1 WILLIAM S.FREEMAN (SBN 82002)

MARGARET I. BRANICK-ABILLA (SBN 223600) 2 AMY E. NASH (SBN 264955)

3 COOLEY LLP 3175 Hanover Street

4 Palo Alto, CA 94304-1130

Telephone: (650) 843-5000

5

STUART SEABORN (SBN 198590) 6 SUZANNA GEE (SBN 170780)

7

JAY KOSLOFSKY (SBN 97024) SEAN RASHKIS (SBN 232533)

8 WILL SCHELL (SBN 252470) DISABILITY RIGHTS CALIFORNIA

9 100 Howe Avenue, Suite 235N

Sacramento, CA 95825 10 Telephone: (916) 488-9950

11 ATTORNEYS FOR PLAINTIFFS 12 [ADDITIONAL COUNSEL LISTED ON NEXT PAGE]

13

UNITED STATES DISTRICT COURT

14

FOR THE EASTERN DISTRICT OF CALIFORNIA

15

16 LESLIE NAPPER, JANET FISCHER, JACQUIE Case No. 2:10-CV-01119-JAM-EFB EICHHORN-SMITH, TED YANELLO, and
17 LYNDA MANGIO, on behalf of themselves and CLASS ACTION

all others similarly situated, 18

Plaintiffs,

19

v.

20 COUNTY OF SACRAMENTO; BOARD OF

21

SUPERVISORS OF THE COUNTY OF SACRAMENTO; County Supervisor ROGER

PRELIMINARY INJUNCTION
Date: July 21, 2010 Time: 9:30 a.m. Place: Courtroom 6, 14th Floor Judge: Hon. John A. Mendez

22 DICKINSON; County Supervisor JIMMIE YEE; County Supervisor SUSAN PETERS; County

23 Supervisor ROBERTA MACGLASHAN; County

Supervisor DON NOTTOLI; SACRAMENTO 24 COUNTY DEPARTMENT OF BEHAVIORAL

25

HEALTH SERVICES; ANN EDWARDSBUCKLEY, Director, Department of Behavioral

26 Health Services; MARY ANN BENNETT, Mental Health Director,

27

Defendants.

28

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1

ROBERT D. NEWMAN (SBN 86534)

KIMBERLY LEWIS (SBN 144870)

2

ANTIONETTE D. DOZIER (SBN 244437)

3

WESTERN CENTER ON LAW AND POVERTY

3701 West Sixth Street, Suite 208

4

Los Angeles, California 90010

Telephone: (213) 487-7211

5

MELINDA BIRD (SBN 102236)

6

DISABILITY RIGHTS CALIFORNIA

7

3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010

8

Telephone: (213) 427-8747

9

KIMBERLY SWAIN (SBN 100340)

DISABILITY RIGHTS CALIFORNIA

10

1330 Broadway, Suite 500

11

Oakland, CA 94612 Telephone: (510) 267-1200

12 [ADDITIONAL COUNSEL LISTED ON

13

CAPTION PAGE]

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

This cause came on to be heard on July 21, 2010, on Plaintiffs’ motion for a preliminary

2 injunction. After full consideration of the declarations, exhibits, and memoranda submitted in

3 support of and in opposition to that motion, and after hearing the argument of counsel, the Court

4 has made the findings and conclusions that support the issuance of the preliminary injunction

5 described herein.

6

GOOD CAUSE APPEARING THEREFORE, IT IS HEREBY ORDERED,

7 ADJUDGED AND DECREED that:

8

1. Plaintiffs’ motion for a preliminary injunction is granted;

9

2. Defendants County of Sacramento (“County”), Sacramento County Board of

10 Supervisors (“Board”), current Board members Roger Dickinson, Jimmie Yee, Susan Peters,

11 Roberta MacGlashan, and Don Nottoli, Sacramento County Department of Behavioral Health

12 Services (“DBHS”), DBHS’ current Director Ann Edwards-Buckley, and the County’s current

13 Mental Health Director Mary Ann Bennett (“Defendants”), and their respective successors in

14 office, agents, servants, employees, attorneys, and all persons in active concert therewith are

15 preliminarily enjoined from implementing or enforcing the “Hybrid Plan” which was approved by

16 the Board on June 17, 2010, unless and until the Court has determined that Plaintiffs Leslie

17 Napper, Jan Fischer, Jacquie Eichhorn-Smith, Ted Yanello and Lynda Mangio (“Plaintiffs”) and

18 all current and future adult recipients of Medi-Cal funded outpatient mental health services in the

19 County will continue to receive these outpatient mental health services in the most integrated

20 setting possible so as to avoid their unnecessary institutionalization and/or treatment through

21 hospital emergency rooms.

22

3. Defendants are further ordered to take all actions necessary within the scope of

23 their authority to implement the above preliminary injunction.

24

4. Defendants are further ordered to provide prompt written notice of this order to

25 Plaintiffs and all other adults who currently receive Medi-Cal funded outpatient mental health

26 services from the County, excluding those individuals who only receive their outpatient mental

27 health services from the Full Service Partnerships or the Behavioral Health Team or the

28 Guesthouse at El Hogar. A copy of the English version of the written notice is attached hereto

1

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1 and marked as Exhibit A. Besides mailing the approved notice to recipients, Defendants shall

2 make all reasonable efforts to give telephonic notification to these recipients and shall also make

3 all reasonable arrangements to post a copy of the notice in a prominent location at all outpatient

4 mental health facilities operated by or under contract with the County, and at the Sacramento

5 County Mental Health Treatment Center.

6

IT IS FURTHER ORDERED that this preliminary injunction will remain in full force

7 and effect until the final judgment of this Court upon the trial of this action, or further order of

8 this Court, whichever comes soonest.

9

IT IS FURTHER ORDERED that Plaintiffs need not post any bond in connection with

10 this preliminary injunction.

11

IT IS FURTHER ORDERED that Plaintiffs’ motion for class certification is denied as

12 premature at this time and without prejudice to Plaintiffs’ filing such a motion at a later date.

13

14 15 Dated: July 27, 2010 16

/s/ John A. Mendez_________________ JOHN A. MENDEZ, JUDGE UNITED STATES DISTRICT COURT

17

18 19 Approved as to form:

20

21 /s/____________________________ 22 Michele Bach
Counsel for Defendants 23

24

25

26

27

28

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 Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 1 of 35

1 WILLIAM S. FREEMAN (SBN 82002)

MARGARET I. BRANICK-ABILLA (SBN 223600) 2 AMY E. NASH (SBN 264955)

3 COOLEY LLP 3175 Hanover Street

4 Palo Alto, CA 94304-1130

Telephone: (650) 843-5000 5

STUART SEABORN (SBN 198590) 6 SUZANNA GEE (SBN 170780)

7

JAY KOSLOFSKY (SBN 97024) SEAN RASHKIS (SBN 232533)

8 WILL SCHELL (SBN 252470) DISABILITY RIGHTS CALIFORNIA

9 100 Howe Avenue, Suite 235N

Sacramento, CA 95825 10 Telephone: (916) 488-9950

11 ATTORNEYS FOR PLAINTIFFS 12 [ADDITIONAL COUNSEL LISTED ON NEXT PAGE]

13

UNITED STATES DISTRICT COURT

14

FOR THE EASTERN DISTRICT OF CALIFORNIA

15

16 LESLIE NAPPER, JANET FISCHER, JACQUIE

EICHHORN-SMITH, TED YANELLO, and 17 LYNDA MANGIO, on behalf of themselves and

Case No.

all others similarly situated, 18

CLASS ACTION

19

v.

Plaintiffs,

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY

20 COUNTY OF SACRAMENTO; BOARD OF

RELIEF

21

SUPERVISORS OF THE COUNTY OF SACRAMENTO; County Supervisor ROGER

22 DICKINSON; County Supervisor JIMMIE YEE; County Supervisor SUSAN PETERS; County

23 Supervisor ROBERTA MACGLASHAN; County

Supervisor DON NOTTOLI; SACRAMENTO 24 COUNTY DEPARTMENT OF BEHAVIORAL

25

HEALTH SERVICES; ANN EDWARDSBUCKLEY, Director, Department of Behavioral

26 Health Services; MARY ANN BENNETT, Mental Health Director,

27

Defendants.

28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 2 of 35

1

ROBERT D. NEWMAN (SBN 86534)

KIMBERLY LEWIS (SBN 144870)

2

ANTIONETTE D. DOZIER (SBN 244437)

3

WESTERN CENTER ON LAW AND POVERTY

3701 West Sixth Street, Suite 208

4

Los Angeles, California 90010

Telephone: (213) 487-7211 5

MELINDA BIRD (SBN 102236)

6

DISABILITY RIGHTS CALIFORNIA

7

3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010

8

Telephone: (213) 427-8747

9

KIMBERLY SWAIN (SBN 100340)

DISABILITY RIGHTS CALIFORNIA

10

1330 Broadway, Suite 500

11

Oakland, CA 94612 Telephone: (510) 267-1200

12 [ADDITIONAL COUNSEL LISTED ON

13

CAPTION PAGE]

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 3 of 35

1

INTRODUCTION

2

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

3 prevent the devastating and unlawful termination of essential mental health services to thousands

4 of low-income Medi-Cal recipients in Sacramento County. Defendant County of Sacramento

5 (“County”) and Defendant County officials have announced that effective June 30, 2010, they

6 will terminate mental health programs that provide “core” services to approximately 5,000

7 County residents with severe mental illness, such as schizophrenia, bipolar disorder and

8 depression. Specifically, the County intends to end all funding for the Regional Support Team

9 (“RST”) programs and the Transitional Community Opportunities for Recovery and Engagement

10 (“TCORE”) program and to reduce funding by more than 60% for the Wellness and Recovery

11 Centers. Together these impacted programs provide most of the outpatient mental health services

12 to Medi-Cal recipients in Sacramento County.

13

2. Although Defendants have publicly stated that they intend to open new clinics,

14 they have supplied so far few details about the staffing or capacity of these new clinics. It is

15 impossible for the Defendants to establish a fully functioning outpatient mental health system for

16 5,000 people in the time remaining before July 1, 2010. In less than two months Defendants

17 cannot open and outfit new facilities, hire the requisite staff and make all the other necessary

18 arrangements so as to assume treatment for these individuals, for whom they are not currently

19 providing any outpatient mental health services. Indeed, Defendants have limited expertise in

20 providing outpatient mental health services to County residents. Moreover, it seems highly

21 unlikely that the new clinics will even attempt to treat the same number of clients or offer the

22 same mental health services, inasmuch as County officials have cited fiscal considerations as the

23 reasons for eliminating all four RSTs and the TCORE program and drastically scaling back the

24 Wellness and Recovery Centers.

25

3. As of May 4, 2010, Defendants had provided no details to Plaintiffs and other

26 Medi-Cal recipients like them about what services will be provided, when they will be available

27 or where or how they can be accessed. Worse, Defendants have not attempted to notify recipients

28 of existing services or how they might obtain services beginning July 1, 2010, and they have not

1
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 4 of 35

1 drawn up individualized plans for serving these patients. As a result, thousands of the County’s

2 most vulnerable citizens – persons who have until now had access to quality outpatient mental

3 health care treatment administered by dedicated professionals – face a catastrophic break in their

4 treatment, and will inevitably be exposed to increased harm of injury and death if the County’s

5 unlawful acts are not enjoined. Even if equivalent services were to be provided, recipients would

6 suffer greatly by reason of being suddenly deprived of access to service providers upon whose

7 care they depend, and in whom they have learned to place their trust, in most cases only gradually

8 and with great difficulty.

9

4. It was not until recently that the County began to make any arrangements with the

10 RSTs and other programs for the transfer of these recipients to the new clinics (wherever they

11 may be). The County has not yet addressed all the important logistical details, such as the

12 copying of clients’ records at the current facilities, transfer of records to the new facilities and the

13 scheduling of appointments for clients at the new facilities. Thus, to the extent the County has

14 drawn up any plans for the ongoing treatment of class members, those plans appear to be sketchy,

15 disorganized, and constantly changing, and are woefully inadequate to preserve the rights of class

16 members to continue receiving the kind and level of service they have been receiving to date.

17

5. Unless enjoined, the County’s planned termination of mental health services will

18 cause immediate and irreparable harm by depriving Plaintiffs and thousands of class members

19 like them of medically necessary mental health treatment. Without this care, these individuals

20 with severe mental health disorders are at imminent and serious risk of harm to their health and

21 safety, as well as unnecessary and unwanted out-of-home placement, including

22 institutionalization.

23

6. The proposed termination of mental health services will not only cause profound

24 disruptions in the lives of our most vulnerable citizens, but will also end up costing the County

25 more in the short-term as well as the long-term. According to Defendant County, the closures are

26 purportedly necessitated by budget shortfalls and by a County ordinance that has been interpreted

27 to require preservation of County jobs. However, County officials publicly admit that providing

28 mental health services through County clinics and its own employees will be more expensive than

2

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 5 of 35

1 the current system, which relies on private nonprofit contractors who have successfully been

2 offering such services for at least the past 15 years. Curtailing outpatient services will also lead

3 to greater costs from needless psychiatric crises and hospitalizations.

4

7. The County’s proposed plans to terminate mental health services are so severe

5 that, if implemented, they will violate a number of provisions of federal and state law. Under the

6 Americans with Disabilities Act of 1990, 42 U.S.C. § 12312 (“ADA”), Section 504 of the

7 Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), and California Government Code

8 § 11135, public entities, such as the County, have a duty to provide services to people with

9 disabilities in the “most integrated setting appropriate to their needs.” Here, the most integrated

10 setting for current County mental health clients is living in the community with case management

11 and outpatient care, as they have been doing successfully to date. Without these services,

12 Plaintiffs and other similarly situated clients are at risk of institutionalization, self-injury and even

13 death.

14

8. The proposed termination of mental health services and the County’s apparent

15 failure to provide adequate transition services contravene the above-mentioned federal and state

16 laws in a number of other ways: (a) by denying people with disabilities the opportunity to benefit

17 from the County’s mental health services or providing them with less effective services; (b) by

18 using methods of administration that discriminate on the basis of disability and defeat the purpose

19 of the County’s Mental Health Plan; (c) by selecting sites for new clinics that may not be

20 accessible to people with disabilities; and (d) by failing to make modifications and/or

21 accommodations when necessary to avoid discrimination.

22

9. The proposed actions also violate the requirements of Title XIX of the Social

23 Security Act (42 U.S.C. § 1396a) (“Medicaid Act”) that Medicaid recipients such as the Plaintiffs

24 and others similarly situated are provided with (a) services that are sufficient in amount, duration,

25 and scope to reasonably achieve their purposes; (b) comparable Medicaid services to individuals

26 with similar needs; and (c) services according to reasonable standards.

27

10. Finally, Defendants’ failure to provide adequate notice and opportunity for hearing

28 prior to depriving members of the Plaintiff class of critical Medi-Cal mental health services

3

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 6 of 35

1 violates the federal and state constitutional guarantees of due process and the Medicaid Act’s

2 notice and hearing provisions.

3

JURISDICTION

4

11. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and

5 1367. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201,

6 2202 and 1343, and by Rules 57 and 65 of the Federal Rules of Civil Procedure. At all times

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

8

12. Plaintiffs’ claims for violations of California state law concern the same actions

9 and omissions that form the basis of Plaintiffs’ claims under federal law such that they are all part

10 of the same case or controversy. This Court therefore has supplemental jurisdiction over these

11 state law claims pursuant to 28 U.S.C. § 1367.

12

13. This action for declaratory and injunctive relief arises in part under Title II of the

13 Americans With Disabilities Act of 1990, 42 U.S.C. § 12132; Section 504 of the Rehabilitation

14 Act of 1973, 29 U.S.C. § 794; Title XIX of the Social Security Act, 42 U.S.C. § 1396a et seq.;

15 42 U.S.C. § 1983; the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution,

16 and the Supremacy Clause of the U.S. Constitution (U.S. CONST. art. VI, cl. 2).

17

VENUE

18

14. Venue is proper in the Eastern District of California pursuant to 28

19 U.S.C. § 1391(b), because the Defendants operate and perform their official duties therein and

20 thus reside therein for purposes of venue, and because a substantial part of the events and

21 omissions giving rise to the claims herein occurred in Sacramento County, which is in the Eastern

22 District of California.

23

PARTIES

24

Plaintiffs

25

15. Plaintiff Leslie Napper is a resident of the County and a recipient of California’s

26 Medicaid program (“Medi-Cal”). Ms. Napper is 41 years old and has been diagnosed with severe

27 and persistent mental illness. She depends upon the County for her Medi-Cal mental health

28 services. Ms. Napper is a client at the Northgate Point RST. Ms. Napper is a “qualified person

4

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 7 of 35

1 with a disability” within the meaning of all applicable statutes, including 42 U.S.C. §12131(2), 29

2 U.S.C. §705(20)(B), and California Government Code § 12926.

3

16. Plaintiff Jacquie Eichhorn-Smith is a resident of the County and a Medi-Cal

4 recipient. Ms. Eichhorn-Smith is 37 years old and has been diagnosed with severe and persistent

5 mental illness. She depends upon the County for her Medi-Cal mental health services. Ms.

6 Eichhorn-Smith is a client of the TCORE program. Ms. Eichhorn-Smith is a “qualified person

7 with a disability” within the meaning of all applicable statutes, including 42 U.S.C. §12131(2), 29

8 U.S.C. §705(20)(B), and California Government Code § 12926.

9

17. Plaintiff Jan Fischer is a resident of the County and a Medi-Cal recipient. Ms.

10 Fischer is 54 years old and has been diagnosed with severe and persistent mental illness. She

11 depends upon the County for her Medi-Cal mental health services. Ms. Fischer is a client at the

12 Northgate Point RST. Ms. Fischer is a “qualified person with a disability” within the meaning of

13 all applicable statutes, including 42 U.S.C. §12131(2), 29 U.S.C. §705(20)(B), and California

14 Government Code § 12926.

15

18. Plaintiff Ted Yanello is a resident of the County and a Medi-Cal recipient. Mr.

16 Yanello is 42 years old and has been diagnosed with severe and persistent mental illness. He

17 depends upon the County for his Medi-Cal mental health services. Mr. Yanello is a client at the

18 El Hogar RST. Mr. Yanello is a “qualified person with a disability” within the meaning of all

19 applicable statutes, including 42 U.S.C. §12131(2), 29 U.S.C. §705(20)(B), and California

20 Government Code § 12926.

21

19. Plaintiff Lynda Mangio is a resident of the County and a Medi-Cal recipient. Ms.

22 Mangio is 49 years old and has been diagnosed with severe and persistent mental illness. She

23 depends upon the County for her Medi-Cal mental health services. Ms. Mangio is a client at the

24 Northgate Point RST. Ms. Mangio is a “qualified person with a disability” within the meaning of

25 all applicable statutes, including 42 U.S.C. §12131(2), 29 U.S.C. §705(20)(B), and California

26 Government Code § 12926.

27

28

5

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

Defendants

2

20. Defendant County of Sacramento (“County”) is a local governmental entity duly

3 authorized and formed under the laws of the State California. Pursuant to California’s Welfare

4 and Institutions Code § 5775, the County has been designated as the Mental Health Plan

5 responsible for the provision of specialty mental health services to Medi-Cal recipients who are

6 County residents. The County is a local government entity within the meaning of Title II of the

7 ADA, and receives federal funding within the meaning of the Rehabilitation Act. The County is

8 responsible for providing mental health services to Medi-Cal recipients who reside within the

9 County, and receives funding from the federal and state governments for these services. The

10 County is responsible for oversight of Defendant Sacramento County Department of Behavioral

11 Health Services. The County also promulgates policies and procedures regarding the operation of

12 this agency and the provision of services through this agency.

13

21. Defendant Sacramento County Board of Supervisors oversees the management of

14 County government.

15

22. Defendants Roger Dickinson, Jimmie Yee, Susan Peters, Roberta MacGlashan and

16 Don Nottoli are current members of the Sacramento County Board of Supervisors. They have all

17 been sued only in their official capacities.

18

23. Defendant Sacramento County Department of Behavioral Health Services

19 (“DBHS”) is an agency of Defendant County and is responsible for providing mental health

20 services to the Sacramento community. The mission statement for DBHS’ Division of Mental

21 Heath states that it will “[a]ssist adults with mental illnesses and children/youth with emotional

22 disturbance by providing services and supports to maximize their quality of life,” “[s]ustain and

23 enhance a public mental health system that supports recovery for adults with mental illness and

24 children/youth with disturbance,” and “[e]liminate mental health disparities for all cultural, ethnic

25 and racial groups.” DBHS receives federal and state funds.

26

24. Defendant Ann Edwards-Buckley is DBHS’ current Director and, as such, is

27 responsible for and supervises the operation of this County agency. She is sued only in her

28 official capacity.

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CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 9 of 35

1

25. Defendant Mary Ann Bennett is the current Mental Health Director for the

2 County. She is responsible for ensuring the provision of mental health services in the County and

3 for supervising the activities of DBHS’ Division of Mental Health. She is sued only in her

4 official capacity.

5

CLASS ALLEGATIONS

6

26. This action can be maintained as a class action pursuant to Rule 23(a) and 23(b)(2)

7 of the Federal Rules of Civil Procedure. For all claims for relief, Plaintiffs bring this action on

8 behalf of a class consisting of “all current and future recipients of Medi-Cal funded mental health

9 services in the County of Sacramento” (the “Class”).

10

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

11 impracticable. Upon information and belief, there are more than 5,000 persons in the Class.

12 Joinder of individuals in the Class is also impracticable because members of the Class lack the

13 knowledge and financial means to maintain individual actions.

14

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

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

16 include but are not limited to whether the termination and reduction of Medi-Cal funded mental

17 health services to class members violate provisions of the Medicaid Act, the ADA, Section 504,

18 and California Government Code § 11135, and whether the County’s implementation of these

19 reductions fails to meet the requirements of procedural due process established by the U.S. and

20 California Constitutions.

21

29. Typicality: The claims of Plaintiffs are typical of the claims of the Class as a

22 whole and members of the Class currently are eligible Medi-Cal recipients and qualified

23 individuals with disabilities who will be affected similarly by the terminations and reductions in

24 Medi-Cal funded mental health services in the County. The claims arise from the same unlawful

25 and discriminatory law and policies and practices of Defendants.

26

30. Adequate representation: Plaintiffs will fairly represent and adequately protect

27 the interests of members of the Class as a whole. Plaintiffs do not have any interests antagonistic

28 to those of other members of the Class. By filing this action, Plaintiffs have displayed an interest

7

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 10 of 35

1 in vindicating their rights, as well as the claims of others who are similarly situated. The relief

2 sought by Plaintiffs will inure to the benefit of members of the Class generally. Plaintiffs are

3 represented by counsel who are experienced, skilled, and knowledgeable about civil rights

4 litigation, disability discrimination, Medicaid law, practice and procedure in the federal courts,

5 and the prosecution and management of class action litigation.

6

31. Rule 23(b)(2): Class certification is appropriate pursuant to Federal Rule of Civil

7 Procedure 23(b)(2) because Defendants have acted, refused to act, or will act on grounds

8 generally applicable to the Class, thereby making final injunctive and declaratory relief

9 appropriate with respect to the Class as a whole.

10

FACTUAL ALLEGATIONS

11

A. Medi-Cal and the California Medi-Cal Managed Mental Health Care Plans

12

32. Medi-Cal recipients have an entitlement to mental health services through

13 California’s Medicaid program (“Medi-Cal”). Medicaid is a joint federal and state medical

14 assistance program for certain groups of low-income people, including children. 42 U.S.C. §§

15 1396-1396v. California has elected to participate in the Medicaid program, and so must comply

16 with the requirements of the federal Medicaid Act and its implementing regulations.

17

33. The purpose of Medicaid is to furnish, as far as practicable, “medical assistance on

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

19 meet the costs of necessary medical services” and “to help such families and individuals to attain

20 or retain capability for independence or self-care . . . .” 42 U.S.C. § 1396.

21

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

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

23 Medi-Cal program comes from the State and the counties.

24

35. The Medicaid Act requires that recipients be provided with the freedom to choose

25 their own health and mental health providers. 42 U.S.C. § 1396a(a)(23). However, the Medicaid

26 Act allows participating states to establish Medicaid managed care programs in which freedom of

27 choice is limited, or waived. 42 U.S.C. § 1396n.

28

8

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1

36. California has obtained federal approval for a managed care waiver program to

2 provide mental health services to its Medi-Cal recipients with severe and chronic mental illness

3 and these recipients are mandatorily included in that managed care waiver program. The mental

4 health services available to Medi-Cal recipients through the managed care waiver program are

5 called “specialty mental health services.” Cal. Code Regs. tit. 9, §§ 1810.00, 1810.247.

6

37. Medi-Cal specialty mental health care services are provided only through

7 designated Mental Health Plans (“MHPs”). Welf. & Inst. Code §§ 5775, 5776, 5777; Cal. Code

8 Regs. tit. 9, § 1810.305. Counties have the first option to become the Mental Health Plan in their

9 respective geographic areas. Welf. & Inst. Code § 5775 (c). Every county, including Sacramento

10 County, has elected to serve, alone or in conjunction with another county, as a local Mental

11 Health Plan.

12

38. Under the federal Medicaid waiver, Medi-Cal recipients do not have freedom of

13 choice regarding their mental health providers and may only obtain specialty mental health

14 services from the Mental Health Plan in their county.

15

39. As a condition of receiving state and federal Medicaid funding, Mental Health

16 Plans are obligated to:

17

 “comply with all applicable federal laws, regulations and guidelines” (Welf. &

18

Inst. Code § 5776);

19

 provide “medically necessary mental health services to Medi-Cal beneficiaries”

20

(id., § 5777(a)(1));

21

 bear the financial risk of providing these services (id., § 5777(a)(1));

22

 “be financially responsible for ensuring access and a minimum required scope of

23

benefits, consistent with state and federal law,” (id., § 5777(a)(3)); and

24

 adopt “appropriate standards relating to quality, access and coordination of

25

services within a managed system of care” (id., § 14684 (c)).

26

40. State regulations impose the same requirements on Mental Health Plans. See Cal.

27 Code Regs. tit. 9, § 1810.110(a) (MHP “shall comply” with “all applicable federal laws,

28 regulations and guidelines”); § 1810.345(a) (MHP “shall provide or arrange and pay for specialty

9

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1 mental health services to the [Medi-Cal] beneficiary” when “medical necessity criteria” are met);

2 § 1810.405(a) (MHP “shall be responsible for assuring that the beneficiary has access to specialty

3 mental health services”).

4

41. State law defines the target population for specialty mental health services under

5 the managed care waiver as “adults with serious and persistent mental illness and children with

6 serious emotional disturbance.” Welf & Inst. Code § 14686(f). Accord, Cal. Code Regs. tit. 9,

7 § 1830.205 (medical necessity criteria for adults); § 1830.210 (medical necessity criteria for

8 children under age 21).

9

42. According to the California Department of Mental Health, specialty mental health

10 services are “those services requiring the services of a specialist in mental health,” as opposed to

11 general mental health care needs, “which could be met by a general health care practitioner.”

12 Specialty mental health services are also defined in Title 9 of the California Code of Regulations

13 at § 1810.247.

14

43. Pursuant to regulation, every Medi-Cal recipient participates with service

15 providers in the development of his or her client plan, which specifies the goals of the person who

16 is receiving the service. “Client plan” means a plan for the provision of specialty mental health

17 services to a Medi-Cal recipient who meets statewide medical necessity criteria. Cal. Code Regs.

18 tit. 9, § 1810.205.2. The plan also specifies the type of service and the proposed duration of each

19 type of service the person is to receive. It is signed by the recipient and the person who is

20 responsible for providing, coordinating and/or approving the service(s). The plan must be

21 updated at least annually.

22

B. Sacramento’s Mental Health System

23

44. Defendants Sacramento County and its DBHS constitute the designated Mental

24 Health Plan with obligations to provide specialty mental health services to Medi-Cal recipients in

25 Sacramento County. According to recent state data, the County served 20,626 recipients during

26 the 2008-2009 fiscal year, nearly half of whom (10,235) were adults.

27

45. Sacramento County provides a range of adult mental health services, including

28 acute psychiatric emergency services, crisis residential services, and outpatient mental health

10

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1 services (both high and low-moderate intensity).

2

46. The County provides mental health services through a network of providers. The

3 County has contracted with outside agencies, most of which are private non-profit programs, to

4 provide virtually all of these mental health services. Only a small portion of the County’s mental

5 health services are County operated and staffed by its own employees.

6

47. The County operates an “Access Center,” which acts as the gate-keeper for Medi-

7 Cal clients seeking to obtain mental health services in the County. The Access Center is staffed

8 by teams that specialize in services to adults and in services for children. These teams accept

9 requests for service, assess the client’s level of need and authorize services based on this

10 determination, make referrals to a network of county and contract providers, and approve requests

11 for re-authorization of services.

12

48. Defendant DBHS has adopted an “Adult Mental Health Services Policy &

13 Procedure Manual” that governs access to county mental health services. This manual dictates (a)

14 the target population for County mental health services, (b) the procedures for determining a

15 client’s level of care and developing his or her treatment plan, (c) for each different contracted

16 and county mental health program, the staffing levels and caseload ratios required for clients with

17 different levels of care, and (d) the criteria for making referrals within the county’s network of

18 providers.

19

49. County policy requires that the Access Center teams respond with a referral within

20 three days of every call. According to County documents and reports, the Access Center has

21 often failed to meet that time frame, with reports of two weeks to respond to requests for a

22 referral.

23

50. For many years, the County Mental Health Plan has been plagued by inadequate

24 capacity to serve clients in need, with resulting delays in treatment. A 100-page report by the

25 State’s quality review team found that in 2008, the “system [did] not have sufficient program

26 capacity to provide services.” The state reviewers found in particular that: timely access to

27 services was the County’s “greatest systemic challenge,” with “excessive wait times” such as

28 waits of up to five months for a psychiatry appointment; caseloads were excessively high with

11

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1 adult caseloads of 130 -150 consumers; and the County had not adequately provided information

2 for and outreach to mono-lingual Spanish-speaking consumers. The reviewers’ report also found

3 that there was an “over-reliance on crisis services,” 40-50% of consumers in crisis were

4 “unlinked,” meaning they had not had an appointment before, and there were long delays to

5 connect “unlinked” consumers to services and to get appointments. Finally, the reviewers

6 reported that “the demand for outpatient services continues to rise.”

7

51. In 2009, the increased need for mental health care and the County’s over-reliance

8 on crisis and inpatient care resulted in the census in its inpatient facility, the Mental Health

9 Treatment Center, exceeding capacity again and again. This forced a series of rolling closures in

10 which police and emergency response teams with mentally ill patients were diverted to

11 surrounding counties, where the patients were left in hospital emergency rooms.

12

52. In 2009, despite the continued demand for mental health services, the County cut

13 millions of dollars from its mental health budget. Thousands of clients were terminated from

14 services. Because no providers were terminated or closed, their staff members worked to identify

15 the clients whose mental illnesses were the least severe and who were best able to tolerate a

16 transition to a lower level of care. The County also terminated almost all mental health clients

17 who did not have Medi-Cal eligibility. Many in this group were simply unable to navigate the

18 arduous process for qualifying for federal social security benefits, which is the primary means for

19 an adult to establish Medi-Cal eligibility.

20

53. The County made deep reductions in mental health funding for contracted agencies

21 in 2009 in part to preserve county positions that would otherwise have been eliminated.

22 According to the minutes of a public meeting on August 20, 2009, Defendant Bennett stated that

23 “the reason that the number of affected contract employee positions is larger than the number of

24 displaced county employees is that County employees cost more than contract employees.”

25

54. A report by the State’s quality review team in 2009, just as reductions were

26 occurring, found that “the number of adults served by the RSTs decreased by 64% to just under

27 3000 in a very short time frame, much of which was the result of budgetary reductions. This

28 leaves many consumers at risk of ‘falling through the cracks.’” The state reviewers reiterated that

12

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1 the “[mental health] system does not have sufficient program capacity to provide services,” that

2 “in patient capacity continues to be problematic . . . . The system is in urgent need for more

3 options for and alternatives to hospitalization.”

4

55. The County has continued to commit millions of dollars to funding costly services

5 in locked treatment settings. A memorandum dated April 1, 2010, from Defendant DBHS

6 explains that the County spends $22,908,341 annually to fund 217 locked inpatient and nursing

7 home beds at four institutions. Two are non-county facilities, Napa State Hospital and Crestwood

8 Psychiatric Health Facility (“PHF”), while the remaining two are County-owned facilities – its

9 Mental Health Treatment Center with 50 beds and its new 12-bed PHF. The two non-county

10 facilities average more than $60,298 per bed per year. The average cost for the two locked

11 County facilities exceeds $215,000 per bed per year.

12

Regional Support Teams (“RSTs”)

13

56. For many years, the Regional Support Teams (“RSTs”) have been the primary

14 source of adult outpatient services in the County. The most recent state audit of Sacramento’s

15 Mental Health Plan described the RSTs as “the core mental health specialty services for low to

16 moderate intensity clients.” The County’s Adult Mental Health Service Directory identifies the

17 RSTs as the only outpatient source of “comprehensive mental health and medication services for

18 adults” in the County.

19

57. There are four RSTs, all operated by private, non-profit mental health programs:

20 Northgate Point in the northern part of Sacramento County; Human Resource Consultants in the

21 eastern part of Sacramento County; Visions Unlimited in the southern part of Sacramento County;

22 and El Hogar in the western part of Sacramento County.

23

58. At present, the four RSTs serve approximately 3600 clients per year. A majority

24 of the RST clients are Medi-Cal recipients.

25

59. The County identifies four levels of care for outpatient services. RST clients are

26 eligible for services at Level II or Level III within the County’s level of care framework,

27 according to the DBHS Adult Mental Health Services Grid, dated January 12, 2010.

28

60. To be eligible for community support services (Level II) from the RSTs, an adult

13

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1 must, among other things, have been “currently assessed as requiring a need for a strong

2 connection to treatment and support” and “still in need for assistance in maintaining stable living

3 environment, supported employment, and identification of meaningful activities for community

4 reentry.” The County has specified a required staffing ratio of 1:25 for this level of care.

5

61. To be eligible for intensive services (Level III) from the RSTs, an adult must meet,

6 inter alia, the following criteria: (1) is being discharged from an acute setting; (2) has been

7 hospitalized for psychiatric reasons three times in the past twelve months; and (3) is willing to

8 accept services or would most likely risk deterioration without intensive level of services. The

9 County has specified a required staffing ratio of 1:70 for this level of care.

10

Transitional Community Opportunities for Recovery and Engagement (“TCORE”)

11

62. Besides the RSTs, another outpatient treatment program is Transitional

12 Community Opportunities for Recovery and Engagement (“TCORE”). TCORE focuses on

13 clients who are being discharged from acute treatment settings or at risk of entering acute care

14 settings and are not linked to ongoing services. TCORE provides crisis intervention, case

15 management, rehabilitative services and medication management. The program emphasizes

16 access for non-English speakers and other under-served and unserved groups.

17

63. TCORE serves a significant number of adult Medi-Cal recipients. On information

18 and belief, TCORE currently serves over 700 clients per year.

19

Consumer Self Help (“CSH”) Wellness and Recovery Centers

20

64. Another outpatient treatment program consists of the Consumer Self Help

21 (“CSH”) Wellness and Recovery Centers – North and South. Like the RSTs, the Wellness and

22 Recovery Centers provide community support services (“Level II”). These Centers provide group

23 activities, self help, peer counseling and peer support along with medication management.

24

65. According to the County’s 2009 Mental Health Services Act report on this

25 program, the Wellness and Recovery Centers serve 1600 clients annually.

26

66. Other than the RSTs, TCORE and the Wellness and Recovery Centers, the County

27 Service Directory lists only a few other programs that provide outpatient mental health services to

28 particular groups of County mental health patients. These are the County-operated Adult

14

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1 Psychiatric Support Service (“APSS”) clinic (providing medication support and referrals), the

2 County-operated APSS Aftercare Center (referrals for people leaving jail or institutions), the

3 Transcultural Wellness Center (serving Asian Pacific Islander clients), the El Hogar Senior Sierra

4 Program (seniors only), and Turning Point Integrated Service Agency and the Telecare SOAR

5 program (24 hour per day services for people in secure or locked institutions).

6

C. Proposed Terminations and Reductions of Medi-Cal Mental Health Services

7

in Sacramento County

8

67. On March 16, 2010, Defendant Bennett issued a memorandum to employees of

9 Defendant DBHS announcing a reduction of $17.5 million in expenditures for the 2010-2011

10 fiscal year. The memorandum stated that the reductions would “significantly impact our

11 contracted providers and the vital services they provide to our clients.” According to Defendant

12 Bennett’s memorandum, the Department of Behavioral Health Services would lose 58.9

13 positions, for a reduction of $4.9 million. The bulk of the cuts – $11.9 million – were proposed

14 for “our contracted providers and the vital services they provide to our clients.” This would

15 require closing all four RSTs and making other “significant reductions to mental health services”

16 within the County.

17

68. On March 18, 2010, Defendant Bennett made a presentation at a public County

18 meeting regarding the above-mentioned reductions for the 2010-2011 fiscal year, adding that

19 “[t]hese cuts will necessitate a redesign of the MHSA programs to compensate for the losses,

20 especially in the adult outpatient system.”

21

69. At a public meeting on April 1, 2010, Defendant Bennett provided a summary of

22 the proposed budget reductions. This document identified “unavoidable cost increases” that led

23 to the budget shortfall, including $5.4 million in raises for County employees and $856,000 in

24 increased costs for the County’s new 12-bed locked psychiatric facility (in addition to the

25 millions already committed to that project). Another $2.9 million will be repayment of an earlier

26 interdepartmental loan. This attachment also identified the “loss of revenue due to the

27 reductions,” which consists of an estimated loss of $4 million in federal Medicaid funding for

28 adults and $951,974 in Federal Medicaid funding for children.

15

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1

70. At this public meeting on April 1, 2010, Defendant Bennett released the County’s

2 “proposed” plan to open new County clinics staffed with county employees displaced from other

3 positions. Another document distributed at the April 1 meeting described the County’s “System

4 Redesign Proposed Plan.” This document acknowledged that the budget reductions will affect

5 “6500 individuals served in a moderate service level system.” The System Redesign Proposed

6 Plan states that “we are planning services for approximately 5000 to 6000 of consumers [sic]

7 currently in services,” and would reduce services by referring clients to health care clinics instead

8 of the Mental Health Plan. The Plan states that the new County clinics will be staffed by 28.6

9 county employees slated for termination but whose positions “are protected” by the voter-

10 approved County Charter Section 71J. In addition, the County purportedly plans to increase its

11 contract with University of California Davis to provide medical staff in the County clinics.

12

71. In the meantime, Defendants have informed the non-profit agencies that provide

13 adult outpatient services that effective June 30, 2010, the County will do the following:

14

 Terminate all funding for the four RSTs, which together have a staff of 149

15

employees.

16

 Terminate all funding for the TCORE program operated by Human Resources

17

Consultants. This program has 39 employees.

18

 Reduce funding for the Consumer Self-Help Wellness and Recovery Centers by

19

more than 60%, which will necessitate closing one of the facilities.

20

72. On information and belief, Defendants held a meeting on April 26, 2010, with the

21 RSTs and other contracting agencies to discuss transition plans. Yet, as of May 4, 2010,

22 Defendants had made no concrete arrangements for the transfer of existing clients from treating

23 staff at the RSTs, the TCORE program and the Wellness and Recovery Centers to new treating

24 staff at County clinics. Defendants have not addressed such important logistical details as the

25 copying of clients’ records at the current facilities, transfer of records to the new facilities and the

26 scheduling of appointments for clients at the new facilities. Such arrangements to transition

27 existing clients to the new County clinics cannot be completed in less than two months.

28

16

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1

73. As of May 4, 2010, Defendants had publicly announced few details about the

2 operations of the new County clinics, such as their locations, staffing, hours of operation and

3 range of available services.

4

74. As of May 4, 2010, Defendants had not sent any notices to current clients of the

5 RSTs, the TCORE program or the Wellness and Recovery Centers regarding the termination of

6 their services effective June 30, 2010, or where they should go to receive alternative services

7 beginning July 1, 2010. Nor had Defendants made any announcements to other Medi-Cal

8 recipients with severe mental health disorders or to the public at large about what would be the

9 available outpatient mental health services for Medi-Cal recipients in the County beginning June

10 30, 2010.

11

75. For each client currently in treatment at the RSTs, TCORE and the Wellness and

12 Recovery Centers, the County has made an individualized determination that he or she meets the

13 admission criteria for this program and requires this level of mental health services. The

14 County’s Policy Manual specifies the process for making a level of care determination. The

15 County’s level of care determination is reflected in each client’s treatment plan. The County

16 Manual specifies that the treatment plan is in effect for twelve months and that services are

17 authorized based on this plan. Each level of service also requires a staffing ratio that is specified

18 in the County Manual and the RST’s contract.

19

76. On information and belief, the County does not have the ability to provide the

20 services required in each client’s treatment plan if the clients are referred to County clinics

21 beginning June 30, 2010.

22

77. On information and belief, the County will not be providing medically necessary,

23 mental health services to thousands of members of the Class beginning June 30, 2010.

24

78. According to the “Adult Mental Health Services Policy & Procedure Manual,” the

25 general criteria for discharge from the RSTs include that the “Client does not meet medical

26 necessity criteria” or that the “Client is receiving services from another mental health provider

27 within Sacramento County including private/public entities.” The criteria for discharge from

28 community support services from the RSTs include that the “Client has met treatment goals and is

17

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1 no longer receiving mental health services.”

2

79. On information and belief, the County does not have the ability to meet these

3 discharge criteria before terminating services for class members because they will not be

4 receiving services from another provider on July 1, 2010, and have not met their treatment goals.

5

80. On information and belief, Defendants do not intend to send any notices of action

6 in advance of the termination or reduction in mental health services to class members who are

7 currently receiving mental health services from the RSTs, the TCORE program or the Wellness

8 and Recovery Centers.

9

D. Impact of the Proposed Mental Health Cuts upon Medi-Cal Recipients

10

81. The RST programs, the TCORE program and the Wellness and Recovery Centers

11 all provide effective mental health treatment that helps prevent unnecessary and costly

12 institutionalization, improving the quality of life for the individuals served, and, at the same time,

13 saving the County and the State significant funds.

14

82. The closure of the RST programs and the TCORE program and the drastic

15 reductions in the Wellness and Recovery Centers are likely to cause class members to suffer

16 deterioration in their mental status, an increase in symptoms of their mental illness, and increased

17 impairment in their ability to relate to others. This will expose them to a serious risk of family

18 break-up if they are unable to care for minor children or dependent adults. Foster care placements

19 may increase.

20

83. Many physicians are unable and/or unwilling to prescribe psychotropic

21 medications for patients or to manage their medications over a period of time. Meanwhile, many

22 patients with psychiatric disabilities will not take their medications without day-to-day support.

23 Even if the County opens up new clinics in the upcoming months and schedules appointments for

24 people, many individuals will not come to these appointments without case management, which is

25 why Defendants started the RSTs in the first place in the 1990s.

26

84. If terminated from their current providers on June 30, 2010, Plaintiffs will be

27 unable to access replacement mental health services. They are among the most vulnerable

28 members of society. Many of them do not have telephones, internet access or access to

18

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1 transportation, and as a result it will be difficult, if not impossible, for them to learn what

2 alternative plans (if any) have been made for them or to travel to the locations of new treatment

3 centers (if any), in contrast to the ability of RST staff, until now, to travel to meet with them.

4 Many of them have great difficulty learning to place trust in others, which is a necessity for

5 effective treatment, and an abrupt termination of services announced by Defendants will have

6 severe psychiatric and emotional impacts on them.

7

85. Beginning June 30, 2010, some class members are likely to stop taking their

8 medications and attending their counseling sessions and, as a consequence, will become

9 delusional, suicidal, or otherwise present a danger to themselves and others. They may become

10 so disoriented that they no longer carry out normal activities of daily living, and are unable to

11 shop, cook food, clean their homes and clothing, dress, bathe, and care for themselves. This will

12 place them at risk of physical illness and injury.

13

86. A decline in class members’ mental status will also place them at a serious risk of

14 losing their current housing situations and ultimately becoming homeless. In addition, the RST

15 programs are currently required to sign off on supported housing placements for some class

16 members and so those individuals will be at risk of losing their housing unless the County

17 assumes this critical task after June 30.

18

87. The impending disruptions in the mental health services and treatment are likely to

19 cause some class members to experience crises so severe that they present a danger to themselves

20 or others. This will place class members at great risk of attempting suicide or even death and will

21 require their emergency psychiatric hospitalization.

22

88. The closure of the RST programs and the TCORE program and the drastic

23 reductions in the Wellness and Recovery Centers are also likely to place class members at great

24 risk of unwanted institutionalization in other psychiatric facilities, including hospitals, psychiatric

25 health facilities, locked psychiatric nursing homes and other institutions.

26

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

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

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

19

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1

90. It costs far more to institutionalize individuals with mental illness than it does to

2 provide outpatient mental health services that allow them to live in community-based settings.

3

91. The impending cuts in mental health services will not only harm the clients of the

4 RST programs, the TCORE program and the Wellness and Recovery Centers, but will also

5 destabilize the entire system for all Medi-Cal recipients in need of mental health services from the

6 County. The Access line and local emergency rooms will not be able to absorb the increased

7 demand for services.

8

LEGAL CLAIMS

9

92. Defendants’ actions, as alleged herein, have resulted in, and will continue to result

10 in, irreparable injury to Plaintiffs and members of the Class for which they have no plain, speedy,

11 or adequate remedy at law. Plaintiffs and members of the Class will suffer irreparable injury in

12 that they will be deprived of critical mental health treatment and subjected to imminent risk of

13 out-of-home placement, institutionalization and/or harm to their health and safety.

14

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

15 are seeking to implement reductions and terminations in Medi-Cal mental health services to

16 which members of the Class are entitled, and which, if implemented, will place members of the

17 Class at risk of unnecessary emotional and physical suffering, illness, out-of-home placement,

18 institutionalization and harm to their physical and mental health. Further, these reductions and

19 terminations violate the ADA, Section 504, various provisions of the Medicaid Act, and the Due

20 Process Clauses of the United States and California Constitutions. Plaintiffs therefore seek a

21 declaration as to their rights and Defendants’ corresponding duties with respect to the matters

22 alleged herein.

23

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

24 individuals deprived of crucial and needed mental health treatment outweighs any monetary loss

25 to Defendants.

26

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

27 and other similarly-situated individuals continue to receive, without interruption, medically

28 necessary mental health services to which they are entitled.

20

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1

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

2

FIRST CLAIM FOR RELIEF

3

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

4

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

5 and paragraph set forth previously.

6

98. Each Named Plaintiff and member of the Class is a “qualified individual with a

7 disability” within the meaning of the ADA in that they (1) have mental impairments that

8 substantially limit one or more major life activities; and (2) meet the essential eligibility

9 requirements for Medi-Cal specialty mental health services under the Mental Health Plan.

10

99. Defendants County and DBHS are public en tities within the meaning of Title II of

11 the ADA.

12

100. Title II of the ADA provides that “no qualified individual with a disability shall,

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

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

15 U.S.C. § 12132.

16

101. In enacting the ADA, Congress found that “[i]ndividuals with disabilities

17 continually encounter various forms of discrimination, including . . . segregation . . . .” 42 U.S.C.

18 § 12101(a)(5).

19

102. Regulations implementing Title II of the ADA provide: “A public entity shall

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

21 needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).

22

103. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S.

23 581 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form

24 of discrimination under Title II of the ADA. The Supreme Court interpreted the ADA’s

25 “integration mandate” as requiring persons with disabilities to be served in the community when:

26 (1) the state determines that community-based treatment is appropriate; (2) the individual does

27 not oppose community placement; and (3) community placement can be reasonably

28 accommodated. Id. at 607.

21

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1

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

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

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

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

5 substantially impairing accomplishment of the objectives of the entity’s program with respect to

6 individuals with disabilities. . . .” 28 C.F.R. § 35.130(b)(3).

7

105. Regulations implementing Title II further require a public entity to “make

8 reasonable modifications in policies, practices, or procedures when the modifications are

9 necessary to avoid discrimination on the basis of disability, unless the public entity can

10 demonstrate that making the modifications would fundamentally alter the nature of the service,

11 program, or activity.” 28 C.F.R. § 35.130(b)(7).

12

106. Finally, Title II regulations provide that a public entity “may not, in determining

13 the site or location of a facility, make selections (i) That have the effect of excluding individuals

14 with disabilities from, denying them the benefits of, or otherwise subjecting them to

15 discrimination; or (ii) That have the purpose or effect of defeating or substantially impairing the

16 accomplishment of the objectives of the service, program, or activity with respect to individuals

17 with disabilities.” 28 C.F.R. § 35.130(b)(4).

18

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

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

20 necessary for people with disabilities to access those services.

21

108. Defendants’ actions discriminate against Plaintiffs and members of the Class by,

22 including but not limited to, engaging in the following actions or inactions in violation of the

23 ADA and implementing regulations:

24

A. Denying class members access to necessary mental health services because

25

either there are no mental health services in place, or replacement services

26

are sorely inadequate, in combination with insufficient transition planning,

27

so as to effectively deny individuals the opportunity to benefit or

28

participate in the program;

22

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1

B. Failing to provide services in the most integrated setting by denying or

2

impeding access to community-based mental health care to class members

3

and placing them at risk of institutionalization, hospitalization and other

4

harm because without the outpatient services which they require, they will

5

experience repeated emotional crises, the loss of their therapeutic support

6

and an increase in the symptoms of their mental illness;

7

C. Failing to provide accommodations and/or modifications to the program

8

including transition planning and assuring that replacement services are in

9

fact provided and in place, without interruption, prior to terminating

10

current mental health care;

11

D. Using methods of administration that defeat the purpose of the program,

12

including: failing to provide individual transition plans based on client

13

needs (e.g., transportation, identification of alternative providers, transition

14

time to ensure that clients are able to access replacement services and

15

providers, and provisions to individuals who have difficulty with

16

transition), failing to make sure that replacement services are in place,

17

without interruption, prior to termination, and failing to make sure that new

18

services are sufficient to meet the needs of current and wait listed clients;

19

E. Closing RST sites that are currently accessible and available throughout the

20

county, and failing to relocate services and programs in sites that are

21

accessible to class members.

22

SECOND CLAIM FOR RELIEF

23

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

24

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

25 and paragraph set forth previously.

26

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

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

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

23

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 26 of 35

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

2 services, programs and activities in “the most integrated setting appropriate” to the needs of

3 qualified individuals with disabilities. 45 C.F.R. § 84.4(b)(2).

4

111. Section 504’s regulations prohibit recipients of federal financial assistance from

5 “utiliz[ing] criteria or methods of administration (i) that have the effect of subjecting qualified

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

7 effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s

8 program with respect to handicapped persons . . . .” 45 C.F.R. § 84.4(b)(4).

9

112. Similar to the ADA, Section 504 regulations require that Defendants refrain from

10 selecting facility sites which have a discriminatory effect on participants. 45 C.F.R. § 84.4(b)(5).

11

113. Each Plaintiff and member of the Class is a “qualified individual with a

12 disability” within the meaning of Section 504 in that they (1) have mental impairments that

13 substantially limit one or more major life activities; and (2) meet the essential eligibility

14 requirements for Medi-Cal specialty mental health services under the Mental Health Plan.

15

114. Pursuant to Section 504, recipients of federal financial assistance are required to

16 provide meaningful access to their programs, services and activities, and provide any

17 accommodations or modifications necessary for people with disabilities to access those services.

18

115. Defendants’ actions discriminate against Plaintiffs and members of the Class by,

19 including but not limited to, engaging in the following actions or inactions in violation of Section

20 504 and implementing regulations:

21

A. Denying class members access to necessary mental health services because

22

either there are no mental health services in place, or replacement services

23

are sorely inadequate, in combination with insufficient transition planning,

24

so as to effectively deny individuals the opportunity to benefit or

25

participate in the program;

26

B. Failing to provide services in the most integrated setting by denying or

27

impeding access to community-based mental health care to class members

28

24

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1

and placing them at risk of institutionalization, hospitalization and other

2

harm;

3

C. Failing to provide accommodations and/or modifications to the program

4

including transition planning and assuring that replacement services are in

5

fact provided and in place, without interruption, prior to terminating

6

current mental health care;

7

D. Using methods of administration that defeat the purpose of the program,

8

including: failing to provide individual transition plans based on client

9

needs (e.g., transportation, identification of alternative providers, transition

10

time to ensure that clients are able to access replacement services and

11

providers, and provisions to individuals who have difficulty with

12

transition), failing to make sure that replacement services are in place,

13

without interruption, prior to termination, and failing to make sure that new

14

services are sufficient to meet the needs of current and wait listed clients;

15

E. Closing RST sites that are currently accessible and available throughout the

16

county, and failing to relocate services and programs in sites that are

17

accessible to class members.

18

THIRD CLAIM FOR RELIEF

19

Medicaid Act Sufficiency Requirement

20

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

21 and paragraph set forth previously.

22

117. Under federal Medicaid requirements, states must provide “sufficient” benefits.

23 That is, “[e]ach service must be sufficient in amount, duration, and scope to reasonably achieve

24 its purpose.” 42 C.F.R. § 440.230(b).

25

118. By terminating and reducing Medi-Cal funded mental health services to

26 individuals for whom such services have been found to be medically necessary, Defendants’

27 actions will result in insufficient services to fulfill the purpose of the Medi-Cal mental health

28 benefit.

25

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 28 of 35

1

119. The proposed terminations and reduction of Medi-Cal funded mental health

2 services is inconsistent with the federal law and preempted by the Supremacy Clause of the U.S.

3 Constitution (U.S. CONST. art. VI, cl. 2).

4

FOURTH CLAIM FOR RELIEF

5

Medicaid Act Comparability Requirement

6

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

7 and paragraph set forth previously.

8

121. Under federal Medicaid requirements, states must provide comparable benefits,

9 i.e., benefits that are equal in “amount, duration and scope,” to all categorically needy Medicaid

10 beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. §§ 440.240(a), (b)(1). Categorically

11 needy Medicaid beneficiaries are beneficiaries who, in most cases, receive cash public assistance

12 to meet basic needs.

13

122. The Medicaid Act also requires states to provide comparable benefits to all

14 medically needy Medicaid beneficiaries. 42 U.S.C. § 1396a (a)(10)(B)(ii); 42 C.F.R. §

15 440.240(b)(1). Medically needy Medicaid beneficiaries are beneficiaries who do not receive cash

16 public assistance because they have income or resources in excess of the requirements for receipt

17 of such assistance, but who nevertheless meet categorical requirements for such assistance, e.g.,

18 they are over age 65, blind, or disabled.

19

123. States may provide benefits to the medically needy that are less in amount,

20 duration and scope than benefits to the categorically needy, but California has not elected to do

21 so.

22

124. Therefore (with certain exceptions for some groups not relevant here), Medi-Cal

23 recipients in one county must be provided with Medicaid benefits that are equal in amount,

24 duration and scope to eligible beneficiaries in other counties. The only permissible basis for

25 distinguishing among such beneficiaries is differing levels of need.

26

125. As a result of the proposed reduction in Medi-Cal mental health services in

27 Sacramento County, Defendants will provide Medicaid benefits to recipients in Sacramento

28 County that are not comparable to those provided to recipients in other counties. The proposed

26

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Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 29 of 35

1 terminations and reduction thus violate Medicaid’s comparability requirement, 42 U.S.C. §

2 1396a(a)(10)(B)(i).

3

126. Defendants’ actions deprive Plaintiffs and members of the Class of rights,

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

5 42 U.S.C. § 1983, and are preempted by the Supremacy Clause of the U.S. Constitution (U.S.

6 CONST. art. VI, cl. 2).

7

FIFTH CLAIM FOR RELIEF

8

Medicaid Reasonable Standards Requirement

9

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

10 and paragraph set forth previously.

11

128. Federal Medicaid law requires participating states to establish reasonable

12 standards, consistent with the objectives of the Medicaid Act, for determining the extent of

13 covered services. See 42 U.S.C. § 1396a(a)(17).

14

129. The proposed terminations and reductions of Medi-Cal mental health services will

15 deny medically necessary care to clients of the RSTs, who are the most severely mentally ill

16 clients in the County and who are the least able to cope with the loss of their existing services. In

17 making these cuts, Defendants have failed to utilize a fair or reasonable measure of need for

18 services.

19

130. Defendants’ proposed terminations and reductions of Medi-Cal funded mental

20 health services are inconsistent and in conflict with the reasonable standards requirements of the

21 federal Medicaid Act, 42 U.S.C. §1396a(a)(17), and interpretive federal guidelines, and is thus

22 preempted by the Supremacy Clause of the U.S. Constitution (U.S. CONST. art. VI, cl. 2).

23

SIXTH CLAIM FOR RELIEF

24

Constitutional Due Process

25

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

26 and paragraph set forth previously.

27

28

27

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Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 30 of 35

1

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

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

3 medical care and services. See Goldberg v. Kelly, 397 U.S. 254 (1970).

4

133. On information and belief, if Defendants provide any notice at all, they will do so

5 ten days before the planned terminations and the notice will not inform Plaintiffs of their right to

6 appeal the termination and to have their services continue pending the outcome of the hearing.

