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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

10 RATTlYA UNTHAKSINKUN, individually and on behalf of a class of similarly situated
11 persons,

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Plaintiff,

No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

13

v.

CLASS ACTION

14 DOUGLAS PORTER, in his official capacity as Administrator of the Washington
15 State Health Care Authority,

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Defendant.

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I. PRELIMINARY STATEMENT

19

Plaintiff Rattiya Unthaksinkun is an indigent, legal immigrant who needs state-

20 subsidized health insurance under the Washington Basic Health Plan (BH) for treatment of 21 cancer and other medical needs. She received these benefits prior to March 1, 2011 when

22 she was disemolled from the program. She brings this class action on behalf of herself and

23 others similarly situated against Douglas Porter, in his official capacity as Administrator of

24 the Washington State Health Care Authority ("HCA"), to reverse the State of Washington's

25 disemollment of individuals from Basic Health whom it disemolled on March 1, 2011, and

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF- I
4824-0651-4953.01 04071111459

Riddell Williams P.s.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

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1 to require HCA to reinstate Basic Health benefits to these individuals retroactive to

2 March 1, 2011.

3

Basic Health is a state-sponsored health program that provides subsidized health

4 insurance to low-income Washington residents. Their monthly premiums are based on

5 their income level. Until March I, 2011, immigrants were not excluded from the program

6 based on their immigration status. However, on February 18,2011, the Legislature passed

7 ESHB 1086 that restricted the program for fiscal reasons, requiring, inter alia, the prompt

8 disenrollment of all persons not meeting citizenship or certain immigrant status criteria. In

9 response to ESHB I 086, the HCA sent disenrollment notices that same day to

10 approximately 17,500 people, most of whom were members for whom it did not have

11 enough information to determine immigration status.

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Ms. Unthaksinkun and approximately 16,000 people received such a notice. She

13 and other class members submitted additional documentation of their legal status but were

14 not reinstated because the eligibility rules had changed. The reason for the change was the

15 budget restriction that disqualified all immigrants for whom the state did not receive

16 federal Medicaid matching funds under a recent agreement with the federal government.

17 The matching funds are only available for immigrants who are in certain federally

18 "qualified" legal statuses and exclude even people in these statuses from federal benefits

19 for five years.

20

Ms. Unthaksinkun has ongoing medical needs such as follow-up care for her recent

21 breast cancer surgery. Given her family's limited resources, she canceled her March 2011

22 appointment upon learning of her disenrollment. She brings this lawsuit to challenge her

23 disenrollment and the disenrollment of other lawfully present immigrants from Basic

24 Health while Basic Health continues to provide benefits to similarly situated U.S. citizens

25 and certain legal immigrants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF- 2
4824-0651-4953.01 040711/1459

Riddell Williams P.s.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

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This lawsuit is brought pursuant to 42 U.S.C. § 1983 on the grounds that the

2 Administrator ofHCA, through his actions terminating Plaintiffs and other class

3 members' state-subsidized Basic Health benefits solely to save money, while continuing to

4 provide similar benefits to U.S. citizens and some aliens with similar incomes, paid for

5 with state and federal funds, has violated the Equal Protection Clause of the Fourteenth 6 Amendment to the United States Constitution.

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II. JURISDICTION AND VENUE

8 1. This Court has jurisdiction under 28 U.S.C. § 1331, because this action arises under the

9 laws of the United States, and 28 U.S.C. § 1343(3) and (4), which confer on the federal 10 district courts original jurisdiction over all claims asserted under 42 U.S. C.§ 1983 to

11 redress deprivations of rights, privileges, or immunities guaranteed by Acts of Congress

12 and the United States Constitution. 13 2. Plaintiff seeks declaratory, injunctive, and other appropriate relief pursuant to 28

14 U.S.C. §§ 2201 and 2202, 42 U.S.C. § 1983, and Fed. R. Civ. P. 23, 57, and 65. 15 3. Venue for this action lies in this District pursuant to 28 U.S.C. § 1391(b). A substantial

16 part of the events or omissions giving rise to Plaintiffs claims occurred in King County, 17 Washington, and Defendant may be found in the Western District of Washington.

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III. PARTIES

19 4. PlaintiffRattiya Unthaksinkun. PlaintiffUnthaksinkun is and has been a "qualified

20 alien," as defined in 8 U.S.C. § 1641(b), for approximately the past four years and ten

21 months, who would otherwise be eligible for Basic Health, but for the citizenship and alien

22 status requirements adopted in ESHB 1086. Ms. Unthaksinkun and her husband, a

23 member of her household, were enrolled in Basic Health as of February 28, 2011. She

24 received notice that HCA planned to terminate her Basic Health benefits on February 28,

25 2011. Ms. Unthaksinkun resides in Snohomish County, Washington.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF· 3
4824-0651-4953.01 04071111459

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1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

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1 5. Defendant Douglas Porter. Douglas Porter is the Director and Administrator of the

2 HCA, which is headquartered in Olympia, Washington. Mr. Porter is responsible for

3 ensuring that the Basic Health program is administered in a manner consistent with state

4 and federal law. Mr. Porter is sued in his official capacity only. He is responsible for all

5 acts taken by HCA. All actions by the Health Care Authority or Mr. Porter were taken

6 under color of state law.

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IV. CLASS ALLEGATIONS

8 6. Plaintiff seeks to maintain this action as a class action under Fed. R. Civ. P 23(a) and

9 23(b)(2). She asks the Court to define the class as all Washington state residents who are

10 immigrants lawfully present in the U.S. (1) whose Basic Health benefits terminated

11 effective March 1, 2011 because of their immigration status and who have not been

12 reinstated; or (2) in the future would be eligible for Basic Health benefits, but for their

13 citizenship or immigration status. 14 7. Each of the prerequisites to a class action enumerated in Fed. R. Civ. P. 23(a) is

15 satisfied by the proposed class. 16 8. Size of Class. Approximately 17,500 persons were disenrolled from Basic Health

17 effective March 1, 2011. Approximately 16,000 of these individuals were disenrolled due

18 to immigration status and received a notice related to disenrollment for this reason. An

19 estimated 9,000 people appealed, of whom at least 7,000 would have appealed the

20 immigration notice, most likely by submitting documentation of immigrant status. As of

21 March 22, 2011, HCA had reinstated the Basic Health benefits of3,942 of these

22 disenrollees, leaving at least 3,000 whose appeals were denied or whose appeals of

23 immigrant status denials are pending. Even if only 5% ofthese individuals are lawfully

24 present immigrants, there would be 150 class members. The number is likely to be far

25 higher.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF- 4
4824-0651-4953.01 040711/1459

Riddell Williams P.S.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

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I 9. Joinder. Joinder is impracticable given the size of the class, the indigence of class

2 members, the language and cultural barriers that class members face in seeking legal

3 representation and filing individual lawsuits, the geographic dispersion of class members,

4 and the fact that the class includes future, unknown class members.

5 l 0. Common Questions ofLaw and Fact. This action requires a determination of

6 questions of law and fact that are common to the class, including but not limited to whether

7 HCA's termination of Plaintiffs and other class members' Basic Health benefits while

8 continuing to provide Basic Health benefits to U.S. citizens and certain qualified aliens

9 who meet the requirements adopted in ESHB I086 violates the Equal Protection Clause of

10 the Fourteenth Amendment to the United States Constitution; 2) whether Plaintiff class

11 members are entitled to declaratory relief under 42 U.S.C. § 1983; and 3) whether Plaintiff

12 and class members are entitled to temporary, preliminary, and permanent injunctive relief.

13 ll. Typicality and Adequacy ofClass Representative. The claims of Plaintiff

14 Unthaksinkun are typical of the claims of the class and will fairly and adequately represent

15 the interests of the class. Plaintiff alleged that the State of Washington's decision to

16 terminate Plaintiffs subsidized Basic Health enrollment, while continuing to allow and

17 provide enrollment in Basic Health to qualified aliens who meet the citizenship or

18 immigration status requirements adopted in ESHB1086, violates her and class members'

19 rights under the Equal Protection Clause ofthe Fourteenth Amendment to the United States

20 Constitution. Plaintiff seeks declaratory and injunctive relief that will inure to the benefit

21 of all class members. Plaintiffs claims are not subject to any unique defenses which

22 would prevent her from vigorously prosecuting this lawsuit or representing the interests of

23 the class.

24 12. Defendant Has Acted on Grounds Generally Applicable to the Class. Defendant, by

25 terminating PlaintiffUnthaksinkun's and class members' Basic Health benefits has acted

26 on grounds generally applicable to the class, rendering declaratory and injunctive relief

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF- 5
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Riddell Williams P.S.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

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1 appropriate respecting the whole class. Certification ofthe class is therefore proper under

2 Fed. R. Civ. P. 23 (b)(2).

3 13. Class Counsel. Plaintiff has retained counsel experienced in federal court and in class

4 and other complex litigation to represent the class; counsel have the commitment and

5 resources necessary to vigorously represent the class.

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v. STATUTORY AND REGULATORY FRAMEWORK

7 A. The Basic Health Plan

8 14. Since 1987, the State of Washington has administered Washington Basic Health, a

9 health insurance program that has enabled hundreds of thousands of low-income residents

10 of our state obtain health coverage. The program provides subsidized health insurance to

11 Washington residents who met certain eligibility requirements. The program is

12 administered by the State, but coverage is provided by private insurance carriers through

13 managed care organizations. Since 1993, Washington state law has allocated the powers,

14 duties and functions of Basic Health to the Washington State Health Care Authority

15 ("HCA"). State law also charges the HCA Administrator with administering Basic Health

16 and allocates all powers and duties of the Basic Health Administrator to the HCA

17 Administrator. RCW70.47.005.

18 15. In order to be eligible to enroll in Basic Health, until March 1, 2011, an individual

19 generally had to be a Washington state resident who: (a) was not eligible for free or

20 purchased medicare; (b) was not receiving medical assistance from the department of

21 social and health services (DSHS); (c) was not enrolled in Washington Health Program [an

22 unsubsidized health insurance program administered by HCA]; (d) was not confined or

23 residing in a governrnent-operated institution, unless he or she meets eligibility criteria

24 adopted by the administrator; (e) was not a full-time student who had received a temporary

25 visa to study in the United States; (f) resided in an area of the state served by a managed

26 health care system participating in the plan; (g) chose to obtain coverage from a particular

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1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

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1 managed health care system; (h) paid or had paid on their behalf their portion of the costs

2 for participation in the plan; and (i) whose gross family income at the time of enrollment

3 . met the definition of a subsidized enrollee. WAC 182-24-020(1 ).

4 16. Prior to March I, 2011, in order to be eligible to receive state-subsidized coverage from

5 Basic Health, as a "subsidized enrollee," an individual generally was required to have a

6 current gross family income that did not exceed twice the federal poverty level as adjusted

7 for family size and determined annually by the federal Department of Health and Human

8 Services ("FPL"). WAC 188-24-010(a); RCW 70.47.020(a)(9)(v)). Certain foster parents

9 whose adjusted family incomes do not exceed 300% of the FPL are eligible for state-

10 subsidized Basic Health coverage as well. WAC 188-34-010(b); RCW 70.47.020(b).

11 17. Basic Health subscribers are required to pay monthly premiums to receive health

12 insurance for their families through Basic Health. The amount of the premium subsidy

13 depends on family income.

14 18. Before March 1, 2011, an applicant's citizenship or immigration status did not affect

15 her eligibility for enrolling in the Basic Health program, except for those with temporary

16 student visas. RCW 70.47.020(5) (definition of"unsubsidized enrollee"); RCW

17 70.47.020(9), WAC 182-24-010(a) (definition of"subsidized enrollee"), WAC 182-24-

18 020(1 )(e).

19 19. Since 1998, the HCA Administrator has been given the authority to limit enrollment in

20 Basic Health if (s)he determines that acceptance of additional enrollment would exceed

21 limits established by the Legislature, would jeopardize the orderly development of Basic

22 Health , or would result in an overexpenditure of program funds. WAC 188-24-020.

23 RCW 70.47.060(6). Under this authority, the Administrator has closed enrollment in Basic

24 Health from time to time, most recently since 2009.

25 www.basichealth.hca.wa. gov/press_release/frequently-asked~questions-basic-health-wait-

26 list.html.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF- 7
4824-0651-4953.01 04071111459

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1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

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I B. The Medicaid Program 2 20. Medicaid is a cooperative, jointly funded program between the federal and state

3 governments that provides medical assistance to low-income individuals. 42 U.S.C. §

4 1396-1396v. 5 21. Washington has elected to participate in the Medicaid program and so must comply 6 with the requirements of the federal Medicaid Act and its implementing regulations, the

7 requirements of Medicaid waiver agreements to which it is a party, and relevant federal and

8 state law. 9 22. Through the Medicaid program, the Secretary of the United States Department of

10 Health and Human Services ("HHS") reimburses each participating state for somewhere

11 between 50% and 60% of its costs for eligible healthcare and related services. Washington

12 State receives such matching funds for medical assistance services provided through its 13 State Medicaid program and Medicaid waiver agreements.

14 C. Sec. 1115 Waivers and the "Bridge Waiver" 15 23. Section 1115 of the Social Security Act affords the Secretary of HHS broad powers to

16 authorize States to implement demonstration projects likely to assist in promoting the 17 objectives ofthe Medicaid statute. 42 U.S.C. § 1315.

18 24. Such projects have included providing health care coverage to individuals not

19 otherwise eligible for Medicaid services under the standard Medicaid eligibility criteria.

20 25. States are entitled to receive federal funding at the federal Medicaid matching rate for

21 allowable services they provide and allowable expenses they incur on such projects. 42

22 U.S.C. § 1315(a). 23 26. In order to receive authority from the Secretary of HHS to operate such project, a State

24 must submit an application to one of the HHS divisions, the Centers for Medicare and

25 Medicaid Services ("CMS"), and then enter into a written agreement with CMS laying out

26 its terms and conditions.
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1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

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1 27. Section 1115 gives the Secretary ofHHS the authority to waive certain requirements of

2 federal Medicaid law from applying to States' provision of services under these

3 agreements. 42 U.S.C. § 1315(b).

4 28. Prior to January of2011, Basic Health's costs were financed solely with state funds,

5 along with the premiums paid by subscribers. Prior to March 2011, the State of

6 Washington received no federal funding to operate the Basic Health program.

7 29. On January 3, 2011, the Department received CMS' approval to operate a § 1115

8 waiver project, referred to therein as the "Transitional Bridge" project. It was anticipated

9 that CMS' approval ofthe waiver program would enable the State to expand its receipt of

10 Medicaid federal matching payments to include funding for Basic Health services for

11 individuals who would be eligible to enroll in Medicaid in any event, in 2014, under the

12 Affordable Care Act. Bridge Waiver Special Terms and Conditions (hereinafter "Bridge

13 Waiver STC") at 3 Sec. II.

14 30. Specifically, under the Bridge Waiver, the State is entitled to receive federal funding

15 for qualified expenditures to provide coverage to "non-pregnant individuals ages 19

16 through 64 who have countable incomes up to and including 133 percent of the Federal

17 poverty level (FPL) who have not been determined to be eligible for Medicaid or the

18 Children's Health Insurance Program (CHIP), and who are currently enrolled, or become

19 newly enrolled, in the following [pre-existing] State programs: a. Basic Health; b.

20 Disability Lifeline; or c. Alcohol and Drug Addiction Treatment and Support." Such

21 individuals are referred to in the Bridge Waiver as "Transition Eligibles."

22 31. Disability Lifeline ("DL") and Alcohol and Drug Addiction Treatment and Support

23 ("ADATSA"), like Basic Health, are two state-administered public benefits programs

24 furnishing health care services to Washington residents. Like Basic Health, these programs

25 existed for some time before the State applied for and received authorization to obtain

26
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1 federal funds under the Bridge Waiver. Like Basic Health, these programs were funded

2 exclusively with state funds, prior to the Bridge Waiver.

3 32. One purpose of the Bridge Waiver was to help the State continue coverage for

4 participants in Basic Health, Disability Lifeline (DL), and ADATSA who would not be

5 eligible for federal matching funds, by offsetting the total cost of the program with federal

6 matching funds for eligible participants. Bridge Waiver STC, Sec. II at 3.

7 33. The Bridge Waiver states that participants in Basic Health who meet the following

8 requirements shall fall within the "Transition Eligibles" population: "individuals ages 19

9 through 64 who are emolled in the Basic Health program, and have countable household

10 income at or below 133 percent of the Federal poverty level (FPL); and are U.S.

11 citizens/qualified non-citizens and residents of Washington; and who either do not meet the

12 standards for Medicaid or CHIP eligibility, or who have not been determined to be

13 Medicaid eligible in the initial Basic Health certification or annual Basic Health

14 recertification (within established timeframes). This population does not include pregnant

15 women (including through the 60th day postpartum). There is no resource limit." Bridge

16 Waiver, Sec. IV(7)(a)(i) at 7.

17

VI. FACTUAL BACKGROUND

18 34. On February 18,2011, the Washington Legislature passed and Governor Gregoire

19 signed into law ESHB 1086, an "Early Action Budget," which made changes to the

20 existing biennial budget through the end of the fiscal year (June 30, 2011) to conform the

21 budget to changes in State revenues and expenses which had become apparent since the

22 current biennial budget was previously passed and amended. Governor Gregoire partially

23 vetoed some provisions of the bill, which are not relevant to this case. ESHB 1086 has

24 been assigned the citation Chapter 5, Laws of 2011.

25 35. Through this bill, Section 213 of the budget was amended to add a subsection 8, which

26 reads as follows: "As soon as practicable after February 28, 2011, emollment in the

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1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192
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1 subsidized basic health plan shall be limited to only include persons who qualify as

2 subsidized enrollees as defined in RCW 70.47.020 and who (a) qualify for services under

3 1115 Medicaid demonstration project number 11-W-00254/10 [the Bridge Waiver]; or

4 (b) are foster parents licensed under chapter 74.15." ESHB 1086, Sec. 213(8).

5 Notwithstanding this budgetary clause, the Legislature did not at that time, nor has it since,

6 approved changes to the statutes laying out the criteria for a subsidized enrollee's

7 participation in Basic Health. See RCW 70.47.020(9). Nor has HCA promulgated

8 emergency rules to change the regulations laying out the eligibility requirements for being a

9 subsidized enrollee in Basic Health. See WAC 182-24-010. Notably, those statutes and

10 regulations do not include a test for citizenship or immigration status as a condition for

11 eligibility for or enrollment in Basic Health, other than the exclusion of individuals with

12 student visas.

13 36. Responding to the passage and signing ofESHB 1086, and on the same day it was

14 passed, HCA sent letters dated February 18, 2011, to approximately 17,500 enrollees in

15 Basic Health informing them that they would be disenrolled from Basic Health on March I,

16 2011. Slightly different notices were mailed to enrollees depending on whether HCA was

17 disenrolling them because of their citizenship and immigration status or their family

18 income, or age. HCA translated these notices into Spanish. Upon information and belief,

19 HCA mailed the Spanish-language versions to some enrollees. The remainder of these

20 disenrollment notices sent out by HCA were written in English.

21 37. Upon information and belief, the vast majority of those receiving the notice were

22 members for whom HCA did not have enough information to determine immigration

23 status. On or about February 8, 2011, Basic Health sent a letter to each household

24 containing members who were Basic Health enrollees requesting that the enrollees submit

25 their social security numbers to HCA so it could determine whether it could receive federal

26 matching funds for the enrolled family members' Basic Health benefits. This letter did not

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1001 FOURTH AVENUE SUITE 4500
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1 state that the enrollees' submission of social security numbers would affect the enrollees'

2 eligibility to continue to enroll in Basic Health. Aside from this letter, HCA never

3 requested immigration status information from Basic Health members.

4 38. Ms. Unthaksinkun is indigent. At the time this dispute arose, she and her husband, a

5 member of her household, had been enrolled in the Basic Health Plan since 2006. As of

6 February of this year, she was paying a premium of $60/month for this coverage for

7 herself, and her husband paid the same amount in Basic Health premiums, amounting to a

8 total of$120/month. At that time the highest subsidized premium for a household of her

9 size and age range was approximately $400. Ms. Unthaksinkun paid $120 for her and her

10 husband's Basic Health premiums for the month of March 2011.

11 39. Ms. Unthaksinkun was diagnosed with breast cancer in June of2010 and has been

12 receiving medical treatment for that condition since then. This treatment included two

13 surgeries, a lumpectomy and mastectomy, in June and August of2010, respectively. As a

14 result of these surgeries, Ms. Unthaksinkun lost significant arm strength. Until March of

15 2011, her breast cancer treatment was covered through her Basic Health coverage.

16 Ms. Unthaksinkun relied upon her Basic Health coverage to pay for this medically

17 necessary treatment, without which she is at risk of serious injury or death.

18 40. Ms. Unthaksinkun's doctor instructed her to schedule a medical appointment in March

19 of this year to have a qualified health care professional assess how her surgeries were

20 healing and determine what additional treatment she required. She felt compelled to

21 cancel this appointment, due to her disenrollment from Basic Health and her family's

22 limited resources. Ms. Unthaksinkun' s doctor has also told her that it is medically

23 necessary for her to get a medical test in June of 2011 as part of her ongoing breast cancer

24 treatment. She does not know how she is going to be able to pay for this test if her Basic

25 Health benefits are not reinstated prior to that time.

26
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1 41. On February 18, 2011, HCA sent notice to Ms. Unthaksinkun's household and

2 approximately 16,000 Basic Health emollees who were receiving Basic Health, authorized

3 by RCW 74.07 and WAC 182-24. These notices stated that "Basic Health is unable to

4 verify the member(s) legally resides in the United States ....Basic Health requires

5 individuals between ages 19-64 to legally reside in the United States to receive Basic

6 Health coverage." Plaintiffs notice listed her name alone as the household member to

7 whom the notice referred. The last sentence was followed by a footnote at the end of the

8 page: "Chapter 568, Laws of2009." The act of the Washington State Legislature

9 identified by this citation does not condition Basic Health coverage on the subscriber being

10 between ages 19-64 or legally residing in the United States, nor does it condition coverage

11 on a subscriber's eligibility for federal matching funds under the Bridge Waiver or any

12 similar Medicaid waiver program.

l3 42. This form notice failed to inform Ms. Unthanksinkun or class members of why HCA

14 found them ineligible. The notice's statement that "Basic Health requires individuals

15 between ages 19-64 to legally reside in the United States to receive Basic Health coverage"

16 is an incorrect statement of the legal requirements for Basic Health emollment, even under

17 the terms ofESHBl086 and the Bridge Waiver. An individual may lawfully reside in the

18 United States and possess one of a number of different immigration statuses, which

19 nonetheless renders her ineligible to receive Basic Health. For example, HCA has upheld

20 the disemollment of immigrants whom it understands are lawful permanent residents of the

21 United States. See also 8 U.S.C. § 1641(a) defining "qualified alien"; 8 U.S. C.§§ 1611-

22 1613 defining which qualified aliens are eligible and ineligible for federal public benefits,

23 such as Medicaid.

24 43. Ms. Unthaksinkun legally resides in the United States. She is a lawful permanent

25 resident of this country, lived here with that status from 1992-1996, and reentered the

26 country on May 31, 2006. Her husband is a citizen, making her eligible to become a

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1 naturalized citizen, but they have not had the funds to do so. She has continued to be a

2 lawful permanent resident of this country. Her inunigration status apparently renders the

3 state ineligible for federal matching funds under the Bridge Waiver.

4 44. Additionally, the disenrollment notice HCA sent Ms. Unthaksinkun and class members

5 failed to provide any individualized explanation for RCA's determination that they did not

6 legally reside in the United States. The notice did not disclose the information relied upon

7 by RCA in concluding that it was unable to verify that they did not legally reside in the

8 United States. It did not disclose what inunigration statuses would render one eligible to

9 continue enrollment in Basic Health, nor did it reference any legal authority enumerating or

10 describing those statuses.

11 45. The notices sent to PlaintiffUnthaksinkun along with all class members, stated the

12 following regarding enrollees' rights to appeal this disenrollment "If you believe the action

13 taken on your account is wrong, we must receive your appeal with 30 days of the date of

14 this letter. Send a written appeal to PO Box 42690, Olympia, WA 98504 with your name,

15 Basic Health ID number, mailing address, and daytime phone number. In your appeal, you

16 must explain the decision you disagree with, why you disagree, what you want to change,

17 and include any documents you have to support your request."

18 46. The notices did not inform Plaintiff and other class members being disenrol!ed of their

19 right to request and receive continued Basic Health benefits pending an appeal of their

20 disenrollment. WAC 182-22-320(8).

21 47. Ms. Unthaksinkun initiated a timely administrative appeal of her disenrollment from

22 Basic Health by RCA She submitted copies of her "green card" and driver's license along

23 with her social security number in support of her administrative appeal.

24 48. As of March 21,2011, HCA had received requests from 6,763 households to appeal the

25 disenrollments of approximately 8,927 household members who had been Basic Health

26 subscribers and who had been disenrolled in response to the passage ofESHB1086 (each

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 14
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1001 FOURTH AVENUE
SUITE 4500 SEATTLE, WA 98154-1192
206.624.3600

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1 such request appealed the disenrollment of one or more Basic Health members who had

2 been disenrolled within that household). As ofthat date, HCA had ruled on approximately

3 69% ofthose appeals and had granted the requests to reinstate household members, whom

4 it had erroneously disenrolled from Basic Health, in approximately 64% of those appeals.

5 49. HCA sent written adverse appeal form decisions to those whose disenrollment appeals

6 it rejected, informing them of this fact. Concerning enrollees whose immigration status-

7 based disenrollments had been upheld by HCA, the decisions provided an inadequate

8 explanation of the reasons for concluding that appellants did not have an immigration

9 status that qualified for Basic Health eligibility.

10 50. For example, the decision sent to Ms. Unthaksinkun gave the following reason to

11 explain why HCA rejected her administrative appeal: "The information you provided

12 shows the individual(s) listed above entered the U.S. after August 22, 1996, and has not

13 met the five year wait period required under federal law." Ms. Unthaksinkun had lived in

14 the U.S. before 1996, although not continuously.

15 51. Like this notice, the notices sent to individuals who had been disenrolled due to

16 immigration status did not disclose what immigration statuses would render an enrollee

17 eligible to be reenrolled in Basic Health, nor did they reference any legal authority

18 enumerating or describing those statuses. The only legal authority referenced by these

19 notices was the citation to Chapter 568, Laws of2009.

20 52. By terminating PlaintiffUnthaksinkun's and other class members' state-funded Basic

21 Health benefits, while continuing to provide Basic Health benefits paid for with state funds

22 to Basic Health enrollees who meet the citizenship and alien status requirements adopted in

23 ESHB 1086, the state is discriminating against them because of their status as aliens for the

24 sole purpose of saving money.

25 53. Ms. Unthaksinkun and members of the proposed class are suffering or will suffer

26 irreparable harm due to the termination of their Basic Health benefits. As a result of

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1 HCA' s actions, Plaintiff and class members are not able to purchase health insurance or

2 pay for medically necessary health care. Plaintiff and the class members she seeks to

3 represent have no plain, speedy, or adequate remedy at law except by this complaint for

4 injunctive relief.

5

VII. CLAIMS FOR RELIEF

6 54. Plaintiff re-alleges and incorporates herein by reference each and every allegation and

7 paragraph set forth previously.

8 55. HCA has terminated Plaintiffs and class members' Basic Health benefits authorized by

9 RCW 74.07 and WAC 182-24 solely to save money. At the same time, HCA is continuing

10 to spend state funds to provide Basic Health benefits to similarly situated U.S. citizens and

11 aliens who meet the alien status requirement of the Bridge Waiver.

12 56. In doing so, HCA is discriminating against Plaintiff and the class she seeks to represent

13 on the basis of their alien or immigration status even though they are legal immigrants,

14 lawfully present in the United States.

15 57. The state's actions in discriminating against Plaintiff and class members because of

16 their alienage are subject to strict scrutiny under the Equal Protection Clause of the

17 Fourteenth Amendment to the United States Constitution.

18 58. Saving money is not an adequate justification to discriminate against Plaintiff and class

19 members in violation of the Equal Protection Clause of the 14th Amendment of the United

20 States Constitution.

21 59. HCA's decision to terminate the Plaintiffs and other class members' Basic Health

22 benefits, while continuing to provide Basic Health benefits to similarly situated Basic

23 Health enrollees who meet the citizenship and alien status requirements adopted in ESHB

24 1086, discriminates against the Plaintiff and class members in violation of the Equal

25 Protection Clause ofthe 14th Amendment of the United States Constitution.

26
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1 60. HCA' s actions deprive Plaintiff and the class of rights, privileges, or immunities

2 secured to them by the Constitution in violation of 42 U.S.C. § 1983. 3 61. Irreparable harm has occurred as a result ofHCA's actions. The balance of harms

4 favors entering temporary, preliminary, and permanent injunctive relief because the harm 5 suffered by Plaintiff and other class members outweighs any monetary loss to HCA. 6 62. It is in the public interest that the Court grant temporary, preliminary, and permanent 7 injunctive relief to ensure that Plaintiff and other similarly situated individuals resume

8 enrollmentin the Basic Health program pending the outcome of this litigation.

9

VIII. PRAYER FOR RELIEF

10

WHEREFORE, Plaintiff prays for the following relief:

11

(a) That the Court determine that this action be maintained as a class action

12 under Fed. R. Civ. P. 23(a), and (b)(2), defining the class as proposed above, approving

13 Plaintiff as adequate class representative, and designating Riddell Williams and Northwest

14 Health Law Advocates as class counsel;

15

(b) For a declaration that State of Washington's and HCA's actions in

16 terminating of Plaintiffs and class members' Basic Health benefits because ofthe lack of

17 program funding violates the Equal Protection Clause of the Fourteenth Amendment to the

18 United States Constitution in violation of 42 U.S. C.§ 1983.

19

(c) For entry of temporary, preliminary and permanent injunctive relief

20 enjoining HCA's termination of Plaintiffs and class members' Basic Health benefits, and

21 to order HCA to reinstate Plaintiffs and class members' enrollment as subsidized enrollees

22 in the Basic Health program.

23

(e) Waive the requirement for the posting of a bond as security for the entry of

24 temporary, preliminary, or permanent injunctive relief;

25

(e) Award the Plaintiff her costs ofthis action and reasonable attorney's fees

26 pursuant to 42 U.S.C. § 1988; and
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - I7
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1001 FOURTH AVENUE
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1

(t) For such other relief as the Court may deem just and proper.

2

DATED this 7th day of April, 2011.

3

RIDDELL WILLIAMS P.S.

4

5

By Is/ Blake Marks-Dias

Blake Marks-Dias

6

Michael Pierson

RIDDELL WILLIAMS P.S.

7

1001 Fourth Avenue, Suite 4500

Seattle, WA 98154-1192

8

Tel: (206) 624-3600

bmarksdiasialriddellwilliams.com

9

mpierson@riddellwilliams.com

10

Daniel S Gross,

Janet Varon

11

NoHLA

4759 151h Avenue NE, Suite 305

12

Seattle, W A 981 05

Tel: (206) 325.6464

13

janet@nohla.org

daniel@nohla.org

14

Attorneys for Plaintiff

15

16

17

18

19

20

21

22

23

24

25

26
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 Case 2:11-cv-00588-JLR Document 30 Filed 05/23/11 Page 1 of 31

1

The Honorable James L. Robart

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 RATTIYA UNTHAKSINKUN, SUSAN

AHMADI, KHADDOUJ ATIF, ANNA

11 SERGEYEVNAPONOMAREVA,AND

12

S.J., individually and on behalf of a class of similarly situated persons,

No. 2:11-cv-00588
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

13 Plaintiff,

CLASS ACTION

14 v.
15 DOUGLAS PORTER, in his official capacity
16 as Administrator of the Washington State
Health Care Authority, 17

18

Defendant.

