I also believe tomorrow

8 is a furlough day, so there might be some real difficulties

9 with the State having people available tomorrow to, I just

10 realized, to make these calls to the counties.

11

THE COURT: I thought the furlough days were

12 Wednesdays.

13

MR. BROWN: Furlough days are Fridays, at least with

14 the Department of Social Services. So I think that could

15 present a real problem in terms of the things that are supposed

16 to get done tomorrow. They might not be able to get done until

17 Monday.

18

THE COURT: So you're saying the DSS is on furlough

19 tomorrow --

20

MR. BROWN: Correct.

21

THE COURT: -- and nobody will be working?

22

MR. BROWN: Nobody expect -- yeah. I think the

23 office is closed tomorrow. You can typically reach at least

24 in-house counsel on his cell phone, but that's about the best

25 contact I have. I think most people are not going to be at

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page39 of 45

39

1 work tomorrow.

2

MS. LEYTON: Your Honor, there's still one hour in

3 the day where the State could try to reach all these counties

4 and make sure they got their list and find out what the

5 remaining --

6

THE COURT: What about supervisors? Is everybody

7 furloughed?

8

MR. BROWN: My understanding is everybody is

9 furloughed. My understanding is actually

10 Governor Schwarzenegger effectively ordered them to basically

11 close the office except under extraordinary circumstances.

12

MS. LEYTON: Your Honor, I believe a Federal Court

13 order could be a circumstance that would justify having a few

14 people. I believe that these are high-level officials who are

15 putting in the calls to the counties because they're people who

16 have the knowledge and the authority to be able to fix problems

17 and work things out, and --

18

THE COURT: Yeah. Somebody's going to have to call.

19 You know, if it's the Attorney General's staff, I guess you

20 could do it. You could have a list of names and call the

21 counties and read off names to them. EDS isn't furloughed, so

22 you could e-mail to EDS.

23

MR. BROWN: I'll pass along to my client and we'll

24 do what we can. I just want to warn the Court now that we

25 might not have people available tomorrow.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page40 of 45

40

1

THE COURT: Well, you're going to have to I'm

2 afraid, because we need these things checked out tomorrow.

3

MR. BROWN: I'll ask my client to do what they can.

4

THE COURT: Okay. And we're going to see you at

5 1:30.

6

MR. BROWN: As I said --

7

THE COURT: We're not going to see you.

8

MR. BROWN: I'm not available.

9

THE COURT: Who are you in front of?

10

MR. BROWN: It's a private mediator in

11 San Francisco. I don't have his name in front of me. It's

12 through the San Francisco Superior Court Early Settlement

13 Program.

14

THE COURT: And you're lead counsel in that case?

15

MR. BROWN: Yes. The only counsel on that one at

16 present.

17

THE COURT: Okay. Well, why don't you call and ask

18 if you could be there at 2:30 instead of 1:30? You could come

19 here at 1:30, get on BART, and be over there by 2:30. Or you

20 want me to call them? Who is it? Oh, you said you didn't

21 know.

22

MR. BROWN: I don't know if I brought his name.

23 I'll see what I can do and I'll let you know, Your Honor.

24

THE COURT: Okay. Then if not, then I guess you'll

25 have to send someone else in from your office. Are you in

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page41 of 45

41

1 Sacramento?

2

MR. BROWN: No. San Francisco.

3

THE COURT: You're in San Francisco.

4

Okay. Well --

5

MS. LEYTON: Your Honor, one other question is that

6 you mentioned overnight mail, and I had a request that we be

7 authorized to send these letters overnight mail. I just wanted

8 to confirm that that was what Your Honor intended.

9

THE COURT: I guess so.

10

MR. BROWN: Your Honor, I believe that would be an

11 unnecessary expense, particularly with the State's current

12 budget crisis. Overnight mail is quite expensive. Regular

13 mail within the state of California is usually going to get

14 there the next day or two days later at the latest anyway. So

15 I don't know that anything is gained and it's going to cost the

16 State an extraordinary amount of money.

17

THE COURT: Well, why don't you check into it and

18 see. Sometimes it's like $40 to send overnight mail. I don't

19 want to spend $40 apiece.

20

Find out when it would get there if you didn't send

21 it overnight, and make a conscientious decision as taxpayers

22 whether it's really worth it depending on when you get the

23 names and how long it takes.

24

I would like it to get there before -- on the

25 Wednesday before Thanksgiving. So if you can get it there

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page42 of 45

42

1 without extraordinary expense, that would be better.

2

So is there anything else specific that you think we

3 need to set dates and times for?

4

MS. LEYTON: My understanding is that the Court will

5 contact us if the date and time changes; but, otherwise, we

6 should prepare to be here at 1:30 tomorrow?

7

THE COURT: Well, I hate to make all of you come in.

8 You could phone in. I mean, it's really the State we need to

9 hear from. You can come if you want to.

10

I'm in trial and my trial ends at 1:30, so I'll have

11 a reporter and it will be easy for me to have people come in

12 and tell me what's going on; but I hate to have five people

13 spend their hourly rates, which, by the way, I am going to

14 order the State to pay for today's proceeding in terms of

15 attorneys' fees. And in the future if more enforcement is

16 necessary because of failures to comply, then the State will be

17 paying those fees.

18

MR. BROWN: And we object to that, Your Honor.

19

THE COURT: Right.

20

So, yeah, we'll do something at 1:30. If you can go

21 late to your other thing, that would be good. If absolutely

22 necessary, you could call in and appear by phone. Sheilah can

23 give you the CourtCall number. We could have a CourtCall, or

24 you could send somebody else, and then on Monday at 1:30 as

25 well.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page43 of 45

43

1

And we better break so he can call and get those

2 people's addresses e-mailed over.

3

MR. BROWN: And are we just taking a short break or

4 are we done?

5

THE COURT: No. I guess we're done.

6

MR. BROWN: Okay, Your Honor.

7

THE COURT: I want you to file a declaration saying

8 what actually has happened so far in terms of the e-mails going

9 out to each of the counties. I want you to get the addresses

10 to them, get the timecards to them by the end of the day.

11

And then I want the counties called and the people

12 updated tomorrow, and I want a report at 1:30 as to how many

13 counties have been called and how many people are still to be

14 updated and how many have been updated.

15

And then we'll speak again on Monday by which time

16 one can only hope that all of the counties will have been

17 called and all of the 900 people will have been updated even if

18 it has to be done manually, and that should bring us up to

19 date, I guess.

20

MS. LEYTON: Yes. I believe that would, Your Honor.

21

THE COURT: And you can submit your attorneys' fees

22 declarations. You're going to need to be efficient and lean on

23 these attorneys' fees. I don't want to have the State paying

24 five people to do everything.

25

MS. LEYTON: Understood.

Case4:09-cv-04668-CW Document238 Filed11/23/09 Page44 of 45

44

1

THE COURT: And they can all come if they want to,

2 but they can't all bill.

3

MS. LEYTON: Understood.

4

THE COURT: Okay.

5

MS. LEYTON: Thank you, Your Honor.

6

MR. BROWN: Thank you, Your Honor.

7

(Proceedings adjourned at 4:03 p.m.)

8

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21

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Case4:09-cv-04668-CW Document238 Filed11/23/09 Page45 of 45
CERTIFICATE OF REPORTER I, KELLY BRYCE, Court Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in CR 09-4668 CW, V.L., et al versus Wagner, et al., were reported by me, a shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing.
The validity of the reporter's certification of said transcript may be void upon disassembly and/or removal from the court file.
______________________ Kelly Bryce, Court Reporter
Friday, November 20, 2009

 
 Case4:09-cv-04668-CW Document328 Filed12/01/11 Page1 of 8

1 MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)
2 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd., Ste. 902
3 Los Angeles, CA 90010 Telephone: (213) 427-8747
4 Facsimile: (213) 427-8767 melinda.bird@disabilityrightsca.org
5 marilyn.holle@disabilityrightsca.org

6 Attorneys for Named Plaintiffs and the Proposed Class Additional Attorneys for Named Plaintiffs and the
7 Proposed Class on Signature Page

8 STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)
9 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
10 RACHEL J. ZWILLINGER (SBN 268684) Altshuler Berzon LLP
11 177 Post Street, Suite 300 San Francisco, California 94108
12 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
13 sberzon@altshulerberzon.com ecervantez@altshulerberzon.com
14 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
15 rzwillinger@altshulerberzon.com

16 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU

Local 521, SEIU California State Council, UDW, and CUHW

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

19

DAVID OSTER, et al.,

Case No. CV 09-04668 JSW

20

Plaintiffs,

EX PARTE APPLICATION FOR

21

TEMPORARY RESTRAINING ORDER

v.

AND ORDER TO SHOW CAUSE WHY

22

PRELIMINARY INJUNCTION SHOULD

LIGHTBOURNE, et al.,

NOT ISSUE

23

Defendants.

TRO REQUESTED BY 4:00 P.M. TODAY

24

(THURSDAY, DECEMBER 1, 2011)

25

26

27

28

Ex Parte Motion for TRO, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document328 Filed12/01/11 Page2 of 8

1

Pursuant to Local Rule 65-1, Plaintiffs David Oster et al., on behalf of themselves and

2 members of proposed Class B, hereby apply for a temporary restraining order (“TRO”) and order

3 to show cause why a preliminary injunction should not issue to enjoin the reduction, by 20 percent,

4 of crucial In-Home Supportive Services (“IHSS”) hours that currently enable them to remain safely

5 in their own homes. This reduction will cause severe, irreparable injury to hundreds of thousands

6 of low-income, elderly and disabled individuals, unless a TRO issues.

7

Although the hours reduction does not take effect until January 1, 2012, Defendants are in

8 the process of implementing that reduction by making programming changes to the statewide IHSS

9 database (called the “Case Management Information Payrolling System,” or “CMIPS”) and

10 printing Notices of Action that will be sent to IHSS recipients. Plaintiffs request that the Court rule

11 on the TRO application by 4:00 p.m. today (Thursday, December 1, 2011), because Defendants

12 have stated that they will “pull the switch” on changes to CMIPS at the close of the business day

13 on Thursday December 1, 2011. Fifth Declaration of Melinda Bird (“Bird Decl.”) ¶10.

14 Defendants have also stated that if no injunction issues today and the CMIPS switch is pulled, they

15 will not be able to guarantee that the changes can be reversed by January 1, 2012 if an injunction is

16 issued at a later date. Id. ¶11.

17

In the alternative, if this Court does not act on the TRO application today, Plaintiffs request

18 a ruling on the TRO application by Tuesday, December 6, 2011, to ensure that this Court has an

19 opportunity to rule before Defendants send Notices of Action reducing benefits, and to give

20 Defendants as much time as possible to reverse the CMIPS programming implementing the 20

21 percent reduction. Plaintiffs have acted diligently to file this action and motion as soon as

22 practicable, but have been unable to do so any sooner because it has been unclear whether the cuts

23 would take effect and how they would be implemented until after the close of business on

24 November 29, 2011.

25

As explained in greater detail in Plaintiffs’ memorandum in support of TRO, Plaintiffs seek

26 to enjoin Defendants from implementing California Senate Bill 73 (Stats. 2011, c. 34, §§1-3)

27 (hereinafter (“SB 73”)), which will otherwise impose across-the-board, substantial reductions in

28 authorized IHSS service hours for 372,000 IHSS recipients (all IHSS recipients except

1 Ex Parte Motion for TRO, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document328 Filed12/01/11 Page3 of 8

1 approximately 70,000 individuals who are automatically exempted). Although SB 73 permits

2 some IHSS recipients to apply for restoration of the reduced hours based on a showing of serious

3 risk of out-of-home placement, that process fails to offer adequate protections for IHSS recipients

4 because, among other things, it ignores that recipients already receive only those hours that are

5 necessary to keep them safely at home, fails to provide for hours restoration based on a showing of

6 likely risk to health, and imposes the burden on recipients to apply for restorations rather than

7 requiring county social workers to review their caseload and identify individuals at risk. Moreover,

8 Defendants have deemed two-thirds of IHSS recipients ineligible for hours restorations based on

9 their functional ranks, which this Court has already held are not reasonable measures of need for

10 IHSS services. Finally the notices of action Defendants intend to send violate constitutional due

11 process requirements in much the same way as did the notices of action this Court previously

12 enjoined.

13

Plaintiffs further seek class certification and amendment of the complaint on shortened

14 time, and ask that relief be granted on a class-wide basis.

15

GROUNDS FOR MOTION

16

This motion is made, pursuant to Federal Rules of Civil Procedure 65 and Civil Local Rules

17 7-10 and 65-1, on the ground that Plaintiffs have demonstrated that they meet the requirements for

18 a TRO and preliminary injunction: (1) a likelihood of success on the merits, (2) likely irreparable

19 injury absent interim injunctive relief, (3) the balance of hardships tips in Plaintiffs’ favor, and (4)

20 an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S.

21 7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011)

22 (standard is sliding scale; stronger showing of irreparable harm decreases showing needed on

23 merits, and vice versa).

24

As further explained in Plaintiffs’ Memorandum in support of TRO and Order to Show

25 Cause Why a Preliminary Injunction Should Not Issue, Plaintiffs have shown that the substantial

26 reduction of IHSS services to 372,000 elderly, disabled, or blind individuals who cannot safely

27 remain in their homes without such services will cause irreparable harm in the form of serious and

28 imminent risk of injury, declining health, homelessness, unnecessary institutionalization, and even

2 Ex Parte Motion for TRO, Case No. CV 09-04668 CW

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1 death. Plaintiffs have also demonstrated a strong likelihood of success on the merits of their claims

2 that implementation of SB 73 violates the Due Process Clause of the U.S. Constitution; the

3 EPSDT, comparability, sufficiency, and reasonable standards provisions of the Medicaid Act; and

4 the prohibitions on unnecessary institutionalization, discrimination based on type of disability, and

5 discriminatory methods of administration of the Americans with Disabilities Act and Section 504

6 the Rehabilitation Act. Finally, Plaintiffs have shown that the balance of equities and public

7 interest weigh in favor of granting an injunction to preserve the status quo while the merits of the

8 case are litigated.

9

NEED FOR PROMPT ACTION

10

On June 20, 2011, the Governor of California signed into law SB 73, which provides for a

11 20 percent across-the-board reduction in authorized IHSS hours, subject to certain exceptions, if

12 specified state revenue targets are not met. 3rd RJN, Ex. 1. The reductions are set to take effect on

13 January 1, 2012 if, on or before December 15, 2011, the Director of Finance determines that these

14 targets are not met. Assembly Bill No. 121 (Stats. 2011, c. 41, §§1-2). On November 16, 2011,

15 the state Legislative Analyst issued a report stating that the specified revenue targets would not be

16 met and that under its projections the IHSS reductions provided for in SB 73 would take effect.

17 3rd RJN, Ex. 7. The same day, the Director of Finance stated that the budget reductions would

18 likely take effect. 3rd RJN, Ex. 8. Plaintiffs learned yesterday that State officials are currently

19 moving to implement the reductions by making programming changes to CMIPS and preparing to

20 send out notices of action. Bird Decl. ¶¶10, 13.

21

On November 1, 2011, CDSS issued a draft All County Letter (“ACL”) explaining how the

22 hours reduction would be implemented. 3rd RJN, Ex. 5. On the evening of November 29, 2011,

23 CDSS issued the final ACL. Id., Ex. 6. Much of the ACL describes how Defendants will

24 implement the “IHSS Care Supplement” process, through which some recipients may apply for

25 partial or full restoration of hours upon a showing of serious risk of out-of-home placement. Cal.

26 Welf. & Inst. Code §12301.07(f). The ACL provides that eligibility for an IHSS Care Supplement

27 is dependent on recipients’ functional ranks, which are scores assigned to a recipient’s mental

28 functioning or certain activities of daily living. 3rd RJN, Ex. 6. This Court has already determined

3 Ex Parte Motion for TRO, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document328 Filed12/01/11 Page5 of 8

1 that functional ranks are not reasonable measures of need. Order Granting Plaintiffs’ Motion for a

2 Preliminary Injunction (Dkt. 198) 12:24-14:5, 17:11-16, 18:6-8. Nor are they reasonable measures

3 of risk of out-of-home placement.

4

Pursuant to a stipulation and order entered in 2010 staying the instant case pending the

5 appeal of the preliminary injunction, on November 28, 2011 Plaintiffs gave written notice to

6 Defendants of intent to lift the stay and notified Defendants of intent to seek a TRO. Dkt. 319 &

7 Ex. A. Plaintiffs also contacted Defendants to discuss the timing of a TRO. On November 30,

8 2011, Defendants’ counsel informed Plaintiffs that CDSS had already completed the

9 reprogramming of the CMIPS system required to implement the 20% reduction in IHSS hours and

10 would “pull the switch” to put these changes into effect by the close of business on December 1,

11 2011. Bird Decl. ¶10. According to Defendants’ counsel, pulling the switch will also begin the

12 process of printing the physical notices of action that are to be mailed out no later than December

13 15, and once the re-programming is implemented, reversing any changes after December 1, 2011

14 would need to be done manually by the counties. Id. Defendants’ counsel stated that if the Court

15 does not issue a TRO before the close of business on December 1, 2011, CDSS cannot guarantee

16 that the changes can be reversed by January 1, 2012, and that the longer the period of time between

17 December 1 and the date that a TRO or other order is issued, the more difficult it will be to reverse

18 the process. Id. ¶¶11-12. Finally, Defendants’ counsel stated that Notices of Action implementing

19 the 20 percent reduction could issue before December 15, 2011, as soon as there is a formal

20 announcement that the revenue targets have not been met, thus “triggering” SB 73. Id. ¶13. After

21 learning this information, Plaintiffs informed Defendants’ counsel that they would request that the

22 Court issue a temporary restraining order today, December 1. Id. ¶15

23

By the terms of the stipulation and order, the stay of proceedings in this case lifted on

24 December 1, 2011, and Plaintiffs immediately filed the instant application for a TRO, motion to

25 amend the complaint, and associated papers. The TRO motion was filed as soon as it reasonably

26 could have been, given that it was uncertain whether the specified revenue targets would be

27 achieved, in which case the IHSS hours reductions would be avoided, until November 16, 2011;

28 that Defendants did not set forth final implementation plans until the evening of November 29,

4 Ex Parte Motion for TRO, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document328 Filed12/01/11 Page6 of 8

1 2011; and that Plaintiffs did not learn that the CMIPS changes would be implemented on

2 December 1, 2011 until the afternoon before, on November 30, 2011.

3

Plaintiffs need a TRO by 4:00 p.m. on Thursday, December 1, 2011, to ensure that the

4 switch is not pulled to implement the programming changes in the CMIPS system. Plaintiffs also

5 need a TRO to ensure that Defendants do not issue Notices of Action informing 372,000 IHSS

6 recipients that their IHSS hours will be substantially reduced on January 1, 2012. Those notices

7 will cause great stress and anxiety for individuals who depend upon IHSS services to live safely in

8 their homes, and if this Court were to enjoin the reductions after the Notices of Action issue that

9 would require a second set of corrective notices. Because Plaintiffs do not expect that notices will

10 be sent prior to Tuesday, December 6, 2011 (although there is no guarantee), if this Court

11 determines not to enter a TRO today, Plaintiffs alternatively request a TRO no later than December

12 6, 2011.

13

RELIEF SOUGHT

14

Plaintiffs respectfully request that the Court grant Plaintiffs’ ex parte application for a TRO

15 and order to show cause why a preliminary injunction should not issue, by 4:00 p.m. on Thursday,

16 December 1, 2011. In the alternative, Plaintiffs request a TRO by Tuesday, December 6, 2011, on

17 the following expedited briefing schedule: Opening Brief filed December 1, 2011; Defendants’

18 Opposition Brief due December 5, 2011 at 5:00 p.m.; Plaintiffs’ Reply Brief due December 6, 2011

19 at 12:00 p.m.; and hearing the afternoon of December 6, 2011.

20 Dated:
21

Respectfully Submitted,

22

By: /s/ Melinda Bird

_____

MELINDA BIRD (SBN 102236)

23

MARILYN HOLLE (SBN 61530)

DISABILITY RIGHTS CALIFORNIA

24

LOS ANGELES REGIONAL OFFICE

3580 Wilshire Blvd., Ste. 902

25

Los Angeles, CA 90010

Telephone: (213) 427-8747

26

Facsimile: (213) 427-8767

melinda.bird@disabilityrightsca.org

27

marilyn.holle@disabilityrightsca.org

28

5 Ex Parte Motion for TRO, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document328 Filed12/01/11 Page7 of 8

1

SUJATHA JAGADEESH BRANCH (SBN 166259)

DISABILITY RIGHTS CALIFORNIA

2

SACRAMENTO REGIONAL OFFICE

1831 K Street

3

Sacramento, CA 95811

Telephone: (916) 504-5800

4

Facsimile: (916) 504-5801

sujatha.branch@disabilityrightsca.org

5

DARA L. SCHUR (SBN 98638)

6

DISABILITY RIGHTS CALIFORNIA

BAY AREA REGIONAL OFFICE

7

1330 Broadway, Suite 500

Oakland, CA 94612

8

Telephone: (510) 267-1200

Facsimile: (510) 267-1201

9

dara.schur@disabilityrightsca.org

10

PAULA PEARLMAN (SBN 109038)

SHAWNA PARKS (SBN 208301)

11

DISABILITY RIGHTS LEGAL CENTER

919 Albany Street

12

Los Angeles, CA 90015

Telephone: (213) 736-1031

13

Facsimile: (213) 736-1428

paula.pearlman@lls.edu

14

shawna.parks@lls.edu

15

CHARLES WOLFINGER (SBN 63467)

LAW OFFICE OF CHARLES WOFLINGER

16

4655 Cass Street # 314

San Diego, CA 92109

17

Telephone: (858) 272-8115

Facsimile: (858) 270-3960

18

Cw@charleswolfinger.com

19

JANE PERKINS (SBN 104784)

NATIONAL HEALTH LAW PROGRAM

20

211 N. Columbia Street

Chapel Hill, NC 27514

21

Telephone: (919) 968-6308

Facsimile: (919) 968-8855

22

perkins@healthlaw.org

23

ABIGAIL K. COURSOLLE (SBN 266646)

NATIONAL HEALTH LAW PROGRAM

24

3701 Wilshire Blvd., Ste. 750

Los Angeles, CA 90010

25

Telephone: (310) 736-1652

Facsimile: (213) 368-0774

26

coursolle@healthlaw.org

27

28

6 Ex Parte Motion for TRO, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document328 Filed12/01/11 Page8 of 8

1

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

2

1330 Broadway, Suite 525

Oakland, CA 94612

3

Telephone: (510) 663-1055

Facsimile: (510) 663-1051

4

arich@nsclc.org

5

Attorneys for Individual Named Plaintiffs David

Oster, Willie Beatrice Sheppard, C.R., Dottie Jones,

6

Andrea Hylton, Helen Polly Stern, Charles Thurman,

L.C., and the Plaintiff Class

7

8

By: /s/ Stacey M. Leyton

______

9

STEPHEN P. BERZON (SBN 46540)

EVE H. CERVANTEZ (SBN 164709)

10

STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

11

RACHEL J. ZWILLINGER (SBN 268684)

Altshuler Berzon LLP

12

177 Post Street, Suite 300

San Francisco, California 94108

13

Telephone: (415) 421-7151

Facsimile: (415) 362-8064

14

sberzon@altshulerberzon.com

ecervantez@altshulerberzon.com

15

sleyton@altshulerberzon.com

pthoreen@altshulerberzon.com

16

rzwillinger@altshulerberzon.com

17

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

SEIU Local 521, SEIU California State Council,

18

UDW, and CUHW

19

20

21

22

23

24

25

26

27

28

7 Ex Parte Motion for TRO, Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document329 Filed12/01/11 Page1 of 58

1 MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)
2 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd., Ste. 902
3 Los Angeles, CA 90010 Telephone: (213) 427-8747
4 Facsimile: (213) 427-8767 melinda.bird@disabilityrightsca.org
5 marilyn.holle@disabilityrightsca.org

6 Attorneys for Named Plaintiffs and the Proposed Class Additional Attorneys for Named Plaintiffs and the
7 Proposed Class on Signature Page

8 STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)
9 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
10 RACHEL J. ZWILLINGER (SBN 268684) Altshuler Berzon LLP
11 177 Post Street, Suite 300 San Francisco, California 94108
12 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
13 sberzon@altshulerberzon.com ecervantez@altshulerberzon.com
14 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
15 rzwillinger@altshulerberzon.com

16 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU

Local 521, SEIU California State Council, UDW, and CUHW

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

19

20 DAVID OSTER, et al.,

) Case No.: CV 09-04668 CW

)

21

) MEMORANDUM OF POINTS AND

Plaintiffs

) AUTHORITIES IN SUPPORT OF

22

) EX PARTE APPLICATION FOR

v.

) TEMPORARY RESTRAINING ORDER

23

)

WILL LIGHTBOURNE, Director of the

)

24 California Department of Social Services; ) RELIEF REQUESTED BY 4:00 P.M.

TOBY DOUGLAS, Director of the California ) TODAY (THURSDAY, DECEMBER 1)

25 Department of Health Care Services;

)

CALIFORNIA DEPARTMENT OF HEALTH )

26 CARE SERVICES; and CALIFORNIA

)

DEPARTMENT OF SOCIAL SERVICES, )

27

)

Defendants

)

28

MPA ISO EX PARTE APPLICATION FOR TRO CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document329 Filed12/01/11 Page2 of 58

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES..........................................................................................................iii

3 INTRODUCTION ...........................................................................................................................1

4 BACKGROUND.............................................................................................................................3

5

I. The IHSS Program Provides Necessary Services To Keep Elderly

and Disabled People Safely At Home .....................................................................3

6

A. IHSS provides Core Services that Recipients Need to Remain

7

Safely at Home ............................................................................................3

8

B. Recipients are Individually Assessed To Receive IHSS Services...............6

9

C. IHSS is Cost Effective.................................................................................6

10

II. Defendants’ Implementation of SB 73 Will Cut IHSS Services to Hundreds

of Thousands of IHSS Recipients By 20 Percent ....................................................7

11

A. SB 73 ...........................................................................................................7

12

B. Department of Social Services Implementation ..........................................8

13

C. Functional Ranks Above One Are Not Used To, and Could

14

Not Reasonably Be Used To, Measure Need or Risk of Out-of-Home

Placement ..................................................................................................10

15

LEGAL STANDARD ...................................................................................................................13

16

ARGUMENT ................................................................................................................................14

17

I. The Reduction of IHSS Services Will Cause Irreparable Injury, and

18

the Equities and Public Interest Weigh in Favor of a Status Quo Injunction........14

19

A. The Reduction of IHSS Services Will Place Recipients at Great

Risk of Injury at Home, Deterioration of Health, and

20

Institutionalization ..................................................................................... 14

21

1. Risk of Injury and Effect on Health and Safety ............................14

22

2. Risk of Institutionalization ............................................................23

23

3. Plaintiffs Will Suffer Irreparable Injury ........................................27

24

B. The Balance of Equities and Public Interest Favor Plaintiffs....................27

25

II. Plaintiffs Are Likely to Succeed on the Merits of their Due Process,

Medicaid, and Americans with Disabilities Act Claims .......................................28

26

A. The Reduction Notices Violate Due Process.............................................28

27

1. The Notices and Care Supplement Application Are

28

Not Reasonably Calculated to Inform Aged and

i MPA ISO EX PARTE APPLICATION FOR TRO; CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document329 Filed12/01/11 Page3 of 58

1

Disabled IHSS Recipients of Their Due Process

Rights............................................................................................. 28

2

2. The Notices Omit Important Information Without

3

Which Recipients Cannot Exercise Their Due

Process Rights ...............................................................................32

4

3. Defendants Violate Due Process by Failing to Provide

5

an Adequate Opportunity for a Pre-Termination Hearing

When the Reduction Is Applied to a Recipient By Mistake..........34

6

B. Defendants’ Implementation of SB 73 Violates the Medicaid Act’s

7

Sufficiency, Reasonable Standards, Comparability, and EPSDT

Requirements ............................................................................................. 35

8

1. By Failing to Provide Adequate In-Home Services,

9

Defendants Violate the Sufficiency Requirement .........................36

10

2. Reduction of Hours for Purely Budgetary Reasons, and

Using Functional Ranks to Determine Eligibility for

11

Hours Restorations, Violates the Reasonable Standards

Requirement ..................................................................................38

12

3. By Providing Differing Levels of Medical Assistance to

13

Individuals With Similar Needs, Defendants Violate the

Comparability Requirement ..........................................................40

14

4. Imposing a 20 Percent Reduction on Children and Youth Under

15

Age 21 Violates the EPSDT Mandate in Federal Medicaid Law..41

16

C. Defendants’ Implementation of SB 73 Violates Title II of the

ADA and Section 504 of The Rehabilitation Act......................................43

17

1. Reduction of IHSS Hours Under SB 73 Violates the ADA’s

18

Integration Mandate by Placing People with Disabilities at

Risk of Unnecessary Institutionalization.......................................43

19

2. Defendants’ Implementation of SB 73 Discriminates Against

20

People with Psychiatric and Cognitive Disabilities.......................46

21

3. Defendants’ Implementation of SB 73 Uses Methods of

Administration that Discriminate Against People with

22

Disabilities ..................................................................................... 47

23 CONCLUSION .............................................................................................................................47

24

25

26

27

28

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Case4:09-cv-04668-CW Document329 Filed12/01/11 Page4 of 58

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Alexander v. Choate, 469 U.S. 287 (1985) .............................................................................................. 35, 47
4 Allen v. Mansour,
5 681 F.Supp. 1232 (E.D. Mich. 1986) .......................................................................... 39

6 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ..................................................................................... 13
7 Am. Trucking Ass’ns v. City of Los Angeles,
8 559 F.3d 1046 (9th Cir. 2009) ..................................................................................... 13

9 Arc of Washington State v. Braddock, 427 F.3d 615 (9th Cir. 2005) ....................................................................................... 44
10 Auer v. Robbins,
11 519 U.S. 452 (1997) .................................................................................................... 44

12 Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002) ..................................................................................... 44
13 Barnes v. Healy,
14 980 F.2d 572 (9th Cir. 1992) ................................................................................. 32, 34

15 Beltran v. Meyers, 677 F.2d 1317 (9th Cir. 1982) ..................................................................................... 27
16 Brantley v. Maxwell-Jolly,
17 656 F.Supp.2d 1161 (N.D. Cal. 2009)................................................................... 44, 47

18 Budnicki v. Beal, 450 F.Supp. 546 (E.D. Pa. 1978)................................................................................. 34
19 California Pharmacists Ass’n v. Maxwell-Jolly,
20 563 F.3d 847 (9th Cir. 2009) ....................................................................................... 28

21 Chalk v. U.S. Dist. Court Cent. Dist. Cal., 840 F.2d 701 (9th Cir. 1988) ....................................................................................... 28
22 Charpentier v. Belshe,
23 1994 WL 792591 (E.D. Cal. Dec. 21, 1994) ............................................................... 36

24 Chisholm v. Hood, 110 F.Supp.2d 499 (E.D. La.2000) ............................................................................ 43
25 Clark v. Richman,
26 339 F.Supp.2d 631 (M.D.Pa.2004).............................................................................. 43

27 Cota v. Maxwell-Jolly, 688 F.Supp.2d 980 (N.D. Cal. 2010)..................................................................... 39, 45
28

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Case4:09-cv-04668-CW Document329 Filed12/01/11 Page5 of 58
1 Covey v. Town of Somers, 351 U.S 141 (1956) ..................................................................................................... 29
2 Crabtree v. Goetz,
3 2008 WL 5330506 (M.D. Tenn.)........................................................................... 24, 27
4 Crowder v. Kitigawa, 81 F.3d at 1484 (9th Cir. 1996) ................................................................................... 47
5 Curtis v. Taylor,
6 625 F.2d 645 (5th Cir. 1980) ....................................................................................... 36
7 Daniels v. Wadley, 926 F. Supp. 1305 (M.D. Tenn. 1996) ........................................................................ 28
8 Dilda v. Quern,
9 612 F.2d 1055 (7th Cir. 1980) ..................................................................................... 32
10 Dominguez v. Schwarzenegger, 596 F.3d 1087 (9th Cir. 2010) ..................................................................................... 27
11 Edmonds v. Levine,
12 417 F.Supp.2d 1323 (S.D. Fla. 2006).......................................................................... 27
13 Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008) .................................................................................................... 45
14 Fisher v. Oklahoma Health Care Auth.,
15 335 F.3d 1175 (10th Cir.2003) .............................................................................. 44, 45
16 Frederick L. v. Dept. of Public Welfare of Com. of Penn., 364 F.3d 487 (3rd Cir. 2004)....................................................................................... 45
17 Goldberg v. Kelly,
18 397 U.S. 254 (1970) ........................................................................................ 28, 34, 35
19 Gray Panthers v. Schweiker, 652 F.2d 146 (D.C. Cir. 1980)..................................................................................... 33
20 Haddad v. Arnold,
21 784 F.Supp.2d 1284 (M.D. Fla. 2010) ........................................................................ 45
22 Helen L. v. DiDario, 46 F.3d 325 (3rd Cir. 1995)......................................................................................... 47
23 Hern v. Beye,
24 57 F.3d 906 (10th Cir. 1995) ....................................................................................... 39
25 Hodgson v. Bd. of County Comm’rs, Hennepin County, 614 F.2d 601 (8th Cir. 1980) ....................................................................................... 40
26 Hunter v. Cook,
27 2011 WL 4500009 (N.D. Ga. Sept. 27, 2011)............................................................. 44
28
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Case4:09-cv-04668-CW Document329 Filed12/01/11 Page6 of 58
1 Independent Living Center of Southern California, Inc. v. Shewry, 543 F.3d 1050 (9th Cir. 2008) ..................................................................................... 35
2 Independent Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly,
3 572 F.3d 644 (9th Cir. 2009) ................................................................................. 27, 28
4 John B. v. Menke, 176 F.Supp.2d 786 (M.D.Tenn.2001) ......................................................................... 43
5 Jones v. Flowers,
6 547 U.S. 220 (2006) .................................................................................................... 29
7 Kansas Hosp. Ass’n v. Whiteman, 835 F. Supp. 1548 (D. Kan. 1993) .............................................................................. 28
8 Kapps v. Wing,
9 404 F.3d 105 (2d Cir. 2005) ........................................................................................ 32
10 Kathleen S. v. Pennsylvania Dep’t of Publ. Welfare, 10 F.Supp.2d 460 (E.D.Pa. 1998)................................................................................ 47
11 Katie A. v. Los Angeles County,
12 481 F.3d 1150 (9th Cir. 2007) ............................................................................... 42, 43
13 LaForest v. Former Clean Air Holding Co., 376 F.3d 48 (2nd Cir. 2004) ........................................................................................ 27
14 Lankford v. Sherman,
15 451 F.3d 496 (8th Cir. 2006) ................................................................................. 36, 39
16 Long v. Benson, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008).............................................................. 27
17 Lopez v. Heckler,
18 713 F.2d 1432 (9th Cir. 1983) ............................................................................... 27, 28
19 Martinez v. Schwarzenegger, 2009 WL 1844989 (N.D. Cal. June 26, 2009)....................................................... 27, 28
20 Mayer v. Wing,
21 922 F.Supp. 902 (S.D.N.Y. 1996) ............................................................................... 27
22 Mental Disability Law Clinic v. Hogan, 2008 WL 4104460 (E.D.N.Y. Aug.28, 2008) ............................................................. 44
23 Miller v. Woods,
24 148 Cal.App.3d 862 (1983) ................................................................................. 3, 6, 47
25 Mitchell v. Johnson, 701 F.2d 337 (5th Cir. 1983) ....................................................................................... 36
26 Newton-Nations v. Rogers,
27 316 F.Supp.2d 883 (D. Ariz. 1994) ............................................................................. 27
28
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Case4:09-cv-04668-CW Document329 Filed12/01/11 Page7 of 58
1 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) .............................................................................................. 44, 46
2 Ortiz v. Eichler,
3 794 F.2d 889 (3d Cir.1986) ......................................................................................... 32
4 Parry v. Crawford, 990 F.Supp. 1250 (D. Nev. 1998) ............................................................................... 40
5 Pennsylvania Protection & Advocacy, Inc. v. Pennsylvania Dept.
6 of Public Welfare, 402 F.3d 374 (3rd Cir. 2005)......................................................... 45
7 Preterm, Inc., v. Dukakis, 591 F.2d 121 (1st Cir. 1979) ....................................................................................... 39
8 Rosen v. Goetz,
9 410 F.3d 919 (6th Cir. 2005) ....................................................................................... 34
10 Salazar v. Dist. of Columbia, 954 F.Supp. 278 (D.D.C.1996).................................................................................... 43
11 Schweiker v. Gray Panthers,
12 453 U.S. 34 (1981) ...................................................................................................... 39
13 Sobky v. Smoley, 855 F. Supp. 1123 (E.D. Cal. 1994) ............................................................................ 40
14 Stormans, Inc. v. Selecky,
15 571 F.3d 960 (9th Cir. 2009) ....................................................................................... 13
16 Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) ................................................................................. 44, 45
17 United States v. Gamma Tech Indus., Inc.,
18 265 F.3d 917 (9th Cir. 2001) ....................................................................................... 36
19 Vargas v. Trainor, 508 F.2d 485 (7th Cir. 1974) ................................................................................. 33, 37
20 Viverito v. Smith,
21 421 F.Supp. 1305 (S.D.N.Y. 1976) ............................................................................. 34
22 Vorster v. Bowen, 709 F. Supp. 934 (C.D. Cal. 1989).............................................................................. 33
23 Weaver v. Reagen,
24 886 F.2d 194 (8th Cir. 1989) ....................................................................................... 36
25 White v. Beal, 555 F.2d 1146 (3d Cir. 1977) ................................................................................ 39, 40
26 Winter v. Natural Res. Def. Council Inc.,
27 555 U.S. 7 (2008) ........................................................................................................ 13
28
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Case4:09-cv-04668-CW Document329 Filed12/01/11 Page8 of 58

1 Wisconsin Dep’t of Health & Fam. Serv. v. Blumer, 534 U.S. 473 (2002) .................................................................................................... 39
2 Zurich American v. Whittier Properties,
3 356 F.3d 1132 (9th Cir. 2004) ..................................................................................... 44

4 STATE CASES
5 Baker v. State Dep’t of Health & Human Serv.,
6 191 P.3d 1005 (Ak. 2008) ........................................................................................... 33

7 Ball v. Rodgers, 2009 WL 1395423 (D. Ariz. Apr. 24, 2009) ............................................................... 44
8 Jeneski v. Myers,
9 163 Cal.App.3d 18 (Cal. Ct. App. 1984)..................................................................... 40

10 Jenkins v. Washington State Dep’t Social & Health Servs., 157 P.3d 388 (Wash. 2007) ......................................................................................... 40
11

12

FEDERAL STATUTES AND REGULATIONS

29 U.S.C. § 794 ............................................................................................................ 2, 48

13

42 U.S.C.

14 § 1983 .......................................................................................................................... 35

§ 1396 ................................................................................................................... passim

15 § 1396-1....................................................................................................................... 34

§ 1396-1396v............................................................................................................... 35

16 § 12132 ........................................................................................................................ 43

17 28 C.F.R. §35.130................................................................................................. 44, 46, 47

18 42 C.F.R. § 431.210 ..................................................................................................................... 33
19 § 431.230 ..................................................................................................................... 34 § 440.240 ............................................................................................................... 40, 36
20 § 440.230 ..................................................................................................................... 40

21 45 C.F.R. §84.4................................................................................................................. 46

22 62 Fed. Reg. 47896 (Sept. 11, 1997)................................................................................ 42

23

STATE STATUTES AND REGULATIONS

24 California Welfare and Institutions Code § 12300 ................................................................................................................. passim
25 § 12301.06 .................................................................................................................... 7 § 12301.07 ............................................................................................................ passim
26 § 12301.2 ....................................................................................................................... 6 § 12302.1 ....................................................................................................................... 6
27 § 12309 .................................................................................................................... 6, 10 § 14132.95 ................................................................................................................. 4, 6
28 § 14132.951 ................................................................................................................... 6

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1 RULES
2 Federal Rules of Civil Procedure, Rule 65 ....................................................................... 28
3 MISCELLANEOUS
4 Assembly Bill No. 121 (Stats. 2011, c. 41, §§1-2) ............................................................ 8
5 California Department of Social Services, Manual of Policies and Procedures ....... passim
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
2

3

Plaintiffs seek a temporary restraining order (“TRO”) and order to show cause why a

4 preliminary injunction should not issue to enjoin Defendants’ implementation of California Senate

5 Bill 73 (“SB 73”), which is set to reduce most In Home Supportive Services (“IHSS”) recipients’

6 service hours by 20 percent effective January 1, 2012. The reductions will take effect if the

7 Director of Finance determines that certain specified revenue targets will not be met, which

8 appears virtually certain at this time. Defendants plan to send notices of action to 372,000 elderly,

9 disabled, or blind recipients informing them that their hours will be reduced by 20 percent on or

10 before December 15, 2011. Each of these 372,000 IHSS recipients has been determined by county

11 social workers to need the services he or she currently receives in order to avoid the risk of injury

12 or other harm and live safely at home. Because Defendants intend to implement changes to the

13 statewide IHSS database at the close of business on Thursday, December 1, 2011, Plaintiffs ask

14 that a TRO issue by 4:00 p.m. today.

15

SB 73 provides for a process for recipients who face a serious risk of out-of-home

16 placement to apply for the partial or full restoration of their IHSS hours. However, that process

17 does not cure the legal violations presented by the hours reduction, for many reasons, including:

18



All IHSS recipients have been previously individually assessed by county social

19

workers to need their current hourly authorizations in order to remain safely at home,

20

and so hours cannot be reduced without substantial risk of harm and institutionalization;

21



SB 73 provides for hours restorations based only on a showing of serious risk of out-of-

22

home placement, rather than considering risk to health;

23



With a few narrow exceptions, Defendants are placing the burden on IHSS recipients to

24

apply for hours restorations within a brief time window rather than identifying those at

25

risk of out-of-home placement or deteriorating health without regard to whether the

26

recipient files an application;

27



Defendants are using functional rankings as mandatory eligibility screening criteria for

28

hours restorations even though this Court has previously found these rankings are not

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1

reasonable measures of need for IHSS;

2



The reductions are being imposed on children under 21 without regard to medical

3

necessity;

4



Defendants’ notice of action is not reasonably calculated to inform recipients of their

5

right to challenge the reductions, and the notice Defendants will issue if the county

6

denies full hours restoration does not provide recipients sufficient information to

7

challenge the decision.

8

Plaintiffs seek a TRO enjoining the planned reductions which will otherwise cause

9 immediate and irreparable harm by placing members of the plaintiff class at imminent and serious

10 risk of harm to their health and safety, as well as of unnecessary and unwanted out-of-home

11 placement including institutionalization. The balance of equities strongly favors Plaintiffs because

12 Defendants’ only interest is fiscal, whereas the plaintiff class faces life or death consequences.

13

Plaintiffs are highly likely to prevail on their legal claims. Defendants’ failure to provide

14 adequate notice of the reductions violates the federal Due Process Clause. SB 73 also violates the

15 requirements of Title XIX of the Social Security Act, 42 U.S.C. § 1396a (“the Medicaid Act”) that

16 States provide (1) services that are sufficient in amount, duration, and scope to reasonably achieve

17 their purposes; (2) services according to reasonable standards (“reasonable standards”); (3)

18 comparable Medicaid services to individuals with similar needs (“comparability”); and (4)

19 medically necessary services to children under 21 (“EPSDT”). And it violates the Americans with

20 Disabilities Act of 1990, 42 U.S.C. § 12312 (“ADA”), and Section 504 of the Rehabilitation Act of

21 1973, 29 U.S.C. § 794 (“Section 504”), by placing IHSS recipients at imminent risk of unnecessary

22 and unwanted institutionalization; by discriminating on the basis of type of disability; and by using

23 methods of administration that will exclude individuals with disabilities from IHSS.

24

In 2009, this Court already preliminarily enjoined Defendants from reducing domestic and

25 related services that IHSS recipients had previously been individually assessed to need, based on

26 functional ranks that this Court concluded were not reasonable measures of need. Order Granting

27 Plaintiffs’ Motion for a Preliminary Injunction (“PI Order”) (Dkt. 198) 12:24-14:5, 17:11-16, 18:6-

28 8. This Court also found that the notices Defendants intended to send did not comply with Due

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1 Proces. Id. 24:12-25:24. Defendants’ implementation of SB 73 suffers from the same defects this

2 Court found earlier and more: IHSS recipients’ authorized hours will be reduced by 20 percent

3 below assessed need, unless recipients both have certain specified functional ranks (which this

4 Court has already determined do not reasonably measure need) and understand a defective notice

5 and are able to send back a paper requesting hours restoration by a specified date.

6

An immediate TRO should issue.

7

BACKGROUND

8

I. The IHSS Program Provides Necessary Services To Keep Elderly and Disabled People Safely At Home.

9

A. IHSS Provides Core Services that Recipients Need to Remain Safely at Home.

10 IHSS is provided through California’s Medicaid program (“Medi-Cal”) and is funded with a
11 combination of state, county and federal funds. Welf. & Inst. Code § 12306. Recipients are
12 eligible for IHSS if they meet income guidelines and “are unable to perform the services
13 themselves and … cannot safely remain in their homes or abodes of their own choosing unless
14 these services are provided.” Welf. & Inst. Code §12300(a). The purpose of the program is “to
15 enable [the] aged, blind or disabled poor to avoid institutionalization by remaining in their homes
16 with proper supportive services.” Miller v. Woods, 148 Cal.App.3d 862, 867 (Cal. App. 1983); see
17 also Cal. Dep’t Soc. Servs. (“CDSS”), Manual of Policies and Procedures (“MPP”) § 30-700.1
18 (Exhibit H to RJN (Dkt. 18-8)).
19 Counties administer the IHSS program. County social workers may authorize hours only
20 based on a “determin[ation] that the recipient would not be able to remain safely in his/her home
21 without IHSS” and “performance of the service by the recipient would constitute such a threat to
22 his/her health/safety that he/she would be unable to remain in his/her own home.” MPP §30-
23 761.13-14.1 Of the 440,000 people who depend on the IHSS program, 60% are seniors.2 Experts
24

25

___________________________________
1 IHSS services include (1) domestic services (house cleaning); (2) related services - meal

26

preparation and clean-up, restaurant meal allowance, laundry, grocery shopping and other shopping; (3) personal care services - bowel and bladder care, respiration, feeding, routine bed

27

baths, bathing, oral hygiene and grooming, dressing, repositioning and rubbing skin including range of motion exercises, transfers, care and assistance with prosthetic devices and self-

28

administration of medication, routine menstrual care, skin care, ambulation; (4) trave2-24. l to medical appointments; (5) yard hazard abatement; (6) protective supervision; (7) teaching and

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1 and county IHSS officials confirm that these seniors are healthier and happier living at home. See,

2 e.g., Altman Decl. (Dkt. 62) ¶4; LaPlante Decl. (Dkt. 85) ¶7; Schnelle (Dkt. 82) ¶¶5, 6; Preis Decl.

3 ¶9; Crain Decl. ¶5; Hathaway Decl. ¶5. People under 65 with disabilities also have better

4 outcomes and experience greater independence and well-being living independently. Gardner

5 Decl. (Dkt. 70) ¶39; 2nd Vescovo Decl. ¶29-31.

6

IHSS offers assistance with a range of activities of daily living at home, just as Medicaid-

7 funded nursing homes or private board and care facilities provide residents with services in 8 institutions.3 Assistance with personal care tasks such as bathing, dressing, toileting, and

9 mobility/ambulation are core IHSS tasks. For example, Plaintiff Helen Stern is 86 years old and

10 has limited mobility. She requires assistance to bathe, dress, and walk around in her house. Stern 11 Decl. ¶¶4-10.4 Many frail elders need similar assistance. See, e.g. Izsadore Decl. ¶9. IHSS

12 providers also remind recipients to take prescription medication at the right time and in the right 13 amounts. 2nd Baran Decl. ¶12.5

14

Domestic and related tasks, which include meal preparation, meal clean-up, shopping,

15 laundry, and housecleaning, are also vital components of IHSS that enable recipients to remain 16 safely at home. Wallace Decl. ¶¶22-26; 2nd Hoffacker Decl. ¶4.6 When balance is poor, help with

17 demonstration services, and (9) paramedical services. Welf. & Inst. Code § 12300(b) & (c); Id. §

18

14132.95(d)(1) & (2). 2 PI Order (Dkt. 198) at 2; see also Kline Decl. (Dkt. 31), Ex. C at 8.

19

3 See Preis Decl. ¶¶4-10 for explanation of services provided by board and care facilities. 4 See also, e.g., 3rd Jones Decl. ¶7, 15 (needs help getting out of bed, dressing, and

20

bathing); Salazar Decl. ¶4 (cannot bathe without provider); Lott Decl. ¶¶5-7 (getting in and out of bed, dressing, and bathing, including bed baths); Cunningham Decl. ¶¶4-5; Hayes Decl. ¶3; Baker

21

Decl. ¶¶5, 21. 5 See also, e.g., Thurman Decl. ¶18 (severely dyslexic consumer cannot read instructions on

22

medication bottles and risks overdose without assistance); 3rd Jones Decl. ¶23; Goff Decl. ¶7 (mentally ill consumer with history of suicide attempts cannot safely keep medications in home);

23

Phillips Decl. ¶6 (paranoid-schizophrenic consumer will refuse to take essential medication or take more than directed unless closely monitored); Swann Decl. ¶6 (mentally disabled recipient forgets

24

medication on weekends when provider not present); Warner Decl. ¶9 (same, and forgets to test blood sugar); Hayes Decl. ¶8 (Alzheimer’s); Baker ¶¶8, 24; Salazar Decl. ¶9; 2nd McHenry Decl.

25

¶4 (needs reminders and likely to forget whether she has taken pills and risk overdose); Wessinger Decl. ¶8 (spills pills without help due to arthritis); Peterson Decl. ¶4; Hutchens Decl. ¶7; Lott Decl.

26

¶10; Love ¶15; Hylton ¶7. 6 See also, e.g., Stern Decl. ¶¶17, 19 (cleaning presents fall risk); 3rd Jones Decl. ¶¶13-14

27

(AIDS patient prone to pneumonia and bronchitis if apartment not clean); Maher Decl. ¶5 (emphysema worsened if home not clean); Cooper Decl. ¶8 (low-salt and low-sugar diet due to

28

hypertension and diabetes; cannot cook due to nerve damage in hands); Swann Decl. ¶¶8 (special diabetes diet); Warner ¶10; Hammers Decl. ¶10; Goulet Decl. ¶20; Carpenter Decl. ¶¶8, 11, 16.

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1 cooking and meal clean-up ensures that individuals do not risk a fall, which can trigger a

2 downward spiral that ends in a nursing home. Wallace Decl. ¶¶23-24 (fall may lead to emergency 3 room, then hospital, then institutionalization); 3rd Kaljian Decl. ¶6.7 Other IHSS recipients need

4 assistance with meal preparation because they have dementia or cognitive impairments. Crain 5 Decl. ¶7.8 Still others cannot cook on their own due to physical impairments such as severe 6 arthritis, balance problems that create a fall risk, or inability to stand for any length of time.9

7 Whatever the reason, IHSS services ensure their safety, continued health, and nutrition. See.,

8 e.g..Crain Decl. ¶7 (eating well-balanced diet and staying hydrated essential to health); Gardner

9 Decl. (Dkt. 70) ¶31. This is of special importance when recipients must follow medical restrictions

10 on their diets due to conditions like diabetes, kidney failure, hypertension, or digestive or heart 11 problems. 3rd Kaljian Decl. ¶6; 2nd Marconi Decl. ¶9.10

12

Many elders and people with disabilities can no longer go out into the community on their

13 own, and so rely on IHSS for help with shopping for food, other essential errands, and

14 accompaniment to necessary medical appointments. Crain Decl. ¶9 (clients with chronic illnesses 15 require regular accompaniment to doctor); 2nd Baran Decl. ¶13 (medical appointments).11 Others

16 depend on help with cleaning and laundry. Those with poor balance and weakness often cannot

17 manage a broom or mop and risk falls if they attempt to clean house themselves.12 Blind people

18 may need similar assistance.13 Some have mental disabilities and need direction and reminders to

19

___________________________________
7 See, e.g., Thurman Decl. ¶¶10, 19-20; 3rd Jones Decl. ¶9; Hammers Decl. ¶7.

20

8 See, e.g., Swann ¶8 (wrong diet could lead to coma; has left burner on); Warner ¶10;

Baker Decl. ¶¶4, 9 (has strict diabetes diet and Alzheimer’s; caught trailer on fire when left burner

21

on); Hayes Decl. ¶5 (Alzheimer’s, diabetes and heart disease; does not understand dietary restrictions); 2nd McHenry Decl. ¶7; Cachero Decl. ¶8; 3rd Aho Decl. ¶6; Phillips Decl. ¶8.

22

9 See, e.g., 3rd Jones Decl. ¶9 (neuropathy; cannot grip cooking utensils); Thurman Decl. ¶19; Stern Decl. ¶13; Cline Decl. ¶9; Hicks Decl. ¶9; Cooper Decl. ¶8; Carpenter Decl. ¶¶6, 8, 9,

23

16; Wessinger Decl. ¶5; Hayes Decl. ¶5; Baker Decl. ¶9; Salazar Decl. ¶10; Hutchens Decl. ¶8; Lott Decl. ¶11; Cunningham Decl. ¶8.

24

10 See, e.g., Thurman Decl. ¶19; 3rd Jones Decl. ¶10; Hammers Decl. ¶7; Goulet Decl.

¶¶12-14; Swann ¶8; Warner ¶10; Cline Decl. ¶9; Cooper Decl. ¶8; Carpenter Decl. ¶¶8, 16; Hayes

25

Decl. ¶5; Baker Decl. ¶¶4, 25; Hutchens Decl. ¶8; Lott Decl. ¶11; Cunningham ¶8. 11 See, e.g., 3rd Jones Decl. ¶15; Stern Decl. ¶¶13-14; Hayes Decl. ¶7; Swann Decl. ¶7;

26

Warner Decl. ¶¶14-15; Goff Decl. ¶¶11-12; Phillips Decl. ¶¶7, 9; Cooper Decl. ¶10-11; Carpenter Decl. ¶¶7, 12, 18; Maher Decl. ¶¶8-9; 2nd McHenry Decl. ¶¶9-10; Baker Decl. ¶6; Salazar Decl.

27

¶¶7-8; Wessinger Decl. ¶7; Hutchens Decl. ¶¶10-11; Lott Decl. ¶13; Cunningham Decl. ¶10. 12 See, e.g., Thurman Decl. ¶¶10, 23; Stern Decl. ¶19; Hayes Decl. ¶4; Baker Decl. ¶¶11,

28

26; Salazar Decl. ¶11; Hutchens Decl. ¶9; Lott Decl. ¶12; Hammers Decl. ¶10; Goulet Decl. ¶20. 13 See, e.g., Hammers Decl. ¶10; Goulet Decl. ¶20; Thurman Decl. ¶¶7, 10.

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1 clean because of their level of confusion, disorientation, or self-neglect.14 Cleaning and laundry

2 services are vital to allow individuals to stay safely in their home, particularly those with

3 suppressed immune systems, respiratory ailments, or obsessive compulsive disorders or who have

4 urinary, bowel, or blood issues that would create serious hazards otherwise. See infra at 17-18 &

5 n.38. The maximum time allocation for shopping is 90 minutes per week, for laundry 90 minutes

6 per week, and for housecleaning six hours per month, MPP §§30-757.11, 757.134, 757.135.

7

B. Recipients are Individually Assessed To Receive IHSS Services.

8

IHSS is administered by counties under the supervision of Defendant CDSS and pursuant to

9 an interagency agreement between Defendant Department of Health Care Services (“DHCS”) and

10 CDSS. County social workers conduct an individualized, in person assessment of applicants’

11 eligibility for IHSS services and the amount of services that they need to remain safely in their own

12 home. Welf. & Inst. Code §§ 12300(g), 12302.1, 14132.95(f), 14132.951(b) & (e); MPP §§ 30-

13 761.11-.13, §30-761.24; Miller, 148 Cal.App.3d at 868; D’Antonio Decl. ¶¶2-6. Regulations

14 dictate that “[s]ervices shall be authorized only [where] Social services staff . . . has determined

15 that the recipient would not be able to remain safely in his/her own home without IHSS [and]

16 [p]erformance of the service by the recipient would constitute such a threat to his/her health/safety

17 that he/she would be unable to remain in his/her own home.” MPP § 30-761.1.

18

California statutes require that counties determine a person’s eligibility (need) for any

19 services by assessing “the recipient’s living environment, alternate resources, and their functional

20 abilities.” Welf. & Inst. Code § 12309 (a)-(b). While the State has promulgated “hourly task

21 guidelines” as an aid in the assessment process, counties are required to authorize hours outside the

22 guidelines ranges when necessary to meet individual need. Welf. & Inst. Code § 12301.2(a)-(c);

23 Figueroa Decl. (Dkt. 69) ¶6.

24

C. IHSS is Cost Effective.

25

IHSS is extremely cost effective, given the comparative costs of out-of-home care. Nursing

26 homes, for example, cost five times as much as services received by a typical IHSS recipient.15

27

___________________________________
14 See, e.g., Aho Decl. ¶¶8-9; 2nd McHenry Decl. ¶6.

28

15 Kline Decl. (Dkt. 31), Ex. G at 7. This 2004 report compared the average daily rate for

hospitals ($1230), ICF/DD facility ($142), nursing home ($118) and IHSS ($24). See also 2nd

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1 Half of all IHSS recipients receive fewer than 80 hours per month.16 Without adequate IHSS

2 services, many recipients would end up needing to seek more expensive services in emergency

3 rooms and other settings. Gardner Decl. (Dkt. 31) ¶38. Because of its many benefits, Defendants

4 have described IHSS as “an essential component of the State’s effort to provide services to 5 maintain individuals [with disabilities] in their homes and communities.”17

6

II. Defendants’ Implementation of SB 73 Will Cut IHSS Services to Hundreds of

7

Thousands of IHSS Recipients By 20 Percent.

8

A. SB 73

9

On June 30, 2011, the Governor signed SB 73. Third Request for Judicial Notice (“3rd

10 RJN”), Ex. 1. Under SB 73, if certain revenue targets are not met (a determination that will be

11 made by December 15, 2011), the hours of most IHSS recipients will be cut by 20 percent, 12 effective January 1, 2012. Cal. Welf. & Inst. Code §12301.07(a).18 This 20 percent reduction will

13 be in addition to a 3.6 percent reduction in hours for most IHSS recipients effective February 1,

14 2011. Id., §12301.06. Thus, IHSS recipients’ hours will be reduced by almost 25 percent.

15 Recipients may “direct the manner in which the reduction of hours is applied to the recipient’s

16 previously authorized services.” Id., §12301.07(a)(4).

17

Under SB 73, recipients who believe themselves at serious risk of out-of-home placement

18 may apply for restoration of the reduced hours; this restoration is called an “IHSS Care

19 Supplement.” Welf. & Inst. Code §12301.07(f). Certain recipients may be preapproved for IHSS

20 Care Supplements, and will not receive notices of action (“NOAs”). Id., §12301.07(b), (c).

21 However, 372,000 recipients who are not preapproved will receive NOAs informing them of the

22 hours reduction, which will be sent on or before December 15, 2011. 2nd Keeslar Decl. ¶¶14-16;

23 Id., §12301.07(a)(5); 3rd RJN, Ex. 6.

24

Recipients who apply for IHSS Care Supplements within 15 days of their receipt of the

25

Jimenez Decl. ¶¶3-7 (average nursing home cost is $173.34 per day, or approximately $5,200 per month, whereas average monthly cost for IHSS is $890.72 per month); Polit Decl. (Dkt. 81) ¶¶4, 5.

26

16 Kline Decl. (Dkt. 31), Ex. C at 7. 17 CA Health and Human Services Agency, CA Olmstead Plan, Kline Decl. (Dkt. 31), Ex. I

27

at 32, 52 (commitment to increase service capacity for “in-home care”). 18 Individuals who receive IHSS services under certain specified waiver programs will not

28

be subject to the 20 percent reduction. Id., §12301.07(a)(5). CDSS estimates that approximately 55,000 IHSS recipients will be exempt. 2nd Keeslar Decl. ¶¶14-15.

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1 NOA, or before the effective date of the reduction, are eligible for aid paid pending (which means

2 their currently authorized hours will be maintained) until the county rules on their IHSS Care

3 Supplement application. Cal. Welf. & Inst. Code §12301.07(e), (f). If a recipient disagrees with

4 the county’s decision, the recipient may file a state appeal. Id., §12301.07(f).

5

On November 16, 2011, the Legislative Analyst issued a report stating that the specified

6 revenue targets would not be met and that, SB 73 would likely take effect. 3rd RJN, Ex. 7. The

7 Director of Finance must make a formal determination as to revenue targets no later than

8 December 15, 2011. Assembly Bill No. 121 (Stats. 2011, c. 41, §§1-2). Although that formal

9 determination has not yet been made, the Director has indicated that this is a foregone conclusion.

10 3rd RJN, Ex. 8. As soon as the determination is made, notices of action may issue.

11

B. Department of Social Services Implementation

12

On November 2, 2011, DSS issued a draft All-County Letter (“ACL”) outlining the steps

13 for implementation of SB 73. 3rd RJN, Ex. 5. The evening of November 29, 2011, DSS issued a

14 final ACL. 3rd RJN, Ex. 6. The draft ACL for the first time proposed (and the final ACL adopted)

15 the use of functional ranks to determine which recipients would be preapproved for IHSS Care

16 Supplements and which recipients would be eligible for discretionary consideration for IHSS Care 17 Supplements. 3rd RJN, Ex. 6 at 3-4, Ex. 7 at 3-4.19 Under the ACL, recipients with functional

18 ranks below certain levels are categorically ineligible for IHSS Care Supplements – and counties

19 may not approve them – even if they could otherwise show they will be at serious risk of out-of-

20 home placement after the reduction in hours. Id. at 3-4. This Court has previously determined that

21 functional ranks are not reasonable measures of individual need. PI Order (Dkt. 198) 12:24-27,

22 18:6-8; see also infra at 10-11. Defendants’ use of functional ranks as an eligibility screening

23 mechanism may exclude more than two-thirds of IHSS recipients. Keeslar 2nd Decl. ¶¶14-16.

24

The ACL requires that, in order to be eligible for consideration for an IHSS Care

25 Supplement, a recipient must “meet[] the criteria as specified in either A or B below:

26

___________________________________
19 Under the ACL, individuals with functional ranks of 5 for four specified personal care

27

services (mobility, bowel/bladder/menstrual, transfer, and eating), assessed for 283 hours, or assessed for protective supervision will be preapproved for IHSS Care Supplements. Counties do

28

not have discretion to preapprove individuals who are outside these categories. 3rd RJN, Ex. 6 at 3-4. CDSS estimates 13,000 recipients will be preapproved. 2nd Keeslar Decl. ¶¶14-15.

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1

A. Any three or more of the following conditions are met:

2

1. Paramedical Services have been authorized to monitor medical condition

3

and/or give injections;

2. His/her functional rank for Mobility Inside is either 4 or 5;

4

3. His/her functional ranking for Bathing and Grooming is either 4 or 5;

4. His/her functional ranking for Dressing is either 4 or 5;

5

5. His/her functional ranking for Bowel, Bladder or Menstrual is 3, 4 or 5, or

Paramedical Services have been authorized for catheter or colostomy care;

6

6. His/her functional ranking for Transfer is either 4 or 5, or Paramedical

7

Services have been authorized for bed sore care;

7. His/her functional ranking for Eating is either 3, 4 or 5; or

8

8. His/her functional ranking for Respiration is 5.

B. The sum of his/her functional rankings for Memory, Orientation and Judgment is

9

equal to 7 or greater.

10 3rd RJN, Ex. 6 at 3-4. If a recipient does not meet the eligibility criteria, a county may not grant

11 full or partial restoration of hours. Id. at 3-4. If a recipient does meet the eligibility criteria, the

12 ACL directs that a county social worker determine whether the serious risk of out-of-home

13 placement can be eliminated by assisting the recipient in changing how authorized hours are used,

14 arranging for services from an alternative resource, or partial or full hours restoration. Id. at 6-7.

15

The ACL also imposes a March 1, 2012 deadline for requests for IHSS Care Supplements.

16 Id. at 6. Thus, recipients who attempt to make do with the hours reduction but find themselves

17 unable to do so, or whose ability to make do with reduced hours declines, will be ineligible for

18 Care Supplements if they fail to apply by March 1, 2012. County officials predict that many

19 eligible recipients will miss the deadline. 2nd Marconi Decl. ¶13; 3rd Collins Decl. ¶21; Elliott

20 Decl. ¶29; 3rd Kaljian Decl. ¶¶11, 14.

21

The ACL also includes language for a NOA message and insert to inform recipients of the

22 20 percent reduction and the IHSS Care Supplement process. 3rd RJN, Ex. 6 at 9-10 & Att. A-B.

23 That NOA message and insert do not outline the eligibility requirements for IHSS Care

24 Supplements or contain information about recipients’ functional ranks. Id. IHSS recipients have

25 not previously received information about their functional ranks. PI Order (Dkt. 198) 25: 14-19;

26 Elliott Decl. ¶30; 3rd Guerra Decl. ¶10; Smith Decl. ¶13.20 The NOA also does not specify the

27

28

___________________________________
20 See, e.g., Thurman Decl. ¶32; Stern Decl. ¶26; M.G. Decl ¶17; 2nd Hylton Decl. ¶21.

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1 groups that are exempted from the reduction or that are preapproved for IHSS Care Supplements,

2 or explain to recipients how to appeal if they believe they have received a notice of action

3 erroneously because they should be exempt or pre-approved. 3rd RJN, Ex. 6 at 9-10, Att. A-B.

4 The NOAs will not be translated into languages other than Spanish, Chinese, and Armenian. Id.

5

Also included in the ACL is language for NOAs informing recipients the county has denied

6 their IHSS Care Supplement application. That language does not specify an effective date of the

7 service reduction or inform individuals whether they will receive aid paid pending if they appeal

8 that county denial to the State. 3rd RJN, Ex. 6 at 10-11. Nor does it inform recipients that their

9 application has been denied because of their functional ranks, or set forth their functional ranks.

10

C. Functional Ranks Above One Are Not Used To, and Could Not Reasonably

Be Used To, Measure Need or Risk of Out-of-Home Placement. 11

Functional ranks for each of 14 activities of daily living (“ADLs”) are assigned to IHSS

12

recipients by county social workers. PI Order (Dkt. 198) 3:18-4:3 (listing activities). Some

13

activities, such as self-administration of medication and accompaniment to medical appointments,

14

do not receive functional ranks. Id. at 3 n.2. The ADL ranks are defined as follows:

15

 Rank 1 for those with independent functioning who do not need assistance;

16

 Rank 2 for those who “needs verbal assistance, such as reminding, guidance, or

encouragement”;

17

 Rank 3 for those who need “some human assistance”;

 Rank 4 for those who need “substantial human assistance”; and

18

 Rank 5 for those who cannot physically perform the function at all.

19 Cal. Welf. & Inst. Code § 12309(d); PI Order (Dkt. 198) 4:4-18. Recipients also receive

20 ranks of 1, 2, or 5 for three categories of mental functioning, with 2 indicating some or

21 moderate impairment and 5 meaning severe impairment is observed. RJN, Ex. D (Dkt. 1822 4) at 18-22.21

23

This Court has already found that functional ranks do not “reasonably measure[] the

24 individual need of a disabled or elderly person for a particular service.” PI Order (Dkt. 198) 12:24-

25 27, 17:13-16. “[A]ll ranks, two through five, reflect a social worker’s determination that IHSS

26

___________________________________
21 A rank of 2 for memory signifies moderate or intermittent memory loss, while a rank of 5

27

indicates severe memory deficit. Id. at 19-20. A rank of 2 for orientation means there is occasional disorientation and confusion while 5 indicates severe disorientation that puts the

28

recipient at risk. Id. at 20-21. For judgment, 2 means judgment mildly impaired (including poor social judgment), while 5 shows severely impaired judgment. Id. at 22.

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1 recipients are ‘unable to perform the services themselves’ and ‘cannot remain in their homes or

2 abodes of their own choosing unless these services are provided.’” PI Order (Dkt. 198) 14:1-5 3 (citing Cal. Welf. & Inst. Code §12300(a)).22 As such, “the functional ranks were not intended to,

4 and cannot by their very nature, capture the risk of out of home placement faced by a recipient who

5 receives almost twenty-five percent less hours than a trained social worker has already determined

6 him to need. The two have no relation.” 3rd Collins Decl. ¶27.

7

County officials and experts have identified many problems with Defendants’ decision to

8 limit eligibility for Care Supplements to recipients with particular combinations of functional

9 ranks, and explain that many recipients who do not meet this eligibility criteria are in fact at risk

10 for our-of-home placement and/or serious risk to health and safety. 2nd Marconi Decl. ¶14 (“State

11 has taken away the necessary discretion from the county and trained social workers to evaluate

12 clients as individuals and determine their specific degree of risk and hours needed for safety”); 3rd

13 Collins Decl. ¶¶22-32; 3rd Kaljian Decl. ¶15; Elliott Decl. ¶14; 2nd Guerra Decl. ¶8; Wallace Decl.

14 ¶¶28-33. There are “many grey areas, and it is impossible to place someone into a given functional 15 rank with mathematical precision.”23 3rd Collins Decl. ¶23. See also id. ¶¶24-26, 28; Elliott Decl.

16 ¶17; Wallace Decl. ¶32; Benjamin Decl. (Dkt. 133) ¶¶26-27. Care Supplement eligibility

17 requirements do not even consider activities for which there are no functional ranks, such as

18 accompaniment to medical appointments and assistance with medication, and also ignore

19 functional ranks for domestic and related services, even though these are all vital services that are 20 necessary to keep recipients safe at home. 3rd Collins Decl. ¶28; Elliott Decl. ¶15.24 The

21 requirement that recipients have 4s rather than 3s in most tasks ignores the fact that a trained social

22

___________________________________
22 A rank of 1 indicates no need for assistance, and so would make a recipient ineligible for

23

assistance with that task, MPP §30-763.1, but otherwise functional rank has no relationship to eligibility for IHSS hours. PI Order (Dkt. 198) 4:25-26; see also MPP § 30-757.1(a)(1) (functional

24

ranks cannot be “sole factor” to determine eligibility or hours); Figueroa Decl. (Dkt. 69) ¶8. 23 For example, recipients are ranked 3 for transfer if they require “some help,” such as

25

“routinely requir[ing] a boost.” They are ranked 4 if they are “unable to complete most transfers without physical assistance.” RJN, Ex. D (Dkt. 18-4) at 14. What is the difference between

26

someone who cannot get out of a chair without a boost and one who is unable to complete a transfer without physical assistance? 3rd Collins Decl. ¶24.

27

24 Ignoring recipients’ inability to perform domestic and related tasks such as meal

preparation seems to assume that the only out-of-home placement is a skilled nursing facility, and

28

ignores the fact that many recipients may end up in other settings such as board and care facilities. Preis Decl. ¶¶3, 10.

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1 worker has already found the recipient whose rank is 3 to require “some” assistance, and has

2 already authorized fewer hours. 3rd Collins Decl. ¶29; 2nd Marconi Decl. ¶18; 3rd Kaljian Decl.

3 ¶19-20; Calavan Decl. ¶7; Wallace Decl. ¶33. The requirement that recipients have high functional

4 ranks in at least three personal care tasks also fails to take into account that some recipients have

5 critical needs for only a few services. 3rd Collins Decl. ¶28; 2nd Marconi Decl. ¶19.

6

As this Court already found, functional ranks “are particularly inaccurate measures of the

7 needs of individuals with mental impairments, such as elders with Alzheimer’s disease.” PI Order

8 (Dkt. 198) 12:28-13:2. That is because “[i]ndividuals with cognitive and psychiatric disabilities

9 frequently require verbal rather than physical assistance” and so will “receive numerical ranks of

10 two rather than three or four.” Id. at 13:2-5. Those ranks “reflect the nature of the assistance

11 needed, not the severity of the need. Disabled and elderly individuals with numerical ranks of two

12 have no less need for verbal assistance than individuals with severe physical impairments have for

13 physical assistance.” Id. at 13:6-10; see also id. at 13:10-26 (citing, among other sources, 1996 14 study by Institute for Social Research at California State University).25 But recipients with

15 cognitive or psychiatric disabilities often have scores of 2 in personal care tasks, and thus will not

16 be eligible for Care Supplements, no matter how serious their risk of deteriorating health or

17 institutionalization. 3rd Kaljian Decl. ¶16; Elliott Decl. ¶19; Izsadore Decl. ¶16; Wallace Decl.

18 ¶32. The State has limited Care Supplement eligibility to recipients who have a 5 for one of the

19 mental functions of memory, orientation, or judgment, meaning that the recipient is in such danger

20 that she cannot be left alone, but county officials and experts explain that recipients with mental

21 functioning ranks of 2, indicating moderate mental impairment, are also at serious risk of out-of-

22 home placement or deterioration of health if their hours are reduced by 20 percent. 2nd Marconi

23

___________________________________
25 Recipients with mental disabilities may need verbal cueing or other nonphysical

24

assistance for a variety of reasons that are critical. For example, many people need reminders to eat on a regular basis or to eat appropriate foods, assistance to avoid eating excessive amounts of

25

food, or reminders not to eat food that is contraindicated because of their medical conditions. Gardner Decl. (Dkt. 70) ¶¶30-33; see also, e.g., 3rd Jones Decl. ¶12 (AIDS weakens appetite;

26

without encouragement will not eat enough and will risk malnourishment); Cooper Decl. ¶¶8, 14; Carpenter Decl. ¶¶16, 22; Swann Decl. ¶¶8, 11; Warner Decl. ¶10; Hayes Decl. ¶5; see also

27

Cachero Decl. ¶¶5, 8 (without reminders to use restroom, developed permanently distended bowels); Love Decl. ¶¶3, 10, 15, 16, 17 (needs reminders for medication; has been hospitalized for

28

wrong dose); 2nd McHenry Decl. ¶5, 11 (needs encouragement to brush and floss her teeth, bathe and get dressed); Schemel Decl. ¶5; Lott Decl. ¶14.

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1 Decl. ¶20-24; 3rd Collins Decl. ¶31-32; 3rd Kaljian Decl. ¶16-18; Elliott Decl. ¶18; Wallace Decl.

2 ¶29; Barsten Decl. ¶12; Izsadore Decl. ¶16. This is especially problematic because the line

3 between moderate and severe cognitive impairment is difficult to discern. Wallace Decl. ¶29.

4 Social workers do not use the rigorous assessment tools necessary to draw this distinction, and

5 independent research has shown unexplained variation by county in social worker evaluation of

6 mental functioning. Wallace Decl. ¶29. Moreover, these functional rankings are not designed to

7 capture mental health issues such as depression, anxiety, or obsessive-compulsive disorder, so

8 recipients suffering from psychiatric disabilities will be ineligible for Care Supplements despite 9 their serious risk of injury or institutionalization. Wallace Decl. ¶¶29-31.26

10

Moreover, children automatically receive ranks of 1 for certain tasks regardless of the

11 severity of their disability. PI Order (Dkt. 198) 15:24-28.27 They too are less likely to be eligible

12 for a Care Supplement, despite their need for IHSS hours. Elliott Decl. ¶16.

13

LEGAL STANDARD 14

“A plaintiff seeking a preliminary injunction must establish that he is [1] likely to succeed 15

on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] 16

that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 17

American Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 18

Winter v. Natural Res. Def. Council Inc., 555 U.S. 7, 20 (2008)); Stormans, Inc. v. Selecky, 571 19

F.3d 960, 978 (9th Cir. 2009). Requests for preliminary injunctive relief are evaluated on a sliding 20

scale – where plaintiffs have made a strong showing of irreparable harm, they need not make as 21

great a showing with respect to likelihood of success on the merits, and vice versa. Alliance for the 22

Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). Plaintiffs meet this test, as here 23

there is both severe irreparable harm and a strong likelihood of success on the merits.

24

___________________________________

25

26 For examples of recipients with serious mental health issues but ranks of 1s or 2s, see, e.g., 2nd Hylton Decl., ¶3; Swann Decl. ¶¶4, 13; Warner Decl. ¶6; Hayes Decl. ¶2; Goff Decl. ¶¶3,

26

18, 20; Meireles Decl. ¶4; Mills Decl. ¶¶3, 5, 7-8; Phillips Decl. ¶¶11-13; Cooper Decl. ¶¶14, 1011, 19.

27

27 See Nicco Supp. Decl. (Dkt. 145) ¶¶11-12, Exs. A-B (children cannot be ranked higher

than 1 for eating or bathing until they turn eight); M.G. Decl. ¶11 (6-year-old named plaintiff L.C.

28

automatically ranked 1 for bathing although requires special assistance, and 3 for bowel/bladder despite serious incontinence issues); J.O. Decl. ¶¶1, 20 & Ex. A.

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Case4:09-cv-04668-CW Document329 Filed12/01/11 Page23 of 58

1

ARGUMENT

2

I. The Reduction of IHSS Services Will Cause Irreparable Injury, and the Equities and

3

Public Interest Weigh in Favor of a Status Quo Injunction.

4

The loss of IHSS services will put Plaintiffs at imminent risk of illness, injury,

5 institutionalization, and even death, as well as harm to their family ties, independence and dignity.

6 An injunction should issue to preserve the status quo while the merits are adjudicated.

7

A. The Reduction of IHSS Services Will Place Recipients at Great Risk of Injury

at Home, Deterioration of Health, and Institutionalization. 8

1. Risk of Injury and Effect on Health and Safety 9

The irreparable injury from the reduction of IHSS services will be severe. This Court has 10
recognized, in relation to different reductions and eligibility terminations imposed by ABX4 4, that 11
reductions in IHSS services cause irreparable injuries.28 PI Order (Dkt. 198) 26:19-27:1. 12

This 20 percent reduction will cause such irreparable injury here. County social workers 13

have been carefully trained to assess recipients for only the bare minimum number of hours needed 14
for recipients to remain safely at home; thus, cutting 20 percent of these already minimal hours is a 15

virtual guarantee that recipients will not be safe in their homes. Marconi Decl ¶¶5-9; 3rd Kaljian 16

Decl. ¶5; Cotrell Decl. ¶¶4-5; 3rd Collins Decl. ¶¶9-10; D’Antonio Decl. ¶¶3-8; Hathaway Decl. 17
¶12, 23; Smith Decl. ¶¶7-8; 3rd Guerra Decl. ¶8; Elliott Decl. ¶6; Izsadore Decl ¶¶6-8.29 County 18
officials predict that the 20 percent reduction in hours will lead to deteriorating health and injury 19
for a huge number of recipients who do not receive a Care Supplement (either because they are 20

ineligible or because they fail to timely apply). Cotrell Decl. ¶5 (cut “is not sustainable, and will 21
cause many [recipients] to suffer deteriorating health or injury”); 3rd Kaljian Decl. ¶6 (predicting 22
“serious decline in both physical and mental health…there will be increased hospitalization and use 23

24

___________________________________
28 ABX4 4 would have terminated some IHSS recipients from eligibility altogether, and

25

would have eliminated certain domestic and related services for some recipients who would have maintained eligibility. PI Order (Dkt. 198) at 7:16-22. The loss of domestic and related services

26

would have imposed hours reductions comparable to those involved here. See infra at 37 n.72. 29 Indeed, many social workers’ hours determinations are scrutinized by quality review

27

staff, to make absolutely certain only the minimum hours necessary for a given task are authorized. Bargsten Decl. ¶¶3-4; Izsadore Decl. ¶7; Cotrell Decl. ¶¶8-9 (20 percent reduction in hours will hit

28

Contra Costa particularly hard because county has already initiated stringent individualized assessment process, resulting in 8 percent reduction in hours and savings to State of $1.8 million).

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1 of emergency rooms”); Elliott Decl. ¶¶7-8 (predicting “health deterioration and increased

2 hospitalization,” more emergency room admissions and referrals to Adult Protective Services).

3 Independent researchers at UCLA similarly found that recipients will “eat less often, let their

4 homes become less safe, and allow their medical conditions to worsen.” Wallace Decl. Ex. B at 7.

5 And once physical and mental deterioration occurs, it is usually irreversible. Id. ¶20. Other

6 directors of IHSS Public Authorities and social service agencies report similar dire predictions.

7 2nd Hoffacker Decl. ¶8 (“outcomes will be severe and irreversible”); Smith Decl. ¶¶ 7-8 (“Many of

8 these recipients will be living in fear in their own apartments. … For many recipients, neglect of

9 any one condition or task could send them spiraling downward, or necessitate a trip to the ER.”);

10 Calavan Decl. ¶5 (“pose a risk to … life, health, safety and independence”); 2nd Baran Decl. ¶14

11 (“health and living conditions to spiral downward”); 3rd Guerra Decl. ¶8 (“devastating impact”);

12 2nd Vescovo Decl. ¶3 (“risk of infection, illness, serious injury, or even death or suicide”); Preis

13 Decl. ¶3 (“imminent risk of hospitalization”); Crain Decl. ¶5 (“life expectancy would be reduced”).

14

Officials responsible for county IHSS services or public authorities, social workers, and

15 agency heads have reviewed their cases and found many examples of individuals who are not

16 eligible for supplemental care, but for whom the 20 percent reduction imposes a serious risk to

17 health or safety if they remain in their own homes. D’Antonio Decl. ¶¶17, 18, 19, 20; 3rd Kaljian

18 Decl. ¶20; 2nd Baran Decl. ¶15; 3rd Guerra Decl. ¶¶11-14; Elliot Decl. ¶¶20-23; 3rd Collins Decl.

19 ¶¶11-12. Quite simply, the deep hours reduction “puts the most vulnerable members of the public

20 at great risk, and represents the difference between being safe or not safe for the vast majority of

21 IHSS clients.” 3rd Collins Decl. ¶8.

22

IHSS recipients will be forced to make impossible choices: “Do I sit for a longer time in a

23 dirty diaper, or do I sit around in my housecoat all day and not get dressed at all? Do I try to

24 perform services that should be performed by my provider, such as cleaning, and risk falling and

25 harming myself, or do I allow my home to gradually grow more filthy and unhygienic? Do I bathe

26 less often, exacerbating skin conditions? Or do I instead try to shower alone and risk falling

27 because my provider is here less frequently or for fewer hours? Do I forgo medical appointments

28 because my provider doesn’t have time to take me to them? Should I cut down on meal

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Case4:09-cv-04668-CW Document329 Filed12/01/11 Page25 of 58

1 preparation and rely on frozen or processed food that is not compatible with my medically-

2 indicated diet?” Marconi Decl. ¶9; see also 3rd Collins Decl. ¶11-12; 3rd Kaljian Decl. ¶6; Elliott 3 Decl. ¶7.30 In some cases, these recipients lack decision-making abilities, and may not make the

4 most appropriate or safe choice. 3rd Collins Decl. ¶¶11-12; Wallace Decl. ¶¶21, 27. For example, 5 one recipient plans to skip her evening meal. 3rd Guerra Decl. ¶11.31 In most cases, there is no

6 appropriate choice, because every authorized hour is needed. 3rd Collins Decl. ¶12.

7

Recipients are likely to become malnourished from eating insufficient food or to suffer the

8 health consequences of eating packaged processed meals that are contraindicated by medically

9 necessary diets (to the extent prepared food is even affordable on their limited budgets) as they

10 struggle to get by with fewer hours allocated to shopping, meal preparation, and meal cleanup.

11 Crain Decl. ¶¶7-8 (“risk of dying”); D’Antonio Decl. ¶¶7, 18; Bargsten Decl. ¶7; 2nd Hoffacker

12 Decl. ¶¶5-6. 2nd Hathaway Decl. ¶¶19, 20; 3rd Kaljian Decl. ¶6; 2nd Vescovo Decl. ¶14; 2nd 13 LaPlante Decl. ¶16; Izsadore Decl. ¶13.32 Experts agree that reductions in meal preparation

14 services “could have disastrous effects on [recipients’] health.” Wallace Decl. ¶25. For example,

15 Named Plaintiff Dottie Jones’ AIDS and neuropathy prevent her from using her hands or walking

16 more than a few steps. 3rd Jones Decl. ¶3-5. She is completely unable to prepare food for herself;

17 she cannot even reheat food in the microwave because of the danger of falling or burning herself

18 lifting out a hot plate. 3rd Jones Decl. ¶8. Dottie frequently develops mouth infections that make

19 eating difficult, has a poor appetite because of AIDS, and needs nutritious food due to her

20 compromised immune system. 3rd Jones Decl. ¶¶9-10. If she goes without sufficient shopping

21 and meal preparation services she is likely not to eat, to get sick, and to be rushed to the emergency

22

___________________________________

23

30 For examples of declarations discussing difficult choices consumers face, see, e.g., Thurman Decl. ¶27; 2nd Hylton Decl. ¶18; Hammers Decl. ¶11; Moreno Decl. ¶¶15, 16.

24

31 Swann Decl. ¶4; Warner Decl. ¶6; Aho Decl. ¶¶5-6; Goff Decl. ¶3; Meireles Decl. ¶4. 32 See also, e.g., Moreno Decl. ¶¶7, 12, 15 (diabetes, high blood pressure, high cholesterol

25

and kidney failure require special diet including minimum calories and maximum liquid intake; frozen or processed foods will aggravate conditions); Milian Decl. ¶¶5, 6; Hammers Decl. ¶¶7, 11

26

(diabetes); Hayes Decl. ¶9; Wessinger Decl. ¶10 (cardiovascular disease); Salazar Decl. ¶16 (diabetes); Baker Decl. ¶30 (diabetes); Goulet Decl. ¶¶12-14; Uriarte Decl. ¶9 (high blood pressure

27

and high cholesterol); Ramirez Perez Decl. ¶¶13, 14; Gonzalez Decl. ¶¶4, 5, 6, 16 (special diet due to intestine rupture, stomach lining problems, diabetes and high blood pressure; frozen or

28

processed foods will aggravate); Phillips Decl. ¶8; Cooper Decl. ¶14 (diabetes); Cline Decl. ¶13; Woods ¶7 (diabetes).

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1 room. 3rd Jones Decl. ¶¶17, 18. Other recipients risk choking if their provider is not there to

2 monitor their eating. 3rd Guerra Decl. ¶13. Some with developmental disabilities will make 3 extremely unhealthy food choices (i.e. bags of Cheetos for meals). 3rd Guerra Decl. ¶14.33

4

Many recipients are at great risk of falling and breaking bones if they attempt to perform

5 necessary tasks (such as cleaning or laundry) that they are not physically capable of doing safely,

6 because their provider no longer has time. 3rd Kaljian Decl. ¶6; D’Antonio Decl. ¶15-19; Elliott 7 Decl. ¶7; Wallace Decl. ¶¶23-24.34 Some are at a fall risk when they attempt to bathe or dress 8 alone. Marconi Decl. ¶23.35 Falls are among the leading causes of injuries among older adults; in

9 2007 alone, over 1,400 California seniors died due to injuries from falls and over 67,000 more

10 were hospitalized. Wallace Decl. ¶24; 3rd Guerra Decl. ¶11 (elderly recipient hospitalized and 11 then in nursing home after fall).36 Other recipients may endanger themselves trying to cook

12 without help, risking a house fire, burn, or knife cut. D’Antonio Decl. ¶16, 19; Vescovo Decl. ¶1013 15 (individuals lacking coordination scalded just pulling hot dish from microwave).37 Reduction in

14

___________________________________

15

33 See, e.g., Love Decl. ¶¶13, 16; McHenry Decl. ¶7; Carpenter Decl. ¶22. 34 Thurman Decl. ¶¶10-11, 27-28 (cannot clean home safely and may injure selves

16

attempting to bathe, cook, dress, or clean; suffer frequent falls that have caused broken bones); Stern Decl. ¶19 (has fallen and been unable to get up when tried to clean); 2nd Hylton Decl. ¶¶6, 9

17

(many previous broken bones from falls; relies on walker and cannot clean herself); White Decl. ¶9 (many previous broken bones; has fallen when trying to clean home); Hammers Decl. ¶10; Goulet

18

Decl. ¶20; Uriarte Decl. ¶¶10, 13; Ramirez Perez Decl. ¶¶11, 14; Carpenter Decl. ¶¶5, 10, 17 (history of falls and bone fractures); Wessinger Decl. ¶10 (hospitalized due to falls); Hutchens

19

Decl. ¶15; Gonzalez Decl. ¶¶13, 16 (falls if provider not present; wounds heal slowly due to diabetes); Lott Decl. ¶21.

20

35 Thurman Decl. ¶11 (has fallen when attempted to shower alone); 2nd Hylton Decl. ¶14

(cannot shower without assistance; two prior falls have broken bones); Carpenter Decl. ¶¶5, 14

21

(immunosuppressed consumer with history of falls and bone fractures needs showers due to urinary incontinence); Uriarte Decl. ¶5, 6 (has fallen while dressing; will not shower without assistance);

22

Hammers Decl. ¶¶ 6, 10; Goulet Decl. ¶¶8, 20; Hayes Decl. ¶3; Baker Decl. ¶¶5, 30; Salazar Decl. ¶¶4, 15; Hutchens Decl. ¶6; Lott Decl. ¶7; Cunningham Decl. ¶5; J.O. Decl. ¶9.

23

36 Declarants in this case have suffered serious consequences, including broken bones and hospitalization, from falls. 2nd Hylton Decl. ¶¶6, 14; Baker Decl. ¶¶4, 13, 23; Hayes Decl. ¶¶2,

24

11; White Decl. ¶9; Hutchens Decl. ¶¶3, 15. 37 Thurman Decl. ¶¶19, 27 (blind consumer with neuropathy could easily cut himself; wife

25

burned self badly while attempting to cook); 3rd Jones Decl. ¶9 (even use of microwave presents risk of burns); Baker Decl. ¶9 (set trailer on fire cooking); Gonzalez Decl. ¶5 (burned self while

26

cooking because blind); 2nd McHenry Decl. ¶7 (burned herself and left burners on, risking fire); Hammers Decl. ¶7 (blind; cannot safely use kitchen items such as knives); Phillips Decl. ¶17

27

(paranoid-schizophrenic; risks fires through excessive microwave time setting); Goulet Decl. ¶14 (left stove burner on); Swann Decl. ¶8 (same); Love Decl. ¶16 (similar risk); Warner Decl. ¶10

28

(similar); Wessinger Decl. ¶10 (burn or cut risk); Lott Decl. ¶21 (burn or fall risk); Milian Decl. ¶5 (fire risk).

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1 cleaning services may also lead to homes that are unlivable health hazards, which are particularly

2 dangerous for those with COPD (emphysema) or weakened immune systems, pose extra risks for

3 individuals with incontinence, and may also result in eviction and/or out of home placement. 4 Calavan Decl. ¶6; Izsadore Decl. ¶14; 2nd Baran Decl. ¶17-18.38

5

Recipients who change clothes less often or bathe less will be at risk for pressure sores or

6 other infections. 2nd Vescovo Decl. ¶5; 2nd LaPlante Decl. ¶10; 2nd Hoffacker Decl. ¶7 (pressure

7 sores from not bathing prior to receipt of IHSS services; moved into board and care after 3.6% cuts

8 because of relapse); 3rd Guerra Decl. ¶12 (chronic urinary tract infections from improper 9 hygiene).39 Being clean and well-groomed is essential to recipients’ mental health, and those who

10 can’t get their hair brushed or have assistance showering may be less likely to leave their homes, 11 leading to depression. 2nd Vescovo Decl. ¶16.40 Recipients who need assistance toileting will

12 suffer adverse consequences including accidents as well as dehydration from reduction of fluid

13 intake to avoid having to use the restroom when their provider is not present. 3rd Guerra Decl. 14 ¶12.41 Recipients may be changed less frequently and forced to remain in soiled pull-ups which

15

___________________________________

16

38 For consumers with health conditions that would be aggravated by loss of domestic

services, see Thurman Decl. ¶¶7, 9, 23, 27 (COPD; respiratory conditions deteriorated after no

17

cleaning for several days); 2nd Hylton Decl. ¶9 (COPD/emphysema); 3rd Jones Decl. ¶14 (AIDS, prone to bronchitis and pneumonia); Maher Decl. ¶¶3, 5 (emphysema); Hayes Decl. ¶¶2, 6 (asthma

18

and emphysema); Baker Decl. ¶¶4, 10, 22 (asthma, emphysema, and partially removed lung); White Decl. ¶9 (asthma); Carpenter Decl. ¶11 (AIDS and asthma). For those facing eviction risk,

19

see 2nd Hylton Decl. ¶¶10, 15, 18; Aho Decl. ¶¶ 8-9, 14; Love Decl. ¶¶20, 28; see also Bargsten Decl. ¶7 (urinary, bowel, or blood issues); 2nd McHenry Decl. ¶¶6, 16-17 (lack of cleaning

20

worsens depression); Baran Decl. ¶17 (recipients with obsessive compulsive disorders) ; Stern Decl. ¶¶6, 8, 17, 19; Warner ¶¶5, 7-8, 12, 16 Salazar Decl. ¶5; Wessinger Decl. ¶10; Lott Decl. ¶9;

21

Cunningham Decl. ¶6; Swann Decl. ¶5; Mills Decl. ¶12. 39 Stern Decl. ¶¶6, 8-10, 20, 22 (urinary incontinence and skin problems including open

22

lesions requiring skin grafts; will be unable to reliably shower and regularly change soiled clothing and pull-ups); Goff Decl. ¶¶4-5, 15 (urinary incontinence and skin problems; provider will reduce

23

frequency of cleaning and laundry); Meireles Decl. ¶¶5-6, 12 (urinary incontinence, skin problems, and shower phobia; less frequent washing); Warner Decl. ¶¶7-8, 18 (frequently soils clothing with

24

blood and feces and does not change clothes or bathe regularly); White Decl. ¶13 (urinary incontinence and weakened immune system; less frequent showers risks urinary infection);

25

Carpenter Decl. ¶5 (urinary incontinence; decreased bathing frequency risks urinary infections); Hayes Decl. ¶10 (potential rashes due to incontinence); Baker Decl. ¶¶13, 29 (same); Ramirez

26

Perez Decl. ¶¶15, 17 (risks rashes and skin irritation). 40 See also, e.g., Salazar Decl. ¶15; Baker Decl. ¶30; Lott Decl. ¶20.