7

134. On information and belief, if Defendants provide any notice at all, this notice of

8 the planned terminations of mental health services will not be adequate or effective in light of

9 Plaintiffs’ circumstances. Defendants will not inform Plaintiffs of the alternative services that are

10 available to them and whether these are equivalent to the services being terminated. Defendants

11 will not provide Plaintiffs and class members with meaningful information necessary to

12 determine whether they should request a hearing to context the terminations.

13

135. On information and belief, if Defendants provide any notice at all, notice that is

14 provided ten days prior to the planned terminations of mental health services is not adequate or

15 effective. Ten days is not sufficient time for Plaintiffs and other class members, who are

16 individuals with mental illness, to determine whether they should appeal the decision to terminate

17 their services and how to submit such an appeal. Because of their mental illness, Plaintiffs will

18 need to obtain the assistance of case managers, family members or others in order to determine

19 whether to appeal. They must also determine whether any alternative services offered to them are

20 equivalent to those being terminated, whether they are actually available and whether they are

21 accessible to Plaintiffs. Plaintiffs will require more than ten days for this process.

22

136. On information and belief, if Defendants provide any notice at all, they will not

23 inform Plaintiffs and class members of their right to continued services pending the outcome of

24 their appeal, nor will they agree to continue services pending the hearings.

25

137. Unless enjoined, Defendants will reduce or terminate Medi-Cal services to which

26 members of the Class are entitled and have a property interest in maintaining, thereby depriving

27 class members of their right to an opportunity for fair hearing before reduction or termination of

28 benefits.

28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 31 of 35

1

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

2 U.S. Constitution (U.S. CONST. Amend. XIV), as well as the Due Process Clauses of the

3 California Constitution (Cal. CONST. art. I, §§ 7, 15).

4

139. Defendants’ actions deprive Plaintiffs and members of the Plaintiff Class of rights,

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

6 42 U.S.C. § 1983.

7

SEVENTH CLAIM FOR RELIEF

8

Medicaid Act Right to a Fair Hearing

9

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

10 and paragraph set forth previously.

11

141. Under federal Medicaid requirements, recipients and applicants for Medicaid

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

13 reduced, suspended, or terminated. 42 U.S.C. § 1396a(a)(3).

14

142. This notice must contain the following:

15

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

16

(b) The reasons for the intended action;

17

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

18

requires, the action;

19

(d) An explanation of–

20

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

21

or a State agency hearing; or

22

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

23

which a hearing will be granted; and

24

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

25

hearing is requested.

26 42 C.F.R. § 431.210.

27

28

29

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1

143. If the agency mails the notice of action and the recipient requests a hearing before

2 the date of action, the “agency may not terminate or reduce services until a decision is rendered

3 after the hearing” except in circumstances not applicable to this case. 42 C.F.R. § 431.230(a).

4

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

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

6 Code Regs. tit. 22, § 51014.1(a). The state regulations provide, in pertinent part, that a Medi-Cal

7 managed care plan shall send a notice in writing to Medi-Cal recipients of “[a]ny intended

8 action . . . to terminate or reduce any medical service.” Id., § 5104.1(a)(2). These state

9 regulations impose essentially the same requirements as the above-mentioned federal regulations

10 in terms of the contents of the notice of action. Id., § 51014.1(c)(1)-(6). In general, this written

11 notice shall be mailed to the Medi-Cal beneficiary “at least 10 days before the effective date of

12 action.” Id., § 51014.1(c).

13

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

14 Plaintiffs and members of the Class of their opportunity to notice and a fair pre-termination

15 hearing in violation of 42 U.S.C. § 1396a(a)(3) and 42 C.F.R. § 431.210.

16

146. Defendants’ actions deprive Plaintiffs and members of the Plaintiff Class of rights,

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

18 42 U.S.C. § 1983, and are preempted by the Supremacy Clause of the U.S. Constitution (U.S.

19 CONST. art. VI, cl. 2).

20

EIGHTH CLAIM FOR RELIEF

21

California Government Code § 11135

22

147. Plaintiffs incorporate by reference each and every allegation contained in the

23 foregoing paragraphs.

24

148. Section 11135(a) of the California Government Code provides in pertinent part:

25 “No person in the State of California shall, on the basis of . . . disability, be unlawfully denied the

26 benefits of, or be unlawfully subjected to discrimination under, any program or activity that is

27 funded directly by the state or receives any financial assistance from the state.”

28

30

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 1 Filed 05/06/10 Page 33 of 35

1

149. At all times relevant to this action, Defendant DBHS has been an agency of

2 Defendant County. At all times relevant to this action, DBHS and the County received financial

3 assistance from the State of California.

4

150. Through their acts and omissions described herein, Defendants have violated and

5 continue to violate California Government Code Section 11135 by unlawfully denying Plaintiffs

6 the benefits of, and unlawfully subjecting Plaintiffs to discrimination under, Defendants’

7 programs and activities.

8

151. Plaintiffs and class members further allege that violations of their rights under the

9 Americans with Disabilities Act and implementing regulations contained in the First Claim for

10 Relief are incorporated herein and constitute a violation of California Government Code Section

11 11135 et seq. as well, as set forth in section 11135(b).

12

152. Because Defendants’ discriminatory conduct is ongoing, declaratory and

13 injunctive relief are appropriate remedies. Moreover, as a result of Defendants’ actions Plaintiffs

14 are suffering irreparable harm, and thus immediate relief is appropriate.

15

REQUEST FOR RELIEF

16

WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies on

17 behalf of themselves and all others similarly situated:

18

a) Assume jurisdiction over this action and maintain continuing jurisdiction until

19 Defendants are in full compliance with every order of this Court;

20

b) Certify this action as a class action and appoint the individual named Plaintiffs as

21 Class representatives;

22

c) Declare that the proposed termination and reduction of Medi-Cal funded mental

23 health services and Defendants’ policies, practices, acts and omissions as set forth above violate

24 the American with Disabilities Act and Section 504 of the Rehabilitation Act, the Medicaid Act

25 (sufficiency, comparability, reasonable standards and reasonable fair hearing), the Due Process

26 Clauses of the United States and California Constitution, California Government Code § 11135,

27 and 42 U.S.C. § 1983, and are preempted by the Supremacy Clause of the U.S. Constitution (U.S.

28 CONST. art. VI, cl. 2).

31

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

d) Grant a preliminary and permanent injunction enjoining Defendants, their officers,

2 agents, employees, attorneys, and all persons who are in active concert or participation with them

3 from terminating and reducing medically necessary Medi-Cal funded mental health services

4 without first:

5

(i) Demonstrating that alternative services sufficient to meet the needs of

6

Plaintiffs and other class members are currently available;

7

(ii) Providing a process of transition to any alternative services that meets the

8

needs of Plaintiffs and other class members and is consistent with

9

minimum professional standards;

10

(iii) Providing adequate and effective written notice of the proposed termination

11

and reduction of Medi-Cal funded mental health services, and notice of the

12

right to appeal these actions and of the right to continued benefits pending

13

an appeal hearing;

14

(iv) Providing accommodations in the form of case management and other

15

assistance for Plaintiffs and class members that will enable them to

16

participate in the process of transition and in exercising their right to

17

appeal.

18 ///

19 ///

20 ///

21

22

23

24

25

26

27

28

32

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

e) Award the Plaintiffs the costs of this action and reasonable attorneys’ fees

2 pursuant to 20 U.S.C. § 794a; 42 U.S.C. §§ 1988, 12133, 12205; California Code of Civil

3 Procedure § 1021.5; and as otherwise may be allowed by law.

4

f) All such other and further relief as the Court deems to be just and equitable.

5 Dated: May 6, 2010 6

Respectfully submitted,

7

COOLEY LLP

8

9

By: /s/ William S. Freeman

10

WILLIAM S. FREEMAN

11

Attorneys for Plaintiffs

12

13

WESTERN CENTER ON LAW AND POVERTY

14

15

By: /s/ Robert D. Newman (authorized on May 6, 2010)

16 ROBERT D. NEWMAN

17

Attorneys for Plaintiffs

18

19 DISABILITY RIGHTS CALIFORNIA
20

21 By: /s/ Stuart Seaborn (authorized on May 6, 2010)
22

23

STUART SEABORN Attorneys for Plaintiffs

24

25 852522 v1/HN
26

27

28

33

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

 
 Case 2:10-cv-01119-JAM-EFB Document 16 Filed 06/09/10 Page 1 of 5

1 WILLIAM S. FREEMAN (SBN 82002) MARGARET I. BRANICK-ABILLA (SBN 223600)
2 AMY E. NASH (SBN 264955) COOLEY LLP
3 3175 Hanover Street Palo Alto, CA 94304-1130
4 Telephone: (650) 843-5000

5 STUART SEABORN (SBN 198590) SUZANNA GEE (SBN 170780)
6 JAY KOSLOFSKY (SBN 97024) SEAN RASHKIS (SBN 232533)
7 WILL SCHELL (SBN 252470) DISABILITY RIGHTS CALIFORNIA
8 100 Howe Ave., Suite 235N Sacramento, CA 95825
9 Telephone: (916) 488-9950

10 ATTORNEYS FOR PLAINTIFFS [ADDITIONAL COUNSEL LISTED ON NEXT PAGE]
11

12

UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

LESLIE NAPPER, JANET FISCHER, JACQUIE

15 EICHHORN-SMITH, TED YANELLO, and

16

LYNDA MANGIO, on behalf of themselves and all others similarly situated,

Case No. 2:10-cv-1119 CLASS ACTION

17

18

v.

Plaintiffs,

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION

19

COUNTY OF SACRAMENTO; BOARD OF SUPERVISORS OF THE COUNTY OF

20 SACRAMENTO; County Supervisor ROGER

Date: TBD Time: TBD Place: Courtroom 6, 14th Floor

DICKINSON; County Supervisor JIMMIE YEE; Judge: Hon. John A. Mendez

21 County Supervisor SUSAN PETERS; County

Supervisor ROBERTA MACGLASHAN; County 22 Supervisor DON NOTTOLI; SACRAMENTO

23 COUNTY DEPARTMENT OF BEHAVIORAL HEALTH SERVICES; ANN EDWARDS-

24 BUCKLEY, Director, Department of Behavioral

Health Services; MARY ANN BENNETT, Mental

25 Health Director,

26

Defendants.

27

28

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION - CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 16 Filed 06/09/10 Page 2 of 5

1

ROBERT D. NEWMAN (SBN 86534)

KIMBERLY LEWIS (SBN 144870)

2

ANTIONETTE D. DOZIER (SBN 244437)

3

WESTERN CENTER ON LAW AND POVERTY

3701 West Sixth Street, Suite 208

4

Los Angeles, California 90010

Telephone: (213) 487-7211 5

MELINDA BIRD (SBN 102236)

6

DISABILITY RIGHTS CALIFORNIA

7

3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010

8

Telephone: (213) 427-8747

9

KIMBERLY SWAIN (SBN 100340)

DISABILITY RIGHTS CALIFORNIA

10

1330 Broadway, Suite 500

11

Oakland, CA 94612 Telephone: (510) 267-1200

12 [ADDITIONAL COUNSEL LISTED ON

13

CAPTION PAGE]

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION - CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 16 Filed 06/09/10 Page 3 of 5

1

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION

2

TO DEFENDANTS COUNTY OF SACRAMENTO; BOARD OF SUPERVISORS OF

3 THE COUNTY OF SACRAMENTO; County Supervisor ROGER DICKINSON; County

4 Supervisor JIMMIE YEE; County Supervisor SUSAN PETERS; County Supervisor ROBERTA

5 MACGLASHAN; County Supervisor DON NOTTOLI; SACRAMENTO COUNTY

6 DEPARTMENT OF BEHAVIORAL HEALTH SERVICES; ANN EDWARDS-BUCKLEY,

7 Director, Department of Behavioral Health Services; MARY ANN BENNETT, Mental Health

8 Director, AND THEIR ATTORNEYS OF RECORD:

9

PLEASE TAKE NOTICE that, at a date and time to be determined1, before the Honorable

10 John A. Mendez, in Courtroom 6, United States District Court, Eastern District of California,

11 located at 501 I Street, Suite 4-200, Sacramento, CA, Plaintiffs individually and on behalf of

12 members of the proposed class will move the Court pursuant to Rule 65(a) of the Federal Rules of

13 Civil Procedure and Rule 231(d) of the Local Civil Rules for an order issuing a Preliminary

14 Injunction:

15

(a) Enjoining Defendants and their respective successors in office, agents, servants,

16 employees, attorneys, and all persons in active concert therewith from terminating or reducing the

17 funding for the four Regional Support Team (“RST”) programs, the Transitional Community

18 Opportunities for Recovery and Engagement (“TCORE”) program and the Consumer Self Help

19 Wellness and Recovery Center and from terminating, reducing or making any further reductions

20 in medically necessary, outpatient mental health service for Medi-Cal recipients in the County

21 unless and until the Court has determined that Plaintiffs and members of the proposed class:

22

(i) will continue to receive these outpatient mental heath services in the most

23 integrated setting possible for Plaintiffs and individual class members so as to avoid their

24 unnecessary institutionalization; and

25

26 1 Concurrently with this motion, Plaintiffs are filing an ex parte application requesting a hearing
27 on their Motion for Preliminary Injunction on July 7, 2010.
28

1.

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Case 2:10-cv-01119-JAM-EFB Document 16 Filed 06/09/10 Page 4 of 5

1

(ii) will continue to receive comparable outpatient mental health services from

2 other Medi-Cal providers in the County and that they will receive these outpatient mental health

3 services in a timely manner and to the same extent as Medi-Cal recipients elsewhere in

4 California.

5

(b) Enjoining Defendants and their respective successors in office, agents, servants,

6 employees, attorneys, and all persons in active concert therewith from terminating, reducing,

7 denying, suspending or interrupting the provision of any outpatient mental health services to any

8 Plaintiff or member of the proposed class unless the Plaintiff and/or member of the proposed class

9 has first been provided a notice of action as required by 42 Code of Federal Regulations

10 § 431.230(a) and California Code of Regulations, title 22, § 51014.1, an opportunity to request an

11 administrative hearing to challenge such an adverse action, and the continuation of these

12 outpatient mental health services pending such an administrative hearing if there has been a

13 timely request for a hearing.

14

(c) Enjoining Defendants and their respective successors in office, agents, servants,

15 employees, attorneys, and all persons in active concert therewith to restore any outpatient mental

16 health services which were available to Medi-Cal recipients in the County as of March 1, 2010,

17 and that have been terminated or reduced since that date.

18

The Motion will be made on the grounds that Plaintiffs are likely to succeed on the merits

19 of their claims; Plaintiffs and the proposed class will suffer irreparable injury unless the

20 Defendants’ actions are enjoined; the balance of the equities tip sharply in Plaintiffs’ favor; and

21 the requested injunction is in the public interest.

22

Plaintiffs further request that the Court waive the requirement for the posting of a bond as

23 security for the entry of preliminary relief, on the grounds of Plaintiffs’ indigency.

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

2.

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION - CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 16 Filed 06/09/10 Page 5 of 5

1

This Motion for a Preliminary Injunction is based upon this Notice of Motion and Motion;

2 the accompanying Memorandum of Points and Authorities; all accompanying declarations and

3 exhibits; all pleadings and papers on file in this action; and such other matters as may be

4 presented to the Court at the time of the hearing. Plaintiffs do not intend to present any oral

5 testimony at the hearing on the preliminary injunction motion. See Local Rule 231(d)(3).

6 Dated: June 8, 2010 7 8

Respectfully submitted, COOLEY LLP

9

By:

/s/ William S. Freeman

10

WILLIAM S. FREEMAN

11

Attorneys for Plaintiffs

12 850864 v3/HN 13

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3.

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION - CASE NO. 2:10-CV-1119

 
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1 WILLIAM S. FREEMAN (SBN 82002) MARGARET I. BRANICK-ABILLA (SBN 223600)
2 AMY E. NASH (SBN 264955) COOLEY LLP
3 3175 Hanover Street Palo Alto, CA 94304-1130
4 Telephone: (650) 843-5000

5 STUART SEABORN (SBN 198590) SUZANNA GEE (SBN 170780)
6 JAY KOSLOFSKY (SBN 97024) SEAN RASHKIS (SBN 232533)
7 WILL SCHELL (SBN 252470) DISABILITY RIGHTS CALIFORNIA
8 100 Howe Ave., Suite 235N Sacramento, CA 95825
9 Telephone: (916) 488-9950

10 ATTORNEYS FOR PLAINTIFFS [ADDITIONAL COUNSEL LISTED ON NEXT PAGE]
11 UNITED STATES DISTRICT COURT
12 FOR THE EASTERN DISTRICT OF CALIFORNIA
13

LESLIE NAPPER, JANET FISCHER, JACQUIE

14 EICHHORN-SMITH, TED YANELLO, and

15 LYNDA MANGIO, on behalf of themselves and Case No. 2:10-cv-1119

all others similarly situated,

MEMORANDUM OF POINTS AND

16

Plaintiffs,

AUTHORITIES IN SUPPORT OF

MOTION FOR PRELIMINARY

17

v.

INJUNCTION

18 COUNTY OF SACRAMENTO; BOARD OF SUPERVISORS OF THE COUNTY OF
19 SACRAMENTO; County Supervisor ROGER

Date: TBD Time: TBD Place: Courtroom 6, 14th Floor

DICKINSON; County Supervisor JIMMIE YEE; Judge: Hon. John A. Mendez 20 County Supervisor SUSAN PETERS; County

21

Supervisor ROBERTA MACGLASHAN; County Supervisor DON NOTTOLI; SACRAMENTO

22 COUNTY DEPARTMENT OF BEHAVIORAL HEALTH SERVICES; ANN EDWARDS-

23 BUCKLEY, Director, Department of Behavioral

Health Services; MARY ANN BENNETT, Mental 24 Health Director,

25

Defendants.

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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION – CASE NO. 2:10-CV-1119

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ROBERT D. NEWMAN (SBN 86534)

KIMBERLY LEWIS (SBN 144870)

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ANTIONETTE D. DOZIER (SBN 244437)

WESTERN CENTER ON LAW AND POVERTY

3

3701 West Sixth Street, Suite 208

Los Angeles, California 90010

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Telephone: (213) 487-7211

MELINDA BIRD (SBN 102236)

5

DISABILITY RIGHTS CALIFORNIA

3580 Wilshire Blvd., Ste. 902

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Los Angeles, CA 90010

Telephone: (213) 427-8747

7

KIMBERLY SWAIN (SBN 100340)

8

DISABILITY RIGHTS CALIFORNIA

1330 Broadway, Suite 500

9

Oakland, CA 94612

Telephone: (510) 267-1200

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[ADDITIONAL COUNSEL LISTED ON

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CAPTION PAGE]

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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION – CASE NO. 2:10-CV-1119

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1

TABLE OF CONTENTS

2

PAGE

3 I. INTRODUCTION .............................................................................................................. 1

4 II. 5

STATEMENT OF FACTS ................................................................................................. 2 A. Sacramento’s Mental Health System ...................................................................... 2 B. Previous Budget Cuts and Their Impacts................................................................ 5

6

C. The County’s Current Proposed Terminations and Reductions of Medi-Cal

Mental Health Services ........................................................................................... 6

7

D. Impacts of the County’s Threatened Actions on the Proposed Class ..................... 9

8 III. PLAINTIFFS MEET THE REQUIREMENT FOR GRANTING A

PRELIMINARY INJUNCTION....................................................................................... 13

9

A. Standards for Preliminary Injunction. ................................................................... 13

10

B. Plaintiffs are Likely to Succeed on the Merits of Their Claims That

Defendants’ Program Cuts Unlawfully Discriminate Against Persons with

11

Disabilities in Violation of the ADA, the Rehabilitation Act, and Section

11135 of the California Government Code. .......................................................... 14

12

a. The Increased Risk of Institutionalization Resulting from

13

Defendants’ Plans Violates the ADA’s Integration Mandate. ...... 15

b. Defendants Are Violating the ADA’s Prohibition on

14

Employing Methods of Administration that Result in

Discrimination............................................................................... 17

15

C. Plaintiffs are Likely to Succeed on the Merits of their Claims that the

16

Proposed Cuts Violate the Medicaid Act’s Sufficiency, Comparability, and Reasonable Standards Requirements. ................................................................... 18

17

D. Plaintiffs are Likely to Succeed on their Due Process and Medicaid Act

Claims Because Defendants Have Failed to Provide Adequate Pre-

18

Termination Notice and Opportunity for a Hearing.............................................. 21

19

E. Plaintiffs Will Suffer Irreparable Harm in the Absence of an Injunction. ............ 22

F. The Balance of Equities Favor Plaintiffs. ............................................................. 23

20

G. An Injunction is in the Public Interest................................................................... 24

21 IV. PLAINTIFFS SHOULD NOT BE REQUIRED TO POST BOND ................................. 24

22 V. CONCLUSION ................................................................................................................. 25

23

24

25

26

27

28

i.

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1

TABLE OF AUTHORITIES

2 3 CASES

PAGE

4 Am. Trucking Ass’ns v. City of Los Angeles,

5

559 F.3d 1046 (9th Cir. 2009)................................................................................................. 14

6

Atkins v. Parker, 472 U.S. 115 (1985) ................................................................................................................ 21

7 Barden v. City of Sacramento,

8

292 F.3d 1073 (9th Cir. 2002)................................................................................................. 15

9 Beltran v. Myers, 677 F.2d 1317 (9th Cir. 1982)........................................................................................... 22, 23
10

11

Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009) ............................................................................ 17, 22

12 Catanzano v. Dowling,

13

847 F. Supp. 1070 (W.D.N.Y. 1994) ...................................................................................... 21

14 Charpentier v. Belshe, No. CIV S-90-758, 1994 WL 792591 (E.D. Cal. Dec. 21, 1994) ........................................... 19
15

16

Cont’l Oil Co. v. Frontier Ref. Co., 338 F.2d 780 (10th Cir. 1964)................................................................................................. 25

17 Dominguez v. Schwarzenegger,

18

596 F.3d 1087 (9th Cir. 2010)................................................................................................. 23

19 Fisher v. Okla. Health Care Auth.,

335 F.3d 1175 (10th Cir. 2003)......................................................................................... 15, 16 20

Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of Pa.,

21

364 F.3d 487 (3d Cir. 2004).............................................................................................. 15, 16

22 Goldberg v. Kelly,

23

397 U.S. 254 (1970) ................................................................................................................ 21

24 Hern v. Beye,

57 F.3d 906 (10th Cir. 1995)................................................................................................... 19

25

Indep. Living Center of S. Cal. Inc. v. Maxwell-Jolly,

26

572 F.3d 644 (9th Cir. 2009)............................................................................................. 23, 24

27 Independent Living Center of Southern California, Inc. v. Shewry,

28

543 F.3d 1050 (9th Cir. 2008)................................................................................................. 18

ii.

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1

TABLE OF AUTHORITIES

(continued)

2

PAGE

3 Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003)................................................................................................... 24
4

5

Katie A. ex rel. Ludin v. Los Angeles County, 481 F.3d 1150 (9th Cir. 2007)................................................................................................. 18

6 Lankford v. Sherman,

7

451 F.3d 496 (8th Cir. 2006)................................................................................................... 19

8 Lewis v. Rendell,

501 F. Supp. 2d 671 (E.D. Pa. 2007) ...................................................................................... 21 9

McMillan v. McCrimon,

10

807 F. Supp. 475 (C.D. Ill. 1992) ........................................................................................... 22

11 Mem’l Hosp. v. Maricopa,

12

415 U.S. 250 (1974) ................................................................................................................ 22

13 Miranda B. v. Kitzhaber,

328 F.3d 1181 (9th Cir. 2003)................................................................................................. 14 14

Mitchell v. Johnson,

15

701 F.2d 337 (5th Cir. 1983)................................................................................................... 19

16 O’Bannon v. Town Court Nursing Ctr.,

17

447 U.S. 773 (1980) ................................................................................................................ 21

18 Olmstead v. L.C. ex rel. Zimring,

527 U.S. 581 (1999) .......................................................................................................... 15, 16

19

Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare,

20

402 F.3d 374 (3d Cir. 2005).................................................................................................... 16

21 Preterm, Inc., v. Dukakis,

22

591 F.2d 121 (1st Cir. 1979) ................................................................................................... 19

23 Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004)................................................................................................... 24

24 Ryan v. Cal. Interscholastic Fed’n San Diego Section,

25

94 Cal. App. 4th 1048 (2001) ................................................................................................. 21

26 Save Our Sonoran, Inc. v. Flowers,

27

408 F.3d 1113 (9th Cir. 2005)................................................................................................. 25

28

iii.

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1

TABLE OF AUTHORITIES

(continued)

2

PAGE

3 Sobky v. Smoley, 855 F. Supp. 1123 (E.D. Cal. 1994)........................................................................................ 19
4

5

Walker v. Pierce, 665 F. Supp. 831 (N.D. Cal. 1987) ......................................................................................... 25

6 Weaver v. Reagen,

7

886 F.2d 194 (8th Cir. 1989)............................................................................................. 19, 20

8 Winter v. Natural Res. Defense Council, 129 S. Ct. 365 (2008) .............................................................................................................. 14
9 10 STATUTES 11 28 C.F.R. § 35.130 (b)(3) .............................................................................................................. 17
12 28 C.F.R. § 35.130(b)(7) ............................................................................................................... 16
13 28 C.F.R. § 35.130(d) ................................................................................................................... 15

14 28 C.F.R. § 41.51(b)(3)(i) ............................................................................................................. 17

15 28 C.F.R. § 41.51(d) ..................................................................................................................... 15

16 42 C.F.R. § 431.206(b) ................................................................................................................. 21

17 42 C.F.R. § 431.210 ...................................................................................................................... 21
18 42 C.F.R. § 431.220 ...................................................................................................................... 21
19 42 C.F.R. § 431.230(a).................................................................................................................. 21 20
42 C.F.R. § 440.230(b) ................................................................................................................. 19 21
42 C.F.R. § 440.240(a).................................................................................................................. 19 22
42 C.F.R. § 440.240(b)(1) ............................................................................................................. 19 23
45 C.F.R. § 84.4(b)(4) ................................................................................................................... 17 24 25 29 U.S.C. § 705(2) ........................................................................................................................ 14
26 29 U.S.C. § 794 ............................................................................................................................. 14
27 29 U.S.C. § 794a ........................................................................................................................... 14

28 42 U.S.C. § 1396-1........................................................................................................................ 18

iv.

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1

TABLE OF AUTHORITIES

(continued)

2

PAGE

3 42 U.S.C. § 1396a(a)(3) ................................................................................................................ 21

4 42 U.S.C. § 1396a(a)(10)(B)......................................................................................................... 19
5 42 U.S.C. § 1396a(a)(17) .............................................................................................................. 19
6 42 U.S.C. § 12101 ............................................................................................................. 14, 15, 24 7 42 U.S.C. § 12131 ......................................................................................................................... 14 8
42 U.S.C. § 12132 ......................................................................................................................... 14 9
Cal. Code Regs. tit. 9, § 1810.305 .................................................................................................. 2 10
Cal. Code Regs. tit. 9, § 1810.345(a) .............................................................................................. 2 11
Cal. Code Regs. tit. 22, § 51014.1 ................................................................................................ 22 12 13 Cal. Const. Art. I, § 7 .................................................................................................................... 21
14 Cal. Const. Art. I, §15 ................................................................................................................... 21
15 Cal. Gov. Code § 11135 ................................................................................................................ 14

16 Section 504 of the Rehabilitation Act of 1973............................................................ 14, 15, 17, 24

17 Welf. & Inst. Code § 5775 ............................................................................................................ 18

18 Welf. & Inst. Code § 5775(c).......................................................................................................... 2

19 Welf. & Inst. Code § 5776 ............................................................................................................ 18
20 Welf. & Inst. Code § 5777 ............................................................................................................ 18
21 Welf. & Inst. Code § 5777(a)(1) ............................................................................................... 2, 18 22
OTHER AUTHORITIES 23
Americans with Disabilities Act, the Rehabilitation Act of 1973................................................... 2 24
Federal Rule of Civil Procedure 65(c) .......................................................................................... 24 25

26

27

28

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1 I. INTRODUCTION

2

Plaintiffs, five adult Medi-Cal recipients with severe and persistent mental illness,

3 urgently seek an Order of this Court to prevent Sacramento County (“County”) and other

4 Defendants from terminating Plaintiffs’ outpatient mental health services after July 31, 2010.

5 Unless Defendants’ acts are enjoined, they will cause catastrophic harm to Plaintiffs and

6 thousands of Sacramento County’s most vulnerable citizens who comprise the proposed class in

7 this case (the “Proposed Class”) – harm including deterioration in their mental and physical

8 condition, institutionalization in locked facilities, and increased risk of injury, even death.

9

Since the mid-1990s, the County has provided outpatient mental health services to Medi-

10 Cal recipients through regional centers run by nonprofit service providers. These centers provide

11 medication, psychosocial therapy, group counseling, peer support and self-help, and other

12 services based on individualized treatment plans created with input from the patients. The

13 centers’ experienced staff know their clients well and, over time, have gained their trust.

14

Although these regional centers have been extremely successful in helping Plaintiffs and

15 others with psychiatric disabilities remain in their homes and in the community, the County now

16 intends to begin transferring these thousands of fragile individuals to new County-run clinics,

17 staffed by County employees, starting on July 1, 2010 – barely three weeks from now. Yet, as of

18 this date, the County has provided virtually no details concerning what services will be provided

19 at these new clinics; how and by whom these services will be delivered; or whether County

20 workers are qualified or adequately trained to deliver them. The County nonetheless plans to de-

21 fund the existing centers over the course of two months, starting on August 1, 2010.

22

While the County will undoubtedly claim that it intends to provide the same level of care,

23 there is simply no way for the County to do so. It is undisputed that the County is both cutting

24 the budget for these outpatient mental health services and replacing independent contractors with

25 County workers who are more costly. Moreover, the County has not even formulated any plans

26 for critical steps such as transferring patient records and working with individual patients on a

27 successful transition of their services.

28

1.

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1

As will be discussed below, Plaintiffs are likely to prevail on their claims that the

2 threatened service terminations violate the Americans with Disabilities Act, the Rehabilitation

3 Act of 1973, provisions of the California Government Code, the Medicaid Act, and the Due

4 Process Clauses of the United States and California Constitutions. In addition, the California

5 Department of Mental Health has warned the County that the County’s interpretations of

6 applicable law are incorrect, and that the State will not approve the County’s current plans.

7

Plaintiffs, through their counsel, have sought to engage County officials to avoid the

8 necessity of bringing this motion, but have not been provided with anything close to sufficient

9 information to suggest that medically necessary mental health services will be continued as

10 required by law. Hence, the Court’s intervention is necessary to preserve the status quo and to

11 prevent the predictable, avoidable and catastrophic consequences of the County’s threatened

12 actions.

13 II. STATEMENT OF FACTS

14

A. Sacramento’s Mental Health System

15

Under federal and state law, California counties may elect to be the only provider of

16 mental health services for low-income Medi-Cal recipients residing in the county. See Welf. &

17 Inst. Code § 5775(c); Cal. Code Regs. tit. 9, § 1810.305. Defendants County and its Department

18 of Behavioral Health Services (“DBHS”) have assumed this responsibility for County residents.

19

“Serious mental illness is chronic, relapsing illness, which without appropriate community

20 services will result in frequent re-hospitalizations and mortality.” Franczak Decl., ¶ 14. The

21 County’s Mental Health Plan (“MHP”) serves approximately 20,000 Medi-Cal recipients with

22 mental illness; of these, approximately half are adults over the age of 18. Ex. A at 48 (2009 APS 23 Rpt.).1 These Medi-Cal clients must utilize County-designated facilities for their treatment, and

24 may not choose their own providers. In exchange, the County is required to provide them with

25 medically necessary mental health services (Welf. & Inst. Code § 5777(a)(1); Cal. Code Regs. tit.

26 1 Unless otherwise stated, all exhibits are attached to the Declaration of Margaret Branick-Abilla 27 filed in support of this Motion for Preliminary Injunction. All other cited declarations (“Decl.”)
are also filed concurrently with this Motion. 28

2.

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1 9, § 1810.345(a)), for which it receives reimbursement from the federal and state governments.

2 The County Mental Health Plan’s total budget for fiscal year 2009-2010 is approximately

3 $186 million. Ex. A at 5 (2009 APS Rpt.).

4

According to the state’s quality review team, “the core mental health specialty services”

5 available to Medi-Cal recipients in the County are provided by four Regional Support Teams

6 (“RSTs”). Id. at 6. The RSTs, the centerpiece of the outpatient mental health system, were

7 established beginning in 1993 following an intensive review and evaluation of County mental

8 health services by a County-sponsored Redesign Committee comprised of mental health

9 providers, clients, and family members. Stoneking Decl., ¶ 15. As a result of its research and

10 analysis, the Redesign Committee determined that services should be made available to medically

11 indigent clients through regional mental health centers located in their communities. Id., ¶¶ 16-

12 19. Accordingly, the RSTs were put in place to offer community-based “comprehensive mental

13 health and medication services” (Ex. B at 13-14 (Service Directory, attached to “Access to

14 Services” policy)), including individual and group therapy, psychiatry services and medication

15 management, case management to help clients access other services such as housing, and self

16 help, peer counseling and peer support. See Stoneking Decl. ¶¶ 16-19; Bates Decl., ¶¶ 5-6; Place

17 Decl., ¶¶ 10-13. The RSTs use a “recovery model” approach, which involves the patient in

18 developing an integrated plan designed to help her achieve her stated goals. Stoneking Decl.,

19 ¶ 17.

20

The RSTs are operated by private, non-profit organizations under contract with the

21 County, and together serve approximately 3,600 clients per year. Ex. A at 3 (2009 APS Rpt.)

22 The four RSTs are: Northgate Point in the northern part of the County; Human Resource

23 Consultants (“HRC”) in the eastern part of the County; Visions Unlimited in the southern part of

24 the County; and El Hogar in downtown Sacramento. The staff of the RSTs are culturally and

25 linguistically representative of their communities, which ensures that they are fluent in the

26 clients’ native languages and aware of cultural considerations affecting recovery. Stoneking

27 Decl., ¶ 23; see also Bates Decl., ¶¶ 7-8 (Visions Unlimited staff speak Spanish, Hmong, Mien,

28 Hindi, Tagalog, Farsi and Arabic); Buck Decl., ¶ 13 (Northgate serves clients who speak Russian,

3.

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1 Hmong, Spanish and Laotian); Saetane Decl., ¶ 3 (Mien-speaking provider explains that mental

2 illness is considered shameful among the Mien, who have developed unique terminology for

3 describing symptoms); Ortiz Decl., ¶¶ 9-10 (Spanish-speaking provider recognizes that Latino

4 clients and their families fear stigma and embarrassment from mental illness, and will not discuss

5 such sensitive, personal issues through an interpreter). The RSTs also provide transportation

6 services, assistance with maintaining housing, in-home visits, and hospital visits. Napper Decl.,

7 ¶ 11; T. Johnson Decl., ¶¶ 1, 5, 9; Kirby Decl., ¶¶ 11,12; Buck Decl., ¶ 12.

8

The stories of the individual Plaintiffs exemplify the remarkable successes achieved under

9 the recovery model administered by the RSTs. Plaintiff Leslie Napper, for example, has been

10 diagnosed as having bipolar and schizoaffective disorders and has been a patient of the Northgate

11 RST for the last eight years. Napper Decl., ¶¶ 2-3. “Before I started going to Northgate, I used to

12 think a lot about killing myself because I was so depressed and discouraged.” Id. She “bounced

13 back and forth between different mental hospitals and mental facilities,” including approximately

14 five hospitalizations at the County Mental Health Treatment Center (“MHTC”) and three or four

15 stays at crisis residential facilities. Id., ¶ 6. Becoming a client at Northgate “made the difference”

16 for her, as the staff and programs gave her a “sense of responsibility” for her life. Id., ¶ 7. She

17 has not been in an institution for three or four years. Id.

18

Another Plaintiff, Ted Yannello, “was so depressed that [he] sat in a closet by [himself]

19 for hours” after graduating from college in 1992. Yannello Decl., ¶ 4. Mr. Yannello was

20 hospitalized on many occasions, including at least eight times at the MHTC. Id. He began

21 participating in the El Hogar RST approximately ten years ago and reports that the “program has

22 been a miracle for me.” Id., ¶ 3. He now has a daily routine of doing some yard work, reading

23 the Bible and cooking his own dinner, and is “much more functional and productive.” Id., ¶ 6.

24 Mr. Yanello is even able to hold down a part time job. Id., ¶ 8. “Taking my medications,

25 counseling and prayer all go hand in hand to help me keep a positive state of mind.” Id., ¶ 6.

26 Other clients of the RSTs attest to similar experiences. See, e.g., Fischer Decl., ¶ 4 (“[S]ince I

27 have been with Northgate, my hospitalizations are fewer. Before Northgate, I would be in and

28

4.

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1 out of facilities.”); Conners Decl., ¶ 9 (Human Resource Consultants RST “has always been a

2 haven, a sanctuary, for me.”).

3

In addition to the RSTs, the County refers mental health clients to two other non-profit

4 programs under contract with DBHS. The first program is the Consumer Self-Help Wellness and

5 Recovery Center (“CSH”), which has two sites (North and South), and serves 2,600 adults

6 annually. Ex. C (Wellness and Recovery Center Statistics, Fiscal Year 2009-2010). The second

7 program is called Transitional Community Opportunities for Recovery and Engagement

8 (“TCORE”), which serves clients who are being discharged from acute treatment settings or at

9 risk of entering acute care settings and are not linked to ongoing services, such as the RSTs.

10 Cline Decl., ¶ 7. TCORE currently serves nearly 640 people. Risley Decl., ¶ 6.

11

Plaintiff Jacquie Eichhorn-Smith is a current client of TCORE, having been diagnosed as

12 bipolar with borderline personality and post traumatic stress disorders. Eichhorn-Smith

13 Decl., ¶¶ 1-2. From 2006 until 2008, she was hospitalized approximately 20 to 25 times per year

14 for hurting herself. Id., ¶ 5. “On a number of occasions when I cut myself, I used the skills I

15 learned in nursing to sew my cuts closed.” Id. Since Ms. Eichhorn-Smith began receiving

16 treatment from TCORE in May 2008, she has significantly reduced the number of times that she

17 has injured herself and been hospitalized. Id., ¶ 1. She feels that she has made “significant

18 progress with TCORE” and plans to go back to school and find a job. Id., ¶ 12.

19

B. Previous Budget Cuts and Their Impacts

20

This is not the first time Sacramento County has cut services to members of the Proposed

21 Class. In April 2009, the County cut millions of dollars from its mental health budget, reducing

22 and terminating outpatient services to thousands of clients. Ex. A at 5-6 (2009 APS Rpt.); Ex. D

23 at 2 (5/7/09 DBHS Meeting Minutes). As a result, clients ended up in hospital emergency rooms

24 that “are not accustomed to clients who are in psychiatric emergencies” (Place Decl., ¶ 22) or

25 “got lost” as a result of changes in service and went without mental health services for months at

26 a time (T. Johnson Decl., ¶ 13). At that time, County officials admitted that the discontinuance of

27 services to thousands of clients as a result of the cuts would “inevitably lead to a significant

28 impact to the jail, emergency rooms, and the MHTC as well as other adverse health outcomes for

5.

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1 the individuals currently in treatment.” Bates Decl., ¶¶ 17-18 & Attachment C. There is no doubt 2 that the same impacts, or worse, will be felt if the County implements its current plans.2

3

C. The County’s Current Proposed Terminations and Reductions of Medi-Cal

4

Mental Health Services

5

On March 16, 2010, Defendant Mary Ann Bennett, the County’s Mental Health Director,

6 announced a proposed reduction of $17.5 million in DBHS expenditures for the 2010-2011 fiscal

7 year. Ex. E (3/16/10 Bennett Memo). The bulk of the cuts – $11.5 million – were aimed at

8 provider and professional services, including “our contracted providers and the vital services they

9 provide to our clients.” Id. The County later announced that effective June 30, 2010, it planned

10 to terminate all funding for the four RSTs and TCORE. See Ex. F (4/1/10 DBHS Meeting

11 Minutes & Attachment B).

12

At a public meeting on April 1, 2010, Bennett unveiled the County’s proposal to open new

13 County-operated clinics that would be staffed with County employees displaced from other

14 positions. Ex. F at 2-3 (4/1/10 DBHS Meeting Minutes & Attachment B). The County

15 acknowledged that the budget reductions would affect “6,500 individuals,” that the County was

16 “planning services for approximately 5,000 to 6,000 of [sic] consumers currently in services,” and

17 that the County would reduce caseloads by referring clients to alternative clinics and primary care

18 physicians instead of the County’s programs. Id. The April 1 plan stated that the new clinics

19 would be staffed by 28.6 county employees identified for termination from other positions, but 20 whose jobs, the County asserted, were “protected” by Section 71-J of the County Charter.3 Id. In

21 2 Even before the current round of service cuts, the Sacramento Mental Health Plan was unable to

22 provide timely access to outpatient mental health services to all qualified patients. The state’s quality review team found that in 2008, the “system [did] not have sufficient program capacity to

23 provide services.” Ex. G at 13 (2008 APS Rpt.). The reviewers found that timely access to

services was the County’s “greatest systemic challenge,” with wait times of up to five months for 24 psychiatry appointments and excessively large caseloads of 130-150 adult consumers per staff

25

member. Id. at 3 3 County Charter Section 71-J imposes certain conditions on the County before it may contract

26 out county services. See Ex. H (Sacramento Co. Charter § 71-J). The County currently asserts that Section 71-J requires the termination of existing mental health services contracts to preserve

27 County jobs in the face of budget cuts. See Ex. F at 2-3 (4/1/10 DBHS Meeting Minutes &

Attachment B). 28

6.

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1 addition, the County stated its intention to contract with University of California, Davis to

2 provide medical staff in the County clinics. Id.; see Risley Decl., ¶ 12 (noting concern that

3 “second year residents do not have the requisite training and experience to treat our clients”).

4

As of this date, the County still has provided virtually no details about critical issues

5 concerning the planned County clinics, including (1) the overall budget for the clinics; (2) who

6 will staff them, how they will be recruited and hired, how they are qualified and/or how they will

7 be trained in the recovery model; (3) whether these workers have language abilities and cultural

8 backgrounds comparable to the staffers they are replacing; (4) how they will develop or adopt

9 individual treatment plans for over 5,000 clients; (5) how they can possibly prepare these clinics

10 to open on July 1; and (6) what the client-to-staff ratios will be.

11

Defendants have not explained how they will be able to provide all necessary services to

12 the same number of clients for less money and with fewer staff members than the contract

13 programs, especially when they have admitted that County staff are more costly than the contract

14 staff. See Ex. I at 3 (8/20/09 DBHS Meeting Minutes). Defendants have not announced any

15 concrete arrangements to transition existing clients from the RSTs, TCORE and CSH to new

16 treating staff at the County clinics, nor have Defendants addressed critical logistical details such

17 as the copying of clients’ records at the current facilities, the transfer of client data and charts to

18 the new facilities, and the scheduling of appointments for clients with new providers. Bolte

19 Decl., ¶ 20, Risley Decl., ¶ 15; Bates Decl., ¶¶ 27-28.

20

Worse yet, the few details the County has provided are constantly changing. For example,

21 the County initially announced that it was going to lease four sites for the new county clinics as

22 early as April 27, 2010. Bolte Decl., ¶ 19. The County later stated that it could not sign any

23 leases until after the Board of Supervisors voted on the matter in the middle of June. Id.,

24 Attachment B. That would leave one or two weeks for the County to establish fully functioning

25 new clinics ready to serve over 5,000 seriously ill clients effective July 1, 2010.

26

Then, on May 21, 2010, County officials informed Plaintiffs’ counsel that in addition to

27 its own original redesign proposal, the County was still considering two other proposals for the

28 delivery of services; that County staff would not make a recommendation for the redesign to the

7.

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1 Board of Supervisors until at least June 10; and that the Board would not consider the redesign

2 until at least June 14. Freeman Decl., ¶ 8. At the same meeting, the County unofficially

3 indicated that it would allow the RSTs and TCORE to remain open until August 1, 2010, and that

4 some funding might be available after that date, on a steadily diminishing basis, over the course

5 of approximately two months as clients were transitioned to the new County clinics. Id.

6

The County insists, however, that even though it does not yet know, and has not yet

7 announced, most of the critical details concerning how its new clinics will operate, it will open

8 them on July 1, 2010, and it will immediately begin encouraging Proposed Class members to

9 transfer their care to the new clinics. Id.

10

The County is refusing to send notices of action to current clients of the RSTs, TCORE or

11 CSH regarding the termination of these programs and the changes in their providers and in their

12 care. Bolte Decl., ¶ 20; Place Decl., ¶ 40. The County has instructed the soon-to-be terminated

13 contract providers to tell clients themselves, through a generic form letter. Bolte Decl., ¶ 20 & 14 Attachment B; Place Decl., ¶ 39 & Ex. 1.4

15

The County’s hasty and poorly-conceived plan to dismantle the programs currently

16 serving Plaintiffs and the Proposed Class has drawn a sharp rebuke from the State Department of

17 Mental Health (“DMH”). On May 5, 2010, DMH’s Chief Counsel, Cynthia Rodriguez, wrote to

18 the County Counsel, stating that the County’s interpretations of applicable state law and the

19 County Charter were neither “correct [n]or legal;” expressing “concern” over “clinical and quality

20 of care issues,” the County’s lack of a transition plan, and its intention not to notify consumers of

21 changes in their providers; and concluding, “DMH will not be able to approve [the County’s] plan

22 updates or contracts until the resolution of these issues.” Ex. J at 1, 3 (5/5/10 letter from DMH to

23 County Counsel). To date, none of these issues has been resolved to DMH’s satisfaction. On two

24 separate occasions, the Sacramento Bee has published editorials stating that the County’s plan is

25 “ill-advised” and “should be a non-starter,” and that it should be enjoined “[u]nless the county

26

27 4 The County held public meetings to inform clients about the County’s plans, but the information provided was limited to the tentative locations of the County clinics. See Place Decl., ¶ 38.
28

8.

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1 provides more proof it has its act together.” Exs. K, L (Sacramento Bee editorials, 5/14/10 and

2 6/4/10).

3

D. Impacts of the County’s Threatened Actions on the Proposed Class

4

Even if the County could provide equivalent levels of services under its replacement

5 system – and there is no evidence that it can or will – the County’s abrupt termination of the

6 services provided by the RSTs, TCORE and CSH threatens devastating impacts on the members

7 of the Proposed Class. Plaintiffs submit herewith the declarations of two experts who

8 graphically, and in detail, describe the likely impacts of the County’s proposed plans on Medi-Cal

9 recipients. Dr. Beth C. Stoneking, a licensed clinical social worker and certified psychiatric

10 rehabilitation practitioner with 40 years of experience in the field, served in the County’s Mental

11 Health Services Department in the late 1980s and early 1990s and initiated the community-based

12 outpatient care model that the County is now planning to dismantle. Stoneking Decl., ¶¶ 7-9, 15-

13 19. Dr. Michael J. Franczak is a licensed psychologist who, over the course of a 38-year career,

14 has served as a clinician, an administrator, and an expert to numerous court monitors and special

15 masters. Franczak Decl., ¶¶ 3-6.

16

In Dr. Stoneking’s expert opinion, the County’s current proposals “will, if they come

17 to pass, inflict severe and life-threatening injury on thousands of persons who rely on the

18 current system for the provision of effective outpatient psychiatric care . . . .” Stoneking

19 Decl., ¶ 41. Dr. Franczak likens the County’s plan to “asking consumers [of mental health

20 services] to go over a waterfall without any information about what lies at the bottom,” and

21 opines that the combination of closing of existing centers, the lack of adequate notice, the lack of

22 transition planning, and the almost certain reduction in services “will most likely result in

23 significant and irreparable harm to individuals with serious mental illness currently served by

24 these programs in the form of harming themselves or others, unnecessary institutionalization in

25 hospital emergency rooms and psychiatric facilities, and increased criminalization of the mental

26 health population.” Franczak Decl., ¶¶ 10, 27; see also Place Decl., ¶¶ 3, 49 (Long time RST

27

28

9.

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1 Executive Director “truly foresee[s] an upcoming disaster for low income residents of 2 Sacramento County with intense mental health needs.”).5

3

People with severe mental illnesses are extremely fragile individuals who need continuity

4 of care and access to services to survive; building a bond between clients and service providers is

5 the most important predictor of success in treatment of persons with mental illness. Franczak 6 Decl., ¶ 13.6 Clients are far more likely to attend appointments, take their medications, and

7 benefit from rehabilitative services if they trust their providers. Id.

8

The current providers do “a remarkably good job of providing needed specialty mental

9 health services to medically indigent residents of Sacramento County at a reasonable cost.”

10 Stoneking Decl., ¶ 20. Their success is attributable to multiple factors, including working with

11 patients to devise individualized treatment plans combining medication, individual and group

12 therapy, counseling, peer support and opportunities for developing life skills; geographical

13 accessibility; the availability of workers who are culturally, ethnically and linguistically

14 representative of the client communities; and the fact that the clients “know and trust the staff of 15 these programs.” Id., ¶¶ 21-24. Numerous declarations from clients attest to this.7

16

17

18 5 Some of the threatened harm is already occurring. The telephone line for Access, the County’s central mental health referral center, is already failing to refer callers for mental health services.

19 See, e.g., Freeman Decl., ¶ 10; Balaoro Decl., ¶¶ 11-13 (client discharged from a locked facility

called Access line two months ago and was never connected to services). 20 6 Many class members have lived through deeply traumatic experiences, and acknowledge that

21

they have great difficulty in placing trust in others. See, e.g., Connors Decl., ¶ 11 (it “is difficult for me” to “learn to trust new providers” and “[w]hen I’m in a new place I try not to attach to

22 anyone.”); Haidary Decl., ¶ 6 (“I have a lot of issues with, and mistrust of people in the mental health system and the police, so it has taken me several years to even let the help come in.”).
23 7 See, e.g., Fischer Decl., ¶ 5 (“I have been seeing a really wonderful psychiatrist . . . for about

three years whom I trust . . . .”); Mangio Decl., ¶ 15 (“[I]nteraction with Northgate staff is deeply 24 personal. I am doing things now for myself that I never thought I could do.”); Klee Decl., ¶¶ 11-

25

12 (discussing necessity of building trust with clients so that appropriate treatment may be given); Hushen Decl. at 2:10-11 (“Tearing these clients away from the support system that they have

26 developed over the years is like ripping them up by the roots.”). As Ms. Napper attests, “I am very attached to the people there – my doctor, my service coordinator, and the other clients in my

27 groups. I cannot imagine that there is any place like it. The idea of this place closing is like

losing my family.” Napper Decl., ¶ 12. 28

10.

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1

Although the County appears to believe it can easily transfer patients to new providers,

2 “[m]ental health care providers are not interchangeable.” Franczak Decl., ¶ 15. The day-to-day

3 support provided by RSTs “is critical to ensuring that their clients take their medications, attend

4 counseling sessions, attend skill development groups and avoid deterioration in their mental

5 status.” Stoneking Decl., ¶ 24. Thus even if the County opens up new clinics in the coming

6 months, many individuals will not make appointments with them or continue taking their 7 medications. See id., ¶¶ 28-29, 31, 38.8

8

Any transfer of mental health patients from one set of providers to another requires

9 carefully planned, individualized transition plans. Health records need to be transferred, and

10 more importantly, patients must understand what is happening to them and be able to establish

11 trusting relationships with their new providers. Id., ¶¶ 30-31. There is no evidence that any

12 planning, let alone the careful planning required for such a transition, has taken place. The

13 County’s “chaotic, slipshod and woefully insufficient” transition will cause irreparable harm to

14 the members of the Proposed Class, both because some of them will inevitably “fall through the

15 cracks” due to poor execution, and because others will have trusted relationships disrupted. Id.,

16 ¶ 29; see also Franczak Decl., ¶ 27 (“The lack of planning, failure to adequately transition clients,

17 and failure to have alternative services in place . . . will result in catastrophic harm to those

18 currently served and their families.”).

19

The County’s threatened acts will result in the following types of harm to Plaintiffs.

20

Drastic declines in mental health. As a result of the County’s threatened actions, some

21 class members are likely to stop taking their medications and attending their counseling sessions;

22 these individuals “are at serious risk of becoming delusional, suicidal, and harmful to themselves

23 and others as their mental illness symptoms increase and their mental status deteriorates to the sad

24

25

8 The County’s plan to refer some patients to primary care doctors will not work either, because the clients often cannot secure services from these providers. Bates Decl., ¶ 16. Some primary

26 care physicians believe that prescribing psychiatric medications is outside their expertise; even when they feel competent in this area, they “do not have the requisite time to assume the

27 additional responsibility of determining what type of psychiatric medications and the appropriate

dosages for the clients, let alone have any time to build trust with the client.” Risley Decl., ¶ 10. 28

11.

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1 level of grave disability.” Stoneking Decl., ¶ 39; see also Cline Decl., ¶ 13 (“If someone who is

2 schizophrenic misses an injectable medication, they may begin hearing voices. For some clients,

3 the voices may direct them to do harmful things to themselves or others.”); Risley Decl., ¶ 17 (“If

4 mental health consumers cannot receive appropriate services, they will engage in inappropriate

5 behavior. This may result in the involvement of law enforcement and arrests.”).

6

Adverse impacts on physical health, up to and including death. Defendants’ actions

7 will also cause grave harm to Medi-Cal recipients’ physical health. See Cline Decl., ¶ 17

8 (physical ailments will go untreated); see also Steele Decl., ¶¶ 8-9; J. Johnson Decl., ¶ 8. They

9 may become so disoriented that they no longer carry out normal activities of daily living, such as

10 shopping, cooking, cleaning their homes and clothing, dressing, bathing, and caring for

11 themselves. See Stoneking Decl., ¶ 39. These clients may experience crises so severe that they

12 require intervention by police and emergency services personnel. Id. Dr. Risley, the psychiatrist

13 for one of the RSTs and TCORE, states that he would be “surprised” if one of his patients, who

14 has kidney disease, “is still alive three months after TCORE closes,” since the staff “works

15 closely with [the patient] to make sure that his psychiatric and medical needs are met.” Risley

16 Decl., ¶ 1.

17

Increased homelessness. Defendants’ actions will almost certainly cause many class

18 members to lose their housing and become homeless. See, e.g., T. Johnson Decl., ¶¶ 5-6;

19 Boynton Decl., ¶ 1. Josephine Balaoro operates sixteen homes in the County that provide room

20 and board for individuals with mental illnesses, most of whom depend upon the RSTs for their

21 mental health services and assistance when they are in crisis. Balaoro Decl., ¶ 1, 7-9. Without

22 that assistance, Ms. Balaoro believes that “90% of the time, the person would end up in a [locked]

23 facility or wander the streets.” Id., ¶ 1.

24

Risk of institutionalization. The County’s actions will also place class members at great

25 risk of unwanted institutionalization in other psychiatric facilities, including hospitals, psychiatric

26 health facilities, locked psychiatric nursing homes and other institutions. Dr. Michael Franczak, a

27 court-recognized expert in mental health care, declares:

28

12.

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1

Without adequate services in place and effective transition, these

individuals will experience significant deterioration in their mental status,

2

an increase in symptoms, and a reduction in their ability to relate to others.

They may become delusional or disoriented. They also may become

3

suicidal or dangerous to themselves and others. As a result, they will

likely end up in hospital emergency rooms, psychiatric institutions, or

4

jail.

5 Franczak Decl., ¶ 17 (emphasis added); see also Stoneking Decl., ¶ 5 (County plan will place

6 clients “at risk of institutionalization or acute, more expensive services in crisis facilities, hospital

7 emergency rooms, institutes for mental disease (“IMDs”), jails and even prisons.”). Multiple

8 declarants state that the planned cuts will likely throw them into crisis, requiring hospitalization.

9 See, e.g., Fischer Decl., ¶ 13, Napper Decl., ¶ 5; Eichhorn-Smith Decl., ¶ 12; Boynton Decl., ¶ 10.

10

Once hospitalized, timely discharge and a return to the community will be even more

11 difficult for clients. Stoneking Decl., ¶ 39 (“The trauma of institutionalization can often worsen

12 the downward spiral for these individuals by further destabilizing them, making it extremely

13 difficult for them to move back into the community.”). Moreover, the County’s proposed actions

14 will mean that clients who are presently in institutions will languish there even longer, because

15 even before the latest proposed cuts, state reviewers found that the County’s Mental Health Plan

16 was “unable to successfully support planned discharge” for clients in institutions. Ex. G at 11

17 (2008 APS Rpt.). According to state reviewers, a third of the beds at the County’s inpatient

18 MHTC facility are occupied by clients who are ready for discharge but “awaiting placement,”

19 which indicated “an inability to access lower levels of care after hospitalization.” Ex. A at 13

20 (2009 APS Rpt.). It costs far more to institutionalize individuals with mental illness than it does

21 to provide outpatient mental health services that allow them to live in community-based settings.

22 See Place Decl., ¶¶ 31-32; Bates Decl., ¶ 4.

23

III.

PLAINTIFFS MEET THE REQUIREMENT FOR GRANTING A PRELIMINARY INJUNCTION

24

A. Standards for Preliminary Injunction.

25

“A plaintiff seeking a preliminary injunction must establish that he is [1] likely to succeed

26 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,

27 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”

28

13.