19

I. PRELIMINARY STATEMENT

20

Plaintiffs Susan Ahmadi, Khaddouj Atif, Rattiya Unthaksinkun, Anna Sergeyevna

21

Ponomareva,

and

S.J.

1 ,

are

indigent,

legal

immigrants

who

need

state-subsidized

health

22 insurance under the Washington Basic Health program for treatment of cancer, a thyroid

23 condition, and other medical needs. They received these benefits until March 1, 2011,

24 when they were disenrolled from the program by the Washington State Health Care

25

26 1 PlaintiffS.J. is referred to herein by her initials, pursuant to a stipulation with Defendant.

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No. 2:11-cv-00588)- I
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1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192
206.624.3600

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1 Authority (HCA). Ten days before disenrolling them, HCA sent Plaintiffs form letters
2
notifYing them of the imminent termination of their Basic Health benefits. These letters 3
contained an inaccurate explanation of the reasons and legal authority for the termination
4
of their benefits. Plaintiffs bring this class action on behalf ofthemselves and others 5
similarly situated against Douglas Porter, in his official capacity as Administrator of the 6
Washington State Health Care Authority ("HCA"), to reverse the State of Washington's 7
March 1, 2011 disenrollment of individuals from Basic Health, to require HCA to reinstate
8
Basic Health benefits to these individuals retroactive to March 1, 2011, and to enjoin HCA 9
from seeking to terminate these members' Basic Health benefits again without first 10
providing them adequate, meaningful and timely pretermination notice oftheir 11
disenrollment that comports with Due Process requirements. 12
Basic Health is a state-sponsored health program that provides subsidized health 13
insurance to low-income Washington residents. Their monthly premiums are based on
14
their income level. Until March 1, 2011, immigrants were not excluded from the program 15
based on their immigration status, except for holders of student visas. However, on 16
February 18, 2011, the Legislature passed ESHB 1086, a supplemental budget bill which 17
restricted eligibility for the program. To save money, ESHB 1086 required, inter alia, the 18
disenrollment of all persons not meeting the new criteria "as soon as practicable." In 19
response to ESHB 1086, the HCA sent disenrollment notices that same day to 20
approximately 16,900 people. HCA did not have enough information to determine 21
immigration status for most of these individuals.
22
Ms. Ahmadi,. Ms. Atif, Ms. Ponomareva, S.J., and Ms. Unthaksinkun, as well as 23
approximately 16,000 people, received such a notice informing them that they were being 24
disenrolled because HCA "was unable to verify that [they]legally resides in the United
25
States" (emphasis added). Plaintiffs, who are all Lawful Permanent Residents of the 26

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No.2: 11-cv-00588)- 2
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1 United States, and numerous other class members submitted additional documentation of
2
their legal status but were not reinstated because the eligibility rules had changed. The 3
reason for the change was the budget restriction that disqualified all immigrants for whom 4
the state did not receive federal Medicaid matching funds under a recent agreement with 5
the federal government. Tbis agreement explicitly states that matching funds are only 6
available for U.S. citizens and immigrants who are "qualified" noncitizens. Under HCA's 7
interpretation of the agreement, HCA would not be entitled to receive federal matching 8
funds for Basic Health services provided to many legal immigrants, including many 9
immigrants who have had federally "qualified" statuses for less than five years' time. 10
Plaintiffs have ongoing medical needs for which they are unable to afford care, in 11
the absence of their Basic Health coverage. Ms. Unthaksinkun requires ongoing follow-up 12
care for her recent breast cancer surgery. Ms. Atif has a thyroid condition for which she 13
requires medication and ongoing medical monitoring, chronic knee pain, and other medical 14
symptoms she developed recently. Ms. Ponomareva also suffers from a thyroid condition 15
for which she requires medication and ongoing medical monitoring, and has an additional 16
medical condition, endometriosis, for which she may require surgery or other medical 17
treatment. Ms. Ahmadi has used Basic Health to cover necessary medical treatment and 18
periodic screening examinations. S.J. has a breast cyst which requires her to receive 19
periodic radiological scans. Additionally, S.J. is a nursing student and is required by her 20
school to maintain health insurance coverage during the training required to complete the 21
program, from which she expects to graduate in August 2011. Given their families'
22
limited resources, after learning of their disemollments, Ms. Unthaksinkun and Ms. 23
Ponomareva canceled follow-up medical appointments in March 2011 for their ongoing
24
medical conditions, and Ms. Atif delayed seeking care. 25

26
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1 Plaintiffs bring this lawsuit to challenge: 1) their disenrollment and the

2
disenrollment of other lawfully present immigrants from Basic Health while HCA

3 continues to provide Basic Health benefits to similarly situated U.S. citizens and certain

4 legal immigrants; and 2) their disenrollment and the disenrollment of other Basic Health

5
recipients on the basis of immigration status without first being provided adequate,

6 meaningful and timely notice of the proposed termination oftheir benefits.

7 1bis lawsuit is brought pursuant to 42 U.S.C. § 1983 on the grounds that: 1) the

8 Administrator of HCA, through his actions terminating Plaintiffs' and other class

9 members' state-subsidized Basic Health benefits solely to save money, while continuing to

10 provide similar benefits to U.S. citizens and some aliens with similar incomes, paid for

11 with state and federal funds, has violated the Equal Protection Clause ofthe Fourteenth

12 Amendment to the United States Constitution; and 2) the Administrator of HCA provided

13 constitutionally inadequate termination notices to Plaintiffs and other class members, and

14 in doing so violated the Due Process Clause of the Fourteenth Amendment of the United

15 States Constitution.

16 II. JURISDICTION AND VENUE

17

1. This Court has jurisdiction under 28 U.S.C. § 1331, because this action

18 arises under the laws of the United States, and 28 U.S.C. § 1343(3) and (4), which confer

19 on the federal district courts original jurisdiction over all claims asserted under 42 U.S.C.

20 § 1983 to redress deprivations of rights, privileges, or immunities guaranteed by Acts of

21 Congress and the United States Constitution.

22
2. Plaintiffs seek declaratory, injunctive, and other appropriate relief pursuant

23 to 28 U.S.C. §§ 2201 and 2202,42 U.S.C. § 1983, and Fed. R. Civ. P. 23, 57, and 65.

24

3. Venue for this action lies in this District pursuant to 28 U.S.C. § 1391(b). A

25 substantial part of the events or omissions giving rise to Plaintiff Atif s and Plaintiff

26

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I Ahmadi's claims occurred in King County, Washington; a substantial part of the events or

2
omissions giving rise to PlaintiffUnthaksinkun's claims occurred in Snohomish County,

3 Washington; a substantial part of the events or omissions giving rise to Plaintiff

4 Ponomareva's claims occurred in Whatcom County, Washington; a substantial part of the

5 events or omissions giving rise to PlaintiffS.J.'s claims occurred in Thurston County,

6 Washington; and, Defendant may be found in the Western District of Washington.

7 III. PARTIES

8 4. Plaintiff Rattiya Unthaksinkun. PlaintiffUnthaksinkun is and has been a

9 "qualified alien," as defined in 8 U.S.C. § !64l(b), for approximately the past four years

10 and eleven months. She would be eligible for Basic Health but for the citizenship and

11 alien status requirements adopted in ESHB 1086 and in RCW 70.47.020(viii) (as amended

12 in HB1544, on April29, 2011). Ms. Unthaksinkun and her husband, a member of her

13 household, were enrolled in Basic Health as of February 28, 2011. HCA terminated her

14 Basic Health benefits on March I, 20 II. Ms. Unthaksinkun resides in Snohomish County,

15 Washington.

16

5. Plaintiff Susan Ahmadi. Plaintiff Ahmadi is and has been a "qualified

17 alien," as defined in 8 U.S.C. § !64l(b), for approximately the past year. She would be

18 eligible for Basic Health but for the citizenship and alien status requirements adopted in

19 ESHB 1086 and in RCW 70.47.020(viii) (as amended in HB!544, on April29, 20!1).

20 Ms. Ahmadi and her husband, a member of her household, were continuously enrolled in

21 Basic Health since 2009. HCA terminated her Basic Health benefits on March I, 20 II.

22
Ms. Ahmadi resides in King County, Washington.

23
6. Plaintiff Khaddouj Atif. Plaintiff Atif is and has been a "qualified alien," as

24 defined in 8 U.S.C.§ 164l(b), for approximately the past four years and seven months.

25 She would otherwise be eligible for Basic Health, but for the citizenship and alien status

26

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No. 2:11-cv-00588)- 5
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Case 2:11-cv-00588-JLR Document 30 Filed 05/23/11 Page 6 of 31

1 requirements adopted in ESHB 1086 and in RCW 70.47.020(viii) (as amended in HB1544,
2
on April29, 2011). Ms. Atif and her son, a member of her household, were enrolled in 3
Basic Health as of February 28, 2011. HCA terminated her Basic Health benefits on 4
March 1, 2011. Ms. Atifresides in King County, Washington.
5 7. Plaintiff Anna Sergeyevna Ponomareva is and has been a "qualified alien,"
6 as defined in 8 U.S.C. § 164l(b), for approximately the past four years and one month.
7 She would be eligible for Basic Health, but for the citizenship and alien status
8 requirements adopted in ESHB 1086 and in RCW 70.47.020(viii) (as amended in HB1544,
9 on April29, 2011), and she may still be currently eligible for Basic Health, as HCA may
10 have wrongly applied these alien status requirements and terminated her benefits
11
improperly. Ms. Ponomareva and her husband, a member of her household, were enrolled 12
in Basic Health as of February 28, 2011. HCA terminated her Basic Health benefits on 13
March 1, 2011. Ms. Ponomareva resides in Whatcom County, Washington. 14
8. S.J. is and has been a "qualified alien," as defined in 8 U.S.C. § 164l(b), for
15 approximately the past year and four months. She would otherwise be eligible for Basic
16 Health, but for the citizenship and alien status requirements adopted in ESHB 1086 and in
17 RCW 70.47.020(viii) (as amended in HB1544, on April29, 2011). S.J. was enrolled in
18 Basic Health as of February 28, 2011. HCA terminated her Basic Health benefits on
19 March 1, 2011. S.J. resides in Thurston County, Washington.
20 9. Defendant Douglas Porter. Douglas Porter is the Administrator of the
21 HCA, which is headquartered in Olympia, Washington. Mr. Porter is responsible for
22
ensuring that the Basic Health program is administered in a manner consistent with state 23
and federal law. Mr. Porter is sued in his official capacity only. He is responsible for all 24
acts taken by HCA. All actions by the Health Care Authority or Mr. Porter were taken 25
under color of state law. 26

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1 IV. CLASS ALLEGATIONS
2
10. Plaintiffs seek to maintain this action as a class action under Fed. R. Civ. P 3
23(a) and 23(b)(2). 4
ll. With respect to the claim that Defendant's actions violated the Due Process 5
Clause of 14th Amendment of the United States Constitution, Plaintiffs ask the Court to 6
define the class as all Washington state residents who were sent notices by HCA informing 7
them that their Basic Health benefits would be terminated effective March l, 2011 because 8
oftheir immigration status and who have not subsequently had their Basic Health benefits 9
reinstated. 10
12. With respect to the claim that Defendant's actions violated the Equal 11
Protection Clause of the 14th Amendment of the United States Constitution, Plaintiffs ask 12
the Court to define the class as all Washington state residents who are immigrants lawfully 13
present in the U.S. (l) whose Basic Health benefits terminated effective March l, 2011 14
because of their immigration status and who have not subsequently had their Basic Health 15
benefits reinstated; or (2) in the future would be eligible for Basic Health benefits, but for 16
their citizenship or immigration status. 17
13. Each of the prerequisites to a class action enumerated in Fed. R. Civ. P. 18
23(a) is satisfied by each of the proposed classes. 19
14. Size of Due Process Class. The class alleging violations of their rights 20
under the Due Process Clause (the "Due Process class") includes at least 11,300 21
individuals. Specifically, HCA sent approximately 15,400 individuals the February 18,
22
2011 disemollment form notice based on immigration status. Approximately 4,100 were 23
reinstated based on an appeal, leaving at least 11,300 disemolled due to the challenged 24
notices. Size of Equal Protection Class. The class alleging violations of their rights under 25
the Equal Protection Clause (the "Equal Protection class") is of unknown size, but is likely
26

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1 to consist of well over 100 persons. HCA sent a notice of disemollment due to
2
immigration status to the approximately 15,400 individuals disemolled for this reason. An 3
estimated 9,000 people appealed, among whom at least 7,000 persons (9,000- 2,000) 4
appealed the immigration notice. As of April4, 2011, HCA had reinstated the Basic 5
Health benefits of 4,099 of these disemollees, leaving at least 2,901 (7,000- 4,099) whose 6
appeals were denied or are pending. Even if only 5% of these individuals are lawfully 7
present immigrants, there would be 145 class members. The number is likely to be far 8
higher, and will increase to include individuals who will be denied emollment in the future 9
due to immigration status. 10
15. Joinder. Joinder is impracticable given the size of the classes, the indigence 11
of class members, the language and cultural barriers that class members face in seeking 12
legal representation and filing individual lawsuits, the geographic dispersion of class 13
members, and the fact that the class includes future, unknown members. 14
16. Common Questions of Law and Fact. This action requires a determination 15
of questions of law and fact that are common to each class. 16
17. With respect to the "Due Process Class," those common questions include 17
but are not limited to: 1) whether HCA violated Plaintiffs' and other class members' 18
constitutional rights by sending them notices that did not satisfy requirements ofthe Due 19
Process Clause of the Fourteenth Amendment to the United States Constitution prior to 20
terminating their Basic Health benefits; 2) whether Plaintiffs and class members are 21
entitled to declaratory relief under 42 U.S.C. § 1983; and 3) whether Plaintiffs and class
22
members are entitled to temporary, preliminary, and permanent injunctive relief. 23
18. With respect to the "Equal Protection" class, those common questions 24
include but are not limited to: 1) whether RCA's termination of Plaintiffs' and other class 25
members' Basic Health benefits, while continuing to provide Basic Health benefits to U.S.
26

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1 citizens and certain qualified aliens who meet the requirements adopted in ESHB 1086,
2
violates the Equal Protection Clause of the Fourteenth Amendment to the United States 3
Constitution; 2) whether Plaintiffs and class members are entitled to declaratory relief 4
under 42 U.S.C. § 1983; and 3) whether Plaintiffs and class members are entitled to 5
temporary, preliminary, and permanent injunctive relief. 6
19. Typicality and Adequacy of Class Representative. The claims of Plaintiffs 7
Ahmadi, Atif, Ponomareva, S.J. and Unthaksinkun are typical of the claims ofthe classes 8
and will fairly and adequately represent the interests of the classes. Plaintiffs allege that the 9
termination notices that HCA sent to Plaintiffs and class members informing them of 10
HCA's imminent termination oftheir Basic Health benefits did not provide the adequate, 11
meaningful and timely notice required by the Due Process Clause of the Fourteenth 12
Amendment ofthe United States Constitution. Plaintiffs further allege that the State of 13
Washington's decision to terminate Plaintiffs' and other class members' subsidized Basic 14
Health enrollment, while continuing to allow and provide enrollment in Basic Health to 15
aliens who meet the citizenship or immigration status requirements adopted in ESHB1086, 16
violates their and class members' rights under the Equal Protection Clause of the 17
Fourteenth Amendment to the United States Constitution. Plaintiffs seek declaratory and 18
injunctive relief that will inure to the benefit of all class members. Plaintiffs' claims are 19
not subject to any unique defenses which would prevent them from vigorously prosecuting 20
this lawsuit or representing the interests of the class. 21
20. Defendant Has Acted on Grounds Generally Applicable to the Classes.
22
Defendant, by terminating the Basic Health benefits of Ms. Unthaksinkun, Ms. Ahmadi, 23
Ms. Atif, Ms. Ponomareva, S.J., and class members, after sending them materially 24
identical form notices, has acted on grounds generally applicable to the classes, rendering 25
declaratory and injunctive relief appropriate for the whole Equal Protection class and Due
26

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1
Process class. Certification of the classes is therefore proper under Fed. R.

2
Civ. P. 23 (b)(2).

3
21. Class Counsel. Plaintiff has retained counsel experienced in federal court

4 and in class and other complex litigation to represent the class; counsel have the

5 commitment and resources necessary to vigorously represent the classes.

6

v. STATUTORY AND REGULATORY FRAMEWORK

7 A. The Basic Health Plan

8 22. Since 1987, the State of Washington has administered Washington Basic

9
Health, a health insurance program that has enabled hundreds of thousands of!ow-income

10 residents of our state obtain health coverage. The program provides subsidized health

11
insurance to Washington residents who met certain eligibility requirements. The program

12 is administered by the State, but coverage is provided by private insurance carriers through

13
managed care organizations. Since 1993, Washington state law has allocated the powers,

14 duties and functions of Basic Health to the Washington State Health Care Authority

15 ("HCA"). State law also charges the HCA Administrator with administering Basic Health

16 and allocates all powers and duties of the Basic Health Administrator to the HCA

17 Administrator. RCW 70.47.005.

18 23. In order to be eligible to enroll in Basic Health, until March 1, 2011, an

19 individual generally had to be a Washington state resident who: (a) was not eligible for

20 free or purchased Medicare; (b) was not receiving medical assistance from the department

21 of social and health services (DSHS); (c) was not enrolled in Washington Health Program

22
[an unsubsidized health insurance program administered by HCA]; (d) was not confined or

23 residing in a government-operated institution, unless he or she meets eligibility criteria

24 adopted by the administrator; (e) was not a full-time student who had received a temporary

25 visa to study in the United States; (f) resided in an area of the state served by a managed

26

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1 health care system participating in the plan; (g) chose to obtain coverage from a particular
2
managed health care system; (h) paid or had paid on their behalftheir portion ofthe costs 3
for participation in the plan; and (i) whose gross family income at the time of enrollment 4
met the definition of a subsidized enrollee. WAC 182-24-020(1 ). 5
24. Prior to March 1, 2011, in order to be eligible to receive state-subsidized 6
coverage from Basic Health, as a "subsidized enrollee," an individual generally was 7
required to have a current gross family income that did not exceed twice the federal 8
poverty level as adjusted for family size and determined annually by the federal 9
Department of Health and Human Services ("FPL"). WAC 188-24-0lO(a); RCW 10
70.47.020(a)(9)(v)). Certain foster parents whose adjusted family incomes do not exceed 11
300% of the FPL are eligible for state-subsidized Basic Health coverage as well. WAC 12
188-34-0lO(b); RCW 70.47.020(b). 13
25. Basic Health subscribers are required to pre-pay monthly premiums to 14
receive health insurance for their families through Basic Health. The amount of the 15
premium subsidy depends on family income. 16
26. Before March 1, 2011, an applicant's citizenship or immigration status did 17
not affect her eligibilir; for enrolling in the Basic Health program, except for those with 18
temporary student visas. RCW 70.47.020(5) (definition of"unsubsidized enrollee"); RCW 19
70.47.020(9), WAC 182-24-0lO(a) (definition of"subsidized enrollee"), WAC 182-2420
020(l)(e). 21
27. Since 1998, the HCA Administrator has been given the authority to limit
22
enrollment in Basic Health if (s)he determines that acceptance of additional enrollment 23 would exceed limits established by the Legislature, would jeopardize the orderly 24
development of Basic Health, or would result in an overexpenditnre of program funds. 25
WAC 188-24-020. RCW 70.47.060(6). Under this authority, the Administrator has closed 26

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1 enrollment in Basic Health from time to time, most recently since 2009.
2
www.basichealth.hca.wa.gov/press_release/frequently-asked-questions-basic-health-wait3
list.html. 4
B. The Medicaid Program 5
28. Medicaid is a cooperative, jointly funded program between the federal and 6
state governrnents that provides medical assistance to low-income individuals. 42 U.S.C. 7
§ 1396-1396v. 8
29. Washington has elected to participate in the Medicaid program and so must 9
comply with the requirements of the federal Medicaid Act and its implementing 10
regulations, the requirements of Medicaid waiver agreements to which it is a party, and 11
relevant federal and state law. 12
30. Through the Medicaid program, the Secretary of the United States 13
Department of Health and Human Services ("HHS") reimburses each participating state for 14
somewhere between 50% and 60% of its costs for eligible healthcare and related services. 15
Washington State receives such matching funds for medical assistance services provided 16
through its State Medicaid program and Medicaid waiver agreements.
17 c. Sec. 1115 Waivers and the "Bridge Waiver"
18 31. Section 1115 of the Social Security Act affords the Secretary of HHS broad
19 powers to authorize States to implement demonstration projects likely to assist in
20 promoting the objectives of the Medicaid statute. 42 U.S.C. § 1315. 21
32. Such projects have included providing health care coverage to individuals
22
not otherwise eligible for Medicaid services under the standard Medicaid eligibility 23
criteria. 24

25

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1 33. States are entitled to receive federal funding at the federal Medicaid
2
matching rate for allowable services they provide and allowable expenses they incur on 3
such projects. 42 U.S.C. § 1315(a). 4
34. In order to receive authority from the Secretary of HHS to operate such 5
project, a state must submit an application to one of the HHS divisions, the Centers for 6
Medicare and Medicaid Services ("CMS"), and then enter into a written agreement with 7
CMS laying out its terms and conditions. 8
35. Section 1115 gives the Secretary of HHS the authority to waive certain 9
requirements of federal Medicaid law from applying to states' provision of services under 10
these agreements. 42 U.S. C.§ 1315(b). 11
36. Prior to January of2011, Basic Health's costs were financed solely with 12
state funds, along with the premiums paid by subscribers. Prior to March 2011, the State 13
of Washington received no federal funding to operate the Basic Health program. 14
37. On January 3, 2011, the Department received CMS' approval to operate a 15
§ 1115 waiver project, referred to therein as the "Transitional Bridge" project. It was 16
anticipated that CMS' approval of the waiver program would enable the state to expand its 17
receipt of Medicaid federal matching payments to include funding for Basic Health 18
services for individuals who would be eligible to enroll in Medicaid in any event, in 2014, 19
under the Affordable Care Act. Bridge Waiver Special Terms and Conditions (hereinafter 20
"Bridge Waiver STC") Sec. II at 3. 21
38. Specifically, under the Bridge Waiver, the State is entitled to receive federal
22
funding for qualified expenditures to provide coverage to "non-pregnant individuals ages 23
19 through 64 who have countable incomes up to and including 133 percent of the Federal 24
poverty level (FPL) who have not been determined to be eligible for Medicaid or the 25
Children's Health Insurance Program (CHIP), and who are currently enrolled, or become 26

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I newly emolled, in the following [pre-existing] State programs: a. Basic Health;
2
b. Disability Lifeline; or c. Alcohol and Drug Addiction Treatment and Support." Such 3
individuals are referred to in the Bridge Waiver as "Transition Eligibles." 4
39. Disability Lifeline ("DL") and Alcohol and Drug Addiction Treatment and 5
Support ("ADATSA"), like Basic Health, are two state-administered public benefits 6
programs furnishing health care services to Washington residents. Like Basic Health, 7
these programs existed for some time before the State applied for and received
8
authorization to obtain federal funds under the Bridge Waiver. Like Basic Health, these 9
programs were funded exclusively with state funds, prior to the Bridge Waiver. 10
40. One purpose of the Bridge Waiver was to help the State continue coverage 11
for participants in Basic Health, Disability Lifeline (DL), and ADATSA who would not be 12
eligible for federal matching funds, by offsetting the total cost ofthe program with federal 13
matching funds for eligible participants. Bridge Waiver STC, Sec. II at 3.
14
41. The Bridge Waiver states that participants in Basic Health who meet the 15
following requirements shall fall within the "Transition Eligibles" population: 16
"individuals ages 19 through 64 who are emolled in the Basic Health program, and have 17
countable household income at or below 133 percent of the Federal poverty level (FPL); 18
and are U.S. citizens/qualified non-citizens and residents of Washington; and who either 19
do not meet the standards for Medicaid or CHIP eligibility, or who have not been
20
determined to be Medicaid eligible in the initial Basic Health certification or annual Basic 21
Health recertification (within established timeframes). This population does not include
22
pregnant women (including through the 60th day postpartum). There is no resource limit." 23
Bridge Waiver STC, Sec. IV(7)(a)(i) at 7.
24

25

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1
VI. FACTUAL BACKGROUND 2
42. On or about February 8, 2011, HCA sent to each household containing 3
members who were Basic Health enrollees a letter requesting that they either submit to 4
HCA the social security numbers for themselves and any household members who were
5
also Basic Health beneficiaries or inform HCA which household members receiving Basic 6
Health benefits did not have social security numbers. 7
43. This letter explained RCA's request for Basic Health recipients' social
8
security numbers as follows: "Due to an agreement recently signed by the state and 9
federal governments, BH is not eligible to receive federal matching dollars to share in the 10
cost of providing coverage for US citizens and qualified non-citizens. Your valid SSN will 11
help us claim these funds so the state can continue providing health care coverage for as 12
many people as possible. If you do not have a valid SSN or are not a US citizen or 13
qualified non-citizen, you will continue to be eligible for BH, unless state funds for the 14
program are no longer available." 15
44. The letter concluded with the instruction to "Please confirm your SSN by 16
completing and returning the form below to Basic Health, PO Box 42683 Olympia, WA 17
98504-2683 or call us at 1-800-660-9840 no later than February 17, 2011." (emphasis in 18
the original). 19
45. This letter did not state that the enrollees' submission of social security 20
numbers would affect the enrollees' eligibility to continue to enroll in Basic Health. Aside 21
from the social security number information referred to in this letter, HCA never requested
22
immigration status information from Basic Health recipients before terminating their 23
benefits. 24
46. On February 18,2011, the Washington Legislature passed and Governor 25
Gregoire signed into law ESHB 1086, an "Early Action Budget," which made changes to 26

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I the existing biennial budget through the end of the fiscal year (June 30, 2011) to conform
2
the budget to changes in State revenues and expenses which had become apparent since the 3
current biennial budget was previously passed and amended. Governor Gregoire partially 4
vetoed some provisions of the bill, which are not relevant to this case. ESHB I 086 has 5
been assigned the citation Chapter 5, Laws of20!1. 6
47. Through this bill, Section 213 of the budget was amended to add a 7
subsection 8, which reads as follows: "As soon as practicable after February 28, 2011, 8
enrollment in the subsidized basic health plan shall be limited to only include persons who 9
qualify as subsidized enrollees as defined in RCW 70.47.020 and who (a) qualify for 10
services under 1115 Medicaid demonstration project number II-W-00254/1 0 [the Bridge 11
Waiver]; or (b) are foster parents licensed under chapter 74.15." ESHB 1086, Sec. 213(8). 12
Notwithstanding this budgetary clause, the Legislature did not approve changes to the 13
statutes laying out the criteria for a subsidized enrollee's participation in Basic Health until 14
April, 22, 2011, and the Governor did not sign the bill until April29, 2011. Compare 15
RCW 70.47.020(9) (2010) with RCW 70.47.020(9) (2011); see also HB 1544 (amending 16
inter alia RCW 70.47.020(9)), available at 17
http://apps.leg.wa.gov/documents/billdocs/20 1118
12/Pdf/Bills/Session%20Law%202011/1544.SL.pdf (last viewed on May 23, 2011); 19
Washington State Legislature website 20
http://apps.leg.wa.gov/billinfo/summary.aspx?bill=l544&year=2011 (last viewed on May 21
23, 2011).
22
48. On April 29, 2011 the Governor signed HB 1544 as passed by the 23 Legislature which, among other things, added the following element to RCW 24
70.47.020(9)'s defmition of a "subsidized enrollee" of the Basic Health program: 25

26
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1 "(viii) After February 28, 2011, who is in the basic health transition eligibles population
2 under 1115 medicaid demonstration project number 11-W-00254/10."
3 49. HCA has yet to promulgate emergency rules to change the regulations
4 laying out the eligibility requirements for being a subsidized emollee in Basic Health. See
5
WAC 182-24-010. Notably, the current forms of those regulations, and the applicable 6
statutes in effect prior to April 29, 20 II, do not include a test for citizenship or 7
immigration status as a condition for eligibility for or emollment in Basic Health, other 8
than the exclusion of individuals with student visas. 9
50. Responding to the passage and signing ofESHB 1086, and on the same day 10
it was passed, HCA sent letters dated February 18,2011, to approximately 16,900 11
emollees in Basic Health informing them that they would be disemolled from Basic Health 12
on March I, 2011 and the premiums they paid would be refunded. Slightly different 13
notices were mailed to emollees depending on whether HCA was disemolling them 14
because oftheir citizenship and immigration status or their family income, or age. HCA 15
translated these notices into Spanish. Upon information and belief, HCA mailed the 16
Spanish-language versions to some emollees. The remainder ofthese disemollment 17
notices sent out by HCA were written in English. 18
51. Upon information and belief, the vast majority of those receiving the notice 19
were Basic Health emollees for whom HCA did not have enough information to determine 20
immigration status. 21
52. Ms. Unthaksinkun is indigent. At the time this dispute arose, she and her 22
husband, a member of her household, had been emolled in Basic Health since 2006. As of 23
February of this year, she was paying a premium of $60/month for this coverage for 24
herself, and her husband paid the same amount in Basic Health premiums, amounting to a 25
total of $120/month. At that time the highest subsidized premium for a household of her 26

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I size and age range was approximately $400. Ms. Unthaksinkun paid $120 for her and her
2
husband's Basic Health premiums for the month of March 2011.
3
53. Ms. Unthaksinkun was diagnosed with breast cancer in June of2010 and 4
has been receiving medical treatment for that condition since then. This treatment included 5
two surgeries, a lumpectomy and mastectomy, in June and August of2010, respectively. 6
As a result of these surgeries, Ms. Unthaksinkun lost significant arm strength. Until March 7
of 20 II, her breast cancer treatment was covered through her Basic Health coverage. 8
Ms. Unthaksinkun relied upon her Basic Health coverage to pay for this medically 9
necessary treatment, without which she is at risk of serious injury or death. On May 13, 10 2011, HCA notified her lawyer that she would be placed on Basic Health effective March I 11
pending the outcome of her administrative appeal. In the event she loses the appeal, any 12
costs incurred for services would be her financial responsibility. 13
54. Ms. Unthaksinkun's doctor instructed her to schedule a medical 14
appointment in March of this year to have a qualified health care professional assess how 15
her surgeries were healing and determine what additional treatment she required. She felt 16
compelled to cancel this appointment, due to her disenrollment from Basic Health and her 17
family's limited resources. Ms. Unthaksinkun's doctor has also told her that it is medically 18 necessary for her to get a medical test in June of2011 as part of her ongoing breast cancer 19
treatment. She does not know how she is going to be able to pay for this test if her Basic 20
Health benefits are not reinstated prior to that time. 21
55. Ms. Atif is indigent. At the time this dispute arose, she and her son, a
22
member of her household, had been enrolled in Basic Health since 2006. As of February 23
ofthis year, she was paying a premium of $53 per month for this coverage for herself and 24
her son. Ms. Atifpaid $53 for her and her son's Basic Health premiums for the month of 25
March 2011. 26