27

41 See, e.g., M.G. Decl. ¶16 (child would risk contracting infections or ripping feeding

device if attempted to use toilet unassisted); Cachero Decl. ¶¶5, 8 (mentally ill consumer will not

28

go to bathroom without reminders, which has caused bowel impactions and permanent bowel distention, and will lie in bed after wets it); 3rd Jones Decl. ¶22 (needs help getting to and from

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Case4:09-cv-04668-CW Document329 Filed12/01/11 Page28 of 58

1 can cause skin outbreak, Stern Decl. ¶20, repositioned or able to get out of bed less often, id.; 3rd

2 Jones Decl. ¶7, receive crucial foot care less frequently, Hicks Decl. ¶¶4, 15; Lott Decl. ¶17.

3 Providers rushing through personal care tasks may injure either the recipient or themselves. 4 Izsadore Decl. ¶9-12; Bargsten Decl. ¶¶8-9 (risk if provider rushes through bathing).42 Many tasks

5 simply cannot be rushed. Izsadore Decl. ¶¶9-12 (assistance to and on the toilet, bathing, brushing

6 teeth, clipping nails, shaving, skin rubbing); M.G. Decl ¶¶7, 15 (use of feeding pump). For

7 example, there are no time-for-task guidelines for paramedical tasks, because these take whatever

8 length of time is prescribed. MPP §30-797.19.

9

It is also likely some providers will eliminate the time spent taking recipients to medical

10 appointments, because they are not paid for waiting during an appointment, and are unlikely to

11 continue to provide this free service. D’Antonio Decl. ¶10; see also 3rd Kaljian Decl. ¶6; Peterson

12 Decl. ¶¶6, 11; Carpenter Decl. ¶7. Even those providers who continue to provide the service will 13 likely need to reduce time in this area,43 or may not be able to accommodate all scheduled

14 appointments because of the need to juggle other clients. G. Thompson Decl. ¶9. The

15 consequences of missed medical appointments can be dire. Crain Decl. ¶9 (“grave cost to their 16 health”); 3rd Guerra Decl. ¶11.44

17

For individuals with psychiatric disabilities, the stress of losing services may trigger

18 symptomatic behaviors such as hurting themselves. Gardner Decl. (Dkt. 70) ¶¶36-37. Such

19 individuals also have a problem with self-neglect, and must be reminded on a daily basis to get out

20 of bed, bathe, and eat. Without a provider to assist them daily, or sometimes twice a day, their

21 conditions will quickly deteriorate due to malnutrition, lack of hygiene, or lack of movement. 2nd

22

23

24 bathroom; could have accident without provider help); Lott Decl. ¶8 (some days needs to be

lowered down onto toilet).

25

42 See also, e.g., Ramirez Perez Decl. ¶7 (needs thorough drying after showers, or risks developing irritation or sores due to diabetes); Gonzalez Decl. ¶8 (similar); Stern Decl. ¶9.

26

43 Stern Decl. ¶¶14, 20; Swann Decl. ¶¶7, 11; Warner Decl. ¶¶15, 18; Carpenter Decl. ¶7; Hammers Decl. ¶¶9, 11; Goulet Decl. ¶18.

27

44 E.g., 2nd Hylton Decl. ¶15 (possible mental relapse, has previously led to homelessness);

Maher Decl. ¶9 (almost daily medical appointments are keeping him alive); Milian Decl. ¶8 (risks

28

mismanagement of diabetes, kidney failure, and heart); Warner Decl. ¶18 (aggravate psoriasis, diabetes and mental health issues).

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1 Baran Decl. ¶14-15.45

2

Each authorized hour is necessary to keep vulnerable recipients safe at home, and there is

3 no realistic way to cut around the edges of a 20 percent reduction. Plaintiffs have submitted

4 declarations concerning over 30 recipients who are not eligible for a Care Supplement, who

5 describe in minute detail the time it takes for their provider to perform each task, why that task is

6 necessary for their health and well-being, and why they cannot safely perform that task themselves.

7 There is no room to cut. The effect of the cuts “may not show themselves immediately, but over

8 time people will be sicker and more likely to need intensive medical services because of the

9 reductions to their IHSS hours.” 2nd Vescovo Decl. ¶5.

10

Experts agree that insufficient in-home care hours may lead to adverse health consequences

11 and even death. Dr. Mitchell LaPlante, a UCSF expert on health, disability, and long term care,

12 explains that “A 20 percent reduction of care hours would result in actual care hours falling well

13 below the individually assessed level of personal care hours required to live safely and healthily

14 and is of sufficient magnitude that it is likely to result in unmet needs and an increase in the many

15 adverse consequences that are documented” in scholarly research to result from unmet need,

16 including death, hospitalization, and depression. 2nd LaPlante Decl. ¶21, 11-15. UCLA

17 researchers agree. Wallace Decl. ¶20 & Ex. B at 7-8 (deteriorating medical conditions and

18 increased use of emergency rooms and hospitals). UCSF researchers determined that elderly and

19 disabled individuals with insufficient help with personal care services experienced hunger, weight

20 loss, dehydration, and injuries due to falls, burns, and bedsores. 2nd LaPlante Decl. ¶7.

21 Researchers have also found that domestic and related services, such as meal preparation and

22 clean-up and general cleaning services, are absolutely necessary to keep recipients safely at home.

23 Wallace Decl. ¶¶22-26; 2nd LaPlante Decl. ¶16.

24

In addition, some recipients may lose their providers altogether. Many providers will quit

25

___________________________________

26

45 2nd Hylton Decl. ¶18 (would fall into deep depression, shut self in bedroom and not eat or bathe due to stress over cuts); Meireles Decl. ¶¶4 (may increase suicidal tendencies); Goff Decl.

27

¶¶3, 16 (past suicide attempts; will feel isolated, anxious and depressed); 2nd McHenry Decl. ¶12 (when depression is bad will stay in bed and forego hygiene or eating; regular provider prevents);

28

Lott Decl. ¶¶22 (mental health could deteriorate; history of suicidal and homicidal thoughts); Phillips Decl. ¶¶ 4-5 (paranoid-schizophrenic; will not change clothes or bathe).

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1 after a 20 percent reduction in income (and in some cases loss of health insurance).46 In some

2 counties there is already a provider shortage and it may be impossible to replace a provider. 3rd 3 Collins Decl. ¶ 13 (San Luis Obispo); 2nd Hathaway Decl. ¶15-18 (Alpine, Modoc, Amador).47

4 Even if new providers are found, the break in continuity of care may be devastating for some.

5 Cotrell Decl. ¶11; 3rd Collins Decl. ¶13; G. Thompson Decl. ¶11; Smith Decl. ¶12 (predicting

6 “tragic results. These are not people who can go totally without vital services such as meal

7 preparation for one, two, or three weeks”); Elliott Decl. ¶9 (clients “completely destabilized” when

8 providers quit); Crain Decl. ¶6 (elder lay on floor for three days with broken hip when provider 9 schedule disrupted).48

10

The problem of providers quitting is particularly acute for recipients already authorized for

11 relatively few hours—it will not be worth a provider’s time to travel to that recipient for just a few

12 hours (commute is unpaid). D’Antonio Decl. ¶12; Bargsten Decl. ¶10; Lopez Decl. ¶¶4-10; Smith 13 Decl. ¶11; 3rd Guerra Decl. ¶25; Elliott Decl. ¶10.49 This has a disproportionate effect on

14 recipients with mental illness because they often have lower hours. G. Thompson Decl. ¶10.

15 Providers are also more likely to refuse to serve clients with high personal care needs, who may

16 require more care than is authorized on some days due to bowel/bladder accidents and other

17 unpredictable occurrences. Bargsten Decl. ¶10.

18

Family members who can no longer afford to stay at home and care for a relative with the

19 reduced hours may resort to unsafe tactics, such as asking a neighbor to look in on a family

20

___________________________________
46 Cotrell Decl. ¶11; 2nd Hathaway Decl. ¶15; 3d Collins Decl. ¶¶12-15; Smith Decl. ¶9-12;

21

3rd Guerra Decl. ¶26; Elliott Decl. ¶9; Calavan Decl. ¶8; 2nd Vescovo Decl. ¶19, 21. See also, e.g., 3rd Jones Decl. ¶16; Aho Decl. ¶16; Hammers Decl. ¶12, M.G. Decl. ¶12; Goulet Decl. ¶22-

22

23; Cachero Decl. ¶¶14-15; Love Decl. ¶¶22, 23; Cline Decl. ¶14; Woods Decl. ¶8; Guerin Decl. ¶9; White Decl. ¶16; Carpenter Decl. ¶19; Moreno Decl. ¶17; 2nd Jimenez Decl. ¶¶8-10 & Ex. H

23

(explaining loss of health insurance); Voice Decl. ¶6 (same). Providers without health insurance are more likely to have health-related absences, further harming their clients. 3rd Guerra Decl.

24

¶26; Calavan Decl. ¶8. 47 See also 3rd Jones Decl. ¶16 (small town with few IHSS providers); Moreno Decl. ¶18;

25

Hayes Decl. ¶10; Baker Decl. ¶15. 48 E.g., Phillips Decl. ¶19 (unfamiliar provider may not identify altered states of mind in

26

paranoid-schizophrenic consumer, preventing essential medication reassessments); Carpenter Decl. ¶22 (provider has helped consumer address phobias and unhealthy eating habits, progress may be

27 lost with new caregiver, diabetic consumer has overcome anxiety and adopted healthy eating

habits); Cooper Decl. ¶¶8, 10, 15.

28

49 See also, e.g., 3rd Jones Decl. ¶16; Woods Decl. ¶8; Cline Decl. ¶14; Carpenter Decl.

¶19; Moreno Decl. ¶18; Aho Decl. ¶17.

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1 member with dementia who cannot be safely left at home. 2nd Vescovo Decl. ¶17. Relatives will

2 be forced to hire strangers to care for their loved ones. Calavan Decl. ¶8. For example, Named

3 Plaintiff L.C. has a very complicated paramedical regime, and her doctor has told her mother that

4 L.C. is in grave danger if others attempt to perform the tasks that her mother currently performs as

5 her provider. M.G. Decl. ¶13-14. But the 20 percent reduction in family income will force her

6 mother back into farm work with her father to support the family, and L.C. will likely be left with 7 relatives who are unable to perform all necessary tasks. ¶12-13.50 “[I]ncreased pressure on

8 relatives to provide more unpaid care will increase stress, abuse and neglect.” Calavan Decl. ¶6.

9

Even when providers don’t quit, they will likely need to reduce the frequency of their

10 visits: For example, a provider who assists a recipient four days a week for three hours a day will

11 probably not be willing to continue to assist that recipient four days a week for just over two hours,

12 and is more likely to reduce the frequency of assistance to three days a week, leaving the recipient

13 to go without a provider for a two day stretch every week. 3d Collins Decl. ¶14; see also 14 D’Antonio Decl. ¶13; Smith Decl. ¶10; 3rd Guerra Decl. ¶24; 2nd Vescovo Decl. ¶20.51 A UCLA

15 Public Health professor explains, “for most recipients, every additional day without care increases

16 the risk of falls, mismanaged medications, missed meals, or other problems.” Wallace Decl. ¶18

17 (describing senior forced to move into nursing home as a result of injecting himself with wrong

18 type of insulin on day his provider was not there). “There are clients who rely on their providers to

19 make sure that they take necessary medications every day, or eat every day. These clients cannot

20 get by on fewer days of service.” 3rd Collins Decl. ¶14; see also D’Antonio Decl. ¶13. For

21 example, the provider for Named Plaintiff Charles Thurman and his wife currently assists them

22 three to four hours per day, five days a week. Thurman Decl. ¶6. When their combined hours are

23 reduced by 3.4 hours per week, their provider will have to work fewer days, leaving the Thurmans

24 alone three days a week. Id. ¶24. They will have no choice but to attempt to cook and move about

25 their mobile home with less assistance, thus risking falls and burns, as has occurred in the past in

26

___________________________________
50 See also Phillips Decl. ¶17-18; Guerin Decl. ¶¶11, 24; J.O. Decl. ¶¶17, 19.

27

51 See also, e.g., Stern Decl. ¶20 (provider will come once instead of twice per day);

Thurman Decl. ¶24 (four instead of five days per week); Uriarte Decl. ¶¶5, 6, 9, 12 (five instead of

28

six days; consumer cannot get dressed, bathe self or eat proper meals when provider not present); 2nd McHenry Decl. ¶13; Schemel Decl. ¶9; Baker Decl. ¶¶12, 28.

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1 the absence of a provider. Id. ¶25.52

2

Alternate services will not make up for the loss of IHSS services. Cotrell Decl. ¶12 (Contra

3 Costa); 2nd Hoffacker Decl. ¶6 (Los Angeles); 2nd Vescovo Decl. ¶23 (Los Angeles) Elliott Decl.

4 ¶¶11-12 (San Francisco); Collins Decl. ¶33-35 (San Luis Obispo); Marconi Decl. ¶11 (San

5 Joaquin); 3rd Kaljian Decl. ¶7-8 (Sonoma); 3rd Guerra Decl. ¶19 (Nevada, Plumas, Sierra); 2nd

6 Hathaway Decl. ¶6-7 (Alpine); 2nd Rosene Decl. ¶¶11-13 (Regional Centers will not be able to fill 7 the gap for their clients); ; Danneker Decl, ¶ 10-11 (same); Elliott Decl. ¶12 (same).53 Most

8 counties have waiting lists for meal delivery programs, and/or limit such services to seniors.

9 Cotrell Decl. ¶12; 3rd Collins Decl. ¶35; Marconi Decl. ¶11; 3rd Guerra Decl. ¶18; Elliott Decl.

10 ¶11; 3rd Jones Decl. ¶17; Uriarte Decl. ¶14; Love Decl. ¶25. The State has cut a variety of related

11 programs. Wallace Decl. ¶19. And county social workers have no time to help IHSS recipients to

12 locate alternate resources, even if they did exist. 3rd Guerra Decl. ¶21. IHSS recipients are by

13 definition financially needy and cannot afford to replace lost IHSS services by hiring providers on

14 their own, taking cabs to doctor’s appointments, paying for grocery delivery, or purchasing 15 expensive pre-made meals. Calavan Decl. ¶4; Crain Decl. ¶11.54 They are already choosing

16 among covering expenses for shelter, food, medication, and/or clothing. Calavan Decl. ¶4.

17

2. Risk of Institutionalization

18

As this Court previously found in relation to the eligibility and services reductions that

19 would have been imposed by ABX4 4, the loss of IHSS services will lead to “a severe risk of

20 unnecessary institutionalization,” which itself will cause recipients “‘to suffer injury to their mental

21

___________________________________

22

52 See also, e.g., Stern Decl. ¶20 (consumer will remain in dirty pull-up in morning or be unable to put on pull-up at night, risking complications from skin issues); 2nd McHenry Decl. ¶15

23

(oral hygiene would deteriorate); Hayes Decl. ¶¶9-10 (rashes due to incontinence, forget to take medications); Baker Decl. ¶¶13-14, 29-30 (similar); White Decl. ¶¶12, 13 (consumer may not eat

24 and would reduce showers, which could lead to infection); Gonzalez Decl. ¶16 (cannot bathe, get

needed massages, or dress, and falls more frequently); supra at 17 & nn.34-37 (fall risk).

25

53 See also Thurman Decl. ¶29; Stern Decl. ¶21; Aho Decl. ¶¶8-9, 18; Phillips Decl. ¶21; Carpenter Decl. ¶23; Maher Decl. ¶12; McHenry Decl. ¶18; Schemel Decl. ¶13; Wessinger Decl.

26

¶12; Hayes Decl. ¶12; Baker Decl. ¶¶16, 33; Salazar Decl. ¶21; Hutchens Decl. ¶16; Lott Decl. ¶24; Hicks Decl. ¶¶5, 15; Hammers Decl. ¶13; Cline Decl. ¶15; Love Decl. ¶24; Moreno Decl. ¶19;

27

Guerin Decl. ¶5; Gonzalez Decl. ¶17; White Decl. ¶17; J.O. Decl. ¶19. 54 See also 3rd Jones Decl. ¶17; 2nd Hylton Decl. ¶¶10, 13; Guerin Decl. ¶¶8, 11; Milian

28

Decl. ¶8; Maher Decl. ¶12; Hayes Decl. ¶9; Hicks Decl. ¶12; Warner Decl. ¶14; Carpenter Decl. ¶22.

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1 and physical health, including a shortened life, and even death for some ….’” PI Order (Dkt. #198)

2 at 28:1-4 (quoting Crabtree v. Goetz, 2008 WL 5330506, at *30 (M.D. Tenn.)).

3

County officials predict many IHSS recipients will be unnecessarily institutionalized due to

4 the 20 percent reduction. For example, in Contra Costa County alone, it is estimated that 200-400

5 recipients will go in nursing homes within the next six months to a year, with countless others

6 being forced into board and care facilities. Cotrell Decl. ¶10. This will only grow worse over time.

7 “[S]ome IHSS clients whose hours are reduced by twenty percent will deteriorate rapidly and end

8 up in a nursing home or other facility within a matter of months; many more will suffer out-of-

9 home placement in a year, and still more will be institutionalized within two years, as their

10 conditions gradually deteriorate due to lack of adequate care.” Cotrell Decl. ¶7. Other county

11 officials and agency heads make similar predictions. Elliott Decl. ¶7 (“Some clients will

12 decompensate or deteriorate quickly and require near immediate institutionalization, while others

13 will suffer a more gradual decline”); Smith Decl. ¶8 (“For these vulnerable and alone recipients, a

14 trip to the hospital is often the end of independence, as deteriorating health or injury may lead to

15 unwanted out-of-home placement”); 3rd Collins Decl. 10; Marconi Decl. ¶5 (“serious and

16 immediate risk of out-of-home placement”); Calavan Decl. ¶5; 2nd Hathaway Decl. ¶¶13, 23;

17 Gause Decl. ¶11.

18

Expert researchers also predict the reductions will inevitably lead to institutionalization.

19 Wallace Decl. ¶20 (UCLA); 2nd LaPlante Decl. ¶21 (UCSF); see also Schnelle Decl. (Dkt. 82) ¶5

20 (lack of affordable home care services is “a primary factor driving the need for nursing home

21 placement”). County officials, social workers, and agency directors all cite specific examples of

22 individuals on their caseload who are not eligible for Care Supplements but will require out-of-

23 home placement as a result of the hours cut. D’Antonio Decl. ¶15; 3rd Collins Decl. ¶32 (76-year-

24 old stroke victim needs reminders to eat, bathe, change clothes, and take medication; county will

25 recommend that he move to board & care facility); 3rd Kaljian Decl. ¶17-18; Elliott Decl. ¶¶20-23;

26 3rd Guerra Decl. ¶¶11-12 (75-year-old woman with neurological disability will miss evening meals

27 and other care and face serious risk of injury, hospitalization, and nursing home entry); 2nd Baran

28 Decl. ¶15 (recipient with need for help with medical compliance, meals, and transportation to

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1 appointments and recovery groups at risk). Indeed, some IHSS recipients’ health deteriorated so

2 severely with just the 3.6% cut that they had to be institutionalized. 2nd Hoffacker Decl. ¶7.

3

For example, Named Plaintiff Helen Polly Stern will likely enter a nursing home as a result

4 of the hours reductions. The 86-year-old’s owns her home and enjoys visits from her sister. Her

5 needs are intensive, as she cannot get in and out of bed or prepare any food without assistance and

6 needs help with dressing and pull-ups. Stern Decl. ¶¶1, 8, 10, 13, 23. Her provider comes twice

7 each day to assist her, but this will not be possible given the hours reduction and her provider’s

8 need to earn additional income by taking on another client. Id. ¶18. Helen cannot survive without

9 assistance twice a day, and will be forced into a nursing home, to her “despair.” Id. ¶¶2, 24; see

10 also id. ¶22 (reduced skin care likely to cause lesions and infection, leading to hospitalization).

11

Insufficient access to nutritious food will lead to deteriorating health and placement in a

12 nursing home or board and care facility. 2nd Hoffacker Decl. ¶6; Benjamin Decl. (Dkt. 133) ¶30

13 (“Weight loss in elders is often the reason that they end up being placed in nursing homes”); see

14 also supra 16-17 & n.32. Similarly, recipients who attempt unsafe activities in the absence of their

15 provider—such as getting out of bed or showering unassisted, or attempting to clean house—may

16 fall, break a bone, and be hospitalized. Kaljian Decl. ¶6; see supra 17 & nn.34-37. Hospitalization

17 often leads to admission to a nursing home admission or other assisted living facility. Kaljian

18 Decl. ¶6; 2nd Vescovo Decl. ¶18. Some recipients will be unable to find providers to work the

19 reduced hourly schedule, leading to institutionalization. Smith Decl. ¶ 11; Lopez Decl. ¶10, 13.

20 Recipients who are evicted because they cannot maintain a sanitary environment are at risk for

21 homelessness and eventual institutionalization, including involuntary commitment. Elliott Decl.

22 ¶24; see also supra 17-18 & n.38. Relative providers may institutionalize loved ones whom they

23 can no longer afford to care for at home. G. Thompson Decl. ¶7.

24

For example, Named Plaintiff Andrea Hylton was formerly homeless. Hylton Decl. ¶10.

25 She uses a walker or wheelchair for mobility because she is unsteady due to nerve problems and

26 arthritis, and tires easily due to emphysema. Id. ¶¶3-5. Andrea also has bipolar disorder and panic

27 attacks. Id. She currently lives in Section 8 housing, and will be evicted if she fails two

28 inspections. Id. Because she has so few authorized hours to begin with, and already cut back

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1 hours for meal preparation as a result of the 3.6% cut, she will have no choice but to reduce hours

2 allocated to housekeeping. But she cannot clean house while using her walker or wheelchair; if she

3 attempts to do so she is likely to fall and break a bone, due to her osteoporosis. Id. ¶¶6, 10. The

4 alternative is to fail her inspections, be evicted, and be forced into a facility. Id. ¶10.

5

Institutionalization has devastating effects. Many IHSS recipients “have fought so hard to

6 get out institutions. An attack on their IHSS services is a direct attack on their freedom and

7 independence.” 2nd Vescovo Decl. ¶31. For example, because Named Plaintiff Charles Thurman

8 is a veteran and eligible for a VA facility, and his wife of 36 years is not, they may be separated if

9 they are forced into nursing homes, as appears likely. Thurman Decl. ¶¶5, 24, 28. In some

10 counties, insufficient nursing home space will force recipients to move completely away from their

11 communities. 3rd Collins Decl. ¶8. Placement in an institution can destabilize already

12 compromised mental or physical functioning, and it is extremely difficult for individuals to move

13 back into the community. Gardner Decl. (Dkt. 70) ¶¶ 39, 45; 2nd Vescovo Decl. ¶18.

14 Institutionalized individuals may receive inadequate care due to chronic understaffing. Schnelle

15 Decl. (Dkt. 82) ¶6; Altman Decl. (Dkt. 62) ¶4. “Patients able to receive adequate care at home are

16 better off in terms of nutrition, avoidance of potentially lethal infections, and mental health,” and

17 even the act of moving from home to a facility can itself cause deteriorating health. Altman Decl.

18 (Dkt. 62) ¶4. Nursing homes generally have regimented and inflexible schedules. Schnell Decl.

19 (Dkt. 82) ¶6. IHSS recipients fear institutionalization because they value the independence of

20 community living and are aware that care in institutions is sometimes inadequate.55

21

___________________________________
55 3rd Jones Decl. ¶19 (hospitalization was worst experience of her life; felt was just a

22

“body in a bed”); 2nd Hylton Decl. ¶8 (lack of privacy in nursing home would cause panic attacks; convalescent home where she worked did not timely change diapers or turn patients to prevent

23

bedsores); Carpenter Decl. ¶21 (experienced abuse, stigma, and neglect in group home); Phillips Decl. ¶20 (abuse by other patients, over-medication, and disease in psychiatric institution); 2nd

24

McHenry Decl. ¶17 (hospitalization for suicidal thoughts was “horrible”; Hayes Decl. ¶12 (loss of independence would be devastating); Baker Decl. ¶¶17, 34 (would rather die than go into home);

25

Salazar Decl. ¶17 (would be depressed in nursing home); White Decl. ¶16; Stern Decl. ¶¶21, 23-24 (would lose touch with sister and friends; in convalescent home had no privacy, and “could not

26

bear that on a permanent basis”); 2nd Hylton Decl. ¶20 (would lose pet companionship that helps prevent panic attacks); Swann ¶10 (felt “stuck and sad” when hospitalized); Salazar Decl. ¶17 (loss

27

of independence); Baker Decl. ¶34 (similar); Hayes Decl. ¶12 (similar); Lott Decl. ¶23 (dignity and privacy; “couldn’t understand or believe” treatment of friends in convalescent home); Cooper Decl.

28

¶16 (loss of autonomy); Uriarte Decl. ¶13 (loss of contact with sister and activities with other seniors); Mills Decl. ¶4 (psoriasis needs not accommodated in institution).

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1

3. Plaintiffs Will Suffer Irreparable Injury.

2

This Court has previously determined that the loss of IHSS services constitutes irreparable

3 injury. PI Order (Dkt. 198) 26:2-14 (citing Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982)

4 (potential denial of Medicaid benefits is irreparable injury); Newton-Nations v. Rogers, 316

5 F.Supp.2d 883, 888 (D. Ariz. 1994); Edmonds v. Levine, 417 F.Supp.2d 1323, 1342 (S.D. Fla.

6 2006)). In Martinez v. Schwarzenegger, 2009 WL 1844989, at *5 (N.D. Cal. June 26, 2009), this

7 Court further elaborated on the irreparable harm likely to flow from the loss of IHSS assistance:

8

The consumers’ quality of life and health-care will be greatly diminished, which

9

will likely cause great harm to disabled individuals. For instance, the declarations

submitted by Plaintiffs describe harms ranging from going hungry and dehydration,

10

to falls and burns, to an inability ever to leave the home. Institutionalizing

individuals that can comfortably survive in their home with the help of IHSS

11

providers will “cause Plaintiffs to suffer injury to their mental and physical health,

12

including a shortened life, and even death for some Plaintiffs.” Crabtree v. Goetz, 2008 WL 5330506, at *30 (M.D. Tenn.).

13 See also Independent Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir.

14 2009), cert. granted on other issue, 131 S.Ct. 992 (2011) (denial of needed medical care irreparable

15 injury); LaForest v. Former Clean Air Holding Co., 376 F.3d 48, 55-56 (2nd Cir. 2004) (reduction

16 of retiree health benefits including increased cost of prescription medications); Lopez v. Heckler,

17 713 F.2d 1432, 1437 (9th Cir. 1983) (deprivation of social security benefits); Mayer v. Wing, 922

18 F.Supp. 902, 905, 909 (S.D.N.Y. 1996) (reduction of personal home care services); Crabtree, 2008

19 WL 5330506, at *30 (same); Long v. Benson, 2008 WL 4571903, at *2 (N.D. Fla. Oct. 14, 2008)

20 (similar). Plaintiffs’ showing of harm here readily meets this standard.56

21

B. The Balance of Equities and Public Interest Favor Plaintiffs.

22

The Ninth Circuit has held that injuries from the loss of home care services outweigh the

23 injury to the state fisc that may result from enjoining a budget reduction, because “individuals’

24 interests in sufficient access to health care trump the State’s interest in balancing its budget.”

25 Dominguez v. Schwarzenegger, 596 F.3d 1087, 1098 (9th Cir. 2010); see also Independent Living

26

27

56 The Ninth Circuit has also held that injury to providers in the form of lost wages

constitutes irreparable injury. Dominguez, 596 F.3d at 1097-98, cert. granted on other issue, 131

28

S.Ct. 992 (2011). Here, moreover, Plaintiffs have shown that many providers will themselves lose eligibility for health insurance. 2nd Jiminez Decl. ¶ 9; Adams Decl. ¶ 6.

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1 Ctr., 572 F.3d at 659 (“A budget crisis does not excuse ongoing violations of federal law,

2 particularly when there are no adequate remedies available other than an injunction.”); California

3 Pharm. Ass’n v. Maxwell-Jolly, 563 F.3d 847, 853 (9th Cir. 2009); Martinez, 2009 WL 1844989, at

4 *6; Lopez, 713 F.2d at 1437; Daniels v. Wadley, 926 F. Supp. 1305, 1313 (M.D. Tenn. 1996);

5 Kansas Hosp. Ass’n v. Whiteman, 835 F. Supp. 1548, 1552-53 (D. Kan. 1993). This Court has

6 reached the same conclusion. PI Order (Dkt. 198) 28:5-23 (budget crisis does not excuse legal

7 violations and is outweighed by recipient hardship; in-home care cuts may increase institutional

8 care costs, and state could save funds through individualized measures).

9

An injunction is also in the public interest. See Lopez, 713 F.2d at 1437 (deprivation of

10 essential benefits harms public interest even if benefits are costly to government); Martinez, 2009

11 WL 1844989 at *6. “State budgetary considerations do not …, in social welfare cases, constitute a

12 critical public interest that would be injured by the grant of preliminary relief. In contrast, there is

13 a robust public interest in safeguarding access to health care for those eligible for Medicaid, whom

14 Congress has recognized as the neediest in the country.” ILC, 572 F.3d at 659. The public interest 15 weighs in favor of enjoining unlawful reductions to IHSS. PI Order (Dkt. 198) 28:24-29:1.57 An

16 injunction will also preserve the status quo pendente lite, which is one of the purposes of a

17 preliminary injunction under Rule 65. See Chalk v. U.S. Dist. Court Cent. Dist. Cal., 840 F.2d 701,

18 704 (9th Cir. 1988).

19 II. Plaintiffs Are Likely to Succeed on the Merits of their Due Process, Medicaid, and Americans with Disabilities Act Claims.
20
A. The Reduction Notices Violate Due Process. 21

22

1. The Notices and Care Supplement Application Are Not Reasonably Calculated to Inform Aged and Disabled IHSS Recipients of Their Due

23

Process Rights.

24

In 2009, this Court outlined the applicable due process principles governing notices:

25

IHSS recipients must receive “timely and adequate notice detailing the reasons for

termination and an effective opportunity to defend” themselves. Goldberg v. Kelly,

26

397 U.S. 254, 268-69 (1970). To comport with due process, notice must be “tailored

27

___________________________________
57 Moreover, the likely increased demand upon public services and threat of institutional

28

placement means that the IHSS reductions may not save the state money. Cottrell Decl. ¶13; 2nd Jimenez Decl. ¶¶3, 7; LaPlante Decl. (Dkt. 85) ¶8.

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1

to the capacities and circumstances” of the recipients who must decide whether to

request a hearing. [Citation omitted.] “The government must consider unique

2

information about an intended recipient regardless of whether a statutory scheme is

3

reasonably calculated to provide notice in the ordinary case.” Jones v. Flowers, 547

U.S. 220, 221 (2006).

4 PI Order (Dkt. 198) 24:1-11. Applying these principles, this Court held that the 2009 notices likely

5 violated due process: “Many class members, because of their disabilities or inability to read

6 English or both, will be unable to understand and act upon the notice within ten days of receipt so

7 that they can request a fair hearing and continue to receive IHSS services.” Id. at 24:13-17.

8

IHSS recipients will be equally unable to understand the proposed notices regarding the 20

9 percent cut and county denial of the Care Supplement. Many of the notice problems mirror those

10 presented in 2009: poor readability and technically complex language, a format that is inaccessible

11 to recipients with vision disabilities, a short time frame that will impair recipients’ ability to obtain

12 assistance in asserting their rights, and failure to provide adequate translation. Other problems are

13 new, such as the absence of information regarding the effective date of the reduction, whether

14 recipients can appeal the reduction and on what basis, and the eligibility criteria for the Care

15 Supplement.

16

“[W]hen notice is the person’s due . . . [t]he means employed must be such as one desirous

17 of actually informing the [recipient] might reasonably adopt to accomplish it.” Jones v. Flowers,

18 547 U.S. 220, 221 (2006) (citation omitted); accord Covey v. Town of Somers, 351 U.S 141, 146-

47 (1956). Here, Defendants are on notice that all IHSS recipients are elderly and/or disabled, and 19
that many recipients have mental illnesses, cognitive impairments or dementia. 2nd Williams Decl. 20
¶12; Thomson Decl. (Dkt. 154) ¶12; 2nd Good Decl. ¶¶9-11; Ackel Decl. (Dkt. 131) ¶¶5(a)-(b), 7; 21
see also Kline Decl. (Dkt. 31-3), Ex. B2 at 26, 28 (over 60 percent of recipients are elderly and 22
nearly 14 percent have mental disorders according to CDSS data). Yet Defendants have ignored 23
accepted guidance issued by state and federal agencies (including DHCS itself) that mandates a
24 reading level of no more than 5th or 6th grade for effective communication with Medi-Cal

25 recipients. Huntley-Fenner Decl. ¶12 (communications expert); 2nd Ackel Decl. ¶16.58 The

26

27 ___________________________________

28

58 See also, e.g., M.G. Decl. ¶¶3, 18 (farmworker parents with little education); Hayes Decl.

¶15 (unable to read or write); Baker Decl. ¶¶4, 18 (same re: Hayes).

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1 planned notices have a 12th grade reading level, and are also formatted in such a way as to make

2 them even more difficult to understand. Id. ¶¶14-17.

3

The content of the notices is also confusing. Recipients will receive a flyer describing the

4 cuts, which states that “requests for a state hearing only to dispute the new state law requiring the

5 20-percent reduction in authorized service hours will be dismissed.” 3rd RJN, Ex. 6 (Att. A). The

6 mailing will also include a notice of action listing hours before and after the cuts on the front, while
7 the reverse side describes state appeal rights without any explanation of how this relates to the
8 hours reduction. Id. Ex. 6 (Att. A & B). The third document in the mailing will be an application
9 for the new Care Supplement, which invites recipients to describe in five lines why they believe they are at risk of out-of-home placement but without explanation of the meaning of this term or
10 what information they must submit to qualify. Id. Ex. 6 (Att. F); accord 2nd Williams Decl. ¶ 14
11 (no explanation of terms); 2nd Ackel Decl. ¶ 15 (same).
12 Taken as a whole, the mailing fails to explain why a new application is required when the
13 recipient already receives IHSS, or whether recipients may both appeal and apply for Care
14 Supplements, even though confusion over these subjects could result in untimely applications
15 and/or dismissal of an appeal. 3rd Rivera Decl., ¶ 12 (recipient cannot tell “if I can appeal or not”);
16 Preis Decl., ¶ 11(confusion over appeal vs. application); G. Thompson Decl. ¶13 (new application
17 will confuse people); 2nd Ackel Decl. ¶¶15-17 (procedure to apply for supplement rather than
18 appeal is so unusual that state “needs to be even more careful” about explaining it in the notice);
19 2nd Williams Decl. ¶17 (unusual procedure of applying for aid paid pending from county rather

20 than the state will confuse recipients).

21

Because of the reading level and complexity of the notices and the unanswered questions

22 they raise, most IHSS recipients will require the assistance of a county or agency social worker

23 before they can properly respond. Defendants implicitly acknowledge this need, as notices

24 encourage recipients to “contact your county IHSS office.” 3rd RJN, Ex. 6 (Att. A). However,

25 Defendants have chosen to send the notice during the holiday period, when many county offices

26 will be closed and short-staffed. 2nd Keeslar Decl. ¶¶6-12. In addition, the number of affected

27 recipients is likely to swamp the ability of county IHSS offices to respond within a short time 28 frame to requests for assistance regarding these cuts. Elliott Decl. ¶26; 3rd Kaljian Decl. ¶13;

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1 Cottrell Decl. ¶15; 3rd Collins Decl. ¶19; G. Thompson Decl. ¶16. In addition, delivery of the

2 notices will likely be slowed down by the holiday period, with heavy mail volume and two days

3 when post offices are closed. G. Thompson Decl. ¶18.

4

Defendants have no plans to provide notice in a format that is accessible to recipients who

5 are blind or have impaired vision. Defendants are aware of this problem from the argument and 6 evidence presented in 2009,59 but still fail to offer notices in alternative formats (i.e. large print,

7 Braille, tape) that will provide recipients with vision impairments with the information they need to
8 assert their rights. 2nd Good Decl. ¶¶10-11; 3rd Kaljian Decl. ¶11; Smith Decl. ¶16; G. Thompson 9 Decl. ¶14.60 This violates due process.61
Defendants do not plan to send notices in languages other than English, Spanish, Armenian 10
and Chinese. 3rd RJN, Ex. 6 (Att. C-E). However, there are other large populations of non11
English speaking IHSS recipients who will receive no translations of the reduction notices. 3rd 12
Collins Decl., Ex. A at 5-6; Elliott Decl. ¶28; Smith Decl. ¶15. CDSS’s own data confirms that 13
over 34,000 recipients will be unable to comprehend the notice because they speak only 14
Vietnamese or Russian. Rich Decl. (Dkt. 148-1) Att. A. Defendants have made no provisions for 15
these recipients, who will not receive adequate notice and will also be affected by the inability to
16 contact their county workers and to obtain needed translation services over the winter holidays. PI
17 Order (Dkt. 198) 24:12-25:4 (lack of translation raises due process issues); Keeslar 2nd Decl. ¶¶6-
18 12 (county office closures and short staffing); Nguyen Decl. ¶¶5-6 (Vietnamese speaker cannot

19 read English and no regular translator; may take provider longer than 15 days to find someone).

20

___________________________________

21

59 Pl. Br. (Dkt. 16) 23 n.20; Reply Br. (Dkt. 158) 7-9; Thomson Decl. (Dkt. 154) ¶12; Ackel

Decl. (Dkt. 131) ¶¶5(a)-(b), 7; Williams Decl. (Dkt. 155) ¶¶11-12; Hoffacker Decl. (Dkt. 76) ¶8.

22

60 See also Thurman Decl. ¶33 (blind recipient whose wife has dyslexia needs notices in

23

very large print or on tape); Gunn-Cushman Decl. ¶2 (blind recipient must rely on IHSS provider who is not fluent in English to read notice; requests for alternative formats ignored); Hammers

24

Decl. ¶17 (recipients will be unable to read notice due to blindness); Gonzalez Decl. ¶21 (similar). 61 The denial of notice in alternate formats for recipients with visual impairments and

25

blindness also violates the ADA. Title II prohibits discrimination and the exclusion of individuals from program services, benefits and activities on the basis of disability, and implementing

26

regulations require Defendants to take appropriate steps to ensure communications with recipients who are blind or have vision impairments that are as effective as communications with others,

27

including furnishing appropriate auxiliary aids and services where necessary. 28 C.F.R. §§ 35.160(a)-(b), 35.164. Here, IHSS recipients with vision impairments and blindness are excluded

28

from participation in the appeal, fair hearing and new application process by Defendants’ failure to accommodate them with notices in accessible formats.

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1

Because notices with complex language, confusing instructions, and an inaccessible format

2 and language are not reasonably calculated to inform recipients of their rights, Defendants will

3 violate due process on this ground alone.

4

2. The Notices Omit Important Information Without Which Recipients

5

Cannot Exercise Their Due Process Rights.

Defendants’ notices also omit important information recipients need in order to exercise 6

their hearing rights and ensure eligibility for aid paid pending. First, the planned notices fail to 7
explain the use of functional ranks to determine eligibility for the Care Supplement, or to provide 8
recipients with data on their own ranks. IHSS recipients have never been previously informed of
9 their functional ranks and have had no opportunity to discuss these with their workers, much less to

10 contest their rankings. PI Order (Dkt. 198) 25:14-19; Elliott Decl. ¶30; 3rd Guerra Decl. ¶10;

11 Smith Decl. ¶13.62 The notice that recipients have been denied the Care Supplement simply states,

12 misleadingly, that “the proposed reduction in your authorized monthly hours does not put you at

13 serious risk of out-of-home placement.” 3rd RJN Ex. 6 at 11.63

14

“Due process requires notice that gives an agency’s reason for its action in sufficient detail

15 that the affected party can prepare a responsive defense.” Barnes v. Healy, 980 F.2d 572, 579 (9th

16 Cir. 1992). Thus, the Ninth Circuit held that notices telling welfare recipients who were custodial

17 parents that the state would not “pass-through” collected child support payments because they were

18 not “current support,” with no further explanation, offered “no way of determining from the face of

19 that notice why collected payments were not deemed current support and what information [the

20 recipient] needs to challenge the agency’s determination.” Id. With such a notice the recipient “‘is

21 reduced to guessing what evidence can or should be submitted in response and driven to

22 responding to every possible argument against denial at the risk of missing the critical one

23 altogether,’” in violation of due process. Id. (citation omitted).64 And on facts strikingly similar to

___________________________________

24

62 See, e.g., Thurman Decl. ¶32; Stern Decl. ¶26; M.G. Decl. ¶17; 2nd Hylton Decl. ¶21.

25

63 Even where eligibility or full hours restoration is denied on grounds other than functional ranks (for example, availability of alternative resources), the notice does not explain this, so an

26

IHSS recipient will have no idea what information he needs to challenge the denial. 64 Accord Kapps v. Wing, 404 F.3d 105, 123-26 (2d Cir. 2005) (notices re: home energy

27

assistance program did not include individualized budgetary information supporting state’s decision to deny or reduce benefit); Ortiz v. Eichler, 794 F.2d 889, 892-94 (3d Cir.1986) (notices

28

did not include calculations justifying denial of or reduction in welfare benefits); Dilda v. Quern, 612 F.2d 1055, 1057 (7th Cir. 1980) (notices stated “ultimate reason” for the reduction or

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1 those here, the Supreme Court of Alaska held that notices reducing hours of in-home care services,

2 which mentioned a new assessment tool but did not provide the numerical code that tool assigned,

3 violated federal due process because they failed to offer “a meaningful opportunity to understand,

4 review, and, where appropriate, challenge the department’s action.” Baker v. State Dep’t of Health

5 & Soc. Serv., 191 P.3d 1005, 1008, 1011 (Ak. 2008).

6

Defendants’ planned notices are even more deficient than those in Barnes and Baker. The

7 notices fail not only to set forth recipients’ individual functional ranks, but even to explain that
8 functional ranks will be used at all to determine Care Supplement eligibility. Without a basic
9 understanding of the eligibility system, a recipient cannot decide whether Defendants made a mistake that warrants appeal or properly contest Defendants’ determination in a state hearing by
10 challenging the accuracy of their functional ranks. Those functional ranks may well be inaccurate
11 in many cases, and recipients have never previously had the opportunity to contest them.65
12 Second, while Defendants acknowledge that recipients may appeal the county’s denial of a
13 Care Supplement application, the notice of action informing recipients of this denial fails to specify
14 the effective date of the resultant reduction. 3rd RJN, Ex. 6 at 10-11; see also 3rd Collins Decl., Ex.
15 A at 7. Because recipients must file an appeal before the effective date of the reduction in order to
16 receive aid paid pending, 3rd RJN (Att. B), failing to inform them of the effective date will deprive
17 them of the crucial information they need in order to file a timely appeal. 66 This omission violates
18

19 termination of welfare benefits but not breakdown of income and allowable deductions); Gray

20

Panthers v. Schweiker, 652 F.2d 146, 168-69 (D.C. Cir. 1980) (same); Vargas v. Trainor, 508 F.2d 485, 490 (7th Cir. 1974) (notice that required elderly and disabled individuals to meet with case

21

managers or appeal without knowing basis of termination); Vorster v. Bowen, 709 F. Supp. 934, 944-47 (C.D. Cal. 1989) (Medicare recipients whose claims were denied were not provided with

22

written notice of methodology carriers used to assess claims). 65 See Stern Decl. ¶¶26-27 (named plaintiff should have ranks of 4 instead of 3 in bathing

23

and dressing; might then qualify for Care Supplement); Thurman Decl. ¶¶12, 15, 31-32 (recipient should have ranks of 4 instead of 3 in bathing and dressing; might qualify for Care Supplement);

24

3rd Jones Decl. ¶¶21-23 (ranks of 1 that should be 3’s in mobility and bladder care, and 1 in memory that should be 2); Maher Decl. ¶14 (rank of 1 for respiration should be 5, would then be

25

eligible for supplement); Mills Decl. ¶ 5 (bipolar recipient with history of lapses in judgment and memory surprised about mental functional ranks of 1); Phillips Decl. ¶¶ 23-24 (paranoid-

26

schizophrenic recipient has ranks of 2 for all mental functional ranks, provider unaware and unable to challenge them) Cooper Decl.¶¶10-11, 14, 19 (compromised judgment but mental functioning

27

ranks of 1). 66 The absence of an effective date also violates the federal Medicaid notice requirements.

28

See 42 C.F.R. §431.210(e) (“Content of notice” must include “[a]n explanation of the circumstances under which Medicaid is continued if a hearing is requested”) and 42 C.F.R.§

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1 due process, since aid paid pending is part of the constitutional guarantee of a pre-termination 2 hearing. Goldberg v. Kelly, 397 U.S. 254, 261 (1970).67

3

3. Defendants Violate Due Process by Failing to Provide an Adequate

4

Opportunity for a Pre-Termination Hearing When the Reduction Is Applied to a Recipient By Mistake.

5

The mandates of adequate notice, aid paid pending, and an impartial hearing protect against

6 agency action “resting on incorrect or misleading factual premises or on misapplication of rules or

7 policies to the facts of particular cases.” Goldberg, 397 U.S. at 267-68. Accordingly, due process

8 requires that Defendants provide recipients with enough information to determine whether their

9 services are being reduced in error and, if so, how to appeal that erroneous reduction. See Barnes,

10 980 F.2d at 579. While recipients do not have the right to challenge an across-the-board reduction

11 in benefits, they do have a due process right to raise individual factual disputes about whether they

12 are subject to the reduction at all.68

13

Here, the principal factual dispute will be whether a recipient is statutorily exempt from the

14 reduction, and has received a reduction notice in error. Already, IHSS recipients frequently receive

15 erroneous notices, including incorrect calculations of their share of cost or of the recent 3.6 percent
16 reduction. 2nd Ackel Decl. ¶¶7, 8. Under SB 73, tens of thousands of IHSS recipients are 17 statutorily exempt from the cuts because they are covered by one of California’s seven Home and 18 Community Based Services (“HCBS”) Medicaid Waivers. Cal. Welf. & Inst. Code
§12301.07(a)(5). According to knowledgeable officials, it is almost inevitable that some exempt 19
waiver recipients will nonetheless receive reduction notices by mistake, given the large number of 20

21 431.230 (a) (services must be maintained if “the recipient requests a hearing before the date of

action”).

22

67 Defendants’ notice also fails to explain that recipients have a right to a “home hearing,”

23

so that some may mistakenly believe they cannot challenge the loss of services because they cannot leave their homes due to their disabilities. This is an additional due process defect. PI Order (Dkt.

24

198) 25:10-13; see also Ackel Decl. (Dkt. 131) ¶5(c)). 68 See, e.g., Budnicki v. Beal, 450 F.Supp. 546, 553-54, 558 (E.D. Pa. 1978) (where state

25

terminated optional Medicaid program, due process required “individual hearing ... so long as a program recipient might have individual questions to raise,” such as possibility they are “entitled to

26

the service under some other element” of Medicaid program); Viverito v. Smith, 421 F.Supp. 1305, 1309 (S.D.N.Y. 1976) (pre-reduction hearing required where recipients alleged that mass reduction

27

in benefits pursuant to state law change created “‘unforeseen emergency’” entitling them to continued aid for reasonable time); Rosen v. Goetz, 410 F.3d 919, 924, 929 (6th Cir. 2005) (due

28

process satisfied because beneficiaries who presented “valid factual dispute” about eligibility for alternative Medicaid program in lieu of discontinued program were granted hearings).

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1 recipients and the complexity of the data-matching between different agencies that will be required

2 to identify them all.69

3

The automatic dismissal of an appeal based on mistaken application of the reduction would

4 violate the clear mandate of Goldberg v. Kelly, 397 U.S. at 264. Consequently, Defendants must

5 intend only that appeals raising a general challenge to the 20 percent reduction will be dismissed,

6 and that appeals claiming mistakes will be considered, since they would surely concede that if an

7 exempt recipient is issued a termination notice, she has a right to appeal this factual error.

8 Unfortunately, Defendants’ procedures are fatally flawed because they fail to explain this
9 distinction to recipients, so that they will not know if they have received a notice in error and, if they have, what to do. Danneker Decl. ¶8; 2nd Rivera Decl., ¶ 11-12; 3rd Oster Decl. ¶ 7-8.
10 Consequently, Defendants violate due process, since any recipient who relies on the information
11 and instructions provided will lose her right to appeal and obtain aid paid pending.70
12

13

B. Defendants’ Implementation of SB 73 Violates the Medicaid Act’s Sufficiency, Reasonable Standards, Comparability, and EPSDT Requirements.

14

Congress established Medicaid in 1965 to enable states to provide medical services to

15 individuals with limited ability to pay for health care. 42 U.S.C. § 1396-1396v. Medicaid is a

16 cooperative program that allows states to receive federal financial assistance for the provision of

17 medical assistance to low-income individuals. 42 U.S.C. § 1396. Participation is voluntary, but

18 states that choose to participate must comply with the Medicaid Act and its implementing

19 regulations. 42 U.S.C. § 1396; Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985).71

20 ___________________________________

21

69 Danneker Decl. ¶¶4-7 (regional center official describes risk of error in attempting to match data between different state agencies); 2nd Rosene Decl. ¶¶7-9 (same). Defendants’

22

problem with data-matching between state agencies is not limited to the DD waiver, as two additional HCBS waivers are operated by state agencies other than Defendants DHCS and CDSS,

23

which maintain their own data systems. 3rd RJN, Ex. 10 ¶2 (DHCS operates only four of the seven HCBS waivers). The timing of the inter-agency data match will create an additional source of

24

error, as the data matches will need to be run on a regular basis to identify newly approved waiver recipients. Danneker Decl. ¶7.

25

70 For similar reasons, the notice’s failure to explain which recipients should be automatically preapproved for Care Supplements and so should not receive notices of reduction

26

(for example, recipients who receive protective supervision services) also violates due process. 71 As set forth in the Complaint, many of plaintiffs’ Medicaid claims are brought pursuant

27

to 42 U.S.C. § 1983. The Medicaid provisions at issue are also enforceable directly under the Supremacy Clause. Independent Living Center of Southern California, Inc. v. Shewry, 543 F.3d

28

1050, 1058-59 (9th Cir. 2008), cert. denied, 129 S.Ct. 2828 (2009). While the Supremacy Clause issue is under review by the United States Supreme Court, unless and until Ninth Circuit precedent

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1

1. By Failing to Provide Adequate In-Home Services, Defendants Violate the

Sufficiency Requirement.

2

3

Medicaid’s “sufficiency” requirement mandates that “[e]ach service … be sufficient in

4 amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. §440.230(b). Thus,

5 when a state has committed to provide a Medicaid service, it must adequately fulfill that obligation.

6 PI Order (Dkt. 198) 19:22-27. To determine whether a service is sufficient, a court considers

7 whether the level of service achieves the specific program’s purposes. See Curtis v. Taylor, 625

8 F.2d 645, 651 (5th Cir. 1980).

9

For example, a state’s limitation of preventative dental checkups to every three years

10 (instead of annually) and elimination of certain dental services violate the sufficiency mandate

11 when the resulting program failed to achieve its preventative, maintenance and restorative

12 purposes. Mitchell v. Johnston, 701 F.2d 337, 347-51 (5th Cir. 1983); see also Lankford v.

13 Sherman, 451 F.3d 496, 511-13 (8th Cir. 2006) (providing oxygen and limited respiratory

14 equipment, but not other necessary breathing assistance equipment, violates sufficiency

15 requirement); Weaver v. Reagen, 886 F.2d 194, 197-200 (8th Cir. 1989) (program’s failure to cover

16 prescriptions for certain individuals violates sufficiency requirement); Charpentier v. Belshe, 1994

17 WL 792591, *5 (E.D. Cal. Dec. 21, 1994) (reimbursement limits that result in denial of supplies

18 and equipment violate sufficiency requirement).

19

This Court previously held that elimination of certain services authorized under IHSS

20 would likely violate the sufficiency mandate:

21

The services currently provided through IHSS have already been determined by social

22

workers to be “necessary” to permit elderly and disabled individuals to remain safely in their homes. MPP §30-761.1. Thus, the elimination of these services will likely leave

23

affected individuals without a level of service sufficient to achieve the purpose of the

program. Accordingly, the Court concludes that Plaintiffs are likely to succeed on their

24

sufficiency claim.

25 PI Order (Dkt. 198) 20:16-23 (emphasis added). This Court’s reasoning is equally applicable to
26 the 20 percent cut at issue here, which will leave some recipients with even fewer hours than the
27

28

on the issue is reversed, it remains binding. See United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 930 n.12 (9th Cir. 2001).

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1 2009 cuts.72 Plaintiffs’ evidence demonstrates that the reduction will leave the remaining hours

2 insufficient for numerous IHSS recipients. See supra at 14-21. Thus, SB 73’s reduction of IHSS

3 services is preempted by Medicaid’s sufficiency mandate.

4

Defendants may argue that the IHSS Care Supplement process ensures that service levels

5 will remain sufficient to accomplish the program’s objectives, but that argument lacks merit for a

6 number of reasons. First, a Care Supplement may be granted only based on serious risk of out-of-

7 home placement. Cal. Welf. & Inst. Code §12301.07(f). Recipients who will remain in their

8 homes but suffer injuries and/or deterioration of health are statutorily ineligible. But the purpose of

9 the IHSS program is not just to avoid institutionalization; rather, it is to provide services that

10 enable recipients to remain “safely … in their homes.” Cal. Welf. & Inst. Code §12300(a)

11 (emphasis added); see also MPP 30-761.1. A process for hours restoration that considers only risk

12 of institutionalization, and not risk of harm to health or safety, does not adequately ensure that

13 IHSS service levels continue to accomplish the program’s purpose.

14

Second, SB 73 places the burden on elderly or disabled recipients to take the initiative to

15 apply for IHSS Care Supplements rather than providing for county or state identification of

16 recipients who need to maintain current service levels in advance of the reduction. Moreover,

17 Defendants have established strict deadlines by which recipients must apply in order to be eligible

18 (March 1, 2012) and/or in order to maintain authorized services while their application is evaluated

19 (January 3, 2012). See supra at 7-9. But as in Vargas v. Trainor, 508 F.2d 485, 489-90 (7th Cir.

20 1974), elderly or disabled individuals may “be unable or disinclined, because of physical handicaps

21 and, in the case of the aged, mental handicaps as well, to take the necessary affirmative action” on

22

___________________________________

23

72 Many recipients will lose more hours than they would have in 2009. For example, plaintiff Charles Thurman would have lost 3.25 monthly hours for shopping and errands under

24

ABX4 4, but will lose 6.23 hours under SB 73. Thurman Decl. ¶¶2, 24, 30, Ex A; see also id. ¶¶3, 4, 30, Ex. A (wife would lose 3.25 hours under ABX4 4 versus 7.96 under SB 73); Cooper Decl.

25

¶¶2, 17, Ex. A (6.5 versus 10.09); D. Hammers Decl. ¶¶1, 14, Ex. A (3.25 versus 13.64); Hammers Decl. ¶¶1, 2, 14, Ex. A (3.25 versus 13.97 and 6.5 versus 15.35); Hicks Decl. ¶¶1, 20, Ex. A (6.5

26

versus 10.03); Salazar Decl. ¶¶2, 18, Ex. A (4.33 versus 11.84); Swann ¶13, Ex. A (6.5 versus 11.68). Other declarants would have lost more under ABX4 4. Jones Decl. ¶¶2, 20, Ex. A (19.49

27

versus 9.29); Cline ¶¶1, 16, Ex. A (15.16 versus 6.93); White Decl. ¶¶2, 19, Ex. A (25.98 versus 8.06). Moreover, for many recipients, the reduction will be the practical equivalent of the

28

elimination of categories of domestic and related services, because they will be unable to reduce hours in other categories. E.g., Milian Decl. ¶12; Hutchens Decl. ¶15.

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1 the notice. Many eligible recipients simply will not apply, because they cannot open or read their

2 mail without assistance. 3rd Kaljian Decl. ¶¶11-12; Calavan Decl. ¶9; 3rd Collins Decl. ¶¶17-20;

3 3rd Guerra Decl. ¶23; 2nd Marconi Decl. ¶13; Williams Decl. (Dkt. 155) ¶¶12-14; S. Good Decl 4 (Dkt. 139) ¶9.73 Others’ mental health or cognitive issues will pose serious barriers to taking the 5 initiative to apply.74 Even individuals with ranks of 5 for memory, orientation, or judgment will

6 have to meet the January 3 deadline if they do not receive protective supervision. 3rd Collins Decl.

7 ¶20. Defendants themselves acknowledge that many eligible recipients will not submit

8 applications for Care Supplements. 2nd Keeslar Decl. ¶17, Ex. A. Thus, a substantial percentage

9 of IHSS recipients who are eligible for the Care Supplement will not receive it based on their

10 failure to submit a timely application.

11

Third, Defendants’ implementation of SB 73 excludes from eligibility for Care

12 Supplements even individuals who can show risk of out-of-home placement, if their functional

13 ranks fall below certain levels. See supra at 8-9. This Court has already determined that functional

14 ranks are not reasonable measures of need; nor can they reasonably be used to assess risk of out-of-

15 home placement. See supra at 10-13. Thus, the Care Supplement process will not ensure that such

16 individuals maintain service levels sufficient to keep them safely at home.

17

2. Reduction of Hours for Purely Budgetary Reasons, and Using Functional

Ranks to Determine Eligibility for Hours Restorations, Violates the

18

Reasonable Standards Requirement.

19

___________________________________
73 See also Thurman Decl ¶33 (recipients’ blindness and dyslexia); M.G. Decl. ¶5 (staff at

20

hospital helped her apply for IHSS 5 years ago, not sure she could apply for something new on her own); Guerin Decl. ¶¶17-24 (recipient functions at 9-year-old level, lacks judgment to appreciate

21

importance of documents and frequently hides mail); Hayes Decl. ¶15 (unable to read or write); Baker Decl. ¶¶4, 18; Hammers Decl. ¶17 (recipients cannot read mail due to blindness, and may

22

not even know notice has arrived); Mills Decl. ¶¶ 7-8 (often bed-bound, and misplaces important mail due to concentration and mobility impediments); Swann Decl. ¶¶14-15 (consumer with mental

23

disabilities does not understand IHSS notices); Goff Decl. ¶21 (same); Mills Decl. ¶ 9 (consumer with bipolar disorder and visual dyslexia cannot fill out forms).

24

74 Preis Decl. ¶11 (recipients with psychiatric disabilities afraid to open mail, lose track of

mail); Crain Decl. ¶13; 3rd Jones Decl. ¶¶18, 19 (too frightened by possible cuts to even think

25

about it, may not have concentration to follow-through correctly); 2nd Hylton Decl. ¶23 (stress, anxiety and depression will prevent timely response); 3rd Jones Decl. ¶24 (would be too confused

26

and overwhelmed to correctly respond); Lott Decl. ¶28 (very confused and forgetful; depression could make unable to respond); Love Decl. ¶25 (schizophrenia prevents focusing on or

27

understanding written notices, library may not be open around the holidays to help with comprehension of mail); Meireles Decl. ¶4 (mentally ill consumer will be paralyzed and

28

overwhelmed); see also Ackel Decl. (Dkt. 131) ¶7; Williams Decl. (Dkt. 155) ¶18; S. Good Decl. (Dkt. 139) ¶6; Kaljian Supp. Decl. (Dkt. 141) ¶9.

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1

The Medicaid Act further requires that all participating states employ “reasonable standards

2 … for determining … the extent of medical assistance under the plan which … are consistent with

3 the objectives of this subchapter.” 42 U.S.C. § 1396a(a)(17); see also Wisconsin Dep't of Health &

4 Fam. Serv. v. Blumer, 534 U.S. 473, 479 (2002); Schweiker v. Gray Panthers, 453 U.S. 34, 36-37

5 (1981). The primary objectives of the Medicaid program are to provide medical assistance to

6 individuals whose income and resources are insufficient to meet the costs of necessary medical

7 services and to furnish “rehabilitation and other services to help such … individuals attain and

8 retain capability for independence or self care.” 42 U.S.C. § 1396-1.

9

Courts invalidate state Medicaid rules that deny coverage of services on an arbitrary or

10 irrational basis as contrary to, and so preempted by, the reasonable standards requirement. See

11 Lankford, 451 F.3d at 511-13 (reasonable standards violation likely where state unreasonably

12 restricted optional medical equipment benefit); Hern v. Beye, 57 F.3d 906, 910-11 (10th Cir. 1995)

13 (state law restricting medically necessary treatment to those whose lives were at risk not reasonable

14 standard); Preterm, Inc., v. Dukakis, 591 F.2d 121, 131 (1st Cir. 1979) (state could not restrict

15 medically necessary services solely on basis of diagnosis); White v. Beal, 555 F.2d 1146, 1151 (3d

16 Cir. 1977) (enjoining policy for glasses coverage because it discriminated “based upon etiology

17 rather than need for the service”); Allen v. Mansour, 681 F.Supp. 1232, 1238 (E.D. Mich. 1986)

18 (state medical necessity criteria arbitrary when unsupported by expert opinion or scientific data).

19

Defendants’ reduction of IHSS services violates the reasonable standards mandate in a

20 number of ways. Initially, there is no dispute that the 20 percent reduction figure was driven by

21 budgetary needs, and not by any reasonable determination that recipients needed fewer hours. That

22 reliance on budgetary objectives rather than reasonable or evidence-based needs assessment to

23 determine service levels violates the reasonable standards mandate. Cf. Cota v. Maxwell-Jolly, 688

24 F.Supp.2d 980, 992 (N.D. Cal. 2010) (modification of adult day services eligibility requirements,

25 without explanation of “how these changes are linked to the individual’s circumstances, particular

26 need for [adult day] services or their risk of institutionalization”).

27

Moreover, this Court has already determined that the use of functional ranks to allocate

28 medical assistance violates reasonable standards. PI Order (Dkt. 198) 18:13-21. Under that ruling,

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1 restricting eligibility for Care Supplements based on functional ranks employs an unreasonable 2 standard to determine the extent of medical assistance in violation of § 1396a(a)(17).75

3

3. By Providing Differing Levels of Medical Assistance to Individuals With

Similar Needs, Defendants Violate the Comparability Requirement. 4

The “comparability” requirement of the Medicaid Act, 42 U.S.C. § 1396a(a)(10)(B),

5

“mandates comparable services for individuals with comparable needs and is violated when some

6

recipients are treated differently than others where each has the same level of need.” PI Order

7

(Dkt. 198) 12:7-10; see also Jenkins v. Washington State Dep’t Social & Health Servs., 157 P.3d

8

388, 392 (Wash. 2007); Sobky v. Smoley, 855 F. Supp. 1123, 1139 (E.D. Cal. 1994); Hodgson v.

9

Board. of County Com’rs, Hennepin County, 614 F.2d 601, 608 (8th Cir. 1980); 42 C.F.R.

10

§440.240. Courts have thus found that states violate the Medicaid Act when they fail to offer the

11

same service to all with the same need. See, e.g., Parry v. Crawford, 990 F.Supp. 1250, 1257 (D.

12

Nev. 1998) (comparability violated where state provides certain services to those with mental

13

retardation but not those with “related conditions”). Courts do not blindly accept states’ recitations

14

that they are making needs-based distinctions, but examine the evidence to determine whether it is

15

actual need, or some other factor like diagnosis, that determines eligibility for services. See

16

Jenkins, 157 P.3d at 299 (reduction of services to recipients who live with caregiver violates

17

comparability because “it reduce[d] a recipient’s benefits based on a consideration other than the

18

recipient’s actual need”) (emphasis in original); White, 555 F.2d at 1150-51 & n.3 (provision of

19

eyeglasses to recipients with eye diseases, but not refractive error, violated comparability).

20

Defendants’ implementation of SB 73 violates the comparability mandate in three ways.

21

First, the use of functional ranks to exclude recipients from eligibility for Care Supplements will

22

result in individuals with comparable need receiving different levels of IHSS. This Court has

23

already held that “[t]he use of numerical ranks … to determine eligibility for IHSS services likely

24

25

___________________________________
75 Additionally, because the use of functional ranks has a disparate impact on recipients

26

with mental, as opposed to physical, impairments, it is inconsistent with the related regulation that prohibits arbitrary limitations on required services “based solely on diagnosis, type of illness, or

27

condition.” 42 C.F.R. § 440.230(c); see White, 555 F.2d at 1152 (§440.230(c) violated by limiting provision of optional eyeglass benefit based on source of vision impairment); Jeneski v. Myers, 163

28

Cal.App.3d 18, 33 (Cal. Ct. App. 1984) (§440.230(c) violated by across-the-board denial of drug that would be merely palliative for some Medicaid recipients but medically necessary for others).

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1 violates the comparability requirement” because ranks do not “reasonably measure[] the individual

2 need of a disabled or elderly person for a particular service.” PI Order (Dkt. 198) 12:24-27; see

3 also id. at 12:28-13:20 (“particularly inaccurate measures of the needs of individuals with mental

4 impairments”); id. at 13:21-14:5 (any rank of two or more demonstrates inability to remain safely

5 at home without assistance); id. at 15:24-28 (particularly inaccurate measure of children’s needs).

6 “IHSS recipients have been assessed in an individualized process to determine the services they

7 need to remain safely in their homes,” and the “mechanical[] application” of functional ranks “to a

8 use for which they were not designed” distinguishes among recipients based on a factor other than

9 actual need. Id. at 17:11-21.

10

Second, the March 1, 2012 application deadline means that California will authorize

11 different services for IHSS recipients based on the date of their application for a Care Supplement,

12 rather than based on differences in actual need. Individuals who miss the deadline inadvertently,

13 attempt to cope with the hours reduction and later discover they need their full hours authorization,

14 deteriorate after March 1 in a way that heightens their risk of out-of-home placement, or have

15 hours reduced through a post-March 1 reassessment such that they can no longer tolerate a 20

16 percent reduction, will be eligible for only 80 percent of the hours for which they would have been

17 eligible had they applied prior to March 1. See supra at 9 (many recipients will miss deadlines);

18 2nd Marconi Decl. ¶13; 3rd Collins Decl. ¶21. That violates the comparability mandate.

19

Third, SB 73 exempts IHSS recipients who receive services under specified waiver

20 programs, but not those who have identical need, including those who are on waiting lists for those

21 waivers. See supra n.18. Those waiting lists are substantial. 3rd RJN, Ex. 11 ¶30, Ex. 12 (Ex. 22 A).76 Exempting one group from the reduction while imposing it on the other violates the

23 comparability mandate.

24

4. Imposing a 20 Percent Reduction on Children and Youth Under Age 21

25

Violates the EPSDT Mandate in Federal Medicaid Law.

26

___________________________________

27

76 While Medicaid waivers may waive the comparability requirement, any such waiver

would be only with respect to services provided under those waivers, not with respect to IHSS

28

services which are provided not under a waiver but under the California State Medicaid Plan. Carroll Decl. (Dkt. 113) ¶7.

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1

States are required to provide “early and periodic screening, diagnostic, and treatment

2 services,” known as EPSDT, for all Medicaid-eligible children under age 21. 42 U.S.C.

3 §1396d(a)(4)(B). EPSDT services include “[s]uch other necessary health care, diagnostic services,

4 treatment, and other measures described in subsection (a) of this section to correct or ameliorate

5 defects and physical and mental illnesses.” 42 U.S.C. §1396d(r)(5). The Ninth Circuit has

6 explained that “states must ‘cover every type of health care or service necessary for EPSDT
7 corrective or ameliorative purposes that is allowable under § 1396d(a).’” Katie A. v. Los Angeles
8 County, 481 F.3d 1150, 1154 (9th Cir. 2007) (citations omitted). “The EPSDT obligation is thus
9 extremely broad.” Id. Personal care services such as IHSS are expressly subject to the EPSDT mandate. 62 Fed. Reg. 47896, 47898 (Sept. 11, 1997).
10 Under the EPSDT provisions in 42 U.S.C. § 1396a(a)(43)(C), states have an affirmative
11 obligation to ensure that children actually receive all of the services identified as medically
12 necessary during a screening or assessment. Katie A., 481 F.3d at 1158. “States also must ensure
13 that the EPSDT services provided are reasonably effective.” Id. at 1159. They may limit required
14 EPSDT services based only on medical necessity. Id.; see also Moore ex rel. Moore v. Reese, 637
15 F.3d 1220, 1255 (11th Cir. 2011) (state may not reduce children’s medically necessary hours of
16 private duty nursing); SD ex rel. Dickson v. Hood, 391 F. 3d 581, 593-94 (5th Cir. 2004)
17 (incontinence supplies); Collins v. Hamilton, 349 F. 3d 371, 376 (7th Cir. 2003) (psychiatric
18 residential treatment); Pediatric Specialty Care, Inc. v. Arkansas Dept. of Human Services, 293
19 F.3d 472, 480 (8th Cir. 2002) (early intervention day treatment).

20

Here, there can be no dispute that the 20 percent reduction is an across-the-board limitation

21 that is not based on medical necessity, and thus violates the EPSDT mandate. Nor does the Care

22 Supplement process legitimize the reduction, for several reasons. First, eligibility for the Care

23 Supplement is not based on whether the services are medically necessary and will “ameliorate” the

24 child’s condition by ensuring his or her health and safety, as required by 42 U.S.C. §1396d (r)(5).

25 Instead, eligibility is ostensibly based upon the risk that the child will end up in a different

26 placement. This inquiry, while relevant to the ADA, does not correlate with medical necessity. In

27 fact, named plaintiff L.C. does not qualify for the Care Supplement, although all the hours she 28 currently receives are medically necessary to manage her rare metabolic disorder at home, which

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1 requires complicated tube feedings and special care to prevent infection and illness and ensure her

2 growth and development. M.G. Decl. ¶¶4-6, 14; see also J.O. Decl. ¶¶3, 5, 20.

3

Second, the procedure for obtaining the Care Supplement does not ensure that all eligible

4 children will receive it. Under the EPSDT screening and treatment provisions of 42 U.S.C.

5 §1396a(a)(43)(C), a child’s receipt of medically necessary services cannot be left to chance, even

6 the chance that his or her parents will not respond to a notice. The “[state’s] obligations with

7 respect to EPSDT services require more proactive steps, such as actual provision of services.”

8 Katie A., 481 F.3d at 1158 (quoting Clark v. Richman, 339 F.Supp.2d 631, 646-47 (M.D.Pa. 2004);

9 accord Chisholm v. Hood, 110 F.Supp.2d 499, 507 (E.D.La. 2000) (“states are further obligated to

actively arrange for corrective treatment” under §1396a(a)(43)(C)); Salazar v. Dist. of Columbia, 10
954 F.Supp. 278, 330 (D.D.C. 1996) (failure to ensure children receive diagnosis and treatment for 11
health problems detected during screening violated §1396a(a)(43)(C)); John B. v. Menke, 176 12
F.Supp.2d 786, 801 (M.D. Tenn.2001) (state cannot “disclaim responsibility for the ultimate 13
provision of EPSDT-compliant services by a once-removed provider”). Once a county social 14
worker has assessed a child and determined the IHSS hours that are necessary, Defendants cannot
15 disclaim responsibility for whether a child’s hours are actually restored via the Care Supplement,
16 especially given the deadlines and complications inherent in that application process.

17

Finally, reliance on the Care Supplement to redeem cuts to children’s IHSS hours cannot be

18 reconciled with this Court’s previous finding that the functional ranks themselves are weighted

19 against children. PI Order (Dkt. 198) 15:24-28 (particularly inaccurate measure of children’s

20 needs). Because children’s functional ranks are likely to be lower than those of adults, children are

21 far less likely to qualify for the Care Supplement. See supra at 13 & n.27.

22

C. Defendants’ Implementation of SB 73 Violates Title II of the ADA and Section 504 of

23

The Rehabilitation Act.

24

1. Reduction of IHSS Hours Under SB 73 Violates the ADA’s Integration

Mandate by Placing People with Disabilities at Risk of Unnecessary

25

Institutionalization.

26

The ADA and Section 504 (collectively “ADA”) prohibit discrimination based on

27 disability. 42 U.S.C. §12132; 29 U.S.C. §794(a). “Unnecessary isolation is a form of

28 discrimination against people with disabilities” in that it perpetuates stereotypes and diminishes the

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1 quality of life of people with disabilities. PI Order (Dkt. 198) 21:4-13 (citing Olmstead v. L.C. ex

2 rel. Zimring, 527 U.S. 581, 597, 600-601 (1999)).

3

The ADA’s integration mandate requires provision of services “in the most integrated

4 setting appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. § 35.130(d).

5 “‘The ‘most integrated setting’ is defined as ‘a setting that enables individuals with disabilities to

6 interact with non-disabled persons to the fullest extent possible.’” PI Order (Dkt. 198) 21:25-22:2

7 (quoting Brantley v. Maxwell-Jolly, 656 F.Supp.2d 1161, 1170 (N.D. Cal. 2009)). This

8 “integration mandate” “serves one of the principal purposes of Title II of the ADA: ending the

9 isolation and segregation of disabled persons.” Arc of Washington State v. Braddock, 427 F.3d 10 615, 618 (9th Cir. 2005).77

11

“[P]laintiffs who currently reside in community settings may assert ADA integration claims

12 to challenge state actions that give rise to a risk of unnecessary institutionalization.” PI Order (Dkt.

13 198) 22:9-12 (citing Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181-82 (10th

14 Cir.2003)) (cap on prescription medications placed participants in community-based program at

15 high risk for premature entry into nursing homes in violation of ADA); Hunter v. Cook, 2011 WL

16 4500009 at *5 (N.D. Ga. Sept. 27, 2011); Ball v. Rodgers, 2009 WL 1395423 at *5 (D. Ariz. Apr.

17 24, 2009); Mental Disability Law Clinic v. Hogan, 2008 WL 4104460 at * 15 (E.D.N.Y. Aug.28,

18 2008)); see also Townsend v. Quasim, 328 F.3d 511, 514-18 (9th Cir. 2003); 3rd RJN, Ex. 9

19 (Department of Justice Brief) at 14, 18-24 & n.5 (citing cases and statutory and regulatory

20 language). As the United States Department of Justice has explained, that risk may result from

21 deterioration over time and need not be imminent. 3rd RJN, Ex. 9 at 13-14, 24-26 & n.3; see also

22 Fisher, 335 F.3d at 1184-85 (many plaintiffs would remain in homes “until their health ha[d]

23 deteriorated” and would “eventually end up in a nursing home”).78

24

___________________________________
77 To establish an Olmstead claim, a plaintiff must show (1) the state’s treatment

25

professionals have determined that community-based services are appropriate, (2) the disabled individual does not oppose such community-based treatment, and (3) the provision of community-

26

based services can be reasonably accommodated, taking into account the resources available to the state and the needs of other individuals with disabilities. Olmstead, 527 U.S. at 587.

27

78 The Department of Justice’s interpretation of the integration regulation as violated by the

risk of institutionalization, even when that risk is not imminent, is entitled to deference. See Zurich

28

American v. Whittier Properties, 356 F.3d 1132, 1137 & n.27 (9th Cir. 2004); Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002); see also Olmstead, 527 U.S. at 597-98; Auer v.

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1

Here, the statutes and regulations that govern the IHSS program themselves establish that

2 the reduction of IHSS services will place recipients at risk of unnecessary institutionalization,

3 because only services that are necessary to permit individuals to remain safely at home may be

4 authorized in the first place. See supra at 6. Also, the evidence submitted here demonstrates a 5 dramatic risk of institutionalization for many class members. See supra at 23-26.79

6

Defendants may argue that the opportunity to apply for IHSS Care Supplements obviates

7 the risk of institutionalization and so prevents an ADA violation. That is not the case. First, other

8 than the small number of individuals who fall into categories that will be preapproved, Defendants

9 place the obligation upon IHSS recipients to apply for Care Supplements. 3rd RJN , Ex. 6. For

10 reasons discussed, including the effects of their disabilities, many recipients simply will not apply,

11 or will not apply on time. See supra at 30-31, 37-38. Defendants acknowledge that many eligible

12 recipients will not apply. 2nd Keeslar Decl. ¶17, Ex. A. “Defendants bear the ultimate

13 responsibility for ensuring the State’s compliance with federal disability law,” PI Order (Dkt. 198)

14 23:13-14, and so cannot satisfy their ADA obligation by relying on recipients’ ability to understand

15 the notice and act quickly to protect their interests.

16

Second, Defendants have excluded from eligibility for Care Supplements hundreds of

17 thousands of recipients who face serious risks of out-of-home placement. 2nd Keeslar Decl. ¶¶14-

18 16 (state official says two-thirds of recipients won’t be eligible). Counties, acting as agents of the

19 State, have awarded hours to these recipients based on individualized determinations that they need

20 these hours to remain safely at home. See supra at 6. That need does not depend on the recipient’s

21

22

Robbins, 519 U.S. 452, 462 (1997); Federal Express Corp. v. Holowecki, 552 U.S. 389, 397 (2008).

23

79 Maintenance of current IHSS hourly authorizations would not require fundamental alteration of the program, since plaintiffs are “not demanding a separate service or one not already

24

provided.” Fisher, 335 F.3d at 1183. It is well-established that “budgetary constraints alone are insufficient to establish a fundamental alteration defense.” Pennsylvania Protection & Advocacy,

25

Inc. v. Pennsylvania Dept. of Public Welfare, 402 F.3d 374, 380 (3rd Cir. 2005); see also Frederick L. v. Dept. of Public Welfare of Com. of Penn., 364 F.3d 487, 495-96 (3rd Cir. 2004); Fisher, 335

26

F.3d at 1182-83; Townsend, 328 F.3d at 520; Haddad v. Arnold, 784 F.Supp.2d 1284, 1305 (M.D. Fla. 2010); Cota v. Maxwell-Jolly, 688 F.Supp.2d 980, 995 (N.D. Cal. 2010) (appeal pending).

27

Moreover, if even a small proportion of the 372,000 IHSS recipients at risk here end up in hospitals, emergency rooms or nursing homes, the cost may actually exceed the savings from the

28 20 percent reduction. See supra at 6-7 & n.15.

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1 functional rank for specified personal care services or mental functioning. See supra at 10-13.

2 This Court has already held that individuals with functional ranks of less than 4 for domestic and

3 related services would likely face a risk of institutionalization if those domestic and related services

4 were taken away. PI Order (Dkt. 198) 22:24-23:8. Here, 20 percent of all IHSS services are being

5 eliminated, and high functional ranks for a limited number of functions are not a reasonable way to

6 distinguish individuals who are at risk from those who are not.

7

2. Defendants’ Implementation of SB 73 Discriminates Against People with

8

Psychiatric and Cognitive Disabilities.

9

Defendants’ use of functional ranks to exclude certain recipients from eligibility for IHSS

10 Care Supplements also violates the ADA because it will have a uniquely detrimental effect upon

11 people with psychiatric and cognitive disabilities, in violation of 28 C.F.R. §35.130(b)(8)

12 (prohibiting “eligibility criteria that screens out or tends to screen out … any class of individuals

13 with disabilities from fully and equally enjoying any service, program, or activity”) (emphasis 14 added); see also 45 C.F.R. §84.4(b)(4).80

15

As previously explained, the use of functional ranks as eligibility criteria will have a

16 uniquely detrimental and disproportionate impact upon persons with cognitive and psychiatric

17 disabilities. Such individuals are likely to have many functional ranks of 2, as the nature of their

18 disability means that they need verbal encouragement or cueing, not necessarily physical assistance

19 – even though their need for assistance is just as critical. See supra at 12-13. Defendants may

20 respond that they are giving adequate consideration to cognitive disabilities by providing that a

21 rank of 5 for any mental function will make a recipient potentially eligible for a Care 22 Supplement.81 However, because the standard for a functional rank of 5 is so high, and because the

23 mental functioning ranks do not measure psychiatric illnesses such as depression, Defendants’

24 standards will leave individuals with moderate cognitive disability and psychiatric disabilities

25 ineligible. See supra at 10 n.21, 12-13.

26

___________________________________
80 This discrimination if actionable even though its adverse impact is confined to

27 individuals with mental disabilities, rather than all individuals with disabilities. See Olmstead, 527

U.S. at 598 & n.10.

28

81 Because mental functioning is ranked only 1, 2, or 5, a recipient would have to have at

least one functional rank of 5 in order to qualify for the Care Supplement. See supra at 9.

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1

3. Defendants’ Implementation of SB 73 Uses Methods of Administration that

Discriminate Against People with Disabilities. 2

The ADA prohibits methods of administration that have a discriminatory effect on people

3

with disabilities, including by “substantially impairing accomplishment of the objectives of the

4

public entity’s program with respect to individuals with disabilities.” 28 C.F.R. §35.130(b)(3); see

5

Alexander, 469 U.S. at 296-97; Helen L. v. DiDario, 46 F.3d 325, 335 (3rd Cir. 1995); Crowder v.

6

Kitigawa, 81 F.3d 1480, 1484 (9th Cir. 1996). The purpose of the IHSS program is to permit

7

recipients to remain safely at home. Cal. Welf. & Inst. Code § 12300(a); see also Miller, 148

8

Cal.App.3d at 867. Defendants’ requirement that IHSS recipients apply for IHSS Care 9

Supplements, deadlines for applying, and functional rank eligibility limitations will significantly

10

impair this purpose of IHSS. See Brantley, 656 F.Supp.2d at 1175-76 (defendants’ failure to 11

provide sufficient notice and information regarding reduction in Medi-Cal services likely violated 12

methods of administration regulation); Kathleen S. v. Pennsylvania Dep’t of Publ. Welfare, 10 13

F.Supp.2d 460, 473 (E.D.Pa. 1998) (state’s “failure to adequately plan for the community 14

placements” constituted discriminatory methods of administration). Defendants’ methods of 15

administration will also subject individuals to disability discrimination by screening out many 16

individuals with cognitive and psychiatric disabilities. See supra at 12-13. 17

CONCLUSION 18

For all the foregoing reasons, Plaintiffs request that this Court issue an immediate 19

temporary restraining order. 20

21 Dated: December 1, 2011 22 23 24 25 26 27 28

Respectfully Submitted,

By: /s/ Melinda Bird

_____

MELINDA BIRD (SBN 102236)

MARILYN HOLLE (SBN 61530)

DISABILITY RIGHTS CALIFORNIA

LOS ANGELES REGIONAL OFFICE

3580 Wilshire Blvd., Ste. 902

Los Angeles, CA 90010

Telephone: (213) 427-8747

Facsimile: (213) 427-8767

melinda.bird@disabilityrightsca.org

marilyn.holle@disabilityrightsca.org

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1

SUJATHA JAGADEESH BRANCH (SBN 166259)

DISABILITY RIGHTS CALIFORNIA

2

SACRAMENTO REGIONAL OFFICE

1831 K Street

3

Sacramento, CA 95811

Telephone: (916) 504-5800

4

Facsimile: (916) 504-5801

sujatha.branch@disabilityrightsca.org

5

DARA L. SCHUR (SBN 98638)

6

DISABILITY RIGHTS CALIFORNIA

BAY AREA REGIONAL OFFICE

7

1330 Broadway, Suite 500

Oakland, CA 94612

8

Telephone: (510) 267-1200

Facsimile: (510) 267-1201

9

dara.schur@disabilityrightsca.org

10

PAULA PEARLMAN (SBN 109038)

11

SHAWNA PARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

12

919 Albany Street

Los Angeles, CA 90015

13

Telephone: (213) 736-1031

Facsimile: (213) 736-1428

14

paula.pearlman@lls.edu

shawna.parks@lls.edu

15

CHARLES WOLFINGER (SBN 63467)

16

LAW OFFICE OF CHARLES WOFLINGER

4655 Cass Street # 314

17

San Diego, CA 92109

Telephone: (858) 272-8115

18

Facsimile: (858) 270-3960

Cw@charleswolfinger.com

19

20

JANE PERKINS (SBN 104784)

NATIONAL HEALTH LAW PROGRAM

21

211 N. Columbia Street

Chapel Hill, NC 27514

22

Telephone: (919) 968-6308

Facsimile: (919) 968-8855

23

perkins@healthlaw.org

24

ABIGAIL K. COURSOLLE (SBN 266646)

NATIONAL HEALTH LAW PROGRAM

25

3701 Wilshire Blvd., Ste. 750

Los Angeles, CA 90010

26

Telephone: (310) 736-1652

Facsimile: (213) 368-0774

27

coursolle@healthlaw.org

28

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1

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

2

1330 Broadway, Suite 525

Oakland, CA 94612

3

Telephone: (510) 663-1055

Facsimile: (510) 663-1051

4

arich@nsclc.org

5

Attorneys for Individual Named Plaintiffs David

Oster, Willie Beatrice Sheppard, C.R., Dottie Jones,

6

Andrea Hylton, Helen Polly Stern, Charles Thurman,

L.C., and the Plaintiff Class

7

8

By: /s/ Stacey M. Leyton

______

9

STEPHEN P. BERZON (SBN 46540)

EVE H. CERVANTEZ (SBN 164709)

10

STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

11

RACHEL J. ZWILLINGER (SBN 268684)

Altshuler Berzon LLP

12

177 Post Street, Suite 300

San Francisco, California 94108

13

Telephone: (415) 421-7151

Facsimile: (415) 362-8064

14

sberzon@altshulerberzon.com

ecervantez@altshulerberzon.com

15

sleyton@altshulerberzon.com

pthoreen@altshulerberzon.com

16

rzwillinger@altshulerberzon.com

17

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

SEIU Local 521, SEIU California State Council,

18

UDW, and CUHW

19

20

21

22

23

24

25

26

27

28

49 MPA ISO EX PARTE APPLICATION FOR TRO; CASE NO. CV 09-04668 CW

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

6

7 DAVID OSTER, et al.,

) Case No.: CV 09-04668 CW

)

8

)

Plaintiffs

) ORDER GRANTING APPLICATION

9

) FOR TEMPORARY RESTRAINING

v.

) ORDER AND ORDER TO SHOW CAUSE

10

) WHY A PRELIMINARY INJUNCTION

WILL LIGHTBOURNE, Director of the

) SHOULD NOT ISSUE

11 California Department of Social Services; )

TOBY DOUGLAS, Director of the California )

12 Department of Health Care Services;

)

CALIFORNIA DEPARTMENT OF HEALTH )

13 CARE SERVICES; and CALIFORNIA

)

DEPARTMENT OF SOCIAL SERVICES, )

14

)

Defendants

)

15

)

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER GRANTING TRO AND ORDER TO SHOW CAUSE CASE NO. CV 09-04668 CW

1

Plaintiffs’ application for a temporary restraining order and order to show cause why a

2 preliminary injunction should not issue came before this Court for consideration on December 1,

3 2011. Upon consideration, and for good cause shown, IT IS HEREBY ORDERED that the TRO

4 application is GRANTED.

5

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

6 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

7 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

8 Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008). Alternatively, “a preliminary

9 injunction could issue where the likelihood of success is such that serious questions going to the

10 merits were raised and the balance of hardships tips sharply in plaintiff’s favor,” so long as the

11 plaintiff demonstrates irreparable harm and shows that the injunction is in the public interest.

12 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation and

13 internal quotation and editing marks omitted).

14

A court employs a sliding scale when considering a plaintiff’s showing as to the likelihood

15 of success on the merits and the likelihood of irreparable harm. Id. “Under this approach, the

16 elements of the preliminary injunction test are balanced, so that a stronger showing of one element

17 may offset a weaker showing of another.” Id.

18

In support of this Order, the Court makes the following findings. Defendants’ proposed

19 notices regarding the reduction in most In Home Supportive Services (“IHSS”) recipients’ service

20 hours and regarding Care Supplements raise serious questions of violations of the federal Due

21 Process Clause. In addition, SB 73 also raises serious questions of violations of Title XIX of the

22 Social Security Act, 42 U.S.C. § 1396a (“the Medicaid Act”), the Americans with Disabilities Act

23 of 1990, 42 U.S.C. § 12312 (“ADA”) or Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

24 § 794 (“Section 504”), by placing IHSS recipients at imminent risk of unnecessary and unwanted

25 out-of-home placement, including in institutions such as nursing homes, board and care facilities,

26 and psychiatric hospitals; by discriminating on the basis of type of disability; and by using

27 methods of administration that will exclude individuals with disabilities from IHSS. The potential

28
1 ORDER GRANTING TRO AND ORDER TO SHOW CAUSE
CASE NO. CV 09-04668 CW

1 for IHSS recipients to apply for relief from the reductions mandated by SB 73 does not cure these

2 defects.

3

The planned IHSS reductions, unless enjoined, will cause immediate and irreparable harm

4 by placing members of the plaintiff class at imminent and serious risk of harm to their health and

5 safety, as well as of unnecessary and unwanted out-of-home placement including

6 institutionalization.

7

Plaintiffs have no adequate remedy at law.

8

Thus, serious questions going to the merits are raised and the balance of hardships tips

9 sharply in Plaintiffs' favor. The balance of equities strongly favors Plaintiffs because Defendants’

10 only interest is fiscal, whereas the plaintiff class faces life or death consequences. Plaintiffs have

11 demonstrated irreparable harm and that the injunction is in the public interest.

12

The Court finds that no bond is necessary. Temple Univ. v. White, 941 F.2d 201, 220 (3d

13 Cir. 1991); Sherr v. Volpe, 466 F.2d 1027, 1035 (7th Cir. 1972); see also Preliminary Injunction

14 Order (Dkt. 198) at 29 (waiving bond requirement in this action because Plaintiffs “are indigent

15 and to ensure their ability to access the courts on behalf of themselves and other class members”).

16

Accordingly, IT IS HEREBY ORDERED that, pending an order by this Court as to

17 whether a preliminary injunction should issue, Defendants, their officers, agents, servants,

18 employees, and attorneys, and all persons acting by, through, under, or in concert with Defendants

19 (referred to collectively hereinafter as “Defendants”) are enjoined from taking any actions to

20 implement the reduction in IHSS recipients’ service hours mandated by SB 73.

21

IT IS FURTHER ORDERED that Defendants take all actions necessary to ensure that no

22 IHSS consumers’ hours are reduced because of SB 73 during the pendency of this injunction.

23

IT IS FURTHER ORDERED that Defendants refrain from making any changes to the

24 Case Management, Information and Payrolling System (“CMIPS”) to implement the reductions

25 contemplated by SB 73.

26

IT IS FURTHER ORDERED that, to the extent Defendants have already taken any actions

27 to implement those reductions, Defendants immediately undo any such actions. This includes, but

28
2 ORDER GRANTING TRO AND ORDER TO SHOW CAUSE
CASE NO. CV 09-04668 CW

1 is not limited to, immediately undoing any changes to the Case Management, Information and

2 Payrolling System (“CMIPS”) made to implement the reductions contemplated by SB 73.

3

IT IS FURTHER ORDERED that Defendants immediately rescind All-County Letter

4 (ACL) No. 11-81 and inform all counties that it has been rescinded and that the reductions in

5 IHSS recipients’ service hours mandated by SB 73 have been enjoined.

6

IT IS FURTHER ORDERED that Defendants immediately halt issuance of any notices

7 (including but not limited to Notices of Action), letters, time sheets, e-mails, web postings, or any

8 other written materials to IHSS recipients or providers in any way suggesting that their authorized

9 hours have been or will be reduced as a result of SB 73, or as a result of any actions undertaken to

10 implement SB 73.

11

IT IS FURTHER ORDERED that, if Defendants have already issued any notices

12 (including but not limited to Notices of Action), letters, time sheets, e-mails, web postings, or any

13 other written materials to IHSS recipients or providers in any way suggesting that their authorized

14 hours have been or will be reduced as a result of SB 73, or as a result of any actions undertaken to

15 implement SB 73, Defendants immediately issue notices to those IHSS recipients or providers,

16 informing them that their authorized hours will not be reduced as a result of SB 73, or as a result

17 of any actions undertaken to implement SB 73, due to this injunction. Any such notice shall be

18 accessible to recipients and/or providers whose primary language is not English, and/or who have

19 vision impairments.

20

IT IS FURTHER ORDERED that, within five business days from the date of this order,

21 Defendants shall serve and file a declaration verifying that they have complied with this order and

22 detailing what steps, if any, they have taken to do so.

23

IT IS FURTHER ORDERED that Plaintiffs’ papers filed in support of their application for

24 a temporary restraining order shall be treated as Plaintiffs’ moving papers for a preliminary

25 injunction. Defendants may file and serve their opposition to Plaintiffs’ request for a preliminary

26 injunction on or before December 7, 2011. In the event that Defendants file their opposition by

27 that date, Plaintiffs may file a reply brief in support of their motion for preliminary injunction no

28
3 ORDER GRANTING TRO AND ORDER TO SHOW CAUSE
CASE NO. CV 09-04668 CW

1 later than December 9, 2011, and a hearing on Plaintiffs’ request will be held on December 15,

2 2011 at 2:00 pm.