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1 Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); Winter v.

2 Natural Res. Defense Council, 129 S. Ct. 365, 374 (2008). Plaintiffs meet all four criteria.

3

B. Plaintiffs are Likely to Succeed on the Merits of Their Claims That

Defendants’ Program Cuts Unlawfully Discriminate Against Persons with

4

Disabilities in Violation of the ADA, the Rehabilitation Act, and Section 11135

of the California Government Code. 5

6

The Americans with Disabilities Act (“ADA”) prohibits discrimination by all public

7 entities against persons with disabilities. See 42 U.S.C. § 12101 (2008). Title II of the ADA,

8 which governs public programs such as Medi-Cal, provides:

9

[N]o qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the

10

benefits of the services, programs, or activities of a public entity, or

be subjected to discrimination by any such entity. 11

12 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act of 1973 (“Section 504”) similarly 13 prohibits discrimination by recipients of federal funds. 29 U.S.C. §§ 794-794a.9

14

Under the ADA, a “qualified individual with a disability” is “an individual with a

15 disability who, with or without reasonable modifications to rules, policies, or practices” meets the

16 “essential eligibility requirements for the receipt of services or the participation in programs or 17 activities provided by a public entity.” 42 U.S.C. § 12131.10 All of the named Plaintiffs are

18 “qualified individual[s] with a disability” and they receive community mental health services

19 through Medi-Cal. See Napper Decl., ¶¶ 2-3; Fischer Decl., ¶ 2; Eichhorn-Smith Decl., ¶ 2;

20 Yannello Decl., ¶¶ 3-5; Mangio Decl., ¶¶ 2, 9.

21

The Ninth Circuit has emphasized that “the ADA must be construed broadly in order to

22 effectively implement the ADA’s fundamental purpose of providing a clear and comprehensive

23 9 In addition, Section 11135 of the California Government Code prohibits discrimination against
24 persons with disabilities in programs receiving state funds, such as Medi-Cal, and further

25

mandates that state-funded programs comply with the same protections as those specified under the ADA. Cal. Gov. Code § 11135. Plaintiffs are likely to succeed on the merits of their Section

26

11135 claim for the reasons set forth below for their ADA and Section 504 claims. 10 See also 29 U.S.C. § 705(2) (substantially similar definition under Section 504). Plaintiffs’

27 analysis of the ADA applies equally to Section 504. See Miranda B. v. Kitzhaber, 328 F.3d 1181,

1188 (9th Cir. 2003). 28

14.

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1 national mandate for the elimination of discrimination against individuals with disabilities.”

2 Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002) (internal citations omitted).

3 Defendants’ actions violate the ADA in multiple ways, as discussed below.

4

a. The Increased Risk of Institutionalization Resulting from

5

Defendants’ Plans Violates the ADA’s Integration Mandate.

6

Unjustified isolation of persons with disabilities, especially in institutions, is a form of

7 discrimination prohibited under the ADA and Section 504. 42 U.S.C. § 12101; Olmstead v. L.C.

8 ex rel. Zimring, 527 U.S. 581, 597 (1999) (ADA); Frederick L. v. Dep’t of Pub. Welfare of the

9 Commonwealth of Pa., 364 F.3d 487, 491 (3d Cir. 2004) (ADA and Section 504). The ADA and

10 Section 504 specifically mandate that individuals with disabilities be integrated into the

11 community to the greatest extent possible. 28 C.F.R. § 35.130(d) (public entities must

12 “administer services, programs, and activities in the most integrated setting appropriate to the

13 needs of qualified individuals with disabilities.”); 28 C.F.R. § 41.51(d) (same integration mandate

14 applies to agencies receiving federal financial assistance). These obligations, known as the

15 “integration mandate,” are construed and applied in the same manner. Fisher v. Okla. Health

16 Care Auth., 335 F.3d 1175, 1179 n.3 (10th Cir. 2003).

17

As the Supreme Court held in Olmstead, the integration mandate requires that persons

18 with disabilities be served in the community when: (1) the state’s treatment professionals have

19 determined that community placement is appropriate; (2) community placement is not opposed by

20 the individual; and (3) the placement can be reasonably accommodated, taking into account the

21 resources available and the needs of others with disabilities. Olmstead, 527 U.S. at 587.

22 Plaintiffs do not need to wait until they are institutionalized to bring a claim under the integration

23 mandate. Individuals at risk of placement in institutional mental health care facilities are also

24 protected. See Fisher, 335 F.3d at 1181.

25

That Plaintiffs satisfy the first two prongs of the integration mandate is hardly in dispute.

26 The County has determined that community placement is appropriate for Plaintiffs, as its Adult

27 Access Team approves requests for community mental health services for medically indigent

28 County residents. Bates Decl., ¶ 9 & Attachments A & B. Plaintiffs’ declarations establish their

15.

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1 strong desire for continued community placement. See, e.g., Eichhorn-Smith Decl., ¶¶ 1, 7-9;

2 Fischer Decl., ¶¶ 7-11; Yanello Decl., ¶¶ 5-7.; Mangio Decl., ¶¶ 13-15; Napper Decl., ¶¶4-5.

3

The third prong requires the County to make “reasonable modifications in policies,

4 practices, or procedures” so as to avoid discrimination on the basis of disability, “unless the

5 public entity can demonstrate that making the modifications would fundamentally alter the nature

6 of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7); Olmstead, 527 U.S. at 604. Here,

7 it cannot be disputed that the County is capable of making the “reasonable modifications”

8 necessary to avoid discrimination, since it has been doing so for many years. Thus the only

9 question is whether the County will be able to sustain an affirmative defense that continuing to

10 provide such services would “fundamentally alter” its program. Under settled law, it will be

11 unable to do so. A plaintiff’s request to retain an existing program is not a “fundamental

12 alteration” of that program, since the plaintiff is “not demanding a separate service or one not

13 already provided . . . .” Fisher, 335 F.3d at 1183.

14

Plaintiffs anticipate that the County will attempt to establish the “fundamental alteration”

15 defense by arguing that Plaintiffs’ requests are unreasonable in light of current budget constraints.

16 Courts, however, have rejected the argument that fiscal burdens somehow justify failing to make

17 reasonable modifications to implement the integration mandate. See id.; Frederick L., 364 F.3d at

18 495 (fundamental-alteration defense based on fiscal concerns alone would be inconsistent with

19 Olmstead); Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3d Cir.

20 2005) (same). Moreover, any argument about fiscal constraints would require consideration of

21 the higher cost of County staff in the County’s proposed plan, as well as the increased costs that

22 will result from increased hospitalizations and in-patient services. Fisher, 335 F.3d at 1183; see

23 Place Decl., ¶ 32; Bates Decl., ¶ 4.

24

If the County insists on moving forward with its as-yet undisclosed and undefined plans, it

25 must do more than merely suggest that alternative services will somehow appear, since breaks in

26 service will expose Plaintiffs to increased risks of severe harm. Where defendants “refuse to

27 specify how they will ensure their continuing compliance with the ADA and Rehabilitation Act,”

28 they “bear the burden of ensuring more than a ‘theoretical’ availability of such services.”

16.

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1 Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1174 (N.D. Cal. 2009) (citation omitted). In

2 Brantley, the Court enjoined the California Department of Health Care Services from

3 implementing cuts to the Medi-Cal Adult Day Health Care program, noting:

4

Defendants have failed to implement any means of ensuring that, if and

when the cuts take effect, the necessary alternative services will be

5

identified and in place for Plaintiffs so that there will not be a period where

they are not receiving the care prescribed [in the care plans] . . . . Given

6

their precarious conditions, even temporary gaps in services would present

serious consequences for Plaintiffs and place them at great risk of being

7

institutionalized.

8 Id. Here, too, Defendants as yet have not specified how they will replace the services they are

9 planning to eliminate. This is plainly insufficient; they must ensure not only that an adequate

10 replacement system is in place, but that there is sufficient time and planning to enable clients to

11 transition successfully to the new system. According to Dr. Franczak, “a reasonably effective

12 transition process,” which allows time to relocate clinic sites, transfer client records, train staff

13 and transition clients, would “take a minimum of six months.” Franczak Decl. ¶ 19. Defendants,

14 however, have stated that they will open their new clinics in barely three weeks.

15

b. Defendants Are Violating the ADA’s Prohibition on Employing

16

Methods of Administration that Result in Discrimination.

17

The ADA prohibits methods of administration or contractual arrangements which, though

18 neutral on their face, have a discriminatory effect. Under the regulations implementing the ADA,

19 a public entity may not:

20

directly or through contractual or other arrangements, utilize . . . methods

of administration: (i) That have the effect of subjecting qualified

21

individuals with disabilities to discrimination on the basis of disability;

22

[and] (ii) That have the purpose or effect of defeating or substantially

impairing accomplishment of the objectives of the public entity’s program

23

with respect to individuals with disabilities.

24 28 C.F.R. § 35.130 (b)(3). Section 504 contains similar requirements. See 28 C.F.R.

25 § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4).

26

Here, by substituting understaffed County clinics for existing programs, the County will

27 be eliminating key services that enable many patients to access those programs, including

28 transportation services, assistance with maintaining housing, in-home visits, and hospital visits.

17.

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1 See supra page 4:5-7; Stoneking Decl., ¶ 5 (discussing impossibility of providing comparable

2 services due to proposed reductions in staff). Those whose mental health disabilities require them

3 to have these supports in order to access outpatient services will lose those services, and many

4 will be at risk of hospitalization.

5

Defendants’ plans (1) to disrupt the timely and effective treatment that Plaintiffs have

6 been receiving; (2) to terminate this treatment without having in place any transition plan, let

7 alone an adequate plan; and (3) to relegate Plaintiffs to little more than crisis care and locked

8 facilities all constitute methods of administration that violate the ADA.

9

C. Plaintiffs are Likely to Succeed on the Merits of their Claims that the

Proposed Cuts Violate the Medicaid Act’s Sufficiency, Comparability, and

10

Reasonable Standards Requirements.

11

Plaintiffs are all Medi-Cal recipients who have an entitlement to mental health services

12 under federal Medicaid law. Medicaid is a joint federal and state medical assistance program for

13 certain groups of low-income people, the objective of which is to provide medical assistance to

14 individuals whose resources are insufficient to meet the costs of necessary medical services, and

15 to furnish “rehabilitation and other services to help such . . . individuals attain or retain capability

16 for independence or self-care.” 42 U.S.C. § 1396-1. Participation is voluntary, but once a state

17 chooses to participate, it must comply with the Medicaid Act and its implementing regulations. 18 Katie A. ex rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1154 (9th Cir. 2007).11 The County

19 is directly responsible for complying with these federal requirements because it agreed to serve as

20 the Mental Health Plan responsible for providing specialty mental health services to all

21 Sacramento Medi-Cal recipients. See Welf. & Inst. Code §§ 5775, 5776, 5777. In doing so, the

22 County agreed, inter alia, to “comply with all applicable federal laws, regulations and guidelines”

23 (Welf. & Inst. Code § 5776), and to provide “medically necessary mental health services to Medi-

24 Cal beneficiaries” (id., § 5777(a)(1)).

25

26

27

11 As the Ninth Circuit held in Independent Living Center of Southern California, Inc. v. Shewry, 543 F.3d 1050 (9th Cir. 2008), all of the Medicaid provisions at issue are also enforceable directly

under the Supremacy Clause.

28

18.

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Case 2:10-cv-01119-JAM-EFB Document 17 Filed 06/09/10 Page 26 of 32

1

The County’s proposed actions violate Medicaid Act’s requirements of sufficiency,

2 comparability and reasonable standards.

3

Services funded through Medicaid must be “sufficient in amount, duration, and scope to

4 reasonably achieve [the Medicaid Act’s] purpose.” 42 C.F.R. § 440.230(b) (emphasis added);

5 see, e.g., Lankford v. Sherman, 451 F.3d 496, 511-13 (8th Cir. 2006) (providing oxygen and other

6 limited respiratory equipment, but not other equipment necessary to assist in breathing, violated

7 the sufficiency requirement); Mitchell v. Johnson, 701 F.2d 337, 347-51 (5th Cir. 1983)

8 (limitation of preventative dental checkups to every three years and elimination of other services

9 violated the sufficiency mandate); Weaver v. Reagen, 886 F.2d 194, 197-200 (8th Cir. 1989)

10 (denial of AIDS medication to individuals for whom drug is medically necessary violates

11 sufficiency).

12

Second, the services provided to certain groups of Medicaid recipients must be

13 comparable in “amount, duration, and scope” to those provided to other recipients, a requirement

14 that applies to the services provided to recipients in one county as compared to those provided to

15 recipients in other counties. 42 U.S.C. § 1396a(a)(10)(B); 42 C.F.R. §§ 440.240(a), (b)(1). This

16 Court has interpreted the comparability requirement as “creat[ing] an equality principle by which

17 all categorically needy individuals must receive medical assistance which is no less than that

18 provided to any other categorically or medically needy individual.” Sobky v. Smoley, 855

19 F. Supp. 1123, 1139 (E.D. Cal. 1994); see also Charpentier v. Belshe, No. CIV S-90-758, 1994

20 WL 792591 at *5 (E.D. Cal. Dec. 21, 1994) (limiting reimbursement for those eligible for both

21 Medi-Cal and Medicare to no more than 20% of Medicare’s reasonable charge while placing no

22 such limitation on Medi-Cal-only recipients violates comparability requirement).

23

Third, Medicaid-funded services must be provided by utilizing “reasonable standards”

24 that are “consistent with [Medicaid’s] objectives.” 42 U.S.C. § 1396a(a)(17) (emphasis added);

25 see, e.g., Hern v. Beye, 57 F.3d 906, 910-11 (10th Cir. 1995) (state law restricting medically

26 necessary treatment to those whose lives were at risk was not a reasonable standard); Preterm,

27 Inc., v. Dukakis, 591 F.2d 121, 131 (1st Cir. 1979) (state could not restrict medically necessary

28

19.

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Case 2:10-cv-01119-JAM-EFB Document 17 Filed 06/09/10 Page 27 of 32

1 services solely on basis of diagnosis); Weaver, 886 F.2d at 199 (rejecting limitations on access to

2 AIDS drugs where such limits interfered with medical judgment).

3

Defendants’ proposed cuts will violate all three of these Medicaid Act requirements.

4 First, closing the RSTs and further reducing Medi-Cal funded mental health services will result in

5 insufficient services being available to county members who are in need of them. The County

6 cannot credibly argue that it can create a fully-functioning mental health system for over 5,000

7 people within a matter of weeks, especially if the County cannot act until after the Board of

8 Supervisors approves the plan to set up County-operated clinics at a meeting in mid-June. See

9 Bolte Decl., Attachment B.

10

Second, Defendants will be unable to provide mental health services comparable to those

11 available in other counties, given the inevitable disruption in continuity of care and vastly reduced

12 levels of services that will occur as a result of the proposed cuts. Although every California

13 county is facing budget cuts, no other county has proposed the draconian measures that

14 Sacramento County intends to take here: dismantling the bulk of its existing mental health

15 system and interrupting the treatment provided to the great majority of its adult recipients. This

16 will constrain Medicaid recipients to attempting to obtain necessary mental health services

17 through as yet unidentified, unstaffed, and non-established treatment centers. The unprecedented

18 and needless disruption in treatment alone is sufficient to violate the comparability requirement.

19

Third, Defendants have failed to utilize reasonable standards in their decision to destroy a

20 fully-functioning mental health delivery system and substitute a sm aller, more costly and less

21 efficient County-operated system, without basing this decision on any data or expert testim ony,

22 and in fact, in the face of exte nsive expert testimony to the cont rary. The proposed term inations

23 and reductions are not a reasonable approach to providing the mental health services needed by

24 severely mentally ill clients in the County. Ac cordingly, Plaintiffs have a strong likelihood of

25 success on their Medicaid claims.

26

27

28

20.

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Case 2:10-cv-01119-JAM-EFB Document 17 Filed 06/09/10 Page 28 of 32

1

D. Plaintiffs are Likely to Succeed on their Due Process and Medicaid Act

Claims Because Defendants Have Failed to Provide Adequate Pre-

2

Termination Notice and Opportunity for a Hearing.

3

Medicaid recipients’ statutory entitlement to benefits is protected by the Due Process

4 Clause of the Fourteenth Amendment. See Atkins v. Parker, 472 U.S. 115, 128 (1985) (statutory

5 entitlements, such as Food Stamps, “are appropriately treated as a form of ‘property’ protected by

6 the Due Process Clause”); Lewis v. Rendell, 501 F. Supp. 2d 671, 692 (E.D. Pa. 2007) (citations

7 omitted) (“plaintiffs receiving Medicaid benefits have a constitutionally protected property 8 interest in those benefits”).12 Procedural due process requires that the government provide

9 Medicaid recipients notice and an opportunity for a hearing before withdrawing benefits.

10 O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 786-87 (1980); see also Goldberg v. Kelly,

11 397 U.S. 254, 264 (1970) (termination of public benefits “pending resolution of a controversy

12 over eligibility may deprive an eligible recipient of the very means by which to live while he

13 waits”).

14

The Medicaid Act and regulations also provide statutory rights to written notice and a fair

15 hearing before services are denied. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 431.220; Catanzano v.

16 Dowling, 847 F. Supp. 1070, 1081-1082 (W.D.N.Y. 1994) (“A state Medicaid agency must

17 comply with these notice and hearing requirements in order to comply with federal law as a

18 condition of its participation in the Medicaid program” (emphasis in original)). Under the

19 regulations, at the time of any action affecting an individual’s claim to services, an individual

20 must receive written notice: (1) of the right to a hearing; (2) of the method by which she may

21 obtain a hearing; and (3) that she may represent herself or be represented by another. 42 C.F.R.

22 §§ 431.210, 431.206(b). If the Medicaid recipient requests a hearing, the agency “may not

23 terminate or reduce services until a decision is rendered after the hearing . . . .” 42 C.F.R.

24

25

12 The California Constitution likewise provides that a “person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.” Cal.

26 Const. Art. I, §§ 7, 15. However, “procedural due process under the California Constitution is ‘much more inclusive’ and protects a “broader range of interests than under the federal

27 Constitution . . . .” Ryan v. Cal. Interscholastic Fed’n San Diego Section, 94 Cal. App. 4th 1048,

1069 (2001). 28

21.

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Case 2:10-cv-01119-JAM-EFB Document 17 Filed 06/09/10 Page 29 of 32

1 § 431.230(a); see also Cal. Code Regs. tit. 22, § 51014.1 (requiring comparable notice to Medi-

2 Cal recipients prior to reduction or termination of services).

3

The County’s current plan not to notify benefit recipients of the planned elimination of

4 services plainly violates Plaintiffs’ due process and statutory rights to notice and a hearing. At a

5 meeting on April 28, 2010, Defendant Bennett stated that recipients affected by the redesign

6 would not receive Medi-Cal notices of action. Bolte Decl., ¶ 20. For Plaintiffs and the Proposed

7 Class, whose Medi-Cal outpatient mental health services will be terminated, reduced or

8 suspended, the violations of law could not be clearer.

9

E. Plaintiffs Will Suffer Irreparable Harm in the Absence of an Injunction.

10

The Proposed Class consists of Medicaid recipients who need outpatient mental health

11 services. Generally, in Medicaid cases, “[t]he nature of [plaintiffs’] claim – a claim against the

12 state for medical services – makes it impossible to say that any remedy at law could compensate

13 them.” McMillan v. McCrimon, 807 F. Supp. 475, 479 (C.D. Ill. 1992). In particular, irreparable

14 injury is shown where a state denies “needed medical care” to Medicaid recipients. Beltran v.

15 Myers, 677 F.2d 1317, 1322 (9th Cir. 1982); see also Brantley, 656 F. Supp. 2d at 1176-77 (cuts

16 to Medi-Cal Adult Day Health Care program caused “particularly irreparable and imminent”

17 harm to program beneficiaries). “To allow a serious illness to be untreated until it requires

18 emergency hospitalization is to subject the sufferer to the danger of a substantial and irrevocable

19 deterioration in his health.” Mem’l Hosp. v. Maricopa, 415 U.S. 250, 261 (1974).

20

Absent a preliminary injunction, thousands of Medi-Cal recipients in this County will

21 soon be denied medically necessary, outpatient mental health services. Based on his 38 years of

22 experience in the field of behavioral health care, Dr. Franczak has concluded that Defendants’

23 actions “will most likely result in significant and irreparable harm to individuals with serious

24 mental health illness” where such harm will include “increased hospitalization, use of emergency

25 rooms, jail, prison, homeless shelters and death due to suicide.” Franczak Decl., ¶¶ 10-11; see

26 also id., ¶ 14 (suicide is the leading cause of death of younger people with schizophrenia). In

27 support of this preliminary injunction motion, Plaintiffs have filed not only their own declarations

28 but also numerous declarations from class members, services providers and experts attesting to

22.

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Case 2:10-cv-01119-JAM-EFB Document 17 Filed 06/09/10 Page 30 of 32

1 the widespread irreparable harm which will result from the closures of the RSTs and the TCORE

2 program and the sharp reduction in funding for CSH. An award of monetary damages cannot

3 possibly compensate Plaintiffs and the Proposed Class for the devastating harms threatened by the

4 County’s proposed actions.

5

To give just one more example, Channel Kirby is a former dental hygienist who in 1991

6 experienced a “great tragedy” in her family which resulted in her placement in the Victim-

7 Witness Program. Kirby Decl., ¶¶ 2-3. The program’s therapists, however, could not help her as

8 she “continued to have plans to kill” herself. Id. Ms. Kirby has both bipolar and post traumatic

9 stress disorders. Id., ¶ 2. “When I’m not doing well, I can stay in my house for weeks on end. I

10 don’t bathe, I don’t brush teeth and I think about not wanting to be here on this earth.” Id., ¶ 6.

11 For the last six years, Ms. Kirby has been receiving mental health services from HRC, where she

12 has learned coping skills and benefited from the services of HRC’s therapists, counselors,

13 physicians and other staff. Id., ¶¶ 6-12. She was “devasted” to learn that HRC would be closed,

14 stating: “HRC has been life support for me. I’ve come down a long dark road and HRC helped

15 me come into the light of hope. Where am I going to go? What am I going to do about my

16 medication?” Id., ¶ 13.

17

F. The Balance of Equities Favor Plaintiffs.

18

The Ninth Circuit has made it clear that the harm to low income citizens from loss of

19 medical benefits greatly outweighs the expense to government entities of providing those

20 benefits, even during a budget crisis. See Indep. Living Center of S. Cal. Inc. v. Maxwell-Jolly,

21 572 F.3d 644, 657-58 (9th Cir. 2009) (any harm to state from fiscal crisis “was outweighed by the

22 hardships likely to be suffered by Medi-Cal beneficiaries, who would be forced to go without

23 medical care”); Beltran, 677 F. 2d at 1322 (“balance of hardships tipped sharply in favor of

24 plaintiffs” when “balancing the medical or financial hardship to the plaintiffs-appellees against

25 the financial hardship to the state resulting from its inability to recover for medical services”).

26 Indeed, the Ninth Circuit has “repeatedly recognized that individuals’ interests in sufficient access

27 to health care trump the State’s interest in balancing its budget.” Dominguez v. Schwarzenegger,

28 596 F.3d 1087, 1098 (9th Cir. 2010).

23.

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1

In fact, not only will Plaintiffs benefit from the granting of the preliminary injunction, but

2 so will Defendants. By all accounts, the County will spend much more for its employees to

3 perform the same work now being done by employees of the contracting agencies. See Ex. I at 3

4 (8/20/09 DBHS Meeting Minutes); Stoneking Decl., ¶ 40. Inasmuch as the disruptions and loss

5 of services will also cause some class members to end up in institutions, such as the MHTC, the

6 cost of such institutional care greatly exceeds the cost of outpatient treatment at the RSTs and the

7 other programs at issue. Place Decl., ¶ 32 (“At capacity, our RST costs $9.33 per client per day,”

8 whereas “the treatment center costs over $1,000.00 per client per day”); Bates Decl., ¶ 4 (“The

9 Treatment Center daily cost to treat each consumer is $1,095, whereas the RST daily cost to treat

10 each consumer is $9.33.”).

11

G. An Injunction is in the Public Interest.

12

The public interest is also squarely on Plaintiffs’ side here. As described above, both the

13 California Department of Mental Health and the Sacramento Bee have already voiced their

14 opposition to the County’s proposed redesign plan. As the Ninth Circuit has also held:

15

State budgetary considerations do not therefore, in social welfare cases,

constitute a critical public interest that would be injured by the grant of

16

preliminary relief. In contrast, there is a robust public interest in

safeguarding access to health care for those eligible for Medicaid, whom

17

Congress has recognized as “the most needy in the country.”

18 Indep. Living, 572 F.3d at 659 (citation omitted); see also Rodde v. Bonta, 357 F.3d 988, 999 (9th

19 Cir. 2004) (closing a hospital that served most of the county’s disabled patients was against the

20 public interest because it would cause “increased delays in treatment and prolonged suffering and

21 illness among all those who rely upon it”). Finally, an injunction will vindicate the public policy

22 – as expressed by Congress in enacting the ADA and Section 504 – in eliminating the “serious

23 and pervasive” social problem of discrimination against people with disabilities. 42 U.S.C.

24 § 12101.

25 IV. PLAINTIFFS SHOULD NOT BE REQUIRED TO POST BOND

26

Federal Rule of Civil Procedure 65(c) “invests the district court ‘with discretion as to the

27 amount of security required, if any.’” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003)

28 (emphasis in original, citation omitted). A district court can waive the posting of a bond where

24.

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Case 2:10-cv-01119-JAM-EFB Document 17 Filed 06/09/10 Page 32 of 32

1 important federal rights are involved, see, e.g., Cont’l Oil Co. v. Frontier Ref. Co., 338 F.2d 780,

2 782 (10th Cir. 1964), or where giving security would effectively deny access to judicial review.

3 See, e.g., Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005). Exercise of

4 that discretion is particularly appropriate in an action brought by a class of indigent plaintiffs.

5 See, e.g., Walker v. Pierce, 665 F. Supp. 831, 843-44 (N.D. Cal. 1987).

6 V. CONCLUSION

7

For the foregoing reasons, Plaintiffs respectfully request that the Court enter the proposed

8 preliminary injunction and not require Plaintiffs to post a bond.

9 Dated: June 9, 2010 10 11

Respectfully submitted, COOLEY LLP

12

By:

/s/ William S. Freeman

13

WILLIAM S. FREEMAN

14

Attorneys for Plaintiffs

15 852114 v7/HN 16

17

18

19

20

21

22

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26

27

28

25.

MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PRELIMINARY INJUNCTION – CASE NO. 2:10-CV-1119

 
 Case 2:10-cv-01119-JAM-EFB Document 53 Filed 06/09/10 Page 1 of 4

1 WILLIAM S. FREEMAN (SBN 82002) MARGARET I. BRANICK-ABILLA (SBN 223600)
2 AMY E. NASH (SBN 264955) COOLEY LLP
3 3175 Hanover Street Palo Alto, CA 94304-1130
4 Telephone: (650) 843-5000

5 STUART SEABORN (SBN 198590) SUZANNA GEE (SBN 170780)
6 JAY KOSLOFSKY (SBN 97024) SEAN RASHKIS (SBN 232533)
7 WILL SCHELL (SBN 252470) DISABILITY RIGHTS CALIFORNIA
8 100 Howe Ave., Suite 235N Sacramento, CA 95825
9 Telephone: (916) 488-9950

10 ATTORNEYS FOR PLAINTIFFS [ADDITIONAL COUNSEL LISTED ON NEXT PAGE]
11

12

UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

LESLIE NAPPER, JANET FISCHER, JACQUIE

15 EICHHORN-SMITH, TED YANELLO, and

16

LYNDA MANGIO, on behalf of themselves and all others similarly situated,

Case No. 2:10-cv-1119 CLASS ACTION

17

18

v.

Plaintiffs,

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

19

COUNTY OF SACRAMENTO; BOARD OF SUPERVISORS OF THE COUNTY OF

20 SACRAMENTO; County Supervisor ROGER

Date: TBD Time: TBD Place: Courtroom 6, 14th Floor

DICKINSON; County Supervisor JIMMIE YEE; Judge: Hon. John A. Mendez

21 County Supervisor SUSAN PETERS; County

Supervisor ROBERTA MACGLASHAN; County 22 Supervisor DON NOTTOLI; SACRAMENTO

23 COUNTY DEPARTMENT OF BEHAVIORAL HEALTH SERVICES; ANN EDWARDS-

24 BUCKLEY, Director, Department of Behavioral

Health Services; MARY ANN BENNETT, Mental

25 Health Director,

26

Defendants.

27

28

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION - CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 53 Filed 06/09/10 Page 2 of 4

1

ROBERT D. NEWMAN (SBN 86534)

KIMBERLY LEWIS (SBN 144870)

2

ANTIONETTE D. DOZIER (SBN 244437)

3

WESTERN CENTER ON LAW AND POVERTY

3701 West Sixth Street, Suite 208

4

Los Angeles, California 90010

Telephone: (213) 487-7211 5

MELINDA BIRD (SBN 102236)

6

DISABILITY RIGHTS CALIFORNIA

7

3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010

8

Telephone: (213) 427-8747

9

KIMBERLY SWAIN (SBN 100340)

DISABILITY RIGHTS CALIFORNIA

10

1330 Broadway, Suite 500

11

Oakland, CA 94612 Telephone: (510) 267-1200

12 [ADDITIONAL COUNSEL LISTED ON

13

CAPTION PAGE]

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION - CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 53 Filed 06/09/10 Page 3 of 4

1

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

2

TO DEFENDANTS COUNTY OF SACRAMENTO; BOARD OF SUPERVISORS OF

3 THE COUNTY OF SACRAMENTO; County Supervisor ROGER DICKINSON; County

4 Supervisor JIMMIE YEE; County Supervisor SUSAN PETERS; County Supervisor ROBERTA

5 MACGLASHAN; County Supervisor DON NOTTOLI; SACRAMENTO COUNTY

6 DEPARTMENT OF BEHAVIORAL HEALTH SERVICES; ANN EDWARDS-BUCKLEY,

7 Director, Department of Behavioral Health Services; MARY ANN BENNETT, Mental Health

8 Director, AND THEIR ATTORNEYS OF RECORD:

9

PLEASE TAKE NOTICE that, at a date and time to be determined, 1 before the Honorable

10 John A. Mendez, in Courtroom 6, United States District Court, Eastern District of California,

11 located at 501 I Street, Suite 4-200, Sacramento, CA, Plaintiffs individually and on behalf of class

12 members will move the Court pursuant to Rule 23 of the Federal Rules of Civil Procedure and

13 Rule 205(1) of the Local Civil Rules to grant the following:

14

(a) An order certifying the proposed class of Plaintiffs consisting of “all current and

15 future recipients of Medi-Cal funded mental health services in the County of Sacramento”;

16

(b) An order approving named Plaintiffs Leslie Napper, Janet Fischer, Jacquie

17 Eichhorn-Smith, Ted Yanello, and Lynda Mangio as class representatives;

18

(c) An order appointing Cooley LLP, Western Center on Law and Poverty, and

19 Disability Rights California as class counsel for Plaintiffs; and

20

(d) An order that notice need not be given to class members of the pendency of this

21 class action at this time.

22

The Motion will be made on the grounds that this action satisfies the requirements for

23 class certification under Rule 23(a) and Rule 23(b)(2).

24

25

26 1 Concurrently with this motion, Plaintiffs are filing an ex parte application requesting a hearing
27 on their Motion for Class Certification on July 7, 2010.

28

1.

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION - CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 53 Filed 06/09/10 Page 4 of 4

1

This Motion for Class Certification is based upon this Notice of Motion and Motion; the

2 accompanying Memorandum of Points and Authorities as well as the Memorandum of Points and

3 Authorities in support of Plaintiffs’ Motion for Preliminary Injunction; all accompanying

4 declarations and exhibits, including the declarations and exhibits filed concurrently in support of

5 Plaintiffs’ Motion for a Preliminary Injunction; all pleadings and papers on file in this action; and

6 such other matters as may be presented to the Court at the time of the hearing.

7 Dated: June 9, 2010 8

WESTERN CENTER ON LAW AND POVERTY

9

By:

/s/ Robert D. Newman

10

ROBERT D. NEWMAN

11

Attorneys for Plaintiffs

12 854199 v2/HN 13

14

15

16

17

18

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20

21

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23

24

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28

2.

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION - CASE NO. 2:10-CV-1119

 
 Case 2:10-cv-01119-JAM-EFB Document 54 Filed 06/09/10 Page 1 of 21

1 WILLIAM S. FREEMAN (SBN 82002) MARGARET I. BRANICK-ABILLA (SBN 223600)
2 AMY E. NASH (SBN 264955) COOLEY LLP
3 3175 Hanover Street Palo Alto, CA 94304-1130
4 Telephone: (650) 843-5000

5 STUART SEABORN (SBN 198590) SUZANNA GEE (SBN 170780)
6 JAY KOSLOFSKY (SBN 97024) SEAN RASHKIS (SBN 232533)
7 WILL SCHELL (SBN 252470) DISABILITY RIGHTS CALIFORNIA
8 100 Howe Ave., Suite 235N Sacramento, CA 95825
9 Telephone: (916) 488-9950

10 ATTORNEYS FOR PLAINTIFFS [ADDITIONAL COUNSEL LISTED ON NEXT PAGE]
11 UNITED STATES DISTRICT COURT
12 FOR THE EASTERN DISTRICT OF CALIFORNIA
13

LESLIE NAPPER, JANET FISCHER, JACQUIE

14 EICHHORN-SMITH, TED YANELLO, and

15 LYNDA MANGIO, on behalf of themselves and Case No. 2:10-cv-1119

all others similarly situated,

MEMORANDUM OF POINTS AND

16

Plaintiffs,

AUTHORITIES IN SUPPORT OF

MOTION FOR CLASS

17

v.

CERTIFICATION

18 COUNTY OF SACRAMENTO; BOARD OF SUPERVISORS OF THE COUNTY OF
19 SACRAMENTO; County Supervisor ROGER

Date: TBD Time: TBD Place: Courtroom 6, 14th Floor

DICKINSON; County Supervisor JIMMIE YEE; Judge: Hon. John A. Mendez 20 County Supervisor SUSAN PETERS; County

21

Supervisor ROBERTA MACGLASHAN; County Supervisor DON NOTTOLI; SACRAMENTO

22 COUNTY DEPARTMENT OF BEHAVIORAL HEALTH SERVICES; ANN EDWARDS-

23 BUCKLEY, Director, Department of Behavioral

Health Services; MARY ANN BENNETT, Mental 24 Health Director,

25

Defendants.

26

27

28

MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR CLASS CERTIFICATION - CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 54 Filed 06/09/10 Page 2 of 21

1

ROBERT D. NEWMAN (SBN 86534)

KIMBERLY LEWIS (SBN 144870)

2

ANTIONETTE D. DOZIER (SBN 244437)

WESTERN CENTER ON LAW AND POVERTY

3

3701 West Sixth Street, Suite 208

Los Angeles, California 90010

4

Telephone: (213) 487-7211

MELINDA BIRD (SBN 102236)

5

DISABILITY RIGHTS CALIFORNIA

3580 Wilshire Blvd., Ste. 902

6

Los Angeles, CA 90010

Telephone: (213) 427-8747

7

KIMBERLY SWAIN (SBN 100340)

8

DISABILITY RIGHTS CALIFORNIA

1330 Broadway, Suite 500

9

Oakland, CA 94612

Telephone: (510) 267-1200

10

[ADDITIONAL COUNSEL LISTED ON

11

CAPTION PAGE]

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR CLASS CERTIFICATION - CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 54 Filed 06/09/10 Page 3 of 21

1

TABLE OF CONTENTS

2

PAGE

3 I. INTRODUCTION .............................................................................................................. 1

4 II. STATEMENT OF FACTS ................................................................................................. 2

III. ERRING ON THE SIDE OF CAUTION, PLAINTIFFS ARE MOVING FOR

5

CLASS CERTIFICATION AT SUCH AN EARLY STAGE IN THE

PROCEEDINGS SO AS TO AVOID ANY DOUBTS ABOUT THE SCOPE OF

6

THE PROPOSED PRELIMINARY INJUNCTION IN THIS CASE ................................ 2

7

IV.

THIS LAWSUIT SATISFIES ALL THE REQUIREMENTS OF RULE 23 FOR MAINTENANCE AS A CLASS ACTION ........................................................................ 4

8

A. The Proposed Class Satisfies the Requirements of Rule 23(a). .............................. 5

9

1. The Proposed Class is Sufficiently Numerous............................................ 5

2. The Case Presents Many Common Questions of Law and Fact. ................ 7

10

3. The Claims of the Named Plaintiffs Are Typical of the Class They

11

Seek To Represent. ..................................................................................... 9

4. The Named Plaintiffs and Their Counsel Will Fairly and

12

Adequately Protect the Interests of the Class............................................ 10

13 V.
14

B. The Court Should Certify the Class under Rule 23(b)(2). .................................... 11
THE COURT SHOULD DESIGNATE PLAINTIFFS’ COUNSEL AS CLASS COUNSEL PURSUANT TO RULE 23(G)(1) ................................................................. 13

15

VI.

THE COURT SHOULD NOT REQUIRE THAT NOTICE BE GIVEN TO CLASS MEMBERS OF THE PENDENCY OF THIS ACTION AT THE

16

PRESENT TIME............................................................................................................... 14

VII. CONCLUSION ................................................................................................................. 15

17

18

19

20

21

22

23

24

25

26

27

28

i.

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1

TABLE OF AUTHORITIES

2 3 CASES

PAGE

4 Amchem Prods., Inc. v. Windsor,

5

521 U.S. 591 (1997) .................................................................................................................. 5

6

Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001)..................................................................................................... 7

7 Baby Neal for & by Kanter v. Casey,

8

43 F.3d 48 (3d Cir. 1994)........................................................................................................ 12

9 Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975)................................................................................................. 2, 9
10

11

Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009) .................................................................................... 4

12 Bresgal v. Brock,

13

843 F.2d 1163 (9th Cir. 1987)............................................................................................... 3, 4

14 Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171 (9th Cir. 1990)................................................................................................... 9
15

16

Campbell v. PricewaterhousCoopers, LLP, 253 F.R.D. 586 (E.D. Cal. 2008) .............................................................................................. 5

17 Dukes v. Wal-Mart Stores, Inc.,

18

603 F.3d 571 (9th Cir. 2010) (en banc)....................................................................... 4, 7, 9, 10

19 Easyriders Freedom F.I.G.H.T. v. Hannigan,

92 F.3d 1486 (9th Cir. 1996)................................................................................................. 3, 4 20

Eisen v. Carlisle & Jacquelin,

21

417 U.S. 156 (1974) .................................................................................................................. 4

22 Elliot v. Weinberger,

23

564 F.2d 1219 (9th Cir. 1977), aff’d in relevant part, rev’d in part, 442 U.S. 682

(1979) ...................................................................................................................................... 14

24 Gen. Tel. Co. of the Sw. v. Falcon,

25

457 U.S. 147 (1982) .............................................................................................................. 4, 9

26 GoTo.Com, Inc. v. Walt Disney Co.,

27

202 F.3d 1199 (9th Cir. 2000)................................................................................................... 3

28

ii.

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1

TABLE OF AUTHORITIES

(continued)

2

PAGE

3 Gregory v. Litton Sys., Inc., 472 F.2d 631 (9th Cir. 1972)..................................................................................................... 3
4

5

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)......................................................................................... 7, 9, 10

6 Harris v. Palm Springs Alpine Estates, Inc.,

7

329 F.2d 909 (9th Cir. 1964)..................................................................................................... 5

8 Jordan v. County of Los Angeles,

669 F.2d 1311 (9th Cir.), vacated on other grounds, 459 U.S. 810 (1982) .......................... 6, 9 9

Lerwill v. Inflight Motion Pictures, Inc.,

10

582 F.2d 507 (9th Cir. 1978)..................................................................................................... 5

11 Lynch v. Rank,

12

604 F. Supp. 30 (N.D. Cal. 1984) ........................................................................................... 12

13 Molski v. Gleich,

318 F.3d 937 (9th Cir. 2003)..................................................................................................... 2 14

Moore v. Hughes Helicopters, Inc.,

15

708 F.2d 475 (9th Cir. 1983)..................................................................................................... 4

16 Nat’l Ctr. for Immigrants Rights, Inc. v. INS,

17

743 F.2d 1365 (9th Cir. 1984), vacated, 481 U.S. 1009 (1987) ............................................... 3

18 Navarro-Ayala v. Hernandez-Colon,

951 F.2d 1325 (1st Cir. 1991) ................................................................................................. 14

19

O’Connor v. Boeing N. Am., Inc.,

20

184 F.R.D. 311 (C.D. Cal. 1998) .............................................................................................. 5

21 Paige v. California,

22

102 F.3d 1035 (9th Cir. 1996)................................................................................................... 4

23 Paxton v. Union Nat’l Bank, 688 F.2d 552 (8th Cir. 1982)..................................................................................................... 6

24 Perez-Funez v. Dist. Dir., INS,

25

611 F. Supp. 990 (C.D. Cal. 1984)............................................................................................ 6

26 Protectmarriage.com v. Bowen,

27

262 F.R.D. 504 (E.D. Cal. 2009) .............................................................................................. 1

28

iii.

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1

TABLE OF AUTHORITIES

(continued)

2

PAGE

3 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003)................................................................................................. 7, 9
4

5

Stolz v. United Bhd. of Carpenters, 620 F. Supp. 396 (D. Nev. 1985) ............................................................................................ 14

6 Valentino v. Carter-Wallace, Inc.,

7

97 F.3d 1227 (9th Cir. 1996)..................................................................................................... 1

8 Zepeda v. INS,

753 F.2d 719 (9th Cir. 1983)................................................................................................. 3, 4 9

Zinser v. Accufix Research Inst., Inc.,

10

253 F.3d 1180 (9th Cir. 2001)................................................................................................... 2

11 STATUTES
12 29 U.S.C. § 794 ............................................................................................................................... 8
13 42 U.S.C. § 1396a ........................................................................................................................... 8
14 42 U.S.C. § 12312 ........................................................................................................................... 8
15 Americans with Disabilities Act of 1990 ........................................................................................ 8
16 17 California Government Code § 11135 ............................................................................................ 8
18 Section 504 of the Rehabilitation Act of 1973................................................................................ 8

19 OTHER AUTHORITIES

20 1 Newberg on Class Actions (4th ed. 2002) § 2.28 ...................................................................... 12

21 1 Newberg on Class Actions (4th ed. 2002) § 3.5 .......................................................................... 5

22 2 Newberg Class Actions (4th ed. 2002)at § 5.03 ........................................................................ 12

23 2 Newberg on Class Actions (4th ed. 2002)at § 8.05.................................................................... 14 24 Fed. R. Civ. P. 23 ................................................................................................................... passim 25

26

27

28

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1 I. INTRODUCTION

2

This lawsuit challenges the unlawful termination of essential mental health services to

3 thousands of low-income Medi-Cal recipients in Sacramento County. Defendant County of

4 Sacramento (“County”) has stated that during the 2010-11 fiscal year, it intends to close mental

5 health programs that provide “core” services to approximately 5,000 County residents with severe

6 mental illness, such as schizophrenia, bipolar disorder and depression. Specifically, the County

7 has stated that beginning on August 1, 2010, it intends to begin eliminating outpatient services

8 that are currently being provided to these clients by four Regional Support Team (“RST”)

9 programs and the Transitional Community Opportunities for Recovery and Engagement

10 (“TCORE”) program, and to reduce funding significantly for the Consumer Self Help Wellness

11 and Recovery Center (“CSH”), which is also serving the clients. Together, these impacted

12 programs provide most of the outpatient mental health services to Medi-Cal recipients in the

13 County. Although the County claims that it intends to transition these clients to new County-run

14 clinics beginning on July 1, 2010, it has provided virtually no details concerning these clinics,

15 their proposed staffing or the services they are expected to provide, and based on the County’s

16 statements to date, it is a virtual certainty that these services will be greatly reduced and vastly

17 inferior to the system that the County is dismantling.

18

By this motion, Plaintiffs Leslie Napper, Jan Fischer, Jacquie Eichhorn-Smith, Ted

19 Yannello and Lynda Mangio (“Plaintiffs”) respectfully request that the Court certify a class

20 consisting of “all current and future recipients of Medi-Cal funded mental health services in the

21 County of Sacramento.” “Before certifying a class, the trial court must conduct a ‘rigorous

22 analysis’ to determine whether the party seeking certification has met the prerequisites of

23 Rule 23” of the Federal Rules of Civil Procedure. Protectmarriage.com v. Bowen, 262 F.R.D.

24 504, 506-07 (E.D. Cal. 2009), citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1233 (9th

25 Cir. 1996).

26

This action readily satisfies the requirements for class certification under Rule 23(a).

27 First, the proposed class consists of well over 5,000 current members, making joinder

28 impracticable. Second, members of the proposed class share common issues of fact and law as

1.

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1 they are currently threatened and will continue to be threatened with the unlawful denial of

2 outpatient mental health services which they are entitled to receive under California’s Medicaid

3 program, better known as Medi-Cal. Third, the five Plaintiffs satisfy the typicality requirement

4 because they are threatened with the same unlawful denial of Medicaid-funded mental health

5 services as thousands of other Medi-Cal recipients in the County. Fourth, Plaintiffs are adequate

6 class representatives because they have no conflicts with the claims of putative class members.

7 Likewise, Plaintiffs’ attorneys have no conflicts with the claims of putative class members and

8 have substantial experience in class actions, public benefits cases, and other complex civil rights

9 cases in federal court, making them more than adequate class counsel.

10

This case is appropriate for class certification under Rule 23(b)(2) because the class has

11 been subject to a common set of practices for which they only seek injunctive and declaratory

12 relief. “Class certification under Rule 23(b)(2) is appropriate only where the primary relief

13 sought is declaratory or injunctive.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1195

14 (9th Cir. 2001); see also Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir. 2003). This Court

15 should therefore certify the proposed class, approve the five Plaintiffs as class representatives,

16 and appoint Plaintiffs’ counsel to serve as class counsel. This Court should also order that notice

17 need not be given to class members of the pendency of this class action at this time.

18 II. STATEMENT OF FACTS

19

To avoid unnecessary repetition, Plaintiffs refer the Court to the Statement of Facts in the

20 Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary

21 Injunction, filed concurrently herewith.

22 III. ERRING ON THE SIDE OF CAUTION, PLAINTIFFS ARE MOVING FOR CLASS

23

CERTIFICATION AT SUCH AN EARLY STAGE IN THE PROCEEDINGS SO AS TO AVOID ANY DOUBTS ABOUT THE SCOPE OF THE PROPOSED

24

PRELIMINARY INJUNCTION IN THIS CASE

25

Rule 23(c) specifies that at an “early practicable time” after commencement of an action

26 the court shall determine whether the action is to be maintained as a class action. Fed. R. Civ. P.

27 23(c)(1)(A); see also Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975). It is especially

28 important that the Court rule upon this class certification motion at an early stage in these

2.

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1 proceedings since Plaintiffs have filed a motion for preliminary injunction not just for themselves,

2 but also for all members of the proposed class.

3

The purpose of a preliminary injunction is to preserve the status quo, returning the parties

4 to their relative positions before the actions that gave rise to the litigation. GoTo.Com, Inc. v.

5 Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000). “There is no general requirement that an

6 injunction affect only the parties in the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir.

7 1987).

8

It is well-settled that an injunction benefitting non-parties is permissible provided it is

9 necessary to give the relief to which the parties are individually entitled. Easyriders Freedom

10 F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996); Gregory v. Litton Sys., Inc., 472

11 F.2d 631, 633-34 (9th Cir. 1972). Although both those cases dealt with permanent injunctions,

12 the principle is the same for preliminary injunctions. See Zepeda v. INS, 753 F.2d 719, 728 n.1

13 (9th Cir. 1983) (applying the same standard to a preliminary injunction).

14

In Easyriders, the Ninth Circuit held that an injunction forbidding the California Highway

15 Patrol from engaging in unconstitutional stops of any motorcyclists, instead of merely forbidding

16 stops of the named plaintiffs, was not overbroad. 92 F.3d at 1501. The court reasoned:

17

Because the CHP policy regarding helmets is formulated on a statewide

level, other law enforcement agencies follow the CHP’s policy, and it is

18

unlikely that law enforcement officials who were not restricted by an

injunction governing their treatment of all motorcyclists would inquire

19

before citation into whether a motorcyclist was among the named

plaintiffs or a member of Easyriders, the plaintiffs would not receive the

20

complete relief to which they are entitled without statewide application of

the injunction. 21

22 Id. at 1502; see also Bresgal, 843 F.2d at 1169-1171 (requiring the enforcement of the Migrant

23 and Seasonal Workers Protection Act on a nationwide basis rather than just against the particular

24 labor contractors who might deal with the individual plaintiffs).

25

On the other hand, the Ninth Circuit has expressed the view that a preliminary injunction

26 may only cover the named plaintiffs if the lawsuit has not been certified as a class action. Nat’l

27 Ctr. for Immigrants Rights, Inc. v. INS, 743 F.2d 1365, 1371 (9th Cir. 1984), vacated, 481 U.S.

28 1009 (1987); see also Zepeda, 753 F.2d at 728 n.1 (“Without a properly certified class, a court

3.

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1 cannot grant relief on a class-wide basis”); accord, Paige v. California, 102 F.3d 1035, 1039 (9th

2 Cir. 1996).

3

According to Bresgal and Easyriders, the proposed preliminary injunction in this case

4 should be permissible as a means of providing full relief to the five named Plaintiffs and all others

5 similarly situated. See also Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1178 n.14 (N.D.

6 Cal. 2009) (“District courts are empowered to grant preliminary injunctions ‘regardless of

7 whether the class has been certified.’”) (citation omitted). Yet Plaintiffs, mindful of the

8 statements in National Center for Immigration Rights and Zepeda, want to eliminate any possible

9 objections from Defendants about the scope of the order (e.g., enjoining the closure of the RSTs

10 and the TCORE program). The simplest way to avoid such a potential controversy would be to

11 certify the case as a class action.

12 IV. THIS LAWSUIT SATISFIES ALL THE REQUIREMENTS OF RULE 23 FOR

13

MAINTENANCE AS A CLASS ACTION

14

In determining whether an action warrants class treatment under Rule 23, “the question is

15 not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits,

16 but rather whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S.

17 156, 178 (1974) (quotations and citation omitted); Moore v. Hughes Helicopters, Inc., 708 F.2d

18 475, 480 (9th Cir. 1983) (same).

19

The Ninth Circuit recently set forth the basic rules for class certification motions in the

20 long awaited decision in Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (en banc).

21 A district court “must perform a rigorous analysis” to ensure that the Rule 23 requirements have

22 been met. Id. at 581. This “analysis will often, though not always, require looking behind the

23 pleadings, even to issues overlapping with the merits of the underlying claims.” Id.; see also

24 Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982) (“the class determination generally

25 involves considerations that are enmeshed in the factual and legal issues”). However, “district

26 courts may not analyze any portion of the merits of a claim that do not overlap with the Rule 23

27 requirements” and “different parts of Rule 23 require different inquiries.” Dukes, 603 F.3d at

28 594. For example, plaintiffs only need “establish common questions of law and fact” for

4.

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1 purposes of the commonality inquiry under Rule 23(a)(2), whereas “answering those questions is

2 the purpose of the merits inquiry, which can be addressed at trial and at summary judgment.” Id.

3 (emphasis in original).

4

As discussed below, the proposed class meets all the requirements of Rule 23(a):

5 numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a); see

6 also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (listing Rule 23(a) requirements).

7 In addition, this class meets the requirements of Rule 23(b)(2) in that declaratory and injunctive

8 relief predominates and is appropriate. Fed. R. Civ. P. 23(b)(2); see also Amchem, 521 U.S. at

9 614.

10

A. The Proposed Class Satisfies the Requirements of Rule 23(a).

11

1. The Proposed Class is Sufficiently Numerous.

12

“To satisfy Rule 23's requirements, the proponent must first establish that a class does in

13 fact exist.” O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998). “An

14 adequate class definition specifies ‘a distinct group of plaintiffs whose members [can] be

15 identified with particularity.’” Campbell v. PricewaterhousCoopers, LLP, 253 F.R.D. 586, 593

16 (E.D. Cal. 2008), quoting Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.

17 1978). A class definition must be “precise, objective and presently ascertainable.” O’Connor,

18 184 F.R.D. at 319.

19

Plaintiffs seek to represent a class consisting of “all current and future recipients of Medi-

20 Cal funded mental health services in the County of Sacramento.” The class is sufficiently defined

21 in this case.

22

Rule 23(a)(1) requires a finding that the proposed class is so numerous that “joinder of all

23 members is impracticable.” Fed. R. Civ. P. 23(a)(1). “‘[I]mpractibility’ does not mean

24 ‘impossibility,’ but only the difficulty or inconvenience of joining all members of the class.”

25 Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964).

26

While there is no exact numerical formula, a class of over 100 members satisfies the

27 numerosity requirement. See 1 Newberg on Class Actions (4th ed. 2002) § 3.5 at 247 (“as few as

28 40 class members should raise a presumption that joinder is impracticable”). Courts in the Ninth

5.

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1 Circuit have found that classes of far fewer than 100 persons are sufficiently numerous to render

2 joinder impracticable. See, e.g., Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 (9th Cir.),

3 vacated on other grounds, 459 U.S. 810 (1982) (“[W]e would be inclined to find the numerosity

4 requirement in the present case satisfied solely on the basis of the number of ascertained class

5 members, i.e., 39, 64, and 71. . . .”); Perez-Funez v. Dist. Dir., INS, 611 F. Supp. 990, 995 (C.D.

6 Cal. 1984) (“Classes consisting of 25 members have been held large enough to justify

7 certification.”).

8

Plaintiffs easily satisfy the numerosity requirement in this case. The County’s Mental

9 Health Plan serves approximately 20,000 Medi-Cal recipients with severe and chronic mental

10 illness; of these, approximately half are adults over the age of 18. Branick-Abilla Declaration 11 (“Decl.”), ¶ 3, Exhibit (“Ex.”) A at 48 (2009 APS Rpt.).1 One of the RSTs, Human Resources

12 Consultants, alone serves 840 clients, 90 to 95% of whom are Medi-Cal recipients. Place Decl.,

13 ¶ 12. Another RST, Visions Unlimited, has over 800 clients. Bates Decl., ¶¶ 2, 3, 15. TCORE

14 currently serves nearly 640 people. Risley Decl., ¶ 6.

15

In determining the impracticability of joinder under Rule 23(a)(1), the court may consider

16 other factors besides the sheer size of the class. Jordan, 669 F.2d at 1319; Paxton v. Union Nat’l

17 Bank, 688 F.2d 552, 559-60 (8th Cir. 1982). One such factor is the “relatively small size of each

18 class member’s claim.” Jordan, 669 F.2d at 1319. Here, while the services at stake are critical to

19 the health, indeed the survival, of members of the proposed class, the dollar amount of each class

20 member’s claim is relatively small and these needy individuals do not have the financial

21 resources to pursue separate actions. A second factor is whether the “class is composed of

22 unnamed and unknown future” members since the “joinder of unknown individuals is inherently

23 impracticable.” Id. at 1320. The proposed class in this case includes unnamed and unknown

24 future applicants and recipients of the Medi-Cal program. A third factor in determining the

25 impracticability of joinder is “whether injunctive or declaratory relief is sought.” Id. at 1319.

26 1 The declarations of Robert D. Newman, William S. Freeman and Melinda Bird are filed in 27 support of this motion. All other declarations cited herein have been filed concurrently in support
of Plaintiffs’ Motion for Preliminary Injunction.
28

6.

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1 This lawsuit only seeks injunctive and declaratory relief. In sum, the proposed class meets the

2 requirements of Rule 23(a)(1).

3

2. The Case Presents Many Common Questions of Law and Fact.

4

On its face, Rule 23(a)(2) requires that there be questions of either “law or fact” common

5 to members of the proposed class. Fed. R. Civ. P. 23(a)(2). “All questions of fact and law need

6 not be common to satisfy the rule. The existence of shared legal issues with divergent factual

7 predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies

8 within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998); accord, Staton

9 v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003). “The commonality test is ‘qualitative rather

10 than quantitative’ – one significant issue common to the class may be sufficient to warrant

11 certification. . . .” Dukes, 603 F.3d at 599. The courts do not treat commonality as a difficult

12 hurdle; the requirement should be “construed permissively.” Hanlon, 150 F.3d at 1019.

13

The overarching issue in this case is the County’s plan to make system-wide changes in

14 the outpatient mental health services it provides to thousands of Medi-Cal recipients. See

15 Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (commonality requirement is met “where

16 the lawsuit challenges a system-wide practice or policy that affects all of the putative class

17 members”). The County has announced that during the next fiscal year it intends to end all

18 funding for the RST and TCORE programs and to reduce funding significantly for the CSH. The

19 County reportedly intends to replace these critical outpatient programs, which have been operated

20 for more than a decade by nonprofit agencies with their own employees, with new clinics, which

21 will be operated by the County with the County’s own employees.