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1 56. Ms. Atif has been diagnosed with hypothyroidism that requires medication
2
to treat it, as well as ongoing clinical monitoring, including lab tests every six months to 3
determine whether her medication levels should be changed. She also has had knee pain 4
since 2009 and requires further evaluation and treatment. Until March of2011, Ms. Atifs 5
care was covered through her Basic Health coverage. Ms. Atif relied upon her Basic 6
Health coverage to pay for this medically necessary treatment, without which she is at risk 7
of serious exacerbations of her conditions, loss of function, and disability. 8
57. Ms. Atif also recently developed a painful and itchy inflammation in several 9
areas of her body. A doctor prescribed antibiotic medications to treat this condition in 10
March of 2011. Despite having taken these antibiotics as directed, Ms. Atif continues to 11
experience pain and swelling in the inflamed areas. Ms. Atifhas delayed returning to the 12
doctor for further diagnosis and treatment ofthis condition because she does not know how 13
she will pay for the required medical expenses without Basic Health coverage. On May 13, 14
2011, HCA notified her lawyer that she would be placed on Basic Health effective March 1 15
pending the outcome of her administrative appeal. In the event she loses the appeal, any 16
costs incurred for services would be her financial responsibility. 17
58. Ms. Ahmadi and her husband have limited income. At the time this dispute 18
arose, she had been emolled in Basic Health since approximately late 2009. As of 19
February of this year, she and her husband both receiving Basic Health benefits. 20
59. Ms. Ahmadi has used her Basic Health benefits to pay for medically 21
necessary treatment and screenings in the past year, including treatment for illnesses,
22
marmnograms and gynecological screenings. Ms. Ahmadi relied upon her Basic Health 23
coverage to pay for this medically necessary treatment and screenings, without which she 24
is experiencing irreparable harm. On May 13, 2011, HCA notified her lawyer that she
25
would be placed on Basic Health effective March 1 pending the outcome of her 26

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1 administrative appeal. In the event she loses the appeal, any costs incurred for services
2
would be her financial responsibility. 3
60. Ms. Ponomareva is indigent. At the time this dispute arose, she and her 4
husband, a member of her household, had been enrolled in Basic Health since 2006. 5
Ms. Ponomareva has been diagnosed with hypothyroidism that requires medication to treat 6
it, as well as ongoing clinical monitoring, including lab tests every six months to determine 7
whether her medication levels should be changed. 8
61. Ms. Ponomareva has also been diagnosed with endometriosis. Her doctor 9
has informed her that she may require surgery or other medical treatment for this 10
condition. 11
62. Until March of20.11, Ms. Ponomareva's care, including the medication for 12
her thyroid condition, was paid for with her Basic Health coverage. Because she was 13
disenrolled from Basic Health, Ms. Ponomareva cancelled her March doctor's appointment 14
to address her thyroid condition, undergo her annual medical examination, and request a 15
referral to a specialist regarding her endometriosis. She currently has less than a 30 day 16
supply of her thyroid medication. An inability to take her thyroid medication may not only 17
negatively impact Ms. Ponomareva's thyroid condtion, but also cause her to suffer from
18
considerable and detrimental mood shifts. Ms. Ponomareva is unable to afford health 19
insurance other than the Basic Health coverage she received. 20
63. Ms. Ponomareva relied upon her Basic Health coverage to pay for her 21
medical care, including the medically necessary treatment for her thyroid condition,
22
without which she is experiencing and will continue to experience irreparable harm. 23
64. S.J. is indigent, receiving a monthly income of $3 85. At the time this 24
dispute arose, she had been enrolled in Basic Health. As of February of this year, she was 25
paying a premium of $17 per month for this coverage for herself and her son. 26

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1 65. S.J. paid $34 for her Basic Health premiums for the months of March and
2
April2011. After terminating her Basic Health benefits, HCA subsequently refunded
3
those premiums to S.J. on its own initiative. 4
66. S.J. has been diagnosed as having a breast cyst. She is required to obtain a 5
mammogram on an armual basis to monitor this cyst. Because her Basic Health benefits 6
were terminated, she is not making additional appointments for this procedure, as she 7
cannot afford its costs.
8
67. S.J. is currently attending nursing school and hopes to find employment 9
upon graduation in August 2011. The nursing school which S.J. attends requires her to 10
have health insurance to work in health clinic sites, which is a required part of her training. 11
68. S.J. applied for health insurance from the Washington Health Program but 12
carmot afford the monthly $161 premium, and she is not aware of any other health 13
insurance for which she is eligible and which she can afford. 14
69. S.J. relied upon her Basic Health coverage to pay for her medical care. 15
Without this coverage, she is at risk of being prevented from completing her nursing 16
training and licensure. As a result, S.J. is experiencing and will continue to experience 17
irreparable harm because ofHCA's termination of her Basic Health benefits. 18
70. On February 18,2011, HCA sent notices to Ms. Ahmadi's, Ms. Atifs, Ms. 19
Ponomareva's, S.J.'s and Ms. Unthaksinkun's households, as well as approximately 20
16,000 Basic Health emollees who were receiving Basic Health as authorized by RCW 21
74.07 and WAC 182-24. These notices stated that "Basic Health is unable to verifY the
22
member(s) legally resides in the United States....Basic Health requires individuals between 23
ages 19-64 to legally reside in the United States to receive Basic Health coverage." 24
Plaintiffs notice listed her name alone as the household member to whom the termination
25
notice referred. The last sentence quoted above was followed by a footnote stating: 26

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1 "Chapter 568, Laws of2009." The act of the Washington State Legislature identified by
2
this citation does not condition Basic Health coverage on the subscriber being between 3
ages 19-64 or legally residing in the United States, nor does it condition coverage on a 4
subscriber's eligibility for federal matching funds under the Bridge Waiver or any similar 5
Medicaid waiver program. 6
71. This fmm notice failed to inform Plaintiffs Ahmadi, Atif, Ponomareva, S.J., 7
and Unthaksinkun, as well as class members, why HCA found them ineligible. The 8
notice's statement that "Basic Health requires individuals between ages 19-64 to legally 9
reside in the United States to receive Basic Health coverage" is an incorrect statement of 10
the legal requirements for Basic Health enrollment, even under the terms of ESHB 1086 11
and the Bridge Waiver. An individual may lawfully reside in the United States and 12
possess one of a number of different immigration statuses, which nonetheless apparently 13
renders her ineligible to receive Basic Health. For example, HCA has upheld the 14
disenrollment of immigrants whom it understands are lawful permanent residents of the 15
United States. See also 8 U.S.C. § 164l(a) defining "qualified alien"; 8 U.S.C. §§ 161116
1613 defining which qualified aliens are eligible and ineligible for federal public benefits, 17
such as Medicaid. 18
72. Ms. Ahmadi, Ms. Atif, Ms. Ponomareva, S.J., and Ms. Unthaksinkun 19
legally reside in the United States. All are lawful permanent residents of this country. 20
Ms. Ahmadi has resided in the United States since September of 2009 and been a lawful 21
permanent resident since April of2010. Ms. Atifhas lived here with this status since
22
September 20, 2006. Ms. Unthaksinkun has lived here with that status from 1992-1996, 23
and re-entered the country on or before May 31, 2006. Ms. Unthaksinkun's husband is a 24
citizen, making her eligible to become a naturalized citizen, but they have not had the 25
funds to do so. She has continued to be a lawful permanent resident of this country. 26

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1 73. Ms. Ahmadi's, Ms. Atifs, S.J.'s and Ms. Unthaksinkun's immigration

2
statuses apparently render the state ineligible for federal matching funds for them under the

3 Bridge Waiver. Ms. Unthaksinkun's immigration status apparently renders the state

4 eligible for federal matching funds for her as of May 31, 2011.

5 74. HCA apparently concluded that Ms. Ponomareva's immigration status

6 rendered the state ineligible for federal matching funds for her under the Bridge Waiver.

7 75. Additionally, the disenrollment notice HCA sent Ms. Ahmadi, Ms. Atif,

8 Ms. Ponomareva, S.J., Ms. Unthaksinkun and class members failed to provide any

9 individualized explanation for HCA's determination that they did not legally reside in the

10 United States. The notice did not disclose the information relied upon by HCA in

11 concluding that it was unable to verify that they did not legally reside in the United States.

12 It did not disclose what immigration statuses would render one eligible to continue

13 enrollment in Basic Health, nor did it reference any legal authority enumerating or

14 describing those statuses.

15 76. The notices sent to Plaintiffs Ahmadi, Atif, Ponomareva, S.J., and

16 Unthaksinkun along with all class members, stated the following regarding enrollees'

17 rights to appeal this disenrollment: "If you believe the action taken on your account is

18 wrong, we must receive your appeal with 30 days of the date of this letter. Send a written

19 appeal to PO Box 42690, Olympia, WA 98504 with your name, Basic Health ID number,

20 mailing address, and daytime phone number. In your appeal, you must explain the

21

f

decision you disagree with, why you disagree, what you want to change, and include any

22
documents you have to support your request."

23 77. The notices did not inform Plaintiffs and other class members being

24 disenrolled oftheir right to request and receive continued Basic Health benefits pending an

25 appeal of their disenrollment. WAC 182-22-320(8).

26

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No. 2: 11-cv-00588) - 23
4845·2780-7241.02

Riddell Williams P.S.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

Case 2:11-cv-00588-JLR Document 30 Filed 05/23/11 Page 24 of 31

1 78. Ms. Ahmadi initiated a timely administrative appeal of her disemollment
2
from Basic Health by HCA. She submitted proof of her immigration status in support of 3
her administrative appeal.
4
79. Ms. Atif initiated a timely administrative appeal of her disemollment from 5
Basic Health by HCA. She submitted copies of her "green card" (indicating Lawful 6
Permanent Resident status) and her social security number in support of her administrative 7
appeal.
8
80. Ms. Unthaksinkun initiated a timely administrative appeal of her 9
disemollment from Basic Health by HCA. She submitted copies of her "green card" and 10
other documents in support of her administrative appeal. 11
81. Ms. Ponomareva initiated a timely administrative appeal of her
12 disemollment from Basic Health by HCA. She submitted copies of her "green card" and
13 other documents in support of her administrative appeal.
14 82. S.J. initiated a timely administrative appeal of her disemollment from Basic
15 Health by HCA. She submitted copies of her "green card" and other documents in support
16 of her administrative appeal.
17 83. As of April4, 2011, HCA had received requests from 7,263 households to
18 appeal the disemollments of approximately 9,586 household members who had been Basic
19 Health subscribers and who had been disemol!ed in response to the passage of ESHB 1086
20 (each such request appealed the disemollment of one or more Basic Health members who
21 had been disemolled within that household). As of that date, HCA had ruled on
22
approximately 76% of those appeals. The report containing this information did not 23
estimate the fraction of these appeals that had resulted in the reinstatement of disemolled 24
persons' Basic Health benefits. However, as of March 21,2011, HCA estimated that it had 25
granted the reinstatement requests in approximately 64% ofthe appeals, having determined 26

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No. 2:JI-cv-00588)- 24
4845-2780-7241.02

Riddell Williams P.S.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192
206.624.3600

Case 2:11-cv-00588-JLR Document 30 Filed 05/23/11 Page 25 of 31

1 that these appellants or a household member had been erroneously disenrolled from Basic

2
Health on March 1.

3

84. HCA sent written adverse appeal form decisions to those whose

4 disenrollment appeals it rejected, informing them of this fact. Concerning enrollees whose

5 immigration status-based disenrollments had been upheld by HCA, the decisions provided

6 an inadequate explanation ofthe reasons for concluding that appellants did not have an

7 immigration status that qualified for Basic Health eligibility.

8
85. For example, the decisions sent to Ms. Ahmadi, Ms. Atif, Ms. Ponomareva,

9 S.J., and Ms. Unthaksinkun gave the following reason to explain why HCA rejected their

10 administrative appeals: "The information you provided shows the individual(s) listed

11 above entered the U.S. after August 22, 1996, and has not met the five year wait period

12 required under federal law."

13 86. Like this notice, the notices sent to individuals who had been disenrolled

14 due to immigration status did not disclose what information (other than "[t]he information

15 you provided") HCA relied upon to determine that the disenrollee continued to be

16 ineligible for Basic Health benefits, or what immigration statuses would render an enrollee

17 eligible to be reenrolled in Basic Health. Nor did the notices reference any legal authority

18 enumerating or describing those statuses. The only legal authority referenced by these

19 notices was the citation to Chapter 568, Laws of2009.

20 87. By terminating Plaintiffs' and other class members' state-funded Basic

21 Health benefits, while continuing to provide Basic Health benefits paid for with state funds

22
to Basic Health enrollees who meet the citizenship and alien status requirements adopted in

23 ESHB 1086, the state is discriminating against them because of their status as aliens for the

24
sole purpose of saving money. The termination notice that HCA sent to Plaintiffs and

25 class members informing them ofHCA's imminent termination oftheir Basic Health

26

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No. 2:11-cv-00588)- 25
4845·2780-7241.02

Riddell Williams P.s.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154~1192
206.624.3600

Case 2:11-cv-00588-JLR Document 30 Filed 05/23/11 Page 26 of 31

I benefits did not provide the adequate, meaningful and timely notice required by the Due

2
Process Clause ofthe Fourteenth Amendment ofthe United States Constitution as a

3 prerequisite to terminating Plaintiffs' and class members' public medical benefits.

4 88. Ms. Ahmadi, Ms. Atif, Ms. Unthaksinkun, Ms. Ponomareva, S.J., and

5 members of the proposed class are suffering or will suffer irreparable harm due to the

6 termination of their Basic Health benefits. As a result ofHCA's actions, Plaintiff and class

7 members are not able to purchase health insurance or pay for medically necessary health

8 care. Plaintiff and the class members she seeks to represent have no plain, speedy, or

9 adequate remedy at law except by this complaint for injunctive relief

10 VII. CLAIMS FOR RELIEF

11 A. Claim I- Equal Protection Clause

12 89. Plaintiffs re-allege and incorporates herein by reference each and every

13 allegation and paragraph set forth previously.

14 90. HCA has terminated Plaintiffs' and class members' Basic Health benefits

15 authorized by RCW 74.07 and WAC 182-24 solely to save money. At the same time, HCA

16 is continuing to spend state funds to provide Basic Health benefits to similarly situated

17 U.S. citizens and aliens who meet the alien status requirements adopted in ESHB 1086.

18

91. In doing so, HCA is discriminating against Plaintiffs and the classes they

19 seek to represent on the basis of their alien or immigration status even though they are

20 legal immigrants, lawfully present in the United States.

21 92. The state's actions in discriminating against Plaintiffs and class members

22
because of their alienage are subject to strict scrutiny under the Equal Protection Clause of

23 the Fourteenth Amendment to the United States Constitution.

24

25

26
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No. 2:11-cv-00588)- 26
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Riddell Williams P.s.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192
206.624.3600

Case 2:11-cv-00588-JLR Document 30 Filed 05/23/11 Page 27 of 31

1 93. Saving money is not an adequate justification to discriminate against
2
Plaintiffs and class members in violation of the Equal Protection Clause of the 14th 3
Amendment of the United States Constitution. 4
94. HCA's decision to terminate the Plaintiffs' and other class members' Basic 5
Health benefits, while continuing to provide Basic Health benefits to similarly situated 6
Basic Health enrollees who meet the citizenship and alien status requirements adopted in 7
ESHB 1086, discriminates against the Plaintiffs and class members in violation of the 8
Equal Protection Clause of the 14th Amendment of the United States Constitution. 9
95. HCA's actions deprive Plaintiffs and class members of rights, privileges, or 10
immunities secured to them by the Constitution in violation of 42 U.S.C. § 1983. 11
96. Irreparable harm has occurred as a result ofHCA's actions. The balance of 12
harms favors entering temporary, preliminary, and permanent injunctive relief because the 13
harm suffered by Plaintiffs and other class members outweighs any monetary loss to HCA. 14
97. It is in the public interest that the Court grant temporary, preliminary, and 15
permanent injunctive relief to ensure that Plaintiffs and other similarly situated individuals 16
resume enrollment in the Basic Health program pending the outcome of this litigation. 17
B. Claim 2- Due Process Clause- Notice 18
98. Plaintiffs re-allege and incorporates herein by reference each and every 19
allegation and paragraph set forth previously. 20
99. The notices that HCA sent Plaintiffs and class members terminating their 21
Basic Health benefits effective March 1, 2011 in response to ESHB 1086 did not comply
22
with the Due Process Clause of the Fourteenth Amendment to the United States 23
Constitution. 24
100. HCA's actions deprive Plaintiffs and the class of rights, privileges, or 25
immunities secured to them by the Constitution in violation of 42 U.S. C.§ 1983. 26

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No. 2:1 1-cv-00588)- 27
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Riddell Williams P.s.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192
206.624.3600

Case 2:11-cv-00588-JLR Document 30 Filed 05/23/11 Page 28 of 31

1 101. Irreparable harm has occurred as a result ofHCA's actions. The balance of
2
harms favors entering temporary, preliminary, and permanent injunctive relief because the 3
harm suffered by Plaintiffs and other class members outweighs any monetary loss to HCA. 4
102. It is in the public interest that the Court grant temporary, preliminary, and 5
permanent injunctive relief to ensure that Plaintiffs and other similarly situated individuals 6
resume enrollment in the Basic Health program pending either: (a) the outcome of this 7
litigation; or (b) the HCA's delivery of timely, adequate and meaningful pre-termination 8
notice that satisfies the Due Process Clause of the Fourteenth Amendment of the United 9
States Constitution to any class member whose Basic Health benefits the HCA again seeks 10
to terminate. 11
VIII. PRAYER FOR RELIEF 12
WHEREFORE, Plaintiff prays for the following relief: 13
(a) That the Court determine that this action be maintained as a class action 14
under Fed. R. Civ. P. 23(a), and (b)(2), defining the classes as proposed above, approving 15
Plaintiffs as adequate class representatives, and designating Riddell Williams P.S. and 16
Northwest Health Law Advocates as class counsel; 17
(b) For a declaration that the State of Washington's and HCA's actions in 18
terminating Plaintiffs' and class members' Basic Health benefits because of the lack of 19
program funding violates the Equal Protection Clause of the Fourteenth Amendment to the 20
United States Constitution in violation of 42 U.S.C. § 1983. 21
(c) For a declaration that the termination notice that HCA sent to Plaintiffs and
22
class members informing them of their disenrollment from Basic Health did not provide 23
the adequate notice and a pretermination appeal hearing required by the Due Process 24
Clause ofthe Fourteenth Amendment of the United States Constitution, rendering that 25

26
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No.2: 11-cv-00588)- 28
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1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192 206.624.3600

Case 2:11-cv-00588-JLR Document 30 Filed 05/23/11 Page 29 of 31

1 termination of their Basic Health benefits a deprivation ofproperty without due process of
2 law in violation of 42 U.S.C. § 1983.
3 (d) For entry of temporary, preliminary and permanent injunctive relief
4 enjoining HCA's termination of Plaintiffs' and class members' Basic Health benefits, to
5 order HCA to reinstate Plaintiffs' and class members' enrollment as subsidized enrollees in
6 the Basic Health program, and to order HCA to restore coverage for eligible medical care
7 received by Plaintiffs and class members since their disenrollment.
8 (e) For entry of temporary, preliminary and permanent injunctive relief
9 ordering HCA to reinstate Plaintiffs' and class members' Basic Health benefits, and
10 enjoining HCA from terminating any class members' benefits in the future without first
11
providing adequate and meaningful pre-termination notice, including but not limited to: 12
(1) A clear explanation of the specific reasons that HCA believes that 13
the class member is no longer eligible for Basic Health benefits, and a description of the 14
information relied upon by HCA in making such a determination; 15
(2) An accurate citation to the legal authority upon which HCA is 16
relying that describes the specific eligibility criteria which HCA believes the class member 17
does not satisfy; and that explains the criteria for continued receipt of Basic Health 18
benefits; and 19
(3) A clear statement that the class member is entitled to continued
20
benefits pending an appeal of her benefits termination, including information regarding 21
how continued benefits may be obtained, and any potential liability which the appellant
22
may incur to repay any part of the cost of those continued benefits in the event the appeal 23
of her benefits termination is unsuccessful. 24
(f) Waive the requirement for the posting of a bond as security for the entry of 25
temporary, preliminary, or permanent injunctive relief;
26

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No. 2:1 1-cv-00588)- 29
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Riddell Williams P.s.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192
206.624.3600

Case 2:11-cv-00588-JLR Document 30 Filed 05/23/11 Page 30 of 31

1 (g) Award the Plaintiffs their costs of this action and reasonable attorney's fees
2
pursuant to 42 U.S.C. § 1988; and 3
(h) For such other relief as the Court may deem just and proper. 4
DATED this 23rd day of May, 2011. 5
RIDDELL WILLIAMS P.S. 6

7 By Is/ Blake Marks-Dias

8

Blake Marks-Dias

Michael Pierson

9

RIDDELL WILLIAMS P.S.

1001 Fourth Avenue, Suite 4500

10

Seattle, WA 98154-1192

Tel: (206) 624-3600

11

bmarksdias@riddellwilliams.com

mpierson@riddellwilliams.com

12

Daniel S Gross

13

Janet Varon

Northwest Health Law Advocates

14

4759 15th Avenue NE, Suite 305

Seattle, WA 98105

15

Tel: (206) 325-6464

janet@nohla.org

16

daniel@nohla.org

17

Attorneys for Plaintiff

18

19

20

21

22

23

24

25

26
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (No.2: 11-cv-00588)- 30
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Riddell Williams P.s.
1001 FOURTH AVENUE SUITE 4500
SEATTLE, WA 98154-1192
206.624.3600

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 RATTIYA UNTHAKSINKUN, et al.,

CASE NO. C11-0588JLR

11

Plaintiffs,

12

v.

13 DOUGLAS PORTER,

ORDER ON MOTION FOR CLASS CERTIFICATION AND MOTION FOR PRELIMINARY INJUNCTION

14

Defendant.

15

This matter comes before the court on Plaintiffs Rattiya Unthaksinkun, Susan

16 Ahmadi, Khaddouj Atif, S.J.,1 and Anna Sergeyevna Ponomareva’s Second Amended

17 Motion for Class Certification (Dkt. # 31) and Second Amended Motion for a

18 Preliminary Injunction (Dkt. # 32). Plaintiffs bring their Second Amended Complaint

19 pursuant to 42 U.S.C. § 1983 and allege Fourteenth Amendment due process and equal

20 protection claims against Defendant Douglas Porter (“Defendant”), in his official

21

22

1 Ms. S.J. seeks to participate in this case using only her initials because she is in the Washington Address Confidentiality Program. (S.J. Decl. (Dkt. # 34) ¶ 2.)

ORDER- 1

1 capacity as the Administrator of the Washington State Health Care Authority (“HCA”).

2 (See generally 2d Am. Compl. (Dkt. # 30).) Plaintiffs’ due process claim arises from the

3 method in which the HCA notified Plaintiffs that their Washington State Basic Health

4 (“Basic Health”) subsidized health insurance benefits would be terminated. Plaintiffs’

5 equal protection claim stems from the HCA’s decision to disenroll them from Basic

6 Health because of their immigration status.

7

Plaintiffs move the court to certify the following two classes:

8

(1) All Washington state residents who were sent notices b y HCA

informing them that t heir Basic Healt h benefits would be ter minated

9

effective March 1, 2011 because of their imm igration status and have

not subsequently had their Basic Hea lth benefits unconditionally

10

reinstated (the “Due Process class”).

11

(2) All Washington residents who are immigrants lawfully present in the

United States (a) wh ose Basic H ealth benefits terminated effective

12

March 1, 2011 beca use of their imm igration status and have not

subsequently had their benefits reinstated, or ( b) in the f uture would be

13

eligible for Basic Health benefits, but for their citizen ship or

immigration status (the “Equal Protection class”).

14

(2d Am. Mot. for Class Cert. (Dkt. # 31) (“Cert. Mot.”) at 2.) Plaintiffs also ask the court

15

to enter a preliminary injunction requiring the HCA to reinstate all class members’

16

benefits while this matter is litigated, to continue enrollment for all Equal Protection class

17

members who are otherwise eligible, to restore coverage for eligible medical care

18

received since March 1, 2011, and to prevent the HCA from terminating Due Process

19

class members’ benefits again without constitutionally adequate notice. (2d Am. Mot. for

20

Prelim. Inj. (Dkt. # 32) (“Inj. Mot.”) at 2.) Having considered the briefing of the parties,

21

the record, and the relevant law, and having heard oral argument, the court GRANTS IN

22

ORDER- 2

1 PART and DENIES IN PART Plaintiffs’ Second Amended Motion for Class

2 Certification (Dkt. # 31), and GRANTS IN PART and DENIES IN PART Plaintiffs’

3 Second Amended Motion for a Preliminary Injunction (Dkt. # 32). The court ORDERS

4 preliminary injunctive relief as set forth in this Order.

5

I. BACKGROUND

6 A. History of Washington State Basic Health Program

7

Since 1987, the Washington State Basic Health program has subsidized private

8 health insurance premiums for eligible Washington residents.2 (Cody Decl. (Dkt. # 39) ¶

9 5.) The program is governed by the Health Care Access Act of 1987, Chapter 70.47

10 RCW (“the HCAA”), and is currently administered by the HCA. The purpose of the

11 HCAA is “to provide or make more readily available necessary basic health care services

12 in an appropriate setting to working persons and others who lack coverage, at a cost to

13 these persons that does not create barriers to the utilization of necessary health care

14 services.” RCW 70.47.010(3). The program was funded entirely by the State of

15 Washington (“the State”) until 2011, at which time the State began to receive some

16 federal funding for the program. (See Cody Decl. ¶ 13.)

17

The HCA administrator is tasked with subsidizing insurance premiums to the

18 maximum extent possible while not exceeding funding limits. See RCW 70.47.010(5)(c).

19

20

21

22

2 Basic Health also provides unsubsidized health insurance. This case, however, involves only the subsidized portion of the program.

ORDER- 3

1 When enrollment is closed, the administrator maintains a waiting list.3 RCW

2 70.47.060(6); see also Cody Decl. ¶¶ 6-8. In 2009, the State Legislature amended the

3 HCAA to allow the administrator to disenroll Basic Health members to prevent

4 overexpenditure. RCW 70.47.060(6); Cody Decl. ¶ 9. Before this time, the administrator

5 could only disenroll members for good cause. See WAC 182-24-070(2).

6

Regardless of the reason for disenrollment, the administrator must mail written

7 notice of disenrollment at least ten days before the effective date of disenrollment. WAC

8 182-24-070(4). This notice must state the reason for the disenrollment and the effective

9 date of disenrollment, describe the procedures for disenrollment, and inform the enrollee

10 of his or her right to appeal the disenrollment decision under WAC 182-22-320. WAC

11 182-24-070(4). A party that chooses to appeal disenrollment may request an in-person or

12 telephonic hearing, but if no request is made, the HCA will decide the appeal based on

13 the information and documentation submitted. WAC 182-22-320(4). Furthermore, a

14 member who appeals a disenrollment decision based on eligibility issues may remain

15 enrolled during the appeal process provided that the member submitted the appeal

16 according to the rules, remains otherwise eligible, continues to make all premium

17 payments when due, and has not demonstrated a danger or threat to any person affiliated

18 with the HCA. WAC 182-22-320(8).

19

20

21

22

3 As of March 2010, the waiting list included more than 100,000 individuals, and it has continued to grow. (Cody Decl. ¶ 10.)

ORDER- 4

1 B. Federal Funding for Basic Health

2

The Social Security Act allows the Secretary of the United States Department of

3 Health and Human Services (“the DHHS”) to fund state projects, known as

4 demonstration waivers, which are designed to promote the objectives of the Medicaid

5 statute. 42 U.S.C. § 1315. In June 2010, the Washington State Medicaid Purchasing

6 Administration applied for a demonstration waiver (“the Bridge Waiver”), which it hoped

7 would cover two-thirds of the cost of the State’s Basic Health program until 2014, when

8 national health care reform is fully implemented. (Cody Decl. ¶¶ 10-11.) In a July 7,

9 2010 letter from Defendant to the federal Centers for Medicare and Medicaid Services

10 (“CMS”), Defendant wrote: “As we have discussed, the future of [Basic Health] is in

11 jeopardy without the waiver. With the waiver, Washington State has increased fiscal

12 flexibility to extend a critical coverage bridge to some 90,000 individuals, with about 13 69,000 financed through the waiver.”4 (Varon Decl. (Dkt. # 9) Ex. D.) The Bridge

14 Waiver was approved on January 3, 2011, and as a result, the State could rely on federal 15 funding to help cover the costs of the program.5 (Cody Decl. ¶¶ 13, 21.)

16

17
4 Basic Health was at risk of being eliminated. Governor Gregoire’s proposed 2011-2013 18 biennium budget would have eliminated Basic Health as of July 1, 2011, and the Governor’s
December 2010 proposed supplemental operating budget would have eliminated Basic Health as 19 of March 1, 2011. (Cody Decl. ¶ 12.)

20

5 CMS’s Special Terms and Conditions for the Bridge Waiver noted that “Washington

will sustain coverage for approximately 30,000 individuals that will remain in the State-only

21

programs as they would not currently meet the [Bridge Waiver] eligibility criteria.” (Varon Decl. Ex. C. (Bridge Waiver STC) § II.) On January 27, 2011, the Secretary of Washington’s

22

Department of Social and Health Services sent a letter to CMS clarifying that although the State hoped to sustain Basic Health coverage for individuals who did not meet the Bridge Waiver

ORDER- 5

1

Under the terms of the Bridge Waiver, CMS provides federal matching funds for

2 current Basic Health members who are “Transition Eligible.” (Varon Decl. Ex. C.

3 (Bridge Waiver Special Terms & Conditions (“Bridge Waiver STC”)) § IV(16).) An

4 individual is Transition Eligible if he or she (1) resides in the State; (2) is between 19-64

5 years of age; (3) meets the federal income requirements; (4) is ineligible for Medicaid or

6 the Children’s Health Insurance Program; and (5) is a United States citizen or “qualified

7 non-citizen.” (Id. § IV(17)(a)(i).) There are two general requirements for an individual 8 to be a “qualified non-citizen” under the Bridge Waiver.6 First, the individual must be a

9 “qualified alien” as defined in section 1641 of the Professional Responsibility and Work

10 Opportunity Act of 1996 (the “PRWORA”), 8 U.S.C. § 1601, et seq.. 8 U.S.C. §§

11 1641(b)-(c). Qualified aliens include, among others, lawfully admitted permanent

12 residents, aliens who have been granted asylum, and refugees. Id. Second, the individual

13 must have been a qualified alien for at least five years (the “five-year bar”), or the

14 individual must qualify for one the exceptions to the five-year bar. 8 U.S.C. § 1613.

15 Among others, there is an exception for certain veterans and their spouses. 8 U.S.C. §

16 1613(b)(2).

17

18

19 eligibility criteria, the State did not consider this sustained coverage a requirement under the Bridge Waiver. (Hamilton Decl. (Dkt. # 40) Ex. 3 at 3-4.)

20

6 All Medicaid requirements not expressly waived or identified as not applicable in the

21

Bridge Waiver STC applied to the Bridge Waiver. (Hamilton Decl. Ex. 2 (Bridge Waiver STC) § III(2).) The Bridge Waiver did not expressly waive or identify as not applicable the benefit

22

eligibility requirements set forth in the Professional Responsibility and Work Opportunity Act of 1996, 8 U.S.C. § 1601, et seq.. Accordingly, these provisions apply to the Bridge Waiver.

ORDER- 6

1 C. Changes to Basic Health Eligibility Requirements

2

On February 4, 2011, the State Senate adopted a 2011 budget that would have

3 required the HCA to disenroll all adult Basic Health members who did not provide the

4 HCA with a valid Social Security number or other proof of legal residence in the United

5 States. (Longhorn Decl. (Dkt. # 41) ¶ 6.) The HCA’s staff believed that it was likely that

6 the State Legislature would adopt the Senate’s 2011 budget; therefore, on February 8,

7 2011, the HCA sent a letter requesting that all Basic Heath members for whom the

8 agency did not have a valid Social Security number submit their Social Security numbers 9 no later than February 17, 2011.7 (Id. ¶¶ 3-4.) The HCA also drafted, finalized, and

10 printed a disenrollment notice to send to these members after the State passed a final

11 budget (the “Disenrollment Notice”). (Id. ¶ 10.)