3

Alternatively, Defendants may file and serve their opposition to Plaintiffs’ request for a

4 preliminary injunction at their convenience. Plaintiffs shall file a reply brief in support of their

5 motion no later than two full court days thereafter. A hearing on Plaintiffs’ request for a

6 preliminary injunction will be scheduled for the first or second Thursday after Plaintiffs' reply is

7 filed, at 2:00 pm. The temporary restraining order shall remain in effect until the day the hearing

8 is held.

9

10

IT IS SO ORDERED.

11

12 Dated: December 1, 2011
13
14

_____________________________ Honorable Claudia A. Wilken United States District Court Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4 ORDER GRANTING TRO AND ORDER TO SHOW CAUSE
CASE NO. CV 09-04668 CW

 
 Case4:09-cv-04668-CW Document356 Filed12/01/11 Page1 of 25

1 MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)
2 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd., Ste. 902
3 Los Angeles, CA 90010 Telephone: (213) 427-8747
4 Facsimile: (213) 427-8767 Melinda.bird@disabilityrightsca.org
5 Marilyn.holle@disabilityrightsca.org

6 Attorneys for Named Plaintiffs and the Proposed Class Additional Attorneys for Named Plaintiffs and the
7 Proposed Class on Signature Page

8 STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)
9 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
10 RACHEL J. ZWILLINGER (SBN 268684) Altshuler Berzon LLP
11 177 Post Street, Suite 300 San Francisco, California 94108
12 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
13 sberzon@altshulerberzon.com ecervantez@altshulerberzon.com
14 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
15 rzwillinger@altshulerberzon.com

16 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU

Local 521, SEIU California State Council, UDW, and CUHW

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

19

DAVID OSTER, et al.,

) Case No.: CV 09-04668 CW

20

)

) CLASS ACTION

21

Plaintiffs

)

) PLAINTIFFS’ NOTICE OF

22

v.

) MOTION AND MOTION FOR

) CLASS CERTIFICATION;

23 24

WILL LIGHTBOURNE, Director of the

)

California Department of Social Services; )

TOBY DOUGLAS, Director of the California )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

Department of Health Care Services;

)

25 CALIFORNIA DEPARTMENT OF HEALTH ) Hearing Date: To Be Determined

CARE SERVICES; and CALIFORNIA

)

26 DEPARTMENT OF SOCIAL SERVICES ) RELIEF REQUESTED BY DECEMBER 6

27

Defendants

28

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR CLASS CERT; MEMO. OF PTS. AND AUTH. IN SUP., CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document356 Filed12/01/11 Page2 of 25

1

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

2

TO: WILL LIGHTBOURNE, Director of the California Department of Social

Services; TOBY DOUGLAS, Director of the California Department of Health

3

Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE

4

SERVICES; and CALIFORNIA DEPARTMENT OF SOCIAL SERVICES:

5

PLEASE TAKE NOTICE that at the date, time, and location set by the Court for the

6 Hearing on Plaintiffs’ Motions for leave to File a Third Amended Complaint, for Temporary

7 Restraining Order, and for Preliminary Injunction, and/or as soon thereafter as counsel may be

8 heard, in the United States District Court for the Northern District of California, the Named

9 Plaintiffs David Oster; Willie Beatrice Sheppard; C.R. by and through his guardian ad litem, M.R.;

10 Dottie Jones; Andrea Hylton; Helen Polly Stern, L.C. by and through her guardian ad litem, M.G.,

11 and Charles Thurman, individually and on behalf of all others similarly situated, will and do hereby

12 move under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure for an order certifying

13 the following classes for the purposes of injunctive and declaratory relief:

14

For Part A of the First, Second, Third, Fourth, Fifth, Seventh, and Tenth Claims for Relief,

15 Named Plaintiffs David Oster, Willie Beatrice Sheppard, Dottie Jones, L.C., and Charles Thurman

16 seek certification of the following class, and appointment as class representatives:

17

All recipients of IHSS in the State of California whose IHSS services

will be limited, cut, or terminated under the provisions of ABX4 4, and

18

all applicants to IHSS in the State of California who would have been

eligible for IHSS services but who are either not eligible, or are

19

eligible for fewer services, as a result of ABX 4 4 (hereinafter the

20

Class “A”).

21

For Part B of the First, Second, Third, Fourth, Fifth, Sixth, and Seventh claims for relief,

22 Named Plaintiffs David Oster, Willie Beatrice Sheppard, C.R., Dottie Jones, Andrea Hylton, Helen

23 Polly Stern, L.C., and Charles Thurman seek certification of the following class, and appointment as

24 class representatives:

25

All recipients of IHSS in the State of California who have received or

will receive notices of action that include a reduction of IHSS hours

26

based on SB 73 or Defendants’ implementation of SB 73, including

future applicants for IHSS services whose notice of action will reflect

27

reduced IHSS hours as a result of SB 73 or Defendants’

28

implementation of SB 73 (hereinafter the “Class B”).

1
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR CLASS CERT; MEMO. OF PTS. AND AUTH. IN SUP., CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document356 Filed12/01/11 Page3 of 25

1

Named Plaintiffs David Oster, Willie Beatrice Sheppard, C.R., Dottie Jones, Andrea Hylton,

2 Helen Poly Stern, L.C., Charles Thurman, and others similarly situated also seek appointment of

3 subclasses as follows:

4

For Part A of the Sixth Claim for Relief:

5

“Loss of Domestic and Related Services Subclass A” to be defined as

“all present and future IHSS recipients and applicants who have been

6

or would have been authorized to receive domestic and/or related

7

IHSS, and whose IHSS will be reduced to eliminate some or all of their domestic and/or related services under the provisions of ABX4

8

4.”

9 Plaintiffs Dottie Jones, Willie Beatrice Sheppard, and Charles Thurman are typical of this subclass.

10 For Part A of the Eighth Claim for Relief:

11 “Children Subclass A” to be defined as “all present or future IHSS

12

recipients who are under the age of 21, who qualify for full-scope

Medi-Cal with federal financial participation, and who therefore are

13

entitled to the protections of the Early Periodic Screening Diagnosis

14

and Treatment provisions of the federal Medicaid Act (42 U.S.C. § 1396a(a) who have been or would have been authorized to receive

15

IHSS, and whose IHSS services will be reduced or terminated under

the provisions of ABX4 4.”

16

Plaintiffs C.R. and L.C. are typical of this subclass. 17

For Part B of the Eighth claim for relief: 18

“Children Subclass B” to be defined as “all present or future IHSS

19

recipients who are under the age of 21, who qualify for full-scope

20

Medi-Cal with federal financial participation, and who therefore are

entitled to the protections of the Early Periodic Screening Diagnosis

21

and Treatment provisions of the federal Medicaid Act, 42 U.S.C. §

1396a(a), who have received or will receive notices of action that

22

include a reduction of IHSS hours based on SB 73 or Defendants’

implementation of SB 73, including future applicants for IHSS

23

services whose notice of action will reflect reduced IHSS hours as a

24

result of SB 73 or Defendants’ implementation of SB 73.”

25 Plaintiffs C.R. and L.C. are typical of this subclass.

26

Plaintiffs further request that this Court appoint Named Plaintiffs’ counsel to serve as class

27 counsel pursuant to Federal Rule of Civil Procedure 23(g).

28

2
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR CLASS CERT; MEMO. OF PTS. AND AUTH. IN SUP., CASE NO. CV 09-04668 CW

Case4:09-cv-04668-CW Document356 Filed12/01/11 Page4 of 25

1

The Named Plaintiffs move for certification because the above-defined Plaintiff classes and

2 subclasses are so numerous that joinder would be impracticable, there are common questions of law

3 or fact among the class members and subclass members, the claims of the representative Named

4 Plaintiffs are typical of those of the class and subclasses, and the Named Plaintiffs and their counsel

5 will fairly and adequately represent the class and subclass interests. Additionally, Defendants Will

6 Lightbourne, Director of the California Department of Social Services; Toby Douglas, Director of

7 the California Department of Health Care Services; California Department of Health Care Services;

8 and California Department of Social Services have acted or refused to act on grounds applicable to

9 the entire class and subclasses, rendering declaratory and injunctive relief appropriate to the class

10 and subclasses as a whole.

11

This Motion is based on the following Memorandum of Points and Authorities, the

12 Declarations of Class Counsel Dara Schur, Anna Rich, Shawna Parks, Charles Wolfinger, and Jane

13 Perkins in Support of Plaintiffs’ Motion for Class Certification; the Declarations filed in Support of

14 Plaintiffs’ Motions to File a Third Amended Complaint, and for Temporary Restraining Order,

15 Preliminary Injunction, and Class Certification; attached exhibits; the arguments of counsel; and all

16 other relevant pleadings, briefs, and evidence.

17

18

19

20

21

22

23

24

25

26

27

28

3
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Case4:09-cv-04668-CW Document356 Filed12/01/11 Page5 of 25

1

TABLE OF CONTENTS

2

MEMORANDUM OF POINTS AND AUTHORITIES 3

I. 4

INTRODUCTION..............................................................................................................1

II. BACKGROUND ................................................................................................................1 5

A. The IHSS Program .........................................................................................................1 6

B. ABX4 4 and SB 73 Eliminated or Reduced IHSS Services for Vast Numbers of

7

IHSS Recipients. ............................................................................................................2

8 III. ARGUMENT......................................................................................................................3

9

A. Plaintiffs Meet the Standards for Certification Under Rule 23(a). ................................3

10

1. The Proposed Classes Meet the Numerosity Requirement of Rule 23(a) ...............4

11

2. There are Questions of Law and Fact Common to the Classes ...............................5

12

a. Common Issues of Fact............................................................................................6

13

b. Common Issues of Law ...........................................................................................7

14

3. The Named Plaintiffs’ Claims Are Typical of the Claims of the Class...................8

15

4. The Named Plaintiffs and Their Attorneys Will Fairly and Adequately Protect the

16

Interests of the Class ..............................................................................................10

17

a. The Named Plaintiffs’ Interests are Not Antagonistic to Those of the Class ........10

18

b. Plaintiffs’ Counsel Are Qualified to Litigate This Action.....................................10

19

B. This Case Satisfies Rule 23(b)(2) Because Defendants have Acted on Grounds

Generally Applicable to the Class, Making Final Injunctive and Declaratory

20

Relief Appropriate and Making Notice Unnecessary ..................................................11

21

C. The Court Should Designate Plaintiffs’ Counsel as Class Counsel Pursuant to

Rule 23(g)(1)................................................................................................................13

22

IV. CONCLUSION ................................................................................................................13

23

24

25

26

27

28

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Case4:09-cv-04668-CW Document356 Filed12/01/11 Page6 of 25

1

2

TABLE OF AUTHORITIES

3 Cases

4 Amchem Products v. Windsor 521 U.S. 591 (1997). ...................................................................................................................... 11
5 Capitol People First v. DDS
6 155 Cal. App. 4th 676 (2007)........................................................................................................... 6

7 Crawford v. Honig

8

37 F.3d 485 (9th Cir. 1994)........................................................................................................... 10

9 Cyrus v. Walker
233 F.R.D. 467 (S.D. W.Va. 2006) ............................................................................................ 5, 12 10

D.L. v District of Columbia

11

--F.Supp.2d --, 2011 WL 5559927 (D.D.C. 2011)........................................................................... 5

12 Darling v. Bowen
13 685 F. Supp. 1125 (W.D. Mo. 1984)................................................................................................ 4

14 Dominguez v. Schwarzenegger

15

270 F.R.D. 477 (N.D. Cal. 2010) ..................................................................................................... 5

16 Elliott v. Weinberger 564 F.2d 1219 (9th Cir. 1977)........................................................................................................ 11
17 Gen. Tel. Co. of SW v. Falcon
18 457 U.S. 147 (1982) ..................................................................................................................... 5, 8

19 Gulf Oil Co. v. Bernard 20 425 U.S. 89 (1981) ........................................................................................................................... 3

21 Hanlon v. Chrysler Corp. 150 F.3d 1011 (9th Cir. 1998)...................................................................................................... 5, 9
22
23 Harris v. Palm Springs Alpine Estates 329 F.2d 909 (9th Cir. 1964)............................................................................................................ 4
24 Hernandez v. Medows
25 209 F.R.D. 665 (S.D. Fla. 2002) ...................................................................................................... 6

26 Hum v. Dericks 27 162 F.R.D. 628 (D.Hawai’i 1995).................................................................................................... 9

28 In re MDC Holdings Securities Litig. 754 F. Supp 785 (S.D. Cal. 1990). ................................................................................................. 10
ii
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Case4:09-cv-04668-CW Document356 Filed12/01/11 Page7 of 25

1 Jordan v. County of Los Angeles
2 669 F.2d 1311 (9th Cir. 1982)........................................................................................................... 4
3 Lopez v. Heckler 4 572 F. Supp. 26 (C.D. Cal. 1983),.................................................................................................. 10

5 Lynch v Rank 605 F. Supp. 30 (N.D. Cal. 1984)..................................................................................................... 4
6

7

M.A.C. v. Betit 284 F. Supp. 2d. 1298 (D. Utah, 2003) .......................................................................................... 12

8 Miller v. Woods
9 148 Cal.App.3d 862 (1983).............................................................................................................. 1

10 Navarro-Ayala v. Hernandez-Colon 11 951 F.2d 1325 (1st Cir. 1991). ....................................................................................................... 12
12 Perez-Funez v. District Dir. 611 F.Supp. 990 (C.D. Cal. 1984).................................................................................................... 4
13 Rancourt v. Concannon
14 207 F.R.D. 14 (D.Maine, 2002) ....................................................................................................... 9
15 Risinger v. Concannon
16 201 F.R.D. 16 (D. Me. 2001) ........................................................................................................... 5

17 Rodriguez v. Hayes 591 F.3d 1105 (9th Cir. 2010).......................................................................................... 4, 9, 10, 12
18
19 Romero v. Producers Dairy Food Inc. 235 F.R.D. 474 (E.D. Cal. 2006)...................................................................................................... 5
20 Ryan v. Dreyfus
21 2009 WL 2914139 (W.D. Wash. 2009) ........................................................................................... 6
22 Wal-Mart v. Dukes 23 131 S. Ct. 2541 (2011) ........................................................................................................... 4, 5, 12

24 Walter v. Reno 145 F.3d 1032 (9th Cir. 1998) ......................................................................................................... 12
25

26

27

28

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Case4:09-cv-04668-CW Document356 Filed12/01/11 Page8 of 25

1 Federal Statute

2

29 U.S.C. § 794 ......................................................................................................................... 1, 7

42 U.S.C. § 12132 ..................................................................................................................... 1, 7

3

42 U.S.C. § 1396a et seq. .............................................................................................................. 1

4

42 U.S.C. §§ 12131 et seq ............................................................................................................. 1

Federal Rules 5

Fed. R. Civ. P. 23(a) ............................................................................................................. passim

6

Fed. R. Civ. P. 23(a)(1). ................................................................................................................ 4

7

Fed. R. Civ. P. 23(a)(4) ..................................................................................................... 9, 10, 11

Fed. R. Civ. P. 23(b).................................................................................................................... 11

8

Fed. R. Civ. P. 23(g)(1) ......................................................................................................... 12, 13

9 California Legislation

10

ABX4 4................................................................................................................................. passim

11

SB73 ..................................................................................................................................... passim

California Welfare & Institutions Code 12

13

12051 ............................................................................................................................................. 2 12052 ............................................................................................................................................. 2

14

12300(a)..................................................................................................................................... 2, 8

12300(b) & (c) ............................................................................................................................... 2

15

12301.07 .............................................................................................................................. 3, 8, 14

12309 ............................................................................................................................... 3, 7, 9, 14

16

12309.2 ............................................................................................................................ 3, 7, 9, 14

17

14051 ............................................................................................................................................. 2 14105 ................................................................................................................................... 3, 8, 14

18

14132.95(d)(1), (2) ........................................................................................................................ 2

14132.951(c).................................................................................................................................. 2

19

4792 ..................................................................................................................................... 3, 8, 14

20 California Regulations

21

California Department of Social Services Manual of Policies and Procedures § 30-700.1 .......... 6

22

23

24

25

26

27

28

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Case4:09-cv-04668-CW Document356 Filed12/01/11 Page9 of 25

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION

3 The Named Plaintiffs represent two prospective classes of hundreds of thousands of low-
4 income seniors and other people with disabilities throughout California who are threatened with the
5 loss of critical In-Home Supportive Services (IHSS) services that enable them to remain safely in
6 their homes. They move for an order certifying this case as a class action pursuant to Rule 23 of the
7 Federal Rules of Civil Procedure.
8 Plaintiffs seek declaratory and injunctive relief to enforce (1) the procedural due process
9 rights of prospective class members guaranteed to them by the Fourteenth Amendment of the United
10 States Constitution; (2) the requirements of Title XIX of the Social Security Act, 42 U.S.C. § 1396a
11 et seq. (“the Medicaid Act”); and (3) the integration mandate and other anti-discrimination
12 provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (“ADA”) and Section
13 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”).
14 This action readily satisfies the requirements for class certification under Rule 23(a) and the
15 requirements of Rule 23(b)(2). First, there are in excess of 130,000 people in Class A, and 300,000
16 people in Class B, and the subclasses each have thousands of members. Second, members of the
17 proposed class and subclasses share common issues of fact and law. Third, the Named Plaintiffs are
18 typical of the classes because they are threatened with the loss or reduction of IHSS benefits by the
19 same statutes and policies of Defendants. Fourth, Named Plaintiffs are adequate class
20 representatives with experienced class action counsel. Finally, this case is appropriate for
21 certification under Rule 23(b)(2) because the class has been subjected to a common set of practices
22 for which plaintiffs seek only injunctive and declaratory relief.
23 II. BACKGROUND
24 A. The IHSS Program
25

26

The purpose of the IHSS program is “to enable the aged, blind or disabled poor to avoid

27 institutionalization by remaining in their homes with proper supportive services.” Miller v. Woods,

28 148 Cal.App.3d 862, 867 (1983); See also California Welfare and Institutions Code (“Welf. & Inst.

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1 Code”) § 12300(a) (IHSS provides services to those who in the absence of these services “cannot

2 safely remain in their homes . . .”). People eligible for this program must be aged 65 or over, blind,

3 or disabled, and must also be poor under standards of the federal Supplemental Security

4 Income/State Supplemental Payment Program. Welf. & Inst. Code §§ 12051, 12052, 14051, Third

5 Amended Class Action Complaint for Injunctive and Declaratory Relief (“Third Am. Complaint”) ¶

6 32.

7

IHSS services, provided in the recipients’ home, include (1) domestic services; (2) related

8 services (meal preparation and clean-up, restaurant meal allowance, laundry, and food and other

9 shopping); (3) personal care services (bowel and bladder care, respiration, feeding, routine bed

10 baths, bathing, oral hygiene and grooming, dressing, repositioning and rubbing skin, including range

11 of motion exercises), transfers, care and assistance with prosthetic devices, assistance with self-

12 administration of medication, routine menstrual care, skin care, and ambulation); (4) travel to

13 medical appointments; (5) yard hazard abatement; (6) protective supervision; (7) teaching and

14 demonstration services, and (8) paramedical services. Welf. & Inst. Code §§ 12300(b) & (c);

15 14132.95(d)(1), (2); 14132.951(c). Most IHSS services are provided through California’s Medicaid

16 program (“Medi-Cal”). Third Am. Complaint ¶ 33.

17

B. ABX4 4 and SB 73 Eliminated or Reduced IHSS Services for Vast Numbers of IHSS

Recipients.

18

ABX4 4, effective July 28, 2009, amended Welf. & Inst. Code § 12309 and added § 12309.2

19

to terminate or reduce IHSS services based on measures called functional rankings and composite

20

Functional Index scores. These statutes eliminate Domestic and Related Services for all IHSS

21

recipients who have been assessed to have a Functional Index Rank of below 4 for a particular

22

domestic or related service and terminate all IHSS services for recipients with a composite

23

Functional Index Score of below 2.0. Stats. 2009, c. 4, § 29 (Part II) (amending Welf. & Inst. Code

24

§§ 12309(e)(1)) and id., § 30 (Part II) (adding Welf. & Inst. Code §12309.2(a)(1)). The California

25

Department of Social Services estimated that 38,000 Californians would lose all IHSS services and

26

97,000 will lose domestic and related services. CDSS Press Release, September 18, 2009, Exh. F to

27

Kline Decl., Docket Number 031.

28

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1

On June 30, 2011, the Governor signed into law SB 73, which amended the California Welf.

2 & Inst. Code by adding §§ 4792, 12301.07, and 14105, which, if certain revenue targets are not met,

3 will reduce the IHSS hours of most recipients by 20%, effective January 1, 2012. Certain people

4 who receive Medi-Cal waiver services will be exempt from the cut, and others can apply for an IHSS

5 “care supplement” for restoration of reduced hours based on their functional index ranks. Third Am.

6 Complaint ¶¶106-135.

7

Functional index ranks and scores do not measure the safety risk of reducing or eliminating

8 services; furthermore, these ranks and scores have never even been sent to IHSS recipients, so

9 recipients have never before had the opportunity to challenge their accuracy. In particular, as county

10 officials responsible for IHSS programs attest, FI scores were not designed to measure need or

11 eligibility and have never been used for such purposes, and FI ranks are not predictors of risk of out-

12 of-home placement and have never been used for such purposes. Collins Decl. ¶ 27 Docket 065

13 (county social workers “do not use the composite FI scores for any reason.”); Crockett Decl. ¶¶ 4, 8,

14 15-16 Docket 067 (people with relatively low FI ranks of 2 or 3 nonetheless can be at risk of out-of-

15 home placement, and functional index scores were intended for use only to ensure uniformity of

16 services); Kaljian Decl. ¶ 6 Docket 078 (FI score not an eligibility standard); Third Kaljian Decl. ¶¶

17 15-16 (care supplement eligibility depends on functional index ranks, which do not accurately reflect

18 clients’ risk of out-of-home placement); Nicco Decl. ¶ 20 Docket 080 (no one has ever used

19 functional index ranks or scores for any purpose); Calame Decl., ¶ 6 Docket 064 (“completely

20 arbitrary”); Frances Smith Decl. ¶¶ 15-16 (functional index ranks do not reflect risk of out-of-home

21 placement); Second Decl. Marconi ¶¶ 14-22 (functional index ranks were intended to be used for

22 purposes of standardization and are not an accurate reflection of individuals’ risk of out-of-home

23 placement).

24

III. ARGUMENT

25

A. Plaintiffs Meet the Standards for Certification Under Rule 23(a).

26

“Class actions serve an important function in our system of civil justice.” Gulf Oil Co. v.

27 Bernard, 425 U.S. 89, 99 (1981). Rule 23(a) of the Federal Rules of Civil Procedure allows an

28 action to be maintained as a class action provided that it meets four conditions: “(1) the class is so

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1 numerous that joinder is impracticable; (2) there are questions of law or fact common to the class;

2 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the

3 class; and (4) the representative parties will fairly and adequately protect the interests of the class.”

4 Fed. R. Civ. P. 23(a). See Wal-Mart v. Dukes, 131 S. Ct. 2541, 2548 (2011); Rodriguez v. Hayes,

5 591 F.3d 1105 (9th Cir. 2010). As shown below, the proposed class here easily satisfies all of the

6 requirements of Rule 23(a).

7

1. The Proposed Classes Meet the Numerosity Requirement of Rule

23(a)

8

A class action may be maintained only if “the class is so numerous that the joinder of all

9

parties is impracticable.” Fed. R. Civ. P. 23(a) (1). Impracticability addresses the expense and

10

burden, to the parties and the court, of litigating each claim individually, rendering the case difficult

11

or inconvenient without joining all members of the class. Harris v. Palm Springs Alpine Estates,

12

329 F.2d 909, 913-14 (9th Cir. 1964). Courts in the Ninth Circuit have found that classes of far

13

fewer than 100 members are sufficiently numerous to render joinder impracticable. Perez-Funez v.

14

District Dir., 611 F. Supp. 990, 995 (C.D. Cal. 1984) (“Classes consisting of 25 members have been

15

held large enough to justify certification. [citation omitted]”).

16

In this case, there are more than 130,000 people in Class A, 300,000 people in Class B, and

17

thousands or tens of thousands of people in each of the subclasses. Third Am. Complaint ¶ 225.

18

Additionally, the Class and Subclass members are elderly and have serious disabilities, making their

19

participation as individual joined plaintiffs onerous or impossible. See Darling v. Bowen, 685 F.

20

Supp. 1125, 1127 (W.D. Mo. 1984). Further, the members of the class, as Medi-Cal recipients with

21

low incomes, are “by definition poor and disabled and do not have the economic means to pursue

22

remedies on an individual basis.” Lynch v Rank, 605 F. Supp. 30, 36 (N.D. Cal. 1984), aff’d, 747

23 F.2d 528 (9th Cir. 1984). Accordingly, this case is well suited for class-based litigation of the

24 declaratory and injunctive relief sought. Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 (9th

25

Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982). Plaintiffs meet the numerosity

26

requirement of Rule 23(a)(1).

27

28

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1

2. There are Questions of Law and Fact Common to the Classes

2

Fed. R. Civ. P. 23(a)(2) requires that there be “questions of law or fact common to the class.”

3 Even a single common question suffices. Wal-Mart v. Dukes, 131 S. Ct. at 2556; Romero v.

4 Producers Dairy Food Inc., 235 F.R.D. 474, 485 (E.D. Cal. 2006) (“All questions of fact and law

5 need not be common to satisfy the rule. Rather, “[t]he existence of shared legal issues with

6 divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate

7 legal remedies within the class.” [citations omitted]); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019

8 (9th Cir. 1998).

9

A class action is particularly appropriate when claims rise from a common contention that is

10 capable of class-wide resolution. Wal-Mart, 131 S. Ct. at 2558 . That is clearly true here, where

11 Plaintiffs ask the court to decide whether Defendants’ implementation of ABX4-4 and SB 73

12 violates the Medicaid Act, the Due Process Clause of the Constitution, and the ADA as to all class

13 members. Further, class actions should be certified when they “turn on questions of law applicable

14 in the same manner to each member of the class,” Gen. Tel. Co. of SW v. Falcon, 457 U.S. 147, 155

15 (1982). “[C]ommonality is satisfied where the lawsuit challenges a system-wide practice or policy

16 that affects all of the putative members” Dominguez v. Schwarzenegger, 270 F.R.D. 477, 485 (N.D.

17 Cal. 2010). The “claims must depend upon a common contention…of such a nature that it is capable

18 of classwide resolution…” Wal-Mart, 131 S.Ct. at 2551.

19

Class actions are frequently certified in cases similar to this one, including those that allege

20 violation of constitutional due process, the Medicaid Act, the ADA, or Section 504. Dominguez ,

21 270 F.R.D. at 477 (finding commonality in a class action addressing violation of Medicaid Act,

22 Americans with Disabilities Act, and Rehabilitation Act rights of IHSS recipients); Cyrus v. Walker,

23 233 F.R.D. 467 (S.D. W.Va. 2006) (certifying class in a case alleging that changes in Medicaid

24 home and community-based services eligibility determination processes led to termination of

25 benefits in violation of due process); D.L. v District of Columbia, --F.Supp.2d --, 2011 WL 5559927

26 (D.D.C. 2011) (plaintiff class of preschool children with disabilities survived defendant’s motion to

27 decertify their class in light of the Supreme Court’s recent decision in Wal-Mart v. Dukes, supra.);

28 Risinger v. Concannon, 201 F.R.D. 16, 19 (D. Me. 2001) (finding commonality where plaintiffs

5
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1 alleged that defendant’s provision of services violated Medicaid EPSDT requirements); Ryan v.

2 Dreyfus, 2009 WL 2914139 (W.D. Wash. 2009) (certifying class of Medicaid recipients with

3 disabilities seeking injunction relief on ADA and Due Process grounds against elimination of Adult

4 Day Health Care services); Hernandez v. Medows, 209 F.R.D. 665, 669 (S.D. Fla. 2002) (certifying

5 class of Medicaid beneficiaries, noting that “factual differences between class members do not

6 preclude a finding of commonality, as long as common questions of law exist.”); See generally,

7 Capitol People First v. DDS 155 Cal. App. 4th 676 (2007) (reversing a trial court and ordering

8 certification of a class in a case alleging that unnecessary institutionalization violated the Medicaid

9 Act, the ADA, and other laws).

10

Welf. & Inst. Code §§ 12309(e) and 12309.2, as a result of ABX4-4, will adversely affect

11 members of Class A by terminating or reducing their IHSS services. Welf. & Inst. Code §§ 4792,

12 12301.07, and 14105, as a result of SB 73, will adversely affect members of Class B by reducing

13 their IHSS services. While the ultimate effect of the termination or reduction on each individual

14 class member may be different, the legality of defendant’s practice or policies is a question common

15 to the class. Hernandez v. Medows, supra.

16

a. Common Issues of Fact

17

The common issues of fact include the following:

18

(1) Class A members and Class B members have been receiving IHSS services after their

19 county has found, using criteria developed by the state, that they need these services in order to live

20 safely at home. Welf. & Inst. Code § 12300(a); Third Am. Complaint ¶¶ 38-41; California

21 Department of Social Services Manual of Policies and Procedures § 30-700.1 (“Services shall be

22 authorized only [where] Social services staff of the designated county department has had a face-to-

23 face contact with the recipient in the recipient’s home at least once within the past 12 months . . . and

24 has determined that the recipient would not be able to remain safely in his/her own home without

25 IHSS [and] [p]erformance of the service by the recipient would constitute such a threat to his/her

26 health/safety that he/she would be unable to remain in his/her own home”); Altman Decl. ¶¶ 3-5

27 Docket 062; Castro Decl. ¶¶ 5-10 Docket 066; Goldberg Decl. ¶¶ 3 Docket 071; Guerro Decl. ¶¶ 12-

28 15 Docket 073; Hathaway Decl. ¶ 16 Docket 074; Nicco Decl. ¶¶ 5, 11-12 Docket 080; Collins Decl.

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1 ¶¶ 10-12 Docket 065; Second Decl. Marconi ¶ 17; Second Decl. Good ¶ 6.

2

(2) Prior to the enactment of ABX4 4, and of SB 73, Class A members and Class B

3 members were not informed of their Functional Index Ranks or of their composite Functional Index

4 Scores. Amended Complaint ¶¶ 66, 85; Baran Decl. ¶ 9 Docket 063; Aho Decl. ¶ 9 Docket 042;

5 Bean Decl. ¶¶ 5-6 Docket Docket 045; Drass Decl. ¶ 3 Docket 068; Guerra Decl. ¶ 11 Docket 073;

6 Good Decl. ¶ 9; F.H. Decl. ¶ 3 Docket 050; Hylton Decl. ¶ 7 Docket Docket 052; Janson Decl. ¶ 3

7 Docket 054; Lagahid Decl.¶ 9 Docket 122; Mandel Decl. ¶ 5 Docket 056; Oster Decl. ¶ 5 Docket

8 035; Worden Decl. ¶ 7 Docket 060; Thurman Decl. ¶ 31; Decl. Stern Decl. ¶ 26; Hylton Decl. ¶ 21.

9

(3) All Class A members and Class B members will be provided only 10 to 15 days of

10 notice prior to reduction of termination of their IHSS services and the notice is not readily

11 understandable. Third Am. Complaint ¶ 100.

12

(4) All Class A members and Class B members will have their IHSS services terminated

13 or reduced. Amended Complaint ¶ 148; Cal. Welf. & Inst. Code §§ 12309 & 12309.2.

14

Because the issue of Defendants’ compliance with the federal statutes is common to all class

15 members, the commonality requirement has been satisfied.

16

b. Common Issues of Law

17

Among the common issues of law for the entire class are:

18

(1) Whether Defendants are violating Plaintiffs’ rights arising from the federal

19 constitutional guarantee of procedural due process and provisions of the Medicaid Act by failing to

20 provide adequate notice and opportunity for hearing prior to depriving members of the Plaintiff

21 classes of critical IHSS services;

22

(2) Whether Defendants are violating the Medicaid Act by failing to provide (a)

23 comparable Medicaid services to individuals with similar needs; (b) services according to reasonable

24 standards; and (c) services sufficient to meet the purposes of IHSS;

25

(3) Whether Defendants are violating the integration mandate of the Americans with

26 Disabilities Act of 1990, 42 U.S.C. § 12132 (“ADA”), and Section 504 of the Rehabilitation Act of

27 1973, 29 U.S.C. § 794 (“Section 504”), by reducing or terminating IHSS for Class A members and

28

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1 Class B members, thus placing them at imminent risk of being segregated and confined

2 unnecessarily in institutional settings in order to receive services; and

3

(4) Whether Defendants are violating the ADA and Section 504 by cutting IHSS benefits

4 in a manner that discriminates or has the effect of discriminating against Class A members and Class

5 B members based on the type of disability, or by using methods of administration that exclude

6 individuals with disabilities from IHSS.

7

The above issues are common to all class members, including those in subclasses. In

8 addition, the following are common issues of law regarding the subclasses:

9

(1) For the “Loss of Domestic and Related Services Subclass A,” whether Defendants are

10 violating the sufficiency provisions of the Medicaid Act by terminating IHSS domestic and related

11 services to individuals for whom such services have been deemed necessary pursuant to an

12 individual service plan approved by the state;

13

(2) For the “Children Subclasses A,” whether Defendants are violating the Medicaid

14 Act’s Early and Periodic Screening, Diagnosis and Treatment (EPSDT) requirements by failing to

15 assure that children obtain the full range of personal care services necessary to correct or ameliorate

16 their physical and mental conditions, including services that could replace lost IHSS; and

17

(3) For the “Children Subclass B,” whether Defendants are violating the Medicaid Act’s

18 Early and Periodical Screening, Diagnosis and Treatment requirements by failing to assure that

19 children obtain the full range of personal care services necessary to correct or ameliorate their

20 physical and mental conditions, including services that could replace lost IHSS.

21

3. The Named Plaintiffs’ Claims Are Typical of the Claims of the

Class 22

23

The claims of the Named Plaintiffs who represent the class must be typical of the class

24 claims. Fed. R. Civ. P. 23(a)(3). “A class representative must be part of the class and possess the

25 same interest and suffer the same injury as the class members.” General Telephone Co., 457 U.S.

26 147, 156 (1982) (citations omitted). The primary purpose of the typicality requirement is to ensure

27 that the nature of the claims brought by the class representative are so interrelated that the interests

28 of the class members will be fairly and adequately protected in their absence. Id. at 157-158. “In

8
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1 government benefit class actions, the typically requirement is met when the representative plaintiff is

2 subject to the same statute, regulation or policy as class members.” Rancourt v. Concannon, 207

3 F.R.D. 14, 16 (D.Maine, 2002) Citing 5 Newberg section 23:04. “[A] named plaintiff’s claim is

4 typical if it stems from the same event, practice or course of conduct that forms the basis of the class

5 claims and is based upon the same legal or remedial theory.” Hum v. Dericks, 162 F.R.D. 628

6 (D.Hawai’I 1995); See also Rodriguez, 591 F.3d at 1124.

7

Here, the claims of the Named Plaintiffs in Class A mirror those of the members of Class A,

8 and the claims of the Named Plaintiffs in Class B mirror those of Class B. Each Named Plaintiff is

9 a recipient of IHSS; each faces unlawful acts by Defendants: termination or reduction of the IHSS

10 services that allow him or her to remain safely at home; and each Named Plaintiff, like the proposed

11 class as a whole, claims that Defendants’ practices violate his or her rights under the federal

12 constitution and statutes. Named Plaintiffs David Oster, Willie Beatrice Sheppard, Dottie Jones,

13 C.R., L.C., and Charles Thurman have claims that are typical of Class A related to the termination or

14 reduction of their services based on ABX 4-4. Jones Decl. (Dkt. 39) ¶ 3; Third Jones Decl. Ex. A;

15 Oster Decl. (Dkt. 35) ¶ 5; Second Oster Decl. (Dkt. 146) ¶ 6; Thurman Decl., Ex. A; M.G. Decl. ¶ 17

16 & Ex. A (L.C. has ranks below 4 for all domestic and related services, and her FI score is 1.37),

17 M.R. Decl. (Dkt. 38) ¶ 8 (C.R. has FI score of 1.97), Third M.R. Decl., Ex. A. Named Plaintiffs

18 David Oster, Willie Beatrice Sheppard, Dottie Jones, C.R., Andrea Hylton, Helen Polly Stern, L.C.,

19 and Charles Thurman have claims that are typical of Class B in that they suffer the risk of reduction

20 in their services based on SB 73. Third Jones Decl. ¶ 2; Oster Decl. ¶¶ 3, 7; Stern Decl. ¶ 3;

21 Thurman Decl. ¶¶ 2-3; M.G. Decl. ¶ 12 (L.C. will lose 11.6 hours under SB73); Second Hylton Decl.

22 ¶ 8 & Ex. A (would lose 9.05 hours with a 20 percent reduction in hours). See Common Issues of

23 Law, section III.A.2.b, and Common Issues of Fact above, section III.A.2.a., for more information

24 about their claims and the claims of the subclass members. Finally, the Named Plaintiffs seek the

25 same relief as all class members. Amended Complaint ¶ 227.

26

Hence, the requirements of Rule 23(a)(3) are met for both the proposed classes and the

27 proposed subclasses.

28

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1

4. The Named Plaintiffs and Their Attorneys Will Fairly and

Adequately Protect the Interests of the Class

2

3

The final requirement of Rule 23(a) is that the representative parties must “fairly and

4 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy of

5 representation requirement is two-fold: (1) the proposed class representatives must not have conflicts

6 of interest with the proposed class, and (2) they must have qualified and competent counsel. See

7 Hanlon, 150 F.3d at 1020. Because the Named Plaintiffs have no interests that conflict with or are

8 antagonistic to those of the class, and their counsel are qualified, Plaintiffs meet this requirement as

9 well.

10

a. The Named Plaintiffs’ Interests are Not Antagonistic to

Those of the Class

11

12

The class representatives do not have any interests that are antagonistic to the interests of the

13 class or subclasses because they share the same interests and this lawsuit is not collusive. Crawford

14 v. Honig, 37 F.3d 485, 487 (9th Cir. 1994); Rodriguez, 591 F.3d 1105.

15

Here, as discussed above, the Named Plaintiffs’ claims and their loss of IHSS services are

16 typical of the claims of the proposed class and subclass members. None of the Named Plaintiffs

17 seeks personal damages or other individualized relief to the exclusion of other class members. To

18 the contrary, the focus of this litigation is the grant of broad injunctive and declaratory relief that will

19 benefit the entire class. No conflicts exist that could hinder the Named Plaintiffs’ ability to pursue

20 the litigation vigorously on behalf of the class. They will fairly and adequately protect the interests

21 of the class.

22

b. Plaintiffs’ Counsel Are Qualified to Litigate This Action

23

Fed. R. Civ. P. 23(a)(4) also requires that the proposed class representatives be able to

24 prosecute the action vigorously through qualified counsel. In re MDC Holdings Securities Litig.,

25 754 F. Supp. 785, 802 (S.D. Cal. 1990). It has been recognized that public interest attorneys with

26 experience in protecting the interests of the poor adequately represent class interests. See, e.g.,

27 Lopez v. Heckler, 572 F. Supp. 26, 31 (C.D. Cal. 1983), modified on other grounds, 725 F.2d 1489

28 (9th Cir.), vacated and remanded on other grounds, 469 U.S. 1082 (1984).

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1

Lead counsel for the class is Melinda Bird with Disability Rights California, who has been

2 involved in public interest class action cases for more than twenty-five years. Ms. Bird is teamed

3 with other highly experienced lawyers from Disability Rights California, as well as highly

4 experienced lawyers from Disability Rights Legal Center, the National Senior Citizens Law Center,

5 the National Health Law Project, and Charles Wolfinger, a lawyer with specialized expertise

6 regarding California’s In-Home Supportive Services programs. Collectively, these long-established

7 public interest firms and attorneys have decades of extensive experience in litigation of federal class

8 actions involving disability and health programs, including representation of classes at the trial and

9 appellate levels. They include some of the most experienced lawyers in the nation and the state on

10 public benefits and Medicaid, disability discrimination, and In-Home Supportive Services issues.

11 Second Declaration of Schur in Support of Plaintiffs’ Motion for Class Certification; Declarations of

12 Perkins (Docket 029), Rich (Docket 026), Parks (Docket 030), and Wolfinger (Docket 027) in

13 Support of Plaintiffs’ Motion for Class Certification, and resumes attached thereto. The resources

14 and experiences of proposed class counsel are more than adequate to represent the class

15 competently.

16

Additionally, no conflicts exist between counsel, Named Plaintiffs, and the proposed class

17 members that would compromise their ability to represent the class.

18

In summary, the Named Plaintiffs satisfy the adequacy of representation requirement under

19 Rule 23(a)(4) both with respect to their interests and their choice of counsel.

20

B. This Case Satisfies Rule 23(b)(2) Because Defendants have Acted on Grounds

21

Generally Applicable to the Class, Making Final Injunctive and Declaratory

Relief Appropriate and Making Notice Unnecessary

22 In addition to the four requirements of Rule 23(a), the Named Plaintiffs also must satisfy the

23 requirements contained in one of the subdivisions of Rule 23(b). In this case they satisfy Rule

24 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds

25 generally applicable to the class, thereby making appropriate final injunctive relief or corresponding

26 declaratory relief with respect to the class as a whole . . .” In interpreting this requirement, courts

27 have held that where the primary purpose in bringing the action is to seek injunctive relief, the action

28

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1 is properly certifiable under Rule 23(b)(2). Elliott v. Weinberger, 564 F.2d 1219, 1228 (9th Cir.

2 1977) aff’d in relevant part, rev’d in part, 442 U.S. 682, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979).

3 Civil rights cases against parties charged with class-based discrimination are “prime examples” of

4 actions under Rule 23(b)(2). Amchem Products v. Windsor, 521 U.S. 591, 614 (1997). For example,

5 the Ninth Circuit has held that class determination under Rule 23(b)(2) is appropriate when “class

6 members complain of a pattern or practice that is generally applicable to the class as a

7 whole…[e]ven if some class members have not been injured by the challenged practice….” Walter 8 v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998). Rule 23(b)(2) “does not require us to examine the

9 viability or bases of class members’ claims for declaratory and injunctive relief, but only to look at

10 whether class members seek uniform relief from a practice applicable to all of them.” Rodriguez,

11 591 F.3d at1125. See also Cyrus, 233 F.R.D. at 467 (certifying class in a case alleging that changes

12 in Medicaid home and community based services eligibility determination processes led to

13 termination of benefits in violation of due process.); M.A.C. v. Betit 284 F. Supp. 2d. 1298 (D. Utah,

14 2003) (certifying class of disabled Medicaid recipients challenging the denial of Medicaid waiver

15 services as a violation of the Medicaid Act and the integration mandate of the ADA). Unlike the

16 plaintiffs in Wal-Mart, 131 S.Ct. 2541, 2547, plaintiffs herein seek exclusively injunctive and

17 declaratory relief, not monetary damages or compensation.

18

This case is exemplary of a Rule 23(b)(2) action because Defendants’ enforcement of Welf.

19 & Inst. Code §§ 12309(e)(1) and 12309.2(a)(1) affects all members of the Class A as well as the

20 Named Plaintiffs, and Welf. & Inst. Code §§ 4792, 12301.07, and 14105 affect all members of Class

21 B, and because Plaintiffs seek only declaratory and injunctive relief. Defendants’ violations of

22 federal law have equal application to all class members, as all class members are people with

23 disabilities who receive IHSS services.

24

Class-wide final injunctive and declaratory relief is appropriate to facilitate enforcement of

25 judgments. Given that the Plaintiffs seek only declaratory and injunctive relief, and the granting of

26 such relief is appropriate with respect to the class as a whole to remedy Defendants’ discriminatory

27 actions, Rule 23(b)(2) is satisfied in this case.

28

12
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1

Because Plaintiffs seek to certify a class under Rule 23(b)(2), notice is not required. Fed. R.

2 Civ. P. 23(c)(2)(A). Navarro-Ayala v. Hernandez-Colon, 951 F.2d 1325, 1336-37 (1st Cir. 1991).

3 Wal-Mart v. Dukes, 131 S. Ct. at 2558.

4

C. The Court Should Designate Plaintiffs’ Counsel as Class Counsel Pursuant to

Rule 23(g)(1).

5

6

When a class is certified, the court must appoint class counsel (Fed. R. Civ. P. 23(g)(1)), and

7 the class certification order must list these counsel. Fed. R. Civ. P. 23(c)(1)(B). The court considers

8 four factors in appointing class counsel:

9

(i) the work counsel has done in identifying or investigation potential claims

in the action;

10

(ii) counsel’s experience in handling class actions, other complex litigation

and the types of claims asserted in the action;

11

(iii) counsel’s knowledge of the applicable law; and

12

(iv) the resources that counsel will commit to representing the class.

13

Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv).

14

Pursuant to these four factors, Plaintiffs’ counsel qualify for appointment in this case. As

15 reflected in the Third Am. Complaint and Plaintiffs’ concurrently filed Motions for Temporary

16 Restraining Order and Preliminary Injunction, Plaintiffs’ counsel has committed extensive time and

17 resources to investigating and analyzing Plaintiffs’ claims. Counsel is very experienced in class

18 actions and complex litigation and has extensive knowledge of discrimination and benefits law.

19 Second Declaration of Schur in Support of Plaintiffs’ Motion for Class Certification; Declarations of

20 Perkins (Docket 029), Rich (Docket 026), Parks (Docket 030), and Wolfinger (Docket 027) in

21 Support of Plaintiffs’ Motion for Class Certification. The Court should appoint Plaintiffs’ counsel as

22 class counsel in its class certification order.

23

IV. CONCLUSION

24

For the reasons stated above, the Named Plaintiffs have satisfied all of the requirements of

25 Rule 23(a) and Rule 23(b)(2) with respect to the proposed defined class, and Rule 23(g)(1) as to

26 appointment of class counsel. Plaintiffs respectfully request that this Court:

27

1) Certify this case as a Rule 23(b)(2) class action;

28

13
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1

2) For the Part A of the First, Second, Third, Fourth, Fifth, and Seventh Claims for Relief,

2 define Class A as:

3

All recipients of IHSS in the State of California whose IHSS services

will be limited, cut, or terminated under the provisions of ABX4 4, and

4

all applicants to IHSS in the State of California who would have been

5

eligible for IHSS services but who are either not eligible, or are eligible for fewer services, as a result of ABX 4 4 (hereinafter “Class

6

A”).

7

3) For the First, Second, Third, Fourth, Fifth, Sixth, and Seventh, claims for relief, define

8 Class B as

9

All recipients of IHSS in the State of California who have received or will

10

receive notices of action that include a reduction of IHSS hours based on

11

SB 73 or Defendants’ implementation of SB 73, including future applicants for IHSS services whose notice of action will reflect reduced

12

IHSS hours as a result of SB 73 or Defendants’ implementation of SB 73

(hereinafter the “Class B”).

13

4) For Part A of the Sixth claim for relief, define the “Loss of Domestic and Related 14

Services Subclass A as 15

All present and future IHSS recipients and applicants who have been or

16

would have been authorized to receive domestic and/or related IHSS, and

17

whose IHSS will be reduced to eliminate some or all of their domestic

and/or related services under the provisions of ABX4 4.

18

5) For Part A of the Eighth claim for relief, define the “Children Subclass A” as

19

All present or future IHSS recipients who are under the age of 21, who

20

qualify for full-scope Medi-Cal with federal financial participation, and

who therefore are entitled to the protections of the Early Periodic

21

Screening Diagnosis and Treatment provisions of the federal Medicaid

22

Act, 42 U.S.C. § 1396a(a), who have been or would have been authorized

to receive IHSS, and whose IHSS services will be reduced or terminated

23

under the provisions of ABX4 4.

24

6) For Part B of the Eighth claim for relief, define the “Children Subclass B” as

25

All present or future IHSS recipients who are under the age of 21, who

qualify for full-scope Medi-Cal with federal financial participation, and

26

who therefore are entitled to the protections of the Early Periodic

27

Screening Diagnosis and Treatment provisions of the federal Medicaid

Act, 42 U.S.C. § 1396a(a), who have received or will receive notices of

28

action that include a reduction of IHSS hours based on SB 73 or

14
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1

Defendants’ implementation of SB 73, including future applicants for

IHSS services whose notice of action will reflect reduced IHSS hours as a

2

result of SB 73 or Defendants’ implementation of SB 73.

3

7) Appoint Named Plaintiffs David Oster, Willie Beatrice Sheppard, C.R., Dottie Jones, L.C.,

4 and Charles Thurman as class representatives for Class A, and Named Plaintiffs David Oster, Willie

5 Beatrice Sheppard, C.R., Dottie Jones, Andrea Hylton, Helen Polly Stern, L.C., and Charles

6 Thurman as class representatives for Class B; appoint Named Plaintiffs Dottie Jones, Willie Beatrice

7 Sheppard, and Charles Thurman as class representatives for Loss of Domestic and Related Services

8 Subclass A; appoint Named Plaintiffs C.R. and L.P. as class representatives for Children Subclass A

9 and Children Subclass B.

10

8) Appoint Plaintiffs’ counsel to serve as class counsel; and

11

9) Dispense with any requirement for Plaintiffs to give notice to absent class members at this

12 stage of the litigation.

13

14 Date: November 30, 2011

Respectfully submitted,

15

/s/

16

________________________________________

17

SUJATHA JAGADEESH BRANCH (SBN 166259) DISABILITY RIGHTS CALIFORNIA

18

SACRAMENTO REGIONAL OFFICE

1831 K Street

19

Sacramento, CA 95811-4114

916-504-5800

20

Fax 916-504-5801

21

Sujatha.branch@disabilityrightsca.org

22

MELINDA BIRD (SBN 102236)

23

MARILYN HOLLE (SBN 61530)

DISABILITY RIGHTS CALIFORNIA

24

LOS ANGELES REGIONAL OFFICE

25

3580 Wilshire Blvd., Ste. 902

Los Angeles, CA 90010

26

Telephone: (213) 427-8747

Facsimile: (213) 427-8767

27

Melinda.bird@disabilityrightsca.org

marilyn.holle@disabilityrightsca.org 28

15
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1

DARA L. SCHUR (SBN 98638)

2

DISABILITY RIGHTS CALIFORNIA

3

BAY AREA REGIONAL OFFICE 1330 Broadway, Suite 500

4

Oakland, CA 94612

Telephone: (510) 267-1200

5

Facsimile: (510) 267-1201

Dara.schur@disabilityrightsca.org 6

7

PAULA PEARLMAN (SBN 109038)

8

SHAWNA PARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

9

919 Albany Street

Los Angeles, CA 90015

10

Telephone: (213) 736-1031

11

Facsimile: (213) 736-1428

Paula.pearlman@lls.edu

12

Shawna.parks@lls.edu

13

CHARLES WOLFINGER (SBN 63467)

14

LAW OFFICE OF CHARLES WOFLINGER

15

4655 Cass Street # 314

San Diego, CA 92109

16

Telephone: (858) 272-8115

Facsimile: (858) 270-3960

17

Cw@charleswolfinger.com

18

19

JANE PERKINS (SBN 104784)

NATIONAL HEALTH LAW PROGRAM

20

211 N. Columbia Street

Chapel Hill, NC 27514

21

Telephone: (919) 968-6308

22

Facsimile: (919) 968-8855 perkins@healthlaw.org

23

24

ABIGAIL K. COURSOLLE (SBN 266646)

NATIONAL HEALTH LAW PROGRAM

25

3701 Wilshire Blvd., Ste. 750

26

Los Angeles, CA 90010 Telephone: (310) 736-1652

27

Facsimile: (213) 368-0774

coursolle@healthlaw.org

28

16
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1

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

2

1330 Broadway, Suite 525

3

Oakland, CA 94612 Telephone: (510) 663-1055

4

Facsimile: (510) 663-1051

arich@nsclc.org

5

6

Attorneys for Named Plaintiffs DAVID OSTER, WILLIE

7

BEATRICE SHEPPARD, C.R. by and through his guardian ad litem, M.R., DOTTIE JONES, ANDREA

8

HYLTON, HELEN POLLY STERN, and L.C. by and

through her guardian ad litem, M.G., CHARLES

9

THURMAN, and the Plaintiff Class

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17
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 Case4:09-cv-04668-CW Document449 Filed01/09/12 Page1 of 11

1 THOMAS E. PEREZ, Assistant Attorney General

EVE HILL, Senior Counselor to the Assistant Attorney General 2 ALISON BARKOFF, Special Counsel for Olmstead Enforcement

ALLISON J. NICHOL, Chief 3 RENEE M. WOHLENHAUS, Deputy Chief

TRAVIS W. ENGLAND, Trial Attorney, NY SBN 4805693

4

U.S. Department of Justice

950 Pennsylvania Avenue, N.W. - NYA

5

Washington, D.C. 20530

Telephone: (202) 307-0663

6

Travis.England@usdoj.gov

7

MELINDA HAAG United States Attorney

8 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney

9 Chief, Civil Division

ILA C. DEISS, NY SBN 3052909

10 Assistant United States Attorney

11

450 Golden Gate Avenue, Box 36055 San Francisco, California 94102

12

Telephone: (415) 436-7124

FAX: (415) 436-7169

13

Ila.Deiss@usdoj.gov

14 ATTORNEYS FOR UNITED STATES

15

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA 16

17 DAVID OSTER, et al.,

18

Plaintiffs,

19

v.

20 WILL LIGHTBOURNE, Director of the

21

California Department of Social Services; TOBY DOUGLAS, Director of the

22

Department of Health Care Services, State of California, DEPARTMENT OF

23

HEALTH CARE SERVICES; and CALIFORNIA DEPARTMENT OF

24 SOCIAL SERVICES,

25

Defendants.

Case No.: CV 09-04668 CW
CLASS ACTION
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
Hearing Date: January 19, 2012

Time:

2:00 p.m.

Judge:

The Hon. Claudia Wilken

26

27

28
OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page2 of 11

1 1

I. INTRODUCTION

2 2

The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C.

3 3

§ 517,1 because this litigation implicates the proper interpretation and application of title II of the

4 4

Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”), and in particular, its

5 5

integration mandate.

See 28 C.F.R. § 35.130(d); Olmstead v. L.C., 527 U.S. 581 (1999).

The

6 6

Department of Justice has authority to enforce title II and to issue regulations implementing the

7 7

statute.

42 U.S.C. §§ 12133-34.

The United States thus has a strong interest in the resolution of

8 8

this matter.

9 9

This lawsuit alleges that Will Lightbourne, the Director of the California Department of

10 10

Social Services (“DSS”), Toby Douglas, the Director of the California Department of Health

11 11

Care Services (“DHCS”), and their respective agencies (collectively, “Defendants”), will place

12 12

hundreds of thousands of individuals with disabilities at risk of unnecessary institutionalization,

13 13

in violation of the ADA, if they are not enjoined from implementing a twenty percent reduction

14 14

in In-Home Support Services (“IHSS”) hours to Medi-Cal beneficiaries.

(See Third Am. Class

15 15

Action Compl. (“Compl.”), ECF No. 431, Dec. 6, 2011, ¶ 6.)

On December 1, 2011, this Court

16 16

granted Plaintiffs’ ex parte Application for a Temporary Restraining Order, enjoining

17 17

Defendants from implementing the reduction in hours, finding that Senate Bill 73 (“SB 73”) –

18 18

the Statute mandating the reduction – raises serious questions of violations of the Medicaid Act,

19 19

the ADA, and the Rehabilitation Act, and that unless enjoined, the reduction in IHSS hours

20 20

would “cause immediate and irreparable harm by placing members of the plaintiff class at

21 21

imminent and serious risk of harm to their health and safety, as well as unnecessary and

22 22

unwanted out-of-home placement including institutionalization.”

(Order Granting Application

23 23

for TRO, ECF No. 417, Dec. 1, 2011, at 1-2.)

24

24

25 1 28 U.S.C. § 517 permits the Attorney General to send any officer of the Department of Justice 25 “to any State or district in the United States to attend to the interests of the United States in a suit

26 26

pending in a court of the United States.”

27 27

1

28 28 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page3 of 11

1

Defendants’ legal arguments regarding Plaintiffs’ standing, the ripeness of Plaintiffs’

2 ADA and Rehabilitation Act claims, and the Tenth Amendment are without merit.2 Plaintiffs

3 have standing to bring these claims because they have alleged the threat of concrete,

4 particularized injuries that Defendants’ actions will cause, and which relief from this Court will

5 address. And contrary to Defendants’ contentions, ensuring that the State’s programs comply

6 with the requirements of the ADA neither conflicts with the Medicaid Act nor violates the Tenth

7 Amendment.

8

II. BACKGROUND

9 A. In Home Support Services

10

IHSS is an optional Medi-Cal benefit that provides in-home assistance with basic tasks of

11 daily living, including domestic services, personal care services, accompaniment during travel to

12 health-related appointments or to alternative resource sites, protective supervision, teaching and

13 demonstration directed at reducing the need for other supportive services, and paramedical

14 services to assist individuals in maintaining an independent living arrangement. Cal. Welf. &

15 Inst. Code §§ 12300(b). The IHSS program is designed to make these services available to those

16 who are “unable to perform the services themselves and who cannot safely remain in their homes

17 or abodes of their own choosing unless these services are provided.” Id. §12300(a).

18 Approximately 440,000 individuals in California receive IHSS, which is funded through a

19 combination of state, county, and federal dollars. See Cal. Welf. & Inst. Code §12306; (Decl. of

20 Eileen Carroll (“Carroll Decl.”), ECF No. 446, Dec. 23, 2011, ¶ 4.)

21

SB 73 was signed into law on June 30, 2011 and required the hours of most IHSS

22 recipients to be reduced by 20 percent, effective January 1, 2012. See Cal. Welf. & Inst. Code

23 §12301.07(a); (see also Pls.’ Third Request for Judicial Notice (“3rd RJN”), ECF No. 335, Dec.

24

25

2 Plaintiffs also allege that Defendants’ plan to implement the reduction in IHSS hours violates the Due Process Clause of the Constitution and the Medicaid Act. In this Statement of Interest,

26 the United States addresses solely the merits of Defendants’ legal arguments regarding standing, ripeness, and the Tenth Amendment as it relates to the ADA and Rehabilitation Act.

27

2

28 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page4 of 11

1 1, 2011, Ex. 1.) The statute established a number of exemptions from the reductions for certain

2 IHSS recipients and required DSS to establish a process to pre-approve supplemental hours for

3 certain recipients. See Cal Welf. & Inst. Code §12301.07(a)(5), (b); (Carroll Decl. ¶ 7). All

4 individuals who do not fall into the exemptions (over 300,000 people) will have their IHSS hours

5 reduced, but will have the opportunity to apply for supplemental hours to fully or partially

6 restore the reduced hours. (See Carroll Decl. ¶ 8; Ex. A to Carroll Decl. at 13.) Plaintiffs have

7 presented evidence that Defendants assume that approximately 164,458 IHSS recipients will not

8 be eligible for restoration of hours, and that approximately 61,672 IHSS recipients will be

9 eligible for restoration but will not return the application for IHSS Care Supplements. (See

10 Second Decl. of Karen Keeslar, ECF No. 376, Dec. 1, 2011, Ex. A.)

11 III. Statutory and Regulatory Background

12

Congress enacted the ADA in 1990 “to provide a clear and comprehensive national

13 mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.

14 § 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate

15 individuals with disabilities, and, despite some improvements, such forms of discrimination

16 against individuals with disabilities continue to be a serious and pervasive social problem.”

17 42 U.S.C. § 12101(a)(2). For those reasons, Congress prohibited discrimination against

18 individuals with disabilities by public entities:

19

[N]o qualified individual with a disability shall, by reason of such disability, be

20

excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such

21

entity.

22 42 U.S.C. § 12132.

23

As directed by Congress, the Attorney General issued regulations implementing title II,

24 which are based on regulations issued under section 504 of the Rehabilitation Act.3 See 42

25 3 In all ways relevant to this discussion, the ADA and Section 504 of the Rehabilitation Act are

26

generally construed to impose similar requirements. See Sanchez v. Johnson, 416 F.3d 1051, 1062 (9th Cir. 2005); Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1045 n. 11 (9th Cir.

27

3

28 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page5 of 11

1 U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Executive Order 12250, 45 Fed. Reg. 72995 (1980),

2 reprinted in 42 U.S.C. § 2000d-1. The title II regulations require public entities to “administer

3 services, programs, and activities in the most integrated setting appropriate to the needs of

4 qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The preamble discussion of the

5 “integration regulation” explains that “the most integrated setting” is one that “enables

6 individuals with disabilities to interact with nondisabled persons to the fullest extent possible….”

7 28 C.F.R. Pt. 35, App. B at 673 (2011) (addressing § 35.130).

8

Twelve years ago, the Supreme Court applied these authorities and held that title II

9 prohibits the unjustified segregation of individuals with disabilities. Olmstead, 527 U.S. at 596.

10 There, the Court held that public entities are required to provide community-based services to

11 persons with disabilities when (a) such services are appropriate; (b) the affected persons do not

12 oppose community-based treatment; and (c) community-based services can be reasonably

13 accommodated, taking into account the resources available to the entity and the needs of others

14 who are receiving disability services from the entity. Id. at 607.

15

The ADA’s protections are not limited to those individuals who are currently

16 institutionalized. The integration mandate also prohibits public entities from pursuing policies 17 that place individuals at serious risk of unnecessary institutionalization.4 See M.R. v. Dreyfus,

18 1999). This principle follows from the similar language employed in the two acts. It also derives

19 from the Congressional directive that implementation and interpretation of the two acts “be coordinated to prevent[ ] imposition of inconsistent or conflicting standards for the same

20 requirements under the two statutes.” Baird ex rel. Baird v. Rose, 192 F.3d 462, 468-9 (4th Cir.

1999) (citing 42 U.S.C. § 12117(b)) (alteration in original). 21

22

4 Defendants incorrectly presume that the ADA would not prohibit policies placing individuals at risk of placement from their own home into “residential care-type facilities [that] do not maintain

23 24-hour nursing care.” (See Defs’ Opposition to Pls.’ Mot. for a Prelim. Inj. (“Defs.’ Opp.”), ECF No. 445, Dec. 23, 2011, at 35). The ADA requires public entities to provide services in the
24 most integrated setting appropriate, which affords individuals with disabilities the opportunity to

interact with nondisabled individuals to the fullest extent possible. 28 C.F.R. § 35.130(d); 28 25 C.F.R. Pt. 35, App. B at 673 (2011). See also, e.g., DAI v. Paterson, 653 F.Supp. 2d 184, 224

26

(E.D.N.Y. 2009) (recognizing Adult Homes as “settings [that do] not enable interactions with nondisabled people to the fullest extent possible.”)

27

4

28 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page6 of 11

1

11 ___ F.3d ____, 2011 WL 6288173, *16 (9th Cir. 2011); see also Fisher v. Oklahoma Health 2

22 Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (noting that “nothing in the Olmstead decision 3

33 supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s 4

44 integration requirements”). 5

5 5

To comply with the ADA’s integration requirement, a state must reasonably modify its

6

66 policies, procedures, or practices when necessary to avoid discrimination. 28 C.F.R. 7

77 § 35.130(b)(7). The obligation to make reasonable modifications may be excused only where a 8

88 state demonstrates that the requested modifications would “fundamentally alter” the programs or 9 99 services at issue. Id.; see also Olmstead, 527 U.S. at 604-07.5 10

1100 IV. ARGUMENT 11

1111 A. Plaintiffs have Article III Standing to Assert a Violation of the ADA’s Integration 12

1122

Mandate

13

1133

Defendants argue that Plaintiffs lack Article III standing for a preliminary injunction

14

1144 because “none of the [named plaintiffs] face[s] an imminent risk of institutionalization.” (Defs.’ 15

1155 Opp. at 32-33.) This argument is without merit and conflates the requirements of standing with 16

1166 the merits of Plaintiffs’ ADA claims. It is well settled that to establish standing, a litigant must 17

1177 show (1) that he suffered actual or threatened injury; (2) that the condition complained of caused 18

1188 the injury or threatened injury, and (3) that the requested relief will redress the alleged 19

1199 injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). When examining 20

2200

21 5 Budgetary concerns alone do not sustain a fundamental alteration defense. M.R., 2011 WL

2211 22 2222 23

6288173, *18; see also Fisher, 335 F.3d at 1183 (“that [a state] has a fiscal problem, by itself, does not lead to an automatic conclusion” that providing the community services that plaintiffs seek would be a fundamental alteration). Further, “[i]f every alteration in a program or service

2233 that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s

24 integration mandate would be hollow indeed.” Fisher, 335 F.3d at 1183; see also Pennsylvania

2244 Protection and Advocacy, Inc. v. Pennsylvania Dept. of Pub. Welfare, 402 F.3d 374, 380 (3d Cir.

25 2005). Congress was aware that integration “will sometimes involve substantial short-term

2255 26 2266 27

burdens, both financial and administrative,” but the long-term effects of integration “will benefit society as a whole.” Fisher, 335 F.3d at 1183 (citing H.R. Rep. No. 101-485, pt.3, at 50, reprinted in 1990 U.S.C.C.A.N. 445,773).

2277

5

28

2288 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page7 of 11

1 whether plaintiffs suffered actual or threatened injury, the inquiry focuses on whether the injury-

2 in-fact is (1) “concrete and particularized,” and (2) actual or imminent, not ‘conjectural’ or

3 ‘hypothetical.’” Id. at 560.

4

Plaintiffs have standing because the reduction of their IHSS services is concrete, actual

5 and not hypothetical and thus this injury alone is sufficient to establish standing. See Cal. Pro-

6 Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003); United States v. Antelope,

7 395 F.3d 1128, 1132 (9th Cir. 2005). Plaintiffs seek to represent a class of individuals who

8 “have received or will receive notices of action that include a reduction of IHSS hours based on

9 SB 73 or Defendants’ implementation of SB 73…” (Compl. ¶ 225.) Receipt of this notice means

10 that a recipient’s IHSS hours are due to be or have already been administratively reduced, and

11 recipients must then affirmatively apply for IHSS Care Supplements to even attempt to have

12 their hours partially or fully restored. (See Pls.’ Reply in Support of Motion for Class

13 Certification, ECF No. 442, Dec. 22, 2011, at 3; Carroll Decl., Ex. A, at 7 (instructing county

14 departments of social services to “reinstat[e] the reduced hours” if recipient returns IHSS

15 Supplemental Care application within 15 days of postmark or by January 3, 2012.)) Plaintiffs,

16 and hundreds of thousands of others similarly situated individuals, thus face the imminent threat

17 of a twenty percent reduction of services. It is the partial or full restoration of these hours – not

18 their reduction – that rests on contingent, future events. That these Plaintiffs may ultimately

19 have some or all of their current amount of IHSS hours restored, either through county-level

20 determinations of eligibility for Care Supplement hours or by pursuing state administrative

21 appeals, does not render their injuries non-imminent, hypothetical, or speculative. See Pashby v.

22 Cansler, ___ F.Supp. 2d ____, 2011 WL 6130819, *3 (E.D.N.C. 2011) (“because each Plaintiff

23 faced, at the time this lawsuit commenced, the termination of his or her [personal care services]

24 due to the change in requirements that was to be implemented … each Plaintiff had standing to

25

26

27

6

28 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page8 of 11

1 challenge the implementation of [the official policy changing eligibility requirements].”) appeal 2 docketed, No. 11-2363, (4th Cir. Dec. 14, 2011).6

3

Further, even the threat of future harm is sufficient to confer standing. Cent. Delta Water

4 Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002) ("[T]he possibility of future injury

5 may be sufficient to confer standing."); see also Friends of the Earth, Inc. v. Laidlaw Envtl.

6 Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). By receiving notices of an impending

7 reduction in their IHSS hours, there can be no question that Plaintiffs face a threat of harm.

8 "[A] credible threat of harm is sufficient to constitute actual injury for standing purposes." Cent.

9 Delta Agency, 306 F.3d at 950. Indeed, the threat of injuries to plaintiffs resulting from the

10 reduction in IHSS hours is “credible” and is not “speculative or imaginary.” See Lopez v.

11 Candaele, 630 F.3d 775, 786 (9th Cir. 2010) (citing Babbitt v. United Farm Workers, 442 U.S.

12 289, 298 (1979); see also Mental Disability Law Clinic v. Hogan, No. 06-cv-6320, 2008 WL

13 4104460, at *8 (E.D.N.Y. Aug. 26, 2008) (“the likely harm of another hospitalization and the

14 fact that this harm could be avoided if [Plaintiff were to continue to receive existing services] is

15 not too speculative or conjectural to preclude standing.”). Thus, Plaintiffs have standing to

16 pursue their title II and Rehabilitation Act claims.

17

For the same reasons, Plaintiffs’ claims are ripe. A court considers two factors in

18 determining whether a case is ripe: (1) the fitness of the issues for judicial decision; and (2) the

19 hardship to the parties of withholding court consideration. Yahoo! Inc. v. La Ligue Contre Le

20 Racisme Et L’Antisemitisme, 433 F.3d 1199, 1211 (9th Cir. 2006) (citing Abbot Labs. v.

21 Gardner, 387 U.S. 136, 149 (1967) overruled on other grounds by Califano v. Sanders, 430 U.S.

22 99 (1977). Fitness for review means that a question “can be decided without considering

23 contingent future events that may or may not occur as anticipated, or that may not occur at all.”

24 6 Defendants’ comparison of this case to Summer H. v. Fukino, No. 09-cv-00047, 2009 WL
25 1249306 (D. Haw. 2009), is inapt. There, the Court specifically declined to dismiss plaintiffs’
26 ADA and Section 504 claims for lack of standing or ripeness. See id. at *8.

27

7

28 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page9 of 11

1 Addington v. U.S. Airline Pilots Ass’n., 606 F.3d 1174, 1179 (9th Cir. 2010). A number of the

2 Plaintiffs, and by definition, members of the proposed class, will receive notices indicating that

3 their IHSS hours have been reduced. (See Compl. ¶ 225.) That any individual plaintiff or

4 member of the proposed class may avail themselves of the application process to have their IHSS

5 hours partially or fully restored does not render their claims unfit for judicial review. See

6 Pashby, 2011 WL 6130819, *4 (holding that plaintiffs’ claims were ripe and that they “need not

7 wait until the resolution of their administrative appeals under [a new policy altering eligibility for

8 personal care services] to challenge the legality of it.”). And the hardship to the Plaintiffs from

9 withholding judicial consideration is considerable here: Plaintiffs have submitted substantial

10 evidence from their care providers, experts, county officials and individual IHSS recipients that

11 recipients face a serious risk of institutionalization if their hours are in fact reduced.

12 B. ADA Compliance Does Not Conflict With the Medicaid Act and Does Not Violate

13

the Tenth Amendment

14

Defendants argue that plaintiffs’ ADA and Rehabilitation Act claims run afoul of the

15 Tenth Amendment because remedying Plaintiffs’ claims may require the continuation of the

16 current level of IHSS services to prevent individuals’ unnecessary institutionalization. (See

17 Defs.’ Opp. at 33-34.) Defendants appear to argue that because IHSS is an optional, rather than

18 mandatory, program under the federal Medicaid Act, this Court is without power to enjoin

19 Defendants from operating the program in a manner that discriminates against individuals with

20 disabilities. This contention lacks merit.

21

A determination that Defendants should refrain from implementing policies that present a

22 serious risk of institutionalization does not require a finding that the State must provide IHSS

23 services as a mandatory (as opposed to optional) Medicaid service. Rather, once a state has

24 elected to provide services (whether mandatory or optional under the Medicaid Act), the state

25 must administer those services in accordance with the ADA and Rehabilitation Act. See Doe v.

26 Chiles, 136 F.3d 709, 714 (11th Cir. 1998) (when a state chooses to provide an optional

27

8

28 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page10 of 11

1 Medicaid service, it must do so in accordance with the requirements of federal law); Fisher v.

2 Okla. Health Care Auth., 335 F.3d 1175, 1182 (10th Cir. 2003) (even though a waiver program

3 is optional, a state may not, under title II of the ADA, amend optional programs in such a way as

4 to violate the integration mandate).

5

Indeed, another district court recently rejected a similar argument. In Haddad v. Arnold,

6 784 F. Supp. 2d 1284, 1302 (M.D. Fla. 2010), defendants argued that plaintiff’s integration claim

7 would abrogate or amend Medicaid Act provisions allowing states to limit the number of

8 participants in its waiver programs. The district court rejected this argument, finding defendants’

9 attempt to characterize ADA compliance “as an invalidation of the Medicaid Act [was] without

10 merit.” Id. at 1303. The court reasoned that “[a] state that chooses to provide optional services,

11 cannot defend against the discriminatory administration of those services simply because the

12 state was not initially required to provide them.” Id. at 28. Thus, here, as in Haddad, requiring

13 Defendants’ to administer their Medicaid program in a nondiscriminatory manner does not

14 conflict with the Medicaid Act.

15

Further, contrary to Defendants’ assertions, compliance with the ADA’s integration

16 mandate does not violate the Tenth Amendment principles of New York v. United States, 505

17 U.S. 144 (1992) or Printz v. United States, 521 U.S. 898 (1997). See Reno v. Condon, 528 U.S.

18 141, 150-51 (2000) (“That a state wishing to engage in certain activity must take administrative

19 and sometimes legislative action to comply with federal standards regulating that activity is a

20 commonplace that presents no constitutional defect.”) (quoting South Carolina v. Baker, 485

21 U.S. 505, 514-15 (1988)).

22

23 ///
24
25 ///

26 ///

27

9

28 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

Case4:09-cv-04668-CW Document449 Filed01/09/12 Page11 of 11

1 DATED: January 9, 2012 2

Respectfully submitted,

3 MELINDA HAAG
4 United States Attorney Northern District of California
5
6
7
8
9

THOMAS E. PEREZ Assistant Attorney General
EVE HILL Senior Counselor to the Assistant Attorney General
ALISON BARKOFF Special Counsel for Olmstead Enforcement
Civil Rights Division

10

11 /s/ Ila Deiss__

JOANN M. SWANSON, CSBN 88143

12 Assistant United States Attorney

13

Chief, Civil Division ILA C. DEISS, NY SBN 3052909

14 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102

15 Telephone: (415) 436-7124

Facsimile: (415) 436-7169

16 Ila.deiss@usdoj.gov

17

18

19

/s/ Travis England ALLISON J. NICHOL, Chief RENEE M. WOHLENHAUS Deputy Chief TRAVIS W. ENGLAND, NY SBN 4805693 Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 307-8987 Facsimile: (202) 307-1197 travis.england@usdoj.gov

20

21

22

23

24

25

26

27

10

28 OSTER V. LIGHTBOURNE, CV 09-04668 CW; STATEMENT OF INTEREST OF THE UNITED STATES

 
 Case4:09-cv-04668-CW Document505 Filed03/02/12 Page1 of 12

United States District Court For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4 DAVID OSTER, et al.,

No. C 09-4668 CW

5

Plaintiffs,

6

v.

7 WILL LIGHTBOURNE, Director of the California Department of Social
8 Services; TOBY DOUGLAS, Director of the California Department of
9 Health Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE
10 SERVICES; and CALIFORNIA DEPARTMENT OF SOCIAL SERVICES,
11
Defendants. 12 ________________________________/

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (DOCKET No. 356)

13

14

This action arises from two provisions of California law,

15 ABX4 4 and SB 73, which mandate reductions to the State’s In Home

16 Support Services (IHSS) Program for elderly and disabled persons.

17 Plaintiffs have moved for class certification, pursuant to Federal

18 Rule of Civil Procedure 23(a) and (b)(2). Docket No. 356.

19 Plaintiffs also seek the appointment of class representatives and

20 class counsel. Defendants oppose the request for class

21 certification and object to certain proposed class

22 representatives. Having reviewed all of the parties' submissions

23 and heard oral argument, the Court grants Plaintiffs' motion.

24

BACKGROUND

25

Plaintiffs seek certification of Class A for the First,

26 Second, Third, Fourth, Fifth and Seventh Claims, defined as,

27

All recipients of IHSS in the State of California

whose IHSS services will be limited, cut, or

28

terminated under the provisions of ABX4 4, and all

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page2 of 12

United States District Court For the Northern District of California

applicants to IHSS in the State of California who

1

would have been eligible for IHSS services but who are

either not eligible, or are eligible for fewer

2

services, as a result of ABX4 4.

3 The proposed class representatives for Class A are Named

4 Plaintiffs David Oster, C.R., Dottie Jones, L.C. and Charles

5 Thurman.

6 Plaintiffs also seek to certify Class B for the First,

7 Second, Third, Fourth, Fifth, Sixth and Seventh claims for relief,

8 defined as,

9 All recipients of IHSS in the State of California who

10

have received or will receive notices of action that

include a reduction of IHSS hours based on SB 73 or

11

Defendants' implementation of SB 73, including future

applicants for IHSS services whose notice of action

12

will reflect reduced IHSS hours as a result of SB 73

or Defendants' implementation of SB 73.

13

The proposed class representatives for Class B are Named 14

Plaintiffs Andrea Hylton, Helen Polly Stern, L.C., and Charles 15

Thurman. 16

The Sixth Claim in the operative complaint is brought 17

pursuant to the Medicaid Act's requirement that states provide 18

"sufficient benefits." Part A of that claim alleges that ABX4 4 19

violates the sufficiency requirement by terminating or reducing 20

IHSS domestic and related services to individuals for whom such 21

services have been deemed necessary pursuant to an individual 22

service plan approved by the State. The Sixth Claim, Part A, is 23

alleged on behalf of Loss of Domestic and Related Services 24

Subclass A. Accordingly, Plaintiffs seek certification of Loss of 25

Domestic and Related Services Subclass A, based on Part A of the 26

Sixth Claim, defined as, 27

28

2

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page3 of 12

United States District Court For the Northern District of California

1

All present and future IHSS recipients and applicants who have been or would have been authorized to receive

2

domestic and/or related IHSS, and whose IHSS will be

reduced to eliminate some or all of their domestic

3

and/or related services under the provisions of

ABX4 4. 4

5

The proposed class representatives for Loss of Domestic and

6 Related Services Subclass A are Named Plaintiffs Dottie Jones and

7 Charles Thurman.

8

The Eighth Claim in the operative complaint pertains to the

9 provisions of the Medicaid Act under which Early Periodic

10 Screening, Diagnostic and Treatment (EPSDT) for children and youth

11 under age twenty-one is a mandatory Medicaid service. The Eighth

12 Claim contains Part A, alleging that ABX4 4 fails to ensure that

13 Medi-Cal recipients under the age of twenty-one receive medically

14 necessary personal care services required by the EPSDT provisions

15 of the Medicaid Act. Accordingly, Plaintiffs propose a Children

16 Subclass A, based on Part A of the Eighth Claim for relief,

17 defined as,

18

All present or future IHSS recipients who are under

the age of 21, who qualify for full-scope Medi-Cal

19

with federal financial participation, and who

20

therefore are entitled to the protections of the Early

Periodic Screening Diagnosis and Treatment provisions

21

of the federal Medicaid Act, 42 U.S.C. § 1396a(a), who

have been or would have been authorized to receive

22

IHSS, and whose IHSS services will be reduced or

terminated under the provisions of ABX4 4. 23

24 The proposed class representatives for Children Subclass A are

25 Named Plaintiffs C.R. and L.C.

26

Part B of the Eighth Claim alleges that SB 73 violates the

27 EPSDT provisions of the Medicaid Act by failing to ensure that

28 Medi-Cal recipients under the age of twenty-one receive medically

3

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page4 of 12

United States District Court For the Northern District of California

1 necessary personal care services as required by the EPSDT

2 provisions of the Medicaid Act. Accordingly, Plaintiffs seek

3 certification of Children Subclass B, based on Part B of the

4 Eighth claim for relief, defined as,

5

All present or future IHSS recipients who are under

6

the age of 21, who qualify for full-scope Medi-Cal

with federal financial participation, and who

7

therefore are entitled to the protections of the Early

Periodic Screening Diagnosis and Treatment provisions

8

of the federal Medicaid Act, 41 U.S.C. § 1396a(a), who

9

have received or will receive notices of action that include a reduction of IHSS hours based on SB 73 or

10

Defendants' implementation of SB 73, including future

applicants for IHSS services whose notice of action

11

will reflect reduced IHSS hours as a result of SB 73

or Defendants' implementation of SB 73.

12

The proposed class representative for Children Subclass B is Named 13

14 Plaintiff L.C.

15

Pursuant to Federal Rules of Civil Procedure 23(g)(1) and

16 23(c)(1)(B), Plaintiffs seek appointment of the law firms of

17 Disability Rights California, Disability Rights Legal Center, Law

18 Offices of Charles Wolfinger, National Health Law Program, and the

19 National Senior Citizens Law Center as class counsel to represent
20
the Classes and Subclasses defined above. 21

22

LEGAL STANDARD

23

Plaintiffs seeking to represent a class must satisfy the

24 threshold requirements of Rule 23(a) as well as the requirements

25 for certification under one of the subsections of Rule 23(b).
26 Rule 23(a) provides that a case is appropriate for certification 27
as a class action if: “(1) the class is so numerous that joinder 28

4

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page5 of 12

United States District Court For the Northern District of California

1 of all members is impracticable; (2) there are questions of law or 2 fact common to the class; (3) the claims or defenses of the

3 representative parties are typical of the claims or defenses of

4 the class; and (4) the representative parties will fairly and

5 adequately protect the interests of the class.” Fed. R. Civ. P.

6 23(a).
7 Rule 23(b) further provides that a case may be certified as a
8

class action only if one of the following is true: 9

(1) prosecuting separate actions by or against

10

individual class members would create a risk of:

11

(A) inconsistent or varying adjudications with

respect to individual class members that would

12

establish incompatible standards of conduct for the

party opposing the class; or 13

(B) adjudications with respect to individual class

14

members that, as a practical matter, would be

dispositive of the interests of the other members

15

not parties to the individual adjudications or

would substantially impair or impede their ability

16

to protect their interests;

17

(2) the party opposing the class has acted or refused to

act on grounds that apply generally to the class, so

18

that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class

19

as a whole; or

20

(3) the court finds that the questions of law or fact

common to class members predominate over any questions

21

affecting only individual members, and that a class

action is superior to other available methods for fairly

22

and efficiently adjudicating the controversy. The

matters pertinent to these findings include: 23

(A) the class members’ interests in individually

24

controlling the prosecution or defense of separate

actions; 25

(B) the extent and nature of any litigation

26

concerning the controversy already begun by or

against class members; 27

28

5

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page6 of 12

United States District Court For the Northern District of California

(C) the desirability or undesirability of

1

concentrating the litigation of the claims in the

particular forum; and 2

(D) the likely difficulties in managing a class

3

action.

4 Fed. R. Civ. P. 23(b).
5 Plaintiffs seeking class certification bear the burden of
6 demonstrating that each element of Rule 23 is satisfied, and a
7 district court may certify a class only if it determines that the
8
9 plaintiffs have borne their burden. Gen. Tel. Co. of Sw. v.

10 Falcon, 457 U.S. 147, 158-61 (1982); Doninger v. Pac. Nw. Bell,

11 Inc., 564 F.2d 1304, 1308 (9th Cir. 1977). The court must conduct

12 a “‘rigorous analysis,’” which may require it “‘to probe behind

13 the pleadings before coming to rest on the certification
14 question.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551
15 (2011) (quoting Falcon, 457 U.S. at 160-61). “Frequently that
16 ‘rigorous analysis’ will entail some overlap with the merits of
17
18 the plaintiff’s underlying claim. That cannot be helped.” Dukes,

19 131 S. Ct. at 2551. To satisfy itself that class certification is

20 proper, the court may consider material beyond the pleadings and

21 require supplemental evidentiary submissions by the parties.
22 Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975).
23 DISCUSSION
24 Defendants request that the Court defer ruling on Plaintiffs'
25
26 motion for class certification until resolution of an appeal of

27 this Court's first preliminary injunction. On October 19, 2009,

28 the Court enjoined Defendants' implementation of ABX4 4, which

6

United States District Court For the Northern District of California

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page7 of 12
1 amended sections 12309(e) and 12309.2 of the California Welfare 2 and Institutions Code to terminate from eligibility for IHSS
3 services those recipients with Functional Index Scores of less
4 than 2.0 and to eliminate domestic and related services for 5 recipients with functional ranks of less than 4 for those 6
services. On October 23, 2009, the Court issued an order 7
explaining its reasons for granting the injunction. The October 8
23, 2009 order reviewed the merits of Plaintiffs' claims that 9 10 ABX4 4 violated the Medicaid Act, the Americans with Disabilities 11 Act (ADA) and the Rehabilitation Act, as well as the due process
12 clause of the Constitution. Defendants argue that a determination
13 of the appeal will assist the Court's analysis under Rule 23, 14 which requires some consideration of the merits of Plaintiffs’ 15
underlying claims. Dukes, 131 S. Ct. at 2551. 16
The Court declines Defendants' request. Plaintiffs seek a 17 18 second preliminary injunction granting class-wide relief, which 19 necessitates the Court's resolution of whether class certification
20 is appropriate. M.R. v. Dreyfus, 663 F.3d 1100, 1121 (9th Cir.
21 2011) (noting that, subject to certain exceptions, without a 22 properly certified class, a court cannot grant relief on a class23
wide basis.). When granting the first preliminary injunction, the 24
Court declined to resolve whether class certification was 25
appropriate. Since then, the Ninth Circuit has clarified that the 26 27 Court must address the issue now.
28
7

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page8 of 12

United States District Court For the Northern District of California

1

Defendants argue that certification of Class B should be

2 denied because Class B Plaintiffs' claims are not ripe for

3 adjudication. For purposes of Article III standing, "the

4 plaintiff must have suffered an injury in fact, which is an

5 invasion of a legally protected interest which is (a) concrete and
6 particularized, and (b) actual or imminent." Lujan v. Defenders
7 of Wildlife, 504 U.S. 555, 560 (1992). Defendants assert that,
8 under the related doctrine of ripeness, Class B claims rest on
9
10 contingent future events.

11

First, Defendants point out that individuals who receive IHSS

12 services under certain specified Medi-Cal Home and Community Based

13 Waiver programs or who meet certain pre-approval criteria will not
14 have their hours reduced. According to the November 29, 2011 15
letter that Defendant California Department of Social Services 16
sent to all of the counties (All County Letter or ACL), these 17 18 individuals will not receive a notice that they will be subjected
19 to the reduction in hours. Therefore, these individuals will not

20 be members of Class B and their standing is not at issue. It is

21 true that Oster and Jones, who receive IHSS services under
22 specified waiver programs and will not receive a notice of reduced
23 hours, are not suitable as representatives for Class B. Although
24 Plaintiffs initially sought appointment of Oster and Jones as
25 class representatives for Class B, they now propose only Hylton,
26
27 Stern, L.C., and Thurman.

28

8

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page9 of 12

United States District Court For the Northern District of California

1

Defendants also argue that certain putative members of Class

2 B will qualify as being at serious risk of out-of-home placement,

3 and, therefore, will presumptively qualify for a restoration of

4 their hours upon their submission of a Supplemental Care
5 application. In light of this fact, Defendants contend the claims
6 of these putative members of Class B are unripe and the class
7 itself is overbroad. Members of Class B have ripe claims because
8 the injury is the initial notice and imposition of the hours
9 10 reduction, as provided for in the notices they were slated to
11 receive. If the putative class members do not submit a request

12 for Supplemental Care, even those who presumptively qualify for a

13 restoration of hours will have their hours cut. Thus, the

14 availability of the Supplemental Care application does not negate
15 the injury due to the notice of hours reduction. Furthermore,
16 Class B is not overbroad because it is limited to those who have
17
18 or will receive notice that they are subject to the cuts.

19

Defendants dispute that Class B satisfies the commonality

20 requirement because the class is not reasonably ascertainable.

21 Defendants argue that it will not be clear who has suffered an
22 injury until members of Class B complete the Supplemental Care
23 application, the fair hearing process and "presumably all rights
24 under California Code of Civil Procedure section 1094.5." This
25 argument does not take into account Class B's injury. The injury
26 27 suffered by members of Class B is based on the notice and
28 imposition of the impending twenty percent reduction in services,

9

United States District Court For the Northern District of California

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page10 of 12
1 not the later denial of a request for Supplemental Care to restore 2 hours of services lost. By definition, members of Class B are
3 IHSS recipients, as well as future IHSS recipients, who have
4 received or will receive notices of action that indicate that 5 their IHSS hours will be reduced by twenty percent based on SB 73 6
or Defendants' implementation of SB 73. Therefore, the injury is 7
common to all members of Class B. 8
Defendants assert that under Walmart v. Dukes, 131 S. Ct. 9 10 2541 (2011), Plaintiffs cannot show that members of Class B 11 suffered the same injury. This case is readily distinguishable
12 from Dukes. There, the Supreme Court had to determine whether a
13 common practice of discrimination existed under the employers' 14 policy that gave discretion to managers to select candidates for 15
promotion. Here, there is no question that SB 73 institutes a 16
twenty percent reduction in IHSS hours for individuals who are not 17 18 exempt or pre-approved for an exception to the reduction. That 19 recipients may request restoration of the hours through the
20 Supplemental Care application process does not destroy the
21 commonality of the injury. Furthermore, the application process, 22 as evidenced by the worksheet and the ACL, does not afford 23
discretion to social workers to restore hours to recipients who do 24
not meet certain criteria related to their functional rankings. 25
Class litigation is a permissible method for Plaintiffs to seek a 26 27 resolution of the common questions regarding whether SB 73 28 violates the ADA, the Rehabilitation Act or the Medicaid Act and
10

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page11 of 12

United States District Court For the Northern District of California

1 whether the notices comport with due process requirements. For 2 purposes of Class B, Plaintiffs have demonstrated commonality

3 under Federal Rule of Civil Procedure 23.

4

Finally, Defendants assert that any claims of Children

5 Subclass B are moot. According to Eileen Caroll, Deputy Director
6 of the Adult Programs Division of the California Department of
7 Social Services, all IHSS recipients who receive EPSDT services,
8 which includes all IHSS recipients under twenty-one years old, are
9
10 pre-approved for exemption from the reduction in services. The

11 Court, however, declines to find the claims of this subclass moot

12 because there is no indication that the EPSDT exemption is legally

13 binding on the counties by virtue of statutory or regulatory law,

14 or otherwise. Ms. Carroll's declaration was given for purposes of

15 litigation and does not appear to be binding on Defendants.
16
CONCLUSION 17

18

Plaintiffs' motion for class certification and appointment of

19 class representatives and class counsel is granted. Docket No.

20 356. The claims and subclasses are certified as defined above.

21 The class representatives and class counsel identified above are
22 appointed.
23 Class A is certified as of October 19, 2009, when this Court
24 granted Plaintiffs' motion for preliminary injunction as to ABX4 4
25 reductions to IHSS. Class B is certified as of December 1, 2011,
26
27 when this Court granted Plaintiffs' motion for a temporary

28

11

Case4:09-cv-04668-CW Document505 Filed03/02/12 Page12 of 12

United States District Court For the Northern District of California

1 restraining order as to the reductions in IHSS services imposed by 2 SB 73.

3

These classes are certified to pursue Plaintiffs' First

4 through Eighth Claims for injunctive and declaratory relief under
5 the due process clause of the United States Constitution, the
6 Medicaid Act, and the ADA, and § 504 of the Rehabilitation Act.
7 IT IS SO ORDERED.
8

9

10 Dated: 3/2/2012 11

CLAUDIA WILKEN United States District Judge

12

13

14

15

16

17

18

19

20

21

22

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24

25

26

27

28

12

 
 Case4:09-cv-04668-CW Document506 Filed03/02/12 Page1 of 44

United States District Court For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 DAVID OSTER, et al.,

No. C 09-4668 CW

8

Plaintiffs,

9

v.

10 WILL LIGHTBOURNE, Director of the California Department of Social
11 Services; TOBY DOUGLAS, Director of the California Department of
12 Health Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE
13 SERVICES; and CALIFORNIA DEPARTMENT OF SOCIAL SERVICES,
14
Defendants. 15 ________________________________/

ORDER GRANTING PLAINTIFFS' REQUEST FOR A PRELIMINARY INJUNCTION (Docket No. 328)

16

17

This case concerns the validity of ABX4 4, a law passed in

18 July 2009 that tightens the eligibility criteria for participants

19 in California's In-Home Supportive Services (IHSS) Program, and SB

20 73, a more recently enacted law that also aims to cut the IHSS
21 program, although in a different way. Plaintiffs are IHSS
22 recipients, and unions that represent IHSS providers. On October
23 19, 2009, this Court entered a preliminary injunction to block
24 implementation of ABX4 4, followed on October 23, 2009 by a
25 26 written opinion explaining the grounds for the injunction. On
27 December 1, 2011, Plaintiffs moved for a temporary restraining

28 order and a preliminary injunction barring implementation of SB

Case4:09-cv-04668-CW Document506 Filed03/02/12 Page2 of 44

United States District Court For the Northern District of California

1 73. Having considered all of the parties' submissions and oral 2 argument, the Court grants Plaintiffs' request for a second

3 preliminary injunction.

4

BACKGROUND

5

The Court's 2009 opinion provides a detailed explanation of

6 the facts underlying this action. The present order briefly
7 summarizes the facts relevant to the pending request for a
8

preliminary injunction. 9

10

The IHSS program is part of California's Medi-Cal program,

11 which provides medical services to eligible beneficiaries and is

12 supported through a combination of state, federal and county

13 funding. Federal funds are provided through the Medicaid Act.
14 The IHSS program provides supportive services to the "aged, blind, 15
or disabled persons . . . who are unable to perform the services 16
themselves and who cannot safely remain in their homes or abodes 17 18 of their own choosing unless these services are provided." Cal.
19 Welf. & Inst. Code § 12300(a). At the time the present motion was

20 filed, there were 440,000 IHSS recipients. Approximately sixty

21 percent of IHSS recipients are senior citizens.