22

Among the common issues of fact are the following:

23

(1) whether the County’s new clinics will treat the same number of clients and offer

24

the same level of services as do the RSTs, TCORE program and the CSH;

25

(2) whether the County has developed adequate plans to transition existing clients of

26

the RSTs, TCORE program and the CSH to the new clinics beginning on July 1

27

without any interruption in service;

28

7.

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1

(3) whether, as a result of the proposed elimination of existing programs and transition

2

to County-run clinics, thousands of Medi-Cal recipients in this County will be

3

denied medically necessary, outpatient mental health services; and

4

(4) whether the County’s policies favor the institutionalization of persons with

5

disabilities by maintaining the funding for costly inpatient care – the Mental

6

Health Treatment Center and Crestwood Psychiatric Health Facility – while

7

cutting the funding for less expensive and more effective outpatient mental health

8

services – the RSTs, TCORE program and the CSH.

9

These common questions of fact in turn raise several common questions of law, including

10 whether Defendants will be violating the Americans with Disabilities Act of 1990, 42 U.S.C.

11 § 12312, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and California

12 Government Code § 11135, by: (1) failing to provide services to people with disabilities in the

13 most integrated setting appropriate to their needs; (2) denying people with disabilities the

14 opportunity to benefit from the County’s mental health services or providing them with less

15 effective services; (3) using methods of administration that discriminate by placing people with

16 disabilities at risk of institutionalization or that defeat the purpose of the County’s Mental Health

17 Plan; (4) selecting sites for new clinics that may not be accessible to people with disabilities; and

18 (5) failing to make modifications and/or accommodations when necessary to avoid

19 discrimination.

20

Other common questions of law are whether Defendants’ proposed actions also violate

21 requirements of the Medicaid Act, 42 U.S.C. § 1396a, that Medicaid recipients such as Plaintiffs

22 and members of the class be provided with (1) services that are sufficient in amount, duration,

23 and scope to reasonably achieve their purposes; (2) comparable Medicaid services to individuals

24 with similar needs; and (3) services according to reasonable standards. Additional common

25 questions of law in this case are whether Defendants’ failure to provide adequate notice and

26 opportunity for hearing prior to depriving members of the class of critical Medi-Cal mental health

27 services violates the federal and state constitutional guarantees of due process and the Medicaid

28 Act’s notice and hearing provisions.

8.

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1

Any differences in the ways in which these policies and practices affect individual class

2 members do not undermine the finding of commonality. Staton, 327 F.3d at 954-55 (where

3 plaintiffs have alleged a “complex of discriminatory practices,” individual class members need

4 not have been affected by every practice); Jordan, 669 F.2d at 1320 (“The legality of defendant’s

5 practices or policies will usually be a question common to the class, and the existence of different

6 factual questions with respect to various [plaintiffs] will not defeat satisfaction of the

7 commonality requirement”). A common inquiry is plainly the most efficient and appropriate way

8 to answer any and each of the common factual and legal questions posed in this case.

9

3. The Claims of the Named Plaintiffs Are Typical of the Class They Seek

10

To Represent.

11

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical

12 of the claims or defenses of the class.”2 “Under the rule’s permissive standards, representative

13 claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they

14 need not be substantially identical.” Hanlon, 150 F.3d at 1020; accord, Dukes, 603 F.3d at 614.

15 It is sufficient if the class representatives and members of the class “share a ‘common issue of law

16 or fact,’” Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171, 1175 (9th Cir.

17 1990) (quoting Blackie, 524 F.2d at 904), “and are sufficiently parallel to insure a vigorous and

18 full presentation of all claims for relief.” Id. (quotations and citation omitted).

19

The named Plaintiffs’ claims are typical of those of the class. All five class

20 representatives are County residents and Medi-Cal recipients. Napper Decl., ¶¶ 3, 4; Fischer

21 Decl., ¶ 2; Eichhorn-Smith Decl., ¶ 2; Yannello Decl., ¶ 3; Mangio Decl., ¶¶ 9, 10. All five class

22 representatives currently receive mental health services from nonprofit agencies under contract

23 with the County. Napper Decl., ¶¶ 2, 9, 10, 13; Fischer Decl., ¶¶ 2, 6, 9, 10; Eichhorn-Smith

24 Decl., ¶¶ 1, 7-10, 11; Yannello Decl., ¶¶ 3, 5; Mangio Decl., ¶¶ 2, 13, 14. The County is

25 threatening to eliminate or reduce the funding for these nonprofit agencies. Napper Decl., ¶¶ 2,

26 27 2 The “commonality and typicality requirements of Rule 23(a) tend to merge.” Gen. Tel. Co. of
the Sw., 457 U.S. at 158; accord, Staton, 327 F.3d at 957. 28

9.

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Case 2:10-cv-01119-JAM-EFB Document 54 Filed 06/09/10 Page 16 of 21

1 14, 15; Fischer Decl., ¶¶ 2, 12; Eichhorn-Smith Decl., ¶¶ 1, 11; Yannello Decl., ¶ 7; Mangio

2 Decl., ¶¶ 2, 17.

3

4. The Named Plaintiffs and Their Counsel Will Fairly and Adequately

4

Protect the Interests of the Class.

5

Rule 23(a)(4) requires that the named class representative “fairly and adequately protect

6 the interests of the class.” The rule is satisfied where, as here: (1) the representatives’ claims are

7 sufficiently interrelated to and not antagonistic with the class’ claims; and (2) counsel for the

8 representatives are qualified, experienced and generally able to conduct the litigation. Hanlon,

9 150 F.3d at 1020; accord, Dukes, 603 F.3d at 614. Here, the interests of the class and the

10 interests of the Plaintiffs are the same. Both seek to prove that Defendants’ proposed elimination

11 of existing programs and Defendants’ plan to force the Plaintiffs to transition to County-run

12 clinics violate federal and state law. There is no antagonism between the Plaintiffs’ claims and

13 those of the class they seek to represent, especially since Plaintiffs only seek declaratory and

14 injunctive relief against Defendants to require their compliance with the law.

15

The named Plaintiffs have affirmed their willingness to undertake the responsibilities of

16 serving as class representatives. They have never been the class representative in any other class

17 actions. Plaintiffs understand the fiduciary obligations of a class representative in a class action

18 lawsuit and intend to represent fairly and adequately the interests of the proposed class in this

19 case, regardless of whether this case is resolved by settlement or trial. They do not have any

20 interests in conflict with the interests of the proposed class. Napper Decl., ¶ 16; Fischer Decl.,

21 ¶ 14; Eichhorn-Smith Decl., ¶ 13; Yannello Decl., ¶ 9; Mangio Decl., ¶ 18.

22

The named Plaintiffs have retained counsel who have the resources and expertise to

23 prosecute this action vigorously on behalf of the class. For example, Robert Newman of the

24 Western Center on Law & Poverty has been lead counsel or co-counsel in dozens of class action

25 lawsuits concerning indigents’ rights to public assistance, health care and housing in federal and

26 state courts, many of which have resulted in published opinions. Newman Decl., ¶¶ 5-6. In

27 March of 2007, Mr. Newman received the award of California Lawyer of the Year in the field of

28 public policy from California Lawyer Magazine along with another of Plaintiffs’ counsel herein,

10.

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Case 2:10-cv-01119-JAM-EFB Document 54 Filed 06/09/10 Page 17 of 21

1 Melinda R. Bird. Id., ¶ 10; Bird Decl., ¶ 5. Mr. Newman has also been selected for listing for

2 several years in the area of Class Actions/Mass Torts in Southern California Super Lawyers.

3 Newman Decl., ¶ 10.

4

William Freeman of Cooley LLP, another of Plaintiffs’ counsel, has been involved in

5 dozens of federal court class action cases over the past thirty years, often as lead counsel for his

6 clients. Freeman Decl., ¶ 4. Mr. Freeman’s firm has also acted frequently as counsel for

7 plaintiffs in class actions to vindicate individual rights. Id., ¶ 5.

8

A third of Plaintiffs’ lawyers is Melinda R. Bird of Disability Rights California. Since

9 1978, Disability Rights California has been advocating for the legal, civil and service rights of

10 people with disabilities throughout California. Bird Decl., ¶¶ 2, 3. Ms. Bird’s work has been

11 primarily in the entitlements to Medicaid-funded health and mental health services and disability

12 rights, and she too has been lead counsel or co-counsel in numerous civil rights class action

13 lawsuits in state and federal court. Id., ¶ 5. Ms. Bird’s honors include being named Advocate of

14 the Year in 2010 by California Mental Health Advocates for Children and Youth, and a “Top

15 Women Litigator” in California in 2007 by the California Daily Journal. Id. For several years,

16 she has been named a Southern California Super Lawyer in the areas of Constitutional Law/Civil

17 Rights. Id.

18

Plaintiffs and their counsel clearly satisfy the requirements of Rule 23(a)(4).

19

B. The Court Should Certify the Class under Rule 23(b)(2).

20

In addition to meeting the requirements of Rule 23(a), the proposed class must also satisfy

21 one of the Rule 23(b) categories. Rule 23(b)(2) is an appropriate basis for certification when the

22 defendant “has acted or refused to act on grounds that apply generally to the class,” thereby

23 making appropriate declaratory and injunctive relief with respect to the class as a whole. Fed. R.

24 Civ. P. 23(b)(2).

25

Certification of a class under Rule 23(b)(2) does not require that every single class

26 member must have been injured or aggrieved in the same way by defendant’s conduct. A class

27 may properly be certified under Rule 23(b)(2) if the opposing party’s “[a]ction or inaction is

28 directed to a class . . . even if it has taken effect or is threatened only as to one or a few members

11.

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Case 2:10-cv-01119-JAM-EFB Document 54 Filed 06/09/10 Page 18 of 21

1 of the class, provided it is based on grounds which have general application to the class.” Fed. R.

2 Civ. P. 23(b)(2) Advisory Committee’s Note (1966). Thus, it is sufficient if the defendant has

3 adopted or engaged in a pattern of activity that is “central to the claims of all class members

4 irrespective of their individual circumstances and the disparate effects of the conduct.” Baby

5 Neal for & by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994).

6

Certification of a class under Rule 23(b)(2) is appropriate here because Plaintiffs and

7 members of the class all are threatened with imminent across-the-board reductions in outpatient

8 mental health services. Unless the Court grants a preliminary injunction, then, as of October 1,

9 2010, the County will have closed the four RSTs and the TCORE program and will have made

10 drastic reductions in the funding for the CSH. Whatever programs the County hastily cobbles

11 together in the upcoming weeks will not be an adequate substitute for the existing programs. The

12 resulting loss in available outpatient mental health services will not affect just one or two class

13 members, but could well affect every member of the class.

14

Finally, this action is appropriate under Rule 23(b)(2) because class actions for declaratory

15 or injunctive relief also help to avoid mootness and to facilitate enforcement of judgments.

16 1 Newberg at § 2.28; 2 Newberg at § 5.03. Absent class certification, when the named Plaintiffs

17 cease to receive Medi-Cal or mental health services from Sacramento County, the case would

18 become moot. At the very least, there would be no one with standing to enforce any order

19 entered by the Court. However, other residents of Sacramento County who meet the class

20 definition or who may do so in the future are also entitled to the same rights under state and

21 federal law. Therefore, classwide final injunctive and declaratory relief is appropriate to avoid

22 mootness and to facilitate enforcement of any judgment this Court may enter. 1 Newberg at

23 § 2.28; 2 Newberg at § 5.03; see also Lynch v. Rank, 604 F. Supp. 30, 38-39 (N.D. Cal. 1984)

24 (certifying a nationwide class so that poor and disabled individuals outside California and “public

25 interest groups in other forums will not be forced to throw their efforts and resources into

26 relitigating the issue”). Rule 23(b)(2) is satisfied in this case.

27

28

12.

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Case 2:10-cv-01119-JAM-EFB Document 54 Filed 06/09/10 Page 19 of 21

1 V. 2

THE COURT SHOULD DESIGNATE PLAINTIFFS’ COUNSEL AS CLASS COUNSEL PURSUANT TO RULE 23(G)(1)

3

When a class is certified, the court must appoint class counsel (Fed. R. Civ. P. 23(g)(1))

4 and the class certification order must list these counsel. Fed. R. Civ. P. 23(c)(1)(B). The Federal

5 Rules list four factors the court must consider in appointing class counsel:

6

(i) the work counsel has done in identifying or investigating potential claims in the action;

7

(ii) counsel’s experience in handling class actions, other complex litigation, and claims of

8 the type asserted in the action;

9

(iii) counsel’s knowledge of the applicable law; and

10

(iv) the resources counsel will commit to representing the class.

11 Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv).

12

Pursuant to these four factors, Plaintiffs’ counsel qualify for appointment as class counsel

13 in this case. The extensive papers which Plaintiffs have filed concurrently herewith in support of

14 their motion for preliminary injunction bespeak the hard work that Plaintiffs’ counsel have done

15 on this action up until the present day. Counsel have interviewed and obtained declarations not

16 only from the five named Plaintiffs and several other class members, but also from a number of

17 service providers and experts in the field of mental health. The moving papers also reflect

18 counsel’s gathering of documentary evidence regarding the County’s mental health system, past

19 and present, and legal research into the merits of a number of different claims.

20

As discussed above (see pages10-11 supra), Plaintiffs’ counsel have extensive knowledge

21 and experience in handling class actions and other complex litigation, including public benefits

22 cases, and are knowledgeable as to the applicable law. With regard to the last of the four factors,

23 Plaintiffs’ counsel fully intend to commit the necessary resources to represent the class in this

24 case. Freeman Decl., ¶ 8; Newman Decl., ¶ 14; Bird Decl., ¶ 9. One of Plaintiffs’ law firms,

25 Cooley LLP, has over 200 attorneys in its Palo Alto office alone and unquestionably has the

26 capacity and resources by itself to achieve a successful outcome for the class in this lawsuit.

27 Freeman Decl., ¶ 6. In terms of future work on this case, Plaintiffs’ counsel will, in all likelihood,

28 be taking the depositions of numerous County officials, obtaining documents from the County

13.

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Case 2:10-cv-01119-JAM-EFB Document 54 Filed 06/09/10 Page 20 of 21

1 and third parties, interviewing additional class members, and taking any other actions necessary

2 to prepare this case for final resolution, whether by summary judgment or trial. Id., ¶ 8; Newman

3 Decl., ¶ 14; Bird Decl., ¶ 9. In short, the Court should appoint Plaintiffs’ counsel as class counsel

4 in its class certification order with Mr. Newman and Mr. Freeman serving as lead counsel.

5 VI. THE COURT SHOULD NOT REQUIRE THAT NOTICE BE GIVEN TO CLASS

6

MEMBERS OF THE PENDENCY OF THIS ACTION AT THE PRESENT TIME

7

Because Plaintiffs seek to certify a class under Rule 23(b)(2), notice is not required. Fed.

8 R. Civ. P. 23(c)(2)(A); see also Elliot v. Weinberger, 564 F.2d 1219, 1228-29 (9th Cir. 1977),

9 aff’d in relevant part, rev’d in part, 442 U.S. 682 (1979); Navarro-Ayala v. Hernandez-Colon,

10 951 F.2d 1325, 1336-37 (1st Cir. 1991). There are several reasons why notice is less necessary in

11 a (b)(2) class action than a (b)(3) class action: class members have no right to request exclusion

12 from a (b)(2) class action; the “characteristics of the class may reduce the need for formal notice”;

13 and the cost of providing notice “could easily cripple actions that do not seek damages.” Rule 23

14 Advisory Committee’s Note (2003); see also 2 Newberg at § 8.05 (“[C]lass actions seeking

15 declaratory or injunctive relief under Rule 23(b)(2) are not subject to the individual notice

16 requirements of Rule 23(c)(2).”).

17

“The authority to direct notice to class members in a . . . (b)(2) class action should be

18 exercised with care.” Rule 23 Advisory Committee’s Note (2003). Notice is not necessary in this

19 case because the named Plaintiffs’ claims are typical of those of the class as a whole, they are

20 clearly adequate representatives of the class, and they are represented by experienced counsel.

21 See Elliot, 564 F.2d at 1229 (notice not necessary for nationwide (b)(2) class where named

22 plaintiffs are adequate representatives with experienced counsel); Stolz v. United Bhd. of

23 Carpenters, 620 F. Supp. 396, 408 (D. Nev. 1985) (notice unnecessary for (b)(2) class where

24 named plaintiffs are adequate representatives). Moreover, because absent class members cannot

25 opt out of a (b)(2) class, one of the primary reasons why notice is required in a (b)(3) class is not

26 at issue in (b)(2) cases. Elliot, 564 F.2d at 1229 n.14. Accordingly, Plaintiffs respectfully request

27 that this Court exercise its discretion to certify the class without requiring any notice to absent

28 class members, at least at this stage of the litigation.

14.

MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR CLASS CERTIFICATION - CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 54 Filed 06/09/10 Page 21 of 21

1 VII. CONCLUSION

2

Plaintiffs satisfy all of the requirements of Rule 23(a) and Rule 23(b)(2). Plaintiffs

3 respectfully request that the Court certify the proposed class, approve Plaintiffs Leslie Napper,

4 Jan Fischer, Jacquie Eichhorn-Smith, Ted Yannello and Lynda Mangio as class representatives,

5 appoint Plaintiffs’ counsel to represent the class, and dispense with any requirement of notice to

6 class members prior to judgment or settlement.

7 Dated: June 9, 2010 8 9

Respectfully submitted, WESTERN CENTER ON LAW AND POVERTY

10

By:

/s/ Robert D. Newman

11

ROBERT D. NEWMAN

12

Attorneys for Plaintiffs

13 859311 v2/HN 14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15.

MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR CLASS CERTIFICATION - CASE NO. 2:10-CV-1119

 
 Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 1 of 30

1 ROBERT A. RYAN, JR., County Counsel MICHELE BACH, Supervising Deputy
2 [State Bar No. 88948] JUNE POWELLS-MAYS, Deputy
3 [State Bar No. 188423] RICK HEYER, Deputy
4 [State Bar No. 216150] COUNTY OF SACRAMENTO
5 700 H Street, Suite 2650 Sacramento, CA 95814
6 Telephone: (916) 874-5540 Facsimile: (916) 874-8207
7 E-mail: bachm@saccounty.net File No.: 128.10A
8
Attorneys for County of Sacramento 9

10

IN THE UNITED STATES DISTRICT COURT FOR

11

THE EASTERN DISTRICT OF CALIFORNIA

12 LESLIE NAPPER, et al.,

Case No. 2:10-CV-01119-JAM-EFB

13

Plaintiffs,

14 vs.

15 COUNTY OF SACRAMENTO, et at,

16

Defendants.

17

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
Date: July 21. 2010 Time: 9:30 am Place:Courtroom 6, 14th Floor Judge:Hon. John A. Mendez

18

19

20

21

22

23

24 25
26 27 28

MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 2 of 30

TABLE OF AUTHORITIES

CASES

Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227 (1937) .................................................................................................................. 12

Alexander v. Choate, 469 U.S. 387 (1985) .............................................................................................................. 18,20

American Passage Media Corp. v. Cass Communications 950 F.2d 1470,: 1473 (9th Cir. 1985) ............................................................................................... 9

Arcasmuzi v. Continental Airlines, Inc." 891 F.2d 935 (9th Cir. 1987) ....................................................................................................... 9

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .................................................................................................................... 12

Bell Atlantic Business Systems, Inc. v. Storage Technology Corp., 1994 WL 125173 (N.D. Cal. 1994) ............................................................................................. 9

Caribbean Marine Services Co., Inc. v., Aldridge 844 F.2d.668 (9th Cir. 1988) ........................................................................................................... 9

Cerpac v. Health and Hospitals Corp., 147F.3d 165 (2ndCir.1998) .................................................................................................... 18

Chapman v. Houston Welfare rights Org, 441 U.S. 600 (1979) .................................................................................................................. 19

City of Erie v. Pap's A.M., 529 U.S. 277 (2000) .................................................................................................................. 12

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .................................................................................................................... 22

County of Butte v. Superior Court of Butte County,

I

176 Cal.App.3d 693 (1985) ....................................................................................................... 25

I

Dennis v. Higgins,

498 U.S. 439 (1991) .................................................................................................................. 19

Ferguson v. Skrupa, 372 U.S. 726 (1962) .................................................................................................................. 25

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 3 of 30
TABLE OF CONTENTS
Page No.
I. INTRODUCTION .................................................................................................... 1 II. STATEMENT OF FACTS ...................................................................................... 1
A. Previous System ................................................................................................. 1 B. County's Hybrid Plan as Adopted by Board of Supervisors .............................. 2 C. County's Transition Plan .................................................................................... 6
III. SUMMARY OF ARGUMENT ............................................................................... 8
IV. PLAINTIFFS' MOTION FOR RPRELIMINARY INJUNCTION ........................ . SHOULD BE DENIED BECAUSE PLAINTIFFS' COMPLAINT IS MOOT ...... 11
V. THE COURT LACKS AUTHORITY TO REQUIRE THE COUNTY TO ........ .. ENTER INTO NEW CONTRACTS WITH THE RSTs ....................................... 13
VI. PLAINTIFFS HAVE FAILED TO RAISE A JUSTICABLE ISSUE................... 14
VII. PLAINTIFFS CANNOT SUCCEED ON THE MERITS BECAUSE THE HYBRID PLAN IS LEGAL ...........................;................................................................. 15
A. The Hybrid Plan Does Not Violate the ADA's Integration Mandate .............. 15 B. Plaintiffs Have Not Established That They Are Likely to Succeed on The Merits Of Their Medicaid Claims .............................................................................. 19 C. The County Has Not Violated Plaintiffs' Due Process Rights ......................... 21
VIII. PLAINTIFFS HAVE FAILED TO ESTABLISH A THREAT OF IRREPARABLE INJURY ................................................................................................ 22
IX. THE BALANCE OF HARDSHIPS FAVORS THE COUNTY AND THE PUBLIC INTEREST IS BEST SERVED BY DENYING THE MOTION FOR PRELIMINARY INJUNCTION .........................................................:............................. 24
X. CONCLUSION ...................................................................................................... 25

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 4 of 30
Frederick L v. Dept. of Public Welfare of Penn, 364 F.3d 487 (3d Cir. 2004) .................................................................'............................... 16" 17
Garden v. City of Moreno Valley, 687 F .Supp.2d 930 (C.D. Cal. 2009) ........................................................................................... 9
Golden State Transit Corp. v. City of Los Angeles, 493 U. S. 103 (1989) """""""""""""""""""""""""""""""""'"'' ........................................... 19
Gonzaga. v. Doe, 536 U.S. 273 (2002) .................................................................................................................. 19
Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009) ....................................................................................................... 8
Harris v. Board of Supervisors, 366 F.3d 754 (9th Cir. 2004) ..................................................................................................... 10
Independent Living Center of Southern California, Inc. v. Shewry, 543 F.3d 1050 (9th Cir. 2008) ................ :.................................................................................. 19
Joint Council oflntems & Residents v. Bd. of Supervisors, 210 Cal.App.3d 1202(1989) ....................................................................................,..................... 14
Los Angeles County v. Davis, 440 U.S. 625 (1979) .................................................................................................................. 12
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................................................................. 14
Mandrigues v. World Savings Inc., 2009 WL 160213 (N.D. Cal. 2009) ............................................................................................. 9
Mike Moore's 24-Hour Towing v. City of San Diego, 45 Cal.App.4th 1294 (1996) ...................................................................................................... 14
Olmstead v. L.C. ex reI Zimring, 527 U.S. 581 (1999) ............................................................................................................ 16, 18
Parry By and Through Parry v. Crawford, 990 F.Supp. '1250 (D. Nev. 1998)..............................................................................................20
Putz v. Schwarzenegger, 2010 WL 1838717 (N.D.Cal. 2010) .......................................................................................... 23
Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004) ............................................................................................... 10, 11

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 5 of 30
Santa Ana Tustin Community Hospital v. Bd. of Supervisors, 127 Cal.App.3d 644(1982) .............................................................-.................................... 14, 15
Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003) ..................................................................................................... 19
SEC v. Medical Committee for Human Rights, 404 US 403 (1972) .................................................................................................................... 14
Siegel v. Lepore, 234 F.3d 1163 (11 th Cir. 2000) ...................................................................................~ .............22
Simula, Inc. v. Autoliv, Inc., 175 F.3d 716 (9th Cir. 1999) ..................................................................................................... 22
V.L. v. Wagner, 669 F.Supp.2d 1106 (N.D. Cal. 2009) ....................................................................................... 16
Watkins, Inc. v. Lewis, 346 F.3d 841 (8th Cir. 2003) ..................................................................................................... 22
Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006) ................................................................................................... 19
West v. Secretary of Dept. ofTransp., 206 F.3d 920 (9th Cir. 2000) ..................................................................................................... 12
Winter v. Natural Resources Defense Council, Inc., _ U.S. _, 129 S.Ct. 365 (2008) ................................................................................................ 9
STATUTES
42 U.S.C § 1396a(a)(10)(B) .......................................................................................................... 19
42 U.S.C. §1396a(a)(17)........................................................................................................... 19,21
U.S. Const. Article III, §2 .............................................................................................................. 14
REGULATIONS
28 C.F.R. §41.51(d) ....................................................................................................................... 15
42 C.F.R. §440.230(b) ................................................................................................................... 20
42 CFR §440.230(b) ...................................................................................................................... 19
42 CFR §440.240(a) ...................................................................................................................... 19

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 6 of 30
I.
INTRODUCTION Plaintiffs challenge the adequacy of the County's restructured Adult Outpatient Mental Health Services system (System), contending that it will result in the deterioration of consumers' mental health with a resultant increase in consumer institutionalization. The County's restructured System will offer mental health services through Countyoperated clinics and programs rather than through contractor-operated facilities known as Regional Support Teams (RSTs). The overarching failure of Plaintiffs' challenge is that it is premised on a set of erroneous assumptions that have not come to fruition. The County is implementing a System that is different than that alleged in either the unamended Complaint or the Motion for Preliminary Injunction. The requested preliminary injunction requires the Court to leapfrog to a conclusion for which no evidentiary basis exists.
II. STATEMENT OF FACTS A. Previous System Under the previous System, the County provided outpatient mental health services previously through four (4) RSTs and other contractor-operated programs. l The services provided by these RSTS 'were not necessarily provided in the same manner. There were two important areas of differences. First, there were differences in staffing patterns across the RSTs. Second, the staffing differences resulted in differences in how services were delivered. (Zykofsky Decl.) For example, some RSTs gave medication appointments, while others had more drop in appointments. EI Hogar historically did more outreach and in-home services.
I The existing four (4) RST programs are: El Hogar RST, Visions Unlimited RST, Turning Point Northgate Point RST, Human Resource Consultants (HRC) RST. The five (5) additional providers of outpatient services are; HRC T-CORE, Consumer Self Help Wellness Recovery Centers (North & South sites) (WRC), and the County-operated T-CORE Adult Psychiatric Support Services (APSS), and T-CORE APSS Aftercare.
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1 Northgate Point had more involvement of its medical staff in directing services on its

2 multidisciplinary approach. Some RSTs, such as Visions, historically utilized more

3 clinical licensed staff than did HRC, whose staffing was built around consumer employee

4 staff and paraprofessional staff. (Zykofsky Decl.) The RSTs utilized Personal Services

5 Coordinators (PSCs) who were, in some cases, "peers" (consumer employees),

6 unlicensed staff with life experience involving mental health issue, or paraprofessional

7 staff providing direct services based on a variety of work experiences.2 (Zykofsky Decl.)

8

B. County's Hybrid Plan as Adopted by Board of Supervisors

9

The County was facing a $180 million budget shortfall for fiscal year 2010-11, a

10 portion of which was attributable to the Division of Behavioral Health Services (BHS).

11 Accordingly, BHS began looking at re-allocation of limited resources among its mental

12 health programs. (Bennett Decl.)

13

Realignment funds which had historically funded the RSTs were transferred to the

14 inpatient components of the County's mental health system to accommodate shortages

15 and pent-up community demand for inpatient beds. (Bennett, King Decls.) Utilizing

16 revenues from the Mental Health Services Act (MHSA), the County recommended, and

17 the Board of Supervisors approved on June 17,2010, a restructured System. (Bennett 18 Decl.)

19

The use of MHSA funding allowed the County to develop a restructured System

20 that continues the same menu and level of services. (Bennett, Kennedy, King, Zykofsky

21 Decls.) In fiscal year 2009-10, the Adult Mental Health Outpatient program, excluding

22 the Full Service Partnership (FSP) program had budgeted expenditures totaling $18.6

23 million ($8.7 million for RSTs, $2.3 million for WRC, and $7.6 million for 24 APSS/Aftercare and HRC TCORE). In fiscal year 2010-11, the budgeted expenditure~

25 total $15.1 million ($11.3 million for the Sacramento Wellness Centers, $.9 million for 26

27
2 In the Mental Health Plan (MHP), unlicensed staff, whether they are consumer employees or paraprofessionals,
28 work under the direction of licensed staff regarding the delivery of direct mental health service.
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1 WRC, and the $2.9 million in transition funding). Upon approval by the State after a

2 community process, the budgeted amount will include another $2.5 million in additional

3 MHSA funding for HRC TCORE which will make the budgeted amount for 2010-11

4 $17.6 million. It is anticipated that, based on HRC TCORE plan, an additional $1.0

5 million in FFP will be realized for a total 2010-11 budgeted amount of$18.6. This

6 amount is equal to the amount budgeted for 2009-10. (King Decl.)

7

Under the restructured System, four (4) County-operated Sacramento Wellness

8 Centers will replace the four (4) contractor-operated RSTs. In addition, contracted peer

9 services that are both clinic and community-based will be used. Thus, the Board of

10 Supervisors approved a blended system of services (Hybrid Plan). (Zykofsky, Weaver,

11 Kennedy Decls.)

12

Under the Hybrid Plan, the County will provide integrated recovery-focused

13 services at Sacramento Wellness Centers in partnership with the WRC and HRC/TCORE.

14 The Wellness Centers, which are largely funded with MHSA dollars, are designed to

15 comply with the five essential elements of the MHSA: community collaboration, cultural

16 competence, client driven services, wellness focus and integrated services. The Hybrid

17 Plan will offer the same menu and level of services that the County previously offered to

18 these beneficiaries; it will offer the same level that is documented in the consumer's care

19 plan. (Zykofsky Decl.)

20

The Sacramento Wellness Centers are located in facilities that are near the existing

21 RSTs. They will be located at the following sites: 1) 3815 Marconi Avenue;3 2) 3950 22 Research Drive;4 3) 7171 Bowling Drive;5 and 4) 2130/2140 Stockton Boulevard.6 The

23 Sacramento Wellness Centers are located along bus lines or light rail stations. Consumer

24

25 3 The Marconi Avenue site is l.27 miles from HRC. (Weaver Decl.)

26 4 The Research Drive site is 2.15 miles from NGP and 7.46 miles from EI Hogar. (Weaver Decl)

27 5 The Bowling Drive site is .57 miles from Visions-South and 20.03 from Visions-Galt. (Weaver Decl.)

28

6 The Stockton Boulevard site is 5.13 miles from EI Hogar. (Weaver Decl.)

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Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 9 of 30

1 clients of the RSTs will be assigned to a Sacramento Wellness Center that is closest to

2 their residence, but may request an alternative site which will be accommodated if

3 possible. (Weaver Decl.)

4

HRC-TCORE will be co-located at the Wellness Centers and will provide

5 community-based peer support, assessment and rehabilitation services. WRC will

6 provide site-based services at the Wellness Centers, utilizing peer mentors who will 7 provide individual and group supports.7 The HRC-TCORE drop-in services will continue

8 to be offered at the existing Marconi location. The County will co-locate at that site and

9 will bring in a clinical piece to provide a full array of services.

10

The Sacramento Wellness Centers will consist of support teams composed of

11 members of blended County and contractor staff. The teams will consist of both

12 clinicians and peer specialists. The RSTs used both a medical model and a recovery

13 model. The Sacramento Wellness Centers will do the same. (Zykofsky Decl.)

14

The County's System is committed to the recovery model which the County

15 previously required its contractor providers to implement. The Wellness Centers will use

16 a multidisciplinary team approach that includes psychiatrists, nurses, licensed clinical

17 staff, master-level clinical staff, mental health workers and peer support staff. Services

18 will include comprehensive assessment, crisis intervention, service coordination,

19 individual and group services (educational and therapeutic), benefit acquisition,

20 vocational supports, medication support and education, co-occurring substance use/abuse

21 services, peer support services (individual and group), health care linkage, field-based

22 service including in-home assessments and rehabilitation services, community self-help

23 referrals and family interventions and supports. (Weaver, Kennedy, Zykofsky Decls.)

24

There will be a total of 67.6 FTE County employees assigned to the Sacramento

25 Wellness Centers. County staff assigned to the Wellness Centers have language

26

27 7 Under the contractor-operated system, the WRC offered peer-run drop-in support. It also had a medication
component that the County will be assuming under the Hybrid Plan. (Weaver Decl.)
28
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1 capabilities in a number of languages, ranging from Spanish to Tagalog to Hmong.8 Of

2 those, 50.6 FTEs are mental health professionals; 9 the others are administrative staff.

3 (Weaver, Kennedy Decls.) In addition, there will be at least 15 contracted psychiatrists. 10

4 (Kennedy, Weaver, Hales Decls.) The County-staffed component of the Wellness

5 Centers will rely upon licensed and unlicensed Master level mental health professionals,

6 as well as nurses and mental health workers who have worked either at the Adult

7 ACCESS Team, APSS clinic, APSS Aftercare Clinic, children's mental health services

8 and/or SMHTC. They have a wide variety of experience in working with the seriously

9 mentally ill in Sacramento. (Zykofsky Decl.)

10

Staff assigned to the Wellness Centers will also be provided training in a range of

11 areas, including but not limited to MHSA principles and philosophy; Wellness, Recovery

12 and Resiliency; Cultural Competence; Integrated Service Provision; and Documentation

13 standards. II Just as with the rest of the service provider system, Wellness Center staff

14 will receive training to continuously build core skills for direct services staff in all these

15 areas. (Zykofsky Decl.)

16

17

18 8 The County staff assigned to the Wellness Centers has the following language capabilities: French, Spanish,
Trianya, Indian/Pakistan dialects, Tagalog, Cubuano, Philippino dialect, Creole African Dialect, Mandarin,

19

Vietnamese, Taiwanese and Hmong. In addition, the contracted staff working at the Wellness Centers have the following language capabilities: Russian, Spanish, Japanese, Laos, Thai and Hmong. To the extent that there is a

20

language need that is not available from staff, the Wellness Centers will utilize the Assisted Access services, which is what the RSTs currently also utilize. (Zykofsky Decl.)

21

9 Some have worked in the County system and some have worked at the RSTs and/or other community providers

and bring additional experience with adult clients. All have exposure and understanding of mental health issues and
22 challenges. The staff is coming directly from mental health services programs, not from parts of the County in which

their work did not involve any mental health services. They are coming from positions in which treatment has been

23 provided; they have been seeing and serving mentally ill consumers and their families. (Zykofsky Dec\.)

24

10 Sixteen psychiatrists in the community have signed, or are in the process of signing, personal services contracts

with the Comity of Sacramento to provide clinical services at the new Wellness Centers. Three of the four current

25

medical directors at the RSTs will gradually transition their services from the RSTs to the Wellness Centers, with one becoming medical director at the Wellness Center located on Marconi Avenue. The fourth medical director, a

26

psychiatrist-family physician, will be providing both medical and psychiatric services at a new county-operated Federally Qualified Health Center (FQHC). (Hales Dec\.)

27 11 Input was sought and received from community partners in development and delivery of this training. (Zykofsky
Dec\.)
28
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1

There will also be 34 contracted case managers, 12 contracted peer mentors, 5

2 peer partners and a psychologists and Post doctoral contracted. Peer mentors will be

3 providing services at each Sacramento Wellness Center via a contract with HRC/TCORE.

4 There will be 4 peer mentors per site, for a total of 12 peer mentors at three sites. The

5 fourth site will have peer services provided by 5 Peer partners from another contract. The

6 peer mentors will not carry a caseload, but will focus on services designed to strengthen

7 consumer independence and community engagement and connection, such as group

8 therapy. (Kennedy Decl.)

9

There will be four teams per Wellness Center, each team serving between 250-375

10 consumers. This assumes a capacity of 1500 clients per We1.lness Center. 12 The staff to

11 consumer ratio at the Wellness Centers (which consists of nine consolidated programs) 12 will be a range of approximately 1:75 to 1:90. 13 (Weaver Decl.) In contrast, the staffing

13 ratio at the RSTs was 1:70 (if based only on their open active caseloads) or 1:75 (if based

14 on contract requirements). The difference is that the RST staffing ratios do not include

l

I

15 the full gamut of clients who will be served at the Wellness Center and who are included

1
I
I

16 in the County's 1:70 ratio. (Weaver Decl.) The ratios for the RSTs and the Wellness

I

17 Centers are not comparable because they will be comprised of different consumer

I

18 populations.

19

C. County's Transition Plan

i

20

The County's previous contracts with the RSTs expired on June 30, 2010, by their

1-

I

21 own terms. (Bennett Decl.) The County is contracting with the RSTs for a four month

I
I

22 period. In July, funding and services will remain the same as under the previous

I

23

24
12 Unlike the RSTs which had a capacity of 900 (which was not actually fully realized), the capacity of the Wellness

25

Centers include the RST consumers, the consumers using the peer support services ofWRC, the APSS/Aftercare Clinic, and medication-only services. (Weaver Dec!.)

26

13 This staff to consumer ratio is different than that which was identified in the Board of Supervisors staff report

because, since then, the data in the AVATAR system was further refined by both County staff and provider staff.
27 The range of 1:75 to 1:90 reflects serving the maximum number of consumers and assumes that 6,000 is the

maximum capacity. (Weaver Decl.)
28

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1 contracts. Commencing in August, the transition of actual cases will commence.

2 (Bennett Decl.)

3

Approximately 4,116 clients (exclusive of APSSIAftercare Clinic) will be

4 transferred from the RSTs, WRC South, and HRC/TCORE commencing in August 2010.

5 Under the County's transition plan, developed in conjunction with the RSTs

6 approximately 90-110 clients per week will be transferred, with an anticipated

7 completion date of September 30. However, there will be an additional month (October)

8 in which the transition can also occur. These numbers contemplate the transfer of

9 approximately one and a half caseloads per week which will enable a provider to titrate

10 their staffing needs as they have fewer clients to serve weekly. (WeaverDecl.)

11

The RSTs are expected to identify clients with special needs and to describe the

12 special need, such as injectable medications, urgent care needs, housing issues,

13 homebound and similar needs. They are expected to coordinate the client's appointment

14 at the Wellness Center, including phone contact and coordination of the upcoming

15 appointment with County staff. (Weaver, Zykofsky Decls.)

16

In order to ensure that the consumers with the most critical needs are connected to

17 the Wellness Centers, when the County receives the RSTs' list of consumers to be

18 transferred, it will immediately focus on contacting the identified special needs

19 consumers. Appointments will be set up with consumers who are monolingual.

20 Appointments will also be established for those receiving injectables. Phone calls to the

21 consumers will be made to facilitate their transfer to the assigned Wellness Center. 22 (Weaver, Zykofsky Decls.)

23

The County has also developed a communication plan relating to the transition

24 process. County staffwill be available to begin the engagement process at the RSTs

25 beginning in July and has offered to be available on site to meet with consumers and set 26

27

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1 appointments as necessary.14 Letters will also be sent to consumers with follow-up phone

2 calls. In addition, each of the Wellness Centers will have on-going orientation groups

3 throughout the transition period so as to provide clients with an opportunity meet staff

4 and tour the new facility. (Weaver, Kennedy Decls.)

5

ITL

6

SUMMARY OF ARGUMENT

7

Plaintiffs bear a heavy burden, which they fail to meet, on their Motion for

8 Preliminary Injunction. They must show that: (1) they are likely to prevail on the merits,

9 (2) without the injunction, they wi11likely suffer irreparable harm, (3) the balance of the

10 harms favors granting the motion, and (4) the public's interest is served by granting the 11 motion. Guzman v. Shewry, 552 F.3d 941,948 (9th Cir. 2009).

12

Plaintiffs' action must fail in that it is based entirely upon a hypothetical house of

13 cards, i.e. a plan that was never recommended, adopted or implemented by the County.

14 To the contrary, the Board of Supervisors approved the Hybrid Plan which is a blend of

15 County-operated and contractor-operated services.

16

The Hybrid Plan contains all of the elements that Plaintiffs claim are critical to a

17 successful service delivery model. It provides for a transition period, a communication

18 plan, a delivery system that includes both clinical and peer services, and notification to

19 consumers. Most importantly, the Hybrid Plan provides the same menu of services as

20 that provided under the prior contractor-operated model.

21

What it does not provide, is maintenance of a System that perpetuates the

22 provision of services by the same RST providers. However, there is no authority that

23 dictates who is required to provide adult outpatient mental health services in the County.

24 Because Plaintiffs show no chance of success on the merits, the inquiry ends and the

25

26

27
14 As yet, the RSTs have not responded to this proposal. (Kennedy, Zykofsky Decls.)
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1 "injunction should not issue." Arcasmuzi v. Continental Airlines, Inc., 891 F.2d 935, 937 2 (9th Cir. 1987).

3

Plaintiffs' request for injunctive relief is further defective because they have not

4 demonstrated the requisite immediate, threatened injury. Caribbean Marine Services 5 Co., Inc. Vi Aldridge 844 F.2d 668,674 (9th Cir. 1988); Mandrigues v. World Savings Inc.

6 2009 WL 160213 (N.D. Cal. 2009). For an injunction to issue, the threat must be shown

7 by probative evidence. Bell Atlantic Business Systems, Inc. v. Storage Technology Corp.

8 1994 WL 125173 (N.D. Cal. 1994). Conclusory affidavits are insufficient. American 9 Passage Media Corp. v. Cass Communications 950 F.2d 1470, 1473 (9th Cir. 1985).

10

No probative evidence of an immediate, threatened injury has been submitted.

11 Plaintiffs' declarations demonstrate only that consumers fear change. 15 However, such

12 fears are not probative evidence of injury. The litany of "what ifs" articulated by

13 Plaintiffs is speculative and without any basis in reality. There is absolutely no evidence

14 demonstrating that a provider change will lead to an increased probability of

15 institutionalization or any other type of injury. To the contrary, the incidence of adverse

16 incident reports this year is no greater than the previous year. (Zykofsky Decl.)

17

Irreparable injury must be "likely in the absence of the injunction." Winter v.

18. Natural Resources Defense Council, Inc., _ U.S. _, 129 S.Ct. 365, 375 (2008)

19 (emphasis added). The mere "possibility of future injury" is not enough. Garden v. City

20 ofMoreno Valley 687 F.Supp.2d 930, 937 (C.D. Cal. 2009). Fears, insecurities and 21

22

15 This is not the first time that there has been a transition of providers within Sacramento County. From 1991-93,
23 the County went through another major redesign and went from 8-9 adult outpatient providers to 3 contracted RSTs.

At the time, there was substantial fear and concern by consumers about this transfer. At the time, many consumers

24 did not want the transfer to occur, for the· same reasons as are now being expressed: fear and disruption of a working
relationship between the consumer and the treating professional. However, at that time, all providers put client care

25 as their first and foremost obligation and collaborated to make the best transfer of care possible. It did occur.
Similarly, in 1997, as a result of high caseloads, the County needed to create an additional RST. Northgate Point

26

RST was created. The County transferred clients from the other three RSTs to Northgate. Consumers again expressed fears and concern~ and did not want this change. Nevertheless, the change occurred and clients were

27

successfully transferred. Client safety and care were foremost in the mind of both County and provider staff. (Zykofsky Decl.)

28.
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1 loyalty to existing contractor providers do not satisfy that standard. There must be some

2 realistic "threat" or "danger" that the injury will occur.

3

One case in which plaintiffs prevailed on a request for preliminary injunction is

4 illustrative of why Plaintiffs here must fail. In Radde v. Bonta, 357 F.3d 988 (9th Cir.

5 2004), the County of Los Angeles had approved a plan to close the county's Rancho

6 hospital. Id at 992. That hospital was the only hospital in the area that provided an array

7 of unique services to the disabled population of the county. Id at 991-992. The court

8 issued an injunction because the closing of Rancho was imminent and, with its closure,

9 disabled residents of the County would have been left without any services. Id at 993.

10 However, the injunction only barred the County from closing Rancho until it 11 demonstrated that it proposed to provide Rancho's services elsewhere. 16 Id at 994.

12

The facts of the instant case are in stark contrast from those with which the Radde

13 court was confronted. Sacramento County adopted a plan that provides, at County-

14 operated clinics, the same types of services to the same consumer population as were

15 previously provided by the RSTs. There is no closure or reduction of services. There is

16 only a relocation of the consumer population to different (but proximate) locations, with

17 services being provided by a mix of County staff and contracted peer staff, rather than

18 solely by contractor staff. While the composition of the staff providing the services will

19 differ, the restructured clinics will continue to include peer supports as well as many of

20 the psychiatrists that were providing services at the RSTs. (Hales, Weaver, Kennedy

21 Decls.) The array of services will remain the same and will continue to be provided in

22 accordance with the individual needs assessment of the consumer. (Weaver, Zykofsky

23 Decls.)

24

25

16 The court in Harris v. Board a/Supervisors, 366 F.3d 754 (9th Cir. 2004) reached the same conclusion, the only

26

distinction being that the Harris court grappled with a larger approved cut to services. The court found that the County's inability to deliver medical treatment was not speculative based on the actual reduction of services on the

scale proposed. The absence of any alternative facility made it "fairly certain that when plaintiffs do seek those
27 services, they will not be available." Id. at 763. In contrast, the County's Hybrid Plan does not reduce or eliminate

services, but shifts responsibility for the provision of those services to a County-operated system. There is no
28 evidence that the services will be unavailable, reduced or discontinued.

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1

Thus, unlike Rodde, services will continue to be available to the same population

2 as is currently receiving those services at the RSTs. The gist of Plaintiffs' Complaint is

3 not that services are being eliminated, but that they are being provided directly by the

4 County, as opposed to contractors. There is no case authority which requires that mental

5 health services be provided in perpetuity by the same providers at the same location.

6 Distrust of a County-operated system and a desire to maintain relationships with existing

7 providers do not satisfy the requirements for a preliminary injunction. Fear of change is

8 not an adequate basis for injunctive relief. Given the comprehensive nature of the

9 County's transition plan, as well as the comparability of the funding allocated to the

10 Hybrid Plan in comparison to the funding for the RSTs last fiscal year, Plaintiffs' litany

11 of drastic declines in mental health services and increased institutionalization is neither

12 rational nor foreseeable

13

Plaintiffs seek to convince this Court that it should oversee and administer the

14 County's System by dictating what constitutes a proper transition period, who is the best

15 provider of services, what is the best service model for the provision of such services,

. 16 how medical charts should be transferred between providers. These and similar issues

17 are more properly left in the hands of the County, not the Court.

18

IV.

19

PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION SHOULD BE

. DENIED BECAUSE PLAINTIFFS' COMPLAINT IS MOOT

20

Plaintiffs' Complaint and Motion for Preliminary Injunction are based upon a

21

service delivery model that was never implemented by the County. As such, Plaintiffs

22

are asking this Court to rule on a non-existent, unimplemented system. Plaintiffs'

23

Complaint and Motion are moot.

24

Plaintiffs are asking the Court to rule on a proposal that was never recommended,

25

submitted or approved by the Board of Supervisors. Nor have Plaintiffs amended their

26

27

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Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 17 of 30

1 Complaint or their Motion to address the Hybrid Plan. 17 As such, there is no effective

2 relief that can be granted.

3

A federal court has no authority to render opinions upon moot questions. An

4 actual case in controversy must be extant at all stages of review. Arizonansfor Official

5 English v. Arizona, 520 U.S. 43, 67 (1997). A case is moot when the issues presented are

6 no longer "live" or the parties lack a legally cognizable interest in the outcome. Los

7 Angeles County v. Davis, 440 U.S. 625, 631 (1979).

8

The central issue in any mootness challenge is whether changes in the

9 circumstances existing when the action was filed have forestalled any meaningful relief.

10 West v. Secretary ofDept. ofTransp., 206 F.3d 920,925 (9th Cir. 2000). Without

11 meaningful relief, any opinion as to the legality of the challenged action is advisory. City

12 ofErie v. Pap's A.M, 529 U.S. 277,287 (2000). Federal courts have no power to render

13 advisory opinions and should avoid being drawn into disputes that are abstract or

14 hypothetical. Aetna Life Ins. Co. ofHartford, Conn. v. Haworth, 300 U.S. 227, 240

15 (1937).

16

Plaintiffs allege'that the County intends to cut off outpatient mental health services

17 at the RSTs with an unformulated plan of transition. (Complaint, Paras. 1-4, 72)

18 Regardless of the accuracy of that allegation when it was initially made, the proposal on

19 which Plaintiffs have premised their action is no longer on the table. It was never even

20 recommended or submitted to the Board of Supervisors for consideration. Thus,

21 Plaintiffs' Complaint and Motion are based on a non-existent hypothetical proposal.

22

When their preliminary injunction motion was filed, there was no proposal before

23 the Board of Supervisors. In fact, County staff was still assessing several possible

24 alternatives. (Bennett Decl.) Plaintiffs, unwilling to wait until the Board acted on a

25 specific proposal, filed for preliminary injunction before the matter was ripe. , 26

27
17 In fact, the Joint Rule 26(t) Status Report filed by the parties reflects that Plaintiffs do not intend to amend their
28 Complaint.
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1

The staff report recommending the Hybrid Plan that was ultimately approved by

2 the Board of Supervisors contained extensive information and details regarding the

3 locations of the Wellness Centers, services, staff, and timing of clients' transitions from

4 the RSTs to the County-run Wellness Centers. The Board did not adopt an unformulated

5 redesign with an abrupt cut in services. To the contrary, the Hybrid Plan addresses the

6 very issues which Plaintiffs have alleged must be addressed before any redesign should

7 be implemented. Those issues include: continuation of mental health services to

8 consumers, provision of services by peers, accessibility of sites, development of a

9 transition plan and an extended transition period.

10

Because the proposal which is the basis of Plaintiffs' Complaint and Motion has

11 not been adopted or implemented, the Court is being asked to rule on a non-existent,

12 hypothetical situation. The "case and controversy" alleged by Plaintiffs is moot. This

13 Court should not issue an advisory opinion based on a set of non-existent facts.

14 Plaintiffs'Motion should be denied as there is no meaningful relief that can be granted.

15

V.

16 THE COURT LACKS AUTHORITY TO REQUIRE THE COUNTY TO ENTER

17

INTO NEW CONTRACTS WITH THE RSTS

18

Plaintiffs seek to enjoin the County from "terminating or reducing the funding" for

19 the RSTs. However, such relief essentially requires the County to enter into new

20 contracts with the RSTs. The contracts under which the RSTs previously provided

21 services expired on their own terms on June 30,2010. (Bennett Decl.) The Court does

22 not have authority to require the County to execute or renew such contracts.

23

A public entity's award of a contract, and all of the acts leading up to the award, are

24 legislative in character. Santa Ana Tustin Community Hospital v. Bd. a/Supervisors 127

25 Cal.App.3d 644,652 (1982). The ultimate question of whether to contract with a particula

26 provider for particular services and the amount payable therefore is a purely political one

27 and is shaped by discretion and public policy. The determination to award a contract to a

28 particular contractor involves interdependent political, social and economic judgments.
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1 Therefore, the approval of the contracts is inherently legislative in character. Id.

2

Even was this Court to conclude that the County's Hybrid Plan is unlawful, such a

3 determination does not necessarily require the County to maintain a contractual

4 relationship with the RSTs once that relationship has been terminated. The decision as to

5 whether arid with whom to contract for outpatient services rests exclusively within the

6 purview of the Board of Supervisors. Legislative discretion is, absent special

7 circumstances, not subject to judicial control and supervision. Mike Moore's 24-Hour

8 Towing v. City o/San Diego 45 Cal.App.4th 1294, 1305 (1996); Joint Council o/Interns .

9 & Residents v. Bd. o/Supervisors 210 Cal.App.3d 1202, 1213-1214 (1989). For that

10 reason, this Court lacks authority to mandate legislative action such as the execution of

11 new contracts with specific providers.

12

VI.

13

PLAINTIFFS HAVE FAILED TO RAISE A JUSTICABLE ISSUE.

14

A federal court may not consider matters where a plaintiff lacks standing to pursue

15 the matter. U.S. Const. Article III,§2. For standing to exist, there must bean actual case

16 in controversy. SEC v. Medical Committee/or Human Rights 404 US 403, 407 (1972).

17 Plaintiffs have failed to satisfy the three part test set forth by the Supreme Court in Lujan

18 v. De/enders o/Wildlife, 504 U.S. 555, 560-61 (1992). Under that test, 1) a plaintiff must

19 have suffered an "injury in fact," i.e. an injury that is "(a) concrete and particularized and

20 (b) actual and imminent, not conjectural or hypothetical;" 2) there must be a causal

21 connection between the injury and the complained of conduct; and 3) it is "likely" and

22 not merely "speculative" that a favorable ruling will address the injury. Id. A plaintiff

23 has the burden of proof and must satisfy each of the three parts of the above described

24 test. Id.

25

Plaintiffs do not satisfy the first prong of this test. Consequently, they cannot

26 demonstrate that they meet the second and third prongs of the test. Plaintiffs' failure

27 stems from the undeniable fact that their entire Complaint is based on a series of events,

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1 speculation and assumptions that pre-date submission of any proposal to the Board of

2 Supervisors, let alone the approval of the Hybrid Plan. Plaintiffs' declarations, whether

3 by the named Plaintiffs, other consumers or their "experts," are premised on a non4 existent, unadopted and unimplemented proposal. 18 Plaintiffs have failed not only to

5 address what the Board of Supervisors actually approved, but to demonstrate that they

6 have had, or will have, any actual injury caused by the Hybrid Plan. Because Plaintiffs'

7 Complaint and Motion are based on a future event that never materialized, they have

8 failed to establish Article III standing.

9

VII.

10

PLAINTIFFS CANNOT SUCCEED ON THE MERITS BECAUSE

THE HYBRID PLAN IS LEGAL 11

12

Plaintiffs have no chance of success on the merits of their claims. The Hybrid

13 Plan is not legally deficient, nor does it suffer from any of the alleged deficiencies of the

14 unrecommended, unad9pted and unimplemented proposal referenced in Plaintiffs'

15 Complaint and Motion. The Hybrid Plan continues the same menu of services and the

16 same service levels that were previously provided by the RSTs. The primary difference

17 is that the services are provided at different locations and by different providers.

18

A. The Hybrid Plan Does Not Violate the ADA's Integration Mandate

19

The ADA's "integration mandate" is the crux of Plaintiffs' case. Under the

20 integration mandate, a public entity is required to administer services, programs and

21 activities in the most integrated setting appropriate to the needs of qualified individuals

22 with disabilities. 28 C.F.R. §41.51 (d). The unjustified isolation of persons with

23 disabilities is a form of discrimination prohibited under the ADA and Section 504 of the

24

25

26

18 Following approval of the Hybrid Plan, Plaintiffs submitted three (3) declarations. The declaration by their

27

"expert" (Beth Stoneking) primarily disputes the use of clinical as opposed to peer staff in a recovery model. However, the appropriate composition of clinical and peer staff, as well as the treatment modality implemented, is

hardly an actionable matter.
28

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1 Rehabilitation Act. 19 Olmsteadv. L.e. ex reI Zimring 527 U.S. 581,597 (1999). The

2 Olmstead court disavowed any intent to hold that the ADA imposes either a particular

3 standard of care or a requirement that disabled persons be provided a particular level of 4 benefits. Id. at 603~ n. 14.

5

Plaintiffs' primary argument is that the shift in providers and provider sites will

6 cause consumers to decompensate because there will be a break in services. Complaint,

7 Para.84. This argument has the same flaws as the rest of Plaintiffs' claims: it is

8 speculative and unsubstantiated by any credible facts. As with all of Plaintiffs'

9 assertions, this has no factual predicate and is pure speculation. Plaintiffs'

10 unsubstantiated fears and assertions are based on a proposal that was never recommended

11 to, or approved by, the Board of Supervisors. The "transition plan" alleged in the

12 Complaint does not accurately reflect the plan actually adopted.

13

No factual predicate exists for Plaintiffs' proposition. Plaintiffs have not shown

14 any nexus between the Hybrid Plan and the potential for institutionalization. The

15 declarations submitted by Plaintiffs demonstrate only fear of change, not a real or

16 imminent risk of institutionalization.

17

Courts have previously held that when a state entirely eliminates certain essential

18 services to the continued health of disabled individuals, those individuals are at a severely
19 increased risk for institutionalization. v.L. v. Wagner, 669 F.Supp.2d 1106, 1119-1120

20

21

22

23

24

25

26

27

19 In view of the similarity between the relevant provisions of the ADA and Section 504 of the Rehabilitation Act,

courts construe and apply them in a consistent manner. Frederick Lv. Dept. ofPublic Welfare ofPenn,. 364 F.3d
28 487,491 (3d Cir. 2004).

-16-

MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 22 of 30

1 (N.D. Cal. 2009).20 However, unlike the situation in Wagner, the County is not cutting

2 off services and leaving Plaintiffs to hang in the wind without the supportive services that

3 allow them to function within the community.