12

On February 18, 2011, the State Legislature passed the fiscal year 2011

13 supplemental budget (“ESHB 1086”), which reduced Basic Health funding by

14 approximately $9.8 million. ESHB 1086, 62d Leg., Reg. Sess. (Wash. 2011) (codified as

15 Chapter 5, Laws of 2011); Cody Decl. ¶ 14. Governor Gregoire signed ESHB 1086 into

16 law the same day. (Cody Decl. ¶ 14.) The bill restricted Basic Health eligibility more

17 severely than the State Senate’s budget. (Longhorn Decl. ¶ 6.) ESHB 1086 directed the

18 HCA administrator, “[a]s soon as practicable after February 28, 2011,” to limit

19

20

21

7 Basic Health had never before conditioned eligibility on proof of legal residence or

22

requested this information from its members. See WAC 182-24-020(1) (2010) (setting forth Basic Health eligibility requirements in 2010).

ORDER- 7

1 enrollment to those who qualify for subsidized Basic Health benefits and are either

2 Transition Eligible or licensed foster parents. ESHB 1086 § 213(8).

3

Prior to ESHB 1086, a State resident qualified for subsidized Basic Health

4 benefits if that individual: (1) was not eligible for free or purchased Medicare; (2) was

5 not receiving medical assistance from the Washington State Department of Social and

6 Health Services; (3) was not enrolled in the Washington Health Program (an

7 unsubsidized state-administered health insurance program); (4) was not confined or

8 residing in a government-operated institution, unless that person met eligibility

9 requirements adopted by the HCA administrator; (5) was not a full-time student in the

10 United States on a temporary student visa; (6) resided in an area of the state served by a

11 managed health care system participating in the plan; (7) chose to obtain coverage from a

12 particular managed health care system; (8) paid his or her portion of the costs for

13 participation in the plan; and (9) had a gross family income at the time of enrollment that 14 met the program’s requirements.8 WAC 182-24-020(1) (2010). After ESHB 1086, a

15 resident had to be Transition Eligible in addition to meeting these requirements. In

16 limiting Basic Health eligibility to those who were Transition Eligible, ESHB 1086

17 required the HCA administrator to disenroll Basic Health members who did not meet the

18

19

20

8 On April 29, 2011, Governor Gregoire signed into law House Bill 1544, which

amended the definition of a “subsidized enrollee” in the HCAA, RCW 70.47.020(9), to require

21

otherwise eligible members and applicants to also be Transition Eligible. HB 1544, 62d Leg., Reg. Sess. (Wash. 2011) (codified as Chapter 205, Laws of 2011). The HCA filed amended

22

regulations to reflect this change on July 8, 2011, which went into effect on August 8, 2011. See WAC 182-24-020(1) (2011).

ORDER- 8

1 Bridge Waiver’s more restrictive eligibility requirements for citizenship, age, and

2 income.

3 D. Disenrollment of Basic Health Enrollees

4

The same day ESHB 1086 went into effect, the HCA administrator determined

5 that he would have to disenroll non-Transition Eligible Basic Health members effective

6 March 1, 2011 to avoid overexpenditure. (Cody Decl. ¶ 15.) To comply with the ten-day

7 notice requirement set forth in WAC 182-24-070(2), the HCA had to mail disenrollment

8 letters immediately. (Cody Decl. ¶ 15.) On February 18, 2011, the same day ESHB 1086

9 went into effect, the HCA mailed disenrollment notices to approximately 17,000 Basic

10 Health members. (Longhorn Decl. ¶ 7; Vaughn Decl. (Dkt. # 42) ¶¶ 7-8.) The HCA

11 used three different disenrollment notices to address the three reasons for

12 disenrollment—age, income, and citizenship. The HCA sent the age-based disenrollment

13 notice to approximately 700 individuals over age 64 and the income-based notice to

14 approximately 875 persons whose income was too high. (Longhorn Decl. ¶ 10; Vaughn

15 Decl. ¶ 8.)

16

The HCA also sent the Disenrollment Notice to approximately 15,350 individuals

17 for whom it did not have a Social Security number or proof of citizenship or immigration

18 status. (Longhorn Decl. ¶ 10; Vaughn Decl. ¶ 7.) Although the HCA drafted the

19 Disenrollment Notice based on the State Senate’s 2011 budget, it did not revise the

20 Disenrollment Notice to reflect the differences in ESHB 1086. The Disenrollment Notice

21 stated in relevant part:

22

ORDER- 9

1

Dear Subscriber:

2

The member(s) listed below will lose Basic Health (BH) coverage effective

12:01 a.m. on March 1, 2011. BH is unable to verify the member(s) legally

3

resides in the United States.

4

<MEMBERS>

5

Basic Health requires individuals between ages 19-64 to leg ally reside in

the United States to receive BH coverage.[]

6

If you have already paid your premium, we will refund your payment.

7

If you believe the action taken on your account is wrong, we must receive

8

your appeal within 30 days of the date of this letter (See Appeal Rights).

Include with your appeal a valid Social Security number (SSN) and date of

9

birth or current i mmigration documentation proving the above listed

member(s) legally resides in the United States.

10

* * * * *

11

Appeal Rights

If you believe the action taken on your account is wrong, we must receive

12

your appeal within 30 days of the date of this letter. Send a written appeal

to PO Box 42690, Olympia, WA 98504 with your name, BH ID number,

13

mailing address, and daytime phone number. In your appeal, you must

explain the decision you disagree with, why you disagree, what you want to

14

change, and include any documents you have to support your request.

15

For more information, visit http://basichealth.hca.wa.gov or call 1-800-660-

9840.

16

(2d Varon Decl. Ex. C at 3-4.) Although the Disenrollment Notice explained some of the

17

recipients’ appeal rights, it did not cite the governing regulations or notify the individual

18

that he or she could request continued coverage pending the outcome of an appeal under

19

those regulations. See WAC 182-22-320. Indeed, the only citation in the Disenrollment

20

Notice was to Chapter 568, Laws of 2009. Section 3 of Chapter 568 authorized the HCA

21

22

ORDER- 10

1 administrator to disenroll persons from Basic Health; it did not explain the new eligibility

2 requirements or cite to the applicable sections of the PRWORA, 8 U.S.C. §§ 1641, 1613.

3

As of April 11, 2011, the HCA had received appeals from and had reinstated over

4 4,000 members. (Cody Decl. ¶ 17.) As of May 2, 2011, the HCA had denied 1,280

5 appeals from individuals who had received the Disenrollment Notice. (Vaughn Decl. ¶

6 7.) Of this group, 828 were denied reinstatement due to the five-year bar. (Id.)

7 E. The Plaintiffs

8

Each named Plaintiff is a lawful permanent resident who was disenrolled from

9 Basic Health effective March 1, 2011 because Basic Health lacked information

10 concerning her immigration status. (See generally 2d Am. Compl.) Each named Plaintiff

11 appealed her disenrollment by sending the HCA proof of lawful residence. (Id.) The

12 HCA denied each appeal because “[t]he information [the Plaintiff] provided shows [she]

13 entered the U.S. after August 22, 1996 and has not met the five year wait period required

14 under federal law.” (Id.) On May 13, 2011, the HCA reinstated Basic Health benefits for

15 Ms. Unthaksinkun, Ms. Ahmadi, and Ms. Atif pending the outcome of their 16 administrative appeals.9 (Inj. Mot. at 20 n.21.) On May 24, 2011, the HCA reenrolled

17 Ms. Ponomareva because she qualifies for the exception to the five-year bar for

18

19

20

21

22

9 The court has no information regarding the outcome, if any, of these appeals.

ORDER- 11

1 individuals who are spouses of veterans.10 (McKinzie Decl. (Dkt. # 43) ¶¶ 5-8.) Ms. S.J.

2 has not been reenrolled.

3

Each named Plaintiff relied on her Basic Health benefits and has been adversely

4 affected by disenrollment. (See generally 2d Am. Compl.) Ms. Unthaksinkun was

5 diagnosed with breast cancer in 2010 and had two surgeries that year. (Unthaksinkun

6 Decl. (Dkt. # 7) ¶ 6.) After being disenrolled from Basic Health, she cancelled a follow-

7 up doctor’s appointment because she could not afford it without health insurance. (Id.)

8 Ms. Ahmadi used her Basic Health for preventative care and the occasional illness or

9 injury. (Ahmadi Decl. (Dkt. # 21) ¶ 13.) Ms. S.J. has a cyst in her breast that requires an

10 annual mammogram, which she cannot afford without health insurance. (S.J. Decl. (Dkt.

11 # 34) ¶ 16.) Ms. Atif has a thyroid condition that requires medication and monitoring;

12 she also has knee pain and swelling. (Atif Decl. (Dkt. # 20) ¶ 13.) Without Basic Health,

13 she has been unable to afford her medication or her health care provider’s recommended

14 treatment. (Id. ¶ 14.) Ms. Ponomareva has a thyroid condition that requires medication

15 and monitoring by her physician, as well as another disorder for which she may need

16 surgery. (Ponomareva Decl. (Dkt. # 35) ¶ 16.) After she was disenrolled from Basic

17 Health, she had to cancel an appointment with her physician regarding her thyroid

18 condition, as well as an annual examination. (Id.) She has also been unable to see a

19 specialist regarding her possible surgery. (Id.)

20

21

22

10 Ms. Ponomareva was only reinstated after multiple appeals and with the help of an attorney. (McKinzie Decl. (Dkt. # 43) ¶¶ 4-6; Ortego Decl. (Dkt. # 33) ¶¶ 9-12.)

ORDER- 12

1 F. The Instant Lawsuit

2

On April 7, 2011, Plaintiffs filed the instant lawsuit. (Compl. (Dkt. #1).) In their

3 second amended complaint, filed on May 23, 2011, they allege that Defendant, in his

4 capacity as the HCA administrator, violated their due process and equal protection rights

5 under the Fourteenth Amendment of the United States Constitution. (See generally 2d

6 Am. Compl.) Plaintiffs challenge their disenrollment and the disenrollment of Due

7 Process class members because, allegedly, they were not given adequate, meaningful, and

8 timely notice of the termination of their benefits as required by due process (the “due

9 process claim”). (Id. ¶¶ 98-102.) Plaintiffs further claim that Defendant violated the

10 equal protection clause when he disenrolled them and other Equal Protection class

11 members while continuing to provide Basic Health benefits to similarly situated United

12 States citizens and qualified non-citizens (the “equal protection claim”). (Id. ¶¶ 89-97.)

13

Also on May 23, 2011, Plaintiffs filed their second amended motions for class

14 certification and a preliminary injunction (Dkt. ## 31, 32). Plaintiffs seek class

15 certification at this early stage in the litigation so that any preliminary injunctive relief

16 will benefit all class members. (Cert. Mot. at 2.) The court heard oral argument on

17 August 12, 2011, and this order follows.

18

II. ANALYSIS

19 A. Motion for Class Certification (Dkt. # 31)

20

Plaintiffs seek to certify two classes—the Due Process class and the Equal

21 Protection class—under Federal Rule of Civil Procedure 23(b)(2). Plaintiffs also request

22 that the court appoint them as class representatives and their counsel as class counsel.

ORDER- 13

1 Defendant disputes justiciability and contests most Rule 23(a) factors, as well as whether

2 Rule 23(b)(2)’s requirements have been met.

3

As discussed below, the court grants in part and denies in part Plaintiffs’ motion

4 (Dkt. # 31). The court certifies the Due Process class as defined by Plaintiffs, with some

5 minor revisions. See infra, § II(A)(6). The court certifies an equal protection class that

6 includes individuals who were disenrolled from Basic Health but does not include future

7 class members. Id. The court appoints Ms. Unthaksinkun, Ms. Ahmadi, Ms. Atif, and

8 Ms. S.J. as class representatives, but does not appoint Ms. Ponomareva. The court also

9 appoints Plaintiffs’ counsel as class counsel.

10

1. Standards for Evaluating Motions for Class Certification

11

Federal Rule of Civil Procedure 23 sets forth the prerequisites for maintaining a

12 class action. Before certifying a class, the court must be satisfied, after a “rigorous

13 analysis,” that the prerequisites of Rule 23(a) are met and that the class fits within one of

14 the three categories of Rule 23(b). Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S. Ct.

15 2541, 2551 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)).

16 This requirement is more than “a mere pleading standard.” Id. “A party seeking class

17 certification must affirmatively demonstrate his compliance with [Rule 23]—that is, he

18 must be prepared to prove that there are in fact sufficiently numerous parties, common

19 questions of law or fact, etc.” Id. Indeed, “sometimes it may be necessary for the court

20 to probe behind the pleadings before coming to rest on the certification question” because

21 “[t]he class determination generally involves considerations that are enmeshed in the

22 factual and legal issues comprising the plaintiff’s cause of action.” Id. (quoting Falcon,

ORDER- 14

1 457 U.S. at 160). Any inquiry into the merits, however, should be limited to determining

2 whether the requirements of Rule 23 are met and “may not go so far . . . as to judge the

3 validity of the[] claims.” United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied

4 Indus. & Serv. Workers Int’l Union v. ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir.

5 2010) (quoting Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003)); see also Aho v.

6 AmeriCredit Fin. Servs., Inc., --- F.R.D. ---, 2011 WL 3047677, * 3 (S.D. Cal. July 25,

7 2011). If a court is not fully satisfied that the requirements of Rules 23(a) and (b) have

8 been met, certification should be refused. Falcon, 457 U.S. at 161. Even if the Rule 23

9 criteria are met, the court is given discretion over whether to certify a class. Yokoyama v.

10 Midland Nat. Life Ins. Co., 594 F.3d 1087, 1090 (9th Cir. 2010).

11

2. Justiciability of Plaintiffs’ Due Process Claim

12

As a preliminary matter, the court must address Defendant’s argument that

13 Plaintiffs lack standing to bring the due process claim. (Resp. to Cert. Mot. at 13-14.) If

14 Plaintiffs do not have standing, they cannot represent the proposed Due Process class.

15 See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003). To

16 satisfy the minimum constitutional requirements for standing under the Case or

17 Controversy requirement of Article III:

18

First, the plaintif f must have suff ered an injur y in fact—an invasion of a

legally-protected interest which is (a) c oncrete and part icularized and (b)

19

actual or imminent, not conjectural or hypothetical. Second, there must be

a causal connection between the injury and the conduct complained of—the

20

injury has to be f airly traceable to the challenged action of the def endant,

and not the res ult of the independent action of some third party not before

21

the court. Third, it must be likel y, as oppos ed to merely speculative, that

the injury will be redressed by a favorable decision.

22

ORDER- 15

1 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Friends of the

2 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). “[E]ach

3 element [of standing] must be supported in the same way as any other matter on which

4 the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence

5 required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Thus, while

6 general factual allegations may suffice at the pleading stage, on summary judgment the

7 plaintiff must present specific facts supporting each element of the standing inquiry. Id.

8 At the class certification stage, the plaintiff’s burden is something more than a mere

9 pleading standard, which may require the court to probe beyond the pleadings. Dukes,

10 131 S. Ct. at 2551. Thus, the court applies the standard applicable to class certification

11 motions to the question of standing here, and as discussed below, concludes that

12 Plaintiffs have demonstrated each element of standing.

13

It is undisputed that Plaintiffs each received the Disenrollment Notice and were

14 terminated from Basic Health on March 1, 2011. (2d Am. Compl. ¶¶ 4-8; Unthaksinkun

15 Decl. ¶ 9; Ahmadi Decl. ¶ 8; Atif Decl. ¶ 8; Ponomareva Decl. ¶ 5; S.J. Decl. ¶10.)

16 Plaintiffs contend that their resulting injuries are two-fold: first, “that the [HCA] failed to

17 give Plaintiffs a meaningful, individualized explanation of the reason for and information

18 justifying termination of their benefits that could enable them to decide whether to appeal

19 the termination and prepare an adequate appeal”; and second, “that the notice failed to

20 provide notice of Plaintiffs’ right to request and receive continued benefits pending

21 appeal.” (Reply to Cert. Mot. at 3.) As discussed infra, section II(B)(2)(a), Plaintiffs

22 have established a likelihood that Defendant terminated their benefits without due

ORDER- 16

1 process. This is more than sufficient to satisfy the court that Plaintiffs have satisfied the

2 injury in fact element of Article III standing. Plaintiffs’ alleged injuries are fairly

3 traceable to Defendant, and are likely to be redressed by an order reinstating their

4 benefits pending constitutionally sufficient notice.

5

Defendant argues, however, that Plaintiffs appealed the Disenrollment Notice “and

6 thus cannot claim [it] was insufficient or misleading.” (Resp. to Cert. Mot. at 13.) The

7 fact that Plaintiffs appealed, however, does not establish that the Disenrollment Notice

8 complied with due process. See Elkins v. Dreyfus, No. C10-1366 MJP, 2011 WL

9 3438666, at *5 (W.D. Wash. Aug. 5, 2011) (finding that plaintiff who appealed the

10 termination of his welfare benefits had standing to challenge whether the termination

11 notice complied with due process); Rodriguez v. Chen, 985 F. Supp. 1189, 1192, 1194-96

12 (D. Ariz. 1996) (holding that termination notice was constitutionally insufficient in a case

13 where some plaintiffs had appealed and others had not). As discussed below, due process

14 requires notice that sufficiently details the reason for the action so that the affected party

15 may determine the accuracy of the action and meaningfully appeal. See infra §

16 II(B)(2)(a). Courts do not decide this question based on whether the affected party

17 appealed. See, e.g., Elkins, 2011 WL 3438666, at *5; Rodriguez, 985 F. Supp. at 1192,

18 1194-96.

19

3. Justiciability of Class Members’ Claims

20

Before proceeding to the merits, the court also addresses the justiciability of the

21 claims of the proposed class members. As discussed supra, section II(A)(2), Plaintiffs

22 must affirmatively demonstrate, as to the class members: (1) an injury in fact; (2)

ORDER- 17

1 causation; and (3) redressability. Lujan, 504 U.S. at 560-61; Friends of the Earth, 528

2 U.S. at 180-81. For the Due Process class, Plaintiffs contend that all class members were

3 injured when their benefits were terminated with constitutionally insufficient notice that

4 did not provide them with enough information to meaningful appeal or inform them that

5 they could request continuing benefits pending appeal. (Reply to Cert. Mot. at 3.)

6 Because Plaintiffs have established a likelihood that Defendant did not comply with due

7 process, see infra, § II(B)(2)(a), Plaintiffs have affirmatively demonstrated the “injury in

8 fact” element. As with Plaintiffs, the alleged injury of class members is fairly traceable

9 to Defendant’s conduct and redressable by the court.

10

The Equal Protection class involves two distinct groups: (1) lawful immigrants

11 whose Basic Health benefits were terminated March 1, 2011 because of their immigration

12 status and have not had their benefits reinstated; and (2) lawful immigrants who would be

13 eligible for Basic Health benefits in the future, but for their citizenship or immigration

14 status. (Cert. Mot. at 2.) The first group has standing, the second group does not.

15

As to the group that was disenrolled, they suffered a concrete, actual injury when

16 their Basic Health benefits were terminated. See, e.g., Indep. Living Ctr. of S. Cali. v.

17 Maxwell-Jolly, 572 F.3d 644, 658-59 (9th Cir. 2009), cert granted, 131 S. Ct. 992 (2011)

18 (finding that plaintiffs were injured by a reduction in their health care benefits). This

19 injury is fairly traceable to Defendant’s decision to disenroll them and redressable by the

20 court. All three elements of standing are satisfied.

21

Plaintiffs, however, have not sufficiently demonstrated an injury in fact as to

22 individuals who would be eligible for Basic Health in the future, but for their citizenship

ORDER- 18

1 or immigration status. This portion of the proposed equal protection class is not

2 restricted to individuals who will apply for and will be denied benefits; it includes those

3 who will never apply for Basic Health benefits, regardless of the citizenship eligibility 4 requirements. As such, they have not suffered an “actual or imminent” injury.11 See

5 Lujan, 504 U.S. at 560, 564 (holding that plaintiffs, who challenged the government’s

6 policy to protect endangered species within the United States but not abroad, had not

7 suffered an actual or imminent injury where they did not have concrete plans to travel

8 abroad to observe endangered wildlife). Because the Equal Protection class, as defined

9 by Plaintiffs, includes this discrete group of individuals who lack standing, the court

10 exercises its discretion to redefine the “Equal Protection class” to mean “all Washington

11 residents who are immigrants lawfully present in the United States whose Basic Health

12 benefits terminated effective March 1, 2011 because of their immigration status and have

13 not subsequently had their benefits reinstated.”

14

Defendant nevertheless contends that both classes include individuals who lack

15 standing. He asserts that (1) individuals who received the Disenrollment Notice but

16 failed to respond lack standing to assert either due process or equal protection claims; (2)

17 members of the Due Process class who received the Disenrollment Notice but failed to

18 appeal do not have ripe claims; and (3) individuals who are not lawful residents lack

19

20

11 The court notes further that even if such individuals had standing, the court would not

21

certify an equal protection class that includes them. Federal Rule of Civil Procedure 23(b)(2) requires that a single injunction provide relief to each class member. Dukes, 131 S. Ct. at 2557.

22

The injunctive relief that Plaintiffs seek—reinstatement of class members’ benefits—could not apply to these individuals as they have never been enrolled in Basic Health.

ORDER- 19

1 standing to be in the Due Process class. (Resp. to Cert. Mot. at 4-10.) As discussed

2 below, the court rejects each argument.

3

a. Standing of Individuals who Failed to Respond to the Disenrollment

Notice

4

Defendant asserts three reasons why individuals who did not appeal their

5

disenrollment lack standing: (1) Plaintiffs cannot establish that individuals who received

6

the Disenrollment Notice but failed to respond suffered an injury in fact because the HCA

7

has no way to know whether these individuals are Transition Eligible; (2) Plaintiffs

8

cannot establish causation because there is no evidence that the content of the

9

Disenrollment Notice prevented any individual from appealing; and (3) the Supreme

10

Court’s decision in Mathews v. Diaz, 426 U.S. 67 (1976), dictates that the classes cannot

11

include individuals who have not had their eligibility administratively determined. (See

12

Resp. to Cert. Mot. at 5-6.) Defendant’s arguments miss the mark.

13

Defendant’s first argument misconstrues the alleged injuries. Contrary to

14

Defendant’s assertions, Plaintiffs do not claim that class members were injured because

15

the HCA incorrectly determined their eligibility under the Bridge Waiver. For the Due

16

Process class, the claimed injury is the deprivation of a property interest without

17

constitutionally adequate process, and for the Equal Protection class, the claimed injury is

18

disenrollment from Basic Health benefits because of unconstitutional eligibility

19

requirements. (Reply to Cert. Mot. at 3-4.) Neither of these harms depends on whether a

20

class member appealed his or her disenrollment.

21

22

ORDER- 20

1

Defendant’s second argument, regarding causation, similarly confuses the issues.

2 Class members allegedly were injured when they were deprived of a property interest

3 without a constitutionally sufficient notice (i.e., the Disenrollment Notice). They need

4 not have appealed to have suffered this injury. See Elkins, 2011 WL 3438666, at *5;

5 Rodriguez, 985 F. Supp. at 1192, 1194-96. As noted above, a termination notice must

6 contain sufficient information to allow the affected party to assess the accuracy of the

7 determination and prepare a meaningful response. See, e.g., Rodriguez, 985 F. Supp. at

8 1194-96. The fact that some recipients of the Disenrollment Notice appealed does not

9 resolve this issue. Further, Plaintiffs have provided evidence that the explanation of the

10 appeal process in the Disenrollment Notice was confusing to at least some recipients.

11 (See generally Pico Decl. (Dkt. # 51).) The court also concludes, similarly to named

12 Plaintiffs, that if class members were deprived of a property interest without due process,

13 as Plaintiffs allege, then the resultant injuries would be fairly traceable to the process

14 Defendant provided. This satisfies the causation element of standing.

15

Finally, Defendant’s reliance in Diaz is inapposite. In Diaz, the Supreme Court

16 found that the court lacked jurisdiction over class members who “will be denied”

17 enrollment in a supplemental medical insurance program under Medicare because they

18 had not had their benefits claims administratively adjudicated as required by 42 U.S.C. §

19 405(g). Diaz, 426 U.S. at 71 n.3. Because this action does not involve Medicare, section

20 405(g) has no bearing on the instant dispute. Further, Defendant does not argue that the

21 Washington State Administrative Procedures Act (the “APA”), RCW 34.05, et seq.,

22 prevents this court from adjudicating the claims of individuals who did not appeal their

ORDER- 21

1 disenrollment. Although the APA generally requires exhaustion of administrative

2 remedies, it permits the court to “relieve a petitioner of the requirement to exhaust any or

3 all administrative remedies upon a showing that: (a) The remedies would be patently

4 inadequate; [or] (b) The exhaustion of remedies would be futile . . . .” RCW

5 34.05.534(3). Here, Plaintiffs have alleged that the notice they received was inadequate

6 to prepare a meaningful response. Accordingly, the court concludes that the exceptions

7 to administrative exhaustion set forth in RCW 34.05.534(3) would be applicable here.

8 See Orion Corp. v. State of Washington, 693 P.2d 1369, 1378-79 (Wash. 1985) (excusing

9 administrative exhaustion where application for land use permits would have been futile

10 because the state had designated plaintiff’s land as a wildlife sanctuary and would not

11 have granted the permits).

12

b. Ripeness of Due Process Class Members’ Claims

13

“For a suit to be ripe within the meaning of Article III, it must present concrete

14 legal issues, presented in actual cases, not abstractions.” Colwell v. Dep’t of Health &

15 Human Servs., 558 F.3d 1112, 1123 (9th Cir. 2009) (internal quotation and citation

16 omitted). As the Ninth Circuit has observed, “the constitutional component of the

17 ripeness inquiry . . . , in many cases, . . . coincides squarely with standing’s injury in fact

18 prong.” Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 773 (9th Cir. 2006)

19 (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir.

20 2000) (en banc)) (alterations in Sacks). Defendant contends that Due Process class

21 members who failed to appeal the Disenrollment Notice do not have ripe claims because

22 the HCA has been unable to determine whether they are Transition Eligible. (Resp. to

ORDER- 22

1 Cert. Mot. at 6.) This is essentially the same argument Defendant made in contesting the

2 injury-in-fact prong of the standing analysis. (See id. at 5.) As the court previously

3 explained, see supra § II(A)(3)(a), Defendant’s argument misconstrues the nature of the

4 due process claim, which ripened when Due Process class members were terminated

5 from Basic Health, allegedly without due process.

6

c. Standing of Due Process Class Members who are Not Lawful

Residents

7

Defendant contends that the proposed Due Process class includes individuals who

8

are not lawful residents and therefore do not have a protected property interest that would

9

trigger the protection of the due process clause. (Resp. to Cert. Mot. at 7.) In particular,

10

Defendant argues that unlawful immigrants do not have a protected property interest

11

because they can never be eligible for benefits under the Bridge Waiver. (Id.) The court

12

disagrees.

13

As explained in more detail infra, section II(B)(2)(a), property interests are created

14

by state laws that contain mandatory language regarding eligibility for and termination of

15

benefits. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 578 (1972); Foss v. Nat’l

16

Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998). Before the State Legislature

17

adopted ESHB 1086, the HCAA and the Basic Health regulations contained such

18

mandatory language that did not exclude unlawful residents from eligibility. See, e.g.,

19

RCW 70.47.020(a); WAC 182-24-020(1) (setting forth eligibility requirements); see also

20

infra, § II(B)(2)(a)(i) (providing additional examples of mandatory language in the Basic

21

Health regulations). Therefore, it is likely that all Due Process class members obtained a

22

ORDER- 23

1 property interest in Basic Health benefits regardless of whether they were lawful 2 residents.12

3

Defendant’s argument “confuses the right to receive a benefit with the right to fair

4 decision-making before the benefit is denied.” Mallette v. Arlington Cnty. Emps.’

5 Supplemental Ret. Sys. II, 91 F.3d 630, 637 (4th Cir. 1996). In Mallette, a former county

6 employee claimed that the county denied her application for disability benefits without

7 due process. Id. at 632. The court concluded that the county ordinance created a

8 property interest in disability benefits because it contained mandatory language regarding

9 eligibility. Id. at 636. The county argued that the plaintiff did not have a property

10 interest because it had determined that she did not meet the eligibility requirements

11 contained in the ordinance. Id. The court rejected this argument because, under the

12 county’s approach, “any adverse decision on the merits would insulate it from the

13 obligation to provide due process.” Id. In this case, Defendant’s argument mirrors the

14 county’s argument in Mallette, and like the court in Mallette, this court concludes that the

15 argument is incorrect.

16

4. Rule 23(a) Requirements

17

The court may certify a class only if: “(1) the class is so numerous that joinder of

18 all members is impracticable; (2) there are questions of law or fact common to the class;

19

20

12 Defendant also asserts that unlawful immigrants have “no injury-in-fact attributable to

21

the alleged inadequate notice that is redressable by the Court.” (Resp. to Cert. Mot. at 7.) Given that all Due Process class members likely have a property interest in Basic Health benefits, the

22

court concludes that deprivation of this interest without due process of law causes an injury that would be redressable by a court order requiring constitutionally sufficient process.

ORDER- 24

1 (3) the claims or defenses of the representative parties are typical of the claims or

2 defenses of the class; and (4) the representative parties will fairly and adequately protect

3 the interests of the class.” Fed. R. Civ. P. 23(a); see also Rodriguez v. Hayes, 591 F.3d

4 1105, 1122 (9th Cir. 2010).

5

a. Numerosity

6

Rule 23(a)(1) requires the court to find that the class is so numerous that joinder of

7 all of its members is impracticable. Fed. R. Civ. P. 23(a)(1). Plaintiffs have met their

8 burden with respect to both classes. The Due Process class includes over 11,000

9 individuals (2d Varon Decl. Ex. A), and the Equal Protection class includes at least 800

10 persons (Vaughn Decl. ¶¶ 7-8; see also Reply to Cert. Mot. at 9). This element is clearly 11 satisfied.13

12

b. Commonality

13

Rule 23(a)(2) requires the court to find that “there are questions of law or fact

14 common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to

15 demonstrate that the class members ‘have suffered the same injury.’” Dukes, 131 S. Ct.

16 at 2551 (quoting Falcon, 457 U.S. at 157). The class members’ “claims must depend

17 upon a common contention . . . . That common contention, moreover, must be of such a

18 nature that it is capable of classwide resolution—which means that determination of its

19

20

13 Defendant disputes numerosity as to the Due Process class by arguing that the class

should be limited to “enrollees who appealed their disenrollment but were not reinstated to

21

coverage despite being eligible under the Bridge Waiver.” (Resp. to Cert. Mot. at 13.) Defendant cites no authority for this position, and the court sees no reason to limit the class in

22

this way given that Plaintiffs’ claimed due process violation does not depend on whether a class member appealed disenrollment. See supra, § II(A)(3)(a).

ORDER- 25

1 truth or falsity will resolve an issue that is central to the validity of each one of the claims

2 in one stroke.” Id. It is not necessary that members of the proposed class “share every

3 fact in common or completely identical legal issues.” Hayes, 591 F.3d at 1122. Rather,

4 the “existence of shared legal issues with divergent factual predicates is sufficient, as is a

5 common core of salient facts coupled with disparate legal remedies within the class.”