22

The Manual of Policies and Procedures (MPP) for Defendant

23 California Department of Social Services (CDSS) requires
24 "assistance to those eligible aged, blind and disabled individuals
25
who are unable to remain safely in their own homes without this 26

27 assistance." MPP § 30-700.1. The MPP also states that a

28 particular service will not be authorized unless the social worker

2

United States District Court For the Northern District of California

Case4:09-cv-04668-CW Document506 Filed03/02/12 Page3 of 44
1 evaluating the individual "has determined that the recipient would 2 not be able to remain safely in his/her own home without IHSS" and
3 "[p]erformance of the service by the recipient would constitute
4 such a threat to his/her health/safety that he/she would be unable 5 to remain in his/her own home." Id. § 30-761.13-14. 6
Prior to the enactment of ABX4 4 and SB 73, the CDSS had 7
developed and implemented a Uniformity Assessment System to ensure 8
that IHSS recipients with comparable needs for assistance receive 9 10 comparable services. The tool defined ranks of one to five for 11 social workers to use in rating elderly or disabled individuals'
12 functional abilities in fourteen areas: housework; laundry;
13 shopping and errands; meal preparation and clean up; mobility 14 inside the residence; bathing and grooming; dressing; bowel, 15
bladder and menstrual care; transfer from one position to another; 16
eating; respiration; memory; orientation; and judgment. The 17 18 parties refer to the rating for each category as a "functional 19 rank." Rank one, the highest functional level, indicates that a
20 recipient is able to function independently in that category,
21 without human assistance although perhaps with difficulty. Rank
22 two applies if a recipient is able to perform the function, but 23
needs verbal assistance, such as reminders. Ranks three and four 24
apply if a recipient can perform the function with some or 25
substantial human assistance, respectively, including but not 26 27 limited to direct physical assistance. Rank five is applied to a
28
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1 recipient who cannot perform the function, with or without human 2 assistance.

3

Social workers are required to assess each recipient's

4 functional rank in the fourteen areas on an individualized basis,
5 only for the purpose of determining with uniformity the number of
6 hours of a particular service a recipient needs. Time guidelines
7 are provided for each rank for tasks for which IHSS recipients may
8 receive services. Once it is determined that an IHSS recipients
9 10 needs a given service to remain safely at home, the number of IHSS
11 hours authorized is determined by the guidelines, unless there is

12 a documented reason for an exception. MPP § 30-757.1(a)(6).

13

Nonetheless, the eligibility restrictions implementing ABX4 4

14 were based on those functional ranks, as well as on a Functional
15 Index (FI) Score, a composite score calculated based on a weighted
16 average of eleven of the recipient's functional rankings,
17
18 excluding the rankings for the mental tasks of memory, orientation

19 and judgment. As explained in the 2009 order enjoining

20 implementation of ABX4 4, neither functional ranks nor the

21 Functional Index had ever been used to determine IHSS eligibility.

22

On June 30, 2011, SB 73 enacted California Welfare and

23 Institutions Code section 12301.07, mandating that the CDSS reduce
24 authorized hours of services for IHSS recipients by twenty percent
25
if, by December 15, 2011, it were forecasted that certain specific 26

27 revenue targets would not be met. On November 29, 2011, after it

28 appeared that the revenue targets would not be met, triggering the

4

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1 cuts to the IHSS program, the CDSS issued an All-County Letter 2 (ACL) to inform counties of the requirements under new section

3 12301.07 and its plan for implementation of the SB 73 mandated

4 cuts. Declaration of Eileen Carroll, Ex. A.

5

The implementation plan for SB 73 established in the ACL is

6 as follows. Certain groups of recipients are exempted from the
7 twenty percent reductions. The reduction would not be applied to
8

"individuals receiving IHSS who also receive services under one of 9

10 the State Home and Community Based Services Waivers, including the

11 following: Acquired Immune Deficiency Syndrome (AIDS) Waiver, Home

12 and Community Based Services Waiver for the Developmentally

13 Disabled (HCBS-DD), In-Home Operations (IHO), Multipurpose Senior
14 Services Program (MSSP), and Nursing Facility/Acute Hospital 15
(NF/AH)." ACL at 2. These exemptions appear to implement section 16
12301.07(a)(5), which states that the reduction in IHSS hours 17 18 "shall not apply to in-home support services recipients who also
19 receive services under Section 9560, subdivision (t) of Section

20 14132, and Section 14132.99." Over a thousand individuals are on

21 waiting lists for these programs, but they would not be exempted.1

22

The ACL also announced that recipients who met one of the

23 following criteria were pre-approved for an exemption from the
24 reduction: (1) if the recipient had a functional rank of five for
25

26 mobility inside; bowel, bladder and menstrual care; transfer, or

27

1 Plaintiffs' unopposed Third Request for Judicial Notice is

granted with respect to Exhibits 11 and 12. 28

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1 paramedical services authorized for bed sore care; and eating; 2 (2) the recipient was authorized for 283 hours per month, the

3 statutory maximum; or (3) the recipient was assessed for

4 protective supervision. ACL at 3-4. Section 12301.07(b) requires
5 the CDSS and counties to develop a process to allow counties to
6 "preapprove IHSS Care Supplements described in subdivision (f), to
7 the extent that the process is permissible under federal law."
8 The ACL explains that the CDSS will identify, through its
9 10 Case Management Information and Payrolling System (CMIPS), all
11 recipients in the exempt groups, under section 12301.7(a)(5), and

12 the groups pre-approved for an exemption to the twenty percent

13 reduction, pursuant to section 12301.07(b). ACL at 3. The exempt
14 and pre-approved recipients would receive an "IHSS Program Notice 15
to Recipient of Exemption from Reduction in Service Hours." All 16
other recipients, who would be subject to the reduction, would 17 18 receive a notice of action advising them of the reduction. ACL at
19 3.

20

The ACL sets forth a process by which recipients who receive a

21 notice of action may request a restoration of all or part of their
22 reduced hours by submitting an application for the Care Supplement
23 that SB 73 provided. The Supplemental Care application requires a
24 recipient to provide a written explanation of “how the 20-percent
25 reduction in your authorized service hours would put you at serious
26 27 risk of out-of-home placement.” Carroll Dec. at 18. See also,
28 Cal. Welf. & Inst. Code § 12301.07(f). Section 12301.07(c) further

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1 states, "The notice of action informing each recipient who is not 2 preapproved for an IHSS Care Supplement pursuant to subdivision (b)

3 shall be mailed at least 15 days prior to the reduction."

4

If a recipient submits the Supplemental Care application to

5 the county within fifteen days of receipt of the notice of action,
6 the county shall reinstate the reduced hours pending its
7 determination of whether the recipient would be at serious risk of
8 out-of-home placement as a result of the reduction. ACL at 6. If
9
10 the recipient submits the Supplemental Care application more than

11 fifteen days after the recipient receives the notice of action, the

12 reduction is imposed while the county makes its determination. Id.

13

When the county receives a completed application for IHSS

14 Supplemental Care, a worker is required to complete a Supplemental
15 Care Worksheet to decide if the applicant qualifies. The
16 worksheet purports to determine whether the recipient is "at
17
18 serious risk of out-of-home placement" as a result of the twenty

19 percent reduction. Carroll Dec. at 20, Supplemental Care

20 Worksheet, ACL at Attachment H. Parts A and B of the worksheet

21 outline two different tests to determine whether a recipient has

22 met the standard. Under Part A, a recipient qualifies as being at

23 serious risk if three or more of the following categories are

24 satisfied.
25

1. Paramedical Services authorized to monitor medical

26

condition and/or give injections

27

2. Ranked 4 or 5 for Mobility Inside

28

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1

3. Ranked 4 or 5 for Bathing and Grooming

2

4. Ranked 4 or 5 for Dressing

3

5. Ranked 3, 4 or 5 for Bowel, Bladder and Menstrual

Care, or Paramedical Services authorized for catheter

4

or colostomy care

5

6. Ranked 4 or 5 for Transfer or Paramedical Services

6

authorized for bed sore care

7

7. Ranked 3, 4 or 5 for Eating

8

8. Ranked 5 for Respiration

9 Id.

10

Alternatively, under Part B of the worksheet, a recipient

11 qualifies as being at serious risk of out-of-home placement if the
12 functional ranks in the categories of memory, orientation and
13

judgment total seven or more. Id. In contrast to the exempt and 14

15 pre-approved groups, even recipients who are presumptively

16 eligible for a restoration of hours based on Part A or B of the

17 worksheet will receive notice and a reduction of their service

18 hours.
19 The next portion of the worksheet, Part C, is titled, "IHSS
20 Supplemental Care Request Disposition." Id. Importantly, Part C
21 may only be completed "if recipient/applicant is determined to be
22
23 at serious risk" of out-of-home placement based on Part A or B.
24 Part C requires the worker to note that the recipient is

25 nonetheless not at serious risk for out-of-home placement because

26 the recipient has changed "the assignment of tasks," has 27 alternative resources to provide specified essential services, or 28

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1 has had the number of hours partially or fully restored. Id. The 2 ACL explains that by changing the assignment of tasks, the use of

3 IHSS hours is prioritized for "the most essential tasks." ACL at

4 7. However, it is not explained how eliminating the hours for
5 lower priority tasks will alleviate the risk, if even the lower
6 priority tasks are necessary to ensure that the recipient is able
7 to remain safely at home.
8 Notice of the reduction and the Supplemental Care application
9 10 process, as described in the ACL, consists of the following mailed
11 items: (1) a one page notice of action, consisting of a single

12 paragraph, (2) a letter intended to explain the reason for the

13 cuts and to inform recipients of their option to seek a

14 restoration of hours through the Supplemental Care application

15 process, (3) the Supplemental Care application and, (4) a form to
16 request a state hearing.
17

18

The CDSS has drafted four different versions of the notice of

19 action to account for factors that are not relevant here. All

20 versions of the notice of action include the following language:

21

Because of a new state law, your total monthly

authorized hours will be reduced by twenty-percent from

22

###.## to ###.##. (W&IC section 12301.07). See insert

for information about the new law.

23 ACL at 10.

24

The explanation letter is printed in Arial, a non-serif font, 25

26 with a font size of less than 14 point. The letter states,

27

28

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1

PLEASE READ THIS NOTICE CAREFULLY IT PROVIDES IMPORTANT INFORMATION ABOUT YOUR IHSS

2

Beginning January 1, 2012, the total authorized monthly

service hours you get will be reduced by 20-percent.

3

Here's why:

4

There is a new state law (Welfare and Institutions Code

section 12301.07) that requires the California Department

5

of Social Services to make a 20-percent reduction in each

6

IHSS recipient's total authorized monthly service hours. The enclosed Notice of Action shows how many authorized

7

monthly service hours you get now and how many you will get after the reduction.

8

The 20-percent reduction is in addition to the 3.6-percent

9

reduction in your authorized monthly service hours that took effect February 1, 2011, and which will continue until

10

June 30, 2012.

11

You can decide which of your authorized services will be reduced. You can choose to reduce all of the hours from one

12

authorized service or you can split it up among several different authorized services. Your provider(s) will receive

13

notification about the 20-percent reduction on his/her

timesheet(s). However, you are responsible for telling your

14

provider(s) which specific service hours you have chosen to

reduce. You do not have to tell the county how you have

15

chosen to apply the reduction; this is between you and your

provider(s).

16 If you believe that the 20-percent reduction in your

17

authorized service hours puts you at serious risk of out-

of-home placement, you can ask for IHSS Supplemental Care.

18

You must complete the enclosed IHSS Application for

Supplemental Care (SOC 877) and return it to the county by

19

March 1, 2012. The county will review your application

and determine whether you are at serious risk of out-of-

20

home placement. If the county determines that you are

at serious risk of out-of-home placement, your service

21

hours may be partially or fully restored.

22

If you ask for IHSS Supplemental Care within 15 days of

receiving this notice or mail it to the county postmarked

23

no later than January 3, 2012, the reduction in your

service hours will not go into effect and you will continue

24

to get the same number of authorized service hours you

have been getting until the county determines if you are at

25

serious risk of out-of-home placement. If the county

determines that you are at serious risk of out-of-home

26

placement, your service hours may not be reduced at all or

they may be reduced less than 20-percent.

27 The county will send you a notice telling you if your

28

application for IHSS Supplemental Care has been approved or

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denied. If you disagree with the county's decision, you can

1

request a state hearing on that decision. Information about

your hearing rights is included on the back of this notice.

2

However, requests for a state hearing only to dispute the

new state law requiring the 20-percent reduction in

3

authorized service hours will be dismissed.

4

If you do not understand the information in this notice or

you have any questions, contact your county IHSS office. 5

6 ACL Attachment A (TEMP 2257) (emphasis in original).

7

The notices and forms are to be translated into Armenian,

8 Chinese and Spanish. ACL at 4. The ACL notes that each county is

9 required generally to provide bilingual/interpretive services and

10 written translations to non-English or limited-English proficient
11 populations, as mandated by the Dymally Alatorre Bilingual
12 Services Act, Government Code section 7290 et seq., and by state
13 regulation, MPP Division 20, section 115. However, these mandates
14
15 do not prescribe specific requirements as to how each county is to

16 provide such assistance in the course of implementing the

17 reductions under SB 73 or how IHSS recipients are to be informed

18 of the availability of such assistance. The ACL does not provide

19 for notification targeted to reach IHSS recipients who are

20 visually impaired, cannot read or have mental impairments that
21 thwart their ability to understand and respond to the notice.
22

23

Plaintiffs have submitted extensive evidence relevant to

24 their likelihood of success on the merits and the irreparable harm

25 to class members. Testimony by Charles Thurman and Helen Polly

26 Stern is indicative of class members' vulnerabilities based on the

27 service cuts. 28

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1

Charles Thurman is a seventy-one year old resident of Shasta

2 County who has received IHSS since 2006. Mr. Thurman, who was

3 born blind, has had diabetes for several years, resulting in

4 numbness, known as neuropathy, in his hands and feet. He has
5 Chronic Obstructive Pulmonary Disease, a condition that
6 contributes to weakness and shortness of breath. Mr. Thurman has
7 coronary heart disease and high blood pressure, and has had four
8 stents put in his coronary arteries to help blood circulate in his
9 10 body. Finally, flattened discs and damaged vertebrae in Mr.
11 Thurman's back cause difficulty and pain in reaching, grasping,

12 lifting and standing for prolonged periods of time. Mr. Thurman

13 can only walk a few steps and is at risk for falls. Outside he
14 uses an electric wheelchair. 15
Mr. Thurman has fallen twice during the past year. Once, he 16
broke his arm and toe. The second time, he fell down on the front 17 18 patio while he was trying to get out of his wheelchair. Mr.
19 Thurman's wife had to call 911 for assistance in lifting him up.

20 The numbness in Mr. Thurman's hands impedes his ability to shave

21 safely and properly groom himself. He is also unable to cook and
22 clean extensively.
23 Mr. Thurman's wife is sixty-five, cannot read, and is also
24 disabled, having suffered several small heart attacks and endured
25 a quadruple heart bypass. She is unable to lift items weighing
26
27 more than five pounds and cannot lift her arms over her head

28

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1 without risking a heart attack. Mrs. Thurman is also an IHSS 2 recipient.

3

Mr. and Mrs. Thurman share a single IHSS care provider who

4 provides a number of services which help them continue to live
5 independently in their mobile home. The provider handles domestic
6 chores, including cooking, cleaning and laundry, assists Mr.
7 Thurman with grooming, and takes the couple to their doctors'
8 appointments, shopping and on other errands. Mr. Thurman
9 10 currently receives 31.17 hours of IHSS care per month. If his
11 IHSS hours are cut by twenty percent, he will lose 6.23 hours. As

12 it is, the provider struggles to carry out all of the required

13 assistance in the time period allotted. On occasion, the provider
14 has had to postpone grocery shopping or leave certain domestic 15
tasks incomplete due to the lack of time. As a result, Mr. and 16
Mrs. Thurman have gone without fresh food and relied upon less 17 18 nutritious microwaveable meals. In addition, a dustier, dirtier
19 home exacerbates their pulmonary problems. They are at risk of

20 falling as they try to take on certain tasks to make up for the

21 lack of IHSS assistance.

22

Helen Polly Stern is eighty-six years old, and has received

23 IHSS since 2009. Ms. Stern is physically disabled. She has
24 bilateral hip dysplasia, which is the deformation of the hip
25
joints, as well as osteoarthritis and osteoporosis. The limbs on 26

27 the right side of her body are shorter than the limbs on her left

28

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1 side. Ms. Stern has undergone numerous operations to treat this 2 condition.

3

Ms. Stern also suffers from cardiovascular, skin and bladder

4 problems. When she was fifty-eight she developed congestive heart
5 failure. She has had surgeries to remove blood clots from her
6 legs. She has poor circulation and edema--water retention--below
7 the skin of her legs resulting in painful swelling. She is prone
8 to rashes, as well. In the past, the edema and skin outbreaks
9 10 have led to open wounds and oozing sores. Ms. Stern underwent
11 skin grafting on her left leg to treat the problems. Through the

12 routine assistance provided by IHSS these problems have been

13 brought under control. Ms. Stern also suffers from chronic
14 inflammation of the bladder wall and frequent urinary tract 15
infections. She regularly experiences urinary incontinence. 16
Ms. Stern’s IHSS provider gives assistance for bowel and 17 18 bladder care, bathing, oral hygiene and grooming. This assistance
19 is critical due, in part, to Ms. Stern's incontinence and serious

20 skin problems. Ms. Stern requires frequent undressing and

21 redressing due to her accidents, which occur several times per
22 week. Ms. Stern cannot wear diapers or incontinence pads during
23 the day because of her skin problems. The provider also prepares
24 three meals a day for Ms. Stern, assists her in her wheelchair,
25 takes her to medical appointments, and does the shopping and
26 27 household chores. Ms. Stern is authorized to receive 126.1 hours
28 of IHSS care per month, but since 2010, due to a 3.6 percent cut,

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1 she has received 121.6 hours of care per month, approximately four 2 hours per day, seven days per week. Ms. Stern's provider,

3 however, normally stays five hours per day, even though she is

4 paid only for four hours. The provider works two shifts, one in
5 the morning and another in the evening.
6 A twenty percent reduction in Ms. Stern's IHSS hours would
7 undermine her ability to maintain a hygienic and healthy home and
8 to keep her skin problems under control. If Ms. Stern's IHSS
9 10 hours are cut by twenty percent, her provider will likely need to
11 find another job, interfering with her ability to work two shifts

12 and provide a free hour of service each day.

13

Plaintiffs allege eight claims in their Third Amended

14 Complaint. The first claim alleges that the notices Defendants
15 propose to send to IHSS recipients are inadequate under
16 constitutional due process standards. The second claim alleges
17
18 that ABX4 4 and SB 73 deprive IHSS recipients of their right to

19 notice and a pre-termination hearing in violation of the provision

20 of the Medicaid Act establishing right to a fair hearing. The

21 third and fourth claims allege that ABX4 4 and SB 73 violate the
22 Americans with Disabilities Act (ADA) and section 504 of the
23 Rehabilitation Act of 1973, respectively. The fifth, sixth and
24 seventh claims allege that both state enactments violate the
25 comparability, sufficiency and reasonable standards requirements
26
27 of the Medicaid Act.

28

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1

LEGAL STANDARD

2

"A plaintiff seeking a preliminary injunction must establish

3 that he is likely to succeed on the merits, that he is likely to

4 suffer irreparable harm in the absence of preliminary relief, that
5 the balance of equities tips in his favor, and that an injunction
6 is in the public interest." Winter v. Natural Res. Def. Council,
7 Inc., 555 U.S. 7, 20 (2008).
8 Alternatively, "a preliminary injunction could issue where
9 10 the likelihood of success is such that serious questions going to
11 the merits were raised and the balance of hardships tips sharply

12 in plaintiff's favor," so long as the plaintiff demonstrates

13 irreparable harm and shows that the injunction is in the public

14 interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d

15 1127, 1131 (9th Cir. 2011) (citation and internal quotation and
16
editing marks omitted). 17

18

A court employs a sliding scale when considering a

19 plaintiff's showing as to the likelihood of success on the merits

20 and the likelihood of irreparable harm. Id. "Under this

21 approach, the elements of the preliminary injunction test are
22 balanced, so that a stronger showing of one element may offset a 23
weaker showing of another." Id. 24

25

26

27

28

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1

DISCUSSION

2 I. Likelihood of Success on the Merits

3

A. Standing

4

Defendants contend that all Plaintiffs lack standing. In

5 every federal case, the court must make a threshold determination
6 of standing. Warth v. Seldin, 422 U.S. 490, 498 (1975). "The
7 question of standing 'involves both constitutional limitations on
8 federal-court jurisdiction and prudential limitations on its
9
10 exercise.'" Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting

11 Warth, 422 U.S. at 498). To satisfy the case or controversy

12 requirement of Article III, which is the "irreducible

13 constitutional minimum" of standing, a plaintiff must have
14 suffered (1) an injury in fact, (2) that is fairly traceable to 15
the actions of the defendant, such that (3) if a favorable court 16
decision were rendered, it is likely the injury would be 17 18 redressed. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
19 (1992). An "injury in fact" is more than an injury to a

20 cognizable interest; to satisfy this requirement, the injury must

21 be concrete and particularized. Id. According to the Lujan
22 court, "particularized" means that the injury must have affected
23 the plaintiff "in a personal and individual way." Id. at 560 n.1.
24 In addition to the immutable, constitutional requirements of
25 Article III, "the federal judiciary has also adhered to a set of
26 27 prudential principles that bear on the question of standing."
28 Valley Forge v. Americans United, 454 U.S. 464, 474-75 (1982).

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1 Among these prudential limits is the doctrine that a plaintiff's 2 grievance must arguably fall within the zone of interests

3 protected or regulated by the statute invoked in the suit. Allen

4 v. Wright, 468 U.S. 737, 751 (1984); Valley Forge, 454 U.S. at

5 474-75. Another prudential limit is the principle that the

6 plaintiff "generally must assert his own legal rights and
7 interests, and cannot rest his claim to relief on the legal rights
8

or interests of third parties." Warth, 422 U.S. at 499. 9

10

Where one party has standing to pursue the claims at issue, a

11 court need not separately analyze whether other parties have

12 standing to sue. Brown v. City of Los Angeles, 521 F.3d 1238,

13 1240 n.1 (9th Cir. 2008) ("[T]he presence in a suit of even one

14 party with standing suffices to make a claim justiciable."); Bates
15 v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007)
16 (en banc) ("[W]e consider only whether at least one named
17
18 plaintiff satisfies the standing requirements . . . .").

19

First, Defendants argue that named Plaintiffs Oster, Jones,

20 C.R. and L.C. lack standing to pursue any of their claims because

21 they are exempt from SB 73's reduction in hours. Plaintiffs agree
22 that Plaintiffs Oster, Jones and C.R. lack standing with respect
23 to the claims based on SB 73. However, Plaintiffs Oster, Jones
24 and C.R. have standing to pursue claims based on ABX4 4.
25 Defendants assert that L.C. lacks standing as an individual
26 27 and as a representative of a subclass pursuing claims on behalf of
28 present or future IHSS recipients who are under the age of twenty-

18

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1 one, who are entitled to the protections of the Early Periodic 2 Screening Diagnosis and Treatment (EPSDT) provisions, and have or

3 will receive notice of service cuts pursuant to SB 73. Eileen

4 Carroll, Deputy Director of the Adult Programs Division of the
5 CDSS, attested that all IHSS recipients who receive EPSDT services
6 are pre-approved for exemption from the reduction in services.
7 However, Ms. Carroll's declaration was drafted for purposes of
8 this litigation. There is no indication that the EPSDT exemption
9
10 is legally binding on the counties by virtue of statutory or

11 regulatory law or otherwise. Therefore, it appears that L.C. may

12 be subject to cuts based on SB 73 and has standing.

13

Defendants argue that the claims of named Plaintiffs Stern,

14 Thurman and Hylton are not ripe because they may request
15 restoration of their hours by applying for Supplemental Care.2
16 "[T]he possibility of future injury may be sufficient to confer
17

18 standing . . . [A] credible threat of harm is sufficient to

19 constitute actual injury for standing purposes." Cent. Delta

20 Water Agency v. United States, 306 F.3d 938, 946, 950 (9th Cir.

21 2002). Unless enjoined, the reductions here will be automatically
22 applied. Named Plaintiffs Stern, Thurman and Hylton will be 23
notified that their IHSS hours will be reduced. The injury is the 24
notice and reduction of IHSS hours, not the denial of a 25

26 2 Defendants also make this argument with respect to named
27 Plaintiff Sheppard, but Plaintiffs no longer propose him as a class representative. Docket No. 195.
28

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1 recipient's request for restoration of hours. Defendants rely 2 upon Summar H. v. Fukino, 2009 WL 1249306 (D. Haw.), but that

3 decision is not binding on this Court and is not persuasive in

4 light of controlling Ninth Circuit authority.

5

The present dispute is appropriate for adjudication, even

6 under the standard for prudential ripeness that Defendants cite:
7 (1) the fitness of the issues for judicial decision; and (2) the
8

hardship to the parties of withholding court consideration. See 9

10 Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433

11 F.3d 1199, 1211 (9th Cir. 2006). Plaintiffs' challenge to cuts

12 mandated by SB 73 is not abstract. The fact that some

13 Supplemental Care applications may be granted to restore hours for
14 individual IHSS recipients does not defeat the ripeness of the 15
dispute Plaintiffs have presented. 16
Next, Defendants argue that Union Plaintiffs lack Article III 17 18 standing. Union Plaintiffs respond that they satisfy the
19 requirements for associational standing. "[A]n association has

20 standing to bring suit on behalf of its members when: (a) its

21 members would otherwise have standing to sue in their own right;
22 (b) the interests it seeks to protect are germane to the
23 organization's purpose; and (c) neither the claim asserted nor the
24 relief requested requires the participation of individual members
25 in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432
26
27 U.S. 333, 343 (1977).

28

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United States District Court For the Northern District of California

1

Defendants assert that Union Plaintiffs have not established

2 that any of their members would have standing to sue in their own

3 right. However, Laura Soto is a member of Plaintiff United

4 Domestic Workers of America, AFSCME, Local 3930, AFL-CIO (UDW),
5 and provides IHSS services to named Plaintiff Hylton, who will
6 receive a notice of a twenty percent reduction in her hours.
7 Declaration of Laura Soto, Docket No. 481, at ¶¶ 1-2; Second
8 Declaration of Gary Voice, Docket No. 485, at ¶ 19;3 Second
9
10 Declaration of Andrea Hylton, Docket No. 371, at ¶ 22. Similarly,

11 Katie Phillips, another UDW member, provides IHSS services to her

12 adult son, who suffers from paranoid schizophrenia and depression.
13 Declaration of Katie Phillips, Docket No. 393, at ¶¶ 2-3; Voice
14 Dec. at ¶ 19. Ms. Phillips' son faces a twenty percent reduction
15 in hours, which will adversely impact Ms. Phillips. Phillips Dec.
16 at ¶ 22. Ms. Soto and Ms. Phillips have standing to sue in their
17
18 own right because they will suffer economic harm as a result of

19 the reductions. See Independent Living Ctr. v. Shewry, 543 F.3d

20 1050, 1065 (9th Cir. 2008) ("Petitioners include independent

21 3 The Soto and Voice declarations were submitted in support

22 of Plaintiffs' reply brief. Defendants objected to the submission

of new evidence in connection with the reply, but both 23 declarations directly respond to standing issues that Defendants

24

raised in their opposition. Furthermore, Defendants' specific objection to the Soto declaration did not address the testimony

25 cited here. Defendants did not specifically object to the Voice Declaration, although they stated that they did not have

26 sufficient time to review all of the declarations. Federal Rules
of Evidence 402, 602, 701, 702 and 802 do not require the 27 exclusion of Mr. Voice's testimony. Defendants’ objections are

overruled. 28

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1 pharmacies and health care providers participating in the State's 2 Medi-Cal program that, according to their complaint, will be

3 'directly injured, by loss of gross income' when the ten-percent

4 rate reduction takes effect.").

5

Contrary to Defendants' argument, Union Plaintiffs' claims in

6 this litigation are also germane to their organizational
7 interests. Union Plaintiffs represent IHSS providers who are
8

seeking to prevent the reduction of IHSS benefits, which will, in 9

10 turn, lessen the amount of work available to their members. Union

11 Plaintiffs and IHSS recipients have a mutual interest in the

12 success of the litigation. From the beginning of this lawsuit,

13 the joint goal of all Plaintiffs has been to ensure that IHSS
14 recipients receive the services that they need to remain safely in 15
their homes. 16
The third factor under Hunt is satisfied because the 17 18 participation of individual members is not necessary in suits that
19 seek only prospective, injunctive relief, rather than damages.

20 United Food and Commercial Workers v. Brown Group, Inc., 517 U.S.

21 544, 554 (1996) (third Hunt prong precludes standing “when an
22 organization seeks damages on behalf of its members.”);
23 International Union v. Brock, 477 U.S. 274, 287 (1986) (union has
24 standing to challenge government’s interpretation of Trade Act,
25 where suit sought no damages and thus did not entail
26
27 “individualized proof.”). Thus, Union Plaintiffs’ members need

28

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1 not be joined as parties in order for Union Plaintiffs to have 2 associational standing.

3

Defendants, citing Hodgers-Durgin v. de la Vina, 199 F.3d

4 1037, 1045 (9th Cir. 1999), also argue that Union Plaintiffs lack
5 standing because the claims asserted and relief requested require
6 the demonstration of injury to a named union member Plaintiff.
7 Unlike the class in Hodgers, Plaintiffs in this case do not invoke
8 injury merely to unnamed Plaintiffs for the purpose of
9
10 establishing Article III standing. Furthermore, the Ninth Circuit

11 recently reiterated, "An organization may establish a sufficient

12 injury in fact if it substantiates by affidavit or other specific

13 evidence that a challenged statute or policy frustrates the
14 organization's goals and requires the organization 'to expend 15
resources in representing clients they otherwise would spend in 16
other ways.'" Comite de Jornaleros de Redondo Beach v. City of 17 18 Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (citing El
19 Rescate Legal Servs., Inc. v. Executive Office of Immigration

20 Review, 959 F.2d 742, 748 (9th Cir. 1992)). Union Plaintiffs have

21 submitted evidence to this effect. Declaration of David Werlin,

22 Docket No. 488, at ¶¶ 1-7; Second Voice Dec. at ¶¶ 1-19.4 23

24

4 Defendants' objections to this evidence are overruled.

25 Plaintiffs' reply evidence was submitted in direct response to the standing issues Defendants raised in their opposition, and the

26 Court has considered and overruled the objections based on
evidentiary rules barring irrelevant testimony, hearsay testimony, 27 testimony lacking personal knowledge, and improper expert and

layperson testimony. 28

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1

Defendants also argue that Union Plaintiffs lack prudential

2 standing because their claims are not within the "zone of

3 interests" protected by any of the laws on which Plaintiffs base

4 their claims. This argument also fails. The zone of interests
5 test "is not meant to be especially demanding; in particular,
6 there need be no indication of congressional purpose to benefit
7 the would-be plaintiff." Clarke v. Securities Indus. Ass'n, 479
8 U.S. 388, 399-400 (1987). "The proper inquiry is simply 'whether
9 10 the interest sought to be protected by the complainant is arguably
11 within the zone of interests to be protected . . . by the

12 statute.' . . . [W]e first discern the interests 'arguably . . .

13 to be protected' by the statutory provision at issue; we then
14 inquire whether the plaintiff's interests affected" by the action 15
in question are among them. National Credit Union Admin. v. First 16
Nat'l Bank & Trust Co., 522 U.S. 479, 492 (1998) (emphasis in 17 18 original) (citation omitted). "Prudential standing is satisfied
19 unless [the party's] interests are so marginally related to or

20 inconsistent with the purposes implicit in the statute that it

21 cannot reasonably be assumed that [the legislature] intended to
22 permit the suit." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122
23 (9th Cir. 2009) (quotation marks and citations omitted; brackets
24 in original).
25 Here, IHSS providers are within the zone of interests of the
26 27 Medicaid Act, the ADA and the Rehabilitation Act because the
28 services they provide are a critical component of the mandates and

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1 benefits established by those laws. Although Plaintiffs have not 2 cited cases holding that IHSS providers are within the zone of

3 interests of these statutes, several courts have come to a similar

4 conclusion in the context of persons who provide care subsidized
5 by the Social Security Act. See California Ass'n of Bioanalysts
6 v. Rank, 577 F. Supp. 1342, 1347 n.6 (C.D. Cal. 1983) ("While
7 Medicaid providers are clearly not the primary beneficiaries of
8 the Social Security Act . . . the majority view [is] that such
9 10 providers are arguably within the zone of interests protected
11 under the statute."); see also Edgewater Nursing Ctr., Inc. v.

12 Miller, 678 F.2d 716, 718 (7th Cir. 1982) (plaintiff providers

13 "have standing to challenge any feature of the state's plan that
14 violates the [Medicaid] statute to their detriment"); Minnesota 15
Ass'n of Health Care Facilities, Inc. v. Minnesota Dep't of Pub. 16
Welfare, 602 F.2d 150, 153 n.6 (8th Cir. 1979) ("Appellants, as 17 18 Medicaid providers, do have standing to challenge alleged
19 violations of the Social Security Laws."). Thus, under the

20 “arguably protected” standard, Union Plaintiffs are within the

21 zone of interests of the statutes at issue.

22

In sum, although Union Plaintiffs need not establish standing

23 in their own right because the individual Plaintiffs have
24 standing, the Court concludes that Union Plaintiffs have satisfied
25
the standing requirements. 26

27

28

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1

B. Medicaid Act Claims

2

Defendants argue that the Court should defer ruling on the

3 merits of Plaintiffs' reasonable standards and sufficiency claims

4 under the Medicaid Act, pending the Supreme Court's resolution of
5 an appeal certified to address whether Medicaid recipients and
6 providers may maintain a cause of action under the Supremacy
7 Clause to enforce provisions of the statute. In the order
8 explaining the injunction against the implementation of ABX4 4,
9
10 the Court relied on Ninth Circuit precedent, specifically Shewry,

11 543 F.3d at 1056-57, to find that Plaintiffs stated a claim under

12 the Supremacy Clause, even though the Medicaid Act provision

13 requiring reasonable standards is not privately enforceable under
14 42 U.S.C. § 1983. October 23, 2009 Order at 18-19. Defendants 15
appealed the Court's preliminary injunction. On January 28, 2011, 16
the Ninth Circuit withdrew submission of the case and deferred 17 18 ruling on the appeal, pending the Supreme Court's decision in the
19 consolidated appeals of Maxwell-Jolly v. Indep. Living Ctr., 572

20 F.3d 644 (9th Cir. 2009);5 Maxwell-Jolly v. Calif. Pharmacists

21 Ass'n, 374 Fed. Appx. 690 (9th Cir. 2010); and Maxwell-Jolly v.

22 Santa Rosa Mem. Hosp., 380 Fed. Appx. 656 (9th Cir. 2010). On
23 February 23, 2012, the Supreme Court remanded the consolidated
24 appeal to the Ninth Circuit due a change in the procedural posture
25

26

5 Maxwell-Jolly v. Indep. Living Ctr., 572 F.3d 644 (9th Cir.

2009), is a later appeal arising from the same case that produced 27 the decision in Independent Living Ctr. v. Shewry, 543 F.3d 1050,

1065 (9th Cir. 2008). 28

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1 of the cases and did not resolve the certified question.6 Douglas

2 v. Independent Living Center of Southern California, Inc., Nos.

3 09-958, 09-1158, and 10-283, slip. op. at 5-8 (U.S.). The Court

4 declines to defer a decision on Plaintiffs' request for a

5 preliminary injunction, pending the Ninth Circuit's resolution of

6 the appeal on remand.
7 1. Reasonable Standards Requirement
8

9

The Medicaid Act requires that all participating states use

10 “reasonable standards . . . for determining eligibility for and

11 the extent of medical assistance under the plan which . . . are

12 consistent with the objectives” of the program. 42 U.S.C.
13 § 1396a(a)(17). The primary objectives of the Medicaid program
14 are to provide medical assistance to individuals whose income and
15 resources are insufficient to meet the costs of necessary medical
16 services and to furnish “rehabilitation and other services to help
17
18 such . . . individuals attain and retain capability for

19 independence or self care.” 42 U.S.C. § 1396-1.

20

6 The Supreme Court explained that to qualify for federal

21 Medicaid funds, states must submit a state Medicaid plan that details the nature and scope of services in their state's Medicaid

22 program for review and approval by the federal agency, Centers for

Medicare & Medicaid Services (CMS). In addition, states must 23 submit, from time to time, any amendments to the plan for

24

approval. In October 2011, after the Supreme Court heard oral argument in Independent Living Center, CMS approved several of

25 California's statutory amendments to the plan. The Supreme Court found that the procedural posture of the case had changed, such

26 that respondent Medicaid providers and beneficiaries may be

required to proceed under the Administrative Procedure Act, 5 27 U.S.C. § 701, et seq. On that basis, the Court remanded the

appeal to the Ninth Circuit for further consideration. 28

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1

Plaintiffs have demonstrated that they are likely to succeed

2 on their claim that SB 73 violates the reasonable standards

3 mandate of the Medicaid Act. The reduction in IHSS hours stems

4 from California's budget crisis as opposed to evidence that the
5 need for IHSS hours has been incorrectly evaluated. It is true
6 that California is experiencing a budget crisis. Although
7 budgetary needs may be considered in determining that service cuts
8 are required, it may not be the sole reason for the reduction.
9 10 See Independent Living Center, 572 F.3d at 656 ("the State's
11 decision to reduce Medi-Cal reimbursement rates based solely on

12 state budgetary concerns violated federal law."); Beno v. Shalala,

13 30 F.3d 1057, 1069 n.30 (9th Cir. 1994). Defendants assert that

14 the implementation of the cuts is reasonable in that specific
15 groups of recipients are exempt because "they are categorically at
16 serious risk of out-of-home placement as a result of the
17
18 reduction." ACL at 4.

19

However, certain IHSS recipients will be cut back to twenty

20 percent fewer hours for reasons unrelated to need. These IHSS

21 recipients are not in an exempt or pre-approved group and will
22 receive a notice of action, even though they are presumptively at
23 serious risk of out-of-home placement. Only if these seriously
24 at-risk recipients submit a Supplemental Care application will
25 they be considered for a restoration of needed service hours. In
26 27 this respect, eligibility for services is determined, not by a
28 reasonable need-based standard, but by the ability of seriously

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1 at-risk recipients to request in a timely manner a restoration of 2 their hours. The CDSS could readily identify many of these

3 seriously at-risk recipients, just as they have done with the

4 exempt and pre-approved groups, because the determination that
5 they are seriously at risk is based on information contained in
6 CMIPS. Thus, even if rote reliance on functional ranks were a
7 reasonable basis to determine need, Defendants' implementation
8 plan is likely to be found unreasonable. Defendants' plan would
9 10 deliberately cut services for IHSS recipients who are already
11 known to be presumptively eligible for a restoration of their lost

12 hours, should they protest the twenty percent reduction by

13 applying for Supplemental Care. Defendants seemingly expect the

14 State will save funds by cutting the service hours of those who

15 are unable to protest the hours reduction.
16 2. Comparability Requirement
17

18

The “comparability” requirement of the Medicaid Act mandates

19 comparable services for individuals with comparable needs; it is

20 violated when some recipients are treated differently than others

21 with the same level of need. 42 U.S.C. § 1396a(a)(10)(B); see
22 also 42 C.F.R. § 440.240; Jenkins v. Washington State Dep’t of
23 Social & Health Servs., 160 Wash. 2d 287, 296-97 (2007); Sobky v.
24 Smoley, 855 F. Supp. 1123, 1139 (E.D. Cal. 1994) (comparability
25 requirement “creates an equality principle” for all medically
26 27 needy individuals); Schott v. Olszewski, 401 F.3d 682, 688-89 (6th
28 Cir. 2005); White v. Beal, 555 F.2d 1146, 1151-52 (3d Cir. 1977).

29

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1 A state may “place appropriate limits on a service based on such 2 criteria as medical necessity or on utilization control
3 procedures.” 42 C.F.R. § 440.230(c)(2). However, a state may not
4 “arbitrarily deny or reduce the amount, duration, or scope of a 5 required service . . . to an otherwise eligible recipient solely 6
because of the diagnosis, type of illness, or condition.” 42 7
C.F.R. § 440.230(c)(1). 8
Defendants argue that SB 73 does not violate the 9 10 comparability requirement because the exempted and pre-approved 11 groups that categorically escape the twenty percent reduction are
12 identified using objective, needs-based criteria, and recipients
13 who receive the notice of action are afforded an opportunity to 14 seek individualized review. Plaintiffs counter that the 15
comparability requirement is violated because the use of 16
functional ranks to determine service hours will result in 17 18 recipients with comparable needs receiving different levels of 19 IHSS. As the Court explained in its October 23, 2009 order, the
20 use of functional ranks to determine eligibility for services
21 likely violates the comparability requirement because it does not
22 reasonably measure the individual need of a disabled or elderly 23
person for a particular service. October 23, 2009 Order at 12-13. 24
The functional rank of two, which recognizes a need for verbal 25
assistance, compared to the ranks of three, four and five, 26 27 reflects the nature of the assistance needed, not the severity of 28 the need. For example, a person with a cognitive disorder may
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1 only require verbal reminders or encouragement to eat and or take 2 her medications, but the absence of such assistance could have a

3 dramatic, negative impact on the recipient's health and ability to

4 live safely at home.

5

Furthermore, it is likely that some recipients who are

6 seriously at-risk for out-of-home placement and receive notice of
7 the reduction will not be able timely to complete a Supplemental
8

Care application. Thus, the reductions will go into effect for 9

10 them. Yet, recipients with comparable or lesser needs who are

11 able to and do request Supplemental Care may preserve their hours

12 of service. A violation of the comparability requirement is

13 likely to result from the automatic imposition of the twenty
14 percent reduction on those IHSS recipients who do not apply for 15
Supplemental Care before the deadline. 16
As noted above, while recipients in State Home and Community 17 18 Based Services waiver programs are exempt from the cut, recipients
19 who qualify for these programs but are on waiting lists are not

20 exempt. Defendants argue that Congress has waived the

21 comparability requirement with respect to these programs by
22 allowing states to provide specific services to certain targeted
23 populations. See 42 U.S.C. § 1396n(c). This does not permit the
24 State to violate the comparability mandate by cutting the basic
25 services for some recipients with the same diagnoses and needs.
26 27 IHSS recipients on the waiting lists who are eligible for the
28 waiver programs should be eligible for the exemption granted to

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1 those in the programs. The failure to exempt such recipients 2 likely violates the comparability mandate.

3

Under the plan to implement SB 73, the differences in IHSS

4 hours authorized for those who are exempted or pre-approved,
5 compared to those are presumptively eligible for a restoration of
6 hours, but fail to apply for it, are due to the CDSS's decision
7 not to identify seriously at-risk recipients prior to subjecting
8 them to a twenty percent reduction and, instead, to require such
9 10 individuals to submit a Supplemental Care application. Therefore,
11 Plaintiffs are likely to succeed on their comparability claim.

12

3. Sufficiency Requirement

13

The regulations implementing the Medicaid Act contain a

14 “sufficiency” requirement, which mandates, “Each service must be
15 sufficient in amount, duration, and scope to reasonably achieve
16 its purpose.” 42 C.F.R. § 440.230(b). When a state commits to
17
18 provide a Medicaid service, the sufficiency requirement ensures

19 that it adequately fulfills its commitment.

20

Defendants first argue that federal regulation 42 C.F.R.

21 § 440.230(b) cannot provide the basis for Plaintiffs' sufficiency
22 claim. However, as the Court noted in its October 2009 order,
23 federal regulations may carry preemptive force, see, e.g., Geier
24 v. American Honda Motor Co., 529 U.S. 861, 884-86 (2000), and, as
25 such, they may provide a cause of action for injunctive relief
26
27 under the Supremacy Clause.

28

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1

The IHSS hours authorized for recipients are those that the

2 State has determined to be necessary to permit the recipients to

3 remain safely in their homes. MPP § 30-761.1. As a result, the

4 twenty percent reduction in these services will likely leave
5 affected individuals without a level of service sufficient to
6 achieve the purpose of the program.
7 The Supplemental Care application does not alter this likely
8 outcome because the review process occurs only after recipients
9 10 submit an application by the deadline. It is probable that some
11 recipients will not be able to apply and that some who need

12 restoration of IHSS hours will attempt to cope with the reduction,

13 allowing the deadline to pass before realizing the full impact of
14 the reduced hours. 15
The State concedes that the test it will use to restore hours 16
pursuant to the Supplemental Care application--hours necessary to 17 18 avoid serious risk of out-of-home placement--is identical to the
19 standard for the authorization of IHSS hours that was used in the

20 first place--necessary for the IHSS recipient to remain safely at

21 home. Nonetheless, the Supplemental Care worksheet demonstrates
22 that IHSS recipients who do not meet the test in Parts A or B of
23 the worksheet, because they have functional ranks that entail only
24 verbal or some human assistance to complete certain functions,
25 will not be eligible for a restoration of their reduced IHSS
26 27 hours. Based on their functional ranks, IHSS recipients will be
28 deprived of hours that the State has previously determined are

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1 necessary for them to remain safely at home. The worksheet 2 requires a mechanistic calculation that leaves no opportunity to

3 consider individual need that may exist in spite of a recipient's

4 seemingly disqualifying functional ranks. The only individualized
5 determination allowed is to cut the hours for which an IHSS
6 recipient would otherwise be eligible, if he or she can manage
7 some other way. The Supplemental Care application process
8 exacerbates the fact that functional ranks are not an accurate
9 10 measure of need in the first place, because functional ranks
11 indicate the nature of the assistance, rather than the importance

12 of the need for the assistance to ensure that the recipient is

13 able to remain safely at home.

14

Plaintiffs have demonstrated a likelihood of succeeding on

15 the merits of their claim that SB 73 imposes cuts that will
16 deprive IHSS recipients of IHSS hours sufficient to ensure that
17

18 they are able to remain safely at home.

19

C. ADA and Rehabilitation Act Claims

20

The ADA and the Rehabilitation Act prohibit discrimination

21 based on disability. 42 U.S.C. § 12132; 29 U.S.C. § 794(a).
22 Unnecessary isolation is a form of discrimination against people
23 with disabilities. As the Supreme Court has explained,
24 “unjustified isolation” of the disabled amounts to discrimination
25 because institutional placement “perpetuates unwarranted
26 27 assumptions that persons so isolated are incapable or unworthy of
28 participating in community life” and “severely diminishes everyday

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1 life activities of individuals, including family relations, social 2 contacts, work options, economic independence, educational

3 advancement, and cultural enrichment.” Olmstead v. L.C. ex rel.

4 Zimring, 527 U.S. 581, 597, 600-01 (1999). Thus, both the ADA and
5 the Rehabilitation Act contain an “integration mandate” which
6 “serves one of the principal purposes of Title II of the ADA:
7 ending the isolation and segregation of disabled persons.” Arc of
8 Washington State v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005).
9 10 States are required to provide care in integrated environments for
11 as many disabled persons as is reasonably feasible, so long as

12 such an environment is appropriate to their health needs.

13 Specifically, the ADA regulations provide: “A public entity shall
14 administer services, programs, and activities in the most 15
integrated setting appropriate to the needs of qualified persons 16
with disabilities.” 28 C.F.R. § 35.130(d). “The ‘most integrated 17 18 setting’ is defined as ‘a setting that enables individuals with
19 disabilities to interact with non-disabled persons to the fullest

20 extent possible.’” Brantley, 2009 WL 2941519, at *6 (citing 28

21 C.F.R. pt. 35 app. A; Olmstead, 527 U.S. at 592). Plaintiffs who

22 currently reside in community settings may assert ADA integration

23 claims to challenge state actions that give rise to a risk of
24 unnecessary institutionalization. See Fisher v. Oklahoma Health
25
Care Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003). 26

27

Defendants assert that Plaintiffs are unlikely to succeed

28 because they do not have Article III standing to pursue their ADA

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1 claim. Defendants assert that individual Plaintiffs have failed 2 to demonstrate injury under Article III because they have not

3 shown that they are at imminent risk of institutionalization. For

4 the reasons explained above, Plaintiffs have Article III standing
5 because they face a "credible threat" of harm in that they are
6 likely to face a twenty percent reduction in their IHSS service
7 hours. See Cent. Delta Water Agency, 306 F.3d at 946. Defendants
8 confuse the constitutional standing requirement of injury in fact
9
10 with the merits of Plaintiffs' claim that SB 73 unlawfully creates

11 a risk of unnecessary institutionalization. The record

12 demonstrates the likelihood that IHSS recipients who are

13 presumptively eligible for a restoration of hours will not have
14 their hours restored because they will be unable timely to submit 15
a request for Supplemental Care. The evidence also shows that 16
Plaintiffs are likely to succeed in demonstrating that the loss of 17 18 IHSS hours will compromise the health and well-being of IHSS
19 recipients such that they will be at serious risk of

20 institutionalization.7 M.R. v. Dreyfus, 663 F.3d 1100, 1116 (9th

21 Cir. 2011) ("An ADA plaintiff need not show that 22 institutionalization is 'inevitable' or that she has 'no choice' 23

24

25

7 Defendants' objections to IHSS recipients' testimony about

the health risks posed by the twenty percent reduction in IHSS

26 hours are overruled. The declarants have personal knowledge of

the likely impact that the lost hours will have on their health 27 and their ability to remain safely at home based on their personal

knowledge of their own health status and past experiences. 28

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1 but to submit to institutional care in order to state a violation 2 of the integration mandate.").

3

Defendants also argue that Plaintiffs' claim that the ADA and

4 Rehabilitation Act require the continuation of IHSS hours for
5 certain individuals amounts to impermissible commandeering under
6 the Tenth Amendment. This argument is foreclosed by Lovell v.
7 Chandler, 303 F.3d 1039 (9th Cir. 2002). There the Ninth Circuit
8 rejected the argument that Congress exceeded its Spending Clause
9 10 powers and the conditions set forth in South Dakota v. Dole, 483
11 U.S. 203 (1987), when it approved section 504 of the

12 Rehabilitation Act, 29 U.S.C. § 794(a). Id. at 1051. The court

13 reasoned that Congress has a strong interest in ensuring that
14 federal funds are not used in a discriminatory manner and in 15
holding states responsible when they violate funding conditions. 16
Id. The court also found an inadequate showing of "extraordinary 17 18 circumstances . . . that would allow us to hold that Congress
19 exceeded constitutional boundaries." Id. (internal citations

20 omitted).

21

Finally, Defendants have not established that the integration

22 mandate is limited to deterring the unjustified isolation of
23 disabled individuals in twenty-four-hour residential nursing care
24 centers.
25 Plaintiffs have established their likelihood of success on
26
27 the merits of their claims under the ADA and the Rehabilitation

28 Act.

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1

D. Due Process Claims

2

When parties are threatened with the loss of a protected

3 property interest, due process under the Fourteenth Amendment

4 requires that a state must provide “notice reasonably calculated,
5 under all the circumstances, to apprise interested parties of the
6 pendency of the action and afford them an opportunity to present
7 their objections.” See Mullane v. Central Hanover Bank & Trust
8 Co., 339 U.S. 306, 314-15 (1950). IHSS recipients must receive
9 10 “timely and adequate notice detailing the reasons” for the adverse
11 action and “an effective opportunity to defend” themselves.

12 Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970). To comport with

13 due process, notice must be “tailored to the capacities and
14 circumstances” of the recipients who must decide whether to 15
request a hearing. Id. at 268. “The government must consider 16
unique information about an intended recipient regardless of 17 18 whether a statutory scheme is reasonably calculated to provide
19 notice in the ordinary case.” Jones v. Flowers, 547 U.S. 220, 221

20 (2006).

21

Plaintiffs are likely to show that notice of the reductions

22 is not reasonably calculated to inform IHSS recipients. The
23 explanation letter is deficient in several respects. The letter
24 does not use simple language. It uses small print, and a font and
25 formatting that undermine the letter's readability. Declaration
26

27

28

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1 of Gavin Huntley-Fenner, Ph.D., at ¶¶ 14-17.8 Relying on the

2 results of various readability tests, among other things, Dr.

3 Huntley-Finner opined that the information contained in the letter

4 was presented at a level of reading difficulty well above that of
5 many adult beneficiaries of Medi-Cal, California's Medicaid
6 program. The plan fails to provide for any method of notification
7 other than written. Thus, Plaintiffs are likely to demonstrate
8 9 that the explanation letter is not reasonably calculated to inform
10 IHSS recipients who have visual and cognitive disabilities, or

11 read at a lower level or not at all.

12

Furthermore, the letter does not specifically address how to

13 access translations of the notices and forms or even state that
14 they are available. The IHSS recipient population includes people
15 who cannot read English, Spanish, Armenian or Chinese. Therefore,
16 the letter is not reasonably calculated to provide notice to the
17
18 linguistically diverse population of IHSS recipients.

19

The letter erroneously states that section 12301.07 of the

20 California Welfare and Institutions Code requires a twenty percent

21 reduction of each IHSS recipient's service hours, without noting

22 8 The Court overrules Defendants' evidentiary objection to

23 Dr. Huntley-Fenner's testimony that it amounts to improper expert

24

opinion. Dr. Huntley-Fenner's declaration establishes his qualifications as expert witness. Furthermore, his consideration

25 of facts that underlie his opinions as to the readability of Defendants' notices and his opinions themselves do not amount to

26 statements on the ultimate legal issue of whether the notices were

adequate under due process standards. Fed. R. Evid. 704 ("An 27 opinion is not objectionable just because it embraces an ultimate

issue.") 28

39

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United States District Court For the Northern District of California

1 the exceptions, and could be read to suggest that the twenty 2 percent reduction will end on June 30, 2012.

3

The letter does not state in a plain and forthright manner

4 that Supplemental Care amounts to the restoration of lost hours.

5 It does not explain in a simple manner each enclosed form, or
6 include step-by-step instructions for completing and mailing the
7 necessary forms. A recipient could fail to understand that the
8 Supplemental Care application must be submitted immediately and
9
10 that the form to request a hearing is submitted only if the former

11 is denied and the recipient wishes to protest the denial. The

12 letter further states that requests for a hearing only to dispute

13 the new law requiring the twenty percent reduction will be dismissed,

14 which could confuse or mislead a recipient to believe that the hearing

15 is not an opportunity to appeal the twenty percent reduction of his or

16 her own service hours that resulted from the law. Although the
17 letter states that a recipient may contact his or her county IHSS
18 office for further information, it does not identify the relevant
19
20 contact person or phone number to call.

21

Finally, the Supplemental Care application is inadequate.

22 The application requires recipients to explain why they require

23 the restoration of their hours but does not mention functional

24 ranks. This suggests that the CDSS will consider the written
25 explanation as the basis for the decision to restore hours. IHSS
26 recipients are not informed of the role of functional ranks in the
27 determination of whether IHSS hours will be restored or of their
28

40

Case4:09-cv-04668-CW Document506 Filed03/02/12 Page41 of 44

United States District Court For the Northern District of California

1 own disqualifying functional ranks. These omissions and 2 misleading statements leave IHSS recipients uninformed of the

3 actual reason for the decision to reduce their hours and unable to

4 rebut it effectively.

5

Defendants assert that Jones, 547 U.S. at 200, and Covey v.

6 Town of Somers, 351 U.S. 141 (1956), are inapposite because they
7 address the manner of notice, rather than content. This
8

distinction is immaterial. Jones involved the sale of property by 9

10 the state due to the owner's tax delinquency and the adequacy of

11 notice to the owner. The state had mailed a certified letter in

12 an attempt to notify the owner of the tax delinquency, but the

13 notice was returned as unclaimed. Citing Mullane, the Court
14 reasoned that the means employed to give notice "must be such as 15
one desirous of actually informing" the individual entitled to 16
notice. The content of the State's notice, as well as the manner 17 18 of its delivery, may evidence the State's desire actually to
19 inform the IHSS recipients of the way to escape the twenty percent

20 reduction.

21

Plaintiffs have demonstrated that they are likely to succeed

22 on their due process claims.
23 II. Irreparable Harm, Balance of Hardships and the Public Interest
24 As the Court noted in its first preliminary injunction order,
25 numerous federal courts have recognized that the reduction or
26
27 elimination of public medical benefits irreparably harms the

28

41

Case4:09-cv-04668-CW Document506 Filed03/02/12 Page42 of 44

United States District Court For the Northern District of California

1 participants in the programs cut. October 23, 2009 Order at 26. 2 See also, M.R., 663 F.3d at 1108-1115.

3

The substantial evidence submitted by Plaintiffs, as

4 exemplified by Mr. Thurman's and Ms. Stern's declarations,
5 demonstrates the likelihood of irreparable harm resulting from the
6 reduction in IHSS hours. Plaintiffs like these have shown that
7 the reduction in services, including domestic services, places
8 their health in jeopardy, such that they are more likely to fall
9 10 and injure themselves, eat less healthily or live in unhygienic
11 conditions. These unhealthy conditions increase the risk that

12 they will be unable to live safely at home and instead will be

13 institutionalized.

14

Because Defendants' interests are strictly fiscal and

15 Plaintiffs' interests affect their health, well-being and ability
16 to remain safely at home, the equities clearly weigh in favor of
17

18 Plaintiffs. M.R., 663 F.3d at 1120 (stating that the Ninth

19 Circuit has "several times held that the balance of hardships

20 favors beneficiaries of public assistance who may be forced to do

21 without needed medical services over a state concerned with
22 conserving scarce resources.").
23 In fact, the deprivation of essential services to the
24 disabled is part of the assessment of the public interest at
25 stake. Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).
26 27 Further, Plaintiffs have demonstrated that IHSS is likely to be
28 cost-effective as compared to the expenses incurred when disabled

42

Case4:09-cv-04668-CW Document506 Filed03/02/12 Page43 of 44

United States District Court For the Northern District of California

1 and elderly individuals are institutionalized. See e.g. Kline 2 Decl., Docket No. 31, Ex. G at 7, Table 2; Second Declaration of

3 Dionne Jimenez, Docket No. 373, at ¶¶ 3-7. This evidence further

4 supports that the balance of equities and public interest weighs

5 in favor of Plaintiffs. M.R., 663 F.3d at 1120 ("Plaintiffs have
6 advanced such evidence . . . showing that if program beneficiaries
7 currently treated in their homes transition to more costly
8 institutional care, the state will not realize its anticipated
9
10 savings.").

11

In addition to establishing a likelihood of success on the

12 merits, Plaintiffs have demonstrated their likelihood of

13 irreparable harm, that the balance of equities weighs in their
14 favor, and that an injunction serves the public interest. 15
CONCLUSION 16
Because Plaintiffs have demonstrated a likelihood of success 17 18 on the merits and irreparable harm, such that the equities weigh
19 in their favor, their request for a preliminary injunction is

20 granted. The injunction will issue in a separate order. The

21 Court recognizes California's continuing budget crisis, and will
22 not foreclose all reductions of IHSS hours. The State may cut
23 IHSS hours if unnecessary hours are being compensated, but may not
24 impose cuts mechanistically and then determine the actual needs
25 thereafter. And, the State must give adequate notice to IHSS
26 27 recipients of the reasons for the reduction of their authorized
28 service hours, and of their remedies.

43

Case4:09-cv-04668-CW Document506 Filed03/02/12 Page44 of 44

United States District Court For the Northern District of California

1

At the hearing on the motion for a preliminary injunction,

2 the Court asked the parties to meet and confer and attempt to

3 agree on proposed terms for an injunction that would remedy the

4 defects the Court found, in the most effective and least intrusive
5 way. The parties have not reached agreement. Nonetheless, the
6 Court would entertain such proposals to modify the injunction.
7 The Court exercises its discretion to waive the bond
8 requirement for Plaintiffs because they are indigent and to ensure
9 10 their ability to access the courts on behalf of themselves and
11 other class members. See Save Our Sonoran, Inc. v. Flowers, 408

12 F.3d 1113, 1126 (9th Cir. 2005); Walker v. Pierce, 665 F. Supp.

13 831, 844 (N.D. Cal. 1987).

14

IT IS SO ORDERED.

15

16 17 Dated: 3/2/2012 18

CLAUDIA WILKEN United States District Judge

19

20

21

22

23

24

25

26

27

28

44

Case4:09-cv-04668-CW Document507 Filed03/02/12 Page1 of 4

United States District Court For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 DAVID OSTER, et al.,

No. C 09-4668 CW

8

Plaintiffs,

9

v.

PRELIMINARY INJUNCTION

10 WILL LIGHTBOURNE, Director of the California Department of Social
11 Services; TOBY DOUGLAS, Director of the California Department of
12 Health Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE
13 SERVICES; and CALIFORNIA DEPARTMENT OF SOCIAL SERVICES,
14
Defendants. 15 ________________________________/

16

17

IT IS HEREBY ORDERED that, except in accordance with the

18 order below, Defendants and their successors, agents, officers,

19 servants, employees, attorneys and representatives and all persons

20 acting in concert or participating with them are enjoined from
21 implementing the provisions of SB 73 that enacted section 12301.07
22 of the California Welfare and Institutions Code, which imposes a
23 twenty percent reduction in authorized hours of In-Home Support
24 Services for IHSS recipients not exempt or pre-approved for
25 26 exceptions to the reductions, and establishes a Supplemental Care
27 application process available to IHSS recipients to seek the

28 restoration of reduced hours.

Case4:09-cv-04668-CW Document507 Filed03/02/12 Page2 of 4

United States District Court For the Northern District of California

1

Defendants may reduce IHSS recipients' service hours by

2 twenty percent, or any other number, only after conducting a needs

3 reassessment to determine the number of IHSS service hours that

4 are necessary to enable the recipient to remain safely at home. A

5 reduction of IHSS hours shall not be based on functional ranks
6 alone, or on Functional Index Scores. The State shall bear the
7 cost of counties' reassessment efforts to the extent those
8 activities go beyond existing legal requirements for
9
10 reassessments.

11

IHSS recipients who qualify, and are on waiting lists, for

12 State Home and Community Based Services Waiver programs shall be

13 exempt from the reductions, like those recipients who are
14 currently enrolled in the programs. 15
Based on the CDSS's representation that all IHSS recipients 16
who receive Early Periodic Screening Diagnosis and Treatment 17 18 (EPSDT) services will be pre-approved for an exception to the
19 reduction in services, the reduction shall not be applied to these

20 recipients.

21

Twenty-one days prior to instructing the counties to conduct

22 any reassessments, or making changes to the Case Management,
23 Information and Payrolling System (CMIPS) to implement such
24 reassessments, Defendants shall serve and file a copy of their
25 plan for conducting reassessments. The plan shall include the
26
27 notice or notices Defendants intend to send to IHSS recipients.

28

2

Case4:09-cv-04668-CW Document507 Filed03/02/12 Page3 of 4

United States District Court For the Northern District of California

1

All notices to IHSS recipients regarding SB 73, including any

2 notice of the right to request a state hearing, shall be written

3 in a manner comprehensible to an individual who reads at a fifth

4 grade level. Defendants shall verify that the notices are

5 comprehensible to fifth grade level readers by considering

6 guidance from official resources, such as those cited by
7 Plaintiffs' expert, regarding readability and by consulting with a
8

qualified expert to review the notices. 9

10

Notice to IHSS recipients shall not include misleading or

11 confusing statements, such as those addressed in this Court's

12 order granting the preliminary injunction.

13

If an IHSS recipient's service hours are to be reduced,

14 notice to the recipient shall explain the grounds for the hours
15 reduction. If functional ranks were used, the notice must
16 identify the recipient's functional ranks and describe how the
17
18 ranks affected the reduction of hours.

19

Defendants shall provide the notices in English, Spanish,

20 Chinese, Hmong, Armenian, Russian and Vietnamese, and shall send

21 each notice in the language appropriate to the IHSS recipient.
22 Defendants shall identify a telephone number through which an IHSS
23 recipient who is not literate in one of the above languages, or
24 who has cognitive or visual impairments, can seek a reading and/or
25 translation of the content of the notice. The notices shall
26 27 inform IHSS recipients that they may call that number for that
28 purpose.

3

Case4:09-cv-04668-CW Document507 Filed03/02/12 Page4 of 4

United States District Court For the Northern District of California

1

To ensure that all relevant parties are aware of the Court's

2 injunction, Defendants shall, to the extent that they have not

3 already done so in accordance with the December 1, 2011 Temporary

4 Restraining Order, rescind any directions or notices issued to any
5 person or entity for the reduction of IHSS benefits in accordance
6 with SB 73, and shall notify all persons and entities that have
7 received such directions or notices that IHSS benefits will not be
8 reduced in the manner provided for in SB 73 and the ACL.
9 10 Defendants must mail this notice within four days of the date of
11 this order.

12

Defendants shall post a copy of this preliminary injunction,

13 with an explanation of its effects on IHSS services, conspicuously
14 on the California Department of Social Services website within 15
four days of the date of this order. 16
IT IS SO ORDERED. 17

18

19 Dated: 3/2/2012 20

CLAUDIA WILKEN United States District Judge

21

22

23

24

25

26

27

28

4

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO/OAKLAND DIVISION

10 DAVID OSTER, et al.,
11

12

Plaintiffs

) Case No.: CV 09-04668 CW ) ) ) [PROPOSED] ORDER GRANTING ) PRELIMINARY APPROVAL OF CLASS

13

v.

) SETTLEMENT AGREEMENT,

) DIRECTING NOTICE TO THE CLASS,

14 WILL LIGHTBOURNE, Director of the

) AND SETTING A SCHEDULE AND

California Department of Social Services; ) FAIRNESS HEARING

15 TOBY DOUGLAS, Director of the California )

Department of Health Care Services;

)

16 CALIFORNIA DEPARTMENT OF HEALTH ) Date:

April 4, 2013

CARE SERVICES; and CALIFORNIA

) Time:

2:00 pm

17 DEPARTMENT OF SOCIAL SERVICES, ) Courtroom: 2

)

18

Defendants

)

)

19

20 Plaintiffs DAVID OSTER, WILLIE BEATRICE SHEPPARD, C.R. by and through his
21
guardian ad litem M.R., DOTTIE JONES, ANDREA HYLTON, HELEN POLLY STERN, 22
23 CHARLES THURMAN, and L.C. by and through her guardian ad litem M.G., have filed, and all

24 parties support, a Motion for Preliminary Approval of Class Settlement Agreement, Directing

25 Notice to the Class, and Setting a Schedule and Fairness Hearing (hereinafter “Preliminary
26 Approval Motion”). The Court has considered Plaintiffs’ moving papers including the proposed
27 Settlement Agreement, Proposed Notice to Class Members, Proposed Notice Plan, and supporting
28
1 [Proposed] Order Granting Motion for Preliminary Approval,
Case No. CV 09-04668 CW

1 declarations and exhibits, as well as the arguments of counsel presented at a hearing on Plaintiffs’

2 Preliminary Approval Motion held on Thursday, April 4, 2013. Classes and subclasses in this
3 case have previously been certified under Federal Rule of Civil Procedure 23(b)(2) and need not
4 be amended for purposes of settlement.
5 Based on review of these papers, the arguments of counsel, and this Court’s familiarity
6
7 with the case, the Court hereby finds and concludes that:

8

1. The Settlement Agreement is the result of serious, informed, non-collusive negotiations

9

between the parties, has no obvious deficiencies, does not improperly grant preferential

10

treatment to class representatives or segments of the class, and falls within the range of

11 possible settlement approval such that notice to the Class is appropriate.
12 2. The Proposed Class Notice allows class members a full and fair opportunity to consider
13

14

the proposed Settlement Agreement and it fairly, plainly, accurately, and reasonably

15

informs Class Members of the nature of this litigation, the identity of Class Counsel,

16

the essential terms of the Settlement Agreement, the Court’s procedures for final

17

approval of the Settlement Agreement, class members’ right to comment or object if

18

they desire, and how to obtain additional information regarding this litigation and the

19 Settlement Agreement. The Proposed Class Notice thus satisfies the requirements of
20
Federal Rule of Civil Procedure 23 and due process. 21

22

3. The Proposed Notice Plan is a reasonable method to inform class members of the

23

Settlement and satisfies the notice requirements of Federal Rule of Civil Procedure 23

24

as well as all other applicable legal and due process requirements.

25

IT IS THEREFORE HEREBY ORDERED that:

26 1. The Settlement Agreement is preliminarily approved, subject to notice to the class and
27 final review and approval at the Fairness Hearing as provided for below.
28
2
[Proposed] Order Granting Motion for Preliminary Approval, Case No. CV 09-04668 CW

1

2. The form of the Proposed Class Notice is approved.

2

3. The manner of distributing the Proposed Class Notice, as set forth in the Proposed

3 Notice Plan, is approved.
4 4. The parties shall provide class members with the Proposed Class Notice in the manner
5
specified in the Proposed Notice Plan. 6

7

5. The parties shall adhere to the following time schedule:

8

(a) Notice to the class shall be distributed and posted in the manner specified in the

9

Settlement Agreement no later than April 5, 2013.

10

(b) Class members may file objections, under the procedures specified in the

11 Settlement Agreement and Preliminary Approval Motion, so long as the
12 objections are postmarked or otherwise received by May 3, 2013. Class
13

14

counsel will record the date of receipt of each objection or comment, and will

15

file all objections and comments with the Court prior to the Fairness Hearing.

16

(c) By May 10, 2013, Plaintiffs shall file a Motion for Final Approval of Class

17

Settlement and any parties that elect to do so shall file a response to objections.

18

(d) The Court shall conduct a Fairness Hearing on May 23, 2013 at 2:00 p.m. for

19 the purpose of adjudging final approval of the Settlement Agreement.
20

21

IT IS SO ORDERED:

22 23 DATED: April _4_, 2013
24

______________________________________ The Honorable Claudia Wilken United States District Judge

25

26

27

28
3
[Proposed] Order Granting Motion for Preliminary Approval, Case No. CV 09-04668 CW

 
 Case4:09-cv-04668-CW Document526 Filed03/28/13 Page1 of 19

1 MELINDA BIRD (SBN 102236)

MARILYN HOLLE (SBN 61530)

2 DISABILITY RIGHTS CALIFORNIA

350 South Bixel Street, Suite 290 3 Los Angeles, CA 90017

4

Telephone: (213) 213-8000 Facsimile: (213) 213-8001

5

melinda.bird@disabilityrightsca.org marilyn.holle@disabilityrightsca.org

6 ANNA RICH (SBN 230195)

7

NATIONAL SENIOR CITIZEN LAW CENTER 1330 Broadway, Suite 525

8

Oakland, CA 94612 Telephone: (510) 663-1055

9

Facsimile: (510) 663-1051 arich@nsclc.org

10 Attorneys for Named Plaintiffs and the Class

11

Additional Attorneys for Named Plaintiffs and the Class on Signature Page

12

13

UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO/OAKLAND DIVISION

15 DAVID OSTER, et al.,

) Case No.: CV 09-04668 CW

16

) ) NOTICE OF MOTION AND MOTION

17

Plaintiffs

) FOR PRELIMINARY APPROVAL OF ) CLASS SETTLEMENT AGREEMENT,

18

v.

) AND FOR AN ORDER DIRECTING ) NOTICE TO THE CLASS AND

19

WILL LIGHTBOURNE, Director of the California Department of Social Services;

) SCHEDULING A FAIRNESS HEARING; ) MEMORANDUM OF POINTS AND

20

TOBY DOUGLAS, Director of the California ) AUTHORITIES IN SUPPORT OF

Department of Health Care Services;

) MOTION

21

CALIFORNIA DEPARTMENT OF HEALTH )

CARE SERVICES; and CALIFORNIA

) Hearing Date: April 4, 2013

22 DEPARTMENT OF SOCIAL SERVICES,

) Time: ) Judge:

2:00 P.M. Hon. Claudia Wilken

23

Defendants

24

) Address: ) ) Courtroom:

1301 Clay Street Oakland, CA 94102 2, 4th Floor

25

26

27

28

Oster, et al. v. Lightbourne, Case No. CV 09-04668 CW: JT NOM AND MOT. F/PREL. APPROVAL OF CLASS SETT. AGREEMENT… MPA ISO MOTION

Case4:09-cv-04668-CW Document526 Filed03/28/13 Page2 of 19

1

TABLE OF CONTENTS

2 NOTICE OF MOTION AND MOTION ........................................................................................ 1

3 MEMORANDUM OF POINTS AND AUTHORITIES ............................................................... 1

4 I. INTRODUCTION AND SUMMARY OF SETTLEMENT ............................................. 1

5 II. PROCEDURAL HISTORY ................................................................................................ 2

6 III. DESCRIPTION OF SETTLEMENT PROVISIONS ....................................................... 4

7 IV. 8 9

THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE UNDER FED. RULE OF CIV. PROC. 23(e) .................................................................................... 5
A. The Settlement is the Product of Serious, Informed, Non-collusive Negotiations Conducted by Experienced Counsel ..................................................... 6

10

B. The Settlement Fairly and Adequately Addresses the Concerns Underlying

the Litigation and Provides Similar Benefits to All Similarly Situated Class

11

Members ..................................................................................................................... 7

12
13 VI.
14

C. The Settlement is Reasonable in Light of the Risks of Further Litigation and Other Factors .............................................................................................................. 8
THE PROPOSED CLASS NOTICE AND PROCEDURE FOR APPROVAL ARE APPROPRIATE UNDER FED. RULE OF CIV. PROC. 23(e)(1) ......................... 9

15

A. The Proposed Settlement Notice Provides Appropriate Information to Class

Members in Easily Understandable Language. .......................................................... 9

16

B. The Process for Distribution of Class Notice is Reasonably Calculated to

17

Reach Class Members. ............................................................................................. 10

18

C. The Settlement Approval Process Provides Adequate Opportunity for Class

Members to Raise Objections or Comment on the Settlement................................. 11

19

VII. CONCLUSION ................................................................................................................... 14

20

21

22

23

24

25

26

27

28

i Oster, et al. v. Lightbourne, Case No. CV 09-04668 CW: JT NOM AND MOT. F/PREL. APPROVAL OF CLASS SETT. AGREEMENT… MPA ISO MOTION

Case4:09-cv-04668-CW Document526 Filed03/28/13 Page3 of 19

1

TABLE OF AUTHORITIES

2

Cases

3 Bourlas v. Davis Law Associates, 237 F.R.D. 345 (E.D.N.Y. 2006)………………………………. 6 4 Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004)………………………………...… 9

5 Handschu v. Special Servs. Div., 787 F.2d 828 (2d Cir. 1986)…………………………………… 12 6 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)………………………………………..… 5

7 Hawker v. Consovoy, 198 F.R.D. 619 (D.N.J. 2001)…………………………………………...… 12

8 In re General Motors Corp Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768 (3rd Cr. 1995)………………………………………………………………….. 5

9

Kaplan v. Chertoff, No. Civ. 06-5304, 2008 WL 200108, at *13

10

(E.D. Pa. Jan. 24, 2008)……………………………………………………………..… 12, 13

11 Katie A. v. Bontá, No. CV-02-05662 AHM(SHx)(C.D. Call, 2002)……………………………… 13 12 Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338 (9th Cir. 1980)……………………………….. 9

13 Officers for Justice v. Cvil Service Commission of the City and County of San Francisco 688 F.2d 615 (9th Cir. 1982)………………………………………………………...… 6, 7, 8
14 Walsh v. Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956 (3d Cir. 1983)…………………………...12
15

16

Federal Rules

17 Federal Rules of Civil Procedure

18

Rule 23(b)(1)………………………………………………………………………….. 11, 12

Rule 23(b)(2)……………………………………………………………………… 11, 12, 13

19

Rule 23(b)(3)………………………………………………………………………..… 11, 12

Rule 23(c)(2)(A)………………………………………………………………………...… 11

20

Rule 23(c)(2)(B)……………………………………………………………………...… 9, 11

Rule 23(e)(1)…………………………………………………………………………… 9, 10

21

State Codes

22

California Welfare and Institutions Code

23

12301.07………………………………………………………………………………….… 3

24

12309(e) & 12309.2………………………………………………………………………… 2

25

26

27

28

ii Oster, et al. v. Lightbourne, Case No. CV 09-04668 CW: JT NOM AND MOT. F/PREL. APPROVAL OF CLASS SETT. AGREEMENT… MPA ISO MOTION

Case4:09-cv-04668-CW Document526 Filed03/28/13 Page4 of 19

1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE THAT on April 4, 2013 at 2:00 p.m.1 or on such date and time

3 as may be set by the Court, Plaintiffs will move for preliminary approval of a proposed settlement

4 reached between Plaintiffs and Defendants. This motion is based on this notice, the Memorandum

5 of Points and Authorities and all documents and arguments submitted in support thereof, the

6 record in this action, and whatever oral argument the Court may entertain.

7

RELIEF SOUGHT: Plaintiffs hereby request the following relief:

8 1. Preliminary approval of the Class Action Settlement Agreement;

9 2. Approval of the proposed form of Notice to the Class; and an order directing provision of

10 Settlement Notice to the Class in accord with the Plan for Class Notice; and

11 3. An order setting a schedule for distribution of the Class Notice and for the Fairness

12 Hearing.

13

14 Dated: March 28, 2013

Respectfully submitted,

15

By:

/s/ Melinda Bird

16

MELINDA BIRD

17

Attorneys for Named Plaintiffs and the Class

18

DISABILITY RIGHTS CALIFORNIA DISABILITY RIGHTS LEGAL CENTER

19

LAW OFFICE OF CHARLES WOLFINGER NATIONAL HEALTH LAW PROGRAM

20

NATIONAL SENIOR CITIZENS LAW CENTER

21

22

23

24

25

26

27 ___________________________________ 28 1 Plaintiffs are filing herewith an ex parte application for an order shortening time.

1 Oster, et al. v. Lightbourne, Case No. CV 09-04668 CW: JT NOM AND MOT. F/PREL. APPROVAL OF CLASS SETT. AGREEMENT… MPA ISO MOTION

Case4:09-cv-04668-CW Document526 Filed03/28/13 Page5 of 19

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION AND SUMMARY OF SETTLEMENT

3

As this Court previously found, “Plaintiffs are disabled and elderly Californians who need

4 in-home assistance, …in order to live safely at home without risk of injury or harm.” Order, Dkt.

5 No. 198 at 1. Plaintiffs brought this class action to ensure their continued access to In-Home

6 Supportive Services (“IHSS”), without which they “will be unable to care for themselves, suffer

7 injuries and be relegated to emergency rooms, hospitals, and other institutions.” Id. at 2.

8 Plaintiffs challenged two statutes, one of which would have made some recipients totally

9 ineligible for IHSS while reducing domestic and related services for others, and one of which

10 would have reduced IHSS hours by twenty percent (with certain very limited exceptions).

11

After over three years of hard-fought litigation regarding proposed cuts to the IHSS

12 program, including temporary and preliminary injunctive relief, stay motions, and appeals,

13 Plaintiffs and Defendants have finally reached a mutually agreeable settlement that will end this

14 protracted case. Settlement Agreement, Attachment 1 to Declaration of Melinda Bird (“Bird

15 Dec.”). The proposed resolution, which if approved by the Court will terminate both this case and

16 the related IHSS case Dominguez v. Brown, Case No. 09-02306 CW (N.D. Cal.) (“Dominguez”),

17 was reached only after months of difficult discussions between the parties. The result is the

18 product of arms-length negotiation and is, in the view of Class Counsel, in the best interests of the

19 class.

20

In exchange for the repeal of the statutes at issue here, Plaintiffs have agreed to a relatively

21 modest, and most likely temporary, reduction in hours provided to IHSS recipients. Under the

22 settlement, the State would be permitted to reduce service hours by 8% for the period of one year,

23 beginning July 1, 2013. This would effectively be a 4.4% reduction below current hours, given

24 that a 3.6% reduction is currently in effect. After twelve months, the cut in hours will be reduced

25 to 7%. Most importantly, the State has committed itself to seek additional revenues for the IHSS

26 program that, if approved by the federal government, would be used to restore the reduction in

27 IHSS hours. While Plaintiffs do not want to see any reductions in the IHSS program, the

28 reductions permitted under the settlement pale in comparison with the potential impacts of the

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1 statutes they replace and are reasonable in light of the risks of litigation.

2

For all of these reasons, the proposed settlement easily satisfies the minimal standards

3 necessary for preliminary approval. The Court should grant such approval, direct that notice be

4 provided to the Class as provided for in the Plan for Class notice, which is Exhibit C to the

5 Settlement Agreement, and set a schedule for a fairness hearing and final settlement approval.

6

II. PROCEDURAL HISTORY

7

Plaintiffs filed this lawsuit on October 1, 2009 on behalf of four individual IHSS recipients

8 representing a class of IHSS recipients and six unions that represent IHSS providers. Complaint,

9 Dkt. No. 1. Plaintiffs asserted challenges to ABX4 4, which added California Welfare and

10 Institutions Code §§ 12309(e) & 12309.2. Those statutes would have terminated all IHSS

11 eligibility for 30,000 recipients and reduced IHSS hours for an additional 100,000 recipients,

12 based on their “Functional Index” ranks and scores. Plaintiffs raised claims under, inter alia, the

13 Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Medicaid Act,

14 and the Due Process and Supremacy Clauses of the U.S. Constitution.

15

On October 23, 2009, this Court issued a Preliminary Injunction enjoining Defendants

16 from implementing any of the challenged statutes. Order, Dkt. No. 198. Defendants appealed that

17 Order to the Ninth Circuit Court of Appeal. While the appeal was pending, the California

18 Legislature enacted Cal. Welf. & Inst. Code §§12309(i) and 12309.2(e) to temporarily suspend

19 ABX4 4 until final judgment was rendered in this case (relevant provisions of ABX4 4 “shall only

20 be implemented if a court of competent jurisdiction has issued an order, that is not subject to

21 appeal or for which the time to appeal has expired, upholding its validity”). On the basis of these

22 suspension statutes, the Ninth Circuit dismissed the appeal as moot and vacated the order granting

23 a preliminary injunction.

24

In addition, in 2011, the California Legislature enacted Senate Bill (SB) 73, which required

25 the California Department of Social Services (“CDSS”) to “implement a 20-percent reduction in

26 authorized hours of service” for most IHSS recipients if (as occurred) California experienced mid-

27

28

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1 year revenue shortfalls. Cal. Welf. & Inst. Code § 12301.07.2 On December 1, 2011, Plaintiffs

2 filed an amended complaint that added challenges to implementation of SB 73, also based inter

3 alia, on the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the

4 Medicaid Act, and the Due Process and Supremacy Clauses of the U.S. Constitution. Dkt. No. 17.

5 Plaintiffs requested an ex parte Application for a Temporary Restraining Order and Preliminary

6 Injunction, which this Court granted on December 1, 2011. Dkt. No. 417. This Court subsequently

7 issued a preliminary injunction against implementation of SB 73 on January 19, 2012 (Dkt. No.

8 494) and issued a written Order granting the Preliminary Injunction on March 2, 2012. Dkt. No.

9 506.

10

Plaintiffs initially filed a motion for class certification in 2009, (Dkt. No. 20), and renewed

11 this motion on December 1, 2011. Dkt. No. 356. This Court certified a class on March 2, 2012

12 (Dkt. No. 505), with the following subclasses:

13

Class A:

All recipients of IHSS in the State of California whose IHSS

14

services will be limited, cut, or terminated under the provisions of ABX4 4, and all

15

applicants to IHSS in the State of California who would have been eligible for

16

IHSS services but who are either not eligible, or are eligible for fewer services, as a

17

result of ABX4 4.

18

Class B:

All recipients of IHSS in the State of California who have received

19

or will receive notices of action that include a reduction of IHSS hours based on SB

20

73 or Defendants’ implementation of SB 73, including future applicants for IHSS

21

services whose notice of action will reflect reduced IHSS hours as a result of SB 73

22

or Defendants’ implementation of SB 73.

23

Defendants filed timely appeals from this Court’s 2012 orders. Dkt. No. 509. While this

24 appeal was pending, the Parties began serious discussions regarding a potential settlement

25 agreement. Bird Decl., ¶ 8. At the request of the parties, the 9th Circuit ordered both appeals

26

___________________________________ 2 A very narrow category of IHSS recipients was exempt from the twenty-percent reduction, and

27

another group of IHSS recipients with sufficiently high functional rank scores could have clawed their way back onto the program if they managed to file a request for Supplemental Care on a

28 short time frame.

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1 placed in the 9th Circuit mediation program on May 30, 2012. Id. However, settlement

2 negotiations were unsuccessful and the appeals were released from the mediation program on June

3 19, 2012. Id. The appeals were fully briefed and set for oral argument on March 21, 2013.

4

In late February 2013, the parties began a new round of settlement negotiations that were

5 ultimately successful. Bird Decl., ¶ 9. On March 13, the parties signed a term sheet and filed a

6 joint notice to the Ninth Circuit regarding their settlement and seeking a 120 day continuance of

7 the oral argument. Id., ¶ 10. This request was granted on March 14, 2013. A settlement

8 agreement based upon the term sheet was signed yesterday. Attachment 1 to Bird Decl.

9

III. DESCRIPTION OF SETTLEMENT PROVISIONS

10

The Settlement Agreement has four key features.

11

First, the statutes mandating the functional index cuts of 2009 and the 20% cuts in 2011

12 will be repealed. Settlement Agreement, ¶ 23, Ex. A to Settlement Agreement (proposed

13 legislation). As Defendants have stated, this repeal “creates stability and certainty to allow this

14 vulnerable population to remain active in the communities in which they live.” CDSS And DHCS

15 Press Release issued March 19, 2013, Attachment 2 to Bird Declaration.

16

Second, instead of cuts of 20% or more, Class members will be subject to a temporary

17 reduction in hours of 8%, beginning July 1, 2013. Settlement Agreement, ¶ 12. The practical

18 effect will be a reduction of 4.4% below current hours because a cut of 3.6%, unrelated to this

19 litigation, is already in effect. This 3.6% reduction sunsets on July 1, 2013, so the 8% cut will

20 replace, and not be in addition to, the 3.6% cut. Id., ¶ 14. IHSS recipients receive, on average,

21 fewer than 100 hours of assistance per month. Decl. of Eileen Carroll, Dkt. No. 446. A reduction

22 of 4.4% will thus mean a loss of approximately 4½ hours per month, or one hour per week, for the

23 average IHSS recipient.

24

This reduction will decrease to 7% after twelve months, that is, by July 1, 2014.

25 Settlement Agreement, ¶ 13. This 7% reduction will be ongoing, except that State Defendants are

26 required by the settlement agreement to seek the additional revenues described in the next

27 paragraph and to use those revenues to offset the reduction.

28

Third, State Defendants have agreed to pursue additional revenues for the IHSS program

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1 in the form of an assessment on home care services, including but not limited to IHSS and home

2 health care. Id., ¶¶ 18-22, 24. If that assessment is approved by the federal government, the

3 savings generated must be used to restore the 7% reduction. Agreement, ¶¶ 13, 21 and Ex. A to

4 Agreement (legislation re: process for restoring hours). Defendants have also committed to seek

5 retroactive implementation of the new assessment and if approved, to use the one-time saving for

6 the benefit of IHSS recipients. Agreement, ¶ 22.

7

Fourth, Defendants have agreed to clarify the process for seeking a reassessment of IHSS

8 hours so that reassessments will be easier to obtain. Id., ¶ 16. Reassessment of need is available

9 for any change of circumstances, including non-medical reasons, such as the loss of alternative or

10 volunteer assistance. However, many counties have adopted a practice of refusing to grant a

11 reassessment without a doctor’s note that the recipient’s medical condition has changed. Bird

12 Decl., ¶ 11. Defendants agreed to issue a directive to counties reiterating that a physician’s note is

13 not required, and that IHSS recipients must be informed of their right to appeal if a request for a

14 reassessment is denied. Agreement, ¶ 17. Most importantly, Defendants agreed to explain the

15 right to request reassessment and to appeal the denial of a reassessment in the notice of action that

16 will be issued regarding the 8% cut. Id., ¶17.

17

The Settlement Agreement also contains release and waiver terms that represent fair

18 compromises between the parties. As part of the settlement, Class Members will waive their right

19 to file litigation challenging the 8% and 7% cuts in hours. Agreement, ¶33. However, class

20 members will retain their right to challenge any other reductions in IHSS eligibility, services,

21 hours, or wages that take place after the Settlement Agreement was signed. Id.

22

IV. THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE UNDER

23

FED. RULE OF CIV. PROC. 23(e)

24

Federal Rule of Civil Procedure 23(e) requires that any proposed settlement or

25 compromise in a class action suit be approved by the court, subject to a determination that it is

26 “fair, reasonable, and adequate.” The court may approve the settlement preliminarily, establishing

27 an initial presumption of fairness. In re General Motors Corp Pick-Up Truck Fuel Tank Products

28 Liability Litigation 55 F.3d 768 (3rd Cir.1995); Hanlon v. Chrysler Corp, .150 F.3d 1011, 1026

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1 (9th Cir. 1998). Where a “proposed settlement appears to be the product of serious, informed,

2 non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential

3 treatment to class representative or segments of the class and falls within the reasonable range of

4 approval, preliminary approval is granted.” Bourlas v. Davis Law Associates, 237 F.R.D. 345

5 (E.D.N.Y.2006). Id at 355 (internal citations omitted).

6

The standard by which a proposed settlement is to be evaluated is whether the settlement is

7 fundamentally fair, adequate and reasonable. FRCP 23(e); Officers for Justice v. Civil Service

8 Commission of the City and County of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982). This

9 determination involves a balancing of factors which may include: “the strength of plaintiffs' case;

10 the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class

11 action status throughout the trial; the amount offered in settlement; the extent of discovery

12 completed, and the stage of the proceedings; the experience and views of counsel; the presence of

13 a governmental participant; and the reaction of the Class Members to the proposed settlement.

14 The relative degree of importance to be attached to any particular factor will depend upon and be

15 dictated by the nature of the claim(s) advanced, the type(s) of relief sought, and the unique facts

16 and circumstances presented by each individual case.” Id. at 625 (internal citations omitted).

17

A. The Settlement is the Product of Serious, Informed, Non-collusive

18

Negotiations Conducted by Experienced Counsel

19

This case has been aggressively and effectively litigated by the parties, as set forth in more

20 detail in the Procedural History, Section II, supra. The parties litigated vigorously through two

21 motions for preliminary relief, a motion to dismiss and a motion for class certification. Bird Decl.,

22 ¶ 7. Class counsel include non-profit law firms with national scope and reputation, disability

23 rights law firms from California and experienced private counsel. Id., ¶ 4. Class counsel

24 collectively possess decades of experience in the prosecution and settlement of class actions,

25 claims under the ADA and the Medicaid Act, and the rights of people who are elderly or disabled.

26 Id. Defendants were represented by experienced attorneys general with the California Department

27 of Justice. In addition, the Chief Counsel of DHCS and other senior lawyers with other executive

28 agencies participated throughout the settlement negotiations. Id., ¶ 9.

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1

In February 2013, on the eve of oral argument, the parties began a new round of

2 negotiations. In addition to numerous telephone calls and email exchanges, the parties met in

3 person on multiple occasions and exchanged written drafts and proposals. Discussions included

4 direct participation of high-level staff and directors from the DHCS, CDSS, the Department of

5 Finance and other state agencies. Id., ¶ 9. The result of these discussions was a term sheet signed

6 on March 17, 2013. Based on this term sheet, counsel for the parties then negotiated the more

7 detailed provisions and attachments to the Settlement Agreement, which was signed on March 27,

8 2013. Id. ¶ 10.

9

Throughout this process, virtually every element and phrase in the agreement has been

10 extensively discussed. The parties considered alternative proposals, consulted clients and

11 knowledgeable associates on a daily basis. Id. In sum, the settlement is the result of arms-length, 12 informed and non-collusive negotiations.3

13

B. The Settlement Fairly and Adequately Addresses the Concerns

14

Underlying the Litigation and Provides Similar Benefits to All Similarly

15

Situated Class Members

16

Determination of adequacy of a settlement includes assessment of the degree to which the

17 primary concern of plaintiffs in filing the suit is addressed by the proposed agreement. Officers

18 for Justice, 688 F.2d at 628. The Settlement addresses the concerns that were the basis of

19 Plaintiffs’ claims, providing significant relief to the Class, and disposes of all claims filed against

20 Defendants. Plaintiffs brought this suit to challenge drastic reductions in the IHSS program,

21 alleging that these changes would place Class Members at risk of unnecessary institutionalization

22 and violate the ADA and Medicaid Act. The Settlement eliminates the threat of the most severe

23 cuts, replacing this with smaller reductions that, while difficult, are incremental in magnitude and

24 most likely temporary.

25

From Plaintiffs’ perspective, a crucial element of the Settlement is State Defendants’

26 ___________________________________

27

3 Significantly, under the proposed settlement, both sides will bear their own fees and costs. Bird Decl., ¶ 12. This eliminates entirely an issue – the question of class counsel’s remuneration – that

28 might otherwise raise the possibility of an improperly collusive settlement.

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1 obligation to pursue new revenue sources for the IHSS program through a new assessment on

2 home care services. If approved by the federal government, the savings generated by this new

3 assessment will most likely restore all cuts to the program and allay Class Members’ concerns

4 regarding repeated attempts to reduce IHSS benefits to solve state budget shortfalls.