4

To the contrary, those services will continue to be offered. Plaintiffs will merely

5 receive those services at another location and from another provider. With the assistance

6 of the RSTs, consumers will be transitioned over three months to the Wellness Centers.

7 (Weaver, Kennedy, Zykofsky Decls.)

8

The provision of the same menu of mental health services by a new provider does

9 not, and cannot, realistically violate the integration mandate. Nothing in the integration

10 mandate requires that services be provided in perpetuity by the same provider or in the

11 same manner. To hold otherwise would mean that a service delivery system could never

12 be modified or changed.

13

Plaintiffs contend that the County's transition period is legally deficient.21

14 However, the County has devo,ted substantial time and effort to the transition plan.

15 (Weaver, Kennedy Decls.) It has been engaged in a lengthy planning process both prior

16 to submittal of a recommendation to the Board of Supervisors and after the approval of

17 the Hybrid Plan. Planning began in March 2010. Focus Groups were conducted with the

18 mental health community and the RSTs. (Weaver Decl.) As the availability of funding

19 sources was clarified, the County modified its plan. Finally, in conjunction with the

20

21

20 In Wagner, recipients ofin-home care under the California In-Home Supportive Services (lHSS) program

22 challenged cuts in eligibility for program benefits as violative of the disability statutes on the basis that it would

expose them to potential institutionalization. Id at 1009; In an effort to address a fiscal crisis, the State cut critical

23 in-home support services for over 100,000 disabled and elderly individuals. Id at 1111. The plaintiffs presented

substantial evidence that the cuts would cause the mentally disabled receiving IHSS services to lose the assistance to

24 remind them to take medication and to attend medical appointments, and as well as the assistance to perform
essential tasks to continue their independent living; placing those individuals in serious risk of being forced to move

25

out of their homes and to the less integrated setting of institution. Id at 1119, 1120. The defendants argued that family members or other community support services could be found in order to fill the gaps left by the reduction in

26

the IHSS program. !d. at 1120. The court found that the complete termination of services violated the integration mandate, because it exposed those no longer receiving services to a serious risk of institutionalization. Id

21 Plaintiffs never bother to explain to the Court how to calculate such a time period. Does it start the moment a plan
27 is developed? Has the transition period begun the moment a new site is selected? Or does it only begin when the

first patient is transferred? Plaintiffs give no answer to these questions. Therefore, it is impossible to give much
28 consideration or credence to the arbitrary "six month" period described by the Plaintiffs experts.

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MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 23 of 30

1 2010-11 budget, the Board of Supervisors approved the recommended Hybrid Plan.

2

An implementation period was built into the Hybrid Plan. The RSTs would

3 continue to operate at the same levels in July, but in the subsequent three months, there

4 would be a phased transition of clients to the Wellness Centers. The reality is that, for

5 plaintiffs, no transition period would be adequate. What Plaintiffs really want is to

6 maintain the existing system in perpetuity. The length of any transition period is a

7 uniquely administrative decision in which this Court should not intervene unless, of

8 course, it wants to become the arbiter of all administrative and managerial decisions

9 relating to the new System.

10

Federal law does not require that a service delivery system remain static merely

11 because consumers are fearful of change or will be unable to see the same provider. A

12 similar complaint was rejected in Cerpac v. Health and Hospitals Corp., 147 F.3d 165,

13 168 (2nd Cir. 1998). In that case, parents of developmentally disabled children

14 challenged the closing of a specialized facility where the bulk of services provided at (he

15 closed facility were to be provided at a new location which was one mile away.

16

That is precisely what is happening under the Hybrid Plan. The County is

17 providing services at a different location and by a different provider. Its Hybrid Plan

18 enables meaningful access to services that were previously provided by the RSTs. Are its

19 service providers identical? No. Do they provide the same range and menu of services?

20 Yes. As the Cerpac court stated, citing Alexander v. Choate 469 U.S. 387 (1985), the

21 disability statutes neither guarantee any particular level of medical care for disabled

22 persons, nor assure maintenance of services previously provided. To the contrary, there

23 must be sufficient leeway for the public entity to "maintain a range of services and to

24 administer services with an even hand." Olmstead v. Zimring, supra, 527 US at 605.

25

That is what the County is doing under the Hybrid Plan. This Court should

26 decline to second guess what would be the most effective system. It should defer to the

27 judgment of those with the requisite knowledge and expertise to design a mental health

28 system of care.
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Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 24 of 30

1

B. Plaintiffs Have Not Established That They Are Likely To Succeed On

2

The Merits Of Their Medicaid Claims.

3

Relying upon the Supremacy Clause, Plaintiffs assert that they have standing to

4 challenge specified alleged violations of the Medicaid statues and regulations.22 The

5 issue of standing is not so easily dismissed as the afterthought that Plaintiffs seem to give

6 it. Even assuming that the Court finds that there is a "case in controversy," Plaintiffs still

7 must establish that the specific statutes and regulations upon which their claims are based

8 confer standing. No such private right of action exists.

9

No private right of action exists to enforce the Medicaid provision that requires the

10 state plan to include reasonable standards, i.e. Plaintiffs' Fifth Claim for Relief. Watson 11 v. Weeks, 436 F.3d 1152 (9th Cir. 2006). Similarly, to the extent Plaintiffs Third and

12 Fourth Claims for Relief are premised upon Medicaid regulations, those regulations do

13 not independently create enforcement rights. See e.g. Save Our Valley v. Sound Transit,
14 335 F.3d 932 (9th Cir. 2003).

15

Plaintiffs assert that by virtue of the ruling in Independent Living Center of

16 Southern California, Inc. v. Shewry, 543 F.3d 1050 (9th Cir. 2008), all Medicaid

17 provisions are enforceable directly under the Supremacy Clause. 23 However, Plaintiffs

18 are wrong. Independent Living stands for the proposition that an individual has a private

19 right of action to challenge "state legislation" that is preempted by federal law. Id at

20 1065. The state defendant in Independent Living had passed legislation that directly

21 impacted Medicaid payments to providers. Id at 1053.

22

23 22 Specifically Plaintiffs have alleged violations of 42 CFR §§440.230(b), 440.240(a), (b)(1) and 42 USC §§
1396a(a)(10)(B) and (a)(17).
24

25

23 Independent Living was wrongly decided because it conflicts with numerous precedents set by the Supreme Court,

including Gonzaga v. Doe, 536 U.S. 273 (2002), and because the Supremacy Clause does not in and of itself create

26

any substantive right. See Dennis v. Higgins 498 U.S. 439, 450 (1991): Golden State Transit Corp. v. City ofLos Angeles, 493 U.S. 103, 107 (1989); Chapman v. Houston Welfare rights Org, 441 U.S. 600, 615 (1979). The County

27

realizes that this Court cannot overrule the Ninth Circuit's decision in Independent Living, however, the County raises this issue to preser;ve it if later appellate proceedings are necessary.

28 -19-

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Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 25 of 30

1

However, the case at bar is not a preemption case, so any standing under the

2 Supremacy Clause is inapposite. Plaintiffs do not point to any state or local law that

3 conflicts with any of those provisions and which should be preempted. To the contrary,

4 Plaintiffs seek to directly enforce substantive rights under the Medicaid statutes and

5 regulations.

6

The County has not enacted legislation potentially conflicting with

7 MedicaidlMedi-Cal statutes. It has simply changed its service delivery mode. Neither

8 the types of services provided, nor the population served has been altered. A change in

9 service providers does not trigger preemption under the Supremacy Clause.

10

Assuming arguendo that Plaintiffs do have a private cause of action, they have

11 still failed to demonstrate a likelihood of success on the merits of their Medicaid claims.

12 They have not provided any evidence that the Hybrid Plan will be insufficient "in

13 amount, duration or scope to achieve [the Medicaid Act's] purpose." 42 C.F.R.

14 §440.230(b).

15

The Medicaid statutes and regulations do not dictate any particular level of service

16 that is sufficient in "amount, duration and scope" to meet the purposes of the Medicaid

17 program. The Medicaid Act gives substantial discretion to choose the proper mix of

18 benefits, as long as care and services are provided in the best interests of recipients.

19 Alexandery. Choate, supra, 469 U.S. 287; see also Parry By and Through Parry v.

20 Crawford,990 F.Supp. 1250, 1257 (D. Nev. 1998). To hold otherwise would mean that

21 coverage is unlimited. Budgeting would be by blank check.

22

Under the Hybrid Plan, the County will continue to offer the same menu and level

23 of services that were provided in the prior year by the RSTs. (Zykofsky Decl.) It will

24 continue to provide the same level that is required in the County's MHP contract and the

25 same level that is documented in consumers' care plans. (Zykofsky Decl.) More()ver,

26 those services will now be provided with trained clinical staff supported by contractor

27 psychiatrists and peers. What was legally adequate in 2009-10 does not become legally

28 inadequate in 2010-11 merely by changing locations or services providers.
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MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 26 of 30

1

Plaintiffs have not submitted any evidence demonstrating that services provided

2 under the Hybrid Plan are less than, or not comparable to, those provided in other

3 counties. All Plaintiffs give the Court is a baseless assertion that the County fails. They

4 do so without a single declaration that details the provision of services in any of the other

5 57 counties in the state. The only evidence before the Court on this point is that

6 submitted by Defendants. That evidence shows that the County is comparable with other

7 counties and is, therefore, in compliance with federal statues and regulations. (Zykofsky 8 Decl.)

9

Plaintiffs similarly fail on their last Medicaid claim, i.e. their claim that the County

10 has not used any reasonable standard to make the redesign. Again, they are wrong. It is

11 undeniable that the impetus for the redesign was the unprecedented budget shortfall with

12 which the County was faced this year, including the decrease in realignment funds that

13 were historically used to fund the RSTs. (Bennett Decl.) The County devised this

14 redesign to accommodate the need to use realignment resources in other capacities.

15 (Bennett Decl.) As noted above, this redesign accomplishes these goals without

16 sacrificing service to any of the mental health consumers. Therefore, the County is in

17 compliance with 42 U.S.C. §1396a(a)(17) because the County has utilized "reasonable 18 standards" to make this change.

19

C. The County Has Not Violated Plaintiffs' Due Process Rights

20

\
Plaintiffs layout the case law regarding due process and Medicaid benefits. What

21 they fail to explain, or provide evidence of, is how the County has violated that body of

22 law. Plaintiffs' assertion that the system redesign will necessarily lead to reductions and

23 elimination of services is supported only by speculation. The facts are that the County is

24 providing the same menu of services to consumers as under the contractor-operated

25 system. (Weaver, Kennedy, Zykofsky Decls.)

26

The Hybrid Plan does not affect entitlement to levels of services or benefits that

27 might otherwise trigger the due process requirements. There is no adverse action; no

28

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Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 27 of 30

1 reduction or modification of benefits or services to individual consumers. Therefore, due

2 process notices of reduction are not triggered.

3

Certainly, consumers of County mental health services have a need to be notified

4 of where they will be receiving services in the future. The County has, and will continue,

5 to provide such notice. (Bennett Decl.) However, the mere fact that a provider or service

6 location has been changed does not trigger Medicaid due process rights. Plaintiffs have

7 provided no authority to contradict this position because no such authority exists.

8

VIII.

9

PLAINTIFFS HAVE FAILED TO ESTABLISH A THREAT

OF IRREPARABLE INJURY

10

11

Plaintiffs assert they will be denied medically necessary, outpatient mental health

12 services. However, such assertions are based upon mere conjecture as to hypothetical

13 injuries that might possibly occur under a proposal that was never finalized,

14 recommended, submitted or adopted. Plaintiffs do not address how the Hybrid Plan

15 denies them outpatient services.

16

A preliminary injunction may only be granted when the moving party has

17 demonstrated a significant threat of irreparable injury. Simula, Inc. v. Autoliv, Inc., 175

18 F.3d 716, 725 (9th Cir. 1999). Even if Plaintiffs establish a likelihood of success on the

19 merits, the absence of a substantial likelihood of irreparable injury, standing alone, makes

20 preliminary injunctive relief improper. Siegel v. Lepore, 234 F.3d 1163, 1176 (1Ith Cir.

21 2000); Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). Abstract or

22 hypothetical injury is not enough; Plaintiffs mush show that they "[have] sustained or

23 [are] immediately in danger of sustaining some direct injury." City ofLos Angeles v.

24 Lyons, 461 U.S. 95, 101-102 (1983).

25

Plaintiffs have filed numerous declarations, the majority of which assert the fears

26

27

28
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MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 28 of 30

1 and concerns of mental health consumers relating to an unadopted proposed redesign.24

2 All of those declarations make conclusory statements that Plaintiffs will be denied

3 necessary services. However, fear of change, without more, does not constitute a

4 showing of irreparable injury. See e.g. Putz v. Schwarzenegger 2010 WL 1838717

5 (N.D.Cal. 2010).

6

Plaintiffs also rely on the declaration of "experts" who base their opinions on

7 erroneous and factually inaccurate information. For example, Plaintiffs' expert (Dr.

8 Michael Franczak) concludes that irreparable harm will occur "without providing

9 adequate replacement services and transition to those services." (Franczak Decl., Para.

10 10.) This conclusion is erroneously based on an assumption that the County's System

11 cuts off funding to the RSTs and the TCORE program entirely, that new County-operated

12 clinics will open on July 1,2010, and that the transition will be complete by October 1,

13 2010. (Franczak Decl., Para. 9.) No part of his declaration is apparently based on the

14 Hybrid Plan. In fact, he fails to render any opinion at all on the Hybrid Plan. His

15 conclusions are not grounded in the reality of the situation. Accordingly, his conclusions

16 regarding the harm that Plaintiffs will experience are conjecture and hypothetical- bases

17 which cannot establish the requisite irreparable injury.

18

Based on the realities of the Hybrid Rlan, rather than the hypothetical proposal

19 alleged in the Complaint, Plaintiffs do not face any real or immediate harm by the Hybrid

20 Plan's implementation. As such, Plaintiffs' Motion should be denied for failure to

21 establish any harm other than abstract injury.

22

23

24

25 24 Only four of the declarations were submitted following adoption of the Hybrid Plan. As stated in the Defendants'

Evidentiary Objections, all suffer from serious deficiencies. Of the four, only Stoneking's declaration purports to

26 express an "expert" opinion. However, that declaration merely disputes the characterization of the service modality

of the Hybrid Model (recovery versus clinical), the propriety of the staffing composition between clinical staff and

27 peers, and the. basis for appropriate budgeting for the RSTs during the transition period. These are all operational

issues. Nothing in the ADA or Medicaid statutes and regulations require that services be provided under any

28

particular type of treatment modality or with any particular staffing composition. The method chosen to reimburse
contractors is also a purely administrative determination.:.23 _

MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 29 of 30

1

IX.

2

THE BALANCE OF HARDSHIPS FAVORS THE COUNTY AND

THE PUBLIC INTEREST IS BEST SERVED BY DENYING THE MOTION FOR

3

PRELIMINARY INJUNCTION

4 Plaintiffs argue that the hardships endured by them are greater than any hardship
5 experienced by the County if the contractor-operated model were reinstated. This claim
6 ignores the fact that services provided to Plaintiffs are not being reduced or eliminated.
7 The reality is that the only "harm" that Plaintiffs will suffer is the continued receipt of
8 s'ervices at a different location by a different provider. In stark contrast, reinstatement of
9 the contractor-operated model will result in substantial hardship to other constituent
10 populations of the County. The County will have to reduce other programs or services in
11 order to fund the RSTs, thereby resulting in reductions to other vital and mandated
12
programs and services. (Burkart Decl.) 13
Mental health services are only one of many programs that the County must 14
provide. Other programs include medical services to the medically indigent, law 15
enforcement services, supervision of probationers, child protective services, adult and 16
dependent adult abuse services, coroner services, park services to the American River 17
Parkway and aid payments to welfare recipients. 18
An injunction that prohibits the County from implementing the Hybrid Plan 19
triggers a domino effect. It would require the County to fund RSTs at the expense of
20
other vital services. (Burkart Decl.) Reductions to any of those programs negatively 21
impact core services that are provided to County residents as a whole, leaving the
22
widespread impact of those cuts to affect all the residents of the County. It is not County 23
government that would be adversely impacted, but the recipients of governmental 24
servIces. 25
What Plaintiffs essentially ask this Court to do is to interfere with the reasoned
26
judgment of the Board of Supervisors. However, the budgetary process entails a complex 27
balancing of public needs in many and varied areas with finite financial resources 28
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MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Case 2:10-cv-01119-JAM-EFB Document 82 Filed 07/07/10 Page 30 of 30

1 available for distribution among those demands. It involves interdependent political,

2 social, and economic judgments which cannot be examined in a vacuum without

3 considering the potential impact to other services the County provides.

4

Under the "separation of powers" principle, a court generally should not interfere

5 in the budgetary process. County ofButte v. Superior Court ofButte County, 176

6 Cal.AppJd 693,698 (1985). Courts have long held that "legislative bodies have broad

7 scope to experiment with economic problems" and absent decisions running afoul of

8 constitutional prohibitions or law, may manage their economic resources as they deem

9 appropriate. Ferguson v. Skrupa, 372 U.S. 726, 729-730 (1962).

10

To maintain the RST model and funding as it has traditionally operated would

11 create undue hardship on the County. Such hardship which will impact every County

12 resident outweighs the fears of Plaintiffs as they transition from the RSTs to the Wellness

13 Centers.

14

X.

15

CONCLUSION

16

For all the reasons previously stated, Plaintiffs' Motion for Preliminary Injunction

17 should be denied in its entirety.

18
DATED:July 7, 2010 19

ROBERT A. RYAN, JR., County Counsel Sacramento County, California

20 21

BY:~~

'MICHELEBACH

22

Supervising Deputy

23
I

I

24

!

I

25

I

26

w:\litigate\dhhs\20! O\leslie napper-!28.! Oa\pioppositionmparev2.doc

27

28 -25-

MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

 
 Case 2:10-cv-01119-JAM-EFB Document 83 Filed 07/07/10 Page 1 of 7

1 ROBERT A. RYAN, JR., County Counsel MICHELE BACH, Deputy County Counsel
2 [State Bar No. 88948] RICK HEYER, Deputy
3 [State Bar No. 216150] JUNE POWELLS-MAYS, Deputy
4 [State Bar No. 188423] COUNTY OF SACRAMENTO
5 700 H Street, Suite 2650 Sacramento, CA 95814
6 Telephone: (916) 874-5540 Facsimile: (916) 874-8207
7 E-mail: bachm@saccounty.net File No.: 128.10A
8
Attorneys for County of Sacramento
9

10

IN THE UNITED STATES DISTRICT COURT FOR

11

FOR THE EASTERN DISTRICT OF CALIFORNIA

12 LESLIE NAPPER, et aI.,

13

Plaintiffs,

Case No. 2:10-CV-01119-JAM-EFB

14 vs.

15 COUNTY OF SACRAMENTO, et aI.,

16

Defendants.

17

18

MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
Date: July 21, 2010 Time: 9:30 am Place: Courtroom 6, 14th Floor Judge; Hon. John A. Mendez

19

20

I.

21

INTRODUCTION

22

Plaintiffs seek to certify a class consisting of "all current and future recipients of

23 MediCal funded mental health services in the County of Sacramento;" 2) approval of the

24 five named Plaintiffs as class representatives; and 3) appointment of Plaintiffs' counsel to

25 serve as class counsel. However, Plaintiffs' request for class certification is unnecessary.

26

If the Court ultimately determines that the County's redesign of the Adult

27 Outpatient Mental Health Services system is unlawful, a single injunction, issued on

28

MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:10-cv-01119-JAM-EFB Document 83 Filed 07/07/10 Page 2 of 7

1 behalf of the individual Plaintiffs, will have the same impact on the County's system as it

2 would have in a class action or 100 lawsuits - namely, it will stop the implementation of

3 the County's new system. Additionally, Plaintiffs motion for class certification is

4 premature pending a decision on the merits of the case. Finally, Plaintiffs' proposed class

5 definition is overbroad and overinclusive so that any success will have no impact or

6 effect on many individuals described by the class. As such, this Court should deny

7 Plaintiffs' request to certify the requested class action.

8

II.

9

STATEMENT OF FACTS

10

In the interest of brevity, Defendants refer the Court to the Statement of Facts .

11 outlined in Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction.

12 Defendants assert, and incorporate herein, all of the arguments made in such Opposition.

13

III.

14

ARGUMENT

15

A. Class Certification Is Unnecessary

16

Courts have found that the justifications for or objectives of class actions are: (1)

17 judicial economy and efficiency; (2) protection of defendants from inconsistent

18 obligations; (3) protection of the interests of the absentees; (4) access to judicial relief for

19 small claimants; and (5) enhanced means for private attorney general suits to enforce

us. 20 laws and deter wrongdoing. See,

Parole Commission v. Geraghty, 445 U.S. 388,

21 402 (1980); Deposit Guaranty Nat. Bank, Jackson, Miss. V. Roper, 445 U.S. 326,339

22 (1980); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975); 3

23 Newberg on Class Actions § 1:6 (4th ed.) The historical objective behind class actions

24 has been to advance the efficiency and economy of litigation. General Telephone Co. of

25 Southwest v. Falcon, 457 U.S. 147, 159 (1982).

26

A class action in the case at bar does not advance any of the objectives articulated

27 above. Because Plaintiffs seek declaratory and injunctive relief preventing

28

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MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:10-cv-01119-JAM-EFB Document 83 Filed 07/07/10 Page 3 of 7

1 implementation of the County's redesigned Adult Outpatient Mental Health Services

2 system (Hybrid Model) as a whole, any success on behalf of the named individual

3 Plaintiffs will necessarily have system-wide effect for all consumers receiving services in

4 the outpatient system. Any success by the named Plaintiffs will have the exact same

5 effect, regardless of whether the suit was brought by a single individual or as a class

6 action, or by hundreds of individuals.

7

For this reason, the certification of a class is unnecessary. Judicial economy will

8 not be served any better if relief is issued on behalf of a class, rather than individual

9 plaintiffs. Moreover, because any success by the named Plaintiffs will result in a system-

10 wide impact for all consumers of outpatient mental health services, Defendants will also

11 not be subjected to inconsistent obligations to those receiving services. Potential

12 plaintiffs who are absent from the lawsuit will not suffer any loss of protection. Plaintiffs

13 do not seek damages as a remedy, so access to judicial relief for small claimants is not

14 applicable to the case at bar. Finally, a .class action does not create any greater means for

15 a general suit to enforce the law - the success of one plaintiff will cause the County to

16 equally enforce the law as it applies to the provision of MediCal services for all

17 beneficiaries receiving outpatient mental health services.

18

B. Plaintiffs' Request For Class Certification Is Premature

19

Rule 23(c) requires a class ruling "as soon as practicable" after the commencement

20 of an action. F.R.C.P. 23(c). This requirement ensures that the rights of absent class

21 members will be protected, and correspondingly that such members will be bound by any

22 final judgment, in an action that was properly certified. As such, the certification of a

23 class should occur before a decision on the merits is reached. However, in order for the

24 court to determine whether certification of the class, as defined, is appropriate, parties

25 should be given an opportunity to pursue discovery to determine whether the

26 prerequisites of Rule 23 are satisfied. Philip Morris Inc. v. Nat'l Asbestos Workers Med.

27 Fund, 214F.3d 132, 135 (2d Cir. 2000); Sirota v. Solitron Devices, Inc. 673 F.2d 566,

28 -3-

MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:10-cv-01119-JAM-EFB Document 83 Filed 07/07/10 Page 4 of 7

1 571 (2nd Cir. 1982).

2

Without the benefit of a productive discovery process to determine the extent of

3 Plaintiffs' claims, especially those relating to the existence of irreparable harm, any

4 determination by the Court that the requirements of Rule 23 have been met is premature.

5

C. Plaintiffs' Proposed Definition of the Class is Overbroad

6

Assuming, arguendo, that the Court finds class certification and timing is

7 appropriate, Plaintiffs' proposed class ("all current and future recipients of MediCal

8 funded mental health services in the County of Sacramento") is overbroad. That

9 definition has the effect of including individuals who are not using or never will use

10 outpatient mental health services provided by Sacramento County.

11

The gist of Plaintiffs' Complaint is that the County's transition from a contractor-

12 operated to a County-operated adult mental health system violates a litany of federal laws
13

and regulations. The restructured service delivery system is the Adult Outpatient Mental 14

15 Health Services system, not any other portion of the County's Mental Health.Services

16 system.

17

However, Plaintiffs' proposed class reaches and sweeps in all Medi-Cal recipients,

18 both current and future, who receive services in the County's Mental Health Services

19 system. The proposed class includes recipients of services who are minors, as well as

20 recipients who never enter the outpatient system. In fact, as demonstrated by the

21 Declaration of Dorian Kitrell in Opposition to the Motion for Preliminary Injunction,

22 approximately 46.2% of all inpatient clients are not linked to contracted outpatient

23 services and providers. In addition, the Hybrid Model did not impact recipients of

24 services from the County's Full Service Partnerships (FSPs), but under the proposed

25 class, those consumers would be included within the class definition. Thus, the class is

26 overbroad because it sweeps in recipients who will not at any time be impacted by the

27 challenged restructure of the Adult Outpatient Mental Health Services system.

28

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MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:10-cv-01119-JAM-EFB Document 83 Filed 07/07/10 Page 5 of 7

1

The overinclusive nature of Plaintiffs' proposed class fails to satisfy the

2 "commonality" prerequisite of class certification. Plaintiffs' contend that the County's

3 Wellness Centers will not treat the same number of clients and will not provide the same

4 level of services as the contractor system; they further challenge the adequacy of the

5 transition plan to a County-operated system. However, those questions of fact are not

6 common to the proposed class.

7

The number of clients, level of services, and transition to a new provider are only

8 relevant issues for those MediCal beneficiaries currently receiving outpatient services

9 through the RST model, not to those beneficiaries who receive mental health services

10 through another program or model. The purported common issues of fact are not an issue

11 for those who, for instance, are minors, adults who require a higher level of mental health

12 services than the RSTs provide, or in another system such as the FSPs.

13

Likewise, Plaintiffs' essential questions of law - whether the Hybrid Plan violates

14 the American's With Disabilities Act, Section 504 of the Rehabilitation Act, California

15 Government Code § 11135, the Medicaid Act, and Plaintiffs' due process rights - are

16 irrelevant to a number of MediCal recipients of mental health services under the

17 Plaintiffs' proposed class. Assuming arguendo that the Plaintiffs can prove that the

18 County's Hybrid Plan is unlawful, the violation causes no injury to individuals who do

19 not receive outpatient mental health services under the contractor-operated model. As a

20 result, no relief to those plaintiffs need be granted because there was no injury-in-fact.

21

D. The Named Plaintiffs Do Not Adequately Represent the Class

22

A plaintiff seeking to maintain a class action must be a member of the class that he

23 claims to represent. General Tel. Co. ofSouthwest v. Falcon, supra, 457 U.S. at 156. In

24 addition, the named plaintiffs must also allege and show that "they personally have been

25 injured" or will suffer injury. Lieboe v. State Farm Mut. Auto. Ins. Ca., 350 F.3d 1018,

26 1022 (9th Cir. 2003) [without a valid claim, plaintiffs lack of standing and class action

27 must be dismissed].

28 -5-

MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:10-cv-01119-JAM-EFB Document 83 Filed 07/07/10 Page 6 of 7

1

If a plaintiff fails to establish standing, he may not seek relief on behalf of himself

2 or any other member of the class. Nelson v. King Co. 895 F.2d 1248, 1250 (9th Cir.
3 1990), quoting O'Shea v. Littleton 414 U.S. 488, 494 (1974). Standing must exist prior
4 to class certification. Lee v. Orego 107 F.3d 1382, 1390 (9th Cir.l997), cert den. 522 U.S.
5 6 927. Individual standing requirements constitute a threshold issue.

7

As argued extensively in their Opposition to the Motion for Preliminary

8 Injunction, Defendants contend that the named Plaintiffs have not suffered, nor are at
9 imminent risk of suffering, harm by virtue of implementation of the Hybrid Model.
10 ! Plaintiffs only express abstract fears and anxiety regarding the redesign. However, such
11 12 fears and anxiety do not suffice to meet the requirement that representative plaintiffs

13 must show that they personally have been injured or are at substantial risk of injury. No

14 such injury or risk of injury has been shown. No evidence of a credible threat of injury

15 has been established. They assert only speculative contingencies, based on a hypothetical
16 and unadopted system redesign. Therefore, the named plaintiffs lack standing and are
17
18 inadequate to represent any class.

19

E. Certification of the Class under Rule 23(b)(2) Is Not Warranted

20

A class action is proper under Rule 23(b)(2) only where the party against whom

21 relief is sought has acted, or refused to act, on grounds generally applicable to a class of
22
persons, making declaratory or injunctive relief appropriate to the class as a whole. 23

24 While not every class member must have been injured or aggrieved, there mustbe a

25 pattern of activity that is likely to be the same as to all members of the class. Baby Neal

26 for & by Kanter v. Casey, 43 F.3d 48,52 (3rd Cir. 1994)..
27

28 -6-

MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 2:10-cv-01119-JAM-EFB Document 83 Filed 07/07/10 Page 7 of 7

1

Given the overbroad nature of Plaintiffs' proposed class, not every class member

2

,--
will have been injured or aggrieved. Those who will never see the services provided by

3 either the RSTs or the County-operated Wellness Centers will never be affected by the
4

5 restructure system. However, in order to be certified as a class under Rule 23(b)(2), there

6 must be a pattern of activity that is likely to be the same to all members of the class.

7

That finding does not exist, given the scope of the proposed class. According to

8 Plaintiffs' motion, "members of the class are all threatened with imminent across-the-
9 board reduction in outpatient mental health services." Plaintiffs' Motion to Certify Class,
10 11 p. 12. Even if true and reductions in outpatient mental health services were to occur, it
12 can not be said that an injunction on behalf of all members of the proposed class is

13 appropriate - those who do not or will not receive adult outpatient services have no

14 standing to seek such an injunction. Therefore, there is not an adopted pattern of activity

15 applicable to all members of the class and Rule 23(b)(2) is not satisfied.
16

17

IV.

18

CONCLUSION

19

For the foregoing reasons, the Court should deny Plaintiffs' request to certify the

20 proposed class and to approve Plaintiffs Leslie Napper, Jan Fischer, Jacquie Eichhorn-

21 Smith, Ted Yannello, and Lynda Mangio as class representatives.

22

DATED: July 7, 2010 23

ROBERT A. RYAN, JR., County Counsel Sacramento County, California

24

25

BY:~

'MICHELBACH

26

Supervising Deputy

27
w:\litigate\dhhs\20 IO\leslie napper-l 28. IOa\classcertifopp.mpa.doc
28
-7-

MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

 
 Case 2:10-cv-01119-JAM-EFB Document 96 Filed 07/14/10 Page 1 of 8

1 WILLIAM S. FREEMAN (SBN 82002)

MARGARET I. BRANICK-ABILLA (SBN 223600) 2 AMY E. NASH (SBN 264955)

3 COOLEY LLP 3175 Hanover Street

4 Palo Alto, CA 94304-1130

Telephone: (650) 843-5000 5

STUART SEABORN (SBN 198590) 6 SUZANNA GEE (SBN 170780)

7

JAY KOSLOFSKY (SBN 97024) SEAN RASHKIS (SBN 232533)

8 WILL SCHELL (SBN 252470) DISABILITY RIGHTS CALIFORNIA

9 100 Howe Avenue, Suite 235N

Sacramento, CA 95825 10 Telephone: (916) 488-9950

11 ATTORNEYS FOR PLAINTIFFS 12 [ADDITIONAL COUNSEL LISTED ON NEXT PAGE]

13

UNITED STATES DISTRICT COURT

14

FOR THE EASTERN DISTRICT OF CALIFORNIA

15

16 LESLIE NAPPER, JANET FISCHER, JACQUIE Case No. 2:10-CV-01119-JAM-EFB

EICHHORN-SMITH, TED YANELLO, and 17 LYNDA MANGIO, on behalf of themselves and
all others similarly situated, 18
Plaintiffs,

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

19

v.

20 COUNTY OF SACRAMENTO; BOARD OF

21

SUPERVISORS OF THE COUNTY OF SACRAMENTO; County Supervisor ROGER

Date: July 21, 2010 Time: 9:30 a.m. Place: Courtroom 6, 14th Floor Judge: Hon. John A. Mendez

22 DICKINSON; County Supervisor JIMMIE YEE; County Supervisor SUSAN PETERS; County

23 Supervisor ROBERTA MACGLASHAN; County

Supervisor DON NOTTOLI; SACRAMENTO 24 COUNTY DEPARTMENT OF BEHAVIORAL

25

HEALTH SERVICES; ANN EDWARDSBUCKLEY, Director, Department of Behavioral

26 Health Services; MARY ANN BENNETT, Mental Health Director,

27

Defendants.

28

PLAINTIFFS’ REPLY MEMORANDUM ISO MOTION FOR CLASS CERTIFICATION CASE NO. 2:10-CV-0119

Case 2:10-cv-01119-JAM-EFB Document 96 Filed 07/14/10 Page 2 of 8

1

ROBERT D. NEWMAN (SBN 86534)

KIMBERLY LEWIS (SBN 144870)

2

ANTIONETTE D. DOZIER (SBN 244437)

3

WESTERN CENTER ON LAW AND POVERTY

3701 West Sixth Street, Suite 208

4

Los Angeles, California 90010

Telephone: (213) 487-7211 5

MELINDA BIRD (SBN 102236)

6

DISABILITY RIGHTS CALIFORNIA

7

3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010

8

Telephone: (213) 427-8747

9

KIMBERLY SWAIN (SBN 100340)

DISABILITY RIGHTS CALIFORNIA

10

1330 Broadway, Suite 500

11

Oakland, CA 94612 Telephone: (510) 267-1200

12 [ADDITIONAL COUNSEL LISTED ON

13

CAPTION PAGE]

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
PLAINTIFFS’ REPLY MEMORANDUM ISO MOTION FOR CLASS CERTIFICATION CASE NO. 2:10-CV-0119

Case 2:10-cv-01119-JAM-EFB Document 96 Filed 07/14/10 Page 3 of 8

1 I.

INTRODUCTION

2

Each of the arguments set forth in Defendants’ Opposition to Plaintiffs’ Motion for Class

3 Certification (“Opp.”) is easily met, and the Court should therefore certify a class according to the

4 modified (and slightly narrowed) definition described herein.

5

Defendants argue that the proposed class definition is too broad; to meet this objection,

6 Plaintiffs suggest a narrowed class consisting of “all current and future adult recipients of

7 MediCal funded outpatient mental health services in the County of Sacramento” (modifications

8 italicized). Defendants all but concede that such a narrowed class consisting of those putative

9 class members is sufficiently narrow to warrant class certification.

10

Plaintiffs claim that class certification is “unnecessary” because complete injunctive relief

11 may be granted without certification of a class. In response to this argument, Defendants reiterate

12 that they have moved for class certification in an abundance of caution, so that the Court is

13 provided with the tools it may feel necessary to grant complete relief. If the Court agrees with

14 Defendants that complete injunctive relief does not require class certification, Plaintiffs agree that

15 class certification could be deferred, although it is certainly warranted at this time.

16

Defendants’ remaining objections are easily disposed of. The claims that certification

17 would be “premature” or “not warranted” are both based on the overbreadth argument; with

18 respect to the narrowed class defined below, there can be no question that Defendants have acted

19 in a manner generally applicable to the class under Rule 23(b)(2) of the Federal Rules of Civil

20 Procedure. Finally, the argument that the named Plaintiffs “do not adequately represent the class”

21 is really an argument that no class member has suffered any injury. Plaintiffs easily refute this

22 argument, both here and in their opening and reply briefs in support of the motion for preliminary

23 injunction. This Court should therefore certify the proposed class, appoint Plaintiffs’ counsel to

24 represent the class, and dispense with any notice to class members prior to judgment or

25 settlement.

26

27

28

PLAINTIFFS’ REPLY MEMORANDUM ISO

1.

MOTION FOR CLASS CERTIFICATION

CASE NO. 2:10-CV-0119

Case 2:10-cv-01119-JAM-EFB Document 96 Filed 07/14/10 Page 4 of 8

1 II. ARGUMENT

2

A. This Court May Narrow the Proposed Cla ss Definition So That It Includes

3

Only Adult Recipients of Outpatient Services.

4

Defendants assert that a class consisting of “all current and future recipients of MediCal

5 funded mental health services in the County of Sacramento” is overbroad because it includes

6 minors, persons receiving inpatient services, and persons who may never be affected by the

7 redesign of outpatient services. Opp. at 4-5. Having considered these objections, Plaintiffs agree

8 to narrow the class definition to “all current and future adult recipients of MediCal funded

9 outpatient mental health services in the County of Sacramento” (modifications italicized). These

10 modifications will prevent minors and persons who will never receive outpatient services from

11 being swept into the class. Plaintiffs do not agree, however, that the class should exclude future

12 recipients of outpatient services. Undoubtedly some persons who are currently minors and/or

13 currently receiving inpatient services will one day become recipients of adult outpatient services;

14 these individuals will surely be harmed by the system redesign that is the focus of this lawsuit,

15 and deserve to be protected from it.

16

Courts have discretion to redefine a class under appropriate circumstances to bring the

17 action within Rule 23. Fed. R. Civ. P. 23(d)(4). In particular, it is well-settled that a court may

18 modify, narrow or change a class definition when appropriate. Armstrong v. Davis, 275 F.3d 849,

19 872 n.27 (9th Cir. 2001) (“Where appropriate, the district court may redefine the class . . .”); Penk

20 v. Oregon State Bd. of Higher Ed., 816 F.2d 458, 467 (9th Cir. 1987) (upholding the district

21 court’s redefining of the class). District courts may do so even when the proposed class is

22 redefined in a plaintiff’s reply briefing in support of class certification. See In re TFT (Flat

23 Panel) Antitrust Litig, 2010 WL 1286478, at *1 (N.D. Cal. Mar. 28, 2010); Greenwood v.

24 Compucredit Corp., 2010 WL 291842, at *3 (N.D. Cal. Jan. 19, 2010); White v. E-Loan, Inc.,

25 2006 WL 2411420, at *1 n.2 (N.D. Cal. Aug. 18, 2006).

26

Here, it is appropriate to narrow Plaintiffs’ proposed class, and a class consisting of “all

27 current and future adult recipients of MediCal funded outpatient mental health services in the

28 County of Sacramento” is sufficiently narrow to warrant class certification. Defendants readily

PLAINTIFFS’ REPLY MEMORANDUM ISO

2.

MOTION FOR CLASS CERTIFICATION

CASE NO. 2:10-CV-0119

Case 2:10-cv-01119-JAM-EFB Document 96 Filed 07/14/10 Page 5 of 8

1 admit that “the restructured service delivery system is the Adult Outpatient Mental Health

2 Services system.” Opp. at 4. Defendants also acknowledge that implementation of its new

3 “Adult Outpatient Mental Health Services” system will affect “all consumers receiving services

4 in the outpatient system.” Opp. at 3. Defendants therefore cannot dispute that a class consisting

5 of individuals affected by a change in that system is sufficiently narrow. See Alliance to End

6 Repression v. Rochford, 565 F.2d 975, 978 (7th Cir. 1977) (scope of the proposed class is defined

7 by the policies of the defendants).

8

Moreover, Defendants will not be prejudiced by certification of a class consisting of these

9 individuals. Throughout Plaintiffs’ opening memorandum in support of this motion, Plaintiffs

10 argue that MediCal recipients in Defendants’ outpatient system, not the entire mental health

11 system, will be impacted by the proposed change in policy. This Court therefore has sufficient

12 information to reach a decision on class certification.

13

B. Certification of This Narrow Class of Plaintiffs Under Rule 23(b)(2) Is

Appropriate Because All Class Members Are Threatened by th e County’s

14

Restructuring of Outpatient Mental Health Services.

15

Arguing that Plaintiffs’ proposed class definition is overbroad, Defendants contend that

16 this class may not be certified under Rule 23(b)(2) because not every class member will be

17 injured by their restructured system. Opp. at 7. As explained above, this Court may narrow the

18 class to include only those members who will be aggrieved by Defendants’ conduct. Once it does

19 so, Defendants’ arguments against certification under Rule 23(b)(2) must fail.

20

As Defendants note, Plaintiffs bringing an action under Rule 23(b)(2) need only show that

21 defendants have acted or refused to act on grounds generally applicable to the class, so that

22 injunctive relief or declaratory relief is appropriate for the whole class. Fed. R. Civ. P. 23(b)(2).

23 Here, the proposed redefined class fits squarely within the ambit of subdivision (b)(2). By

24 Defendants’ own admission, every putative class member will be affected by the transition from

25 contractor-operated to County-operated adult mental health system. Opp. at 3-4. These putative

26 class members therefore have standing to pursue injunctive and declaratory relief. Class

27 certification is therefore appropriate under Rule 23(b)(2).

28

PLAINTIFFS’ REPLY MEMORANDUM ISO

3.

MOTION FOR CLASS CERTIFICATION

CASE NO. 2:10-CV-0119

Case 2:10-cv-01119-JAM-EFB Document 96 Filed 07/14/10 Page 6 of 8

1

C. All Plaintiffs Have Been Injured or Are in Imminent Danger of Being Injured

by Defendants’ Proposed Redesign. 2

3

Plaintiffs have standing to sue in federal court if they meet a three-part test: injury in fact,

4 causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

5 Defendants do not dispute causation and redressability, focusing solely on the contention that no

6 “injury in fact” has occurred.

7

Of course, a plaintiff need not wait until he or she has already been injured in order to

8 assert entitlement to class-wide relief; it is sufficient that the plaintiff be in immediate danger of

9 sustaining “some direct injury as a result of the challenged statute or official conduct.”

10 Armstrong, 275 F.3d at 860. In their opening and reply briefs in support of their motion for

11 preliminary injunction, Plaintiffs have abundantly demonstrated the imminent harm threatened by

12 the County’s system redesign. The declarations of Drs. Stoneking and Risley established the

13 threatened impacts on Plaintiffs’ physical and mental health, the risk of homelessness, and the

14 risk of institutionalization. A plaintiff does not need to wait until he or she is institutionalized to

15 bring a claim for relief under the ADA’s integration mandate. Fisher v. Okla. Health Care Auth.,

16 335 F.3d 1175, 1179 n.3 (10th Cir. 2003).

17

Moreover, some class members have already suffered harm due to the County’s poor

18 planning and incomplete or inadequate communications to consumers. For example, as detailed

19 in the Declaration of Uma Zykofky submitted by Defendants in opposition to the motion for

20 preliminary injunction, a number of class members were given inaccurate information when they

21 called the County to inquire about the proposed changes in their care, and “expressed distress

22 about the change.” Zykofsky Decl. (Dkt. No. 89) at 10:17-26.

23

D. Class Certification Is Not Premature Wh en This Court Has All the Evidence

It Needs to Decide Plaintiffs Motion for Class Certification. 24

25

Defendants contend that it is inappropriate to certify a class before they have been

26 afforded the opportunity to conduct additional discovery relating to Plaintiffs’ claims, and seek to

27 delay a decision on the certification of a class until after a decision is reached on the merits of this

28 case. Such a delay is inappropriate. Generally, class certification is not delayed pending a

PLAINTIFFS’ REPLY MEMORANDUM ISO

4.

MOTION FOR CLASS CERTIFICATION

CASE NO. 2:10-CV-0119

Case 2:10-cv-01119-JAM-EFB Document 96 Filed 07/14/10 Page 7 of 8

1 decision on the merits, but only when there is a need to develop a sufficient evidentiary record for

2 the court to decide whether class certification is warranted. Blackie v. Barrack, 524 F.2d 891,

3 901 n.17 (9th Cir. 1975) (class certification can be granted if the court has sufficient material

4 before it to determine the nature of the allegations and to determine whether the requirements of

5 Rule 23 are met). There is more than a sufficient evidentiary record to determine the nature of 6 Plaintiffs’ claims and that the Rule 23 requirements have been met.1

7

Defendants give only the faintest indication of the further discovery that is supposedly

8 needed, and make almost no effort to demonstrate why that evidence is needed for the class

9 certification inquiry. Further, Rule 23(c)(1) of the Federal Rules of Civil Procedure provides that

10 a decision on a motion for class certification should be reached as early as practicable.

11 Defendants fail to explain why this Court should depart from the Federal Rules of Civil

12 Procedure, and Plaintiffs’ motion is therefore timely.

13

E. Classwide Relief Is A ppropriate to Prot ect Putative Class Membe rs and to

14

Facilitate Enforcement of Any Judgment This Court May Enter.

15

Plaintiffs demonstrated in this Reply and their Memorandum in Support for Class

16 Certification that the proposed class, as redefined above, meets the requirements of Rule 23. In

17 fact, Plaintiffs showed that class certification provides a more efficient and consistent mechanism

18 for adjudicating challenges to the Defendants’ county-wide policy that will result in the loss of

19 outpatient mental health services than numerous individual actions. Defendants, however,

20 contend that all putative class plaintiffs would benefit from a favorable outcome in this case and

21 the resulting injunctive and declaratory relief, and therefore class certification is unnecessary.

22

This assertion ignores the potential limitations of the scope of a preliminary injunction,

23 which Plaintiffs detailed in their Memorandum in Support of Class Certification. See Pl’s Mem.

24 of Points and Authorities In Support of Mot. For Class Certification at 2-4; see also Zepeda v.

25 INS, 753 F.2d 719, 728 n.1 (9th Cir. 1984) (“Without a properly certified class, a court cannot

26 1 Even if more discovery is needed by the Defendants, the proper resolution is not to deny the motion for class

certification. A class may be certified and additional discovery allowed. See Hickey v. City of Seattle, 236 F.R.D.

27

659, 662 (W.D. Wash. 2006) (certifying the class while granting additional discovery).

28

PLAINTIFFS’ REPLY MEMORANDUM ISO

5.

MOTION FOR CLASS CERTIFICATION

CASE NO. 2:10-CV-0119

Case 2:10-cv-01119-JAM-EFB Document 96 Filed 07/14/10 Page 8 of 8

1 grant relief on a class-wide basis”); accord, Paige v. California, 102 F.3d 1035, 1039 (9th Cir.

2 1996). Without class certification, the Defendants may object to the scope of this Court’s order

3 and nonparties may have difficulty enforcing any order entered by this Court. In particular, if

4 rulings are limited to the named Plaintiffs in this case, nonparties might not be able to invoke the

5 judgment, but might be required to instigate new litigation if the Defendants did not adhere to the

6 judgment. See 2 Newberg, Class Actions (4th ed. 2002) § 5.03. The cost of beginning new

7 proceedings for those nonparties may be prohibitive, especially given that Plaintiffs seek to

8 represent individuals who lack resources and may have deteriorating mental conditions as a result

9 of Defendants’ policies, which create barriers to pursuing litigation.

10

If Defendants stipulate that they are willing to make systematic changes to prevent the

11 across-the-board reductions in adult outpatient mental health services in response to an injunction

12 issued on behalf of Plaintiffs, or if the Court otherwise determines that complete relief may be

13 granted without certification of a class, then class certification could be deferred, even though

14 Plaintiffs believe there is no substantial reason for doing so. Otherwise, class certification is

15 appropriate at this time, and Plaintiffs have made a sufficient showing to warrant class

16 certification.

17 III. CONCLUSION

18

For the foregoing reasons, Plaintiffs have satisfied all of the requirements of Rule 23(a)

19 and 23(b)(2). Plaintiffs respectfully request that the Court certify the proposed class, as amended,

20 appoint Plaintiffs’ counsel to represent the class and dispense with any requirement of notice to

21 class members prior to judgment or settlement.

22 Dated: July 14, 2010 23

COOLEY LLP

24

By:

/s/

25

William S. Freeman

26

Attorneys for Plaintiff

27 867813 v2/HN 28

PLAINTIFFS’ REPLY MEMORANDUM ISO

6.

MOTION FOR CLASS CERTIFICATION

CASE NO. 2:10-CV-0119

 
 Case 2:10-cv-01119-JAM -EFB Document 133 Filed 01/25/12 Page 1 of 3

1 ROBERT A. RYAN, JR., County Counsel MICHELE BACH, Supervising Deputy
2 [State Bar No. 88948] RICK HEYER, Deputy County Counsel
3 [State Bar No. 216150] COUNTY OF SACRAMENTO
4 700 H Street, Suite 2650 Sacramento, CA 95814
5 Telephone: (916) 874-5540 Facsimile: (916) 874-8207
6 E-mail: bachm@saccounty.net File No.: 128.10A
7 Attorneys for the Government Defendants Sued
8 in their official capacity

9

UNITED STATES DISTRICT COURT

10

FOR THE EASTERN DISTRICT OF CALIFORNIA

11 LESLIE NAPPER, JANET FISCHER, Case No. 2:10-CV-01119-JAM-EFB

JACQUIE EICHHORN-SMITH, TED

12 YANNELLO, and LYNDA MANGIO,

on behalf of themselves and all others

13 similarly situated,

STIPULATION OF PARTIES TO A

RESOLUTION OF ALL MATTERS AT

14

Plaintiffs,

ISSUE

15 vs.

16 COUNTY OF SACRAMENTO;

Dept: 6

BOARD OF SUPERVISORS OF THE Judge: Hon. John A. Mendez

17 COUNTY OF SACRAMENTO; County

Supervisor ROGER DICKINSON;

18 County Supervisor JIMMIE YEE;

County Supervisor SUSAN PETERS;

19 County Supervisor ROBERTA

MACGLASHAN; County Supervisor

20 DON NOTTOLI; SACRAMENTO

COUNTY DEPARTMENT OF

21 BEHAVIORAL HEALTH SERVICES;

ANN EDWARDS-BUCKLEY, Director,

22 Department of Behavioral Health

Services; MARY ANN BENNETT,

23 Mental Health Director,

24

Defendants.

25 Pursuant to Local Rule 143(a)(1), the Parties hereby stipulate that an agreement
26 has been negotiated between all named parties which resolves all matters in this action.
27
-228 _____________________________________________________________________________________________
No. 2:10-CV-01119-JAM-EFB – STIPULATION OF PARTIES TO A RESOLUTION OF ALL MATTERS AT ISSUE

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Case 2:10-cv-01119-JAM -EFB Document 133 Filed 01/25/12 Page 2 of 3

1 This agreement is embodied in the attached proposed Consent Decree. The parties agree

2 that this proposed Consent Decree does not establish wrongdoing on the part of any

3 party, nor does it require or contain an admission of fault on the part of any party.

4

All the named Plaintiffs and all County Defendants request that the Court accept

5 this Stipulation and impose the terms of the attached Consent Decree.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
-228 _____________________________________________________________________________________________
No. 2:10-CV-01119-JAM-EFB – STIPULATION OF PARTIES TO A RESOLUTION OF ALL MATTERS AT ISSUE

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Case 2:10-cv-01119-JAM -EFB Document 133 Filed 01/25/12 Page 3 of 3

1 DATED: January 20, 2012
2

ROBERT A. RYAN, JR., County Counsel Sacramento County, California

3

4

By:

/S/

5

RICK HEYER

Deputy County Counsel

6

Attorney for Defendants

7

8 DATED:
9 10

By:

/S/

ROBERT D. NEWMAN

Western Center on Law and Poverty

Attorney for Plaintiffs

11

12

13

ORDER

14

IT IS ORDERED by this Court, this 24th day of January, 2012

15

__/s/ John A. Mendez_____________________

16

United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28

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Case 2:10-cv-01119-JAM -EFB Document 133-1 Filed 01/25/12 Page 1 of 4
IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 1. Plaintiffs in this action are Leslie Napper, Janet Fischer, Jacquie EichhornSmith, Ted Yannello and Lynda Mangio (“Plaintiffs”). Defendants in this action are County of Sacramento (“County”), Sacramento County Board of Supervisors (“Board”), current Board members Phil Serna, Jimmie Yee, Susan Peters, Roberta MacGlashan, and Don Nottoli, Sacramento County Department of Health and Human Services (“DHHS”), DHHS’ current Director Ann Edwards, and the County’s current Mental Health Director Mary Ann Bennett (“Defendants”). Defendants Yee, Serna, Peters, MacGlashan, Nottoli, Edwards and Bennett have all been sued only in their respective official capacities. This Consent Decree applies to Defendants and their successors in office. 2. This Court has jurisdiction over Plaintiffs’ claims against all Defendants pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. Venue is proper in the Eastern District of California pursuant to 28 U.S.C. § 1391(b). Any claims in this lawsuit on behalf of a putative class of all current and future adult recipients of Medi-Cal funded mental health services in the County of Sacramento are hereby dismissed without prejudice. 3. For the duration of this Consent Decree, Defendants shall not implement or enforce the “Hybrid Plan,” either in its entirety or major components thereof, under whatever designation or nomenclature. The parameters of the Hybrid Plan were previously approved by the Board on June 17, 2010, a copy of which is attached hereto. This Consent Decree does not affect or concern Defendants’ provision of adult inpatient mental health services or crisis residential services to Medi-Cal recipients who are residents of the County of Sacramento since the provision of such inpatient and/or crisis residential services were not part of the Hybrid Plan and were not the subject of this lawsuit. 4. No later than December 31, 2012, Defendants shall:
a. develop a plan for providing a continuum of care through the County-operated and funded adult outpatient mental health system; and b. develop a plan to consolidate the two County outpatient clinics.
1
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Case 2:10-cv-01119-JAM -EFB Document 133-1 Filed 01/25/12 Page 2 of 4
5. No later than December 31, 2012, Defendants shall consider and decide whether or not to:
a. modify the intake system so that existing providers can conduct intake assessments for easy access to services; b. increase the use of the Wellness and Recovery model and provide training on this model to existing contract and County providers; c. increase, to the extent of available funding, the use of peer staffing/volunteers at the existing contract and County providers; d. increase collaboration between outpatient and inpatient mental health providers (e.g., create a system to give immediate notification to outpatient providers when their clients are hospitalized); and e. develop a 24-hour welcoming line or “warm line” staffed by persons with lived experience. 6. In implementing the measures described in Paragraph 4 above and preceding the decisions on whether or not to implement the measures described in Paragraph 5 above, Defendants shall: a. consider the report dated May 10, 2011 of Dr. Nancy Callahan in connection with the proposed redesign; b. hold a minimum of four stakeholders/community input meetings to address consumer/client concerns about existing adult outpatient mental health services and any proposed redesign. These meetings may be held in conjunction with the County’s mental health board meetings; c. conduct a minimum of one (1) outreach meeting at each existing outpatient provider (including HRC, TCORE, Northgate Point, Visions, El Hogar and the two Wellness and Recovery Centers) to seek consumer/client input about existing adult outpatient mental health services and any proposed redesign. These meetings shall be scheduled at
2
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Case 2:10-cv-01119-JAM -EFB Document 133-1 Filed 01/25/12 Page 3 of 4

dates and times convenient for Defendants and the affected outpatient

providers; and

d. provide an opportunity for public comment at the above meetings

and subsequent events and provide, at subsequent meetings, written

responses to public questions about any proposed redesign of the County’s

adult outpatient mental health system.

7. For the duration of this Consent Decree, Defendants shall give advance

written notice to counsel at Disability Rights California of any public meeting where

discussion of Sacramento County Adult Outpatient Mental Health is on the agenda.

Plaintiffs shall advise Defendants of which attorney at Disability Rights California should

receive these notices.

.

8. The parties recognize that Defendants’ ability to implement any of the

plans discussed in Paragraphs 4 and 5 above or other plans relating to the adult outpatient

mental health system for Medi-Cal recipients may require the approval and funding

commitment of the State Department of Mental Health and other state agencies.

9. This Consent Decree shall remain in effect through January 31, 2013, at

which time the Consent Decree will automatically expire and no longer be of any force or

effect. During that time period, the Court shall retain jurisdiction over this lawsuit to

enforce the provisions of the Consent Decree. Before filing any motion to enforce the

terms of the Consent Decree, counsel for the moving party shall contact counsel for the

opposing party to discuss thoroughly, preferably in person, the substance of the

contemplated motion and any potential resolution. Any such motion shall not be filed

until seven (7) days after the parties have conferred to discuss the motion. Upon the

expiration of this Consent Decree, this matter will be dismissed with prejudice by the

named Plaintiffs.

10. The Court shall also retain jurisdiction over the request by Plaintiffs’

counsel to be awarded their costs of suit as well as their motion to recover attorneys’ fees

and litigation-related expenses. The parties shall make good faith efforts to resolve their

3

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Case 2:10-cv-01119-JAM -EFB Document 133-1 Filed 01/25/12 Page 4 of 4

differences as to these issues. Plaintiffs’ counsel shall, however, file their cost bill and motion to recover their attorneys’ fees and litigation related expenses no later than ninety (90) days after entry of the Consent Decree.

Dated: January 24, 2012

/s/ John A. Mendez_________ John A. Mendez United States District Judge

4
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 Case 2:10-cv-01119-JAM-EFB Document 132 Filed 01/23/12 Page 1 of 5

1 MAUREEN P. ALGER (SBN 208522) AMY E. NASH (SBN 264955)
2 COOLEY LLP
3 3175 Hanover Street Palo Alto, CA 94304-1130
4 Telephone: (650) 843-5000

5 SUZANNA GEE (SBN 170780)
6 JAY KOSLOFSKY (SBN 97024)

7

SEAN RASHKIS (SBN 232533) WILL SCHELL (SBN 252470)

8 DISABILITY RIGHTS CALIFORNIA

9

100 Howe Avenue, Suite 235N Sacramento, CA 95825

10 Telephone: (916) 488-9950

ATTORNEYS FOR PLAINTIFFS 11 [ADDITIONAL COUNSEL LISTED ON NEXT PAGE]

12

UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14 LESLIE NAPPER, JANET FISCHER,

15 JACQUIE EICHHORN-SMITH, TED

16

YANNELLO, and LYNDA MANGIO, on behalf of themselves and all others similarly

17 situated,

18

Plaintiffs,

Case No. 2;10-CV-01119-JAM-EFB
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES RE PARTIES’ SETTLEMENT AND ENTRY OF PROPOSED CONSENT DECREE

19

v.