6 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

7

i. Due Process Class

8

Plaintiffs contend that Due Process class members’ claims stem from the same

9 conduct and raise the same legal questions, including: (1) “whether [the] HCA violated

10 class members’ constitutional right to due process of law by sending them notices which

11 did not satisfy due process requirements prior to terminating their Basic Health benefits”;

12 (2) “whether class members are entitled to declaratory relief under 42 U.S.C. § 1983”;

13 and (3) “whether class members are entitled to preliminary and permanent injunctive

14 relief.” (Cert. Mot. at 7; see also 2d Am. Compl. ¶ 17.) The court concurs that these

15 questions apply to all Due Process class members. All class members were offered the

16 same process prior to the termination of their Basic Health benefits. They each received

17 the Disenrollment Notice, and therefore, they each received the same explanation of why

18 their benefits were being terminated and how they could appeal. If the court ultimately

19 determines that this process was insufficient, then it was insufficient as to all class

20 members. The court, therefore, concludes that Plaintiffs have affirmatively demonstrated

21 that “there are questions of law or fact that are common to the class.” Fed. R. Civ. P.

22 23(a)(2).

ORDER- 26

1

Defendant contends that the law applies differently to legal residents and illegal

2 residents, as well as to class members who are currently ineligible for Basic Health solely

3 because of the five-year bar and those who are ineligible for other reasons. (Resp. to

4 Cert. Mot. at 11-12.) Defendant, however, fails to explain why this is the case. To the

5 extent that Defendant’s argument rests on the assumption that the existence of a property

6 interest depends on eligibility under the Bridge Waiver, Defendant is mistaken. See

7 supra, § II(A)(3)(c) (explaining why Due Process class members have a property interest

8 regardless of whether they are eligible under the Bridge Waiver). The court, moreover,

9 can discern no reason why the law concerning the due process sufficiency of the HCA’s

10 notice would apply differently to class members who are ineligible solely because of the

11 five-year bar and class members who are ineligible for other reasons. Accordingly, the

12 court concludes that Plaintiffs have met their burden to established commonality as to the

13 Due Process class.

14

ii. Equal Protection Class

15

Plaintiffs contend that, like the Due Process class, the Equal Protection class’s

16 claims arose out of the same conduct and involve the same legal questions, namely: (1)

17 “whether [the] HCA violated class members’ constitutional right to equal protection . . .

18 by terminating their Basic Health benefits, while continuing to provide Basic Health

19 benefits to U.S. citizens and certain qualified aliens who meet the requirements adopted

20 in ESHB 1086 and in RCW 70.47.020(9)(viii)”; (2) “whether class members are entitled

21 to declaratory relief under 42 U.S.C. § 1983”; and (3) “whether class members are

22 entitled to preliminary and permanent injunctive relief.” (Cert. Mot. at 7; see also 2d

ORDER- 27

1 Am. Compl. ¶ 18.) The court agrees that these questions are common to all Equal

2 Protection class members. All Equal Protection class members were disenrolled because

3 they are not Transition Eligible. If the State’s conditioning of Basic Health benefits on

4 Transition Eligibility violates the equal protection clause, then all Equal Protection class

5 members will have been disenrolled for a constitutionally impermissible reason. See

6 Dukes, 131 S. Ct. at 2551 (explaining that the common legal issues must be capable of

7 classwide resolution). These facts establish commonality as to the Equal Protection class.

8

c. Typicality

9

Typicality is satisfied if “the claims or defenses of the representative parties are

10 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The purpose of

11 the typicality requirement is to assure that the interest of the named representative aligns

12 with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th

13 Cir. 1992). It is not necessary that the class representatives’ injuries be identical to all

14 class members’ injuries, “only that the unnamed class members have injuries similar to

15 those of the named plaintiffs and that the injuries result from the same, injurious course

16 of conduct.” Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001), abrogated on other

17 grounds by Johnson v. California, 543 U.S. 499, 504-05 (2005).

18

i. Due Process Class

19

Plaintiffs contend that their claims and defenses are typical of Due Process class

20 members’ claims and defenses because the cause of action stems from the method in

21 which all class members were disenrolled from Basic Health. (Cert. Mot. at 8.) As

22 explained supra, section II(A)(3), members of the Due Process class suffered the same

ORDER- 28

1 alleged injury, which resulted “from the same, injurious course of conduct.” Armstrong,

2 275 F.3d at 869. Because Plaintiffs and Due Process class members suffered the same

3 injury, their claims are typical of absent class members. As such, Plaintiffs have met 4 their burden to establish typicality.14

5

Defendant argues that Plaintiffs’ claims are not typical of all class members

6 because the property interest analysis for the due process violation is different for persons

7 who are legally residing in the United States and those who are not legal residents.

8 (Resp. to Cert. Mot. at 12.) This is essentially the same argument Defendant advanced in

9 opposing justiciability and commonality. The property interest analysis, however, is the

10 same for all Due Process class members, regardless of whether the class member is a

11 lawful or unlawful resident. See supra, § II(A)(3)(c); see also infra, § II(B)(2)(a)(i).

12

ii. Equal Protection Class

13

Plaintiffs argue that typicality as to the Equal Protection class is established by the

14 fact that their claims arose because they were disenrolled from Basic Health based on

15 their immigration status. (Cert. Mot. at 8.) The court agrees that Plaintiffs’ alleged

16 injuries are the same as Equal Protection class members’ alleged injuries—termination of

17 their Basic Health benefits for a constitutionally impermissible reason—and that these

18 injuries stemmed from the State’s amendment of the Basic Health eligibility

19

20

14 The fact that Plaintiffs appealed their disenrollment while other class members did not,

21

does not change this analysis. Plaintiffs’ interests align with class members who did not appeal their disenrollment because they suffered the same injury and therefore have the same claims.

22

See supra, § II(A)(3)(a) (explaining why class members who did not appeal have the same injury as class members who did appeal).

ORDER- 29

1 requirements. These facts establish typicality. See Armstrong, 275 F.3d at 869

2 (explaining that typicality requires a similar injury resulting from the same course of 3 conduct).15

4

d. Adequacy

5

In determining whether Plaintiffs and proposed class counsel will adequately

6 represent the proposed classes, the court must consider whether they have “any conflicts

7 of interest with other class members, and whether they will prosecute the action

8 vigorously on behalf of the class.” Hanlon, 150 F.3d at 1020.

9

i. Adequacy of Plaintiffs as Class Representatives

10

As an initial matter, the court concludes that Plaintiffs have not met their burden to

11 establish that Ms. Ponomareva is an adequate representative for either class. Rule 23(a)

12 requires class representatives to be class members. Fed. R. Civ. P. 23(a) (“One or more

13 members of a class may sue or be sued as representative parties . . . .” (emphasis added)).

14 Ms. Ponomareva is Transition Eligible and has been reenrolled in Basic Health

15 (McKinzie Decl. ¶¶ 5-8); therefore, she is no longer a member of either proposed class.

16 Relying on Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993), Plaintiffs contend that class

17 certification should relate back to the filing of the Complaint, at which time Ms.

18 Ponomareva was disenrolled from Basic Health. Robidoux stands for the proposition that

19 when “class claims are inherently transitory” and all of the named plaintiffs’ claims have

20 been mooted, “certification may be deemed to relate back to the filing of the complaint in

21

22

15 Defendant contested typicality only as to future class members. The court has excluded these individuals from the class, thus Defendant’s arguments are moot.

ORDER- 30

1 order to avoid mooting the entire controversy.” Id. at 939. Robidoux, however, is

2 inapplicable here because the exclusion of Ms. Ponomareva does not moot the case, as

3 Plaintiffs’ counsel conceded at oral argument. The court, therefore, declines to appoint

4 Ms. Ponomareva as a class representative.

5

With respect to the remaining Plaintiffs, however, the court concludes that

6 adequacy is satisfied. They have declared that they have no conflict of interest and that

7 they understand their responsibility to protect the interests of all class members.

8 (Unthaksinkun Decl. ¶ 14; Atif Decl. ¶ 17; Ahmadi Decl. ¶ 17; S.J. Decl. ¶ 17.)

9 Defendant does not assert any reason to dispute this. Ms. Unthaksinkun, Ms. Ahmadi,

10 Ms. Atif, and Ms. S.J. (“Class Representatives”) are appropriate representatives for both

11 the Due Process and Equal Protection classes.

12

ii. Adequacy of Counsel

13

The court concludes that Class Representatives have met their burden to show that

14 their counsel are adequate to represent the Due Process and Equal Protection classes.

15 Each is a highly qualified attorney who has class action experience, is prepared to

16 represent Class Representatives and class members, and does not have a conflict of

17 interest with Class Representatives or other class members. (See generally Declaration of

18 Blake Marks-Dias (Dkt. # 5); Declaration of Michael Pierson (Dkt. # 6); Declaration of

19 Daniel Gross (Dkt. # 8); Declaration of Janet Varon (Dkt. # 9).) Defendant, moreover,

20 does not dispute their adequacy.

21

22

ORDER- 31

1

5. Rule 23(b) Requirements

2

In addition to meeting the Rule 23(a) criteria, the party seeking certification must

3 also fall into one of three categories in Rule 23(b). Zinser v. Accufix Research Inst., Inc.,

4 253 F.3d 1180, 1186 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001). Class

5 Representatives seek class certification under Rule 23(b)(2) on the basis that “the party

6 opposing the class has acted or refused to act on grounds that apply generally to the class,

7 so that final injunctive relief or corresponding declaratory relief is appropriate respecting

8 the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the

9 ‘indivisible nature of the injunctive or declaratory remedy warranted—the notion that the

10 conduct is such that it can be enjoined or declared unlawful only as to all of the class

11 members or as to none of them.” Dukes, 131 S. Ct. at 2557 (internal citation omitted).

12 “In other words, Rule 23(b)(2) applies only when a single injunction or declaratory

13 judgment would provide relief to each member of the class.” Id.

14

Class Representatives have met their burden with respect to the Due Process class

15 because Defendant offered the same process to all class members. Each class member

16 received the Disenrollment Notice. If this notice did not comply with due process, then

17 all class members received constitutionally insufficient notice. Any final relief correcting

18 the deficiencies in this notice, therefore, would apply equally to all class members.

19 Similarly, the Equal Protection class satisfies the Rule 23(b)(2) requirements. These

20 individuals suffered the same harm, that is, termination of their benefits because of their

21 immigration status. If the court finds that the current Basic Health eligibility

22

ORDER- 32

1 requirements impermissibly discriminate on the basis of alienage, then all class members

2 will deserve the same injunctive relief.

3

6. Definitions of Certified Classes

4

Based on the foregoing analysis, the court certifies (1) the Due Process class,

5 defined as all Washington state residents who were sent notices by the HCA informing

6 them that their Basic Health benefits would be terminated effective March 1, 2011

7 because of their immigration status and who have not subsequently had their Basic 8 Health benefits reinstated;16 and (2) the Equal Protection class, defined as all Washington

9 residents who are immigrants lawfully present in the United States whose Basic Health

10 benefits terminated effective March 1, 2011 because of their immigration status and who

11 have not subsequently had their benefits reinstated.

12 B. Motion for Preliminary Injunction (Dkt. #32)

13

Class Representatives seek a preliminary injunction requiring the “HCA to

14 immediately reinstate all previously enrolled immigrants’ benefits while this matter is

15 litigated, to continue enrollment for all legal immigrants who are otherwise eligible, to

16 restore coverage for eligible medical care received since March 1, 2011, and to prevent

17 [the] HCA from terminating class members’ benefits again without constitutionally

18

19 16 The court exercises its discretion to modify Class Representatives’ proposed definition

20 of the Due Process class, which defined the class as “all Washington state residents who were sent notices by HCA informing them that their Basic Health benefits would be terminated

21

effective March 1, 2011 because of their immigration status and have not subsequently had their Basic Health benefits unconditionally reinstated” (Cert. Mot. at 2 (emphasis added)). The use of

22

the word “unconditional” in inappropriate because Basic Health benefits are conditioned on numerous factors, including the payment of a monthly premium.

ORDER- 33

1 adequate notice.” (Inj. Mot. at 32.) Defendant contends that a preliminary injunction is

2 inappropriate. (See generally Resp. to Inj. Mot. (Dkt. # 38).) The court concludes that

3 Class Representatives have established that they are entitled to preliminary injunctive

4 relief. The court grants in part and denies in part Class Representatives’ motion (Dkt. #

5 32) and orders preliminary injunctive relief as set forth infra, section II(B)(6).

6

1. Preliminary Injunction Standard

7

“[A] preliminary injunction is an extraordinary and drastic remedy, one that

8 should not be granted unless the movant, by a clear showing, carries the burden of

9 persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). To obtain a preliminary

10 injunction, the moving party must demonstrate “that he is likely to succeed on the merits,

11 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

12 balance of equities tips in his favor, and that an injunction is in the public interest.”

13 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24-25 (2008). So long as all four

14 parts of the Winter test are applied, “a preliminary injunction [may] issue where the

15 likelihood of success is such that ‘serious questions going to the merits were raised and

16 the balance of hardships tips sharply in [plaintiff’s] favor.’” Alliance for the Wild

17 Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011) (quoting Clear Channel

18 Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003)). In other words, the

19 “serious questions” approach survives Winter, so long as the plaintiff also shows that

20 there is a likelihood of irreparable injury and that the injunction is in the public interest.

21 Id. at 1135.

22

ORDER- 34

1

2. Likelihood of Success on the Merits

2

a. Due Process Claim

3

Whether Class Representatives are likely to succeed on the merits of their due

4 process claim involves a two step inquiry: first, whether there is a protected property

5 interest at issue; and if so, whether the process used to take away the property interest

6 was constitutionally sufficient. Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 716

7 (9th Cir. 2011); Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588-89 (9th Cir.

8 1998). As explained below, the court concludes that Class Representatives have

9 established a likelihood of success on the merits of their due process claim.

10

i. Property Interest

11

“The requirements of procedural due process apply only to the deprivation of

12 interests encompassed by the Fourteenth Amendment’s protection of liberty and

13 property.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972). “To have a

14 property interest in a benefit, a person clearly must have more than an abstract need or

15 desire for it.” Id. at 577. A person “must, instead, have a legitimate claim of entitlement

16 to it.” Id. Property interests “are created and their dimensions are defined by existing

17 rules or understandings that stem from an independent source such as state law-rules.”

18 Id. at 578. In the public benefits arena, courts have found that property interests exist in,

19 among other things, welfare benefits, Goldberg v. Kelly, 397 U.S. 254 (1970); housing

20 assistance, Geneva Towers Tenants Org. v. Federated Mortg. Investors, 504 F.2d 483

21 (9th Cir. 1974), Ressler v. Pierce, 692 F.2d 1212, 1215-16 (9th Cir. 1982), and Nozzi v.

22 Housing Auth. of the City of L.A., No. 09-55588, 2011 WL 1167188 (9th Cir. Mar. 25,

ORDER- 35

1 2011); social security disability benefits, Mathews v. Eldridge, 424 U.S. 319 (1976), and

2 Kildare v. Saenz, 325 F.3d 1078 (9th Cir. 2003); and supplemental food benefits, 3 Alexander v. Polk, 750 F.2d 250 (3d Cir. 1984).17

4

“[N]ot every statute authorizing a benefit creates a property interest.” Doyle v.

5 City of Medford, 606 F.3d 667, 672 (9th Cir. 2010). “A regulation granting broad

6 discretion to a decision-maker does not create a property interest.” Id. (quoting Jacobson

7 v. Hannifin, 627 F.2d 177, 180 (9th Cir. 1980) (holding that statute permitting denial of

8 “any application [for a landlord license] for any cause deemed reasonable” did not create

9 a property interest).) Rather, the existence of “a property interest will depend largely

10 upon the extent to which the statute contains mandatory language that restricts the

11 discretion of the decisionmaker.” Id. (quoting Allen v. City of Beverly Hills, 911 F.2d

12 367, 370 (9th Cir. 1990) (internal quotation marks and brackets omitted in Doyle); see

13 also Foss, 161 F.3d at 588 (holding that an applicant for a federal fishing quota permit

14 had a property interest in the permit because the eligibility requirements did not contain

15 any open-ended discretionary factors); Griffeth v. Detrich, 603 F.2d 118, 121 (9th Cir.

16 1979) (holding that a state statute, coupled with its implementing regulations, created a

17 property interest in general relief benefits because the regulations “set forth specific

18 objective eligibility criteria for receipt of aid”).

19

20

21

17 The court has found no cases addressing whether a there is a property interest in state

22 subsidized private health insurance for low-income individuals, nor have the parties cited any.

ORDER- 36

1

Class Representatives assert that the HCAA and the Basic Health regulations

2 create a property interest in Basic Health because they contain mandatory, non-

3 discretionary language regarding eligibility. (Reply to Inj. Mot. (Dkt. # 46) at 6-8.)

4 Defendant argues that there is no property interest at stake because he can disenroll

5 members to prevent overexpenditure. (Resp. to Inj. Mot. at 19.) For the reasons

6 explained below, the court agrees with Class Representatives.

7

The HCAA greatly restricts the discretion of the HCA administrator. For

8 example, the HCAA states, “On or after July 1, 1988, the administrator shall accept for

9 enrollment applicants eligible to receive covered basic health care services from the

10 respective managed health care systems which are then participating in the plan.” RCW

11 70.47.080 (emphasis added). The HCA must review Basic Health applications within

12 thirty days of their receipt and notify eligible candidates of their enrollment date. WAC

13 182-24-060(5). Eligibility is defined by a number of non-discretionary criteria. RCW

14 70.47.020(9); WAC 182-24-020(1). Regulations also govern the order in which

15 applicants will be enrolled in Basic Health or, when necessary, added to the waiting list.

16 WAC 182-24-060(6); WAC 182-24-020(4)(c). The HCA administrator may disenroll a

17 member for one of only seven reasons which constitute “good cause,” WAC 182-24-

18 070(2), or to prevent overexpenditure, RCW 70.47.060(6). These provisions

19 significantly restrict the discretion of the decisionmaker, thereby creating a likelihood

20 that class members have a property interest in Basic Health benefits.

21

These facts are distinguishable from those in Allen, upon which Defendant relies

22 to argue that there is no property interest in Basic Health benefits. (Resp. to Inj. Mot. at

ORDER- 37

1 19.) The plaintiff in Allen claimed a property interest in his position as a city attorney,

2 which had been eliminated. Allen, 911 F.2d at 370. The governing municipal code

3 authorized the city council to “abolish any position” whenever “necessary in the interests

4 of economy or because the necessity for a position no longer exists.” Id. The court

5 found that the city’s broad discretion to eliminate jobs created only a unilateral

6 expectation in continued employment. Id. at 371. In contrast, the HCA administrator has

7 only limited discretion to disenroll Basic Health members to prevent overexpenditure.

8 He or she may not take such action absent a risk of overexpenditure, whereas in Allen the

9 city could terminate any position at any time to save money, regardless of whether the

10 city was over budget. Allen is not controlling here.

11

Moreover, courts have generally held that limited funding does not destroy a

12 legitimate claim of entitlement to benefits. See, e.g., Alexander v. Polk, 750 F.2d 250,

13 260-61 (3d Cir. 1984) (holding that the plaintiffs had a property interest in receiving

14 supplemental food benefits despite the limited availability of benefits); Weston v.

15 Cassata, 37 P.3d 469, 476-77 (Colo. App. Ct. 2001) (holding that property interest

16 existed in welfare benefits regardless of limited federal funding); cf. Wash. Legal Clinic

17 for the Homeless v. Barry, 107 F.3d 32, 36-37 (D.C. Cir. 1997) (finding no property

18 interest in emergency shelter assistance where there were no regulations establishing

19 procedures for a waiting-list for the scarce shelter space). As the court in Alexander

20 explained, when a statutory scheme creates a property interest, “[t]he existence of

21 adequate funding simply imposed an additional condition on the receipt of benefits”; it

22 does not alter the nature of the statutorily conferred property right. Alexander, 750 F.2d

ORDER- 38

1 at 261. The court agrees with the Third Circuit’s reasoning in Alexander and concludes

2 that the HCAA likely creates a property interest in Basic Health benefits, regardless of

3 funding limitations.

4

ii. Sufficiency of Notice

5

“Once it is determined that due process applies, the question remains what process

6 is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). “At a minimum, the

7 Constitution requires notice and some opportunity to be heard.” Mallette v. Arlington

8 Cnty. Emps.’ Supplemental Ret. Sys. II, 91 F.3d 630, 640 (4th Cir. 1996) (citing Joint

9 Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 178 (1951) (“Notice and

10 opportunity to be heard are fundamental to due process of law.”)). Above this threshold,

11 “the required procedures may vary according to the interests at stake in a particular

12 context.” Brock v. Roadway Exp., Inc., 481 U.S. 252, 261 (1987). The Ninth Circuit has

13 explained that “[d]ue process requires notice that gives an agency’s reason for its action

14 in sufficient detail that the affected party can prepare a responsive defense.” Barnes v.

15 Healey, 980 F.2d 572, 579 (9th Cir. 1992) (citing Goldberg v. Kelly, 397 U.S. 254, 267-

16 68 (1970)). Due process also requires “the opportunity to be heard at a meaningful time

17 and in a meaningful manner.” Brock, 481 U.S. at 261 (quoting Mathews v. Eldridge, 424

18 U.S. 319, 333 (1976)). In short, “[d]ue process is flexible and calls for such procedural

19 protections as the particular situation demands.” Mathews, 424 U.S. at 334 (quoting

20 Morrissey, 408 U.S. at 481).

21

Class Representatives argue that the process they received was insufficient for two

22 reasons. First, Class Representatives assert that the Disenrollment Notice did not apprise

ORDER- 39

1 class members of their right to request and receive continued benefits pending an appeal

2 of their disenrollment. (Inj. Mot. at 14-15.) Second, they contend that the Disenrollment

3 Notice “failed to give Plaintiffs a meaningful individualized explanation of the reason for

4 and information justifying [the] HCA’s termination of their Basic Health benefits that

5 could enable them to decide whether to appeal the termination and prepare an adequate

6 appeal.” (Id.) The court concludes the notice was likely insufficient.

7

(1) Right to Request Continued Benefits

8

Class Representatives assert that class members received insufficient process

9 because the HCA did not automatically provide continued benefits pending an appeal or

10 notify class members of their right to request continued benefits pending appeal. (Inj.

11 Mot. at 19-20.) Defendant responds that (1) the HCA did not need to automatically

12 provide continuing benefits because neither the HCAA nor the applicable regulations

13 provide for such action; and (2) the HCA did not need to specifically notify individuals of

14 their right to request continuing benefits because this right is set forth in the Washington

15 Administrative Code and knowledge of Basic Health rules is imputed to members.

16 (Resp. to Inj. Mot. at 24.) The court concludes that although Class Representatives have

17 not established that due process requires automatic continuing benefits, they have shown

18 that due process likely requires the HCA to provide notice of their right to request

19 continued benefits.

20

As a general rule, a benefit recipient must have an opportunity to respond to a

21 proposed termination before his or her property interest in the benefit is revoked. See,

22 e.g., Mathews, 424 U.S. at 333 (“This Court consistently has held that some form of

ORDER- 40

1 hearing is required before an individual is finally deprived of a property interest.”). A

2 pre-termination hearing is required because the “termination of aid pending resolution of

3 a controversy over eligibility may deprive an eligible [welfare benefits] recipient of . . .

4 the very means by which to live while he waits.” Goldberg, 397 U.S. at 264 (emphasis in

5 original). “This principle has been incorporated into the federal regulations regarding

6 hearing requirements for [state-administered federal benefits] programs.” Schroeder v.

7 Hegstrom, 590 F. Supp. 121, 130 (D. Or. 1984). Regulations governing the Social

8 Security Act, for example, require agencies to mail a termination notice only ten days

9 before taking action, but the notice must include an explanation of how the recipient may

10 receive continued assistance if a hearing is requested. See, e.g., 45 C.F.R. §

11 205.10(a)(4)(i). In such circumstances, “[a]n opportunity for reinstatement of benefits

12 pending a hearing decision amounts to an opportunity for a pre-reduction or pre-

13 termination hearing.” Schroeder, 590 F. Supp. at 130; see also Stenson v. Blum, 476 F.

14 Supp. 1331, 1342 (S.D.N.Y. 1979) (holding that federal regulations requiring notice of

15 the opportunity to request benefits pending an appeal comply with due process).

16

The regulations governing Basic Health, like the regulations governing the Social

17 Security Act, allow the HCA administrator to disenroll members by sending notice at

18 least ten days before the date of disenrollment. WAC 182-24-070(4). The Basic Health

19 regulations also allow for continued benefits during an appeal, but, unlike the federal

20 regulations, they do not expressly require the notice of disenrollment to explain how a

21 recipient may receive these benefits. See WAC 182-24-070. If, however, recipients do

22 not know that they must request continued benefits, then effectively they are deprived of

ORDER- 41

1 their right to a pre-termination opportunity to respond. The court, therefore, concludes

2 that due process likely requires any disenrollment notice to explain how to receive

3 continuing benefits. Cf. Stenson, 476 F. Supp. at 1342 (holding that compliance with

4 federal regulations that include notifying recipient of right to request continuing benefits

5 satisfies due process). The Disenrollment Notice did not contain such an explanation,

6 and thus Class Representatives have established a likelihood that the process they

7 received was insufficient in this manner.

8

Even assuming, arguendo, that knowledge of the Basic Health administrative rules

9 is imputed to members as Defendant contends (without citation), the administrative rules

10 regarding continued benefits do not plainly indicate that a disenrolled member must

11 request continued benefits or explain how to do so. The applicable rule provides:

12

Enrollees who appeal a disenrollment decision that was based on eligibility

issues and not related to premium payments may remain enrolled during the

13

appeal process, provided: (a) The appea l was submitted according to the

requirements of this section; and (b) The e nrollee: (i) Re mains otherwise

14

eligible; (ii) Continues to make all premium payments when due; and (iii)

Has not demonstrated a danger o r threat to t he safety or property of the

15

MHCS or health care authority or their staff, providers, patients or visitors.

16 WAC 182-22-3210(8) (emphasis added). The rule ambiguously states that an individual

17 “may” remain enrolled pending an appeal, but it does not explain how to receive these

18 benefits. Id. Based on the language of the rule, it would not be unreasonable for an

19 individual who meets all of the requirements of the rule to assume that he or she would

20 continue to receive benefits. The HCA, however, appears to have interpreted the rule to

21 require an individual to request ongoing benefits (Resp. to Inj. Mot. at 24), even though

22 the rule is silent on the issue. The fact that the HCA’s interpretation of the rule is not

ORDER- 42

1 apparent from the rule’s plain language lends further support to the court’s conclusion

2 that the HCA must affirmatively notify disenrolled individuals of their right to request

3 continued benefits.

4

(2) Sufficiency of the Disenrollment Notice

5

In determining whether the Disenrollment Notice was constitutionally sufficient,

6 the court considers the three factors that the Supreme Court set forth in Mathews: (1) “the

7 private interest that will be affected by the official action”; (2) “the risk of an erroneous

8 deprivation of such interest through the procedures used, and the probable value, if any,

9 of additional or substitute procedural safeguards”; and (3) “the Government’s interest,

10 including the function involved and the fiscal and administrative burdens that the

11 additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335.

12

a. Private Interest

13

The parties dispute the nature of the private interest that was affected by the

14 Defendant’s action. Class Representatives contend that they “have a strong interest in

15 maintaining needed health care coverage they cannot otherwise afford.” (Reply to Inj.

16 Mot. at 8 (citing Mathews, 424 U.S. at 340.) Defendant frames the issue more narrowly,

17 asserting that their “interest is in avoiding an erroneous disenrollment based on [the]

18 HCA’s application of the eligibility requirements of the Bridge Waiver.” (Resp. to Inj.

19 Mot. at 21.) The court agrees with Class Representatives’ framing of their interest. In

20 Mathews, the Court noted that the plaintiff, whose social security benefits had been

21 terminated, had an interest “in the uninterrupted receipt of this source of income pending

22 final administrative decision on his claim.” Mathews, 424 U.S. at 340. Similarly, in this

ORDER- 43

1 case, Class Representatives have an interest in maintaining subsidized health insurance;

2 they do not merely have an interest in avoiding an erroneous disenrollment.

3

The court concludes that Class Representatives have established that the private

4 interest of Due Process class members in retaining subsidized health insurance is high.

5 Class Representatives have each detailed the importance of Basic Health in their lives

6 and their inability to afford alternative health insurance. (See, e.g., Unthaksinkun Decl. ¶

7 6.) The Ninth Circuit, moreover, has recognized the general importance of healthcare.

8 See, e.g., Veterans for Common Sense v. Shinseki, 644 F.3d 845, 874 (9th Cir. 2011)

9 (agreeing with the district court’s conclusion that “the private interest of veterans in

10 receiving health care is high”); Knudson v. City of Ellensburg, 832 F.2d 1142, 1148 (9th

11 Cir. 1987) (holding that the plaintiff, whose disability benefits were denied without a

12 hearing, had a “significant interest in the uninterrupted payment of her medical expenses

13 pending determination of her claim”).

14

b. Risk of Erroneous Deprivation and Value of

Additional Procedures

15

The court begins its analysis of the risk of erroneous deprivation by reiterating the

16

requirement that a constitutionally sufficient notice must explain the reason for an

17

agency’s action in enough detail that the recipient can prepare a meaningful appeal.

18

Barnes, 980 F.2d at 579. The information provided must allow the recipient to assess the

19

accuracy of the agency’s action and correct any mistake on appeal. See Rodriguez v.

20

Chen, 985 F. Supp. 1189, 1190 (D. Ariz. 1996) (holding that notice terminating Medicaid

21

benefits did not sufficiently inform the applicant of the reason for the adverse decision

22

ORDER- 44

1 such that the applicant could evaluate the accuracy of the decision and adequately contest

2 it on appeal); Avanzo v. R.I. Dep’t of Human Servs., 625 A.2d 208, 210 (R.I. 1993)

3 (holding that form notices used to terminate benefits were insufficient where they “did

4 not contain individualized reasons [for the termination] applicable to the recipient”). If

5 the notice does not provide enough information for the recipient to meaningfully appeal,

6 then there is an increased risk of erroneous deprivation.

7

Class Representatives assert several reasons why the Disenrollment Notice was

8 insufficient: (1) the Disenrollment Notice did not provide an individualized explanation

9 for why each recipient did not meet the new immigration status requirements; (2) the

10 Disenrollment Notice provided the wrong reason for disenrollment, which prevented

11 recipients from preparing a meaningful appeal; and (3) the Disenrollment Notice included

12 an inaccurate citation to the law supposedly governing the termination of benefits, further

13 compounding the error caused by offering the wrong reason for disenrollment. (Inj. Mot.

14 at 14-19.)

15

In response, Defendant asserts that the fact that over 4,000 individuals

16 successfully appealed their disenrollment establishes that the Disenrollment Notice

17 included sufficient information to allow recipients to meaningful appeal. (Resp. to Inj.

18 Mot. at 22.) Defendant contends that the HCA was unable to include an individualized

19 reason why the recipient did not meet the new eligibility requirements because it had no

20 information upon which to make this determination. (Id.) Furthermore, Defendant

21 argues that by asking recipients to submit proof of legal residence (a condition precedent

22 to Bridge Waiver eligibility) on appeal, the HCA would be able to determine Bridge

ORDER- 45

1 Waiver eligibility. (Id. at 23 (citing Longhorn Decl. ¶ 10).) Finally, Defendant defends

2 the citation it included in the Disenrollment Notice and asserts that no substitute citation

3 was necessary. (Id.)

4

The court concludes that Class Representatives have established a likelihood that

5 the Disenrollment Notice did not provide enough information for recipients to

6 meaningfully appeal, thereby creating a risk of erroneous deprivation. The court finds

7 the Rhode Island Supreme Court’s decision in Avanzo particularly instructive. Like in

8 the instant case, the plaintiffs in Avanzo challenged the procedures that were used to

9 disenroll them from a state-funded disability benefits program after the state tightened

10 eligibility requirements. Avanzo, 625 A.2d at 209. The old program provided benefits

11 for individuals who submitted proof that they could not perform full-time work, but the

12 new requirements required proof that the recipient could not perform part-time work. Id.