5

The proposed Settlement is also fair in that named plaintiffs and unnamed class members

6 are being treated equally. No plaintiffs – whether named plaintiffs or Class Members – will

7 receive service payments or any money damages. Consequently, in an action such as this for

8 declaratory and injunctive relief, the relief afforded to named plaintiffs is no greater than that

9 afforded to class members as a whole.

10

C. The Settlement is Reasonable in Light of the Risks of Further

11

Litigation and Other Factors

12

Significant in evaluating the reasonableness of a proposed settlement are the risks at trial

13 for both sides, the costs of continuing the litigation, and the delay and/or preclusion in achieving

14 the favorable results for Class Members that continued litigation, including appeals, would entail.

15 Officers for Justice, 688 F.2d at 625. On appeal, Defendants had raised difficult issues regarding

16 standing, ripeness and the 10th Amendment. Had the Court of Appeals concluded that these

17 required a reversal of this Court’s preliminary injunction against the 20% cut in IHSS hours,

18 Class Members would have faced devastating reductions and chaotic attempts to navigate through

19 the challenging process for obtaining Supplemental hours under SB 73.

20

As to the Functional Index cuts mandated by ABX4 4, the remand of the state’s appeal also

21 posed definite risks to the Class Members. Plaintiffs faced the prospect of extensive discovery

22 directed in part at the circumstances of fragile class representatives and the possibility of a lengthy 23 trial. An adverse decision from the 9th Circuit regarding the appeal of the 20% cuts, depending on

24 the breadth and basis, could potentially have disposed of Plaintiffs’ claims regarding ABX4 4 as

25 well. This left open the possibility that both the functional index cuts and the 20% reduction could

26 have been implemented at the same time, resulting in cuts of 50% or more in recipient hours. The

27 settlement completely removes these threats to the health and well-being of class members, and

28 holds the promise for full restoration of all hourly reductions. Consequently, the Settlement is

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1 reasonable in light of the magnitude of the risk and the potential consequences for Class members

2 from continued litigation.

3

V. THE PROPOSED CLASS NOTICE AND PROCEDURE FOR APPROVAL

4

ARE APPROPRIATE UNDER FED. RULE OF CIV. PROC. 23(e)(1).

5

A. The Proposed Class Notice and Settlement Materials Provides

6

Appropriate Information to Class Members in Easily Understandable

7

Language.

8

Rule 23(e)(1) of the Federal Rules of Civil Procedure requires that prior to final approval

9 of a class settlement, “[t]he court must direct notice in a reasonable manner to all class members

10 who would be bound by the proposal.” Generally, notices to class members must be “clearly and

11 concisely state[d] in plain, easily understood language.” Rule 23(c)(2)(B). “Notice is satisfactory

12 if it ‘generally describes the terms of the settlement in sufficient detail to alert those with adverse

13 viewpoints to investigate and to come forward and be heard.’” Churchill Vill., LLC v. Gen. Elec.,

14 361 F.3d 566, 575 (9th Cir. 2004) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338,

15 1352 (9th Cir. 1980)).

16

The proposed combined class notice for the Oster and Dominguez classes accomplishes

17 this. See Ex. C-1 to Settlement Agreement. The notice provides a brief description of the case and

18 settlement, and a description of the classes in Oster and Dominguez. The headings are in bold and

19 plainly describe the different topics covered by the notice. The notice explains how Class

20 Members can obtain a list of Class counsel and a copy of the Settlement Agreement, including a

21 listing of websites on which this information is posted. It provides a toll-free phone number, a

22 P.O. Box and an email for Class Members to contact Class counsel to ask questions or obtain

23 additional information. Finally, the notice also explains how Class Members can exercise their

24 right to object, the deadline for objections and the date, time, and location of the fairness hearing.

25 Moreover, the proposed Class Notice provides this information while remaining with reasonable

26 parameters for readability. As measured by the most commonly-used readability scale, the Flesch-

27 Kincaid grade-level scale, the readability rating for the class notice is 6.2, which is the first quarter

28 of sixth grade. Bird Decl. ¶17.

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1

In addition, the Class Notice will be translated into the 13 Medi-Cal threshold languages.

2 Notice Plan, Ex. C-3 to Settlement Agreement. For individuals who need accommodations due to

3 their disabilities, Class counsel will provide the Notice in alternative formats, such as electronic

4 versions, tapes and large print. Id.

5

B. The Process for Distribution of Class Notice is Reasonably Calculated

6

to Reach Class Members.

7

Rule 23(e) provides that, if a court grants preliminary approval, “[t]he court must direct

8 notice in a reasonable manner to all class members who would be bound by the proposal. Fed. R.

9 Civ. P. 23(e)(1). The parties have developed a Plan for Class Notice for both the Oster and

10 Dominguez classes. Ex. C-3 to Settlement Agreement. The Plan for Notice has three

11 components.

12

First, the three-page class notice will be posted to a number of public and non-profit

13 websites that will serve as “portals” to distribute information to IHSS recipients and the larger

14 disability and senior community of which they are a part. Ex. C-3 to Settlement Agreement.

15 Specifically, within 24 hours of Court approval of the form of the notice, CDSS, DHCS and

16 Disability Rights California will post the Class Notice and on their respective websites.

17 Disability Rights California alone receives more than 300,000 “hits” to its website per year, so this

18 alone will ensure broad distribution. Bird Decl., ¶ 21. Other class counsel and a number of union

19 plaintiffs will also post the settlement materials on their respective websites.

20

Second, the settlement materials include a one page flyer or poster suitable for display in a

21 waiting room or other public area. Ex. C-2 to Settlement Agreement. Defendant CDSS will

22 request that county welfare departments and other county agencies as well as state hearing division

23 offices post this flyer in their public areas and make the class notice and Settlement agreement

24 available upon request. Ex. C-3 to Settlement Agreement. DHCS will send a “fax-blast” with the

25 flyer and settlement materials to all Community Based Adult Services (“CBAS”) centers, with a

26 similar request to post the flyer in their common areas. Id.

27

Third, the parties have developed an extensive outreach and notice campaign designed to

28 reach virtually every organization involved with elderly and disabled individuals. Through a

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1 combination of email distributions, public speaking and presentations, tele-town halls and other

2 means of communication, the parties will enlist more than 25 state and non-profit organizations in

3 distributing the settlement materials. In fact, Class counsel have already begun these outreach

4 presentations and have received advance commitments from several groups to assist with this

5 notice plan. Bird Decl., ¶ 23.

6

In addition to these three means of providing notice, the coordination of the settlements in

7 both Oster and Dominguez provides an additional avenue for reaching class members. As set

8 forth in the Declaration of Stacey Leyton in Support of Preliminary Approval of Class Settlement

9 in the Dominguez case, the labor unions that are organizational plaintiffs in Dominguez and Oster

10 are preparing for even more robust measures for informing their members about the combined

11 settlement through outreach and mailings which will supplement the plan for notice described

12 above. Most of these members are related to the IHSS recipients for whom they provide services,

13 and those who are not related often enjoy close relationships with recipients, and can facilitate

14 communication regarding the class settlement.

15

C. Individual Mailed Notice Should Not be Required.

16

In light of the robust notice scheme described above and given that this case involves a

17 Rule 23(b)(2) class, individualized notice of the proposed settlement to all class members should

18 not be required. Moreover, any negligible benefit gained by providing such notice would be

19 outweighed by the cost and delay that would be incurred.

20

For Rule 23(b)(3) classes, the Rules specifically require individualized notice “to all

21 members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). This

22 individualized notice is necessary so that class members can exercise their right to opt out. In

23 contrast, for (b)(1) and (b)(2) classes, as to which there is no right to opt out, Rule 23 provides

24 only that “the court may direct appropriate notice to the class.” Fed. R. Civ. P. 23(c)(2)(A). The

25 reason for the different treatment

26

derives from the nature of the relief sought in these actions. Rule 23(b)(1) and

27

(b)(2) classes are cohesive in nature. Because of this cohesiveness, an adequate

28

class representative can, as a matter of due process, bind all absent class members

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1

by a judgment. . . . Rule 23(b)(3) classes are less cohesive, and must abide by

2

more stringent due process constraints.

3 Walsh v. Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956, 963 & n.1 (3d Cir. 1983) (citations

4 omitted).

5

Accordingly, “the form of notice of settlement of a Rule 23(b)(1) or (b)(2) class action

6 need only be such as to bring the proposed settlement to the attention of representative class

7 members who may alert the court to inadequacies in representation, or conflicts in interest among

8 subclasses, which might bear upon the fairness of the settlement.” Id. at 963 (emphasis added);

9 see also Handschu v. Special Servs. Div., 787 F.2d 828, 833 (2d Cir. 1986) (“Because of the

10 common interests of all its members, a Rule 23(b)(2) class seeking declaratory and injunctive

11 relief is cohesive by nature, and notice to a representative class membership may be considered

12 sufficient.” (emphasis added; citation omitted)).

13

Courts have thus approved notice of proposed settlements in (b)(1) and (b)(2) cases by

14 means of “publication over a period of weeks in several metropolitan New York newspapers”

15 (Handschu, 787 F.2d at 833) and publication in two newspapers and posting in prisons in which

16 potential class members were incarcerated. Hawker v. Consovoy, 198 F.R.D. 619, 621 & n.5

17 (D.N.J. 2001).

18

In cases involving public benefits recipients such as this, notice is typically provided by

19 posting on appropriate government websites and dissemination through a community-based and

20 non-profit organizations which work with potential class members. Bird Decl, ¶¶ 26-28

21 (discussing cases). Following the settlement of Martinez v. Astrue, a class action lawsuit against

22 the Social Security Administration (“SSA”), this Court approved a plan for class notice that

23 involved extensive outreach to community and public interest advocates as well as posting on

24 SSA’s website, the websites of class counsel and on the websites of many other agencies that

25 assist SSA recipients. Bird Decl., ¶ 27. A similar plan was approved in Kaplan v. Chertoff, No.

26 Civ. 06-5304, 2008 WL 200108, at *13 (E.D. Pa. Jan. 24, 2008) (class of SSI recipients adversely

27 affected by immigration processing backlogs). In another California class action involving Medi-

28 Cal recipients, a federal court approved a notice plan that required CDSS and DHCS – which are

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1 also defendants here - to post the class notice on their website, distribute it to county social

2 services offices, and provide the notice to non-profit agencies that worked with class members.

3 Bird Decl. ¶ 26 (discussing notice in 2011 settlement in Katie A. v. Bontá, No. CV-02-05662

4 AHM (SHx)(C.D. Cal., 2002)).

5

The proposed notice plan here, like the plans approved in the above cases, is designed to

6 reach a substantial number of class members and will amply ensure awareness of the settlement by

7 “representative class members” who will be able to inform the Court of any perceived deficiencies

8 in the settlement—the very purpose of notice in a (b)(2) case.

9

Not only is individualized notice not required, it would be unnecessarily burdensome in

10 this case. First, the cost of providing individualized notice to the hundreds of thousands of class

11 members would be substantial. Bird Decl., ¶ 25. Defendants have consistently claimed severe

12 financial hardship in this case, and the parties agree that the State’s limited resources would be

13 better spent elsewhere (for example, for IHSS recipients). Second, individualized notice would

14 delay the settlement approval process. State Defendants have informed Plaintiffs that it would

15 take approximately thirty days to send out individualized notices. Id. In contrast, the proposed

16 notice plan would post notice the day after preliminary approval is granted. Because

17 implementation of the proposed settlement must be coordinated with the rapidly-approaching

18 timelines of the State’s budget process, and the July 1 deadline for implementation of the 8% cut

19 provided for in the Settlement Agreement, this thirty-day delay in the settlement approval process

20 could impede the settlement. Therefore, the cost and delay involved in providing individualized

21 notice weigh strongly in favor of the proposed notice plan. See Kaplan, 2008 WL 200108, at *13

22 (approving notice plan without individualized notice in part because the delay required by

23 individualized notice would be contrary to “the time-sensitive nature of this case”).

24

In sum, individualized notice of the proposed settlement to all class members should not be

25 required.

26

D. The Settlement Approval Process Provides Adequate Opportunity for

27

Class Members to Raise Objections or Comment on the Settlement.

28

The Class Notice describes the process for raising objections and provides the addresses to

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1 which objections must be mailed. There is a prominent heading in bold that calls the reader’s

2 attention to the objection process. The objection procedure itself is simple: class members may

3 mail written objections to the attorney general and to Class counsel at the P.O. box listed on the

4 notice. Class Members will have four weeks to respond to the proposed notice, pursuant to the

5 following proposed schedule, agreed to by the parties and attached as Exhibit B to the Settlement

6 Agreement:

7

April 4, 2013:

Hearing re Preliminary Approval of Settlement and Class

Certification. (2:00 p.m.) 8

April 5, 2013

Notice to be mailed to Class Members

9

May 3, 2013:

Last day for Class Members to mail objections to settlement

10

agreement (Four weeks).

11

May 10, 2013:

Parties to file Summary of Objections and Responses with the

Court. 12

May 23, 2013:

Fairness Hearing (2:00 p.m.)

13

14 VI. CONCLUSION

15

For the reasons discussed above, Plaintiffs request that the Court: 1) Issue Preliminary

16 Approval of the Class-Action Settlement; 2) approve the proposed Notice of Proposed Settlement

17 and the process for distribution of the Notice; 3) establish a schedule for distribution of the Notice,

18 handling of objections, and related filings; and 4) set a date and time for the Fairness Hearing.

19 Dated: March 28, 2013 20 21 22 23 24 25

Respectfully Submitted,

By: /s/ Melinda Bird

_____

MELINDA BIRD (SBN 102236)

MARILYN HOLLE (SBN 61530)

DISABILITY RIGHTS CALIFORNIA

350 South Bixel Street, Suite 290

Los Angeles, CA 90017

Telephone: (213) 213-8000

Facsimile: (213) 213-8001

melinda.bird@disabilityrightsca.org

marilyn.holle@disabilityrightsca.org

26

SUJATHA JAGADEESH BRANCH (SBN 166259)

DISABILITY RIGHTS CALIFORNIA

27

SACRAMENTO REGIONAL OFFICE

1831 K Street

28

Sacramento, CA 95811

Telephone: (916) 504-5800

14 Oster, et al. v. Lightbourne, Case No. CV 09-04668 CW: JT NOM AND MOT. F/PREL. APPROVAL OF CLASS SETT. AGREEMENT… MPA ISO MOTION

Case4:09-cv-04668-CW Document526 Filed03/28/13 Page19 of 19

Facsimile: (916) 504-5801

1

sujatha.branch@disabilityrightsca.org

2

DARA L. SCHUR (SBN 98638)

FREDERICK P. NISEN (184089)

3

JUNG PHAM (SBN 251232)

DISABILITY RIGHTS CALIFORNIA

4

BAY AREA REGIONAL OFFICE

1330 Broadway, Suite 500

5

Oakland, CA 94612

Telephone: (510) 267-1200

6

Facsimile: (510) 267-1201

dara.schur@disabilityrightsca.org 7

ANN E. MENASCHE (SBN 74774)

8

DISABILITY RIGHTS CALIFORNIA

1111 Sixth Avenue, Suite 200

9

San Diego, CA 92101

Telephone: 619-239-7861

10

Facsimile: 619-239-7906

ann.menasche@disabilityrightsca.org 11

PAULA PEARLMAN (SBN 109038)

12

DISABILITY RIGHTS LEGAL CENTER

919 Albany Street

13

Los Angeles, CA 90015

Telephone: (213) 736-1031

14

Facsimile: (213) 736-1428

paula.pearlman@lls.edu 15

CHARLES WOLFINGER (SBN 63467)

16

LAW OFFICE OF CHARLES WOLFINGER

4655 Cass Street # 314

17

San Diego, CA 92109

Telephone: (858) 272-8115

18

Facsimile: (858) 270-3960

Cw@charleswolfinger.com 19

JANE PERKINS (SBN 104784)

20

NATIONAL HEALTH LAW PROGRAM

101 East Weaver Street, Suite G-7

21

Carrboro, NC 27510

22

Telephone: (919) 968-6308 Facsimile: (919) 968-8855

23

perkins@healthlaw.org

24

ABIGAIL K. COURSOLLE (SBN 266646)

NATIONAL HEALTH LAW PROGRAM

25

3701 Wilshire Blvd., Ste. 750

Los Angeles, CA 90010

26

Telephone: (310) 736-1652

Facsimile: (213) 368-0774

27

coursolle@healthlaw.org

28 Attorneys for Individual Named Plaintiffs David Oster, Willie Beatrice Sheppard, C.R., Dottie Jones, Andrea Hylton, Helen Polly Stern, Charles Thurman, L.C., and the Plaintiff Class 15 Oster, et al. v. Lightbourne, Case No. CV 09-04668 CW: JT NOM AND MOT. F/PREL. APPROVAL OF CLASS SETT. AGREEMENT… MPA ISO MOTION

 
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~ m:. (R~ ,,.,,,_.. ,. ,-"..

• CIVIL COVER SHEET • ();)

J ~c:r

1be JS 44 CIVIl cover sheet and the mtonnatlOn comained herem neither replace nor supplement the tiling and service of pleadings or other papers as reqwred by Ia", e~~rovtded

by local rules of court This fonn, approved by the Judicial Conference ofthe United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating

the civil dockctshect lSEE INSTRUCTIONS ON PAGE TWO OF THE FDRM.)

J

L (a) PLAINTIFFS

DEFENDANTS

V.L., et al. [See Attachment]

E-1Uing

(b) County of Residence of First Listed Plaintiff San Francisco

(EXCEPT IN US, PlAINTIFF CASES)

John A. Wagner, et al. [See Attachment]
County of Residence of First Listed Defendant (IN C.S. PI ANTIFF CASES OJ\/,Y)
NOTE: IN LAND CONDEMNATlOK CASES, USE THE LOCATION OF THE LAND INVOL VED

(c) Attorney's (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Melinda Bird, Marilyn Holle, Deborah Dorfman Disability Rights California Los Angeles Regional Office 3580 Wilshire Blvd., Ste, 902
Los Angeles, CA 90010, T: 213-427-8747 [See Attachment]

IL BASIS OF JURISDICTION (place an "X" inane Dox Only)

o I us Government Plainllff

[]I 3 Federal Queshon
(US Government Not a Party)

IlL CITIZENSHIP OF PRINCIPAL PARTIES (place an "X" in OneDox for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

Citizen ofT his State

PTF DEF O l D I Incorporated orPrincipalPlace
of Business In This State

PTF 0 4

DEF
04

us. Government
Defendant

Div¢rslty (IndICate CItIzenship of PartIes in hem Ill)

CitIZen of Another State 0 2 0 2 Incorporated and Pnncipol Place 0 5

0

of Business In Another State

C'lhzen or Subject of a Foreign Country

0 3 O J ~'oretgn NatIon

On

On

IV. NATURE OF SUIT (Place an "X' in One Box Only)

BANKRUPTCY

OTHERSTATtTES

CJ 110 Insw·ance

1::::::~======"--IPE:R=S=O=N=AL==IN=JU=R'Y-C=610 Agriculture

422 Appeal 28 USC 158

400 State Reapportionment

CJ 120 Marine

10 Airplane

362 Personal Injury-

620 Other Food & Drug

423 Withdrawal

410 Antitrust

CJ 130 Miller Act

15 Airplane Product

Med. ~lpractice

625 Drug Related SeIzure

28 USC 157

430 Banks and Bonking

CJ 140 Ne20tlabk Instrument

LiabilIty

365 Personal Injury -

ofPropeJty 21 USC 881

450 Commerce

CJ 1.'0" ecovery of {lverpayment

20 Assauk, Libel &

Product Liability

fiJI) LIquor Laws

I---P-R-O-P-E-'R-T-'-'-RI-G-I-IT-S--C::::: 460 Ileportallon

& Enforcement of Judgment

Slander

368 Asbestos Personal

640 R.R. & Truck

470 Racketeer Influenced and

CJ 151 Medicare Act 0 152 Recovery of Defaulted
Student Loans

InjUry Product Liabiltty
P.:RSONAL PROP.;RTY

650 Atrline Regs. 660 Occupational
SafctylHcalth

820 C:opynghl. 830 Patent 840 Trauemark

Corrupt OrgamzatlOns 480 Consumer Credrt 490 Cable/Sat TV

(Excl Veterans)
CJ 153 Recovery of Overpayment
of Veteran's Kenefito;;
CJ 160 Stockholders' SuIIs 0 190 Other Contr""t 0 195 Contract Plouuct LiabIlIty
196 FranchISe

45 Marmo Product LiabilIty
50 Motor VehIcle 55 Motor Vehic I.
Product I.IRhlhly 60 Other Personal InjUry

370 Other Fraud
171 Truth In I,end 109 380 Other Personal
Propelty Ddm age 385 Propelty Damage
Product Liability

690 Other

810 SelectIve ServICe

1-----------+--~-__:___:=_=-_i.....,850 Securities/Commodities!

LABOR

SOCIAL SECURITY

Exchange

861 HIA (1395fl) 1«>2 Hlack I.ung (923) 863 DIWC/DIWW (405(g» 864 SSID TItle XVI

875 Customer Challenge 12 USC 3410
890 Other StatuluIY Actlllfl> 89] AgrICultural Acts

REAL PROPERTY
CJ 210 Land Condemnation 0 220 Furedusure CJ 230 Rcnt Lease & EJectmcnt CJ 240 Torts to Land 0 245 Tolt Product LIabIlity CJ 29<) All Other Real Prope

PIUSONER PETITIONS
510 Motions to Vacate Sentence
lIabe•• Corpus: 530 Geneml 535 Death Penalty 540 Mandam us & Other 550 Civil Rights 55S Prison ConditIOn

865 RSI (405(g»)

892 Economic StabIlIzatIon Act

893 Em· ironmental 'vIaner.

XY4 f<:nergy AllocatIOn Act

1------------l::::J895 Freedom of InformatIOn

Act

IMI\UGRATION 462 N.-uraMltim Applicatiln

870 TRxe, (ll S PlaintIff or Def,ndan!)
871 IRS-Thin! Palty
26 esc 7609

900Appeal of Fee Determ ination Under Equal Access to Justice
(,),\0 COMtltutX'ma.lity of

463 lIabeas Corpus -

State Statutes

Ahcn Detainee

465 Other Immigration

ActvllS

V. ORIGIN (place an "X" mane &x Only)

0(] I Ori gi nal CJ 2 Removed from CJ 3 Remanded from

Proceeding

Stale Court

Appellate Court

CJ 4 Reinstated or
Reopened

Transferred from
CJ 5 another district
(specify)

CJ 6 MuItidistrict
Litiglltion

Appeal to District
CJ 7 Judge from
Magistrale Jud lnent

VL CAUSE OF ACTION

Cite the U.S, Civil Statute under which you are filing (Do not cite jurisdictional statute. unless diversity): U,S. Const. Amend. XIV, 42 U,S.C, Sec, 12132,29 U.S,C, Sec, 794, 42 U,S,C, Sec, 1396a
Brief description of cause: Denial of IHSS services in violation of the Americans with Disabilities Act, Section 504, Medicaid Act, Due Process Clause of the U,S. Constitution.

VIL REQUESTED IN COMPLAINT:
VIII, RELATED CASE(S)

CiiJ CHECK IF THIS IS A CLASS ACTION

CHECK YES only if demanded in complaint:

UJ\DER F,RC.P, 23

pennanent injunction

JURY DE\fA~D: CJ YesYil No

J.-I~........~ON{"ERNING REQIlTREMENT TO FILE

IF ANY

Ma

V. Schwarzene er, Case No.: 09-02306 CW, Jud e Claudia

-------------------------~----~--~~~~~-=~~~~~~~-=~~~~~~~~~~~~~~~~~

IX DIVISIONAL ASSIGNMENT (C1VIL L.R. 3-2)

Wilken

(pLACE AND II X" IN ONE BOX ONLY)

CJ SAN JOSE

DATE

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MELINDA BIRD (SBN 102236) DEBORAH DORFMAN (CRLSA No. 801060) DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010 Telephone: (213) 427-8747 Facsimile: (213) 427-8767 Melinda.bird@disabilityrightsca.org

Attorneys for Named Plaintiffs and the Proposed Class Additional Attorneys for Named Plaintiffs and the Proposed Class on Signature Page

STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709) STACEY M. LEYTON (SBN 203827) Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, California 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 sleyton@altshulerberzon.com

Attorneysfor Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU Local 521, SEIU California State Council, UDW, and CUHW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Je

SAN FRANCISCO/OAKLAND DIVISION

b 8 4_·_&_0 V.L. by and through his guardian ad litem Na&;'&! 0s9o. ____

Lagahid; DAVID OSTER; WILLIE BEATRICE SHEPPARD; and C.R. by and through his guardian ad litem Michelle Rivera, on behalf of themselves

CLASS ACTION COMPLAINT FOR

and a class of those similarly situated; SERVICE

INJUNCTIVE AND DECLARATORY

EMPLOYEES INTERNATIONAL UNION

RELIEF

("SEIU"}-UNITED HEALTHCARE WORKERS

WEST; SEIU-UNITED LONG-TERM CARE

WORKERS; SEIU LOCAL 521; SEIU

CALIFORNIA STATE COUNCIL; UNITED

DOMESTIC WORKERS OF AMERICA, AFSCME,

LOCAL 3930, AFL-CIO; and CALIFORNIA

UNITED HOMECARE WORKERS,

Plaintiffs,
v.

JOHN A. WAGNER, Director of the California Department of Social Services; DAVID MAXWELL-JOLLY, Director ofthe California Department of Health Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES; and CALIFORNIA DEPARTMENT OF SOCIAL SERVICES

Defendants. Class Action Complaint for Injunctive and Declaratory Relief

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INTRODUCTION

2

1. This civil rights class action seeks declaratory and injunctive relief to prevent over

3 one hundred thousand low-income seniors and individuals with disabilities from losing critiCal

4 services that enable them to remain safely in their homes.

5

2. California's In-Home Supportive Services ("IHSS") program presently provides

6 crucial in-home assistance with certain basic tasks of daily living - for example, bathing, dressing,

7 meal preparation and clean up, eating, bowel and bladder care, and taking necessary medications -

8 so that elderly individuals and persons with disabilities can avoid unnecessary and costly

9 institutionalization. IHSS recipients qualify for these services because it has been determined that

10 they cannot safely remain in their homes without them.

11

3. However, ABX4 4, which was passed on an emergency basis for purely budgetary

12 reasons, would render tens of thousands of current IHSS recipients ineligible for all IHSS services

13 based on a "Functional Index Score," first devised in 1988; that was not designed to measure

14 individual need or to determine eligibility, has never been used for such purposes, and is not a

15 reasonable measure of need or eligibility. ABX44 (Stats. 2009, c. 4, §§ 29, 30) (Part II)

16 (amending Cal. Welf. & Inst. Code §§ 12309 & 12309.2). ABX4 4 would also deprive tens of

17 thousands of additional IHSS recipients of critical IHSS domestic and related services that have

18 previously been found necessary to permit these individuals to remain safely in their homes based

19 on a numerical "rank" that was not designed to determine eligibility, has never been used for such

20 purpose, and is not a reasonable measure of need or eligibility. These statutory changes are

21 scheduled to go into effect on November 1,2009.

22

4. Unless enjoined, these provisions of ABX4 4 will cause immediate and irreparable

23 harm by depriving members of the plaintiff class of services that are essential to their ability to

24 remain safely in their own homes. This will place members of the plaintiff class at imminent and

25 serious risk of harm to their health and safety, as well as of unnecessary and unwanted out-of-home

26 placement, including institutionalization.

27

5. The statutory provisions at issue contravene federal law in a number of ways.

28 Initially, ABX4 4's changes to state law violate the Americans with Disabilities Act of 1990,42·

Class Action Complaint for Injunctive and Declaratory Relief

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1 U.S.C. § 12312 ("ADA"), and Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794

2 ("Section 504"), by placing IHSS recipients at imminent risk of unnecessary and unwanted out-of-

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3 home and out-of-community placement, including in institutions such as nursing homes, and by

I

4 discriminating on the basis of type of disability.

f

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6. ABX44 also violates the requirements of Title XIX of the Social Security Act, 42

I

6 U.S.C. § 1396a ("the Medicaid Act"): that States provide (1) comparable Medicaid services to

7 individuals with similar needs; (2) services that are sufficient in amount, duration, and scope to

1

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8 reasonably achieve their purposes; (3) services according to reasonable standards; and (4)

]

9 necessary services to correct or ameliorate children's conditions. ABX44 further violates the

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10 requirement imposed by the Medicaid Maintenance of Effort Clause of the American Recovery and

11 Reinvestment Act ("ARRA") by restricting IHSS eligibility standards.

12

7. Finally, Defendants' failure to provide adequate notice and opportunity for hearing

13 prior to depriving members ofthe plaintiff class of critical IHSS services violates the federal

14 constitutional guarantee of procedural due process and the Medicaid Act's notice and hearing

15 provlSlons.

16

JURISDICTION

17

8. This action for declaratory and injunctive relief arises under the Due Process Clause

18 of the Fourteenth Amendment to the U.S. Constitution; Title XIX of the Social Security Act, 42

19 U.S.C. § 1396a et seq. ("the Medicaid Act"); Title II of the Americans With Disabilities Act of

20 1990,42 U.S.C. § 12132 ("ADA"); Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794

21 ("Section 504"); 42 U.S.C. § 1983; and the Supremacy Clause, U.S. Const., Art. VI, cl. 2.

22

9. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343. Plaintiffs' claims for

23 declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201 and 2202. At all times

24 relevant to this action, Defendants have acted under color of state law.

25

VENUE

26

10. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

27 § 1391 (b), because the Defendants operate and perform their official duties therein and thus reside

28 therein for purposes of venue, and because a substantial part of the events and omissions giving

2 Class Action Complaint for Injunctive and Declaratory Relief

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1 rise to the claims herein occurred in the Northern District of California. Individual named plaintiff

2 V.L. lives and receives services in San Francisco, which is in the Northern District of California.

3 Individual named plaintiff Willie Beatrice Sheppard lives and receives services in Emeryville,

4 which is in Alameda County, in the Northern District of California. Individual named plaintiff

5 C.R. lives and receives services in Gilroy, which is in Santa Clara County, in the Northern Distri~t

6 of California. Members of the plaintiff class reside and receive IHSS services in the Northern

7 District of California. Organizational Plaintiff Service Employees International Union-United

8 Healthcare Workers West ("UHW") members provide IHSS services in Marin and Contra Costa

9 Counties, in the Northern District of California. Organizational Plaintiff SEIU United Long-Term

10 Care Workers ("ULTCW") members provide IHSS services in Mendocino, Sonoma, Napa,

11 Alameda, Santa Cruz, and Monterey Counties, in the Northern District of California.

12 Organizational Plaintiff SEIU Local 521 ("Local 521") members provide IHSS services in Santa

13 Clara and San Mateo County, in the Northern District of California. Organizational plaintiff

14 California United Homecare Workers ("CUHW") members provide IHSS services in Del Norte,

15 Humboldt, and Lake Counties, in the Northern District of California.

16

INTRADISTRICT ASSIGNMENT

17

11. Pursuant to Civil L. R. 3-2(c) this action should be assigned to the San Francisco or

18 Oakland Division of the Northern District of California, because a substantial part of the events and

19 omissions giving rise to the claims herein occurred in counties in the San Francisco/Oakland

20 Division. Individual named plaintiffV.L. lives in San Francisco. Individual named plaintiff Willie

21 Beatrice Sheppard lives in Emeryville, which is located in Alameda County. Many members of the

22 plaintiff class are residents of Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin,

23 Mendocino, Napa, San Francisco, San Mateo, and Sonoma Counties. Organizational Plaintiff

24 UHW members provide IHSS services in Marin and Contra Costa Counties. Organizational

25 PlaintiffULTCW members provide IHSS services in Alameda, Mendocino, Sonoma, and Napa

26 Counties. Organizational Plaintiff Local 521 members provide IHSS services in San Mateo

27 County. Organizational Plaintiff CUHW members provide IHSS services in Del Norte, Humboldt,

28 and Lake Counties.

3 Class Action Complaint for Injunctive and Declaratory Relief

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PARTIES

2

Individual Plaintiffs

3

12. Named PaintiffV.L., represented here by his guardian ad litem Nancy Lagahid, is a

4 14-year-old boy who has Charcot-Marie-Tooth Disease, a fonn of muscular dystrophy. Because of

5 his disabilities and medical condition, plaintiffV.L. is eligible for California's Medicaid program

6 ("Medi-Cal") and receives IHSS services. Pursuant to ABX4 4, V.L. will lose eligibility for all

7 IHSS services because his Functional Index Score is under 2.0.

8

13. Named Plaintiff David Oster is a 33-year-old man who has autism and bi-polar

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9 disorder. Because of his disabilities and medical conditions, Mr. Oster is Medi-Cal eligible and

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10 receives IHSS services. Pursuant to ABX4 4, Mr. Oster will lose eligibility for all IHSS services

11 because his Functional Index Score is under 2.0.

1

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14. Named Plaintiff Willie Beatrice Sheppard is an 81-year-old woman whose mobility

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13 is impaired as result of a stroke and arthritis. Because of her disabilities, medical conditions, and

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14 age, Ms. Sheppard is Medi-Cal eligible and receives IHSS. Ms. Sheppard has never been infonned

15 what her Functional Index Score is and has also never been infonned what her functional ranks are

16 for domestic and related services. She is concerned that she may lose eligibility for IHSS

17 altogether if her Functional Index score is too low (below 2.0) or that she may lose some of her

18 domestic and related services if her functional ranks for these services are below 4.

19

15. Named plaintiff C.R., r~presented here by his guardian ad litem Michelle Rivera, is

20 a five-year-old boy who has a developmental disability due to chromosome deletion. Because of

21 his disabilities and medical condition, C.R. is Medi-Cal eligible and receives IHSS services.

22 Pursuant to ABX 4 4, C.R. will lose eligibility for all IHSS services because his Functional Index

23 Score is under 2.0.

24

Organizational Plaintiffs

25

16. Plaintiff UHW is an unincorporated association with members that include

26 approximately 55,000 IHSS providers in 11 counties. Some members provide services for their

27 minor children. PlaintiffUHW is an affiliate of the Service Employees International Union

28 ("SEIU") and for years has been an advocate for increased access to and quality of IHSS services.

4 Class Action Complaint for Injunctive and Declaratory Relief

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1 UHW brings this suit on behalf of its members who will be injured if IHSS recipients (including

2 minor children of members) lose eligibility and services, who would have standing to sue in their

3 own right, and whose personal participation in this litigation is not necessary.

4

17. Plaintiff ULTCW is an unincorporated association with members that include

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5 approximately 175,000 IHSS providers in 10 counties. Some members provide services for their

1

6 minor children. ULTCW has long been an advocate for increased access to and quality of IHSS

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7 services. ULTCW brings this suit on behalf of its members who will be injured if IHSS recipients

8 (including minor children ofmembers) lose eligibility and services, who would have standing to

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9 sue in their own right, and whose personal participation in this litigation is not necessary.

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18. Plaintiff Local 521 is an unincorporated association with members that include

11 approximately 15,000 IHSS providers. Some members provide services for their minor children.

12 Local 521, through its predecessor unions, has long been an advocate for increased access to and

13 quality of IHSS services. Local 521 brings this suit on behalf of its members who will be injured if

14 IHSS recipients (including minor children of members) lose eligibility and services, who would

15 have standing to sue in their own right, and whose personal participation in this litigation is not

16 necessary.

17

19. Plaintiff SEIU California State Council ("SElU State Council") is a state-wide

18 affiliate ofSEIU. More than 20 local unions representing over 700,000 workers and retirees

19 belong to the SEIU State Council. The SEIU State Council advocates for the interests of its

20 affiliated local unions and their members before legislative bodies, regulatory agencies, and the

21 courts, including by advocating for increased access to and quality of IHSS services. The SEIU

22 State Council brings this suit on behalf of its affiliate local unions and the members of its affiliates,

23 who would have standing to sue in their own right and whose personal participation in this

24 litigation is not necessary.

25

20. United Domestic Workers of America, AFSCME, Local 3930, AFL-CIO ("UDW")

26 is a local union affiliated with the American Federation of State, County and Municipal Employees

27 ("AFSCME"). UDW represents approximately 55,000 IHSS providers in 11 counties throughout

28 California. Some of these members provide services for their minor children. UDW has for years
5 Class Action Complaint for Injunctive and Declaratory Relief

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I been an advocate for increased access to and quality ofIHSS services. UDW brings this suit on

2 behalf of its members who will be injured if IHSS recipients (including minor children of

3 members) lose eligibility and services, who would have standing to sue in their own right, and

4 whose personal participation in this litigation is not necessary.

5

21. Plaintiff CUHW is an unincorporated association with members that include

6 approximately 18,000 IHSS providers in 18 counties. Some members provide services to their

7 minor children. CUHW is jointly affiliated with SEIU and AFSCME, and is a member of the

8 SEIU State Council. Through the SEIU State Council, CUHW has been an advocate for increased

9 access to and quality of IHSS services. CUHW brings this suit on behalf of its members who will

10 be injured ifIHSS recipients (including minor children of members) lose eligibility and services,

11 who would have standing to sue in their own right, and whose personal participation in this

12 litigation is not necessary.

13

Defendants

14

22. Defendant California Department of Health Care Services ("DHCS") is a state

15 agency that receives federal funds and is the single state agency responsible for administering the

16 federal Medicaid program in California ("Medi-Cal"). Defendant DHCS is sued under the Third

17 Claim for Relief (ADA) and the Fourth Claim for Relief (Section 504).

18

23. Defendant David Maxwell-Jolly is the Director ofDHCS, a state agency that

19 receives federal funds. Defendant Maxwell-Jolly is a public agency director responsible for

20 operation ofa public entity, pursuant to 42 U.S.C. §§ 12131(1)(A) & (B). As the Director of

21 DHCS, Defendant Maxwell-Jolly is responsible for oversight, supervision and control of the

22 functions and programs vested in the DHCS, including the Medi-Cal program, and has the

23 responsibility for ensuring that the Medi-Cal program is implemented and administered consistent

24 with the requirements of federal Medicaid law. Defendant Maxwell-Jolly is sued in his official

25 capacity under the First Claim for Relief (Fourteenth Amendment to the United States

26 Constitution-Procedural Due Process), Second Claim for Relief (Medicaid- Right to Fair Hearing),

27 Fifth Claim for Relief (Medicaid-Comparability Requirement), Sixth Claim for Relief (Medicaid-

28 Sufficiency Requirement), Seventh Claim for Relief (Medicaid-Reasonable Standards

6 Class Action Complaint for Injunctive and Declaratory Relief

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1 Requirement), Eighth Claim for Relief (Medicaid-Early and Periodic Screening, Diagnostic and

2 Treatment Services), and Ninth Claim for Relief (Medicaid-ARRA).

3

24. Defendant California Department of Social Services ("CDSS") is a state agency that

4 receives federal funds and is responsible for the overall implementation and supervision of the

5 administration of the IHSS programs by the counties. Defendant CDSS is sued under the Third

6 Claim for Relief (ADA) and the Fourth Claim for Relief (Section 504).

7

25. Defendant John Wagner is the Director of CDSS, a state agency that receives

8 federal funds. Defendant Wagner is a public agency director responsible for the operation of a

9 public entity pursuant to 42 U.S.C. §§ 12131(1)(A) & (B). Defendant Wagner is sued in his

10 official capacity under the First Claim for Relief (Fourteenth Amendment to the United States

11 Constitution-Procedural Due Process), Second Claim for Relief (Medicaid-Right to Fair Hearing),

12 Fifth Claim for Relief (Medicaid-Comparability Requirement), Sixth Claim for Relief (Medicaid-

13 Sufficiency Requirement), Seventh Claim for Relief (Medicaid-Reasonable Standards

14 Requirement), Eighth Claim for Relief (Medicaid-Early & Periodic Screening, Diagnostic and

15 Treatment Services), and Ninth Claim for Relief (Medicaid-ARRA).

16

FACTUAL ALLEGATIONS

17

A. Medi-Cal and the California IHSS Program

18

26. The purpose of the IHSS program is "to enable the aged, blind or disabled poor to

19 avoid institutionalization by remaining in their homes with proper supportive services." Cal. Welf.

20 & Inst. Code § 12300(a).

21

27. Persons eligible for this program must be aged (65 or over), blind, or disabled, and

22 must also be poor under standards of the federal Supplemental Security Income or State

23 Supplemental Payment Program. Cal. Welf. & Inst. Code §§ 12051,12052,14051; CDSS Manual

24 of Policies and Procedures ("Manual" or "MPP") §§ 30-755.111-.114.

25

28. The IHSS program provides assistance with the following: (1) domestic services;

26 (2) related services (meal preparation and clean-up, restaurant meal allowance, laundry, food and

27 other shopping); (3) personal care services (bowel and bladder care, respiration, feeding, routine

28 bed baths, bathing, oral hygiene and grooming, dressing, repositioning and rubbing skin including

7 Class Action Complaint for Injunctive and Declaratory Relief

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1 range of motion exercises, transfers, care and assistance with prosthetic devices and self-

2 administration of medication, routine menstrual care, skin care, and ambulation); (4) travel to

3 medical appointments; (5) yard hazard abatement; (6) protective supervision (monitoring of

4 individuals with mental impairments to ensure their safety); (7) teaching and demonstration

5 services; and (8) paramedical services (services that are prescribed by a doctor and require training,

6 such as injections, colostomy irrigation, catheter insertion/care, suctioning, G and NG tube feeding,

I

7 and ventilator and oxygen care). Cal. Welf. & Inst. Code §§ I2300(b) & (c); I4132.95(d)(1), (2);

8 I4132.95I(c).

9

29. Most IHSS services are provided through California's Medicaid program ("Medi-

10 Cal"). Medicaid is ajoint federal and state medical assistance program for certain groups of low-

11 income people, including children. See 42 U.S.C. §§ 1396-1396v. California has elected to

12 participate in the Medicaid program, and so must comply with the requirements of the federal

13 Medicaid Act and its implementing regulations.

14

30. The purpose of Medicaid is to furnish, as far as practicable, "medical assistance on

15 behalf of ... aged, blind or disabled individuals, whose income and resources are insufficient to

16 meet the costs of necessary medical services" and ''to help such families and individuals to attain or

17 retain capability for independence or self-care ...." 42 U.S.C. § 1396.

18

31. Participating States must designate a "single state agency" to administer the

19 Medicaid program. 42 U.S.C. § 1396a(a)(5). In California, the single state agency is DHCS.

20

32. Participating States are reimbursed by the federal government for a portion of the

21 cost of providing Medicaid benefits. See 42 U.S.C. § 1396b. The remaining funding for the IHSS

22 program comes from the State and from counties.

23

1. Eligibility for IHSS Services

24

33. Counties, under the direction of Defendant CDSS, determine recipients' eligibility

25 for IHSS services and the number of hours authorized for any services based on statewide statutes

26 and regulations. Cal. Welf. & Inst. Code §§ 12300(g), I4132.95(f), I4132.95I(b) & (e).

27

34. Individuals are eligible for IHSS services only if they are "unable to perform the

28 services themselves and ... cannot safely remain in their homes... unless these services are
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provided." Cal. Welf. & Inst. Code § 12300(a); MPP §§ 30-761.13, 30-763.112.

2

35. The assessment of eligibility for IHSS services begins with county social workers

3 "collecting and evaluating information ... [which] includes but is not limited to, all of the

4 following: (A) The recipient's living environment. (B) Alternative resources. (C) The recipient's

5 functional abilities." Cal. Welf. & Inst. Code § 12309(b).

6

36. Social workers assess recipients' level of need through a variety of methods,

7 including observing the recipient and the recipient's living environment, asking the client

8 questions, and reviewing documentation, including diagnosis and functional indications from the

9 recipient's physician. MPP § 30-761.26.

10

37. Based on this information, social workers determine the tasks that recipients are

11 unable to safely perform by themselves, and the minimum number of hours necessary for an IHSS

12 provider to assist or to undertake those tasks for them. MPP § 30-763.2.

13

38. Social workers are trained that providers should not do things for recipients that the

14 recipients could do for themselves, because this results in further loss of independence for the

15 recipient and may actually further mental or physical deterioration.

16

39. When a new recipient begins receiving IHSS services, the recipient receives a

17 Notice of Action ("NOA") setting forth the hours authorized for each service on a weekly or

18 monthly basis. Cal. Welf. & Inst. Code § 12300.2; MPP § 30-763.81.

19

40. Recipients are reassessed for eligibility for IHSS services on an annual basis

20 through in-person social worker reassessment. Recipients are notified of any change in hours

21 authorized in an NOA. Cal. Welf. & Inst. Code § 12300.2; MPP §§ 30-761.212,30-763.81.

22

41. Counties are also required to reassess recipients any time the recipient notifies the

23 county of a need to adjust the supportive services hours authorized, or when there are other

24 indications or expectations of a change in circumstances affecting the recipient's need for

25 supportive services. Cal. Welf. & Inst. Code § 12301.1(d).

26

42. As of the date this complaint is being filed, if a recipient disagrees with the number

27 of authorized hours set forth in the NOA, he or she may file an administrative appeal. Cal. Welf. &

28 Inst. Code § 12301.5.
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2. Assignment of Functional Ranks

2

43. As one part of their overall assessment, social workers assign a functional rank to

3 each of fourteen "activities of daily living and instrumental activities of daily living" ("ADLs") by

4 evaluating the combined "effect ofthe recipient's physical, cognitive, and emotional impairment"

:l

5 on the recipient's performance of the tasks associated with those ADLs. Cal. Welf. & Inst. Code §

i
I

6 12309(c); MPP § 30-756.1.

7

44. Recipients are ranked on eleven physical tasks and three mental functions. The

I

8 physical tasks are: housework; laundry; shopping and errands; meal preparation and cleanup;

f

9 mobility inside; bathing and grooming; dressing; bowel, bladder, and menstrual care; transfer;

10 eating; and respiration. Of these, housework, laundry, shopping and errands, and meal preparation

11 and cleanup correspond to so-called domestic or related services, and the remainder are referred to

12 in state regulations as "personal care" services. MPP § 30-756.2(a)-(k). Social workers also rank

13 three mental functions of recipients: memory, orientation, and judgment. MPP § 30-756.372.

14

45. The IHSS ranking scale includes:

15

(1) Rank one. A recipient's functioning shall be classified as rank one ifhis or her

16

functioning is independent, and he or she is able to perform the function without human assistance, although the recipient may have difficulty in performing the

17

function, but the completion of the function, with or without a device or mobility

aid, poses no substantial risk to his or her safety.

18

(2) Rank two. A recipient's functioning shall be classified as rank two ifhe or she is

19

able to perform a function, but needs verbal assistance, such as reminding, guidance,

20

or encouragement.

21

(3) Rank three. A recipient's functioning shall be classified as rank three ifhe or she

can perform the function with some human assistance, including, but not limited to,

22

direct physical assistance from a provider.

23

(4) Rank four. A recipient's functioning shall be classified as rank four ifhe or she

24

can perform a function, but only with substantial human assistance.

25

(5) Rank five. A recipient's functioning shall be classified as rank five ifhe or she

cannot perform the function, with or without human assistance.

26

27 Cal. Welf. & Inst. Code § 12309(d)(1)-(5).

28

46. These ranks are further defined and explained, with specific descriptions, examples,

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1 and sample observations for what constitutes a rank of 1,2,3,4, or 5, for each of the 14 ADLs, in

2 the Annotated Assessment Criteria, revised Attachment B to All-County Letter ("ACL") 06-34

3 (April 27, 2007).

4

47. Although social workers rank most ADLs on a scale of 1-5, there are certain

5 exceptions: laundry is ranked only 1,4, or 5; shopping is ranked only 1,3, or 5; respiration is

6 ranked only 1 or 5; and the three categories of mental functioning (memory, orientation, and

7 judgment) are ranked either 1, 2, or 5.

8

48. There are no functional ranks assigned to certain tasks for which IHSS hours may be

9 authorized, such as repositioning and rubbing skin, care and assistance with prosthetic devices, and

10 assistance with self-administration of medication. MPP § 30-757.14(g)(i).

11

49. . A recipient must have a functional rank of at least 2 with respect to any ADL to be

12 eligible for the corresponding IHSS service. MPP § 30-763.1. Otherwise, before the enactment of

13 ABX4 4, the functional ranks have not had any relationship to eligibility for IHSS.

14

3. Hourly Task Guidelines

15

50. CDSS has established "statewide hourly task guidelines and instructions to provide

16 counties with a standard tool for consistently and accurately assessing service needs and

17 authorizing service hours to meet those needs." Cal. Welf. & Inst. Code § 12301.2(a)(I).

18

51. The applicable regulations specify the standard time ranges required for each IHSS

19 task and set forth criteria that are relevant to when an individual's needs would fall outside this

20 range. Cal. Welf. & Inst. Code § 12301.2(a)(2); MPP § 30-757.

21

52. Counties are required to deviate from the hourly task guideline amount if a

22 recipient's needs fall outside this standard range, and in such cases counties must document the

23 need for that service level. Cal. Welf. & Inst. Code § 12301.2(c). There are multiple reasons why

24 a recipient's need for and authorization for IHSS hours might differ from the hourly task

25 guidelines, as set forth in the Manual. MPP § 30-757.1.

26

53. For every service with hourly task guidelines, the standard time range is so broad

27 that it overlaps for functional ranks 2 through 5. For example, in meal preparation, the standard

28 time range for functional rank 2 is 3.02-7.00 hours per week, rank 3 is 3.5-7.00 hours per week,

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1 rank 4 is 5.25-7.00 hours per week, and rank 5 is 7 hours per week. MPP § 30-757.131(a). A

2 recipient may thus rank either 2,3, or 4 in meal preparation and still receive 5-7 hours per week for

3 this service without deviating from the standard hourly task guideline.

4

54. Some services have limitations in hours that are not related to functional rank at all:

5 domestic services are limited to six hours per month; laundry services are limited to one hour per

6 week (or 1.5 hours per week if laundry facilities are not available on the premises), and shopping

7 and other errands are limited to 1.5 hours per week. MPP § 30-757.1 1(k)(l), .134(c) & (d),

8 .135(b)(i).

9

55. Social workers do not use the functional ranks or the hourly task guidelines to

10 determine in the first instance whether a recipient is eligible for IHSS services, or the number of

11 hours to authorize for each service. Instead, social workers use the functional ranks and hourly

12 task guidelines to double check their individualized assessment of services needed, and then

13 document any case in which authorized services do not match the hourly task guidelines.

14

56. If a social worker finds that an individual needs more than the standard amount of

15 hours for a service, that does not affect the functional rank.

16

57. After a county determines the number of hours required for each needed service, it

17 must adjust those hours downward if the recipient shares the need with someone else in the

18 household or if some other agency or person provides the service without charge. MPP §§ 30-

19 763.3, .4, .6. The number of hours authorized for each needed IHSS service is the result of that

20 adjustment process. MPP § 30-763.7.

21

58. The maximum amount of IHSS services that a recipient is allowed to receive is 283

22 hours per month if the person is "severely disabled" or 195 hours per month if the person is not

23 severely disabled. Welf. & Inst. Code §§ 12303.4(a) & (b), 14132.95(g), 14132.951(b).

24

B. ABX44

25

59. On July 28,2009, the Governor of California signed into law ABX4 4, which was

26 enacted as part of the Fourth Extraordinary Legislative Session. ABX44 amended California

27 Welfare and Institutions Code Sections 12309(e) and 12309.2 ("Sections 12309(e) and 12309.2")

28 to eliminate crucial IHSS services to over one hundred thousand recipients.
12
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1. Loss of Eligibility For All IHSS Services

2

60. Under Section 12309.2 as amended by ABX4 4, IHSS recipients with composite

3 functional index scores ("PI Scores") of below 2.0 are no longer eligible for any IHSS services.

4

61. The FI Score was originally designed in the mid-1980's as part ofa "uniformity

5 system" for quality control and comparison purposes among counties (not among individuals).

6 ACL 88-118 (Sept. 6, 1988), Question 14.

7

62. CDSS has tested the FI Score, and determined that it is not meaningful.

8

63. Before the enactment of ABX4 4, the counties administering the IHSS program did

9 not utilize the FI Score for any purpose, including quality control. Before the enactment ofABX4

10 4, most county social workers were not even aware of the FI Scores of individual IHSS recipients.

11

64. The FI Score was not designed, and has never been used in the past, to determine

12 eligibility or need. The FI Score was not designed, and has never been used in the past, to predict

13 the service hours that any individual recipient should receive. ACL 88-118, Question 13.

14

65. Before the enactment of ABX4 4, IHSS recipients were not notified of their FI

15 Score. The FI Score did not appear on the NOAs that recipients receive upon assessment or

16 reassessment.

17

66. The FI Score is a number between 1.00 and 5.00 calculated by the Case

18 Management and Payrolling System ("CMIPS") for each IHSS recipient. ACL 88-118, Question

19 7. The formula for calculating the FI Score, which has not changed since 1988, involves

20 calculating a weighted average of the functional rankings for each of the 11 physical task ADLs.

21 ACL 88-118, Questions 9, 10; Draft ACL at 2. In general, these weights were determined by

22 taking the average (mean) number of hours assigned for these tasks by counties in 1988 and

23 determining the proportion of time each task represented with respect to the total aggregate hours

24 allocated for IHSS services. ACL 88-118, Question 10.

25

67. The composite FI Score is not an accurate or reliable measure of need for IHSS

26 services because it was not designed to, and does not, provide information about the likelihood that

27 any individual IHSS recipient is at risk of physical or mental injury, and/or out-of-home placement

28 or institutionalization, in the absence of IHSS services.

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68. The FI Score is a poor measure of need because it does not allow for individual

I

2 assessment of need based on individual circumstances, as set forth in the succeeding paragraphs.

3

69. The FI Score measures the weighted average of 11 functional ranks, and does not

4 measure whether any particular services are critical to any particular individual. Thus, the FI

5 Scores of recipients who only need a few of the 11 services measured will be low, even if the need

6 for those few services is critical.

7

70. The FI Score measures the average of 11 functional ranks, weighted based on the

8 number of hours authorized by counties to those tasks in 1988. Counties' assessment of hours may

9 not have been uniform or accurate in 1988. The population of individuals receiving IHSS services

10 has changed since 1988.

11

71. The FI Score does not include the functional ranks for mental functioning (memory,

12 orientation, judgment). Only the eleven functional ranks for physical ADLs are considered in

13 calculating the FI Score. ACL 88-118, Questions 7, 10.

14

72. Recipients with cognitive or psychiatric disabilities are more likely to receive

15 functional ranks of 2 for the 11 ADL tasks that are used to calculate the FI Score, because they may

16 require verbal rather than physical assistance.

17

73. The FI Score does not include functional ranks for certain IHSS services for which

18 no functional rank is calculated, including repositioning and rubbing skin, care and assistance with

19 prosthetic devices, assistance with self-administration of medications, and travel to medical

20 appointments.

21

74. Because children under a certain age receive automatic ranks of 1 for four or more

22 of the eleven tasks (depending on age), their FI Scores tend to be lower than those of adults. See

23 MPP § 30-763.451-462.

24

75. Because recipients of paramedical services receive automatic ranks of 6 for certain

25 tasks, which are then converted to 1's in calculating the FI Score, their FI Scores tend to be lower

26 than they would be otherwise. See MPP § 30-756.41-42.

27

76. Although the PI Score is not a rational measure of need for any individual, the

28 above-described factors cause FI Scores to be a particularly poor measure for certain groups of

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1 IHSS recipients, including children, individuals with impairments in mental functioning,

2 individuals whose need is greatest in areas where not very many hours are allocated on a statewide

3 basis, individuals who have high need in a few areas, individuals who receive paramedical

4 services, and individuals whose greatest need is for medication reminders and travel to medical

5 appointments.

6

77. ABX44 established exemptions to the eligibility restriction for IHSS recipients

i

7 authorized for paramedical services, protective supervision, or 120 or more hours of IHSS per

8 month. The bill also gave authority to the Director of CDSS to waive these exemptions if

9 necessary to maintain federal financial participation, and the Governor's veto message indicated

10 the Governor's intent to waive all three of these exemptions.

11

78. In a draft All County Letter released on September 18, 2009 ("Draft ACL"), CDSS

12 stated that the exemptions for paramedical services and protective supervision were being retained

13 for the time being, but that the Director had waived the exemption for recipients who are

14 authorized to receive at least 120 hours ofIHSS services per month. The Draft ACL stated that it

15 was possible that the exemptions for protective supervision and paramedical services would be

16 waived, based on guidance from the federal government. Accordingly, Plaintiffs still do not know

17 whether recipients who are authorized for paramedical services or protective supervision will be

18 subject to the eligibility restrictions.

19

2. Reductions in Domestic and Related Services

20

79. Under Section 12309(e) as amended by ABX4 4, even IHSS recipients who remain

21 eligible for IHSS services will no longer receive domestic and related services (meal preparation

22 and clean up, laundry, shopping and errands) if their functional rank is below 4 for that particular

23 service.

24

80.

Other than the functional rank of 1, the functional ranks were not designed as

25 measures of eligibility for assistance for a particular task. Before the enactment of ABX4 4, the

26 functional ranks 2, 3, 4, or 5 were never used to determine eligibility for services.

27

81. All IHSS recipients with functional ranks of2, 3, 4, or 5 have been individually

28 assessed by a social worker to need authorized services for a specified number of hours to live

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1 safely in their homes. Recipients with a functional rank of2 or 3 have as great a need for domestic

2 and related services as recipients with a rank of 4 or 5; they cannot perform those functions safely

3 without assistance.

4

82. Individuals with cognitive or psychiatric, as opposed to physical, disabilities often

5 receive a 2 rank for many ADLs, because they need verbal as opposed to physical assistance.

6 Because, by definition, they cannot perform the given activity without this verbal assistance, their

7 need for this verbal assistance is as great as the n~ed of recipients who need physical assistance to

8 perform the same activity.

I

9

83. It is often difficult for social workers to distinguish between the ranks of3 (need

~ ,

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10 "some human assistance") and 4 (need "substantial human assistance"), especially when a 11 recipient's functioning may vary from day to day.

12

84. Prior to the enactment of ABX4 4, IHSS recipients were not notified of their

13 functional ranks. These functional ranks did not appear on the NOAs that recipients receive upon

14 their assessment and reassessment.

15

85. On information and belief, DSS will not require the reassessment or review of the

,

16 impact that elimination of domestic and related services may have on IHSS recipients' assessed

17 needs in relation to other activities.

18

86. ABX44 established exemptions to the elimination of domestic and related services

19 for IHSS recipients authorized for paramedical services, protective supervision, or 120 or more

20 hours of IHSS services per month. The bill also gave authority to the Director of the Department

21 of Social Services to waive these exemptions if necessary to maintain federal financial

22 participation, and the Governor's veto message indicated the Governor's intent to waive all three of

23 these exemptions.

24

87. In the Draft ACL, CDSS stated that the exemptions for protective supervision and

25 paramedical services were being retained for the time being, but that the Director had waived the

26 exemption for recipients who are authorized to receive at least 120 hours of IHSS services per

27 month. The Draft ACL stated that it was possible that the exemptions for protective supervision

28 and paramedical services would also be waived, based on guidance from the federal government.

{
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1 Accordingly, Plaintiffs still do not know whether recipients who are authorized for protective

2 supervision or paramedical services will be subject to the cuts in domestic and related services.

3

3. Notice to Recipients and Fair Hearing Rights

4

88. IHSS recipients have not heretofore been informed of the possibility that they will,

5 lose eligibility for IHSS services based on their FI Score or the possibility that they will lose

6 eligibility for domestic and related services based upon their functional ranks for those services.

7

89. Many IHSS recipients who have requested their FI Scores and/or their individual

8 functional ranks from their social workers and/or counties have been unable to obtain them.

9

90. On September 18, 2009, CDSS issued a draft All-County Letter ("Draft ACL")

10 stating that the IHSS eligibility restrictions and service cuts would be implemented on November

11 1,2009. Although this was issued as a draft, on ipformation and belief, CDSS intends to issue a

12 final ACL with similar instructions to counties shortly, and is already in the process of

13 implementing the Draft ACL.

14

91. The Draft ACL states that IHSS recipients will be notified of their FI Scores if they

15 are losing eligibility for IHSS services, and of their functional ranks for domestic or related

16 services if they are losing one or more of those services.

17

92. The proposed notice attached to the Draft ACL does not provide IHSS recipients

18 who will lose domestic and related services with sufficient information to enable them to determine

19 if their functional ranks have been correctly calculated, because it does not provide recipients with

20 the detailed descriptions of how functional ranks are to be determined for each separate ADL, as

21 set forth in the Annotated Assessment.

22

93. The proposed notice attached to the Draft ACL does not provide IHSS recipients

23 who will lose eligibility for IHSS with adequate information to determine if their FI Score has been

24 correctly calculated, because it does not set forth the 11 individual functional ranks that make up

25 the composite PI Score, fully explain the meaning of the ranks, or provide recipients with the

26 formula by which their FI Score is calculated.

27

94. The Draft ACL also states that recipients will be notified of the cuts or reductions in

28 IHSS services in "[t]imely" notices of action. On information and belief, Defendants will notify

!

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recipients that their IHSS services have been cut or reduced only ten days before the

2 implementation date of November 1,2009.

3

95. The timing of the notice to IHSS recipients of the eligibility restrictions and

4 elimination of authorized hours will not provide adequate time for recipients to make alternative

5 arrangements for assistance, to the extent such arrangements are possible.

6

96. According to the Draft ACL, recipients will be able to request hearings regarding

7 disputes over their FI Scores or functional ranks, and to request aid paid pending appeal if they file

I

8 their hearing requests prior to the effective date of the notice of action.

9

97. According to the Draft ACL, even though recipients may request hearings regarding

10 disputes over scores and ranks, recipients may not file a state hearing request to appeal or contest

11 authorization of service hours. Instead, recipients who believe they need more authorized hours

12 must first request a county reassessment. According to the Draft ACL, for the first twelve month

13 period following the date of the Draft ACL, recipients who seek a county reassessment oftheir .

14 authorized IHSS hours sooner then the next scheduled reassessment must provide documentation

15 from the recipient's physician ofa change in their functional ability that would significantly affect

16 one or more of their functional rankings. The county is supposed to deny any request for

17 reassessment that lacks medical documentation. Recipients may request a state hearing on the

18 denial of a request for reassessment.

19

98. Defendants operate the state administrative hearing system through a series of

20 regional ~earing offices. Recipients and applicants who appeal denials or reductions of Medi-Cal,

21 IHSS, Cal-Works, Food Stamps, Adoption Assistance and other public benefits must file a timely

22 request for hearing with the hearing office or the local welfare office. On information and belief,

23 these hearing offices are presently unable to respond in a timely manner to all the claimants who

24 request administrative hearings, so that the state hearing officers recently decided to no longer

25 consider requests for reconsideration of an adverse hearing decision.

26

99. On information and belief, as many as 100,000 class members may request an

27 administrative hearing to appeal the reduction or termination of their IHSS benefits pursuant to

28 ABX4 4. Because Defendants have failed to allocate the staff and resources to respond to this

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1 number of expected hearing requests, Plaintiffs will be unable to obtain a timely hearing regarding 2 their appeals.

3

100. IHSS recipients have not been, and will not be, notified of the availability of

4 replacement services available under the Medi-Cal State Plan, to the extent any other services are

5 available. Nor have the State or counties arranged for such replacement services, to the extent any

6 services are available.

7

4. Impact upon Recipients

8

101. The loss of eligibility for all IHSS services or the loss of domestic and related

9 services is likely to cause Plaintiff Class members to suffer declines in physical functioning,

10 increased medical complications, and additional preventable accidents resulting in physical injury.

11 This will expose them to a serious risk of harm to their health and safety and cause a serious risk of

12 unwanted out-of-home placement, including unwanted institutionalization.

13

102. The loss of eligibility for all IHSS services or the loss of domestic and related

14 services is likely to cause Plaintiff Class members to suffer declines in mental functioning. This

15 will expose them to a serious risk of harm to their health and safety and cause a serious risk of out-

16 of-home placement, including unwanted institutionalization.

17

103. Individuals whose physical or cognitive impairments are such that they cannot be

18 left alone or whose health conditions are extremely unstable are likely to face immediate out-of-

19 home placement in an institution.

20

104. Other individuals wiIllose physical and mental functioning as a result of the loss of

21 or reduction in their IHSS services. For example, individuals with psychiatric disabilities may stop

22 taking their medications and become delusional, suicidal, or otherwise present a danger to

23 themselves and others. Individuals deprived of shopping, meal preparation and and/or eating

24 assistance may become malnourished or ill because they eat foods contraindicated by medical

25 conditions or necessary medications, or fail to eat at all. Individuals deprived of domestic services

26 may suffer falls or other injuries if they attempt to perform cleaning and other household tasks.

27 Other individuals will live in unsanitary and potentially hazardous situations that can lead to falls,

28 illness, and/or eviction and homelessness. The mental or physical functioning of these individuals

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1 is likely to deteriorate to the point that they also face out-of home placement, including unwanted

2 and preventable institutionalization.

3

105. Out-of-home placement in an institution can often further destabilize already

4 compromised mental or physical functioning. Once placed in an institution, it is extremely difficult

5 for individuals to move out of institutions and back into the community.

6

106. It costs far more to institutionalize elderly and disabled individuals in nursing homes

7 or other institutions than it does to provide IHSS services that allow them to live in community-

8 based settings.

9

107. The IHSS Program helps prevent costly and unnecessary institutionalization, saving

10 the State significant funds, and, at the same time, improving the quality of life for the individuals

11 served.

12

c.

Facts Related to Individual Plaintiffs

13

1. Named PlaintiffV.L.

14

108. Named PlaintiffV.L. is a 14-year-old boy, and is a qualified person with a

15 disability-specifically, Charcot-Marie-Tooth Disease ("CMT"), an inherited form of muscular

16 dystrophy known as peroneal muscular atrophy. He lives with his family in San Francisco,

17 California and attends a local middle school.

18

109. Because of his disabilities, V.L. has wasting and weakness in his hands, feet, and

19 legs. It is difficult for him to stand or walk for more than a few minutes. He wears an orthotic

20 brace to help him stand and walk, even in the shower. V.L. cannot sense when shower water is too

21 hot or too cold. Because of weakness in his hands, V.L. has trouble cutting and eating his food,

22 and putting on and taking off his leg braces and wrist splints. V.L. also requires help getting

23 dressed, as he cannot put on or button his clothes. V.L. also requires assistance to use the

24· bathroom.

25

110. ' V.L. is authorized to receive 44.8 hours ofIHSS services per month. His provider

26 helps him out approximately ten hours per week with such personal tasks as using the restroom,

27 bathing, getting dressed, exercising, and putting on and taking offhis leg brace and wrist splints.

28

111. V.L.' s mother was recently told by his social worker that he will be losing eligibility

20 Class Action Complaint for Injunctive and Declaratory Relief

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1 for all IHSS services because his FI Score is below 2.0.

2

112. These IHSS services are critical to enable V.L. to remain safely in his home with his

3 family and to attend a local school. V.L.' s mother is unable to assist V.L., because she also has

4 CMT and uses a wheelchair. V.L.'s father works during the day, and thus is not available to help

5 V.L. during work hours. V.L.'s need for services is so great that his older brother has temporarily

6 dropped out of college at CSU-Northridge in order to serve as V.L.'s IHSS provider until V.L's

7 regular provider returns from an extended leave of absence.

8

2. David Oster

f

9

113. David Oster is a 33-year-old man who is a qualified person with disabilities,

10 including autism and bi-polar disorder. He lives by himself in an apartment in Los Angeles

11 County.

12

114. Because of his disabilities, Mr. Oster is unable to remember to take his medications

13 (consisting of some 20 pills, including medications necessary to control his bi-polar disorder) and

14 is unable to go shopping, cook, or clean up after himself. For example, he cannot concentrate and

15 follow directions to cook a nutritionally balanced meal following the diet prescribed by his doctor,

16 and forgets to put food away before it spoils. Mr. Oster is also unable to get to medical

17 appointments himself, as he cannot drive and becomes confused if he tries to take public

18 transportation.

19

115. Before he began receiving IHSS services, Mr. Oster's apartment was in great

20 disarray. Trash, clutter, and rotten food were strewn about his apartment, which was infested with

21 cockroaches. Mr. Oster had to pick his way among makeshift pathways between the debris. All

22 the food in his refrigerator was spoiled. His clothes were dirty, and he rarely bathed. He was at risk

23 of serious health consequences from the unsanitary conditions and inadequate meals, and was also

24 in serious danger of eviction from his apartment because of the unsanitary conditions in which he

25 was living.

26

116. Mr. Oster began receiving IHSS services approximately two years ago and currently

27 receives 63.2 hours per month of IHSS services. Without these services, he would not be able to

28 live independently in the community.

I

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1

117. Mr. Oster's IHSS provider perfonns the following services: cooks meals following

2 the diet that has been medically prescribed by Mr. Oster's doctor; sets out medications and reminds

3 Mr. Oster to take them; takes Mr. Oster to doctor's appointments; reminds Mr. Oster to bathe; does

4 Mr. Oster's laundry; and cleans the apartment and changes bed linens.

5

118. Mr. Oster's social worker has told Mr. Oster that his FI Score is 1.9. Because his FI

6 Score is below 2.0, Mr. Oster will lose eligibility for all IHSS services. Although Mr. Oster has

7 functional ranks of 5 for housework, laundry, and shopping, and a functional rank of 3 for meal

8 preparation, his composite FI Score is under 2.0 because he is ranked a 1 for many other ADLs that

9 he can perfonn himself, such as eating, bowellbladder care, mobility, transfer, and respiration.

10

119. When Mr. Oster learned that his IHSS services would be cut, he was so terrified

11 about losing services that he had a nervous breakdown and had to be hospitalized for two weeks for

12 inpatient psychiatric services. Upon discharge, he then had to continue in a psychiatric outpatient

13 program for several weeks more.

14

120. Mr. Oster does not want to lose his apartment or his independence and does not

15 want to live in a group home or board and care facility where his independence and freedom would

16 be restricted. He is sure that he will not be able to maintain his independence without IHSS

17 services. Without IHSS services, Mr. Oster is at serious risk of increased psychiatric problems,

18 including hospitalization and institutionalization, because he cannot take his medications, cook his

19 medically necessary diet, or maintain sanitary conditions necessary to maintain an independent

20 apartment.

21

121. Prior to his recent conversation with his social worker, Mr. Oster had never been

22 infonned of his functional ranks or FI Score.

23

3. Willie Beatrice Sheppard

24

122. Named Plaintiff Willie Beatrice Sheppard is 81 years old and is a qualified person

25 with disabilities, including arthritis and the effects of a stroke. She lives by herself in an apartment

26 in Emeryville, California.

27

123. Ms. Sheppard uses a cane or electric wheelchair for mobility and cannot stand for

J

28 any length of time. She cannot get in and out of the bathtub without assistance. Sometimes Ms.

!

22

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Sheppard cannot use her hands or the entire right side of her body because of her stroke and cannot

2 pick up any heavy object. Ms. Sheppard is also easily fatigued.

3

124. Ms. Sheppard has been receiving IHSS services since 2003.

4

125. Ms. Sheppard's IHSS provider comes to her home twice a week to help her bathe, to

5 clean the house, and to prepare meals (in sufficient quantities that Ms. Sheppard can microwave the

6 leftovers on days that her provider is not working).

7

126. Meal preparation is essential to Ms. Sheppard's health and well being, as she does

8 not have sufficient strength in her hands, or the stamina to stand, to cook meals. Ms. Sheppard's

9 physician has advised her that she cannot eat foods that are high in sodium because of her stroke

10 risk. For that reason, Ms. Sheppard must avoid eating prepared processed foods.

11

127. Ms. Sheppard is only able to bathe two days a week, on those days when her

12 provider is there. Were it not for her provider, Ms. Sheppard would be unable to bathe at all.

13

128. Ms. Sheppard's provider performs all heavy housecleaning for her, as Ms. Sheppard

14 is unable to push around a vacuum or mop while walking with a cane, and is unable to scrub the

15 bathroom. If she attempted these tasks, she might fall and further injure herself. She has had

16 several previous falls. Because Ms. Sheppard is 81 years old, she is more susceptible to illnesses,

17 and thus a clean house is important to her health and well-being.

18

129. Because of her mobility impairments, it is very difficult for Ms. Sheppard to travel

19 outside her home. Accordingly, her provider must shop for groceries and pick up her prescription

20 medications.

21

130. Ms. Sheppard lives alone and is dependent upon IHSS services. Most of her

22 children do not live in the area, and her one daughter who does live nearby has a disabled son who

23 requires her full time attention.

24

131. Ms. Sheppard has never been informed of her FI Score or her functional ranks. She

25 is afraid that her IHSS eligibility may be eliminated or her service hours for domestic (cleaning)

26 and meal preparation will be reduced. If this happens, she will not have adequate meals or

27 sanitation, resulting in a serious risk that Ms. Sheppard's medical condition will deteriorate or she

28 will fall and injure herself and then will require placement in a nursing home. Ms. Sheppard used

23 Class Action Complaint for Injunctive and Declaratory Relief

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to work in a nursing home and knows that nursing home staff are often overworked and unable to

2 provide quality care to each resident. Thus, she wants to avoid having to be placed in a nursing

3 home.

4

4. Named Plaintiff C.R.

5

132. C.R. is a five-year-old boy and is a qualified person with a disability, specifically,

6 development disability caused by chromosome deletion. He lives with his family in Gilroy,

7 California. His mother and guardian ad litem here, Michelle Rivera, is his provider.

8

133. C.R. has a developmental disability because he is missing the chromosome known

9 as 3P25, which causes a disconnect between his brain and his body parts. C.R. has global delays

10 across all spectrums: He cannot Walk, talk, or chew food. He uses a manual wheelchair, because

11 he does not have the mental capacity to use a motor or power chair. He has to be repositioned

12 regularly, because he can only sit up for twenty minutes at a time. He also has hearing loss and

13 vision loss.

14

134. Because of his disabilities, c.R. cannot eat or drink by himself. His mother helps

15 him drink by placing a sippy cup firmly in his hands, wrapping his hands around the cup, and then

16 putting the cup to his mouth. He can then suck on the sippy cup. Because he cannot chew food, all

17 of his food must be pureed. His mother must place food into his mouth, spoonful by spoonful,

18 until he swallows it. It takes about twenty minutes to feed C.R. each meal. C.R. does not receive

19 IHSS services for eating/feeding. On information and belief, C.R. does not receive IHSS services

20 for feeding because the county has determined he is too young to receive IHSS services for

21 feeding.

22

135. C.R. wears diapers because he cannot control his bowels, but does not receive IHSS

23 services for toileting and dressing. On information and belief, C.R. does not receive IHSS services

24 for toileting or dressing because the county has determined he is too young to receive IHSS

25 services for toileting and dressing.

26

136. C.R. is authorized for 55 hours of IHSS services per month for transportation to

27 medical appointments (40 miles away), moving in and out of bed or a vehicle (a special school bus

28 that picks him up to attend preschool for children with disabilities), rubbing skin, and

f

24 Class Action Complaint for Injunctive and Declaratory Relief

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1 repositioning.

2

137. C.R's mother has been told that C.R will lose eligibility for IHSS services because

3 his FI Score is 1.97.

4

138. Although C.R only receives 52 hours ofIHSS services per month, those IHSS

5 service hours are critical. His mother works as his provider and uses the money she earns to

6 purchase C.R's special, medically necessary foods and gas to take him to his many medical

7 appointments.

8

139. C.R. needs to stay at home with his mother as his provider. In order to fully

9 maximize his potential, he needs one-on-one care on a constant basis to encourage each small step

10 of being able to control his body himself. Although doctors are unable to predict the prognosis for

11 a child with C.R's type of disability, they do know that if there is to be any hope for C.R to learn

12 to walk, talk, or chew on his own, he needs continued one-on-one care to encourage him to do

13 everything that he can learn to do.

14

140. If the only way for C.R to stay at home would be for his family to hire an outside

15 provider, rather than his mother, they would do that. However, they do not believe they will be

16 able to find anyone capable of caring for him; they looked before but were unable to find anyone.

17

CLASS DEFINITION AND ALLEGATIONS

18

141. Pursuant to Rule 23 (a) and 23(b)(2) ofthe Federal Rules of Civil Procedure,

19 Individual Named Plaintiffs V.L., David Oster, Willie Beatrice Sheppard, and C.R bring this action

20 on behalf ofthemselves and all other persons similarly situated. Plaintiffs bring this action on

21 behalf of a class consisting of "all recipients of IHSS in the State of California whose IHSS

22 services will be limited, cut, or terminated under the provisions of ABX4 4, and all applicants to

23 IHSS in the State of California who would have been eligible for IHSS services but who are either

24 not eligible, or are eligible for fewer services, as a result of ABX 44 (hereinafter the "Class")."

25

142. Plaintiffs V.L., David Oster, Willie Beatrice Sheppard, C.R, and others similarly

26 situated also plead subclasses of individuals as follows:

27

a. For the First, Second, Third, Fourth, Fifth, Sixth, Seventh, and

)

28

Eighth claims for relief: "Loss of Domestic and Related Services Subclass"

25 Class Action Complaint for Injunctive and Declaratory Relief

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1

to be defined as "all present and future IHSS recipients and applicants who

2

have been or would have been authorized to receive domestic and/or related

3

IHSS, and whose IHSS will be reduced to eliminate some or.all of their

4

domestic and/or related services under the provisions of ABX4 4." Plaintiff

5

Willie Beatrice Sheppard is typical of this subclass.

6

b. For the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and

7

]

8

9 t
10

Ninth claims for relief: "Termination of Benefits Subclass" to be defined as "all present and future IHSS recipients and applicants who have been or would have been authorized to receive IHSS~ and whose IHSS services will be terminated or denied in their entirety under the provisions of ABX4 4."

11

Plaintiffs V.L., David Oster, and C.R. are typical of this subclass.

12

c. For the Eighth claim for relief: "Children Subclass" to be defined as

13

"all present or future IHSS recipients who are under the age of21, who

14

qualify for full-scope Medi-Cal with federal financial participation, and who

15

therefore are entitled to the protections of the Early Periodic Screening

16

Diagnosis and Treatment provisions of the federal Medicaid Act, 42 U.S.C.

17

§ 1396a(a), who have been or would have been authorized to receive IHSS,

18

and whose IHSS services will be reduced or terminated under the provisions

19

of ABX4 4." Plaintiffs C.R. and V.L. are typical ofthis subclass.

20

143. Numerosity: The Plaintiff Class is so numerous that joinder of all its members is

21 impracticable. There are more than 130,000 persons in the Class. Upon information and belief the

22 "Termination of Benefits subclass" consists of approximately 36,000 individuals. Upon

23 information and belief, the "Loss of Domestic and Related Services Subclass" consists of

24 approximately 97,000 people. Upon information and belief the "Children Subclass" consists of

25 over one thousand children. Joinder of individuals in the Class and subclasses is also impracticable

26 because of the size of the subclasses, and because members of the Plaintiff Class lack the

27 knowledge and financial means to maintain individual actions and are geographically disbursed

28 throughout the state.
26
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1

144. Commonality: Common questions of law and fact preddminate over questions

2 affecting individual Class members. Questions of law and fact common to members of the Class

3 include but are not limited to whether Sections 12309 and 12309.2 violate provisions of the

4 Medicaid Act, the ADA, and Section 504, and whether the implementation of Sections 12309 and

5 12309.2 fail to meet the requirements of procedural due process established by the U.S.

6 Constitution.

7

145. Typicality: The claims of the Individual Named Plaintiffs are typical of the claims

8 of the Class as a whole and are typical of the claims of the subclasses in that the Individual Named

9 Plaintiffs and members of the Plaintiff Class currently are eligible IHSS participants and qualified

1

10 individuals with disabilities who will be affected similarly by the IHSS eligibility changes enacted

I

11 by ABX4 4 and Defendants' policies and practices. The claims arise from the same unlawful and

12 discriminatory law and policies and practices of Defendants.

13

146. Adequate representation: The Individual Named Plaintiffs will fairly represent

14 and adequately protect the interests of members of the class as a whole. The Individual Named

15 Plaintiffs do not have any interests antagonistic to those of other members of the Plaintiff Class.

16 By filing this action, the Individual Named Plaintiffs have displayed an interest in vindicating their

17 rights, as well as the claims of others who are similarly situated. The relief sought by the

18 Individual Named Plaintiffs will inure to the benefit of members of the Plaintiff Class generally.

19 Plaintiffs are represented by counsel who are experienced, skilled, and knowledgeable about civil

20 rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal

21 courts and the prosecution and management of class action litigation.

22

147. Class certification is appropriate pursuant to Federal Rules of Civil Procedure

23 23(b)(2) because Defendants have acted, refused to act, or will act on grounds generally applicable

24 to the Class, thereby making final injunctive and declaratory relief appropriate with respect to the

25 Class as a whole.

26

148. Members of the plaintiff class share a common need for IHSS services and

27 Defendants' policies and actions in limiting or terminating IHSS services, and the provisions of

28 ABX 4 4, are applicable to the entire class.
27 Class Action Complaint for Injunctive and Declaratory Relief

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1
LEGAL CLAIMS 2
149. Defendants' actions, as alleged herein, have resulted in, and will continue to result 3
in, irreparable injury to members of the Plaintiff Class for which they have no plain, speedy, or 4
adequate remedy at law. Members ofthe Plaintiff Class will suffer irreparable injury in that they 5
will be deprived of critical health-related services and subjected to imminent risk of out-of-home 6
placement, institutionalization and/or harm to their health and safety. 7
150. IHSS provider members of the organizational plaintiffs who provide IHSS services 8
for members of the Plaintiff Class will also be subject to irreparable injury, for they will lose 9
employment and hours of work for which they will be unable to recover monetary damages and 10
which will lead to harm to their health and deprivation of life necessities. Some members of these 11
organizational plaintiffs and their minor children for whom they provide services are at risk of 12
losing their children's IHSS services and will suffer irreparable injury as a result. 13
151. An actual controversy exists between Plaintiffs and Defendants in that Defendants 14
are seeking to implement reductions and terminations in IHSS services to which members of the 15
Plaintiff Class are entitled, and which, if implemented, will place members of the Plaintiff Class at 16
risk of unnecessary out-of-home placement, institutionalization and harm to their physical and 17
mental health. Further, these reductions and terminations violate the Due Process Clause of the
18
Fourteenth Amendment to the United States Constitution, the ADA, Section 504, and various 19
provisions of the Medicaid Act. Plaintiffs therefore seek a declaration as to their rights and
20
Defendants' corresponding duties with respect to the matters alleged herein. 21
152. The balance of harms favors entering an injunction because the harm suffered by
22
individuals deprived of crucial and needed IHSS outweighs any monetary loss to Defendants. 23
153. It is in the public interest that the Court grant an injunction to ensure that Plaintiffs
24
and other similarly situated individuals receive medically necessary medical benefits to which they 25
are entitled.
26
154. In taking the relevant actions, Defendants have acted under color of state law. 27
28
28 Class Action Complaint for Injunctive and Declaratory Relief

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1

FIRST CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

2

Constitutional Due Process

3

155. Plaintiffs reallege and incorporate herein by reference each and every allegation and

4 paragraph set forth previously.

5

156. Plaintiffs and members of the Plaintiff Class are entitled under federal and state law

6 to adequate notice of and opportunity for a pre-termination or pre-reduction hearing on any

7 termination or reduction in medical care and services. U.S. CONST. Amend. XIV. See Goldberg

8 v. Kelly, 397 U.S. 254 (1970).

9

157. The notice Defendants propose to send is not adequate or effective, because it does

10 not provide Plaintiffs and members of the plaintiff class with sufficient information to obtain a

11 meaningful hearing because they will be unable to determine whether their functional ranks or FI

12 Scores have been corr.ectly calculated.

13

158. The notice Defendants propose to send is not adequate or effective, because it

14 inaccurately summarizes state law with respect to recipients' right to reassessment of their need for

15 service hours. The notice tells recipients that they can only request reassessment of their need for

16 service hours if they provide medical documentation of a change in functioning that would affect

17 their functional rank, whereas state law provides for county reassessment of a recipient's need for

18 services "any time" that the recipient notifies the county of a need to adjust the supportive services

I

19 hours authorized. Cal. Welf. & Inst. Code § 12301.1(d).

20

159. The notice Defendants propose to send is not adequate or effective, because ten days

I

21 is not sufficient time for IHSS recipients, many of whom have cognitive or psychiatric disabilities,

22 to make alternate arrangements andlor appeal the decision to reduce or terminate their services.

23

160. On information and belief, Plaintiffs and Class members will be unable to obtain a

24 timely hearing if they do file an appeal.

I

25

161. Unless enjoined, Defendants will reduce or terminate IHSS services to which

26 members of the Plaintiff Class are entitled and have a property interest in maintaining, thereby

I

27 depriving class members of their right to an opportunity for fair hearing before reduction or

I

I
28 termination of benefits.

29
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1

162. These actions violate the Due Process Clause of the Fourteenth Amendment to the

2 U.S. Constitution, U.S. CONST. Amend. XIV.

3

163. Defendants' actions deprive Plaintiffs and members of the Plaintiff Class of rights,

4 privileges or immunities secured to them by the Constitution ofthe United States, in violation of 42

5 U.S.C. § 1983.

6

SECOND CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

7

Medicaid Act Right to a Fair Hearing

8

164. Plaintiffs reallege and incorporate herein by reference each and every allegation

9 and paragraph set forth previously.

10

165. Under federal Medicaid requirements, recipients and applicants for Medicaid

11 services have rights to written notice and a pre-termination fair hearing if their benefits are

12 reduced, suspended, or terminated. 42 U.S.C. § 1396a(a)(3).

13

166. This notice must contain the following:

14

(a) A statement of what action the State ... intends to take;

15

(b) The reasons for the intended action;

(c) The specific regulations that support, or the change in Federal or State law that

16

requires, the action;

(d) An explanation of-

17

(1) The individual's right to request an evidentiary hearing if one is available, or

a State agency hearing; or

18

(2) In cases of an action based on a change in law, the circumstances under

19

which a hearing will be granted; and

(e) An explanation of the circumstances under which Medicaid is continued if a hearing

20

is requested.

'

21 42 C.F.R. § 431.210.

22

167. Pursuant to the Medicaid Act, California has established procedures to provide fair

23 hearings to any Medi-Cal beneficiary whose services are denied, reduced, or terminated. Cal. Code

24 Regs. tit. 22 § 51014.1(a).

25

168. In reducing or terminating services as set forth above, Defendants have deprived

,

I
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26 Plaintiffs and members of the Plaintiff Class of their opportunity to notice and a fair pre-

I

27 termination hearing in violation of 42 U.S.C. § 1396a(a)(3).

I

(

28

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1

169. Defendants' actions deprive Plaintiffs and members of the Plaintiff Class of rights,

2 privileges or immunities secured to them by the Constitution of the United States, in violation of 42

3 U.S.C. § 1983, and are preempted by the Supremacy Clause of the United States Constitution,

4 Article IV.

5

THIRD CLAIM FOR RELIEF

(Defendants DHCS and CDSS)

6

Americans with Disabilities Act, 42 U.S.C. § 12134-35 et seq.

7

170. Plaintiffs reallege and incorporate herein by reference each and every allegation and

. 8 paragraph set forth previously.

9

171. Title II of the ADA provides that "no qualified individual with a disability shall, by

10 reason of disability, be excluded from participation in or be denied the benefits of services,

11 programs, or activities of a public entity or be subjected to discrimination by such entity." 42

12 U.S.C. § 12132.

13

172. In enacting the ADA, Congress found that "[i]ndividuals with disabilities

14 continually encounter various forms of discrimination, including ... segregation ...." 42 U.S.C.

15 § 12101(a)(5).

16

173. Regulations implementing Title II of the ADA provide: "A public entity shall

17 administer services, programs, and activities in the most integrated setting appropriate to the needs

18 of qualified individuals with disabilities." 28 C.F.R. § 35. 130(d).

19

174. Defendants DHCS and CDSS are public entities within the meaning of Title II of

20 the ADA.

21

175. Regulations implementing Title II of the ADA provide: "A public entity may not,

22 directly or through contractual or other arrangements, utilize criteria or other methods of

23 administration: (i) that have the effect of subjecting qualified individuals with disabilities to

24 discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or

25 substantially impairing accomplishment of the objectives of the entity's program with respect to

26 individuals with disabilities...." 28 C.F.R. § 35.130(b)(3).

27

176. The United States Supreme Court in Olmstead v. L.e. ex rei. Zimring, 527 U.S. 581

28 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of
31 Class Action Complaint for Injunctive and Declaratory Relief

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1 discrimination under Title II of the ADA. In doing so, the Supreme Court interpreted the ADA's

2 "integration mandate" as requiring persons with disabilities to be served in the community when:

3 (1) the state determines that community-based treatment is appropriate; (2) the individual does not

4 oppose community placement; and, (3) community placement can be reasonably accommodated.

5 Id 527 U.S. at 607.

6

177. The ADA prohibits discrimination based on type of disability.

7

178. The ADA's regulations further provide that "[a] public entity shall not impose or

8 apply eligibility criteria that screen out or tend to screen out an individual with a disability or any

9 class of individuals with disabilities from fully and equally enjoying any service, program, or

10 activity, unless such criteria can be shown to be necessary for the provision of the service,

11 program, or activity being offered." 28 C.F.R. 35. 130(b)(8).

12

179. Pursuant to the ADA, public entities are required to provide meaningful access to

13 their programs, services and activities, and provide any accommodations or modifications

14 necessary for people with disabilities to access those services.

15

180. Each Individual Named Plaintiff and member of the Plaintiff Class is a "qualified

16 individual with a disability" within the meaning of the ADA in that they (1) have physical and/or

17 mental impairments that substantially limit one or more major life activities; and meet the essential

18 eligibility requirements in that they (2) are capable of living independently in their own homes

19 and/or in the most integrated community setting possible, with assistance; and (3) meet the Medi-

20 Cal income eligibility requirements.

21

181. Defendants' actions have placed members of the Plaintiff Class at imminent risk of

22 unnecessary confinement in institutions, including nursing facilities, or other out-of home

23 placements that are not the most integrated community placements possible, in violation of the

24 ADA's integration mandate.

25

182. Defendants discriminate against Plaintiffs and Class members in ways that include,

26 but are not limited to, failing to provide reasonable modifications to programs and services.

27

183. Defendants have utilized eligibility criteria and methods of administration that

28 subject Individual Named Plaintiffs and members of the Plaintiff Class to discrimination on the

32 Class Action Complaint for Injunctive and Declaratory Relief

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1 basis of disability, in violation of28 C.F.R. § 35. 130(b)(3) &(8), and otherwise denied meaningful

2 access to their programs, services and activities.

3

184. Defendants' actions discriminate against individuals with cognitive and psychiatric

4 disabilities, based on their type of disability, because the functional rankings and FI Scores for such

5 individuals are lower than the functional rankings and FI Scores of individuals with physical

6 disabilities who have the same level of need for IHSS services, and will result in the deprivation of

7 services to individuals with mental disabilities, even if they have the same level of need as

8 individuals with physical disabilities who are not deprived of IHSS services.

9

185. Defendants' actions violate Title II of the ADA.

10

186. Pursuant to 42 U.S.C. § 12133, Plaintiffs are entitled to declaratory and injunctive

11 relief as well as reasonable attorneys' fees and costs incurred in bringing this action.

12

FOURTH CLAIM FOR RELIEF

(Defendants DHCS and CDSS)

13

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.

14

187. Plaintiffs reallege and incorporate herein by reference each and every allegation and

15 paragraph set forth previously.

16

188. Section 504 of the Rehabilitation Act of 1973, on which the ADA is modeled, sets

17 forth similar protections against discrimination by recipients of federal funds, such as Defendants

18 herein. 29 U.S.C. §§ 794-794a. These protections include the prohibition against unnecessary

19 segregation. Regulations implementing Section 504 require that a public entity administer its

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

21 qualified individuals with disabilities. 28 C.F.R. § 41.51(d).

22

189. Section 504 prohibits discrimination based on type of disability.

23

190. Section 504's regulations prohibit recipients of federal financial assistance from

24 utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting qualified

I

25 handicapped persons to discrimination on the basis of handicap [or] (ii) that have the purpose or

I ,

26 effect of defeating or substantially impairing accomplishment of the objectives of the recipient's 27 program with respect to handicapped persons. 28 C.F.R. § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4).

1

28

33 Class Action Complaint for Injunctive and Declaratory Relief

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1

191. Each Individual Named Plaintiff and member of the Plaintiff Class is a "qualified

2 individual with a disability" within the meaning of Section 504 in that they (1) have physical

3 and/or mental impairments that substantially limits one or more major life activities; and meet the

4 essential eligibility requirements in that they (2) are capable of living independently in their own

5 homes and/or in the most integrated community setting possible, with assistance; and (3) meet the

6 Medi-Cal income eligibility requirements.

7

192. Defendants' actions have placed members of the Plaintiff Class at risk of

8 unnecessary confinement in institutions, including nursing facilities, or other out-of-home

9 placements that are not the most integrated community placements possible, in violation of Section

10 504's integration mandate.

11

193. Defendants discriminate against Plaintiffs and Class members in ways that include,

12 but are not limited to, failing to provide reasonable modifications to programs and services.

13

194. Defendants have utilized eligibility criteria and methods of administration that

14 subject Plaintiffs and members of the Plaintiff Class to discrimination on the basis of disability in

15 violation of28 C.F.R. § 41.51(b)(3)(i) and 45 C.F.R. § 84.4(b)(4), and otherwise denied

16 meaningful access to their programs, services and activities.