20

COUNTY OF SACRAMENTO; BOARD OF SUPERVISORS OF THE COUNTY OF

21 SACRAMENTO; County Supervisor ROGER

DICKINSON; County Supervisor JIMMIE 22 YEE; County Supervisor SUSAN PETERS;

23 County Supervisor ROBERTA MACGLASHAN; County Supervisor DON
24 NOTTOLI; SACRAMENTO COUNTY

25 DEPARTMENT OF BEHAVIORAL HEALTH SERVICES; ANN EDWARDS-

26 BUCKLEY, Director, Department of

27

Behavioral Health Services; MARY ANN BENNETT, Mental Health Director,

28

Defendants.

1 Plaintiffs’ Memorandum of Points and Authorities re Parties’ Settlement and Entry of Proposed Consent Decree

Case 2:10-cv-01119-JAM-EFB Document 132 Filed 01/23/12 Page 2 of 5

1

ROBERT D. NEWMAN (SBN 86534)

ANTIONETTE D. DOZIER (SBN 244437)

2

WESTERN CENTER ON LAW AND POVERTY

3

3701 West Sixth Street, Suite 208

Los Angeles, California 90010

4

Telephone: (213) 487-7211

5

MELINDA BIRD (SBN 102236)

6

DISABILITY RIGHTS CALIFORNIA

3580 Wilshire Blvd., Ste. 902

7

Los Angeles, CA 90010

8

Telephone: (213) 427-8747

9

KIMBERLY SWAIN (SBN 100340)

10

DISABILITY RIGHTS CALIFORNIA

1330 Broadway, Suite 500

11

Oakland, CA 94612

12

Telephone: (510) 267-1200

13

[ADDITIONAL COUNSEL LISTED ON

CAPTION PAGE]

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 Plaintiffs’ Memorandum of Points and Authorities re Parties’ Settlement and Entry of Proposed Consent Decree

Case 2:10-cv-01119-JAM-EFB Document 132 Filed 01/23/12 Page 3 of 5

1

Plaintiffs Leslie Napper, et al. (“Plaintiffs”) respectfully submit this memorandum of

2 points and authorities setting forth the reasons why the parties’ Proposed Consent Decree in

3 this case can be entered without court approval, notice to putative class members or a

4 fairness hearing:

5

Rule 23(e) provides, in pertinent part, that “[t]he claims, issues, or defenses of a

6 certified class may be settled, voluntarily dismissed, or compromised only with the court’s 7
approval.” Fed. R.Civ. P. 23(e) (italics added). Among the procedures that “apply to a 8 9 proposed settlement, voluntary dismissal, or compromise” regarding a certified class are the 10 following:

11

(1) “The court must direct notice in a reasonable manner to all class members

12

who would be bound by the proposal”;

13

(2) “If the proposal would bind class members, the court may approve it only

14

after a hearing and on finding that it is fair, reasonable, and adequate”; and

15

(3) “The parties seeking approval must file a statement identifying any

16

agreement made in connection with the proposal.”

17 Fed. R. Civ. P. 23(e)(1)-(3).

18

The critical language in Rule 23(e) is “certified class.” In 2003 Rule 23(e) was

19 amended to resolve an “ambiguity” in the language of the former Rule 23(e) that 20 “could be  and at time was  read to require court approvals of settlements with 21
putative class representatives.” Adv. Comm. Notes to 2003 Amends. to Fed. R. Civ. 22 23 P. 23. “The new rule requires approval only if the claims, issues, or defenses of a

24 certified class are resolved by a settlement, voluntary dismissal, or compromise.” Id.

25 The 2003 amendments to Rule 23 did carry “forward the notice requirement of

26 present Rule 23(e)” that “notice is not required when the settlement binds only the

27 individual class representatives.” Id. The amendments to Rule 23 also confirmed

28 “the already common practice of holding hearings as part of the process of approving

1

Plaintiffs’ Memorandum of Points and Authorities re Parties’ Settlement and Entry of Proposed Consent Decree

Case 2:10-cv-01119-JAM-EFB Document 132 Filed 01/23/12 Page 4 of 5

1 settlement, voluntary dismissal, or compromise that would bind members of a class.”

2 Id.

3

There is no certified class in this case. Plaintiffs previously brought a motion to

4 certify this lawsuit as a class action on behalf of “all current and future adult recipients of
5 Medi-Cal funded outpatient mental health services from the County of Sacramento.” See, 6 e.g., Dkt. No. 96 at 2. On July 21, 2010, the Court denied this motion for class certification 7
as “premature.” Dkt. No. 108. Plaintiffs did not thereafter file another motion for class 8 9 certification in large part because this lawsuit only seeks injunctive and declaratory relief and 10 members of the putative class were already benefiting from the preliminary injunction in this 11 case. The preliminary injunction, among other things, enjoined Defendants from
12 implementing or enforcing the “Hybrid Plan,” which had been approved by the Sacramento

13 County Board of Supervisors on June 17, 2010, unless and until the Court had determined

14 that Plaintiffs and “all current and future adult recipients of Medi-Cal funded outpatient

15 mental health services in the County will continue to receive these outpatient mental health

16 services in the most integrated setting possible so as to avoid their unnecessary

17 institutionalization and/or treatment through hospital emergency rooms.” Dkt. No. 111 at 1.

18

The Proposed Consent Decree only resolves the five named Plaintiffs’ claims against

19 Defendants in this action. The Court accordingly need not give its approval to such a 20 settlement. See Schwarzer, Tashima & Wagstaffe, CAL. PRAC. GUIDE: FED. CIV. PRO. 21
BEFORE TRIAL (The Rutter Group 2011) ¶10:790 at 10-118 (“There is no requirement of 22 23 judicial approval for precertification dispositions”). Paragraph 2 of the Proposed Consent

24 Decree includes a proviso that “[a]ny claims in this lawsuit on behalf of a putative class of

25 all current and future adult recipients of Medi-Cal funded mental health services in the

26 County of Sacramento are hereby dismissed without prejudice” (italics added). Since the

27 Proposed Consent Decree is not binding on members of the putative class, the Court need not

28

2

Plaintiffs’ Memorandum of Points and Authorities re Parties’ Settlement and Entry of Proposed Consent Decree

Case 2:10-cv-01119-JAM-EFB Document 132 Filed 01/23/12 Page 5 of 5

1 give notice of this settlement or hold a fairness hearing to determine whether the settlement

2 is fair, reasonable and adequate to members of the class.

3

Ultimately, members of the putative class will enjoy the best of both worlds. The

4 settlement of this case will have no binding effect on them. At the same time, they will

5 benefit from the Proposed Consent Decree even though there is not a certified class. For 6 example, Defendants have agreed to “not implement or enforce the ‘Hybrid Plan,’ either in 7
its entirety or major components thereof, under whatever designation or nomenclature” 8 9 through January 31, 2013. Proposed Consent Decree, ¶ 3. Defendants have also agreed that 10 no later than December 31, 2012, they shall develop plans to provide “a continuum of care 11 through the County-operated and funded adult outpatient mental health system” and to

12 “consolidate the two County outpatient clinics.” Id. at ¶ 4. By December 31, 2012,

13 Defendants shall additionally “consider and decide whether or not to” implement a number

14 of other changes to the adult mental health care system, such as “modify[ing] the intake

15 system so that existing providers can conduct intake assessments for easy access to services”

16 and “increas[ing] the use of the Wellness and Recovery model and provide training on this

17 model to existing contract and County providers.” Id. at ¶ 5.

18

In sum, Plaintiffs Leslie Napper, et al., respectfully submit that the Court should enter

19 the accompanying Proposed Consent Decree as soon as possible.

20

21 DATED: January 23, 2012
22

Respectfully submitted,

23

24

By:

25

ROBERT D. NEWMAN Attorneys for Plaintiffs

26

27

28

3

Plaintiffs’ Memorandum of Points and Authorities re Parties’ Settlement and Entry of Proposed Consent Decree

 
 Case 2:10-cv-01119-JAM-EFB Document 131 Filed 01/23/12 Page 1 of 7

1 ROBERT A. RYAN, JR., County Counsel MICHELE BACH, Supervising Deputy
2 [State Bar No. 88948]
RICK HEYER, Deputy County Counsel 3 [State Bar No. 216150]
COUNTY OF SACRAMENTO 4 700 H Street, Suite 2650
Sacramento, CA 95814 5 Telephone: (916) 874-5540
Facsimile: (916) 874-8207 6 E-mail: bachm@saccounty.net
File No.: 128.10A 7
Attorneys for the Government Defendants Sued 8 in their official capacity

9

UNITED STATES DISTRICT COURT

10

FOR THE EASTERN DISTRICT OF CALIFORNIA

11 LESLIE NAPPER, JANET FISCHER, Case No. 2:10-CV-01119-JAM-EFB

JACQUIE EICHHORN-SMITH, TED

12 YANNELLO, and LYNDA MANGIO,

on behalf of themselves and all others

13 similarly situated,

STIPULATION OF PARTIES TO A

RESOLUTION OF ALL MATTERS AT

14

Plaintiffs,

ISSUE

15 vs.

16 COUNTY OF SACRAMENTO;

Dept: 6

BOARD OF SUPERVISORS OF THE Judge: Hon. John A. Mendez

17 COUNTY OF SACRAMENTO; County

Supervisor ROGER DICKINSON;

18 County Supervisor JIMMIE YEE;

County Supervisor SUSAN PETERS;

19 County Supervisor ROBERTA

MACGLASHAN; County Supervisor

20 DON NOTTOLI; SACRAMENTO

COUNTY DEPARTMENT OF

21 BEHAVIORAL HEALTH SERVICES;

ANN EDWARDS-BUCKLEY, Director,

22 Department of Behavioral Health

Services; MARY ANN BENNETT,

23 Mental Health Director,

24

Defendants.

25 Pursuant to Local Rule 143(a)(l), the Parties hereby stipulate that an agreement
26
has been negotiated between all named parties which resolves all matters in this action. 27
-2-
28 No. 2:10-CV-Ol 119-JAM-EFB - STIPULATION OF PARTIES TO A RESOLUTION OF ALL MATTERS AT ISSUE

Case 2:10-cv-01119-JAM-EFB Document 131 Filed 01/23/12 Page 2 of 7

1 This agreement is: embodied in the attached proposed Consent Decree. The parties agree

2 that this proposed Consent Decree does not establish wrDngdoing on the part of any

3 party, nor does it require or contain an admission of fault Dn the part of any party.

4

All the named Plaintiffs a~d all COQnty Defendants request that the, Court· accept

0;:1

5 this StipulatiDnand impDse the terms of the attached Consent Decree.

i

I

6

DATED: January 20, 20.12

ROBERT A. RYAN~ JR., CDunty Counsel

7

Sacramento County, California '

8

9

10

I :~

'~'-'r"'-'---"'--'------'-- ---'--.--..-'''''-'--....'..---''--------..'---'''--..'-'-''----.'----'-.".-"'--'-'---~.--".-.-----"--..--:--~."- ..--. ----.'- ---- --.."-.---. -'-.-----"..'.- -.. ----.--

1
I

n. 13 DATED: r::C;Tl K'Vl.lA"A"L'VlA ~1')1.)J ,2J)

B ;

A1
/[l....

14

Y ROBERT D. NEWMAN

-

I I

15

W'estern Center on :Law and Poverty Attorney for Plaintiffs

I

16

t

!

17

ORDER

18

IT IS SO ORDERED by this Court, this _ _ _day of January, 2012

I
I

19 20

~

I

21

I

22

!

23.

United States District Judge

24

25

26 178649

27

28

-2-

No. 2:10-CV-Oll19~JAM-EFB - Si'I'PULATJON OF PARTIES TO A RESOLUTION OF ALL MATTERS AT ISSUE

Case 2:10-cv-01119-JAM-EFB Document 131 Filed 01/23/12 Page 3 of 7
Attachment CONSENT DECREE

Case 2:10-cv-01119-JAM-EFB Document 131 Filed 01/23/12 Page 4 of 7
IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 1. Plaintiffs in this action are Leslie Napper, Janet Fischer, Jacquie EichhornSmith, Ted Yannello and Lynda Mangio ("Plaintiffs"). Defendants in this action are County of Sacramento ("County"), Sacramento County Board of Supervisors ("Board"), current Board members Phil Serna, Jimmie Yee, Susan Peters, Roberta MacGlashan, and Don Nottoli, Sacramento County Department of Health and Human Services ("DHHS"), DHHS' current Director Ann Edwards, and the County's current Mental Health Director Mary Ann Bennett ("Defendants"). Defendants Vee, Serna, Peters, MacGlashan, Nottoli, Edwards and Bennett have all been sued only in their respective official capacities. This Consent Decree applies to Defendants and their successors in office. 2. This Court has jurisdiction over Plaintiffs' claims against all Defendants pursuant to 28 U.S.C. §§ 1331,1343 and 1367. Venue is proper in the Eastern District of California pursuant to 28 U.S.C. § 1391 (b). Any claims in this lawsuit on behalf of a putative class of all current and future adult recipients of Medi-Cal funded mental health services in the County of Sacramento are hereby dismissed without prejudice. 3. For the duration of this Consent Decree, Defendants shall not implement or enforce the "Hybrid Plan," either in its entirety or major components thereof, under whatever designation or nomenclature. The parameters of the Hybrid Plan were , previously approved by the Board on June 17,2010, a copy of which is attached hereto. This Consent Decree does not affect or concern Defendants' provision of adult inpatient mental health services or crisis residential services to Medi-Cal recipients who are residents of the County of Sacramento since the provision of such inpatient and/or crisis residential services were not part of the Hybrid Plan and were not the subject of this lawsuit. 4. No later than December 31, 2012, Defendants shall:
a. develop a plan for providing a continuum of care through the County-operated and funded adult outpatient mental health system; and b. develop a plan to consolidate the two County outpatient clinics.

Case 2:10-cv-01119-JAM-EFB Document 131 Filed 01/23/12 Page 5 of 7
5. No later than December 31, 2012, Defendants shall consider and decide whether or not to:
a. modify the intake system so that existing providers can conduct intake assessments for easy access to services; b. increase the use of the Wellness and Recovery model and provide training on this model to existing contract and County providers; c. increase, to the extent of available funding, the use of peer staffing/volunteers at the existing contract and County providers; d. increase collaboration between outpatient and inpatient mental health providers (e.g., create a system to give immediate notification to outpatient providers when their clients are hospitalized); and e. develop a 24-hour welcoming line or "warm line" staffed by persons with lived experience. 6. In implementing the measures described in Paragraph 4 above and preceding the decisions on whether or not to implement the measures described in Paragraph 5 above, Defendants shall: a. consider the report dated May 10,2011 of Dr. Nancy Callahan in connection with the proposed redesign; b. hold a minimum of four stakeholders/community input meetings to address consumer/client concerns about existing adult outpatient mental health services and any proposed redesign. These meetings may be held in conjunction with the County's mental health board meetings; c. conduct a minimum of one (1) outreach meeting at each existing outpatient provider (including HRC, TCORE, Northgate Point, Visions, EI Hogar and the two Wellness and Recovery Centers) to seek consumer/client input about existing adult outpatient mental health services and any proposed redesign. These meetings shall be scheduled at
2

Case 2:10-cv-01119-JAM-EFB Document 131 Filed 01/23/12 Page 6 of 7
dates and times convenient for Defendants and the affected outpatient providers; and d. provide an opportunity for public comment at the above meetings and subsequent events and provide, at subsequent meetings, written responses to public questions about any proposed redesign of the County's adult outpatient mental health system. 7. For the duration of this Consent Decree, Defendants shall give advance written notice to counsel at Disability Rights California of any public meeting where discussion of Sacramento County Adult Outpatient Mental Health is on the agenda. Plaintiffs shall advise Defendants of which attorney at Disability Rights California should receive these notices. 8. The parties recognize that Defendants' ability to implement any of the plans discussed in Paragraphs 4 and 5 above or other plans relating to the adult outpatient mental health system for Medi-Cal recipients may require the approval and funding commitment of the State Department of Mental Health and other state agencies. 9. This Consent Decree shall remain in effect through January 31, 2013, at which time the Consent Decree will automatically expire and no longer be of any force or effect. During that time period, the Court shall retain jurisdiction over this lawsuit to enforce the provisions of the Consent Decree. Before filing any motion to enforce the terms of the Consent Decree, counsel for the moving party shall contact counsel for the opposing party to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution. Any such motion shall not be filed until seven (7) days after the parties have conferred to discuss the motion. Upon the expiration of this Consent Decree, this matter will be dismissed with prejudice by the named Plaintiffs. 10. The Court shall also retain jurisdiction over the request by Plaintiffs' counsel to be awarded their co'sts of suit as well as their motion to recover attorneys' fees and litigation-related expenses. The parties shall make good faith efforts to resolve their
3

Case 2:10-cv-01119-JAM-EFB Document 131 Filed 01/23/12 Page 7 of 7

differences as to these issues. Plaintiffs' counsel shall, however, file their cost bill and motion to recover their attorneys' fees and litigation related expenses no later than ninety (90) days after entry of the Consent Decree.

Dated._ _ _ _ _ _ _:, 2012

John A. Mendez United States District Judge

4

 
 i
I ,
I i
I
I
I ;
1
I
I
!

Case 2:10-cv-01119-JAM-EFB Document 139 Filed 05/03/12 Page 1 of 2

1 ROBERT A. RYAN, JR., County Counsel MICHELE BACH, Suyervisingl>eputy
2 rState Bar No. 88948 reNE POWELLS-MAYS, Deputy
3 (State B~r No. 188423) R1CK HEYER, Deputy
d 4 State Bar No. 216150] OUNTY OF SACRAMENTO 5 700 H Street, Suite 2650
Sacramento, CA 95814 6 Tele~hone: (916)874-5540
Facsimile: (916) 874-8207 . 7 E-mail: ·bachm@saccounty.net
File No.: 128.10A . 8
Attorneys for County of Sacra.....ento 9

10

IN THE UNITED STATES DISTRICT COURT FOR

11

THE EASTERN DISTRICT OF CALIFORNIA

12 LESLIE NAPPER, et al.,

13

Plaintiffs,

14 vs.

15 COUNTY OF SACRAMENTO, et al.,

PARTIES' REPORT REGARDING

SETTLEMENT OF PLAINTIFFS'

COUNSELS' FEES, COST AND

EXPENSES·

.

16

Defendants.

17

Judge: Hon. John A. Mendez

18

19

.20

On April 19, 2012 Plaintiffs Leslie Napper, et al., and Defendants County of

21 Sacramento, et at., requested from the Court an extension oHime for the filing by

22 Plaintiffs' counsel of a cost bill and motion to recover fees. At that time the parties

23 advised the Court that the parties had reached agreement on these matters and needed the

24 additional time to fully execute that agreement. The Court granted that request.

25

The parties have now fully executed that agreement and the parties· stipulate that

26 the matter of Plaintiffs' counsel's feest cost and litigation expenses have now been fully 27 resolved. The parties further stipulate that the Court need not retain any further

28

PARTIES' REPORT REGARDING SETTLEMENT OF PLAINTIFFS' COUNSELS' FEES, COST AND EXPENSES - CASE NO. 2:IO-CV·1119

Case 2:10-cv-01119-JAM-EFB Document 139 Filed 05/03/12 Page 2 of 2

1 jUrisdiction over any request byPlaintiffs' coun~el to be, awar4ed their costs of sUIt as

2 we;ll as their motion to recover attorneys' fees and litigation-related expenses.

3

4 DATED: May 1,2012 5 6 7 8 9 10
DATED: May 1,2012 11

So Stipulated.
By:§WIt~ ROBERT D. NEWMAN(SBN 86534) We~tetn Center on Law 8i; Poverty 37{H Wilshire Blvd., Suite 208 Los.Angeles, CA 90010 (213)487·72'11 Attorneys for Plaintiffs'

ROBERT A.
Silctamen~o

RCoYuAntNy,~JRC.at lCifpournntiya

COUllsel

12

13

14

1>

C
~pu!y'

YER Couuty

" Coutisel(SBN 216150)

,7QO H Street, Suite 2650

15

S~cram~n.to; CA 95'81.4

(916)874-7538

16

Atto~eys for Defendants

,17

18

19

20

21

22

23
'24 211S39.doc

25'
26 27
28

SUPPLEMBNTAL JOINT STATUS REpORT AND, RuLB 'l6(F) DISCOVBRY PLAN. CASE NO.2: 1o-CV-1119

 
 Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 1 of 17

1 WILLIAM S. FREEMAN (SBN 82002) MARGARET I. BRANICK-ABILLA (SBN 223600)
2 AMY E. NASH (SBN 264955) COOLEY LLP
3 3175 Hanover Street Palo Alto, CA 94304-1130
4 Telephone: (650) 843-5000

5 STUART SEABORN (SBN 198590) SUZANNA GEE (SBN 170780)
6 JAY KOSLOFSKY (SBN 97024) SEAN RASHKIS (SBN 232533)
7 WILL SCHELL (SBN 252470) DISABILITY RIGHTS CALIFORNIA
8 100 Howe Ave., Suite 235N Sacramento, CA 95825
9 Telephone: (916) 488-9950

10 ATTORNEYS FOR PLAINTIFFS [ADDITIONAL COUNSEL LISTED ON NEXT PAGE]
11

12

UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

LESLIE NAPPER, JANET FISCHER, JACQUIE

15 EICHHORN-SMITH, TED YANELLO, and

16

LYNDA MANGIO, on behalf of themselves and all others similarly situated,

Case No. 2:10-cv-1119 CLASS ACTION

17

18

v.

Plaintiffs,

REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN

19

COUNTY OF SACRAMENTO; BOARD OF SUPERVISORS OF THE COUNTY OF

SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

20 SACRAMENTO; County Supervisor ROGER

Date: July 21, 2010

DICKINSON; County Supervisor JIMMIE YEE; Time: 9:30 am

21 County Supervisor SUSAN PETERS; County

Place: Courtroom 6, 14th Floor

Supervisor ROBERTA MACGLASHAN; County Judge: Hon. John A. Mendez

22 Supervisor DON NOTTOLI; SACRAMENTO

23

COUNTY DEPARTMENT OF BEHAVIORAL HEALTH SERVICES; ANN EDWARDS-

24 BUCKLEY, Director, Department of Behavioral

Health Services; MARY ANN BENNETT, Mental

25 Health Director,

26

Defendants.

27

28

REPLY MPA ISO MOTION FOR PRELIMINARY INJUNCTION – CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 2 of 17

1

ROBERT D. NEWMAN (SBN 86534)

2

KIMBERLY LEWIS (SBN 144870) ANTIONETTE D. DOZIER (SBN 244437)

3

WESTERN CENTER ON LAW AND POVERTY 3701 West Sixth Street, Suite 208

4

Los Angeles, California 90010

Telephone: (213) 487-7211

5

MELINDA BIRD (SBN 102236)

6

DISABILITY RIGHTS CALIFORNIA

7

3580 Wilshire Blvd., Ste. 902 Los Angeles, CA 90010

8

Telephone: (213) 427-8747

9

KIMBERLY SWAIN (SBN 100340)

DISABILITY RIGHTS CALIFORNIA

10

1330 Broadway, Suite 500

11

Oakland, CA 94612 Telephone: (510) 267-1200

12 [ADDITIONAL COUNSEL LISTED ON

13

CAPTION PAGE]

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 3 of 17

1

I.

INTRODUCTION

2 Defendants’ Opposition (“Opp.”) is predicated on false factual assertions, wishful

3 thinking and unsupported legal contentions. The County’s “anticipation” that funding for its

4 redesigned system will be “equal” to the 2009-10 budgeted amount is inconsistent with its

5 original justification for the redesign, is based on receipt of additional state and federal monies

6 that are far from certain to be approved, and improperly counts money that will fund increased

7 expenses related solely to the transition itself, and not ongoing care. The County’s claim that it

8 can provide equivalent services to Plaintiffs ignores both this likely budget shortfall and its own

9 admission that even with equivalent funding, it cannot possibly provide the same services because

10 County employees are more expensive than the contracted workers they would replace.

11 Claiming that this motion is based entirely on the unfounded fears of class members,

12 Defendants fail to address Plaintiffs’ well-founded criticisms of their proposal, which have been

13 advanced by credible experts and administrators with decades of experience in serving people

14 with severe, chronic mental illness. In addition, the recent depositions of the two highest-ranking

15 County mental health officials confirm that the County’s transition plans are haphazard and

16 incomplete.

17 Plaintiffs have convincingly demonstrated that this redesign is unlawful; that it is

18 dangerous and threatens them with immediate and irreparable harm; and that it should be

19 enjoined.

20

II. DEFENDANTS HAVE FAILED TO REBUT PLAINTIFFS’ SHOWING OF IRREPARABLE

21

INJURY IN THE ABSENCE OF PRELIMINARY INJUNCTIVE RELIEF.

22

As Plaintiffs explained in their opening brief, a crucial element in establishing the right to

23 a preliminary injunction is a likelihood of irreparable injury absent judicial relief. Plaintiffs’

24 Memorandum of Points and Authorities in Support of Preliminary Injunction (“Pl. Br.”) at 14,

25 citing Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 374 (2008). Throughout its

26 opposition, the County contends that there will be no injury to Plaintiffs because there will be “no

27 closure or reduction of services” and no change in “the menu or level of outpatient services” it

28 provides. Opp. at 2, 3, 8, 10 n.16, 11, 15, 17, 20, 22, 24. Repeating an assertion, however, does

1.

REPLY MPA ISO MOTION FOR PRELIMINARY INJUNCTION – CASE NO. 2:10-CV-1119

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 4 of 17

1 not make it true. The evidence before this Court confirms that the County’s proposed “hybrid

2 plan” will result in a reduction in services, as well as a disruption in medically necessary

3 treatment that will inevitably result in harm to vulnerable county patients.

4

A. The County Will Not Receive Equivalent Funding for Adult Outpatient

Services in 2010-11. 5

The County states that last year’s funding for services for these 5,000 clients was $18.6

6

million, and claims that funding for its new county clinics will be the same. Opp. at 2:21-24, 3:5-

7

6. The claimed 2010-11 amount is illusory, however, because it includes $6.4 million that may

8

not be allocated and/or will not go to ongoing client services. First, the County includes a one-

9

time allocation by the Board of Supervisors of $2.9 million to fund “transition” expenses. Opp. at

10

2; Bennett Declaration (“Decl.”) (Dkt. No. 88) at 10 & Ex. A (Memorandum of Sacramento

11

County Board of Supervisors (“Bd. Memo”)). Because these funds are for the transition itself, it

12

is obvious that they are not available for ongoing client services in 2010-11, and even more

13

obvious that they will not be available in coming years. Second, the total includes $2.5 million in

14

funding under the Mental Health Services Act (“MHSA”) that may be available “[u]pon approval

15

by the state after a community process,” and that could then trigger an “anticipated” $1 million in

16

federal Medicaid funds. Opp. at 3:1-4. The County’s receipt of these funds is entirely

17

speculative, as they have not been approved or released. See id. Without these two items, the

18

funding for the new County clinics consists only of “$11.3 million for the Sacramento Wellness

19

Centers [and] $.9 million for WRC.” Opp. at 2:25-3:1. This $12.2 million total represents a

20

reduction of one third – $6.3 million – below last year’s budget.

21

Even more unsettling is the fact that all State MHSA funding for the County’s “TCORE

22

Workplan” – a total of over $7.5 million – depends entirely on State approval of this massive

23

change (Opp. at 2), although it has no assurance that the State will approve this change. The

24

County admits that its planned “redesign” requires “State approval” (Bd. Memo at 2) but plans to

25

“front the funding . . . pending compliance with the MHSA.” Id. Proceeding with these cuts

26

without first obtaining state approval is simply reckless, since officials with the State Department

27

28

2.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 5 of 17

1 of Mental Health (“DMH”) have already expressed strong disapproval of the County’s redesign,1

2 and could well deny the County’s request to use MHSA funds for the new County clinics. The

3 County inexplicably failed to initiate the public comment process required before it may submit

4 the required MHSA plan update and amendment request;2 even after it completes this, the State

5 has 60 days to approve or deny the request. Welf. & Inst. Code §5847(g)(1).

6

In fact, the State has not indicated that it will approve the County’s plan, has expressed

7 concerns about the plan, and has not yet responded back to the County’s latest attempts to allay

8 those concerns. Supplemental (“Supp.”) Branick-Abilla Decl., Ex. A (Deposition of Mary Ann

9 Bennett-Treadway) (“Bennett Depo.”) at 69:22-70:11. In the interim, if the County destroys its

10 cost-effective system of Regional Support Teams (“RSTs”) and is then unable to access MHSA

11 funds for its county facilities, Plaintiffs and other needy clients will be left with the worst of all

12 possibilities. The County admits that it does not know what it would do if the State does not

13 approve these funds, and has no alternate plan in place. Id. at 71:12-13, 71:25-72:2. It does not

14 even have a plan in place in the event of a delay in the State’s approval process. Id. at 138:6-9.

15 At a minimum, the County must wait until the State has acted on its request to change its use of

16 MHSA funds before taking irreversible steps to defund the RSTs.

17

B. Even If the County Could Be Assured of Level Funding, Services Would

Be Reduced Due to the Greater Expense of County Workers and Their

18

Lack of Appropriate Training.

19

Even assuming 2010-11 funding remained level, which it will not, the County’s plan will

20 result in a reduced number of staff available to Plaintiffs and other County Medi-Cal patients.

21 County officials have candidly admitted that contracting with private providers is “cost effective”

22 because County employees are far more expensive than the staff of the private non-profits who

23 ___________________________________

1 Branick-Abilla Decl. (Dkt. No. 19), Ex. J (DMH letter). Eventual State approval is made more unlikely by the fact

24

that the “TCORE workplan” approved by the State in 2006 required caseloads of 1:12, and services offered in the

community, including the client’s home, 24 hours per day, 7 days per week. Supp. Branick-Abilla Decl., Ex. B

25

(Three-year MHSA Workplan dated Jan. 31, 2006) at 103. Although the County claims that its new wellness

centers will follow the TCORE workplan, the services are clinic-based, not community-based, have a far higher

26

caseload and will be open only during traditional 9 to 5 business hours. Bennett Depo. at 130:9-15.

27 2 Supp. Branick-Abilla Decl., Ex. C (MHSA Annual Update, 2010-2011) at PRA 001569-1570.

28

3.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 6 of 17

1 now provide services.3 As a result, far fewer staff will be available to provide treatment services 2 under the “hybrid plan.”4

3

In practical terms, this drastic increase in caseload means equally drastic reductions in the

4 services they receive. With a caseload of 75 to 90, workers cannot provide the former TCORE

5 clients with the case management, follow-up, home visits, and counseling they need. Supp.

6 Franczak Decl., ¶¶ 12-14.5 The County argues that the higher caseloads reflect different staffing

7 patterns so that a direct comparison is not possible (Opp. at 6; Weaver Decl. (Dkt. No. 91) at 7),

8 but the bottom line is that there will be fewer staff, and thus, fewer client services. Their lack of

9 experience with community-based social rehabilitation services will only compound these

10 problems. The County’s belief that licensing is sufficient training is no answer, according to an

11 expert in training and credentialing in psychosocial rehabilitation. Dahlquist Decl., ¶ 16.

12

C. The County’s “Hybrid Plan” Is Not Based On the Recovery Model.

13

While Defendants claim to be “committed to the recovery model,” both the structure and

14 planned implementation of the system redesign show otherwise. While Plaintiffs are not here

15 contending that only a recovery model-based system could ever be appropriate, the fact that the

16 new system lacks critical elements of the model Defendants claim to follow demonstrates both

17 the unreliability of Defendants’ blanket statements and the dangers implicit in the transition.

___________________________________ 18 3 Answer to Class Action Complaint (Dkt. No. 68), ¶ 27; Branick-Abilla Decl. (Dkt. No. 19), Ex. I (8/20/09 Meeting

Minutes); Bennett Depo. at 139:7-13.
19

4 The County further concedes that the caseloads of 75 to 90 will be higher than those RSTs, which have a staff ratio

20

of 1:70. Bd. Memo at 10. In fact, the deterioration in staffing ratios is far worse than the County lets on. Under

the RST model, a case-carrying “personal service coordinator” is supported by a team of clinicians who are not

21

counted in the staffing ratio; in the new County model, however, the clinicians are the “case carrying” workers,

meaning that unlike the current system, the County plan “does not provide for clinical staff whose time is devoted

22

only to their clinical specialty.” Supp. Franczak Decl., ¶ 13; see also Stanton Decl., ¶ 13 (noting her site will see

60% reduction in staffing under County redesign, which “will have a significant effect on staff’s ability to provide

23

one-to-one peer support”). For some, the discrepancy in caseloads will be even greater, since TCORE clients have

an even lower caseload ratio of 1:25 at present, a fact that the County conveniently omits. When the 2,000 clients

24

currently served through the County’s TCORE programs are moved to the new county clinics, they can expect a

caseload that is more than 3 times higher than the caseloads of 1:25 they were promised.
25

5 Another unacknowledged cut in services is the transfer of staff from the County’s Adult Access team to the new

26

county clinics. The Access teams are the hub around which all county mental health services turn, since they

handle initial assessments and referrals, crisis referral, involuntary hospitalizations, discharge planning, etc.

27

Branick-Abilla Decl. (Dkt. No. 19), Ex. B (Policy No. 01-03, Access to Services).

28

4.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 7 of 17

1

Dr. Stoneking notes that the County’s claimed dedication to the recovery model is mere

2 “lip service,” as the proposed redesign is “totally missing two critical components” of that model:

3 community collaboration in the planning and design of the delivery system, and services that have

4 been planned by, and are directed by, clients and their families. Second Supp. Stoneking Decl.,

5 ¶ 4. In contrast to the current, client-centric model, the redesign has been imposed on clients

6 from the top down, with no involvement by clients, family members, community members or

7 other stakeholders; County planning and staff meetings are no substitute for a genuine

8 community-involved process. Id., ¶ 6. To make matters worse, despite repeated assurances that

9 newly transferred County workers would be trained in the recovery model, at a recent public

10 meeting Defendants’ declarant Kelli Weaver admitted that such training would not even start until

11 November 2010, three months after the transition of patients begins on August 1. Cecchetini

12 Decl., ¶ 7. Weaver also stated that “all County staff will be expected to be familiar with the

13 clients in the entire work team’s caseload because clients will not be assigned to any specific

14 County staff.” Id. This latter statement makes a mockery of the increased staffing ratios claimed

15 by Defendants, and virtually assures that clients will be unable to develop trusting relationships

16 with individual service providers, as is currently the case.

17

D. Assuming Arguendo No Reduction in Services, Plaintiffs Will Still Suffer

Irreparable Injury From the Disruption of Their Current Treatment. 18

The County argues that “there is absolutely no evidence demonstrating that a provider

19

change will lead to an increased probability of institutionalization or any other type of injury”

20

(Opp. at 9:13-15) and casually dismisses Plaintiffs’ showing of harm as “unsubstantiated fears”

21

(Opp. at 16), and “fear of change.” Opp. at 23, 25. These claims are incorrect, factually and

22

clinically.

23

Defendants fail to address or rebut the testimony of Plaintiffs’ expert, Dr. Michael

24

Franczak, that mental health providers “are not interchangeable.” Franczak Decl. (Dkt. No. 32),

25

¶ 15. In his supplemental declaration, Dr. Franczak expands on the damaging impact of the loss

26

of provider continuity, citing extensive research on the better outcomes and lower treatment costs

27

when clients have long-term relationships with their mental health providers. Supp. Franczak

28

5.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 8 of 17

1 Decl., ¶¶ 4-9. The converse is also true: outcomes are worse when there is no therapeutic bond

2 or alliance with the provider, or when this bond is broken. Id. Extensive research confirms the

3 importance of continuity of care and long-term treatment relationships. Id.

4

Second, the clients affected by the closure of the RSTs and TCORE are acutely mentally

5 ill and are at great risk of self-harm or harm to others when their fears and anxiety escalate, even

6 if County officials deem these “unsubstantiated.” For example, Plaintiff Eichhorn-Smith has had

7 numerous suicide attempts, she views the closure of her treatment program as a major loss, and

8 losing services will result in decompensation and risk of self-harm or institutionalization.

9 Eichhorn-Smith Decl. (Dkt. No. 30), ¶¶ 5, 12; Supp. Cline Decl. ¶ 1.

10

Defendant Ann Edwards-Buckley, the County’s Director of Health and Human Services

11 (“DHHS”), candidly acknowledges that as a result of the transition process, clients may

12 experience “increased acuity,” which means that they “may have an increase in their symptoms,

13 whatever those symptoms may be; depressive symptoms, anxiety symptoms, psychotic

14 symptoms”; that “it would be a good idea for the County to plan” for this increase; and that she is

15 unaware of any plans by the County to deal with increased client acuity. Supp. Branick-Abilla

16 Decl., Ex. D (Deposition of Ann Edwards-Buckley) (“Edwards-Buckley Depo.”), at 82:18-83:12.

17 Dr. Franczak concludes that the County’s failure to plan for increased acuity from the transition is

18 “extremely cavalier and even dangerous to affected clients.” Supp. Franczak Decl., ¶ 16.

19

III. DEFENDANTS HAVE FAILED TO REBUT PLAINTIFFS’ STRONG SHOWING OF

LIKELIHOOD OF SUCCESS ON THEIR LEGAL CLAIMS.6

20

A. Defendants’ Evidence Confirms That Their Planned Reductions Will

21

Violate the ADA.

22

Plaintiffs’ ADA claims arise from the likelihood that the reduction in, and disruption of,

23 essential mental health services will create an extreme risk of institutionalization to clients who

24 ___________________________________

6 Plaintiffs also raised claims under the Medicaid Act and the Due Process Clause of the U.S. Constitution. Pl. Br. at

25

18-22. Plaintiffs do not revisit these claims in this brief because of the doctrine of constitutional avoidance, and

because they turn on the same factual showing as Plaintiffs’ ADA claims. The core element of the Medicaid claims

26

is the denial of medically necessary services, which in turn leads to the risk of institutionalization. Similarly, the

validity of the due process claim is premised on the existence of a reduction in services. If Plaintiffs prevail on

27

their ADA claims, they are also likely to prevail on these additional claims.

28

6.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 9 of 17

1 are able to remain safely in the community only with these services. Pl. Br. at 15-16. Distilled to

2 its essence, Defendants’ response is that because their “hybrid plan” differs in minor details from

3 earlier concepts, Plaintiffs have shown “no nexus between the Hybrid Plan and the potential for

4 institutionalization.” Opp. at 16:13-14. This ignores the many declarations already in the record

5 regarding fundamental consequences of Defendants’ decision to disrupt a well-functioning

6 system that provides cost-effective treatment to thousands of fragile individuals with mental

7 illness. Because the “hybrid plan,” like its precursors, will result in 5,000 people losing their

8 trusted mental health providers and facing transfer to a program that is not as well staffed, it is

9 inevitable that many clients will decompensate and require hospitalization and placement in a

10 locked facility. Even with the best transition plan, some clients will go into crisis and needlessly

11 end up in institutions when they could have remained safely in the community with their current

12 providers.7

13

Plaintiffs also argued that, if the County is permitted to proceed with these cuts, the ADA

14 nonetheless requires it to provide an adequate transition plan, and that the transition plan proposed

15 by the County would not ensure that Plaintiffs are able to transfer successfully to the new system.

16 Pl. Br. at 17. The County counters that the transition efforts criticized in the Complaint and

17 opening brief are inapplicable to its new “hybrid plan.” Opp. at 16. Other than allowing a slightly

18 longer period of time, transition plan described in the “hybrid plan” still omits all the elements

19 deemed necessary by clients, providers and experts.

20

According to Plaintiffs’ experts, Dr. Franczak and Dr. Stoneking, the County’s plan,

21 which is little more than a plan to transfer clinical records and a group appointment with the new

22 team, is inadequate to ensure continuity of care and fails to meet nationally recognized standards

23 for a safe or successful transition for this extremely vulnerable population. Supp. Franczak Decl.,

24 ¶¶ 20-23. The County’s proposal is silent as to essential components of adequate transition

___________________________________ 25 7 As Dr. Franczak’s supplemental declaration shows, clients with severe mental illness should not be deliberately

subjected to the loss of a provider because discontinuity of care has negative effects on clients. See Supp. Franczak

26

Decl., ¶¶ 4-9 & Ex. A (Green article) at 15 (“high clinician turnover . . . may negatively affect patients”). Even

Defendant Edwards-Buckley admitted that, all other things being equal and assuming a good relationship with

27

one’s provider, one would not choose to change providers. Edwards-Buckley Depo. at 94:18-25.

28

7.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 10 of 17

1 planning, including consideration of all aspects of the individual’s needs across service systems,

2 collaboration among service providers, responsiveness to “special populations” such as those with

3 co-occurring disorders, plans to address relapses, and monitoring outcomes. Id., ¶ 22. The plan to

4 transfer hundreds of individuals per week does not allow for the high probability of broken

5 appointments and some individuals’ need for a lengthier transition period than the 10 days

6 contemplated by the County. Id., ¶ 21; see also Second Supp. Stoneking Decl., ¶ 13. Dr.

7 Stoneking concludes that it is “troubling” that the County “believes it can transfer most patients

8 with simply a phone call from the new provider.” Second Supp. Stoneking Decl., ¶ 13. In Dr.

9 Franczak’s opinion, a properly-planned transition would require a minimum of six months. Supp.

10 Franczak Decl., ¶ 22. Dr. Stoneking notes that when the RSTs were created in 1993, the transition

11 took place over a period of over 16 months. Second Supp. Stoneking Decl., ¶ 5.

12

The proposed transition plan is also largely incomplete, even at this late date. Dr.

13 Stoneking observed that “the ‘redesigned’ system was, at best, half-baked when it was approved

14 by the Board of Supervisors in June 2010, with many critical details totally missing from the

15 proposal document submitted to the Board, and yet to be worked out.” Id., ¶ 8.

16

The deposition testimony of Ms. Edwards-Buckley and Ms. Bennett confirm the

17 shockingly haphazard nature of the County’s transition planning, and the continuing lack of plans

18 critical to a successful transition. Neither of the top two County officials responsible for the

19 system redesign appears to know anything about a myriad of planning and process steps that are

20 essential to a successful transition. Ms. Edwards-Buckley repeatedly stated that Ms. Bennett

21 would be the person to ask about such details, but Ms. Bennett repeatedly testified that she was

22 unaware of them. For example, she did not know about what instructions their “phone bank” staff

23 are being given for dealing with client calls (Bennett Depo. at 91:17-92:3); whether clinicians

24 have been trained to follow up on questions raised by those calls (id. at 92:12-19); whether the

25 phone bank staff will even attempt to contact all consumers (id. at 94:4-6); whether any patient

26 records have yet changed hands (id. at 96:25-97:1); what plan, if any, is in place to follow up with

27

28

8.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 11 of 17

1 clients who fail to show up for appointments8 with the new County providers (id. at 106:14-18,

2 107:11-15; see also Edwards-Buckley Depo. at 81:3-24); whether the new County clinics will

3 provide for “drop-in” appointments”9 (Bennett Depo. at 119:18-20); what the plan is for serving

4 consumers who are in crisis10 (Id. at 120:8-14); what will happen at the new clinics when clients

5 need services after regular business hours, i.e. in the evenings or on weekends11 (id. at 130:9-20;

6 see also Edwards-Buckley Depo. at 65:1-14); whether any of the County staff coming over from

7 other locations have experience with the “recovery model” (Bennett Depo. at 134:12-14); or

8 whether the training module for incoming staff is even complete (id. at 138:13-21). The only

9 conclusion to be drawn from this remarkable testimony is that, at best, the County simply has not

10 thought through many important service issues, and at worst, there simply will be no such services

11 (such as after-hours crisis services).

12

Moreover, in the opinion of Plaintiffs’ expert, Dr. Beth Stoneking, the transition plans that

13 Defendants have announced are woefully inadequate. Callers to County phone lines have already

14 received inadequate information leading to stress and anxiety (Zykofsky Dec. (Dkt. No. 89) at 10;

15 Second Supp. Stoneking Decl., ¶ 8); it appears that “only [clients] who complain or visibly

16 decompensate will receive any attention from the County,” while many who experience stress less

17 overtly will not be attended to. Second Supp. Stoneking Decl., ¶ 9. Dr. Stoneking opines that the

18 notion that clients can be transitioned without intake appointments “reflects a disregard for

19 appropriate standards of care” because an involuntary transfer creates issues that only an interview

20 can reveal. Id., ¶ 13.

21

Defendants attempt to trivialize Plaintiffs’ concerns regarding transition, claiming that this

___________________________________ 22 8 In contrast, RSTs have established procedures to ensure that clients attend their appointments, and to follow up with

any clients that fail to show. See, e.g., Supp. Buck Decl., ¶ 5
23

9 RSTs, on the other hand, offer flexible hours and drop-in groups and clinics. See, e.g., Supp Bolte Decl., ¶ 11.
24

10 In contrast, RST staff are prepared to work with clients in crisis, regardless of where they are or what time it is, for

25

as long as it takes to stabilize the clients. Id., ¶ 8.

26 11 RST staff understand that their hours are dictated by the needs of their clients. As Alexan Bolte explained,

“Providing service under the recovery model means you meet the needs of your client where the client is at the time

27

during the week or weekend.” Id., ¶ 8.

28

9.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 12 of 17

1 merely a veiled attempt to preserve the present system “in perpetuity.” Opp. at 18. There is a

2 world of difference between preserving the present system untouched (which Plaintiffs do not seek

3 to do), and blowing up a well-functioning “life support” system on which 5,000 severely ill

4 individuals depend. Plaintiffs would never dispute that the County can make changes in the

5 system, terminate contractors based on poor productivity or quality concerns, or develop new

6 systems based on increased efficiencies and treatment modalities. However, the County fails to

7 acknowledge how drastic and unprecedented a change it is proposing.12

8

New and striking evidence supporting Plaintiffs’ ADA claim comes, surprisingly, from

9 the County’s own opposition. As part of its “hybrid plan,” Sacramento is actually increasing its 10 spending on locked, institutional mental health care by 13.6%.13 Defendants’ declarations are

11 also replete with admissions that they have deliberately redirected the entire budget for the

12 regional support teams – $4.5 million – to support salary increases and other costs in the County-

13 run Mental Health Treatment Center (“MHTC”), a locked inpatient facility, and a locked 12 bed 14 psychiatric health facility.14 Every county in California is facing a fiscal crisis, but only

15 Sacramento has chosen to increase costly institutional care. Dahlquist Decl., ¶ 7. County

16 ___________________________________

12 County staff point to their past experiences transitioning other clients to new providers and delivery systems.

17

Zykofsky Decl. (Dkt. No. 89) at 5. Neither of the two examples cited are comparable for several reasons. First, the

two earlier transitions were necessary to improve client services. Here, the County has no complaint about the

18

quality or efficacy of the services provided by the RSTs and TCORE-HRC. Edwards-Buckley Depo. at 74:8-75:2;

Bennett Depo. at 74:8-19. In fact, it hopes to provide the same services through the re-design. Bd. Memo at 9-10.

19

Second, the scale of this proposed transfer is unmanageable, according to national experts familiar with mental

health systems. In Arizona, when a mental health managed care plan comparable to that operated by Sacramento

20

went into bankruptcy and collapsed, government officials wisely decided not to disturb any clinical relationships,

and changed administrative staff instead. Supp. Franczak Decl., ¶ 3.
21

13 Of the County’s $75.6 million Adult Mental Health 2010-11 budget, $38.3 million is allocated for institutional or

22

inpatient care – a $4.5 million or 13.6% increase from the previous year. King Decl. (Dkt. No. 85) at 1:27-28;

1:25-26. Contrast this to the budget of $37.3 million for outpatient services, which includes a decrease from last

23

year’s allocation of $18.6 million for the Adult Mental Health Outpatient program to $12.1 million this year – an

approximately $6.5 million slash, over one-third of the budget. See id.
24

14 “DHHS decided to utilize the realignment funds for acute, sub-acute, Psychiatric Health Facility (PHF) and

25

SMHTC beds.” Bennett Decl. (Dkt. No. 99) at 2:22-23; “[R]ealignment funds, which have historically been used

to fund the contractor-operated component of the Adult Outpatient Services, were no longer available for the

26

RSTs”; realignment funds are depleted due to declining revenue, reimbursement of transfer funds and “increased

compensation and benefits for County employees” working at the MHTC. Kennedy Decl. (Dkt. No. 92) at 2:23-25;

27

2:22; see also Bennett Depo. at 32:23-33:13 (realignment funds were moved from the RSTs to the MHTC).

28

10.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 13 of 17

1 officials claimed that this heightened spending was necessitated by increased demand, but one

2 expert observes:

3

Many other counties satisfy their obligations under their Medi-Cal managed care

without operating a locked inpatient facility of their own, as Sacramento does.

4

In fact, twenty five California counties do not have any inpatient psychiatric

services at all. . . . [O]ther counties . . . have developed and utilized crisis

5

residential programs as alternatives to hospital-based acute care.

6 Id., ¶ 12.

7

This expert notes that Sacramento also has the second-highest rate of involuntary

8 detentions in the state, an “extremely high rate” that is more than twice the state average and “is

9 associated with the fact that the County lacks capacity in its community-based services so that it

10 can only channel clients to [its locked inpatient facility] rather than use the alternatives that many

11 other counties offer.” Id., ¶14. Defendants claim these decisions are discretionary (Opp. at 11,

12 13), but under the ADA, a public entity “cannot amend optional programs in a way so as to

13 violate the integration mandate.” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182 (10th

14 Cir. 2003).

15

Defendants further admit that they have failed to pursue alternatives for funding the

16 current adult outpatient program using MHSA monies (Bennett Decl. (Dkt. No. 88) at 2:15-21) as

17 well as failing to consider reconfiguration of the MHTC into smaller facilities which would draw

18 down millions in federally matched Medicaid dollars. Dahlquist Decl., ¶ 15. Such failure to

19 consider alternatives that preserve community care and conform with the ADA’s integration

20 mandate are actionable. See Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F. 3d

21 374, 380 (3d Cir. 2004) (finding that state’s budgetary constraints defense alone was inadequate

22 and scrutinizing factors including state efforts to procure funding for community services,

23 evidence that the state responsibly spent its budgetary allocations, and trends showing decreased

24 reliance on institutional beds and increases in community services); Sanchez v. Johnson, 416 F.3d

25 1051, 1067 (9th Cir. 2005) (upholding state fundamental alteration defense where state showed

26 196% increase in funding for community options, actual increase in community services and

27 decrease in reliance on institutional beds over 10 year period).

28

11.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 14 of 17

1

B. Plaintiffs’ Motion is Not Moot.

2

Defendants claim that the Court is powerless to grant relief because the motion is “based

3 upon a service delivery model that was never implemented by the County.” (Opp. at 11:20-21.)15

4 As an initial matter, this assertion is factually incorrect because the County plan is virtually 5 indistinguishable from the “County Proposal” outlined at a public meeting on April 1, 2010.16

6 More fundamentally, however, the relief sought is not dependent on the precise contours of the

7 plan adopted by the County. Rather, Plaintiffs seek an order enjoining the Defendants from

8 “terminating or reducing” the funding for the existing outpatient programs, or making reductions 9 in medically necessary services, “unless and until the Court has determined” that, among other 10 things, Plaintiffs “will continue to receive these . . . services in the most integrated setting 11 possible . . . .” [Proposed] Order (Dkt. No. 52), ¶ 2(a). As it is uncontested that Defendants are 12 terminating the existing programs (see, e.g., Opp. at 1:6-8), the County must demonstrate that its 13 proposed replacement system complies with the ADA’s integration mandate and protects

14 Plaintiffs’ other rights.

15

C. The Court Has Authority to Enjoin Action That Violates Plaintiffs’

Fundamental Rights.

16 Defendants next argue that the Court is powerless to enjoin violations of Plaintiffs’ rights

17 where an injunction would require the County to enter into new contracts with existing provider

18 contracts. This frivolous argument simply wishes away the long-established role of the judiciary

19 in evaluating states’ resource allocations pursuant to the three-part test set forth in Olmstead v. L.

20 C. ex rel Zimring, 527 U.S. 581, 607 (1999) (states are required to provide community-based

21 treatment where, among other things, “the placement can be reasonably accommodated, taking

22

___________________________________ 23 15 Defendants also criticize the timing of the motion, but that was necessitated by the timing of the County’s actions.

The County informed Plaintiffs that it intended to start transitioning clients (patients) to its new system on July 1,

24

2010, but that the Board would not even consider, much less approve, the new system until mid-June; at the same

time, the County opposed Plaintiffs’ request to consider this motion at the earliest possible time. See Dkt. No. 59.

25

This left Plaintiffs with no choice but to file the motion for preliminary injunction prior to the Board’s action.

26 16 The County stated at this time that it intended to “[e]xpand the County-operated TCORE-APSS program”, “staff

the County Clinics with . . . staff identified for termination”, and create County clinics “in facilities where the

27

county currently has vacant leased space.” See Branick-Abilla Decl. (Dkt. No. 19), Ex. F, Attachment B at 2.

28

12.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 15 of 17

1 into account the resources available to the State . . . .”). Not surprisingly, this argument is not

2 supported by a single case under the ADA or the Rehabilitation Act. Its sole support is a pair of

3 non-ADA municipal contract cases in which California courts rejected challenges by losing

4 bidders, on the basis that courts should ordinarily “declin[e] to inquire into legislative thought

5 processes or motives.” Mike Moore’s 24-Hour Towing v. City of San Diego, 45 Cal. App. 4th

6 1294, 1305 (1996) (citations omitted). The instant case, however, does not require a re-

7 examination of legislative motivations; the Court can, and should, grant injunctive relief for the

8 simple reason that the County’s proposed redesign violates the Olmstead mandate.

9

D. This Controversy is Justiciable.

10

Plaintiffs have standing to seek the requested injunctive relief. A plaintiff seeking a

11 preliminary injunction must show that “he is under threat of suffering an ‘injury in fact’ that is

12 concrete and particularized; the threat must be actual and imminent, not conjectural or

13 hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be

14 likely that a favorable judicial decision will prevent or redress the injury.” Summers v. Earth

15 Island Institute, 129 S. Ct. 1142, 1149 (2009); Nelson v. Nat’l Aeronautics & Space Admin., 530

16 F.3d 865, 873 (9th Cir. 2008). A plaintiff can show standing by presenting evidence in the form

17 of verified complaints, declarations, or affidavits that establish the likelihood that he will suffer

18 injury as a result of the conduct sought to be enjoined. See, e.g. Summers, 129 S. Ct. at 1149-

19 1150 (affidavits used to decide question of standing for preliminary injunction).

20

Here, Defendants assert that Plaintiffs lack standing because their complaint and

21 declarations were prepared prior to submission of the so-called “hybrid plan.” (Opp. at 14:26-

22 15:8.) In making such an argument, Defendants seek to sweep under the rug all of their prior

23 actions that necessitated the filing of the preliminary injunction motion in the first place. The

24 declarations are accurate and highly relevant evidence of the disorder, confusion and poor

25 planning that have characterized Defendants’ actions since they announced in April 2010 that

26 they were closing most of the adult outpatient mental health programs. Those issues did not

27 simply disappear on June 17, 2010 when the Board adopted the County’s so-called “hybrid plan.”

28 Plaintiffs and other class members faced – and continue to face – real threat of injury due to an

13.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 16 of 17

1 impending reduction in medically necessary mental health services as a result of the County’s

2 actions. Defendants’ standing argument is therefore baseless.

3

IV. GIVEN DEFENDANTS’ FAILURE TO IDENTIFY A JUSTIFICATION FOR DISRUPTING

MEDICALLY NECESSARY TREATMENT TO 5,000 VULNERABLE CLIENTS, THE PUBLIC

4

INTEREST AND THE BALANCE OF EQUITIES TIP SHARPLY IN PLAINTIFFS’ FAVOR.

5

Under Winter, plaintiffs must also show that the balance of equities tips sharply in their

6 favor. 129 S. Ct. at 374. Plaintiffs have already made this showing with evidence that preserving

7 the current system will save public funds, since the outpatient services provided by private

8 contractors are far more cost-effective than those provided by county employees or in locked

9 institutions. Pl. Br. at 24.

10

The County’s Opposition is surprising, for it offers no pressing reason for changing its

11 entire delivery system and disrupting medically necessary mental health care to 5,000 people.