13 There were, however, certain exceptions to the part-time work rule. Id. To determine

14 continued eligibility under the new program, the state reviewed each benefit recipient’s

15 file, and if there was insufficient information to establish continued eligibility, the state

16 terminated the recipient’s benefits. Id. at 210.

17

The state in Avanzo used a pre-printed, standardized disenrollment notice which

18 did not explain the new eligibility standards or provide an individualized reason why the

19 recipient did not qualify. Id. at 209-10. In particular, the notice did not explain the

20 exceptions to the new requirement that the recipient be unable to perform part-time work.

21 Id. at 210. The new regulations, moreover, only had been published once in the

22 Providence Journal, therefore recipients were unaware of the change in standards. Id. at

ORDER- 46

1 209, 211. Given this lack of necessary information, the court held that the notice

2 rendered any appeal hearing “less than meaningful.” Id. at 211.

3

Avanzo is strikingly similar to the instant case. In both cases, the states tightened

4 eligibility requirements but did not make the new requirements widely known. Similar to

5 the notice in Avanzo, the Disenrollment Notice did not explain the new eligibility

6 requirements and its exceptions, or include a citation to the relevant sections of the

7 PRWORA, 18 U.S.C. §§ 1613, 1641. Furthermore, the State Legislature did not pass the

8 statute codifying the new requirements until two months after the HCA disenrolled class

9 members. (See Resp. to Inj. Mot. at 23.) As such, class members had no way of knowing

10 all of the ways in which they could have established their eligibility. Because class

11 members did not know the new eligibility requirements, they could not meaningfully

12 appeal, as the court in Avanzo explained. Avanzo, 625 A.2d at 211.

13

Defendant contends that the Disenrollment Notice directed recipients to produce

14 proof of lawful residence, and that if they submitted such evidence, the HCA would be

15 able to accurately determine eligibility. (Resp. to Inj. Mot. at 23.) Defendant has not 16 submitted any evidence, however, that supports this proposition,18 and in fact the record

17 demonstrates the opposite. As Ms. Ponomareva’s experience shows, proof of legal

18 residence is insufficient to accurately determine Transition Eligibility. Ms. Ponomareva

19 qualifies for an exception to the five-year bar because she is married to a veteran, but the

20

21

18 Defendant’s citation to the Longhorn Declaration is unavailing. The particular

paragraph that Defendant cited explained the disenrollment-related activities of the HCA on

22

February 18, 2011. (Longhorn Decl. ¶ 10.) Nowhere does Mr. Longhorn state that the HCA could determine eligibility with only proof of lawful residence. (See generally id.)

ORDER- 47

1 Disenrollment Notice did not notify her of this exception. (Ortego Decl. (Dkt. # 33) ¶ 9.)

2 She did not learn that she was Transition Eligible until her husband sought legal advice.

3 (Id.) In fact, the appeals officer at Basic Health who handled her claim did not know that

4 the applicable exception existed until Ms. Ponomareva’s husband brought it to her 5 attention.19 (Id. ¶¶ 10-11; McKinzie Decl. ¶ 5.) Although Ms. Ponomareva has now

6 been reinstated in Basic Health with the help of her lawyer, her story exemplifies the risk

7 of erroneous deprivation that was created by the inadequacy of the Disenrollment Notice.

8

The court must also consider the probable value of additional procedures.

9 Mathews, 424 U.S. at 335. Based on the foregoing analysis, the court concludes that

10 Class Representatives have shown that additional notice that complies with due process

11 likely would be valuable to correct the risk of erroneous deprivation.

12

c. Government’s Interest

13

The final Mathews factor involves consideration of “the administrative burden and

14 other societal costs that would be associated with requiring” the additional procedures.

15 Mathews, 424 U.S. at 347. The court concludes that the government has a strong interest

16 in conserving limited financial resources. (See Resp. to Inj. Mot. at 25.) The court

17 agrees with Defendant that providing additional procedures would entail a significant

18 outlay of administrative and financial resources. (Id.)

19

20

21

19 The checklist that HCA appeals officers used to determine Transition Eligibility did

22

not include the veteran-spouse exception, and also lacked other relevant information regarding eligibility. (See generally Baron Decl. (Dkt. # 48).)

ORDER- 48

1

d. Weighing the Mathews Factors

2

After weighing the three Mathews factors, the court concludes that Class

3 Representatives are likely to prevail on their due process claim. Class members’ need for

4 subsidized health insurance and the proven risk of erroneous deprivation likely outweigh

5 the government’s interest in conserving limited resources. See Dominguez v.

6 Schwarzenegger, 596 F.3d 1087, 1098 (9th Cir. 2010), cert. granted sub nom Maxwell-

7 Jolly v. Cal. Pharmacists Ass’n, 131 S. Ct. 992 (2011). Based on the record before it,

8 the court is not convinced that additional procedures would be futile or duplicative, as

9 Defendant contends (Resp. to Inj. Mot. at 25). Taking into account the foregoing analysis

10 regarding the right to continuing benefits and the risk of erroneous deprivation, the court

11 concludes that a second notice would likely remedy the constitutional violation by (1)

12 including an individualized explanation of why the HCA has concluded that the

13 individual is no longer eligible; (2) properly describing the eligibility requirements so that

14 a recipient can submit the relevant proof of eligibility and/or including citations to the

15 applicable statutory provisions; and (3) setting forth the recipient’s right to request

16 continuing benefits pending appeal, provided the recipient complies with WAC 182-2217 320(8).20

18

19

20

20 In his brief, Defendant stated that if an “appeal is ultimately unsuccessful, the member

is not only responsible for paying the regular premiums, but also for the full price of all medical

21

costs incurred during the appeal.” (Resp. to Inj. Mot. at 24.) Defendant does not cite the regulation providing for this recoupment of costs, however, if the HCA may lawfully enforce

22

recoupment of premiums and medical expenses, class members should receive this important information, as well.

ORDER- 49

1

b. Equal Protection

2

The Equal Protection Clause of the Fourteenth Amendment prohibits states from

3 “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S.

4 Const. amend. XIV, § 1. “It has long been settled, and it is not disputed here, that the

5 term ‘person’ in this context encompasses lawfully admitted resident aliens as well as

6 citizens of the United States.” Graham v. Richardson, 403 U.S. 365, 370 (1971). Federal

7 laws discriminating on the basis of alienage, nevertheless, are given great deference

8 because Congress has broad powers to regulate naturalization and immigration. See

9 Diaz, 426 U.S. at 78-80. In contrast, state laws discriminating on the basis of alienage

10 are subject to strict scrutiny and may only be upheld if they “advance a compelling state

11 interest by the least restrictive means available.” Bernal v. Fainter, 467 U.S. 216, 219

12 (1984); see also Pimentel v. Dreyfus, No. C11-0119MJP, 2011 WL 321778, *5 (W.D.

13 Wash. Jan. 28, 2011) (“[S]trict scrutiny is the default with respect to state classifications

14 based on alienage.”). If, however, “the Federal Government has by uniform rule

15 prescribed what it believes to be appropriate standards for the treatment of an alien

16 subclass, the States may, of course, follow the federal direction.” Plyler v. Doe, 457 U.S.

17 202, 219 n.19 (1982); see also Sudomir v. McMahon, 767 F.2d 1456, 1466 (9th Cir.

18 1985) (applying rational basis review to a state’s use of federal eligibility requirements

19 for benefits under the Aid to Families with Dependent Children program because

20 Congress had created a uniform eligibility rule).

21

Class Representatives argue that Defendant discriminated against them and Equal

22 Protection class members on the basis of alienage by terminating their benefits while

ORDER- 50

1 continuing to use state funds to pay for benefits for United States citizens and eligible

2 non-citizens. (Inj. Mot. at 7.) Class Representatives further contend that this

3 discrimination is subject to strict scrutiny because Congress, in passing the PRWORA,

4 did not establish a uniform rule for states to follow in providing state-funded benefits.

5 (Id. at 9-13.) Defendant responds that members of the Equal Protection class were

6 classified based on their eligibility for federal Medicaid, not on the basis of their alienage.

7 (Resp. to Inj. Mot. at 14-17.) Even if Equal Protection class members were classified on

8 the basis of alienage, Defendant asserts that rational basis review applies because the

9 State was following a uniform federal rule. (Id. at 9-14.)

10

Class Representatives do not argue that they would prevail under rational basis

11 review, nor does Defendant contend that he would prevail under strict scrutiny. The

12 outcome of this case, therefore, turns on the appropriate standard of review. The court

13 must consider (1) whether Defendant employed a classification based on alienage; and

14 (2) if so, whether the PRWORA establishes a uniform rule. As discussed below, the

15 court concludes that Class Representatives have established a likelihood that Defendant

16 employed a classification based on alienage and that the PRWORA does not establish a

17 uniform rule. Accordingly, Defendant’s decision to terminate Equal Protection class

18 members’ benefits is subject to strict scrutiny, which it cannot withstand. In sum, the

19 court concludes that Class Representatives are likely to succeed on the merits of their

20 equal protection claim.

21

22

ORDER- 51

1

i. Basis for Classification

2

The first issue is whether Defendant employed a classification based on alienage

3 when he terminated Equal Protection class members’ Basic Health benefits. Class

4 Representatives contend that the classification is based on alienage because the “HCA

5 terminated Plaintiffs’ and other legal immigrants’ state-funded Basic Health benefits,

6 while continuing to use state funds to pay for benefits for individuals it found to be U.S.

7 citizens and eligible noncitizens.” (Inj. Mot. at 7.) This analysis reflects the Supreme

8 Court’s reasoning in Graham. The Court in Graham found that the challenged state

9 benefits programs, which contained residency requirements for non-citizens,

10 discriminated on the basis of alienage because they “create two classes of needy persons,

11 indistinguishable except with respect to whether they are or are not citizens of this

12 country.” Id. at 371; see also Finch v. Commonwealth Health Ins. Connector Auth., 946

13 N.E.2d 1262, 275 n.16 (Mass. 2011) (presuming that the state employed a classification

14 based on alienage when it adopted “the facially discriminatory PRWORA eligibility 15 requirements”).21

16

17

18

21 See also Pimentel v. Dreyfus, No. C11-119 MJP, 2011 WL 321778, at *5 (W.D. Wash.

Jan. 28, 2011) (holding that state’s decision to eliminate alien-only state-funded food assistance

19 program while maintaining other assistance programs discriminated on the basis of alienage);

Korab v. Koller, No. 10-00483 JMS/KSC, 2010 WL 4688824, at *7 (D. Haw. Nov. 10, 2010)

20 (holding that state’s decision to reduce health care benefits in an alien-only state-funded assistance program while maintaining other assistance programs discriminated on the basis of

21

alienage); Ehrlich v. Perez, 908 A.2d 1220, 1234-35 (Md. 2006) (concluding that state’s decision to cut benefits for certain aliens discriminated on the basis of alienage) Aliessa ex. Rel. Fayad v.

22

Novello, 754 N.E.2d 1085, 1094 (N.Y. 2001) (holding that state’s termination of state Medicaid benefits for non-qualified aliens discriminated on the basis of alienage).

ORDER- 52

1

Defendant argues that it is not “discrimination against a suspect class to convert

2 from a state-funded program to a federal-state matching funds program that applies 3 federal eligibility rules across the board to both aliens and citizens alike.”22 (Resp. to Inj.

4 Mot. at 14.) Defendant relies primarily on Hong Pham v. Starkowski, 16 A.3d 635 5 (Conn. 2011).23 Hong Pham involved Connecticut’s decision to eliminate a state funded

6 medical assistance program for legal immigrants who were ineligible for Medicaid

7 because of the five-year bar. Id. at 637-38. The plaintiff claimed that this decision

8 discriminated against her and other class members on the basis of their alienage and

9 violated the Fourteenth Amendment. Id. at 638-39. The court held that the termination

10 of the assistance program did not discriminate on the basis of alienage because “the 11 program did not benefit citizens as opposed to aliens.”24 Id. at 646. The court went on to

12 reject the plaintiff’s contention that the state’s decision to participate in a separate federal

13

14

22 Defendant also argues that it was not discrimination against a suspect class to adopt the

requirement of Transition Eligibility because the HCA also disenrolled persons based on age and

15

income. (Resp. to Inj. Mot. at 15.) That the criteria the HCA adopted impacts individuals on bases other than alienage, however, does not mean that the criteria do not discriminate on the

16

basis of alienage. See Parents Involved in Comty. Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (finding that student assignment plan that relied on racial classification as one among

several “tiebreaking” factors discriminated on the basis of race); see also Finch, 946 N.E.2d at 17 275 n.16 (noting that the PRWORA eligibility requirements are facially discriminatory).

18

23 Defendant also relies on Doe v. Commissioner of Transitional Assistance, 773 N.E.2d

404 (Mass. 2002), in which the Massachusetts Supreme Court found that a residency

19 requirement for an alien-only benefit program discriminated on the basis of residency, rather

than alienage. Id. at 414. Like Hong Pham, Doe is factually distinguishable because it involved

20 an alien-only program, while Basic Health has provided benefits to both citizens and aliens for over 20 years.

21

24 The court questions this result. See Pimentel, 2011 WL 321778, at *5 (holding that

22

elimination of an alien-only state-funded food assistance program while maintaining other food programs for citizens and others discriminated on the basis of alienage).

ORDER- 53

1 Medicaid program but not to provide equivalent benefits to those who are ineligible for

2 Medicaid discriminated on the basis of alienage. Id. at 649. The court reasoned that

3 “when a state chooses to participate in federal Medicaid, it does not necessarily choose to

4 deny coverage to any particular groups of individuals on the basis of a suspect

5 classification.” Id. at 659. The court continued, “[I]nstead, the state’s decision is based

6 on the fact that these groups, among others, are ineligible for federal Medicaid, in

7 accordance with federal law.” Id. The court therefore concluded that the state’s decision

8 to participate in Medicaid drew a classification based on eligibility for Medicaid, not

9 alienage. Id.

10

Hong Pham is distinguishable. There, the court addressed the question of whether

11 the state discriminated on the basis of alienage by continuing to participate in a stand-

12 alone Medicaid program without providing the same benefits to those who were

13 Medicaid ineligible. Id. at 658. Here, by contrast, the issue is whether the State

14 discriminated based on alienage when it chose to exclude Equal Protection class members

15 from a program that has existed for over 20 years by applying facially discriminatory

16 federal Medicaid standards. Indeed, the Bridge Waiver did not require the State to

17 exclude Equal Protection class members, and in fact, it anticipated that the State would

18 continue providing benefits to non-Transition Eligibles. (Bridge Waiver STC § II.) The

19 court concludes that the State, in voluntarily using the Medicaid eligibility requirements

20 to exclude Equal Protection class members from Basic Health, likely discriminated on the

21 basis of alienage by creating “two classes of needy persons, indistinguishable except with

22 respect to whether they are or are not citizens of this country.” Graham, 403 U.S. at 371.

ORDER- 54

1

ii. Uniform Rule

2

Because Defendant classified Equal Protection class members on the basis of

3 alienage, the court must determine whether strict scrutiny or rational basis review applies.

4 The appropriate standard of review depends on whether the PRWORA creates a uniform

5 rule. Defendant argues that the court should follow Sudomir, in which the Ninth Circuit

6 held that the Aid to Families with Dependent Children (AFDC) established a uniform

7 rule with respect to the treatment of asylum applicants. Sudomir, 767 F.2d at 1466. As

8 described below, the court concludes that Sudomir is instructive but distinguishable.

9

Sudomir involved an equal protection challenge to California’s administration of

10 the joint federal-state AFDC program by individuals who did not qualify for AFDC

11 benefits because they had applied for but not yet been granted asylum. Id. at 1457. The

12 state argued that in administering the program, it merely adopted the federal

13 classification. Id. at 1465. The plaintiffs responded that the state applied a state

14 classification because federal law did not prevent the state from adopting more liberal

15 eligibility standards than the federal classification. Id. The court rejected this argument

16 because “[t]o so hold would amount to compelling the states to adopt each and every

17 more generous classification, which, on its face, is not irrational.” Id. at 1466.

18 Accordingly, it concluded that the state employed a federal classification. Id. In

19 addition, the court found that the state employed a uniform federal policy regarding the

20 appropriate treatment of asylum applicants because the AFDC required the state to grant

21 benefits to certain individuals and deny benefits to others. Id.

22

ORDER- 55

1

Defendant contends that, “[a]s in Sudomir, Washington ‘employed both a federal

2 classification and a uniform federal policy regarding the appropriate treatment of a

3 particular subclass of aliens.’” (Resp. to Inj. Mot. at 11 (quoting Sudomir, 767 F.2d at

4 1466).) The court disagrees. First, in adopting the PRWORA eligibility requirements for

5 Basic Health, the State employed a state classification, not a federal classification.

6 Unlike in Sudomir, in which the state had never provided solely state-funded benefits,

7 Washington State provided state-funded Basic Health benefits for over 20 years. The

8 State acted independently in adopting the PRWORA eligibility requirements for Basic

9 Health; the Bridge Waiver did not require this action. (Bridge Waiver STC § 2 (noting

10 that the State intended to continue providing state-funded benefits to non-Transition

11 Eligibles after adopting the Bridge Waiver).) Although Defendant claims that Basic

12 Health is now a joint federal-state program governed by federal law (Resp. to Inj. Mot. at

13 10), that is the case only because the State terminated Equal Protection class members— 14 the act that is as the center of this lawsuit.25 This is distinctly different from the situation

15 in Sudomir where the state never provided state benefits in the first place.

16

Furthermore, contrary to Defendant’s assertions, the PRWORA does not create a

17 uniform federal rule regarding state funded benefits programs. As the court in Sudomir

18 explained, a uniform rule exists where a federal statute requires states to both grant

19

20

25 Moreover, rather than limiting enrollment to Transition Eligibles, the State could have

21

responded to budget cuts by disenrolling Basic Health members using non-discriminatory criteria. The program would have provided benefits to fewer individuals because some

22

individuals would not be eligible for federal matching funds, but the program would not have discriminated against a suspect class.

ORDER- 56

1 benefits to eligible persons and deny benefits to those who are not eligible. Sudomir, 767 2 F.2d at 1466; see also Korab, 2010 WL 4688824, at *9 - *10 (adopting Sudomir’s 3 framing of the uniformity rule). The PRWORA grants states discretion to “determine 4 eligibility for any State public benefits of an alien who is a qualified alien . . . , a 5 nonimmigrant under the Immigration and Nationality Act . . . , or an alien who is paroled 6 into the United States . . . for less than one year.” 8 U.S.C. § 1622(a) (internal citations 7 omitted). Therefore, unlike the AFDC, which was at issue in Sudomir, the PRWORA 8 neither requires the State to use nor prevents the State from using state funds to provide 9 Basic Health benefits to Equal Protection class members. As such, it does not create a 10 uniform rule for states to follow. See Pimentel, 2011 WL 321778, at *4 (holding that the 11 PRWORA did not create a uniform rule); Korab, 2010 WL 4688824, at *9 - *10 (“By 12 failing to provide any guidance to states regarding how to choose among these options, 13 the PRWORA does not establish uniformity, but rather fosters a lack of uniformity 14 between the states based on the states’ own considerations of who should receive benefits 15 based on alienage.”); Finch, 946 N.E.2d at 1274-78 (applying strict scrutiny to the state’s 16 termination of state-funded benefits program for immigrants because the PRWORA did 17 not create a uniform rule); Erlich, 908 A.2d at 1240 (holding that the PRWORA does not 18 establish a uniform rule); Aliessa, 754 N.E.2d at 1098 (“Considering that Congress has 19 conferred upon the States such broad discretionary power to grant or deny aliens State 20 Medicaid, we are unable to conclude that [the federal law] reflects a uniform national 21 policy.”). 22
ORDER- 57

1

Despite the discretionary language contained in the PRWORA, two courts relied

2 on by Defendant applied rational basis review to state benefit eligibility requirements that

3 mirrored federal eligibility requirements. (See Resp. to Inj. Mot. at 12-13 (citing Soskin

4 v. Reinertson, 353 F.3d 1242 (10th Cir. 2004), and Cid v. S.D. Dep’t of Soc. Servs., 598

5 N.W.2d 887 (S.D. 1999)).) In Soskin, legal immigrants challenged a Colorado law that

6 terminated optional Medicaid coverage that the state had been providing to them. Soskin,

7 353 F.3d at 1244. The court concluded that a uniform rule was unnecessary to authorize

8 the state’s action and held that states may follow a clearly expressed national policy 9 regarding the treatment of immigrants.26 Id. at 1254-57. Because Congress set forth a

10 national policy regarding the treatment of immigrants in the PRWORA, the Tenth Circuit

11 applied rational basis review to Colorado’s decision to terminate the optional Medicaid

12 coverage. Id. at 1255. Yet unlike the Tenth Circuit, the Ninth Circuit has not discarded

13 requirement that courts apply rational basis review to suspect classifications only where

14 Congress has established a uniform rule. See Sudomir, 767 F.2d at 1466; see also Korab,

15 2010 WL 4688824, at *10 - *11 (distinguishing Soskin in light of Graham and Sudomir).

16 This court must follow the law in the Ninth Circuit, and therefore declines to adopt

17 Soskin’s reasoning.

18

Likewise, the court declines to follow the South Dakota Supreme Court in Cid. In

19 Cid, the court held that the state’s decision to terminate certain welfare benefits to legal

20

21

26 The court agrees with the Korab court’s conclusion that “Soskin relied on an unduly

22

restrictive interpretation of the uniformity requirement.” Korab, 2010 WL 4688824 at *11 (distinguishing Soskin in light of Graham and Sudomir).

ORDER- 58

1 resident immigrants, following the enactment of the PRWORA, did not violate the equal

2 protection clause. Cid, 598 N.W.2d at 888. The court rejected the plaintiff’s argument

3 that Graham required the court to apply strict scrutiny. Id. at 892. First, the court

4 reasoned that unlike in Graham, South Dakota did not pass a statute restricting the

5 plaintiffs’ benefits, rather, it merely promulgated an administrative rule to implement

6 federal legislation. Id. Furthermore, the court observed that the rule was consistent with

7 the PRWORA, which courts had upheld under rational basis review. Id. The court

8 therefore applied rational basis review and upheld the regulation. Id. at 892-93.

9

The instant case is distinguishable from Cid. In contrast to the program in Cid,

10 Basic Health provided state-funded benefits to Equal Protection class members for many

11 years before it terminated their benefits, and no change in federal law or new federal

12 mandate required the HCA to take the challenged action. Moreover, like in Graham, the

13 State Legislature created Basic Health through statute, and did not merely promulgate an

14 administrative rule implementing federal legislation. Finally, the court in Cid did not

15 discuss or address Plyler’s uniform rule requirement. For these reasons, the court does

16 not follow Cid.

17

Because the court concludes that it is likely that the PRWORA did not create a

18 uniform rule regarding state funded benefits for Equal Protection class members, strict

19 scrutiny applies. A statutory classification that is subject to strict scrutiny must “be

20 suitably tailored to serve a compelling state interest.” City of Cleburne Tex. v. Cleburne

21 Living Ctr., 473 U.S. 432, 440 (1985). Class Representatives contend that “the only state

22 interest advanced by the termination of [class members’] Basic Health benefits is

ORDER- 59

1 reducing the state budget.” (Inj. Mot. at 14.) Defendant neither contests this assertion

2 nor articulates any additional state interests. (See generally Resp. to Inj. Mot.) Fiscal

3 considerations, however, are not a compelling state interest. Sudomir, 767 F.2d at 1466,

4 n.14 (“[A] concern for fiscal integrity is not a compelling justification for an otherwise

5 invidious classification.”). Because Defendant does not assert a compelling interest, the

6 exclusion of Equal Protection class members from Basic Health does not withstand strict

7 scrutiny. The court thus concludes that Class Representatives are likely to prevail on

8 their equal protection claim.

9

3. Likelihood of Irreparable Harm

10

Class Representatives argue that they were irreparably harmed by the termination

11 of their Basic Health benefits because they cannot afford necessary medical care or

12 alternative health insurance. (Inj. Mot. at 20-22.) The Ninth Circuit has recognized that

13 the reduction or elimination of health benefits irreparably harms the participants in the

14 programs being cut. See, e.g., Indep. Living Ctr. of S. Cali. v. Maxwell-Jolly, 572 F.3d

15 644, 658-59 (9th Cir. 2009), cert. granted, 131 S. Ct. 992 (2011) (holding that state

16 Medicaid beneficiaries were likely to be irreparably harmed by a reduction in their

17 benefits); Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir. 1982) (holding that a denial of

18 needed medical care creates a risk of irreparable injury). Defendant does not contest this

19 issue. (See generally Resp. to Inj. Mot.) The court, therefore, concludes that Class

20 Representatives have met their burden to demonstrate a likelihood of irreparable harm

21 absent preliminary injunctive relief.

22

ORDER- 60

1

4. Balance of Hardships and Public Interest

2

Class Representatives argue that the fiscal and administrative issues that would be

3 caused by a preliminary injunction do not outweigh the preventable human suffering

4 caused by the termination of Due Process and Equal Protection class members’ Basic

5 Health benefits. (Inj. Mot. at 22 (citing Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir.

6 1983)).) Class Representatives also contend that the public interest favors an injunction

7 that would safeguard access to public assistance and ensure that the government complies

8 with the Fourteenth Amendment. (Inj. Mot. at 23.) Defendant responds that the balance

9 of hardship tips in its favor and the public interest would not be served by a preliminary

10 injunction because an injunction would cause Basic Health to overexpend its allotment,

11 forcing the State to eliminate Basic Health altogether. (Resp. to Inj. Mot. at 25-26.) If

12 the Basic Health program is eliminated, Defendant points out that approximately 42,500

13 Washington residents would lose their benefits. (Id. at 26.)

14

The elimination of the Basic Health program is a serious concern. If the State

15 terminates the program, thousands of individuals will lose important benefits upon which

16 they rely. However, although the record establishes that Basic Health was in significant

17 danger before the Bridge Waiver (Cody Decl. ¶ 12), Defendant cites no evidence that the

18 State will discontinue Basic Health rather than allocate funds that will bring the program

19 into compliance with the Constitution. Accordingly, the court concludes that the balance

20 of hardships and public interest weigh in favor of Class Representatives.

21

With respect to the balance of hardships, the Ninth Circuit has explained, “Faced

22 with such a conflict between financial concerns and preventable human suffering, we

ORDER- 61

1 have little difficulty concluding that the balance of hardships tips decidedly in plaintiff’s

2 favor.” Lopez, 713 F.2d at 1437. The public interest also favors Class Representatives

3 because “[s]ociety’s interest lies on the side of affording fair procedures to all persons,

4 even though the expenditure of governmental funds is required.” Id. at 1438.

5 Furthermore, “it would not be equitable or in the public’s interest to allow the state to

6 continue to violate the requirements of federal law, especially when there are no adequate

7 remedies available to compensate [plaintiffs] for the irreparable harm that would be

8 caused by the continuing violation.” Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d

9 847 (9th Cir. 2009). In sum, the court concludes that Class Representatives have

10 established that they are entitled to a preliminary injunction.

11

5. Bond

12

Federal Rule of Civil Procedure 65 provides in relevant part: “No restraining or

13 preliminary injunction shall issue except upon giving of security by the applicant, in such

14 sum as the court deems proper, for the payment of such costs and damages as may have

15 been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). District courts have

16 discretion to determine the amount of security, if any. Barahona-Gomez v. Reno, 167

17 F.3d 1228, 1237 (9th Cir. 1999). Courts “may waive the bond requirement where the

18 plaintiffs are indigent.” V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009).

19 Considering Class Representatives’ and class members’ limited financial resources, the

20 court waives the bond requirement.

21

22

ORDER- 62

1

6. Remedy

2

The court has concluded that Class Representatives have established a likelihood

3 of success on the merits of their equal protection and due process claims, a risk of

4 irreparable harm, and that the balance of hardships and public interest tip in their favor.

5 The court, therefore, will enter a preliminary injunction ordering Defendant to reenroll

6 members of the Equal Protection and Due Process classes in Basic Health effective the

7 date of this order, provided that each member pays his or her premium. Defendant may

8 not terminate any Due Process class member’s benefits without providing constitutionally

9 sufficient notice. The court directs the parties to meet and confer within seven days of

10 this order regarding the language for the preliminary injunction and to submit proposed

11 preliminary injunction orders within 14 days.

12

III. CONCLUSION

13

For the reasons stated above, the court GRANTS IN PART and DENIES IN

14 PART Plaintiffs’ Second Amended Motion for Class Certification (Dkt. # 31). The Due

15 Process and Equal Protection classes are defined as stated supra, section II(A)(4). The

16 court appoints the Class Representatives as representatives for the Due Process and Equal

17 Protection classes. The court appoints Blake Marks-Dias and Michael Pierson of Riddell

18 Williams P.S. and Janet Varon and Daniel Gross of Northwest Health Law Advocates as

19 class counsel.

20

The court GRANTS IN PART and DENIES IN PART Plaintiffs’ Second

21 Amended Motion for Preliminary Injunction (Dkt. # 32). The court waives the bond

22 requirement and ORDERS preliminary injunctive relief as stated supra, section II(B)(6).

ORDER- 63

1

Dated this 28th day of September, 2011.

2

3

A

4

JAMES L. ROBART

5

United States District Judge

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

ORDER- 64

 
 Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 1 of 20 Case 2:11-cv-00588-JLR Document 72 Filed 10/21/11 Page 1 of 11

lllllllllllllllllllllllllllllllllllllllllllll

WE'S'aA
BV

lllllllllllllllllllllllllllllllllll

4

11-CV-00588-0RD

5

6

7

8

The Honorable James L. Robart 9

UNITED STATES DISTRICT COURT

10

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 11

RATTlYA UNTHAKSlNKUN, SUSAN 12 AHMADI, KHADDOUJ ATIF,
SERGEYEVNAPONOMAREVA,~d
13 S.J., individually ~don behalf of a class

NO. 2: 11-cv-00588
~1\QPOSIE~] PRELIMINARY INJUNCTION

of similarly situated persons, 14

Plaintiffs, 15

v.
16

DOUGLAS PORTER, in his official 17 capacity as Administrator ofthe

Washington State Health Care Authority, 18

Defen~t.
19

20

I. PROCEDURAL BACKGROUND

21

This matter comes before the court on Plaintiffs Rattiya Unthaksinkun, Su~

22 Ahmadi, Khaddouj Atif, S.J., ~d Anna Sergeyevna Ponomareva's Second Amended Motion

23 for Class Certification (Dkt. #31) ~d Second Amended Motion for a Preliminary Injunction

24 (Dkt #32). Plaintiffs bring their Second Amended Complaint pursu~t to 42 U.S.C. § 1983

25 ~d allege Fourteenth Amendment due process ~d equal protection claims against

26 Defend~t Douglas Porter ("Defend~t"), in his official capacity, as Director of the

[PROPOSED] PRELIMINARY

I

INJUNCTION - NO. 2:11-CV-00588

ATIORNEYGENERALOFWASHINGTON Agriculture & Health Division 7141 CleanwaterDrive SW PO Box 40109 Olympia. WA 98504-0109 (360) 586-6500

Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 2 of 20 Case 2:11-cv-00588-JLR Document 72 Filed 10/21/11 Page 2 of 11

1 Washington State Health Care Authority. On September 28, 2011, the court entered an

2 Order on Motion for Class Certification and Motion for Preliminary Injunction (Dkt #65), in

3 which the court Granted in Part and Denied in Part Plaintiffs' Second Amended Motion for

4 Class Certification (Dkt #31 ), defined the classes certified therein, appointed Plaintiffs

5 Ahmadi, Atif, S.J., and Unthaksinkun class representatives, and appointed Blake Marks-Dias,

6 Michael Pierson, Daniel Gross, and Janet Varon as class counsel. The court also thereby

7 Granted in Part and Denied in Part Plaintiffs' Second Amended Motion for Class

8 Certification (Dkt #32), waived the imposition of a bond on Plaintiffs and made the

9 following prescription of what actions must be taken in support of a remedy:

10

11

The court, therefore, will enter a preliminary injunction ordering Defendant to

reenroll members of the Equal Protection and Due Process classes in Basic

12

Health effective the date of this order, provided that each member pays his or

her premium. Defendant may not terminate any Due Process class member's

13

benefits without providing constitutionally sufficient notice. The court directs

the parties to meet and confer within seven days of this order regarding the

14

language for the preliminary injunction and to submit proposed preliminary

injunction orders within 14 days.