17

195. Defendants' actions discriminate against individuals with cognitive and psychiatric

18 disabilities, based on their type of disability, because the functional rankings and FI Scores for such

19 individuals are lower than the functional rankings and FI scores of individuals with physical

20 disabilities who have the same level of need for IHSS services, and will result in the deprivation of

21 services to individuals with mental disabilities, even if they have the same level of need as

22 individuals with physical disabilities who are not deprived of IHSS services.

23

196. Defendants' actions violate Section 504.

24

FIFTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

25

Medicaid Act Comparability Requirement

26

197. Plaintiffs reallege and incorporate herein by reference each and every allegation and

27 paragraph set forth previously.

28
34 Class Action Complaint for Injunctive and Declaratory Relief

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1

198. Under federal Medicaid requirements, states must provide comparable benefits, i.e.,

2 benefits that are equal in "amount, duration and scope," to all categorically needy Medicaid

3 beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. § 440.240(a), (b)(1). Categorically

4 needy Medicaid beneficiaries are beneficiaries who, in most cases, receive cash public assistance to

5 meet basic needs.

6

199. The Medicaid Act also requires states to provide comparable benefits to all

7 medically needy Medicaid beneficiaries. 42 U.S.C. § 1396a (a)(lO)(B)(ii); 42 C.F.R. §§ 440.240

8 (b)(I). Medically needy Medicaid beneficiaries are beneficiaries who do not receive cash public

9 assistance because they have income or resources in excess of the requirements for receipt of such

10 assistance, but who nevertheless meet categorical requirements for such assistance, e.g., they are

11 over age 65, blind, or disabled.

12

200. States may provide benefits to the medically needy that are less in amount, duration

13 and scope than benefits to the categorically needy, but California has not elected to do so.

14

201. Therefore (with certain exceptions for some groups not relevant here), California

15 must provide benefits under its Medicaid program that are equal in amount, duration and scope to

16 all eligible beneficiaries. The only permissible basis for distinguishing among such beneficiaries is

17 differing levels of need.

18

202. Pursuant to ABX4 4, Defendants will provide IHSS services to some Medicaid

19 recipients, while denying the same services to other IHSS recipients who have comparable needs,

20 based on an PI Score that is not a rational measure of need.

21

203. Pursuant to ABX4 4, Defendants will provide domestic and related IHSS services to

22 some Medicaid recipients, while denying the same services to other IHSS recipients who have

23 comparable needs, based on a functional rank that is not a rational measure of need.

24

204. Therefore, ABX4 4 violates Medicaid's comparability requirement, 42 U.S.C. §

25 1396a(a)(10)(B)(i).

26

205. Defendants' actions deprive Plaintiffs and members of the Plaintiff Class of rights,

27 privileges or immunities secured to them by the Constitution of the United States, in violation of 42

28 U.S.C. § 1983, and are preempted by the Supremacy Clause of the U.S. CONST., art. IV.

35 Class Action Complaint for Injunctive and Declaratory Relief

~ j

o

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j

J
I
i
~

1

SIXTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

2

Medicaid Act Sufficiency Requirement:

Loss of Domestic and Related Services Subclass Only

3 206. Plaintiffs reallege and incorporate herein by reference each and every allegation and

!

4

~
1

paragraph set forth previously.

.~

5 207. Under federal Medicaid requirements, states must provide "sufficient" benefits.

•

6

That is, "[e]ach service must be sufficient in amount, duration, and scope to reasonably achieve its

7 purpose." 42 C.F.R. § 440.230(b).

8 208. By terminating or reducing IHSS domestic and related services to individuals for

9 whom such services have been deemed necessary pursuant to an individual service plan approved

10 by the state, ABX4 4 will result in insufficient services to fulfill the purpose of the IHSS benefit.

11 209. ABX44 is inconsistent with the federal law and preempted by the Supremacy

12 Clause of the U.S. CONST., art. IV.

13

14

SEVENTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

15

Medicaid Reasonable Standards Requirement

16

210. Plaintiffs reallege and incorporate herein by reference each and every allegation and

17 paragraph set forth previously.

18

211. Federal Medicaid law requires participating states to establish reasonable standards,

19 consistent with the objectives of the Medicaid Act, for determining the extent of covered services.

20 See 42 U.S.C. § 1396a(a)(17).

21

212. Pursuant to ABX4 4, Defendants will cover IHSS services for some Medicaid

22 recipients, while denying the same services to other IHSS recipients who have comparable needs,

23 and will utilize FI Scores and/or functional ranks that do not provide a fair or reasonable measure

24 of need for services,

25

213. ABX44 is inconsistent and in conflict with the reasonable standards requirements

26 of the federal Medicaid Act, 42 U.S.c. §1396a(a)(l7), and interpretive federal guidelines, and is

27 thus preempted by the Supremacy Clause ofthe United States Constitution, art. IV. 28

36 Class Action Complaint for Injunctive and Declaratory Relief

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1

EIGHTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

2

Medicaid Act, Early and Periodic Screening, Diagnostic and Treatment

(EPSDT) Services, 42 U.S.C. § 1396 et seq: Child Subclass Only

3 214. Plaintiffs reallege and incorporate herein by reference each and every allegation and

4 paragraph set forth previously.

5 215. Early and Periodic Screening, Diagnostic and Treatment ("EPSDT") for children

6
and youth under age 21 is a mandatory Medicaid service. See 42 U.S.C. §§ 1396a(a)(1O)(A),

7 1396a(a)(43), 1396d(a)(4)(B), 1396d(r).

8 216. Thousands ofIHSS recipients in California are under the age of21 and are protected

9 by the EPSDT mandate, which requires the State to provide them with the services that are

10 medically necessary to ameliorate their conditions.

11 217. Under EPSDT, States must provide or arrange for periodic medical screens that

12 include a comprehensive health and developmental/mental health history and assessment,

13 unclothed physical examination, immunizations, laboratory testing, and health education. 42

14 U.S.C. §§ 1396a(a)(43), 1396d(r)(I).

15 218. States must provide for "arranging for (directly or through referral to appropriate

16 agencies, organizations or individuals) corrective treatment the need for which is disclosed by" a

17 periodic or inter-periodic screen. 42 U.S.c. § 1396a(a)(43)(C).

18 219. EPSDT treatment must include vision, dental and hearing services and "other

19 necessary health care, diagnostic services, treatment, and other measures described in subsection

20 (a) of this section [42 U.S.c. § 1396d(a)] to correct or ameliorate defects and physical and mental

21 illnesses and conditions discovered by the screening services whether or not such services are

22
covered under the State plan." 42 U.S.C. § 1396d(r)(5).

23 220. Under EPSDT, States must inform all Medi-Cal eligible persons in the State who

24 are under age 21 of the availability of early and periodic screening "and treatment services as

25 described in section 1396d(r)...." 42 U.S.C. § 1396a(a)(43)(A).

26 221. For each child under age 21 who has been approved for IHSS services through the

27 Medi-Cal Personal Care Services program, the State has previously made an individualized

28 determination that the current level of personal care services are necessary to ameliorate the child's

37

Class Action Complaint for Injunctive and Declaratory Relief

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1 condition. The reductions and tenninations required by ABX4 4 have not been made on the basis

2 of an individualized detennination that these services are no longer necessary, but for purely 3 budgetary reasons.

I

4

222. On infonnation and belief, Defendants intend to subject children under the age of21

5 receiving personal care services from non-legally responsible relatives to the same reductions and

6 tenninations as adults, in violation of the EPSDT mandates and the requirements of federal

7 Medicaid law.

8

223. EPSDT includes a notice and infonning mandate. State EPSDT programs are

9 required to effectively infonn individuals of the screening and treatment services available under

10 the program. 42 U.S.C. § 1396a(a)(43)(A); 42 C.F.R. §441.56(a). Under this infonning mandate,

11 Defendants must infonn all children of the full range ofEPSDT services, including personal care

12 services, that are available to them when needed to correct or ameliorate their physical and/or

13 mental conditions.

14

224. On infonnation and belief, Defendants do not intend to infonn children receiving

15 personal care services from a legally-responsible parent provider through the IHSS Plus waiver of

16 the availability of uninterrupted personal care services from a non-parent provider through the

17 EPSDT program.

18

225. Defendants' actions, as described above, fail to provide for Medi-Cal-eligible

19 children to obtain coverage of personal care services as required by the EPSDT provisions of the 20 Medicaid Act. 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43)(A), (C), 1396d(a)(4)(B), 1396d(r)(5),

21 enforceable by Plaintiffs pursuant to 42 U.S.C. § 1983.

22

NINTH CLAIM FOR RELIEF

(Defendants Director Wagner and Director Maxwell-Jolly)

23

Medicaid: ARRA: Termination of Benefits Subclass Only

24

226. Plaintiffs reallege and incorporate herein by reference each and every allegation and

25 paragraph set forth previously.

26

227. In 2009, Congress passed the ARRA or Stimulus Act, Pub. Law No. 111-5 (2009),

27 which included a temporary increase in the Federal Medical Assistance Percentages, which is the

28
38 Class Action Complaint for Injunctive and Declaratory Relief

o

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1 level of federal financial participation in state Medicaid programs. See Title V of ARRA, §§5000,

2 et seq.

3

228. This increased federal matching assistance is meant to "protect and maintain State

4 Medicaid programs during a period of economic downturn, including by helping avert cuts to

5 provider payment rates and benefits or services, and to prevent constrictions of income eligibility

6 requirements for such programs...." ARRA, § 5000, Pub. L. No. 111-5 (2009).

7

229. States are ineligible for the ARRA's increased federal match if eligibility standards,

8 methodologies, or procedures under their Medicaid state plan (including any waivers) are more

9 restrictive than the eligibility standards, methodologies, or procedures under such plan (or waiver)

10 as in effect on July 1,2008. ARRA § 5000(f)(1).

11

230. The State of California has received increased federal matching assistance funds and

12 plans to continue to receive such funds.

13

231. By making ineligible for IHSS individuals with FI Scores of less than 2.0, ABX4 4

14 will result in eligibility standards, methodologies, or procedures under the California Medicaid plan

15 and/or waivers that are more restrictive than the eligibility standards, methodologies, or procedures

16 that were in effect on July 1, 2008.

17

232. ABX 4 therefore violates the ARRA, and is preempted by the Supremacy Clause of

18 the U.S. CONST., art. IV.

19

REQUEST FOR RELIEF

20

WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies on

21 behalf of themselves and all others similarly situated:

22

a) Assume jurisdiction over this action and maintain continuing jurisdiction until

23 Defendants are in full compliance with every order of this Court;

24

b) Certify this action as a class action and appoint the individual named Plaintiffs as

25 Class representatives;

26

c) Declare that ABX4 4 and Defendants DHCS and CDSS' policies, practices, acts and

27 omissions as set forth above violate the American with Disabilities Act and Section 504 ofthe

28 Rehabilitation Act;

39 Class Action Complaint for Injunctive and Declaratory Relief

1

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1

d) Declare that ABX4 4 and Defendant Wagner and Maxwell-Jolly's policies,

2 practices, acts and omissions as set forth above violate the Medicaid Act (comparability,

3 sufficiency, reasonable fair hearing, EPSDT, and ARRA provisions), the Due Process Clause of the

4 United States Constitution, and 42 U.S.C. § 1983, and are preempted by the Supremacy Clause.

5

e) Grant a temporary restraining order, preliminary and permanent injunction enjoining

6 Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert

7 or participation with them from implementing the provisions of ABX4 4 that amended Sections

8 12309(e) and 12309.2 of the Welfare and Institutions Code to make ineligible for IHSS services

9 recipients with FI Scores ofless than 2.0 and to make ineligible for, domestic and related services

10 individuals with functional ranks of less than 4 for those services.

11

f) Award the Plaintiffs the costs of this action and reasonable attorneys' fees pursuant

12 to 20 U.S.C. § 794a; 42 U.S.C. §§ 1988, 12133, 12205; and as otherwise may be allowed by law.

13 All such other and further relief as the Court deems to be just and equitable.

14 Dated: October 1, 2009
15

Respectfully Submitted,

16

17

By: f'lo~An.rltL fWccL /~ b:!j f€m1!:6"'1

18

MELINDA BIRD (SBN 102236)

MARILYN HOLLE (SBN 61530)

19

DEBORAH DORFMAN (CRLSA No. 801060)

DISABILITY RIGHTS CALIFORNIA

20

LOS ANGELES REGIONAL OFFICE

3580 Wilshire Blvd., Ste. 902

21

Los Angeles, CA 90010

Telephone: (213) 427-8747

22

Facsimile: (213) 427-8767

Melinda. bird@disabilityrightsca.org

23

Debbie. dorfman@disabilityrightsca.org

marilyn@disabilityrightsca.org

24

SUJATHA JAGADEESH BRANCH (SBN 166259)

25

DISABILITY RIGHTS CALIFORNIA

SACRAMENTO REGIONAL OFFICE

26

100 Howe Street, Suite 235 N

Sacramento, CA 95825

27

Telephone: (916) 488-9950

Facsimile: (916) 488-9960

28

Sujatha. branch@disabilityrightsca.org

40 Class Action Complaint for Injunctive and Declaratory Relief

\
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I
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

0

o

PAULA PEARLMAN (SBN 109038) SHAWNA PARKS (SBN 208301) DISABILITY RIGHTS LEGAL CENTER 919 Albany Street Los Angeles, CA 90015 Telephone: (213) 736-1031 Facsimile: (213) 736-1428 Paula.pearlman@lls.edu Shawna.parks@lls.edu
CHARLES WOLFINGER (SBN 63467) LAW OFFICE OF CHARLES WOFLINGER 4655 Cass Street # 314 San Diego, CA 92109 Telephone: (858) 272-8115 Facsimile: (858) 270-3960 Cw@charleswolfinger.com
JANE PERKINS (SBN 104784) NATIONAL HEALTH LAW PROGRAM 211 N. Columbia Street Chapel Hill, NC 27514 Telephone: (919) 968-6308 Facsimile: (919) 968-8855 perkins@healthlaw.org
ANNA RICH (SBN 230195) NATIONAL SENIOR CITIZEN LAW CENTER 1330 Broadway, Suite 525 Oakland, CA 94612 Telephone: (510) 663-1055 Facsimile: (510) 663-1051
Attorneys/or Individual Named Plaintiffs VL., David Oster, Willie Beatrice Sheppard, C.R., and the Plaintiff Class
41 Class Action Complaint for Injunctive and Declaratory Relief

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1

2

By:

3

STEPHEN P. BERZON (SBN 4,,-~~

4

EVE H. CERVANTEZ (SBN 164709)

STACEY M. LEYTON (SBN 203827)

5

PEDER J. THOREEN (SBN 217081)

Altshuler Berzon LLP

6

177 Post Street, Suite 300

San Francisco, California 94108

7

Telephone: (415) 421-7151

Facsimile: (415) 362-8064

8

sberzon@altshulerberzon.com

ecervantez@altshulerberzon.com

9

sleyton@altshulerberzon.com

pthoreen@altshulerberzon.com

10

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW,

11

SEIU Local 521, SEIU California State Council,

UDW, andCUHW

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
42
Class Action Complaint for Injunctive and Declaratory Relief

 
 Case4:09-cv-04668-CW Document248 Filed11/25/09 Page1 of 15

United States District Court For the Northern District of California

1

2

3

IN THE UNITED STATES DISTRICT COURT

4

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 V.L., et al.,

8

Plaintiffs,

9

v.

10

JOHN A. WAGNER, Director of the California Department of Social

11

Services; DAVID MAXWELL-JOLLY, Director of the California Department

12

of Health Care Services; CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES;

13

CALIFORNIA DEPARTMENT OF SOCIAL SERVICES,

14

Defendants.

15

/

No. C 09-04668 CW
ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS AND ENFORCING INJUNCTION

16

On October 19, 2009, the Court enjoined and restrained

17 Defendants “from implementing the provisions of ABX4 4 that amended

18 Sections 12309(e) and 12309.2 of the California Welfare and

19 Institutions Code to terminate from eligibility for [In-Home

20 Supportive Services] those recipients with Functional Index (FI)

21 Scores of less than 2.0 and to eliminate domestic and related

22 services for recipients with functional ranks of less than 4 for

23 those services.” On October 23, 2009, the Court explained the

24 reasons for the injunction and delineated the terms of the

25 injunction in more detail. In this motion, Plaintiffs assert that

26 Defendants violated the injunction by: (1) terminating or reducing

27 services for almost 3,000 individuals with FI Scores under 2.0 or

28

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page2 of 15

United States District Court For the Northern District of California

1 functional ranks under 4; (2) failing to take all steps and commit

2 all resources necessary to ensure that none of these otherwise

3 eligible individuals would be denied eligibility for, or terminated

4 from, receipt of IHSS services or domestic and related IHSS

5 services; (3) failing to notify providers who were incorrectly

6 notified that their recipients’ IHSS hours had been terminated or

7 reduced that they should continue to work previously-authorized

8 hours; and (4) failing to serve and file a declaration of

9 compliance demonstrating actual compliance with the Court’s

10 Preliminary Injunction by Thursday, October 29, 2009. Defendants

11 assert that they “are, and at all times have been, in compliance

12 with the preliminary injunction.” Opposition at 1. The motion was

13 heard on November 19, 2009. Having considered oral argument and

14 all of the papers filed by the parties, the Court finds clear and

15 convincing evidence that Defendants are in violation of its orders.

16 The Court enters further orders and coercive sanctions to remedy

17 the non-compliance and compel prospective compliance.

18

BACKGROUND

19

The Court issued its initial injunction, quoted above, on

20 October 19, 2009. Thereafter, in the course of briefing the

21 details of the further injunction that would issue, Plaintiffs

22 warned that, unless corrective measures were taken, time-cards

23 would be sent between November 6 and 10, 2009 that would

24 incorrectly inform providers that their clients’ eligibility for

25 services would be terminated or reduced. This would lead the

26 providers to fail to perform needed services for recipients. For

27 instance, on October 20, 2009, a declaration submitted by

28 Plaintiffs stated,

2

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page3 of 15

United States District Court For the Northern District of California

1

Although the IHSS terminations and reductions are scheduled

to go into effect on November 1, 2009, the provider

2

timesheets that show consumers’ post-November 1 authorized

hours will not be sent until sometime around November 6-10,

3

2009. So long as the changes are made before then,

consumers’ IHSS services should continue uninterrupted, and

4

confusion among providers should be avoided.

5 Nicco Decl. in Support of Plaintiffs’ Additional Response Re:

6 Implementation Issues at ¶ 5. Further, on October 22, Plaintiffs

7 noted:

8

There appears to be a very real chance here that some

providers will receive erroneous timesheets or paychecks,

9

and, believing that they have been fired or had hours

reduced by operation of state law, fail to provide necessary

10

IHSS services to a recipient. The only way to mitigate the

potential for errors is to send notices directly to

11

providers, so that they keep working and rendering IHSS

services even if Defendants send them an erroneous timesheet

12

or paycheck.

13 Plaintiffs’ Supplemental Response Re: Implementation Issues at 1.

14 Despite these warnings, Defendants resisted sending notices to

15 providers. The Court did not order the notices, relying on

16 Defendants to obey its order not to terminate the recipients’

17 services.

18

On October 23, 2009, the Court further detailed the terms of

19 the injunction as follows:

20

. . . to the extent that Defendants have already taken

actions to eliminate eligibility for IHSS services for

21

individuals with an FI Score under 2, or to eliminate

eligibility for domestic and related services for

22

individuals with functional ranks under 4, Defendants

shall take all steps and commit all resources necessary to

23

ensure that no otherwise eligible individual is denied

eligibility for, or terminated from, IHSS, solely on the

24

basis of an FI Score under 2.0, and that no otherwise

eligible individual is denied eligibility for, or

25

terminated from, receipt of domestic and related IHSS

services, solely on the basis of a functional rank under

26

4. Defendants shall further ensure that there is no delay

in paying IHSS providers for services rendered to

27

individuals whom Defendants had planned to terminate or

reduce IHSS eligibility on the basis of an FI score under

28

2.0 or a functional rank under 4. Defendants shall

3

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page4 of 15

United States District Court For the Northern District of California

1

determine the method of implementing the preliminary

injunction that will be the least expensive in the

2

aggregate to the county and state taxpayers. Defendants

may require the counties to re-enter manually the

3

information about individual recipients whose IHSS

services were scheduled to be terminated or reduced

4

because their FI Scores were below 2.0 or their functional

ranks for a particular domestic or related service were

5

below 4 only if that is less expensive than doing it

themselves. The State must reimburse the counties for

6

their expenses. The State may instead restore the system

back-up and re-enter the changes made in the interim.

7

To ensure that all relevant parties are aware of the

Court’s injunction, Defendants shall further rescind any

8

directions or notices issued to any person or entity for

the termination or reduction of IHSS benefits on the basis

9

of an FI Score under 2 or functional ranks under 4; and

shall notify all persons and entities that have received

10

such directions or notices that such IHSS benefits will

not be terminated or reduced. Defendants shall mail a

11

notice to all IHSS recipients informing them, in language

agreed upon by the parties, that the previously announced

12

terminations or reductions in IHSS service will not go

into effect. Defendants must mail this notice by Tuesday,

13

October 27.

Defendants shall post a copy of this preliminary

14

injunction with an explanation of its effect on IHSS

services conspicuously on its website by the close of

15

business on Monday, October 26, 2009. Defendants shall

serve and file a declaration of compliance by Thursday,

16

October 29, 2009.

17

After the injunction issued, Plaintiffs contacted Defendants

18 to discuss the timely implementation of the Court’s order. On

19 October 26, Plaintiffs asked Defendants’ counsel how Defendants

20 planned to track counties’ work to make sure it was completed

21 before new and possibly incorrect time cards were issued to

22 providers. Cervantez Decl. ¶ 3. Defendants responded by assuring

23 Plaintiffs that the records would be updated by November 1 or soon

24 thereafter, and that there would be no disruption in services. Id.

25 at ¶ 5. On October 29, Plaintiffs sent an email to Defendants

26 following up on these issues:

27

A concern has been raised that, if data entry is not

completed in time, or there are errors in the data entry,

28

providers may receive incorrect timesheets with their

4

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page5 of 15

United States District Court For the Northern District of California

1

paycheck for the October 16-31 pay period. Please verify

when the first of these time sheets will be sent out, and

2

let us know what your clients’ plans are for dealing with

providers who receive incorrect time sheet (i.e. listing

3

zero hours or reduced hours for the period November 1-

15). If these time sheets are not corrected, some

4

providers may incorrectly believe they have been

terminated or had authorized hours reduced, and not work

5

the full complement of hours needed by the consumers.

6 Id., Exh. A.

7

The same day, Defendants filed a “Certificate of Compliance”

8 that stated: (1) on October 22, Defendants ordered the counties to

9 reenter manually the information about individual recipients whose

10 IHSS services were scheduled to be terminated or reduced; (2) as of

11 noon on October 28, the counties had restored 67,738 records,

12 leaving 50,048 files still to be restored; (3) “Defendants have

13 asked the counties to take all steps necessary to ensure that all

14 117,786 Impacted Recipients’ files will be updated before November

15 1, 2009, and the counties appear to be on pace to do so . . .

16 Defendants have determined that having the counties enter this

17 information is the only option available to make all of the

18 necessary changes before November 1, 2009 (or as soon thereafter as

19 possible in the event that the counties cannot complete the changes

20 before that date)”; and (4) “Defendants will file a supplemental

21 certification of compliance after all Impacted Recipients’ files

22 have been updated.”

23

On October 30, Defendants responded Plaintiffs’ October 29

24 email by noting that they did not know of any problems with

25 implementing the injunction, but they did not address the specific

26 concerns raised in the email about provider time-cards. Plaintiffs

27 sent similar emails to Defendants on November 2, 3, 4 and 6.

28 Defendants responded to these emails by reporting the updated

5

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page6 of 15

United States District Court For the Northern District of California

1 number of IHSS recipients restored, but they failed to address the

2 time-card issue.

3

Nonetheless, and despite the warnings and pleas from

4 Plaintiffs’ counsel, between November 6 and 10, Defendants

5 proceeded to mail out the incorrect time-cards to the 6,000

6 providers of service1 to almost 3,000 IHSS recipients, as

7 Plaintiffs predicted they would. These inaccurate time-cards list

8 the hours the providers are authorized to work for the period from

9 November 1 to 15. Because the records for these recipients have

10 not been restored, these providers’ time-cards show zero hours if

11 the providers’ recipients were slated for termination, or show a

12 reduced number of authorized hours for domestic or related

13 services.

14

For instance, on November 6, 2009, along with a time-card,

15 Defendants issued a direct deposit notice to one such provider for

16 her services between October 16 and October 31, which stated

17 “RECORDS INDICATE THAT YOUR ELIGIBILITY ENDED 10/31/2009.” Julie

18 Belzman Decl., Exh. A (upper case in original). This meant that,

19 after October 31, this provider would believe that she was not

20 eligible to be paid for her services to her assigned IHSS

21 recipient.

22

As of November 9, the date Plaintiffs filed this motion,

23 Defendants reported that (1) the counties had not updated the files

24 for 2,829 IHSS recipients, (2) they had not identified which

25 counties had not updated all of their files and (3) they

26

27

1At a hearing on November 20, 2009, Defendants represented

that over 6,000 providers supply services for these approximately 28 3,000 recipients. Many recipients have more than one provider.

6

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page7 of 15

United States District Court For the Northern District of California

1 anticipated that most files would be updated by November 15, but

2 did not have a specific estimated date for completion. Bird Decl.

3 ¶ 4.

4

Defendants have not since notified the 6,000 providers for

5 these 3,000 IHSS recipients that their time-cards erroneously state

6 that the recipients are eligible for no services, or for reduced

7 services. Plaintiffs fear that, as a result, providers will likely

8 cease or reduce services to those recipients. Plaintiffs also

9 assert that providers will likely receive incorrect paychecks, in

10 violation of the injunction, if recipients’ files are not updated

11 by the time that paychecks are issued or if providers fail to claim

12 the hours that they actually worked but believe were not authorized

13 to work.

14

On November 19, 2009, the day of the hearing on this motion,

15 Defendants filed a supplemental certificate of compliance, which

16 stated that, as of that day, the counties had completed the updates

17 to the files of 116,901 of the 117,828 impacted IHSS recipients,

18 leaving 927 files left to be updated.

19

LEGAL STANDARD

20

A district court has the inherent authority to enforce

21 compliance with its orders through a civil contempt proceeding.

22 International Union, UMWA v. Bagwell, 512 U.S. 821, 827-28 (1994).

23 A contempt sanction is considered civil if it “is remedial, and for

24 the benefit of the complainant.” Id. A contempt fine is

25 considered civil and remedial if it either “coerce[s] the defendant

26 into compliance with the court's order, [or] . . . compensate[s]

27 the complainant for losses sustained.” United States v. United

28 Mine Workers, 330 U.S. 258, 303-304 (1947).

7

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page8 of 15

United States District Court For the Northern District of California

1

If a person disobeys a specific and definite court order, he

2 or she may properly be held in contempt. In re Crystal Palace

3 Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir. 1987). A party

4 disobeys a court order when it “fails to take all the reasonable

5 steps within [its] power to insure compliance with the [court's]

6 order.” Id. (citation omitted).

7

In deciding whether to impose a civil contempt sanction, a

8 district court should consider the following factors: the harm

9 from non-compliance; the probable effectiveness of the sanction;

10 the contemnor’s financial resources and the burden the sanctions

11 may impose; and the contemnor’s willfulness in disregarding the

12 court's order. United Mine Workers, 330 U.S. at 303-304.

13

The moving party must demonstrate by clear and convincing

14 evidence that the contemnor violated the court's order. In Re

15 Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693,

16 695 (9th Cir. 1993) (citing Vertex Distrib., Inc. v. Falcon Foam

17 Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982)); Balla v. Idaho

18 State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989). The

19 burden then shifts to the respondents to demonstrate that they have

20 performed “‘all reasonable steps within their power to insure

21 compliance’ with the court’s orders.” Stone v. City and County of

22 San Francisco, 968 F.2d 850, 856 (9th Cir. 1992), cert. denied, 506

23 U.S. 1081 (1993) (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396,

24 404 (9th Cir. 1976)). A party may escape contempt by demonstrating

25 that he or she is unable to comply with the court’s order. In re

26 Crystal Palace, 817 F.2d at 1365. In order to prevail on this

27 defense, the alleged contemnor must submit evidence to support it.

28 Combs v. Ryan’s Coal Co., Inc., 785 F.2d 970, 984 (11th Cir. 1986)

8

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page9 of 15

United States District Court For the Northern District of California

1 (contemnor’s financial statements were inadequate because they were

2 incomplete, unverified, not based on independent audits, and not

3 accompanied by current tax returns).

4

DISCUSSION

5

Defendants argue that they are not in violation of the

6 injunction because the Court did “not set any specific deadline at

7 all” for the restoration of IHSS recipients’ records. Opp. At 6.

8 The Court ordered Defendants to file a certificate of compliance on

9 October 29, 2009. Furthermore, the Court ordered Defendants to

10 “take all steps and commit all resources necessary to ensure that

11 no otherwise eligible individual is denied eligibility for or

12 terminated from IHSS on the basis of FI Score or functional rank,”

13 and to “ensure that there is no delay in paying IHSS providers for

14 services rendered to individuals” who would have been affected by

15 ABX4 4. Oct. 23 Preliminary Injunction at 30.

16

Defendants have failed to ensure that no IHSS recipients were

17 denied eligibility for services based on their functional ranks or

18 FI Scores. As of November 9, 2009, almost 3,000 recipients were

19 recorded as ineligible for some or all services.

20

In a number of instances, the counties’ records showed that

21 they had completed the process of restoring eligibility in the

22 recipients’ files, but the State’s data told Defendants otherwise.

23 For instance, Defendants note that they “received a live update

24 from Riverside County on November 10th that they had completed all

25 of their data entry.” Romero Decl. ¶ 4. However, as of November

26 12, the State’s records reflected that Riverside County had not

27 restored the records for forty-four terminated recipients and

28 sixty-two recipients scheduled to lose domestic and related

9

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page10 of 15

United States District Court For the Northern District of California

1 services. Id., Exh. C. Despite this discrepancy, Defendants

2 failed to contact the county and address the issue.

3

Similarly, in San Francisco, the county believed it had

4 restored the records of all of its IHSS recipients by October 30.

5 Nicco Decl. ¶¶ 2, 6-7. Yet, the State’s records on November 12

6 showed that San Francisco had failed to restore data for 118

7 recipients. Romero Decl., Exh. C. No State official notified San

8 Francisco of this discrepancy, which it learned of from Plaintiffs’

9 counsel.

10

There may be other counties that are similarly misled into

11 believing that the files of all of their IHSS recipients have been

12 updated. Such discrepancies in the data have serious consequences

13 for IHSS recipients. Until their records are properly updated,

14 these elderly and disabled individuals will appear to be ineligible

15 for IHSS services. Because Defendants are not taking adequate

16 steps to comply, the Court must intervene to ensure that IHSS

17 services for these recipients will not be terminated in violation

18 of the Court’s injunction.

19

Further, Defendants were specifically and repeatedly warned,

20 and thus they knew that, unless they took some affirmative action,

21 incorrect time-cards would be issued, erroneously telling providers

22 that their hours for November 1 through 15 would be reduced or

23 eliminated. Nonetheless, Defendants failed to take the “necessary”

24 steps to “ensure” that these erroneous time-cards would not be

25 mailed.

26

The only way providers know how many hours they are authorized

27 to work for a particular IHSS recipient during a given time period

28 is by checking how many hours are listed on the time-card that the

10

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page11 of 15

United States District Court For the Northern District of California

1 State sends. Providers “pay close attention to the authorized

2 hours shown on the time-cards they receive from the State” and are

3 likely to believe that only the hours listed on those cards are

4 authorized and to work only those hours. McDevitt Dec. ¶¶ 3-9, 13.

5

Defendants claim that a provider “confused by an incorrect

6 time card could clear up any confusion simply by speaking with

7 his/her recipient employer, by contacting the county, or by

8 contacting the provider union.” Opp. At 8. However, many IHSS

9 recipients are frail and disoriented elders or individuals with

10 cognitive or mental impairments who may not be able to communicate

11 effectively with their providers. Further, providers will be

12 receiving these time-cards after recipients have received notice of

13 the Court’s injunction. Thus, providers and recipients will likely

14 be confused into thinking that the hours have been eliminated or

15 reduced for some reason other than ABX4 4. McDevitt Dec. ¶¶ 14,

16 17-18. Moreover, there is no assurance that counties or the unions

17 will be able to address these concerns adequately.

18

Defendants have also failed to obey the Court’s order that

19 they “rescind any directions or notices issued to any person or

20 entity for the termination or reduction of IHSS benefits on the

21 basis of an FI Score under 2 or functional ranks under 4; and shall

22 notify all persons and entities that have received such directions

23 or notices that such IHSS benefits will not be terminated or

24 reduced.” Oct. 23 Preliminary Injunction at 30-31. As noted

25 above, Defendants sent incorrect time-cards declaring reduced or

26 eliminated authorized hours to over 6,000 IHSS providers for almost

27 3,000 recipients. These time-cards constituted “notices issued to

28 any person or entity” for the termination or reduction of IHSS

11

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page12 of 15

United States District Court For the Northern District of California

1 benefits as described in the Court’s injunction. The injunction

2 required that Defendants rescind any such notices and notify such

3 persons and entities that “such IHSS benefits will not be

4 terminated or reduced.” Defendants did not do so. Thus,

5 Defendants violated the notice provision of the injunction by

6 failing to rescind and send out notices correcting their

7 contumacious mailing of these incorrect time-cards.

8

For these reasons, the Court finds clear and convincing

9 evidence that Defendants are in contempt of Court for violating its

10 preliminary injunctions issued on October 19 and 23. However, the

11 Court declines to adopt Plaintiffs’ recommendation to sanction

12 Defendants $250,000 for every day that they continue to be in

13 violation of the injunction. Although Defendants’ actions are

14 reprehensible, in consideration of the current budget crisis,

15 fining the State in this manner and at this time is not warranted.

16

At the November 19 hearing, the Court ordered the following to

17 enforce its injunction and to remedy Defendants’ contempt of Court:

18

(1) By November 20, Defendants shall have sent to Plaintiffs

19 and the appropriate counties the names and any other identifying

20 information of all recipients whose records have not yet been

21 restored, instructed counties to ensure that all such recipients

22 have had their records restored, and instructed counties that any

23 time-card submitted that generates an error message because either

24 no hours or fewer hours are authorized than those claimed by the

25 provider must be double-checked against the list of recipients and

26 providers affected by the Court’s injunction, and data corrected in

27 the files as necessary.

28

(2) By November 20, Defendants shall have begun calling each

12

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page13 of 15

United States District Court For the Northern District of California

1 county to confer in real time about their progress in updating the

2 files;

3

(3) By November 20, Defendants shall have provided Plaintiffs'

4 counsel with immediate discovery of the names and contact

5 information of all 3,000 recipients whose records had not been

6 restored by November 5, 2009 and the names and contact information

7 of their 6,000 providers who will receive misleading time-cards.2

8 These are members of the class that Plaintiffs and their attorneys

9 seek to represent. This information may be used only by

10 (1) Plaintiffs’ counsel to respond to inquiries from IHSS

11 recipients in order to assure them that their IHSS services have

12 not been eliminated or reduced and (2) Plaintiff unions to contact

13 union-member IHSS providers and field inquiries from any providers

14 to assure them that their authorized hours to provide IHSS services

15 have not been eliminated or reduced.

16

(4) By November 23, at the State’s expense, Plaintiffs’

17 counsel shall have sent all 6,000 providers who received incorrect

18 time-cards a supplemental time-card and a notice, informing

19 providers that these time-cards were erroneous, that providers

20 should continue to work and will be paid for the previously

21 authorized hours, that providers should submit a supplemental time-

22 card for any hours worked but not recorded on a previously

23 submitted time card or worked in a later pay period to make up for

24 hours not worked due to the incorrect time cards, and how providers

25 can request a supplemental paycheck. These notices shall contain

26 2On November 20, 23 and 24, Defendants admitted that they had
27 not provided this discovery and asked the Court to reconsider and to stay its order. The Court orally denied the motions for
28 reconsideration and to stay.

13

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page14 of 15

United States District Court For the Northern District of California

1 substantially the same language as that set forth in the Appendix

2 to the proposed order submitted by Plaintiffs attached to their

3 reply brief. The notices shall be in English, Spanish, Chinese,

4 Hmong, Armenian, Russian and Vietnamese. The Court authorized

5 Plaintiffs’ counsel to arrange for the mailing of this notice

6 because Defendants professed to be unable to do so in less than a

7 week’s time, which would have delayed notification past the

8 Thanksgiving holiday. On November 25, Defendants shall send a copy

9 of this notice and a copy of a blank supplemental time-card to all

10 counties along with an agreed-upon explanation of the procedures

11 they must follow.

12

(5) By November 23, Defendants shall have established a toll-

13 free telephone number staffed by State employees to answer

14 questions or concerns about recipients’ and providers’ eligibility;

15

The Court further orders Defendants to:

16

(1) Update manually by November 25, 2009 any files that have

17 still not been updated.

18

(2) Issue supplemental checks within four business days to any

19 providers who were not paid for authorized hours that they worked

20 in November, 2009, because of the erroneous time-cards they

21 received or the State’s failure to restore the eligibility of

22 recipients for whom they provide services;

23

(3) Pay all reasonable attorneys’ fees and costs incurred by

24 Plaintiffs in bringing the instant motion for contempt, including

25 the costs of the mailing ordered above. Within thirty days of this

26 order, Plaintiffs’ counsel shall submit an application to the Court

27 documenting their reasonable attorneys’ fees and costs incurred in

28 connection with this motion, and a proposed order.

14

Case4:09-cv-04668-CW Document248 Filed11/25/09 Page15 of 15

United States District Court For the Northern District of California

1

(4) Appear in Court or by telephone daily as the Court

2 requires to make reports as to the status of their compliance with

3 the Court’s October 19 and 23 injunctions and the instant Order,

4 until they are in full compliance with the terms of the injunction

5 and have submitted a supplemental certificate of compliance so

6 verifying.

7

IT IS SO ORDERED.

8 Dated: 11/25/09 9

CLAUDIA WILKEN United States District Judge

10

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12

13

14

15

16

17

18

19

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25

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28

15

 
 Case4:09-cv-04668-CW Document536 Filed05/10/13 Page1 of 4

1 2 3 4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO/OAKLAND DIVISION

10

DAVID OSTER, et al.,

) Case No.: CV 09-04668 CW

11

)

)

12

Plaintiffs

) [PROPOSED] ORDER GRANTING

) FINAL APPROVAL OF CLASS

13

v.

) SETTLEMENT

)

14 WILL LIGHTBOURNE, Director of the California Department of Social Services;

) ) Hearing Date: May 23, 2013

15 TOBY DOUGLAS, Director of the California ) Time:

Department of Health Care Services;

) Judge:

2:00 P.M. Hon. Claudia Wilken

16 CALIFORNIA DEPARTMENT OF HEALTH ) Address:

1301 Clay Street

CARE SERVICES; and CALIFORNIA

)

Oakland, CA 94612

17 DEPARTMENT OF SOCIAL SERVICES, ) Courtroom: 2, 4th Floor

)

18

Defendants

)

)

19

20

21

Plaintiffs DAVID OSTER, WILLIE BEATRICE SHEPPARD, C.R. by and through his

22 guardian ad litem M.R., DOTTIE JONES, ANDREA HYLTON, HELEN POLLY STERN,

23 CHARLES THURMAN, and L.C. by and through her guardian ad litem M.G. (collectively

24 “Named Plaintiffs”) have filed, and all parties support, a Motion for Final Approval of Class

25 Settlement (“Motion for Final Approval”). The Class Settlement Agreement, entered into by

26 Named Plaintiffs, Union Plaintiffs (Service Employees International Union-United Healthcare

27 Workers, Service Employees International Union-United Long Term Care Workers, Service

28 Employees International Union Local 521, Service Employees International Union California

1 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document536 Filed05/10/13 Page2 of 4

1 State Council, United Domestic Workers of America, AFSCME Local 3930, AFL-CIO, and

2 California United Homecare Workers), and Defendants, is attached to this order as Exhibit 1.

3

Classes and subclasses in this case have previously been certified under Federal Rule of

4 Civil Procedure 23(b)(2) and need not be amended for purposes of settlement. On April 4, 2013,

5 this Court granted preliminary approval to the Class Settlement Agreement and directed notice of

6 the settlement, its terms, and the applicable procedures and schedules. A Fairness Hearing was

7 held on May 23, 2013 to determine whether the Class Settlement Agreement should be granted

8 final approval pursuant to Federal Rule of Civil Procedure 23(e) as fair, adequate, and reasonable.

9 Class members were given an opportunity to comment on and object to the Class Settlement

10 Agreement in writing and at that Fairness Hearing.

11

Based on consideration of Plaintiffs’ moving papers, the arguments of counsel, the

12 objections of class members, and the proceedings in this action to date, the Court hereby finds and

13 concludes that:

14

1. The Class Notice distributed to Class Members, pursuant to this Court’s prior order,

15

was accomplished in all material respects and fully met the requirements of Federal

16

Rule of Civil Procedure 23, due process, and any other applicable laws.

17

2. The Class Settlement Agreement is fair, reasonable, and adequate in all respects. The

18

Class Settlement Agreement provides meaningful relief and is reasonably related to the

19

strength of Plaintiffs’ and class members’ claims given the risk, expense, complexity,

20

and duration of further litigation. The Class Settlement Agreement is the result of

21

arms-length negotiations between experienced counsel representing the interests of the

22

Plaintiff Class and Defendants, after thorough factual and legal investigation.

23

3. The Court has reviewed and considered the objections of class members and finds that

24

they do not raise concerns that warrant rejecting the Class Settlement Agreement. The

25

Settlement Agreement is a reasonable compromise between the parties given the risks

26

of further litigation and the harm that permanent reductions to IHSS eligibility,

27

services, and a larger hours reductions would have caused to all Class members if

28

permitted to go into effect.

2 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document536 Filed05/10/13 Page3 of 4

1

IT IS HEREBY ORDERED that:

2

1. The Court has jurisdiction over the subject matter of this litigation and all matters

3

relating thereto, and over the Plaintiffs and Defendants. Venue is proper in the

4

Northern District of California.

5

2. Pursuant to Federal Rule of Civil Procedure 23(e), this Court grants final approval to

6

the Class Settlement Agreement, incorporates the terms of the Class Settlement

7

Agreement into this order as though fully set forth, and orders all parties to perform all

8

of their obligations thereunder.

9

3. This order and the Class Settlement Agreement are binding against the parties, their

10

successors in office, and their respective officers, agents, and employees, and all others

11

acting in concert with them.

12

4. Plaintiffs are bound by the Class Settlement Agreement not to bring or support any

13

lawsuit challenging any provisions of the Class Settlement Agreement. The Class

14

Settlement Agreement reserves, and does not waive, Plaintiffs’ right to challenge, on

15

any ground including those previously asserted in this case, any of the following acts

16

that may occur after this Agreement is signed: any state reductions in participation in

17

IHSS wages and/or state approval of wage reductions in IHSS wages; any state

18

reductions of IHSS hours, services, or eligibility other than those set forth in the

19

Agreement; and any due process challenge to notices of action or provision of hearing

20

rights in relation to IHSS service reductions, assessments, or reassessments other than

21

those required by this Agreement.

22

5. The Court retains exclusive and continuing jurisdiction over this case, the Named

23

Plaintiffs, the Plaintiff Classes and Subclasses, and Defendants for purposes of

24

supervising and resolving issues relating to administration, implementation, and

25

enforcement of the Class Settlement Agreement; resolving any disputes that may arise

26

regarding the Class Settlement Agreement, its terms, or the enforcement thereof; and

27

fashioning appropriate remedies for any violation of that Class Settlement Agreement.

28

The Court’s jurisdiction shall expire 30 months after the date of the Centers for

3 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document536 Filed05/10/13 Page4 of 4

1

Medicare and Medicaid Services (CMS) approval or disapproval of the Assessment

2

described in Section VI of the Agreement.

3

6. As set forth in Paragraph 30 of the Class Settlement Agreement, within 30 days of the

4

date that the appeal in this case has been dismissed and the legislation attached as

5

Exhibit A to the Agreement has been enacted, the parties shall file a Joint Notice and

6

Request for Dismissal. At that time, this Court shall dismiss this case and enter final

7

judgment with prejudice pursuant to the terms of the Class Settlement Agreement,

8

while retaining jurisdiction to enforce the Agreement as set forth above.

9

IT IS SO ORDERED:

10 11 DATED: May 2__3, 2013
12

______________________________________ The Honorable Claudia Wilken United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

 
 1 KAMALA D. HARRIS Attorney General of California
2 SUSAN M. CARSON Supervising Deputy Attorney General
3 State Bar No. 135875 455 Golden Gate Avenue, Suite 11000
4 San Francisco, CA 94102-7004 Telephone: (415) 703-5580
5 Fax: (415) 703-5480 E-mail: susan.carson@doj.ca.gov
6 Attorneys for Defendants
7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

OAKLAND DIVISION

11

12

DAVID OSTER et al.,

CV 09-4668 CW

13

Plaintiffs, STIPULATION TO AMEND

14

SETTLEMENT AGREEMENT;

v.

[PROPOSED] ORDER

15

The Honorable Claudia Wilken

16 WILL LIGHTBOURNE, Director of the

California Department of Social Services; Action Filed: October 1, 2009

17 TOBY DOUGLAS, Director of the

California Department of Health Care

18 Services; CALIFORNIA DEPARTMENT

OF HEALTH CARE SERVICES; and

19 CALIFORNIA DEPARTMENT OF

SOCIAL SERVICES,

20

Defendants.

21

22

23

24

25

26

27

28
1 STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER (CV 09-4668 CW)

1

The Parties to the Settlement Agreement resolving Oster v. Lightbourne and Dominguez v.

2 Brown lawsuits (as “Parties” is defined in the Settlement Agreement) hereby agree to modify and 3 amend the Settlement Agreement as follows1:

4

1. Paragraph 18 of the Settlement Agreement is deleted and amended to read:

5 “The Parties agree to jointly discuss, and State Defendants will submit to the Legislature by no

6 later than February 1, 2015, proposed legislation authorizing an assessment on home care

7 services, including but not limited to, home health care and IHSS (Assessment).”

8

2. Paragraph 19 of the Settlement Agreement is deleted and amended to read:

9 “If the Assessment is passed by the Legislature, then State Defendants shall submit a request by

10 April 1, 2015, to the federal Centers for Medicare and Medicaid Services (CMS) for authorization

11 to implement the Assessment and shall work with Plaintiffs in good faith to obtain CMS approval

12 of this Assessment.”

13

3. Paragraph 20 of the Settlement Agreement is deleted and amended to read:

14 “The Parties’ counsel shall meet and confer, in person or telephonically, regarding the status of

15 the Assessment in October 2013, March or April 2014, August or September 2014, January 2015,

16 and March 2015. If the Assessment is not submitted to CMS by April 1, 2015, the Parties will

17 discuss next steps, and if a resolution is not reached, either Party may submit the dispute to the

18 district court for resolution and for fashioning appropriate remedies needed to facilitate the

19 submission of the Assessment to CMS for approval.”

20

4. All definitions in the Settlement Agreement shall apply to this First Amendment to

21 Settlement Agreement.

22

5. This stipulation shall constitute an amendment pursuant to Paragraph 38 of the

23 Settlement Agreement, and the electronic signatures of counsel for the Parties, set forth below,

24 shall satisfy the signature requirement of that paragraph.

25

26

27

1 Attached as Exhibit A is a redlined version of the Settlement Agreement indicating the

amendments to the agreement. 28

2

STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER (CV 09-4668 CW)

1

6. The effective date of this First Amendment to Settlement Agreement shall be

2 August 29, 2014.

3

4 Dated: August 29, 2014 5 6 7 8 9

Respectfully submitted,

KAMALA D. HARRIS Attorney General of California

/S/ SUSAN M. CARSON

.

SUSAN M. CARSON

Supervising Deputy Attorney General

Attorneys for Defendants

10 Dated: August 29, 2014 11 12 13 14 15 16 17 18 19 20

By: /s/ Stacey M. Leyton STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709) STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081) CASEY A. ROBERTS (SBN 253474) Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, California 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 sberzon@altshulerberzon.com ecervantez@altshulerberzon.com sleyton@altshulerberzon.com pthoreen@altshulerberzon.com croberts@altshulerberzon.com
Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU Local 521, SEIU California State Council, UDW, and CUHW

21 Dated: August 29, 2014 22 23 24 25 26 27

By: /s/ Melinda Bird MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530) DEBORAH DORFMAN (CRLSA No. 801060) DISABILITY RIGHTS CALIFORNIA LOS ANGELES REGIONAL OFFICE 3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010 Telephone: (213) 427-8747 Facsimile: (213) 427-8767 Melinda.bird@disabilityrightsca.org Debbie.dorfman@disabilityrightsca.org Marilyn.holle@disabilityrightsca.org

28
3

STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER (CV 09-4668 CW)

1

SUJATHA JAGADEESH BRANCH (SBN 166259)

DISABILITY RIGHTS CALIFORNIA

2

SACRAMENTO REGIONAL OFFICE

100 Howe Ave., Suite 235N

3

Sacramento, CA 95825

Telephone: (916) 488-9950

4

Facsimile: (916) 488-9960

Sujatha.branch@disabilityrightsca.org

5

DARA L. SCHUR (SBN 98638)

6

FREDERICK P. NISEN (SBN 184089)

JUNG PHAM (SBN 251232)

7

DISABILITY RIGHTS CALIFORNIA

BAY AREA REGIONAL OFFICE

8

1330 Broadway, Suite 500

Oakland, CA 94612

9

Telephone: (510) 267-1200

Facsimile: (510) 267-1201

10

Dara.schur@disabilityrightsca.org

Fred.nisen@disabilityrightsca.org

11

Jung.pham@disabilityrightsca.org

12

ANN MENASCHE (SBN 74774)

DISABILITY RIGHTS CALIFORNIA

13

SAN DIEGO REGIONAL OFFICE

111 Sixth Avenue, Suite 200

14

San Diego, CA 92101

Telephone: (619) 239-7861

15

Facsimile: (619) 239-7906

Ann.menasche@disabilityrightsca.org

16

PAULA PEARLMAN (SBN 109038)

17

SHAWNA PARKS (SBN 208301)

DISABILITY RIGHTS LEGAL CENTER

18

919 Albany Street

Los Angeles, CA 90015

19

Telephone: (213) 736-1031

Facsimile: (213) 736-1428

20

Paula.pearlman@lls.edu

Shawna.parks@lls.edu

21

CHARLES WOLFINGER (SBN 63467)

22

LAW OFFICE OF CHARLES WOLFINGER

4655 Cass Street #314

23

San Diego, Ca 92109

Telephone: (858) 272-8115

24

Facsimile: (858) 270-3960

Cw@charleswolfinger.com

25

JANE PERKINS (SBN 104784)

26

NATIONAL HEALTH LAW PROGRAM

211 N. Columbia Street

27

Chapel Hill, NC 27514

Telephone: (919) 968-6308

28

Facsimile: (919) 968-8855

4

STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER (CV 09-4668 CW)

1

perkins@healthlaw.org

2

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

3

1330 Broadway, Suite 525

Oakland, CA 94612

4

Telephone: (510) 663-1055

Facsimile: (510) 663-1051

5

Attorneys for Individual Named Plaintiffs V.L.,

6

David Oster, Willie Beatrice Sheppard, C.R., Dotty

Jones, and the Plaintiff Class

7

8

9

10

GENERAL ORDER 45 ATTESTATION

11

I, Susan M. Carson, am the ECF user whose ID and password are being used to file this

12 stipulation and proposed order. In compliance with General Order 45, X.B., I hereby attest that

13 plaintiffs’ counsel have concurred in the filing of this document with their electronic signatures.

14 Dated: August 29, 2014
15
16

/s/ Susan M. Carson Susan M. Carson

17

18 [PROPOSED] ORDER
19

20 GOOD CAUSE APPEARING, THE COURT HEREBY APPROVES THE AMENDMENT TO
21 THE AGREEMENT. IT IS SO ORDERED.
22

23

24 DATED:
25
26

9/3/2014

______________________________________
Hon. Claudia Wilken United States District Judge

27

28
5 STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER (CV 09-4668 CW)

SETTLEMENT AGREEMENT I. INTRODUCTION
1. This Settlement Agreement (Agreement) globally resolves the following two class-action lawsuits: Oster v. Lightbourne, N.D. Cal., Case No. CV 09-04668 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 12-15366 (Oster); and Dominguez v. Brown, N.D. Cal., Case No. CV 09-02306 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 09- 16359 (Dominguez). It is the intent of the Parties that this Agreement will fully and finally resolve the Oster and Dominguez cases. This Agreement represents substantial compromises among all the Parties, and addresses the long term stability of the programs at issue in these cases for the benefit of recipients, providers, and the State of California. II. PARTIES
2. The Individual Named Plaintiffs in Oster are David Oster; Willie Beatrice Sheppard; C.R., by and through his guardian ad litem, M.R.; Dottie Jones; Andrea Hylton; Helen Polly Stern; Charles Thurman; and L.C., by and through her guardian ad litem, M.G. The Organizational Plaintiffs in Oster are Service Employees International Union-United Healthcare Workers West; Service Employees International Union-United Long Term Care Workers; Service Employees International Union Local 521; Service Employees International Union State Council; United Domestic Workers of America, AFSCME Local 3930, AFL-CIO; and California United Healthcare Workers. Defendants in Oster are Will Lightbourne, Director of the California Department of Social Services (CDSS); Toby Douglas, Director of the California Department of Health Care Services (DHCS); CDSS; and DHCS.
3. The Individual Named Plaintiffs in Dominguez are Patsy Miller; Alex Brown, by and through his mother and next friend Lisa Brown; Donna Brown; Chloe Lipton, by and
Page 1 of 13

through her conservator and next friend Julie Weissman-Steinbaugh; Herbert M. Meyer; Charlene
Ayers; Leslie Gordon; Willie Beatrice Sheppard; Andy Martinez; and Carolyn Stewart, on behalf
of themselves and a class of those similarly situated. The Organizational Plaintiffs in Dominguez
are Service Employees International Union-United Healthcare Workers West; Service Employees
International Union-United Long Term Care Workers; Service Employees International Union
Local 521; Service Employees International Union California State Council; United Domestic
Workers of America, AFSCME Local 3930, AFL-CIO; and California United Homecare
Workers. State Defendants in Dominguez are Will Lightbourne, Director of CDSS, and Toby Douglas, Director of DHCS.1
4. The term “Plaintiffs” in this Agreement refers to all individual and organizational
plaintiffs as well as the Classes for Oster and the amended class for Dominguez.
5. The term “State Defendants” in this Agreement refers to the state officer and state
entity defendants in both Oster and Dominguez.
6. The term “Parties” in this Agreement refers to Plaintiffs and State Defendants. 7. The term “IHSS recipients” in this Agreement refers to all recipients in the State
of California who receive services through the In-Home Supportive Services (IHSS), IHSS Plus
Option, Personal Care Services, or Community First Choice Option programs.
1 By operation of law, named defendant John A. Wagner is replaced by his successor, Will Lightbourne; and named defendant David Maxwell-Jolly is replaced by his successor, Toby Douglas. Governor Edmund G. Brown Jr., Controller John Chiang, Fresno County, and Fresno County In-Supportive Services Public Authority are currently named defendants in Dominguez but are not parties to this settlement agreement. Plaintiffs have agreed to dismiss with prejudice Brown and Chiang, with all parties to bear their own fees and costs. Plaintiffs have also agreed to dismiss Fresno County and Fresno County IHSS Public Authority without prejudice, with all parties to bear their own fees and costs. Plaintiffs are not releasing any claims against Fresno County or Fresno County IHSS Public Authority arising from this county’s request for or implementation of a future reduction in IHSS wages.
Page 2 of 13

III. JURISDICTION 8. The United States District Court has jurisdiction over the claims against all
defendants pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1392(b).

IV. CLASS DEFINITIONS 9. The district court has previously certified the Oster Classes as set forth below and
appointed as Class Representatives the Individual Named Plaintiffs listed in paragraph 2 of the Agreement:

Class A:

All IHSS recipients in the State of California whose IHSS services

will be limited, cut, or terminated under the provisions of ABX4 4, and all

applicants to IHSS in the State of California who would have been eligible for

IHSS services but who are either not eligible, or are eligible for fewer services, as

a result of ABX4 4.

Class B: All IHSS recipients in the State of California who have received or will receive notices of action that include a reduction of IHSS hours based on SB 73 or Defendants’ implementation of SB 73, including future applicants for IHSS services whose notice of action will reflect reduced IHSS hours as a result of SB 73 or Defendants’ implementation of SB 73.
10. The district court has previously certified a Class in Dominguez and appointed as

Class Representatives the Individual Named Plaintiffs listed in paragraph 3 of this Agreement.

The Parties agree that, due to changes in factual circumstances, the Class definition should be

amended by adding five counties (Los Angeles, Madera, Mariposa, San Joaquin, and Yuba).

Accordingly, in connection with preliminary approval of the Settlement Agreement, Plaintiffs

will ask the district court to amend the class definition to the following:

All IHSS recipients who reside in Alameda, Calaveras, Contra Costa, Fresno, Los Angeles, Madera, Marin, Mariposa, Mendocino, Monterey, Napa, Placer, Riverside, Sacramento, San Benito, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, Yolo, and Yuba counties.
Page 3 of 13

11. If the district court does not approve this Agreement, the Parties agree that State Defendants will not be prejudiced or bound by anything in this Agreement, and instead, State Defendants will have whatever rights they would have had before they entered into this Agreement to contest that the Plaintiffs are appropriate class representatives, and/or to contest that the Oster and Dominguez classes meet the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2). V. REDUCTION IN NUMBER OF AUTHORIZED HOURS
12. Contingent upon enactment of the state legislation described in Exhibit A of this Agreement, State Defendants will implement an 8 percent across-the-board reduction in authorized service hours that shall run for 12 consecutive months. It is the intent of the Parties that this reduction be implemented on July 1, 2013.
13. Effective 12 months after implementation of the 8 percent reduction set forth in the preceding paragraph, and contingent upon enactment of the state legislation described in Exhibit A of this Agreement, State Defendants will replace the 8 percent reduction with, and will implement, an ongoing 7 percent across-the-board reduction in authorized service hours.
14. The reductions identified in paragraphs 12 and 13 shall not be in addition to the current 3.6 percent across-the-board reduction of authorized service hours. The current reduction of 3.6 percent terminates by operation of law on July 1, 2013. It is the intent of the Parties to avoid any time period during which the 3.6 percent reduction has expired but the 8 percent reduction has not yet been implemented.
15. The reductions identified in paragraphs 12 and 13 will be the result of a change in state law and therefore are not subject to appeal by state fair hearing, administrative hearing, trial court, or otherwise. Any such appeal can be administratively denied, and the recipient will not
Page 4 of 13

have “aid-paid-pending” rights in such an appeal. No further legislative authority, beyond that provided in Exhibit A, shall be necessary to implement the reductions described in paragraphs 12 and 13.
16. Recipients shall retain their right to request a reassessment based on a change in circumstances consistent with California Welfare and Institutions Code section 12301.1(d) (as of 2013). In accordance with applicable law, recipients shall not be required to provide a physician’s note or medical certification of a change in their medical condition in order to obtain a reassessment. An IHSS recipient may appeal the denial of a request for a reassessment, and CDSS will instruct the counties to notify recipients subject to a denial of that right to appeal. A recipient who appeals the denial of a reassessment will not have “aid-paid-pending” rights in such an appeal. A request for reassessment based solely on the reductions of authorized service hours identified in paragraphs 12 and 13 can be administratively denied, but is still subject to the right to appeal described above.
17. CDSS agrees to provide the information in the preceding paragraph to the counties through the provision of an All-County Letter (ACL). Plaintiffs will have the opportunity to review and comment on a draft of the ACL prior to finalization and distribution to the counties. CDSS also agrees to provide the information regarding reassessment and appeals in the preceding paragraph to recipients in the Notice of Action (NOA) regarding the 8 percent reduction in paragraph 12. Plaintiffs will have the opportunity to review and comment on a draft of the NOA prior to finalization and distribution to recipients.
Page 5 of 13

VI. STATE LEGISLATION REGARDING AN ASSESSMENT 18. The Parties agree to jointly discuss, and State Defendants will submit to the
Legislature by no later than February 1, 2015, proposed legislation authorizing an assessment on home care services, including but not limited to, home health care and IHSS (Assessment).
19. If the Assessment is passed by the Legislature, then State Defendants shall submit a request by October April 1, 20145, to the federal Centers for Medicare and Medicaid Services (CMS) for authorization to implement the Assessment and shall work with Plaintiffs in good faith to obtain CMS approval of this Assessment.
20. The Parties’ counsel shall meet and confer, in person or telephonically, regarding the status of the Assessment in October 2013, March or April 2014, and August or September 2014, January 2015, and March 2015. If the Assessment is not submitted to CMS by October April 1, 20145, the Parties will discuss next steps, and if a resolution is not reached, either Party may submit the dispute to the district court for resolution and for fashioning appropriate remedies needed to facilitate the submission of the Assessment to CMS for approval.
21. If the Assessment is approved by CMS, the general fund savings generated by the Assessment revenues will offset the reduction in authorized service hours set forth in paragraph 13, up to 7 percent, as set forth Section 12YYY attached hereto as part of Exhibit A.
22. State Defendants will pursue retroactive implementation of the Assessment. If CMS approves retroactive implementation of the Assessment, the one-time savings from that retroactive implementation, as determined by the director of the Department of Finance, shall be reinvested for the benefit of recipients. The Parties shall discuss how this reinvestment should occur; however, the implementation of this reinvestment shall be subject to applicable legislative approval.
Page 6 of 13

VII. OTHER STATE LEGISLATION 23. The Parties agree to jointly support passage by the Legislature of the legislation
attached in Exhibit A hereto (which includes the repeal of Cal. Welf. & Inst. Code §§ 12301.07, 12306.1(d)(6) & (d)(7), 12309(e)-(i), & 12309.2) as soon as possible, but no later than May 24, 2013. If this legislation is not enacted by June 1, 2013, or is enacted with substantive alteration (e.g., different percentage reductions than set forth in this Agreement), the Parties shall meet and confer to discuss next steps. If this legislation is not passed by the Legislature or is passed with substantive alteration, or is not delivered to the Governor by November 1, 2013, then the Parties shall meet and confer to determine whether they can agree upon a mutually acceptable solution. If the Parties cannot reach such agreement, at that time, any Party may declare the Agreement null and void.
24. The Parties agree to jointly support passage by the Legislature of legislation that would authorize the creation of an assessment such as described in Section VI. VIII. JOINT REQUEST FOR FEDERAL APPROVALS IF NECESSARY
25. The Parties agree to jointly support federal approvals, if any are necessary, to implement this Agreement. IX. DISTRICT COURT APPROVAL AND ENFORCEMENT OF SETTLEMENT
26. The Class Representatives agree to file on behalf of the certified classes in Oster and the amended class in Dominguez, and all other Parties agree to support, a motion with the district court to request a fairness hearing pursuant to Federal Rule of Civil Procedure 23(e) and to seek the district court’s preliminary and final approvals of this Agreement in Oster and Dominguez. The Parties will cooperate in presenting this Agreement to the district court at the fairness hearings and will take all steps necessary to seek and obtain the district court’s approval.
Page 7 of 13

If the district court withholds its approval of this Agreement or the settlement for any reason, the Parties shall meet and confer to determine whether this Agreement can be amended or modified in a manner so as to secure the district court’s approval. If this is not attained, this Agreement shall be null and void.
27. If the district court approves the Agreement but an appeal is filed, the Parties shall meet and confer to discuss opposing that appeal. If an appeal results in the district court’s approval of the Agreement being overturned, the parties shall meet and confer to discuss next steps.
28. The Parties agree to stipulate and request district court approval for a proposed schedule, attached as Exhibit B and incorporated into this agreement as if fully set forth herein. The proposed schedule assumes that the district court will not require individually mailed notice. The Parties agree to meet and confer to discuss alternate dates in the event that any portion of the proposed schedule becomes impracticable or is not approved by the district court.
29. The Class Representatives, on behalf of the certified classes in Oster and the amended class in Dominguez, will propose to the district court, and all Parties agree to support, that the Classes be notified of the proposed settlement as set forth in the Class Notice Plan contained in Exhibit C to this Agreement.
30. Following enactment of the legislative language referenced in Exhibit A, without substantive alteration, and final approval of the Settlement Agreement by the district court, the Parties agree to jointly move to dismiss all appeals in Oster and Dominguez within 30 days after enactment of the legislation set forth in Exhibit A.
31. Within 30 days of the date that the appeals have been dismissed and the legislation enacted, the Parties agree to ask the district court to enter final judgment dismissing
Page 8 of 13

the Oster and Dominguez actions as to State Defendants, ordering the Parties to comply with the Agreement, and retaining jurisdiction to enforce the provisions of the Agreement and fashion remedies in the event that a Party violates the Agreement. The district court shall retain jurisdiction for 30 months after the date of CMS approval or disapproval of the Assessment. A copy of each of the Final Judgments, that the Parties agree to ask the district court to enter, is attached hereto as Exhibit D. X. ATTORNEYS’ FEES AND COSTS
32. Each Party will bear its own attorneys’ fees and costs, and no attorneys’ fees or costs against any Party shall be awarded in Oster, Dominguez, or any appeals therefrom, or any action to enforce the terms of this Agreement. XI. SCOPE OF AGREEMENT
33. Upon final approval of this Agreement pursuant to Federal Rule of Civil Procedure 23(e), Plaintiffs hereby release any and all claims, damages, liabilities, rights, and complaints against State Defendants asserted in Oster and/or Dominguez, except for any claims for enforcement of this Agreement. Plaintiffs agree not to bring or support any lawsuit challenging any provisions of this Agreement. Plaintiffs reserve and are not waiving the right to challenge, on any ground including those previously asserted in Oster and Dominguez, any of the following acts that may occur after this Agreement is signed: any state reductions in participation in IHSS wages and/or state approval of wage reductions in IHSS wages; any state reductions of IHSS hours, services, or eligibility other that those set forth in this Agreement; and any due process challenge to State Defendants’ notices of action or provision of hearing rights in relation to IHSS services, assessments, or reassessments other than those required by this Agreement.
Page 9 of 13

XII. NO ADMISSION OF LIABILITY OR WAIVER OF RIGHTS 34. State Defendants expressly deny each and all of the claims and contentions
alleged against them in these actions. Plaintiffs expressly contend that all claims for relief in these actions are meritorious. This Agreement, anything contained herein, and any negotiations or proceedings hereunder shall not be construed as or deemed to be an admission, presumption, evidence of, or concession by any State Defendant of the truth of any fact alleged or the validity of any claim which has or could have been asserted in this action, or of the deficiency of any defense which has or could have been asserted in this action or of any wrongdoing or liability whatsoever.
35. This Agreement, the fact of its existence, and any term thereof shall not be construed as an admission by any State Defendant, or used as evidence against any State Defendant, in any civil, criminal, or administrative action or proceeding except to the extent necessary to enforce claims for a breach of this Agreement. XIII. EFFECTIVE DATE OF SETTLEMENT AGREEMENT
36. The effective date of this Agreement shall be 30 days from entry of final approval of this Agreement pursuant to Federal Rule of Civil Procedure 23(e) in Oster and Dominguez. XIV. ADDITIONAL PROVISIONS
37. This Agreement contains all of the terms and conditions agreed upon by the Parties hereto, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Agreement regarding the subject matter of this Agreement shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein.
Page 10 of 13

38. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by all Parties and approved by the court specifying its intent to modify this Agreement.
39. The Parties agree to use their best efforts to carry out the terms of the Agreement. At no time shall any of the Parties seek to solicit or encourage members of the Settlement Class to submit objections to the Agreement or to appeal from the order giving final approval to the Agreement.
40. All Parties to this Agreement, through their respective counsel, have participated in its drafting and, consequently, any ambiguity shall not be construed for or against any party.
41. This Agreement shall inure to the benefit of and be binding upon the legal representatives and any successor of any party hereto.
42. Each of the undersigned attorneys represents that he or she has been duly authorized to enter into this Agreement.
43. Each signatory to this Agreement represents and warrants that he/she is authorized to sign this Agreement and bind the party on behalf of whom he/she signs.
44. 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 to be the same as an original signature.
Page 11 of 13

XV. SIGNATURES For the Individual Named Plaintiffs and Class Representatives in Oster:

Date: March August ___, 20134

Melinda Bird, Esq. Disability Rights California Attorneys for Individual Named Plaintiffs and the Certified Class in Oster

For the Organizational Plaintiffs in Oster and all Plaintiffs, including all Class Representatives, in Dominguez:

Date: March August ___, 20134

Stacey M. Leyton, Esq. Altshuler Berzon LLP Attorneys for Organizational Plaintiffs in Oster and all Plaintiffs and the Certified Class in Dominguez

For State Defendants, Approved as to Form:

Date: March August ___, 20143 For State Defendants:

Susan M. Carson Supervising Deputy Attorney General Office of the Attorney General Attorneys for State Defendants

Date: March August ___, 20134

Will Lightbourne Director California Department of Social Services

Date: March August ___, 20143

Toby Douglas Director California Department of Health Care Services
Page 12 of 13

Date: March August ___, 20134

Douglas Press Chief Counsel California Department of Health Care Services

Exhibit A – Proposed Legislation Exhibit B – Proposed Schedule Exhibit C – Proposed Class Notices and Class Notice Plan Exhibit D – Proposed Final Judgments

SF2009405031 40677551.doc

Page 13 of 13

Dominguez Class Counsel and Oster Class Counsel

Dominguez Class Counsel

Oster Class Counsel

Stephen P. Berzon Altshuler Berzon LLP

Melinda Bird Disability Rights California

Scott A. Kronland Altshuler Berzon LLP

Marilyn Holle Disability Rights California

Stacey M. Leyton Altshuler Berzon LLP

Sujatha Jagadeesh Branch Disability Rights California

Peder J. Thoreen Altshuler Berzon LLP

Dara L. Schur Disability Rights California

Anne N. Arkush Altshuler Berzon LLP

Anna Rich National Senior Citizen Law Center

Paula Pearlman Disability Rights Legal Center

Charles Wolfinger Law Office of Charles Wolfinger

Jane Perkins National Health Law Program

 
 Case4:09-cv-04668-CW Document542 Filed08/07/13 Page1 of 5

1 MELINDA BIRD (SBN 102236) MARILYN HOLLE (SBN 61530)
2 DISABILITY RIGHTS CALIFORNIA 350 South Bixel Street, Suite 290
3 Los Angeles, CA 90017 Telephone: (213) 213-8000
4 Facsimile: (213) 213-8001 melinda.bird@disabilityrightsca.org
5 monisha.coelho@disabilityrightsca.org

6 Attorneys for Named Plaintiffs and the Class Additional Attorneys for Named Plaintiffs and the
7 Class on Signature Page

8 STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)
9 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
10 RACHEL J. ZWILLINGER (SBN 268684) Altshuler Berzon LLP
11 177 Post Street, Suite 300 San Francisco, California 94108
12 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
13 sberzon@altshulerberzon.com ecervantez@altshulerberzon.com
14 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
15 rzwillinger@altshulerberzon.com

16 Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU

Local 521, SEIU California State Council, UDW, and CUHW

17

UNITED STATES DISTRICT COURT

18

FOR THE NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO/OAKLAND DIVISION

20 DAVID OSTER, et al.,

Case No. CV 09-04668 CW

21

Plaintiffs, v.

CLASS ACTION

22 WILL LIGHTBOURNE, Director of the California

JOINT NOTICE AND REQUEST FOR DISMISSAL; [PROPOSED]

23

Department of Social Services; TOBY DOUGLAS, Director of the California Department of Health Care

ORDER

24

Services; CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES; and CALIFORNIA DEPARTMENT

25 OF SOCIAL SERVICES,

26

Defendants.

27

28

Joint Notice & Request For Dismissal; [Proposed] Order Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document542 Filed08/07/13 Page2 of 5

1

JOINT NOTICE AND REQUEST FOR DISMISSAL

2

On May 23, 2013, the Court granted final settlement approval in this action. At that time,

3 a preliminary injunction appeal in this action remained pending in the Ninth Circuit Court of

4 Appeals. Additionally, the terms of the settlement contemplated the subsequent passage of

5 implementing legislation by the California Legislature. The Court’s May 23, 2013, final

6 approval order requires the remaining parties to file a Joint Notice and Request for Dismissal

7 within 30 days after the date that the appeal in this case has been dismissed and the legislation

8 enacted.

9

The parties hereby provide notice that the California Legislature passed the related

10 legislation and it was signed by the Governor on May 30, 2013. The Ninth Circuit dismissed the

11 appeal in this action on July 5, 2013. Therefore, the parties respectfully request that the Court

12 sign and enter the attached proposed order dismissing this action. Pursuant to Fed. R. Civ. P.

13 58(d), the parties also respectfully request that the Court enter judgment accordingly.

14

15 Dated: August 1, 2013

Respectfully Submitted,

16

/s/ Stacey Leyton__________________

17

STEPHEN P. BERZON (SBN 46540) EVE H. CERVANTEZ (SBN 164709)

18

STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)

19

RACHEL J. ZWILLINGER (SBN 268684) Altshuler Berzon LLP

20

177 Post Street, Suite 300 San Francisco, California 94108

21

Telephone: (415) 421-7151 Facsimile: (415) 362-8064

22

sberzon@altshulerberzon.com ecervantez@altshulerberzon.com

23

sleyton@altshulerberzon.com pthoreen@altshulerberzon.com

24

rzwillinger@altshulerberzon.com

25

Attorneys for Plaintiffs SEIU-UHW, SEIU-ULTCW, SEIU Local 521, SEIU California State Council,

26

UDW, and CUHW

27

28

1 Joint Notice & Request For Dismissal; [Proposed] Order
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document542 Filed08/07/13 Page3 of 5

1

MELINDA BIRD (SBN 102236)

MARILYN HOLLE (SBN 61530)

2

DISABILITY RIGHTS CALIFORNIA

LOS ANGELES REGIONAL OFFICE

3

350 South Bixel Street, Suite 290

Los Angeles, CA 90017

4

Telephone: (213) 213-8000

Facsimile: (213) 213-8001

5

melinda.bird@disabilityrightsca.org

monisha.coelho@disabilityrightsca.org

6

SUJATHA JAGADEESH BRANCH (SBN

7

166259)

DISABILITY RIGHTS CALIFORNIA

8

SACRAMENTO REGIONAL OFFICE

1831 K Street

9

Sacramento, CA 95811

Telephone: (916) 504-5800

10

Facsimile: (916) 504-5801

sujatha.branch@disabilityrightsca.org

11

DARA L. SCHUR (SBN 98638)

12

ELISSA GERSHON (SBN 169741)

DISABILITY RIGHTS CALIFORNIA

13

BAY AREA REGIONAL OFFICE

1330 Broadway, Suite 500

14

Oakland, CA 94612

Telephone: (510) 267-1200

15

Facsimile: (510) 267-1201

dara.schur@disabilityrightsca.org

16

PAULA PEARLMAN (SBN 109038)

17

DISABILITY RIGHTS LEGAL CENTER

919 Albany Street

18

Los Angeles, CA 90015

Telephone: (213) 736-1031

19

Facsimile: (213) 736-1428

paula.pearlman@lls.edu

20

shawna.parks@lls.edu

21

CHARLES WOLFINGER (SBN 63467)

LAW OFFICE OF CHARLES WOFLINGER

22

4655 Cass Street # 314

San Diego, CA 92109

23

Telephone: (858) 272-8115

Facsimile: (858) 270-3960

24

Cw@charleswolfinger.com

25

JANE PERKINS (SBN 104784)

NATIONAL HEALTH LAW PROGRAM

26

101 East Weaver Street, Suite G-7

Carrboro, NC 27510

27

Telephone: (919) 968-6308

28

Facsimile: (919) 968-8855

2 Joint Notice & Request For Dismissal; [Proposed] Order
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document542 Filed08/07/13 Page4 of 5

1

ABIGAIL K. COURSOLLE (SBN 266646)

NATIONAL HEALTH LAW PROGRAM

2

3701 Wilshire Blvd., Ste. 750

Los Angeles, CA 90010

3

Telephone: (310) 736-1652

Facsimile: (213) 368-0774

4

coursolle@healthlaw.org

5

ANNA RICH (SBN 230195)

NATIONAL SENIOR CITIZEN LAW CENTER

6

1330 Broadway, Suite 525

Oakland, CA 94612

7

Telephone: (510) 663-1055

Facsimile: (510) 663-1051

8

arich@nsclc.org

9 10 11
Dated: August 1, 2013 12 13 14 15 16 17 18 19

Attorneys for Individual Named Plaintiffs David Oster, Willie Beatrice Sheppard, C.R., Dottie Jones, Andrea Hylton, Helen Polly Stern, Charles Thurman, L.C., and the Plaintiff Class
Respectfully Submitted,
/s/ Susan M. Carson _______________ KAMALA HARRIS Attorney General of California SUSAN M. CARSON Supervising Deputy Attorney General GREGORY D. BROWN (SBN 219209) NIMROD ELIAS (SBN 251634) Deputy Attorneys General California Dept. of Justice 455 Golden Gate Ave Ste 11000 San Francisco, CA 94102 Susan.Carson@doj.ca.gov

20

Attorneys for Defendants

21

22

GENERAL ORDER 45 ATTESTATION

23

I, Stacey M. Leyton, am the ECF user whose ID and password are being used to file this

24 stipulation and proposed order. In compliance with General Order 45, X.B., I hereby attest that

25 Defendants’ counsel have concurred in the filing of this document with their electronic

26 signatures.

27 Dated: August 1, 2013

By: /s/ Stacey M. Leyton

28

3 Joint Notice & Request For Dismissal; [Proposed] Order
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document542 Filed08/07/13 Page5 of 5

1

[PROPOSED] ORDER

2

IT IS HEREBY ORDERED that this case is dismissed with prejudice.

3

This judgment of dismissal is entered pursuant to the terms of the Settlement Agreement,

4 which is incorporated herein as though fully set forth, and attached as Exhibit A to this Order.

5 The Court orders the parties to the Settlement Agreement to perform all of their obligations

6 thereunder. The Court retains exclusive and continuing jurisdiction over this case, the Named

7 Plaintiffs, the Plaintiff Classes and Subclasses, and State Defendants for purposes of supervising

8 and resolving issues relating to administration, implementation, and enforcement of the

9 Settlement Agreement; resolving any disputes that may arise regarding the Settlement

10 Agreement, its terms, or the enforcement thereof; and fashioning appropriate remedies for any

11 violation of that Settlement Agreement. The Court’s jurisdiction shall expire 30 months after the

12 date of the Centers for Medicare and Medicaid Services’ approval or disapproval of the

13 “Assessment” described in Section VI of the Settlement Agreement.

14

August 7

15 Dated: __________________, 2013

16

_____________________________ Honorable Claudia A. Wilken United States District Court Judge

17

18

19

20

21

22

23

24

25

26

27

28

4 Joint Notice & Request For Dismissal; [Proposed] Order
Case No. CV 09-04668 CW

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EXHIBIT A

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SETTLEMENT AGREEMENT I. INTRODUCTION
1. This Settlement Agreement (Agreement) globally resolves the following two class-action lawsuits: Oster v. Lightbourne, N.D. Cal., Case No. CV 09-04668 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 12-15366 (Oster); and Dominguez v. Brown, N.D. Cal., Case No. CV 09-02306 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 0916359 (Dominguez). It is the intent of the Parties that this Agreement will fully and finally resolve the Oster and Dominguez cases. This Agreement represents substantial compromises among all the Parties, and addresses the long term stability of the programs at issue in these cases for the benefit of recipients, providers, and the State of California. II. PARTIES
2. The Individual Named Plaintiffs in Oster are David Oster; Willie Beatrice Sheppard; C.R., by and through his guardian ad litem, M.R.; Dottie Jones; Andrea Hylton; Helen Polly Stern; Charles Thurman; and L.C., by and through her guardian ad litem, M.G. The Organizational Plaintiffs in Oster are Service Employees International Union-United Healthcare Workers West; Service Employees International Union-United Long Term Care Workers; Service Employees International Union Local 521; Service Employees International Union State Council; United Domestic Workers of America, AFSCME Local 3930, AFL-CIO; and California United Healthcare Workers. Defendants in Oster are Will Lightbourne, Director of the California Department of Social Services (CDSS); Toby Douglas, Director of the California Department of Health Care Services (DHCS); CDSS; and DHCS.
3. The Individual Named Plaintiffs in Dominguez are Patsy Miller; Alex Brown, by and through his mother and next friend Lisa Brown; Donna Brown; Chloe Lipton, by and
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through her conservator and next friend Julie Weissman-Steinbaugh; Herbert M. Meyer; Charlene Ayers; Leslie Gordon; Willie Beatrice Sheppard; Andy Martinez; and Carolyn Stewart, on behalf of themselves and a class of those similarly situated. The Organizational Plaintiffs in Dominguez are Service Employees International Union-United Healthcare Workers West; Service Employees International Union-United Long Term Care Workers; Service Employees International Union Local 521; Service Employees International Union California State Council; United Domestic Workers of America, AFSCME Local 3930, AFL-CIO; and California United Homecare Workers. State Defendants in Dominguez are Will Lightbourne, Director of CDSS, and Toby Douglas, Director of DHCS.1
4. The term “Plaintiffs” in this Agreement refers to all individual and organizational plaintiffs as well as the Classes for Oster and the amended class for Dominguez.
5. The term “State Defendants” in this Agreement refers to the state officer and state entity defendants in both Oster and Dominguez.
6. The term “Parties” in this Agreement refers to Plaintiffs and State Defendants. 7. The term “IHSS recipients” in this Agreement refers to all recipients in the State of California who receive services through the In-Home Supportive Services (IHSS), IHSS Plus Option, Personal Care Services, or Community First Choice Option programs.
1 By operation of law, named defendant John A. Wagner is replaced by his successor, Will Lightbourne; and named defendant David Maxwell-Jolly is replaced by his successor, Toby Douglas. Governor Edmund G. Brown Jr., Controller John Chiang, Fresno County, and Fresno County In-Supportive Services Public Authority are currently named defendants in Dominguez but are not parties to this settlement agreement. Plaintiffs have agreed to dismiss with prejudice Brown and Chiang, with all parties to bear their own fees and costs. Plaintiffs have also agreed to dismiss Fresno County and Fresno County IHSS Public Authority without prejudice, with all parties to bear their own fees and costs. Plaintiffs are not releasing any claims against Fresno County or Fresno County IHSS Public Authority arising from this county’s request for or implementation of a future reduction in IHSS wages.
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III. JURISDICTION

8. The United States District Court has jurisdiction over the claims against all

defendants pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Venue is proper in the Northern

District of California pursuant to 28 U.S.C. § 1392(b).

IV. CLASS DEFINITIONS

9. The district court has previously certified the Oster Classes as set forth below and

appointed as Class Representatives the Individual Named Plaintiffs listed in paragraph 2 of the

Agreement:

Class A:

All IHSS recipients in the State of California whose IHSS services

will be limited, cut, or terminated under the provisions of ABX4 4, and all

applicants to IHSS in the State of California who would have been eligible for

IHSS services but who are either not eligible, or are eligible for fewer services, as

a result of ABX4 4.

Class B:

All IHSS recipients in the State of California who have received or

will receive notices of action that include a reduction of IHSS hours based on SB

73 or Defendants’ implementation of SB 73, including future applicants for IHSS

services whose notice of action will reflect reduced IHSS hours as a result of SB

73 or Defendants’ implementation of SB 73.

10. The district court has previously certified a Class in Dominguez and appointed as

Class Representatives the Individual Named Plaintiffs listed in paragraph 3 of this Agreement.

The Parties agree that, due to changes in factual circumstances, the Class definition should be

amended by adding five counties (Los Angeles, Madera, Mariposa, San Joaquin, and Yuba).

Accordingly, in connection with preliminary approval of the Settlement Agreement, Plaintiffs

will ask the district court to amend the class definition to the following:

All IHSS recipients who reside in Alameda, Calaveras, Contra Costa, Fresno, Los Angeles, Madera, Marin, Mariposa, Mendocino, Monterey, Napa, Placer, Riverside, Sacramento, San Benito, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, Yolo, and Yuba counties.

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11. If the district court does not approve this Agreement, the Parties agree that State Defendants will not be prejudiced or bound by anything in this Agreement, and instead, State Defendants will have whatever rights they would have had before they entered into this Agreement to contest that the Plaintiffs are appropriate class representatives, and/or to contest that the Oster and Dominguez classes meet the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2). V. REDUCTION IN NUMBER OF AUTHORIZED HOURS
12. Contingent upon enactment of the state legislation described in Exhibit A of this Agreement, State Defendants will implement an 8 percent across-the-board reduction in authorized service hours that shall run for 12 consecutive months. It is the intent of the Parties that this reduction be implemented on July 1, 2013.
13. Effective 12 months after implementation of the 8 percent reduction set forth in the preceding paragraph, and contingent upon enactment of the state legislation described in Exhibit A of this Agreement, State Defendants will replace the 8 percent reduction with, and will implement, an ongoing 7 percent across-the-board reduction in authorized service hours.
14. The reductions identified in paragraphs 12 and 13 shall not be in addition to the current 3.6 percent across-the-board reduction of authorized service hours. The current reduction of 3.6 percent terminates by operation of law on July 1, 2013. It is the intent of the Parties to avoid any time period during which the 3.6 percent reduction has expired but the 8 percent reduction has not yet been implemented.
15. The reductions identified in paragraphs 12 and 13 will be the result of a change in state law and therefore are not subject to appeal by state fair hearing, administrative hearing, trial court, or otherwise. Any such appeal can be administratively denied, and the recipient will not
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have “aid-paid-pending” rights in such an appeal. No further legislative authority, beyond that provided in Exhibit A, shall be necessary to implement the reductions described in paragraphs 12 and 13.
16. Recipients shall retain their right to request a reassessment based on a change in circumstances consistent with California Welfare and Institutions Code section 12301.1(d) (as of 2013). In accordance with applicable law, recipients shall not be required to provide a physician’s note or medical certification of a change in their medical condition in order to obtain a reassessment. An IHSS recipient may appeal the denial of a request for a reassessment, and CDSS will instruct the counties to notify recipients subject to a denial of that right to appeal. A recipient who appeals the denial of a reassessment will not have “aid-paid-pending” rights in such an appeal. A request for reassessment based solely on the reductions of authorized service hours identified in paragraphs 12 and 13 can be administratively denied, but is still subject to the right to appeal described above.
17. CDSS agrees to provide the information in the preceding paragraph to the counties through the provision of an All-County Letter (ACL). Plaintiffs will have the opportunity to review and comment on a draft of the ACL prior to finalization and distribution to the counties. CDSS also agrees to provide the information regarding reassessment and appeals in the preceding paragraph to recipients in the Notice of Action (NOA) regarding the 8 percent reduction in paragraph 12. Plaintiffs will have the opportunity to review and comment on a draft of the NOA prior to finalization and distribution to recipients.
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VI. STATE LEGISLATION REGARDING AN ASSESSMENT

18. The Parties agree to jointly discuss, and State Defendants will submit to the

Legislature, proposed legislation authorizing an assessment on home care services, including but

not limited to, home health care and IHSS (Assessment).

19. If the Assessment is passed by the Legislature, then State Defendants shall submit

a request by October 1, 2014, to the federal Centers for Medicare and Medicaid Services (CMS)

for authorization to implement the Assessment and shall work with Plaintiffs in good faith to

obtain CMS approval of this Assessment.

20. The Parties’ counsel shall meet and confer, in person or telephonically, regarding

the status of the Assessment in October 2013, March or April 2014, and August or September

2014. If the Assessment is not submitted to CMS by October 1, 2014, the Parties will discuss

next steps, and if a resolution is not reached, either Party may submit the dispute to the district

court for resolution and for fashioning appropriate remedies needed to facilitate the submission

of the Assessment to CMS for approval.

21. If the Assessment is approved by CMS, the general fund savings generated by the

Assessment revenues will offset the reduction in authorized service hours set forth in paragraph

13, up to 7 percent, as set forth Section 12YYY attached hereto as part of Exhibit A.

22. State Defendants will pursue retroactive implementation of the Assessment. If

CMS approves retroactive implementation of the Assessment, the one-time savings from that

retroactive implementation, as determined by the director of the Department of Finance, shall be

reinvested for the benefit of recipients. The Parties shall discuss how this reinvestment should

occur; however, the implementation of this reinvestment shall be subject to applicable legislative

approval.

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VII. OTHER STATE LEGISLATION 23. The Parties agree to jointly support passage by the Legislature of the legislation
attached in Exhibit A hereto (which includes the repeal of Cal. Welf. & Inst. Code §§ 12301.07, 12306.1(d)(6) & (d)(7), 12309(e)-(i), & 12309.2) as soon as possible, but no later than May 24, 2013. If this legislation is not enacted by June 1, 2013, or is enacted with substantive alteration (e.g., different percentage reductions than set forth in this Agreement), the Parties shall meet and confer to discuss next steps. If this legislation is not passed by the Legislature or is passed with substantive alteration, or is not delivered to the Governor by November 1, 2013, then the Parties shall meet and confer to determine whether they can agree upon a mutually acceptable solution. If the Parties cannot reach such agreement, at that time, any Party may declare the Agreement null and void.
24. The Parties agree to jointly support passage by the Legislature of legislation that would authorize the creation of an assessment such as described in Section VI. VIII. JOINT REQUEST FOR FEDERAL APPROVALS IF NECESSARY
25. The Parties agree to jointly support federal approvals, if any are necessary, to implement this Agreement. IX. DISTRICT COURT APPROVAL AND ENFORCEMENT OF SETTLEMENT
26. The Class Representatives agree to file on behalf of the certified classes in Oster and the amended class in Dominguez, and all other Parties agree to support, a motion with the district court to request a fairness hearing pursuant to Federal Rule of Civil Procedure 23(e) and to seek the district court’s preliminary and final approvals of this Agreement in Oster and Dominguez. The Parties will cooperate in presenting this Agreement to the district court at the fairness hearings and will take all steps necessary to seek and obtain the district court’s approval.
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If the district court withholds its approval of this Agreement or the settlement for any reason, the Parties shall meet and confer to determine whether this Agreement can be amended or modified in a manner so as to secure the district court’s approval. If this is not attained, this Agreement shall be null and void.
27. If the district court approves the Agreement but an appeal is filed, the Parties shall meet and confer to discuss opposing that appeal. If an appeal results in the district court’s approval of the Agreement being overturned, the parties shall meet and confer to discuss next steps.
28. The Parties agree to stipulate and request district court approval for a proposed schedule, attached as Exhibit B and incorporated into this agreement as if fully set forth herein. The proposed schedule assumes that the district court will not require individually mailed notice. The Parties agree to meet and confer to discuss alternate dates in the event that any portion of the proposed schedule becomes impracticable or is not approved by the district court.
29. The Class Representatives, on behalf of the certified classes in Oster and the amended class in Dominguez, will propose to the district court, and all Parties agree to support, that the Classes be notified of the proposed settlement as set forth in the Class Notice Plan contained in Exhibit C to this Agreement.
30. Following enactment of the legislative language referenced in Exhibit A, without substantive alteration, and final approval of the Settlement Agreement by the district court, the Parties agree to jointly move to dismiss all appeals in Oster and Dominguez within 30 days after enactment of the legislation set forth in Exhibit A.
31. Within 30 days of the date that the appeals have been dismissed and the legislation enacted, the Parties agree to ask the district court to enter final judgment dismissing
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the Oster and Dominguez actions as to State Defendants, ordering the Parties to comply with the

Agreement, and retaining jurisdiction to enforce the provisions of the Agreement and fashion

remedies in the event that a Party violates the Agreement. The district court shall retain

jurisdiction for 30 months after the date of CMS approval or disapproval of the Assessment. A

copy of each of the Final Judgments, that the Parties agree to ask the district court to enter, is

attached hereto as Exhibit D.

X. ATTORNEYS’ FEES AND COSTS

32. Each Party will bear its own attorneys’ fees and costs, and no attorneys’ fees or

costs against any Party shall be awarded in Oster, Dominguez, or any appeals therefrom, or any

action to enforce the terms of this Agreement.

XI. SCOPE OF AGREEMENT

33. Upon final approval of this Agreement pursuant to Federal Rule of Civil

Procedure 23(e), Plaintiffs hereby release any and all claims, damages, liabilities, rights, and

complaints against State Defendants asserted in Oster and/or Dominguez, except for any claims

for enforcement of this Agreement. Plaintiffs agree not to bring or support any lawsuit

challenging any provisions of this Agreement. Plaintiffs reserve and are not waiving the right to

challenge, on any ground including those previously asserted in Oster and Dominguez, any of the

following acts that may occur after this Agreement is signed: any state reductions in

participation in IHSS wages and/or state approval of wage reductions in IHSS wages; any state

reductions of IHSS hours, services, or eligibility other that those set forth in this Agreement; and

any due process challenge to State Defendants’ notices of action or provision of hearing rights in

relation to IHSS services, assessments, or reassessments other than those required by this

Agreement.