12 The County simply asserts its “legislative discretion” to make any change it chooses. Opp. at 14.

13 Initially, the County cited its budget crisis (Opp. at 2), but later claimed that there will be no

14 reduction in funding because it has “found” additional funds.17 Opp. at 2-3; Bd. Memo at 3. The

15 most consistent justifications cited by County officials for closing the RSTs have been the County

16 Charter provision known as “Section 71-J” that protects public employees from layoffs, and other

17 civil service protections. See, e.g., Branick-Abilla Decl. (Dkt. No. 19), Ex. F at 2-3 &

18 Attachment B (4/1/10 Meeting Minutes). At public meetings, County officials stated that point of

19 the “redesign” was to save the jobs of forty County employees scheduled for layoffs, but who will

20 now be transferred to positions in the new County clinics.18 Similarly, the County is transferring

21 $4 million from the RSTs to cover increased costs of raises and salary increases for DHHS staff.

22 Bd. Memo at 3. The County could secure inpatient services more cheaply from private

23 contractors but claims it cannot do so because of Section 71-J and civil service protections for the

___________________________________ 24 17 The County’s “new funds” are from the MHSA, and it originally claimed that prohibitions against supplantation of

funds prevented the use of MHSA funds to support the RSTs. Bd. Memo at 7. However, in her deposition, the

25

DHHS Director reversed her position, conceding that the County could have requested MHSA funding to maintain

the RSTs and TCORE but decided against it. Edwards-Buckley Depo. at 98:7-22. Thus, the DHHS director

26

confirmed that restrictions on the use of MHSA funds are not a justification for defunding the RSTs.

27 18 Branick-Abilla Decl. (Dkt. No. 19), Ex. F at 2-3 & Attachment B (4/1/10 Meeting Minutes).

28

14.

Case 2:10-cv-01119-JAM-EFB Document 99 Filed 07/14/10 Page 17 of 17

1 county employees at the MHTC. See Edwards-Buckley Depo. at 28:7-14. However, when it

2 comes to arguing its case before this Court, the County’s Opposition is silent as to Section 71-J,

3 leaving it with no justification at all.

4

The County also argues that an injunction preventing termination of funding for the RSTs

5 will require it to reduce services in other, equally essential areas. Opp. at 24. To the contrary, the

6 funds already allocated by the County to fund a transition to the new system ($2.9 million) will

7 largely cover the short-term costs of an injunction. If the County then proceeds to seek MHSA

8 funds to continue the RSTs, as many have suggested, it will be in the same situation as it is now

9 but without the need to pay for a costly transfer process , and no risk of needless harm to clients.

10

Since the County offers no compelling justification for its decision to terminate funding to

11 the mental health providers on which 5,000 individuals have relied, and since these services are

12 also more cost-effective and less costly than services provided by County employees, especially

13 in the County’s inpatient facilities, the balance of equities tips sharply in Plaintiffs’ favor, and the

14 public interest favors issuance of an injunction.

15

V. CONCLUSION

16

In the words of Dr. Franczak, the County’s plan “will reduce available funding by at least

17 30%, decrease staffing capability, fails to account for the probability of higher acuity and crises of

18 affected participants, and contains wholly inadequate transition planning. The result of this folly

19 will be irreparable harm to individuals in the form of clinical regression, increased hospitalization

20 and institutionalization, injury, illness, and death.” Supp. Franczak Decl., ¶ 27. Plaintiffs

21 respectfully request that the proposed preliminary injunction order issue.

22 Dated: July 14, 2010
23

COOLEY LLP

24

By:

/s/ William S. Freeman

25

WILLIAM S. FREEMAN

26

Attorneys for Plaintiffs

27

28 867230/HN

15.

 
 Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 1 of 14

1 ROBERT A. RYAN, JR., County Counsel

MICHELE BACH, Supervising Deputy

2 [State Bar No. 88948]

RICK HEYER, Deputy

3 [State Bar No. 216150]

COUNTY OF SACRAMENTO

4 700 H Street, Suite 2650

Sacramento, CA 95814

5 Telephone: (916) 874-5540

Facsimile: (916) 874-8207

6 E-mail: bachm@saccounty.net

File No.: 128.10A

7

Attorneys for Defendants

8

County of Sacramento, et al.

9

IN THE UNITED STATES DISTRICT COURT FOR

10

THE EASTERN DISTRICT OF CALIFORNIA 11

LESLIE NAPPER, et aI., 12

Case No. 2:10-CV-01119-JAM-EFB

Plaintiffs,

13 vs.
14
COUNTY OF SACRAMENTO, et aI.,

ANSWER TO CLASS ACTION
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

15

Date: N/A

Defendants. 16

Time: N/A

h

Place:Courtroom 6, 14t Floor

Judge:Hon. John A. Mendez 17

18
Defendants County of Sacramento (hereinafter "County"), Board of Supervisors of 19
the County of Sacramento, Roger Dickinson, Susan Peters, Roberta MacGlashan, Don 20
Nottoli, Sacramento County Department of Behavioral Health Services, Ann Edwards21
Buckley and MaryAnn Bennett (hereinafter "Defendants") answer the Class Action
22
Complaint for Injunctive and Declaratory Relief in this matter as follows: 23
1. Answering Paragraphs 1-5, Defendants deny each and every allegation 24
thereof. 25
2. Answering Paragraph 6, Defendants admit that the County experienced a 26
budget shortfall for fiscal year 2010-11 of approximately $181 million and that mental 27
health services were subject to budget reductions. Defendants further admit that as a civil 28
1

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 2 of 14

1 service county, the County is prohibited from contracting for services that are ordinarily

2 and customarily provided by civil service employees when County civil service

3 employees are being laid off. Except as expressly admitted, Defendants deny each and

4 every remaining allegation of Paragraph 6.

5

3. Answering Paragraph 7, Defendants allege that the cited statutes speak for

6 themselves. Except as expressly admitted, Defendants deny each and every remaining

7 allegation of Paragraph 7.

8

4. Answering Paragraphs 8-10, Defendants deny each and every allegation

9 thereof.

10

5. Answering Paragraphs 11-13, Defendants deny each and every allegation

11 thereof.

12

6. Answering Paragraph 14, Defendants admit that they operate and perform

13 their official duties in Sacramento County. Except as expressly admitted, Defendants

14 deny each and every remaining allegation thereof.

15

7. Answering Paragraphs 15-19, Defendants are without sufficient

16 information or belief to answer the allegations of Paragraphs 15-19 and, basing their

17 denial thereon, deny each and every allegation thereof.

18

8. Answering Paragraph 20, Defendants deny that there is a Department of

19 Behavioral Health Services. Defendants affirmatively allege that there is a Mental Health

20 Division within the Department of Health and Human Services (hereinafter "DHHS").

21 Defendants admit that the County is a local government and receive state and federal

22 funding, and that DHHS has promulgated policies and procedures relating to the Mental

23 Health Plan. Defendants further admit that the Mental Health Plan defines the County's

24 obligation to provide mental health services to the County's Medi-Cal recipients and that

25 the County receives federal and state funding for those services. Except as expressly

26 admitted, Defendants deny each and every remaining allegation of Paragraph 20.

27

9. Answering Paragraph 21, Defendants admit that the Board of Supervisors is

28 the governing body of the County. Except as expressly admitted, Defendants deny each 2

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 3 of 14

1 and every remaining allegation of Paragraph 21.

2

10. Answering Paragraph 22, Defendants admit the allegations thereof.

3

11. Answering Paragraph 23, Defendants admit that DHHS is a department of

4 the County and is responsible for providing services to adults and seniors, including

5 mental health services, that the County receives federal and state funds which are

6 disbursed to DHHS for miscellaneous services and programs, that its mission statement is

7 as partially quoted. Except as expressly admitted, Defendants deny each and every

8 remaining allegation of Paragraph 23.

9

12. Answering Paragraph 24, Defendants admit that Ann Edwards-Buckley is

10 the current Director of DHHS and is responsible for the services and programs specified

11 in DHHS' establishing ordinance. Defendants admit that she is sued only in her official

12 capacity. Except as expressly admitted, Defendants deny each and every remaining

13 allegation of Paragraph 24.

14

13. Answering Paragraph 25, Defendants admit that MaryAnn Bennett is the

15 current Mental Health Director in DHHS and that she is responsible for the oversight and

16 administration of mental health services provided via the Mental Health Division of

17 DHHS. Defendants admit that she is sued only in her official capacity. Except as

18 expressly admitted, Defendants deny each and every remaining allegation of Paragraph

19 25.

20

14. Answering Paragraphs 26-31, Defendants deny each and every allegation

21 thereof.

22

15. Answering Paragraphs 32-41, Defendants allege that the statutes and

23 regulations cited speak for themselves. Except as expressly admitted, Defendants deny

24 each and every remaining allegation of Paragraphs 32-41.

25

16. Answering Paragraph 42, Defendants allege that the cited regulation speaks

26 for itself. With respect to the remaining allegations of Paragraph 42, Defendants are

27 without sufficient information or belief to answer the allegations thereof and, basing their

28 denial thereon, deny each and every allegation thereof.
3

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 4 of 14

1

17. Answering Paragraph 43, Defendants allege that the regulations speak for

2 themselves. Except as expressly admitted, Defendants deny each and every remaining

3 allegation of Paragraph 43.

4

18. Answering Paragraph 44, Defendants allege that Defendant Sacramento

5 County is the designated Mental Health Plan which has an obligation to provide specialty

6 mental health services in accordance with state and federal law. Defendants are without

7 sufficient information or belief to answer the remaining allegations of Paragraph 43 and,

8 basing their denial thereon, deny each and every allegation thereof.

9

19. Answering Paragraph 45, Defendants admit the allegations thereof.

10

20. Answering Paragraph 46, Defendants admit that it utilizes a network of

11 contract providers to provide some, but not all, of mental health services. Defendants

12 further admit that many of the private providers of mental health services are non-profit

13 community based organizations. Except as expressly admitted, Defendants deny each

14 and every remaining allegation of Paragraph 46.

15

21. Answering Paragraph 47, Defendants admit that it operates an Access

16 Team which acts as the gate-keeper for Medi-Cal clients, that the Access Team is staffed

17 by staff that specialize in services to adults and children, that the Access Team accepts

18 requests for service, assesses the client's level of need and authorizes services based on

19 that determination and eligibility, makes referrals to county and contract providers and

20 determines re-authorizations of service. Except as expressly admitted, Defendants deny

21 each and every remaining allegation of Paragraph 47.

22

22. Answering Paragraph 48, Defendant DHHS has implemented an Adult

23 Mental Health Services Policy and Procedure Manual that governs access to county Adult

24 Mental Health Services. Defendants allege that the Manual speaks for itself. Except as

25 expressly admitted, Defendants deny each and every remaining allegation of Paragraph 26 48.

27

23. Answering Paragraph 49, Defendants deny each and every allegation

28 thereof. 4

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 5 of 14

1

24. Answering Paragraph 50, Defendants allege that the cited report speaks for

2 itself. Except as expressly admitted, Defendants deny each and every remaining

3 allegation of Paragraph 50.

4

25. Answering Paragraph 51, Defendants allege that a number of factors led to

5 the need for rolling closures of the Mental Health Treatment Center. Except as expressly

6 admitted, Defendants deny each and every remaining allegation of Paragraph 51.

7

26. Answering Paragraph 52, Defendants admit that there were budget

8 reductions to mental health services in 2009. Defendants further allege that they are

9 without sufficient information or belief with respect to the last sentence of Paragraph 52

lO and, basing their denial thereon, deny each and every allegation thereof. Except as

11 expressly admitted, Defendants deny each and every remaining allegation of Paragraph

12 52.

13

27. Answering Paragraph 53, Defendants admit that Defendant Bennett made

14 the quoted statement. Defendants also admit that reductions occurred in mental health

15 funding for contracted agencies in 2009. Except as expressly admitted, Defendants deny

16 each and every remaining allegation of Paragraph 53.

17

28. Answering Paragraph 54, Defendants allege that the cited report speaks for

18 itself. Except as expressly admitted, Defendants deny each and every remaining

19 allegation of Paragraph 54.

20

29. Answering Paragraph 55, Defendants admit that beds in acute and subacute

21 facilities that are necessary to provide the appropriate level of mental health services for

22 gravely mentally ill residents have cost the County millions of dollars. Except as

23 expressly admitted, Defendants deny each and every remaining allegation of Paragraph

24 55.

25

30. Answering Paragraph 56, Defendants deny that the County's Adult Mental

26 Health Service Directory identifies the RSTs as the only outpatient source of

27 comprehensive mental health and medication services for adults in the County. Except as

28 expressly denied, Defendants admit the remaining allegations of Paragraph 56. 5

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 6 of 14

1

31. Answering Paragraph 57, Defendants admit the allegations thereof.

2

32. Answering Paragraph 58, Defendants deny that the four RSTs at present

3 serve 3600 clients per year. Except as expressly denied, Defendants admit the remaining

4 allegations of Paragraph 58.

5

33. Answering Paragraph 59, Defendants admit the allegations thereof.

6

34. Answering Paragraph 60, Defendants deny the cited staffing ratio for Level

7 II care. Defendants are without sufficient information or belief to answer the remaining

8 allegations and, basing their denial thereon, deny each and every allegation thereof.

9

35. Answering Paragraph 61, Defendants deny each and every allegation

10 thereof.

11

36. Answering Paragraph 62, Defendants admit that TCORE is an MHSA-

12 approved workplan that consists of a County-operated component and a contractor-

13 provider component. Defendants further admit that it focuses on clients who are

14 discharged from acute treatment settings or at risk of entering acute care settings who are

15 not linked to other mental health services. Except as expressly admitted, Defendants

16 deny each and every remaining allegation of Paragraph 62.

17

37. Answering Paragraph 63, Defendants admit that TCORE serves adult

18 Medi-Cal recipients. Except as expressly admitted, Defendants deny each and every

19 remaining allegation of Paragraph 63.

20

38. Answering Paragraph 64, Defendants admit the allegations thereof.

21

39. Answering Paragraph 65, Defendants allege that the report speaks for itself.

22 Defendants further allege that the service capacity of the Wellness and Recovery Centers

23 includes clients receiving self help and peer services as well as clients who receive Level

24 II MHP mental health/medication support services. Except as expressly admitted,

25 Defendants deny each and every remaining allegation of Paragraph 65.

26

40. Answering Paragraph 66, Defendants admit that the listed programs provide

27 outpatient mental health services to County mental health patients. Except as

28 expressly admitted, Defendants deny each and every remaining allegation of Paragraph 66. 6

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 7 of 14

1

41. Answering Paragraph 67, Defendants admit that Defendant Bennett issued

2 a March 16,2010, memorandum and further allege that the memorandum speaks for

3 itself. Except as expressly admitted, Defendants deny each and every remaining

4 allegation of Paragraph 67.

5

42. Answering Paragraph 68, Defendants admit the allegations thereof.

6

43. Answering Paragraph 69, Defendants allege that the referenced $2.9 million

7 is for repayment of an interfund transfer. Defendant alleges that the referenced document

8 speaks for itself and admits that it was distributed at a meeting on April 1, 2010. Except

9 as expressly admitted, Defendants deny each and every remaining allegation of Paragraph

10 69.

11

44. Answering Paragraph 70, Defendants admit Defendant Bennett issued a

12 document relating to the County's System Redesign Plan and further alleges that the

13 document speaks for itself. Defendants further allege that the plan referenced in said

14 document was a draft plan that had not been submitted, discussed, considered or

15 approved by the Board of Supervisors. Defendants further allege that the plan that was

16 discussed at that meeting was subsequently modified, and the public was advised that all

17 consumers would be transferred to Sacramento Wellness Centers. Except as expressly

18 admitted, Defendants deny each and every remaining allegation of Paragraph 70.

19

45. Answering Paragraph 71, Defendants admit that contract providers were

20 advised of the various plans that were being discussed and considered by administrative

21 staff, including a plan in which RST clients were transitioned to Sacramento Wellness

22 Centers. Defendants further allege that contract providers have most recently been

23 advised that the RSTs will receive full funding through July, that funding for the RSTs

24 will be phased out as clients are transitioned to Sacramento Wellness Centers, that the

25 HRC TCORE will continue to receive funding and that the County will assume the

26 medication support functions that the Consumer Self-Help Wellness and Recovery

27 Centers began performing in 2009-10, and that one of the Wellness and Recovery Center

28 sites will be closed. Except as expressly admitted, Defendants deny each and every 7

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 8 of 14

1 remaining allegation of Paragraph 71.

2

46. Answering Paragraph 72, Defendants admit that a meeting was held on

3 April 26, 2010, to discuss one version of the proposed plan to transfer clients to

4 Sacramento Wellness Centers. Defendants further allege that specific details of any plan

5 were still being developed and could not be implemented until such time as the plan was

6 submitted, considered and approved by the Board of Supervisors. Except as expressly

7 admitted, Defendants deny each and every remaining allegation of Paragraph 72.

8

47. Answering Paragraph 73, Defendants deny the allegations thereof.

9

48. Answering Paragraph 74, Defendants deny that mental health clients were

10 not notified that the Adult Outpatient Mental Health System would be restructured if the

11 Board of Supervisors approved a redesign that, as of the date of filing of the Class Action

12 Complaint, has not yet been submitted to, considered by, or authorized by the Board of

13 Supervisors. Except as expressly admitted, Defendants deny each and every remaining

14 allegation of Paragraph 74.

15

49. Answering Paragraph 75, Defendants allege that the Policy Manual and

16 RST contracts speak for themselves. Defendants admit that on entry in the Adult

17 Outpatient Mental Health Services System, an individualized determination of the mental

18 health client was made. Except as expressly admitted, Defendants deny each and every

19 remaining allegation thereof.

20

50. Answering Paragraph 76, Defendants deny the allegations thereof, but

21 affirmatively allege that under the recommended plan submitted to the Board of

22 Supervisors and approved by the Board of Supervisors during budget hearings, there will

23 be a phased transfer of consumer clients from the RSTs to the Sacramento Wellness

24 Centers, commencing in August 2010 and ending November 1,2010.

25

51. Answering Paragraph 77, Defendants deny each and every allegation

26 thereof.

27

52. Answering Paragraph 78, Defendants allege that the referenced manual

28 speaks for itself. Except as expressly admitted, Defendants deny each and every
8

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 9 of 14

1 remaining allegation of Paragraph 78.

2

53. Answering Paragraph 79, Defendants deny each and every allegation

3 thereof.

4

54. Answering Paragraph 80, Defendants deny that they are terminating or

5 reducing mental health services, and further deny that class members currently receiving

6 mental health services from the RSTs or other contracted providers will not be notified if

7 those class members are transferred to Sacramento Wellness Centers. Defendants deny

8 each and every remaining allegation of Paragraph 80.

9

55. Answering Paragraph 81, Defendants admit that the specified programs are

°1 part of the Adult Outpatient Mental Health Services system, have delivered effective

11 mental health services that have been instrumental for some clients in avoiding

12 institutionalization. Except as expressly admitted, Defendants deny each and every

13 remaining allegation of Paragraph 81.

14

56. Answering Paragraph 82, Defendants deny each and every allegation

15 thereof.

16

57. Answering Paragraphs 83-87, Defendants lack sufficient information or

17 belief to answer the allegations thereof and basing their denial thereon, deny each and

18 every allegation therein.

19

58. Answering Paragraph 88, Defendants deny the closure of the TCORE

20 workplan. With respect to the remaining allegations of Paragraph 88, Defendants lack

21 sufficient information or belief to answer the allegations thereof and basing their denial

22 thereon, deny each and every allegation therein.

23

59. Answering Paragraph 89, Defendants lack sufficient information or belief

24 to answer the allegations thereof and basing their denial thereon, deny each and every

25 allegation therein.

26

60. Answering Paragraph 90, Defendants admit that institutionalization is more

27 costly than outpatient mental health services. Except as expressly admitted, Defendants

28 deny each and every remaining allegation of Paragraph 90. 9

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 10 of 14

1

61. Answering Paragraph 91, Defendants deny each and every allegation

2 thereof.

3

62. Answering Paragraphs 92-96, Defendants deny each and every allegation

4 thereof.

5

63. Answering Paragraph 97, Defendants reallege and incorporate herein by

6 reference each and every response made to the paragraphs set forth previously.

7

64. Answering Paragraph 98, Defendants lack sufficient information or belief

8 to answer the allegations thereof and basing their denial thereon, deny each and every

9 allegation therein.

10

65. Answering Paragraph 99, Defendants admit that the County is a public

11 entity within the meaning of Title II of the ADA and that the Department of Health and

12 Human Services is a department within the County. Except as expressly admitted,

13 Defendants deny each and every remaining allegation of Paragraph 99.

14

66. Answering Paragraphs 100-101, Defendants allege that Title II of the ADA

15 speaks for itself. Except as expressly admitted, Defendants deny each and every

16 remaining allegation of Paragraphs 100-101.

17

67. Answering Paragraph 102, Defendants allege that regulations implementing

18 Title II of the ADA speak for themselves. Except as expressly admitted, Defendants

19 deny each and every remaining allegation of Paragraph 102.

20

68. Answering Paragraph 103, Defendants allege that the Supreme Court

21 decision in Olmstead v. L. C. ex reI Zimring 527 U.S. 581 (1999) speaks for itself. Except

22 as expressly admitted, Defendants deny each and every remaining allegation of Paragraph

23 103.

24

69. Answering Paragraphs 104-106, Defendants allege that regulations

25 implementing the ADA speak for themselves. Except as expressly admitted, Defendants

26 deny each and every remaining allegation of Paragraphs 104-106.

27

70. Answering Paragraph 107, Defendants allege that the ADA speaks for

28 itself. Except as expressly admitted, Defendants deny each and every allegation thereof. 10

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Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 11 of 14

1

71. Answering Paragraph 108, Defendants deny each and every allegation

2 thereof.

3

72. Answering Paragraph 109, Defendants reallege and incorporate herein by

4 reference each and every response made to the paragraphs set forth previously.

5

73. Answering Paragraph 110, Defendants allege that Section 504 of the

6 Rehabilitation Act speaks for itself. Except as expressly admitted, Defendants deny each

7 and every remaining allegation of Paragraph 110.

8

74. Answering Paragraphs 111-112, Defendants allege that Section 504's

9 regulations speak for themselves. Except as expressly admitted, Defendants deny each

10 and every remaining allegation of Paragraphs 111-112.

11

75. Answering Paragraph 113, Defendants lack sufficient information or belief

12 to answer the allegations thereof and basing their denial thereon, deny each and every

13 allegation therein.

14

76. Answering Paragraph 114, Defendants allege that Section 504's regulations

15 speak for themselves. Except as expressly admitted, Defendants deny each and every

16 remaining allegation of Paragraph 114.

17

77. Answering Paragraph 115, Defendants deny each and every allegation

18 thereof.

19

78. Answering Paragraph 116, Defendants reallege and incorporate herein by

20 reference each and every response made to the paragraphs set forth previously.

21

79. Answering Paragraph 117, Defendants allege that the Medicaid regulations

22 speak for themselves. Except as expressly admitted, Defendants deny each and every

23 remaining allegation of Paragraph 117.

24

80. Answering Paragraphs 118-119, Defendants deny each and every allegation

25 thereof.

26

81. Answering Paragraph 120, Defendants reallege and incorporate herein by

27 reference each and every response made to the paragraphs set forth previously.

28

82. Answering Paragraphs 121-122, Defendants allege that the Medicaid Act

11

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 12 of 14

1 and federal regulations speak for themselves. Except as expressly admitted, Defendants

2 deny each and every remaining allegation of Paragraphs 121-122.

3

83. Answering Paragraph 123, Defendants admit the allegations thereof.

4

84. Answering Paragraph 124, Defendants admit that Medi-Cal recipients in

5 one county must be provided the same menu of Medicaid benefits as in other counties.

6 Defendants further allege that the number and type of services provided are based on

7 medical necessity and that the manner in which such services are provided is different in

8 each ,county. Except as expressly admitted, Defendants deny each and every remaining

9 allegation of Paragraph 124.

10

85. Answering Paragraphs 125-126, Defendants deny each and every allegation

11 thereof.

12

86. Answering Paragraph 127, Defendants reallege and incorporate herein by

13 reference each and every response made to the paragraphs set forth previously.

14

87. Answering Paragraph 128, Defendants allege that Medicaid Act speaks for

15 itself. Except as expressly admitted, Defendants deny each and every remaining

16 allegation of Paragraph 128.

17

88. Answering Paragraphs 129-l30, Defendants deny each and every allegation

18 thereof.

19

89. Answering Paragraph 131, Defendants reallege and incorporate herein by

20 reference each and every response made to the paragraphs set forth previously.

21

90. Answering Paragraphs l32-l39, Defendants deny each and every allegation

22 thereof.

23

9l. Answering Paragraph 140, Defendants reallege and incorporate herein by

24 reference each and every response made to the paragraphs set forth previously.

25

92. Answering Paragraphs 141-143, Defendants allege that the Medicaid Act

26 and regulations speak for themselves. Except as expressly admitted, Defendants deny

27 each and every remaining allegation of Paragraphs 141-143.

28

93. Answering Paragraph 144, Defendants allege that the California regulations

12

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 13 of 14

1 relating to Medi-Cal speak for themselves. Except as expressly admitted, Defendants

2 deny each and every remaining allegation of Paragraph 144.

3

94. Answering Paragraphs 145-146, Defendants deny each and every allegation

4 thereof.

5

95. Answering Paragraph 147, Defendants reallege and incorporate herein by

6 reference each and every response made to the paragraphs set forth previously.

7

96. Answering Paragraph 148, Defendants allege that Government Code

8 section 11135(a) speaks for itself. Except as expressly admitted, Defendants deny each

9 and every remaining allegation of Paragraph 148.

10

97. Answering Paragraph 149, Defendants deny that DBHS is an agency of the

11 County and affirmatively allege that DHHS is a department of the County. Defendants

12 admit that the County receives state funding from the State of California. Except as

13 expressly admitted, Defendants deny each and every remaining allegation of Paragraph

14 149.

15

98. Answering Paragraphs 150-152, Defendants deny each and every allegation

16 thereof.

17

AFFIRMATIVE DEFENSES

18

1. Plaintiffs' Complaint for Injunctive and Declaratory Relief fails to state a

19 claim against Defendants upon which relief can be granted.

20

2. The Medicaid statutes and regulations on which Plaintiffs base their

21 Complaint do not afford a private cause of action.

22

3. The Supremacy Clause is not applicable to the claims alleged against

23 Defendants.

24

4. The Complaint does not allege a case or controversy in that the matters

25 alleged therein are not ripe for adjudication.

26

5. Plaintiffs, as individuals and as class representatives, lack standing to bring

27 this action.

28

6. Plaintiffs have failed to join the State of California and the State

13

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-01119-JAM-EFB Document 68 Filed 06/23/10 Page 14 of 14

1 Department of Mental Health as parties who must be joined in this action under Rule 19

2 in that the State of California and the State Department of Mental Health are responsible

3 for the administration of the State Medicaid program and for ensuring compliance of the

4 County's Mental Health Plan with federal and state requirements.

5

7. Plaintiffs' Complaint is moot in that the proposed plan alleged therein was

6 not submitted or adopted by the Board of Supervisors; another plan was approved and is

7 being implemented.

8

8. Plaintiffs' claims relating to the ADA's integration mandate are barred in

9 that Plaintiffs are not currently institutionalized or at serious risk of institutionalization as

10 a result of the County's restructuring of the Adult Outpatient Mental Health System.

11

9. The continued provision of mental health services under the service

12 delivery model in existence for fiscal year 2009-2010 would constitute a fundamental

13 alteration of its Adult Outpatient Mental Health System and would jeopardize the

14 provision of mental health services to other categories of mentally ill consumers in

15 Sacramento County.

16

10. The separation of powers doctrine prohibits the judiciary from dictating the

17 manner in which services are provided to mentally ill consumers in Sacramento County.

18

WHEREFORE, Defendants pray that:

19

1. The Complaint be dismissed in its entirety;

20

2. Plaintiffs take nothing from Defendants;

21

3. Defendants be awarded their costs and reasonable attorneys fees incurred in

22 defending this action; and

23

4. Defendants be awarded such further relief as the Court may deem just and

24 proper.

25 DATED:_~Ju=n~e-=2=3~,2=0~1~0_ _
26

27

28

w:\\itigate\dhhs\20 \ O\\eslie napper-128.1 Oa\answer.doc

ROBERT A. RYAN, JR., County Counsel Sacramento County, California
By: /S/ Michele Bach MICHELE BACH Supervising Deputy
14

ANSWER TO CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

 
 Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 1 of 17
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:10−cv−01119−JAM−EFB

Napper et al v. County of Sacramento et al Assigned to: Judge John A. Mendez Referred to: Magistrate Judge Edmund F. Brennan Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 05/06/2010 Date Terminated: 05/03/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Leslie Napper

represented by Antionette Dozier Western Center on Law and Poverty 3701 Wilshire Boulevard Suite 208 Los Angeles, CA 90010 213−235−2629 Email: adozier@wclp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cliff William Schell Protection &Advocacy, Inc. 100 Howe Avenue Suite 235N Sacramento, CA 95825 916−488−9950 Fax: 916−488−9960 Email: blindguy@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay B. Koslofsky Disability Rights California 100 Howe Avenue Suite 235N Sacramento, CA 95825 (916) 488−9950 Fax: (916) 488−9960 Email: jay.koslofsky@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kim C. Swain Disability Rights California 1330 Broadway Suite 500 Oakland, CA 94612 510−267−1200−1226 Fax: 510−267−1201 Email: Kim.Swain@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maureen Alger Cooley LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 650−843−5000 Fax: 650−849−7400

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 2 of 17
Email: malger@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Dexter Newman Western Center On Law And Poverty 3701 Wilshire Boulevard Suite 208 Los Angeles, CA 90010 213−487−7211−2619 Fax: 213−487−0242 Email: rnewman@wclp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Rashkis Disability Rights California 1831 K St. Sacramento, CA 95833 916−504−5800−5947 Email: sean.rashkis@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart John Seaborn Disability Rights Advocates 2001 Center Street 3rd Floor Berkeley, CA 94704 510−655−8644−152 Email: sseaborn@dralegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Elizabeth Nash Cooley Godward &Kronish Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 650−843−5000 Fax: 650−857−0663 Email: anash@cooley.com TERMINATED: 04/19/2012
Kimberly Lewis Western Center on Law and Poverty 3701 Wilshire Blvd. Ste. 208 Los Angeles, CA 90010 213−487−7211 Fax: 213−487−0242 Email: klewis@wclp.org TERMINATED: 01/27/2012
Margaret Branick−Abilla Bryan Cave LLP 560 Mission Street 25th Floor San Francisco, CA 94105 415−268−2000 Fax: 415−268−1999 Email: margaret.branick−abilla@bryancave.com TERMINATED: 10/18/2011
Melinda R. Bird

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 3 of 17

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

Suzanna Gee Disability Rights California 100 Howe Avenue Suite 235 N Sacramento, CA 95825 916−488−9950 Fax: 916−488−9960 Email: suzanna.gee@disabilityrightsca.org ATTORNEY TO BE NOTICED

William S. Freeman Jones Day 1755 Embarcadero Road Palo Alto, CA 94303 650−739−3939 Fax: 650−739−3900 Email: wfreeman@jonesday.com TERMINATED: 09/23/2010

Plaintiff Janet Fischer

represented by Antionette Dozier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cliff William Schell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay B. Koslofsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kim C. Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert Dexter Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Stuart John Seaborn

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 4 of 17

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

Amy Elizabeth Nash (See above for address) TERMINATED: 04/19/2012

Kimberly Lewis (See above for address) TERMINATED: 01/27/2012

Margaret Branick−Abilla (See above for address) TERMINATED: 10/18/2011

Melinda R. Bird (See above for address)

Suzanna Gee (See above for address) ATTORNEY TO BE NOTICED

William S. Freeman (See above for address) TERMINATED: 09/23/2010

Plaintiff Jacquie Eichhorn−Smith

represented by Antionette Dozier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cliff William Schell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay B. Koslofsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kim C. Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert Dexter Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Stuart John Seaborn

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 5 of 17

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

Amy Elizabeth Nash (See above for address) TERMINATED: 04/19/2012

Kimberly Lewis (See above for address) TERMINATED: 01/27/2012

Margaret Branick−Abilla (See above for address) TERMINATED: 10/18/2011

Melinda R. Bird (See above for address) ATTORNEY TO BE NOTICED

Suzanna Gee (See above for address) ATTORNEY TO BE NOTICED

William S. Freeman (See above for address) TERMINATED: 09/23/2010

Plaintiff Ted Yanello

represented by Antionette Dozier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cliff William Schell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay B. Koslofsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kim C. Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert Dexter Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 6 of 17

Stuart John Seaborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Elizabeth Nash (See above for address) TERMINATED: 04/19/2012

Kimberly Lewis (See above for address) TERMINATED: 01/27/2012

Margaret Branick−Abilla (See above for address) TERMINATED: 10/18/2011

Melinda R. Bird (See above for address)

Suzanna Gee (See above for address) ATTORNEY TO BE NOTICED

William S. Freeman (See above for address) TERMINATED: 09/23/2010

Plaintiff Lynda Mangio

represented by Antionette Dozier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cliff William Schell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay B. Koslofsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kim C. Swain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert Dexter Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 7 of 17
Stuart John Seaborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Elizabeth Nash (See above for address) TERMINATED: 04/19/2012
Kimberly Lewis (See above for address) TERMINATED: 01/27/2012
Margaret Branick−Abilla (See above for address) TERMINATED: 10/18/2011
Melinda R. Bird (See above for address) ATTORNEY TO BE NOTICED
Suzanna Gee (See above for address) ATTORNEY TO BE NOTICED
William S. Freeman (See above for address) TERMINATED: 09/23/2010

V. Defendant County of Sacramento
Defendant

represented by June Powell−Mays Office Of The County Counsel 700 H Street, Suite 2650 Sacramento, CA 95814 916−875−9880 Fax: 916−875−8207 Email: maysj@saccounty.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Elizabeth Bach Sacramento County Counsel 700 H Street, Room 2650 Sacramento, CA 95814 (916) 874−5540 Fax: (916) 874−8207 Email: bachm@saccounty.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rick J. Heyer Sacramento County Counsel 700 H Street Ste. 2650 Sacramento, CA 95814 916−874−7538 Fax: 916−874−8207 Email: heyerr@saccounty.net ATTORNEY TO BE NOTICED

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 8 of 17

Board of Supervisors of the County of Sacramento

Defendant
Roger Dickinson County Supervisor

Defendant
Jimmie Yee County Supervisor

Defendant
Susan Peters County Supervisor

Defendant
Roberta MacGlashan County Supervisor

Defendant
Don Nottoli County Supervisor

Defendant
Sacramento County Department of Behavioral Health Services

Defendant
Ann Edwards−Buckley Director, Department of Behavioral Health Services

Defendant
Mary Ann Bennett Mental Health Director

Amicus Mental Health Advocacy Services

represented by James Preis Mental Health Advocacy Services 3255 Wilshire Blvd. Suite 902 Los Angeles, CA 90010 213−389−2077 Fax: 213−389−2595 Email: jpreis@mhas−la.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus United States of America

represented by Regan Rush , GOVT United States Department Of Justice, Civil Rights Division 1425 New York Avenue, NW Room 4077 Washington, DC 20005 202−616−2726 Fax: 202−307−1197 Email: regan.rush@usdoj.gov LEAD ATTORNEY

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 9 of 17 ATTORNEY TO BE NOTICED

Date Filed 05/06/2010
05/06/2010 05/06/2010
05/06/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010 05/24/2010 06/09/2010 06/09/2010

# Docket Text
1 COMPLAINT for Injunctive and Declaratory Relief against all defendants by Leslie Napper, Janet Fischer, Jacquie Eichhorn−Smith, Ted Yanello, Lynda Mangio. Attorney Freeman, William S. added. (Attachments: # 1 Civil Cover Sheet)(Freeman, William) (Entered: 05/06/2010)
RECEIPT number #CAE200026019 $350.00 fbo Leslie Napper et al by William S Freeman on 5/6/2010. (Kastilahn, A) (Entered: 05/06/2010)
3 SUMMONS ISSUED as to *Susan Peters, Roberta MacGlashan, Don Nottoli, Sacramento County Department of Behavioral Health Services, Ann Edwards−Buckley, Mary Ann Bennett, County of Sacramento, Co. Of Sacramento Board Of Supervisors, Roger Dickinson, Jimmie Yee* with answer to complaint due within *21* days. Attorney *William S. Freeman* *Cooley LLP* *Five Palo Alto Sq, 3000 El Camino Real* *Palo Alto, CA 94306*. (Kastilahn, A) (Entered: 05/06/2010)
4 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Order re Consent, # 2 Order re Page Limits, # 3 VDRP Form) (Kastilahn, A) (Entered: 05/06/2010)
5 SUMMONS RETURNED EXECUTED: Susan Peters served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
6 SUMMONS RETURNED EXECUTED: Roberta MacGlashan served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
7 SUMMONS RETURNED EXECUTED: Don Nottoli served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
8 SUMMONS RETURNED EXECUTED: Sacramento County Department of Behavioral Health Services served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
9 SUMMONS RETURNED EXECUTED: Ann Edwards−Buckley served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
10 SUMMONS RETURNED EXECUTED: Mary Ann Bennett served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
11 SUMMONS RETURNED EXECUTED: County of Sacramento served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
12 SUMMONS RETURNED EXECUTED: Co. Of Sacramento Board Of Supervisors served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
13 SUMMONS RETURNED EXECUTED: Roger Dickinson served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
14 SUMMONS RETURNED EXECUTED: Jimmie Yee served on 5/6/2010, answer due 5/27/2010. (Freeman, William) (Entered: 05/10/2010)
15 STIPULATION re 1 Complaint, to extend time, including 6/24/2010, to respond by County of Sacramento. Attorney Bach, Michele Elizabeth added. (Bach, Michele) Modified on 5/24/2010 (Duong, D). (Entered: 05/24/2010)
16 MOTION for PRELIMINARY INJUNCTION by Leslie Napper, Janet Fischer, Jacquie Eichhorn−Smith, Ted Yanello, Lynda Mangio. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
17 MEMORANDUM OF POINTS AND AUTHORITIES by Leslie Napper, Janet Fischer, Jacquie Eichhorn−Smith, Ted Yanello, Lynda Mangio in SUPPORT of 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 10 of 17

06/09/2010 06/09/2010
06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010

18 INDEX of DECLARATION in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
19 DECLARATION of Margaret Branick−Abilla in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (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, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
20 DECLARATION of William S. Freeman in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
21 DECLARATION of Josephine Balaoro in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
22 DECLARATION of Roleda Bates in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
23 DECLARATION of Alexan Bolte BOLTE in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
24 DECLARATION of Patricia Boynton in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
25 DECLARATION of John Buck in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
26 DECLARATION of Frank S. Cline, Jr. in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
27 DECLARATION of Linda Connors in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
28 DECLARATION of Alan Cummings in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
29 DECLARATION of Chester Davis in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
30 DECLARATION of Jacquie Eichhorn−Smith in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
31 DECLARATION of Jan Fischer in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
32 DECLARATION of Michael J. Franczak, PH.D. in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
33 DECLARATION of Rania Haidary in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 11 of 17

06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010
06/09/2010 06/09/2010
06/09/2010 06/09/2010 06/09/2010

34 DECLARATION of David Harrington in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
35 DECLARATION of Thomas Hushen in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
36 DECLARATION of Jessica Johnson in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
37 DECLARATION of Teresa Johnson in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
38 DECLARATION of Channel Kirby in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
39 DECLARATION of Renee Klee in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
40 DECLARATION of Lynda Mangio in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
41 DECLARATION of Leslie Napper in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
42 DECLARATION of Carolina Ortiz in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
43 DECLARATION of Lynn Place in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
44 DECLARATION of Edraline "Lyn" Powell in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
45 DECLARATION of Ron Risley, MD in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
46 DECLARATION of Ian Saetane in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
47 [DISREGARD− SEE 63 Declaration for correct image] DECLARATION of YIAN MENG SAETEURN in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION Notice. (Freeman, William) Modified on 6/10/2010 (Donati, J). (Entered: 06/09/2010)
48 DECLARATION of Janette Steele in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
49 DECLARATION of Beth C. Stoneking, PH.D. in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A)(Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
50 DECLARATION of Amy Yannello in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 12 of 17

06/09/2010 06/09/2010 06/09/2010 06/09/2010
06/09/2010 06/09/2010 06/09/2010 06/09/2010 06/09/2010
06/09/2010 06/09/2010 06/09/2010
06/10/2010 06/11/2010
06/11/2010 06/14/2010

51 DECLARATION of Ted Yannello in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
52 PROPOSED ORDER Granting 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
53 MOTION FOR CLASS CERTIFICATION by Leslie Napper, Janet Fischer, Jacquie Eichhorn−Smith, Ted Yanello, Lynda Mangio. (Newman, Robert) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
54 MEMORANDUM OF POINTS AND AUTHORITIES by Leslie Napper, Janet Fischer, Jacquie Eichhorn−Smith, Ted Yanello, Lynda Mangio in SUPPORT of 53 MOTION FOR CLASS CERTIFICATION. (Newman, Robert) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
55 DECLARATION of Melinda Bird in SUPPORT OF 53 Motion for Class Certification. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Newman, Robert) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
56 DECLARATION of William S. Freeman in SUPPORT OF 53 Motion for Class Certification. (Newman, Robert) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
57 DECLARATION of Robert D. Newman in SUPPORT OF 53 Motion for Class Certification. (Newman, Robert) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
58 PROPOSED ORDER Granting 53 Motion for Class Certification. (Newman, Robert) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
59 EX PARTE APPLICATION by Leslie Napper, Janet Fischer, Jacquie Eichhorn−Smith, Ted Yanello, Lynda Mangio for an order setting a hearing date for motions for preliminary injunction and class certification. (Newman, Robert) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
60 DECLARATION of Robert D. Newman in Support of 59 Ex Parte Application. (Attachments: # 1 Exhibit A)(Newman, Robert) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
61 PROPOSED ORDER Granting 59 Ex Parte Application by Leslie Napper, Janet Fischer, Jacquie Eichhorn−Smith, Ted Yanello, Lynda Mangio. (Newman, Robert) Modified on 6/14/2010 (Reader, L). (Entered: 06/09/2010)
62 [DISREGARD− SEE 63 Declaration for correct image] DECLARATION of YIAN MENG SAETEURN in SUPPORT OF 16 MOTION for PRELIMINARY INJUNCTION Notice. (Freeman, William) Modified on 6/10/2010 (Donati, J). (Entered: 06/09/2010)
63 DECLARATION of Yian Mieng Saeteurn in SUPPORT of 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) Modified on 6/14/2010 (Reader, L). (Entered: 06/10/2010)
64 OPPOSITION by Defendant County of Sacramento to 59 Ex Parte Application for an Order setting a hearing date on plts' Motions for Preliminary Injunction and Class Certification . (Bach, Michele) Modified on 6/14/2010 (Duong, D). (Entered: 06/11/2010)
65 DECLARATION of Thomas Burkart in support of 65 Opposition. (Bach, Michele) (Entered: 06/11/2010)
66 MINUTE ORDER: Plaintiffs' 59 Ex Parte Application for an Order Setting a Hearing on Plaintiffs' 16 Motions for Preliminary Injunction and 53 Class Certification is DENIED as the Court finds Plaintiffs' Ex Parte Application to be premature. The Court will set a hearing on Plaintiffs' motions for preliminary injunction and class certification for July 21, 2010 at 9:30 a.m. to allow the parties to brief the Court on the actual actions taken by the Board of Supervisors on this matter. Opposition and reply briefs shall be filed in accord with Local Rule 230. (TEXT ENTRY ONLY)(Vine, H) Modified on 6/14/2010 (Reader, L). (Entered:

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 13 of 17

06/21/2010 06/23/2010 06/23/2010 06/23/2010 06/23/2010 06/23/2010 06/24/2010
06/25/2010
06/28/2010 06/28/2010 06/29/2010 06/30/2010
07/01/2010 07/01/2010

06/14/2010)
67 NOTICE of Association of Counsel by all plaintiffs. Attorney Bird, Melinda R. added. (Bird, Melinda) (Entered: 06/21/2010)
68 ANSWER to COMPLAINT by County of Sacramento.(Bach, Michele) (Entered: 06/23/2010)
69 DECLARATION of Beth C. Stoneking (Supplemental) in Support of 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) (Entered: 06/23/2010)
70 DECLARATION of Ron Risley (Supplemental) in Support of 16 MOTION for PRELIMINARY INJUNCTION. (Freeman, William) (Entered: 06/23/2010)
71 DECLARATION of Michele Kellogg in Support of 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A)(Freeman, William) (Entered: 06/23/2010)
72 DECLARATION of Stuart Seaborn in Support of 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A)(Freeman, William) (Entered: 06/23/2010)
73 MOTION for DISCOVERY Ex Parte Application for An Order Permitting Expedited Discovery and Depositions by Leslie Napper, Janet Fischer, Ted Yanello, Lynda Mangio. (Attachments: # 1 Declaration of Robert D. Newman In Support of Plaintiffs' Ex Parte Application for An Order Permitting Expedited Discovery and Depositions, # 2 Proposed Order )(Newman, Robert) Modified on 6/24/2010 (Williams, D). (Entered: 06/24/2010)
74 MINUTE ORDER: A hearing on Plaintiffs' Ex Parte Application for an Order Permitting Expedited Discovery and Depositions 73 is set before Magistrate Judge Edmund F. Brennan on Wednesday, 6/30/10, at 10:00 a.m. in Courtroom No. 24. No later than 5:00 p.m. on 6/28/10, Defendants may file an opposition or statement of non−opposition to Plaintiffs' Ex Parte Application. No later than 1:00 p.m. on 6/29/10, Plaintiffs may file a reply to any opposition filed by Defendants. Ordered by Magistrate Judge Edmund F. Brennan on 6/25/10. (Bettencourt, K) (Entered: 06/25/2010)
75 OPPOSITION by County of Sacramento to pltfs' ex parte Application for an Order permitting Expedited Disovery and Depositions. Attorney Powell−Mays, June added. (Powell−Mays, June) Modified on 6/29/2010 (Carlos, K). (Entered: 06/28/2010)
76 DECLARATION of Rick Heyer in Opposition to pltfs' ex parte Application for an Order Permitting Expedited Discovery and Depositions. (Powell−Mays, June) Modified on 6/29/2010 (Carlos, K). (Entered: 06/28/2010)
77 REPLY by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello in support of Ex Parte Application for An Order Permitting Expedited Discovery and Depositions. (Newman, Robert) Modified on 6/30/2010 (Carlos, K). (Entered: 06/29/2010)
78 MINUTES (Text Only) for MOTION HEARING held on 6/30/2010 before Magistrate Judge Edmund F. Brennan re: Plaintiffs' Ex Parte Application for an Order Permitting Expedited Discovery and Depositions 73 . All parties present. The Court discussed the pending ex parte application with the parties. Arguments heard. The parties to to submit a proposed order for the Court's review and signature. Plaintiffs Counsel William Freeman present. Defendants Counsel June Powells−Mays and Rick Heyer present. Court Reporter/CD Number: ECRO, CD 1 of 1. (Cannarozzi, N) (Entered: 06/30/2010)
79 PROPOSED ORDER Re Expedited Discovery by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Freeman, William) (Entered: 07/01/2010)
80 ORDER signed by Magistrate Judge Edmund F. Brennan on 7/1/10 GRANTING−in−PART and DENYING−in−PART 73 Motion for Discovery. (Donati, J) (Entered: 07/01/2010)

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 14 of 17

07/02/2010 07/07/2010 07/07/2010 07/07/2010
07/07/2010 07/07/2010 07/07/2010 07/07/2010 07/07/2010 07/07/2010 07/07/2010 07/07/2010 07/08/2010 07/13/2010
07/13/2010
07/14/2010 07/14/2010 07/14/2010
07/14/2010

81 JOINT STATUS REPORT by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Freeman, William) (Entered: 07/02/2010)
82 OPPOSITION by County of Sacramento to 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/07/2010)
83 OPPOSITION by County of Sacramento to 53 MOTION FOR CLASS CERTIFICATION. (Bach, Michele) (Entered: 07/07/2010)
84 STATEMENT of Evidentiary Objections to Plaintiffs Declarations in Support of Motion for Preliminary Injunction by Defendant County of Sacramento re 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/07/2010)
85 DECLARATION of Jeffrey Allan King in Opposition to 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/07/2010)
86 DECLARATION of Thomas Burkart in Opposition to 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/07/2010)
87 DECLARATION of Dorian Kittrell in Opposition to 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/07/2010)
88 DECLARATION of MaryAnn Bennett in Opposition to 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/07/2010)
89 DECLARATION of Uma Zykofsky in Opposition to 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/07/2010)
90 DECLARATION of Robert Hales in Opposition to 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/07/2010)
91 DECLARATION of Kelli Weaver in opposition to 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/07/2010)
92 DECLARATION of Jack Rodney Kennedy in Opposition to 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit)(Bach, Michele) (Entered: 07/07/2010)
93 NOTICE of APPEARANCE by Kimberly Lewis on behalf of Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. Attorney Lewis, Kimberly added. (Lewis, Kimberly) (Entered: 07/08/2010)
94 STIPULATION and PROPOSED ORDER for Granting Leave For Plaintiffs To File 15−Page Reply Memorandum by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Freeman, William) (Entered: 07/13/2010)
95 STIPULATION and ORDER signed by Judge John A. Mendez on 7/13/10 ORDERING pltfs may file a reply memorandum of up to 15 pages in length in support of their Motion for Preliminary Injunction subject to the terms specified in this order. (Carlos, K) (Entered: 07/14/2010)
96 REPLY by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello in support of 53 Motion for Class Certification. (Freeman, William) Modified on 7/16/2010 (Benson, A.). (Entered: 07/14/2010)
97 EVIDENTIARY OBJECTIONS to dfts' declarations by Plaintiffs Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Freeman, William) Modified on 7/16/2010 (Benson, A.). (Entered: 07/14/2010)
98 OPPOSITION to dfts' evidentiary objections to plfs' declarations in support of Motion for Preliminary Injunction by Plaintiffs Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Freeman, William) Modified on 7/16/2010 (Benson, A.). (Entered: 07/14/2010)
99 REPLY by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello re 16 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Declaration of Alexan Bolte, # 2 Declaration of John Buck, # 3 Declaration of Paul Cecchettini, # 4 Declaration of Frank S. Cline, Jr., # 5 Declaration of Betty

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 15 of 17

07/14/2010 07/15/2010 07/15/2010 07/19/2010 07/19/2010 07/20/2010 07/20/2010 07/20/2010 07/21/2010
07/22/2010 07/26/2010 07/28/2010 07/30/2010

Dahlquist, # 6 Declaration of Michael J. Franczak, Ph.D., # 7 Declaration of Meghan Stanton, # 8 Declaration of Beth C. Stoneking, Ph.D., # 9 Declaration of Margaret Branick−Abilla Part A, # 10 Declaration of Margaret Branick−Abilla Part B)(Freeman, William) (Entered: 07/14/2010)
100 APPLICATION for leave to file amici brief by Mental Health Advocacy Services. Attorney Preis, James added. (Preis, James) (Entered: 07/14/2010)
101 MINUTE ORDER: The Court hereby DENIES the Application for Leave to File Brief of Amici Curiae in Support of Plaintiffs Motion for Preliminary Injunction [Doc. # 100] because the Court finds the Application untimely. (TEXT ENTRY ONLY) (Vine, H) (Entered: 07/15/2010)
102 NOTICE of APPEARANCE by Suzanna Gee on behalf of Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. Attorney Gee, Suzanna added. (Gee, Suzanna) (Entered: 07/15/2010)
103 OBJECTIONS by Defendant County of Sacramento to 99 Reply,,. (Bach, Michele) (Entered: 07/19/2010)
104 MEMORANDUM by United States of America in SUPPORT of 16 MOTION for PRELIMINARY INJUNCTION. Attorney Rush, Regan added. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 C)(Rush, Regan) (Entered: 07/19/2010)
105 REQUEST for Judicial Notice by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bird, Melinda) (Entered: 07/20/2010)
106 DECLARATION of Kelli Weaver in Opposition to 16 MOTION for PRELIMINARY INJUNCTION. (Bach, Michele) (Entered: 07/20/2010)
107 REQUEST for JUDICIAL NOTICE by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Seaborn, Stuart) (Entered: 07/20/2010)
108 MINUTES (Text Only) for proceedings held before Judge John A. Mendez: MOTION HEARING held on 7/21/2010 ; Motions terminated: 16 MOTION for PRELIMINARY INJUNCTION filed by Lynda Mangio, Jacquie Eichhorn−Smith, Leslie Napper, Janet Fischer, Ted Yanello, 53 Motion for Class Certification filed by Lynda Mangio, Jacquie Eichhorn−Smith, Leslie Napper, Janet Fischer, Ted Yanello ; granting 16 Motion for Preliminary Injunction; no bond requirement; denying 53 Motion to Certify Class as premature. Counsel for plaintiff to prepare and submit proposed order for the Court's consideration. Plaintiffs Counsel M. Bird; R. Neuman; R. Rush present. Defendants Counsel M. Bach; R. Heyer; J. Powells−Mays present. Court Reporter: K. O'Halloran. (Vine, H) (Entered: 07/21/2010)
109 NOTICE of CHANGE of ADDRESS by Antionette Dozier. (Dozier, Antionette) (Entered: 07/22/2010)
110 PROPOSED ORDER Proposed Preliminary Injunction re 17 Memorandum in Support of Motion by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Newman, Robert) (Entered: 07/26/2010)
111 ORDER signed by Judge John A. Mendez on 7/27/10 ORDERING that Plaintiffs' 16 motion for a preliminary injunction is GRANTED. (Becknal, R) (Main Document 111 replaced on 7/29/2010) (Donati, J). (Entered: 07/28/2010)
112 TRANSCRIPT of Court's Ruling held on 7/21/10, before Judge John A. Mendez, filed by Court Reporter Kelly OHalloran, Phone number 916−448−2712 E−mail kohalloran@comcast.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may also be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 8/20/2010. Redacted Transcript Deadline set for 8/30/2010. Release of Transcript Restriction set for 10/28/2010. (O'Halloran, K) (Entered: 07/30/2010)

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 16 of 17

07/30/2010 08/05/2010 08/05/2010 08/16/2010
09/23/2010 09/24/2010 10/06/2010 11/22/2010 01/14/2011
01/14/2011 05/03/2011 05/03/2011 05/24/2011 05/24/2011 07/27/2011
07/28/2011 10/18/2011

113 REQUEST for JUDICIAL NOTICE by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello in re 17 Memorandum in Support of Motion. (Newman, Robert) (Entered: 07/30/2010)
114 JOINT STATUS REPORT by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Freeman, William) (Entered: 08/05/2010)
115 MINUTE ORDER: re 114 Status Report − GOOD CAUSE APPEARING, the parties shall file an updated joint status report on or before September 24, 2010. (TEXT ENTRY ONLY) (Vine, H) (Entered: 08/05/2010)
116 TRANSCRIPT of Motion for Preliminary Injunction held on 7/21/10, before Judge John A. Mendez, filed by Court Reporter Kelly OHalloran, Phone number 916−448−2712 E−mail kohalloran@comcast.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may also be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 9/7/2010. Redacted Transcript Deadline set for 9/16/2010. Release of Transcript Restriction set for 11/15/2010. (O'Halloran, K) (Entered: 08/16/2010)
117 NOTICE of Change in Counsel by All Plaintiffs. (Newman, Robert) (Entered: 09/23/2010)
118 JOINT STATUS REPORT by County of Sacramento. Attorney Heyer, Rick J. added. (Heyer, Rick) (Entered: 09/24/2010)
119 MINUTE ORDER: re 118 Status Report − GOOD CAUSE APPEARING, the parties shall file an updated joint status report on or before February 18, 2011. (TEXT ENTRY ONLY) (Vine, H) (Entered: 10/06/2010)
120 STATUS REPORT by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Newman, Robert) (Entered: 11/22/2010)
121 MOTION for 90−DAY EXTENSION of Time to File Updated Joint Status Report by County of Sacramto; PARTIES' SUPPLEMENTAL REPORT on the Interim Agreement between the Parties . (Heyer, Rick) Modified on 1/18/2011 (Williams, D). (Entered: 01/14/2011)
122 MINUTE ORDER: re 121 Motion for Extension of Time is granted. The parties updated joint status report shall be filed on or before May 19, 2011. (TEXT ENTRY ONLY) (Vine, H) (Entered: 01/14/2011)
123 JOINT STATUS REPORT by County of Sacramento. (Heyer, Rick) (Entered: 05/03/2011)
124 MINUTE ORDER: re 123 Status Report − Motion for Extension of Time is granted. The parties updated joint status report shall be filed on or before May 31, 2011. (TEXT ENTRY ONLY) (Vine, H) (Entered: 05/03/2011)
125 MOTION for 62−DAY EXTENSION OF TIME to August 1, 2011 by County of Sacramento. (Heyer, Rick) (Entered: 05/24/2011)
126 MINUTE ORDER: re 125 Status Report − Motion for Extension of Time is granted. The parties updated joint status report shall be filed on or before August 1, 2011. (TEXT ENTRY ONLY) (Vine, H) (Entered: 05/24/2011)
127 SUPPLEMENTAL REPORT on the interim agreement between the parties; REQUEST for extension to time to updated Joint Status Report by County of Sacramento. (Heyer, Rick) Modified on 8/23/2011 (Reader, L). (Entered: 07/27/2011)
128 MINUTE ORDER: re 127 Status Report − GOOD CAUSE APPEARING, the parties updated joint status report shall be filed on or before February 1, 2012. (TEXT ENTRY ONLY) (Vine, H) (Entered: 07/28/2011)
129 NOTICE OF CHANGE OF COUNSEL by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Nash, Amy) (Entered: 10/18/2011)

Case: 2:10-cv-1119 As of: 10/11/2012 09:59 PM PDT 17 of 17

10/18/2011 01/23/2012 01/23/2012 01/25/2012 03/16/2012 04/19/2012 04/19/2012 04/20/2012 04/20/2012
05/03/2012

130 NOTICE of APPEARANCE by Maureen Alger on behalf of Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. Attorney Alger, Maureen added. (Alger, Maureen) (Entered: 10/18/2011)
131 STIPULATION and PROPOSED ORDER for a Resolution of all matters at Issue by County of Sacramento. (Heyer, Rick) (Entered: 01/23/2012)
132 MEMORANDUM by Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello re SETTLEMENT . (Newman, Robert) Modified on 1/23/2012 (Kaminski, H). (Entered: 01/23/2012)
133 STIPULATION AND ORDER signed by Judge John A. Mendez on 1/24/12: Consent Decree shall remain in effect through January 31, 2013. (Attachments: # 1 Consent Decree)(Kaminski, H) (Entered: 01/25/2012)
134 NOTICE of CHANGE of ADDRESS by Melinda R. Bird. (Bird, Melinda) (Entered: 03/16/2012)
135 NOTICE of Change Counsel by All Plaintiffs. (Alger, Maureen) (Entered: 04/19/2012)
136 STIPULATION and PROPOSED ORDER extending time to file Motion for Costs and Fees by plaintiffs. (Alger, Maureen) Modified on 4/19/2012 (Marciel, M). (Entered: 04/19/2012)
137 NOTICE of APPEARANCE by Sean Rashkis on behalf of Jacquie Eichhorn−Smith, Janet Fischer, Lynda Mangio, Leslie Napper, Ted Yanello. (Rashkis, Sean) (Entered: 04/20/2012)
138 STIPULATION and ORDER extending time to file Motion for Costs and Fees by plaintiffs 136 signed by Judge John A. Mendez on 4/19/12; IT IS HEREBY ORDERED that, absent an agreement, Plaintiffs shall file their cost bill and motion to recover their fees and litigation expenses no later than May 14, 2012.(Matson, R) (Entered: 04/20/2012)
139 STIPULATION Parties Report Regarding Settlement of Plaintiffs Counsels Fees, Cost and Expenses by County of Sacramento. (Heyer, Rick) (Entered: 05/03/2012)

 
 1 THOMAS E. PEREZ, Assistant Attorney General SAMUEL R. BAGENSTOS, Principal Deputy Assistant Attorney General
2 JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel
3 RENEE M. WOHLENHAUS, Deputy Chief REGAN RUSH, Trial Attorney
4 U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA
5 Washington, D.C. 20530 Telephone: (202) 616-2726
6 ATTORNEYS FOR UNITED STATES
7

8

IN THE UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11

LESLIE NAPPPER, JANET FISCHER, JACQUIE EICHHORN-SMITH, TED

12

YANELLO, and LYNN MANGIO, on behalf of themselves and all others similarly situated,

13

Plaintiffs,

Case No. 2:10-cv-1119 JAM-EFB
STATEMENT OF INTEREST OF THE UNITED STATES

14

v.