15

16

The parties have informed the Court that, in compliance with the Court's Order, the

17 parties met and conferred on October 3, 5, and 7, 2011. On October 7, 2011, Defendant

18 submitted a Motion to Continue the October 12th Order presentation date (Dkt. #66). This

19 motion was noted for October 21, 2011. On October 12, 2011, Plaintiffs submitted to the

20 court a Proposed Preliminary Injunction (Dkt. #68) and explanatory cover letter (Dkt. #69).

21 Defendant submitted an agreed Proposed Preliminary Injunction (Dkt. #72) on

22 October 21, 20 11. Plaintiffs agree that this supersedes their previously submitted order

23 presented on October 12, 2011 (Dkt. #68). The court, having considered the plaintiffs'

24 Second Amended Complaint (Dkt. #30), the briefmg of the parties in support of and

25 opposition to the Plaintiffs' Second Amended Motion for Class Certification and Plaintiffs'

26 Second Amended Motion for Preliminary Injunction, the Notice of Unavailability filed by

[PROPOSED] PRELIMINARY

2

INJUNCTION - NO. 2:11-CV..()0588

ATIORNEY GENERAL OF WASHINGTON Agriculture & Health Division 7141 CleanwaterDrive SW
POBox40109 Olympia, WA 98504-0109
(360) 586-6500

Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 3 of 20 Case 2:11-cv-00588-JLR Document 72 Filed 10/21/11 Page 3 of 11

I Defendant's counsel on September 15, 2011 (Dkt. # 64), the Declaration of Gail S. Yu

2 submitted in support of Defendant's Motion for Continuance (Dkt. #67), and Plaintiffs' cover

3 letter for the proposed Preliminary fi\iunction, dated October 12, 2011 (Dkt. #69), the Court

4 hereby adopts and incorporates by reference the reasoning stated in the Court's Order issued

5 on September 28, 2011 (Dkt. #65), as the basis for the following Order. However, to the

6 extent that any part of this Order specifically conflicts with the Court's Order of September

7 28, 2011, the language of this Order shall prevail. It is therefore ADJUDGED, DECREED

8 AND ORDERED that:

9

n. ORDER

10

I. Review of Class Member Information and Class Lists - Defendant, the

II Washington State Health Care Authority, their employees and agents (collectively referred to

12 hereinafter as "HCA'') shall compile lists of individuals it believes to be members of the

13 Equal Protection and Due Process classes. The lists shall include each such individual's

14 name, last known address, and phone number (if any), whether each such member filed a frrst

15 and/or second eligibility appeal of the member's March I" disenrollment from Basic Health,

16 the reason provided by HCA for denying each such appeal, if known, status code, and the

17 health plan in which the member was last enrolled in Basic Health. HCA shall provide such

18 lists to Plaintiffs' counsel by October 21, 2011. Updated revisions to the lists shall be

19 provided on a monthly basis thereafter for six months or until all class members' next

20 eligibility reviews are complete, whichever is later.

21

2. Notice of Reenrollment Rights for Known Equal Protection Class Members-

22 As soon as reasonably possible, and in no event later than November 3, 2011, HCA shall

23 send a ''Notice to Equal Protection Class Members" in the form attached hereto as

24 Ex. I, to each individual former Basic Health enrollee disenrolled on March I, 2011, based

25 on their non-qualifying immigrant status, who has not since had her or his Basic Health

26 benefits reinstated, and whom HCA has already determined is lawfully present in the United

[PROPOSED) PRELIMINARY

3

INJUNCTION - NO. 2:11-CV-00588

ATTORNEY GENERAL OF WASHINGTON Agriculture & Health Division 7141 CleanwaterDrivc: SW POBox40109 Olympia, WA 98504.0!09 (360) 586-<5500

Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 4 of 20 Case2:11-cv-00588-JLR Document72 Filed 10/21/11 Page4of11

I States. This Notice shall inform its recipients that they may reenroll in Basic Health, upon

2 payment of the invoiced premium amount for each month of coverage requested, beginning

3 no earlier than September I, 20 II.

4

3. Notice ofReenrollment Rights for Due Process Class- As soon as reasonably

5 possible, and in no event later than November 3, 2011, HCA shall send a "Notice to Due

6 Process Class Members" in the form attached hereto as Ex. 2, to each individual former

7 Basic Health enrollee disenrolled on March 1, 2011, who has not yet been determined by

8 HCA to be lawfully present in the United States, informing them that they may reenroll in

9 Basic Health, upon payment of the invoiced premium amount for each month of coverage

10 requested, beginning no earlier than September 1, 20 II.

11

4. Reinstating Coverage for Class Members Who Pay Premiums - HCA shall

12 reenroll in Basic Health each class member from whom it receives a payment for at least one

13 month of coverage in the amount invoiced pursuant to § 5 of this Order. Coverage of each

14 such member shall begin no later than the first day of the calendar month following HCA's

15 receipt of the class member's first payment, except that coverage for the month in which

16 payment is received and retroactive coverage shall be available to all class members who

17 contact Basic Health to request such coverage and who pay the correct premiums no later

18 than December 31, 2011. Retroactive coverage shall extend to each month for which

19 payment is received back through September 2011. Reenrollment and retroactive coverage

20 shall also be available to class members who can demonstrate extenuating circumstances for

21 not paying a premium by December 31, 2011. Class members who otherwise satisfy this

22 Order's requirements for reenrollment in Basic Health shall be reenrolled without being

23 placed on a waiting list for application to or enrollment in Basic Health.

24

5. Invoice to Class Members for Initial Reenrollment Premiums - HCA shall

25 enclose with each Notice to Equal Protection Class Members and Notice to Due Process

26 Class Members an invoice or a notice regarding sponsorship which shall list the premium

[PROPOSED] PRELIMINARY

4

INJUNCfiON - NO. 2:11-CV-00588

ATIORNEY GENERAL OF WASHmGTON Agriculture & Health Division 7141 CleanwaterDriveSW POBox40109 Olympia,. WA 98504-0109 (360) 586-6500

Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 5 of 20 Case 2:11-cv-00588-JLR Document 72 Filed 10/21/11 Page 5 of 11

I assigned to that individual for the last month they paid a Basic Health premium, if applicable.

2 Class members will also be provided the opportunity to reenroll in Basic Health with

3 coverage beginning no later than January I, 2012, if they pay the required premiums no later

4 than December 22, 2011. Reenrollment shall also be available for class members who can

5 demonstrate extenuating circumstances for not paying a premium by the December 22, 20II

6 due date.

7

6. Identifung Additional Members of Equal Protection Class - HCA shall

8 review all documents and other information in its possession and control received by HCA

9 after February 8, 2011 from each class member assigned a status code of A, U, L, N, or Y

I 0 and concerning each such class member's citizenship and immigration status, and HCA shall

II then determine whether that information supports a conclusion that each such individual is

12 lawfully present in the United States. HCA shall send a letter to each class member whom it

13 concludes is lawfully present informing them of this determination. HCA shall complete this

14 review and determination for each applicable class member prior to taking the following

15 actions: a) for all class members assigned a status code "A," the review and determination

16 shall be completed prior to HCA sending the class members a Notice of Reenrollment Rights

17 detailed in §§ 2 and 3 of this Order; b) for all class members assigned a status code U, L, N,

18 or Y, the review and determination shall be completed prior to HCA deciding to send such a

19 class member a Continued Eligibility Determination form, specified in § 7(a) of this Order.

20 Members of the Equal Protection Class may be required to submit documentation of

21 continued eligibility, including income verification, according to regularly scheduled

22 procedures that are applicable to all Basic Health enrollees regardless of whether they are

23 class members.

24

7. Continued Elicibilitv Determination - HCA shall not seek to disenroll any

25 class member based on the class member's immigration status whom HCA has determined is

26

[PROPOSED] PRELIMINARY

5

INJUNCTION - NO. 2:11-CV-00588

AITORNEY GENERAL OF WASHINGTON Agriculture & Health Division 7141 CleanwaterDrive SW POBox40109 Olympia, WA 985()4..()109
(360) 586-6500

Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 6 of 20 Case 2:11-cv-00588-JLR Document 72 Filed 10/21/11 Page 6 of 11

I "lawfully present" in the United States. HCA shall do the following before seeking to

2 disenroll any class member based on the class member's immigration status:

3

a

If, after conducting the review and determination required under § 6 of

this order, HCA determines it does not have sufficient information to support

4

a conclusion that the individual is lawfully present, HCA shall send the·.

member a "Continued Eligibility Determination" form in the form attached

5

hereto as Ex. 3, requesting documentation to support eligibility for continued

enrollment in Basic Health. The instructions accompanying this notice shall

6

inform the class member of the definition oflawfully present (adopted in § 13

of this Order) and shall include a list of immigrant statuses and typical

7

documentation that can demonstrate such statuses in the form attached hereto

as Ex. 4. In addition to information regarding immigration status, HCA may

8

also request information to demonstrate compliance with income, age,

residency, and other Basic Health eligibility criteria. 9

10

b. SatisfY the requirements of§ 8 ofthis Order for any Notice returned to

HCA. II

12

c. If HCA receives any additional information from the class member,

and this information does not establish that the class member is lawfully

13

present, Basic Health shall review all documents and other information in its

possession or control concerning that class member's citizenship and

14

immigration status, and it shall determine whether that information supports a

conclusion that the individual is lawfully present in the United States. HCA

15

shall send a letter to each class member whom it concludes is lawfully present,

informing her or him ofthis determination.

16

17

d. Any deadlines by which enrollees must respond to requests for

information from HCA, deadlines for HCA to make a determination of the

18

enrollee's continued eligibility for benefits based on information submitted by

the enrollee in response to such requests, and other procedures that apply to

19

HCA's process for unverified Basic Health enrollees shall apply to the

redetermination of eligibility process established in subsections a) and c) of

20

this section.

21

8. Returned Notices ofReenrollment- For any Notice mailed to a class member

22 by HCA that is returned either as undeliverable, with notification that the addressee is no

23 longer at the listed address, or with notification that a forwarding order has expired, HCA

24 shall exercise due diligence to determine the correct address for the class member in question

25 and mail the Notice to her or him.
26

[PROPOSED] PRELIMINARY

6

INJUNCTION - NO. 2:11-CV-00588

AITORNEY GENERAL OF WASHINGTON Agricultw"e & Health Division 7141 CleanwaterDrive SW POBox 40109 Olympia, WA 98504-0109 (360) 586-6500

Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 7 of 20 Case2:11-cv-00588-JLR Document72 Filed 10/21/11 Page7of11

I

9. Translation and Interpretation - All documents that HCA is required by this

2 Order to provide to a class member (the "Documents") shall be written in English or, if the

3 member has requested their materials in Spanish, HCA shall translate the documents into

4 Spanish free of charge to the class member. Each of the Documents shall include language

5 stating that an interpreter will be provided, at no cost to the member, if they cannot speak or

6 read English. Upon request, Basic Health staff shall read the Documents to the member.

7 Basic Health shall also, with the assistance of an interpreter, offer to read each of the

8 Documents to each class member who requests interpretation services, and shall read them

9 upon any indication that the class member wishes Basic Health to do so, if they have not

I0 received the Document translated into their native language. The Notices to the Equal

II Protection and Due Process Class Members shall be provided in the following languages:

12 Spanish, Korean, Vietnamese, Chinese, and Russian. HCA shall make all reasonable efforts

13 to provide interpretation services to all class members who request that information be

14 provided to them in a language other than English. These interpretation services shall be

15 provided to class members free of charge.

16

10. Termination Notices - HCA shall not terminate the Basic Health benefits of

17 any class member who has re-enrolled in Basic Health pursuant to this Order, unless HCA

18 first provides the individual a notice drafted by HCA in consultation with Plaintiffs' counsel

19 that includes at least the following information:

20

a. An explanation of the reasons HCA asserts the class member is no

longer eligible for or should otherwise legally be disenrolled from Basic

21

Health; this includes, but is not limited to citations to the legal authorities

which HCA asserts provide a basis for its determination that the class member

22

is ineligible for Basic Health and for the class member's disenrollment.

23

b. An explanation of the facts and sources of information on which

HCA's determination that the class member is ineligible for or should

24

otherwise be disenrolled from Basic Health is based.

25

c. If HCA seeks to disenroll a class member due to the class member's

purported ineligibility for Basic Health, the notice shall list the eligibility

26

criteria for Basic Health which HCA asserts the class member does not satisfy

[PROPOSED] PRELIMINARY

7

INJUNCTION -- NO. 2:11-CV-00588

AITORNEY GENERAL OF WASHINGTON Agriculture & Health Division 7141 CleanwaterDrive SW POBox40109 Olympia, WA 98504-0109
(360) 586-6500

Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 8 of 20 Case 2:11-cv-00588-JLR Document 72 Filed 10/21/11 Page 8 of 11

I

as well as citations to the legal authorities listing and defining those criteria.

For class members whom HCA seeks to disenroll based on a determination

2

that the class member is not lawfully present in the United States, HCA shall

provide a list of immigration statuses which would qualify an immigrant as

3

being lawfully present in the United States and types of documents that

provide proof of all or some of these statuses. For these purposes, HCA shall

4

provide the information in the form attached hereto as Ex. 4. The notice shall

also inform the class member ofthe definition of lawfully present adopted in§

5

13 of this Order, as well as the citations to the rule and DSHS webpage URLs

that provide the basis for that definition. 6

d. A description of the class member's right to make an eligibility appeal

7

of the proposed disenrollment and the procedures the class member must

follow to obtain eligibility review, as well as citations to the legal authority

8

setting out those appeal rights and describing the appeal procedures.

9

e. That a class member appealing their disenrollment may remain

10

enrolled in Basic Health during the period in which they have an eligibility appeal pending, and how they may request such continued enrollment. HCA

II

shall also provide citations to the legal authority establishing the class

members' rights to continued enrollment pending appeaL

12

f. Notification that class members who appeal the proposed termination

13

of their Basic Health benefits and remain enrolled pending appeal will not be

required to repay HCA for continued Basic Health benefits they receive,

14

whether or not their eligibility appeal is ultimately successfuL

15

g. Provided, however, that the above procedures do not apply to members

16

who are disenrolled for nonpayment ofpremiums.

17 II. Financial Sponsors - HCA shall identify the organizations that served as
18 sponsors for class members during the month of February 2011. 1 HCA shall make a good
19 faith effort to identify and contact these sponsors and inform them of the availability of
20 coverage for the individual class members they previously sponsored, pursuant to this Order.
21 12. Posting Information on the Basic Health Website - HCA shall post on the
22
Basic Health website detailed information about the implementation of this Order and the
23 court's Order of September 28, 2011 (Dkt. #65), including the Documents described above,
24

25

1 HCA has a program in which individuals or organizations can pay Basic Health enrollees' premiums

26

in whole or in part by making payments directly to HCA. The term sponsors, as used here, refers to those individuals or organizations.

[PROPOSED] PRELIMINARY

8

INJUNCTION - NO. 2:11-CV-00588

ATIORNEY GENERAL OF WASHINGTON Agriculture & Health Division 7141 CleanwaterDrive SW POBox40109
Olympia, WA 98504-0109 (360) S86-6500

Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 9 of 20 Case2:11-cv-00588-JLR Document72 Filed 10/21/11 Page9of11

I the list of typical documents that provide proof of many immigration statuses that qualify as

2 lawfully present, attached hereto as Ex. 4, and a set of "Frequently Asked Questions (And

3 Answers)" written in consultation with Plaintiffs' counsel.

4

13. Definition of "Lawfully Present" - For the purposes of this Order, the term

5 "lawfully present" shall be defined to include the definition in WAC 388-424-0001(1), as

6 well as the categories detailed in the DSHS Eligibility A to Z manual found at

7 http://www.dshs.wa.gov/manuals/eaz/sections/CitizenshipAndAlienStatus/CitizenshiplmmEl

8 igResTanfMed.shtml (item 3 in Clarifying Information) and http://www.dshs.wa.gov/

9 manuals/eaz/sections/CitizenshipAndAiienStatus/CitizenGenElig.shtml (items 7 and 8 in

I0 Clarifying Information), in effect as of the date of this order, the text of which are hereby

II incorporated into this Order by reference.

12

14. Recoupments - HCA shall not assess a subsidy overpayment or recoup

l3 payment for Basic Health benefits provided to class members pursuant to this Order for the

14 period beginning with reenrollment until the completion of the enrollee's next recertification

15 process.

16

15. Clarification of Class Definitions - For the purposes of determining who is in

17 one or more of the classes certified by the court in its Order of September 28, 20 II

18 (Dkt. # 65), the Court makes the following clarifications: a) no individual shall be deemed to

19 have had their Basic Health benefits reinstated only because he or she was reenrolled pending

20 the resolution of an eligibility appeal of her or his disenrollment; and b) the retroactive

21 restoration of an individual's Basic Health benefits to March I, 2011 pending a resolution of

22 an eligibility appeal of the individual's disenrollment from Basic Health shall not alone

23 exclude that individual from the group of persons who have not had their benefits or Basic

24 Health benefits reinstated.

25

26

[PROPOSED] PRELIMINARY

9

INJUNCTION - NO. 2:11-CV-00588

AITORNEY GENERAL OF WASHINGTON Agriculture & Health Division 7141 Cleanwater Drive SW P0Box40109 Olympia. WA 98504-0109
(360) 586-<>500

Case 2:11-cv-00588-JLR Document 73 Filed 10/24/11 Page 10 of 20 Case 2:11-cv-00588-JLR Document 72 Filed 10/21/11 Page 10 of 11

1

16. The requirements of this Order supersede any regulations or statutes that

2 conflict with this Order and HCA shall not seek to implement any conflicting statutes or

3 regulations.

4

Y~ DATED this "l

day of_ _,()...a..<"<"-'1-o""k<r<z""""'....__ __,, 2011.

5

6
7
8 Presented by:
9 ROBERT M. MCKENNA
10 Attorney General
11 s!GaiiS. Yu
12 GAIL S. YU WSBA #31551 MELISSA BURKE-CAIN WSBA #12895
13 7141 Cleanwater Ln SW P.O. Box 40109
14 Olympia, WA 98504-0109 (360) 586-6500
15 gaily@atg.wa.gov melissab@atg.wa.gov
16 17 Attorneys for Defendant
RIDDELL WILLIAMS 18

OBART s District Court Judge

19 lsi Blake Marks-Dias Blake Marks-Dias, WSBA No. 28169
20 bmarksdias@riddellwilliams.com Michael Pierson, WSBA No. 15858
21 mpierson@riddellwilliams.com
22 NORTIIWESTHEALTHLAW ADVOCATES
23 Daniel S. Gross, WSBA No. 23992
24 daniel@nohla.org; Janet Varon, WSBA No. 14125
25 janet@nohla.org
26 Attorneys for Plaintiffs

[PROPOSED] PRELIMINARY INJUNCTION - NO. 2:11-CV-00588

10

AITORNEY GENERAL OF WASHINGTON

Agriculture & Health Division

7141 ClcanwaterDriveSW

POBox40109

Olympia. WA 98504-0109

(360) 586-6500

 
 . '

. '

.
'

Case 2:11-cv-00588-JLR Document 94 Filed 11/01/13 Page 1 of 5

Case 2:11-cv-00588-JLR Document 87-1 Filed 10/04/13 Page 1 of 5

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

RATTlYA UNTHAKSINKUN, SUSAN

No. 2:11-cv-00588

10 AHMADI, KHADDOUJ ATIF, AND S.J.,

individually and on behalf of a class of

fi'Rf!'PAS"Fftj ORDER GRANTING

11 similarly situated persons,

PRELIMINARY APPROVAL OF A

PARTIAL CLASS ACTION

12

Plaintiffs,

SETTLEMENT AND AGREEMENT ON ATTORNEYS' FEES

13

v.

14 DOUGLAS PORTER, in his official capacity as Administrator of the
15 Washington State Heath Care Authority,

16

Defendant.

17 TO ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF RECORD:
18 The Motion for Preliminary Approval of a Class Action Settlement and Agreement on
19 Attorneys' Fees having come before this Court, the Honorable James L. Robart presiding, on the
20 25th of October, 2013, and this Court, having considered the papers submitted in support of the
21 parties' Motion, HEREBY ORDERS THE FOLLOWING:
22
1. This Court grants preliminary approval of the Settlement and Agreement on 23
Attorneys' Fees (the "Settlement") based upon the terms set forth in the Motion for Preliminary
24
Approval of a Partial Class Action Settlement and Agreement on Attorneys' Fees (the 25
"Motion"). The Settlement appears to be fair, adequate, and reasonable.
26

[PROPOSED] ORDER APPROVING OF CLASS ACTION SETTLEMENT- (No. 2:11-cv-00588)- 1
482!-8063-4898.09 64560.00001

Riddell Williams P.S.
1001 Fourth Avenue 1 Suite 4500 Seattle, Washington 98154-1192
206,624.3600

Case 2:11-cv-00588-JLR Document 94 Filed 11/01/13 Page 2 of 5 Case 2:11-cv-00588-JLR Document 87-1 Filed 10/04/13 Page 2 of 5

1

2. The Settlement falls within the range of reasonableness and appears to be

2 presumptively valid, subject only to any objections that may be raised at the final fairness

3 hearing and the Court's final approval.

4

3. A Final Approval hearing on the question of whether the proposed Settlement and

5 Agreement on Attorneys' Fees should be finally approved as fair, reasonable, and adequate is

6 scheduled in accordance with the Implementation Schedule set forth below.

7

4. This Court approves the form and content of the Notice of Proposed Settlement

8 ("Notice"), attached as Exhibit A to the Motion. Any changes to the substance of these

9 documents must be approved by both parties in writing. The Court approves the procedure for

10 Due Process Class members to participate in and object to the Settlement as set forth in the

11 Notice.

12

5. The Court directs the Defendant to print and mail the Notice to all Equal

13 Protection and Due Process class members as of October 21,2011. The Notice shall be sent by

14 first class mail in accordance with the Implementation Schedule set forth below. This Court

15 finds that the dates selected for the mailing of the Notice meet the requirements of due process

16 and provide the best notice practicable under the circumstances. The Court further directs that

17 the Notice be published on the HCA website at http://www.basichealth.hca.wa.gov/. The Court

18 directs the Defendant to take the following additional actions to make the Notice accessible to

19 class members with limited English proficiency or disabilities requiring accommodations:

20

a. Interpretation and Translation: HCA shall translate the Notice into

21 Spanish, Korean, Vietnamese, Chinese and Russian. The Notice sent to each class member shall

22 be written in English unless a class member has requested their materials in one of these other

23 five languages, in which case HCA shall send the member a Notice translated into that language.

24 The Notice shall include language stating that an interpreter will be provided, at no cost to the

25 class member, if they cannot speak or read English. Upon request, Basic Health staff shall read

26 the Notice to the member. Basic Health shall also, with the assistance of an interpreter, offer to

[PROPOSED] ORDER APPROVING OF CLASS ACTION SETTLEMENT- (No. 2:11-cv-00588)- 2
482! -8063-4898,09 64560.00001

Riddell Williams P.S.
1001 Fourth Avenue, Suite 4500 Seattle, Washington 98154-1192
206.624.3600

< •

. .

Case 2:11-cv-00588-JLR Document 94 Filed 11/01/13 Page 3 of 5

Case 2:11-cv-00588-JLR Document 87-1 Filed 10/04/13 Page 3 of 5

1 read the Notice to each class member who requests interpretation services, and shall read it upon

2 any indication that the class member wishes Basic Health to do so, if they have not received the

3 Notice translated into their native language. For those who have indicated a language other than

4 English or the five languages above, Basic Health will include with the Notice a fonn in 20

5 languages that gives a phone number to call for assistance if the information is not in the class

6 member's language. HCA shall make all reasonable efforts to provide interpretation services to

7 all class members who request that information be provided to them in a language other than

8 English. These interpretation services shall be provided to class members free of charge.

9

b. Disability Accommodations: If a class member has an impairment or

10 disability that affects their ability to understand written information presented in the Notice's

11 standard format, and requests accommodation,HCA will provide reasonable accommodations,

12 such as by providing large-type or Braille copies of the Notice or TTY phone access, or by

13 reading the Notice to the class member.

14

6. TI1is Court orders the following Implementation Schedule for further proceedings:

15

Action

Deadline

16

1. Deadline for Defendant to Submit Class 5 calendar days after entry

Member Information to theClerk

ofthis Order

17

2. I Deadline for Defendant to Mail the Notice 15 calendar days after entry

to the Due Process class members

of this Order

18

3. Deadline for Class Members to Postmark 45 calendar days after

19

any Objections to the Settlement

mailing of the Notice

4, Deadline for Class Counsel to file Motion 45 calendar days before the

20

for Attorneys' Fees and Costs

deadline for the filing of

_ Objections

21

5. Deadline for Class Cotmsel to file Motion 21 calendar days before

for Final Approval of Settlement

Final Approval hearing

22

6. Deadline for Defendant to file Declaration 21 calendar days before

23

of Due Qiligence and Proof ofMaQJE!L.• Final A)2,eroval hearing

24

25

26
[PROPOSED] ORDER APPROVING OF CLASS ACTION SETTLEMENT- (No. 2:11-cv-00588)- 3
4821-8063-4898,09 64560.00001

Riddell Williams P.S.
1001 Fourth Avenue, Suite 4500 Seattle1 Washington 98154-1192
206.624.3600

..Case 2:11-cv-00588-JLR Document 94 Filed 11/0'1'/13 Page 4 of 5
Case 2:11-cv-00588-JLR Document 87-1 Filed 10/04/13 Page 4 of 5

7. Final Approval Hearing

Af'!'f6SfiHratel, 1ee 6a,•s

1

ttfter t~otiee is mfrile¢1 (~i yen

2
3

J. Thur s 0. lA I Ma. Y"ch Co, ·~e 6Q Saj j'JePiecl tt!iHI~
>: J 0 I " Q ~ ~ 00 r~-.-~---~~el~a~iHt:kles~,S~tallf~ilBe~gv~srfi~ER~l~e1f8i~i~~lae~tr~~s~ffi~r

elaims, fJFevh:liHg,;~~

4

.fel"'fte..f~a.f4ae lvlet*'B

~ '.

".·

5

IT IS SO ORDERED.

6

'It

~'I.e&

DATEDthisl::_dayof~,2013. ( \

7

8

\~A-~~-

9

The Honorabh James L. Robart

10 Presented by: II RIDDELL WILLIAMS P.S.

12 By: /s/ Blake Marks-Dias

13

Blake Marks-Dias Michael Pierson

14

Rachel Schaefer RIDDELL WILLIAMS P.S.

15

1001 Fourth Avenue, Suite 4500 Seattle, WA 98154-1192

16

Tel: (206) 624-3600 bmarksdias@riddellwilliams.com

17

mpierson@riddellwilliams.com

18

NORTHWEST HEALTH LAW ADVOCATES

19

Daniel S Gross,

20

Janet Varon NoHLA

21

4759 151h Avenue NE, Suite 305 Seattle, WA 98105

22

Tel:i2·0·6) 325.6464
Jane ·.·. ohla.org

23

danle @nohla.org

24

Attorneys for Plaintiffs

25

26
[PROPOSED] ORDER APPROVING OF CLASS ACTION SETTLEMENT- (No. 2:11-cv-00588)- 4 4821-8063-4898.09 64560.00001

Riddell Williams P.S.
1001 Fourth Avenue, Suite 4500 Seattle, Washington 98154-1192
206.624.3600

Case 2:11-cv-00588-JLR Do'cu' ment 94 Filed 11/01/13 Page 5 of 5

' '

Case 2:11-cv-00588-JLR Document 87-1 Filed 10/04/13 Page 5 of 5

CERTIFICATE OF SERVICE
I Heather Vasquez declares as follows:

2
'------1---Lam_o-"er_l8_)'ears_of_age_and_a_citizen ofthe United States. I am empl.Q)r,.ed"--"'as,an""-----l---------1

3 administrative assistant by the law firm of Riddell Williams P.S.

4 On the date noted below, I electronically filed the foregoing document using the CM/ECF

5 system which will notify the following via email:

6
Melissa A. Burke-Cain
7

MelissaB@atg.wa.gov, AHDOlyEF@atg.wa.gov, jenniferb4@atg.wa.gov, lindah5@atg.wa.gov

8 Gail S. Yu

gaily@atg.wa.gov, AHDOlyEF@atg.wa.gqv,
CQnstanecq@atg.wa.gQy

9
Elizabeth Anna-Marie Baker 10
II William B. Clark

Elizabethb3@atg.wa.gov, ahdolyef@atg.wa.gov
billc2@atg. wa.gov, aaron2@atg.wa. gov, agnesr@atg.wa. gov, TORSeaEF@atg.wa. gov

12

I declare under penalty of perjury under the laws of the State of Washington that the

13 foregoing is true and correct.

14

DATED this 4th day of October, 2013.