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XII. NO ADMISSION OF LIABILITY OR WAIVER OF RIGHTS

34. State Defendants expressly deny each and all of the claims and contentions

alleged against them in these actions. Plaintiffs expressly contend that all claims for relief in

these actions are meritorious. This Agreement, anything contained herein, and any negotiations

or proceedings hereunder shall not be construed as or deemed to be an admission, presumption,

evidence of, or concession by any State Defendant of the truth of any fact alleged or the validity

of any claim which has or could have been asserted in this action, or of the deficiency of any

defense which has or could have been asserted in this action or of any wrongdoing or liability

whatsoever.

35. This Agreement, the fact of its existence, and any term thereof shall not be

construed as an admission by any State Defendant, or used as evidence against any State

Defendant, in any civil, criminal, or administrative action or proceeding except to the extent

necessary to enforce claims for a breach of this Agreement.

XIII. EFFECTIVE DATE OF SETTLEMENT AGREEMENT

36. The effective date of this Agreement shall be 30 days from entry of final

approval of this Agreement pursuant to Federal Rule of Civil Procedure 23(e) in Oster and

Dominguez.

XIV. ADDITIONAL PROVISIONS

37. This Agreement contains all of the terms and conditions agreed upon by the

Parties hereto, and no oral agreement entered into at any time nor any written agreement entered

into prior to the execution of this Agreement regarding the subject matter of this Agreement shall

be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained

herein.

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38. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by all Parties and approved by the court specifying its intent to modify this Agreement.
39. The Parties agree to use their best efforts to carry out the terms of the Agreement. At no time shall any of the Parties seek to solicit or encourage members of the Settlement Class to submit objections to the Agreement or to appeal from the order giving final approval to the Agreement.
40. All Parties to this Agreement, through their respective counsel, have participated in its drafting and, consequently, any ambiguity shall not be construed for or against any party.
41. This Agreement shall inure to the benefit of and be binding upon the legal representatives and any successor of any party hereto.
42. Each of the undersigned attorneys represents that he or she has been duly authorized to enter into this Agreement.
43. Each signatory to this Agreement represents and warrants that he/she is authorized to sign this Agreement and bind the party on behalf of whom he/she signs.
44. 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 to be the same as an original signature.
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Dominguez Class Counsel and Oster Class Counsel

Dominguez Class Counsel

Oster Class Counsel

Stephen P. Berzon Altshuler Berzon LLP

Melinda Bird Disability Rights California

Scott A. Kronland Altshuler Berzon LLP

Marilyn Holle Disability Rights California

Stacey M. Leyton Altshuler Berzon LLP

Sujatha Jagadeesh Branch Disability Rights California

Peder J. Thoreen Altshuler Berzon LLP

Dara L. Schur Disability Rights California

Anne N. Arkush Altshuler Berzon LLP

Anna Rich National Senior Citizen Law Center

Paula Pearlman Disability Rights Legal Center

Charles Wolfinger Law Office of Charles Wolfinger

Jane Perkins National Health Law Program

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EXHIBITA

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SEC. 1. Section 12301.01 is added to the Welfare and Institutions Code, to read:
12301.01. (a) (1) Notwithstanding any other provision of law, except as provided in subdivision (d), the department shall implement an eight (8) percent reduction in hours of service to each recipient of services under this article, which shall be applied to the recipient's hours as authorized pursuant to the most recent assessment. This reduction shall become effective July 1, 2013. This reduction shall be effective for 12 months. The reduction required by this section shall not preclude any reassessment to which a recipient would otherwise be entitled. However, hours authorized pursuant to a reassessment shall be subject to the 8 percent reduction required by this section.
(2) A request for reassessment based on the reduction required in paragraph (1) can be administratively denied by the county.
(3) A recipient of services under this article may direct the manner in which the reduction of hours is applied to the recipient's previously authorized services.
(4) For those individuals who have a documented unmet need, excluding protective supervision because of the limitations on authorized hours under Section 12303.4, the reduction shall be taken first from the documented unmet need.
(b) The reduction in hours of service pursuant to paragraph (1) of subdivision (a) shall cease to be implemented 12 months after the reduction takes effect.
(c) The notice of action informing the recipient of the reduction pursuant to subdivision (a) shall be mailed at least 10 days prior to the reduction going into effect. The notice of action shall be understandable to the recipient and translated into all languages spoken by a substantial number of the public served by the In-Home Supportive Services program, in accordance with Section 7295.2 of the Government Code. The notice shall not contain any recipient financial or confidential identifying information other than the recipient's name, address, and Case Management Information and Payroll System (CMIPS) client identification number, and shall include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction pursuant to subdivision (a) and the aggregate number of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the reduction of authorized hours is applied to the recipient's previously authorized services.
(3) A county shall assess a recipient's need for supportive service any time that the recipient notifies the county of a need to adjust the supportive services hours authorized, or when there are other indications or expectations of a change in circumstances affecting the recipient's need for supportive services. Counties shall not require recipients to submit a medical certification form or a doctor’s note to show evidence of a change in the recipient’s circumstances.
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(d) A recipient shall have all appeal rights otherwise provided for under Chapter 7 (commencing with Section 10950) of Part 2.
SEC. 2. Section 12301.02 is added to the Welfare and Institutions Code, to read:
12301.02. (a) (1) Notwithstanding any other provision of law, except as provided in subdivision (c), the department shall implement a seven (7) percent reduction in hours of service to each recipient of services under this article, which shall be applied to the recipient’s hours as authorized pursuant to the most recent assessment. This reduction shall become effective 12 months after the implementation of the reduction set forth in Section 12301.01. The reduction required by this section shall not preclude any reassessment to which a recipient would otherwise be entitled. However, hours authorized pursuant to a reassessment shall be subject to the 7 percent reduction required by this section.
(2) A request for reassessment based on the reduction required in paragraph (1) can be administratively denied by the county.
(3) A recipient of services under this article may direct the manner in which the reduction of hours is applied to the recipient's previously authorized services.
(4) For those individuals who have a documented unmet need, excluding protective supervision because of the limitations on authorized hours under Section 12303.4, the reduction shall be taken first from the documented unmet need.
(b) The notice of action informing the recipient of the reduction pursuant to subdivision (a) shall be mailed at least 20 days prior to the reduction going into effect. The notice of action shall be understandable to the recipient and translated into all languages spoken by a substantial number of the public served by the In-Home Supportive Services program, in accordance with Section 7295.2 of the Government Code. The notice shall not contain any recipient financial or confidential identifying information other than the recipient's name, address, and Case Management Information and Payroll System (CMIPS) client identification number, and shall include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction pursuant to subdivision (a) and the aggregate number of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the reduction of authorized hours is applied to the recipient's previously authorized services.
(3) A county shall assess a recipient's need for supportive service any time that the recipient notifies the county of a need to adjust the supportive services hours authorized, or when there are other indications or expectations of a change in circumstances affecting the recipient's need for supportive services. Counties shall not require recipients to submit a medical certification form or a doctor’s note to show evidence of a change in the recipient’s circumstances.
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(c) A recipient shall have all appeal rights otherwise provided for under Chapter 7 (commencing with Section 10950) of Part 2.
(d) The reduction specified in paragraph (1) of subdivision (a) shall be ongoing and may be adjusted pursuant to Section 12YYY.
SEC. 3. Section 12YYY is added to the Welfare and Institutions Code, to read:
12YYY. (a) It is the intent of this Section to offset the reductions described in Section 12301.02 to the extent that an assessment as described in Section 12XXX provides General Fund savings. This section shall become operative only upon the certification by the Department of Health Care Services as described in of Section 12XXX.
(b) Within 30 days after receipt of the certification described in 12XXX, the Director of Finance shall perform the obligations described in this subdivision for the fiscal year in which the certification is received and for the following fiscal year. Specifically, the Director of Finance shall:
(1) Estimate the total amount of additional funding, less refunds, that will be derived from the assessment for the next fiscal year.
(2) Estimate the amount of the total revenues, if any, that are attributable to any permitted retroactive implementation of the assessment.
(3) Estimate the amount of the total General Fund savings generated by the assessment revenues that remain after taking into account reductions such as the revenues attributable to any retroactive application of the assessment that will be allocated pursuant to section 12ZZZ, and any General Fund costs associated with establishment and administration of the assessment.
(4) Calculate, as a percentage, the amount by which the reduction described in section 12301.02 is offset by General Fund savings. In making this calculation the Director of Finance shall estimate the amount of the reduction that may be partially or completely offset. If the estimated General Fund savings from the assessment are less than the amount required to fully offset the reduction pursuant to Section 12301.02, then the percentage offset shall be proportionate to the level of General Fund savings. At no point may the reduction pursuant to Section 12301.02 become negative or go below zero.
(5) Notify the Joint Legislative Budget Committee of the determinations made in paragraphs (1)-(4).
(c) On or before May 14, prior to the third fiscal year after the certification described in 14XXX is received, the Director of Finance shall perform the activities described in paragraphs (1)-(5) of subdivision (b).
(d) Within 10 days of the effective date of any federal change or action that prevents or reduces the amount of General Fund savings received from the assessment, the Director of Health Care Services shall provide a notification to the Joint Legislative Budget Committee and the Director
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of Finance of such a change. Within 30 days of the receipt of this notification, the Director of Finance shall perform the activities described in paragraphs (1)-(5) of subdivision (b).
(e) Notwithstanding any provision of Section 12301.02, the reduction of services required by Section 12301.02 shall be mitigated by the percentage offset determined by the Director of Finance in paragraph (4) of subdivision (b) of this Section.
(f)(1) Any change in the percentage reduction of services as provided in Section 12301.02 shall occur on the first day of the first full month occurring 30 days after the determination provided for in subdivision (b) is made by the Director of Finance.
(2) Any change in the percentage reduction of services as provided in Section 12301.02 due to a determination of the Director of Finance required by subdivision (c) shall occur on July 1 of the fiscal year immediately following the determination.
(3) If a change in the percentage reduction of services as provided in Section 12301.02 is triggered based on a determination of the Director of Finance required by subdivision (d), that change in hours of service shall occur on July 1 after the notification referenced in subdivision (d) from the Director of Health Care Services is received, if the notification is received between the preceding September 30 and January 2. If the notification is received on any other date, then a change in hours shall occur on the first of the month that is nine months after the notification is received.
(g) In preparation of every Governor’s Budget and for every May Revision the Director of Finance shall perform the obligation described in paragraph (1)-(3) of subdivision (b).
SEC. 4 Section 12ZZZ is added to the Welfare and Institutions Code, to read:
12ZZZ. (a) There is hereby created in the State Treasury an In-Home Supportive Services Reinvestment Fund (“Fund”), which shall receive monies to the extent that an assessment described in Section 12XXX is implemented retroactively.
(b) The Fund shall be used to provide goods or services for one-time direct reinvestments benefiting IHSS recipients.
(c) The Fund shall be used in a manner that does not create ongoing General Fund obligations.
(d) Pursuant to 12YYY, the Director of the Department of Finance shall estimate the amount of retroactive fee due to the Fund. In each fiscal year for which there are estimated retroactive revenues, the Director of Finance shall provide the State Controller a schedule of what portion of the fee shall be deposited in the Fund.
(e) Notwithstanding Government Code Section 13340, the Fund is continuously appropriated to the Department of Social Services to be reinvested, following consultation with plaintiffs in the lawsuits identified below, for the benefit of IHSS recipients in compliance with the requirements in this section and those in the settlement agreement pertaining to Oster v. Lightbourne, N.D.
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Cal., Case No. CV 09-04668 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 1215366; and Dominguez v. Brown, N.D. Cal., Case No. CV 09-02306 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 09-16359. At least thirty days prior to allocating any funds pursuant to this section, the Department of Social Services shall provide an expenditure plan to the Joint Legislative Budget Committee.
SEC. 5. Section 12301.07 of the Welfare and Institutions Code is repealed.
12301.07. (a) (1) Notwithstanding any other provision of law, if subdivision (b) of Section 3.94 of the Budget Act of 2011 is operative, the department shall implement a 20-percent reduction in authorized hours of service to each in-home supportive services recipient as specified in this section, effective January 1, 2012, which shall be applied to the recipient's hours as authorized pursuant to his or her most recent assessment.
(2) The reduction required by this section shall not preclude any reassessment to which a recipient would otherwise be entitled. However, hours authorized pursuant to a reassessment shall be subject to the reduction required by this section.
(3) For those recipients who have a documented unmet need, excluding protective supervision, because of the limitations contained in Section 12303.4, this reduction shall be applied first to the unmet need before being applied to the authorized hours. If the recipient believes he or she will be at serious risk of out-of-home placement as a consequence of the reduction, the recipient may apply for a restoration of the reduction of authorized service hours, pursuant to subdivision (f).
(4) A recipient of services under this article may direct the manner in which the reduction of hours is applied to the recipient's previously authorized services.
(5) The reduction in service hours made pursuant to paragraph (1) shall not apply to in-home supportive services recipients who also receive services under Section 9560, subdivision (t) of Section 14132, and Section 14132.99.
(b) The department shall work with the counties to develop a process to allow for counties to preapprove IHSS Care Supplements described in subdivision (f), to the extent that the process is permissible under federal law. The preapproval process shall be subject to the following conditions:
(1) The preapproval process shall rely on the criteria for assessing IHSS Care Supplement applications, developed pursuant to subdivision (f).
(2) Preapproval shall be granted only to individuals who would otherwise be granted a full restoration of their hours pursuant to
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subdivision (f). (3) With respect to existing recipients as of the effective date
of this section, all efforts shall be made to ensure that counties complete the process on or before a specific date, as determined by the department, in consultation with counties in order to allow for the production, printing, and mailing of notices to be issued to remaining recipients who are not granted preapproval and who thereby are subject to the reduction pursuant to this section.
(4) The department shall work with counties to determine how to apply a preapproval process with respect to new applicants to the IHSS program who apply after the effective date of this section.
(c) The notice of action informing each recipient who is not preapproved for an IHSS Care Supplement pursuant to subdivision (b) shall be mailed at least 15 days prior to the reduction going into effect. The notice of action shall be understandable to the recipient and translated into all languages spoken by a substantial number of the public served by the In-Home Supportive Services program, in accordance with Section 7295.2 of the Government Code. The notice shall not contain any recipient financial or confidential identifying information other than the recipient's name, address, and Case Management Information and Payroll System (CMIPS) client identification number, and shall include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction pursuant to paragraph (1) of subdivision (a) and the aggregate number of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the reduction of authorized hours is applied to the recipient's previously authorized services.
(3) How all or part of the reduction may be restored, as set forth in subdivision (f), if the recipient believes he or she will be at serious risk of out-of-home placement as a consequence of the reduction.
(d) The department shall inform providers of any reduction to recipient hours through a statement on provider timesheets, after consultation with counties.
(e) The IHSS Care Supplement application process described in subdivision (f) shall be completed before a request for a state hearing is submitted. If the IHSS Care Supplement application is filed within 15 days of the notice of action required by subdivision (c), or before the effective date of the reduction, the recipient shall be eligible for aid paid pending. A revised notice of action shall be issued by the county following evaluation of the IHSS Care Supplement application.
(f) (1) Any aged, blind, or disabled individual who is eligible for services under this article who receives a notice of action
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indicating that his or her services will be reduced under subdivision (a) but who believes he or she is at serious risk of out-of-home placement unless all or part of the reduction is restored may submit an IHSS Care Supplement application. When a recipient submits an IHSS Care Supplement application within 15 days of receiving the reduction notice or prior to the implementation of the reduction, the recipient's in-home supportive services shall continue at the level authorized by the most recent assessment, prior to any reduction, until the county finds that the recipient does or does not require restoration of any hours through the IHSS Care Supplement. If the recipient disagrees with the county's determination concerning the need for the IHSS Care Supplement, the recipient may request a hearing on that determination.
(2) The department shall develop an assessment tool, in consultation with stakeholders, to be used by the counties to determine if a recipient is at serious risk of out-of-home placement as a consequence of the reduction of services pursuant to this section. The assessment tool shall be developed utilizing standard of care criteria for relevant out-of-home placements that serve individuals who are aged, blind, or who have disabilities and who would qualify for IHSS if living at home, including, but not limited to, criteria set forth in Chapter 7.0 of the Manual of Criteria for Medi-Cal Authorization published by the State Department of Health Care Services, as amended April 15, 2004, and the IHSS uniform assessment guidelines.
(3) Counties shall give a high priority to prompt screening of persons specified in this section to determine their need for an IHSS Care Supplement.
(g) (1) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the department may implement and administer this section through all-county letters or similar instruction from the department until regulations are adopted. The department shall adopt emergency regulations implementing this section no later than March 1, 2013. The department may readopt any emergency regulation authorized by this section that is the same as or substantially equivalent to an emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing this section and one readoption of emergency regulations authorized by this subdivision shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Initial emergency regulations and the one readoption of emergency regulations authorized by this section shall be exempt from review by the Office of Administrative Law. The initial emergency regulations and the one readoption of emergency regulations
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authorized by this section shall be submitted to the Office of Administrative Law for filing with the Secretary of State and each shall remain in effect for no more than 180 days, by which time final regulations may be adopted.
(h) If the Director of Health Care Services determines that federal approval is necessary to implement this section, this section shall be implemented only after any state plan amendments required pursuant to Section 14132.95 are approved.
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Operative if CCI is Operative
SEC. 6. Section 12306.1 of the Welfare and Institutions Code is amended to read:
12306.1. (a) When any increase in provider wages or benefits is negotiated or agreed to by a public authority or nonprofit consortium under Section 12301.6, then the county shall use county-only funds to fund both the county share and the state share, including employment taxes, of any increase in the cost of the program, unless otherwise provided for in the annual Budget Act or appropriated by statute. No increase in wages or benefits negotiated or agreed to pursuant to this section shall take effect unless and until, prior to its implementation, the department has obtained the approval of the State Department of Health Care Services for the increase pursuant to a determination that it is consistent with federal law and to ensure federal financial participation for the services under Title XIX of the federal Social Security Act, and unless and until all of the following conditions have been met:
(1) Each county has provided the department with documentation of the approval of the county board of supervisors of the proposed public authority or nonprofit consortium rate, including wages and related expenditures. The documentation shall be received by the department before the department and the State Department of Health Care Services may approve the increase.
(2) Each county has met department guidelines and regulatory requirements as a condition of receiving state participation in the rate.
(b) Any rate approved pursuant to subdivision (a) shall take effect commencing on the first day of the month subsequent to the month in which final approval is received from the department. The department may grant approval on a conditional basis, subject to the availability of funding.
(c) The state shall pay 65 percent, and each county shall pay 35 percent, of the nonfederal share of wage and benefit increases negotiated by a public authority or nonprofit consortium pursuant to Section 12301.6 and associated employment taxes, only in accordance with subdivisions (d) to (f), inclusive.
(d) (1) The state shall participate as provided in subdivision (c) in wages up to seven dollars and fifty cents ($7.50) per hour and individual health benefits up to sixty cents ($0.60) per hour for all public authority or nonprofit consortium providers. This paragraph shall be operative for the 2000-01 fiscal year and each year thereafter unless otherwise provided in paragraphs (2), (3), (4), and (5), and without regard to when the wage and benefit increase becomes effective.
(2) The state shall participate as provided in subdivision (c) in
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a total of wages and individual health benefits up to nine dollars and ten cents ($9.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the nine dollars and ten cents ($9.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative for the 2001-02 fiscal year and each fiscal year thereafter, unless otherwise provided in paragraphs (3), (4), and (5).
(3) The state shall participate as provided in subdivision (c) in a total of wages and individual health benefits up to ten dollars and ten cents ($10.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the ten dollars and ten cents ($10.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative commencing with the next state fiscal year for which the May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenue, excluding transfers, for the year in which paragraph (2) became operative.
(4) The state shall participate as provided in subdivision (c) in a total of wages and individual health benefits up to eleven dollars and ten cents ($11.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the eleven dollars and ten cents ($11.10) per hour shall be used to fund wage increases or individual health benefits, or both. This paragraph shall be operative commencing with the next state fiscal year for which the May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenues, excluding transfers, for the year in which paragraph (3) became operative.
(5) The state shall participate as provided in subdivision (c) in a total cost of wages and individual health benefits up to twelve dollars and ten cents ($12.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the twelve dollars and ten cents ($12.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative commencing with the next state fiscal year for which the
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May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenues, excluding transfers, for the year in which paragraph (4) became operative.
(6) Notwithstanding paragraphs (2) to (5), inclusive, the state shall participate as provided in subdivision (c) in a total cost of wages up to nine dollars and fifty cents ($9.50) per hour and in individual health benefits up to sixty cents ($0.60) per hour. This paragraph shall become operative on July 1, 2009.
(7) (A) The Legislature finds and declares that injunctions issued by the courts have prevented the state from implementing the changes described in paragraph (6) during the pendency of litigation. To avoid confusion for providers, recipients, and other stakeholders, it is therefore the intent of the Legislature to temporarily suspend the reductions described in that paragraph until July 1, 2012, to allow the litigation to reach a final result.
(B) Paragraph (6) shall not be implemented until July 1, 2012, and as of that date shall only be implemented if a court of competent jurisdiction has issued an order, that is not subject to appeal or for which the time to appeal has expired, upholding its validity.
(e) (1) On or before May 14 immediately prior to the fiscal year for which state participation is provided under paragraphs (2) to (5), inclusive, of subdivision (d), the Director of Finance shall certify to the Governor, the appropriate committees of the Legislature, and the department that the condition for each subdivision to become operative has been met.
(2) For purposes of certifications under paragraph (1), the General Fund revenue forecast, excluding transfers, that is used for the relevant fiscal year shall be calculated in a manner that is consistent with the definition of General Fund revenues, excluding transfers, that was used by the Department of Finance in the 2000-01 Governor's Budget revenue forecast as reflected on Schedule 8 of the Governor's Budget.
(f) Any increase in overall state participation in wage and benefit increases under paragraphs (2) to (5), inclusive, of subdivision (d), shall be limited to a wage and benefit increase of one dollar ($1) per hour with respect to any fiscal year. With respect to actual changes in specific wages and health benefits negotiated through the collective bargaining process, the state shall participate in the costs, as approved in subdivision (c), up to the maximum levels as provided under paragraphs (2) to (5)(6), inclusive, of subdivision (d).
(g) For the period during which Section 12306.15 is operative, each county's share of the costs of negotiated wage and benefit increases specified in subdivision (c) shall remain, but the County IHSS Maintenance of Effort pursuant to Section 12306.15 shall be in
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lieu of that share. (h) This section shall become inoperative only if Chapter 45 of
the Statutes of 2012 is deemed inoperative pursuant to Section 15 of that chapter.
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Operative if CCI is Inoperative
SEC. 7. Section 12306.1 of the Welfare and Institutions Code is amended to read:
12306.1. (a) When any increase in provider wages or benefits is negotiated or agreed to by a public authority or nonprofit consortium under Section 12301.6, then the county shall use county-only funds to fund both the county share and the state share, including employment taxes, of any increase in the cost of the program, unless otherwise provided for in the annual Budget Act or appropriated by statute. No increase in wages or benefits negotiated or agreed to pursuant to this section shall take effect unless and until, prior to its implementation, the department has obtained the approval of the State Department of Health Care Services for the increase pursuant to a determination that it is consistent with federal law and to ensure federal financial participation for the services under Title XIX of the federal Social Security Act, and unless and until all of the following conditions have been met:
(1) Each county has provided the department with documentation of the approval of the county board of supervisors of the proposed public authority or nonprofit consortium rate, including wages and related expenditures. The documentation shall be received by the department before the department and the State Department of Health Care Services may approve the increase.
(2) Each county has met department guidelines and regulatory requirements as a condition of receiving state participation in the rate.
(b) Any rate approved pursuant to subdivision (a) shall take effect commencing on the first day of the month subsequent to the month in which final approval is received from the department. The department may grant approval on a conditional basis, subject to the availability of funding.
(c) The state shall pay 65 percent, and each county shall pay 35 percent, of the nonfederal share of wage and benefit increases negotiated by a public authority or nonprofit consortium pursuant to Section 12301.6 and associated employment taxes, only in accordance with subdivisions (d) to (f), inclusive.
(d) (1) The state shall participate as provided in subdivision (c) in wages up to seven dollars and fifty cents ($7.50) per hour and individual health benefits up to sixty cents ($0.60) per hour for all public authority or nonprofit consortium providers. This paragraph shall be operative for the 2000-01 fiscal year and each year thereafter unless otherwise provided in paragraphs (2), (3), (4), and (5), and without regard to when the wage and benefit increase becomes effective.
(2) The state shall participate as provided in subdivision (c) in
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a total of wages and individual health benefits up to nine dollars and ten cents ($9.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the nine dollars and ten cents ($9.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative for the 2001-02 fiscal year and each fiscal year thereafter, unless otherwise provided in paragraphs (3), (4), and (5).
(3) The state shall participate as provided in subdivision (c) in a total of wages and individual health benefits up to ten dollars and ten cents ($10.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the ten dollars and ten cents ($10.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative commencing with the next state fiscal year for which the May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenue, excluding transfers, for the year in which paragraph (2) became operative.
(4) The state shall participate as provided in subdivision (c) in a total of wages and individual health benefits up to eleven dollars and ten cents ($11.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the eleven dollars and ten cents ($11.10) per hour shall be used to fund wage increases or individual health benefits, or both. This paragraph shall be operative commencing with the next state fiscal year for which the May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenues, excluding transfers, for the year in which paragraph (3) became operative.
(5) The state shall participate as provided in subdivision (c) in a total cost of wages and individual health benefits up to twelve dollars and ten cents ($12.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the twelve dollars and ten cents ($12.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative commencing with the next state fiscal year for which the
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May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenues, excluding transfers, for the year in which paragraph (4) became operative.
(6) Notwithstanding paragraphs (2) to (5), inclusive, the state shall participate as provided in subdivision (c) in a total cost of wages up to nine dollars and fifty cents ($9.50) per hour and in individual health benefits up to sixty cents ($0.60) per hour. This paragraph shall become operative on July 1, 2009.
(7) (A) The Legislature finds and declares that injunctions issued by the courts have prevented the state from implementing the changes described in paragraph (6) during the pendency of litigation. To avoid confusion for providers, recipients, and other stakeholders, it is therefore the intent of the Legislature to temporarily suspend the reductions described in that paragraph until July 1, 2012, to allow the litigation to reach a final result.
(B) Paragraph (6) shall not be implemented until July 1, 2012, and as of that date shall only be implemented if a court of competent jurisdiction has issued an order, that is not subject to appeal or for which the time to appeal has expired, upholding its validity.
(e) (1) On or before May 14 immediately prior to the fiscal year for which state participation is provided under paragraphs (2) to (5), inclusive, of subdivision (d), the Director of Finance shall certify to the Governor, the appropriate committees of the Legislature, and the department that the condition for each subdivision to become operative has been met.
(2) For purposes of certifications under paragraph (1), the General Fund revenue forecast, excluding transfers, that is used for the relevant fiscal year shall be calculated in a manner that is consistent with the definition of General Fund revenues, excluding transfers, that was used by the Department of Finance in the 2000-01 Governor's Budget revenue forecast as reflected on Schedule 8 of the Governor's Budget.
(f) Any increase in overall state participation in wage and benefit increases under paragraphs (2) to (5), inclusive, of subdivision (d), shall be limited to a wage and benefit increase of one dollar ($1) per hour with respect to any fiscal year. With respect to actual changes in specific wages and health benefits negotiated through the collective bargaining process, the state shall participate in the costs, as approved in subdivision (c), up to the maximum levels as provided under paragraphs (2) to (5)(6), inclusive, of subdivision (d).
(g) This section shall become operative only if Chapter 45 of the Statutes of 2012 is deemed inoperative pursuant to Section 15 of that chapter.
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SEC.8. Section 12309 of the Welfare and Institutions Code is amended to read:
12309. (a) In order to assure that in-home supportive services are delivered in all counties in a uniform manner, the department shall develop a uniform needs assessment tool.
(b) (1) Each county shall, in administering this article, use the uniform needs assessment tool developed pursuant to subdivision (a) in collecting and evaluating information.
(2) For purposes of paragraph (1), "information" includes, but is not limited to, all of the following:
(A) The recipient's living environment. (B) Alternative resources. (C) The recipient's functional abilities. (c) (1) The uniform needs assessment tool developed pursuant to subdivision (a) shall evaluate the recipient's functioning in activities of daily living and instrumental activities of daily living. (2) The recipient's functioning shall be quantified, using the general hierarchical five-point scale for ranking each function, as specified in subdivision (d). (d) The recipient's functioning ranks shall be as follows: (1) Rank one. A recipient's functioning shall be classified as rank one if his or her functioning is independent, and he or she is able to perform the function without human assistance, although the recipient may have difficulty in performing the function, but the completion of the function, with or without a device or mobility aid, poses no substantial risk to his or her safety. (2) Rank two. A recipient's functioning shall be classified as rank two if he or she is able to perform a function, but needs verbal assistance, such as reminding, guidance, or encouragement. (3) Rank three. A recipient's functioning shall be classified as rank three if he or she can perform the function with some human assistance, including, but not limited to, direct physical assistance from a provider. (4) Rank four. A recipient's functioning shall be classified as rank four if he or she can perform a function, but only with substantial human assistance. (5) Rank five. A recipient's functioning shall be classified as rank five if he or she cannot perform the function, with or without human assistance. (e) (1) Notwithstanding any other law, and effective September 1, 2009, individuals shall be eligible for each domestic or related service only if assessed at a rank four or five, as defined in subdivision (d), in the activity of daily living relating to that service. The activities of daily living that relate to domestic and related services are defined in regulations and include housework,
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laundry, shopping and errands, meal preparation, and meal cleanup. The rank for each domestic and related service shall be determined based on an assessment of need for supportive services by the county, in accordance with this section and the hourly task guidelines as defined by Section 12301.2. This paragraph does not apply to individuals meeting one of the conditions specified in paragraph (2).
(2) Paragraph (1) shall not apply to individuals authorized to receive either protective supervision pursuant to subdivision (b) of Section 12300 and Section 12301.21 or paramedical services pursuant to Section 12300.1, or to individuals authorized to receive over 120 hours of services per month.
(3) To the extent necessary to maintain federal financial participation, the director may waive any or all of the provisions of paragraph (2), after consultation with the State Department of Health Care Services.
(f) A recipient shall be assigned a functional index score. The functional index score for a recipient shall be a weighted average based on the individual functional index rankings, as described in subdivision (d), to provide a single measure of a recipient's relative dependence on human assistance for performance of activities of daily living that are used in the assessment of services provided pursuant to this article.
(g) (1) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) the department may implement and administer this section through all-county letters or similar instruction from the department until regulations are adopted. The department shall adopt emergency regulations implementing this section no later than July 1, 2010. The department may readopt any emergency regulation authorized by this section that is the same as or substantially equivalent to an emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing this section and one readoption of emergency regulations shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Initial emergency regulations and the one readoption of emergency regulations authorized by this subdivision shall be exempt from review and approval by the Office of Administrative Law. The initial emergency regulations and the one readoption of emergency regulations authorized by this subdivision shall be submitted to the Office of Administrative Law for filing with the Secretary of State and each shall remain in effect for no more than 180 days, by which time final regulations may be adopted.
(h) Subdivisions (e), (f), and (g) shall become operative on September 1, 2009.
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(i) (1) The Legislature finds and declares that injunctions issued by the courts have prevented the state from implementing the changes described in subdivisions (e), (f), and (g) during the pendency of litigation. To avoid confusion for providers, recipients, and other stakeholders, it is therefore the intent of the Legislature to temporarily suspend the reductions described in those subdivisions until July 1, 2012, to allow the litigation to reach a final result.
(2) Notwithstanding subdivision (h) or any other provision of law, subdivisions (e), (f), and (g) shall not be implemented until July 1, 2012, and as by that date shall only be implemented if a court of competent jurisdiction has issued an order, that is not subject to appeal or for which the time to appeal has expired, upholding their validity.
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SEC. 9. Section 12309.2 of the Welfare and Institutions Code is repealed:
12309.2. (a) Notwithstanding any other law, except as provided in subdivision (b), and pursuant to subdivision (e) of Section 12309, and effective September 1, 2009, eligibility for in-home supportive services provided pursuant to Article 7 (commencing with Section 12300) of Chapter 3 shall also include functional index scores calculated pursuant to subdivision (f) of Section 12309, as follows:
(1) Individuals with a functional index score of 2.0 and above shall be eligible to receive all appropriate in-home supportive services provided pursuant to this article.
(2) Individuals with a functional index score below 2.0 shall not be eligible for any in-home supportive services provided pursuant to this article.
(3) Paragraph (2) shall not apply to individuals authorized to receive protective supervision pursuant to subdivision (b) of Section 12300 and Section 12301.21 or paramedical services pursuant to Section 12300.1, or to individuals authorized to receive over 120 hours of services per month pursuant to Section 12301.2.
(4) To the extent necessary to maintain federal financial participation, the director may waive any or all of the provisions of paragraph (3), after consultation with the State Department of Health Care Services.
(b) The department shall modify the notice of action forms to inform individuals whose hours are reduced or for whom eligibility is eliminated by the changes made to Section 12309 or this section by the act adding this section of their functional rank and functional index score. The form shall be modified no later than September 1, 2009.
(c) (1) Notwithstanding the rulemaking provisions of the Administrative Procedure Act, Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department may implement and administer this section through all-county letters or similar instruction from the department until regulations are adopted. The department shall adopt emergency regulations implementing this section no later than July 1, 2010. The department may readopt any emergency regulation authorized by this section that is the same as or substantially equivalent to an emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing this section and the one readoption of emergency regulations authorized by this subdivision shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Initial emergency regulations and the one readoption of emergency regulations authorized by this section shall be exempt from review and approval by the Office of
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Administrative Law. The initial emergency regulations and the one readoption of emergency regulations authorized by this section shall be submitted to the Office of Administrative Law for filing with the Secretary of State and each shall remain in effect for no more than 180 days, by which time final regulations may be adopted.
(d) This section shall become operative on September 1, 2009. (e) (1) The Legislature finds and declares that injunctions issued by the courts have prevented the state from implementing the changes described in this section during the pendency of litigation. To avoid confusion for providers, recipients, and other stakeholders, it is therefore the intent of the Legislature to temporarily suspend the reductions described in this section until July 1, 2012, to allow the litigation to reach a final result. (2) Notwithstanding subdivision (d) or any other provision of law, this section shall not be implemented until July 1, 2012, and as of that date shall only be implemented if a court of competent jurisdiction has issued an order, that is not subject to appeal or for which the time to appeal has expired, upholding its validity.
SEC. 10. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the Department of Health Care Services and the Department of Social Services, without taking any further regulatory action, shall implement, interpret, or make specific this act by means of all-county letters, plan letters, plan or provider bulletins, or similar instructions.
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EXHIBITB

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Proposed Schedule re Court Approval of Settlement and Implementation of 8% Reduction1

July 1

Implementation of 8% reduction

June 10

Notices (NOA) to IHSS Recipients re 8% reduction begin to roll out May 23 Hearing re Final Approval of Settlement (sooner if court will agree)

May 10

Parties to respond to objections; Plaintiffs to file Motion for Final Approval

May 9

Deadline for finalizing NOA [Draft NOA to be circulated to plaintiffs sometime in April]

May 9

Deadline for finalizing ACL

May 24

Legislation re 8% reduction from July 1, 2013-June 30, 2014; 7% reduction July 1, 2014-ongoing subject to trigger (necessary to provide recipients with notice by June 20); repeal of challenged statutes

May 3

Objections due

April 5

Notice to Class

April 4

Hearing re Motion for Preliminary Approval

March 28 File Motion for Preliminary Approval

1 Presuming not individual notice.

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page43 of 62
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Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page44 of 62
NOTICE OF IHSS CLASS ACTION SETTLEMENTS
This notice is about the proposed settlements of two class action lawsuits. It is about In-Home Supportive Services (IHSS).
ABOUT THE LAWSUITS
In 2009, the State of California passed a law to stop all IHSS services to about 30,000 people. The law would have cut hours for help with meals, house cleaning and other home care to another 100,000 people. In 2011, the state passed another law to cut IHSS hours by 20% for many more people. (Some recipients might have been able to get their hours back if they could prove they were at serious risk of out of home placement.)
David Oster and other IHSS recipients, as well as labor unions for IHSS workers, filed a lawsuit about these cuts in IHSS hours. The defendants are state officials. The lawsuit is called Oster.
In 2009, the State also passed a law to cut funding when an IHSS worker makes more than $9.50 per hour.
IHSS recipients and labor unions for IHSS workers filed a lawsuit about the wage cuts. The defendants are state officials. The lawsuit is called Dominguez.
A court in Oakland temporarily stopped the cuts in both cases in 2009 and 2011. The State asked higher courts to let it go ahead with the IHSS cuts. No one can tell how the higher courts might rule. No one can tell if the court in Oakland would stop the cuts forever.
ABOUT THE SETTLEMENTS
The state has agreed to get rid of the IHSS cuts from 2009 and 2011. These cuts will never go into effect.
x There will be no 20% cut in IHSS hours. There will be a one-year cut of 8% starting around July 1, 2013. This is a cut of 4.4% below current hours because there is already a cut of 3.6% that is not part of these lawsuits. (3.6% + 4.4% = 8%).
1

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page45 of 62

x Around July 2014 the cut in IHSS hours go down to 7%. This is a cut of 3.4% on top of the 3.6% current cut.
x You can ask the county for extra hours if your circumstances change. x There will be no cuts in State funding for IHSS wages.

The State agreed to ask the federal government for extra money for the IHSS program from a new assessment. The State could end the 7% cut as early as 2015 if this is allowed.

These are class action lawsuits. You are a class member in the Oster case if you would have gotten a notice of action about IHSS cuts in 2009 or 2011. You are a class member in the Dominguez case if you get IHSS and live in any of these counties:

Alameda. Los Angeles. Mendocino. Riverside. San Joaquin. Santa Clara. Yolo.

Calaveras. Madera. Monterey. Sacramento. San Luis Obispo. Santa Cruz. Yuba.

Contra Costa. Marin. Napa. San Benito. San Mateo. Solano.

Fresno. Mariposa. Placer. San Francisco. Santa Barbara. Sonoma.

As part of the settlements, class members in the two cases cannot file a lawsuit about the 8% or 7% cuts.

IF YOU WANT MORE DETAILS:

There are different sets of lawyers representing IHSS class members in the Oster case and in the Dominguez case. Together they are called the IHSS Settlement Lawyers. You can get a list of these lawyers, a copy of the settlement agreement and more details about the settlements from your county welfare office. You can also get details from your county public authority. You can also get details from these websites: www.disabilityrightsca.org, www.altshulerberzon.com, www.DHCS.gov, and www.CDSS.gov.

2

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page46 of 62
To ask questions about the settlements or this notice, you can: (1) Leave a message for the IHSS Settlement Lawyers at 1-800XXXXXXX. (2) Send a letter to the IHSS Settlement Lawyers at P.O. Box XXX, City of XXXXX, CA 900XX. (3) Send an email to: IHSSsettlement@gmail.com.
IF YOU DO NOT OBJECT TO THE SETTLEMENTS: You do not have to do anything.
IF YOU OBJECT TO THE SETTLEMENTS: You must mail a statement about why you object to the settlements. The deadline is May 3, 2013. Mail your objection to both: 1. Gregory Brown, Office of the Attorney General, 455 Golden Gate Avenue 11th Floor, San Francisco, California 94102 2. IHSS Settlement Lawyers, PO Box XXX, City of XXXXX, CA 900XX. You must mail your objection by the deadline. You cannot object to these settlements later. The court in Oakland will also hold a hearing about the settlements at XXX pm on May 24, 2013. The address for the court is U.S. Federal District Court, Courtroom 2 1301 Clay Street, 4th Floor Oakland California 94612
You can get more details about the hearing from the places listed above.
3

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page47 of 62
NOTICE ABOUT IN-HOME SUPPORTIVE SERVICES (IHSS)
Settlement of IHSS lawsuits
In 2009, the State of California tried to cut IHSS domestic and related hours. In 2011, the State tried to cut IHSS hours by 20%. In 2009, the State tried to cut funds for IHSS workers who make more than $9.50 an hour.
IHSS recipients and labor unions filed lawsuits. They won temporary orders stopping the cuts. The State appealed the lawsuits. No one knows if the courts would allow the cuts or not. Now there is a settlement. If the court approves the settlement:
x There will be no 20% cut in IHSS hours. There will be a one-year cut of 8% starting around July 1, 2013. This is 4.4% below current hours because there is already a cut of 3.6% that is not part of these lawsuits. (3.6% + 4.4% = 8%).
x Around July 2014, the cut in IHSS hours will go down to 7%. (3.4% on top of the 3.6% current cut).
x There will be no cuts in State funding for IHSS wages. x You can ask the county for extra hours if your circumstances change.
TO GET MORE DETAILS OR FILE AN OBJECTION WITH THE COURT: You can get a copy of the class notice and the settlement agreement from your county welfare office or public authority. Also, you can get details at these websites: www.disabilityrightsca.org, www.altshulerberzon.com, www.DHCS.gov, and www.CDSS.gov.
You can also leave a message for the lawyers representing IHSS recipients at 1-800-XXXXXXX.
THE DEADLINE TO OBJECT TO THE SETTLEMENT IS MAY 3, 2013.
You don’t have to do anything if you do not object to the settlement.

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page48 of 62
OSTER/DOMINGUEZ SETTLEMENT
PLAN FOR CLASS NOTICE AND TO RESPOND TO OBJECTIONS
A. PLAN FOR CLASS NOTICE
1. The parties have agreed that three documents will be available to inform IHSS recipients, their family members and those who work with and assist them. These documents, collectively referred to as “settlement materials,” are: a. One page flyer/poster b. Class notice – 3 pages 1. The one page flyer and three page class notice will be available in English and 12 other languages. To expedite the translation process, one of the Union Plaintiffs, SEIUUTLCW, will arrange translations within two days of approval, subject to reimbursement from state defendants. 2. The class notice and other settlement materials will be available in alternative formats for IHSS recipients with visual impairments, per Paragraph 3 below. c. Settlement Agreement with all exhibits
2. CDSS and CDHCS will post all settlement materials in English within 24 hours of entry of the Order re Preliminary Approval of Class Settlement in a prominent area of their respective websites. The class notice and flyer will be posted in remaining languages as soon as these are translated and available.
3. Disability Rights California will post the settlement materials on its web site in a format that is accessible to recipients with visual impairments or who are blind who use screen readers, and upon request, will provide the notice in alternative formats, such as audio tapes, compact disks, and large print. Disability Rights California and at least some other class counsel will also post all of the settlement materials on their respective web sites. 1

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page49 of 62
4. Union Plaintiffs SEIU State Council, SEIU-ULTCW, SEIU - United Health Workers West and United Domestic Workers, AFSCME, will post information regarding the settlement and the settlement materials (or a link to them) on their respective websites.
5. CDSS will distribute the settlement materials (or a link to them) to each county welfare department and will request that: a. The flyer and notice be displayed in prominent locations in each county welfare office waiting room and public area in English and Spanish; b. The flyer and notice be displayed in prominent locations in additional primary languages prevalent in the regional area (if such languages are among the 12 languages in which the flyer and notice are translated); c. The settlement agreement and class notice in the remainder of languages be available upon request from the office receptionist.
6. CDSS will distribute the settlement materials (or a link to them) to state employees in the State Hearing Division with instructions that the flyer and notice be displayed in prominent locations in each State Hearing Division office and waiting room.
7. CDSS or CDHCS will distribute the settlement materials (or a link to them) to the following organizations with a request to (a) post the flyer and notice on their website, if they have one, (b) post the flyer and notice in prominent locations in the organization’s common area or waiting room, (c) provide the notice individually to any participant whom they have reason to believe may be receiving IHSS: a. Providers of Community-Based Adult Services (“CBAS”), b. IHSS Public Authorities, c. County IHSS Advisory Committees, d. County Adult Protective Services programs
2

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page50 of 62
8. CDSS shall make a request to the following state boards, committees and councils, requesting that these state organizations (a) post the flyer and class notice on the state organization’s web page and at its offices, and (b) email the notice (or a link to it) to its distribution or membership list, if any. a. California State Independent Living Organization, http://www.calsilc.org/ b. California Olmstead Advisory Committee, http://www.chhs.ca.gov/initiatives/Olmstead/ c. State Council on Developmental Disabilities, http://www.scdd.ca.gov/
9. Class counsel will make a request to the California Council for the Blind, to (a) post the flyer and 3 page notice at prominent locations at its annual statewide conference and convention in Sacramento on April 1113, 2013, (b) email the notice (or a link to it) to its distribution list; and (c) post the notice and flyer on the organization’s website.
10. Class counsel will arrange to post the notice and flyer on the Benchmark Institute’s list serve in California, which includes more than 300 legal services attorneys, paralegals and other advocates for public benefits recipients, including recipients of IHSS.
11. Class counsel will arrange to post the notice and flyer on the Health Consumer Action list serve in California, which includes more than 400 attorneys and health advocates, including those assisting recipients of IHSS.
12. Class counsel will arrange to post the notice and flyer on the National Senior Citizens Law Center’s California Health Network list serve, which includes more than 1,000 legal services attorneys, health and IHSS advocates, private attorneys, health care providers, aging services providers, community based organizations serving limited English proficient individuals, and other interested individuals and organizations.
3

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page51 of 62
13. Class counsel has made arrangements to distribute information about the class notice through the California Disability Community Action Network (“CDCAN”). CDCAN’s email reports go out to over 65,000 people with disabilities, mental health needs, seniors, people with traumatic brain and other injuries, people with MS, Alzheimer's and other disorders, veterans with disabilities and mental health needs, families, workers, community organizations, facilities and advocacy groups including those in the Asian/Pacific Islander, Latino, American Indian, Indian, African-American communities; policymakers, and others across the State.
14. Class counsel will make arrangements to publicize the class settlement with the following organizations, including requesting them to post the notice and flyer on their website and to distribute these materials to their list serves, and also requesting opportunities to speak to their membership on any scheduled conference call or meeting: a. California IHSS Consumer Alliance (CICA) (statewide collaboration of IHSS Public Authority Advisory Committee and Governing Board members); http://www.cicaihss.org b. California Association of Public Authorities (CAPA), http://www.capaihss.org c. California Collaborative for Long Term Services and Supports, which has more than 40 member organizations and is a project of the Government Action and Communication Institute , http://www.gacinstitute.org/ccltss-members.php d. IHSS Coalition, http://www.ihsscoalition.org/ e. California Foundation of Independent Living Centers, http://www.cfilc.org f. People First of California, http://www.peoplefirstca.org/ g. California Network of Mental Health Clients h. Alzheimer’s Association, California Council, http://caalz.org/ i. California Association for Health Services at Home j. California Association of Social Rehabilitation Agencies (CASRA) k. The ARC of California l. AARP
4

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page52 of 62
m. Legal Aid Association of California – Senior Legal Services Provider Section
n. California Association of Area Agencies on Aging o. California Health Advocates - Health Insurance Counseling and
Advocacy Programs (HICAP)
B. PLAN FOR RESPONSE TO OBJECTIONS AND REQUESTS FOR INFORMATION
1. Class counsel will set up (a) a toll-free telephone number to accept messages, (b) a post office box (or other mailing address) to which letters from IHSS recipients may be sent and (c) an email address for IHSS recipients to make inquires and request additional information about the settlement. These options for communicating with Class counsel will be described in the Class notice and available during the period for submitting objections and for one week after the date of the fairness hearing. Class counsel will review and log all communications from IHSS recipients.
2. In responding to communications from IHSS recipients, Class counsel will first identify objections, which will be logged and shared with counsel for Defendants. At the close of the objection period, the parties will confer, categorize the objections and provide the Court with a joint report summarizing all objections. Counsel will also respond to objections after the deadline by informing them that the time period has ended but providing additional information if requested.
3. Class counsel will next identify requests for additional information. These will also be logged and provided with an appropriate response, which might be to provide a copy of the notice in alternative languages or formats, to mail the settlement agreement, or to answer any specific questions that are not addressed in the Settlement materials. Class counsel will maintain a log of these inquiries and the
5

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page53 of 62
response provided and will be prepared to provide this to the court in camera if requested. 4. Class counsel will next identify complaints and questions that are unrelated to the settlement. If these relate to areas in which Class counsel can provide assistance, the inquiry will be referred to intake staff for the respective program. If it is not an area in which class counsel can assist, the individual will be sent a communication (telephone call, letter or email), stating that Class counsel cannot assist and, if possible, offering a referral to other assistance such as the county bar association or the local legal aid program. Class counsel will maintain a log of these inquiries and the response provided and will be prepared to provide this to the court in camera if requested.
6

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Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page55 of 62

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO/OAKLAND DIVISION

10

DAVID OSTER, et al.,

) Case No.: CV 09-04668 CW

11

)

)

12

Plaintiffs

) [PROPOSED] ORDER GRANTING ) FINAL APPROVAL OF CLASS

13

v.

) SETTLEMENT )

14 WILL LIGHTBOURNE, Director of the California Department of Social Services;

) ) Date:

15 TOBY DOUGLAS, Director of the California ) Time:

Department of Health Care Services;

) Courtroom:

16 CALIFORNIA DEPARTMENT OF HEALTH )

CARE SERVICES; and CALIFORNIA

)

17 DEPARTMENT OF SOCIAL SERVICES, ) )

18

Defendants

)

)

19

20

21

Plaintiffs DAVID OSTER, WILLIE BEATRICE SHEPPARD, C.R. by and through his

22 guardian ad litem M.R., DOTTIE JONES, ANDREA HYLTON, HELEN POLLY STERN,

23 CHARLES THURMAN, and L.C. by and through her guardian ad litem M.G. (collectively

24 “Named Plaintiffs”) have filed, and all parties support, a Motion for Final Approval of Class

25 Settlement (“Motion for Final Approval”). The Class Settlement Agreement, entered into by

26 Named Plaintiffs, Union Plaintiffs (Service Employees International Union-United Healthcare

27 Workers, Service Employees International Union-United Long Term Care Workers, Service

28
1 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page56 of 62

1 Employees International Union Local 521, Service Employees International Union California

2 State Council, United Domestic Workers of America, AFSCME Local 3930, AFL-CIO, and

3 California United Homecare Workers), and Defendants, is attached to this order as Exhibit 1.

4

Classes and subclasses in this case have previously been certified under Federal Rule of

5 Civil Procedure 23(b)(2) and need not be amended for purposes of settlement. On ______, 2013,

6 this Court granted preliminary approval to the Class Settlement Agreement and directed notice of

7 the settlement, its terms, and the applicable procedures and schedules. A Fairness Hearing was

8 held on ___________, 2013 to determine whether the Class Settlement Agreement should be

9 granted final approval pursuant to Federal Rule of Civil Procedure 23(e) as fair, adequate, and

10 reasonable. Class members were given an opportunity to comment on and object to the Class

11 Settlement Agreement in writing and at that Fairness Hearing.

12

Based on consideration of Plaintiffs’ moving papers, the arguments of counsel, the

13 objections of class members, and the proceedings in this action to date, the Court hereby finds and

14 concludes that:

15

1. The Class Notice distributed to Class Members, pursuant to this Court’s prior order,

16

was accomplished in all material respects and fully met the requirements of Federal

17

Rule of Civil Procedure 23, due process, and any other applicable laws.

18

2. The Class Settlement Agreement is fair, reasonable, and adequate in all respects. The

19

Class Settlement Agreement is reasonably related to the strength of Plaintiffs’ and class

20

members’ claims given the risk, expense, complexity, and duration of further litigation.

21

The Class Settlement Agreement is the result of arms-length negotiations between

22

experienced counsel representing the interests of the Plaintiff Class and Defendants,

23

after thorough factual and legal investigation.

24

3. The Court has reviewed and considered the objections of class members and finds that

25

they do not raise concerns that warrant rejecting the Class Settlement Agreement.

26

IT IS HEREBY ORDERED that:

27

28
2 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page57 of 62

1

1. The Court has jurisdiction over the subject matter of this litigation and all matters

2

relating thereto, and over the Plaintiffs and Defendants. Venue is proper in the

3

Northern District of California.

4

2. Pursuant to Federal Rule of Civil Procedure 23(e), this Court grants final approval to

5

the Class Settlement Agreement, incorporates the terms of the Class Settlement

6

Agreement into this order as though fully set forth, and orders all parties to perform all

7

of their obligations thereunder.

8

3. This order and the Class Settlement Agreement are binding against the parties, their

9

successors in office, and their respective officers, agents, and employees, and all others

10

acting in concert with them.

11

4. Plaintiffs are bound by the Class Settlement Agreement not to bring or support any

12

lawsuit challenging any provisions of the Class Settlement Agreement. The Class

13

Settlement Agreement reserves, and does not waive, Plaintiffs’ right to challenge, on

14

any ground including those previously asserted in this case, any of the following acts

15

that may occur after this Agreement is signed: any state reductions in participation in

16

IHSS wages and/or state approval of wage reductions in IHSS wages; any state

17

reductions of IHSS hours, services, or eligibility other than those set forth in the

18

Agreement; and any due process challenge to notices of action or provision of hearing

19

rights in relation to IHSS service reductions, assessments, or reassessments other than

20

those required by this Agreement.

21

5. The Court retains exclusive and continuing jurisdiction over this case, the Named

22

Plaintiffs, the Plaintiff Classes and Subclasses, and Defendants for purposes of

23

supervising and resolving issues relating to administration, implementation, and

24

enforcement of the Class Settlement Agreement; resolving any disputes that may arise

25

regarding the Class Settlement Agreement, its terms, or the enforcement thereof; and

26

fashioning appropriate remedies for any violation of that Class Settlement Agreement.

27

The Court’s jurisdiction shall expire 30 months after the Centers for Medicare and

28
3 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page58 of 62

1

Medicaid Services (CMS) acts on the request for approval of the Assessment described

2

in Section VI of the Agreement.

3

6. As set forth in Paragraph 30 of the Class Settlement Agreement, within 30 days of the

4

date that the appeal in this case has been dismissed and the legislation attached as

5

Exhibit A to the Agreement has been enacted, the parties shall file a Joint Notice and

6

Request for Dismissal. At that time, this Court shall dismiss this case and enter final

7

judgment with prejudice pursuant to the terms of the Class Settlement Agreement,

8

while retaining jurisdiction to enforce the Agreement as set forth above.

9

IT IS SO ORDERED:

10 11 DATED: May __, 2013 12

______________________________________ The Honorable Claudia Wilken United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. CV 09-04668 CW

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page59 of 62

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO/OAKLAND DIVISION

10 LYDIA DOMINGUEZ, et al.,
11 Plaintiffs,
12 v.
13 WILL LIGHTBOURNE, et al.,
14
15
16

) Case No.: C 09-02306 CW ) ) ) [PROPOSED] ORDER GRANTING ) FINAL APPROVAL OF CLASS ) SETTLEMENT ) ) ) Date: ) Time: ) Courtroom:

17

18

Plaintiffs PATSY MILLER, ALEX BROWN, by and through his mother and next friend

19 Lisa Brown, DONNA BROWN, CHLOE LIPTON, by and through her conservator and next

20 friend Julie Weissman-Steinbaugh, HERBERT M. MEYER, LESLIE GORDON, CHARLENE

21 AYERS, WILLER BEATRICE SHEPPARD, ANDY MARTINEZ, and CAROLYN STWEART

22 (collectively “Named Plaintiffs”) have filed, and State Defendants (Will Lightbourne and Toby

23 Douglas) support, a Motion for Final Approval of Class Settlement (“Motion for Final Approval”).

24 The Class Settlement Agreement, entered into by Named Plaintiffs, Union Plaintiffs (Service

25 Employees International Union-United Healthcare Workers, Service Employees International

26 Union-United Long Term Care Workers, Service Employees International Union Local 521,

27 Service Employees International Union California State Council, United Domestic Workers of

28
1 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. C 09-02306 CW

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page60 of 62

1 America, AFSCME Local 3930, AFL-CIO, and California United Homecare Workers), and State

2 Defendants, is attached to this order as Exhibit 1.

3

Classes and subclasses in this case have previously been certified under Federal Rule of

4 Civil Procedure 23(b)(2) and were amended in the order granting preliminary approval because of

5 changed factual circumstances. On ______, 2013, this Court granted preliminary approval to the

6 Class Settlement Agreement and directed notice of the settlement, its terms, and the applicable

7 procedures and schedules. A Fairness Hearing was held on ___________, 2013 to determine

8 whether the Class Settlement Agreement should be granted final approval pursuant to Federal

9 Rule of Civil Procedure 23(e) as fair, adequate, and reasonable. Class members were given an

10 opportunity to comment on and object to the Class Settlement Agreement in writing and at that

11 Fairness Hearing.

12

Based on consideration of Plaintiffs’ moving papers, the arguments of counsel, the

13 objections of class members, and the proceedings in this action to date, the Court hereby finds and

14 concludes that:

15

1. The Class Notice distributed to Class Members, pursuant to this Court’s prior order,

16

was accomplished in all material respects and fully met the requirements of Federal

17

Rule of Civil Procedure 23, due process, and any other applicable laws.

18

2. The Class Settlement Agreement is fair, reasonable, and adequate in all respects. The

19

Class Settlement Agreement is reasonably related to the strength of Plaintiffs’ and class

20

members’ claims given the risk, expense, complexity, and duration of further litigation.

21

The Class Settlement Agreement is the result of arms-length negotiations between

22

experienced counsel representing the interests of the Plaintiff Class and State

23

Defendants, after thorough factual and legal investigation.

24

3. The Court has reviewed and considered the objections of class members and finds that

25

they do not raise concerns that warrant rejecting the Class Settlement Agreement.

26

IT IS HEREBY ORDERED that:

27

28
2 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. C 09-02306 CW

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page61 of 62

1

1. The Court has jurisdiction over the subject matter of this litigation and all matters

2

relating thereto, and over the Plaintiffs and Defendants. Venue is proper in the

3

Northern District of California.

4

2. Pursuant to Federal Rule of Civil Procedure 23(e), this Court grants final approval to

5

the Class Settlement Agreement, incorporates the terms of the Class Settlement

6

Agreement into this order as though fully set forth, and orders all parties to that

7

Agreement (“Parties”) to perform all of their obligations thereunder.

8

3. This order and the Class Settlement Agreement are binding against the Parties, their

9

successors in office, and their respective officers, agents, and employees, and all others

10

acting in concert with them.

11

4. Plaintiffs are bound by the Class Settlement Agreement not to bring or support any

12

lawsuit challenging any provisions of the Class Settlement Agreement. The Class

13

Settlement Agreement reserves, and does not waive, Plaintiffs’ right to challenge, on

14

any ground including those previously asserted in this case, any of the following acts

15

that may occur after this Agreement is signed: any state reductions in participation in

16

IHSS wages and/or state approval of wage reductions in IHSS wages; any state

17

reductions of IHSS hours, services, or eligibility other than those set forth in the

18

Agreement; and any due process challenge to notices of action or provision of hearing

19

rights in relation to IHSS service reductions, assessments, or reassessments other than

20

those required by this Agreement.

21

5. The Court retains exclusive and continuing jurisdiction over this case, the Named

22

Plaintiffs, the Plaintiff Classes and Subclasses, and State Defendants for purposes of

23

supervising and resolving issues relating to administration, implementation, and

24

enforcement of the Class Settlement Agreement; resolving any disputes that may arise

25

regarding the Class Settlement Agreement, its terms, or the enforcement thereof; and

26

fashioning appropriate remedies for any violation of that Class Settlement Agreement.

27

The Court’s jurisdiction shall expire 30 months after the Centers for Medicare and

28
3 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. C 09-02306 CW

Case4:09-cv-04668-CW Document542-1 Filed08/07/13 Page62 of 62

1

Medicaid Services (CMS) acts on the request for approval of the “Assessment”

2

described in Section VI of the Agreement.

3

6. As set forth in Paragraph 30 of the Class Settlement Agreement, within 30 days of the

4

date that the appeal in this case has been dismissed and the legislation attached as

5

Exhibit A to the Agreement has been enacted, the parties shall file a Joint Notice and

6

Request for Dismissal. At that time, this Court shall dismiss this case and enter final

7

judgment with prejudice as to State Defendants, pursuant to the terms of the Class

8

Settlement Agreement, while retaining jurisdiction to enforce the Agreement as set

9

forth above.

10

IT IS SO ORDERED:

11 12 DATED: May __, 2013 13

______________________________________ The Honorable Claudia Wilken United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4 [Proposed] Order Granting Final Approval of Class Settlement,
Case No. C 09-02306 CW

 
 Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 1 of 75
ADRMOP,CLOSED,E−Filing,REFDIS,RELATE
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:09−cv−04668−CW

Oster et al v. Wagner et al Assigned to: Hon. Claudia Wilken Referred to: Magistrate Judge Jacqueline Scott Corley Relate Case Case: 4:09−cv−02306−CW
Case in other court: Ninth Circuit Court of Appeals, 09−17581
Ninth Circuit Court of Appeals, 12−15366 Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff

Date Filed: 10/01/2009 Date Terminated: 08/07/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

David Oster

represented by Abigail Koelzer Coursolle 3701 Wilshire Blvd Los Angeles, CA 90010 310−204−6010 Email: coursolle@healthlaw.org ATTORNEY TO BE NOTICED

Ann Esther Menasche Disability Rights California 1111 Sixth Avenue Suite 200 San Diego, CA 92101 619−239−7861 Fax: 619−239−7906 Email: ann.menasche@disabilityrightsca.org ATTORNEY TO BE NOTICED

Anna Margaret Rich Justice in Aging 1330 Broadway, Suite 525 Oakland, CA 94612 510−663−1055 Email: arich@justiceinaging.org ATTORNEY TO BE NOTICED

Charles Hobson Wolfinger , Jr. Attorney at Law 4655 Cass St #314 San Diego, CA 92109−2811 858−272−8115 Fax: Email: cw@charleswolfinger.com ATTORNEY TO BE NOTICED

Dara Lynn Schur Disability Rights California 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1200 Email: dara.schur@disabilityrightsca.org (Inactive) ATTORNEY TO BE NOTICED

Deborah Alyse Dorfman 70 Greene Street Jersey City, NJ 07302 206−369−3761

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Email: dougaldorfman@hotmail.com ATTORNEY TO BE NOTICED
Frederick Philip Nisen Disability Rights California Bay Area Regional Office 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1200 Fax: 510−267−1201 Email: fred.nisen@disabilityrightsca.org ATTORNEY TO BE NOTICED
Jane Perkins National Health Law Program, Inc. 101 East Weaver Street Suite G−7 Carrboro, NC 27510 919−968−6308 ext. 103 Fax: 919−968−8855 Email: perkins@healthlaw.org ATTORNEY TO BE NOTICED
Jung Pham Disability Rights California Bay Area Regional Office 1330 Broadway Suite 500 Oakland, CA 94612 (510) 267−1200 Fax: (510) 267−1201 Email: jung.pham@disabilityrightsca.org ATTORNEY TO BE NOTICED
Marilyn Lee Holle 350 South Bixel Street, Suite 290 Los Angeles, CA 90017 213−213−8000 Fax: 213−213−8001 Email: marilyn.holle@disabilityrightsca.org ATTORNEY TO BE NOTICED
Melinda Ruth Bird Disability Rights California 350 South Bixel Street, Suite 290 Los Angeles, CA 90017 213−213−8000 Fax: 213−213−8001 Email: melinda.bird@disabilityrightsca.org ATTORNEY TO BE NOTICED
Paula D. Pearlman Department of Fair Employment and Housing Legal Division 2218 Kausen Drive Suite 100 Elk Grove, CA 95758 213−439−6799 Fax: 888−382−5293 Email: paula.pearlman@lls.edu ATTORNEY TO BE NOTICED
Shawna L Parks

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Disability Rights Advocates 2001 Center St 4th Floor Berkeley, CA 94704 United Sta 510−655−8644 Fax: 510−665−8511 Email: sparks@dralegal.org ATTORNEY TO BE NOTICED
Sujatha Jagadeesh Branch Disability Rights California 100 Howe Ave. Ste. 235N Sacramento, CA 95825 916−488−9950 Fax: 916−488−9960 Email: sujatha.branch@disabilityrightsca.org ATTORNEY TO BE NOTICED

Plaintiff
Willie Beatrice Sheppard on behalf of themselves and a class of those similarly situated

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Ann Esther Menasche (See above for address) ATTORNEY TO BE NOTICED
Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED
Charles Hobson Wolfinger , Jr. (See above for address) ATTORNEY TO BE NOTICED
Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED
Deborah Alyse Dorfman (See above for address) ATTORNEY TO BE NOTICED
Frederick Philip Nisen (See above for address) ATTORNEY TO BE NOTICED
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Jung Pham (See above for address) ATTORNEY TO BE NOTICED
Marilyn Lee Holle (See above for address) ATTORNEY TO BE NOTICED
Melinda Ruth Bird (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff
Service Employees International Union United Health Care Workers West

Paula D. Pearlman (See above for address) ATTORNEY TO BE NOTICED
Shawna L Parks (See above for address) ATTORNEY TO BE NOTICED
Sujatha Jagadeesh Branch (See above for address) ATTORNEY TO BE NOTICED
represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Casey Austin Roberts Altshuler Berzon LLP 177 Post Street Ste 300 San Francisco, CA 94108 415−421−7151 Email: casey.roberts@sierraclub.org TERMINATED: 01/30/2012
Eve Hedy Cervantez Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421−7151 Fax: 415−362−8064 Email: ecervantez@altshulerberzon.com ATTORNEY TO BE NOTICED
Peder J. Thoreen Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421−7151 Fax: (415) 362−8064 Email: pthoreen@altshulerberzon.com ATTORNEY TO BE NOTICED
Rachel Justine Zwillinger Altshuler Berzon LLP 177 Post Street Ste. 300 San Francisco, CA 94108 415−421−7151 Email: rzwillinger@altber.com ATTORNEY TO BE NOTICED
Stacey M. Leyton Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415 421−7151 Fax: (415) 362−8064 Email: sleyton@altshulerberzon.com ATTORNEY TO BE NOTICED
Stephen P. Berzon

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 5 of 75

Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: (415) 362−8064 Email: sberzon@altshulerberzon.com ATTORNEY TO BE NOTICED

Plaintiff
SEIU United Long−Term Care Workers

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Casey Austin Roberts (See above for address) TERMINATED: 01/30/2012
Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED
Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED
Rachel Justine Zwillinger (See above for address) ATTORNEY TO BE NOTICED
Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED
Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SEIU Local 521

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Casey Austin Roberts (See above for address) TERMINATED: 01/30/2012
Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED
Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED
Rachel Justine Zwillinger (See above for address) ATTORNEY TO BE NOTICED
Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED
Stephen P. Berzon

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 6 of 75

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff SEIU California State Council

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Casey Austin Roberts (See above for address) TERMINATED: 01/30/2012
Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED
Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED
Rachel Justine Zwillinger (See above for address) ATTORNEY TO BE NOTICED
Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED
Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Casey Austin Roberts (See above for address) TERMINATED: 01/30/2012
Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED
Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED
Rachel Justine Zwillinger (See above for address) ATTORNEY TO BE NOTICED
Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED
Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff California United Homecare Workers

represented by

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Casey Austin Roberts (See above for address) TERMINATED: 01/30/2012

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Rachel Justine Zwillinger (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
V.L. by and through his guardian litem Nancy Lagahid TERMINATED: 12/01/2011

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Ann Esther Menasche (See above for address) ATTORNEY TO BE NOTICED

Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Charles Hobson Wolfinger , Jr. (See above for address) ATTORNEY TO BE NOTICED

Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED

Deborah Alyse Dorfman (See above for address) ATTORNEY TO BE NOTICED

Frederick Philip Nisen (See above for address) ATTORNEY TO BE NOTICED

Jane Perkins (See above for address) ATTORNEY TO BE NOTICED

Jung Pham (See above for address) ATTORNEY TO BE NOTICED

Kimberly Lewis National Health Law Program, Inc. 3701 Wilshire Boulevard, Suite 750

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 8 of 75

Los Angeles, CA 90010−2809 310−204−6010 Fax: 213−386−0774 Email: lewis@healthlaw.org ATTORNEY TO BE NOTICED
Marilyn Lee Holle (See above for address) ATTORNEY TO BE NOTICED
Melinda Ruth Bird (See above for address) ATTORNEY TO BE NOTICED
Paula D. Pearlman (See above for address) ATTORNEY TO BE NOTICED
Shawna L Parks (See above for address) ATTORNEY TO BE NOTICED
Sujatha Jagadeesh Branch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
C.R. by and through his guardian ad litem M.R.

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED
Charles Hobson Wolfinger , Jr. (See above for address) ATTORNEY TO BE NOTICED
Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED
Deborah Alyse Dorfman (See above for address) ATTORNEY TO BE NOTICED
Frederick Philip Nisen (See above for address) ATTORNEY TO BE NOTICED
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Jung Pham (See above for address) ATTORNEY TO BE NOTICED
Marilyn Lee Holle (See above for address) ATTORNEY TO BE NOTICED
Melinda Ruth Bird

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 9 of 75

(See above for address) ATTORNEY TO BE NOTICED
Paula D. Pearlman (See above for address) ATTORNEY TO BE NOTICED
Shawna L Parks (See above for address) ATTORNEY TO BE NOTICED
Sujatha Jagadeesh Branch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dotty Jones

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Ann Esther Menasche (See above for address) ATTORNEY TO BE NOTICED
Frederick Philip Nisen Disability Rights California 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1200 Fax: 510−267−1201 Email: fred.nisen@disabilityrightsca.org ATTORNEY TO BE NOTICED
Melinda Ruth Bird (See above for address) ATTORNEY TO BE NOTICED
Sujatha Jagadeesh Branch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Andrea Hylton

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED
Charles Hobson Wolfinger , Jr. Attorney at Law 4655 Cass St #314 San Diego, CA 92109−2811 858−272−8115 Email: cw@charleswolfinger.com ATTORNEY TO BE NOTICED
Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED
Jane Perkins

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 10 of 75

(See above for address) ATTORNEY TO BE NOTICED
Marilyn Lee Holle (See above for address) ATTORNEY TO BE NOTICED
Melinda Ruth Bird (See above for address) ATTORNEY TO BE NOTICED
Paula D. Pearlman (See above for address) ATTORNEY TO BE NOTICED
Sujatha Jagadeesh Branch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Helen Polly Stern

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED
Charles Hobson Wolfinger , Jr. (See above for address) ATTORNEY TO BE NOTICED
Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Marilyn Lee Holle (See above for address) ATTORNEY TO BE NOTICED
Melinda Ruth Bird (See above for address) ATTORNEY TO BE NOTICED
Paula D. Pearlman (See above for address) ATTORNEY TO BE NOTICED
Sujatha Jagadeesh Branch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Charles Thurman

represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff
L. C. by and through her guardian ad litem M.G.

Charles Hobson Wolfinger , Jr. (See above for address) ATTORNEY TO BE NOTICED
Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Marilyn Lee Holle (See above for address) ATTORNEY TO BE NOTICED
Melinda Ruth Bird (See above for address) ATTORNEY TO BE NOTICED
Paula D. Pearlman (See above for address) ATTORNEY TO BE NOTICED
Sujatha Jagadeesh Branch (See above for address) ATTORNEY TO BE NOTICED
represented by Abigail Koelzer Coursolle (See above for address) ATTORNEY TO BE NOTICED
Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED
Charles Hobson Wolfinger , Jr. (See above for address) ATTORNEY TO BE NOTICED
Dara Lynn Schur (See above for address) ATTORNEY TO BE NOTICED
Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Marilyn Lee Holle (See above for address) ATTORNEY TO BE NOTICED
Melinda Ruth Bird (See above for address) ATTORNEY TO BE NOTICED
Paula D. Pearlman (See above for address) ATTORNEY TO BE NOTICED
Sujatha Jagadeesh Branch (See above for address)

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V. Defendant John Wagner Director of the California Department of Social Services TERMINATED: 12/06/2011
Defendant David Maxwell−Jolly Director of the California Department of Health Care Services TERMINATED: 12/06/2011

represented by Gregory David Brown Office of the Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415−703−5461 Fax: 415−703−5480 Email: Gregory.Brown@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Zwibelman Office of the Attorney General Department of Justice 455 Golden Gate Avenue Suite 11000 Invalid email address as of 03/30/10 San Francisco, CA 94102−7004 415.703.5841 Fax: 415.703.5480 Email: invalidaddress@invalidaddress.com ATTORNEY TO BE NOTICED
Nimrod Pitsker Elias California State Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−703−5841 Fax: 415−703−5480 Email: nimrod.elias@doj.ca.gov ATTORNEY TO BE NOTICED
Susan M. Carson Deputy Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−703−5580 Fax: 415−703−5480 Email: susan.carson@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Gregory David Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Zwibelman (See above for address) ATTORNEY TO BE NOTICED
Nimrod Pitsker Elias (See above for address) ATTORNEY TO BE NOTICED
Susan M. Carson (See above for address)

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ATTORNEY TO BE NOTICED

Defendant
California Department of Health Care Services

represented by Gregory David Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Zwibelman (See above for address) ATTORNEY TO BE NOTICED
Nimrod Pitsker Elias (See above for address) ATTORNEY TO BE NOTICED
Susan M. Carson (See above for address) ATTORNEY TO BE NOTICED

Defendant
California Department of Social Services

represented by Gregory David Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Zwibelman (See above for address) ATTORNEY TO BE NOTICED
Nimrod Pitsker Elias (See above for address) ATTORNEY TO BE NOTICED
Susan M. Carson (See above for address) ATTORNEY TO BE NOTICED

Defendant Director Will Lightbourne

represented by Nimrod Pitsker Elias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Carson (See above for address) ATTORNEY TO BE NOTICED

Defendant Director Toby Douglas

represented by Nimrod Pitsker Elias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Carson (See above for address) ATTORNEY TO BE NOTICED

Amicus UNITED STATES OF AMERICA

represented by Ila Casy Deiss United States Attorney's Office Northern District of California

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450 Golden Gate Avenue P. O. Box 36055 San Francisco, CA 94102 415−436−7124 Fax: 415−436−7169 Email: ila.deiss@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 10/01/2009
10/01/2009 10/01/2009 10/01/2009 10/01/2009 10/01/2009
10/01/2009

# Docket Text
1 CLASS ACTION COMPLAINT for Injunctive and Declaratory Relief against California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner (Filing fee $ 350.00, receipt number 34611037258). Filed by V.L., Willie Beatrice Sheppard, California United Homecare Workers, C.R., SEIU California State Council, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, SEIU Local 521, Service Employees International Union United Health Care Workers West, David Oster, SEIU United Long−Term Care Workers. (gba, COURT STAFF) (Filed on 10/1/2009) (Additional attachment(s) added on 10/2/2009: # 1 Civil Cover Sheet) (gba, COURT STAFF). (Entered: 10/02/2009)
2 Notice of Ex Parte Application and Application to File Under Seal filed by C.R., David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (gba, COURT STAFF) (Filed on 10/1/2009) (gba, COURT STAFF). (Entered: 10/02/2009)
3 Proposed Order granting plaintiff V.L.'s and C.R. Exparte Application to Proceed Under Fictitious names by C.R., California United Homecare Workers, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (gba, COURT STAFF) (Filed on 10/1/2009) (gba, COURT STAFF). (Entered: 10/02/2009)
4 Proposed Order granting plaintiff C.R.'s Exparte Application for Appointment of Michelle Rivera as Guardian Ad Litem by C.R., California United Homecare Workers, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (gba, COURT STAFF) (Filed on 10/1/2009) (gba, COURT STAFF). (Entered: 10/02/2009)
5 Proposed Order granting plaintiff V.L.'s Ex Parte Application of Nancy Lagahid as Guardian Ad Litem by C.R., California United Homecare Workers, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (gba, COURT STAFF) (Filed on 10/1/2009) (gba, COURT STAFF). (Entered: 10/02/2009)
6 Proposed Order granting Motion of plaintiffs to File Petition for Appointment of Guardian Ad Litem of Minor to Prosecute Action and Ex Parte Application to Proceed Under a Fictitious Name Under Seal by C.R., California United Homecare Workers, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (gba, COURT STAFF) (Filed on 10/1/2009) (gba, COURT STAFF). (Entered: 10/02/2009)
7 Certificate of Interested Entities or Persons by C.R., California United Homecare Workers, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L. (gba, COURT STAFF) (Filed on 10/1/2009) (gba, COURT STAFF). (Entered: 10/02/2009)

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10/01/2009 10/01/2009 10/01/2009 10/01/2009 10/01/2009
10/01/2009
10/01/2009
10/01/2009

8 Summons Issued as to California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (gba, COURT STAFF) (Filed on 10/1/2009) (gba, COURT STAFF). (Entered: 10/02/2009)
9 Declination to Proceed Before a U.S. Magistrate Judge by C.R., California United Homecare Workers, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (gba, COURT STAFF) (Filed on 10/1/2009) (gba, COURT STAFF). (Entered: 10/02/2009)
10 ADR SCHEDULING ORDER: Case Management Statement due by 1/4/2010. Case Management Conference set for 1/8/2010 01:30 PM in Courtroom A, 15th Floor, San Francisco. (gba, COURT STAFF) (Filed on 10/1/2009) (gba, COURT STAFF). (Entered: 10/02/2009)
CASE DESIGNATED for Electronic Filing. (gba, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/02/2009)
Received Plaintiffs V.L. and C.R.'s Notice of Ex Parte Application and Ex Parte Application to Proceed Under Fictitious Names; Declaration of Frederick Nisen in support of Plaintiffs' Ex Parte Application to Proceed Under Fictitious Names by C.R., California United Homecare Workers, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. DOCUMENT SUBMITTED UNDER SEAL (gba, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/02/2009)
Received plaintiff C.R.'s Notice of Ex Parte Application and Ex Parte Appointment of Guardian Ad Litem; Memorandum of Points and Authorities in support of plaintiff's ex parte application for appointment of guardian ad litem for plaintiff C.R.; declaration of Michelle Rivera re: application for guardian ad litem by C.R., David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. DOCUMENT SUBMITTED UNDER SEAL (gba, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/02/2009)
Received notice of ex parte application and ex parte appointment of guardian ad litem; memorandum of points and authorities in support of plaintiff's ex parte application for appointment of guardian ad litem for plaintiff V.L.; declaration of Nancy Lagahid re: application for guardian ad litem by C.R., California United Homecare Workers, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. DOCUMENT SUBMITTED UNDER SEAL (gba, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/02/2009)
189 MOTION to Appoint guardian ad litem for plaintiff C.R. filed by C.R.. (cp, COURT STAFF) (Filed on 10/1/2009)

***FILED UNDER SEAL***

(Entered: 10/21/2009)
10/01/2009 190 MOTION to Appoint guardian ad Litem for plaintiff V.L. filed by V.L.. (cp, COURT STAFF) (Filed on 10/1/2009)

***FILED UNDER SEAL***

(Entered: 10/21/2009)
10/01/2009 191 MOTION to proceed under fictitious names filed by C.R., V.L.. (cp, COURT STAFF) (Filed on 10/1/2009)

***FILED UNDER SEAL***

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10/02/2009 10/02/2009 10/05/2009 10/05/2009 10/05/2009 10/05/2009
10/05/2009
10/05/2009
10/05/2009

(Entered: 10/21/2009)
11 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (cmw, COURT STAFF) (Filed on 10/2/2009) (Entered: 10/02/2009)
12 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Jeffrey S. White for all further proceedings. Judge Magistrate Judge Joseph C. Spero no longer assigned to the case. Signed by Executive Committee on 10/2/09. (mab, COURT STAFF) (Filed on 10/2/2009) (Entered: 10/02/2009)
13 CERTIFICATE OF SERVICE by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO re 9 Declination to Proceed Before a U.S. Magistrate Judge, (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
14 MOTION DEFENDANTS ADMINISTRATIVE MOTION PURSUANT TO LOCAL RULE 7−11 TO CONDUCT LIMITED DISCOVERY OF THE INDIVIDUAL NAMED PLAINTIFFS filed by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Declaration of Susan M. Carson in Support of Defendants Administrative Motion to Conduct Limited Discovery of Individual Named Plaintiffs, # 2 Proposed Order, # 3 Proof of Service)(Brown, Gregory) (Filed on 10/5/2009) (Entered: 10/05/2009)
15 NOTICE by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner NOTICE OF REPRESENATION (Attachments: # 1 Proof of Service)(Carson, Susan) (Filed on 10/5/2009) (Entered: 10/05/2009)
16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. Motion Hearing set for 10/16/2009 09:00 AM in Courtroom 11, 19th Floor, San Francisco. (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
17 AMENDED COMPLAINT Amended Class Action Complaint for Injunctive and Declaratory Relief against California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. Filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Service Employees International Union United Health Care Workers West, SEIU United Long−Term Care Workers. (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
18 Request for Judicial Notice re 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
19 MOTION to Shorten Time Ex Parte Application for Order Shortening Time for Motions for a Preliminary Injunction and for Class Certification or, in the Alternative, for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. Motion Hearing set for 10/16/2009 09:00 AM in Courtroom 11, 19th Floor, San Francisco. (Leyton,

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Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
20 MOTION to Certify Class filed by C.R., David Oster, Willie Beatrice Sheppard, V.L.. (Branch, Sujatha) (Filed on 10/5/2009) (Entered: 10/05/2009)
21 Proposed Order re 20 MOTION to Certify Class, 19 MOTION to Shorten Time Ex Parte Application for Order Shortening Time for Motions for a Preliminary Injunction and for Class Certification or, in the Alternative, for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Sh by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
22 Proposed Order re 20 MOTION to Certify Class by C.R., David Oster, Willie Beatrice Sheppard, V.L.. (Branch, Sujatha) (Filed on 10/5/2009) (Entered: 10/05/2009)
23 Proposed Order re 19 MOTION to Shorten Time Ex Parte Application for Order Shortening Time for Motions for a Preliminary Injunction and for Class Certification or, in the Alternative, for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Sh [Proposed] Order Granting Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
24 Declaration of Dara Schur in Support of 20 MOTION to Certify Class filed byC.R., David Oster, Willie Beatrice Sheppard, V.L.. (Attachments: # 1 Exhibit Exhibits 1−7 CVs)(Related document(s) 20 ) (Branch, Sujatha) (Filed on 10/5/2009) (Entered: 10/05/2009)
25 Declaration of Melinda Bird in Support of 19 MOTION to Shorten Time Ex Parte Application for Order Shortening Time for Motions for a Preliminary Injunction and for Class Certification or, in the Alternative, for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Sh filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 19 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
26 Declaration of Anna Rich in Support of 20 MOTION to Certify Class filed byC.R., David Oster, Willie Beatrice Sheppard, V.L.. (Related document(s) 20 ) (Branch, Sujatha) (Filed on 10/5/2009) (Entered: 10/05/2009)
27 Declaration of Charles Wolfinger in Support of 20 MOTION to Certify Class filed byC.R., David Oster, Willie Beatrice Sheppard, V.L.. (Related document(s) 20 ) (Branch, Sujatha) (Filed on 10/5/2009) (Entered: 10/05/2009)
28 Proposed Order re 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof [Proposed] Preliminary Injunction Order by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
29 Declaration of Jane Perkins in Support of 20 MOTION to Certify Class filed byC.R., David Oster, Willie Beatrice Sheppard, V.L.. (Related document(s) 20 ) (Branch, Sujatha) (Filed on 10/5/2009) (Entered: 10/05/2009)
30 Declaration of Shawna Parks in Support of 20 MOTION to Certify Class filed byC.R., David Oster, Willie Beatrice Sheppard, V.L.. (Related document(s) 20 ) (Branch, Sujatha) (Filed on 10/5/2009) (Entered: 10/05/2009)

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31 Declaration of Nicholas Kline in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B1, # 3 Exhibit B2, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J)(Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
32 Declaration of Emily Marshall in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
33 Declaration of Nicole Taggares in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
34 *** PLEASE REFER TO DOCUMENT 99 . *** Declaration of Nancy Lagahid in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) Modified on 10/6/2009 (ewn, COURT STAFF). (cp, COURT STAFF). (Entered: 10/05/2009)
35 Declaration of David Oster in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
36 Declaration of Julia Medina in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
37 Declaration of Willie Beatrice Sheppard in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)

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38 Declaration of Michelle Rivera in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
39 Declaration of Dotty Jones in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
40 *** PLEASE REFER TO DOCUMENT 91 . *** EXHIBITS re 35 Declaration in Support,, Exhibit A to Oster Declaration filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 35 ) (Leyton, Stacey) (Filed on 10/5/2009) Modified on 10/6/2009 (feriab, COURT STAFF). Modified on 10/6/2009 (feriab, COURT STAFF). (cp, COURT STAFF). Modified on 10/16/2009 (cp, COURT STAFF). Modified on 10/16/2009 (cp, COURT STAFF). (Entered: 10/05/2009)
41 *** PLEASE REFER TO DOCUMENT 93 . *** EXHIBITS re 38 Declaration in Support,, Exhibit A to Rivera Declaration filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 38 ) (Leyton, Stacey) (Filed on 10/5/2009) Modified on 10/6/2009 (feriab, COURT STAFF). Modified on 10/6/2009 (feriab, COURT STAFF). Modified on 10/16/2009 (cp, COURT STAFF). (cp, COURT STAFF). Modified on 10/16/2009 (cp, COURT STAFF). (Entered: 10/05/2009)
42 Declaration of Gerald Aho in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
43 Declaration of Juanita Anderson in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
44 Declaration of Feel Good in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)

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45 Declaration of Charles Bean in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
46 Declaration of Jeremy Brent in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
47 Declaration of Joyce Canann in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
48 Declaration of Lisa Brown in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
49 Declaration of Kerie Lee Campbell in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
50 Declaration of F.H. in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
51 Declaration of Wendy Leon in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
52 Declaration of Andrea Hylton in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU

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Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
53 Declaration of Susan Oeland in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
54 Declaration of Gary Jansen in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
55 Declaration of Sandra Leiva in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
56 Declaration of Richard Mandell in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
57 Declaration of Joyce McHenry in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
58 Declaration of Monica Reeder in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
59 Declaration of Larry Wilson in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed

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on 10/5/2009) (Entered: 10/05/2009)
60 Declaration of Anandi Worden in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
61 Declaration of Gregory Addison in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
62 Declaration of Dr. David Altman in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
63 Declaration of Margaret Baran in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
64 Declaration of Donna Calame in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
65 Declaration of Lee Collins in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
66 Declaration of Paul Castro in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)

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67 Declaration of Therese Crockett in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
68 Declaration of Mary Drass in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
69 Declaration of Tania Figueroa in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
70 Declaration of Dr. William Gardner in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
71 Declaration of Evie Goldberg in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
72 Declaration of Simon Golledge in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
73 Declaration of Ann Guerra in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
74 Declaration of David Hathaway in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof

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filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
75 Declaration of Thomas Hill in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
76 Declaration of Shirley Ann Hoffacker in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
77 Declaration of Dionne Jimenez in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D1, # 6 Exhibit D2)(Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
78 Declaration of Diane Kaljian in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
79 Declaration of Lillibeth Navarro in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
80 Declaration of Anthony Nicco in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
81 Declaration of Mark Polit in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union

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United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
82 Declaration of John Schnelle in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
83 Declaration of Melissa Syropiatko in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
84 Declaration of Norma Vescovo in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
85 Declaration of Mitchell LaPlante in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
86 MOTION for Leave to File Excess Pages Plaintiffs' Motion for Administrative Relief to Exceed Page Limitation for Opening Brief in Support of Temporary Restraining Order or Preliminary Injunction filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
87 Declaration of Stacey M. Leyton in Support of 86 MOTION for Leave to File Excess Pages Plaintiffs' Motion for Administrative Relief to Exceed Page Limitation for Opening Brief in Support of Temporary Restraining Order or Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 86 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
88 Proposed Order re 86 MOTION for Leave to File Excess Pages Plaintiffs' Motion for Administrative Relief to Exceed Page Limitation for Opening Brief in Support of Temporary Restraining Order or Preliminary Injunction by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)

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89 Appendix re 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/5/2009) (Entered: 10/05/2009)
90 Declaration of Stacey M. Leyton in Support of 19 MOTION to Shorten Time Ex Parte Application for Order Shortening Time for Motions for a Preliminary Injunction and for Class Certification or, in the Alternative, for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Sh filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 19 ) (Leyton, Stacey) (Filed on 10/6/2009) (Entered: 10/06/2009)
91 *** PLEASE REFER TO DOCUMENT 101 . *** EXHIBITS re 35 Declaration in Support,, CORRECTION OF DOCKET # 40 . filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 35 ) (Leyton, Stacey) (Filed on 10/6/2009) Modified on 10/7/2009 (ewn, COURT STAFF). Modified on 10/7/2009 (feriab, COURT STAFF). Modified on 10/16/2009 (cp, COURT STAFF). (cp, COURT STAFF). Modified on 10/16/2009 (cp, COURT STAFF). (Entered: 10/06/2009)
92 Memorandum in Opposition to Defendants' Administrative Motion to Conduct Limited Discovery of Named Plaintiffs filed byC.R., David Oster, Willie Beatrice Sheppard, V.L.. (Attachments: # 1 Declaration In Opposition, # 2 Proposed Order)(Schur, Dara) (Filed on 10/6/2009) (Entered: 10/06/2009)
93 ***PLEASE REFER TO DOCUMENT 102 . *** EXHIBITS re 38 Declaration in Support,, CORRECTION OF DOCKET # 41 . filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 38 ) (Leyton, Stacey) (Filed on 10/6/2009) Modified on 10/7/2009 (ewn, COURT STAFF). Modified on 10/7/2009 (feriab, COURT STAFF). Modified on 10/16/2009 (cp, COURT STAFF). (cp, COURT STAFF). (Entered: 10/06/2009)
94 ORDER by Judge Jeffrey S. White denying 14 Motion ; granting 19 Motion to Shorten Time; granting 86 Motion for Leave to File Excess Pages (jswlc1, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)
95 ORDER RELATING CASE. Case reassigned to Judge Hon. Claudia Wilken for all further proceedings. Judge Hon. Jeffrey S. White no longer assigned to the case. Signed by Judge Claudia Wilken on 10/6/2009. (cp, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)
96 MOTION to Remove Incorrectly Filed Document filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Proposed Order)(Leyton, Stacey) (Filed on 10/6/2009) (Entered: 10/06/2009)
97 Letter from Michael A. Zwibelman re: Plaintiffs' Ex Parte Application for Order Shortening Time (Docket Nos. 19 & 25). (Zwibelman, Michael) (Filed on 10/6/2009) (Entered: 10/06/2009)
98 Letter from Stacey Leyton. (Leyton, Stacey) (Filed on 10/6/2009) (Entered: 10/06/2009)

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99 *** PLEASE REFER TO DOCUMENT 122 . *** Declaration of Nancy Lagahid in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof CORRECTION OF DOCKET # 34 . filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/7/2009) Modified on 10/13/2009 (ewn, COURT STAFF). Modified on 10/13/2009 (feriab, COURT STAFF). Modified on 10/16/2009 (cp, COURT STAFF). (cp, COURT STAFF). (Entered: 10/07/2009)
100 ORDER re 94 RE BRIEFING SCHEDULE AND HEARING DATE. Motion Hearing set for 10/19/2009 10:00 AM.. Signed by Judge Claudia Wilken on 10/7/09. (scc, COURT STAFF) (Filed on 10/7/2009) (Entered: 10/07/2009)
101 EXHIBITS re 35 Declaration in Support,, CORRECTION OF DOCKET # 91 . filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 35 ) (Leyton, Stacey) (Filed on 10/7/2009) (Entered: 10/07/2009)
102 EXHIBITS re 38 Declaration in Support,, CORRECTION OF DOCKET # 93 . filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 38 ) (Leyton, Stacey) (Filed on 10/7/2009) (Entered: 10/07/2009)
103 MOTION for Reconsideration re 100 Set Hearings, Order filed by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Zwibelman, Michael) (Filed on 10/7/2009) (Entered: 10/07/2009)
104 Amended MOTION to Remove Incorrectly Filed Document filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Proposed Order)(Leyton, Stacey) (Filed on 10/7/2009) (Entered: 10/07/2009)
105 Memorandum in Opposition re 103 MOTION for Reconsideration re 100 Set Hearings, Order filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Leyton, Stacey) (Filed on 10/7/2009) (Entered: 10/07/2009)
106 Letter from Michael A. Zwibelman Re Shutdown of ECF System. (Zwibelman, Michael) (Filed on 10/8/2009) (Entered: 10/08/2009)
107 Letter from Dara Schur, Atty for Plaintiffs re: ECF Filing on Monday, October 12, 2009. (Schur, Dara) (Filed on 10/8/2009) (Entered: 10/08/2009)
108 ORDER by Judge Claudia Wilken granting 104 Motion to Remove Incorrectly Filed Document (scc, COURT STAFF) (Filed on 10/9/2009) (Entered: 10/09/2009)
109 SUMMONS Returned Executed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Service Employees International Union United Health Care Workers West, SEIU United Long−Term Care Workers. California Department of Health Care Services served on 10/1/2009, answer due 10/21/2009; California Department of Social Services served on 10/1/2009, answer due 10/21/2009; David Maxwell−Jolly served on 10/1/2009, answer due 10/21/2009; John Wagner served on 10/1/2009, answer due 10/21/2009. (Leyton, Stacey) (Filed on 10/9/2009) (Entered: 10/09/2009)