Date: Time:

15 COUNTY OF SACRAMENTO; BOARD OF

16

SUPERVISORS OF THE COUNTY OF SACRAMENTO; County Supervisor ROGER

Place: Judge:

17

DICKINSON; County Supervisor JIMMIE YEE; County Supervisor SUSAN PETERS;

18

County Supervisor ROBERTA MACGLASHAN; County Supervisor DON

19

NOTTOLI; SACRAMENTO COUNTY DEPARTMENT OF BEHAVIORAL HEALTH

20

SERVICES; ANN EDWARDS-BUCKLEY, Director, Department of Behavioral Health

21

Services; MARY ANN BENNETT, Mental Health Director,

July 21, 2010 9:30 a.m. Courtroom 6, 14th Floor Hon. John A. Mendez

22

Defendants.

23

24

25

26

27

28

Statement of Interest of the United States

1 I

INTRODUCTION ......................................................................................................................... 1

2 II SUMMARY OF FACTS ............................................................................................................... 2

3

A. Sacramento County’s Current Outpatient Mental Health Services are Provided

through County Contracted Regional Support Teams. ...................................................... 2 4

B. Sacramento County’s Plan to Transition All Clients From the County Contracted

5

Regional Support Teams to County Operated Clinics. ...................................................... 3

6 III ARGUMENT… ............................................................................................................................. 5

7

A. Olmstead and the Integration Mandate. ............................................................................. 5

8

B. Plaintiffs Satisfy the Requirements for a Preliminary Injunction. ..................................... 7

9

1. Plaintiffs Are Likely to Prevail on Their Title II Claims ............................................. 8

10

a. Maintaining the Level and Quality of Services is

11

Essential Because the Proposed Plan Puts Plaintiffs

at Risk of Institutionalization in Violation of the ADA .................................... 8

12

b. Providing Adequate Community Services Will Cost Sacramento

13

County Less Money......................................................................................... 14

14 15 16 17 18 19 20 IV

c. The County's Timeframe and Implementation Plan is Insufficient to Ensure Successful Transition in Violation of the ADA .................................. 15
2. Plaintiffs Will Suffer Irreparable Harm if Defendants Are Not Enjoined .................. 17 3. The Balance of Hardships Tips in Plaintiffs’ Favor.................................................... 21 4. Granting a Preliminary Injunction is in the Public Interest......................................... 22
C. Plaintiffs Raise a Justiciable Issue ................................................................................... 22 CONCLUSION............................................................................................................................ 24

21

22

23

24

25

26

27

28 Statement of Interest of the United States i

1

FEDERAL CASES

2 Am. Trucking Ass’ns, Inc. v. City of Los Angeles,

559 F.3d 1046 (9th Cir. 2009) ......................................................................................................7 3

Arc of Washington State Inc. v. Braddock,

4

427 F.3d 615 (9th Cir. 2005) ........................................................................................................6

5 Baird ex rel. Baird v. Rose,

192 F.3d 462 (4th Cir. 1999) ........................................................................................................6 6

Ball v. Rodgers,

7

No. 00-cv-67, 2009 WL 1395423 (D. Ariz. April 24, 2009) ......................................................16

8 Bible Club v. Placentia-Yorba Linda School Dist.,

573 F. Supp. 2d 1291 (C.D. Cal. 2008) ......................................................................................22 9

Brantley v. Maxwell-Jolly,

10

656 F. Supp. 2d 1161 (N.D. Cal. 2010) ............................................................................7, 17, 21

11 Cal. Pro-Life Council, Inc. v. Getman,

328 F.3d 1088 (9th Cir. 2003) ....................................................................................................23 12

Cota v. Maxwell-Jolly,

13

688 F. Supp. 2d 980 (N.D. Cal. 2010) ..........................................................................................7

14 Crabtree v. Goetz,

No. 08-cv-0939, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) .............................................20 15

Fisher v. Oklahoma Health Care Auth.,

16

335 F.3d 1175 (10th Cir. 2003) ..................................................................................................14

17 Haddad v. Arnold,

No. 10-cv-414 (M.D. Fla. July 9, 2010) .....................................................................................20 18

Long v. Benson,

19

No. 08-cv-26, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008)................................................19, 22

20 Lopez v. Heckler,

713 F.2d 1432 (9th Cir. 1983) ....................................................................................................22 21

Lujan v. Defenders of Wildlife,

22

504 U.S. 555 (1992)....................................................................................................................23

23 Lynch v. Baxley,

744 F.2d 1452(11th Cir. 1984) ...................................................................................................23 24

Marlo M. v. Cansler,

25

679 F. Supp. 2d 635 (E.D. N.C. 2010)....................................................................................... 20

26 Mental Disability Law Clinic v. Hogan, No. 06-cv-6320, 2008 WL 4104460 (E.D.N.Y. Aug. 28, 2008) ................................................23
27

28 Statement of Interest of the United States ii

Olmstead v. L.C.,

1

527 U.S. 581 (1999)............................................................................................................ passim

2 Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dept. of Public Welfare,

402 F.3d 374 (3d. Cir. 2005).......................................................................................................14 3

Rosie D. ex. Rel. John D. v. Swift,

4

310 F.3d 230 (1st Cir. 2002) .......................................................................................................17

5 Sanchez v. Johnson,

416 F.3d 1051 (9th Cir. 2005) ......................................................................................................5 6

United States v. Antelope,

7

395 F.3d 1128 (9th Cir. 2005) ....................................................................................................23

8 V.L. v. Wagner,

669 F. Supp. 2d 1106 (N.D. Cal. 2009) ......................................................................7, 18, 19, 21 9

Winter v. Natural Resources Defense Council, Inc.,

10

___ U.S. ___, 129 S. Ct. 365 (2008).............................................................................................7

11 Yeskey v. Com. of Penn. Dep’t of Corrections,

118 F.3d 168 (3d Cir. 1997)..........................................................................................................6 12

Zukle v. Regents of Univ. of California,

13

166 F.3d 1041 (9th Cir. 1999) ......................................................................................................5

14

15

FEDERAL STATUTES

16 28 U.S.C. § 517.........................................................................................................................................1

17 29 U.S.C. § 794.........................................................................................................................................5

18 42 U.S.C. § 12101.....................................................................................................................................5

19 42 U.S.C. § 12132.....................................................................................................................................5

20 42 U.S.C. § 12133.................................................................................................................................1, 5

21 42 U.S.C. § 12134.................................................................................................................................1, 5

22 42 U.S.C. § 12201.....................................................................................................................................5

23

FEDERAL REGULATIONS

24 28 C.F.R. § 35.130 ....................................................................................................................................6

25 28 C.F.R. § 35.190 ....................................................................................................................................5

26

27

28 Statement of Interest of the United States iii

1

I. INTRODUCTION

2

The United States files this Statement of Interest, pursuant to 28 U.S.C. § 517, because

3 this litigation implicates the proper interpretation and application of title II of the Americans with
4 Disabilities Act, 42 U.S.C. § 12101 et. seq., (“ADA”). In particular, this case involves title II’s
5

6 integration mandate. See Olmstead v. L.C., 527 U.S. 581 (1999). The Department of Justice has

7 authority to enforce title II, 42 U.S.C. § 12133, and to issue regulations implementing the statute,

8 id. § 12134. The United States has a strong interest in the resolution of this matter and urges this

9 Court to grant Plaintiffs’ Motion for Preliminary Injunction. The Superior Court of California

10 issued a tentative ruling granting a preliminary injunction that may have an impact on this
11 present motion. (See tentative California Superior Court ruling by Judge Steven H. Rodda, Item
12
No. 26, Attached as Ex. A.) 13

14

This lawsuit alleges that Sacramento County’s redesign of its outpatient mental health

15 service system puts thousands of Medi-Cal recipients with mental illness at substantial risk of

16 institutionalization in violation of the ADA. The County asserts that the redesign is necessary in

17 light of budget shortfalls; however, the County is simultaneously increasing funding for costly
18 institutional care. While the County argues that the same array of services will be provided
19 under the new system, the facts make it clear that plaintiffs will experience a significant
20 21 reduction in services, putting them at risk of entry into unnecessarily segregated settings such as
22 hospitals, psychiatric facilities, and jails.

23

Beyond the heavy human toll the County’s actions will impose on plaintiffs, they will

24 also give rise to significant financial costs for the County. The cost of providing plaintiffs with
25 necessary outpatient services is far less than the costs associated with unnecessary 26
hospitalizations and institutionalizations that will be caused by the inadequate level of outpatient 27

28 Statement of Interest of the United States 1

services. Defendants attempt to frame the injury at the heart of this case as one of “fear of 1 2 change”; however, this characterization ignores the very real injury recognized by Olmstead, the

3 risk of plaintiffs having to enter institutional placements and hospital emergency rooms due to

4 insufficient community care.

5
6 A.
7

II. SUMMARY OF FACTS
Sacramento County’s Current Outpatient Mental Health Services Are Provided Through County Contracted Regional Support Teams.

8

Sacramento County provides outpatient mental health services to thousands of Medi-Cal

9 recipients through four regional centers, Regional Support Teams (RSTs), run by non-profit
10 entities. (Declaration of Beth Stoneking, DKT 49, ¶¶13, 19.) Each of the named plaintiffs has
11 received community mental health services under the current system for many years (ranging
12 13 from 2 to 10 years). (Declaration of Leslie Napper, DKT 41, ¶2; Declaration of Jacquie
14 Eichhorn-Smith Decl., DKT 30, ¶1; Declaration of Jan Fischer, DKT 31,¶2; Declaration of

15 Lynda Mangio, DKT 40, ¶13; Declaration of Ted Yanello, DKT 51, ¶3.) The RSTs currently

16 serve a population of individuals with significant mental health needs, as those with less severe
17 needs were terminated from the County’s outpatient mental health programs last year. 18
(Supplemental Declaration of Dr. Michael Franczak, DKT 99-6, ¶15.) Plaintiffs are individuals 19
with a variety of mental illnesses, including Chronic Severe Depression, Post Traumatic Stress 20 21 Disorder, bipolar disorder, and schizoaffective disorder, among others. (Mangio Decl. ¶2;
22 Fischer Decl. ¶2, Eichhorn-Smith Decl. ¶2; Yanello Decl. ¶2; Declaration of Alan Cummings,

23 DKT 28, ¶4, Declaration of Edraline Powell, DKT 44, ¶4; Declaration of Teresa Johnson, DKT

24 37, ¶2; Declaration of Channel Kirby, DKT 38, ¶2; Boynton Decl. ¶3; Napper Decl. ¶2;
25 Declaration of Linda Connors, DKT 27, ¶1.)
26 The RSTs develop individual treatment plans for each client that combine “medication,
27

28 Statement of Interest of the United States 2

psychosocial therapy, group counseling, peer support, and self-help, and many opportunities for 1 2 learning life skills and developing resources to integrate into their communities.” (Stoneking

3 Decl. ¶21.) Additionally, RSTs provide community integration services including assistance

4 with accessing public transportation, locating and maintaining housing, and assisting clients with

5 skills to help build relationships with friends and family. (Kirby Decl. ¶11; T. Johnson Decl. ¶5;
6 Declaration of Rania Haidary, DKT 33, ¶5; Eichhorn-Smith Decl. ¶8; Declaration of John Buck,
7 DKT 25, ¶1; Declaration of Lynn Place, DKT 43, ¶10). In addition to the services available
8
9 through RSTs, the County provides services through Transitional Community Opportunities for
10 Recovery and Engagement (“TCORE”). (Declaration of Frank Cline, DKT 26, ¶7; Place Decl.

11 ¶26.) TCORE provides “short-term intensive services to people being discharged from hospitals

12 and who are not receiving any mental health services. TCORE tries to reduce or prevent the

13 need for crisis services, hospitalizations, and institutionalization by increasing the linkage to

14 community-based services for the unserved and underserved.” (Cline Decl. ¶7.)

15

B. 16

Sacramento County’s Plan to Transition All Clients From the County Contracted Regional Support Teams to County Operated Clinics.

17

On June 17, 2010, the Sacramento County Board of Supervisors approved a $2.9 million

18 dollar plan to restructure the outpatient mental health system by closing the RSTs and replacing
19 them with new county-run clinics, staffed by county employees. (Declaration of Kelli Weaver,
20

21 DKT 91, at 6; Declaration of Mary Ann Bennett, DKT 88, at 3 and Ex. B at 3, “Department of

22 Health and Human Services Proposal to Restructure the County’s Adult Outpatient Mental

23 Health Services System.”) This decision was largely driven by two factors. First, the County

24 created a budget shortfall in the adult outpatient system when it shifted discretionary realignment
25 revenues – approximately $3.2 million – from community-based services to institutional care at
26 its 50-bed locked inpatient facility, the Mental Health Treatment Center. (Bennett Decl. at 2, 5;
27

28 Statement of Interest of the United States 3

Deposition of Mary Ann Bennett, attached as Ex. B, 33:11-13.) Second, the County sought to 1 2 protect the jobs of 40 County employees – as opposed to maintaining jobs at the RSTs – who 3 were originally given layoff notices for reduction in other County departments. (Bennett Decl. at

4 5; Bennett Dep. at 60:24-61:18, 132:5-13, Ex. B.)

5

Many details regarding the transition itself and the level of services that will be provided

6 at the County clinics remain unresolved with transitions slated to begin as early as 10 days from
7 the date of the scheduled preliminary injunction hearing. For instance, defendants have failed to
8
9 provide any concrete details on central issues, including when the County will get state approval

10 on its plan (and whether MHSA funds will be authorized); whether the facilities can actually

11 begin transitioning clients on August 1; what information will be provided to individuals calling

12 the phone bank; what protocol is in place to deal with consumers who have concerns; what steps
13 have been taken to identify individuals with unusual needs; what tracking will be done for 14
individuals who miss appointments; whether clinical staff will meet language needs (beyond the 15
use of interpreters); whether any medical records have changed hands; what the contingency plan 16 17 will be if the number of transfers cannot be completed under the current timeline; whether
18 additional staffing is needed to front-load intake time; what steps will be taken for no-shows;

19 whether site visits / in-home visits will occur as follow-ups; what experience (if any) the County

20 staff have with regards to delivering mental health services using the recovery model; what
21 training the County staff will receive. (Bennett Dep. at 69:13-70:18, 78:20-79:2, 92:5-20, 95:15-
22 21; 86:15-17, 88:24-89:3, 96:15-97:1, 98:24-99:5, 101:25-102-5, 103:1-22, 107:11-22, 134:12-
23 14, 138:13-139:6, Ex. B.; Stoneking Second Supp. Decl. ¶8.)
24

25

26

27

28 Statement of Interest of the United States 4

1

2

III. ARGUMENT

3 A. Olmstead and the Integration Mandate.

4

Congress enacted the ADA in 1990 “to provide a clear and comprehensive national

5 mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.
6 § 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate
7 individuals with disabilities, and, despite some improvements, such forms of discrimination
8
9 against individuals with disabilities continue to be a serious and pervasive social problem.”
10 42 U.S.C. § 12101(a)(2). For those reasons, Congress prohibited discrimination against

11 individuals with disabilities by public entities.

12

[N]o qualified individual with a disability shall, by reason of such disability, be excluded

13

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 entity.

14 42 U.S.C. § 12132.
15 As directed by Congress, 42 U.S.C. § 12134, the Attorney General issued regulations
16

17 implementing title II, which are based on regulations issued under section 504 of the

18 Rehabilitation Act.1 See 42 U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Executive Order 12250,

19

20 1 Title II was modeled closely on Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in federally conducted programs and in
21 all of the operations of public entities that receive federal financial assistance. Title II provides that “[t]he remedies, procedures, and rights” applicable to Section 504 shall be available to any
22 person alleging discrimination in violation of title II. 42 U.S.C. § 12133; see also 42 U.S.C. § 12201(a) (ADA must not be construed more narrowly than Rehabilitation Act). The ADA
23 directs the Attorney General to promulgate regulations to implement title II, and requires those regulations to be consistent with preexisting federal regulations that coordinated federal
24 agencies’ application of Section 504 to recipients of federal financial assistance, and interpreted certain aspects of Section 504 as applied to the federal government itself. 42 U.S.C. § 12134(a)-
25 (b). Title II thus extended Section 504’s pre-existing prohibition against disability-based discrimination in programs and activities (including state and local programs and activities)
26 receiving federal financial assistance or conducted by the federal government itself to all operations of state and local governments, whether or not they receive federal assistance. The
27 ADA and the Rehabilitation Act are generally construed to impose the same requirements. See

28 Statement of Interest of the United States 5

45 Fed. Reg. 72995 (1980), reprinted in 42 U.S.C. § 2000d-1. The title II regulations require 1 2 public entities to “administer services, programs, and activities in the most integrated setting 3 appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The

4 preamble discussion of the “integration regulation” explains that “the most integrated setting” is

5 one that “enables individuals with disabilities to interact with nondisabled persons to the fullest

6 extent possible...” 28 C.F.R. § 35.130(d), App. A. This mandate advances one of the principal
7 purposes of title II of the ADA – ending the isolation and segregation of people with disabilities.
8
9 See Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005).

10

Eleven years ago, the Supreme Court applied these authorities and held that title II

11 prohibits the unjustified segregation of individuals with disabilities. Olmstead, 527 U.S. at 596.

12 Olmstead held that public entities are required to provide community-based services for persons
13 with disabilities who would otherwise be entitled to institutional services when a) treatment 14
professionals reasonably determine that such placement is appropriate; b) the affected persons do 15
not oppose such treatment; and c) the placement can be reasonably accommodated, taking into 16 17 account the resources available to the entity and the needs of others who are receiving disability
18 services from the entity. Olmstead, 527 U.S. at 607.

19

The Court explained that this holding “reflects two evident judgments.” Id. at 600.

20 “First, institutional placement of persons who can handle and benefit from community settings 21

22
Sanchez v. Johnson, 416 F.3d 1051, 1062 (9th Cir. 2005); Zukle v. Regents of Univ. of 23 California, 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999). This principle follows from the similar
language employed in the two acts. It also derives from the Congressional directive that 24 implementation and interpretation of the two acts “be coordinated to prevent[ ] imposition of
inconsistent or conflicting standards for the same requirements under the two statutes.” Baird ex 25 rel. Baird v. Rose, 192 F.3d 462, 468-9 (4th Cir. 1999) (citing 42 U.S.C. § 12117(b)) (alteration
in original). See also Yeskey v. Com. of Penn. Dep’t of Corrections, 118 F.3d 168, 170 (3d Cir. 26 1997) (“[A]ll the leading cases take up the statutes together, as we will.”), aff’d, 524 U.S. 206
(1998). 27

28 Statement of Interest of the United States 6

perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of 1 2 participating in community life.” Id. “Second, confinement in an institution severely diminishes 3 the everyday life activities of individuals, including family relations, social contacts, work

4 options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.

5 Olmstead therefore makes clear that the aim of the integration mandate is to eliminate
6 unnecessary institutionalization. A state’s obligation to provide services in the most integrated
7 setting may be excused only where a state can prove that the relief sought would result in a
8
9 “fundamental alteration” of the state’s service system. Olmstead, 527 U.S. at 603-4.

10 B. 11

Plaintiffs Satisfy the Requirements for a Preliminary Injunction.

12

To obtain a preliminary injunction, plaintiffs must show (1) likelihood of success on the

13 merits of their ADA Title II claim; (2) likelihood that the disruption in services will cause
14 irreparable harm; (3) balance of hardships weighs in favor of plaintiffs; and (4) granting an 15 injunction is in the public interest.2 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 16
----,----,129 S. Ct. 365, 374-76 (2008). The decision of whether to grant or deny a motion for 17 18 preliminary injunction is a matter of the district court's discretion. Am. Trucking Ass’ns, Inc. v.
19 City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). District courts are empowered to grant

20 preliminary injunctions “regardless of whether the class has been certified.” Cota v. Maxwell-

21

22 2 Three preliminary injunctions have recently been granted in Olmstead cases in California
23 district courts. In Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161,1164 (N.D. Cal. 2009), the district court granted plaintiffs’ motion for a preliminary injunction, filed on August 18, 2009,
24 which sought to enjoin defendants from reducing a particular community-based service from a maximum of five days to three days per week. A second preliminary injunction was granted in
25 the same case in relation to new eligibility criteria that put plaintiffs at risk of institutionalization, Cota v. Maxwell-Jolly, 688 F. Supp.2d 980, 985 (N.D. Cal. 2010). And in V.L. v. Wagner, 669
26 F. Supp. 2d 1106, 1109 (N.D. Cal. 2009), California was enjoined from reducing or terminating in-home health services thereby putting plaintiffs at risk of institutionalization.
27

28 Statement of Interest of the United States 7

Jolly, 688 F. Supp. 2d 980, 991 (N.D.Cal. 2010) (citations omitted). 1

2

1. Plaintiffs Are Likely To Prevail On Their Title II Claims.

3

Plaintiffs can establish the three key elements of an Olmstead claim. Olmstead, 527 U.S.

4 at 607. The first two elements – that plaintiffs are appropriate for and do not oppose community

5 placement – do not appear to be in dispute. Regarding the third element, plaintiffs’ request that
6 the County not reduce services below the level plaintiffs need in order to avoid
7 institutionalization and that it transition the system in a way that does not place plaintiffs at risk
8
9 of institutionalization is reasonable given the County’s resources and its ability to serve others
10 with disabilities.

11

a. Maintaining the Level and Quality of Services is Essential

Because the Proposed Plan Puts Plaintiffs at Risk of

12

Institutionalization in Violation of the ADA.

13

The level of services under the new outpatient mental health system will be insufficient to

14 maintain the plaintiffs in community living. First, plaintiffs are particularly vulnerable to
15 reduction in services. Plaintiffs have severe mental health disabilities and many have
16

17 experienced multiple psychiatric hospitalizations in the past. (Franczak Supp. Decl. ¶15.)

18 Budget cuts implemented last year have already terminated outpatient mental health services for

19 persons with less acute mental health disabilities, thus those who remain in the outpatient system

20 have significant needs. (Id.) For example, Mr. Yanello, an individual with bipolar disorder,
21 was repeatedly institutionalized prior to receiving services through a RST: “I was 22
institutionalized on many occasions. I was suicidal. Specifically, I was hospitalized at the 23
Sacramento Mental Health Treatment Center on at least eight occasions. I also was hospitalized 24
25 at Sierra Vista at least three times and at the Sutter Psychiatric Hospital at least twice.” (Yanello
26 Decl. ¶4) After receiving RST services, Mr. Yanello has stabilized and is “doing much better;”

27

28 Statement of Interest of the United States 8

successfully living in the community, doing yard work, cooking, and working. (Id. at ¶5-8.) 1 2 Similarly, Ms. Napper, diagnosed with both bipolar disorder and schizoaffective disorder, 3 “bounced back and forth between different mental hospitals and mental facilities” and was

4 hospitalized and placed in crisis residential facilities numerous times prior to receiving

5 community-based mental health services from the county. (Napper Decl. ¶¶ 2,6.) Since

6 receiving services in the community, Ms. Napper’s life has changed dramatically; she has

7 stabilized and has not been hospitalized or placed in a crisis program for several years. (Id. ¶ 7.)
8

9

Ms. Napper and Mr. Yanello’s experiences are similar to the experiences of the other

10 class representatives. For instance, Ms. Fischer, diagnosed with bipolar disorder and major

11 depression, describes a similar history of cycling “in and out of [institutional] facilities”

12 (hospitalized 10+ times at the Sacramento Mental Health Treatment Center and in two other

13 locked facilities) (Fischer Decl. ¶ 4.) While receiving services in the community, Ms. Fischer’s

14 hospitalizations have decreased and she is able to remain in the community, building
15 relationships with her sister and her family. (Id. ¶¶4, 6, 9.)
16

17

Ms. Eichhorn-Smith has spent the bulk of her adult life – more than 24 years – in and out

18 of psychiatric hospitals due to self-injurious behavior. (Eichhorn-Smith Decl. ¶¶2, 3, 5.) These

19 hospitalizations have decreased due to the treatment she now receives, and she looks forward to

20 going back to school and finding a job now that she has stabilized. (Id. ¶¶1, 6, 11.) Without
21 frequent and close contact with her outpatient mental health staff, Ms. Eichhorn-Smith will 22
almost certainly be re-hospitalized due to the self-harm behavior associated with her mental 23
illness. (Cline Supp. Decl. ¶1 “If these services are disrupted Ms. Eichhorn-Smith will 24
25 decompensate and be at risk of harming herself or being placed in an institution.”)

26

Reductions in services through the new County clinics is inevitable because the funding

27

28 Statement of Interest of the United States 9

for the new clinics will be between 16% and 30% lower than funding for the RSTs. While the 1 2 defendants maintain that the funding levels for outpatient mental health services – $18.6 million
3 dollars – will remain the same for fiscal year 2009-10 as fiscal year 2010-11, this is not so.
4 (Opp. 2-3.) Included in the County’s $18.6 million budget for fiscal year 2010-11 is $2.9 million
5 dollars for the system transition that will not be spent to continue client services and thus 6
represents an approximately 16% reduction in funding from the previous fiscal year. (Opp. 3.) 7
Further, an additional $3.5 million dollars of funding is purely speculative and questionable as it
8
depends upon State approval. (Bennett Dep. 69:16-70:25, Ex. B.)3 If the $3.5 million falls 9 10 through, then the total budget reduction over last year will be approximately 30%. Finally, each
11 County dollar buys more outpatient services through the RST contractors than under the County-
12 operated system due to contractor efficiencies. (Declaration of Margaret Branick-Abilla, DKT
13 19, Ex. I, “Mental Health Services Act Steering Committee, 8/20/09 Meeting Minutes,” at 3; 14
Stoneking Second Supp. Decl. ¶7.) 15
The staffing levels and other reductions in services under the system redesign are 16 17 insufficient and will exacerbate plaintiffs’ risk of institutionalization. For instance, TCORE
18 caseloads will increase 300% (from 1:25 to 1:75) which will have a devastating effect on
19 TCORE clients. (Franczak Supp. Decl., DKT 99-6, ¶12.) TCORE’s current low staffing ratios
20 allow staff to respond quickly to clients’ crisis situations to avoid hospitalization and 21 institutionalization. (Id. ¶7.) Jacquie Eichhorn-Smith, a TCORE client for over two years, has 22
received intensive services from a Consumer Family Advocate that have minimized 23
24 3 The Mental Health Services Act money that defendants rely on as a central funding stream for
25 the system redesign has not been approved by the State and defendants do not know when – or if – they will get this approval. In fact, the State Department of Mental Health has already
26 expressed concerns about the plan in a letter dated May 5, 2010. (Letter attached as Ex. J of Pls.’ Mem. In Supp. of Preliminary Injunction, DKT 17.)
27
28 Statement of Interest of the United States
10

hospitalizations. (Supplemental Declaration of Frank S. Cline, DKT 99-4, ¶¶1,5,6.) If caseloads 1 2 triple, it will be impossible to maintain this level of responsiveness and the level of care will 3 decline, putting plaintiffs at risk of institutionalization.4

4

With the high client-staff ratio, plaintiffs with more intensive needs will be unable to

5 receive the same level of care that they require to live successfully in the community because
6 each staff member will have less time available for each client. Defendants’ proposed plan
7 currently provides for 30 minutes per service per week per client which is insufficient for the
8
9 vast majority of individuals being served by the program. (Id. ¶¶ 17,19.) The effects of
10 increased staffing levels are demonstrated by the plaintiffs’ own previous experiences. Ms.

11 Napper previously received reduced outpatient services, but they proved to be insufficient to

12 keep her out of psychiatric facilities:

13

Before I started at Northgate, the treatment I was offered at other mental health places at

14

the county was mainly medication. This approach did not work for me and I had trouble

staying on my medication. Northgate [RST] does not treat me as someone who just

15

needs medication. They go far beyond that…Without question, since I became a client at

Northgate, my condition has improved a lot and I do not end up in mental facilities the

16

way I did before.

17 (Napper Decl. ¶8.)
18 Ms. Lynda Mangio, who has Chronic Severe Depression, Post Traumatic Stress Disorder
19 and panic attacks, describes her experiences with County mental health services when low
20
21 staffing levels resulted in her failure to receive adequate services: “In an attempt to escape my

22 isolation, I went to the Wellness and Recovery Center (Center) in Sacramento County to attend

23 groups four times a week. When I went to the Center, almost all the groups were canceled. It is

24 4 Staffing ratios set forth by defendants pose an additional challenge because they account for
25 clinical staff carrying cases (rather than providing for clinical staff whose time is fully devoted to their clinical specialty). As a result, there are substantial decreases in service from the current
26 system, where the staffing ratios include only personal service coordinators and all other clinicians’ services are above and beyond that ratio. (Franczak Supp. Dec. ¶ 13.)
27

28 Statement of Interest of the United States 11

my understanding that many groups were canceled because the Center did not have enough staff 1 2 that day or staff did not show up for groups.” (Mangio Decl. ¶¶2,12.) Before receiving services 3 at an RST, Ms. Mangio had “daily suicidal thoughts” and she is concerned that with this

4 transition, she will again have suicidal thoughts and face hospitalization. (Id. at ¶¶11, 17.)

5

Patricia Boynton, who has attempted suicide on three occasions, previously received

6 insufficient services from the County and was told by her psychiatrist that “they did not have the
7 resources to help me when I went into crisis.” (Boynton Decl. ¶¶5,8.) Not surprisingly, Ms.
8
9 Boynton was hospitalized at the Mental Health Treatment Center “at least 15 times” during the

10 period she received insufficient outpatient services. (Id.) In contrast, Ms. Boynton states that she

11 receives crisis support services at her RST and “a number of times their support prevented a trip

12 to the Treatment Center.” (Id. at ¶11.)

13

In addition to increased staffing ratios, additional service cuts in the new outpatient

14 mental health system place plaintiffs at higher risk of institutionalization. For example, TCORE
15 services under the new system will be reduced from 24 hours per day, 7 days per week to a 9 to 5
16

17 business day. (Bennett Dep. at 130:9-15, Ex. B.) Further, the TCORE services under the new

18 system will be clinic-based, whereas under the system set to phase out starting August 1, 2010,

19 TCORE services are community-based with staff often serving clients in their residences. (Id.)

20 The new system will also significantly reduce the peer services available to a mere 1 peer to 300
21 clients. (Stoneking Second Supp. Decl. ¶10.)5
22 Plaintiffs’ expert witnesses also state that under the County’s Hybrid Plan, the service
23

24 5 In addition to these concerns, plaintiffs raise concerns about the lack of adequate training of
25 staff in the system redesign. Training on recovery model for County staff will not start until November, more than three months after defendants have begun transitioning clients.
26 (Declaration of Paul Cecchettini, DKT 99-3, ¶7, citing comments from Kelli Weaver at meeting with County representatives on July 13, 2010.)
27

28 Statement of Interest of the United States 12

levels will be insufficient to prevent institutionalization. Betty Dahlquist, an expert in the 1 2 delivery of public mental health services, states that due to insufficient levels of community

3 services, Sacramento County already overly relies on institutional settings. (Declaration of

4 Betty Dahlquist, DKT 99-5, ¶11.) Dahlquist bases her conclusions, in part, on her analysis of

5 data regarding the high rates of involuntary psychiatric hospitalizations in Sacramento County:
6 “In my opinion, this extremely high rate of involuntary hospitalizations is associated with the
7 fact that the County lacks capacity in its community-based services so that it can only channel
8
9 clients to the MHTC rather than use the alternatives that many other counties offer.” (Id. at
10 ¶¶13-14.) The California Mental Health Planning Council reached the same conclusion that

11 Sacramento County’s lack of community based options forces it to rely on institutional settings.

12 (Id. ¶13.)

13

Prior service cuts in Sacramento County’s outpatient mental health services have resulted

14 in increased hospitalizations:

15

[t]he mental health service cuts last year have had a devastating effect. Consumers

16

without adequate supports in place ended up going to the emergency rooms of general

17

hospitals…The hospitals do not understand their conditions and, as a result, may keep a client in psychiatric crisis for days on end because there is nowhere else for them to go.

18 (Place Decl. ¶¶21, 22; See also Declaration of Josephine Balaoro, DKT 21, ¶¶1, 15 (“my
19 residents will be left without the mental health services that they need to be successful in living
20

21 in homes. Then, for no good reason and through no fault of their own, they will end up back in

22 the locked facilities that they were in before”); Declaration of Jessica Johnson, DKT 36, ¶7;

23 Declaration of Renee Klee, DKT 39, ¶13; Declaration of Ron Risley, M.D., DKT 45, ¶18;

24 Declaration of Janette Steele , DKT 48, ¶9.) 25

26

27

28 Statement of Interest of the United States 13

b. Providing Adequate Community Services Will Cost

1

Sacramento County Less Money.

2 Maintaining services adequate to avoid institutionalization will likely cost the County
3 less money. Sacramento County already spends a significant portion of its mental health budget
4
on costly institutional care – namely the Mental Health Treatment Center and acute psychiatric 5

6 unit. (Dahlquist Decl. ¶¶6,8.) Increasing funding for institutional care at the expense of

7 community services perpetuates Sacramento County’s unparalleled reliance on institutional care.

8 (Dahlquist Decl. ¶¶7,8.) No other county is increasing funding for inpatient services. In fact,

9 counties across the State are decreasing funding for these services. Sacramento County currently
10 operates the largest Psychiatric Health Facility in the entire state while other counties instead
11 employ smaller, more cost-effective crisis residential beds. (Dahlquist Decl. ¶¶7,8.) The cost for
12 13 serving an individual at an RST is significantly less than the cost to treat the consumer at the
14 Mental Health Treatment Center. The Treatment Center daily cost to treat each consumer is

15 $1,095, whereas the RST daily cost to treat each consumer is $9.33. (Declaration of Roleda

16 Bates, DKT 22, ¶ 4; Place Decl. ¶ 32.) With adequate community services that plaintiffs request,
17 Sacramento County can reduce its dependence on costly institutional care. 18
Moreover, that the County is experiencing a budget deficit does not exculpate it from 19
complying with the Olmstead integration mandate. Fisher v. Oklahoma Health Care Auth., 335 20 21 F.3d 1175, 1183 (10th Cir. 2003) (“that [a state] has a fiscal problem, by itself, does not lead to
22 an automatic conclusion” that providing the community services that plaintiffs seek would be a

23 fundamental alteration.) Further, “[i]f every alteration in a program or service that required the

24 outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate
25 would be hollow indeed.” Fisher, 335 F.3d at 1183. See also Pennsylvania Protection and
26 Advocacy, Inc. v. Pennsylvania Dept. Of Public Welfare, 402 F.3d 374, 380 (3d Cir. 2005).
27

28 Statement of Interest of the United States 14

Congress was aware that integration “will sometimes involve substantial short-term burdens, 1 2 both financial and administrative,” but the long-term effects of integration “will benefit society 3 as a whole.” Fisher, 335 F.3d at 1183, citing, H.R. Rep. No. 101-485, pt.3, at 50, reprinted in

4 1990 U.S.C.C.A.N. 445,773.

5

c. The County’s Timeframe and Implementation Plan is

6

Insufficient to Ensure Successful Transition in Violation of

the ADA.

7 The request that the implementation of the County’s plan occur in a manner that
8

9 minimizes disruptions in care that put plaintiffs at risk of entry into costly institutional settings is

10 reasonable and does not effect a fundamental alteration.

11

Defendants plan to transfer an astonishing 90-110 clients per week from each RST,

12 beginning August 1, 2010 even though as of the date of this filing, defendants do not yet have

13 operational clinics. (Weaver Decl. at 9; Declaration of Jack Rodney Kennedy, DKT 92, at 10.)
14 At this rate, defendants anticipate completion of more than 4,000 transitions by September 30,
15 2010; however, there will be an additional month (October) for any remaining transitions to take
16
17 place. (Weaver Decl. at 9.)

18

The window for transitions set forth in defendants’ plan is insufficient to properly

19 transition all of the County’s current clients: at a minimum, it would take six months “to

20 accomplish a reasonably effective transition process.” (Franczak Decl. ¶19; Stoneking Second
21 Supp. Decl. ¶13; see also Declaration of Alexan Bolte, DKT 23, ¶18.) The current timeframe, 22
while potentially sufficient for medication appointments and the transfer of clinical records, “will 23
not be possible to ensure continuity of care for this population which … [ensuring successful 24
25 transitions] takes a considerable amount of time, thought, and care”. (Franczak Supp. Decl. ¶21.)

26

Defendants’ current plan presumes that a form letter sent to consumers with a date and

27

28 Statement of Interest of the United States 15

time for a group appointment will be sufficient to ensure transition to the new providers. (Id. 1 2 ¶23.)6 This depersonalized protocol is inconsistent with clinical authority on how such
3 transitions should be undertaken. See Id. (describing transition process and its essential

4 elements: comprehensiveness, individual engagement, responsiveness to special populations,

5 maximizing resources/wrap-around services, relapse prevention, clear responsibilities,
6 contingency plans and tracking, and monitoring outcomes). Dr. Stoneking reiterated these
7 concerns, noting that “a phone call from a new, unknown service provider in the context of an
8
9 involuntary transfer is totally unsatisfactory and dooms the transition plan to failure. County
10 personnel would have to be on hand at the RSTs for a significant transition plan in order to

11 accomplish an acceptable hand-off, and there is no indication that the County has any such

12 plans.” (Stoneking Second Supp. Decl. ¶ 15.)

13

The current plan proposes to transfer all clients at least four times faster than the last

14 major transition of Sacramento County outpatient mental health services in 1991-1993. That
15 transition “took over 16 months – four months of planning and over a year for implementation
16

17 following approval by the Board of Supervisors, as opposed to 2-3 months that the County says

18 will be sufficient to implement its current redesign.” (Stoneking Second Supp. Decl., ¶5.)

19 Further, current RST providers, who are the most familiar with plaintiffs’ needs and the intake

20 process, do not believe the transition period is sufficient. (Supplemental Declaration of John
21 Buck, DKT 99-2, ¶6 (noting that 24 intakes per week at his RST is the maximum number of
22 intakes that can be handled).)
23 Failure to appropriately plan for gaps in services violates Olmstead’s integration
24

25 6 Group appointments, as Dr. Franczak points out, do not provide for “confidentiality, address
26 individual needs, or include current providers” – elements that are essential to continuity of care. (Franczak Supp. Dec. ¶20.)
27

28 Statement of Interest of the United States 16

mandate. See Ball v. Rodgers, No. 00-cv-67, 2009 WL 1395423, at *5 (D. Ariz. April 24, 2009) 1 2 (state defendants violated title II’s integration mandate because their “failure to provide adequate 3 services to avoid unnecessary gaps in service and institutionalization was discriminatory.”) The

4 primary problem with the County’s transition plan stems from poor planning. It is entirely

5 reasonable to request that a county which is undertaking a dramatic redesign of the safety net
6 system for the County’s most vulnerable population ensure that the transition satisfies their
7 obligation under the integration mandate. Brantley, 656 F. Supp. 2d at 1175 (holding that the
8
9 “defendants certainly bear the burden of ensuring more than a “theoretical” availability of such
10 services” in order to satisfy the state defendants’ obligations under the Olmstead integration

11 mandate when reducing Adult Day Health Care services.) Plaintiffs’ experts describe in detail

12 the factors and contingencies that would minimize the risk of institutionalization with the

13 transition. (Franczak Supp. Decl. ¶¶20-24; Stoneking Second Supp. Decl. ¶¶13,15.) Pausing
14 implementation of any system redesign until difficult (and important) issues are resolved is
15 consistent with Olmstead and the requirement that public entities serve individuals in the most
16
17 integrated setting.

18

2. Plaintiffs Will Suffer Irreparable Harm if Defendants Are Not Enjoined.

19

The reduction of services and the ill-conceived transition plan put plaintiffs at substantial

20 risk of unnecessary institutionalization constituting irreparable harm. Dr. Franczak aptly
21 summarizes the harm that plaintiffs will suffer if the system redesign moves forward as-is:
22 “clinical regression, increased hospitalization and institutionalization, injury, illness, and death.”
23 7 (Franczak Supp. Decl. ¶ 27.)
24

25

26 7 The nature of serious mental illness as a “chronic, relapsing illness” dictates that without appropriate community services, “frequent re-hospitalizations” will result. (Franczak Dec. ¶14.)
27 Other courts have recognized this phenomenon. See, e.g. Rosie D. ex rel. John D. v. Swift, 310

28 Statement of Interest of the United States 17

Dr. Franczak, who has worked for almost 40 years with individuals with similar needs to 1 2 putative class members, states that the proposed service cuts will likely result in unnecessary 3 institutionalization in hospital emergency rooms and psychiatric facilities. (Franczak Decl. ¶10;

4 Franczak Supp. Decl. ¶¶2, 26-27.)8 Dr. Stoneking similarly states that when clients are deprived

5 of medically necessary services, even temporarily, they will be “placed at risk of
6 institutionalization or acute, more expensive services in crisis facilities, hospital emergency
7 rooms, institutes for mental disease (“IMDs”), jails, and even prisons.” (Stoneking Decl. ¶¶5,
8
9 39.) These hospitalizations “can worsen the downward spiral … by further destabilizing them,
10 making it extremely difficult for them to move back into the community.” (Id.)

11

The likelihood that with the planned reduction in services, plaintiffs will experience an

12 increased risk of institutionalization and associated irreparable harm through loss of community
13 involvement and related problems has been recognized by other courts faced with similar factual 14
circumstances and evidence. For example, in V.L. v. Wagner, the State of California planned to 15
reduce the number of individuals eligible for In Home Supportive Services (IHSS) for people 16 17 with disabilities, including those with mental illness. Wagner, 669 F. Supp. at 1112. Based upon
18 similar testimony by “experts, county officials, caregivers and individual recipients,” the court

19 enjoined the defendants from implementing the service reductions and found that “individuals

20

21 F.3d 230, 232-33 (1st Cir. 2002) (“These debilitating conditions [of children with psychiatric or
22 behavioral disorders] have led to a wide array of unhappy results, including expulsions from schools, cyclical transfers between treating facilities, repeated hospitalizations, and years spent
23 away from family members at crisis stabilization units.”)
24 8Dr. Franczak states that the “significant upheaval” of this transition “will result in harm for many individuals increasing likelihood of adverse outcomes including increased hospitalization,
25 use of emergency rooms, jail, prisons, [and] homeless shelters…” (Id. ¶11.) Dr. Franczak explained further that without effective transitioning, individuals will experience significant
26 deterioration in their mental status, an increase in symptoms, and a reduction in their ability to relate to others and will likely end up in institutions. (Franczak Decl. ¶17.)
27

28 Statement of Interest of the United States 18

with mental disabilities who lose IHSS assistance to remind them to take medication, attend 1 2 medical appointments and perform tasks essential to their continued health are at a severely 3 increased risk for institutionalization.” Id. at 1119-20. The court further found that “there is also

4 a serious risk that individuals with mental or cognitive disabilities will become homeless if they

5 lose IHSS services. Once homeless, mentally ill individuals decline rapidly and could end up
6 anywhere from a psychiatric hospital to jail.” Id. at 1122.
7 The harm associated with the reduction of services, including hospitalization,
8
9 institutionalization, loss of housing, loss of employment, isolation, deteriorating mental health,
10 and even death is undeniably severe. Mr. Yannello recounted his hospitalizations at various

11 facilities and flatly states: “I truly hated it when I was hospitalized.” (Yannello Decl. ¶4.) If

12 plaintiffs are institutionalized, they will face separation from friends and family, loss of
13 affordable community housing, and loss of jobs in the community. (Yanello Decl. ¶¶6, 8; 14
Fischer Decl. ¶6; Boynton Decl. ¶1.) If the defendants are not enjoined, the injury to plaintiffs 15
with history of suicide attempts or suicidal thoughts, including Channel Kirby, Lynda Mangio, 16 17 Patricia Boynton, Rania Haidary, Yian Meng Saeteurn, Alan Cummings, Jan Fischer, Ted
18 Yanello, Jacquie Eichhorn-Smith, can never be rectified. (Kirby Decl. ¶3; Napper Decl. ¶2;

19 Mangio Decl. ¶11, , Boynton Decl. ¶8; Haidary Decl. ¶7; Saeteurn Decl. ¶9; Cummings Decl. ¶7;

20 Fischer Decl. ¶10; Yanello Decl. ¶4, Eichhorn-Smith Decl. ¶5.)

21

Courts have routinely recognized that the harm associated with institutionalization – even

22 on a short term basis – is severe. In Long v. Benson, No. 08cv26, 2008 WL 4571903, at *2 (N.D.
23

Fla. Oct. 14, 2008), a Florida court granted a preliminary injunction in an Olmstead case and 24

25 explained that forcing the individual to leave his community placement and enter a nursing home

26 “will inflict an enormous psychological blow.” The court further explained that “because of the

27

28 Statement of Interest of the United States 19

very substantial difference in [plaintiff’s] perceived quality of life in the apartment as compared 1 2 to the nursing home, each day he is required to live in the nursing home will be an irreparable 3 harm.” Similarly, in Marlo M., 679 F. Supp. 2d at 638, a North Carolina court granted a

4 preliminary injunction in an Olmstead case because the plaintiffs had “lived successfully in their

5 community based apartments,” and, if they lost community services they would “suffer
6 regressive consequences if moved [to a nursing home], even temporarily.” (emphasis added).
7 And in Crabtree v. Goetz, No. 08-0939, 2008 WL 5330506 *25 (M.D. Tenn. Dec. 19, 2008)
8
9 (unpublished), the court granted a preliminary injunction enjoining state defendants from cutting
10 home health care services that would force plaintiffs with disabilities into institutional

11 placements; the court explained that institutionalization “would be detrimental to [plaintiffs’]

12 care, causing, inter alia, mental depression, and for some Plaintiffs, a shorter life expectancy or

13 death.”9

14 The Court in Olmstead, too, recognized these very concerns, describing the adverse
15 effects that occur with unnecessary institutional placements:
16

17

First, institutional placement … perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life ... Second,

18

confinement in an institution severely diminishes the everyday life activities of

individuals, including family relations, social contacts, work options, economic

19

independence, educational advancement, and cultural enrichment.... In order to receive

needed medical services, persons … must, because of those disabilities, relinquish

20

participation in community life they could enjoy given reasonable accommodations,

21

while persons without mental disabilities can receive the medical services they need without similar sacrifice.

22 Olmstead, 527 U.S. at 600-01.

23

24

25 9 See also Haddad v. Arnold, No. 3:10-00414 (M.D. Fla. July 9, 2010) (Opinion granting
26 preliminary injunction in Olmstead case after finding that the plaintiff will suffer irreparable injury if forced to enter a nursing home.) (Attached as Ex. C.)
27

28 Statement of Interest of the United States 20

3. The Balance of Hardships Tips in Plaintiffs’ Favor. 1

2

The hardships that the plaintiffs will endure absent an injunction – including the risk of

3 institutionalization, homelessness, jail and even death – far outweigh any potential hardship to

4 the County. The defendants have not specifically identified the cost, if any, associated with

5 maintaining the same level of services for the plaintiffs, most likely because the County denies
6 that a service reduction will actually occur under its Hybrid Plan. (Opp. 10) Further, the
7 defendants have not identified the costs, if any, associated with preparing and implementing a
8
9 transition that will reduce the risk of institutionalization. The defendants claim that it will cost
10 the County $4.5 million to “reinstate the mental health system” as it existed in FY 2009 – 2010,

11 although defendants did not explain how they calculated this number. (Declaration of Thomas

12 Burkart, DKT 86, at 2.) Because the plaintiffs are not seeking to reinstate the mental health
13 system as it existed in fiscal year 2009- 2010, this figure is not a reliable measure of cost 14
associated with the plaintiffs’ actual modification request. (Pls.’ Reply at 10.) Further, because 15
the cost of providing institutional care is so high ($1,095 per day at the Mental Health Treatment 16 17 Center versus $9.33 per day at the RSTs) (Bates Dec. ¶4) any financial hardships that defendants
18 may incur will likely be offset by the cost savings that accrue from avoiding unnecessary

19 institutionalizations.

20

Other courts when faced with similar reductions in social services have determined that

21 the harm to the plaintiffs outweigh the defendant’s budget considerations. For example, the risk
22 of institutionalization and inability to access necessary medical care as a result of reductions to
23
In Home Supportive Services outweighed the financial burden of the state during a fiscal crisis. 24

25 Wagner, 669 F. Supp. 2d at 1122. See also Brantley, 656 F. Supp. 2d at 1177 (state’s fiscal

26 crisis does not outweigh harm to indigent seniors and disabled adults who faced a reduction in

27

28 Statement of Interest of the United States 21

the state’s Adult Day Health Care program.) 1

2

4. Granting a Preliminary Injunction Is In The Public Interest.

3

The public interest weighs heavily in favor of granting relief. “It would be tragic, not

4 only from the standpoint of the individuals involved but also from the standpoint of society, were

5 poor, elderly, disabled people to be wrongfully deprived of essential benefits for any period of
6 time.” Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).
7 There is a strong public interest in granting a preliminary injunction to allow plaintiffs to
8
9 remain in community settings. There is a public interest in eliminating the discriminatory effects
10 that arise from segregating persons with disabilities into institutions when they can be

11 appropriately placed in community settings. As Olmstead explained, the unjustified segregation

12 of persons with disabilities can stigmatize them as incapable or unworthy of participating in

13 community life.10 Olmstead, 527 U.S. at 600. In Long, the court relied on this reasoning to hold

14 that the public interest favored allowing the plaintiff to “remain in the community rather than be
15 isolated in the nursing home”:
16

17

If, as it ultimately turns out, treating individuals like Mr. Griffin in the community would require a fundamental alteration of the Medicaid program, so that the Secretary prevails

18

in this litigation, little harm will have been done. To the contrary, [plaintiff’s] life will

have been better, at least for a time…

19

Long, 2008 WL 4571903, at *3. 20

21 C. Plaintiffs Raise a Justiciable Issue.

22

Plaintiffs raise a justiciable issue because they will experience a reduction in outpatient

23 mental health services as a result of the defendants’ actions. It is well settled that to establish

24

25 10 See also U.S. Amicus Brief in Olmstead at 16-17, citing to 136 Cong. Rec. H2603 (daily ed. May 22, 1990) (statement of Rep. Collins) (“To be segregated is to be misunderstood, even
26 feared,” and “only by breaking down barriers between people can we dispel the negative attitudes and myths that are the main currency of oppression.”).
27

28 Statement of Interest of the United States 22

standing, the litigants must show (1) plaintiffs suffered actual or threatened injury; (2) the 1 2 condition complained of caused the injury or threatened injury, and (3) the requested relief 3 redressed the alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

4 When examining whether plaintiffs suffered actual or threatened injury, the inquiry focuses on

5 whether the injury-in-fact is (1) “concrete and particularized,” and (2) actual or imminent, not
6 ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560. The injury here – loss of Medicaid
7 outpatient mental health services – is concrete, particularized and imminent. Cal. Pro-Life
8
9 Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003); United States v. Antelope, 395
10 F.3d 1128, 1132 (9th Cir. 2005); Mental Disability Law Clinic v. Hogan, No. 06-cv-6320, 2008

11 WL 4104460, at *23-25 (E.D.N.Y. Aug. 26, 2008) (“Due to Mary Jo’s illness and the allegation

12 that she continues to refuse to take her medication, the likely harm of another hospitalization and

13 the fact that this harm could be avoided if she were subject to [assisted outpatient treatment] is

14 not too speculative or conjectural to preclude standing.”); Lynch v. Baxley, 744 F.2d 1452, 1456
15 (11th Cir. 1984).
16

17

Service cuts are inevitable under the funding levels and staffing ratios included in the

18 new plan. The County cannot possibly provide the same level of services while implementing a

19 funding cut of 16% to 30%, especially considering that it costs more to provide services directly

20 through the County rather than through contractors. The defendants repeatedly state the new
21 plan offers the same “menu” or “array” of services. (Opp. 8; Weaver Decl. at 3, 5; Zykofsky 22
Decl. at 5; Kennedy Decl. at 5; Bennett Dep. 58:22-24, Ex. B.) However, as discussed in Section 23
II(A)(1)(a) above, even if the “menu” – i.e. the types of services offered – is comparable (which 24
25 it is not), the intensity by which the services are offered will be significantly diluted, causing a
26 concrete and actual loss of services. The loss of services itself is sufficient to create standing,

27

28 Statement of Interest of the United States 23

and the risk of institutionalization that directly results from this loss in services provides a 1 2 secondary injury grounding plaintiffs’ standing. These harms are “concrete” and “immediate”

3 and satisfy the Supreme Court’s standards for awarding a remedy in this case.

4 IV. CONCLUSION
5 For the reasons stated above, the Court should grant Plaintiffs’ Motion for Preliminary
6 Injunction. With the Court’s permission, counsel for the United States will be present at any
7 upcoming hearings.
8
DATED: July 19, 2010 9
Respectfully submitted, 10

11

ERIC H. HOLDER, JR.

12

Attorney General of the United States

13

THOMAS E. PEREZ

Assistant Attorney General 14

15

SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General

16

Civil Rights Division

17

/s/ Regan Rush

JOHN L. WODATCH, Chief

18

PHILIP L. BREEN, Special Legal Counsel

19

RENEE M. WOHLENHAUS, Deputy Chief

REGAN RUSH, Trial Attorney

20

Disability Rights Section

Civil Rights Division

21

U.S. Department of Justice

950 Pennsylvania Avenue, N.W. - NYA

22

Washington, D.C. 20530

23

Telephone: (202) 616-2726

Facsimile: (202) 307-1197

24

regan.rush@usdoj.gov

25

26

27

28 Statement of Interest of the United States 24

1

CERTIFICATE OF SERVICE

2 I hereby certify that on July 19, 2010, a copy of foregoing was filed electronically. Notice of this
3 filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may 4 access this filing through the Court’s CM/ECF System.

5

/s/ Regan Rush

REGAN RUSH

6

Trial Attorney

Disability Rights Section

7

Civil Rights Division

8

U.S. Department of Justice

950 Pennsylvania Avenue, N.W. - NYA

9

Washington, D.C. 20530

Telephone: (202) 616-2726

10

Facsimile: (202) 307-1197

11

regan.rush@usdoj.gov

12

Counsel for United States

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
Statement of Interest of the United States
1