15

16

17

18

19

20

21

22 23

24

25

26
[PROPOSED] ORDER APPROVING OF CLASS ACTION SETTLEMENT- (No.2: 11-cv-00588)- 5
4821-8063-4898.09 64560.00001

Riddell Williams P.S.
1001 Fourth Avenue, Suite 4500 Seattle, Wash1ngton 98154-1192
206.624.3600

 
 Create an Alert for This Case on RECAP

CLOSED,PROTO

U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:11-cv-00588-JLR

Unthaksinkun v. Porter Assigned to: Judge James L. Robart Cause: 42:1983 Civil Rights Act
Plaintiff Rattiya Unthaksinkun individually and on behalf of a class of similarly situated persons

Date Filed: 04/07/2011 Date Terminated: 07/08/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Blake Edward Marks-Dias CORR CRONIN, LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600 Fax: 206-625-0900 Email: bmarksdias@corrcronin.com ATTORNEY TO BE NOTICED
Daniel S Gross SIRIANNI YOUTZ SPOONEMORE HAMBURGER 3101 WESTERN AVENUE STE 350 SEATTLE, WA 98121 206-223-0303 Fax: 206-223-0246 Email: dgross@sylaw.com ATTORNEY TO BE NOTICED
Janet Varon NORTHWEST HEALTH LAW ADVOCATES 4759 15TH AVE NE STE 305 SEATTLE, WA 98105 206-325-6464 Email: janet@nohla.org ATTORNEY TO BE NOTICED

Plaintiff Susan Ahmadi
Plaintiff Khaddouj Atif
Plaintiff Anna Sergeyevna Ponomareva
Plaintiff S.J.
V. Defendant Douglas Porter in his official capacity as Administrator of the Washington State Health Care Authority

Michael Pierson RIDDELL WILLIAMS 1001 4TH AVE PLAZA STE 4500 SEATTLE, WA 98154 206-624-3600 Fax: FAX 389-1708 Email: mpierson@riddellwilliams.com ATTORNEY TO BE NOTICED
represented by Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED
represented by Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED
represented by Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED
represented by Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Anna-Marie Baker ATTORNEY GENERAL'S OFFICE (40126-OLY) 7141 CLEANWATER DRIVE SW PO BOX 40126 OLYMPIA, WA 98504-0126 360-586-6368 Fax: FAX 1-425-451-0714 Email: elizabethb3@atg.wa.gov TERMINATED: 08/11/2011
Gail S Yu ATTORNEY GENERAL'S OFFICE

(HLTH) HEALTH DIVISION PO BOX 40109 OLYMPIA, WA 98504 360-586-9190 Email: gaily@atg.wa.gov ATTORNEY TO BE NOTICED
Melissa A Burke-Cain ATTORNEY GENERAL'S OFFICE (40124-OLY) 7141 CLEANWATER DR SW PO BOX 40124 OLYMPIA, WA 98504-0124 360-664-4966 Email: MelissaB@atg.wa.gov ATTORNEY TO BE NOTICED
William G Clark ATTORNEY GENERAL'S OFFICE (SEA- FIFTH AVE) 800 5TH AVE STE 2000 SEATTLE, WA 98104-3188 206-389-2794 Fax: FAX 206-587-4229 Email: billc2@atg.wa.gov ATTORNEY TO BE NOTICED

Date Filed 04/07/2011
04/07/2011 04/07/2011
04/07/2011
04/07/2011

# Docket Text
1 COMPLAINT For Declaratory And Injunctive Relief against defendant(s) Douglas Porter (Receipt # 0981-2390211), filed by Rattiya Unthaksinkun.(Marks-Dias, Blake) (Entered: 04/07/2011)
2 PRAECIPE TO ISSUE SUMMONS re 1 Complaint by Plaintiff Rattiya Unthaksinkun. (Marks-Dias, Blake) (Entered: 04/07/2011)
3 MOTION for Preliminary Injunction Plaintiff's Motion For A Preliminary Injunction by Plaintiff Rattiya Unthaksinkun. Oral Argument Requested. Noting Date 4/29/2011, (Marks-Dias, Blake) (Entered: 04/07/2011)
4 MOTION to Certify Class Plaintiff's Motion For Class Certification by Plaintiff Rattiya Unthaksinkun. Oral Argument Requested. Noting Date 4/29/2011, (Marks-Dias, Blake) (Entered: 04/07/2011)
5 DECLARATION of Blake Marks-Dias in Support of Plaintiff's Motion for Class Certification filed by Plaintiff Rattiya Unthaksinkun

04/07/2011 04/07/2011
04/07/2011 04/07/2011 04/07/2011 04/07/2011 04/08/2011 04/08/2011 04/08/2011 04/08/2011 04/13/2011 04/13/2011

re 4 MOTION to Certify Class Plaintiff's Motion For Class Certification (Marks-Dias, Blake) (Entered: 04/07/2011)
6 DECLARATION of Michael Pierson in Support of Plaintiff's Motion for Class Certification filed by Plaintiff Rattiya Unthaksinkun re 4 MOTION to Certify Class Plaintiff's Motion For Class Certification (Marks-Dias, Blake) (Entered: 04/07/2011)
7 DECLARATION of Rattiya Unthaksinkun in Support of Plaintiff's Motion for Preliminary Injunction and Class Certification filed by Plaintiff Rattiya Unthaksinkun re 4 MOTION to Certify Class Plaintiff's Motion For Class Certification, 3 MOTION for Preliminary Injunction Plaintiff's Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 04/07/2011)
8 DECLARATION of Daniel Gross in Support of Plaintiff's Motion for Class Certification filed by Plaintiff Rattiya Unthaksinkun re 4 MOTION to Certify Class Plaintiff's Motion For Class Certification (Marks-Dias, Blake) (Entered: 04/07/2011)
9 DECLARATION of Janet Varon in Support of Plaintiff's Motion for Class Certification filed by Plaintiff Rattiya Unthaksinkun re 4 MOTION to Certify Class Plaintiff's Motion For Class Certification (Marks-Dias, Blake) (Entered: 04/07/2011)
10 PROPOSED ORDER (Unsigned) re 3 MOTION for Preliminary Injunction Plaintiff's Motion For A Preliminary Injunction Proposed Order Granting Plaintiff's Motion for a Preliminary Injunction (MarksDias, Blake) (Entered: 04/07/2011)
11 PROPOSED ORDER (Unsigned) re 4 MOTION to Certify Class Plaintiff's Motion For Class Certification Proposed Order Granting Plaintiff's Motion for Class Certification (Marks-Dias, Blake) (Entered: 04/07/2011)
NOTICE to Filer of Deficiency: NO CIVIL COVER SHEET:Please post the Civil Cover Sheet using the event Civil Cover Sheet found in Other Documents and relate back to the Complaint. (RE) (Entered: 04/08/2011)
Judge James L. Robart added. (RE) (Entered: 04/08/2011)
12 CIVIL COVER SHEET re 1 Complaint ; filed by Plaintiff Rattiya Unthaksinkun.. (Marks-Dias, Blake) (Entered: 04/08/2011)
Summons Issued as to defendant(s) Douglas Porter.(Summons sent via US Postal Service on 4/8/11) (RE) (Entered: 04/08/2011)
13 NOTICE of Appearance by attorney Gail S Yu on behalf of Defendant Douglas Porter. (Yu, Gail) (Entered: 04/13/2011)
14 NOTICE of Appearance by attorney Melissa A Burke-Cain on behalf of Defendant Douglas Porter. (Burke-Cain, Melissa) (Entered: 04/13/2011)

04/13/2011 04/25/2011 04/28/2011 04/28/2011 04/28/2011 04/28/2011
04/28/2011
04/28/2011
04/29/2011

15 NOTICE of Appearance by attorney Elizabeth Anna-Marie Baker on behalf of Defendant Douglas Porter. (Baker, Elizabeth) (Entered: 04/13/2011)
16 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT Joint Status Report due by 6/24/2011, FRCP 26f Conference Deadline is 6/10/2011, Initial Disclosure Deadline is 6/24/2011, by Judge James L. Robart. (CC) (Entered: 04/25/2011)
17 Amended MOTION to Certify Class Plaintiff's Amended Motion For Class Certification by Plaintiff Rattiya Unthaksinkun. Oral Argument Requested. Noting Date 5/20/2011, (Marks-Dias, Blake) (Entered: 04/28/2011)
18 AMENDED COMPLAINT For Declaratory And Injunctive Relief against defendant(s) All Plaintiffs, filed by Rattiya Unthaksinkun, Susan Ahmadi, Khaddouj Atif.(Marks-Dias, Blake) (Entered: 04/28/2011)
19 Amended MOTION for Preliminary Injunction Plaintiffs' Amended Motion For A Preliminary Injunction by Plaintiffs Susan Ahmadi, Khaddouj Atif, Rattiya Unthaksinkun. Oral Argument Requested. Noting Date 5/20/2011, (Marks-Dias, Blake) (Entered: 04/28/2011)
20 DECLARATION of Khaddouj Atif filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Rattiya Unthaksinkun re 17 Amended MOTION to Certify Class Plaintiff's Amended Motion For Class Certification, 19 Amended MOTION for Preliminary Injunction Plaintiffs' Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 04/28/2011)
21 DECLARATION of Susan Ahmadi filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Rattiya Unthaksinkun re 17 Amended MOTION to Certify Class Plaintiff's Amended Motion For Class Certification, 19 Amended MOTION for Preliminary Injunction Plaintiffs' Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 04/28/2011)
22 Second DECLARATION of Janet Varon filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Rattiya Unthaksinkun re 17 Amended MOTION to Certify Class Plaintiff's Amended Motion For Class Certification, 19 Amended MOTION for Preliminary Injunction Plaintiffs' Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 04/28/2011)
23 WITHDRAWAL of Motion re 4 MOTION to Certify Class Plaintiff's Motion For Class Certification, 3 MOTION for Preliminary Injunction Plaintiff's Motion For A Preliminary Injunction ; by Plaintiffs

05/03/2011
05/11/2011 05/11/2011 05/16/2011 05/16/2011 05/16/2011 05/23/2011 05/23/2011
05/23/2011
05/23/2011
05/23/2011

Susan Ahmadi, Khaddouj Atif, Rattiya Unthaksinkun. (Marks-Dias, Blake) (Entered: 04/29/2011)
24 ERRATA re 22 Declaration, Errata to the Second Declaration of Janet Varon In Support of Plaintiffs Motions For Class Certification And Preliminary Injunction by Plaintiffs Susan Ahmadi, Khaddouj Atif, Rattiya Unthaksinkun. (Marks-Dias, Blake) (Entered: 05/03/2011)
25 ANSWER to 18 Amended Complaint by Douglas Porter.(Yu, Gail) Modified on 5/11/2011 (JJT). (Entered: 05/11/2011)
NOTICE of Docket Text Modification re 25 Answer to Complaint : Changed reference to Complaint to Reference to Amended Complaint. (JJT) (Entered: 05/11/2011)
26 NOTICE of Appearance by attorney William G Clark on behalf of Defendant Douglas Porter. (Clark, William) (Entered: 05/16/2011)
27 MOTION for Extension of Time by Defendant Douglas Porter. (Attachments: # 1 Proposed Order) Noting Date 5/16/2011, (Yu, Gail) (Entered: 05/16/2011)
28 DECLARATION of Gail Yu filed by Defendant Douglas Porter re 27 MOTION for Extension of Time (Yu, Gail) (Entered: 05/16/2011)
29 STIPULATION Regarding Scheduling and Other Matters by parties. (Marks-Dias, Blake) (Entered: 05/23/2011)
30 Second AMENDED COMPLAINT For Declaratory And Injunctive Relief against defendant(s) Susan Ahmadi, Khaddouj Atif, Rattiya Unthaksinkun, Anna Sergeyevna Ponomareva, S.J., filed by Anna Sergeyevna Ponomareva, S.J..(Marks-Dias, Blake) (Entered: 05/23/2011)
31 Second MOTION to Certify Class Plaintiff's Second Amended Motion for Class Certification by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun. Oral Argument Requested. Noting Date 6/10/2011, (Marks-Dias, Blake) (Entered: 05/23/2011)
32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun. Oral Argument Requested. Noting Date 6/10/2011, (Marks-Dias, Blake) (Entered: 05/23/2011)
33 DECLARATION of Charles Edward Ortego filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 31 Second MOTION to Certify Class Plaintiff's Second Amended Motion for Class Certification, 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 05/23/2011)

05/23/2011
05/23/2011
05/24/2011 05/25/2011 05/31/2011 05/31/2011 05/31/2011 05/31/2011 05/31/2011 05/31/2011

34 DECLARATION of S.J. filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 31 Second MOTION to Certify Class Plaintiff's Second Amended Motion for Class Certification, 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 05/23/2011)
35 DECLARATION of Anna Sergeyevna Ponomareva filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 31 Second MOTION to Certify Class Plaintiff's Second Amended Motion for Class Certification, 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 05/23/2011)
36 PRAECIPE to attach document re 33 Declaration, by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun. (Marks-Dias, Blake) (Entered: 05/24/2011)
37 MOTION for Leave to File Excess Pages by Defendant Douglas Porter. (Attachments: # 1 Proposed Order) Noting Date 5/25/2011, (Yu, Gail) (Entered: 05/25/2011)
38 RESPONSE, by Defendant Douglas Porter, to 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction. (Attachments: # 1 Appendix)(Yu, Gail) (Entered: 05/31/2011)
39 DECLARATION of Preston Cody filed by Defendant Douglas Porter re 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Yu, Gail) (Entered: 05/31/2011)
40 DECLARATION of Jenny Hamilton filed by Defendant Douglas Porter re 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Yu, Gail) (Entered: 05/31/2011)
41 DECLARATION of Robert Longhorn filed by Defendant Douglas Porter re 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Yu, Gail) (Entered: 05/31/2011)
42 DECLARATION of Christy Vaughn filed by Defendant Douglas Porter re 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Yu, Gail) (Entered: 05/31/2011)
43 DECLARATION of Cindy McKinzie filed by Defendant Douglas Porter re 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Yu, Gail) (Entered: 05/31/2011)

05/31/2011 06/06/2011 06/10/2011 06/10/2011 06/10/2011 06/10/2011 06/10/2011 06/10/2011 06/21/2011

44 RESPONSE, by Defendant Douglas Porter, to 31 Second MOTION to Certify Class Plaintiff's Second Amended Motion for Class Certification. (Yu, Gail) (Entered: 05/31/2011)
45 ANSWER to 30 Amended Complaint by Douglas Porter.(Yu, Gail) (Entered: 06/06/2011)
46 REPLY, filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun, TO RESPONSE to 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 06/10/2011)
47 Third DECLARATION of Daniel Gross filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 06/10/2011)
48 DECLARATION of Jorge L. Baron filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 06/10/2011)
49 DECLARATION of Aaron Katz filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 32 Second MOTION for Preliminary Injunction Plaintiffs' Second Amended Motion For A Preliminary Injunction (Marks-Dias, Blake) (Entered: 06/10/2011)
50 REPLY, filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun, TO RESPONSE to 31 Second MOTION to Certify Class Plaintiff's Second Amended Motion for Class Certification (Marks-Dias, Blake) (Entered: 06/10/2011)
51 DECLARATION of Abigail Pico filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 31 Second MOTION to Certify Class Plaintiff's Second Amended Motion for Class Certification (Marks-Dias, Blake) (Entered: 06/10/2011)
52 MOTION to Expedite Plaintiffs' Unopposed Motion for Expedited Hearing by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun. (Attachments: # 1 Proposed Order) Noting Date 6/21/2011, (Marks-Dias, Blake) (Entered: 06/21/2011)

06/24/2011 06/27/2011 06/27/2011 06/27/2011 07/05/2011 07/12/2011
07/25/2011 08/10/2011 08/10/2011 08/11/2011 08/12/2011

53 JOINT STATUS REPORT signed by all parties estimated Trial Days: 10. Filed by Defendant Douglas Porter.(Baker, Elizabeth) (Entered: 06/24/2011)
54 ORDER granting 27 Defendant's Motion for Extension of Time and for amended response schedule by Judge James L. Robart.(MD) (Entered: 06/27/2011)
55 ORDER granting 37 Defendant's Motion for Leave to File Excess Pages by Judge James L. Robart.(MD) (Entered: 06/27/2011)
56 ORDER denying 52 Plaintiffs' Motion to Expedite hearing by Judge James L. Robart.(MD) (Entered: 06/27/2011)
57 SUPPLEMENT re 44 Response to Motion by Defendant Douglas Porter. (Attachments: # 1 Supplement)(Yu, Gail) (Entered: 07/05/2011)
58 MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES, AND DESIGNATING CASE FOR MEDIATION; Length of Trial: *6 days*. Mediation shall be completed no later than thirty (30) days prior to the trial date. Bench Trial is set for 4/30/2012 at 01:30 PM before Judge James L. Robart. Joinder of Parties due by 8/9/2011, Amended Pleadings due by 11/2/2011, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 11/2/2011, Motions due by 12/2/2011, Discovery completed by 1/3/2012, Dispositive motions due by 1/31/2012, Settlement conference to be held by 3/1/2012, 39.1 mediation to be completed by 4/2/2012, Motions in Limine due by 3/26/2012, Pretrial Order due by 4/11/2012, Pretrial Conference set for 4/16/2012 at 02:30 PM before Judge James L. Robart. Trial briefs to be submitted by 4/23/2012, Proposed Findings of Fact and Conclusions of Law to be submitted by 4/23/2012, by Judge James L. Robart. (CC) (Entered: 07/12/2011)
Set/Reset Hearings: Oral argument for the Second Motion for Class Certification (Dkt. #31) and Second Motion for Preliminary Injunction (Dkt. #32) is scheduled Friday, August 12, 2011 at 11:00 a.m. before Hon. James L. Robart.(CC) (Entered: 07/25/2011)
59 STIPULATION AND PROPOSED ORDER Agreed Protective Order by parties. (Marks-Dias, Blake) (Entered: 08/10/2011)
60 SUPPLEMENT re 38 Response to Motion for Preliminary Injunction by Defendant Douglas Porter. (Attachments: # 1 Supplement Attachment)(Yu, Gail) (Entered: 08/10/2011)
61 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Elizabeth AnnaMarie Baker for Defendant Douglas Porter. (Baker, Elizabeth) (Entered: 08/11/2011)
62 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Blake Marks-Dias, Daniel

08/18/2011 09/15/2011 09/28/2011
10/07/2011 10/07/2011 10/12/2011 10/12/2011 10/13/2011
10/21/2011
10/21/2011 10/24/2011 01/03/2012

Gross, Janet Baron; Def Counsel: Gail Yu, Melissa Burke-Cain; CR: Nancy Bauer; Motion Hearing held on 8/12/2011. The court hears argument from counsel on pending motions. The court takes the matter under advisement. (CC) (Entered: 08/12/2011)
63 STIPULATION AND PROTECTIVE ORDER by Judge James L. Robart. (MD) (Entered: 08/18/2011)
64 NOTICE of Unavailability of counsel Gail S Yu for Defendant Douglas Porter from October 7, 2011 to October 16, 2011. (Yu, Gail) (Entered: 09/15/2011)
65 ORDER granting in part and denying in part 31 Plaintiffs Second Motion to Certify Class; granting in part and denying in part 32 Plaintiffs Second Motion for Preliminary Injunction by Judge James L. Robart.(MD) (Entered: 09/28/2011)
66 MOTION for Extension of Time by Defendant Douglas Porter. (Attachments: # 1 Proposed Order) Noting Date 10/21/2011, (Yu, Gail) (Entered: 10/07/2011)
67 DECLARATION of GAIL S. YU filed by Defendant Douglas Porter re 66 MOTION for Extension of Time (Yu, Gail) (Entered: 10/07/2011)
68 PROPOSED ORDER (Unsigned) Preliminary Injunction Order. (MarksDias, Blake) (Entered: 10/12/2011)
69 Letter from Blake Marks-Dias re 68 Proposed Order (Unsigned). (MarksDias, Blake) (Entered: 10/12/2011)
70 EXHIBIT Exhibits 1-4 to Proposed Preliminary Injunction Order re 68 Proposed Order (Unsigned) by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun. (Attachments: # 1 Exhibit Exhibit 2, # 2 Exhibit Exhibit 3, # 3 Exhibit Exhibit 4)(Marks-Dias, Blake) (Entered: 10/13/2011)
71 ORDER granting 66 Defendant's Motion for Extension of Time to submit proposed orders implementing the Court's Sept 28, 2011 ruling shall be continued to Oct 21, 2011, by Judge James L. Robart.(MD) (Entered: 10/21/2011)
72 PROPOSED ORDER (Unsigned) Preliminary Injunction. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Yu, Gail) (Entered: 10/21/2011)
73 PRELIMINARY INJUNCTION by Judge James L. Robart. (MD) (Entered: 10/24/2011)
74 NOTICE of Designation of Mediator ; filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun. (Marks-Dias, Blake) (Entered: 01/03/2012)

01/23/2012 01/30/2012 01/30/2012 02/08/2012 02/10/2012 05/22/2012 05/23/2012 05/23/2012 05/24/2012
09/06/2012

75 NOTICE of Unavailability of counsel Gail S Yu for Defendant Douglas Porter from 01/28/12 to 02/05/12. (Yu, Gail) (Entered: 01/23/2012)
76 STIPULATION AND PROPOSED ORDER Regarding Case Schedule by parties re 58 Minute Order Setting Trial Date and Related Dates,,,. (Marks-Dias, Blake) (Entered: 01/30/2012)
77 STIPULATION AND ORDER re 76 Stipulation regarding case schedule filed by Rattiya Unthaksinkun, S.J., Susan Ahmadi, Anna Sergeyevna Ponomareva, Khaddouj Atif by Judge James L. Robart. (MD) (Entered: 01/31/2012)
Set/Reset Deadlines/Set/Reset Hearings: A status conference is scheduled Tuesday, May 29, 2012 at 2:00 p.m. before Hon. James L. Robart. Counsel shall file a joint status report by Tuesday, May 22, 2012.(CC) (Entered: 02/08/2012)
78 NOTICE of Unavailability of counsel Melissa A Burke-Cain for Defendant Douglas Porter from 2/14/2012 to 2/20/2012. (Burke-Cain, Melissa) (Entered: 02/10/2012)
79 JOINT STATUS REPORT signed by all parties estimated Trial Days: 5.. (Yu, Gail) (Entered: 05/22/2012)
80 NOTICE of Stricken Hearing. The Status Conference scheduled Tuesday, May 29, 2012 is stricken. (CC) (Entered: 05/23/2012)
Set/Reset Deadlines & Hearings: A status conference is scheduled Friday, September 14, 2012 at 11:00 a.m. before Hon. James L. Robart. Counsel shall file a joint status report by Friday, September 7, 2012. (CC) (Entered: 05/23/2012)
81 MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES, AND DESIGNATING CASE FOR MEDIATION; Length of Trial: *5 days*. Mediation shall be completed no later than thirty (30) days prior to the trial date. Bench Trial is set for 8/19/2013 at 01:30 PM before Judge James L. Robart. Joinder of Parties due by 8/9/2011, Amended Pleadings due by 11/21/2011, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 2/20/2013, Motions due by 3/22/2013, Discovery completed by 4/22/2013, Dispositive motions due by 5/21/2013, Settlement conference to be held by 6/20/2013, 39.1 mediation to be completed by 7/22/2013, Motions in Limine due by 7/15/2013, Pretrial Order due by 7/31/2013, Pretrial Conference set for 8/5/2013 at 02:00 PM before Judge James L. Robart. Trial briefs to be submitted by 8/12/2013, Proposed Findings of Fact and Conclusions of Law to be submitted by 8/12/2013, by Judge James L. Robart. (CC) (Entered: 05/24/2012)
82 NOTICE of Stricken Hearing. The status conference scheduled Friday, Sept. 14, 2012 at 11:00 a.m. is stricken. (CC) (Entered: 09/06/2012)

09/06/2012 10/19/2012 10/23/2012 03/15/2013 04/04/2013
10/04/2013 10/04/2013 10/04/2013

83 JOINT STATUS REPORT signed by all parties estimated Trial Days: 5.. (Yu, Gail) (Entered: 09/06/2012)
Set/Reset Hearings: A Telephone Conference is scheduled Tuesday, October 23, 2012 at 2:00 p.m. before Hon. James L. Robart. The clerk will initiate the call.(CC) (Entered: 10/19/2012)
84 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Blake Marks-Dias; Def Counsel: Gail Yu; Telephone Conference held on 10/23/2012. Trial date remains set for August 19, 2013. The court directs counsel to submit a Joint Status Report by March 15, 2013. (CC) (Entered: 10/23/2012)
85 JOINT STATUS REPORT signed by all parties estimated Trial Days: 5.. (Yu, Gail) (Entered: 03/15/2013)
86 MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES, AND DESIGNATING CASE FOR MEDIATION; Length of Trial: *5 days*. Mediation shall be completed no later than thirty (30) days prior to the trial date. Bench Trial is set for 8/11/2014 at 01:30 PM before Judge James L. Robart. Joinder of Parties due by 8/9/2011, Amended Pleadings due by 11/21/2011, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 2/12/2014, Motions due by 3/14/2014, Discovery completed by 4/14/2014, Dispositive motions due by 5/13/2014, Settlement conference to be held by 6/12/2014, Motions in Limine due by 6/30/2014, Pretrial Order due by 7/23/2014, Pretrial Conference set for 7/28/2014 at 02:00 PM before Judge James L. Robart. Trial briefs to be submitted by 8/4/2014, Proposed Findings of Fact and Conclusions of Law to be submitted by 8/4/2014, by Judge James L. Robart. (CC) (Entered: 04/04/2013)
87 MOTION for Attorney Fees Motion for Preliminary Approval of a Partial Class Action Settlement and Agreement on Attorneys' Fees by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun. (Attachments: # 1 Proposed Order) Noting Date 10/25/2013, (Marks-Dias, Blake) (Entered: 10/04/2013)
88 DECLARATION of Blake Marks-Dias filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 87 MOTION for Attorney Fees Motion for Preliminary Approval of a Partial Class Action Settlement and Agreement on Attorneys' Fees (Marks-Dias, Blake) (Entered: 10/04/2013)
89 DECLARATION of Daniel Gross filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 87 MOTION for Attorney Fees Motion for Preliminary Approval of a Partial Class Action Settlement and Agreement on Attorneys' Fees (Marks-Dias, Blake) (Entered: 10/04/2013)

10/04/2013
10/04/2013
10/04/2013 10/23/2013 11/01/2013
11/05/2013 11/05/2013 11/06/2013 11/06/2013 11/06/2013 11/15/2013

90 DECLARATION of Janet Varon filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 87 MOTION for Attorney Fees Motion for Preliminary Approval of a Partial Class Action Settlement and Agreement on Attorneys' Fees (Marks-Dias, Blake) (Entered: 10/04/2013)
91 DECLARATION of Preston Cody filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 87 MOTION for Attorney Fees Motion for Preliminary Approval of a Partial Class Action Settlement and Agreement on Attorneys' Fees (Marks-Dias, Blake) (Entered: 10/04/2013)
92 NOTICE of Unavailability of counsel Gail S Yu for Defendant Douglas Porter from 10/7/2013 to 10/22/2013. (Yu, Gail) (Entered: 10/04/2013)
93 DECLARATION of Janet Varon filed by Plaintiff Khaddouj Atif re 87 MOTION for Attorney Fees Motion for Preliminary Approval of a Partial Class Action Settlement and Agreement on Attorneys' Fees (Attachments: # 1 Exhibit)(Varon, Janet) (Entered: 10/23/2013)
94 ORDER granting 87 Motion for Preliminary Approval of a Partial Class Action Settlement and Agreement on Attorney Fees. In-court Hearing Regarding Final Approval Hearing set for 3/6/2014 at 03:00 PM before Judge James L. Robart, by Judge James L. Robart.(MD) (Entered: 11/01/2013)
95 Stipulated MOTION to Seal by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun. (Attachments: # 1 Proposed Order) Noting Date 11/5/2013, (Marks-Dias, Blake) (Entered: 11/05/2013)
96 DECLARATION of Blake Marks-Dias filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 95 Stipulated MOTION to Seal (Marks-Dias, Blake) (Entered: 11/05/2013)
97 SEALED DOCUMENT Class Member Information Under Seal by Defendant Douglas Porter re 95 Stipulated MOTION to Seal (Attachments: # 1 Exhibit)(Yu, Gail) (Entered: 11/06/2013)
98 SEALED DOCUMENT EXHIBIT 1 - FILED UNDER SEAL by Defendant Douglas Porter re 95 Stipulated MOTION to Seal (Yu, Gail) (Entered: 11/06/2013)
99 STIPULATION AND ORDER - Granting 95 Stipulated MOTION to Seal filed by Rattiya Unthaksinkun, S.J., Susan Ahmadi, Anna Sergeyevna Ponomareva, Khaddouj Atif, by Judge James L. Robart. (MD) (Entered: 11/06/2013)
100 MOTION for Attorney Fees and Costs and for Service Awards by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva,

11/15/2013 11/15/2013 12/27/2013 02/10/2014 02/13/2014 02/13/2014 02/13/2014 02/26/2014
03/05/2014 03/06/2014

S.J., Rattiya Unthaksinkun. (Attachments: # 1 Proposed Order) Noting Date 3/6/2014, (Marks-Dias, Blake) (Entered: 11/15/2013)
101 DECLARATION of Blake Marks-Dias filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 100 MOTION for Attorney Fees and Costs and for Service Awards (Marks-Dias, Blake) (Entered: 11/15/2013)
102 DECLARATION of Janet Varon filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 100 MOTION for Attorney Fees and Costs and for Service Awards (Marks-Dias, Blake) (Entered: 11/15/2013)
103 Letter from Oanh Dao. (MD) (Entered: 01/02/2014)
104 DECLARATION of Due Diligence and Proof of Mailing by Defendant Douglas Porter. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Yu, Gail) (Entered: 02/10/2014)
105 MOTION for Final Approval of a Partial Class Action Settlement by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun. (Attachments: # 1 Proposed Order) Noting Date 3/6/2014, (Marks-Dias, Blake) (Entered: 02/13/2014)
106 DECLARATION of Blake Marks-Dias filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 105 MOTION for Final Approval of a Partial Class Action Settlement (Marks-Dias, Blake) (Entered: 02/13/2014)
107 DECLARATION of Daniel Gross filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 105 MOTION for Final Approval of a Partial Class Action Settlement (Marks-Dias, Blake) (Entered: 02/13/2014)
108 DECLARATION of RattiyaUnthaksinkun Regarding Partial Class Action Settlement filed by Plaintiffs Susan Ahmadi, Khaddouj Atif, Anna Sergeyevna Ponomareva, S.J., Rattiya Unthaksinkun re 105 MOTION for Final Approval of a Partial Class Action Settlement (Marks-Dias, Blake) (Entered: 02/26/2014)
Set/Reset Hearings: Motion Hearing scheduled Thursday, March 6, 2014 at 3:00 p.m. is rescheduled for 4:00 p.m. before Hon. James L. Robart. (CC) (Entered: 03/05/2014)
109 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Blake Marks-Dias, Michael Pierson, Janet Varon, Daniel Gross; Def Counsel: Gail Yu, Melissa Burke-Cain; CR: Kari McGrath; Motion Hearing held on 3/6/2014. The court hears from counsel and makes findings. The court rules the settlement is fair. The court grants the Motion for Final Approval of a Partial Class Action Settlement, Dkt. #105. The court grants the Motion

03/06/2014 03/06/2014 03/12/2014

for Attorney Fees and Costs and for Service Awards, Dkt. #100. (CC) (Entered: 03/06/2014)
110 ORDER - Granting re 100 MOTION for Attorney Fees and Costs and for Service Awards filed by Rattiya Unthaksinkun, S.J., Susan Ahmadi, Anna Sergeyevna Ponomareva, Khaddouj Atif by Judge James L. Robart. (MD) (Entered: 03/07/2014)
111 ORDER - Granting re 105 MOTION for Final Approval of a Partial Class Action Settlement filed by Rattiya Unthaksinkun, S.J., Susan Ahmadi, Anna Sergeyevna Ponomareva, Khaddouj Atif by Judge James L. Robart. (MD) (Entered: 03/07/2014)
112 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 3/6/2014 before Judge James L. Robart.

Parties have ten (10) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Kari McGrath by telephone at 206/370-8509 or by e-mail at kari_mcgrath@wawd.uscourts.gov.

06/12/2014 06/12/2014 07/07/2014 07/08/2014

Release of Transcript Restriction set for 6/10/2014, (KM) (Entered: 03/12/2014)
113 MOTION to Dismiss by Defendant Douglas Porter. (Attachments: # 1 Declaration, # 2 Proposed Order) Noting Date 7/11/2014, (Yu, Gail) (Entered: 06/12/2014)
114 DECLARATION of Preston Cody filed by Defendant Douglas Porter re 113 MOTION to Dismiss (Yu, Gail) (Entered: 06/12/2014)
115 RESPONSE, by Plaintiffs Susan Ahmadi, Khaddouj Atif, S.J., Rattiya Unthaksinkun, to 113 MOTION to Dismiss . (Marks-Dias, Blake) (Entered: 07/07/2014)
116 ORDER granting 113 Defendant's Motion to Dismiss by Judge James L. Robart.(MD) (Entered: 07/08/2014)

07/08/2014 117 JUDGMENT BY COURT - THE COURT HAS ORDERED THAT: This case is dismissed on the grounds that the remaining issues in the case are moot. (MD) (Entered: 07/08/2014)

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