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110 ORDER by Judge Claudia Wilken denying 103 CALIFORNIA STATE DEFENDANTS REQUEST FOR RECONSIDERATION OF OCTOBER 7, 2009 ORDER RE BRIEFING SCHEDULE AND HEARING DATE (scc, COURT STAFF) (Filed on 10/9/2009) (Entered: 10/09/2009)
111 FURTHER ORDER ON BRIEFING SCHEDULE (cwlc3, COURT STAFF) (Filed on 10/9/2009) (Entered: 10/09/2009)
112 Memorandum in Opposition to Motion for Temporary Restraining Order and/or Preliminary Injunction filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 10/13/2009) (Entered: 10/13/2009)
113 DECLARATION of Eileen Carroll in support of re 112 Memorandum in Opposition, to Motion for TRO and/or Preliminary Injunction filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Related document(s) 112 ) (Brown, Gregory) (Filed on 10/13/2009) Modified on 10/14/2009 (cp, COURT STAFF). (Entered: 10/13/2009)
114 DECLARATION of Ernest Cowles in support of re 112 Memorandum in Opposition, to Motion for TRO/Preliminary Injunction filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 112 ) (Brown, Gregory) (Filed on 10/13/2009) Modified on 10/14/2009 (cp, COURT STAFF). (Entered: 10/13/2009)
115 DECLARATION of Toby Douglas in support of re 112 Memorandum in Opposition, in Opposition to Motion for TRO and/or Preliminary Injunction filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 112 ) (Brown, Gregory) (Filed on 10/13/2009) Modified on 10/14/2009 (cp, COURT STAFF). (Entered: 10/13/2009)
116 DECLARATION of Janet Nicholson in support of re 112 Memorandum in Opposition to Motion for TRO and/or Preliminary Injunction filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 112 ) (Brown, Gregory) (Filed on 10/13/2009) Modified on 10/14/2009 (cp, COURT STAFF). (Entered: 10/13/2009)
117 DECLARATION of Brian Winfield in support of re 112 Memorandum in Opposition to Motion for TRO and/or Preliminary Injunction filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 112 ) (Brown, Gregory) (Filed on 10/13/2009) Modified on 10/14/2009 (cp, COURT STAFF). (Entered: 10/13/2009)
118 MOTION Exceed Page Limits re 112 Memorandum in Opposition, Administrative Motion to Exceed Page Limits and File 35−Page Opposition Brief filed by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Proposed Order Proposed Order)(Brown, Gregory) (Filed on 10/13/2009) Modified on 10/14/2009 (cp, COURT STAFF). (Entered: 10/13/2009)
119 Request for Judicial Notice filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Related document(s) 112 ) (Brown, Gregory) (Filed on 10/13/2009) Modified on 10/14/2009 (cp, COURT STAFF). (Entered: 10/13/2009)
120 OBJECTIONS to evidence filed by plaintiffs in support of Motion for Temporary Restraining Order and/or Preliminary Injunction by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 10/13/2009) Modified on 10/14/2009 (cp, COURT STAFF). (Entered: 10/13/2009)
121 CERTIFICATE OF SERVICE by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner (Brown, Gregory) (Filed on 10/13/2009) (Entered: 10/13/2009)

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122 Declaration of Nancy Lagahid in Support of 16 MOTION for Temporary Restraining Order Notice of Motion and Motion for Temporary Restraining Order and/or Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof CORRECTION OF DOCKET # 99 . filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 16 ) (Leyton, Stacey) (Filed on 10/13/2009) (Entered: 10/13/2009)
123 MOTION to Remove Incorrectly Filed Document filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Proposed Order)(Leyton, Stacey) (Filed on 10/13/2009) (Entered: 10/13/2009)
124 NOTICE of Appearance by Ann Esther Menasche (Menasche, Ann) (Filed on 10/13/2009) (Entered: 10/13/2009)
125 Emergency MOTION for Temporary Restraining Order filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
126 Declaration of Stacey Leyton in Support of 125 Emergency MOTION for Temporary Restraining Order filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 125 ) (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
127 Proposed Order re 125 Emergency MOTION for Temporary Restraining Order by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
128 ORDER by Judge Claudia Wilken granting 125 Motion for TRO (scc, COURT STAFF) (Filed on 10/14/2009) (Entered: 10/14/2009)
129 ORDER by Judge Claudia Wilken granting 118 MOTION Exceed Page Limits (scc, COURT STAFF) (Filed on 10/14/2009) (Entered: 10/14/2009)
130 ORDER by Judge Claudia Wilken granting 123 Motion to Remove Incorrectly Filed Document (scc, COURT STAFF) (Filed on 10/14/2009) (Entered: 10/14/2009)
131 Declaration of Elena Ackel in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
132 Supplemental Declaration of Gerald Aho in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
133 Declaration of A. E. Benjamin in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A,

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# 2 Exhibit B)(Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
134 Declaration of Daniel Brzovic in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
135 Declaration of Rose Brown in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
136 Supplemental Declaration of Lee Collins in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
137 Supplemental Declaration of Mary Drass in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
138 Supplemental Declaration of William Gardner in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
139 Declaration of Sue Good in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
140 Supplemental Declaration of Ann Guerra in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
141 Supplemental Declaration of Diane Kaljian in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
142 Supplemental Declaration of Nancy Lagahid in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers

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West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
143 Declaration of Thomas Love in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
144 Supplemental Declaration of Joyce McHenry in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
145 Supplemental Declaration of Anthony Nicco in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
146 Declaration of David Oster in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
147 Declaration of Crystal Padilla in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
148 Supplemental Declaration of Anna Rich in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
149 Declaration of Michelle Rivera in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
150 Declaration of Kathleen Rossow in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
151 Declaration of Lisa Rosene in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic

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Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
152 Declaration of Stacy Schneider in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
153 Supplemental Declaration of Nicole Taggares in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) Modified on 10/15/2009 (cp, COURT STAFF). (Entered: 10/14/2009)
154 Declaration of Fred Thomson in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
155 Declaration of Kim Williams in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
156 Declaration of Karen Keeslar in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
157 Declaration of Ellen Goldblatt in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/14/2009) (Entered: 10/14/2009)
158 Reply Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/15/2009) (Entered: 10/15/2009)
159 RESPONSE to Defendants' Objections to Evidence in Support of Plaintiffs' Motion for Preliminary Injunction by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/15/2009) Modified on 10/16/2009 (cp, COURT STAFF). (Entered: 10/15/2009)
160 OBJECTIONS to Evidence Submitted by Defendants in Support of Their Opposition to Plaintiffs' Motion for Temporary Restraining Order and/or Preliminary Injunction by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/15/2009) Modified on 10/16/2009 (cp, COURT STAFF). (Entered: 10/15/2009)

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161 MOTION for Leave to File Excess Pages for Reply Brief in Support of Preliminary Injunction filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. Motion Hearing set for 10/19/2009 10:00 AM in Courtroom 2, 4th Floor, Oakland. (Leyton, Stacey) (Filed on 10/15/2009) Modified on 10/16/2009 (cp, COURT STAFF). (Entered: 10/15/2009)
162 Declaration of Stacey M. Leyton in Support of Plaintiffs' Motion for Administrative Relief to Exceed Page Limitation for Preliminary Injunction Reply Brief filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/15/2009) (Entered: 10/15/2009)
163 Proposed Order re 161 MOTION for Leave to File Excess Pages for Reply Brief in Support of Preliminary Injunction by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/15/2009) Modified on 10/16/2009 (cp, COURT STAFF). (Entered: 10/15/2009)
164 Declaration of Roger Brant in Support of 158 Reply Memorandum, filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 158 ) (Leyton, Stacey) (Filed on 10/15/2009) (Entered: 10/15/2009)
165 Supplemental Declaration of Nicholas Kline in Support of 158 Reply Memorandum, filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 158 ) (Leyton, Stacey) (Filed on 10/15/2009) Modified on 10/16/2009 (cp, COURT STAFF). (Entered: 10/15/2009)
166 Index of Declarations Filed in Support of Plaintiffs' re 158 Reply filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 158 ) (Leyton, Stacey) (Filed on 10/15/2009) Modified on 10/16/2009 (cp, COURT STAFF). (Entered: 10/15/2009)
167 CERTIFICATE OF SERVICE by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO (Cervantez, Eve) (Filed on 10/15/2009) (Entered: 10/15/2009)
168 NOTICE by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO of Technical Difficulties (Leyton, Stacey) (Filed on 10/15/2009) (Entered: 10/15/2009)
169 MOTION for Reconsideration re 128 Order on Motion for TRO filed by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 10/15/2009) (Entered: 10/15/2009)
170 Declaration of Gregory D. Brown in Support of 169 MOTION for Reconsideration re 128 Order on Motion for TRO filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Exhibit Exhibit A)(Related document(s) 169 ) (Brown, Gregory) (Filed on 10/15/2009) (Entered: 10/15/2009)

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10/15/2009 10/15/2009
10/15/2009
10/15/2009
10/16/2009 10/19/2009
10/19/2009 10/19/2009 10/19/2009 10/19/2009 10/19/2009 10/19/2009 10/20/2009

171 Declaration of Ralph Petty in Support of 169 MOTION for Reconsideration re 128 Order on Motion for TRO filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 169 ) (Brown, Gregory) (Filed on 10/15/2009) (Entered: 10/15/2009)
172 Memorandum in Opposition to Motion for Reconsideration filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (Leyton, Stacey) (Filed on 10/15/2009) (Entered: 10/15/2009)
173 Declaration of Dara Schur In Support of Opposition to Motion for Reconsideration filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (Leyton, Stacey) (Filed on 10/15/2009) (Entered: 10/15/2009)
174 Declaration of Eve H. Cervantez in Support of 172 Memorandum in Opposition, to Motion for Reconsideration filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (Attachments: # 1 Exhibit A)(Related document(s) 172 ) (Leyton, Stacey) (Filed on 10/15/2009) (Entered: 10/15/2009)
175 CASE MANAGEMENT SCHEDULING ORDER FOR REASSIGNED CIVIL CASE: Case Management Conference set for 4/13/2010 02:00 PM.. Signed by Judge Claudia Wilken on 10/16/09. (scc, COURT STAFF) (Filed on 10/16/2009) (Entered: 10/16/2009)
176 (Proposed) Preliminary Injunction Order by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (Cervantez, Eve) (Filed on 10/19/2009) Modified on 10/20/2009 (cp, COURT STAFF). (Entered: 10/19/2009)
177 ORDER by Judge Claudia Wilken granting 2 Ex Parte Application (scc, COURT STAFF) (Filed on 10/19/2009) (Entered: 10/19/2009)
178 ORDER granting Ex Parte Application to Proceed Under Fictitious Names. Signed by Judge Claudia Wilken on 10/19/09. (scc, COURT STAFF) (Filed on 10/19/2009) (Entered: 10/19/2009)
179 ORDER granting Ex Parte Appointment of Guardian Ad Litem for Plaintiff C.R. Signed by Judge Claudia Wilken on 10/19/09. (scc, COURT STAFF) (Filed on 10/19/2009) (Entered: 10/19/2009)
180 ORDER granting ex parte application and ex parte appointment of guardian ad litem cor V.L. Signed by Judge Claudia Wilken on 10/19/09. (scc, COURT STAFF) (Filed on 10/19/2009) (Entered: 10/19/2009)
181 Minute Entry: Motion Hearing held on 10/19/2009 before Claudia Wilken (Date Filed: 10/19/2009) re 16 Motion for Temporary Restraining Order and/or Preliminary Injunction. (Court Reporter Raynee Mercado.) (scc, COURT STAFF) (Date Filed: 10/19/2009) (Entered: 10/19/2009)
182 ORDER by Judge Claudia Wilken granting 16 Motion for Preliminary Injunction (cwlc3, COURT STAFF) (Filed on 10/19/2009) (Entered: 10/19/2009)
183 PLAINTIFFS ADDITIONAL RESPONSE RE: IMPLEMENTATION ISSUES filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/20/2009) Modified on

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10/20/2009 10/20/2009 10/20/2009
10/20/2009 10/20/2009 10/21/2009 10/21/2009 10/21/2009 10/22/2009 10/22/2009 10/23/2009

10/21/2009 (cp, COURT STAFF). (Entered: 10/20/2009)
184 Declaration of Michelle Callahan in Support of 183 Response filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 183 ) (Leyton, Stacey) (Filed on 10/20/2009) Modified on 10/21/2009 (cp, COURT STAFF). (Entered: 10/20/2009)
185 Declaration of Leland Collins in Support of 183 Response filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 183 ) (Leyton, Stacey) (Filed on 10/20/2009) Modified on 10/21/2009 (cp, COURT STAFF). (Entered: 10/20/2009)
186 Declaration of Diane Kaljian in Support of 183 Response filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 183 ) (Leyton, Stacey) (Filed on 10/20/2009) Modified on 10/21/2009 (cp, COURT STAFF). (Entered: 10/20/2009)
187 Declaration of Anthony Nicco in Support of 183 Response filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 183 ) (Leyton, Stacey) (Filed on 10/20/2009) Modified on 10/21/2009 (cp, COURT STAFF). (Entered: 10/20/2009)
188 [PROPOSED] FURTHER PRELIMINARY INJUNCTION by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/20/2009) Modified on 10/21/2009 (cp, COURT STAFF). (Entered: 10/20/2009)
192 Response Re: Implementation Issues filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 10/21/2009) Modified on 10/22/2009 (cp, COURT STAFF). (Entered: 10/21/2009)
193 Declaration of Eva L. Lopez in Support of 192 Response Re: Implementation Issues filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Exhibit Exhibit A)(Related document(s) 192 ) (Brown, Gregory) (Filed on 10/21/2009) Modified on 10/22/2009 (cp, COURT STAFF). (Entered: 10/21/2009)
194 Declaration of Susan Quichocho in Support of 192 Response Re: Implementation Issues filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 192 ) (Brown, Gregory) (Filed on 10/21/2009) Modified on 10/22/2009 (cp, COURT STAFF). (Entered: 10/21/2009)
195 ORDER by Judge Claudia Wilken granting 161 Motion for Leave to File Excess Pages (CW, COURT STAFF) (Filed on 10/22/2009) (Entered: 10/22/2009)
196 SUPPLEMENTAL RESPONSE RE IMPLEMENTATION ISSUES filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/22/2009) Modified on 10/23/2009 (kc, COURT STAFF). (Entered: 10/22/2009)
197 Supplemental Response Re: Implementation Issues filed byCalifornia Department of Health Care Services, California Department of Social Services, David

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11/10/2009
11/10/2009

Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 10/23/2009) Modified on 10/26/2009 (cp, COURT STAFF). (Entered: 10/23/2009)
198 ORDER by Judge Claudia Wilken granting 16 MOTION Preliminary Injunction; denying without prejudice 20 Motion to Certify Class; denying 169 Motion for Reconsideration; (scc, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/23/2009)
199 STIPULATION AND (PROPOSED) ORDER Re: Notices by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner, C.R., Dotty Jones, David Oster, Willie Beatric Sheppard, V.L.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Brown, Gregory) (Filed on 10/24/2009) Modified on 10/26/2009 (cp, COURT STAFF). Modified on 10/26/2009 (cp, COURT STAFF). (Entered: 10/24/2009)
200 STIPULATION Extending Defendants' Time to Respond to First Amended Complaint by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner, C.R. David Oster, SEIU California, et al . (Brown, Gregory) (Filed on 10/24/2009) Modified on 10/26/2009 (cp, COURT STAFF). (Entered: 10/24/2009)
201 ORDER re 199 granting STIPULATION Re: Notices. Signed by Judge Claudia Wilken on 10/27/09. (scc, COURT STAFF) (Filed on 10/27/2009) (Entered: 10/27/2009)
202 Certification of Compliance with Preliminary Injunction by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Brown, Gregory) (Filed on 10/29/2009) Modified on 10/30/2009 (cp, COURT STAFF). (Entered: 10/29/2009)
203 NOTICE of Appearance by Casey Austin Roberts (Roberts, Casey) (Filed on 10/30/2009) (Entered: 10/30/2009)
204 MOTION to Dismiss Amended Complaint filed by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. Motion Hearing set for 12/17/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: # 1 Proposed Order)(Brown, Gregory) (Filed on 11/9/2009) (Entered: 11/09/2009)
205 Request for Judicial Notice re 204 MOTION to Dismiss Amended Complaint filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 204 ) (Brown, Gregory) (Filed on 11/9/2009) (Entered: 11/09/2009)
206 MOTION for Sanctions Plaintiffs' Motion for Civil Contempt Sanctions Or In The Alternative For A Further Preliminary Injunction; Memorandum of Points and Authorities In Support filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 11/10/2009) Modified on 11/12/2009 (kc, COURT STAFF). (Entered: 11/10/2009)
207 Ex Parte Application Plaintiffs' Ex Parte Motion to Shorten Time for 206 Motion for Civil Contempt Sanctions or in the Alternative For a Further Preliminary Injunction filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 11/10/2009) Modified on 11/12/2009 (kc, COURT STAFF). (Entered: 11/10/2009)
208 Declaration of Melinda Bird in Support of 206 MOTION for Sanctions Plaintiffs' Motion for Civil Contempt Sanctions Or In The Alternative For A Further Preliminary Injunction; Memorandum of Points and Authorities In Support filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 37 of 75

11/10/2009
11/10/2009 11/10/2009 11/10/2009
11/10/2009 11/10/2009 11/10/2009 11/12/2009 11/13/2009 11/13/2009

3930, AFL−CIO. (Related document(s) 206 ) (Leyton, Stacey) (Filed on 11/10/2009) (Entered: 11/10/2009)
209 Declaration of Susannah McDevitt in Support of 206 MOTION for Sanctions Plaintiffs' Motion for Civil Contempt Sanctions Or In The Alternative For A Further Preliminary Injunction; Memorandum of Points and Authorities In Support filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 206 ) (Leyton, Stacey) (Filed on 11/10/2009) (Entered: 11/10/2009)
210 Proposed Order re 207 Ex Parte Application Plaintiffs' Ex Parte Motion to Shorten Time for Motion for Civil Contempt Sanctions or in the Alternative For a Further Preliminary Injunction by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 11/10/2009) (Entered: 11/10/2009)
211 Proposed Order re 206 MOTION for Sanctions Plaintiffs' Motion for Civil Contempt Sanctions Or In The Alternative For A Further Preliminary Injunction; Memorandum of Points and Authorities In Support by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 11/10/2009) (Entered: 11/10/2009)
212 Declaration of Eve Cervantez in Support of 206 MOTION for Sanctions Plaintiffs' Motion for Civil Contempt Sanctions Or In The Alternative For A Further Preliminary Injunction; Memorandum of Points and Authorities In Support filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 206 ) (Cervantez, Eve) (Filed on 11/10/2009) (Entered: 11/10/2009)
213 Memorandum in Opposition to 207 Plaintiffs' Ex Parte Motion to Shorten Time filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 11/10/2009) Modified on 11/12/2009 (kc, COURT STAFF). (Entered: 11/10/2009)
214 RESPONSE in Support re 207 Ex Parte Application Plaintiffs' Ex Parte Motion to Shorten Time for Motion for Civil Contempt Sanctions or in the Alternative For a Further Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 11/10/2009) (Entered: 11/10/2009)
215 ORDER by Judge Claudia Wilken GRANTING 207 Plaintiffs' Ex Parte Motion to Shorten Time for Hearing Motion for Civil Contempt Sanctions or in the Alternative for a Further Preliminary Injunction (cwlc2, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/10/2009)
Set/Reset Hearings: Motion Hearing set for 11/19/2009 02:00 PM. (scc, COURT STAFF) (Filed on 11/12/2009) (Entered: 11/12/2009)
216 Memorandum in Opposition to Plaintiffs' Motion for Civil Contempt Sanctions or in the Alternative for a Further Preliminary Injunction filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 11/13/2009) (Entered: 11/13/2009)
217 Declaration of Ruben Romero in Support of 216 Memorandum in Opposition, filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 216 ) (Brown,

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11/13/2009 11/13/2009 11/16/2009
11/16/2009
11/16/2009 11/16/2009
11/17/2009 11/17/2009 11/18/2009 11/18/2009 11/19/2009 11/19/2009

Gregory) (Filed on 11/13/2009) (Entered: 11/13/2009)
218 Declaration of Gregory D. Brown in Support of 216 Memorandum in Opposition, filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 216 ) (Brown, Gregory) (Filed on 11/13/2009) (Entered: 11/13/2009)
219 STIPULATION to Revise Hearing Date and Briefing Schedule; Proposed Order by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard, V.L., California Department of Health Care Services, SEIU Local 521, et al. (Bird, Melinda) (Filed on 11/13/2009) Modified on 11/16/2009 (cp, COURT STAFF). (Entered: 11/13/2009)
220 Reply Brief In Support of Motion For Civil Contempt Sanctions Or In The Alternative For A Further Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 11/16/2009) Modified on 11/17/2009 (cp, COURT STAFF). (Entered: 11/16/2009)
221 Supplemental Declaration of Anthony Nicco filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 11/16/2009) Modified on 11/17/2009 (cp, COURT STAFF). (Entered: 11/16/2009)
222 Proposed Order Granting Plaintiffs' Motion for Civil Contempt Sanctions by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 11/16/2009) (Entered: 11/16/2009)
223 Reply Declaration of Eve Cervantez In Support Of Motion for Civil Contempt Sanctions Or In The Alternative For A Further Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cervantez, Eve) (Filed on 11/16/2009) Modified on 11/17/2009 (cp, COURT STAFF). (Entered: 11/16/2009)
224 NOTICE OF APPEAL as to 182 Order, 198 Order by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. Filing fee $ 455.00, receipt #44611004459. (cp, COURT STAFF) (Filed on 11/17/2009) (Entered: 11/18/2009)
225 RECEIVED: Civil Appeals Docketing Statement forwarded to 9th Circuit US Court of Appeals by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner re 224 Notice of Appeal, (cp, COURT STAFF) (Filed on 11/17/2009) (Entered: 11/18/2009)
Copy of Notice of Appeal and Docket sheet mailed to all counsel (cp, COURT STAFF) (Filed on 11/18/2009) (Entered: 11/18/2009)
226 ORDER re 219 GRANTING AS MODIFIED STIPULATION to Revise Hearing Date and Briefing Schedule. Signed by Judge CLAUDIA WILKEN on 11/18/09. (scc, COURT STAFF) (Filed on 11/18/2009) (Entered: 11/18/2009)
227 USCA Case Number 09−17581 Ninth Circuit Court of Appeals for 224 Notice of Appeal, filed by David Maxwell−Jolly, John Wagner, California Department of Health Care Services, California Department of Social Services. (kk, COURT STAFF) (Filed on 11/19/2009) (Entered: 11/19/2009)
228 Declaration of Stacey Leyton in Support of 206 MOTION for Civil Contempt Sanctions Or In The Alternative For A Further Preliminary Injunction filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 39 of 75

11/19/2009 11/19/2009 11/19/2009 11/19/2009 11/19/2009 11/19/2009
11/20/2009
11/20/2009
11/20/2009 11/23/2009

United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 206 ) (Leyton, Stacey) (Filed on 11/19/2009) (Entered: 11/19/2009)
229 Supplemental Certification of Compliance with Preliminary Injunction by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 11/19/2009) Modified on 11/20/2009 (cp, COURT STAFF). (Entered: 11/19/2009)
230 Supplemental Declaration of Ruben Romero in Support of 216 Memorandum in Opposition, filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 216 ) (Brown, Gregory) (Filed on 11/19/2009) Modified on 11/20/2009 (cp, COURT STAFF). (Entered: 11/19/2009)
231 Declaration of Johanna Hester filed bySEIU California State Council, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A) (Leyton, Stacey) (Filed on 11/19/2009) Modified on 11/20/2009 (cp, COURT STAFF). (Entered: 11/19/2009)
232 Declaration of Julie Belzman filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Cervantez, Eve) (Filed on 11/19/2009) (Entered: 11/19/2009)
233 Second Supplemental Declaration of Ruben Romero in Support of 216 Memorandum in Opposition, filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 229 , 216 ) (Brown, Gregory) (Filed on 11/19/2009) Modified on 11/20/2009 (cp, COURT STAFF). (Entered: 11/19/2009)
252 Minute Entry: Motion Hearing held on 11/19/2009 before Claudia Wilken (Date Filed: 11/19/2009) re 206 MOTION for Civil Contempt Sanctions Or In The Alternative For A Further Preliminary Injunction filed by California United Homecare Workers, Service Employees International Union United Health Care Workers West, SEIU California State Council, SEIU Local 521, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, SEIU United Long−Term Care Workers. (Court Reporter Kelly Bryce, pro tem.) (scc, COURT STAFF) (Date Filed: 11/19/2009) (Entered: 11/30/2009)
234 Supplemental Declaration of RUBEN ROMERO in Support of 216 DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR CIVIL CONTEMPT SANCTION OR IN THE ALTERNATIVE FOR A FURTHER PRELIMINARY INJNCTION filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 216 ) (Carson, Susan) (Filed on 11/20/2009) Modified on 11/23/2009 (cp, COURT STAFF). (Entered: 11/20/2009)
235 FURTHER SUPPLEMENTAL DECLARATION OF RUBEN ROMERO IN SUPPORT OF CALIFORNIA STATE DEFENDANTS 216 OPPOSITION TO PLAINTIFFS MOTION FOR CIVIL CONTEMPT SANCTION OR IN THE ALTERNATIVE FOR A FURTHER PRELIMINARY INJUNCTION filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 216 ) (Carson, Susan) (Filed on 11/20/2009) Modified on 11/23/2009 (cp, COURT STAFF). (Entered: 11/20/2009)
253 Minute Entry: Status Conference (Date Filed: 11/20/2009). Status Conference set for 11/23/2009 02:00 PM. (Court Reporter Kelly Bryce, pro tem.) (scc, COURT STAFF) (Date Filed: 11/20/2009) (Entered: 11/30/2009)
236 Declaration of Daniel Rosenthal filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 40 of 75

11/23/2009 11/23/2009
11/23/2009 11/23/2009 11/24/2009 11/25/2009 11/25/2009 11/25/2009
11/25/2009
11/25/2009

Exhibit A−E)(Leyton, Stacey) (Filed on 11/23/2009) (Entered: 11/23/2009)
237 Fifth Supplemental Declaration of Ruben Romero in Support of 216 Memorandum in Opposition, filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 216 ) (Brown, Gregory) (Filed on 11/23/2009) Modified on 11/24/2009 (cp, COURT STAFF). (Entered: 11/23/2009)
238 Transcript of Proceedings held on 11/19/09, before Judge Claudia Wilken. Court Reporter/Transcriber Kelly Bryce, E−mail courtreporter232@aol.com Telephone number (510)828−9404. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/18/2010. (Bryce, Kelly) (Filed on 11/23/2009) (Entered: 11/23/2009)
239 CLERKS NOTICE RESCHEDULING FURTHER HEARING ON MOTION FOR CONTEMPT. Status Conference set for 11/24/2009 02:00 PM. (scc, COURT STAFF) (Filed on 11/23/2009) (Entered: 11/23/2009)
254 Minute Entry: Status Conference (Date Filed: 11/23/2009). Status Conference set for 11/24/2009 02:00 PM. (Court Reporter Sarah Goekler, pro tem.) (scc, COURT STAFF) (Date Filed: 11/23/2009) (Entered: 11/30/2009)
255 Minute Entry: Status Conference (Date Filed: 11/24/2009). Status Conference set for 11/25/2009 01:50 PM. (Court Reporter Kelly Bryce, pro tem.) (scc, COURT STAFF) (Date Filed: 11/24/2009) (Entered: 11/30/2009)
240 MOTION for Clarification re Use of Provider Information, filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Cervantez, Eve) (Filed on 11/25/2009) Modified on 12/1/2009 (jlm, COURT STAFF). (Entered: 11/25/2009)
241 Proposed Order re 240 Motion for Clarification re Use of Provider Information by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Cervantez, Eve) (Filed on 11/25/2009) Modified on 12/1/2009 (jlm, COURT STAFF). (Entered: 11/25/2009)
242 Declaration of Eve Cervantez in Support of 240 Motion for Clarification re Use of Provider Information filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 240 ) (Cervantez, Eve) (Filed on 11/25/2009) Modified on 12/1/2009 (jlm, COURT STAFF). (Entered: 11/25/2009)
243 Declaration of Johanna Hester in Support of 240 Motion for Clarification re Use of Provider Information filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 240 ) (Cervantez, Eve) (Filed on 11/25/2009) Modified on 12/1/2009 (jlm, COURT STAFF). (Entered: 11/25/2009)
244 Declaration of Dereck Smith in Support of 240 Motion for Clarification re Use of Provider Information filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 240 ) (Cervantez, Eve) (Filed on 11/25/2009) Modified on 12/1/2009 (jlm, COURT STAFF). (Entered: 11/25/2009)

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 41 of 75

11/25/2009
11/25/2009
11/25/2009
11/25/2009 11/25/2009
11/25/2009
11/25/2009 11/25/2009 11/30/2009 11/30/2009 11/30/2009

245 Declaration of Rebecca Malberg in Support of 240 Motion for Clarification re Use of Provider Information filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 240 ) (Cervantez, Eve) (Filed on 11/25/2009) Modified on 12/1/2009 (jlm, COURT STAFF). (Entered: 11/25/2009)
246 Transcript of Proceedings held on 11/20/09, before Judge Claudia Wilken. Court Reporter/Transcriber Kelly Bryce, E−mail courtreporter232@aol.com Telephone number (510)828−9404. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/22/2010. (Bryce, Kelly) (Filed on 11/25/2009) (Entered: 11/25/2009)
247 Transcript of Proceedings held on 11/24/09, before Judge Claudia Wilken. Court Reporter/Transcriber Kelly Bryce, E−mail courtreporter232@aol.com Telephone number (510)828−9404. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/22/2010. (Bryce, Kelly) (Filed on 11/25/2009) (Entered: 11/25/2009)
248 ORDER by Judge Claudia Wilken granting in part 206 Plaintiffs' Motion for Civil Contempt Sanctions and Enforcing the Injunction (cwlc3, COURT STAFF) (Filed on 11/25/2009) (Entered: 11/25/2009)
249 Supplemental RESPONSE in Support re 206 Contempt Motion re Notice to Counties filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Appendix A)(Cervantez, Eve) (Filed on 11/25/2009) Modified on 12/1/2009 (jlm, COURT STAFF). (Entered: 11/25/2009)
250 Declaration of Eve Cervantez in Support re 249 Supplemental Response in Support of Contempt Motion re Notice to Counties filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Cervantez, Eve) (Filed on 11/25/2009) Modified on 12/1/2009 (jlm, COURT STAFF). (Entered: 11/25/2009)
256 Minute Entry: Status Conference (Date Filed: 11/25/2009). Status Conference set for 11/30/2009 02:00 PM. (Court Reporter David Disbrow, pro tem.) (scc, COURT STAFF) (Date Filed: 11/25/2009) (Entered: 11/30/2009)
260 Transcript Designation and Ordering Form for proceedings held on 10/19/09 before Judge Claudia Wilken, re 224 Notice of Appeal, Transcript due by 12/28/2009. (jlm, COURT STAFF) (Filed on 11/25/2009) (Entered: 11/30/2009)
251 Memorandum in Opposition 249 Supplemental Response Re: Provider Notices filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 11/30/2009) Modified on 12/1/2009 (vlk, COURT STAFF). (Entered: 11/30/2009)
Set/Reset Hearings: Status Conference set for 11/20/2009 01:30 PM. (scc, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
257 ORDER On Supplemental Notice to Counties Re: Provider Time−Cards For Hours Worked in November, 2009. Signed by Judge Claudia Wilken on 11/30/09. (cwlc3, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 42 of 75

11/30/2009 11/30/2009 12/01/2009 12/02/2009 12/03/2009
12/03/2009 12/04/2009 12/10/2009 12/10/2009
12/10/2009
12/10/2009

258 ORDER by Judge Claudia Wilken granting 240 Plaintiffs' Motion for Clarification re Use of Provider Information (scc, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
259 Minute Entry: Status Conference (Date Filed: 11/30/2009). Status Conference set for 12/1/2009 02:00 PM. (Court Reporter Diane Skillman.) (scc, COURT STAFF) (Date Filed: 11/30/2009) (Entered: 11/30/2009)
263 Minute Entry: Status Conference (Date Filed: 12/1/2009). (Court Reporter Diane Skillman.) (scc, COURT STAFF) (Date Filed: 12/1/2009) (Entered: 12/03/2009)
261 Declaration of Eileen Carroll Re: Compliance with Preliminary Injunction filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 12/2/2009) (Entered: 12/02/2009)
262 Transcript of Proceedings held on 11/23/09, before Judge Wilken. Court Reporter/Transcriber Sarah Goekler, Telephone number (530)941−2621; email: sgoekler25@yahoo.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/1/2010. (slg, COURT STAFF) (Filed on 12/3/2009) (Entered: 12/03/2009)
264 AMENDED NOTICE OF APPEAL as to 258 Order on Motion for Miscellaneous Relief, 257 Order, 248 Order on Motion for Sanctions, 198 Order on Motion to Certify Class, Order on Motion for Reconsideration by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 12/3/2009) Modified on 12/4/2009 (kc, COURT STAFF). (Entered: 12/03/2009)
265 ORDER of USCA as to 264 Amended Notice of Appeal denying motion for stay (kk, COURT STAFF) (Filed on 12/4/2009) (Entered: 12/04/2009)
266 TRANSCRIPT DESIGNATION AND ORDERING FORM, filed by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner for proceedings held on 11/19/09, 11/20/09, 11/23/09, 11/24/09, 11/25/09, 11/30/09, 12/01/09 before Judge Claudia Wilken.. (Brown, Gregory) (Filed on 12/10/2009) Modified on 12/11/2009 (jlm, COURT STAFF). (Entered: 12/10/2009)
267 Memorandum in Opposition re 204 Motion to Dismiss Amended Complaint filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, David Oster, Willie Beatrice Sheppard, V.L.. (Leyton, Stacey) (Filed on 12/10/2009) Modified on 12/11/2009 (jlm, COURT STAFF). Modified on 12/11/2009 (jlm, COURT STAFF). (Entered: 12/10/2009)
268 Request for Judicial Notice re 267 Memorandum in Opposition, filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 267 ) (Leyton, Stacey) (Filed on 12/10/2009) Modified on 12/11/2009 (jlm, COURT STAFF). (Entered: 12/10/2009)
269 Declaration of Melinda Bird in Support of 267 Memorandum in Opposition, filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 267 ) (Leyton, Stacey) (Filed on 12/10/2009) Modified on 12/14/2009 (jlm, COURT STAFF). (Entered: 12/10/2009)

Case: 4:09-cv-4668 As of: 10/25/2015 06:13 PM PDT 43 of 75

12/11/2009 12/11/2009 12/11/2009 12/23/2009 12/23/2009 12/23/2009 12/23/2009

270 Transcript of Proceedings held on October 19, 2009, before Judge Claudia Wilken. Court Reporter Raynee H. Mercado, Telephone number 510−502−6175, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 12/29/2009. Redacted Transcript Deadline set for 1/8/2010. Release of Transcript Restriction set for 3/8/2010. (rhm, ) (Filed on 12/11/2009) (Entered: 12/11/2009)
271 Transcript of Proceedings held on November 30, 2009, before Judge Claudia Wilken. Court Reporter/Transcriber Diane E. Skillman, Telephone number 510−451−2930. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 12/29/2009. Redacted Transcript Deadline set for 1/8/2010. Release of Transcript Restriction set for 3/8/2010. (Skillman, Diane) (Filed on 12/11/2009) (Entered: 12/11/2009)
272 Transcript of Proceedings held on December 1, 2009, before Judge Claudia Wilken. Court Reporter/Transcriber Diane E. Skillman, Telephone number 510−451−2930. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 12/29/2009. Redacted Transcript Deadline set for 1/8/2010. Release of Transcript Restriction set for 3/8/2010. (Skillman, Diane) (Filed on 12/11/2009) (Entered: 12/11/2009)
273 MOTION for Attorney Fees PLAINTIFFS NOTICE OF APPLICATION AND APPLICATION FOR ATTORNEYS FEES AND EXPENSES filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. Motion Hearing set for 2/4/2010 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Leyton, Stacey) (Filed on 12/23/2009) Modified on 12/24/2009 (kc, COURT STAFF). (Entered: 12/23/2009)
274 Declaration of Eve H. Cervantez in Support of 273 MOTION for Attorney Fees PLAINTIFFS NOTICE OF APPLICATION AND APPLICATION FOR ATTORNEYS FEES AND EXPENSES filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Related document(s) 273 ) (Leyton, Stacey) (Filed on 12/23/2009) (Entered: 12/23/2009)
275 Declaration of Melinda Bird in Support of 273 MOTION for Attorney Fees PLAINTIFFS NOTICE OF APPLICATION AND APPLICATION FOR ATTORNEYS FEES AND EXPENSES filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 273 ) (Leyton, Stacey) (Filed on 12/23/2009) (Entered: 12/23/2009)
276 Declaration of Peter J. Eliasberg in Support of 273 MOTION for Attorney Fees PLAINTIFFS NOTICE OF APPLICATION AND APPLICATION FOR ATTORNEYS FEES AND EXPENSES filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United

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12/24/2009 12/24/2009
12/30/2009 01/05/2010 01/07/2010
01/08/2010 01/14/2010 01/14/2010 01/14/2010 01/21/2010

Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 273 ) (Leyton, Stacey) (Filed on 12/23/2009) (Entered: 12/23/2009)
277 CLERKS NOTICE TAKING MOTION UNDER SUBMISSION. 2/4/10 hearing is vacated. (scc, COURT STAFF) (Filed on 12/24/2009) (Entered: 12/24/2009)
278 STIPULATION and Proposed Order {1} Granting Plaintiffs Leave to File Second Amended Complaint; {2} Setting Briefing Schedule for Defendants' Motion to Dismiss Second Amended Complaint; and {3} Withdrawing Defendants' Motion to Dismiss First Amended Complaint by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Exhibit A)(Brown, Gregory) (Filed on 12/24/2009) Modified on 12/28/2009 (kc, COURT STAFF). (Entered: 12/24/2009)
279 ORDER re 278 GRANTING AS MODIFIED STIPULATION {1} Granting Plaintiffs Leave to File Second Amended Complaint; {2} Setting Briefing Schedule for Defendants' Motion to Dismiss Second Amended Complaint; and {3} Withdrawing Defendants' Motion to Dismiss First Amended Complaint. Plaintiffs shall file the second amended complaint forthwith.. Signed by Judge CLAUDIA WILKEN on 12/30/09. (scc, COURT STAFF) (Filed on 12/30/2009) (Entered: 12/30/2009)
280 AMENDED COMPLAINT Second Amended Complaint against California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. Filed byV.L., Willie Beatrice Sheppard, C.R., Dotty Jones, David Oster. (Bird, Melinda) (Filed on 1/5/2010) (Entered: 01/05/2010)
281 Transcript of Proceedings held on 11/25/2009, before Judge Claudia Wilken. Court Reporter/Transcriber David A. Disbrow, Telephone number 415−298−1538. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 1/28/2010. Redacted Transcript Deadline set for 2/8/2010. Release of Transcript Restriction set for 4/7/2010. (oh, COURT STAFF) (Filed on 1/7/2010) (Entered: 01/07/2010)
282 Certificate of Record forwarded to USCA re appeal 224 Notice of Appeal, 264 Amended Notice of Appeal, : (cp, COURT STAFF) (Filed on 1/8/2010) (Entered: 01/08/2010)
283 Memorandum in Opposition to Plaintiffs' Application for Attorneys' Fees and Expenses filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 1/14/2010) (Entered: 01/14/2010)
284 Declaration of Gregory D. Brown in Support of 283 Memorandum in Opposition, to Plaintiffs' Application for Attorneys' Fees and Expenses filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 283 ) (Brown, Gregory) (Filed on 1/14/2010) (Entered: 01/14/2010)
285 Request for Judicial Notice re 283 Memorandum in Opposition, to Plaintiffs' Application for Attorneys' Fees and Expenses filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Related document(s) 283 ) (Brown, Gregory) (Filed on 1/14/2010) (Entered: 01/14/2010)
286 REPLY BRIEF in Support re 273 MOTION for Attorney Fees and Expenses filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 1/21/2010) Modified on 1/22/2010 (cp, COURT STAFF). (Entered: 01/21/2010)

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01/21/2010
01/21/2010 02/02/2010 02/02/2010 02/03/2010 03/02/2010
03/16/2010 03/23/2010 03/23/2010
03/23/2010

287 Reply Declaration of Eve H. Cervantez in Support of 273 MOTION for Attorney Fees filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 286 ) (Leyton, Stacey) (Filed on 1/21/2010) Modified on 1/22/2010 (cp, COURT STAFF). (Entered: 01/21/2010)
288 Proposed Order re 273 MOTION for Attorney Fees by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 1/21/2010) Modified on 1/22/2010 (cp, COURT STAFF). (Entered: 01/21/2010)
289 MOTION to Dismiss Portions Second Amended Complaint filed by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Proposed Order)(Brown, Gregory) (Filed on 2/2/2010) Modified on 2/3/2010 (cp, COURT STAFF). (Entered: 02/02/2010)
290 Request for Judicial Notice re 289 MOTION to Dismiss Portions Second Amended Complaint filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 289 ) (Brown, Gregory) (Filed on 2/2/2010) Modified on 2/3/2010 (cp, COURT STAFF). (Entered: 02/02/2010)
291 CLERKS NOTICE TAKING MOTION UNDER SUBMISSION. (scc, COURT STAFF) (Filed on 2/3/2010) (Entered: 02/03/2010)
292 Memorandum in Opposition to Defendants' Motion to Dismiss filed byC.R., Dotty Jones, David Oster, Willie Beatrice Sheppard, V.L., California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, FSCME, Local 3930, AFL−CIO. (Attachments: # 1 Affidavit Declaration of Jovan G. Agee, # 2 Affidavit Declaration of Debra Roth)(Bird, Melinda) (Filed on 3/2/2010) Modified on 3/3/2010 (cp, COURT STAFF). (Entered: 03/02/2010)
293 Reply Memorandum re 289 MOTION to Dismiss Portions of Second Amended Complaint filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Brown, Gregory) (Filed on 3/16/2010) (Entered: 03/16/2010)
294 MOTION To File Surreply Or For Oral Argument In Opposition To Defendants' Motion To Dismiss re 289 MOTION to Dismiss Portions of Second Amended Complaint filed by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Cervantez, Eve) (Filed on 3/23/2010) (Entered: 03/23/2010)
295 Declaration of Eve H. Cervantez in Support of 294 MOTION To File Surreply Or For Oral Argument In Opposition To Defendants' Motion To Dismiss re 289 MOTION to Dismiss Portions of Second Amended Complaint MOTION To File Surreply Or For Oral Argument In Opposition To Defendants' Motion To Dismiss re 289 MOTION to Dismiss Portions of Second Amended Complaint filed byCalifornia United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 294 ) (Cervantez, Eve) (Filed on 3/23/2010) (Entered: 03/23/2010)
296 Proposed Order re 294 MOTION To File Surreply Or For Oral Argument In Opposition To Defendants' Motion To Dismiss re 289 MOTION to Dismiss Portions

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04/05/2010
04/07/2010 04/07/2010 04/09/2010 04/23/2010
04/23/2010 04/28/2010 05/04/2010
05/04/2010 05/06/2010 05/07/2010 05/18/2010 07/30/2010

of Second Amended Complaint by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Cervantez, Eve) (Filed on 3/23/2010) Modified on 3/24/2010 (cp, COURT STAFF). (Entered: 03/23/2010)
297 STIPULATION and Proposed Order Continuing Case Management Conference to May 4, 2010 by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner, C.R., Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatric Sheppard, V.L., . (Brown, Gregory) (Filed on 4/5/2010) Modified on 4/6/2010 (cp, COURT STAFF). (Entered: 04/05/2010)
298 ORDER re 297 Granting Stipulation Continuing Case Management Conference to May 4, 2010. Initial Case Management Conference set for 5/4/2010 02:00 PM.Signed by Judge Claudia Wilken on 04/07/2010. (scc, COURT STAFF) (Filed on 4/7/2010) (Entered: 04/07/2010)
***Deadlines terminated. 298 Order, Set Hearings, Terminate Hearings. (scc, COURT STAFF) (Filed on 4/7/2010) (Entered: 04/07/2010)
299 NOTICE of Change of Address by C.R., David Oster, Willie Beatrice Sheppard, V.L. (cp, COURT STAFF) (Filed on 4/9/2010) (Entered: 04/09/2010)
300 STIPULATION AND [PROPOSED] ORDER STAYING ALL DISTRICT COURT PROCEEDINGS PENDING RESOLUTION OF DEFENDANTS' PRELIMINARY INJUNCTION APPEAL IN THE NINTH CIRCUIT by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner, California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU−UHCWW, UDW. (Brown, Gregory) (Filed on 4/23/2010) Modified on 4/26/2010 (cp, COURT STAFF). (Entered: 04/23/2010)
301 JOINT CASE MANAGEMENT STATEMENT filed by California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner, V.L., et al. (Brown, Gregory) (Filed on 4/23/2010) Modified on 4/26/2010 (cp, COURT STAFF). (Entered: 04/23/2010)
302 Certified and Transmitted Record on Appeal to US Court of Appeals re 224 Notice of Appeal, 264 Amended Notice of Appeal, (cp, COURT STAFF) (Filed on 4/28/2010) (Entered: 04/28/2010)
303 ORDER re 300 Granting Stipulation STAYING ALL DISTRICT COURT PROCEEDINGS PENDING RESOLUTION OF DEFENDANTS' PRELIMINARY INJUNCTION APPEAL IN THE NINTH CIRCUIT. Signed by Judge Claudia Wilken on 5/4/2010. (ndr, COURT STAFF) (Filed on 5/4/2010) Modified on 5/5/2010 (cp, COURT STAFF). (Entered: 05/04/2010)
304 Minute Entry: Initial Case Management Conference held on 5/4/2010 before Claudia Wilken (Date Filed: 5/4/2010). (Court Reporter Diane Skillman.) (ndr, COURT STAFF) (Date Filed: 5/4/2010) (Entered: 05/05/2010)
Set/Reset Hearings: Further Case Management Conference set for 8/10/2010 02:00 PM. (cp, COURT STAFF) (Filed on 5/6/2010) (Entered: 05/06/2010)
***Deadlines terminated. Redacted Transcript Deadline, Release of Transcript Restrict 272 , 262 , 238 , 246 , 270 , 247 , 281 , 271 (cp, COURT STAFF) (Filed on 5/7/2010) (Entered: 05/07/2010)
305 Receipt for Appeal Record, received by USCA on 5/13/2010, re 224 Notice of Appeal. (kc, COURT STAFF) (Filed on 5/18/2010) (Entered: 05/19/2010)
306 CLERKS NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 9/7/2010. Case Management Conference set for 9/14/2010 02:00 PM. (ndr, COURT STAFF) (Filed on 7/30/2010) (Entered: 07/30/2010)

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09/03/2010
09/09/2010 10/29/2010 11/02/2010 01/31/2011 02/01/2011 02/03/2011 04/05/2011 04/06/2011 06/01/2011

307 STIPULATION AND PROPOSED ORDER CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS PRELIMINARY INJUNCTION APPEAL IN THE NINTH CIRCUIT by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard, V.L., Service Employees International Union United Health Care Workers West, SEIU United Long−Term Care Workers, SEIU Loca 521, SEIU California State Council, United Domestic Workers of America, California United Homecare Workers. (Nisen, Frederick) (Filed on 9/3/2010) Modified on 9/7/2010 (kc, COURT STAFF). Modified on 9/7/2010 (kk, COURT STAFF). (Entered: 09/03/2010)
308 ORDER re 307 Granting Stipulation CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS PRELIMINARY INJUNCTION APPEAL IN THE NINTH CIRCUIT. Case Management Statement due by 11/2/2010. Case Management Conference set for 11/9/2010 02:00 PM. Signed by Judge Claudia Wilken on 9/9/2010. (ndr, COURT STAFF) (Filed on 9/9/2010) (Entered: 09/09/2010)
309 STIPULATION AND (PROPOSED) ORDER CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS PRELIMINARY INJUNCTION APPEAL IN THE NINTH CIRCUIT by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard, V.L.,SEIU California State Councel, SEIU−UHW, SEIU−ULTC, SEIU Local 521. (Nisen, Frederick) (Filed on 10/29/2010) Modified on 11/1/2010 (cp, COURT STAFF). (Entered: 10/29/2010)
310 ORDER re 309 Granting Stipulation CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS PRELIMINARY INJUNCTION APPEAL IN THE NINTH CIRCUIT. Case Management Statement due by 2/1/2011. Case Management Conference set for 2/8/2011 02:00 PM. Signed by Judge Claudia Wilken on 11/2/2010. (ndr, COURT STAFF) (Filed on 11/2/2010) (Entered: 11/02/2010)
311 ORDER of USCA as to 224 , 264 Notice of Appeals, filed by David Maxwell−Jolly, John Wagner, California Department of Health Care Services, California Department of Social Services (cp, COURT STAFF) (Filed on 1/31/2011) (Entered: 01/31/2011)
312 STIPULATION AND PROPOSED ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE TO APRIL 12, 2011 by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard, V.L., SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, SEIU−UHCWW. (Nisen, Frederick) (Filed on 2/1/2011) Modified on 2/2/2011 (cpS, COURT STAFF). (Entered: 02/01/2011)
313 ORDER Granting 312 Stipulation TO CONTINUE CASE MANAGEMENT CONFERENCE TO APRIL 12, 2011. Case Management Statement due by 4/5/2011. Case Management Conference set for 4/12/2011 02:00 PM. Signed by Judge Claudia Wilken on 2/3/2011. (ndr, COURT STAFF) (Filed on 2/3/2011) (Entered: 02/03/2011)
314 STIPULATION AND (PROPOSED) ORDER CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS' PRELIMINARY INJUNCTION APPEAL IN THE 9TH CIRCUIT by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard, V.L., John Wagner, et al. (Nisen, Frederick) (Filed on 4/5/2011) Modified on 4/6/2011 (cp, COURT STAFF). (Entered: 04/05/2011)
315 ORDER Granting 314 Stipulation CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS' PRELIMINARY INJUNCTION APPEAL IN THE 9TH CIRCUIT. Case Management Statement due by 9/6/2011. Case Management Conference set for 9/13/2011 02:00 PM. Signed by Judge Claudia Wilken on 4/6/2011. (ndr, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
Judge Magistrate Judge James Larson no longer assigned to case., CASE REFERRED to Magistrate Judge Jacqueline Scott Corley for Discovery. All matters scheduled before, and deadlines set by, Judge Larson are hereby vacated. All future discovery matters should be addressed to Judge Corley unless otherwise ordered by the presiding judge. Please contact Judge Corley's courtroom deputy, Ada Means, at (415)522−2015 or Ada_Means@cand.uscourts.gov with any questions or concerns. (ga, COURT STAFF) (Filed on 6/1/2011) (Entered: 06/01/2011)

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06/16/2011 09/06/2011
09/07/2011
09/15/2011

CASE REFERRED to Magistrate Judge Jacqueline Scott Corley for Discovery (cp, COURT STAFF) (Filed on 6/16/2011) (Entered: 06/16/2011)
316 STIPULATION and (Proposed) Order Continuing the Further Case Management Conference pending Resolution of Defendants' Preliminary Injunction Appeal in the Ninth Circuit by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard, V.L., SEIU California State Council, John Wagner, et al. (Nisen, Frederick) (Filed on 9/6/2011) Modified on 9/7/2011 (cp, COURT STAFF). (Entered: 09/06/2011)
317 ORDER Granting 316 Stipulation Continuing the Further Case Management Conference pending Resolution of Defendants' Preliminary Injunction Appeal in the Ninth Circuit. Case Management Statement due by 4/3/2012. Case Management Conference set for 4/10/2012 02:00 PM. Signed by Judge Claudia Wilken on 9/7/2011. (ndr, COURT STAFF) (Filed on 9/7/2011) (Entered: 09/07/2011)
CLERKS NOTICE. Notice is hereby given that the Case Management Conference, previously set for Tuesday, April 10, 2012, is continued to Wednesday, April 11, 2012, at 2:00 p.m., in Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612. Case Management Statement due by April 4, 2012.

(This is a text only docket entry, there is no document associated with this notice.)

11/28/2011 11/28/2011
11/29/2011 11/30/2011 12/01/2011
12/01/2011
12/01/2011
12/01/2011

(ndr, COURT STAFF) (Filed on 9/15/2011) (Entered: 09/15/2011)
318 NOTICE of Appearance by Kimberly Lewis (Lewis, Kimberly) (Filed on 11/28/2011) (Entered: 11/28/2011)
319 NOTICE by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L. re 303 Order, Order Staying Case,, (Attachments: # 1 Exhibit A)(Leyton, Stacey) (Filed on 11/28/2011) (Entered: 11/28/2011)
320 NOTICE of Appearance by Rachel Justine Zwillinger (Zwillinger, Rachel) (Filed on 11/29/2011) (Entered: 11/29/2011)
321 NOTICE of Appearance by Nimrod Pitsker Elias (Elias, Nimrod) (Filed on 11/30/2011) (Entered: 11/30/2011)
322 NOTICE of Voluntary Dismissal of V.L. as Named Plaintiff by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L. (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
323 MOTION for Leave to File Third Amended Complaint; Memorandum of Points and Authorities In Support filed by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
324 Proposed Order re 323 MOTION for Leave to File Third Amended Complaint by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
325 Second Declaration of Debra Roth in Support of 323 MOTION for Leave to File Third Amended Complaint filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health

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12/01/2011 12/01/2011 12/01/2011 12/01/2011 12/01/2011 12/01/2011 12/01/2011

Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 323 ) (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
326 Ex Parte MOTION to Shorten Time For Motion For Leave To File Third Amended Complaint filed by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Proposed Order Granting Ex Parte Motion to Shorten Time)(Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
327 Declaration of Stacey M. Leyton in Support of 326 Ex Parte MOTION to Shorten Time For Motion For Leave To File Third Amended Complaint, 323 MOTION for Leave to File Third Amended Complaint filed byC.R., Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 326 , 323 ) (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
329 MEMORANDUM OF POINTS AND AUTHORIES re 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
330 Proposed Order re 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
331 Declaration of Melinda Bird in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
332 MOTION for Leave to File Excess Pages FOR OPENING BRIEF IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER filed by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)

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333 Declaration of Stacey M. Leyton in Support of 332 MOTION for Leave to File Excess Pages filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 332 ) (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
334 Proposed Order re 332 MOTION for Leave to File Excess Pages by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
335 Request for Judicial Notice re 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
336 Declaration of Elena Ackel in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
337 Declaration of Gerald Aho in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
338 Declaration of Donna Baker re: James Hayes and Virginia Salazar filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
339 Declaration of Margaret Baran in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
340 Declaration of Kerry Bargsten in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union

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United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
341 Declaration of Charles Calavan in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
342 Declaration of Eulalia Carpenter in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
343 Declaration of Paul Cline in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
344 Declaration of Leland Collins in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
345 Declaration of Susan Cooper in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
346 Declaration of John Cottrell in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
347 Declaration of Kathryn Crain in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521,

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SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
348 Declaration of Ruth Cunningham re: Janice Lott in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
349 Declaration of Michael Dannecker in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
350 Declaration of Karen D'Antonio in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
351 Declaration of Megan Elliot in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
352 Declaration of M.G. re: L..C. in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
353 Declaration of Michael Gause in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
354 Declaration of Vicki Goff in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic

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Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
355 Declaration of Trina Cachero re: Teresa King in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
356 MOTION to Certify Class filed by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard, V.L.. Responses due by 12/15/2011. Replies due by 12/22/2011. (Branch, Sujatha) (Filed on 12/1/2011) (Entered: 12/01/2011)
357 Declaration of Maria Gonzalez in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Declaration Spanish, # 3 Declaration Translator)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
358 Declaration of Sue Good in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
359 Declaration of Eileen Goulet re: Dale and Sharon Hammers in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
360 Declaration of Dara Schur In Support of Motion for Class Certification filed byC.R., Dotty Jones, David Oster, Willie Beatrice Sheppard, V.L.. (Attachments: # 1 Exhibit 1−4)(Branch, Sujatha) (Filed on 12/1/2011) (Entered: 12/01/2011)
361 Declaration of Joseph Guerin re: Jacqueline Guerin in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
362 Declaration of Ann Guerra in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union

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United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
363 Declaration of Sheela Gunn−Cushman in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
364 Declaration of Dale Hammers Sr. in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
365 Declaration of David Hathaway in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
366 Declaration of James Hayes in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
367 Declaration of Skyla Hicks in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
368 Declaration of Shirley Ann Hoffacker in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
369 Declaration of Gavin Huntley−Fenner, Ph.D. in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union

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United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
370 Declaration of Mildred Hutchens in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit 1)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
371 Declaration of Andrea Hylton in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
372 Declaration of Sandra Izsadore in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
373 Declaration of Dionne Jimenez in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
374 Declaration of Dottie Jones in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
375 Declaration of Diane Kalijian in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
376 Declaration of Karen Keeslar in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY

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INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
377 Declaration of Mitchell LaPlante in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
378 Declaration of Ernesto Lopez in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
379 Declaration of Janice Lott in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
380 Declaration of Thomas Love in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
381 Declaration of Bruce Maher in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
382 Declaration of Therese (Crockett) Marconi in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
383 Declaration of Joyce McHenry in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY

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INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
384 Declaration of Susan Meireles re: Vicki Goff in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
385 Declaration of Yolanda Milian re: Miguel Moreno and C.H. in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Declaration Spanish, # 2 Declaration Translator)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
386 Declaration of Irma Jean Mills in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
387 Declaration of Miguel Moreno in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Declaration Spanish, # 3 Declaration Translator)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
388 Declaration of Duong Nguyen in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Declaration Vietnamese, # 3 Declaration Translator)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
389 Declaration of J.O. re: R.L. in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)

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390 Declaration of David Oster in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
391 Declaration of Maria Ramirez Perez re: Gustavo Uriarte in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Declaration Spanish, # 2 Declaration Translator)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
392 Declaration of Sharon Peterson re: Eugene Wessinger in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
393 Declaration of Katie Phillips re: Alexander Soto in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)*** EXHIBIT A FILED IN ERROR. REFER TO DOCUMENT 415 . *** (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (feriab, COURT STAFF). (Entered: 12/01/2011)
394 Declaration of James Preis in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
395 Declaration of Michelle Rivera re: C.R. in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
396 Declaration of Lisa Rosene in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic

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Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
397 EXHIBITS re 380 Declaration in Support,, Exhibit A to Declaration of Thomas Love filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 380 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
398 Declaration of Virginia Salazar in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
399 Declaration of Ilse Schemel re: Joyce McHenry in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
400 Declaration of Frances Smith in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
401 Declaration of Helen Polly Stern in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
402 Declaration of John Swann in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
403 Declaration of Greg Thompson in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 )

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(Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
404 Declaration of Charles Thurman in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
405 Declaration of Gustavo Uriarte in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. (Attachments: # 1 Exhibit A, # 2 Declaration Spanish, # 3 Declaration Translator)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
406 Declaration of Norma Vescovo in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
407 Declaration of Gary Voice in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
408 Administrative Motion to File Under Seal filed by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard. (Attachments: # 1 Proposed Order)(Bird, Melinda) (Filed on 12/1/2011) (Entered: 12/01/2011)
409 Declaration of Steven P. Wallace in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
410 Declaration of Julie Warner re: John Swann in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
411 Declaration of Eugene Wessinger in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521,

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SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
412 Declaration of Roxanne White in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
413 Declaration of Kim Williams in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
414 Declaration of Leonard Woods re: Paul Cline in Support of 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
415 EXHIBITS re 393 Declaration in Support,, Exhibit A to Declaration of Katie Phillips re Alexander Soto filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 393 ) (Leyton, Stacey) (Filed on 12/1/2011) (Entered: 12/01/2011)
416 Index of declarations in support of re 328 Ex Parte MOTION for Temporary Restraining Order AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 328 ) (Leyton, Stacey) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
417 ORDER by Judge Claudia Wilken granting 323 Motion for Leave to File; granting 326 Motion to Shorten Time; granting 328 Motion for TRO (cwlc3, COURT STAFF) (Filed on 12/1/2011) (Entered: 12/01/2011)
418 ORDER by Judge Claudia Wilken Granting 332 PLAINTIFFS MOTION FOR ADMINISTRATIVE RELIEF TO EXCEED PAGE LIMITATION FOR OPENING BRIEF IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDERnt (ndr, COURT STAFF) (Filed on 12/1/2011) (Entered: 12/01/2011)
419 Ex Parte MOTION to Shorten Time for Motion for Class Certification filed by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard. (Attachments: # 1 Proposed Order)(Bird, Melinda) (Filed on 12/1/2011) (Entered: 12/01/2011)
420 Order granting 408 Administrative Motion to File Under Seal entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document

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associated with this entry.) (Entered: 12/02/2011)
421 ERRATA re 340 Declaration in Support,, 350 Declaration in Support,, by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A Corrected Declaration of Kerry Bargsten, # 2 Exhibit B Corrected Declaration of Karen D'Antonio)(Leyton, Stacey) (Filed on 12/5/2011) (Entered: 12/05/2011)
422 DOCUMENT E−FILED UNDER SEAL re 420 Order on Administrative Motion to File Under Seal Application for Appointment of Guardian ad Litem for Plaintiff L.C. by C.R., Dotty Jones, David Oster, Willie Beatrice Sheppard. (Attachments: # 1 Proposed Order)(Bird, Melinda) (Filed on 12/5/2011) (Entered: 12/05/2011)
423 MOTION FOR MISCELLANEOUS ADMINISTRATIVE RELIEF RE: CLARIFICATION OF RULING ON MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT re 417 Order on Motion for Leave to File, Order on Motion to Shorten Time, Order on Motion for TRO filed by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. Responses due by 12/19/2011. Replies due by 12/27/2011. (Leyton, Stacey) (Filed on 12/5/2011) (Entered: 12/05/2011)
424 Declaration of Stacey M. Leyton in Support of 423 MOTION FOR MISCELLANEOUS ADMINISTRATIVE RELIEF RE: CLARIFICATION OF RULING ON MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT re 417 Order on Motion for Leave to File, Order on Motion to Shorten Time, Order on Motion for TRO filed byC.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 423 ) (Leyton, Stacey) (Filed on 12/5/2011) Modified on 12/6/2011 (cp, COURT STAFF). (Entered: 12/05/2011)
425 Proposed Order re 423 MOTION FOR MISCELLANEOUS ADMINISTRATIVE RELIEF RE: CLARIFICATION OF RULING ON MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT re 417 Order on Motion for Leave to File, Order on Motion to Shorten Time, Order on Motion for TRO by C.R., California United Homecare Workers, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 12/5/2011) Modified on 12/6/2011 (cp, COURT STAFF). (Entered: 12/05/2011)
426 ORDER GRANTING PLAINTIFFS' EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, Docket No. 326.. Signed by Judge Claudia Wilken on 12/6/2011. (cwlc3, COURT STAFF) (Filed on 12/6/2011) (Entered: 12/06/2011)
427 ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, Docket Number 323.. Signed by Judge Claudia Wilken on 12/6/2011. (cwlc3, COURT STAFF) (Filed on 12/6/2011) (Entered: 12/06/2011)
428 ORDER by Judge Claudia Wilken granting in part and denying in part 423 Plaintiffs' Administrative Motion for Clarification (cwlc3, COURT STAFF) (Filed on 12/6/2011) (Entered: 12/06/2011)
429 ORDER GRANTING PLAINTIFF L.C.'S EX PARTE APPLICATION FOR APPOINTMENT OF M.G. AS GUARDIAN AD LITEM. Signed by Judge Claudia Wilken on 12/6/2011. (cwlc3, COURT STAFF) (Filed on 12/6/2011) (Entered: 12/06/2011)

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12/12/2011 12/12/2011 12/13/2011

430 ORDER by Judge Claudia Wilken denying without prejudice 289 Motion to Dismiss; denying as moot 294 Motion to File Surreply (cwlc3, COURT STAFF) (Filed on 12/6/2011) (Entered: 12/06/2011)
431 AMENDED COMPLAINT THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against California Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. Filed byWillie Beatrice Sheppard, California United Homecare Workers, C.R., SEIU California State Council, Dotty Jones, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, SEIU Local 521, Service Employees International Union United Health Care Workers West, David Oster, SEIU United Long−Term Care Workers. (Leyton, Stacey) (Filed on 12/6/2011) (Entered: 12/06/2011)
432 Corrected 416 Index of Declarations In Support of Ex Parte Application For Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue filed byC.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, C. L., David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 416 ) (Leyton, Stacey) (Filed on 12/7/2011) Modified on 12/8/2011 (cp, COURT STAFF). (Entered: 12/07/2011)
433 ORDER DENYING PLAINTIFFS' 419 EX PARTE MOTION TO SHORTEN TIME FOR 356 MOTION FOR CLASS CERTIFICATION. 356 MOTION to Certify Class set for 1/5/2012 02:00 PM before Hon. Claudia Wilken. Signed by Judge Claudia Wilken on 12/7/2011. (ndr, COURT STAFF) (Filed on 12/7/2011) (Entered: 12/07/2011)
434 Declaration of EILEEN CARROLL CERTIFYING COMPLIANCE WITH THE COURTS TEMPORARY RESTRAINING ORDER filed byCalifornia Department of Health Care Services, California Department of Social Services, David Maxwell−Jolly, John Wagner. (Attachments: # 1 Exhibit A, # 2 Certificate/Proof of Service)(Elias, Nimrod) (Filed on 12/8/2011) (Entered: 12/08/2011)
435 MOTION re: scheduling order filed by L. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L.. Responses due by 12/23/2011. Replies due by 12/30/2011. (Attachments: # 1 Declaration SixthDeclaration of Melinda Bird, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Proposed Order Scheduling Order re: Preliminary Injunction)(Bird, Melinda) (Filed on 12/9/2011) Modified on 12/12/2011 (cp, COURT STAFF). (Entered: 12/09/2011)
436 RESPONSE (re 435 MOTION re: scheduling order ) filed byCalifornia Department of Health Care Services, California Department of Social Services. (Attachments: # 1 Declaration DECLARATION OF NIMROD P. ELIAS IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR MISCELLANEOUS ADMINISTRATIVE RELIEF RE: SCHEDULING ORDER, # 2 Exhibit A to Elias Declaration, # 3 Exhibit B to Elias Declaration, # 4 Exhibit C to Elias Declaration, # 5 Proposed Order, # 6 Proposed Order)(Elias, Nimrod) (Filed on 12/12/2011) Modified on 12/13/2011 (cp, COURT STAFF). (Entered: 12/12/2011)
437 CERTIFICATE OF SERVICE by California Department of Health Care Services, California Department of Social Services re 436 Opposition/Response to Motion,, (Elias, Nimrod) (Filed on 12/12/2011) (Entered: 12/12/2011)
438 ORDER GRANTING IN PART PLAINTIFFS' 435 ADMINISTRATIVE MOTION FOR RELIEF FROM SCHEDULING ORDER. Set/Reset Deadlines as to 356 MOTION to Certify Class Responses due by 12/15/2011. Replies due by 12/22/2011. Motion Hearing set for 1/19/2012 02:00 PM before Hon. Claudia Wilken. Responses due by 12/23/2011. Replies due by 1/9/2012. Preliminary Injunction Hearing set for 1/19/2012 02:00 PM. Signed by Judge Claudia Wilken on 12/13/2011. (ndr, COURT STAFF) (Filed on 12/13/2011) (Entered: 12/13/2011)

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01/09/2012

439 RESPONSE (re 356 MOTION to Certify Class ) DEFENDANTS' OPPOSITION TO MOTION FOR CLASS CERTIFICATION filed byCalifornia Department of Health Care Services, California Department of Social Services. (Attachments: # 1 Affidavit DECLARATION OF EILEEN CARROLL, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B)(Elias, Nimrod) (Filed on 12/15/2011) (Entered: 12/15/2011)
440 MOTION for Leave to File Excess Pages filed by California Department of Health Care Services, California Department of Social Services. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Elias, Nimrod) (Filed on 12/22/2011) Modified on 12/23/2011 (cp, COURT STAFF). (Entered: 12/22/2011)
441 MOTION for Leave to File Excess Pages filed by L. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, SEIU California State Council, SEIU Local 521 SEIU United Long−Term Care Workers, SEIU−ULTCW. (Attachments: # 1 Declaration, # 2 Proposed Order)(Branch, Sujatha) (Filed on 12/22/2011) Modified on 12/23/2011 (cp, COURT STAFF). (Entered: 12/22/2011)
442 REPLY in support of plaintiffs' Motion for Class Certification by L. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman. (Attachments: # 1 Proposed Order)(Branch, Sujatha) (Filed on 12/22/2011) Modified on 12/23/2011 (cp, COURT STAFF). (Entered: 12/22/2011)
443 ORDER by Judge Claudia Wilken Granting 440 Motion for Leave to File Excess Pages (ndr, COURT STAFF) (Filed on 12/23/2011) (Entered: 12/23/2011)
444 Order granting 441 Motion for Leave to File Excess Pages in reply (18) entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 12/23/2011)
445 OPPOSITION TO PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION filed by California Department of Health Care Services, California Department of Social Services. (Elias, Nimrod) (Filed on 12/23/2011) Modified on 12/27/2011 (kc, COURT STAFF). (Entered: 12/23/2011)
446 Declaration of EILEEN CARROLL in Support of 445 Opposition filed by California Department of Health Care Services, California Department of Social Services. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 445 ) (Elias, Nimrod) (Filed on 12/23/2011) Modified on 12/27/2011 (kc, COURT STAFF). (Entered: 12/23/2011)
447 Request for Judicial Notice re 445 Opposition filed by California Department of Health Care Services, California Department of Social Services. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 445 ) (Elias, Nimrod) (Filed on 12/23/2011) Modified on 12/27/2011 (kc, COURT STAFF). (Entered: 12/23/2011)
448 OBJECTIONS TO EVIDENCE FILED BY PLAINTIFFS IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION by California Department of Health Care Services, California Department of Social Services. (Elias, Nimrod) (Filed on 12/23/2011) Modified on 12/27/2011 (kc, COURT STAFF). (Entered: 12/23/2011)
449 Statement of Interest of the United States of America by UNITED STATES OF AMERICA. (Deiss, Ila) (Filed on 1/9/2012) (Entered: 01/09/2012)
450 REPLY BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Proposed Order) (Leyton, Stacey) (Filed on 1/9/2012) Modified on 1/10/2012 (cp, COURT STAFF). (Entered: 01/09/2012)
451 MOTION for Leave to File Excess Pages FOR REPLY BRIEF IN SUPPORT OF PRELIMINARY INJUNCTION MOTION filed by L. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice

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Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Declaration Stacey Leyton, # 2 Proposed Order)(Leyton, Stacey) (Filed on 1/9/2012) Modified on 1/10/2012 (cp, COURT STAFF). (Entered: 01/09/2012)
452 Fourth Request for Judicial Notice filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14) (Leyton, Stacey) (Filed on 1/9/2012) Modified on 1/10/2012 (cp, COURT STAFF). (Entered: 01/09/2012)
453 PLAINTIFFS OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN SUPPORT OF THEIR OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION by L. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 1/9/2012) Modified on 1/10/2012 (cp, COURT STAFF). (Entered: 01/09/2012)
454 RESPONSE to re 448 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION by L. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 1/9/2012) Modified on 1/10/2012 (cp, COURT STAFF). (Entered: 01/09/2012)
455 Declaration of Stacey M. Leyton in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
456 Declaration of SOCORRO AGUIRRE RE: ALBERTO AGUIRRE in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Declaration Spanish, # 3 Declaration Translator)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
457 Declaration of Diane Anderson re: Dona Cloud in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
458 Declaration of Rebeca Armendariz in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie

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Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
459 Declaration of Latanya Bailey re: Floyd Bailey Jr. in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
460 Declaration of Donna Baker re: Virginia Salazar and James Hayes in Support of 450 Brief,, Second filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
461 Declaration of Dr. Edward Bensen re: Andrea Hylton in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
462 Declaration of Sujatha Branch re: Charles Thurman and Helen Polly Stern in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) Modified on 1/10/2012 (cp, COURT STAFF). (Entered: 01/09/2012)
463 Declaration of Rosetta Brown in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
464 Declaration of Tristan Brown in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
465 Declaration of Sondra Carlson in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)

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466 Declaration of Rosaura Castro re: Antonia Castro Cortes in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Declaration Spanish, # 3 Declaration Translator)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
467 Declaration of Carol Clifton re: James LaFollette in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
468 Declaration of Leland Collins in Support of 450 Brief,, Fourth filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
469 Declaration of John Cottrell in Support of 450 Brief,, Second filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
470 Declaration of Linda Daitsman in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
471 Declaration of Megan Elliott in Support of 450 Brief,, Second filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
472 Declaration of Connie Gutierrez in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
473 Declaration of Andrea Hylton in Support of 450 Brief,, Third filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related

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document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
474 Declaration of Diane Kaljian in Support of 450 Brief,, Fourth filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
475 Declaration of Mitchell LaPlante in Support of 450 Brief,, Third filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
476 Declaration of Alexander MacDonald in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
477 Declaration of Frances Macias in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
478 Declaration of Duong Nguyen in Support of 450 Brief,, Second filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Declaration Vietnamese, # 2 Declaration Translator)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
479 Declaration of Frankie Rogers in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
480 Declaration of Ellen Schmeding in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
481 Declaration of Laura Soto re: Andrea Hylton and Sondra Carlson in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered:

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01/09/2012 01/09/2012 01/09/2012 01/09/2012 01/09/2012 01/09/2012 01/09/2012 01/09/2012

01/09/2012)
482 Declaration of Charles Thurman in Support of 450 Brief,, Second filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
483 Declaration of Ben Tracey in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
484 Declaration of Deborah Vargas in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
485 Declaration of Gary Voice in Support of 450 Brief,, Second filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
486 Declaration of Steven P. Wallace in Support of 450 Brief,, Second filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
487 Declaration of Wanda Wallace re: Jaunita Saunders in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
488 Declaration of David Werlin in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)
489 Declaration of Steven Wong re: Ying Fung in Support of 450 Brief,, filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) (Entered: 01/09/2012)

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01/09/2012
01/10/2012 01/17/2012 01/17/2012 01/19/2012 01/25/2012 01/26/2012 01/27/2012 01/30/2012 01/31/2012 02/06/2012
02/21/2012
02/21/2012 02/22/2012

490 INDEX OF DECLARATIONS IN SUPPORT OF PLAINTIFFS' 450 REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION filed byL. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 450 ) (Leyton, Stacey) (Filed on 1/9/2012) Modified on 1/10/2012 (cp, COURT STAFF). (Entered: 01/09/2012)
491 CERTIFICATE OF SERVICE by UNITED STATES OF AMERICA re 449 Statement (Deiss, Ila) (Filed on 1/10/2012) (Entered: 01/10/2012)
492 OBJECTIONS TO REPLY EVIDENCE by California Department of Health Care Services, California Department of Social Services, Will Lightbourne, Toby Douglas. (Elias, Nimrod) (Filed on 1/17/2012) Modified on 1/18/2012 (cp, COURT STAFF). (Entered: 01/17/2012)
493 RESPONSE to re 449 Statement of Interest of the United States of America by California Department of Health Care Services, California Department of Social Services, Toby Douglas, Will Lightbourne. (Elias, Nimrod) (Filed on 1/17/2012) Modified on 1/18/2012 (cp, COURT STAFF). (Entered: 01/17/2012)
494 Minute Entry: Motion Hearing held on 1/19/2012 before Claudia Wilken (Date Filed: 1/19/2012), Preliminary Injunction Hearing held on 1/19/2012 before Claudia Wilken (Date Filed: 1/19/2012). (Court Reporter Raynee Mercado.) (ndr, COURT STAFF) (Date Filed: 1/19/2012) (Entered: 01/23/2012)
495 Proposed Order Granting Class Certification and Appointment of Counsel by C.R., Andrea Hylton, Dotty Jones, David Oster, Helen Polly Stern, Charles Thurman. (Branch, Sujatha) (Filed on 1/25/2012) (Entered: 01/25/2012)
496 OBJECTIONS to re 495 PROPOSED ORDER RE CLASS CERTIFICATION by California Department of Health Care Services, California Department of Social Services, Toby Douglas, Will Lightbourne. (Carson, Susan) (Filed on 1/26/2012) Modified on 1/27/2012 (cp, COURT STAFF). (Entered: 01/26/2012)
497 Order granting 451 Motion for Leave to File Excess Pages entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 01/27/2012)
498 NOTICE of Change In Counsel by Stacey M. Leyton (Leyton, Stacey) (Filed on 1/30/2012) (Entered: 01/30/2012)
499 Letter from Stacey M. Leyton, Melinda Bird, Nimrod Elias, Susan Carson . (Leyton, Stacey) (Filed on 1/31/2012) (Entered: 01/31/2012)
500 ORDER of USCA granting motion to withdraw Casey A. Roberts as counsel as to 224 Notice of Appeal, filed by David Maxwell−Jolly, John Wagner, California Department of Health Care Services, California Department of Social Services, 264 Amended Notice of Appeal, filed by David Maxwell−Jolly, John Wagner, California Department of Health Care Services, California Department of Social Services (cp, COURT STAFF) (Filed on 2/6/2012) (Entered: 02/06/2012)
501 Joint Status Report on Meet and Confer Efforts re Modified Preliminary Injunction by California Department of Health Care Services, California Department of Social Services, Toby Douglas, Will Lightbourne, David Oster, L.C., C.R.. (Elias, Nimrod) (Filed on 2/21/2012) Modified on 2/22/2012 (cp, COURT STAFF). (Entered: 02/21/2012)
502 NOTICE OF APPEAL to the 9th CCA California Department of Health Care Services, California Department of Social Services, Toby Douglas, Will Lightbourne.(Appeal fee of $455 receipt number 0971−6603938 paid.) (Attachments: # 1 Exhibit)(Elias, Nimrod) (Filed on 2/21/2012) (Entered: 02/21/2012)
503 USCA Case Number 12−15366 Ninth Circuit Court of Appeals for 502 Notice of Appeal, filed by Toby Douglas, Will Lightbourne, California Department of Health Care Services, California Department of Social Services. (kk, COURT STAFF) (Filed

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02/24/2012 03/02/2012 03/02/2012 03/02/2012 03/05/2012 03/05/2012 03/16/2012 04/04/2012
04/04/2012
04/05/2012 04/06/2012 04/09/2012 05/04/2012

on 2/22/2012) (Entered: 02/22/2012)
504 TRANSCRIPT DESIGNATION and Ordering Form by California Department of Health Care Services, California Department of Social Services, Toby Douglas, Will Lightbourne for proceedings held on January 19, 2012 before Judge Claudia Wilken.. (Elias, Nimrod) (Filed on 2/24/2012) (Entered: 02/24/2012)
505 ORDER by Judge Claudia Wilken granting 356 Motion to Certify Class (cwlc3, COURT STAFF) (Filed on 3/2/2012) (Entered: 03/02/2012)
506 ORDER GRANTING PLAINTIFFS' REQUEST FOR A PRELIMINARY INJUNCTION (Docket No. 328). Signed by Judge Claudia Wilken on March 2, 2012. (cwlc3, COURT STAFF) (Filed on 3/2/2012) (Entered: 03/02/2012)
507 PRELIMINARY INJUNCTION. Signed by Judge Claudia Wilken on March 2, 2012. (cwlc3, COURT STAFF) (Filed on 3/2/2012) (Entered: 03/02/2012)
508 CERTIFICATE OF SERVICE re 505 Order on Motion to Certify Class, 506 Order, 507 Order (ndr, COURT STAFF) (Filed on 3/5/2012) (Entered: 03/05/2012)
509 Amended Preliminary Injunction Appeal re 502 Notice of Appeal by California Department of Health Care Services, California Department of Social Services, Toby Douglas, Will Lightbourne (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Elias, Nimrod) (Filed on 3/5/2012) Modified on 3/6/2012 (cp, COURT STAFF). (Entered: 03/05/2012)
510 NOTICE of Change of Address by Melinda Ruth Bird (Bird, Melinda) (Filed on 3/16/2012) (Entered: 03/16/2012)
511 Transcript of Proceedings held on January 19, 2012, before Judge Claudia Wilken. Court Reporter Raynee H. Mercado, Telephone number 510−451−7530, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 4/25/2012. Redacted Transcript Deadline set for 5/7/2012. Release of Transcript Restriction set for 7/3/2012. (rhm, ) (Filed on 4/4/2012) (Entered: 04/04/2012)
512 STIPULATION WITH PROPOSED ORDER CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS' PRELIMINARY INJUNCTION APPEALS IN THE NINTH CIRCUIT filed by L. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Will Lightbourne, et al. (Cervantez, Eve) (Filed on 4/4/2012) Modified on 4/5/2012 (cp, COURT STAFF). (Entered: 04/04/2012)
513 Order granting 512 Stipulation entered by Hon. Claudia Wilken, except that the case management conference will be held on July 25, 2012. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 04/05/2012)
Set Deadlines/Hearings: Case Management Statement due by 7/18/2012. Case Management Conference set for 7/25/2012 02:00 PM. **See Text Order, Docket No. 513** (ndr, COURT STAFF) (Filed on 4/6/2012) (Entered: 04/06/2012)
514 ORDER by Judge Claudia Wilken DENYING WITHOUT PREJUDICE PLAINTIFFS 273 MOTION FOR ATTORNEYS FEES. (ndr, COURT STAFF) (Filed on 4/9/2012) (Entered: 04/09/2012)
515 CORRECTION TO MARCH 2, 2012 505 ORDER GRANTING PLAINTIFFS MOTION FOR CLASS CERTIFICATION ORDER. Signed by Judge Claudia Wilken on 5/4/2012. (ndr, COURT STAFF) (Filed on 5/4/2012) (Entered: 05/04/2012)

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07/18/2012
07/18/2012
07/19/2012 07/20/2012 10/15/2012
10/17/2012 10/17/2012 01/07/2013 02/01/2013

516 STIPULATION WITH PROPOSED ORDER CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS PRELIMINARY INJUNCTION APPEALS IN THE NINTH CIRCUIT filed by L. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Will LIghtbourne, Toby Douglas, et al . (Leyton, Stacey) (Filed on 7/18/2012) Modified on 7/19/2012 (cpS, COURT STAFF). (Entered: 07/18/2012)
517 NOTICE by L. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO WITHDRAWAL OF APPLICATION FOR CONTEMPT−RELATED ATTORNEYS FEES AND COSTS, AND WAIVER OF RIGHT TO COLLECT CONTEMPT−RELATED ATTORNEYS FEES AND COSTS IN THE FUTURE (Leyton, Stacey) (Filed on 7/18/2012) (Entered: 07/18/2012)
518 ORDER by Judge Claudia Wilken Granting 516 Stipulation CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS PRELIMINARY INJUNCTION APPEALS IN THE NINTH CIRCUIT. (ndr, COURT STAFF) (Filed on 7/19/2012) (Entered: 07/19/2012)
Rest Deadlines/Hearings: Case Management Statement due by 10/17/2012. Case Management Conference set for 10/24/2012 02:00 PM. See 518 Order on Stipulation. (ndr, COURT STAFF) (Filed on 7/20/2012) (Entered: 07/20/2012)
519 STIPULATION WITH PROPOSED ORDER CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS' PRELIMINARY INJUNCTION APPEALS IN THE NINTH CIRCUIT filed by L. C., C.R., California United Homecare Workers, Andrea Hylton, Dotty Jones, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Will Lightbourne, Toby Douglas, California Department of Social Services, California Department of Health Care Services. (Leyton, Stacey) (Filed on 10/15/2012) Modified on 10/16/2012 (cpS, COURT STAFF). (Entered: 10/15/2012)
520 ORDER by Judge Claudia Wilken Granting 519 Stipulation CONTINUING THE FURTHER CASE MANAGEMENT CONFERENCE PENDING RESOLUTION OF DEFENDANTS' PRELIMINARY INJUNCTION APPEALS IN THE NINTH CIRCUIT. (ndr, COURT STAFF) (Filed on 10/17/2012) (Entered: 10/17/2012)
Set Deadlines/Hearings: Case Management Statement due by 4/3/2013. Case Management Conference set for 4/10/2013 02:00 PM. See Docket No. 520. (ndr, COURT STAFF) (Filed on 10/17/2012) (Entered: 10/17/2012)
521 ORDER of USCA: appeal is dismissed and the case is remanded for further proceedings not inconsistent with this decision. The parties shall bear their own costs as to 224 Notice of Appeal, filed by David Maxwell−Jolly, John Wagner, California Department of Health Care Services, California Department of Social Services, 264 Amended Notice of Appeal, filed by David Maxwell−Jolly, John Wagner, California Department of Health Care Services, California Department of Social Services (cp, COURT STAFF) (Filed on 1/7/2013) Modified on 1/7/2013 (cp, COURT STAFF). (Entered: 01/07/2013)
522 MANDATE of USCA as to 224 Notice of Appeal, filed by David Maxwell−Jolly, John Wagner, California Department of Health Care Services, California Department of Social Services, 264 Amended Notice of Appeal, filed by David Maxwell−Jolly, John Wagner, California Department of Health Care Services, California Department of Social Services (cp, COURT STAFF) (Filed on 2/1/2013) (Entered: 02/04/2013)

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03/20/2013 03/27/2013 03/28/2013 03/28/2013 03/28/2013
03/28/2013
03/28/2013 04/01/2013

523 ORDER DIRECTING PARTIES TO FILE A STATUS REPORT. Signed by Judge Claudia Wilken on 3/20/2013. (ndr, COURT STAFF) (Filed on 3/20/2013) (Entered: 03/20/2013)
524 Joint Status Report, Stipulation and proposed order setting briefing and hearing schedule for preliminary approval of class action settlement by L. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, Will Lightbourne, et al. (Bird, Melinda) (Filed on 3/27/2013) Modified on 3/28/2013 (cpS, COURT STAFF). (Entered: 03/27/2013)
525 ORDER by Judge Claudia Wilken Granting 524 Stipulation and proposed order setting briefing and hearing schedule for preliminary approval of class action settlement. (ndr, COURT STAFF) (Filed on 3/28/2013) (Entered: 03/28/2013)
Set Deadline/Hearing: Motions due by 3/28/2013. Motion Hearing set for 4/4/2013 02:00 PM before Hon. Claudia Wilken. See Docket No. 525 . (ndr, COURT STAFF) (Filed on 3/28/2013) (Entered: 03/28/2013)
526 MOTION for Preliminary Approval of Class Settlement Agreement, and for an Order Directing Notice to the Class and Scheduling a Fairness Hearing; Memo of P&A in Support of Motion filed by L. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman. Motion Hearing set for 4/4/2013 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 4/11/2013. Replies due by 4/18/2013. (Bird, Melinda) (Filed on 3/28/2013) Modified on 3/29/2013 (cpS, COURT STAFF). (Entered: 03/28/2013)
527 Declaration of Melinda Bird in Support of 526 MOTION for Preliminary Approval of Class Settlement Agreement, and for an Order Directing Notice to the Class and Scheduling a Fairness Hearing filed byL. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Exhibit Press Release)(Related document(s) 526 ) (Bird, Melinda) (Filed on 3/28/2013) Modified on 3/29/2013 (cpS, COURT STAFF). (Entered: 03/28/2013)
528 Proposed Order re 526 MOTION for Preliminary Approval of Class Settlement Agreement, and for an Order Directing Notice to the Class and Scheduling a Fairness Hearing by L. C., C.R., Andrea Hylton, Dotty Jones, Will Lightbourne, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman. (Leyton, Stacey) (Filed on 3/28/2013) Modified on 3/29/2013 (cpS, COURT STAFF). (Entered: 03/28/2013)
CLERKS NOTICE. Notice is hereby given that the Case Management Conference, previously set for Wednesday, April 10, 2013, is vacated.

(This is a text only docket entry, there is no document associated with this notice.)

04/04/2013 04/04/2013 04/04/2013 04/05/2013 04/22/2013

(ndr, COURT STAFF) (Filed on 4/1/2013) (Entered: 04/01/2013)
529 Minute Entry: Motion Hearing held on 4/4/2013 before Claudia Wilken (Date Filed: 4/4/2013). (Court Reporter Raynee Mercado.) (ndr, COURT STAFF) (Date Filed: 4/4/2013) (Entered: 04/04/2013)
530 ORDER by Judge Claudia Wilken Granting 526 Motion for Preliminary Approval of Class Settlement Agreement, and for an Order Directing Notice to the Class and Scheduling a Fairness Hearing. (ndr, COURT STAFF) (Filed on 4/4/2013) (Entered: 04/04/2013)
Set Deadline/Hearing: Motions due by 5/10/2013. Motion Hearing set for 5/23/2013 02:00 PM before Hon. Claudia Wilken. See Docket No. 530 . (ndr, COURT STAFF) (Filed on 4/4/2013) (Entered: 04/04/2013)
531 NOTICE by L. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman NOTICE OF PARTIES AGREEMENT UPON MODIFIED CLASS NOTICE (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Leyton, Stacey) (Filed on 4/5/2013) (Entered: 04/05/2013)
532 SUGGESTION OF DEATH Upon the Record as to Helen Polly Stern and Charles Thurman by L. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice

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05/10/2013 05/10/2013 05/10/2013 05/10/2013 05/10/2013 05/23/2013 05/23/2013 07/05/2013 08/01/2013
08/07/2013 09/26/2013

Sheppard, Helen Polly Stern, Charles Thurman. (Bird, Melinda) (Filed on 4/22/2013) (Entered: 04/22/2013)
533 Declaration of Gregory D. Brown in Support of Final Approval of Class Settlement filed byCalifornia Department of Health Care Services, California Department of Social Services, Toby Douglas, Will Lightbourne. (Brown, Gregory) (Filed on 5/10/2013) (Entered: 05/10/2013)
534 MOTION for Final Approval of Class Settlement Agreement; Memorandum of Points and Authorities filed by L. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman. Motion Hearing set for 5/23/2013 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 5/24/2013. Replies due by 5/31/2013. (Bird, Melinda) (Filed on 5/10/2013) Modified on 5/13/2013 (cpS, COURT STAFF). (Entered: 05/10/2013)
535 Declaration of Sujatha Jagadeesh Branch in Support of 534 MOTION for Final Approval of Class Settlement Agreement filed byL. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 534 ) (Bird, Melinda) (Filed on 5/10/2013) Modified on 5/13/2013 (cpS, COURT STAFF). (Entered: 05/10/2013)
536 Proposed Order re 534 MOTION for Final Approval of Class Settlement Agreement by L. C., C.R., Andrea Hylton, Dotty Jones, David Oster, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman. (Attachments: # 1 Exhibit Settlement Agreement)(Bird, Melinda) (Filed on 5/10/2013) Modified on 5/13/2013 (cpS, COURT STAFF). (Entered: 05/10/2013)
537 NOTICE of filing by California United Homecare Workers, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO (Attachments: # 1 Declaration)(Leyton, Stacey) (Filed on 5/10/2013) Modified on 5/13/2013 (cpS, COURT STAFF). (Entered: 05/10/2013)
538 ORDER by Judge Claudia Wilken Granting 534 Final Approval of Class Settlement Agreement. (ndr, COURT STAFF) (Filed on 5/23/2013) (Entered: 05/23/2013)
539 Minute Entry: Motion Hearing held on 5/23/2013 before Claudia Wilken (Date Filed: 5/23/2013). (Court Reporter Diane Skillman.) (ndr, COURT STAFF) (Date Filed: 5/23/2013) (Entered: 05/23/2013)
540 ORDER/MANDATE of USCA GRANTING joint motion to dismiss appeal as to 502 Notice of Appeal, filed by Toby Douglas, Will Lightbourne, California Department of Health Care Services, California Department of Social Services (cpS, COURT STAFF) (Filed on 7/5/2013) (Entered: 07/08/2013)
541 STIPULATION WITH PROPOSED ORDER for Dismissal by L. C., C.R., California Department of Health Care Services, California Department of Social Services, California United Homecare Workers, Toby Douglas, Andrea Hylton, Dotty Jones, Will Lightbourne, David Maxwell−Jolly, David Oster, SEIU California State Council, SEIU Local 521, SEIU United Long−Term Care Workers, Service Employees International Union United Health Care Workers West, Willie Beatrice Sheppard, Helen Polly Stern, Charles Thurman, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, V.L., John Wagner re 538 Order on Motion for Settlement JOINT NOTICE AND REQUEST FOR DISMISSAL; [PROPOSED] ORDER (Attachments: # 1 Exhibit A)(Leyton, Stacey) (Filed on 8/1/2013) Modified on 8/2/2013 (cpS, COURT STAFF). (Entered: 08/01/2013)
542 ORDER by Judge Claudia Wilken Granting 541 Stipulation for Dismissal. (Attachments: # 1 Exhibit A) (ndr, COURT STAFF) (Filed on 8/7/2013) (Entered: 08/07/2013)
543 Appeal Record Returned: (Sealed Document #s 189−191) 224 Notice of Appeal (This is a text−only entry generated by the court. There is no document associated with this entry.)

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08/29/2014 09/03/2014

(cp, COURT STAFF) (Filed on 9/26/2013) (Entered: 09/26/2013)
544 STIPULATION WITH PROPOSED ORDER to Amend Settlement Agreement filed by California Department of Health Care Services, California Department of Social Services, Toby Douglas, Will Lightbourne, David Maxwell−Jolly, SEIU Local 521, David Oster, et al. (Carson, Susan) (Filed on 8/29/2014) Modified on 9/2/2014 (cpS, COURT STAFF). (Entered: 08/29/2014)
545 ORDER by Judge Claudia Wilken Granting 544 Stipulation to Amend Settlement Agreement. (ndr, COURT STAFF) (Filed on 9/3/2014) (Entered: 09/03/2014)